
    The Treasurer of the American Tract Society, Morris Allen, and others v. Lydia G. Atwater and others.
    A testator makes a bequest in trust for the benefit of his parents during their lives, and proceeds: “It is my will and desire that upon the death of both of my said parents the trust shall expire, and my said trustee-shall distribute the funds as follows, to wit: As to the remaining sum of three thousand dollars, the balance of said trust fund, my said trustee is directed to apply the same so that it may be used for the interests-of religion, and for the advancement of the kingdom of Christ in the-
      
      world, as follows, to wit: He shall pay to the treasurer of the American Tract Society the sum of one thousand dollars; to the treasurer of the American Bible Society the sum of five hundred dollars; to the treasurer of the society known as the American and Foreign Christian Union the sum of five hundred dollars; and to the treasurer of the American Home Missionary the sum of one thousand dollars.” Held, 1. The trust created by the will ceases upon the death of the parents, and payment of the money to the societies whose treasurers are named. 2. The societies are the beneficiaries of the will, and the bequest is not void for uncertainty. 3. The object of the testator being to advance Christ’s kingdom, the societies named arc specified as the means by which to accomplish his object. 4. An unincorporated society is capable of receiving a bequest of personalty, not amounting to a trust.
    Error to the District Court of Pickaway county.
    Upon the 26th of December, 1852, R. D. Atwater made his last will and testament, the first and second items of which are as follows;
    
      “Item first. — Believing it to be my duty as a kind and .affectionate son to provide for the comfortable maintenance and support of my parents in their declining age, I do hereby set apart out of my estate the sum of five thousand dollars as a trust fund, the proceeds of which are to be applied for the purpose named, to. wit, the support of my parents during the period of their natural lives, or so long as either of them shall live; which said sum I do hereby direct my executor to set apart in money, and place under the control of my friend, Doctor J. A; Troup, of Circleville, Ohio, who is hereby appointed my trustee, to invest the said sum, and so to manage and control the same as in his judgment shall seem best, so that it shall produce the greatest income, and at the same time be properly secured. It is also my will and desire that my two sisters, Mrs. Belinda A. Poster and Aurelia P. Atwater, shall share in the proceeds of said fund during its continuance as above specified, and that they, my said sisters, shall continue to live with, and take care of, my said parents so long as either shall live. And my said trustee is hereby directed to pay over the proceeds of said fund to my said two sisters jointly, in quarterly installments, to be expended as they may think best for the comfort and support of my said parents and themselves.
    “ It is also my desire, and I do hereby direct that my said parents and sisters shall continue to occupy the house in which they now reside, as a house free of rent so long as either of my parents shall live. And I do hereby direct that the further sum of one hundred dollars shall be paid over by my executor to my said trustee, to be by him expended in putting said dwelling-house in good and comfortable repair; and as for the future repairs which said property may require, as well as for the payment of the taxes and insurance upon the same, it is my desire that my said trustee shall pay the same out of the proceeds of said trust fund.
    
      “Item second. — It is my will and desire that upon tho death of both my said parents the trust shall expire, and my said trustee shall distribute the fund as follows, to wit: The sum of two thousand dollars he shall pay to my said two sisters, Belinda and Aurelia, for their joint maintenance, to belong to them or the survivor of them, and to be at their entire disposal and control; and the receipt of my said two sisters, or the survivor of them, shall be a ■sufficient voucher to my said trustee for the said sum of two thousand dollars.
    “As to the remaining sum of three thousand dollars, the balance of said trust fund, my said trustee is directed to apply the same so that it may be used for the interests of religion, and for the advancement of the kingdom of Christ in the world, as follows, to wit: He shall pay to the treasurer of the American Tract Society the 'sum of one thousand dollars; to the treasuz-er of the American Bible Society the sum of five hundred dollars; to the treasurer of the society known as the American and Foreign Christian Union the sum of five hundred dollars; and to the treasurer of the American Home Missionary the sum of one thousand dollars.”
    After the testator’s death, his parents both died, and John Groce, a party defendant, was substituted trustee, in the place of Dr. Troup. In this'proceeding, begun by Lydia P. Atwater, widow of the testator, the treasurer of the' American Bible Society, the treasurer of the American Tract Society, the treasurer of the American and Foreign Christian Union, and the treasurer of the American Home Missionary Society were made parties. They file answer and cross-petition, setting up the bequest in the will, and claiming the $3,000. This answer and cross-petition was demurred to. The court of common pleas sustained the demurrer, holding that the trust created by the will was void for uncertainty, and dismissing the answer and cross-petition.
    To reverse this judgment, the parties filed a petition in error in the district court, where the judgment of the court, of common pleas was affirmed, whereupon a petition in error was filed in the supreme court.
    It is not necessary further to refer to the case of Lydia. P. Atwater, as she has taken no proceedings in error.
    
