the respondent corporation for the corporation named in the will. The codicil does not mention the residuary legatee of the trust fund, and contains nothing to indicate the intention of the testatrix in that regard.

A codicil does not by its republishing operation revive a devise or bequest, the object of which has died in the testator's lifetime: 1 Jarman on Wills, R. & T. ed., 374; Stillwell v. Mellersh, 20 L. J. Eq., N. S., 356; Rymer v. Stanfield [1895], L. R. 1 Ch. D. 19.

We come, then, to the second question, whether or not the case presented demands the exercise of the power of the court to make a cy pres application of a charitable gift.

That the gift is a charitable one cannot be contested. It is Iwell settled that a Christian church, lawfully existing, is a charity in the sense of the statute of 43 Elizabeth, chapter 6: 2 Redfield on Wills, 501; Potter v. Thornton, 7 R. I. 252. But the question is not concluded by that circumstance. Gifts to charitable institutions may lapse, as well as gifts to natural persons.

The law is well stated in Teele v. Bishop of Derry, 168 Mass. 341, 60 Am. St. Rep. 401, 47 N. E. 422, 38 L. R. A. 629, as follows: "The difficulty in this case, and generally in cases like it, is one of construction-to find out the intention of the testatrix. When that is arrived at, the rules of law which apply seem to be pretty well settled. If it appears from the will that the intention of the testatrix was that her property should be applied to a charitable purpose whose general nature is described so that a general charitable intent can be inferred, then, if by a change of circumstances or in law it becomes impracticable to administer the trust in the precise manner provided by the testatrix, the doctrine of cy pres will be applied in order that the general charitable intent which the court regards as the dominant one may not be altogether defeated.. ... But if the charitable purpose is limited to a particular object or to a particular institution, and there is no general charitable 637 intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect and possibly in some cases after it has taken effect, the doctrine of cy pres does not apply-and in the absence of any limitation over, or other provision, the legacy lapses."

....

Some earlier cases in Massachusetts seem to have given the doctrine of cy pres a more general application, e. g., Winslow v. Cummings, 3 Cush. 358, where the court found, in a be

quest to an unincorporated society which had gone out of existence at the date of the will, a gift for the charitable purposes which such organization had promoted. It could not have been construed as a gift to the society as a combination of individuals, for they were not capable in law to take as such. The argument, therefore, was sound that the gift was to the objects of the society, not to itself, and the court might well carry out the intention of the testator by giving the legacy to a trustee: See, also, Loscombe v. Wintringham, 13 Beav. 87; In re Clergy Society, 2 Kay & J. 615; Marsh v. Attorney General, 2 Jacob & H. 61, and comments by Sir J. W. Chitty, J., in Rymer v. Stanfield, [1895] L. R. 1 Ch. D. 19.

In Bliss v. American Bible Soc., 2 Allen, 334, the supreme court of Massachusetts went further and held, though citing no authority but Winslow v. Cummings, 3 Cush. 358: "The bequest being to a charity, the object of which can be distinctly ascertained, it is valid, and will be sustained by the court, although the legatee is incapable, by reason of original want of corporate capacity, or from its corporate existence having terminated, of undertaking to execute the trust."

The rule laid down in Teele v. Bishop of Derry, 168 Mass. 341, 60 Am. St. Rep. 401, 47 N. E. 422, 38 L. R. A. 629, restricts these general expressions, and is approved in Bullard v. Shirley, 153 Mass. 559, 560, 27 N. E. 766, 12 L. R. A. 110; and, furthermore, it is in accord with the courts and textwriters, generally, in England and in this country.

So 2 Perry on Trusts, section 726, states the rule as follows: "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. 638 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"; quoting Carter v. Balfour, 19 Ala. 814; Marsh v. Means, 3 Jur., N. S., 790; Attorney General v. Power, 1 Ball & B. 145; Fisk v. Attorney General, L. R. 2 Eq. 521.

To the same effect see 1 Jarman on Wills, 6th ed., 241; 2 Pomeroy's Equity, 2d ed., 1524; 5 Am. & Eng. Ency. of Law, 2d ed., 939.

The leading case in England is Taylor v. Clark, 1 Drew. 642, decided in 1853, which held that: "There is one class of cases in which there is a gift to charity generally, indicative of a general charitable purpose and pointing out the mode of carrying it into effect; if that mode fails the court says the general purpose of charity shall be carried out. There is another class in which the testator shows an intention, not of general charity, but to give to some particular institution, and then if it fails because there is no such institution the gift does not go to charity generally; that distinction is clearly recognized; and it cannot be said that whenever a gift for any charitable purpose fails it is nevertheless to go to charity." "This case," says the lord chancellor, in Rymer v. Stanfield, L. R. 1 Ch. D. 19, decided in 1895, "has been followed ever since."

