
    tlOURT OF APPEALS,
    JUNE TERM, 1823.
    Dashiell, et al. vs. The Attorney General.
    Appeal from a decree pro forma of Baltimore county court, sitting as a court of equity, on an information filed in the name of the Attorney General, at and by the relation of The Trustees of Hillsborough School in Caroline county, on behalf of themselves, and the poor children in Caroline county who attend the chanty school of which they are trustees, against the appellants, to enforce the execution of a trust in the will of James Come 
      
      . The will is dated the 12th of March 1805, and the clause under which the relators claim is as follows: “All the necessary expenses attending my daughter, and the expenses of a woman to attend her until she attains the age of eighteen years, shall be paid out of the income of my estate, received by my trustees from my executors, and the residue of the income, after deducting my daughter Mary, and her servant’s expenses, shall he appropriated, until she attains the above age of eighteen years, as follows: It shall be equally divided, one half to be applied towards feedíng, clothing and educating, thé poor children belonging to the congregation bf Saint Peter's Protestant Episcopal Church in the city of Baltimore; the other half to be applied towards feeding, clothing and educating, the poor children of Caroline coimty, in the state of Maryland,which attends the poor or charity school established at Hillsborough, in said coiiniy, the trustees of which school are tó réc'eive from my trusteés the aforesaid appropriation,in, payments at every six or twelvé months, and appropriates the same in the manner Í have now willed.’^ This provision was to be enlarged in the event of his daughter’s "death, or marriage without consent of his trustees, &c. In another clause of the will he declares, “I will, that if at "any future period any of my relations should require assistance to be supported, clothed and educated; that my trastees, in virtue of this will, shall give the preference to them; either in the county of Caroline, in the state of Maryland-, ot the city of Baltimore; or in any other place; they shall atténd to their wants as aforesaid* in preference to all others;’’ The testator died before thé 18th of May 1805. The' answers of the defendants insist that the relators are not entitled to relief, and that' the devise is vbid in law. The decree' being in -favour of the relators, thé defendants appealed to this court.
    
      “Where a testa® tor, by his will d* - reets the trustees and guardians of liis child to pay oyer annually a certain portion of the income of hi* estate to the trastees of Hillsborough school, to be by them “applied towards feeding* clothing1, and educating the poor children of Caroline county, which, attends tine poor or charity school established at Hillsborough, iir the said county** —Ueldf that the bequest was void for uneer- ainty ai to the persons who wt re to take un»
    The poor chiU dren of a county* or congregation or school, are not susceptible oi'ascer» tainment
    The ioterpositi* on of trustees does not make a he» quest good, which as an immediate and direct bequest w ould be void for uncertainty
    The poor children of Caroline county, who attend .the Hillsborough school, qre ana cannot take m succession; and the beques t, if otherwise good, must fall as soon as the first object* ot the testator’s beneficence ceased to attend the school J
    , I Ue benefit of the undisposed subject of the trust sesultsthtte nest of tonta the testatot
    
