
    LEWIS McBRIDE v. THE EXECUTORS OF EBENEZER ELMER ET AL.
    1. E. E. bequeathed to “The Bridgeton Trustees for Free Schools” $1000, the interest to he applied annually for ages 'as far as may be practicable, for the tuition of poor children, without regard to denomination or color, in the elements of English literature.
    2. There was no such body as “ The Bridgeton Trustees- for Free Schools but there were in the town of Bridgeton, trustees of public schools, (usually called free schools,) as established by the statute respecting public schools.
    8. The bequest was held good as a trust to be executed; trustees were appointed by the cour..
    This is an amicable suit brought for the purpose of settling a question arising upon the will of Ebenezer Elmer, late of Bridgeton, in the county of Cumberland, deceased.
    The bequest on which the question arises, is as follows:
    “ I give to the Bridgeton trustees for free schools one thousand dollars, the interest to be applied annually for ages as far as may be practicable for the tuition of poor children, without regard to denomination or color, in the elements of English literature.”
    The ease was submitted on bill and answer and written briefs.
    
      Henry W. Green, for the complainant.
    The intent of the testator is obvious. It was to provide a permanent fund for the instruction of poor children in the common branches of an English education. Nor can there be any mistake as to the objects of his bounty. They are the poor children of the town of Bridgeton, where the testator resided.
    The design of the testator, doubtless, was to give the money to the trustees of common schools, (usually called free schools,) as established by the law respecting common schools, in the town of Bridgeton.
    But a difficulty arises.
    1. From the supposed inability of the trustees to take under the will.
    2. From the fact that there is more than one free school in Bridgeton.
    
      Admitting for the sake of the argument, that the bequest is void at common law, that the trustees are incompetent to take a legacy, shall the legacy therefore fail ?
    It is insisted on the part of the complainant that the doctrine of cy pres, applies.
    In England this question- has long been at rest, and the exercise of the power is one of the most ordinary and familiar subjects of chancery jurisdiction.
    And the subject has lately been so fully and ably discussed, and settled by so high authority, and upon so satisfactory a basis, that little else is deemed necessary than a mere reference to the authorities.
    The difficulty with the question in the courts of equity of this country has been that the statute 43 of Elizabeth, chap. 4, (the statute of charitable uses) has never been enacted here. And the idea was entertained that the doctrine of the Court of Chancery, in regard to charities and the jurisdiction of the court over them, originated in that statute.
    ' That was the doctrine adopted by the court in Baptist Association v. Hart’s Ex’rs, 4 Wheaton 1, and the decision in that case proceeded upon that idea.
    But it has since been clearly shown that that opinion is erroneous. That the Court of Chancery has jurisdiction of charities by virtue of its inherent powers. That it was derived, not from the statute of Elizabeth, but from the civil law or from the common law; and that it both held and exercised the jurisdiction long anterior to the statute of Elizabeth.
    See Vidal v. Girard’s Ex’rs, 2 Howard 127; Burr’s Ex’rs v. Smith, 7 Vermont 241; King v. Woodhull, 3 Edwards 79.
    I refer particularly to the argument of George Wood, Esq., in 7 Vermont 241; to that of Horace Binney in the Girard will case, printed in pamphlet, pp. 113 to 137. And to the opinion of Judge Baldwin in the ease of Sarah Banes, in the Circuit Court of the U. S., April term, 1833, pamphlet, pp. 41, 2, &c.
    Numerous American cases in support of the same doctrine will be, found referred to by Mr. Binney, in 2 Howard 164.
    The doctrine of charitable uses and the power of a court of equity over them, may now be considered as definitely at rest.
    
      It is certainly somewhat remarkable that it should not have been settled at an earlier day. It may be explained by the fact that in this country, and particularly in this state, there are but few legacies to charitable uses, and those generally very small in amount.
    The subject is daily assuming more importance. It is a highly salutary exercise of jurisdiction, and for the court to deny the power would be to divest itself of one of its most beneficial prerogatives.
    Though cases have not arisen, yet they exist, and will be brought before the court.
    A legacy is given to the trustees of an unincorporated religious society, in trust, to educate all the poor children within its limits. Would the court say that the legacy must fail, or refuse to execute; or, suppose that numerous legacies of that kind should have been given, a large fund accumulated, and (as has lately happened,) the society should be dissolved; would the court of equity suffer the fund to be squandered, or claimed by the individual in whose hand it happened to be? Would the court not appoint trustees and enforce the trust?
    In the present case we need not call to our aid the doctrine of ey pres. The trust and the objects of his bounty are sufficiently clear, and the intent may be carried into effect. It is only required that the court of equity should establish the trust and appoint suitable trustees to execute the trust.
    The object of the bequest is a charity. A gift for the support of schools, or the promotion of education, is a charity; and “ poor .children” is a sufficient designation of the objects of the bounty. Att'y-Gen. v. Williams, 4 Bro. C. C. 526; 2 Roper on Legacies 101.
    Equity will not permit a charitable bequest to fail, either for want of trustees, or because the objects of the testator’s bounty are indefinite, if the general intent is apparent, and if the will cannot be executed precisely in the mode the testator directed, the court will execute the intent as near as may be. The English eases go much further than is at all necessary to support the present claim. 2 Roper on Legacies 140, § 5.
    
