
    The Trustees of the McIntire Poor School v. The Zanesville Canal and Manufacturing Company et al.
    A bequest for obaritable uses, where the objects are sufficiently defined, and the person designated as trustee acquires a capacity to hold by subsequent act of incorporation, takes effect as an executory devise.
    The modes by which a private corporation in our country is dissolved, are: 1. By the death of its members; 2. Surrender of its franchises; and 3. A judgment of forfeiture for non-user or abuse.
    A legislative act reciting that a corporation trustee had lost its right, and authorizing a purchase, for the state, of its property, is a recognition of its existence as a corporation capable of contracting.
    Bill in chancery. From Muskingum. The plaintiffs, Peter Mills and others, claiming to be the lawful trustees of a charitable fund, created by the will of John Mclntire, bring this bill against the Zanesville Canal and Manufacturing Company, the executors of Mclntire, and D. Young and wife, late the widow of Mclntire, who hold or claim the estate, for an account. The case comes on upon a demurrer and answer of the canal company and of the executors of Mclntire, and on a plea-by the other defendants. Young and wife deny the validity of the bequest, and set up a right to the estate as heirs. The canal company and the ex-editors bold under the trust, and assert that its execution was committed to them by the will, and that it has been thus far faithfully administered.
    In 1812, an act was passed to enable John Mclntire and his associates to erect a dam over the Muskingum river. 10 Ohio L. 173. The preamble recites, as the objects, “ that great advantages-for water-works would be secured, and the navigation of the river' improved.” The law authorizes Mclntire and his associates to construct the dam in certain specified forms, cut a canal, and build a lock adapted to the passage of boats; to collect tolls; to condemn any adjoining land which they may “ find necessary for the purpose of making said canal, or any part thereof, the better to answer the objects of this act;” and it renders them liable to the suit of any person injured by their neglect.
    *In 1824, the association called the Zanesville Canal and Manufacturing Company was formed under this act, with provision lor a capital of $250,000, divided into shares of $500 each, and prescribing the manner of conducting the business of the company one hundred and eighty-six shares of stock were subscribed, of which-eighty-eight were held by Mclntire in his own right. The company was organized under these articles of association ; officers were appointed, and business commenced and continued, to improve thenavigation of the Muskingum river between Dresden and its mouth By section 27 of the act of incorporation, the time for the company to complete their dam, lock, and canal was extended until February 11,, 1835, and upon their failure, within this extended period, the Muskingum Navigation Company were authorized to finish, take possession of the work, and hold it until the money expended, and the interest accruing upon it, with ten percent, in addition, should be repaid from its profits. The dam, lock, and canal wore not completed within the time extended by the last-cited section ; and such forfeiture was incurred, by this failure, as it was intended to-impose. On February 19, 1835, a law was passed “authorizing the canal commissioners to take possession of certain property for' the use of the state.” 33 OhioD. L. 90. After reciting that the Zanesville Canal and Manufacturing Company had lost its rights to construct the canal and locks, by non-execution within time, it provides for the purchase from them of the real estate necessary for the dam, canal, and the profitable use of the water, by the state, and for the ratification of existing laws. In the event of inability ■•to make the purchase, it authorizes the canal commissioners to en'•ter and take possession of the land necessary for the canal, locks, dam, and profitable use of the water power.
    In March, 1836, an act was passed by the legislature of Ohio, •“to incorporate the Mclntire Poor School.” After reciting that property had been devised for this purpose, to be managed by the .'Zanesville Canal and Manufacturing Company, as trustees, and that it had. been represented that that company had ceased to exist, so that no persons are competent to execute the trusts, it cremates a corporation of five trustees, and confers the necessary powers •to carry the devise into effect: “ Provided, that nothing contained ■in this act shall be so construed as to affect the private or corporate rights of any person or persons, or change the will of the said .John Mclntire; but,' on the contrary, to carry into effect the true intent and meaning thereof.”
    The Zanesville Canal and Manufacturing Company organized *undcr the articles of 1812, and, accepting the charter of 1816, has in fact continued an organized and existing corporation until this time, managing its own and the Mclntire property, and •exercising its corporate functions.
    The plaintiffs are the corporation created by the act of 1836, ..and they bring this bill as well against the Zanesville Canal and Manufacturing Company as against the executors and the heirs of .Mclntire, to ascertain and declare the trust, and to carry it into effect. A demurrer to the bill having been overruled, the case ■stands for hearing in this court upon the demurrer of the Zanesville Canal and Manufacturing Company and of the executors of .Mclntire, contesting the plaintiff's right to the account, upon answers by the same showing the due performance of duties, and furnishing the materials for an account, if the property is deunandablo by these plaintiffs, and upon the plea of Young and •wife, denying the validity of the trust, and claiming the property .as heirs of Mclntire.
    C. B. Goddard and C. C. Convers, for the Zanesville Canal and Manufacturing Company and the executors of Mclntire:
    I. As
    ■••to the demurrer. On this posture of the case the first inquiry •proper to be made is, what are the facts before the court? In addition to the facts alleged in the bill, there are :
    .1. The act of February 24, 18L6, to incorporate the Zanesville 'Canal and Manufacturing Company, which is “declared a public 
      
      act, to be construed in all the courts and places, benignly and' favorably;” and therefore all its enactments are to be noticed by the court without being specially pleaded. Beatty v. Knowler's Lessee, 4 Pet. 152, 167.
    2. The act of February 21, 1812, to enable Mclntire and associates to erect a dam across the Muskingum river. Section 1 of tho act to incorporate the company refers to this act, and recites-its title at length; it thereby makes it a public act, which the-court will notice judicially.
    3. The facts that Mclntire had organized a company for the purpose of carrying into effect the act of February 21, 1812; that he-called that company the Zanesville Canal and Manufacturing Company, are shown by the same section 1 of the act incorporating' the company. Section 11 of the same act shows that Mclntire was an original subscriber and stockholder in this company, to the.amount of seventy shares.
    4. Tho several acts supplementary to the act incorporating the ^company,' being the acts passed January 17, 1817,15 Ohio Stat. 35 ; December 30, 1817, 16 Ohio Stat. 35 ; January 27, 1823, 21 Ohio Stat. 53; February 11, 1828, 26 Ohio Stat. 47; and February 19, 1835, 33 Ohio Stat. 90, assume, of course, the charaeterof the principal act, which they follow, and become parts of it, and are therefore public acts.
    It appears from the will that tho Zanesville Canal and Manufacturing Company, designated in it, is the company of that name,., in which the testator owned stock; and that, section 11 of the company’s charter shows, was the company associated to carry into-effect the act of February 21, 1812. Section 18 of the charter recognizes the old company, which has a corporate capacity conferred upon it by that act, as the same company designated by Mclntire.
    The case, then, upon these facts shows that Mclntire, while he was a member of the Zanesville Canal and Manufacturing Company, which ho himself had organized under the express author- . ity of tho legislature for objects as well of public concernment as-of individual enterprise, made his will, by which he directed the-whole of his estate to be ultimately vested in stock of that company, and the dividends thereon, upon the happening of the contingency specified in the will, to be applied to the support of a school for poor children, to be established in "the town of Zanes— ■ville, by the officers of that company, who were directed to select the children from within certain limits, well defined and established. That the legislature, not calling in question the validity ■ of this appointment, but, on the contrary, treating.it as well made, •afterward, by express and positive grant, vest in the same company, as incorporated, all the rights, titles, and privileges with ■which Melntire, in his will, had declared that that company should be invested. Unless the legislature had thus recognized and confirmed to the company the original appointment (which the company then and always asserted to be a valid trust), in the full and .ample manner in which it is recognized and confirmed by section 18.of the act of incorporation, it is not to be presumed that the ■ company would have accepted the charter, at the expense of abandoning that trust confided to their integrity, by their deceased '■companion and associate, in the execution of which, by them, in the very manner pointed out by himself, as they well knew, he had felt and expressed the liveliest interest.
    The amendatory acts above referred to, show that the charter ■was accepted and acted under by the company. 1 Charlt. 151.
    The period for which the corporation was created has not yet ^expired. It must be presumed, therefore, in law, that it still continues to exist. Neither the corporate existence, nor any of the franchises, can be made to cease, or be impaired, during the period for which the charter is granted, except by judicial proceedings, instituted directly against the company, charging a forfeiture and a judgment therein by a court of competent jurisdiction against the corporation. 6 B. C. 703 ; 13 Eng. C. L. 301; 5 Johns. Ch. 366, 379; 6 Cow. 23; 1 Hall, 191; 1 Paige’s Ch. 102; 7 Conn. 30, 46; 9 Conn. 536, 554; 4 Gill & Johns. 1; 3 Rand. 136, 142; 16 Serg. & Rawle, 140; 1 Blackf. (Ind.) 267; 9 Cranch, 42; 7 Ohio, 82, pt. 2; 8 Ohio, 548, 552; 1 Charl. (Geo.) 250.
    The bill contains no averment of any judgment of forfeiture .against the company; nor does it even aver that the company has ceased to exist" — it therefore fails to-show that state of facts, upon the existence of which alone the legislature designed the act ■of March 14, 1836, to have any effect; the authorities already cited show that the company continue to exist. The case of Ohio, ex rel. etc., v. Brice, 7 Ohio, 82, pt. 2, is- directly in point to ishow that an appointment by the legislature of a trustee to fill an -ioffice alleged to have become vacant by forfeiture, before a judicial 
      
      finding of the forfeiture is void; and this, too, in a case where the legislature possess the undoubted right of appointment.
    But the defendants contend that they have forfeited nothing by their failure to complete the canal and locks, except their right to construct these works, and the consequent benefit of the tolls arising from the same.
    The charter, by section 1, conferred three classes of privileges: 1. It incorporated the stockholders to do all things required of Mclntire and his associates, by the act of February 21, 1812 ; to establish water-works, etc. 2. It granted banking privileges. 3. It conferred the right to do and execute what “ it should be expedient or proper to do, subject to the rules, regulations, limitations, restrictions, and provisions thereinafter prescribedamong the “provisions thereinafter prescribed,” was the provision of section 18, authorizing and requiring the company to act as trustees under Mclntire’s will. These three classes of privileges were distinct and independent. One might be forfeited without affecting either of the others. A cause which would work a forfeiture of the right to construct the works, would have no necessary connection with the banking franchises; nor, on the other hand, would a cause of forfeiture, arising out of the banking operations, affect the right to construct *the works ; much less would a forfeiture of either, or both, oí the first two classes, affect the franchise of acting as trustees under Mclntiro’s will. No iranchise would be lost or impaired, by any cause of forfeiture, unless it were connected with, or dependent upon, the subject matter out ■of which the cause of forfeiture sprung. The trust franchise could not, therefore, be lost or impaired by the forfeiture of any other privilege granted by the charter, wholly unconnected with it. A forfeiture of a part of the franchises of a corporation, does not operate as a forfeiture of all, unless they are so blended as to be incapable of being separated. Much less would forfeiture to part only of its privileges, operate to destroy the existence of the corporation.
    But the several acts of the legislature show a waiver by the legislature of all forfeitures (if any had accrued), which would constitute a good delense, even in a quo warranto against the company.
    Upon February 11,1835 (the day on which it is claimed the forfeiture of the corporate existence of the company occurred), the state might, by proper judicial proceedings, instituted for the purpose, have reclaimed the franchises then forfeited. Tho right of the state must be asserted by judicial proceedings in the proper-tribunal. The legislature could not exercise this judicial function of determining the. forfeiture. Merril v. Sherburn, 1 N. H. 99. The opinion of the court in this case is a long and able one, and we commend it to the careful consideration of the court.
    But the state might, instead of enforcing, elect to waive the forfeiture ; and the defendants contend all forfeiture has been waived by the stale, as is shown by tho act of February 19, 1835. By that act (passed after the pretended forfeiture occurred) the legislature authorize and require the canal commissioners “to contract with and purchase from the Zanesville Canal and Manufacturing Company such real estate belonging to said company.” etc. Sec. 1.. Section 3 provided that the leases then held by the company, should, on the purchase being made, bo transferred to the commissioners. These provisions show that the legislature then considered the corporation in being, capable of being contracted with,, and directed their agents to purchase from tho company a part, of their lands.
    Here, then, we have a legislative recognition of the continued existence of the company, and of its corporate powers and franchises. The case of the People v. Manhattan Co., 9 Wend. 379, 380, is full to tho point, that, if even the entire charter had been forfeited, be'ore the passage of (he last-mentioned act, the legislative-^recognition therein contained of the continued existence ol the corporation, amounts to a-waiver by the state of all forfeitures which might, before that time, have accrued — and constitutes-a complete bar to a quo warranto. In that case (which was a quo warranto) the corporation were allowed, by their original act of 1799, the period of ten years for the completion of the work required of them. In 1808, the time was extended for ten years-more; which, of course, expired in 1818. The court say, if the act were not complied with then (that is, in 1818), it could not beat all. The forfeiture, or the right of the state to enforce the forfeiture, was then complete; and the corporation having since, in solemn and formal acts of tho legislature, been recognized in repeated instances, the state must now be taken to have waived the forfeiture. The same principle is sustained in North Hempstead v. Hempstead, 2 Wend. 109.
    
      The complainants must, therefore, fail on the demurrer. They assort a right, under their pretended act, but wholly fail to make good the representations, upon the faith of which alone the alleged right was acquired. As all the enactments of the'act of March 14,1836, depend upon the preamble, and profess to be only justified by the facts there stated, it would seem that when it appears that the general assembly were imposed upon, or mistaken, as to the main fact, all the enactments based upon it would fall to' the ground. No other rule is safe in a country where private statutes are continually passed, based upon representations, the truth of which the legislature does not, and in most instances can not know. It is for the court to determine, upon a claim set up under the private act, whether that state of facts existed, upon which the legislature predicated the act. Le Clerq v. Gallipolis, 7 Ohio, 221, pt. 1.
    Look, then, for a moment, at this preamble. After reciting that Mclntire had devised his estate for the support of a school, it proceeds with the admission that he, “by his will, appointed the president and directors of the Zanesville Canal and Manufacturing Company as trustees thereof;” and then sets forth (not that the company has ceased to exist), but that “it has been represented to the general assembly that the said canal and manufacturing company has ceased to exist, by that, or any other'corporate name; by means wheieof, no person or persons, or body corporate, are now competent to perform and execute the duty and exercise the authority required of said company as trustees as aforesaid, and to carry into effect the said devise, according to the true intent and meaning of the testator.” “ Therefore," “be it enacted,” etc.
    *This preamble shows that the company once existed; otherwise it could not be said to “have ceased to exist;” and that it was once competent to exercise the authority required of said company as trustees; otherwise it could not be said that by means of the company ceasing “to exist,’' “no person or persons, or body corporate, was now competent to perform the duty and exercise the authority required of them as trustees.” It also recognizes both the validity of the original appointment and the confirmation of that appointment, by section 18 of the charter of this “ body corporate,” for it expressly declares that Mclntire, “by his will, appointed the president and directors of the Zanesville. Canal and Manufacturing Company trustees,” and that said company was “required" to execute the duty and exercise the, authority as trustees. How '“required?” Why, by section 18 of their charter.
    Can it be supposed that the legislature would ever have passed the act of March 14, 1836, except upon the belief that all the facts represented to them were true? Would they have passed the law if they had believed that all these representations, upon which their interposition was invoked, were false? The rights vested in the company by section 18 of their charter, can not be taken away, or impaired by any legislative enactment. We refer to the following cases — and first to the case of Dartmouth College v. Woodward, 4 Wheat. 518; second, to Allen v. McKean, 1 Sumn. U. S. C. 276, a case decided in May, 1833, in the United States circuit court for the district of Maine, which involved the constitutionality of an act of the legislature of the State of Maine, in reference to Bowdoin College. In delivering the opinion of the court, Mr. Justice Story says, the “founder of the college had a right and interest in having the funds perpetually applied to the objects of the institution. As founder, he was entitled to the visitatorial power over the college, and having delegated that power to certain trustees and overseers in perpetual succession, as his chosen substituted agents and visitors, he has also a right and interest in having that power perpetually exercised, by the very bodies and by none other, which he has constituted for this purpose. Nothing is clearer in point of law than the right of the founder to have his visitatorial power exclusively exercised by the very functionaries in whom he has vested it. It is the very substratum of his donation. Id. 305. This is not all; the founder has a right to have the statutes of his foundation, as to the powers of the trustees, strictly adhered to, unless so far as he has consented to any alteration of them. Again he says, “it would hardly be contended *that the legislature possessed a right to substitute itself, in the management of the college and its interest, for the charter boards; and if not, how can it confer such an authority upon other persons ?” Id. 312.
    We now ask the attention of the court to a case decided by the Supreme Court of .the State of Maine, in April, 1834 — Trustees of New Gloucester School Fund v. William Bradbury, 2 Fairfield, 118. This and the preceding case were less strong than the case now before the court, inasmuch, as in both cases, the government was the founder, and in this case the founder was a private individnal. In other respects the case from Fairfield’s Reports is almost exactly similar to that which we are now discussing; so much so, indeed, that we are almost led to believe that the framer of the n,ct of March 14, 1836, borrowed his ideas and much of his language from the very statute which the Supreme Court of Maine declared to be unconstitutional. If the case is regarded as authority, it is perfectly conclusive in the case now before the court. The language of Judge Hitchcock, in delivering the opinion of the ■court in the case of the State of Ohio v. Commercial Bank of Cincinnati, 7 Ohio, 126, 131, pt. 1, illustrates and enforces the same great constitutional principle. See also 4 Gill and Johns. 1, in which the same doctrine is fully discussed. Among other positions established by the preceding cases is this, that the office of a trustee of a school, or college, with or without compensation, is .a valuable office and franchise, of which the legislature can not rightfully deprive any person or body corporate. See also 6 Conn. 532; 7 Ohio, 82, pt. 2.
    Upon a former argument of this case,- the counsel for the complainants insisted that the act of 1836 was designed merely to incorporate the cestuis que trust, and epable them to call the lawful trustees to an account. To incorporate the cestuis que trust / Why, who ever before heard that Peter Mills, John A. Turner, and their confederates were “ the poor children of thetown of Zanesville V No such thing. The act does not incorporate, was not designed, “to incorporate the trust.” It does nothing more than incorporate strangers, who are now shown to be mere intermcddlers. 1 Sumner, 301. This view of the case must have occurred to the counsel, not only after the passage of the act, but even after the filing of the bill. It is utterly inconsistent with the objects set forth in the preamble and every enactment in the statute. An authority to -call the lawful trustees to an account, does not require that the persons upon whom such an authority is conferred should be substituted, for the lawful trustees ^should be invested with all their property, all their powers, and all their rights, nor that they ■should have power to receive donations from other sources. Besides, it was not necessary for the legislative power to be invoked for so small a purpose. “ Wee deus intersit, nisi dignus vindice nodus.” Ample remedies existed before. Where cestuis que trust are numerous, a part may file a bill for themselves and others. Manning v. Thesiger, 1 Sim. & Stu. 106; 2 Sim. & Stu. 67; Story’s Eq. Pl. 97, 115, 117. The infancy of thó cestuis que trust did not. render the legislative interference necessary, for a prnchein ami could be appointed; their poverty could present no obstacle, for the philanthropy which prompted the statute of 1836, would doubtless have been exercised on behalf of the poor children of the town of Zanesville in any form in which it could have been made-available. If these complainants have a right to call for an account at all, it is merely incident to the great powers with which-the act of 1836 vests them. No express authority is given theta by that act to call the canal company or the executor of Mclntire to an account. It is therefore incidental only, and if the principal fall, all the incidents fall with it. This was unquestionably the view taken by the counsel who wrote the bill. Its whole scope and design, its every allegation and prayer, are at variance with-the lame afterthought on which it is now attempted to maintain this caso. Mit. Pl. 39, 67, new ed.; 5 Sch. & Lef. 9; 2 Ves. Sen. 299; 2 Atk. 141.
    But if the legislature intended by the act of March, 1836, to give the complainants any such power of calling to account, except as-incident to the greater power of taking the property, they two-years afterward changed their views and gave all this power to the superintendent of common schools and the prosecuting attorney. See section 43 of the common school law, passed March, 1838, 36 Ohio L. 35, 36, where ample provision is made for calling trustees to account, and under which the defendants have been called upon by the superintendent to account and report to him.
    It was claimed by the counsel for the complainants (who framed, the bill) in the court below, that the company had lost its existence by the failure to complete the canal and locks by February 1,, 1845; that the forfeiture became ipso facto complete on that day, without any judicial proceedings against the company; that there were then no trustees to take charge of the charity, and that therefore it was proper for the legislature to step in and supply the ^vacancy. JEfedid not call in question the validity of the-original appointment, nor of the legislative appointment contained in section 18 of the company’s charter. This was reserved lor his-associate counsel, who on the same occasion, asserted that the original appointment being of officers of an unincorporated company, was void ; and that, as section 18 conlerrcd on the company only the samo powers granted by the will, that section conferred no-•rights; and that the slate, exercising the high prerogative right ■of parens patriu, could seize the charity and administer it in its ■own way. But can it be doubted that the. legislature, when it granted the charter, contemplated giving to the trustees of Mcln■tirc’s own choice a corporate capacity, and to do all in the power of the legislature toward promoting his munificent design. Even if the high, illimitable, transcendent power of parens patria has •boon transplanted to our soil; if the flowers of kingly prerogative •unfold themselves from our republican stock, surely that power has expended itself in the present case, by the full, broad, comprehensive grant to this company of “all the powers, rights, titles, -and privileges invested by the last will and testament of the said John Mclntire in said company.”
    Docs not the legislature show, by this very provision of section 18, that it then considered the orginal appointment valid ; that it was then disposed to sustain it, if in its power to do so, and to promote the benevolent designs of the testator, by investing the trustees of his own choice, with the privileges and immunities of a corporate character and the conveniences and advantages of corporate action ? It would not then violate the known wishes and ■declared intention of the testator as to the persons who should be the almoners of his bounty; for the mode in which it was to be ■dispensed, they doubtless regarded, in the emphatic language of •Justice Story, “ as the very substratum of the gift." It is not, therefore, to be presumed, that the legislature would havo passed the act of' March 14,183G, except for the gross misrepresentation upon which, as already shown, its enactment was procured.
    The course of the complainants, and their anxiety to carry the ‘benevolent devise of Mclntire into effect, in their own way, have started the question whether the bequest is valid. Two of the de-. fondants, for whom wo do not appear, assert that the bequest is void, and that they are entitled, as heirs at law of Mclntire, to all the property. We contend that the devise is valid, and that the •original appointment by the will was a good one. And this be■comos a most grave and important question, since the intimation •of' the Supreme Court of the United States, in the case of the Baptist Association v. *Hart’s Ex’rs, 4 Wheat. 1, that the prerogative right of parens patria does not exist in the United •States. For then, if the original appointment can not be sustained, the charity is gone forever. At the death of Mclntire, this company was associated for the purpose of manufacturing and. banking — the power to bank, before the act of incorporation, being recognized by acts of the general assembly. 2 Chase’s Stat. 868, 904. By his will he directs his executors to invest the proceeds of all his property in the stock of this company. Of the-profits of this stock, his executors were to receive from the company one-half, to be by them paid over to the widow — the other-half was to be paid, by the president and directors, to the daughter of the testator. Thus far the provisions of the will are such, that the intention of the testator may bo carried into full effect, without violating any rule of law. A testator may direct that the survivors of a firm, of which he was a member, shall carry on the-business after his death. Col. on Part. 120, 121; 7 Pet. 586. If so, why not likewise direct what disposition shall be made of the profits, to which his interest in the concern may be entitled ? The direction that the company should pay the half to Amelia Mclntire, was as good as that the executors should receive the other half. And even if the will had stopped, after directing the investment,, the executors would, by law, in the absence of all directions to that effect, be entitled to receive the dividends for the purposes directed by the testator. There was no legal impediment in the-way of the agents of the company — the active partners — thopresident and directors, paying over the dividend to the executors, or legatee, as directed by the will. Immediately on the death of Mclntire, the company became entitled to require that the investments should be made as directed by the will, and to hold and retain the half directed to be paid to the daughter, until she should personally apply for it. In principle there can be no difference-between the testator directing the company to pay the dividends-to his daughter, and directing them to pay the same for the support of a school, unless it arise from the uncertainty of the objects in the latter case. But that uncertainty is, in this case, entirely removed,, by the power of selecting the objects of the charity being expressly vested in-the company; a selection to be made from a certain class, within certain limits, known and established by law — the-limits of the town of Zanesville. Id cerium est, qUod cerium reddi potest. Without this power of selection, the charity could not be sustained. A case reported in 4 Dana (Ky.), 355, 356, was decided, by the .court of appeals of Kentucky, as late as the fall of 1836, and is strikingly ^analogous to the present ease, in the provisions of the will.
    The court sustained the charity on the ground that it was a valid trust, and could be sustained in equity ; holding at the same time, that although that state had adopted, while connected with Virginia, the statute of Elizabeth, and never repealed its provisions (having separated from Virginia before its repeal by that state), the court did “not admit that the commonwealth, as parens patria, can rightfully interfere, unless there be an escheat to her.” The court say, “ rights here are regulated by law, and if any person have a claim to property, ineffectually dedicated to charity, the commonwealth has no prerogative right to decide on that claim, and dispose of the property as the king of England has been permitted to do” — -pp. 365, 366. “ The prerogative cases jn England are not judicial. We are satisfied that the cy pres doctrine of England is not, or should not, be a judicial doctrine, except in one kind of cases; and that is, where there is an available charity to an identified or ascertainable object, and a particular mode, inadequate, illegal, or inappropriate, or which happens to fail, has been prescribed. In such a case a court of equity may substitute or sanction any other mode that may be lawful, or suitable, and will effectuate the declared intention of the donor, and not arbitrarily, and in the dark, presuming on motives or wishes, declare an object for him,. A court may act judicially as long as it effectuates the lawful intention of the donor” — p. 366. “Yet this case is of that class over which the court of equity may take cogninance, and in which such court, acting judicially, may act effectually in upholding and promoting the bounty of the testator, according to his declared and unambiguous intention, and without violating any rule of law,principle of justice, os dictate of public policy ” — pp. 366, 367. We beg to refer the court to the whole opinion of the distinguished chief justice in this case: 'for if it be considered as law by this court) and the reasoning is, to our minds, irresistible), it decides the case now before the court; sustains the original appointment; declares that the regal prerogative, and other curative powers inherent in the crown of England, have never taken root in this country; that the court can, by virtue of its judicial powers, uphold and promote the bounty of the testator, and give effect to his intentions, in the very manner pointed out by the will, and through the trustees chosen by 
      
