
    Literary Fund v. Dawson and Others.
    March, 1839,
    Richmond.
    (Absent StAnard, J.)
    Wills — Charitable Bequest — Uncertainty of Beneficiary.  — A testator, by the 16th clause of his will, desires that the balance of his estate be used by his executors for the purpose of erecting' three seminaries of learning. Two of them are directed to be on particular tracts of land owned by the testator, and the other on a tract to be procured near a particular place. Then the clause proceeds as follows: “Said tracts of land, as also the one to be procured, to forever remain for the use and benefit of the said seminaries of learning. Said seminaries to be called by such names as.my executors may think proper, and to be calculated for about 30 students, and the necessary- buildings for teachers, which I suppose may be erected for about 10000 dollars each. Should my estate fall short, the improvements to be in proportion to it; should it produce more, the overplus to be for the benefit of the said seminaries, in equal proportions, to be used for the education of such youth as is not able to pay teacher’s fees.” After a suggestion as to the course of education to be adopted at the schools, the clause concludes with these words; “At any of said seminaries, my relations to be admitted as students, free of tuition fees.” Held, the devise and bequest are too indefinite and uncertain as to the beneficiaries, and are, for that cause, void.
    Same — Same—Same—Alternative Provision. — The 17th clause of the will is as follows : “Should my executors fail to carry into effect said 16th devise for seminaries of learning (which I hope and trust they will not) then the real and *personal estate devised for said objects to be used by my executors in constituting a part of the literary fund of the state of Virginia, and two thirds of the interest on it to be used by the school commissioners for the county of Albemarle, in the same way the school fund allotted for the said county is used. The other one third of the interest on it to be appropriated and used by the school commissioners for the county of Nelson, in the same way.' And from time to time as the legislature may think advisable, the principal may be used for like objects, for the benefit of the said counties, in same proportions as the interest is directed to be used. An act of assembly for said object,'supposed can be obtained.” The devise and bequest in this clause being adjudged by the circuit court to be void, that decree reversed by the court of appeals, and the bill dismissed as to the president and directors of the literary fund; but without prejudice to the rights of the parties, or to their assertion of them hereafter, in the event of a failure to procure the necessary act of assembly within the period limited.
    At a. court held for Albemarle county on the first of June 1835, the will and codicil of Martin Dawson were admitted to record. The will contained, besides other provisions, the following clauses :
    “16th. It is my will and desire that the balance of my estate real and personal be used by my executors for the purpose of erecting three seminaries of learning: one on my tract of land called Belle Air ; one on my tract of land around the town of Milton, my lots in said town to be taken as a part; one in the county of Nelson, as near the graveyard in this mentioned, as a proper site can be procured: said tracts of land, as also the one to be procured, to forever remain for the use and benefit of the said seminaries of learning. Said seminaries to be called by such names as my executors may think proper — and to be calculated for about thirty students, and the necessary buildings for teachers, which I suppose may be erected for about ten thousand dollars each. Should my estate fall short, the improvements to be in proportion to it; should it produce more, the overplus to be for the benefit of the *said seminaries, in equal proportions, to be used for the education of such youth as is not able to pay teacher’s fees ; and I should be greatly gratified, if, in the course of education adopted at the said schools, a certain proportion of each day could be appropriated to labour of some kind or other, for which object said plantation is very well calculated. This mode of education seems to me necessary in this country. At any of said seminaries, my relations to be admitted as students, free of tuition fees.
    “17th. Should my executors fail to carry into effect said 16th devise, for seminaries of learning, (which I hope and trust they will not,) then the real and personal estate devised for said objects, to be used by my executors in constituting a part of the literary fund of the state of Virginia, and two thirds of the interest on it to be used by the school commissioners for the county of Albemarle, in the same way the school fund allotted for the said county is used. The other one third of the interest on it to be appropriated and used by the school commissioners for the county of Nelson in the same way — and from time to time as the legislature may think advisable, the principal may be used for like objects, for the benefit of the said counties, in same proportions as the interest is directed to be used. An act of assembly for said object, supposed can be obtained.”
    The 21st and last clause of the will was as follows : “Ido hereby constitute and appoint my friends Henry T. Harris, William C. Rives, Alexander Rives and William W. Dawson executors to this my last will and testament, who, my said executors, are hereby authorized to dispose of all my estate, both real and personal, not in this will otherwise disposed of ; such sale not to take place in less than twelve months after my death, except the perishable parts. I would advise that my executor H. T. Harris attend to the seminary of learning in the county of Nelson, and the emancipation of my slaves; *my executors W. C. & A. Rives attend to the seminaries of learning in this county; and that my executor William W. Dawson attend to the payment of legacies.”
    Henry T. Harris, Alexander Rives and William W. Dawson qualified as executors, but the two first never acted as such.
    In May 1836, Benjamin Dawson and others filed a bill, claiming, amongst other things, that the devises and bequests contained in the 16th and 17th clauses of the will are void, and making the executors who qualified, and the president and directors of the literary fund, along with other parties, defendants.
    After the service of the process upon the executors, the powers of Henry T. Harris and Alexander Rives were revoked, and the suit as to them was, on their motion, dismissed. William W. Dawson, the other executor, answered the bill, stating his willingness to carry into effect, so far as may be in his power, his testator’s intentions as declared in the said two clauses, and expressing his reliance on the equitable powers of the court to protect the trust from failure through the want of trustees.
    The president and directors of the literary fund answered, saying they were advised that should the bequest contained in the 16th clause be, for any reason, deemed void, the 17th clause was ample and sufficient to vest in them, for the purposes therein mentioned, the balance of the real and personal estate of the testator which should remain after satisfying the several bequests contained in the previous clauses of the will.
    The cause came on to be heard the 14th of October 1837, when the circuit court pronounced an opinion declaring (amongst other things) the devises and bequests contained in the 16th and 17th clauses to be void for the vagueness and uncertainty of- the charity and the beneficiaries thereof, under the authority of the cases of Gallego’s executors v. The Attorney General, 3 Beigh 4S0; and Janey’s ex’or v. Batane &c., 4 Beigh 327. ^From the decree made by the circuit court, the president and directors of the literary fund obtained an appeal.
    The cause was argued in this court by the attorney general for the appellants, and Johnson and Thompson for the appellees.
    
