
    Maria Miller v. Abraham Teachout.
    
      A testator provided in his will that the residue of his estate, -which consisted of personal property, after paying legacies, should be retained by his executor and invested by him during the life of his wife for her use, and that at her death it should be appropriated by the executor to the advancement of the Christian religion, and be applied in such manner as, in his judgment, would best promote the object named. The executor accepted the trust; and during his life and that of the widow, the heir brought suit to annul the will for uncertainty as to the object of the trust- Held, that the testator had conferred ample power upon the executor to relieve the bequest of all objections arising from its indefinite character, and that so long as no obstacle exists to the exercise of the power at the proper time, the courts of this state will not, in advance of that time, interpose, on the application of the heir, to prevent its exercise.
    Appeal. Reserved in the District Court of Lake county..
    The original petition was filed in the Court of Common Pleas of Lake county. It is averred therein that Samuel. Miller died- September 6,1867, possessed of a large amount of personal property; that he left no lineal descendants; that there were no debts against the estate; that the plaintiff is his widow, and entitled to his whole estate as heir that, May 21,1866, he made a will, and appointed the defendant his executor; that the will was probated September 11, 1867 ; and that the plaintiff, as executor, has taken-possession of the property, and claims the right to hold and use it in accordance with the terms of the. will. She-alleges that the will is void, and that the defendant, as executor or trustee, has no right to the property. She prays-that the will and probate thereof may be set aside, and that the will may be held for naught.
    
      A copy of the will is made part of the petition, and is as follows:
    “1. I give and bequeath to my beloved wife, Maria Miller, the sum of three thousand ($3,000) dollars to be for her own absolute use and disposal, the same to be paid to her by my' executor at my decease.
    
      “ 2. It is my will that the remainder of my property shall remain in the hands and under the control of my executor hereinafter named, during the natural life of my said wife, to be kept by said executor invested as he shall deem safely, and for the best advantage, and that the use and income from the same shall be under the control of my said wife, and shall be paid to her by said executor for her own use and disbursement, or to other person or persons, as she may direct, and at such times as she shall require. The bequests herein made to my wife are intended to be in lieu of all allowances and rights at law of my said wife in my estate.
    “ 3. At the death of my wife, it is my will, and I direct that my said executor shall appropriate and use all the residue of my estate for the advancement and benefit of the Christian religion, to be applied in such manner as in his judgment will best promote the object named.
    “ 4. I hereby appoint my friend, Abraham Teachout, executor of this my last will and testament, and having entire confidence in his integrity and fidelity, I direct that he shall not be required to give bond for the faithful performance of this trust.
    “ 5. I hereby authorize my said executor to appoint by will or otherwise, in writing signed by him, a person or persons to execute the trusts herein named, said appointment to take place in the event my said executor shall die before having fully executed said trusts, or shall be unable for any cause fully to execute the same.”
    The defendant demurred to the petition, and the court sustained the demurrer and rendered judgment for the defendant.
    
      The plaintiff appealed to the District Court, where the case was reserved for decision in this court.
    