      himself: so that if no charter had ever been granted to the company, they might well execute the trust.
    In support of the validity of the devise we rely on the following authorities: 3 Ohio, 498, 502; Amb. 524; 12 Mass. 537; 16 Pick. 107; 7 Vt. 241; 3 Pet. 101.
    *The court will observe that the charitable devise could not, and did not, take effect until the death of Amelia Mclntiro, in 1820, prior to which time the company was incorporated, and had full capacity to take. The following language of Thompson, Justice, in the case last cited, 3 Pet. 143,144, seems directly in point: “It is in general true, that where there is a present, immediate devise, there must exist a competent devisee and a present capacity to take. But it is equally true, that if there exists the least circumstance, from which to collect the testator’s contemplation, or intention, of anything else than an immediate devise, to take effect in presentí, then, if confined within legal limitation, it 'is good as an executory devise.” It is true, that the court in Massachusetts, in the case in 16 Pick. 107, above cited, held that the statute of 43 Elizabeth, cap. 4, is in force in that state, and the reasoning of the court would go to show that that statute is in force here. But, be this as it may, the case of Inglis v. Trustees of the Sailors’ Snug Harbor, in 3 Pet. 101, is decided upon grounds wholly independent of that statute, and is amply sufficient to sustain the present devise, and to vest the execution of the trust in the Zanesville Canal and Manufacturing Company. In this view of the case, we ask that the demurrer be sustained, and that the complainants’ bill be dismissed.
    2. But as the only reason ior filing the demurrer was to savo the expense of answers, and that expense has now been incurred, in consequence of the decision of the common pleas upon the demurrer, and the order of this court dismissing the appeal from ¿hat decision, it has now become a matter of indifference to us, whether the court consider the case upon the demurrer, or upon the answers alone. Upon the case standing upon the answers, we only refer the court to the answers themselves. They deny most positively and explicitly every allegation and every charge, impeaching, in any degree, their integrity, or fidelity, in the execution of the trusts confided to them, and show that the charity has been honestly, faithfully, and prudently administered. They show that the company still exist, in the full exercise and enjoyment of all. their privileges and franchises, untouched and unimpaired — in the faithful discharge of all their duties as trustees of Mclntire’s bequest — selecting the objects of his charity, aud dispensing his bounty through the almoners of his own choice, and in all things faithfully discharging the high and responsible, although vexatious and troublesome duties of their trust. They have taken upon themselves to establish the school under the will, although the widow of the testator is still living, and *it may be doubted, whether they are authorized by the will to establish it, until after the death of both the widow and the daughter; for before ■the decease of both, “ all the profits, rents, and issues of the stock” can not, as directed by the will, be applied to the establishment of the school.
    Upon the whole case we ask that the complainants’ bill bo dismissed, with costs. John Mclntire, in his lifetime, was the master of his own property. He had a right to make a will, giving it to whom he pleased. He bestowed it in charity, and he selected his own friends and associates as the administrators of that charity. The proposition is a monstrous one — it borders on moral forgery — ■ that all his wishes, in this respect, should be disregarded; that a now will should now, after his death, be made for him by strangers, whom ho knew not, to whom ho was not known ; that the maa■agemont of his estate should pass from the hands of those to whom ho specially confided it, in whose judgment and integrity he had entire confidence, and be consigned to the keeping of those whom ho did not select, whose future intermeddling with his estate, could he have foreseen it, might, as it most assuredly would, have prevented this munificent bequest altogether. “ Hlemosynce ad mentem donatoris preecipue servand.ee."
    
    T. Ewing, for Young and wife, who make defense by plea :
    We contend that the devise of the trust estate, ¿ought to bo enforced by this bill, is void. 1. Because there is no trustee whom equity can recognize; and, 2. Because the cestuis que trust are uncertain, and no mode is pointed out by the will whereby they can bo legally designated. The Zanesville Canal and Manufiicturing ■Company being an unincorporated association of individuals, the members of which were continually changing, was incapable of receiving or executing a permanent trust. A trustee must bo a person certain — one who can be called to an account by a court of equity, and compelled to execute the trust specifically, or aocount for its breach. By the terms of this will the president and directors of this unincorporated company are to apply annually, forever, the proceeds of the estate to the use and support of a free school. They are forever to select and fix upon the objects of the testator’s bounty, and as there is no devise over, and no mode designated by which any part of the trust that, by any chance, they may leave unexecuted, is to be taken up and performed, they can not enter upon the execution unless, in contemjfiation of law, they can perform it to *the last. It is true, it is not the company, but the president and directors of it, that are named as trustees; but this, instead of obviating the difficulty, makes it, if possible, the greater. The company, as a company, are in nowise concerned in the execution of this trust, and in nowise bound for its faithful performance. It is a duty thrown upon the president and directors, whosoever they may be, by virtue of their situation or office in said company, and whenever a director is removed and another appointed, the trust is in like manner transferred. This is the language, and this the manifest intent and purpose of the will. Now, the president and directors of that company had no being, as recognized by law. They could have no heirs and no successors. The individuals who should follow those who had gone before them in the execution of that trust (supposing it to vest) would be in no respect responsible for the acts of their predecessors, and those who had ceased to be directors could not be hold liable, as individuals, for what had been done in their psewdo-official capacity. Tlie trust, therefore, could not be assumed or executed by the president and directors of this-company; and by the will, those who were directors at the time of the testator’s death, could not receive the trust in their individual capacity. The language of the will is clear, distinct, and intelligible in this, if in nothing else. Whatever trust is attempted to be conferred is upon the officers of the company as such. and not upon the individuals who may chance to be such officers at the time of the testator’s death. “ The president and directors of the company are annually, forever, to appropriate all the profits, rents, and issues of my stock as aforesaid, and all my estate of whatever kind the same may be, to the use and support of a poor school,” etc. It is not the individuals who may be president and directors, and their heirs, that the testator has attempted to clothe with this trust forever, but the officers of this company, whom he erroneously supposed could have perpetual succession. The clause-in the will next preceding this devise, and connected with it, is-further proof of the intent to vest the trust in the president and directors of the company, as an association. It is in these words : “But should my daughter, Amelia Mclntire, die without an heir- or heirs of her body, then my house and lot, with the premises, etc., is to be held in fee simple by the company before described,, for the use and occupancy of the president of said company, he-paying into the fund aforesaid, for the use hereafter described, a. reasonable rent, to be fixed by the directors for the same; and the-'president and directors of the said company are annually and forever to appropriate,” etc.
    *This company shall have the house in fee, that is forever, for the use and occnpancy of their president. He shall pay therefor an annual sum, to be fixed by the directors — all looking-to perpetuity — and the rent so assessed and received is to be paid into the fund, which fund, made up in part of the rents, but, chiefly of the issues and profits of his stock, is to be applied annually, forever, by the president and directors of the company, to the use and support of a poor school. If, by the terms of the-will, the trust were to have vested in their officers for a limited time only, and if a mode had been provided by the will for the-creation or for the coming into existence of a future trustee, in whom the trust might vest, this difficulty would have been obviated, and it might have been held (though not without violence-to the language of the will) that the title of president and directors was a mere designation of the persons who were to take, the trust might have passed to a future devisee capable of taking it as an executory devise. It is a question to the court, as a matter of construction of the will itself, to find in whom and how the language of the will, admitting it to be effective, as expressed,,, does vest this trust. The question must be tried upon precisely the same principles; the fact and tryth must be applied to or elicited from the paper in just the same manner as if the president- and directors named were a body corporate, capable of taking, and the contest were between those who are now directors and those who were directors at the time the devise took effect, but who claimed to hold the trust as individuals. The question is: What is the truth of the matter in fact and in law — not, as has, sometimes been supposed, what means are there of evading the-
      
      ■truth? If the president and directors had, at the time of the ■devise, been a body corporate, having perpetual succession, and ■capable of taking under this devise, who could for a moment contend that it was not to them, in their corporate or aggregate capacity, but to them individually, that this trust forever was given? Thus, it appears to me, stands the question or principle, and so ■are the authorities. In Baptist Association v. Hart’s Ex'rs, 4 Wheat. 28, Chief Justice Marshall says: “Can the bequest be taken by the individuals who composed the association at the ■death of the testator? The court is clearly of opinion that it can not. No private advantage is intended for them. Nothing was intended to pass to them but the trust, and that they are not authorized to execute as individuals. It is the association forever, and not the individuals who, at the time of his death, might compose the association, and their representatives, who are to manage the perpetual fund.”
    *In Greene v. Dennis, 6 Conn. 292, the devise was in these words: “ I give to the yearly meeting of the people called Quakers, ■of New England, my farm in Pomfret, that I bought of Clark and Nightingale, the net income of which is to be appropriated in aid of the charitable fund of the boarding-school established by Friends in Providence; to them, the said people called Quakers, .and their successors in faith, forever.” In giving the opinion of the court on this devise, Ch. J. Hosmer says, page 300: “Two positions, in my opinion, are indisputably certain. The first is, that it was the intention of the testator to devise the estate in -question to.the yearly meeting, and not to the individuals composing it. Hence, it is given to this assemblage ‘and, to their sue■■cessors.’ Perhaps this distinction is unimportant, for whether the devise was to the yearly meeting or to the members constituting it, ■the legal result will be the same. The devise, in either event, -was not to any certain individuals, but to the members of an assembly meeting together annually, and to such other members of this variable body, in endless succession, as should by delegation ■compose it. There was no antecedent certainty that those who were the members of the yearly meeting, at the death of the devisor, would continue such a single year. But, in all probability, there would be an annual change of at least part of the members, ..and beyond all doubt, at no distant period, they would be all .swept away from the stage of action. And what decisively shows the devisor’s intention, anticipating this fluctuation, be provides-’ for the performance of the trust by designating the successors of the yearly meeting, and treating that body as if it were a corporation. It is obviously ojpposed to the intention of the devisor to construe the devise as vesting an estate in the individuals of the yearly meeting, being members of it at bis death, and then continue the estate in them after they had ceased to be members. The-words of the devisor give the property to the members of the yearly meeting and their successors — unquestionably intending that., none but members should have any part in it, and the nature of the ease speaks the same language. It was the testator’s object to-execute a perpetual trust; and this he would have done if the-yearly meeting was a corporation, capable of becoming trustees of the estate devised. But if the individuals existing at his death, and being members of the meeting, were invested with the land, devised in fee simple, what would become of the trust on their-ceasing to be members? Scattered over a wide extent of country,, without any necessary conventional meeting, their duty as-trustees th.ey would be incapable of ^performing. This is the most favorable view- of the subject. Soon by death some of the individuals would leave no heirs; others would leave numerous minor children. The number of trustees would increase astonishingly, and the difficulties would every moment thicken, and.' become more and more insuperable.
    “ The second position alluded to is, that the testator's intention is repugnant to the rules and principles of law. This point is too-clear to require discussion. A corporation aloae, authorized by the sovereign power, and vested with perpetual succession, is capable of fulfilling the testator’s intention” (p. 301).
    This conforms to the well-known and well-settled principles of law, never departed from, except in a few cases, where the object. was specially favored by the courts.
    Mr. Justice Story, in his dissenting opinion in the case of Inglis v. The Sailors’ Snug Harbor, 3 Pet. 146, says, with great foree- and truth: “ The court is to look into the terms of the will, and. to construe it according to the intention of the testator; that intention has been justly said to constitute the pole star to guide courts in the exposition of wills; where the intention is once-fairly ascertained, it is wholly immaterial that it can not be car- • Tied into effect by the principles of law, for our duty is to interpret, not to make wills for testators.”
    I take it, then, as established in the first step of this investigation, that the devise was to the president and directors of this unincorporated association. Whosoever might,from time to time, compose such association, or be their officers, they were the trust■ees; they were clothed with power, not only to execute the trust, but'to select the objects of the testator’s bounty; and the devise is on general principles invalid, if it depend on their capacity to receive it. Pressed by the strong necessity imposed on them by the explicit terms of this clause of the will, the counsel of the Zanesville Canal and Manufacturing Company attempt to support this devise, as a trust, or duty, devolved by the will on the “ agents of the company — the active partners — the president and directors,” that (the investments being made pursuant to the directions of the will) they should pay over, one-half the profits of the stock to the executors, one-half to Amelia Mclntire, during her life. “ And in principle,” say they, “there can be no difference between the testator directing the company to pay the dividends to his daughter, and directing them to pay it in support of a school.”
    
    This view of the matter tends only to confuse; it ingeniously obscures *the question, but it does not at all explain it; much of the property of the testator was in truth, at the time of bis death, vested in the stock of this company, and the proceeds of this investment was in part the subject of this devise ; but how did that situation of the property render partners in that association, whether active or passive, agents or directors, more capable of receiving, or executing a trust, forever, in the character of partners or agents? If they were at all capable of either, it is no matter where the fund comes from that is to be placed in their bands as trustees. It is not their capacity to receive, or to sue for .and collect, that is alone in question; for if they can hold the trust fund, it being in their hands, and can execute the trust, their capacity is sufficient, and they can sue for and collect, as a necessary incident to those powers ; nor is it by virtue of any directions to them, or trust conferred on them in the will, that they must pay the money, the profits of the stock, to Amelia Mclntire, during her life; but it is by virtue of the devise to her and for her benefit. This devise gave them no rights, but vesting the profits of the ..stock directly in her, it declares further, that the dividend shall be paid to her, and not to pass through the hands of the executors. It is not necessary to inquire how far this provision in the will could be sustained by law; or what would be the consequence following the death of one partner in a firm, or association, when there is no provision in the articles for admitting the executors or devisees of the deceased partner to unite in carrying on the business of the firm. It is very certain that the surviving partners could not, even though the will should direct it, compel an investment of the funds of the decedent in their joint stock; for such provisions not being made pursuant to articles with them, nor for their benefit, but for the benefit of the heir or legatees, the latter alone have the option to compel the executors to attempt the investment, and the surviving partners would be in nowise bound to admit the representatives of the decedent to subscribe or purchase stock, or join at all in conducting the business of the partnership. To this effect are the cases cited. Coll. P. 120, 121; 7 Pet. 586. But the determination of this question would by no means effect the case, for the partners, or any select part of them, can no more be trustees forever of a fund arising out of business carried on by themselves, than they could if it arose elsewhere. The law makes no difference'as to the origin of the fund; and the fact that it arose out of profits made by them, of the property of the testator, would only furnish another cogent reason in equity, why they could not as trustees administer and apply it. *It would increase the difficulty of bringing them to an account in equity, as trustees, while tho equitable superintendence would become the more necessary, because of the complex duties of the trustees, and the complex relation in which they would stand to the fund and the individuals for whose benefit it was intended. See also Year Bk. 30; 10 Coke, 266 ; Cro. Eliz. 363.
    But the case, in th-is aspect of it, is crowded with impossibilities. The partnership, as counsel contend, is to be carried on for the benefit of the devisees; not for a series of years, a time of fixed duration, in which it is permitted to a testator to control the disposition of his property, but forever. The “ agents” of the company, or its “active partners," or its “president and directors,” are to be trustees of this part of the property, also, forever; and they are forever to select the objects of the trust. Cast out of view, for the present, the special law of charities, and upon the principles of law and equity, judging and deciding as between man and man, is there, I ask, a valid trust vested in those partners, the president and directors, and those who have taken or may take, by succession, tho partnership fund, and the control or direction of that partnership ?'
    It is clour, on authority as well ás principle, that there is not;, and, indeed, tho English statute of charitable uses would avail nothing to the trustees named in the will. They could not clothe-themselves with the trust, even under the statute; and if tberewas a good trustee, capable of receiving and executing the trust, it would be void on goneral principles, because the cestui que trust is uncertain.
    Arid touching the cestui que trust, in the case of Morris v. Bishop of Durham, 9 Ves. 399, a case decided on general principles, because it did not come within the statute of Elizabeth. An estate was devised to the bishop, with directions to dispose of the ultimate residue, “to such objects of benevolence and liberality m-be shall in his discretion most approve.” On which tho master of the rolls, whose opinion is afterward revised and confirmed, says : “ That this is a trust, unless it be of a charitable nature, too indefinite to be executed by tho court, has not been, and can not be denied. There can be no trust over which a court will not assume-control, for an uncontrollable power of disposition would be ownership and not trust. If' there bo a clear trust, but for uncertain objects, tho property which is tho subject of the trust, is undisposed of, and the benefit of the trust must result to those to whom the law gives the ownership, in default of disposition by tho former-owner. But this doctrine does not hold good with respect to trusts lor charity. Every other trust must have *a definite object.. There must be somebody in whose favor the court can decree performance.”
    
    Those ingredients are wanting here. There was no trustee who could take this trust. None who was capable of holding and transmitting it in succession, according to the devise, forever. And there-was no cestui que trust. The “trust” had no “definite object.” There was nobody “in whose favor the court could decree performance.”
    
