Shotwell, Executor, &c. v. Mott and others.

cellor would have established one, so that the trust should not fail.

So in Moore's Heirs v. Moore's Devisees and Executors, 4 Dana's R. 354, 357, the Court of Appeals in Kentucky held that where a charity was given, and no trustee appointed by the will, a court of equity will act as trustee and appoint one if necessary.

I should mention that in the same case the court overruled the objection that the trust was void by reason of its locking up the money in perpetuity.

The bequest to the poor of Flushing is made to the trustees of the will, and is not obnoxious to the third objection.

FOURTH. It is urged against both bequests that the trusts are too vague and uncertain, and the objects too indefinite to enable the court to sustain the trust.

The cases referred to in support of the objection were those where no object whatever was designated; as a bequest for such objects of benevolence and liberality, as the trustee might approve in his own discretion.

Here the designation is specific. One is for ministers of the New York Meeting of Friends called Orthodox, who are in limited and straitened circumstances, especially those who travel to the yearly meeting. The association of Friends, thus spoken of, is well known and of long standing. There is no difficulty in its identity. Nor is there any doubt as to the meaning of limited and straitened circumstances.

The other is still more specific. It is for the relief of indigent residents of a town. In both cases the power of selecting is necessarily conferred but that renders the gift no more indefinite. If it were to all the poor or indigent, the trustees would have to exercise a similar discretion.

In the case of Griffin v. Graham, before cited, the court held that the trust was for a definite charity, and a specific object pointed out, and the court would take cognizance of the case by virtue of its ordinary jurisdiction as a court of equity. There the trustees were to buy two acres in Newbern, build thereon a school house, employ a school master, and educate therein as many orphan children or children of poor and indigent parents,

Shotwell, Executor, &c. v. Mott and others.

whom they deemed best entitled, as the funds were found equal to. They were also to clothe and maintain the children, and to bind them out to suitable occupations, when they arrived at the age of fourteen. And see King v. Woodhull, 3 Edw. Ch. R. 79, 85; Wright v. Trustees of Methodist Church, 1 Hoff. Ch. R. 202, 239.

In the Mayor &c. of Philadelphia v. Will's Executors, 3 Rawle's R. 170, the devise of both real and personal estate was to found a hospital for the relief of the indigent blind and lame. And in Martin v. McCord, 5 Watts, 494, the gift was of land on which to build a school house for the benefit of the neighborhood.

In the Sailor's Snug Harbor Case, 3 Peters, 99, the noble charity of Capt. Randall; the devise was made to maintain aged, decrepit and worn out sailors.

In Moore's Heirs v. Moore's Devisees, &c. 4 Dana's R. 354, the devise was for educating poor orphans of Harrison county, to be selected by the county court. And the court say in that case, that it is not an objection to a devise or legacy, that it is for the benefit of a class of private individuals, if they are described collectively by some characteristic trait by which they may be identified.

In Bartlet v. King, 12 Mass. 537, the bequest was to trustees, for the persons constituting the American Board of Commissioners for Foreign Missions, for the purposes of the board and to promote the pious objects thereof. It was held valid, al. though the objection was made that it was void for uncertainty, the board being a voluntary association, and the persons for whose benefit it was intended, incapable of being known or ascertained.

The books are full of similar cases.

Mr. Shelford says almost all the charities which are to be administered in the Court of Chancery have one of four objects in view.

1. Relief of the poor in various ways. 2. The advancement of learning. 3. The advancement of religion. 4. The advance of objects of general public utility. (Shelf. on Mort. and Char. Uses, 61.)

Shotwell, Executor, &c. v. Mott and others.

He gives numerous examples of all these, and of many under the 1st and 3d heads, which are decisive against the objection made here for vagueness and uncertainty. (Ibid. 60, &c., 71, &c., 104, 105.)

Among his examples are, "for the relief of the poor of a parish ;" and for the poor in various shapes and forms; and numerous gifts for the support of preaching ministers, and for the support of poor dissenting ministers.

And see the celebrated case of Lady Hewley's charity; The Attorney General v. Shore, 7 Simons, 290, note; 11 Simons, 592; and 9 Cl, & Fin. 355; where the trusts were far more indefinite than these.

FIFTH. As to the objection that the trustees of the town of Flushing are not competent to hold real estate. The answer is, that the bequest is not of land, nor is it made to those trustees. They are only to select the indigent residents of their town, who shall receive the annual bounty provided for them by the testator. There is nothing illegal or questionable in this.