      Henry F. Page, for plaintiffs in error:
    The bequests in Atwater’s will are charitable and religious. Baker v. Sotton, 1 Keen, 224; Power’s Court v. Power’s ■ Court, 1 Molloy, 616; Attorney General v. Stepney, 10 Yes. 22; Attorney General v. Herrick, 2 Amb. 712; West v. Shattelworth, 2 M. & K. 684; Whicker v. Hume, 14 Beav. — ; Attorney General v. Linden, 1 Yes. Jr. 243; Attorney General v. Wallace, 2 B. Mon. 611; 7 Yt. 241; Perry on Trusts, sec.. 701.
    The plaintiffs are all incorporated under the laws of New York, except the American Home Missionary Society.
    As to this last society, I claim that it is capable of taking this bequest. In re Ticknor’s estate, 4 Am. Law Reg. U. S. 269.
    See also Potter v. Chopin, 6 Paige, Chy. R., 650; King v. Woodhill, 3 Edw. Ch. 79; Wright v. Meth. F. Church, 1 Hoffman Ch. 203; Shotwell v. Mott, 2 Sandf. Ch. 46; Banks v. Phelan, 4 Barb. 89; Hornbeck v. Am. Bible Society, 2: Stanf. Ch. 133; Watman v. Lex, 17 Serg. and R. 88; Sim
      
      merman v. Anderson, 6 W. and S. 218; Pickering v. Shotwell, 10 Barr. 28; Evang. Mss. Appeal, 11 Casey, 316; Tappan v Eeblois, 45 Me. 122; Smith v. Nelson, 18 Yt. 546; Burr v. Smith, 7 Id. 278; Johnson v. Wayne, 4 Iowa, 180; Me Cad v. Ocheltree, 8 Bladf. 15; Beatly v. Kuntz, 2 Peters, 566 ; 2 Kent’s Com. 286; Bartlett v. King, 12 Mass. 537; Wash-burn 'v. Sewell, 9 Met. 280; Perry on Trusts, secs. 46, 730; Am. Bible Society v. Wetmore, 17 Conn. 181; 2 Redfield’s Wills, 807.
    The language of this will is peculiar. The testator does not say that these societies shall use or apply the money for any purpose. The testator himself directs the trustee to apply the money where it may be used for the purpose in view — how ? By paying the money to the said societies. When the money is paid to those societies, the purpose has been accomplished. There is no discretion in the trustee, for the command is absolute to-pay over, and the gift when it. reaches the hands of the societies is unconditional. By the-act of payment to 'these societies the money is applied for the interests of religion and the advancement of the kingdom of Christ. The case is then like the case of the Am.. Bible Society v. Wetmore, 17 Conn. 182.
    A gift to the treasurer of a society is a gift to the society of which he is the treasurer. Walker v. Child, Ambler, 524;. Burr v. Smith, 7 Yt. 241, 285; Well-beloved v. Jones, 1 Sim. & Stuart, 40; Thoreburn v. Wilson, 3 Drewry, 245; 4 Drewry, 250; Irish Inc. Society v. Richards, 1 Dr. & W. 294; 13-Beavan, 87.
    
      P. C. Smith, and Harrison, Olds, & Marsh, for defendant in error:
    The testator gave these legacies to the treasurers of these various societies, and there is no power in the courts, in this country, to declare that these treasurers shall take these legacies thus given to them in their individual capacities for the use and benefit of the societies of which they may be officers.
    