    “Can this devise be sustained as a charity? How stands the law on this subject? The territorial legislature, in 1795, adopted a statute, once in force in Virginia, which, as modified, declares, that the common law of England, and the statutes made in aid of the common law, prior to the fourth year of James I, shall be the law of the territory. This statute, after several amendments, at different periods, and a re-enactment in 1805, was finally repealed in 1806.
    This sequence of legislation negatives any supposed adoption in whole, or in part, of the English statutes, or of any compound of those statutes with the common law, when the.statutory ingredient can be ascertained and' separated. Hence our court has holden, “That the statute of uses, if ever in force in Ohio, became so by the statute of 1795 or 1805, and was repealed by the statute of 1806.” Howell v. Cin. Ins. Co., 7 Ohio, 276. That statute, therefore, and the other statutes which stand in the same category, are not in force in Ohio. 3 Leigh, 450 ; 4 Wheat. 1.
    Rejecting, then, the authority of the statute of Elizabeth, and the decisions under it, I will consider how far this can be sustained as a charitable bequest, independent of the statute and of those decisions. And first, I would distinguish it from eases of another class which bear to it some analogy, though resting on very different principles ; namely: Dedications to public and pious uses. This will be the more necessary, as I am advised that the decisions in this class of cases will be relied on as governing or bearing upon this ease.
    Dedications to public uses, if valid, create estates strictly legal; they consist in the transfer either of the title, or the possession of property at law, and they depend for their validity on the application of legal principles, the most common and the most cogent of which is the doctrine of estoppel; they involve always an immediate abandonment of the property by the owner, that it may be taken and applied to the specified use; and they consist in grants by the sovereign, or by an individual, for the benefit of a community, of which he is the founder ; or dedications of land for the use of a *ehurch or burial ground, the spot being marked off, and the possession yielded by the grantor, and received by the grantee, and applied to the particular use; or, of land set apart for a road or street, by the owner, the public being inducted into the use.
    The Town of Pawlet v. Clark et al., Cranch, 292, is of this class. The king, by his letters patent, incorporated the town of Pawlet; divided the land in said town into sixty-eight shares, and granted one share “for a glebe for the church of England, as by law estab
      
      lished in said town. The points decided as law seem to be these : 1. That the church of England is not a corporation, but one of the estates of the realm, and is incapable of receiving a grant; but that any particular local church, with its parson or rector ■inducted, having the cure of souls, was a corporation, and could well take. But as by the ecclesiastical regimen, there could be no induction of a parson without a church (edifice), and no church without an endowment of manse and glebe,'the dedication or grant, to the use of the church generally, preceded the creation of the corporation in which it was to vest. The allotment of the ground, and the erection of a cross thereon, was held a livery of seizin to the future church; and the common law, in deference to the canon, held the fee, in abeyance, ready to vest in the donee, whenever it should come into being. But this doctrine evidently arises out of the intimate connection of church and state in Eng-' land, and it is so held for the purpose of giving to the laws, which govern each, mutual adaptation and harmony.
    Bently v. Kuntz, 2 Pet. 566. In 1769, Bontly and Hawkins laid out an addition to the town of Georgetown, in the colony of Maryland, and marked one lot on the original plan, “ for the Lutheran church.” This lot was used by pei’sons of that persuasion, as a place of burial, from the time of the dedication, though there was not at that time, nor afterward, any incorporated Lutheran church in Georgetown, capable of taking the grant. After sixty years’ occupancy of the lot as a burial ground, the possession was disturbed by the heir of the grantor, and a bill in equity filed to enjoin him. On the trial of which, the question of legal right to the possession and use came up. Justice Story, in delivering the opinion of the court, says : “ If the appropriation is to be deemed valid at all, it must be upon other principles than those which ordinarily apply between grantor and grantee, and we think it may be supported as a dedication to public and pious uses. The bill of rights of Maryland gives validity to ‘ any sale, gift, lease, or devise of any quantity of land not exceeding two acres, for a church, meeting, or other house of worship, *and for a burial ground, which shall be improved, enjoyed, or used only for such purposes.’ To this extent, at least, it recognizes the statute of Elizabeth, for charitable uses, under which, it is well known that such leases would be upheld, although there was no specific ¡grantor or master. In the case of the town of Pawlet v. Clark, this court considered cases of- appropriation or dedication of property to particular or religious uses as an exception to the •general rule requiring a particular grantee, and like the dedication of a highway to the publicand he declares it a case “ in the protecting power of a court of chancery.”
    This case might well rest upon the “ clause in the bill of right,” ■making a gift of land “ for a burial ground,” valid without any grantor, for the designation oh the plat was sufficient gift, or grant, if the grantee be capable of taking; or it would be equally valid by analogy, to a common or public highway, on principles laid down by the court, in the case of White’s Lessee v. City of Cincinnati, 6 Pet. 431-498. That case was in substance as follow's : The proprietors of Cincinnati, at the time of laying out ■the city, left a gore of land adjoining the river, which was called ■a common, and so marked on the original plat of the town. The common remained vacant for many years; the public passing ov.er it at pleasure. In 1802, the' town was first incorporated; about 1812,-disputes first arose about the possession of the common, which continued for many years; until this suit was brought by White, who derived title from the original proprietors. Justice Thompson, in delivering the opinion of the court, says : “ The right of the public to the use of the common in Cincinnati, must rest on the same principles as the right to the use of the streets: ■and no one will contend that the original owners, after having laid out streets, and sold building lots thereon, and improvements made, could claim the easement, thus dedicated to the public. All public dedications must be considered with reference to the use for which they are made; and streets in a town or-city may •require a more enlarged right over the use of the land, in order to carry into effect the purposes intended, than may be necessary in. an appropriation for a highway in the country ; but the principle, •so far as respects the right of the original owner to disturb the -use, must rest on the same ground in both eases, and applies equally to the dedication of the common as to the streets. It was for the public use and the convenience and accommodation of the inhabitants of Cincinnati; and doubtless greatly enhanced the value of the private property adjoining this common, and -thereby compensated the owner *for land thus thrown out as public ground. And after being set apart for public uses, and -enjoyed as such, and private and individual rights acquired with reference to it, tbe law considers it in the nature of an estoppel in paisr which precludes the owner-from making such dedication. It is a. violation of' good faith to the public and to those who have acquired private property with a view to the enjoyment of the use thus-publicly granted.” This principle, here laid down, of estoppel inpais, with its accompanying reason, applies with great force, in the case of Beatty v. Kuntz, above cited; and it is the governing principle in all those cases where a proprietor dedicates to any public or particular use one portion of his property, at the same-time that he exposes to sale another portion adjacent to or dependent upon it. 6 Paige, 639-642 ; 6 Wend. 667 ; 4 Paige, 510.
    The subject of devises direct to objects of piety or charity, or in .trust for such objects, is wholly untouched by judicial decisions in Ohio; though we have numerous cases of dedications, by the-living, to public and pious uses. The true principle upon which, those cases are supported, is well laid down by Judge Lane, in delivering the opinion of the court, in Brown v. Manning, 6 Ohio, 303. “The subject of appropriations to public uses,” says the learned judge, “ has been frequently under consideration of courts in our counties, and it is now settled that when lands are dedicated by the owner to any lawful use, public, pious, or charitable, and are-used for the object, and in the manner contemplated by the owner,, it inures as a grant. The existence of a grantee is not essential to the validity of such dedication, nor is any form of words necessary to.give it effect; if accepted and used by the public in the manner intended, it works an estoppel in pais, precluding the donor, and all claiming in his right from asserting any ownership inconsistent, with such use.”
    The case of Le Clerq v. Gallipolis, 7 Ohio, 219, and Thornhill v. McCandlis, 7 Ohio, 135, pt. 2, are upon the same principle. The latter case having the additional ingredient that a trustee was appointed by the legislature to take charge of the dedicated property, and the heirs of a large number of the grantors had conveyed to-such trustee. The action at law against a trespasser was sustained by virtue of the conveyance. Such being the ground on which that case was decided, it is needless to inquire, whether the dedication had all the requisites which would have made it valid as a dedication, against the grantor or his heirs at law or equity? If it were not so, the court assuredly do not decide that the intervention of •the ^legislature could make it valid without the subsequent ¡assent of the grantors.
    In the Methodist Church v. Wood, 5 Ohio, 283, the question .arose on a suit by the church, as a corporation, against one of its trustees, who had received money in the name of' the church, both before and after its incorporation. A hypothetical question is ■raised by the learned judge who pronounces the opinion of the court, whether, if the suit had been for the land of which the -money was the proceeds, it could have been recovered by the ■church; and he-observes that the court are not prepared to say -that they could not sustain their action. For myself, I think it ■very clear that they could. The land was conveyed to the trustees for the use of the church after the enabling statute of January .3, 1825 ; and if it had been made before the statute, and if, after its enactment the society occupied the premises, as a church or :burial ground, with the consent of the trustee who hold the legal estate, it would be good against him, and good also against the original grantor, as a dedication to public and pious uses. On this ground, it seems to me the case of Morgan v. Leslie, Wright, 144, 145, is sustainable, without conflict with any legal principle. It •was a good dedication to pious uses.
    But it is attempted to sustain this devise under the ordinance -of 1797, and the provisions of the constitution in conformity thereto. I will not stop to examine the effect in this case of the general provisions in those instruments in favor of education and religion. They are declarations, by the founders of a great community, of the general principles of virtue, and knowledge, and '¡religion, under and by which they could alone hope for the blessings of Providence on that work of their hands. But these ■have nothing to do with the rules of law, which should thereafter ■make valid a transfer of property for religious communities, or institutions of learning. The first clause, then, that demands consideration, is section 27 of article 8 of the constitution, which provides, “ That every association of persons, when regularly formed within this state, and having given themselves a name, may, on application to the legislature, be entitled to receive letters •of incorporation, to enable them to hold estates, real, and personal, for the support of their schools, academies, colleges, universities, .and for other purposes.” Applied to the case at bar, what is this ¡provision ? If the president and directors of the Zanesville Canal and Manufacturing Company had, prior to the death of John Mclntire, regularly formed thomselves into an association, for the purpose of sustaining this charity, and had given themselves a. *name, they would have been entitled to au act of incorporation, on application to the legislature, enabling them to take, and hold, and administer it, if devised to them. The construction' creates no capacity in unincorporated associations to take or hold property, it merely points out a mode by which a capacity may be acquired, as a matter of right, on application to the legislature. When this devise must have taken effect, if at all, the Zanesville Canal and Manufacturing Company had no capacity to take or to hold this trust; and even if they had, it was not thrown upon them at all, nor was there an attempt on the part of the testator-to clothe them with it. It was the president and directors, not the aggregate company, to which the testator devised it; and it is-clear law that if a devise be made to the officers of a corporation, and their successors in trust, etc., and not to the corporation, it is void. In the case of Christ’s Church College of Cambridge, 1 Wm. Black. 91, Lord Keeper Henley says: “The conveyance is admitted, to be defective, the use being limited to certain officers of the corporation, and not to the corporate body, and therefore, it wants a. person to take in perpetual succession.”
    Then as to the act for the relief of the poor, in force at the time-of this devise, which provides that all gifts to the poor of any township, or to any person for their use, shall be available, and shall vest in the trustees of the township. It is a provision for a. distinct and definite object, which is exactly defined. It provides-a grantee and a trustee for a particular kind of gift, which is not. this, nor like thih. It is a provision for the support of paupers, not for institutions of learning. It is for gifts to the poor of the township, not for the poor at large, or some of the poor to be selected out of part of a township. Hence it can have no possible-binding efficacy in this case.
    Barker v. Wood, 9 Mass. 419, arose upon a devise of land, etc.,, to Joseph Barker, “for the use of the inhabitants of the second parish in Boxford, confining it to the use of the inhabitants of Box-ford,” but in fact the second parish included certain inhabitants of Andover. The parish was a corporation. The court say: “These-latter (the inhabitants of Andover), being excluded from the benefits intended, the remaining inhabitants are not a corporation, and they can not take as tenants in common. The heir at law must hold until some one can make title under the will.”
    We have no decided case that touches the principle here under consideration. We have no statute that can apply to it, and no system, either judicial or popular, built up by custom, during the lapse of ages. This case is the first, and- the only case in which this ^question has been agitated in our courts. We feel confident in the conviction that the court will apply to it the clear and well-defined principles of law.
    What, then, was and is the law on the subject in England prior to the statute of' 43 Elizabeth, and since, in cases which could not be brought under the provisions of that statute?
    It is very doubtful whether the English chancery had jurisdiction at all of charitable bequcsts, prior to the statute of Elizabeth. There is no case whatever, in or out of print, to be found, in which they have exercised such jurisdiction. There are many cases after the statute, which rest upon devises made before it, of which the following is a specimen :
    Collison v. Hobart, reported in Moor, 888, was this: In the fifteenth year of Henry Till, and before the statute of wills, a devise was made of lands for the repairing of a highway; more than sixty years after this the statute of 43 Elizabeth was passed. The old bequest was hunted up, and the land, which had in the meantime descended to the heir, was taken by force of the stat-' ute, and applied to the charity. 2 Vern. 452. The statute was familiarly applied to past, as well as future devises, making those good which were void ah origine. In other words, it divested the heir of property which had descended to him, untouched and unaffected by the will of his ancestor, or the law in force at the time of his death. I need not argue to the court that this can not be done, either by general or special law, under a constitutional government, where private property is held sacred.
    The dicta which attribute to chancery this power over charities, independently of the statute, do, for the most part, give it to the chancellor, as the representative of the king acting in obedience to his behests, made known by his sign manual. That such a doctrine prevailed to a great extent since the statute is certain, and that many of the gross abuses which arose under the statute had their origin in the courtly submission of the chancellor to the will of a despotic king, is equally certain. The earliest case to this effect, that Lord Eldon could find, 7 Ves. 69, is Frier v. Peacock, Finch, 245; otherwise called Attorney-General v. Mathews, 2 Lev. 167, where there was a trust for a general charity to the poor. The commissioners, in order to make it practicable, limited the number to forty poor boys. Lord Keeper Finch reversed the order, declared that the charity belonged to the king himself to dispose of. So he acquainted the king with the case, and the value of the estate, and disposed of the charity according to his directions.
    *This doctrine had its rise in times when the judges in England held their offices at the pleasure of the crown, who was the fountain of justice, as well as of honor, and the source of all power — in unsettled and troubled times, when the boundary between the judicial power and the executive prerogative was ill-defined, and when the prerogative was bearing down every barrier that a free people could oppose to its progress. A few years before the decision of the case referred to by Lord Eldon, a lord keeper, Sir John Finch, is said by Clarendon (vol. 1, p. 73) to. have declared that “ while he was lord keeper, no man should be so saucy as to dispute the orders of the lords of the council, but that the wisdom of the board should be always ground enough for him to decree.” In Eyer v. Countess of Shaftsbury, 2 P. Wms. 118, Lord Macclesfield says, “That abstracted from the statute of Elizabeth, and antecedently to it, as well as since, it has been everydaypractiee-to file informations in chancery for the establishment of charities.” This observation was thrown out arguendo, the point not arising in the case, and no authorities are cited to sustain it. On the other hand, Lord Rosslyn, in the case of the Attorney-General v. Bowyer (which was an information for the purpose of enforcing a charity), says: “It does not appear that this court at that period (from the statute of Elizabeth) had cognizance upon informations for the establishment of charities. Prior to the time of Lord Ellesmore, as far as tradition, in times immediately following, goes, there was no such informations as this upon which I am now sitting, but they made out the case as well as they could at law.” 3 P. Wms. 726. The cases cited by Lord Rosslyn clearly prove his correctness, while they show the plain common law mode in which charitable bequests were adjudged upon prior to the statute of Elizabeth. Porter’s caso, 1 Coke, 23, was a devise of houses to the testator’s wife for life, upo» ■condition to establish a charity. Instead of performing the will she made a long lease. The heir at law entered upon the lessee, ;and conveyed to the queen. The"cause was tried upon an ejectment, brought by the heir, upon the ground that the wife, by the lease, had broken the condition. The defense was that the condition was void, as against the statute of mortmain, and therefore the estate of .the wife absolute. It was held that the use was lawful, therefore the condition was good, and, being broken, the heir had the right of entry. In the case of Sutton’s Hospital, 10 Co. 1, the validity of the creation of the corporation, before the grant of the lands wherewith it was to be founded, was questioned, under the mistaken notion that a charity, like a church, must be endowed ^before its creation, not, as Lord Eliesmore supposes, the validity of the deed of bargain and sale made, prior to the act of incorporation, and Lord Coke says several of the questions made in that case were not worthy to be mooted in that court.
    There are several cases referred to in the argument in .Porter’s ■case in which feoffments, with conditions to apply the proceeds of the estate to some indefinite charity, as in case from Brownloe, to the poor generally, has been hidden good. But this must be in the first place & feoffee to take the estate, and then, if the condition be broken, the feoffor or his heirs have right to enter, and neither of them could be compelled to apply it to the charity. The feoffor simply makes the feoffee the perpetual almoner of him and his heirs to the extent of the proceeds of the estate, allowing him to select at his own discretion the objects of his charity among the poor. If the feoffor perform his duty, the estate remains with him, and can not be reclaimed; if he neglect it, the estate reverts, and the charity is at an end. So, by parity of reasoning, if there were no grantor or feoffor who could take the estate subject to the condition, the feoffment or grant would be merely void. But it is ■evident from Porter’s case that the donor or his heirs alone had power to take advantage of the breach of the condition. In that case it would seem, by his conveyance to the queen, that the heir willed the continuance of the charity.
    It is curious to see what vague and confused notions have been ■entertained by some judges in modern times of these clear and simple principles of the common law.
    The view which I have taken of the ancient doctrine is sustained by the modern English cases, which do not fall within the-provisions of the statute of Elizabeth, the court of chancery, in all cases, refusing to execute a trust to benevolent or useful purposes, which does not come within the provisions of that statute,, no matter how meritorious may be the object, keeping constantly in view the fact that all their powers over this species of gift and bequest are derived from that statute.
    The case of Morris v. Bishop of Durham, decided by the master of the rolls, 9 Ves. 399, and afterward examined and confirmed; by the lord chancellor, 10 Ves. 522, was this: Ann Cracberoder by her will, bequeathed her personal estate to the Bishop of Durham, in trust, to pay her debts and legacies, and to dispose of the-ultimate residue to such objects of benevolence and liberality as the Bishop of Durham shall in his own discretion most approve-of. The master of the rolls says: “ The only question is, whether the trust upon which *tho residue of the personal estate is bequeathed be a trust for charitable purposes. That it is upon some trust, and not for the personal benefit of the bishop, is clear from the words; and it is admitted by his lordship, who expressly disclaims any beneficial interest. That it is a trust, unless it be of a charitable nature, toó indefinite to be executed by this court, has not been and can not be denied. There can be no trust over which this court will not assume a control, for an uncontrollable power of disposition would be ownership, and not trust. If therebo a clear trust, but for uncertain objects, the property which is the subject of the trust is undisposed of, and the benefit of the ’trust must result to those to whom the law gives the ownership-in default of disposition by the former owner. But this doctrine does not hold good with respect to trusts for charity. 'Every other trust must have a definite object; there must be somebody in whose favor the court can decree performance. But it is now settled, on authority which it is too late to controvert, that where a charitable purpose is expressed, however general, the bequest shall not fail on account of the uncertainty of the object; but the-particular mode of application will be decided by the king in some cases, in others by the court. Then, is this a trust for charity? Do purposes of liberality and benevolence mean the same as objects of charity ? That word, in its widest sense, denotes all the good affections men ought to bear toward each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed by this court. Here its signification is derived chiefly from the statute of Elizabeth. The purposes-are considered charitable which that statute enumerates, or which, by analogies, are deemed within its spirit and intendment.” Ho then proceeds to inquire whether the trust under consideration comes necessarily within the intent of the statute: and finding it does not, ho holds it void for the object expressed, but-good to the next of kin. This decision was confirmed by Lord-Eldon, and the reasoning of the master of the rolls fully sustained.. On the particular point in question his lordship says .
    “ Then, looking back to the history of the law upon the subject, I say, with the master of the rolls, that a case has not yet been-decided in which the court has executed a charitable purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the propei’ty to-purposes of charity in general. Upon those cases where the will devotes the property to charitable purposes described, no observation is necessary. In reference "to those in which the court takes-upon itself to say it is a ^disposition to charity, where, in some, the mode is left to an individual; in others, individuals can not select either mode or object, but it falls on the king, as parens■ patria, to apply the property, it is enough at this day to say, the-court, by long, habitual construction of those general words, has-fixed the sense; and where there is a gift to charity in general,, whether it is to be executed by individuals selected by the testator himself, or the king, as parens patria, to execute it (I allude-to the case in 2 Levins, 167), it is the duty of such trustees on the-one hand, and of the crown on the other, to apply the money to charity in that souse which the determinations have fixed to that, word in this court, viz: either such charities as are expressed in the statute, or to purposes having analogy to those. I believe the-expression, “charitable purposes,” as used in this court, has been applied to many acts described in that statute, and analogous to those, not because they can, with propriety, be called charitable, but as that denomination is by the statute given to all the purposes described.” 10 Ves. 540.
    I will not wander further into the wilderness of cases on this-point. The result of them all seems to bo, that in order to enable the court of chancery to interfere and support a trust which does-not fall within the provisions of the statute of Elizabeth, the? 
      ■cestui, que trust must be a definite person, capable of appearing in court, and demanding its execution. If these conditions do not - exist, the trust is for the benefit of the heir at law, or next of kin; and the like was the condition of all trusts prior to the .statute.
    It is apparent, too, that the power of the king, as parens patria, over this species of vague charities, arises from the same source with the power of the court of chancery, and extends no farther. .He can not, by his prerogative, unless it bo absolute, make a devise good, which is void at law; for that gives him no right to seize upon the property of a subject, and apply it at his pleasure. He can merely, in certain cases, direct the application of funds •well devised to charity under the statute.
    Lord Eldon, in Maggridge v. Thackwell, 7 Ves. 67, 75, labors, perhaps with success, to settle the principles on which the king interferes in the application of charities, -as parens patria, and .after citing and examining the cases of Clifford v. Francis, Mos. 288, 381; Attorney-General v. Sidenfire, 1 Ver. 224, and the Attorney-General v. Matthews, 2 Lev. 167, he concludes: “So these three cases seem to have established at the year 1679, that the doctrine of this court was, that when the property was not vested in trustees, and the gift *was to a charity generally, nor to be sustained by the act of individuals referred to, the charity was to be disposed of, not by scheme before the master, but by the ■king, the disposer of such charities in his character of parens patria.
    
    Now these are three ancient cases, but they were all decided under the statute of Elizabeth, and nearly eight}’’ years after its enactment; and counsel will search in vain for precedents, where the king, prior to the statute of Elizabeth, has, in his character of jjarens patria, enforced the execution of a charitable devise, in. chancery; in any case where there was no cestui que trust who could •come into court as a party.
    There is much force and truth in the observation of Henderson, J., in the case of Dashiel v. Attorney-General, 5 Har. & Johns. 401, where he remarks: “And it is believed that in England, prior to the statute of Elizabeth, no charity could have been established -on an information in the name of the attorney-general, where the instrument creating it was defective, and the object of the donor’s •.bounty so vague and imperfectly described as to be incapable of taking, if it were not a charity, and the thing intended to be given would vest in the next of kin. But that wherever charities were-established on information, they were such as were valid at law, and the enforcement of which did not interfere with private-rights.”
    I have no doubt of the correctness of this, in all eases where-courts of'justice wore the medium through which charities wore established, and enforced by the king. I recollect, however, to have-seen one case, cited in support of the antiquity of this prerogative,. and there arc probably others of a like kind, where the king, as parens patria, has soon fit to plunder some of his loving children.. It is this:' On the suppression of the order of Knights Templars, in England, the king, Edward II, by the aid of an act of Parliament, seized their possessions and transferred them to the KnightsHospitallers; I suppose upon the doctrine of cy pres.
    
