Treat's Appeal from Probate

Ellswokth, J. We have none of us entertained a doubt that the court of probate was correct in refusing to order a distribution of the estate in question. The application for a distribution proceeded on the ground that the charitable bequest to the trustees named was void for uncertainty, both as to the beneficiaries of the charity and as to the mode of carrying the charity into effect. But in both these particulars we think the will is clear of objection. As to the objects of the charity, what can be more unambiguous and certain than the language of the will—“ in trust for the promotion of education and science among the Indian and African children and youth of the United States of America;” and as to the manner of doing it, what more clear than the provision that it shall be done “ as in their (the trustees’) judgment they shall deem best.” The class is certain and the individuals to be selected from it may be made as certain by the election of the trustees. Were no mode of selection pointed out in the will there might be force in the objection; but there is a mode. The beneficiaries are to be selected by the trustees, and when selected are to enjoy the charity in greater or less proportions from year to year, or in such form as the trustees may think best. The will has nothing of that indefiniteness as to its object or as to the mode of its execution which has defeated charitable bequests in the cases read to us on the trial. The law on this subject is, we suppose, well settled in this state, (though somewhat different from what it is in England, under the doctrine of cy pres which prevails in their court of equity,) requiring certainty in the persons.to be benefited, and an ascertained mode of selecting them if they are to be taken from a definite class. Here they are to be selected by the trustees, who are, by the provisions of the will, invested with most ample powers for that purpose; a sacred regard to the wishes [117] of tlie testator being the only restriction or limitation imposed. See the case of Bull v. Bull, 8 Conn., 48, and the elaborate discussion of the question in the case of The American Bible Society v. Wetmore, 17 Conn., 182, which last was the case of a devise to an unincorporated society. In White v. Fisk, 22 Conn., 53, the same general doctrine will be found. There a certain clause of the will of the late Judge Hitchcock was attacked, on the ground of its indefiniteness as to the mode of selecting the objects of his bounty. He had provided in his will no way of selecting the beneficiaries from a class, and the court held that they could not, even as a court of equity, do it for him. Had that power been given to his executors or trustees the clause in the will would have been sustained, and Judge Hitchcock would not have been disappointed in his benevolent purpose. It was said on the argument, that as these trustees are not a body corporate, and have no legal successors except so far as they may be appointed from time to time by the. trustees, the trust may fail for the want of persons to uphold the title. But this is not so. This court held the contrary in the case of American Bible Society v. Wetmore, before referred to, and such is the doctrine of the books. A trust never fails for the want of a trustee. If need be equity will provide one ; and beyond that the legislature will grant its aid. This is especially so in the case of public charities, as to which the statute of 1702 has interposed and given-them perpetuity, as much so as the statute of 43 Elizabeth would be held to have done in the English court of chancery. For these reasons we advise the superior court to affirm the judgment of the probate court. In this opinion the other judges concurred.