      
      He had been counsel for some of the parties interested.
    
    
      
      Wills — Charitable Bequests — When Void for Vagueness and Uncertainty as to Intended • Beneficiaries.— The principal case is cited in Carpenter v. Miller, 3 W. Va. 176; Com. v. Levy, 23 Gratt. 40; Seaburn v. Seaburn, 15 Gratt. 433; Stonestreet v. Doyle, 75 Va. 364; Protestant Episcopal E. Soc. v. Churchman, 80 Va. 765, 768.
      The principal case and many other Virginia cases upon this subject are cited and discussed in Kain v. Gibboney, 101 U. S. 362, 25 L. Ed. 815. See opinion of Woods, J., in Wilson v. Perry, 29 W. Va. 169, 1 S. E. Rep. 302.
      See monographic note on “Charities” appended to Kelly v. Love, 20 Gratt. 124.
      Same — Same—Same—Corporation to Be Created by Statute, — The principal case is cited in Kinnaird v. Miller, 25 Gratt. 120, for the proposition that wherever a devise or bequest is made to a corporation, to be afterwards, within a period not too remote, created by law for the purpose of carrying into effect a charitable intention of the testator, expressed in his will, the same may be good and valid as an executory devise or bequest, and will become absolute and executed, if, and when, such a corporation shall be created accordingly. The principal caséis cited in Kinnaird v. Miller, 25 Gratt. 122; Stonestreet v. Doyle, 75 Va. 365; Page v. Rives, Fed. Cas. No. 10,666. See 2 Min. Inst. (4th Ed.) 444. See Literary Fund v. Dawson, 1 Rob. 402, and note.
      
      Same — Alternative Provision — Failure of Principal Bequest. — The principal case is cited in Dunlop v. Harrison, 14 Gratt. 257, 259. For sequel to the principal case, see Literary Fund v. Dawson, 1 Rob. 402.
    
   BROOKE, J.