    But even if the king, by virtue of his prerogative, could over-stop, or disregard the boundaries prescribed by the law, to the adjustment of individual rights, there is in this state, as organized under its constitution, no one department in which that undefined, overshadowing power centers. ,Not in the legislature, for they possess only the law making power, which deals in generalities, and has to do with the future; they are enjoined to hold private-property sacred; they can not transfer it from one man to another, or to the public, by their mere will, expressed even in the form of law; they have no attribute *which corresponds with the prerogative of the British crown ; and it would be even absurd to say that such a prerogative was vested in our judicial tribunals.
    Before I leave this subject, I will refer to some opinions lately expressed by the courts in England, on the very loose and latitud— incus construction which had been given by their predecessors to this statute, and especially on what is called the doctrine of cy pres, or the substitution of one charity, by the chancellor or king, for another which was attempted to bo created by the donor. These-substitutions of the will of the court for the will of the donor are-all alike in principle, but differ in degree of apparent injustice, according to their more or less departure from the actual thing inte. ided by the donor. Some of those, which are of high authority^ are shocking to every feeling of legal morality, and it will be perceived that reform in this particular has come from judges of the-legal bench, who not having, like the chancellors, been steeped in. .and saturated with the doctrine, have evidently looked upon the •construction of the law of charities as an abuse which ought to be ■corrected.
    In the case of the Attorney-General v. Bishop of Oxford, the trust was to build a church in the parish of A. and the parish would not lot the church be built. Lord Kenyon hold that it could not be built anywhere, and that the institution must totally fail. 1 Bro. C. C. App. 21.
    So Hr. Justice Buller, in the Attorney-General v. Golding, 2 Bro. C. C. 428, held that where the devise was of eight houses to eight poor people that have paid most and longest to the poor books of the parish of D. and the dividends on eight hundred pounds, four per cent, to the eight persons, that as the devise of the houses was void under the statute of 9 George II, ch. 46, that the devise of the annuity, which was its incident and attached to the freehold houses, was void also, and could not be executed cy fres.
    
    The master of the,rolls, in the Attorney-General v. Whitchurch, 3 Ves. 243, doubted the correctness of Justice Bullcr’s doctrine, but afterward, with some hesitation, he admitted it.
    And the lord chancellor, speaking of the like cases, says, 3 Ves. 648, with some impatience, “ I have not looked into all the cases referred to. Some of the cases seem to have gone the length of •raising an idea that the doctrine of cy pres, as to a charity, ought never again to be mentioned in this court; I am not quite clear of that.” But afterward, Lord Eldon, in the case of Maggridge v. Thackwell, 7 Ves. 87, seems to admit that the whole doctrine, as built up by the *court, under the statute, is wrong. “If,” said he, “this strange doctrino, as I should have called it if I had sat here two hundred years ago, that you can find a charitable purpose in a purpose that is to fail altogether, can be shaken, I can do no more than allow it to go to a higher court.” So, in the Attorney-General v. Jackson, 11 Ves. 367: “It has been argued, .and two hundred years ago it would have been urged with great effect, that no distinction ought to be made in the proceedings between a charity and an individual; but at this time, it is quite too late to insist upon that.” So, indeed, it was in England, for the law -had been settled for more than a hundred years, and it was better, perhaps, it should be uniform than that it should be right.
    Every point that arises in this case is discussed and decided in <the case of the Baptist Association v. Hart’s Exrs. The devise in that caso was to “ the Baptist Association, that for ordinary meets at Philadelphia annually,” which was to be a perpetual fund for the education of' Baptist youths for the ministry, to be selected by the trustees. With respect to the trustee, the court say : “ The association is described with sufficient accuracy to be clearly understood, but not being incorporated, it is incapable of taking this trust as a society.” And with respect to the cestui que trust, they say, “ Are there any to whom this legacy, if it were not a charily, could be decreed?” 4 Wheat. 28; Conn. 301.
    The case of Barker v. Wood, 9 Mass. 419, goes to the incapacity •of the cestui que trust. It was this : Sarah Chadwick devised her land in the town of Boxford to Joseph Parker, to be used and improved during his natural life, and after his decease, she gives the proceeds to be expended for the use of schools among the inhabitants residing in the northwest parish in the town of Box-ford, “confining it only to the use of the inhabitants of said Box-ford, and to be distributed in the same way, among the schools, as money raised by the town for the support of schools is apportioned among the several districts of the town forever.” The court hold, that inasmuch as the northwest included part of the inhabitants of Andover township, and as they were excluded by the terms of the will from any participation in the testator’s bounty, and as the remaining inhabitants of the nothwest parish were not incorporated, per totam, the devise was holden void.
    In Jackson v. Cory, 8 Johns. 303, the court say, “A grant to be valid, must be to a corporation, or some person certain must be named, who can hold in his own right or as trustee.” 9 Johns. 74.
    *In Jarvey’s Ex’rs v. Letain, 4 Leigh, 327, the testator bequeathed to the school commissioners of South Earnham district and their successors, for the schooling of the poor children of the district, $10,000, to be put out at interest, and the interest only to be applied. There are school commissioners of the county of Essex, and the testator was one of them at his death, but they are not a corporate body. There are no school commissioners of South Farnham district, nor any such district, that being the name of an ancient parish. Held, the bequest was void.
    In the case of Gallego’s Ex’rs v. The Attorney - General, 3 Leigh, 450, the testator having appointed his executors, by his second codicil, directed them to pay $1,000 to the support of the Roman Catholic chapel in the city of Richmond, if it should be-continued at his death; “and if the Roman Catholic congregation should come to the determination to build a chapel in Richmond, to pay $3,000 toward its accomplishment.” By the tenth codicil, he directed his “executors to lay by $2,000, to be distributed among needy, poor, and respectable widows.”
    By the eleventh, he gave a” lot in Richmond to trustees, with directions to permit “all persons belonging to the Roman Catholic Church, as the members thereof, to build a church upon it for the use,” etc. Upon the most mature deliberation, after full argument, the court hold all the above devises to charitable and pious-uses void, because of the uncertainty of the devisees. Carr, J., says, page 461, “ The pecuniary legacies of $J,000 are in effect given to the Roman Catholic congregation, but for the building and support of a chape], and the ground is given to trustees to permit the-Roman Catholics to build a church on, for the use of themselves, and all persons of that religion residing in Richmond. The bare statement seems sufficient to show that under the general rule, as-applied to ordinary legacies, these would be void. Who are the beneficiaries? The Roman Catholic congregation residing in Richmond. And who are they ? Suppose you name them to-day are those the same persons who constituted the congregation yesterday, or who will constitute it to-morrow?” And President-Tucker, in his very learned and able opinion (p. 465), says, “There is no principle supposed to be more perfectly settled in-respect to conveyances, than that every deed must have sufficient, certainty as to the grantee who is to take under it. If there be such uncertainty as to the grantee, that it can not be known distinctly who is to take by the grant, it is ipso fado void for that ^uncertainty. This, it would seem to me, is not merely a principle of common law, but a dictate of common sense; and hence this defect is equally fatal, whoever may be the grantor, for it is a defect, not of power in him, but growing out of the utter impossibility of effectuating the grant, by reason of the undefined character of the grantee.” And after showing the uncertainty of the objects of the grants, and the impossibility of defining and fixing them, he proceeds (p. 466), “ These, and a multitude of like difficulties, present themselves to the notion of any grant or conveyance to a religious society or to trustees, for their use. Por in the eye of the law, the intervention of trustees does not remove a. single difficulty. There is not more necessity for a properly defined grantee in a deed, than for a cestui que trust capable of taking, and so defined and pointed out that the trust will not be void for uncertainty. In short, there can not be a trust without a cestui que trust, and if it can not be ascertained who the cestui que trust is, it is the same thing as if there was none.
    Deshiel v. The Attorney-General, 5 Har. & Johns. 392. James Conie, having directed the investment of his estate and appointed trustees to carry his bequests into effect, directs by his will that certain proceeds of his estate shall be “equally divided, one-naif to be applied toward feeding, clothing, and educating the poor-children belonging to the congregation of St. Peter’s Protestant Episcopal Church, in the city of Baltimore, the other half to be applied toward feeding, clothing, and educating the poor children of Caroline county, State of Maryland, which attend the poor or charity school established at Hillsborough, the trustees of which said charity school shall receive from my trustees the aforesaid-appropriation in payments every six or twelve months.”
    After a very full discussion, in which reference is made to the leading cases, Buchanan, J., in delivering the opinion of the court, says :
    “ It is an admitted principle that avague bequest, the object of which is indefinite, can not be established in a court of equity. Is this bequest of that description? Wo think it clearly is.” After stating the terms of the devise, the learned judge proceeds: “Whenever the words poor or poorest have been used as term of description in a devise or bequest, it has been held to be insufficient for uncertainty, as a devise to twenty of the poorest of the testator’s kindred. Powell on Devises, 419; 3 Com. Dig. 412, with many other authorities to which it is unnecessary to refer. In this case the bequest is quite as vague and indefinite as if it was to twenty of the testator’s ^poorest relations, or to his poor relations generally, or to the poor people of a particular county. Who are the poor people belonging to the congregation of St. Peter’s Protestant Episcopal Church in the city of Baltimore? No court can know or have any means of ascertaining, and the dcserijition of. the cestui que trust is so vague that none can be found who, upon the general principles of equity, can entitle themselves to the benefit of the trust.”
    “It seems to be supposed that the power of ascertaining and -designating” the poor children belonging to the congregation of .'St. Peter’s church is given by the will to the trustees, and thattha beneficial interest of the cestui'que trust may be sustained, by reason •of the intervention of trustees capable of taking the legal estate, •on the principle that “ id certum est quod certum reddi potest.” Before I transcribe the answer of the court to the above-stated supposition, I will refer to a like argument used by the opposing counsel in this case, on which they seem solely to rest the support of the •charity. In speaking of the mode of payment by the president and ■directors to the legatee, Amelia Mclntire, they say, “In principle there can be no difference between the testator directing the company to pay the dividend to his daughter, and directing them to pay the same for the support of a school, unless it arises from the ■uncertainty of the objects in the latter case. But that uncertainty is in this case entirely removed by the power of selecting the objects of the charity being expressly vested in the company; a selection to be made from a certain class, within .certain limits known and established by law, the limits of the town of Zanesville. Id certum est quod certum reddi potest.”
    
    The arguments are the same in both cases, and the answer of the court applies to both. “If it be admitted (say the court, p. 399), that authority is vested by the will in the trustee, to ascertain and designate who are the poor children belonging to the congregation of St. Peter’s church, it can not, abstracted from the statute, assist the ease of the defendants, for being a personal trust, without the aid of the statute, the cestui que trust can only be brought into being by the' ascertainment and designation of the trustees; and there being no ascertainment and designation, though certain selections have been made, no persons exist having in themselves a vested equitable interest which they1 are capable of assei-ting in a court of equity. The bequest, therefore, 'is too vague and indefinite to be carried into execution on general principles (there being none who can show themselves entitled to the beneficial interest), but is void, and the ^subject of the trust being undisposed of, results to the next of kin.”
    The charities in England, so far as real estate, or money to be vested therein, or as far as the stocks are concerned, which are the chief materials for these permanent charitable trusts, are effectually cut off in England by the statute of 9 George II, ch. 36,, which enacts, “ that no lands, or any interest in, or incumbrance on land, or any money to be laid out in the purchase of lands, shall be given for any charitable use, unless such -gift be made twelve months at least before the death of the donor, and recorded within six months after the execution thereof; or if the gift be of stock in the public funds, unless such stock be transferred six months at least before the death of the donor, and unless the gift be made to take effect in possession, for the charitable use intended immediately from the making thereof, without any power •of revocation or reservation whatsoever, for the benefit of the . donor, or any person claiming under him.”
    To this extent these devises are brought back to the distinctness and simplicity of common-law dedications to public and pious uses. It must be a gift by the living, absolute and irrevocable, .and it must take effect in possession and use during the life of the ■donor, or it is void. Under this statute, if the devise be in anywise connected with or dependent on the purchase or improvement -of real estate (as if it be in trust to erect or repair a school-house, and educate poor children), the whole devise is void, the principal with all its incidents, and the trust is for the next of kin. Attorney General v. Whitchurch, 3 Ves. 142 ; Attorney General v. Golding, 2 Bro. C. C. 12 ; Attorney-General v. Bishop of Oxford, 2 Ves. 46. And see 2 Ves. Jr. 387.
    I refer to this statute, and the decisions under it, to show that in charities, as well as all else, whenever the English courts can escape from the shackles of authority^ they construe devises ac•cording to legal principles, not by any loose and uncertain discussion, or any assumption as to what the testator would have done, had he known that he could not do what he attempted to do.. They do not, as under the statute of Elizabeth, hold it void so far .as it is illegal, and execute it cy pres by applying the fund to some -other use.
    McCauley v. Henderson, 1 Dev. Eq. 276, was this: Henderson, in his will, directed that a part of his property should be applied •to the purchase of stocks, and the profits thereof to go “toward paying a minister of the gospel, who shall preach at the seceding «congregation meeting-hou.se called Gilead, in said county, on the great road leading *from Charlotte to Beattie’s Ford; the party called the Associate Seceding Party.
    
    The trustees of the meeting-house, at Gilead, refused to permit & minister of the associate seceding party to preach in the house-The bill prayed that the trusts might be executed cy pres, by appropriating the interest of the fund to pay a minister to preach in a new meeting-house, to be erected as near as might be to the-old one.
    Judge Henderson says: “This is not a devise to a religious congregation within the words or spirit of the act. The property is not given to the congregation to be used by them as they may think proper for their use and benefit; but it is given for a special puipose, in which, to be sure, they are interested.” He adds: “ They take, therefore, for a specific purpose, and are bound to apply the funds to that and no other use.”
    Then, after discussing the devise, and referring to the familiar test of its validity, ho proceeds: “ Is there any who can enforce-the execution of the trust ? ” If it be valid, and “ if there be more than is necessary for the object, the excess results to the next of kin. For we do not,'as they do in England, apply it to the other objects, of a similar kind, by what is called the doctrine of cy pres
    
    The point adjudged in the ease of Inglis v. The Sailors’ Snug Harbor, does not bear upon this case, though some of the remarks-of the learned-judge may appear to do so. That the decision of the court does not, we may be certain; for the case of Hart’s Ex’rs v. The Baptist Association, which is identical with the case at bar,, is not considered by the court as being shaken, much less overruled.
    Justice Thompson, in delivering the opinion of the court, dwells-at some length on the sedulous care of the testator to affect his object, and the several modes which he devises to bring it about,, one of which was an act of incorporation, and says:
    “ If the first mode pointed out by the testator for carrying into execution his will and intention with respect to this lund, can not legally take effect, it must be rejected, ard then the will will stand as if it had never been inserted, and the devise would then be to a corporation to be created by the legislature, composed of the several officers designated in the will, to take the estate'and execute the trusts.” And, further: “ The devise, in this case, does not purport to be a present devise to a corporation not in being, but a devise to take effect in future, upon the corporation being created; ” and the court held it good as an executory devise.
    The weight of authority, as we conceive, is with us to the full
    
      •extent *of placing this case on the same ground as a common devise, not to a charity, and that its validity must be tested, by the same principles. But in order to sustain our defense, it is not needful to go thus far. A clear distinction exists between a •case like this, and the case of a trust for the use of' an unincorporated church which nevertheless has a known and permanent character and existence; or for an aggregate association of individuals, who are known and defined in fact, though not in law. 'The case of a church is the most favorable, because ancient authorities, and the long-settled opinions of this Christian community, .give to every sect of Christians, united by a common bond of •faith, and association, an admitted existence. Hence a devise to ••a trustee, for the use of any known church or denomination of Christians in their aggregate capacity, might be enforced, when a devise to a trustee not in being, for the use of such persons as might be selected by such non-existing trustee, could not. A devise to an incapable trustee for the use of such church or congregation as he should select, would be analogous to this: upon the .actual and distinct points in issue, the case of a trustee not in legal being, and the cestui que trust depending on his selection. Wo believe that this case is sustained by no authority. All the cases which we have seen that support it, depend upon statute, or a •long course of decisions, having their root and origin in the statute of Elizabeth.
    Eor it is to bo remarked that here is neither trustee nor cestui que trust, and if the devise be sustained, both are to be furnished by the legislature or the court.
    There aro, as I have shown, no eases in England in which this has been done independently of the statute of Elizabeth, and none, we believe, can .be found in the United States, save where that statute has been adopted in terms or its principles silently received or acquiesced in for a long period of time. If, then, the ■court should be inclined to go so far as to sustain a direct devise forever to uncertain bodies of men or associations, but who, by the continual succession of probable events, could be rendered ■certain, without the exercise of any choice or discretion beyond that of the simple construction and application of the will — as, for example, to unincorporated churches or societies for known nnd specific purposes, or a devise to the use of such bodies or associations of men, or a devise to the use of a poor school, when the person who is to receive the trust and make the selections is left at large, and therefore subject to the discretion of the court, or some one whom the court might appoint — yet they would not, have gone the length by far of setting up this devise. It can not be *done without the application of the cypres doctrine to the full extent that it was applied in Moggridge v. Thackwell, about vshich I have already shown even the English chancellor doubted.
    But if this devise be sustained, another importan question will-arise, namely, who is to take charge of the fund and execute the trust ? Is it the legislature, by virtue of this branch of royal prerogative, which is supposed to have been transmitted to'them as an inheritance from the political constitution of England, or by courts of equity in virture of their general powers ? I need not argue to-this court that the legislature of Ohio have no inherent powers paramount or pre-existing the constitution, or derived from any other source but that; that the law-making power which solely and alone is granted them by that instrument, with restrictions- and limitations, does not enable or suffer them to touch by direct and special act the property or the rights of an individual, or by any general law to interfere with or affect it. In other words,, that department of our government can act only on the rights of men by laws, which deal in generalities, and which look to the-future. But if the royal prerogative bo conceded to themj does-this devise, according to the principles claimed, fall within it?
    Lord Eldon, in Moggridge v. Thackwell, aboved cited, says:
    “ As early as 1679, the doctrine of this court was, that when the property was not vested in trustees, and the gift was to charity generally, not to be ascertained by individuals referred to, the-charity was to be disposed of, not by the master, but by the king,, the disposer of such charities, in his character of parens patria.” This case, like the one he was considering, does not fall within that category. The devise here was not to the poor in general, and the charity was to be ascertained by the act of individuals, referred to, though they, like Yaston in the case before the chancellor, were not in legal being at the time the devise took, effect. This charity, therefore, could not be controlled by the-king of England, nor can it be by the legislature here, if the-political as well as legal principles of that kingdom be transferred to us.
    And it is but justice to the legislature to say, that in the statute-of March 14, 1830, they are studious to guard against every invasion of private right; and the court, in deciding that this property could not be controlled by the corporation created and made trustees by that law, would decide nothing against tho constitutionality of the law itself, but simply settle the question on which the legislature doubted, and on the decision of which they rest the validity, of the law.
    *If, then, this devise is to be sustained, and the trust executod, it must be done by this court, by a scheme, and it must be applied, not at random, but as near as circumstances will permit, to the object intended by the testator; a poor school in the town of Zanesville. Surely no one who knows and respects the lawj can contend that this fund can be taken and applied to education generally. It might do much good in that way if it could be so applied legally, but the lawless precedent which it would force our courts to record, would do much more evil.
    This court, then, if they sustain this charity, must do it on a scheme cy pres, pursuant to the presumed intent of the testator; then they must see that there be established, according to the purpose expressed in the will, a poor school, to educate poor children, to such extent as the testator’s words justly construed imply. If the fund be more than sufficient to effect that purpose, then the residue becomes the property of tho heir at law. The court having applied the fund cy pres, to effect the object of the testator, which, though not specific in itself, was strictly so as to the limits in place and purpose to which it was to be confined, can not take the residue upon a still more remote substitution cy pres the first substitution.
    R. Stillwell, for same parties.
    H. Stanbert, for the complainants:
    The demurrer is to the whole bill; if, therefore, it is bad in part, it is bad altogether. It is shown by the bill, that Melntire devised, under certain contingencies, a portion of his estate to the establishment of a poor school in the town of Zanesville, and that the contingencies have happened upon which the bequest was to take effect. That the complainants have been incorporated by a public act, which authorizes them to represent the interests of the cestuis que trust, to manage the charity, and vests in them all the funds belonging to it.
    The case so presented, is a good case for equitable interference; because: 1. The legislature has power to incorporate trustees to manage or to superintend a charity. 2. The trustees, so appointed, have stated sufficient grounds for equity cognizance. The bill is filed in the subject matter of the charity, and it is alleged that the defendants are in possession of the trust funds, and have misapplied the same to their own use.
    The only ground upon which the defendants can rely, is that the act incorporating the complainants is unconstitutional'. They attempt *to sustain this ground by the following points: 1. That the act takes away the trust granted to the Zanesville Canal and Manufacturing Company, by section 8 of their charter, and therefore violates their charter. In answer to this, we maintain : 1. That this case is clearly distinguished from all the cases which have been cited to show the unconstitutionality of the act. All those cases go upon the ground, that a trust established by a charter, as a college or university, must be regulated by the charter, and can not be changed by the legislature — and that, therefore, where the charter provides that the trust shall be administered by certain trustees, that feature of the charter can not be changed.
    This trust is not of that character. No contract was made between Mclntire and the legislature for the establishment of this trust — no charter was granted according to which it was to be administered. It was a charity at large. It was, therefore, for the legislature, by reason of its admitted jurisdiction over public charity and education, to see that this trust should not fail. In the exercise of this duty, the legislature might incorporate the trust, or granü a charter to the trust, and provide in that charter who should bo trustees, or the legislature might appoint a trustee at large — an individual or a corporation, and direct such trustee to manage the trust.
    The power of the legislature to change the trust is wholly different in the two cases. In a case of an establishment of the trust by the charter, providing in what way the trust shall be administered, the charter becomes the law of the trust — its compact with the state, and it can not be altered. In the other case, of the mere appointment of an individual, or a body corporate, no such consequence follows. _Such an appointment is the mere designation of' an agent, without interest or tenure of office, to manage a charity at large, without any law or charter for its regulation, and the appointing power possesses the correlative power of removal.
    The appointment of a corporation confers no greater estate or interest than the appointment of an individual. Both hold their ■office by the same title — the legislative grant. Can it then be held that a person or body corporate, appointed to perform a public duty without salary or tenure of office, is not removable by the legislature ? If an individual appoints an agent without interest, he can, at any time, put an end to the agency, and he violates thereby no contract. The same rule must obtain in the •appointment or removal of a public agent. It will be shown in the sequel, that no case, as yet decided, has gone the length which the defendants would have the court go in this ease.
    ^Before we proceed to the consideration of the cases, it is proper to understand the precise relation in which the two corporations, the Mclntire Poor School and the Zanesville Canal and Manufacturing Company, stand in regard to this charity. Neither ■of these corporations was in existence at the time of making the will, or at the decease of Mclntire. An unincorporated association then existed, which was established for manufacturing purposes. The founder of the charity directed the president and directors of this association, upon the happening of certain contingencies, to establish the-charity, and select the objects of bis. bounty from a certain class of individuals. No present duty in •relation to the charity devolved upon the persons appointed; it was entirely jmospeetive, and might never bo called into action. ■Before the contingencies happened, this association ceased to exist. A corporation for banking and manufacturing purposes took the place of the partnership for manufacturing purposes. The -corporation was, in every legal sense, a new being, distinct from the old company. It was well seen at the-time, that this merger of the partnership in the corporation would leave the contingent charity without a trustee; that upon the happening of the testamentary contingencies, there would be no trustees to manage it, .and therefore the legislature was applied to for an appointment. This appointment was made by section 18 of the charter, in these words : “ That the said corporation shall be authorized to act as trustees under the last will and testament of the said John Mclnfire, so far as he, the said John Mclntire, has thereby authorized and empowered the said company to act, and for those purposes the said corporation shall be invested with all the powers, rights, titles, and privileges invested by the last will and testatament of the said John Mclntire in said company.”
    It will be observed, that this section does not extend the powers, of the trustees beyond the powers given by the will to the old company, or rather to the president and directors of the old company. It does nothing but authorize the corporation to act as-trustees. The provision that the incorporation is to be invested with all the rights, powers, titles, and privileges of the old company, can only be understood by referring'to the will for the grant of' those rights. The will provides, that all the estate is to. be converted into stock of the old association by the executors-That fund is not granted to the trustees, nor even the management of it, for it constituted, at that time, a-part of the stock of the association. Only the profits of this stock were to be committed to the trustees, with which they were to establish a ^school, and then select the scholars; and these were the whole of their powers and privileges as trustees.
    I do not stop to inquire in what way, after the decease of Mclntire, his stock in the partnership was made a part of the capital stock of the corporation. That stock is the fund from the profits of which this charity is ,to be endowed — the stock itself was not committed to the trustees. Nor shall I inquire into the policy of this legislative appointment. The legislature had the power to-appoint any trustee — an individual or a corporation; and although a bank does not seem exactly the proper sort of trustee to superintend the purposes of charity or education, yet the appointment was well made.
    The legislative power over this charity was not exhausted by this appointment. The charity remained as much a subject for legislative action after the appointment as before. It had yet received no charter to give it form and make it permanent. This, however, was accomplished by the act of March 14, 1836, under which the complainants claim. This is the act which the defendants claim to be totally void, because it takes from them the office of trustees of the charity, and gives that office to others. It by no means follows, as will be shown hereafter, that if, in that particular, this act be held void, it is void for all its purposes; but I am now endeavoring to show that it is not void oven in that particular. It violates, say the defendants, their charter. Now what
    
