of said instances, and in what proportion, shall said bequests be distributed? (2) In whom does the remainder in the Chestnut street house and the farm and the live stock on said farm vest, and can the two alien sisters of the testator be heirs thereof? (3) To whom should the bequest to the Second Congregational Church be paid, and is the title an absolute one in the legatee, or restricted; and, if so, to what extent? (4) Is the said mortgage on the Baltic street house a valid asset of said estate; and, if so, what effect, if any, has the devise in said will of said Baltic street house thereon?"

William H. Shields, for Thomas Crosgrove and wife. Charles F. Thayer, for Alex. C. Atchison and others. Solomon Lucas, for Second Congregational Society.

HAMERSLEY, J. The word "family" is one of variable meaning; and, when used in a will as descriptive of the beneficiaries of a legacy, its legal import will be determined by the intention of the testator expressed in the language of the whole instrument read in the light of relevant circumstances existing at the time of execution. Smith v. Wildman, 37 Conn. 384; Wood v. Wood, 63 Conn. 327, 28 Atl. 520; St. John v. Dann, 66 Conn. 401, 405, 34 Atl. 110. This will, evidently the product of an intelligent, although quite unlettered, person, contains 19 briefly expressed bequests, of which all but two are to the brother and sisters, nephews and nieces, of the testator. His next of kin were one brother and three sisters. His gift to the brother is "to my brother and wife"; to the sister who had a husband, "to my sister and husband"; to the two sisters whose husbands do not appear to have been living, the gift is "to my sister"; to three nephews and one niece, who do not appear to have had any family, the gift is "to my nephew"; to one niece whose husband is not living, the gift is "to Eliza White and boys"; to five nephews and three nieces who have families, the gift is "to my nephew and family." Of these eight nephews and nieces, two had a wife and no children, and the others a wife or husband and one or more children. In the case of one niece, one of six children was of age; and, in the case of one nephew, two of six children were of age; all the other children were minors. It does not appear whether the children of age continued to live with their parents, or whether they were of age at the time the will was made, three years before the testator's death. These gifts "to my nephew and family" range in amount from $1,000 to $1,700. The primary meaning of "family" is the assembly of persons under the rule of the head of one household, including wife, children, and slaves or servants; but the word is frequently used in common speech without reference to an established household, and merely for the purpose of indicating the individuals related as husband and wife, or parents and children.

We

think it clear that the testator used the word in the latter sense, and intended each gift "to my nephew and family" to be divided equally between the individuals of the family,-husband, wife, and children. Nothing appears to except these legacies from the general rule that a will speaks from the death of the testator. Therefore the children who were unborn at that time do not share in the legacies. Gold v. Judson, 21 Conn. 616, 623; Jones' Appeal, 48 Conn. 60, 67.

The sisters of the testator who were citizens of Great Britain do not come within any provision of the statute enabling an alien to inherit real estate. Gen. St. § 15 et seq. Therefore the remainders in the Chestnut street house and the farm given by the will to the testator's heirs vest in the brother and sister who are citizens of this state. 1 Swift, Dig. 157; Evans' Appeal, 51 Conn. 435. The stock, however, is personal estate, and the alien sisters can share in this gift.

The devise to his brother Thomas and wife, of the house No. 30 Baltic street, is effectual to transfer any interest the testator had in the land and mortgage debt. Such was his plain intention, and it is not defeated because expressed in language that covers a greater interest than he had to give. The validity of the debt cannot be determined on this application.

The bequest of $500 to the Second Congregational Church is an absolute gift, and the description in connection with the facts found is sufficient to identily the Second Congregational Society, of Norwich, as the legatee. Bristol v. Asylum, 60 Conn. 472, 22 Atl. 848.