      1
    The cause was árguéd áí the last June term, liefoieBuchanan, Earle,- Martin,- and Stephen,- J.
    
      Pmiey; Winder' and Murray^ for' the appellants,-
    con-' tended, Í. That the will of Corrie Contained no devise for' the benefit of the' relators. 2. That if the? will be intended for the benefit of the relators,, yet they' Were not capable in law to take the same. 3. That the devisé1 was void for uncertainty, and could not be supported as á devise to a charitable use.
    1.- They argued’ that the relators were'a cofporate liody, and the inquiry was, Were they the object of the devise?' Whether a devisé for the benefit of “the poo? children of Caroline county,, which attends the poor or charity school established at Hillsborough, the- trustees of which school are to receive,” &c. is a devise to the-relators? Are the relators sufficiently named so as to claim the devise? A school was incorporated by the act of 1798, ch. 33, by the' style of i:t The Trustees of Hillsborough School in Caroline countyand the deviso is to the poor children who attend, the poor or charity school at Hillsborough, to be administered and appropriated by the. trustees of a certain school. The trustees of Hillsborough school are not the trustees of a poor or charity school. The object of the testator was to benefit a charity or free school,, and the claimants are not the trustees of a charity or free school. There may be a school which would answer the. description used in the devise," but if there be none, then, the devise would lapse. The parties claiming should bring themselves with ] in the description of the will. The devise is. claimed by a corporation, and under a will, said to refer to them in their corporate capacity. The corporate name is, the essence of the corporation — it is the corporation itself. 2 Bac. Ab. tit. Corporations, (A) 2. (C) 4, (C 2,) 6. 2 Blk. Com. 474. 10 Coke, 125. A devise to a corporation must be made to it in its corporate name. The name may be supplied, if it is expressed by words synouimous. 2 Bac. Ab. tit. Corporations, (C) 5, (C 2,) 7. 11 Coke, 21. Here the. corporation name is, not so sufficiently set forth, that the-court can say the testator intended no other. The case of The Chancellor, &c. of Oxford, 10 Coke, 57, was sustained under the statute, 43 Eliz. ch. 4, for charitable uses. Some of the cases go upon the ground that an ancient corporation may acquire a name by reputation. 2 Bac. Ab. tit. Corporation, (C 3,) 7. And there are cases where the statute 43 Eliz. was necessary to cure the defect of a devise to a, corporation by a wrong name. Duke on Charitable Uses, 379, 380, 506. So also in The Hager's Town Turnpike Company vs. Creeger, ante vol. 5, 122, where, in a. subscription, to the road,, the style of the incorporation was The President, Managers.&q. and the form used omitted the word President, and this, court held it was sufficient without that word,, There the. omission of the word President left enough to show and distinguish tire corporation from all othersj but that is not the case lierq. The additional acts of assembly, passed since, respecting this corporation, can have no influence on the case. 2 Bac. Ab. tit. Corporations, (E 1,) 10.
    2. If the corporation be, sufficiently described, it is not capable of taking under tbe devise in the will. A corporation is a creature of the charter which gives it being. and it is restricted within the bounds given to it, and has 110 capacities but those which the charter confers upon it. 2 Bac. Ab. tit. Corporations, (D) 9. (E 3,) 13. 12 Coke, 120, 3. Mod. 14, A corporation, has-no right to take-and 'hold property, except in the- manner pointed- out in- the charter. 2 Bac. Ab. tit. Corporations, (E 3,) 13. The charter of this- corporation is- limited to 82000- yearly value» which, they may take by gift,, but in no other way than for the benefit, of the- school generally. Here, the fund devised,- by the will, is tp be applied, in the manner pointed out in the devise,, and not to the purposes which the trustees may consider for the- benefit of the school generally, ft is a devise, for the benefit of a portion of' the scholars of the school — a certain description of poor children. This is not within the- view of the charter, but is a devise for an object dehors that of the- school, and is. not compatible with the powers, granted by the charter, Wilmore vs. Woodroffe, Ambl. 636, The trustees could not appropriate the devise ip. a different mode than that pointed out by the testator. We have no cy-pres doctrine here, A devise is vo:d which gives a. latitude of discretion to the .trustees. Morice vs. The Bishop of Durham, 10 Ves. 541, The act of. 1793,. eh. 33, equally with the statute of Elizabeth» defines the object of charity. No other can be given than by that act. The trustees cannot apply it within the act of- 1798, without violating the intention of the testator-. The court cannot separate the devise,, if part of it is within the statute. There is no rule by which it can be. separated as to the portions, for feeding,, for clothing, and for educating. The court cannot divert the whole to the purposes of education; they . cannot sever that which, is intended as. a.upit.;. the whole therefore must fail, A good use is to bp preferred to a superstitious use; and if the fine depends upon, the other,, the bad, use contaminates the other. Duke 469. 4 Coke, 115. Attorney General vs. Whorvood, 1 Ves. 539. Chapman vs. Brown, 6 Ves. 403. The Attorney General vs. Davies, 9 Ves. 535. These cases show, that if a void devise is connected, with' a good deyise, both, are. void.. The trustees cannot claim the bequest under the trust for any purposes connected with the objects defined in the charter. They are incapable of such a trust, and cannot be trustees for any purpose; if they .can, then the eestui. que trust bo; ing uncertain, as in the case of St. Peters church, they must fail.
    3. The objects of the trust are not so certain and deli-. nite as to admit of no doubt. Who are the poor children, who attend the school? Tins is too vague, and gives no clue by which they can be ascertained. This question has already been argued in Dashiell, et al. vs. The Attorney General, (ante, vol. 5, 392) A corporation cannot bo executor-, 1 Blk. Com. 504. They cannot be trustees. The Baptist Association vs. Hart’s Ex’rs. 4 Wheat. 31. A use at common law is what a trust is now under the statute of uses, 1 Coke, 122. A corporation cannot be seized to the use of another. 2 Bac. Ab. tit. Corporations, (E) 11. Gilb. Uses & Trusts, 5. Bodies politic arc not capable of a use or trust for the benefit of others. They cannot be seized of a trust different from what their charter embraces. If the charter gave them a right to be trustees for others, it could not be legal, because there ia no mode of enforcing the trust. This is the clear doctrine of the common law. The statute of Elizabeth overturned the common law principle, and permitted corporations tc held in trust for charitable uses, though no such power is given by their charter. But if that statute has not been introduced here, then tho principle remains as at common law. 2 Bac. Ab. tit. Corporations, 11. This deviséis in p w~ petnity to the poor children of Caroline county. The fund is locked up for ever by the will of the testator, and there is no power of alienation, It is therefore inconsistent with the policy of the Jaw. Gilb, Uses & Trusts, 112, 120, 168. 2 Blk. Com. 77, 120, A corporation carrot give perpetuity to an object not within the charter, Christ’s College, Cambridge, 1 Wm. Blk. Rep. 91, The testator says that his own poor relations are to be preferred. The cases cited show who they are. The daughter of the testator will then come in if the charity is established.
    