      is their charter? The canal company is not a college or an incorporated charitable institution, but a banking and manufacturing association. If their purpose of association, or their charter, was to administer this charity, we might well understand in what-way their amotion from the trust would violate their charter. Any one who reads their charter can see, at once, the purposes of their association, and that the accomplishment of these purposes,, the security of the rights and privileges which the state intended to guarantee to them, are in no way connected with this charity. I am not one of those who favor the power to impair contracts or take away vested rights, but it would seem to push the conservative doctrine beyond all reasonable bounds, to maintain that a legislature having power to appoint a banking corporation to act as-trustees of a charity, has no power to revoke that appointment. A law vesting a right in a corporation is of no more validity than-a law vesting a right in an individual. If a law should appoint an individual to manage a public charity, without salary or perquisites, could it be said to vest a right in the constitutional sense-of the term? I apprehend not.
    *1 shall now proceed to the consideration of the cases relied upon by the defendants to show that the act incorporating the complainants is void, but first request the attention of the court-to what is said in Attorney-General v. Middleton, in reference to the distinction between a charity with a charter and a charity at large. In that case, 2 Ves. Sen. 327, Lord Chancellor Hardwicke says: “Consider the nature of this foundation — it is at the-petition of two private persons, by charter of the crown — which distinguishes this from the cases on the statute of Elizabeth on charitable- uses, or cases before that statute, in which this court, exercised jurisdiction of charities at large. Since that statute, where there is a charity for the particular purposes therein, and no charter given by the crown to found or regulate it, unless a-, particular exception out of the statute, it must be regulated by commission. But there may be a bill by information in this-court, founded on its general jurisdiction, and that is from necessity; becauso there is no charter to regulate it, and the king has a. general jurisdiction of this kind — there must be somewhere a power to regulate; but where there is a charter, with proper, powers, there is no ground to come into this court to establish. that charity, and it must be left to be regulated in the manner the -charter has put it or by the general law.”
    The bequest to the poor school was a charity at large. If -it bad been founded by charter, that would have been the law for its regulation. This powor of.regulation, in the language of Lord JEardwicke, must reside somewhere. In England, it is in the «chancellor exercising the jzirerogative of the king as parens patria. .In this state, it is in the legislature until the granting of a charter, and then it is in the charter.
    The cases cited by the defendants are: Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; Allen v. McKean, 10 Amer. Jurist, 273; 1 New Hamp. 199; 2 Fairfield, 118; the case of the Ohio University, etc.
    The Dartmouth College case is familiar to the court. The whole case turned upon the charter of the college. The legislative acts declared unconstitutional changed the most essential features of that charter, and were therefore held to violate the ■contract of the charter. At page 538, C. J. Marshall says: “It can requiro no argument to prove that the circumstances of this -case constitute a contract. An application is made to the crown, for a charter to incorporate a religious and literary institution. In the application it is stated that large contributions have been made for the object, which will be conferred *on the corporation as soon as it shall be created. The charter is granted, .and on its faith the property is conveyed. Surely in this transaction every ingredient of a complete and legitimate contract is to ■be found.”
    In Allen v. McKean, 10 Amer. Jurist, 273, it appeared that Bowdoin College was founded by the State of Massachusetts, and •the question was, whether certain acts of the legislature .of Maine (the college falling within that state after its separation from Massachusetts) essentially modifying that charter, were constitutional.
    The case of Merrill v. Sherburne, 1 New Hamp. 199, does not -.seem to apply. It is merely decided in that case that an act of the legislature, awarding a new trial in an action which has been decided in a court of law, is an' exercise of judicial power, and retrospective in its operation.
    The Ohio University case is upon the right of a trustee in a college with a charter.
    
      This case, then, is strongly distinguished from any one which has been cited as to the vested rights of trustees in a charitable or • literary institution, in the important particular that this charity is without a charter. If the Zanesville Canal Company had been incorporated upon the subject matter of this charity; if their charter was a charter for the charity, and their officers its-trustees, then the power to regulate would be fixed by the charter, and any change in the mode of administering the charity or the privileges of its officers would be a violation of a contract ■ within the decisions which have been referred to.
    But this is not only a charity without a charter; it is also a public charity. Lord Hardwicke, in Attorney-General v. Pearse, 2 Atk. 87, says: “A devise to the poor of a parish is a public • charity. Where testators leave it to the direction of a trustee to-choose out the objects, though each particular object may be said to be private, yet, in the extensiveness of the benefit accruing • from them, thoy may properly be called public charities.”
    Before the passage of the act incorporating the canal company,, it is not denied by the counsel for that company that the legislature had the power to regulate this charity. In that act the legislature, so far as this charity is concerned, does nothing more than authorize the company to act as trustees. According to the-defendants’ counsel, that imperfect legislative action exhausted-the whole legislative power over the subject matter. The legislature could not afterward incorporate the charity, or give it a charter, or appoint other trustees. *Now, it can not be that, in regard to a matter of public concernment, the whole beneficial and necessary power of legislative regulation is thus taken away. I conclude, therefore, that even in the particular of the-appointment of trustees to manage the charity, and the taking of that office from the defendants, this act is not unconstitutional.
    2. If the court should hold it otherwise, it does not follow that, the entire act under which the complainants claim, is void. This^ act does something more than merely to appoint trustees, and invest them with the funds of the charity. It incorporates the school;. it declares the trustees a body corporate to further the objects of the will; to receive donations, and generally to represent the interests of the cestuis que trust. This is the first exercise of the legis- ■ lative duty to give permanence to the charity.
    In all the eases referred to, the unconstitutional legislation was. -subsequent to the charter of the college or charity, and the question ■ directly arose in actions at law, asserting a right to the corporate property, or some corporate or charter franchise. No one can •doubt that the canal company may be called upon in a court of ■equity to account for their trust, and if they are found to have mism'anaged it, a court of chancery has the power to take it away .from them. 2 Story’s Eq. Pl. 435.
    Are the complainants competent to call for this account? It is .said this power is now vested by law in the superintendent of common schools. However that may be, it shows the legislative .power over the subject, and this particular grant was prior to the law giving authority to the superintendent, and is not repealed by it. The bill filed by those complainants refers to their act of in■corporation ; it claims, it is true, that in virtue of that act they are invested with the exclusive management of the charity, and with ..all its funds ; but it also charges a most fraudulent perversion and .misapplication of those funds by the defendant, and calls specifically ■for an account in behalf of the cestuis que trust.
    
    I understand it to be admitted by the counsel for the company, •that any individual of the town of Zanesville might have called ■upon the canal company for an account of their trust; and yet ■they contend that these complainants who are incorporated for the ■.special purpose of furthering the objects of the charity, have no right to call for an account or to be heard in a court of equity, because the act of incorporation has in some of its features gone ■beyond the legislative power. An act of the legislature is entitled to more respect than it seems to receive from the defendants counsel. There is no such *doctrine that an act void in part is void altogether. But in truth this act is not void in any particular, ■ even if it be hold that the trust of the company is a vested right, for there is an express proviso in section 2 of the act, “ that nothing •contained in the act should be so construed as to affect the private -or corporate right of any person or persons, or to change the will of John Melntire; on the contrary, it is to be construed so as to -carry into effect the true interests and meaning thereof.” If, then, the canal company has a vested right to act as trustees and to hold the lunds of the charity, this act must be so construed as not to .take away that right. Whenever the powers granted to the charter trustees come in conflict with the rights vested by section 18 of dhe canal company charter, there must be such construction as will ■not take away the prior vested rights; but for all other purposes and powers the act of 1836 must staud. The incorporation declared by it remains; the right to receive donations remains; the right to sue and be sued remains; and what is more, the duty to superintend the interests of the cestuis que trust remains. Here then, in the exercise of that duty, the trustees complainant appear before a court of chancery and charge these defendants with a total misapplication of the trust fund. Is any vested right violated by so construing this act of incorporation as to admit them to make this call?
    What objection can there be to ordering the account? I take it the canal company does not claim to own this trust fund subject to no supervision or account. They can only object to the capacity of the complainants; and they say because the complainants have not the capacity to manage the charity or to hold its funds, they have not the capacity even to call upon those who do manage it, who do hold its funds, to show how they have performed their trust. The calling to an account is one thing, the right to the office of trustee or the charity funds is another. An individual who has no right to exercise the office of trustee or to hold the fund, may, «ay the defendants, nevertheless call for an account. It is true that the right to sue the canal company, or to call for an account of the trust fund in hand of that company, is not given in so many words by the act of incorporation. We can not say of the right to file this bill, '■'•lex ipsa loquitur,” but then, in the construction which the act invokes for the carrying into effect the purposes of this charity, can not the court hold that this mere right to sue, to inquire, should be sustained? ■ The purpose of the act is declared to be that of securing to the cestuis que trust the benefits and advantages of the devise, and to carry the same into effect, *and with that view these complainants are incorporated ; the right to «ue, especially “for all purposes necessarily” connected with the •objects of the act, is expressly given to them. One prominent ■object is to insure the benefits of the charity to cestuis que trust. ■Can anything more conduce to the accomplishment of that object than the sustaining of this bill?
    I have not considered it necessary to inquire whether the .Zanesville Canal and Manufacturing Company is now a corporation, or whether, in the language of section 15 of its charter, “all •its privileges ” are not forfeited by its failure to construct the canal by February 1, 1835. The court, on examination of the-various acts touching that company, will see that if anything remains' of it, it is only the mere legal entity. Nor have I considered it necessary to reply to what is said against tho act incorporating the complainants, in reference to the recital in the preamble, that one of the reasons for passing tho law, was the representation that the canal company had ceased to exist. No-authority is adduced to show that a law incorporating a public, charity, passed, in part, upon misrepresentation of fact, is totally void. Le Clerq v. Gallipolis does not go to that. But how is the misrepresentation shown ? It is by the production and legal effect of other acts of the legislature, which, they say, establish the present existence of the corporation. The legislature could not-be imposed upon by a misrepresentation, when they had (as they are supposed to have) tho very evidence before them to detect the misrepresentation. But there was, in fact, nothing like a- false-statement. There may have been a mere error in law — the supposition that a charter was forfeited by non user, or by the extinguishment of the right to carry on the business for which the charter was granted. And if that be an error of law, if nothing but a judicial seutence puts an end to a corporation, there is, at least, very high authority to sustain it. In the Ring v. Passmore( 3 Term, 240, it is held that a corporation is dissolved by the death of all the corporators. It may lose its privileges without dissolution. 2 Bac. Ab. 31, n. c.
    And when a corporation has ceased to be able to discharge its duties, or basdost its privileges, they may be conferred by charter on a new corporation, before dissolution or judicial forfeiture. 2 Term, 567.
    But it is argued by the counsel for the canal company, that if the court sustain the bill against the demurrer, the complainants-are thrown out at once by the answers. It might be so, if the case wore presented upon bill, and answer, and replication. But that is not *its aspect. Exceptions have been filed to the answers, which are not touched in the argument for the company. It the complainants can call for an account of the trust,.it is going too far to say, that they must take just such an account or such an answer as the defendants choose to give. That would be, in one view at least, answering to a very good account. I conclude this case, upon the matter of the exceptions, must go to a master, with such directions as to the stating of the account, as the court may see proper to give.
    Ms to the validity of the charity. The plea of David Young and wife introduces a new question, touching the validity of the char ity itself. The points upon which this plea is attempted to be sustained, lead into a vast field of legal inquiry, and their resolution is to settle not only this case, but a great system. The facts upon which the question arises, are shortly these: On March 18, 1815, John Mclntire, of Zanesville, by his will, after devising certain of his personal property to his wife, authorizes his executors to sell the remainder, and all his real estate (except that situate in Zane’s grant, which was to be sold by them after his wife’s death), and to vest the proceeds in stock of the Zanesville Canal and Manufacturing Company, and to pay his wife annually during her life half the profits of all his estate, real and personal. On the death of his wife, the executors are to sell his remaining real estate, except his mansion house, and vest the proceeds in the same stock. He next devises to his daughter (his only child) his mansion house, after the death of his wife, in foe simple, provided she loaves an heir of her body, and to her and the heirs of her body, all the rents, issues, interest, and profits of the stock, to be paid to her annually during her life, by the president and directors of the company. The will then proceeds as follows: “But should my daughter, Amelia Mclntire, otherwise called Amelia Messer, die without an heir or heirs of her body, then my house and lot, with the premises, as before desei’ibed, are to be held in fee simple by the company before described, for the use and occupancy of the president of said company, he paying into the fund aforesaid, for the use hereafter-described, a reasonable rent, to be fixed by the directors, of the same ; and the president and directors of said company are annually forever to appropriate all the profits, issues, and rents of my stock as aforesaid, and all my estate, of whatever kind the same may be, for the use and support of a poor school, which they are to establish in the town of Zanesville, for the use of the poor children of said town ; the children who are to be the objects of this institution are to be fixed upon by the president and directors of said company.”
    *The testator died in July, 1815, and his daughter Amelia died in December, 1820, without issue. His widow, who was amply provided for by the will, intermarried with David Young, in August, 1816. They interpose this plea, claiming that the charity is invalid by reason of their being no competent trustee designated by the testator, and that Mrs. Young is entitled to the fund intended for the charity, as heir at law of the testator. The plea does not show, nor does it anywhere appear in the case, how Mrs. Young is heir at law. I do not stop to argue that objection, or to consider whether, if the fund is to go in descent, instead of to the charity, it is to go to the heirs of the testator, or those of his daughter. 'I appear for the charity, and failing that, have no concern who takes the property.
    The point made by the plea upon which the failure of the charity is predicated, is the want of a testamentary trustee competent to take and to act. The argument for the plea makes another point — the uncertainty of the cestuis que trust. I understand the argument to proceed upon the following ground : That the whole doctrine of charitable bequests is built' up in England upon 48 Elizabeth ; that this statute is not in force in Ohio ; that without it we have no legislation, and no principle in our jurisprudence or frame of government that can give validity to charitable bequest which would not be good as a bequest to an individual: and that the bequest in this case is therefore bad, the trustees being incompetent, and the cestuis que trust uncertain. If the validity of this bequest depended upon the question whether 43 Elizabeth was, or is, in actual operative force as a statute in this state, I should have nothing more to say; for I do not believe that it ever so entered into our system. It would seem from the argument of the counsel for Mr. Young, that the.opinion is entertained that at one time, from the passage of the declaratory law of February 14, 1805, to its repeal, January 2, 1806, this statute was one of our statutes, by adoption, and an argument against'its subsequent existence here, is drawn from that opinion.
    The act of February 14, 1805, declares that the common law of England, and all statutes in aid thereof, prior to 4 Jac. 1, and also the several laws in force in this state, shall be the rule of decision, and shall be considered as of full force, until repealed. The act of January 2, 1806, repeals so much of the declaratory act as declares the common law and the statutes in aid thereof prior to 4 Jac. 1, (o be in force as the rule of decision in this state, leaving that part of it untouched which declares that the laws in force in this state shall be in full force.
    
