Hesketh v. Murphy

The Chancellor. William S. Malcolm, late of Paterson, died in 1872. His will contained the following provision: “ After the death of my said wife, I hereby empower and direct my said trustees or trustee for the time being of this my will, to employ the annual income of the said moneys so invested, and from time to time to be invested, for the relief of the most deserving poor of the city of Paterson aforesaid — 24 — forever, without regard to color or sex ; but no person who is known to he intemperate, lazy, immoral or 'undeserving, to receive any benefit from the said fund. And for the purpose of preserving and continuing a perpetual succession of trustees for the .purpose of carrying into full effect the provisions of this my will, I do hereby empower my said trustees or trustee for the time being, if any, whether retiring from the office of trustee or not, or if none, then I direct and hereby empower the proving executors or executor for the time being, or the administrators or administrator for the time being, of the last surviving trustee, to substitute by any proper writing under his, her or — 25 — their hands or hand, any fit person or persons in whom alone, or, as the case may he, jointly, with the surviving or continuing trustees or trustee, my trust estate shall vest or proper assurance be vested.” The objection made to the gift is that it is too indefinite, especially seeing that, as it is contended, no power of selection of the objects is conferred. The gift is for the relief of the most deserving poor of the city of Paterson, without regard to color or — 26 — sex, to whom alone it is to be confined. A gift for the relief of the poor of a city generally, is undoubtedly a valid charity. Shelf on Mortmain 62. And so, too, where the gift is confined to a certain class of poor persons, as to poor, pious persons (Nash v. Morley, 5 Beav. 177); or, to the widows and orphans (construed to mean poor widows and orphans) of a parish (Atty.-Gen. v. — 27 — Comber, 2 Sim. & Stu. 93); and the deserving poor of a town. Goodell v. Association, 2 Stew. Eq. 32. “ Where,” says Lord Hardwieke, in Atty.-Gen. v. Pearce, 2 Atk. 87, “testators have not any particular person in their contemplation, but leave it to the discretion of a trustee to choose out the objects, though such person is private, and each particular object may be said to be — 28 — private, yet in the extensiveness of the benefit accruing from them they may very properly be called public charities. A sum to be disposed of by A. B, and his executors, at their discretion, among poor housekeepers is of this kind.” The general principle is that courts of chancery uphold and administer gifts where they are made to particular purposes which are charitable within — 29 — the letter and spirit of the statute (43 Eliz. c. 4), OT where they are made to charity generally, if there is a trustee with power to make them definite. De Camp v. Dobbins, 2 Stew. Eq. 36. In the case in hand the testator describes a class of persons for whose relief the trust is designed, and the duty of selection necessarily and obviously falls on the trustee. By the terms of — 30 — the gift, lie is to employ the income for the purpose mentioned. For want of a trustee this court would appoint one to execute the trust. In Barclay v. Maskelyne, 4 Jur. (N. S.) 1294, where the gift was for the benefit of such poor persons emigrating as the trustees should consider most deserving, and the trustees declined to act, the court directed a scheme for the execution of the trust. The gift in question is a valid charity.