      'Tinker § Alvord, attorneys for plaintiff:
    The principal, if not the only question to he determined, is this: Whether the bequest contained in the third item of the will is legal and valid; or, in other words, is a bequest to a trustee, in trust for the advancement and benefit of the Christian religion, such a bequest as will be upheld and enforced by our courts?
    It is claimed that the bequest and the trust sought to be created by the third item of this will, is inoperative and void:
    I. Because it is too general, vague, and- indefinite to be applied to any certain charitable use.
    II. Because there is no cestui que trust or beneficiary in esse, or who can hereafter be ascertained or made certain, named in the will creating the trust.
    III. Because it is impossible ever to establish a breach, of the trust by the defendant, on account of its uncertainty — -the trustee having the sole and exclusive right to expend the fund in such manner as in his judgment will best promote the object named.
    IV. Because, in case of the failure or refusal of the trustee to execute the trust, the beneficiary (if any there be) is so uncertain and indefinite, and the object of the testator’s charity so vague and intangible, that no court of equity could define, carry out, or enforce the trust by judicial decree.
    In support of the foregoing propositions, the court is referred to the following authorities: Owens v. Missionary Society of the Methodist Episcopal Church, 13 N. Y. 380; Grimes’ Ex’rs v. Harmon, 9 Amer. 960; 35 Ind. 198; Phelps’ Ex’r v. Pond, 23 N. Y. 69; Philadelphia Baptist Association v. Hart’s Ex’rs, 4 Wheat. 1; Beekman, Adm’r, v. Bonsor, The People, et al., 23 N. Y. 298; Fountain v. Ravenel, 17 How. 369; Norris v. Thompson, 4 C. E. Green (N. J.), 308; Perry on Trusts, 658 et seq.; Brown v. Yeall, 7 Ves. 50, n. 76; 9 Ves. 406; Holland v. Peck, 2 Ired. Ch. 255; Green v. Allen, 5 Humph. 170; Bridges v. Pleasants, 4 Ired. Ch. 26; White v. Fisk, 22 Conn. 31; Filis v. Seley, 1 Sim. (Eng.) 352; Vesey v. Jamson, 1 Sim. & Stu. 69; Morice v. Bishop of Durham, 9 Ves. 399; James v. Allen, 3 Mer. 17; Attorney-General v. Haberdashers’ Co., 1 Myl. & K. 428; Williams v. Kershaw, 5 Law Jour. (N. S.) Ch. 84; Ommanney v. Butcher, 1 Turn. & Russ. 260; Downing v. Marshall, 23 N. Y. 366; Levy v. Levy, 33 N. Y. 97; Bascomb v. Albertson, 34 N. Y. 584; Wildeman v. Baltimore, 8 Md. 550; Methodist Church v. Warren, 28 Md. 338; Dashiel v. Attorney-General, 5 Harr. & J. 392; 6 Harr. & J. 1; Murphy v. Dallam, 1 Bland, 529; Beatty v. Kuntz, 2 Pet. 566; Gallego’s Ex’r v. Attorney-General, 3 Leigh, 450.
    1. The English statute of charitable uses, 43 Elizabeth, is not in force in Ohio or New York. Urmey’s Ex’rs v. Wooden et al., 1 Ohio St. 164. New York cases above cited; 3 Leigh, 450; 4 Wheat. 1.
    2. Our courts, therefore, have only such jurisdiction to enforce these charitable trusts as was exercised by the-English courts of chancery prior to the enactment of the statute 43 Elizabeth, or such jurisdiction and power as is-inherent in courts of chancery.
    3. It is now well settled that prior to the passage of 43 Elizabeth, chancery exercised only such jurisdiction and power over charitable trusts as was deduced from the royal-prerogative, and such as it exercised afterward, was in effectuating gifts which in that statute received the specific-sanction of the legislature. 33 N. Y. 97; 3 Black. Com. 347; 23 N. Y. 396; Shepard’s Touchstone, 589; 13 N. Y. 380; Saunders on Uses, 59, 389; 4 Wheaton, 1; Lewin on Trusts, 105; 17 How. 369; 1 Vernon, 226; 9 Barb. 338; 9 Vesey, 820, 400; 4 Kern. 380; 7 Simons, 352; 3 Vesey, 714; 1 Turn. & Russ. 260; Hobart, 136; 1 Mylne & Craig, 286; 5 Harr. & J. 392; 2 Story’s Eq., secs. 1142, 1144.
    4. No authorities are needed to establish the proposition, that American courts are not invested- with prerogative-power to uphold charitable trusts. This point has been-expressly decided by the Supreme Court of the United States, and is the doctrine of all the cases. Fountain v. Ravenel, 17 How. 369, and American cases above cited.
    5. Where a charitable or other trust is so vague, indefinite, and uncertain as to be incapable of being carried out,, as made by the donor, our courts will not, nor have they the power to, devise a scheme and establish the trust cy pres the testator’s intention. The English doctrine of cy pres is not the law here — it resting entirely on prerogative, and being foreign to our judicial system and form of government. Beekman v. Bonsor, 23 N. Y. 311; Fountain v. Ravenel, 17 How. 369; Bascomb v. Albertson, 34 N. Y. 584; Levy v. Levy, 33 N. Y. 97; 3 Leigh, 450; 4 Wheaton, 1; Price et al. v. The Methodist Church, 4 Ohio, 547.
    Without wandering into the wilderness of cases on this subject, the result of them all seems to be that, discarding the cy pres and prerogative powers and the statute 43' Elizabeth, in order to enable a court of chancery to support a trust, and to constitute a valid legal trust, these three elements are indispensable, viz: 1. There must be, in all cases,, a trustee legally competent to take and hold the property.. 2. There must be a use for some purpose clearly and distinctly defined. 3. There must be a cestui que trust definite and certain — one capable of appearing in court and demanding the execution of the trust. Levy v. Levy, 33 N. Y. 102, and the numerous cases there cited, and New York cases above cited.
    One of the important and principal legal tests to determine whether or not a trust for charity will or will not be upheld, is this: Is the gift or charity so clearly and distinctly defined that it can be executed, as made by the donor, by judicial decree, and without calling into exercise the English cy pres or prerogative powers? 23 N. Y. 310; 13 N. Y. 380; 34 N. Y. 584.
    The law has provided definite successors to the estate of a decedent in the absence of disposition, and it would be unjust to allow the right of this ascertained object to be-superseded by the claim of any one, not pointed out by the testator with equal distinctness. 1 Jarm. on Wills, 31?. Where the beneficiaries are the whole public, or some indiscriminate portion thereof, or class of persons, there can be no ascertained cestui que trust in whose favor the use can be enforced in equity. Levy v. Levy, 33 N. Y. 304. Where the beneficiaries are certain, equity will not allow.the trust to fail for want of a trustee; otherwise, the whole is void and must fall. Levy v. Levy, 33 N. Y. 304.
    ■But how is a breach of this trust ever to be established? .'Suppose the trustee shall see fit to expend the entire fund in educating his own son for the ministry, or pay over to his son the entire fund for peddling tracts a single year. ■Or suppose he shall put it into his own pocket, under the ■claim that, in his judgment, this addition to his wealth’will increase his influence for good in the church or community, .and thereby the Christian religion will be benefited.
    Can it be said that in either case he would be stepping •outside of his power under this bequest? Or if he was, •still it is a matter resting entirely in his own judgment, and so long as he is governed by what he claims to be his judgment, who can complain or interfere?
    Again, suppose the trustee refuses to act, or is guilty •of misconduct in administering the trust, and upon relation -of the attorney-general, a court of equity should be called ■upon to define and enforce the trust by decree.
    Is it so definite and certain that it can be enforced by judicial decree? We insist that it is not. And if a court were to uphold and enforce it, it could only be done by making a new will for the testator years after he had been laid in his grave, and devising a scheme for him which he had no voice in-making and was never his own. 23 N. Y. 69, 306; 34 N. Y. 584; opinion of Taney, C. J., in Fountain v. Ravenel, 17 How. 569.
    But what is the Christian religion? There would be ■almost as many different answers to this question as persons to whom it is propounded. It is no part of the law of Ohio. Bloom v. Richards, 2 Ohio St. 387. Is it susceptible of being legally defined at all ?
    The testator, under this vague power, could apply this fund to the advancement of many, if not all forms of religion, all the wild vagaries of the human mind which relate to the existence of God and the origin, the spiritual •condition, and final destiny of man, if, in his judgment, he ■should deem it best.
    