The superior court is advised to render judgment settling the construction of the will in respect to the questions asked as follows: (1) Each bequest to a person named and "family" is shared equally by the members of the family (i. e. husband, wife, and children), if any, living at the time of the testator's death. (2) The remainders in the Chestnut street house and the farm vest in the brother Thomas Crosgrove and the sister Eliza C. Atchison. The stock, after the termination of the life use, goes to the brother and three sisters. (3) The bequest to the Second Congregational Church vests an absolute title in the Second Congregational Society, of Norwich. (4) The devise of the Baltic street house transfers to Thomas Crosgrove and wife any interest the testator may have had in the land and mortgage debt. The other judges concur.

HUSSEY et al. v. SOUTHARD et al. (Supreme Judicial Court of Maine. May 29, 1897.)

PROBATE JUDGE--APPOINTMENT OF ADMINISTRATOR. A judge of probate who is appointed by a testator executor of a will is not qualified or authorized, even before probate of such will, to appoint a special administrator cn another estate to which the estate represented by him as executor is largely indebted; and such appointment of a special ad

ministrator is void, and the person assuming to act thereunder may be enjoined from so doing by this court sitting as the court of equity.

(Official.)

Bill by Harriet F. Hussey and others against Charles H. T. Southard and others. Bill sustained, and injunction ordered.

O. D. Baker and S. L. Larrabee, for plaintiffs. L. C. Cornish, for defendants.

PER CURIAM. Bill sustained. Injunction ordered.

BROOKS et al. v. CITY OF BELFAST et al. (Supreme Judicial Court of Maine. May 29, 1897.)

WILLS-LAPSED BEQUESTS-PERPETUITIES-CHARITIES-CY PRES.

1. The residuary clause of the will of Mary E. Simpson Southworth requiring a judicial construction is as follows: "All the rest, residue, and remainder of my estate, and of which I may die possessed, I give, bequeath, and devise to the Central school district of said Belfast, for the purpose following: 1st. The amount of this bequest shall be invested or put at interest so that an income may accrue, and so kept until a sufficient sum shall be accumulated by increase from interest or profit, by subsequent bequests or gifts, or in some other way, to provide for the erection of a school house within said district suitable to accommodate at least four of the schools. 2d. When the sum becomes sufficient for the above purpose, the money shall be used for the building such a school house as is indicated above."

The testatrix executed this will December 17, 1889, and died July 21, 1895. At the date of the will there were 16 school districts in the city of Belfast, including the one named in the will, and which comprised the city proper. Each of these districts was then a body corporate, capable to take and hold property by bequest or devise; but before the death of the testatrix the school districts in all towns in the state were abolished by the statute of 1893 (chapter 216), and on March 1, 1894, Central school district ceased to have a corporate existence for the purpose of taking property by bequest or devise.

Held that, the Central school district having ceased to exist, there is neither trustee nor beneficiary capable of taking the fund; and by the abolition of the district the residuary bequest to that corporation lapsed to the estate of the testatrix, and descended to her heirs as intestate property.

2. Also, that this bequest was not an unqualified and unrestricted gift of a fund to be used for any and all purposes to which the district might appropriate it. It was limited to the specific purpose of erecting a school house within said district, suitable to accommodate at least four of the schools. The school district was at once the trustee and the beneficiary.

3. Also that, the Central district having ceased to exist, there is neither trustee nor beneficiary capable of taking the fund; and if the taxpayers and scholars within the limits of that district should be deemed the true beneficiaries, and it were practicable or possible by substitution of other trustees to secure and restrict the benefit of the fund to the taxpayers of that district alone, such beneficiaries would not be a body corporate capable of receiving and holding the fund, but the title would be held and continued in the hands of the trustees; and the objection arising from the rule against perpetuities thus be obviated.

4. Also, that the case is not one in which the intention of the testatrix may be effectuated by

an application of the doctrine of cy pres, and the gift applied "as nearly as possible" in conformity with the presumed intention of the donor, although the particular form or manner specified in the bequest cannot be followed.

(Official.)

Report from supreme judicial court, Waldo county.