      Harper a,nd JR. Johnson, for the appellee,
    contended, 1. That the corporation was sufficiently designated in the will. There is, nothing in the act of incorporation of 1798, ch, S3, to show that it is not a charity school. The preamble of the act states that it is to endow a school; and as there was no other school then established at Hillsborough, or in Caroline county, the testate?, evidently meant the trustees. of this school, It is not necessary to describe precisely ^ie- corporate name either in a deed or á will — many omiss’on °f wo.r48 may be supplied by averments. The bill ;n this, pase, states, the school, to be a charity school, and fhat it was the one alluded, to, by the tes.tatoi;. This is not denied in the answers; and the accounts exhibited by the executors under the will, sho.w that money was paid by them to the trastees of this school. There, is.no doubt then of the identification; and, the trustees' say, that poor-children do attend that school as a charity school. The. school was endowed by private donations,, showing it’was. intended for charitable purposes. The acts of 1806, ch. 25, s. 3, 1807, ch. 32, and 1810, ch. 109, evince af least a legislative construction that it was a, charity school. The decision in The Hager’s Town Turnpike Road Company vs. Creager, went upon, the ground of there fteing no other company of a similar name. Here ther.e. was no other school which could possibly answer the description, The. court can judicially notice that there wa;s,no.other incorporated school at Hillsborough, or in Caroline county, as wa\ done in 11 Coke, 21, that there was but one Bishop of Norwich
    
    
      2'. The trustees are capably of taking, under the devise: for the. pli.rpose contemplated. One of the incidents of a. corporation is to take and hold property; and the pow.er of perpetual succession, &c. 1 Blk. Com. 502. Supposing it a charity school, the. popr children, must, he fed and, clothed, as well as educated; and this comes within the terms of the powers of the trustees, under, the charter. These are the very children to whom the testator’s bounty is. to be applied. The charter gives the trustees unlimited control over the funds, to be appropriated, by them, at their discretion. There is nothing in the language of the bequest which is inconsistent with the charter. The trustees have authority to educate the poor children. Can it be said that, because directions to feed, accompany the direction to educate, that the last direction is void? If the poor children could not be educated unless they were fed and; plothed, then they must bb fed, and clothed; and if they could, then why not appropriate the whole fund in educating them? If these views are correct, it is wholly nnnecessary to answer any of the other objections, which have been urged. The bequest is certain in saying the poor children attending the school. It means those whom the trustees permitted to go to school; without paying for their education; and is similar to the cáse in Duke, 361. The doctrine of perpetuity is not applicable to a corporation. This is a devise to a corporation for the benefit of a certain description of poor children; and is a devise in trust. 2 Bac. Ab. tit. Corporations, 6.
    