      'William L. Perkins, attorney for defendant:
    It is considered a settled rule that gifts inter vivos, or by will, to charitable use, are to receive a most liberal construction. Zanesville Canal and Mfg. Co. v. Zanesville, 20 Ohio, 483; Umbrey v. Wooden, 1 Ohio St. 160, and authorities there cited.
    In addition to persons capable of taking legal estates, the •equitable interest in both real and personal estate may be held for the benefit of many objects as cestui qui trusts, whose separate existence, as the recipients of property, are not recognized by the common law. Hill on Trustees, 35. Such are all public charities. Such is the Christian religion. McIntire Poor School v. Zanesville Canal and Manufacturing Co., 9 Ohio, 287. It is immaterial how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator’s bounty to those objects. Whitman v. Lex, 17 Serg. & Rawle, 88; Vidal v. Girard Exr., 2 How. 127.
    Erom time immemorial, courts of chancery have compelled the executor or trustee to perform the trust, .at the suit of the cestui que trust, if there is one capable of bringing suit; if not, then at the suit of the attorney-general, in England. In Ohio, formerly, probably by the prosecuting attorney of the proper •county (9 Ohio, 290), and now certainly by the attorney-general. Swan’s Rev. Stat., 1854, sec. 14, pp. 51,52.
    Eor the decisions of the English courts as to the validity of gifts, this court is referred to 2 Story’s Eq. Jur., sec. 1164, n. 7; Hull v. Burns, 2 Dow. & L. 102; Powerscourt v. Powerscourt, 1 Molloy, 616; 7 Ves. Jr. 39; 1 Keen, 224; Hill on Trustees, 80, 333; Townsend v. Carns, 13 Law Jour. (N. S.) Ch. 169. The attention of the court is especially called to Bryant v. McCandless, 7 Ohio (pt. 2), 135; McIntire Poor School v. Zanesville Mfg. Co., 9 Ohio, 287; Umbrey Wooden, 1 Ohio St. 160; Wills v. Cowper and Parker, 2 Ohio, 131; Whitman v. Lex, 17 S. & R. 88; Inglis v. Trustees of the Sailors’ Snug Harbor, 3 Pet. 99; Williams v. Williams, 4 Seld. 525.
    In reading the cases of Anson G. Phelps v. Pond, 23 N. Y. 69, and Owens v. The Missionary Society of the M. E. Church, 13 N. Y. 380, it should be remembered that many of the New York judges appear nervously apprehensive that they may be influenced by the statute of Elizabeth, or the decisions of the English courts, which they think are-made under its provisions; whereas, our courts and the-judiciaries of most of the other states have adopted into-their systems all that is most valuable in that statute.
    The cases, 13 N. Y. 380, and Trustees of the Philadelphia’ Baptist Association v. Hart’s Ex’rs, 4 Curtiss, 330, and 4 W. 1, were determined on questions that do not arise in the case at bar.
   Day, C. J.