      Courts of equity in this state have power to enforce the •execution of trusts created for public and charitable purposes in cases where the fund is given to a trustee competent to take, and where the charitable use is so far defined .as to be capable of being specifically executed by the authority of the court, even although no certain beneficiary •other than the public at large may be designated. A gift to a charity is maintainable if made to a competent trustee, and if so defined that it can bo executed as made by the donor by a judicial decree. Beckman v. Benson, 23 N. Y. 310; Phelps ex. v. Pond, lb. 77; Williams v. Williams, 4 ¡Sel. (N. Y.) 548; Mannly v. Butcher, 1 Turner & Russ. 270; Morice v. Bishop of Durham, 10 Yes. 539; 9 Yes. 399; Baker v. Sutton, 1 Keene, 253; Brown v. Yeall, 7 Yes. 50; Bilis v. Selby, 1 Mylne & Craig, 385 ; Williams v. Kershall, lb. 293; 2 Redfield on Wills, 830; Fowler vfGarlihe, 1 Russ. & Milne, 252; Story Eq. Jur. 979; Bascom v. Albertson, 34 N. Y. 584; Levy v. Levy, 33 N. Y. 97; White v. Fisk, 22 Conn. 31; Holland v. Peck, 2 Iredell Eq. 255; Bridges v. Pleasants, 4 Ired. (N. J.) 26; White v. University, 4 Ired. 21.
    As to the bequest to the treasurer of the American Home Missionary Society, the allegations is, that this society, not being a body corporate, but being a voluntary association for charitable American home missionary purposes, and as such having an organized corps of agents and officers, including a treasurer, to wit, the respondent, Christopher R. Roberts.
    Now, we saj, first, the bequest is not to the association, but to the individual who holds the office of treasurer thereof.
    
      Second. The bequest is not to uses and purposes of the association, as is the case with several bequests in the will.
    
      Third. It is not alleged that this association existed, or •existed “for charitable American home missionary purposes,” at the time of the making of the will, or of the ■death of the testator. Its organization for such purposes may have been long afterward, and without the knowledge ■or contemplation of the testator.
    
      
      Fourth. It is not alleged that its purposes are for the “promotion of the interests of religion and the advancement of the Kingdom of Christ in the world.”
    
      Fifth. It does not appear that its purposes are for the advancement of the interest of the Christian religion.
    
      Sixth. It is not alleged what are “ charitable American home missionary purposes.” The phrase itself is indefinite. Surely, the court can not take judicial notice of what such purposes are. Moreover, if the bequest is, as the court below held it to be, to the individual who is treasurer of this association, that is, to an individual identified by the description of his office, then the purposes for which this association may have been organized are wholly immaterial.
    
      Seventh. It is not alleged that its purposes have ever been carried into operation by the adoption or practice of any scheme or method of administering religious charity, or of using “ money ” for the “ promotion of the interests of religion or the advancement of the kingdom of Christ in the world.” Therefore, it may not he inferred that the testator intended that the money should be applied to the charitable use, according to any practice or usage of such association, because none such is alleged to have existed, or could have been contemplated by him, if he had even made the bequest to the association.
    
      Fighth. If the bequest to the treasurer of this association can be construed into a legacy to the association, to be used “ for the interests of religion and the advancement of the kingdom of Christ,” the vagueness and uncertainty of the trust, is not obviated. "Whether the trust be vested in one person or an association of persons, its inherent uncertainty and vagueness still remains. That this is so, is well settled, unless some scheme for the administration of such a trust be pointed out — that is, unless the object of the trust be so definite and certain that a court of chancery can enforce its specific execution.
   Wright, J.

The question at issue is .as to the validity of the bequest to the treasurer of the American Bible Society and others, as set forth in item second of the will. The court of common pleas seems to have held that it was-a bequest in trust, and, as such, was void for uncertainty.