      Curia act. bulU
    
    
      
      
         See the case of Dashiell, et al. vs. The Attorney General, ante vol. 5, 392.
    
   At this term, the opinion of the court was delivered by

Earle, J.

After much reflection on this case, we think it not essentially different from the cáse of George Dashiell and others, against the Attorney General, at the relation of the Vestry of St. Peter's Church in the city of Baltimore, arid others, adjudicated in this court at the last june term and that it must be decided on the same principles.

The testator, by I1Í3 will, directs the trustees and guardians of his child; to pay over annually a certain portion of the income of his estate to the trustees of Hillsborough school, to' be by them applied towards feeding, clothing and educating, the poor children of Caroline county, in the state of Maryland, which attends the poor or charity school established at Hillsboroughi, in the said county.

The poor children -of Caroline county, in the state of Maryland, which attends the poor or charity school established at Hillsborough in the Said county, are the objects of this bequest, and if it had been immediately to them, the question might be made, to whom should the executor of the deceased have paid it, or by whom would the suit be brought either at law or in equity, if he refused to pay it? With the best intentions to fulfil the wishes of the testator, it would be difficult, in such a case, for air exe - cutor to perform his duty,, and at last he would certainly find it a trust hot capable of execution. His dispositions-to do right might take him to the Hillsborough school, tómale e his payments, but when there, he' would be at a loss to determine who were the poor children of Caroline county attending that school. The poor children of a county or congregation, or a school, are not susceptible of ascertainment; and when such terms are used in wills as a designate persones, they have always been determined in’sufficient; an,d the devise or bequest, intended to be created by them; to be void for uncertainty. Powell on Devises, 419. Ihe difficulty in the casé .supposed, would yet be greátér, if an attempt was made to enforce the bequest against the executor; either in a court of law or in a court of equity; What children of. Caroline county, attending i\i&_Hillsborough school," could assume "to themselves the title'of “the poor children which attend that school;” and if assumed hy any individuals, by what conceivable standard of proof could they establish their right té thé designation? . '

In the ease before ÜS, the bequest is, to the poor children of Caroline county which attend the poor or charity School established at Hillsborough in that county; as cestui que trusts; and "a question further arises, whether the interposition of trustees makes the bequest good, which as an immediate and direct bequest, would be void for uncertainty? This question; it seems to lis; inay be answered, by suggesting the same insurmountable obstacles to the executing and enforcing the trust, as exist where the bequest is immediate to persons doubtful arid' uncertain. The terms used by the testator aré too indefinite to point out to the trustees the objects of his bounty, or to) -designate the persons who are to enforce the trust; and if the trust in such á case would not result for the use of others, it is manifest the trust fund would of necessity become the property of the trustees; The fund established by the testator is a perpetual fund, intended by him to supply an'income, not only to the poor children of Caroline county who, at the time of his death, attended Hills-borough school, but for the benefit of the poor children of Caroline county, who should in succession attend that school, and this forms another unanswerable objection to the testamentary disposition .we are considering. The poor children of Caroline county which attend the Hills-borough school, are not a body corporate, and cannot take in succession, and the bequest, if otherwise good, must fall, as soon as the first objects of the testator’s beneficence ceased to attend the school.

.It is needless to pursue this subject further, or to examine points which were discussed on the argument as peculiar to this'case. Our decision must be governed by the adjudication already mentioned, and to it we refer for the principles on which we reverse the judgment below, and are of opinion that the benefit of the undisposed subject fit the trust results to the next of kin to the testator.

DECREE REVERSED, 
      
      
         Ante, Vol. 5, 392.
     