Bill in equity by John G. Brooks and others, executors of the will of Mary E. S. Southworth, deceased, against the city of Belfast and others, to obtain a construction of the residuary clause of the will. The case was heard upon bill, answer, and the additional fact that at the date of the will there were 16 school districts in the city of Belfast, inclusive of the "Central District," so called, named in the will as one of the objects of testatrix's bounty. Submitted on report.

W. P. Thompson, for plaintiffs. N. Wardwell, City Sol., for defendant city of Belfast.

WHITEHOUSE, J. In this bill in equity the plaintiffs seek to obtain a judicial construction of the residuary clause of the last will and testament of Mary E. Simpson Southworth. The will is as follows:

"I, Mary Emeline Simpson, of Belfast, in the county of Waldo, and state of Maine. make this, my last will and testament.

"I give and bequeath to Dana B. Southworth, of said Belfast, the sum of thirty thousand dollars.

"I give and bequeath to Elizabeth Chapman, daughter of Mrs. Mary E. Merrill, of Toledo, Ohio, the sum of one thousand dollars.

"I give and bequeath to the First Parish (Unitarian) Society of said Belfast the sum of three thousand dollars.

"I give and bequeath to the city of Belfast, in trust forever, the sum of five hundred dollars for the purpose following: The income and accrued interest thereon to be used to keep the Josiah Simpson lot in Grove Cemetery in good order and condition by having the grass properly cut in the summer, the monument and stones kept upright and free from moss, and by doing such other things as are necessary to be done for accomplishing the purpose specified above.

"All the rest, residue, and remainder of my estate and of which I may die possessed I give, bequeath, and devise to the Central school district of said Belfast, for the purpose following:

"1st. The amount of this bequest shall be invested, or put at interest, so that an income may accrue and so kept until a sufficient sum shall be accumulated by increase from interest or profit, by subsequent bequests or gifts, or in some other way, to provide for the erection of a school house within said district suitable to accommodate at least four of the schools.

"2d. When the sum becomes sufficient for the above purpose, the money shall be used for the building such a school house as is indicated above.

"I hereby appoint Dana B. Southworth and John G. Brooks executors of this, my last will and testament."

The testatrix executed this will on the 17th of December, 1889, subsequently married Dana B. Southworth, and died on the 21st day of July, 1895. At the date of the will there were 16 school districts in the city of Belfast, including Central school district, named in the will, which comprised the city proper. Each of these districts was then a body corporate, competent to take and hold property by bequest or devise. But before the decease of the testatrix, by section 1 of chapter 216 of the Public Laws of 1893, the school districts in all towns in this state were abolished, and on the 1st day of March, 1894, when the act took effect, Central school district in Belfast ceased to have a corporate existence for the purpose of taking property by bequest or devise.

It is provided in section 2 of the same act that: "Immediately after this act shall become a law, towns shall take possession of all schoolhouses, lands, apparatus and other property owned and used by the school districts hereby abolished, which districts may lawfully sell and convey. The property so taken shall forthwith be appraised by the assessors of said towns, and at the first annual assessment thereafter a tax shall be levied upon the whole town, or such part thereof as is included within the districts abolished, equal to the whole of said appraisal, and there shall be remitted to the tax payers of each said districts the said appraisal value of its property so taken." Section 4 declares that: "The corporate powers of every school district shall continue under this act so far as the same may be necessary for the meeting of its liabilities and the enforcing of its rights; and any property held in trust by any school district, shall continue to be held and used according to the terms thereof."

The heirs of Mrs. Southworth claim that the bequest to Central school district, in the residuary clause of the will, was an absolute gift to that body corporate; and, inasmuch as the district was abolished and ceased to have a corporate existence before the death of the testatrix, the legacy must be held to have lapsed, and the residue of her estate should now be distributed among her heirs as intestate property. On the other hand, it is contended that the clause of the will in question evinces a charitable purpose on the part of the testatrix to aid in the erection of a school house on the territory comprised within the limits of Central district, that the district was only named as the instrument-a trusteefor the carrying out that intention, and that the city of Belfast, which, under the act of 1893, succeeded to the rights and obligations of the district respecting the erection of school houses and the maintenance of schools, should now become the beneficial recipient of the bequest.