The alleged uncertainty is said .to exist in this. In the opinion of men, the modes and methods of advancing the kingdom of Christ are as various as the numerous sects-ostensibly engaged in accomplishing that object. While all are busy in the work, no two agree how it shall be done. Methodist, Episcopalian, Baptist, Presbyterian, all have their different opinions as to the matter which seems to-have been contemplated by the testator.

That it is not within the province of a court of equity to decide between such conflicting claims will be at once conceded, and if the validity of this bequest depended upon the solution of questions such as these, the difficulty of sustaining the will becomes apparent.

If this instrument devised property to a named trustee, “ to be used for the interest of religion and the advancement of Christ’s kingdom in the world,” it would perhaps be impossible to sustain such a disposition under the law of devises to charitable uses. In what has been called by courts the “ wilderness of cases’” upon this subject, we find that a bequest of this kind must be cei’tain.

In Chamberlain v. Stearns, 111 Mass. 267, a devise for “ benevolent ” purposes was held void, because too general in its meaning. ‘ In Holland v. Peck, 2 Iredell Eq. 255, executors were directed to “ pay over and deliver . . . for the .benefit of the Methodist Episcopal Church in America,” . . . the sum of $5,000, “ to be disposed of by conference, or the different members composing the same, as they, shall in their godly wisdom judge will be most expedient or beneficial for the increase or prosperity of the gospel.” It was held: “ The object of the bequest being of so indefinite a nature that the court can not determine how it should be employed, the same is void.”

In Wisconsin the statute with regard to trusts to uses provides that the trust must be fully expressed and clearly ■defined on tbe face of the instrument creating it,” which is merely declaratory of the existing law on the subject. In that state the case of Ruth v. Oberbrunner, 40 Wis. 238, holds that a devise of land to A. & B., “ to hold the same ■in trust for the use and benefit of the Order of St. Dominican and St. Catharine’s Eemale Academy, and for no other purpose,” can not be sustained for want of certainty.

In Heiss, Ex’r v. Murphy, 40 Wis. 276, a will devising property to the Roman Catholic orphans ” of a certain diocese, with a further provision appointing the Roman 'Catholic bishop executor, and giving him “ power to sell .the above property and use the proceeds for the benefit of the Roman Catholic orphans,” was held void for uncertainty in the description of the beneficiaries, the class not being sufficiently defined, and no way being provided for selecting the individual beneficiaries from any class.

The court thus illustrate the uncertainty, which they hold to invalidate the devise : “ Conceding that the fund was to be used by the executor for the benefit of the Roman Catholic orphans of the diocese of La Crosse, how is it possible to ascertain and determine what orphans were intended to be benefited ? Are they whole orphans or half orphans ? Are they orphans of parents both of whom were members of the Roman Catholic church, or will an orphan of a Roman Catholic father, or of a Roman Catholic mother, come within the designated class ? Are the .objects of this charity the full orphans of half orphans who were living within the diocese at the death of the testator, or will such of either class as may thereafter come into the diocese be entitled to take as beneficiaries ? Again, upon what principle or in what manner is the fund created by the sale of the real estate to be expended ? Is the ex•ecutor or trustee to apportion it equally among the orphans •of the diocese when it is ascertained who are entitled to •take, or is he to dispense .it in his discretion for the benefit of such orphans as he may select from time to time ? These questions suggest the perplexity which the court must encounter in carrying into effect this trust. It seems to us they are insuperable. Eor the testator has failed to declare his purpose, but has left his will so indefinite and vague upon all those material matters that a court, in order to execute the trust, is of necessity compelled to make a will for him. The words of Comstock, Ch. J., in Beekman v. Bowser, 23 N. Y. 298, may well be used: ‘ Here is a fatal uncertainty both as to the subject and object of the-bequest.’ ” (Page 306.)