I think the 16th and 17th sections of the will plainly give the property destined for the establishment of schools, to the executors, and not to the literary fund. If the plan for the establishment of the three schools contemplated in the 16th section could not be carried into effect, then the provision in the 17th section authorizes the executors to use the fund in constituting a part of the literary fund of the state of Virginia, to be used by the school commissioners of Albe-marle and Nelson in the manner and proportions specified, and from time to time as the legislature may think advisable. This, I think, refers both to the principal and interest in the fund. The whole argument, then, to prove that the literary fund was a corporation incapable to take the fund has no application to this construction of the will. Giving to it the construction contended for, I think none of the cases cited would, under the laws constituting the literary fund, and incorporating the public officers having the direction and management of it, authorize them to take the fund for the objects designated by the will. That corporation seems to have been constituted for the purpose of administering the literary fund according to the several laws and its charter, and to be responsible for the administration of that fund only, or such other funds as by law it might be authorized to take. If then the executors in a reasonable time can procure such a law; if the legislature shall (in the words of the will) think it advisable to pass such a law as will authorize the corporation to take the *fund bequeathed to the executors by the will, on the terms of the will; there will be no difficulty in carrying into effect the intentions of the testator. It is on these grounds that I concur in the opinion delivered by the president.

Note. — Since this decision, an act of assembly bas been passed concerning' the estate of Martin Dawson, which will be found in the session acts of 1840-41, ch. 26, p. 52.

TUCKER, P.

Upon mature consideration of this will, I am of opinion that its true construction removes every difficulty, and renders unnecessary the consideration of various questions made in the cause.

Eirst, I shall remark that according to my apprehension, here is no direct devise to the literary fund. The effect of the will is to devise the estate real and personal to the executors, for they are to “ use it in constituting a part of the literary fund.” The testator does not himself constitute the estate a part of it, for he had in effect preferred another disposition, and it was only in failure of that, that this destination was given to it. Hence he finds it necessary to vest the power of disposition in the executors. They are to constitute the estate a part of the literary fund. And the exercise of this power implies a devise to them for the purpose declared.

Secondly, I understand the last sentence of the clause, in these words, “ an act of assembly for said object, supposed can be obtained,” as extending to the whole clause, and not merely to the provision for the use of the principal. 1. Because it stands in a separate and distinct sentence, equally applicable to the whole as to part of the clause. 2. Because it was equally necessary for the whole as for part. 3. Because, as to the use of the principal, a legislative act had been already, in effect, adverted to, by the words “ from time to time as the legislature may think advisablefor their resolution as to that matter could only be declared by an act of assembly. ■ ,

*Thirdly, by whom is the act to be obtained? Clearly by those to whom the trust is confided of constituting the estate a part of the literary fund ; that is, by the executors.

Thus understood, the will is equivalent to a devise of his real and personal estate to the executors, in trust for the purpose of procuring an act of assembly with the necessary provisions for constituting the funds devised a part of the literary fund, in strict conformity with the terms, provisions and conditions of the will. By such an act of assembly,, all the difficulties suggested by the fertile mind of the counsel will be avoided, and the benevolent intentions of the testator carried into complete effect. And as this act is to be obtained by the executors, the contingency of its passage is within a life or lives in being, and therefore not too remote. The case is thus very much the same with that of The Sailor’s Snug Harbour, 3 Peters 100.

I am of opinion that the decree should be reversed, so far as respects the declaration that the devise in the 17th clause of the will is void; and that the bill should be dismissed with costs as to the president and directors of the literary fund, without prejudice to the rights of the parties, or their assertion of them hereafter, in the event of the failure to procure the necessary act of assembly within the period limited.

The decree of the court of appeals was as follows :

“The court is of opinion that so much of the said decree of the circuit court as declares that the devise in the seventeenth clause of the will of the testator is void, is erroneous. Therefore it is decreed and ordered that the said decree, so far as the same is above declared to be erroneous, be reversed and annulled, and that the appellee who is an executor, out of the estate of his testator in his hands to be administered, and the other appellees in their own right, do pay unto the appellants *the costs expended in the prosecution of the appeal aforesaid here. And the court proceeding to pronounce such decree, in lieu of that part reversed as aforesaid, as the said circuit court ought to have pronounced, it is further decreed and ordered that the bill, as to the appellants, be dismissed, and that the appel-lees who were plaintiffs in the said circuit court do pay unto the appellants their costs by them in the said circuit court expended. But this decree is to be without prejudice to the rights of the parties, or to their assertion of them hereafter, in the event of the failure to procure the necessary act of assembly within the period limited.”  