      *It must be admitted that so much of the common law and the statutes in aid thereof as were in force here prior to the declaratory act, continued in force after its repeal; that is, just so much of both as was suited to our circumstances, our policy, and our institutions. I very much doubt whether any English statute had any further operative force by virtue of the declaratory act. Certainly, 43 Elizabeth had not. The proposition can not be maintained, that by operation of the declaratory act, this statute became one of our statutes, and had the same operative force ■as an act of our own legislature. Any one who looks into 43 Elizabeth will see at once that this could not be. It was local to the kingdom of Great Britain, and all its provisions were accommodated to the institutions and officers of the kingdom, so that everything to be done under it was to be done by a machinery unknown to us, the king, the lord chancellor; a court of commissioners, and a parish jury.
    If, then, this charity depended for its validity upon the provisions of that statute, and there was no ground upon which to sustain it, or to execute it, except only by the court of commissioners, it would assuredly fail. This charity can be sustained on other grounds. Here, in the first place, we have the clear intent of the testator that his property should go in this way. He makes full provision for his wife, and then devises all the residue of his property to his only child. Looking next to the contingency of her death without issue of her body, which would leave no one who could have any claim on his bounty in the line of succession to him (a fact that is evident from the plea that his wife is his only heir at law), he provides for the foundation of a most commendable charity — the institution of a school for the poor children of a town which had grown up under his enterprise. This was not the act of one “ saturated with charity” to the exclusion of all the obligations of kindred, nor at variance with the opening recital of his will, that it was his wish “to make a just disposition” of his property. Nor was it the declaration of a charitable intent at large, or even so vague that the particular object remained doubtful. It was for the purpose of education — for the ■education of poor children — not generally, but of a town having a defined territorial extent, and by means of the establishment of .an institution through the agency of the president and directors -of a company, and then the institution being established, the children “who are to be the object of this institution” to be fixed by the same president and directors.
    There was at the time of making this will, and at the decease-of (he (estator, just such a company as that referred to in his will, of which ^tho testator was a member — and there were seven individuals in esse, known to the testator, who were called its. president and directors. Furthermore, this well-defined charity was in no respect against public policy; on the contrary, its object, the means of education for the poor, is sanctioned as the-public policy, beginning with the ordinance, and continued and fostered as such through our constitution and our legislation down, to the present time. Besides all this, the particular charity provided for by Mclntire, so far as individual and legislative action, and recognition are concerned, has been established and supported. The house has been built, the institution has been established, and for a series of years an average annual number of two-hundred of the beneficiaries have enjoyed there the blessings of education. It is at this moment in actual operation. And all this has been done without the aid of the court of commissioners or the parish jury of 43 Elizabeth. The plea proceeds upon the ground that these things have been done against law; that there is an inherent vice in this bequest which will compel this court to disappoint the benevolent purpose of the donor, to break up-this munificent charity, and give his wife, who he intended should have (and in lieu oven of her dower) one-half of the-interest of his estate during her life, the whole estate in fee-simple.
    Before I come to the consideration of the arguments and cases-which are offered in support of the plea, I deem it proper to look more particularly to the public policy — the general and special legislation, and whatever else we have of judicial decision or common usage, bearing upon the subject.
    It is declared by article 3 of the ordinance of 1787, that “religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The constitution of the state carries out this policy. The concluding clause of section 3 of article 8 is in the very words quoted from the ordinance. Section 25 of the same article provides, so far as the poor are concerned in the means of education, “that no law shall be passed to prevent the poor in the several counties and townships within “this state, from an equal participation in the schools, academies, ■colleges, and universities within the state, which are endowed in the whole or in part, from the revenue arising from donations •made by the United States, for the support of schools and colleges.” Section 27 provides, “ that every association of persons, •when regularly formed within this state, and having given themiselves a name, may, on application *to the legislature, be entitled to receive letters of incorporation, to enable them to hold • estates, real and personal, for the support of their schools, academies, colleges, universities, and for other purposes.”
    I stop one moment to consider this section in another point of view, than as establishing a public policy — and that is as to its direct bearing on the point made by the counsel for Mrs. Young, as to the want of capacity of the trustees, the officers of an unincorporated association, to administer a perpetual trust. It will be observed that this section points out the means by which such an .•association shall be enabled to hold estates for the support of schools. The capacity to take is not, and need not to have been given. Every voluntary association for purposes not forbidden by law, has a capacity to take an estate, either by grant to them individually, or in their partnership name, or to their agents; but they can not hold as an association any longer than all the individual membei’S are in esse, and upon the death of any one of them the estate of the person so dying goes, in the course of descent, not to his survivors, but to his heirs. But this section provides against that contingency, and as a matter almost of right, for the acquiring of the faculty, to hold estates as an association and by a name. It gives the legislature ample power over the subject, and provides ■.a means ior corporate succession in the holding, as well as in the future acquisition of estates. Wien we consider the argument for the plea, that this bequest was to the officers, qua officers of an unincorporated association, that it was therefore void, because there ■could be no succession to carry on forever the trust, and administer the estate for the support of the school; and when in that connection we consider the subsequent act of the legislature incorporating this association, not only for the purpose of holding their ■own lands, but for the declared object of administering this trust .and holding the rights and titles incident thereto, under the will ■of Melntire, and the yet more recent legislation incorporating the school itself as established, the importance and effect of this-constitutional provision become apparent.
    I now pass on in the consideration of the public policy of our legislation. As early as June 19, 1795, the governor and judges of the territory adopted a law from Pennsylvania, entitled, “A law for the relief of the poor,” 1 Chase Stat. 175, section 14 of which is in these words : “ All gifts, grants, devises, and bequests-hereafter to be made, of any houses, lands, tenements, rents, goods* chattels, sum or sums of money, not exceeding in the whole the yearly value of 11,200, to the poor of any township, or to any other *person or persons, for their use, by deed or by last will and testament of any person or persons, or otherwise howsoever, shall be good and available in law, and shall pass such-houses, lands, tenements, rents, goods and chattels to the overseers of the poor of such township, for the use of their poor respectively.” On February 22, 1805, the legislature passed an act for the relief of the poor, 1 Chase’s Stat. 514, section 10 of which is-precisely the same with the before-recited section, except that the* restriction as to the yearly value is taken off, and the property ismado to pass to “the trustees of such township and their successors in office, for the use of their poor respectively, under such regulations as from time to time shall be made by law.” This section was re-enacted, in so many words, by section 11 of the act of February 19, 1810 (1 Chase’s Stat. C96), which was in force at the-making of the will, and at the time of the testator’s death, by section 10 of the act of February 10, 1816 (2 Chase’s Stat. 945), and by the act now in force of March 14, 1831 (3 Chase’s Stat. 1834).
    It is well, in passing, to consider for a moment this last series-of legislation, which was begun before our constitution, and remains to this day. It lias other bearings besides, as indicative of the public policy as to charities to the poor. It declares that all gifts, all devises to the poor of any township, or to any person ox-persons, for their use, by deed, by last will, or otherwise howsoever, shall be valid in law, and vest the property in the township trustees, for the use of the poor, under such regulations as may be made by law.
    Now, it is admitted that if 43 Elizabeth were in force here* the devise in the will of Mclntire would not fail. This statute is* infinitely stronger than the statute of Elizabeth. The whole system of judicial decisions as to charities, so far as it has grown up by construction of that statute, is based upon the recital, that land, tenements, etc., given, limited, and appointed for the relief of aged, impotent, and poor people, had been by fraud, prevented from the charitable purposes intended, which evils requiro remedy. Under this bare recital, and without the use of the machinery provided by the statute, the English chancery has sustained all manner of charitable bequests, because it was fit, where there was any sort of appointment to a charity, it should not fail, but should be fulfilled as near as possible to the intent of the donor; or if that were unlawful or impracticable, it should be diverted to some other charitable use, although that might be as far as possible from thd use intended.
    If our court would follow the English cases, if the statute of Elizabeth were in force here, why not, in the construction of our own ^statute, so much stronger in its terms, acknowledge, at least to a reasonable extent in the support of a charity, the force of those decisions? This bequest is not within the letter of our statute — it is not specifically a devise to the poor of Zanesville township, or to a person for their use ; but yet, if there was no way else of sustaining it, I do not doubt it would be sustained by the equity of that statute. A devise for the education of the poor of a township would not be within the letter of the statute, and under our poor laws, as they now stand, the trustees of the township could not apply it to those uses, but the legislature could, by the express provision that the power to regulate remains in that body. So in a devise, specifically in the words of the statute to the poor, does any one doubt the legislative power to fix upon the beneficiaries, and to regulate the application of the fund to the support of the old, the education of the young, the building of houses or schools ; or if the devise, instead of being to the poor, was to twenty paupers, or twenty of the poor of a particular township, and no way was appointed for their selection, could not the legislature, under this comprehensive statute, regulate, by law, the mode of selection, and all the details for the administration of the charity? Or suppose the devise were to the poor of the north half of township A, could not that come, at least, within the equity of the statute ? The devise in the will of Melntire is to the poor children of a certain and defined part of a particular township, or what is the same thing under this statute, it is to persons for their use. Why is this not within the equity of the statute? Is it proper, in the construction of such a law, to stick in the bark? These children are the poor of that township, although not all the poor therein; and if the mode of selection provided by the will is ineffectual, have not the legislature the express regulation of that? If it bo said that this would be a cy'pres administration of a charity, what of that ? If a court can execute an intention cy pres, may not the supreme power of the state do likewise, under the provisions of a general law, in respect, too, of a public charity ? In truth, all this has been already done by the legislature in respect to this very charity — a charter has been given to it, in which its regulation is amply provided for.
    I beg next to call the attention of the court to section 43 of the act of March 7, 1838, “for the support and better regulation of common schools, and to create permanently the office of superintendent,” which, among other things, provides,that it shall be the duty of said superintendent to take an account of all funds and property given in any way for the support of education, except chartered *colleges,- and report the condition of the same, annually, to the legislature; and for this purpose, he is authorized to examine books and papers of any trustee or trustees of such property; a'nd where, in his opinion, waste is committed or about to be committed, either by misuse or non-user, he may report the same to the prosecuting attorney of the county, and such prosecuting attorney is hereby required to cause the proper investigation in the premises, by a bill in chancery, filed in the court of common pleas or the Supremo Court, in the name of the State of Ohio, against such trustee or trustees, or other person guilty of misuser or non-user; and such proceedings shall be had by injunction, decree, or otherwise, as shall prevent misuser of such property, and carry into effect, as near as may be, the object of the trust,” 36 Ohio L. 35.
    All property given in any way for the support of education, is made subject to the visitation of the superintendent. And wherefore? Because the support of education is a matter of public concernment, fostered and sustained by an unbroken series of legislation. Upon the complaint of this visitor, tne chancery power of our courts is required to be exercised over the property ; not to defeat its charitable destination, by the application of the strict rules of construction to the gift or devise, as applied to alienations which concern private rights; not merely to carry out the bequest in the very mode, or to reach the very object in the very mode intended by the donor; but, if that can not be done, to establish it ■cy pres, to “ carry into effect as near as may be, tho object of the trust.”
    With all this legislation, it seems to me a very useless and unprofitable inquiry whether our charities for education depend for their validity upon 43 Elizabeth, or any other English statute, .and whether we can or can not follow the English cases which have sustained charitable bequests by the application of the doctrine cy pres in the construction of a statute which is silent as to it, when we have a statute of our own which makes it imperative upon our courts to apply that very doctrine rather than the bequest should fail. The legislation which has been thus far referred to, as establishing tho public policy, has been confined to charities for education, and chiefly for the education of tho poor ; the charities for religious purposes have been equally encouraged by ■ our laws, but time does not allow their recapitulation here. Whoever looks through the body of our laws, will discover the same liberal spirit pervading not only these kindred charities, but also every iorm of benevolence tending to a public use. We are not left to the precarious title of clear dedication and long use *to ■ establish the public right. Our streets and squares, the places of worship and sepulture, pass under the simple forms of our legislation by a word written upon a plat. The usual forms of conveyance are omitted when the purpose is to vest a public or a charitable use.
    Looking, then, to the whole frame and spirit of our legislation, if tho question were now first presented to this court whether it ■could find a principle of decision to sustain this charity, I should have no doubt it would be found.
    The difficulty as to the bequest most strongly urged against the charity, is tho uncertainty of the cestuis que trust, and that the means of making them certain through tho agency of the testamentary trustees can not be used. It is said no other agency can bo resorted to, however near it may be to the agency designated by the will, because that could only bo by the doctrine cy pres, and that can not be resorted to, as the statute of Elizabeth, out of which it has grown, is not in force in Ohio. The case of Le Clerqu. Gallipolis, 7 Ohio, 221, removes the supposed difficulty. The court in that case say, “ "Where circumstances are so changed that the direction of the donor prescribing the use can not be literally carried into effect, the legislature, or the court in those cases where-general intention can be effected, may lawfully, in some cases, enforce its execution as nearly as circumstances admit, by the application of the doctrine of cy fres." Hero we have an explicit recognition of this doctrine as a rule for legislative and judicial action “in some cases,” and when we find the leading case cited for the opinion to be Moggridge v. Thackwell, 7 Ves. Jr., we kuow that a charitable bequest is one of the cases.
    I do not contend, nor is it necessary for this case, that our courts,, having recognized the cypres doctrine, are bound to follow the En. glish cases upon the statute of Elizabeth the absurd length which some of them have gone. There must be a reasonable limit, which is well enough defined in Price et al. v. Methodist Church, 4 Ohio, 547. It is there said, “Can a court of chancery change a trust expressly declared by the grantor in trust? It may enforce the trust, and compel the execution of its provisions, according to the design and purpose of the grantor; but can it divert the trust, and so construe it as to defeat and thwart the object and purpose of its creator ? We apprehend not.” In the case of the Methodist Episcopal Society v. Wood, 5 Ohio, 287, it is holden that “ the act se. curing to religious societies a perpetuity of title to lands and tenements, convoyed in trust for meeting-houses burial grounds, or residence for preachers, ^passed January 3, 1825, provides that such land, not exceeding twenty acres, that had been or thereafter might be conveyed to any person or jtersons in trust for the use of any religious society, should descend in perj>elual succession to such trustees as should from time to time bo appointed by any religious society, according to its rules, etc. This act was intended to remove ail difficulty arising from all defective conveyances, and seems to us amply sufficient to effect the object, whether the trust be secret and implied, or expressed in the conveyance.”
    So, too, in Morgan and others v. Leslie and others, Wright, 144, which was the case of a religious society; it appeared that whilst the society was unincorporated and before the passage of the law as to religious societies, a deed was made to Leslie and other individuals as trustees for the society. Lane, J.: “ The deed to the defendants and their successors, they not being a corporation, vests in law a life estate only in the grantors. The equitable es« tate may subsist for the benefit of the society, and chancery may enforce the trust, but the legal fee after the determination of the-lives, reverts to the grantor and his heirs.” Here is an express-recognition of a chancery principle, which, before the statute, would save a religious charity where the cestui que trust was a fluctuating-association of individuals. The learned judge, after noticing the passage of the act above referred to, concludes as follows: “And although this deed was made before the passage of the act, we-, hold it perfectly within the power of the legislature to mold or change the tenure of property in such manner as will best conduce to its due enjoyment by its legitimate owner.”
    In the case of Bryant Thornhill et al. v. McCandless, 7 Ohio, 135, the facts were, that an incorporated land company in their deed of partition among themselves, made in 1806, provided that, a tract of fifty acres, and other tracts particularly described, afe given by said proprietors to be a perpetual fund for the support, of the ministration of the gospel on the premises of the company, the avails to be equally divided among the ecclesiastical societies thereon, in proportion to their ratios of taxes, which is the only use-for which said land is designed by the donors.” No trustee was. created by the deed. In 1834, a special act was passed by the legislature, by which the plaintiffs wore appointed trustees, who, after-giving bond, were to take charge and possession of this tract of fifty acres, and to rent or sell it for the use of the inhabitants. In 1835, a part of the members of the association and the heirs of some of the others conveyed to *the plaintiffs all their right to the land for the purpose of carrying the use into effect. No actual dedication in pais was shown ; no use by the cestui que trust, not so much even as the primary act of division, which was by the-partition deed to precede the use by the different societies. There-was an objection interposed that the trustees had not given bonds,, as -to which the court gave no opinion, holding that as against a mere intruder, the conveyance to the trustees from some of the-owners entitled them to recover. As to the other question in the case, the court say: “ It is the received and settled law that a dedication for public, pious, or charitable uses requires a donee to give it effect. It is an equally well-settled principle in chancery that a trust shall never fail for want of a trustee, but that the necessary appointment may be made by the court. Since then the original •use is a good one; since a court of chancery may appoint a trustee,. if necessary, no objection presents itself to the exercise of the same ^power by the legislature, in a proper case, to secure the object to which the land was devoted, especially when the title is questioned by a stranger.” It is well to note, in passing, that these remarks are in reference to a mere paper dedication to a religious charity, very ill defined, without trustee, and followed by a special act of the legislature supplying the defect. If there be any difference between a dedication in a partition deed and a dedication by last ■will, I am not able to see it.
    This review of our legislation and judicial decisions, although very imperfect, must necessarily close here. It shows a public policy favorable in the highest degree to all charities and public uses, a course of legislative and judicial action to sustain that policy, -and further than all that, a necessity from the usages of our people for all that has been done by our legislature and our courts. In this connection I beg to call the particular attention of the court 'to the case of Whitman v. Lex, 17 Serg. & Rawle, 88. The opinion -of the court was delivered by Gibson, O. J., and it is stated to have been concurred in by Tilghman, C. J., and Duncan, J., who were •on the bench when the case was argued. I shall extract very largely from the opinion, which states the facts of the case sufficiently.
    “ The will of George Gottfried Woolpper contains two bequests, which are said ,to be void for uncertainty. The first is a bequest to ‘ St. Michael’s and Zion’s churches,’ of one thousand dollars, the interest of which is directed to bo laid out for ten years, in bread ‘for the poor of the Lutheran congregation,' of which the testator was a member. The second is a bequest of five thousand dollars, to be put *out in such manner that the interest shall be applied ‘toward the education of young students in the ministry of the German Lutheran congregation, under the direction of the vestrymen of St. Michael’s and Zion’s church.’ These churches were jointly incorporated by the style of‘the ministers, vestrymen, and churchwardens of the German congregation in and near the city of Philadelphia, in the State of Pennsylvania.’
    “ At the common law of England, these bequests could not be .sustained, even where there is no uncertainty as to the person; if the bequest be on a trust, not defined with reasonable certainty, it will fail, for it is clear the testator did not intend that the trustee -.should have the beneficial interest. Such a bequest, however, ■would take effect under 43 Elizabeth, e. 4, and this has drawn the-counsel to argue against the extension of that statute to this-.country — a point that must be conceded. But, we consider the principles which chancery has adopted, in the application of its principles to particular cases, as obtaining here, not indeed by torce of the statute, but as a part of our common law; and whoretbe object is defined, and we are not restrained by the inadequacy of the instrument, which we are compelled to employ, nearly if not altogether, we give relief to that extent, that chancery does, in England; and this part of our system has been produced by causes, which worked as powerfully here, as did those which, produced the system of relief, that sprung from the statute of charitable uses.” The chief justice next refers to the early and simple institutions of the people of Pennsylvania; their ignorance, as to the necessity of corporate succession, to perpetuate charitable- and religious donations; the frequency of. such bequests; and the uniformity with which, notwithstanding their defects, they bad been sustained. He then states the inquiry to be, bow far the-English decisions were applicable to their circumstances, and after-referring to the provisions of the statute of Elizabeth, and the immeasurable length which they bad gone beyond them, he arrives-at the conclusion, that “ most of the decisions are independent of the statute, and, therefore, in a great degree apjfiicable to the-same wants and necessities elsewhere.”
    The opinion concludes as follows: “It is not intended to attempt-an outline of this branch of our equitable jurisdiction, or to point, out those particulars in which it differs from that which has been assumed in England. This must be a matter of gradual development, according to the exigency of the case that may arise. It may safely be suggested, however, that in many particulars, the relief which we *shall bo able to afford, through the medium of common law forms, will necessarily fall short of that which would bo administered by a chancellor. Indeed, no one-would desire to see the doctrine of cy pres carried to the extravagant length that it was formerly, or witness the exercise of an arbitary discretion in giving effect to a general intention to leave-a sum of money to charitable purposes, to be designated thereafter, by disposing it to such charities as the court chooses to-direct. No such discretion would be exercised by this court; on the other hand, not professing to found our jurisdiction on the. .■statute, we are not bound, like the English courts, to restrain it to ■cases specifically enumerated in the preamble; and there is therefore little hazard in affirming that a bequest, such -as in Morris v. Bishop of Durham, in -trust to pay debts and legacies, and to dispose of the residue to such objects of benevolence and liberality, as the legatee may approve, would be sustained here. For the present, it is sufficient to say that it is immaterial whether the person to take be in esse or not, or whether the legatee were, .at the time of the bequest, a corporation capable of taking or not, ■or how uncertain the objects may be, provided there be a discretionary power vested anywhere,over the application of the testator’s bounty to those objects; or whether their corporate designation has boon mistaken; if the intention sufficiently appears on ■■the bequest, it would be valid.”
    I have cited this opinion at large, not so much as a decision, {although in that view it is directly in point, and of respectable .authority), as ior the persuasive force of the reasoning, and plain good sense of its principles, as applied to the laws, the usages, and the necessities of a people so like, in all particulars, to our own. I shall now quit this ground, the only true one, as it appears to me, for the decision of this case, to follow the opposite counsel, in the inquiry, as to what has been decided in other states, under •-other Systems of law and public policy.
    The case of the Baptist Association v. Hart’s Ex’rs, 4 Wheat. 1, is very much relied upon in support of the plea. That ■was a bequest direct to a voluntary association, “that for ordinary met at Philadelphia, for the education of youths of the Baptist ■ denomination, who should appear promising for t;he ministry, ■ always giving a preference to the descendants of the family of the testator’s father.” The testator was a citizen of Yirginia; after his death, the association became a corporation under the laws of Pennsylvania. The case was of course to be decided in reference to the laws of Yirginia, and was so argued by the counsel. It was evident that the 43d Elizabeth, *was not in force in that state; and, therefore, the court, proceeding upon that admission, and confining its powers to the chancery jurisdiction, independent ■ of that statute, unaided by any domestic legislation, or policy, held the bequest void. Toward the close of the opinion, C. J. Marshall, says: “But even if in England, the power of the king, •.as parens patria, would, independent of the statute, extend to a case of this description, the inquiry would still remain, how far this principle would govern in the courts of the United States. Into this inquiry, however, it is necessary to enter, because it can arise only where the attorney-general is a. party.”
    Now this case is distinguished from the case at bar, in many and important particulars. In the first place, as to the trustees: A voluntary religious association, collecting together from all quarters, and only ordinarily at one place, is quite different from a manufacturing partnership, or from seven distinct individuals of the partnership. This very distinction was afterward recognized by the same court, in Inglis v. Sailors’ Snug Harbor, 3 Pet. 99. There was a trust to bo executed, which in some of its features was to be perpetual; and certain officers of the city and State of New York, who were only designated in their official capacity, and their successors, were forever to superintend the charity; which of course involved the continuing selection of the beneficiaries. The court, in distinguishing the case from that of the Baptist Association, say: “In the case now before the court, there is no uncertainty as to the individuals who were to execute the trust. The designation of the trustees, by their official character, is equivalent to naming them by their proper names. Each office referred to, was filled by a single individual, and the naming of them by their official distinction, was a mere designatio persona. They are appointed executors by the same description, and no objection could lie to their qualifying and acting as such. The trust was not to be executed by them in their official characters, but in their private and individual capacities.” The court then go on to say, that even if this were not so, if the trust were to the officers qua officers, and it could fall within the Baptist Association case, the trust could be sustained by the provision in the will, as to a future corporation.
    It happens that the officers so designated were in number precisely the same with the officers of the canal company; so that there is no difficulty, as to the numbers of trustees. Now, if the term of description — the chancellor of New York, the mayor of the city, “ and their successors in office after them” — is construed to be equivalent *to the naming of the incumbents by their proper names, James Kent, Richard Riker, or whoever they may be, why should not the same construction, under the same circumstances, be given to the term, “ The president and directors of the Zanesville Canal and Manufacturing Company?” Why are we not to understand thereby Geo. Jackson, Daniel Convers,. etc?
    This case establishes a further important point, independent of the statute of Elizabeth ; which is this, that where a practicable mode is designated lor the selection of cestuis que trust, otherwise uncertain, the devise can be sustained as a charity, oven where the-very manner of selection, as by the death of the trustee named iu the will, can not be followed. I admit that this rule is understood as subject to many exceptions, and one is that the object, the essence of charity, is to be fixed by the will; for when that is toarme from the act of a named trustee (as in Morris v. Bishop of Durham), the rule might not apply. But when the charity itself is well designated, and tbe'only question is as to selection of beneficiaries, and those, too, out of a particular class in a particular place, the particular mode of selection is not of the essence of the thing. At page 119, the court in reference to this, say: “It has been urged by the defendant’s counsel that these lands can not be-charged with the trust in the hands of the heir, because the will directs that they shall not be possessed and enjoyed, except in the-manner, and for the uses specified. That the manner and the use-must concur in order to charge the trust on the land. But I apprehend this is a mistaken application of the term manner, as here-used. It does not refer to the persons who were to execute the trust, but to the mode or manner in which it was to be carried into effect, viz: by erecting upon some eligible pa-rt/of the land an asylum, or marine hospital, to be called the Sailor’s Snug Harbor; and the uses were for the purposes of maintaining and supporting aged, decrepit, and worn-out sailors. Whoever, therefore, taken the land, takes it charged with these uses or trusts, which are to be executed in the manner above mentioned.”
    Who can road the will oi Mclntire and not see that the selection to be made by the president and directors does not regard the matter, but only the manner of the charity ? The erecting of the institution, the founding of a perpetual charity for education, in his own town, and lor a certain class of children of that town. This was the essence of the bequest, and as there must be some agency, some mode of carrying out his wishes, hosclects, or rather he takes the same agency for that, which he had adopted for paying the profits of his stock *to his daughter. Did he mean that his daughter should perish for the want of means, if the profits wore not paid to her by their hands? Did ho intend that his charity should fail if they did not select the children?
    There are other very marked distinctions between the case at bar and the Baptist Association case. I have shown we are here surrounded with legislation, usage, judicial decision — all tending to sustain us. In that case there was no ground to stand upon, but only the powers of chancery, unassisted even by the doctrines of the court, since 43 Elizabeth. The court look back into the beginning of the seventeenth century for some principle on which to sustain it, and they arrive, with labor and difficulty, at the conclusion that, although there are glimpses of such a chancery jurisdiction, there is nothing safe to stand upon. Furthermore, in that case there was no legislative action except of" the trustees’own state, and this was so adverse to the bequest, that afterward, in the case upon Gallogo’s will, President Tucker, referring to the legislative policy, feels bound to say that charity itself is not banished from Yirginia. But in the case at bar, the parens patria authority, which, though spoken of by counsel as a flower of royalty, must exist in every government, has twice, specially interposed in favor of this charity. It has received more aid from the legislature than was extended to the religious charity in the case of Beattie & Ritchie v. Kurts, in reference to which Mr. Justice Story says : “ The original plan and appropriations were constantly kept in view by all the legislative acts passed on the subject of this addition. We think that it might at all times have been enforced as a charitable and pious use, through the intervention of the government as parens patria, by its attorney-general or other law officers.”
    The course of the argument next leads us to the decisions in the different states. The doctrine of the courts of Pennsylvania has been already shown in the case of Witman v. Lex, 17 Serg. & R. 88.
    In Yirginia, charitable bequests find little favor. The case of Gullego’s Ex’rs v. The Attorney-General, 3 Leigh, 450, was decided in 1832. The will of Gallego was full of charities. The particular one before the court was upon trust, to permit all persons belonging to the Roman Catholic Church as members, or professing that religion, and residing in Richmond at the time of the testator’s death, to build a church, on a certain lot, for the use of themselves, and for every other person or persons of that religion who might thereafter reside in Richmond. The devise is holden *void, on the grounds, that the beneficiaries were too uncertain for the support of the bequest upon any other footing than as a charity; that a charitable bequest so indefinite could not be sustained by the principles of the common law or chancery jurisdiction, prior to 43 Elizabeth, which was not in force in Virginia; that the policy of Virginia was decidedly hostile, so far as religious uses are concerned, “to the grant of any privilege, however trivial.” Then as to the parens patria power of sustaining charities before 43 Elizabeth, that is stated to belong to the legislature. President Tucker says, “ That body (the legislature) is the parens patria, under our system, and it would have remained for it to point out'the organ, which should administer its important function. My own opinion is decidedly, that it does not belong to the judiciary, even if it has existence anywhere in relation to charity. They must first be established to call this guardian power into existence.”
    The case of Dashiell v. Attorney-General, 4 Har. & Johns. 392, arose in the State of Maryland. It was a charitable bequest to indefinite eestuis que trust. The court, following the opinion in the Baptist Association v. Hart, hold that the peculiar doctrine, as to charitable bequests, originated in 43 Elizabeth, and was not in force in Maryland. The devise is not sustained. No public policy ; no legislation; no judicial action; no common usages, appear in the case. The legislature had done nothing, with respect to that charity, to give effect to it either by special or general legislation. The courts of Maryland had recognized no principle analogous to the English decisions under the English statute.
    In the State of Kentuehy, charities are sustained upon the ground, that -43 Elizabeth is there substantially in force. Proceeding on that ground, the court, in Gass. v. Bonta, 2 Dana, 171, say.they are relieved from “the vexed question, as to the true extent of chancery power and jurisdiction over charitable uses, independent of that statute.”
    The statute of Elizabeth can be shown to be just as fully in force in Ohio as in Kentucky. In Kentucky, they claim it by adoption from Virginia. We have it in Ohio from the same origin. Notwithstanding the repeal of the declaratory act in 1805, by the special reservation in the repealing act, the laws as they stood before the declaratory act were continued in full force. If we look, then, to that prior state of the law, we find, that as early as 1795, Ohio Land L. 322, the territorial authorities had recognized the British statute, prior to 4 James I, as a rule of decision. Whatever of doubt there may *be as to that mode of adoption and publication, there can be none that, at least as rules for -decision, as principles of jurisprudence — the English statute, and the doctrines of the English courts in their construction, then entered. practically into our system, and were not’ banished by the act of 1806. No further than that is 43 Elizabeth in force in Kentucky.
