
    (Warren County, Common Pleas Court.)
    MICHAEL O’NEAL, et al., EXECUTORS etc., v. MARY CAULFIELD, et al.
    First: Bequests to charity should receive a most liberal construction if the objects intended can be ascertained, and if discretionary powers are vested anywhere to select the particular beneficiaries of the testator’s bounty, the bequests will be upheld; for the exercise of such discretion in applying the fund will relieve the bequests of all objections on the ground of vagueness and uncertainty.
    Second: The will of Rev. John B. O’Donohue, a Roman Catholic priest, contained the following bequests:
    “Fifth: I will and bequeath to help to found a permanent fund for the benefit of infirm priests of the diocese, one thousand dollars.”
    “Tenth: The one hundred and fifty acres of land more or less, that I own in Washington township, county of Warren, Ohio, must never be sold; otherwise the proceeds revert to my blood relations — I will the 150 acres aforesaid, for a permanent Catholic Seminary Burse,or College Burse. The land is to be appraised and leased at certain periods — say every ten years — the rent, or annual payment, on lease, are to be applied for the training or educating a boy, or young man desirous of becoming a priest. The annual rent of the-land now — exclusive of taxes and other expenses — amounts to two hundred dollars. The beneficiaries of the Burse, or bequest, are to be of Irish descent, and are to be selected by competition, or rotation, when possible, from the different missions that I served while a priest, or from Catholic Parochial, or Sunday Schools, the Rev. pastors, of rectors, my successors in the different missions, are requested to make this bequest known for the benefit of worthy-youth in their charge, and are requested to act as additional executors m its fulfillment.”
    A “Burse” is a fund the revenue orincome from which is appropriated to the education of young men for the priesthood.
    
      Held-. That both of said bequests are gifts to charity, and under the facts stated in the opinion, are not void for vagueness or uncertainty.
   VAN PELT, J.

On November 7, 1882, John B. O’Donohue executed his last will and testament. He died on the 11th,and said will was admitted to probate on the 14th, of the same month by the probate court of Warren county, Ohio.

The issues presented for determination under the pleadings and the evidence, arise upon the fifth and tenth items of said will. They are as follows :

Fifth: “I will and bequeath to help to found a permanent fund for the benefit of the infirm priests of the diocese, one thousand dollars.”

Tenth: “The one hundred and fifty acres of land more or less, that I own in Washington township, county of Warren, Ohio — must never be sold; otherwise the proceeds revert to my blood relations— I will and bequeath the 150 acres aforesaid, for a permanent Catholic Seminary Burse, or College Burse. The land is to be appraised and leased at certain periods — say every ten years — the rent, or annual payments, on lease, are to be applied for the training or educating a boy, or young man desirous of becoming a priest. The annhal rent of the land now. — exclusive of taxes, and other expenses — amounts to two hundred dollars. The beneficiaries of the Burse, or bequest are to be of Irish descent, and are to be selected by competition, or rotation, when possible from the different missions that I served while a priest, or from Catholic 'Parochial or Sunday Schools, the Rev. pastors or rectors, my successors in the different missions, are requested to make this bequest known for the benefit of worthy youth in their charge, and are requested to act as additional executors in its fulfillment. I appoint Rev. J. O’Donohue -Rev. Michael O’Donohue, and Daniel Collins, or any two of them my executors” — etc.

The following facts are shown by the evidence:

The testator was a priest of the Roman Catholic church, and connected with the diocese of Cincinnati. During his priesthood, .he was, at different times in charge of the churches or missions of Saint Francis DeSailes, at Lebanon, Ohio, Saint Coleman,' at Washington C. H., Ohio, Saint Malachy, at Morrow, Ohio, and Saint Columbskill, at Wilmington, Ohio. The diocese of Cincinnati, includes the territory in which these various churches or missions are situated. . The testator received his theological education in part with the Benedictines,and in part at Mt.St. Mary’s Seminary, at Cincinnati, Ohio. Said Seminary was an institution for the education of young men for the priesthood, and was the | only institution of the kind in said diocese. In 1877 an organization for the support of old and infirm priests was created by the priests of the dioeese, assembled together at Mount St. Mary’s Seminary. The testator was present at. the “retreat” or meeting, and took an active part in forming the organization, which received the approval of Archbishop Purcell, and is known as the “Infirm Priests’ Fund”. Certain rules and regulations were adopted for the government of this organization, and still remain in force. So far as they affect the questions now to be determined, they are as follows:

“First: A percentage of the revenues of the churches shallbe appropriated to the ‘Infirm Priests’ Fund’:
“Second: Voluntary donations and legacies from the clergy to the fund will be gratefully received.
“Third: Bach congregation, whether attended by the secular or regular clergy, shall be taxed one per cent.of its regular revenues, viz: pew rents and Sunday collections: the basis of this revenue to be the next annual report.
“Fourth: This assessment shall continue, until the fund reaches the amount of $10,000.....
“Ninth: The board of directors of this fund shall consist of five priests; two to be appointed by the ordinary; two to be elected, by the clergy, and these four to choose the fifth.
“Tenth: The board of directors shall be elected at the first meeting of the clergy, and hereafter at each pastoriaL retreat.