1. Whether the bequest be denominated an

"absolute gift" or a gift in trust for a definite purpose is of little or no practical importance with respect to the decision of the question here presented. It has been seen, however, from the language of the residuary clause, that the bequest to the Central district was not an unqualified and unrestricted gift of a fund to be used for any and all purposes to which the district might elect to appropriate it. The purposes of the gift were clearly specified by the terms of the will, and were not co-extensive with the general purposes and full authority of the district. The fund could in no event be made available for the payment of teachers' salaries or other ordinary expenses involved in the support of the public schools in the district. It was limited to the specific purpose of "erecting a school house within said district, suitable to accommodate at least four of the schools." And it would seem to be entirely appropriate to say that it was left to the district in trust for that purpose. The school district was at once the trustee and the beneficiary.

Thereupon it is contended in behalf of the heirs that it is manifest from the terms of the trust directing an accumulation of the fund for an uncertain and indefinite time, that the bequest might not become available for the purpose designed within a life or lives in being and 21 years, and hence would become obnoxious to the rule against perpetuities.

2. The general rule against perpetuities is undoubtedly "imperative, and perfectly well established. *** The limitation, in order to be valid, must be so made that the estate, or whatever is devised or bequeathed, not only may, but must necessarily, vest within the prescribed period. If by any possibility the vesting may be postponed beyond this period, the limitation over will be void." Fosdick v. Fosdick, 6 Allen, 41; Brattle Square Church v. Grant, 3 Gray, 142. But the rule against perpetuities concerns itself only with the vesting or the commencements of estates, and not at all with their termination. It makes no difference when such an estate terminates. Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635.

It is suggested in reply, however, that trusts for public charitable purposes are upheld under circumstances under which private trusts would fail (Russell v. Allen, 107 U. S. 163, 2 Sup. Ct. 327); and the statement is often found in the books that the law against perpetuities does not apply to public charities. But the statement is misleading. It is undoubtedly true that the principle of public policy, which declares that estates shall not be indefinitely inalienable in the hands of individuals, is held inapplicable to public charities. Odell v. Odell, 10 Allen, 1. But it must be remembered that the rule against perpetuities, in its proper legal sense, has relation only to the time of the vesting of an estate, and in no way affects its continuance after it is once vested. The perpetual duration of a charitable trust, after it has become vested, is one of its distinctive characteristics. It is the

possibility that the estate left in trust for a charitable purpose may not vest or begin within the limits of a life or lives in being and 21 years that offends against the rule of "perpetuity" or "remoteness." In this respect a gift in trust for charity is "subject to the same rules and principles as any other estate depending for its coming into existence upon a condition precedent. If the condition * is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetuities, the gift fails ab initio." Chamberlayne v. Brockett, 8 Ch. App. 206. It is well settled, for instance, that if a gift is made in the first place to an individual and then over to a charity upon a contingency which may not happen within the prescribed limit, the gift to the charity is void. Merritt v. Bucknam, 77 Me. 253; Perry, Trusts, § 736, and cases cited.

But in the case at bar it is conceded by the learned counsel for the heirs that, if Central school district had been in existence as a corporate body at the death of the testatrix, the legacy would have vested in the district for a charitable purpose, and thus been removed from the operation of the rule against perpetuities, and sustained as a valid gift, even if the directions in the bequest for an indefinite accumulation could not be allowed. Odell v. Odell, supra.