    The case of Moore’s Heirs v. Moore’s Devisees, decided by the same court as late as 1836, 4 Dana, 35, was a charitable bequest, very much like the case at bar. It provided that, upon the death of testator’s son, the real estate devised to him should be converted by his executors “into a fund for educating some poor orphans of Harrison county, to be selected by the county court, who are the guardians of such, and to be confined to such as are not able to educate themselves.”' This charity is sustained on two grounds (either of which the court hold to be sufficient), independent of the statute of Elizabeth, and upon the operative force of that statute in Kentucky. The opinion delivered by G. .J. Robertson is a very learned and elaborate one, and, being assured that it will have the attentive consideration of this court, I do not wish to break its continuity by any extracts.
    In Massachusetts, they sustain charitable bequests upon their own system of law. The case of Going v. Emery, 15 Pick. 107, a charitable bequest of a very indefinite religious character, is sustained without the aid of a court of chancery, partly on the ground that 43 Elizabeth, in principle, was in force in Massachusetts, and partly because they had a statute in many respects similar, providing that “ all gifts and legacies to- the college, schools of learning, or other public use, shall be faithfully disposed of, according to the true and declared intent of the .donor.” See also Bartlett v. King, 12 Mass. 537.
    In Connecticut, the question is yet open. In the case of Green v. Dennis, 6 Conn. 292, a farm was devised to “the yearly meeting of Quakers,” an unincorporated body, upon indefinite trust. The action was an ejectment. The court says: “It has been insisted that if a bequest be for a charity, it matters not how uncertain the persons or objects may be, or whether the devisee be a. corporation capable in law of taking; and in support of the principle, a number of determinations in chancery have been cited» The irrelevancy of the decisions referred to in relation to the legal title of the parties in this case is perfectly obvious. The court of equity have gone great lengths in support of bequests for charitable purposes, and *have frequently coerced the execution of them when no legal title had been created. The court, go on to show that the legal title did not pass to the Quaker meeting, because it was not incorporated; nor to the individual members, because they were not intended.
    In Vermont, in the case of Fuller’s Ex’rs v. Griffin, 3 Vermont, 400, a devise to an unincorporated Methodist church of land, the interest of which was “to be appropriated for the support and payment of the constant preaching of the gospel in Charlotte,” directing seven persons by name, “and their successors,” to take charge of the land as trustees, was held good in an action of ejectment. The court, after noticing the incapacity of the trustees to take by succession say: “ What is to be the result of this state of things ? Shall the cestuis que trust lose the us© for the want of a trustee ? We think not.”
    How far the court of chancery of Hew York is disposed to go in favor of charitable bequests may bo seen in the case of the Baptist Church in Hartford v. Witherell, 3 Paige, 300. In that case the chancellor says: “In the case of the Baptist Association v. Hart’s Ex’rs, the Supreme Court of the United States decided that an unincorporated association could not take a devise to them in the name of their society, and that a devise of that description could not be executed' by a court of chancery as a' charity of the common law. But in a subsequent case, the same court sustained a bill by the nominal trustees of an unincorporated religious society', to protect their right to a lot of ground, granted for the use of such society by the name of Lutheran Church. And in> the late case of Inglis v. The Sailors’ Snug Harbor, they held the devise valid, which provided for the vesting oi the property in a corporation thereafter to be created.” Th© chancellor was here arguing to sustain, and did sustain, a conveyance made to an unincorporated society, by their names, and held that, by their subsequent incorporation, the fee passed to the corporate body under a statute, very similar to our statute, as to religious societies. In Coggeshall v. Petton, 7 Johns. Ch. 292, the -devise was to an unincorporated town for the purpose of building a town-house. The objection as to the validity of the bequest was taken. Chancellor Kent says: “The pecuniary legacy in this case is valid as a charitable bequest. The case of Attorney-General v. Clark, Amb. 422, and of Jones v. Williams, Amb. 651, show ■that bequests with descriptions and purposes as general as this have been held good as charities. McCarter v. The Orphan Asylum, 9 Cow. 437, is to the same effect. It shows that they go in New York upon *the jurisdiction of chancery, aside from any help from the statute of Elizabeth, or any of their own statutory provisions.
    The case of Shapleigh v. Pillsbury, Greenl. 281, was in the State of Maine. A grant of land for the use of the ministry was sustained, although there was no person or corporation in esse to take. Chief Justice Mellen says: “Should such a principle be •considered as sufficient to defeat such grants, it would, in numberless instances, frustrate the benevolent intentions of the legislature or of generous individuals in the bestowment of their bounty.”
    The opposite counsel has gone into a minute inquiry as to the condition of charitable bequests before the statute of Elizabeth, and arrives at the conclusion that the court of chancery then treated charitable bequests in the same manner as bequests to individuals. This is a question which has been long vexed in England. There is undoubtedly very high authority on both sides. It is scarcely possible that any new light can bo thrown upon it ■since the case of Moggridge v. Thackwell. More recently the debate has been taken up on this side of the Atlantic. The prospect of a satisfactory result, notwithstanding the case of the Baptist Association v. Hart’s Lessee, seems to be as far off as ever, for it is admitted by Mr. Justice Story, 2 Story’s Eq. 394, n. 11, that recently Mr. Justice Baldwin, in the matter of Sarah Zane’s will, has added to the difficulty by a collection of many cases antece-dent to 43 Elizabeth.
    But the question is not, whether charitable bequests stood on. more favorable ground than other bequests before the statute, for as to that there is no doubt, but only whether the court of chancery, in the exercise of its jurisdiction by original bill, so regarded -them. In the absence of an ascertained cestui que trust, which is almost always the condition of a charity in its creation, it is difficult to see how the matter of the trust could come before the. court in the usual mode, or in any other way than by information of the attorney-general in behalf of the crown. It is very clear that in some way charitable uses were sustained. They have always been favorably regarded. Lord Eldon, in Moggridge v. Thackwell, following the opinion of Lord Thurlow in While v. White, 1 Bro. Ch. Cas. 12, supposes the doctrine to have originated, in the principles of the civil law, or in the early religious notions of the English ; and he states that long before the statute of wills there was a period when a portion of every man’s estate was-applied to charity, and the ordinary felt himself obliged so to apply it.
    In the case of McArtee v. the Orphan Asylum, 9 Cow. 437, ^Chancellor Jones investigates this branch of chancery jurisdiction with great research and ability. He says, at page-481 : “ It is admitted that there did exist a general jurisdiction over charities in England, anterior to the statute of Elizabeth, which was exercised -by the chancellor; but that jurisdiction, it is said, was a branch of the prerogative of the crown, and did nob belong the ordinary powers of the court of chancery. And elementary writers, of acknowledged merit, are cited to show that, the superintendence of charities, in common with tho charge of infants and lunatics, belongs to tho king as parens patria, and that the jurisdiction of chancery in those cases does not appertain to it as a court of equity, but as administering the prerogative and duties of tho crown. If this were so, the court of chancery in this state might, perhaps, claim the jurisdiction for the very reason that in England it did belong to the crown as parens patria." After referring to the analogous parens patria power over infants?, and its entire assumption in chancery, and as to the old mode of proceeding by information where tho cestuis que trust were uncertain, he proceeds: “But whatever may be the use or necessity of an information by a party in the name of the attorney-general,, where the objects of the bounty are so circumstanced as to make it impracticable or inconvenient to sue in their own names, I am not prepared to say that it would, in any case, bo incompetent to cestuis que trust óf a charity to sustain a bill, or that a form of information by the attorney-general must be used, merely because the jurisdiction of the court over the charity to be established and. enforced, may, in its origin, have belonged to the prerogative of the king as parens patria. The theory of that branch of the English system of jurisprudence may be, that the administration of charitable uses belongs to that jurisdiction; but the power has, from a very remote period, been constantly exorcised by the chancellor in-the court of chancery, and practically has become, I apprehend, as much a branch of his jurisdiction as the care and charge of infants, and perhaps as much so as the administration of other trusts to which the equity powers of the court are applied.” The chancellor states that the chancery jurisdiction in New York is not assisted by any statutory provisions corresponding to 43 Elizabeth, and must proceed only on its general jurisdiction. He refers, for ah instance of an extent of its jurisdiction, to the case of Coggeshall v. Petton, 7 Johns. Ch. 292, where a devise to an unincorporated town for a public use, was sustained as a charitablo devise. The whole extent of that jurisdiction, he states not to be yet defined in' Now York. Again, at page 489: “Must the ^benevolent intention of the testator be frustrated, merely because the agents he has chosen to dispense his bounty, are incapable of acting in the trust? Such a lamentable defect of justice would be a reproach to our system of jurisprudence.” A question and answer very pertinent to the case at bar. The decree of the chancellor in the foregoing ease was reversed by the court of errors on a ground independent of the positions quoted.
    To hold that a charitable bequest is to bo tested by the rules which apply to bequests to individuals, is in nine cases out of ten, to defeat it. There is, if this form of benevolence is to be encouraged, a sort of necessity for a more liberal rule. It is owing to this, rather than to any statutory provision, that the doctrines of the English chancery have been gradually developed, and are now, notwithstanding the mortmain ‘act of George II, in daily exercise. 7 Eng. Con. Ch. 260; 8 Eng. Con. Ch. 140.
    The same necessity and policy have led to the like doctrines in almost all the states. Except only in Yirginia and Maryland, they everywhere find some ground to sustain their charities.
    I do not see a necessity for following the learned counsel through the English cases, since the statute of Elizabeth, nor to notice, particularly, the manner in which a sort of odium is cast upon their chancery, by the selection of cases, long ago overruled, and as much condemned there as here. This charity needs no ultra doctrine to support it. "We do not ask the court, by the perversion of the cy pres rule, to take it from the poor children of Zanesville, and give it to the children of the rich ; nor even upon some general testamentary charitable intent, to frame a scheme, by which it shall go to a charity for education or roligion, as the court or a master may deem proper. All we ask is that it be not perverted from the very purpose to which John McTntire devoted it, If others disregard his last request, we trust this court will not.
    There is a suggestion made on behalf of Mrs. Young, that the proceeds of the fund appropriated to this charity, will far exceed the use intended, and that she is entitled to any residuum. That is a question the court is not now to decide. It must be recollected, that the beneficiaries are increasing with the rapid growth of a town, which, years ago, was spoken of by He Witt Clinton, as the “nucleus of a city.”
    In conclusion, I submit this case, so far as my clients are concerned, with the earnest hope, that this noble charity may be perpetuated. For more than twenty years alter the death of Mclntire, no question *was moved as to its validity. Mr. Young himself, who, in right of his wife, now makes the claim for the fund, and who has heretofore called for a judicial construction of the will of Mclntire, as to the rights of his wife in the bequest to her: has acted for a series of years, not only uj>on the belief of its validity, but as is shown by the abstract, was one of the building committee in the erection of the bchool-house.
    The case does not require from the court the formation of any scheme for the administration of the fund. Whatever was necessary to make a defined intent practical, has been accomplished by the legislature. Nor does it require the court to establish any general principle, which will give effect to all the crude and impracticable forms of visionary benevolence.
    G-. Swan, for the complainants,
    contended that the devise had not lailed for want of a proper person to take; that the trustee had violated his trust, and the legislature had power to appoint a new one to see to its proper execution; and that the plaintiffs had a right to prosecute the suit. Upon the last point, among other things, he said :
    It seems the corporation never questioned the authority of the legislature to make the appointment of trustees to the charity; •but, on the contrary, its officers have assumed the administration; of it, and claim a right to it under that appointment even now. The heir at law has also acted under it, without pretending it has devolved upon her for the want of an appointment. The answers and exhibits show this. Learned gentlemen on the other side might have spared themselves the labor of collecting authorities to show that the charter of private corporations can not be altered or repealed, except upon default of the corporation judicially ascertained, with the consent of the corporation.
    We are not prepared to recognize the modern popular doctrines upon this subject, because we think they have been generated by .party conflicts, and are, at best, the result of unenlightened public opinion, brought about by the incessant efforts of profligate aspirants lor power. We hope soon to see the good sense of community expelling this delusion, and suffering this interest of the community with others to repose in security under the laws and •constitution of the country. But while we concede to the gentlemen this principle, we by no means admit that clothing the corporation under consideration with the power of administering a charity, becomes a vested right, or in any sense a franchise, so as to bo placed beyond the legislative ^control. It is a power— •a duty rather than a corporate franchise — and whatever it may be considered, may be devised without violence or injury to the •objects for which it was created.
    Our statute books are full of appointments similar in principle, nor has doubt ever been entertained of their validity. It would •seem absurd to pronounce the appointment of a trustee to a charity, an executed contract between the government and the appointee, and place him beyond the control of the legislative power, so that he might hold the fund in perpetuity.
    It is admitted that the Zanesville Canal and Manufacturing Company lailed to build the dam and construct the lock or locks within the time specified in the act. Under these circumstances it seems to the counsel for the complainants that it was not strange that “certain persons in the town began to pretend” that the .Zanesville Canal and Manufacturing Company had forfeited their charter, by reason of their failure to complete their canal and locks by February 11, 1835.
    We shall endeavor to satisfy the court that this was something more than mere pretense of these certain persons in the town of Zanesville. It is admitted that questions arising from circumstances with regard to the surrender of franchises, under acts of incorporation, are seldom to be met with in the books. There is. very little light to be drawn from adjudications in our own country upon the subject; for when questions of the sort have arisen, the courts have proceeded with great circumspection, and confined themselves to the question under consideration, lest some-collateral interest might be affected by declaring corporations dissolved. We will examine the question upon general principles before calling the attention of the court to the provisions in section 15 of the act granting a charter to the Zanesville Canal and Manufacturing Company. It is laid down .in Viner’s Ab., vol. 6, p. 281, tit. Corporation : 1. That if a corporation be made of confreres and sisters, and after all the sisters are dead, all grants, etc.,, are void ; for when the sisters are dead there is not any perfect, corporation. So, a corporation founded by the name of brothers and sisters, and all the sisters are dead, and the brothers make a. lease, the lease is void. So in lb. 282, a corporation may be dissolved, for it is created upon a trust, and if that be broken, it is forfeited, and a judgment of seizure can not be proper in such a case, for if it be dissolved, to what purpose should it be seized?' 4 Mod. 58, Sir James Smith’s case. The doctrine as laid down in Angel and Ames on Corporations, 509, where the most of the authorities relating to the point are collected, is this, that if a cor.. poration buffer acts to be done, which destroy the end and object of its institution, it is equivalent to the surrender of its-rights. 19 Johns. 456. An election of trustees, made after the insolvency of the company, for the mere purpose of keeping it in existence, will not prevent a dissolution. 1 Hopk. Ch. 300. In the case at bar, the very end and object of the being of the corporation has been surrendered by the consent of the stockholders, and the stock actually distributed, or the avails of it, upon the appraisement, when condemned for public uses. Its franchises are gone with the objects for which it was created.
    But the vexed question of what particular circumstances shall amount to a dissolution of a corporation, or what constitutes a forfeiture upon the general principles of law, without judicial determination between the government and the corporation itself, is not, in this case, necessarily before the court. Whatever doubts and difficulties may exist as to the forfeiture or dissolution of corporations under particular circumstances, or under the circumstances in which the Zanesville Canal and Manufacturing Company have placed themselves, none can possibly be raised as to-the power of the legislature to attach any condition ór limitation to the grant of a charter they may deem for the security of the public, and to declare a positive and. absolute forfeiture, as the-penalty for negligence or default. With these views of the subject, we will examine section 15 of the act of February 24, 1816, 14 Ohio L. 303, which is in these words: “That unless the said canal and manufacturing company shall, in one year from the passage thereof, make and complete the lock in their dam, as directed in the act entitled an act to enable John Mclntire and his associates-to erect a dam across the Muskingum river,’ passed February 22, 1812, so constructed as to enable boats to pass up and down at all times when there is water sufficient for boats to pass on the ripples-in said Muskingum river, and unless the said company shall make and complete- a canal, as directed in the act aforesaid, within ten years from the passage thereof, then, and in either of those oases, all the rights, privileges, and immunities granted by this act, shall cease and determino.” It is admitted the acts were not done-by the corporation, either by the time limited or by the further time granted by the legislature. By the charter itself, the contingency has happened which created an absolute forfeiture of all the privileges and immunities. The consequence of not complying with the requisitions of this section, and the further time-given by the act of February 11,1828, 27 Ohio L. 56, was not as the learned counsel for the defendants suppose — that of a forfeiture *of a part of its franchises, to wit, the right to build a dam, canal, locks, etc. — but in language too clear to admit of doubt, is unequivocally and unconditionally declared to be the loss of all the rights, privileges, and immunities granted by the act. No right, no interest, no privilege, no immunity, no franchise whatever, can escape the consequence of such neglect. The vitality of the corporate body is, by its creator, absolutely commanded to-cease, and it must cease, or limitations, in charters, are mere mockeries.
    We have already admitted that without some reservations in private charters, to alter, modify or repeal them, the legislature-can do neither. This question we do not deem involved in the present case, but one of reserved- power and its consequences. Reservations of this sort are unknown in England ; and are of •ijuite recent origin in this country. Legislative bodies have at last become ashamed of their own progeny, and, with the peculiar '■energy and injustice of uninformed power, are attempting to take them off by means not unlike the poison and dagger of the felon, and not altogether without his characteristic malice. These corporate bodies, concerning which it has been well remarked, that .they are undefended by the same strong sympathies that guard individual rights, have nothing to oppose to the efforts of misguided power but their constitutional privileges, to be maintained ■by the judicial authority of the country.
    ■ The principle for which we contend, was considered by the .Supreme Court of Connecticut, in the case of the Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 52. The case was in chancery, and an application to prevent, by injunction, the -defendants from proceeding to erect locks, etc. The complainants, in 1798, applied to the general assembly, praying for liberty to erect a toll bridge, etc. An act of incorporation was granted for the purpose, and directing the bridge to be completed within six years, etc. The bridge and locks were to be kept in good repair. Time was given, from time to time, to complete this bridge .and locks, until the same was suspended, and said company was -discharged Jrom the obligation to build the same, until the further order of the assembly. Afterward, the general assembly •resolved that if the falls shall not be rendered conveniently navi,-gablo within three years, the grant should be null and void. This resolution was passed in 1818. In 1824, a now grant was given, ;and another corporation created, whose powers extended over the first grant to the complainants, and who are the defendants in the .-suit. The injunction was dismissed.
    Judge Dagget observes (page 53, concerning the complainants) :
    *“ They are not in the exercise and enjoyment of any right -■or privilege in relation to locking these falls; that to grant the ■injunction prayed for, will be to permit the complainants to lie by, -bold this franchise, and prevent the legislature from authorizing any other company to do what was expected from them. The plaintiffs are not in the exercise or enjoyment of any right which the defendants are attempting to infringe, etc. The case of McLaren v. Pennington, 1 Paige, 102, contains a similar decision of tho same principle. When a state, legislature reserves the power of repeal, etc., a repeal will be constitutional and valid. The chancellor says,.page 109: “ The reservation of a power in a legislative grant, if contrary to the common law, would of itself change-the kiw in that particular grant; and the statute law of the grant itself would form the law in that particular case.” So we say, by the very law ot the grant itself to the Zanesville Canal and Manufacturing Company, its franchises were at an end, by neglecting to complete the bridge, etc., by the time limited in the acts for-that purpose.
    II we are correct in our views on this point, the complainants, who are a corporation created by the act of March 14, 183(3, have-been lawfully invested with the administration of this charity, and have a right to call persons who hold any part of the funds-to an account in this court. This act will be found in 34 Ohio L. L. 514. The preamble reciting that the said canal and manufacturing company had ceased to exist by that or any other corporate name, was not a misrepresentation, but true in-fact and in law. But, if it were otherwise, it would be without.precedent to set aside an act of the legislature, by merely suggesting that it was procured by the misrepresentation and fraud of individuals. This act is not against common right and natural equity, but consistent with both. It was made to protect and perpetuate a valuable public charity ; and, as such, ought to receive the most favorable construction the court can give it, for the furtherance of- the object and to carry out the intentions of the-founder.
    There appears no necessity of considering the principle of cys pres, unLil it shall bo ascertained that the charity fund shall accumulate after it shall have performed the object to which it is specifically dedicated. In that event, it may be extended to the poor-beyond the limits of the town ol Zanesville, or to objects within,, not expressly pointed out by the will, upon the principle of cy pres, as in the case of 7 Ves. 334, or to others ejusdem generis. 3 Brown, Ch. C. 373.
    But it is contended, that a forfeiture of the charter of the Zanesville *Canal and Manufacturing Company must be judicially ascertained in a proceeding directly against it, at the suit-of the government. As the negligence which declares a forfeiture, is admitted, what beneficial object could be attained by such a course ? The facts are as well ascertained by the admissions of the ■ parties, as they could be by the writ of quo warranto, information, or any other process known to the law in such eases. The facts .are admitted; and the very constitution of the corporation contains the penalty of its own dissolution.
    C. C. Convers, for the canal company, in reply.
    The counsel for the complainants attempt, with plausible ingenuity, to keep out of view the two questions involved between the new trustees and those named in Mclntire’s will, whose appointment was confirmed by the legislature. He assumes that “the only ground upon which the defendants can rely is, that the act incorporating the complainants is unconstitutional; and artfully asserting that the legislature intended by that act to wrest the trust from the •canal company — to oust existing trustees, argues upon this assumption that the court can carry out that intent. "We aceej)t no such false issue? We claim that the case is disposed of before we reach the constitutional question, upon which, alone, counsel would have it decided, and which he is very anxious to discuss. The proviso to section 2 of the complainants’ act, does away with the necessity of raising that question, bjr the express declaration, that no private or corporate rights shall be affected by it. A constitutional question ought not to be pressed into a case, which can as well be decided without touching such a question. But if the court inclino to consider that question, it will be found that there is no ■such distinction as the counsel insist, between section 18 of the company’s charter, and the cases cited to sustain the claim of the defendants to constitutional protection. The case of the trustees •of the N. Gloucester school fund v. Bradbury, 2 Fairf. 118, is wholly .at variance with the distinction set up, and completely explodes them. In that case the fund was derived from a public source, the govei’nment, for the purpose of education, and legislative trustees appointed and charged with its management; the trustees were incorporated, not the cestuis que trust, to superintend and manage the public gift, yet the court declare the act which seeks to take from these trustees, these agents of' the public,'as counsel would •call them, those privileges and franchises without their consent, unconstitutional and void. The case before this court contains some important features not found in that. Here the gift flows from a *'private source, and the testator appointed private individuals, his friends, whom he himself associated together, and to -whom he had given a name — individuals who are afterward recoguized and incorporated by the legislature, for the identical purpose for which they were selected'by the donor. In the New Gloucester case the trustees were to perform their duties without compensation out of the fund. In our case the will provides that the company shall have the mansion house of the testator after the determination of the life estate of the widow intended as compensation for services to be performed under the will. The franchise of a trustee of the poor school in the case before us is valuable) therefore, as property, and can not be taken away by subsequent legislation.
    Counsel say further, that the charity remained as much a subject -of legislative action after the charter granted to the company as before. It had, he insisted, received no charter to give it form and make it permanent, before the act of 1836, under which the complainants claim. The fallacy of this is made apparent by the simple application of the old rule for the construction of new statutes, to consider the “ old law, the mischief, and the remedy.” The old law was the charter of the company, which the complainants insisted had ceased to exist, by means of which “ no person or body corporate were then competent, in law, to perform and execute the duty, and exercise the authority required of said company as trusteesand in order to carry into effect the said devise, therefore, the new law could remedy the mischief, and the act of 1836 was accordingly passed to remedy this supposed want of trustees by incorporating new ones, precisely what the company was under their charter. Is it not a perversion, then, to say the law of 1836 incorporated this trust, or that it conferred upon the charity a charter to give it form and make it permanent? Laying aside his usual precision, counsel raises an apparent distinction between the powers which their act professes to vest in -the comjdainants, and which the recital in the preamble, and the whole scope of the act itself, admits were once well vested in the company. The new trustees were created only to take the place of the old ones, who, it was alleged, had gone out of existence. Is it not absurd to say such an act was designed to incorporate the charity, or what is the same thing, the cestuis que trust f But who are the cestuis que trust named in Mclntire’s will ? Not the whole town of Zanesville ; not the rich men of Zanesville; but the “ poor children ” of that town; and not all of them, but only such as shall be selected by the president and directors of the company. What ono of the “ poor children ” *of Zanesville is named in the act. ■of 1836? Are Peter Mills, John A. Gower, etc., named in the act, “jDoor children ” of the town ?
    Counsel insist that section 18 of the company’s charter was a mere appointment, like the ordinary case of a legislative appointment of an individual to perform a public duty. He is mistaken in supposing this charity a p>nblic one. Neither its creation nor-its objects partake so much of a public character as the town of Gloucester case. That, flowing from the state, was open to the whole town ; this, the gilt of individual bounty, to such a certain-class in the town as may be selected by the company. It is the band of the company alone, that can point to the particular individuals, among the “poor children,” selected as the object of the-testator’s charity he selects through them.
    The whole subject of corporations and gifts in charily, whether public or private, is exhausted in the learned arguments and opinions in the Dartmouth College case. But this part of the argument, if it apply at all to coiporations, can only apply to corporations already created, and in full existence when the appointment is made, and which it is then at liberty to accept- or refuse-without affecting its charter, not to those where the power, franchises or appointment, if counsel prefer. it part of the charter it selfT one of the elements of its very being. Ibis cnarter is an entire- body, made up of several members — manufacturing, banking, school-trust;'yet all constituting one complete whole. It must be accepted entire, or rejected entire. As granted, and accepted by the company, it contained eighteen sections. It would seem clear that a charter containing only the seventeen first Sections, is a different one, varying the contract. Ii the legislature can strike out one section without tho consent of the corporators, why may it not add a section without their consent? Can the legislature compel-a corporation already existing to accept a trust? The same principle which would permit the repeal of one section, will authorize the repeal of the whole charter. Every rule of law, by which, variances between contracts aro tested,'declares the charter of this company with eighteen sections, a different instrument when section 18 is stricken out.. The true question first to be decided, and which I think fatal to the claim of tho complainants, is, did the legislature, by the act of 1836, design to take away the trust from the set of trustees then holding it, and performing their ouiios in the full exercise of their powers, and transfer it to a new set? or did they proceed merely to supply a supposed vacahcy, occasioned' by the supposed death of the former trustees? *This question counsel evade, with the gratuitous assumption that the legislature did design to take away the trust from the existing trustees, and vest it in those newly created. Starting out upon this, the fallacy runs through his entire argument. The act of 1836 does not profess to remove the company from their office of trustee for that this court has decided in Ohio, etc., v. Brice, 7 Ohio, 82, pt. 2, it can not do; but supposing the representations made by the complainants, as stated in the preamble, to be true, treats the office of trustee as vacant, by reason of the company and all the trustees under it “ having ceased to exist.” The legislature in passing the act, proceed doubtingly and with caution, provide against its operation in case the representation on which its enactment was based should prove untrue in fact or in law. No one can road the preamble to the act of 1836, and the two first section» of the act, and suppose it intended to have effect, if the company in fact existed, and was at that very time “performing and executing the duty, and exercising the authority, required of said company as trustees.”
    The second point taken by counsel is, that admitting that the act of 1836, which provides that the Molntire school, therein incorporated, should be, and thereby was, “invested with all the property, estate, rights, credits, claims, demands, interest, powers, and authority, which by the last will and testament of the said John Molntire, deceased, was conferred on and invested in the canal company, with all the privileges to the-same belonging;” yet this nowhere gives the corporation, thereby created, any visitatorial powers or authority to superintend the lawful trustees existing before, or to call them to account, but on the contrary professes to create trustees, and to vest in them the property, and which denied the existence of the lawful trustees, was nevertheless, after all this, designed to confer the right of visitation, and to authorize them to call the trustees claiined to be dead to account l Can anything be necessary to refute the proposition than barely to state it? Suppose all the act of 1836, which conflicts with the rights of the company, to be stricken out (and counsel admits that where the act conflicts with the charter of the company, the charter must stand), would anything «emain to authorize the complainants to call the canal company to account? Nothing would remain but the preamble, “ solitary and alone,” and that declaring -the company from which the account is sought had “ ceased to ■exist.”
    Again, the legislature could not touch the visitatorial power ■(including the right to call to account), for that is a hereditament belonging to the donee and his heirs. It is property as sacred as any other ^property. The bill itseJf is not framed and filed by the complainants as cestuis que trust having the beneficial interest, but as trustees — “ in the capacity and as trustees of the Mclntire Poor School;” and, if sustained, it must be in their corporate capacity as trustees, by virtue of their corporate interest in the subject of the bill. Edwards on Parties, title corporation. Even if, as individuals, they were interested in the subject matter, they could take nothing by the present bill. The whole scope and object of the bill proceeds upon the right of the complainants to the property in the hands of the company, which, by the act of 1836, was conferred upon them, and seeks its surrender, and a recognition by the company and others interested of their right as legal trustees. As auxiliary to this main object they ask an account that they may know the extent of their interest. It never entered into the mind of the draftsman of this bill that he could under it compel an account, except as in aid of and incidental to the relief. It seems to me to be trifling with the administration of justice on such a bill to ask for a discovery independent of the relief. The authorities upon this point are clearly with us. 3 Meriv. 161, 472; 6 Ves. 62, 63, 686; 10 Ves. 553.
    But why sustain this bill in favor of these complainants, who commenced their warfare against the lawful trustees of the testator’s own choosing, by false representations to the legislature, in aid of a design the first step in which is marked with falsehood? Why sustain it for the naked object of allowing them to look into tho books of the company, when they did not even ask this of the legislature? Why longer keep the defendants upon this ocean of vexatious litigation, into which the misrepresentations of the complainants have launched them ? Even now the superintendent of common schools may again, as he has already once done, call upon the company for an account; and his right is not disputed, because it is held proper that there should be some general law applicable alike to all, providing for the supervision of all charities» " But we do protest against legislation in a particular case, and more strongly when an attempt is made to give such legislation an operation by mere implication, never contemplated by the legislature. The courts in New Hampshire and Massachusetts have decided such special legislation unconstitutional. Ample remedies exist in the hands of the superintendent of common schools to enforce the due administration of this charity, as far as the trustees are concerned, and by the court of probate, so far as the .executor is concerned.
    *It is insisted, also, that the company, by ordering the ex■ecutors to pay the debts of Amelia Mclntire after her death, was guilty of a breach of their trust, though not willful. To this we •only reply that it must be a bad construction of her father’s will which would take away the only means of the daughter’s support, while the property was yielding no revenue. The case of The Haberdashers v. Attorney-General, cited, does not go farther than to ■direct the existing trustees properly to apply the funds; it does •not transfer the trust to others.
    It is further contended that under the act of February, 1835, the company actually surrendered its charter when they sold part •of their ground to the state. The counsel is not well informed of the situation of the company. There still belongs to it, after the ■sale to the state, most valuable real estate, some of which is under ■permanent lease, subject to revaluation for rents every fifteen years. Their banking business has not been entirely closed up, and some ■of its bills have been redeemed since the passage of the act of 1836. The stockholders, also, have large and important interests which require corporate action, and none are so deeply interested as Mrs. 'Young and the poor school fund. The case in 9 Conn. 52, materially differs from ours.
    As to the other and most important question between the heir .at law and the trustees of this charity, if the court-doubt upon it, we prefer meeting that question in direct suit by the heir at law ■against the company, asserting the invalidity of the charity, to being called upon in this collateral way;
   By the Court,