Administration of Infirm Priests’ Fund.

“The Infirm Priests’ Fund shall be collected and administered by the board of directors. The board will organize itself by electing a chairman, a secretary and a treasurer, etc.

Relief of Infirm Priests.

“First: Whenever a priest of the diocese becomes disabled by infirmity, he shall make application to the chairman of the I. P. F. for future relief only. Upon the testimony of a physician anil two clergymen, neighbors to the reverend applicant, the board will decide upon the disability and poverty of the aged priest.

. “Second: Every priest of the dioeese, no matter what his pecuniary condition may be, is entitled to his full share of the fund in case of infirmity.

“Third: All appropriations , must receive the vote of the majority of the board”, etc.

The foregoing extracts from the rules and regulations show the nature of the organization, and the manner in which its funds are collected, and by whom they are controlled and disbursed.

A “Burse” is a fund, the revenue or income from which is appropriated to the education of young men for the priesthood. A seminary burse is designed to give aid to young-men in taking a course in training in a seminary — a college burse to completing the course in a college — both the seminary and college being, of course, devoted to educational preparation for the priesthood. At the time of the execution of this will, the diocese of Cincinnati had two burses connected with the American Catholic College at Rome, and it also maintained and conducted the seminary above named. Both college and seminary burses are under the control and direction of the Archbishop of the diocese.

J. D. Wallace, for plaintiff.

Stephens & Lincoln, and John E. Smith, for Wm. Henry Elder, Archbishop.

The objection to the items of the will above quoted is that they are so indefinite and uncertain in their provisions as to be incapable of execution, and are, therefore, void.

In construing a will, the court may always look to the attendant acts and circumstances to ascertain the intention of the testator. This is a well settled rule of testamentary law.

Both of the bequests in question are gifts to charity, and should receive a most liberal construction. If the objects intended can be ascertained, and if discretionary powers are vested anywhere to select the particular beneficiaries of the testator’s bounty, the bequests will be upheld; for the exercise of such discretion in applying the fund will relieve the bequests of all objections on the ground of vagueness and uncertainty.

Urwey’s Exr.s, v. Wooder, 1 Ohio St., 160; Miller v. Teachant, 24 Ohio St., 525; Sowers v. Cyrennuis, 39 Ohio St., 29; McIntire v. Zanesville, 17 Ohio St., 352; Mannix, Assignee, v. Purcell, 46 Ohio St., 142-3; Lessee v. McCauelless, 7 Ohio, 421; McIntire’s Trustees v. Zanesville, 9 Ohio, 203; Zanesville &c. Co. v. Zanesville, 20 Ohio, 483; Jackson v. Phillips, 14 Allen (Mass.), 556; 2 Perry on Trusts, Sections 687, 697, 699, 700, 701, 705, 709, 713 and 732.

Let us apply these principles to each of the bequests in the present will. The testator was a Roman Catholic priest. He belonged to the Cincinnati diocese. The priests of that diocese had created an organization, with the approval of the archbishop, known as the “Infirm Priests’Fund”; its object was to provide a support for aged and infirm priests. The organization was under the control and management of a board of directors. This board had the power to determine, by a majority vote, when a priest of the diocese came within the conditions which entitled him to the benefit of the fund. That the sum bequeathed in the 5th item of the will was intended to become a permanent part of the fund, provided for the benefit of the infirm priests of the diocese, and to be used and controlled by said organization, and in accordance with its rules and, regulations, cannot, I think, admit of doubt.

The amount of this bequest should be paid over, by the executors, to the present treasurer of the Infirm Priests’ Fund.

In the 10th item the object intended was the' creation óf a fund out of the rents and profits of th.e farm, for the purpose of educating young men for the Roman Catholic priesthood. The source from which the fund was to arise is designated. The beneficiaries are to be of Irish descent, and selected by competition or rotation from the churches the testator had served as a priest, or from. Parochial or Sunday Schools, and his successors, as pastors or rectors, are requested to act as additional executors in the selection. As the executors named in the will have all, either died or resigned, the pastors, or rectors, of the churches named above, have now committed to them the duty of selecting the beneficiaries of the fund. Ihe administrator de bonis non, with the will annexed, can have no voice in making the selection. The fund, by the rules of the church, is committed to the control of the Archbishop. He may, in his discretion, apply it to the education of young priests either in Mount St. Mary’s Semirary, or in the American College at Rome, the beneficiaries in either case to be selected from the class and in the manner provided by the will. It is not material to determine whether the fee in the land vested in the executors, or remains in the heirs at law. In either ease it is held subject to the trust created by the will.

If this bequest were other than to a charity, it might be subject to the provisions of section 4200 of the Revised Statutes against perpetuities. But a trust created for a charitable purpose is not subject to the limitations of the statute, but may continue for a permanent and indefinite time.

1 Perry on Trusts,section 348, and cases cited; 2 Perry on Trusts, section 687, and cases cited.

The court can not declare either of these items of the will void for uncertainty. Let an entry be prepared construing the will in accordance with the foregoing decision.  