The testator having died without issue, the plaintiff, his widow, claims his whole estate as the statutory heir. To this end she seeks to annul his entire will. The only ground upon which it is claimed to be void, is the uncertainty of the third clause.

The testator first bequeaths three thousand dollars to his wife. He then places the residue of his estate in the hands-of his executoi’, to be controlled by him during the life of his wife for her use. At her death he devotes it all to the advancement of the Christian religion, to be applied by the-executor in such manner as, in his judgment, will best promote that object. He thus creates a trust, and makes his executor the trustee of the fund. It is not disputed that the object sought to-be promoted by the third clause of the will is one of a charitable nature. It is well settled that bequests of this character are to receive a most liberal con«traction, with a view of accomplishing the purpose of the .testator.

Guided by this rule, this case may be decided without an -elaborate consideration of the much-controverted question as to the limits of judicial power that may be exercised by courts of equity over charitable trusts.

Whenever a trust is established, and the subject of the trust is so certain that it maybe known to what it attaches, and its object is so defined that it may be known who is -the intended beneficiary, there is no question whether the trust be to a charitable use or not, but that it is valid, and may be enforced in equity. But however faultless the trust may be in other respects, if it be wanting in certainty as to its object, as a general rule, the trust must fail, or, what is the same thing, result to the benefit of those legally entitled to the trust property.

In England, however, courts of chancery, aided by the .statute of 43 Elizabeth in regard to charitable uses, find no difficulty in executing trusts of that character, however indefinitely the use may be declared in the instrument creating the trust; for the court, through a commissioner, may ■devise a scheme to carry it into effect.

How far the principles of that statute have entered into the jurisprudence of this state, we need not now undertake to determine. It is, however, worthy of remark, that the .adjudications of courts of last resort in this country, which do not entirely ignore the principles of the statute, have heretofore been regarded with favor by this court.

