
    *Janey’s Ex’er v. Latane and Others.
    February, 1833.
    (Absent Brooke, X)
    Charitable Bequests -Validity — Case at Bar. — Testator bequeaths "to the school commissioners and their successors of South Fame am district, Essex county, for the schooling- of the poor children of that district, 1000 dollars, to be put out at interest, and the interest only to be applied for the schooling of said poor children;" there are school commissioners of the county of Essex, and testator was one of them at his death, but they are not a corporate body; there a.re no school commissioners of South Farnham district, nor any such district, that being' only the name of an ancient parish: Held, the bequest is void.
    Joseph Janey, by his last will and testament, bequeathed as follows: “I give to the school commissioners and their successors of South Earnham district, Essex county, for the schooling of the poor children of that district, 1000 dollars, to be put out at interest at six per centum per an-num, and the interest only tobe applied for the schooling of said poor children.”
    Henry Latane and five others, exhibited their bill in chancery against Thomas Gresham the executor of Janey, in the circuit superiour court of Essex, exhibiting Janey’s will, and alleging, that they, together with the testator Janey in his lifetime, has been duly appointed school commissioners lor the county of Essex, by the county court, in September 1831; that they and Janey had acted as such during his life, and the plaintiffs were still in office, performing the duties prescribed by law ; that Essex county had been laid off into two districts, one called St. Ann’s and the other South Earn-ham ; and that the testator, Janey, had acted as school commissioner, with the plaintiffs, in the south Earnham district, from the date of his appointment till his death, the testator residing in South Earn-ham, and the plaintiffs in St. Ann’s; and praying, that Janey’s executor should be decreed to pay the legacy of 1000 dollars to the plaintiffs, to be by them appropriated according to the bequest.
    *Gresham, the executor, in his answer, admitted the bequest in his testator’s will, and that he had assets sufficient to pay the legacy; that the plaintiffs were, as they alleged, the surviving school commissioners for the county of Essex, duly appointed by the county court, and that his testator had been,, in his lifetime, and continued till his death, one of the school commissioners for the county. But he denied, that the county had ever been, as the plaintiffs alleged, divided by the school commissioners, into two districts, according to the provisions of the statute of Eebruary 1829, to amend the several acts concerning the literary fund, though the county of Essex had anciently been divided into two parishes, called South Earnham and St. Ann’s, the lines of which were still well known, and his testator in his lifetime resided in the former parish. And he insisted, that there was no such body of men, known to the law, as “the school commissioners and their successors of South Earn-ham district, Essex county;” and that the legacy to them in his testator’s will, was void for uncertainty.
    There was no replication to the answer; and the cause was heard, by consent, on the bill, the will therewith exhibited, and the answer: whereupon the court decreed, that the' defendant should, out of the assets of his testator in his hands, pay the legacy of 1000 dollars to the plaintiffs. The defendant applied to this court for an appeal from the decree; which was allowed.
    Johnson, or the appellant,
    said, that the statute ot 1888-9, Supp. to Rev. Code, ch. 28, % 1, p. 40, authorized the school commissioners of any county,, if they thought proper, to divide their county into districts, of not less than three nor more than seven square miles; but Essex county had never been so divided into districts; there was no such district as South Farnham, which was only the name of an ancient parish. There were not, and could not be, any school commissioners for South Farnham district; first, because there was no such district; and next, because, if there had been, *the school commissioners never were, and could not be, appointed for a particular district, but always for the whole county, under the provisions of the general statute concerning the literary fund, 1 Rev. Code, ch. 33, '& 13-19, p. 87-89. Neither were the school commissioners a body corporate: they had no law to govern them in the administration of any fund for the education of the poor, except that part of the literary fund, and the proceeds of glebe lands, dedicated bylaw to that object: so that, in the administration of private donations, they would be governed by no other law than that which would govern any other individuals. The school commissioners, in the administration of the fund committed to them by law, were to select objects from any part of their county, in their discretion. There was, he said, no legal method of ascertaining the “poor children of South Farnham district;” and this case fell within . the principles on which the case of Gallego’s ex’ors v. Atto. General was decided, 3 Leigh 450.
    Briggs, for the appellees,
    said, it was true, that the school commissioners were not a body corporate, that they were appointed for the whole county, not for particular districts, and that Essex county might not have been formally divided into districts; but he thought it would be quite too technical, to disappoint the charity of the testator on such grounds. For, as he was, in his lifetime, one of the school commissioners, and died in the office, his very will shewed, that the county had been, in fact, divided into districts, and that he knew it; and, applying the words of the bequest to the known state of facts, his obvious purpose was, to give the legacy to the school commissioners of the whole county, to be appropriated to the education of the poor children of South Farnham district, in which he resided. And then, the whole question was, whether the school commissioners could take as such? Why not? They were a body of men known to the law; they were, especially, a body of men known to the testator; they were school commissioners for the whole county of Essex, and therefore, for each and every*part of it; for South Farnham as well as the other parts of the county. The testator had a right to give his property to them, if he pleased, and to rely on them to execute the trust he thought proper to repose in them, whether the law charged them officially with the execution of such a trust, or not. The court, if it saw fit, might require security from them for the faithful administration of the fund. Then, as to the objects of the testator’s-bounty, there would, he said, be little difficulty in saying, that they should be such poor children of South Farnham district, as the school commissioners should select as proper persons to be educated in the primarj1 schools; and the effect would-only be, to add one or two to the number of poor children in that district, to receive the advantage of such education.,
    
      
      Charitable Bequests — Validity.—On this question, sec discussion in foot-note to Gallego v. Attorney General. 3 Leigh 450. The principal case is cited in the following: Com. v. Levy, 23 Gratt. 40: Protestant Episcopal Ed. Soc. v. Churchman. 80 Va. 768; Wilson v. Perry, 29 W. Va. 189, 1 S. E. Rep. 315; Wilmoth v. Wilmoth, 34 W. Va. 436. 12 S. E. Rep. 734: Pack v. Shanklin, 43 W. Va. 316, 27 S. E. Rep. 394.
      See monographic note on "Charities" appended to Kelly v. Love, 20 Gratt. 124.
    
   The Court (dubitante CARR, J.), held that the bequest was void, and therefore reversed-the decree, and dismissed the bill.  