      
      Lucius Q. C. Elmer, for the defendants.
    The question in the case is, whether the Chancellor, in the absence of any statute similar to the English statute of Elizabeth, can execute the bequest by means of the doctrine of cy pres.
    
    Without meaning to do much more than to refer to the cases within my reach, or to which I have references, it is with considerable confidence insisted that the Chancellor of New Jersey has no such power. He does not, like the English Chancellors, represent the king or government as parens patrice; but, under the constitution of this state, is simply a part of the judiciary, holding, as such, the Court of Chancery.
    That the bequest in this case is void at the common law, I presume, will not be disputed, there being no person or persons in esse capable of taking and fulfilling the trust in perpetuity 5 and there being no designation of the persons who are to be benefited, there is neither a designated trustee nor definite cestuis que trust.
    
    Nor is it a case where the executor can be held to be a trustee, and charged, under the authority of the court and by its aid, with the execution of it. This trust, if good at all, mu'-'fc be perpetuated. The objects or persons to be benefited are wholly indefinite, so that, to effect the object, the court must not only set up and constitute trustees and make them at least a quasi corporation, but it must, also, from time to time, regulate the mode of their procedure. The court must, of necessity, lay down rules for ascertaining who the “ poor children” are that are to be instructed, or must leave this to the unregulated direction of persons not selected by the testator. It is, in short, a case where the prerogative superintending power of government must be called in to supply defects which a court, as such, has no power to remedy. The jurisdiction to do this, even under the statute of Elizabeth, is not in the court, but in the Chancellor, personally. 2 Atk. 553.
    That a Court of Chancery may go so far as to enforce a trust, even for objects somewhat indefinite, in cases where the executor or person named, or holding the fund, was constituted by the will, trustee, or was in a situation to be treated as such by the court, may be conceded, without going the length neecssary in this case, and perhaps without departing from the general principles of a court of equity. And it is submitted that the strong weight of authority in the United States is against going any further. To this extent most of the following cases go, and no further, although some of the judges, in argument, may seem to sanction a stronger doctrine.
    7 Vermont Rep. 241; 3 Edw. R., King v. Woodhull; 7 Vesey 86; 9 Cow. 437; 17 Serg. and Rawle 88 ; 5 Harr, and John. 392; 3 Peters U. S. R. 99, 484; 4 Wheaton 1; 3 Leigh. Vir. 450; 1 Hawke N. C. 276 ; 9 Ohio 203; 6 Paige 649; and see 4 Kent Com. 507, note (5th edit.) where most of the above cases are referred to, and 2 Story Eq., §§ 1169, 1176, &c.; 1 Bad. and Dev. N. C. 276.
    Some support for going further seems to be claimed from facts, as to the ancient practice of the English Chancery, said to be disclosed by the records lately published in England, as referred to in the ease of Girard’s will. 2 Howard U. S. R. 127, 155, 164, 191, 197, &c.
    But it is submitted that, such authority, so vague and uncertain in itself, derived from such ancient times, so long disused in Great Britain, never acted on in New Jersey, is not sufficient to introduce such sweeping conclusions. The maxim that a good judge will seek to enlarge his authority, although flattering to the court, and often acted upon by good judges, is exceedingly dangerous, and is emphatically to be repudiated under a government so strictly limited, and under a system so justly jealous of power as ours. The question is, Shall such powers be now for tiie first time assumed in New Jersey, where, if necessary, the legislature may so easily apply the remedy ? That so long a time has elapsed without having done it, is, certainly, a strong reason for believing that such powers have not been thought expedient, or at least that they are not very necessary.
    The right thus to make a will for a testator, and to deprive heirs of their legal rights, has been exercised to the extent now claimed only iii cases of charity ; and this has been done because it has been supposed that there are peculiarly strong motives for upholding such bequests. But this is more than questionable. It is believed that much stronger reasons may be urged for absolutely prohibiting any disposition of land or of funds .to charities, than for fostering and encouraging them. Who .that has had only a passing knowledge of the gross abuses to which they have been subject in Great Britain, can help distrusting the policy of such a system ? As is remarked by the pious and excellent Jay, (Evg. Exercise, Aug. 22d,)—
    
      “ Some leave large sums when they die j they had better be their own executors, and see and enjoy the application of their own liberality. The endowments bequeathed by many of our good forefathers have operated rather injuriously than otherwise — retaining the support of error in some places of worship, and relaxing the zeal and generosity of congregations in othérs; for people have an amazing keenness in perceiving when their assistance is not wanting.”
    In regard to the question whether, if this bequest fails, the money will belong to. the remainder of the estate and be disposed of as that is, or whether it is to be considered as undisposed of, it is submitted to the court, by the parties in interest, without argument.
    The following are some of the cases applicable to this question.
    4 Ves. 732; 4 Paige 117; 16 Ves. 451 ; 3 P. Wms. 40; 2 Jac. and Walk. 404; 1 Hill Ch. R. S. C. 95 ; 2 Roper “on Legacies 341, 453—7.
    It is taken for granted that, whatever be the decree, the cost on both sides will be taken out of the fund.
   The Chancellor

delivered an opinion, orally, declaring the bequest good as a trust to be executed. That the only difficultv was a mistake in naming the trustees j and that the court would appoint trustees.

Order accordingly.  