The opinion in Grimes’ Ex’r v. Harmar, 35 Ind. 198, is able and learned. "We quote part of the syllabus :

“ The residuary clause of a will was as follows : ‘ Item. I give and bequeath the residue of my estate, after the foregoing bequests have been fully paid to the orthodox Protestant clergymen of Delphi, and their successors, to be expended in the education of colored children, both male and female, in such way and manner as they may deem best, of which a majority of them shall determine.’ In a suit by the heirs at law against the executors to recover the residuary estate:
“jGeld (1), that the residuary clause was void for vagueness and uncertainty in the designation of the trustees and of the beneficiaries of the use; and (2) that a court of equity had not the power to decree its execution cy pres.”
In this case the court say: “ Can the trustees execute the trust ? Are the beneficiaries so described that they can be ascertained ? And if they can be ascertained, is there-any plan or scheme devised by the testator directing-the manner in which and the purposes for which the-money was to be expended ? And if there is no plan or scheme, is there a discretion vested in the trustees authorizing them to select tire beneficiaries and determine the-manner in which the trust should be executed ? The beneficiaries are not designated except by the general vague and sweeping expression, ‘ colored children, both male and female.’ ”

After stating that the class thus specified number about four millions, the court proceeds to say: “ It will be observed that no scheme or plan, such as the foundation of' a college, a seminary of learning, or a theological institute is prescribed. The character of the education to be given —whether moral, religious, literary, or scientific — is not-prescribed. The purpose expressed is to promote the moral and religious improvement and well-being of the colored race by educating the colored children, both male and female, but the particular kind of education is not prescribed. It would be impracticable to distribute the fund ratably among the beneficiaries. There is no power or discretion lodged in any person, natural or artificial, to select the beneficiaries from the mass of children of the African race in this country. Can the courts, in the exercise of their functions, select the beneficiaries ? If neither the trustees nor the courts can select the beneficiaries, is not the residuary devise and bequest void for uncertainty?” See also Holmes v. Mead, 52 N. Y. 332.

These illustrations are given to show the kind of devises- or bequests that are held void by courts, and it is necessary to consider whether the bequest before us is of this character, and whether it is amenable to the objections that have been urged against it.

In our opinion, the only rule necessary to be considered in this connection is that familiar one — that in construing a will we must endeavor to discover the intention of the testator. In the first place, it is seen that he had already created a trust. That trust was to last-during the lives of his parents. They being dead, he says it is his will that the trust shall cease. “ It is my will and desire that upon the death of both my said parents the trust shall expire,, and my said trustee shall distribute the fund.” The distribution is two thousand dollars to his sisters, and three-thousand dollars to the various societies. It is therefore apparent that he intended all trusts with relation to this money to cease when distribution was made. The ■ two sisters certainly hold their two thousand dollars clear of any complications of trust, and the same course of reasoning shows that the recipients of the three thousand dollars must hold their money free of any trust, at least so-far as any trust is created by the will. If the money is taken by the societies subject to any trust at all, it is only such as exists by vii-tue of the objects and purposes of the society itself. All the means, of the societies are devoted to the uses for which the societies are formed, and are thus, in a certain sense, held in trust to' accomplish those uses.

The next clause to be considered is this: “As to the remaining sum of three thousand dollars, the balance of said trust fund, my said trustee is directed to apply the same so that it may be used for the interest of religion, and the advancement of the kingdom of Christ in the world, as follows, to wit: He shall pay to the treasurer of the American Tract Society the sum of one thousand dollars ; to the treasurer of the American Bible Society the sum of five hundred dollars; to the treasurer of the society known as the American and Foreign Christian Union the sum of five hundred dollars; to the treasurer of ■of the American Home Missionary Society the sum of one thousand dollars.”

It seems to us, the intention of the will may be made clear, by reading the above clause thus: As to the remaining sum of three thousand dollars, the balance of said trust fund, my said trustee is directed to apply the same so that it may be used for the interests of religion, and for the advancement of the kingdom of Christ in the world by paying to ■the treasurer of the American Tract Society one thousand .dollars; to the treasurer of. the American Bible Society the sum of five hundred dollars; to the treasurer of the -society known as the American and Foreign Christian Union the sum of five hundred dollars; and to the treasurer of the American Home Missionary Society the sum ■of one thousand dollars.