In the case cited, the will contained the following bequest: "I give to the trustees of "I give to the trustees of the Salem Savings Bank, in trust, one hundred dollars annually for fifty years, to be paid to them by my executors, to be safely invested by said trustees, the interest to be added to the principal by them semiannually. At the expiration of fifty years, the sum which shall have accumulated shall be appropriated by a society of ladies from all the Protestant religious societies in Salem, to provide and sustain a home for respectable, destitute, aged, native-born American men and women. The above annual payment shall be made from the income of my real estate, which shall be held in trust by my executors until the last payment shall have been made to the trustees of the Salem Savings Bank. Then my real estate shall be divided equally among the grandchildren of my late brother James." After an exhaustive examination of the authorities, and a critical analysis of the principles relating to questions of accumulations and the rule against perpetuities, the court say with reference to the claim in the will above quoted, and the contention that no title, legal or equitable, would vest in the charity until the expiration of 50 years: "We think such is not the true construction of the will. *** Here are no words of transfer of title, and the ladies mentioned are not a corporation capable of taking the legal estate. The more reasonable interpretation is that the testator intended to continue the title of the fund in the hands of the trustees to whom he gave it in the first instance, and to clothe the proposed society of ladies with visitatorial powers

as managers of the charity." The bequest was accordingly held valid.

So in the case before us. The Central school district having ceased to exist, there is neither trustee nor beneficiary capable of taking the fund; and, if the taxpayers and scholars within the limits of that district should be deemed the true beneficiaries, and it were practicable or possible by the substitution of other trustees to secure and restrict the benefit of the fund to the taxpayers of that district alone, such beneficiaries would not be a body corporate capable of receiving and holding the fund, but the title would be held and continued in the hands of the trustees, and the objection arising from the rule against perpetuities thus be obviated.

3. It is finally contended, in behalf of the city, that there was a general charitable purpose on the part of the testatrix to provide for the health and comfort of the scholars in that district, and that this intention may be effectuated by an application of the doctrine of cy pres, and the gift applied as "nearly as possible" in conformity with the presumed intention of the donor, although the particular form or manner specified in the bequest cannot be followed.

It will be seen, however, that in one aspect the bequest under consideration was not for general charitable purposes, but was to one designated corporation and for a clearly described and limited purpose. It was bequeathed to the Central school district in trust for the erection of a "school house within said district suitable to accommodate at least four of the schools," and the practical result was to benefit the taxpayers of a particular district.

In 2 Pom. Eq. Jur. § 1027, the author says: "The true doctrine of cy pres should not be confounded, as is sometimes done, with the more general principle which leads courts of equity to sustain and enforce charitable gifts where the trustee, object, and beneficiaries are simply uncertain. * ** In the great majority of the American states the courts have utterly rejected the peculiar doctrine of cy pres as inconsistent with our institutions and modes of public administration. A few of the states have accepted it in a partial and modified form." And in reviewing the decisions in this country relating to this question and the subject of charitable trusts, Mr. Pomeroy arranged the different states according to three general types. "The second class," he says, "includes the larger portion of the states, in which charitable trusts exist under a somewhat modified form. *** Such trusts are upheld when the property is given to a person sufficiently certain, and for an object sufficiently definite. *** The doctrine of cy pres is generally rejected." In this group he places the state of Maine. The third class "inIcludes a very few states which have accepted the doctrine in its full extent. The states composing this group have not even totally rejected the doctrine of cy pres, although they do

not apply it so fully and under such circum- | stances as would be done in England." In this group the author places the two states of Massachusetts and Kentucky. Id. § 1029.

In section 1027, Mr. Pomeroy makes this further important statement respecting the doctrine of cy pres: "A limitation upon the generality of the doctrine seems to be settled by the recent decisions, that where the donor has not expressed his charitable intention generally, but only by providing for one specific particular object, and this object cannot be carried out, or the charity provided for ceases to exist before the gift takes effect, then the court will not execute the trust. It wholly fails." Among the English cases cited in support of this statement is Fisk v. Attorney General, L. R. 4 Eq. 521. In that case a legacy was given to the Ladies' Benevolent Society at L. as part of its ordinary funds, and before the testator's death the society ceased to exist. The vice chancellor said: "It has been expressly decided by Clark v. Taylor, 1 Drew. 642, and Russell v. Kellett, 3 Smale & G. 264, that when a gift was made by will to a charity which has expired it was as much a lapse as a gift to an individual who had expired."