Although the power of the courts of this state to devise a scheme for the application of a vague charity, may well be questioned, it does not follow that the testator can not create an agency to do it for him; and it may be regarded as settled, that where a testator, creating a trust to a charitable use, defines the intention of the trust, and invests the 'trustee with discretionary power over the application of his bounty to the objects, or for the purpose intended, the be.quest will not be held invalid so long as there is no obstacle ■to the exercise of the power confided to the trustee, for the exercise of the power may relieve the bequest of all objections arising out of its vague and indefinite character. Trustees of the McIntyre Poor School v. The Zanesville Canal and Manufacturing Co., 9 Ohio, 287; 17 Ohio St. 352; Urmey’s Ex’r v. Wooden, 1 Ohio St. 160; Grimes’ Ex’rs v. Harmon, 35 Ind. 198; Going v. Emery, 16 Pick. 107. Nor does' it make any difference, in this respect, whether the trust be of a mere administrative character in the hands of the executor, or whether it be confided to another. In either ease, the will of the testator may be ascertained and made certain by those to whom he has intrusted discretion and power for that purpose, and their acts may be justly regarded as the definite expression of his own purpose. Beekman v. Bonsor, 23 N. Y. 298; Fountain v. Ravenel, 17 How. 369; Moore’s Heirs v. Moore’s Devisees, 4 Dana, 354.

The will in question undeniably confers ample power upon the executor, to relieve the will of all uncertainty when the time arrives for its exercise, and there is no reason to suppose that it will not then be properly exercisedThete is no uncertainty as to the fact of the creation of this power by the testator. But, in effect, the plaintiff now seeks a judicial interposition to the exercise of the-power. It was expressly held in the case of Moore’s heirs, supra, that a court will not interpose, on the application of the heir, to prevent the exercise of such powers, though the will would otherwise be invalid for uncertainty. To> the same effect is Porter’s case, 1 Coke, 60.

If the general specification of the object of the trust created by the third item of the will, was not aided by a further-provision, its validity might well be questioned. But the-testator, as if aware of this, undertakes to remedy the defect, by investing his executor with power to specify the-particular use to which the trust fund should be applied to promote the general object named. Thus the testator provided a mode for ascertaining his will as to the specific application of his bounty, or who should be the beneficiaries of the trust. All uncertainty in relation thereto is to-be determined by the judgment of the executor, or such person as he may appoint, in case of his own disability.

The executor has accepted the trust, and, for aught that appears, is able and willing to exercise his powers, at the proper time, in a manner that will unquestionably be for the advancement of the Christian religion. It is certainly possible for him to do so in a manner that will leave no doubt that he has faithfully accomplished the purpose of the testator.

The will can not, then, be avoided for uncertainty, without annulling the power conferred upon the executor to make it certain. The testator might have specified the objects of his bounty himself; or, if he preferred so to do, he had the undoubted right to empower another to do it for him, and thereby make his will, in relation to his beneficiaries, or the application of his bounty,'capable of being-rendered certain and specific.

So long, then, as the power thus conferred exists, ready to be exercised, and may be exercised in accordance with the will, the bequest can not be regarded so defective as to-be incapable of execution.

Nor is this result affected, whether the power be regarded as a mere naked power, or one of an imperative character; for, in either case, it was equally the will of the testator that the property, which consisted entirely of personalty, should remain in the hands of the executor, until the time arrived for the exercise of the power. Then an exercise of the power, whether voluntary or coercive, may equally make uncertainty certain, and carry the estate under the will, in promotion of the charity mentioned, to the beneficiaries designated by the trustee of the power. Until that time, the trust property should remain as directed by the will, to abide the execution of the power thereby conferred. Otherwise, the plain intention of the testator will be defeated.

If the trustee shall then fail to execute the trust, or should he abuse his power, or its exercise at any time become impossible, a more proper occasion will arise for the heir, or attorney-general, to invoke the interposition of the courts. The questions that may then arise in connection with the will need not, nor indeed ought they to be, now anticipated.

Judgment for defendant.

McIlvaine, White, and Rex, JJ., concurring. Welch, J., not sitting.  