Lane, 0. J.

The plaintiff’s right to relief in the. present case, depends upon their successfully maintaining the two following propositions, to wit, that the will of Mclntire created a ■charitable trust, which this court can enforce, and that they are the lawful trustees. The first of these arises upon the plea of the-heirs; the second is presented by the demurrers and answers of the other defendants.

Wo have entered upon the examination of this case with much-solicitude ; for the great value of the property, the very talented' efforts of counsel, and the consideration that this is the first proper charity which has fallen under the action of this court, all unite to* magnify its importance. The positions taken by the heirs to show" the bequest void, are, 1. That the object of the testator’s bounty-are uncertain, and that the trustees had no capacity to take, because the *Zanesville Canal and Manufacturing Company had no-existence as a corporation at the time of making and probate of the will. 2. That its corporate powers have been so forfeited as-to terminate its existence. 3. That the bequest to the officers of the company, vests the estate in them, in that character, since they hold by an annual tenure, and are liable to be changed at each successive election.

It is admitted that such a bequest as this, would be sustained in* England. However uncertain the object, whether the person total? c be in esse or not; whether the bequest can be carried into exact execution or not; whether the general charitable intention is clearly manifested, a court of' equity will sustain the legacy, and give effect to it in some form upon principles of its own. But it is asserted by the counsel for the heirs, that this lax and wide reaching jurisdiction in charities is peculiar to England, and depends-on the statute of Elizabeth only. We would not unnecessarily enter into the much disputed and greatly perplexed inquiry of the-extent of chancery jurisdiction over charities, independent of the> statute. But one of the earliest-elements of every social community upon its lawgivers, at the dawn of its civilization, is adequate-protection to its property and institutions which subserve public uses, or are devoted to its elevation, or consecrated to its religious culture, and its sepulchres; and in a proper case, the courts of our state might be driven into the recognition of some principle analogous to that contained in the statute of Elizabeth, as a necessaiy element of our jurisprudence. 2 Story’s Eq. 389; 17 Serg. & R. 88; 9 Cow. 437. But without reference to these considerations, where a trust is plainly defined, and a trustee exists, capable ol holding the property and executing the trust, it has never been doubled that chancery has jurisdiction over it, by its own inherent ■■authority, not derived from, the statute, nor resulting from its functions as parens patria.

The property devised in this case, consisted of land, personalty, .and stock in the Zanesville Manufacturing Company; the legal •ownership of this was either in Mclntire’s executor or heir. The ■condition on which the devise ever took effect, was the death of the daughter without issue. The objects of the testator’s bounty ■were the poor children of Zanesville, and the benefit intended was their education. There is no doubt that a trust attached to the property, whoever might hold it; “ for whenever a person by will ■gives property, and points out the object, the property, and the ■way it should go, a trust is created.” And a bequest of land to A. ¡to construct an asylum for aged sailors, although inefficacious to piass the legal title, sufficiently ^defines the trust, and charges the heir with its performance. 3 Pet. 119, 152; 1 Story’s Eq. 415 ; 4 Wheat, appendix. The position, therefore, taken by -the heirs in the plea, that the land descended to them on the death of the daughter, absolved from the trust, is not supported, but overruled.

The interests of the heirs are nevertheless involved in the case, for the next question arising is, whether the trusts which we have thus found to exist, shall be executed by the plaintiffs, who are .the trustees under the act of 1836, or the Zanesville Canal and Manufacturing Company, who are the trustees designed by the ••testator, or upon the heirs upon whom the law throws the duty .if there are no other trustees. In the statement and arguments made by counsel, it seems to bo assumed that the Zanesville Canal .and Manufacturing Company had no legal existence until 1316. I am not certain this conclusion is just. In 1812, a statuLe enabled Melntire and his associates to build a dam across the Muskingum, .and cut a canal around the falls. The objects expressed in the preamble are the advantages of the water-works, and the improve•ment of the navigation. It' authorizes them to acquire lands, for the purpose of making a canal, “ or the better td answer the objects of this act," and it gives the right of suit to any person injured by their neglect. The statute, therefore, imposes a common liability, and it implies the possession of common property,, and the duty of accounting for- profits. The organization of the Zanesville -■•Canal and Manufacturing Company was had in 1814, in the form of corporation. Now, the bare grant “ to hold Gildam mercatoriam ” a mercantile meeting, has been taken to carry corporate power, orr account of common expenditures, 10 Co. 30; 1 Roll Ab. 513; so a. grant of land, to a town on rent, and other similar cases, Ang. &- A. on Corp. 45. So the grant to a part of an ecclesiastical society, to repair their meeting house, confers corporate powers, 2 Day Conn. 259. It might, therefore, perhaps be plausibly contended' that it was a legal existing corporation, before the date of the will, and the objection of their want of capacity to execute trusts might receive its answer, by the notification arising from the subsequent, act of the legislature.

We do not, however, intend to place our decision upon this-basis. The actual situation of the company in 1815, was that of a, corporation de facto, with officers, and a capital stock of $250,000, held in the form of shares. It was in reference to this condition, that Mclntire made a disposition of its property. We have seen that it consisted of his mansion house, lands, ^personalty and stock. It passed to the company for the purposes of this-trust, not by the death of Mclntire, but by a contingency which, happened in 1820, and after the statute of 1816, which imposed, upon them the most ample capacity for holding it. The bequest, upon this trust, can take effect upon the very common ground as-a remainder, contingent upon the death of Mclntire, because limited to a person not in being, but becoming vested by the capacity acquired by the corporation, before the determination of the particular estate, And we should be justified in taking still stronger ground by the authority of a majority of the judges in the Sailors’ Snug Harbor, 3 Pet. 99, in holding that a bequest upon charitable uses may take effect, as an executory devise, to a corporation subsequently acquiring the .capacity to hold. It is, therefore,. Without difficulty we conclude that on the decease of the daughter,, the property of Mclntire passed to the Zanesville Canal and Manufacturing Company upon these trusts.

It only remains to enquire if their right to it has been lost, either by their own neglect, or by subsequent legislation. The act of 1836 was passed upon the supposed case, that this company had become extinct. It carefully saves the right of all persons in the-property; conseqüently the company lost none of its interests, if it then had a legal existence. If the corporation has been dissolved, it is not through judicial action, but by the bare and naked effect, of the statute limiting the time for the completion of the dam and canal. It must be observed, that it is not section 15 of the statute of 1816 which works this forfeiture, since the time there given is extended, in January, 1817, for one year, 15 Ohio L. 35, and in December, 1817, until December, 1818, 21 Ohio L. 53; and in 1828 ia enlarged until February 11, 1835. The last act, 26 Ohio L. 57, 5, 26,-27, instead of declaring all rights, privileges, and immunities determined, in case of failure, like the statute of 1816, only provides that the Muskingum Navigation Company maj finish the canal and hold it, until their expenditures are reimbursed. There is no forfeiture attached to the last enlarging statute, except what arises from mere lapse of time. No further legislative act works a forfeiture, except that resulting from the act of 1835, which recites that the Zanesville Canal and Manufacturing Company have lost its right to construct the work” and authorizes the canal commissioners to purchase from them. Now the modes by which a private corporation in our country is dissolved are: 1. By the death of its members. 2. Surrender of its franchises. 3. A judgment of forfeiture for non-user or abuse. But the Zanesville Canal and Manufacturing Company has continued an organized and existing body until the piresent day ; there has been no judicial act declaring a forfeiture, and the legislature, by the act of February 19, 1835, after the time of its supposed dissolution, recognized it as a person capable of contracting by authorizing a purchase from it. 33 Ohio L. L. 90. It seems, then, plain to us, that at the time of the passage of the statute of 1836, the Zanesville Canal and Manufacturing Company had not “ ceased to exist,” and that their corporate rights to execute the will of Mclntire, through their officers, according to his true meaning, was not affected nor impaired ; consequently, the incorporation of the new board of trustees was void by the terms of the act.

The suggestion that the bill may be sustained at the suit of these plaintiffs, as the representatives of cestuis que trust, can not be supported. This court would entertain a suit for mismanagement brought by the prosecuting attorney, 36 Ohio L. 35, sec, 43, or upon the relation of a party in interest; but such a proceeding would require a bill of a structure altogether different from this.

Bill dismissed.  