If the bequest were directly to the trustees of the town, the case of Coggeshall &c. Trustees of New Rochelle v. Pelton, 7 J. C. R. 292, seems to be decisive of its validity.

There must be a decree declaring the trusts of the will accordingly. The parties who appeared at the hearing are entitled to their costs out of the fund.

Decree accordingly.

Didier v. Davison.

DIDIER, survivor of D'Arcy, v. DAVISON, Survivor of Hill.

A plea of the statute of limitations, setting up two matters, either of which establishes that defence, is not for that cause a double plea.

A debtor who had failed and whose debt was past due, assured his creditor in writing, that he would pay if he became able. The creditor did not agree to forbear the debt, but he omitted to sue, and the debtor afterwards became able to pay it. Held, that the creditor's action accrued on the debt falling due, and not on the debtor's becoming able to pay.

Equity, before the revised statutes, applied the doctrine of limitation of actions, by analogy to the construction and application of the statute in the courts of law in like cases.

Under the statute of limitations enacted in 1813, it was not necessary that the person relying upon a return to this state as commencing the period of limitation, should have resided here full six years after such return; nor that his residence here should have become known to the creditor.

It sufficed that the debtor's return was open and public, and made with the intent to reside in the state.

J. residing in the West Indies, in and prior to 1816, became largely indebted to D. & D., merchants in Baltimore. He failed, and went to England, from whence in 1817, he wrote to the D.'s promising to pay when he became able. Subsequently he went to South America and resided there several years. In March, 1834, he came to New York to reside, having sent his family here in the summer of 1833. He declared his intention of becoming a citizen in April, 1834, and he and his family resided here, openly until September, 1835, with the exception of his own temporary absence from March, till July, 1835. In November, 1843, D. commenced a suit in equity in this state against J. to which J. pleaded the lapse of time, setting up as a bar his residence here in 1834 and 1835. Held, that the plea was a good bar to the suit.

Amending a plea, defective in form.

June 14, 15; August 8, 1844.

THE bill was filed by Henry Didier as surviving partner of the firm of Didier & D'Arcy of Baltimore in Maryland, against James Davison as survivor of the firm of Davison & Hill. It set forth a large indebtedness by the latter firm to D. & D. arising upon bills of exchange and a joint shipping adventure in 1815 and 1816. D. & H. transacted business in the island of Hayti, and also in Baltimore where Hill lived. Davison resided in Hayti. D. & H. failed in 1816, and then owed D. & D. over $30,000. The bill set forth sundry letters from Davison to D. & D. in 1816 and 1817, some written from Hayti and others

Didier v. Davison.

from London, acknowledging the debt and promising to pay it whenever he became able. That he has resided out of the United States ever since, and neither he nor Hill have been in the country, except a temporary visit which the defendant pretends Hill made in 1820, an I and ther by Davison in 1834; as to which, the bill alleges that Hill was worth nothing in 1820, and D. & D. were ignorant of the visits of both Hill and Davison, and while here, they avoided D. & D. That Davison while in the United States in 1834, did not appear as a business man, nor purchase nor rent a house or store, nor did his name appear as residing here in any manner; and he did not leave or afford D. & D., any opportunity of enforcing their claim; and that he did not become able to pay the debt till after 1830.

Davison put in a plea in bar, accompanied by an answer. He set up in his plea that the complainant's cause of action or suit arose six years before filing their bill, and six years before serving or suing out process against him to appear and answer the same. The plea then traversed the allegations of the bill as to the defendant's continued residence out of this state, and averred his actual and open residence in New York with his family, from March 7, 1834, to March, 1835, when he left the state, returning in July, 1835, and then continued to reside here until September, 1835, and during his residence he continued to transact mercantile business here.

The plea also averred that Hill came to this state to reside in 1820, and continued actually and openly to reside here for three or four years next thereafter.

The answer in support of the plea averred the defendant's residence as before stated, and that on the 5th of April, 1834, he filed in the usual form, his intention of becoming a citizen of the United States. That his absence from March to July, 1835, was temporary; and that when the bill was filed, he was an actual resident of this state. That in the summer of 1833, he sent , his family from New Grenada in South America, where he was then living, to New York, intending to change his residence and reside permanently in the United States. That his arrival here was published in the list of the passengers inserted in the newspapers. The answer then states his boarding with.