In 2 Perry on Trusts (section 726) the author says: "So, if it appears, from the construction of the whole instrument, that the gift was for a particular purpose only, and that there was no general charitable intention, the court cannot, by construction, apply the gift cy pres the original purpose. If, therefore, it appears that the testator had but one particular object in mind, as to build a church at W., and his purpose cannot be carried out, the gift must go to the next of kin. And if the gift cannot vest in the first instance in the donees, for the reason that no such donees can be found, or because a corporation is dissolved, the court cannot appoint other donees cy pres." See, also, In re Ovey, Broadbent v. Barrow, 20 Ch. Div. 676, 8 App. Cas. 812; White's Trusts, 33 Ch. Div. 449; Langford v. Gowland, 3 Giff. 617.

In Doyle v. Whalen, 87 Me. 426, 32 Atl. 1026, the court say: "If it appears that the gift was for a particular purpose only, and that there was no general charitable intention, the court cannot, by construction, apply it cy pres the original purpose."

The "limitations upon the generality of the doctrine," mentioned by Mr. Pomeroy, are also distinctly recognized in the leading case of Jackson v. Phillips, 14 Allen, 539, in which the whole subject is exhaustively treated. reviewing the decisions, the court say: "In all the cases cited at the argument in which a charitable bequest, which might have been lawfully carried out under the circumstances existing at the death of the testator, has been held, upon a change of circumstances, to result to the heirs at law or residuary legatees, the gift was distinctly limited to particular persons or establishments."

So in Jarman on Wills (6th Ed. *209) the author says: "The general test at the present 38 A.--15

day seems accordingly to be whether the scope and terms of the will, or that part of it which relates to charitable disposition, indicates an intention to benefit charities, or a class of charities, generally, treating the particular named objects of gift as mere instruments for carrying out such general intention; or to benefit the particular institutions specified which the testator has singled out on their own merits as worthy of encouragement. If, then, the gift fails, by reason of a named institution coming to an end in the testator's lifetime or otherwise, in the former case the charity will be executed according to the doctrine of cy pres, but in the latter case the gift will lapse, unless the particular charity existed at the testator's death, in which case the legacy will be applied for other similar charitable purposes."

It will be perceived that the second restriction placed by Mr. Pomeroy upon the exercise of this doctrine is here distinctly recognized, viz. that it has no application to a trust which was not legally capable of vesting as a charity at the time of the testator's death.

In this important particular, among others, the case of Attorney General v. Briggs, 164 Mass. 561, 42 N. E. 118, cited in behalf of the city, is widely distinguished from the case before us. Here both the fund and its income are to be used in the erection of a school house, thus making a permanent addition to the property in a certain district; but the district was abolished nearly a year and a half before the death of the testatrix, and the fund never vested. There the income of the fund was to be appropriated for the support of a school in a certain district, and the fund had vested in the trustees, and the income actually been used for 14 years, towards the support of the school, before the district was abolished. It was by reason of the change of circumstances resulting from this and other conditions created after the death of the testator, and after the fund had vested in the trustees, and used as stated, that the doctrine of cy pres was exercised to the extent of allowing scholars outside as well as those inside of the limits of the district to enjoy the benefit of the fund. And this decision was rendered in a state where, according to Mr. Pomeroy, the doctrine of cy pres has been carried to the extreme limit found in any of the courts of the United States.

On the other hand, the recent and important case of Merrill v. Hayden, in our own state (86 Me. 133, 29 Atl. 949), is in harmony with the views hereinbefore expressed, and strongly supports the contention of the heirs, In that case the testator made a residuary bequest to the "Maine Free Baptist Home Missionary Society," a corporation capable of taking the devise at the date of the will, and organized "for the purpose of aiding Free Baptist churches in this state in need of assistance." But under subsequent acts of the legislature another distinct society was incorporated by the name of the "Maine Free Bap