The testator conceives a scheme for advancing Christ’s kingdom in the world. He carries out that scheme by directing the money to be paid to these various societies. As soon as the money arrives at their treasuries, that .■scheme is accomplished. His will is fullfilled. No discretion is left to anyone how this scheme shall be carried out. He has settled all that for himself. He knows that these .societies are doing that which he wishes, and that to achieve which this bequest is made. He knows that they are engaged in the work of advancing Christ’s kingdom. It is not to the purpose that anyone else may have doubts upon this subject. He does not. Knowing, therefore, that this is their mission, in order to aid it, he gives the money to them. In other words,.they are the beneficiaries of the will, and its object is accomplished by paying the money to them. It is not necessary, as counsel claim, to show that these societies are actually engaged in the work of .advancing Christ’s kingdom. The testator has settled that question for himself, so far as to say that he proposes to •advance Christ’s kingdom. How ? By paying his money to the Tract Society, and the others named. That is his method of doing what he desires, and so he wills.

It is not as though he bequeathed to a trustee, for the purpose of advancing the kingdom of Christ. He bequeaths to these societies, because they are advancing the kingdom, which is the precise object he wants to accomplish. He first states the object he wishes to effect, and then states how he proposes to effect it. He is willing to pay the money direct to them. To them he trusts that they will forward his cherished idea.

As said, the societies themselves are the direct beneficiaries of the trust, although, if they should attempt to use their money for purposes altogether foreign to those for which they exist, doubtless they might be restrained to those purposes; not by reason of anything in the will, but because they should be restrained to the purposes for which they were created.

In Miller v. Teachout, 24 Ohio St. 525, the syllabus is:

“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 exetutor, 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 snob manner as, in his judgment, would best jjromote 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.”

The court say, page 533: “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 charge 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 purposes intended, the bequest will not be held invalid so long as there is no obstacle to the exercise of the powers 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.”

In the case before us, the testator has created these societies an agency to carry out his scheme, he has given them power over the application of his bounty, and the exercise of that power relieves the bequest of all objections made on account of vagueness or uncertainty.

In Board of Education of Fairfield Township v. Ladd, Admr. 26 Ohio St. 210, the syllabus is:

“A testator directed that, after the termination of a life-estate created by his will, his property should be sold, and the proceeds placed in the public school fund of a township named, and applied to the education of the youth of that township. After the making of the will, but before the death of the testator, the part of the township in which lie resided was set off and made to form part of a new township. Held:
“1. That the primary object of the testator was to apply his property to the education of the youth of the town* ship named, and that the reference to the public school fund of the township was merely to indicate a means or instrumentality for administering the charity.”

Item third of this will was:

“And ever being concerned for the prosperity and happiness of my country, and fully believing that the diffusion of light and science constitutes one of the most paramount of Christian duties, I hereby authorize my executor, or his successor, after the death of the afore-named legatees, to cause the whole of my property to be sold to the best advantage, and the proceeds thereof I wish to be placed in the public school fund of Fairfield township, and the same to be applied to the education of the youth of said township.”

The court says: “Fairfield township, and the public school fund of that township, are only referred to as furnishing the means or instrumentality for reaching the intended objects of the testator’s bounty.” In the case before us, these societies are only the means through which the testator proposes to reach the end of advancing Christ’s kingdom.

The court further say: “The primary object of the testator is to apply his property to the education of the youth of Fairfield township, and to accomplish this purpose, he expresses the wish that the proceeds be placed in the public school fund of that township.” So, here, the object of the testator is to apply his property to the advancement of Christ’s kingdom, and to accomplish this purpose, he expresses the wish that the money be placed in the treasuries of the societies he names. There is no vagueness or uncertainty whatever in the bequest.

Although the testator uses the names of the treasurers, this is only his mode of designating the societies to which he desires his money to go, and, though one is an incorporated society, it is entirely capable of taking a personal, bequest; it might be different as to realty. Waller v. Child, Ambl. 524; Burr v. Smith, 7 Vt. 241; Owens v. Missionary Soc. of the M. E. Church, 14 N. Y. 386.

In our opinion, therefore, the objections to this bequest are not sound, and it follows that the judgment of the common pleas and district court, holding the bequests void, must be reversed.

Judgment of district court reversed, and cause remanded.  