Chief Justice Durfee, in Pell v. Mercer, 14 R. I. 412, affirms the rule. He says, page 438: "If, however, the trust is for some particular purpose which has been accomplished before the trust becomes available, or which is impracticable, there a cy pres application is more questionable; but even then, if it be clear that a general charitable intent has simply taken form in a particular purpose, the court will best carry out the will of the donor by applying his donation to some other purpose which is as nearly as possible akin to the purpose which is named."

Counsel for the respondent corporation refers to several Rhode Island cases.

639 Wood v. Hammond, 16 R. I. 108, 113, 17 Atl. 324, 18 Atl. 198, presented the question as to which of four corporations the testator had designated by the term "The Nursery," no corporation having existed bearing that name at the time when the will was executed. Following the principle of Winslow v. Cummings, 3 Cush. 358, the court held that "evidently the bequest was intended for the benefit of the nursery as a favorite charity, and should go to the corporation as the medium through which the benefit would reach its destination."

Cady v. Children's Hospital and Nursery, 17 R. I. 207, 21 Atl. 365, was simply a case of imperfect designation.

In Almy v. Jones, 17 R. I. 265, 21 Atl. 616, 12 L. R. A. 414, it could not be doubted that the legacy sprang from a general charitable intent if the purpose was a legal charity at all.

In Saint Peter's Church v. Brown, 21 R. I. 367, 43 Atl. 642, the court appointed a trustee to hold a legacy given to an unincorporated religious society.

Am. St. Rep., Vol. 105-58

These cases evidently afford us no assistance in interpreting this will.

To apply the rule to the present case, we do not find in the will of Mrs. Acly any general charitable intention. The legatee named was a church to which she had belonged, and in whose prosperity she took great interest; and it is impossible for us to gather from any of her expressions that she made her gift to the church because it cared for the religious training of deaf mutes, rather than because of her affection for her former associates who composed it. Doubtless the work and the institution were both present in her mind, but who shall say which held the more prominent place? Where the will is silent we are not justified in substituting our arbitrary conjccture.

The case of Rymer v. Stanfield, L. R. 1 Ch. D. 19, is quite similar to this. The bequest there was "to the rector, for the time being, of Saint Thomas Seminary, for the education of priests in the diocese of Westminster, for the purposes of such seminary, five thousand pounds."

The seminary was discontinued before the testator's death, and the students were removed to another seminary which, as 640 part of its work, educated priests for the diocese of Westminster; it was held by Chitty, J., that the gift was confined to the particular institution, and lapsed. And this decision was affirmed on appeal.

The case of Merrill v. Hayden, 86 Me. 133, 29 Atl. 949, presents many points of similarity to the case at bar. The bequest to be construed was: "I give, bequeath, and devise to my daughter Maria K., all the property of which I shall die possessed, to hold during her life the income thereof and so much of the principal as she shall need to be spent by her; and the residue, both of the principal and income, that shall be left at the decease of said Maria, I give and devise to the Maine Free Baptist Home Missionary Society."

The society named existed at the date of the will; but before the testator's death, by authority of an act of the legislature, it had transferred all its property to the Maine Free Baptist Association; and thereupon, by force of said act, became extinct. The new corporation, as the successor of the old, though having somewhat more extended objects, claimed the legacy; but the court held that "by the extinction of the Maine Free Baptist Home Missionary Society (the legatee named in the will), in the lifetime of the testator, the legacy

to that society lapsed to the estate of the testator, and not having been otherwise disposed of by the will it descended to his heirs as undevised estate."

This decision is approved in Brooks v. Belfast, 90 Me. 318, 329, 38 Atl. 222, where the whole subject is exhaustively considered.

We are of opinion, therefore, that the legacy lapsed when the corporation known as Saint Ann's Church for Deaf Mutes ceased to exist; and that the fund in question, on Mrs. Acly's death, descended to her heirs at law and next of kin as intestate estate.

Whether the Consolidation of Corporations works the destruction of the constituent companies is discussed in the monographic note to Morrison v. American Snuff Co., 89 Am. St. Rep. 616-621.

Charities and Trusts for religious purposes are discussed in the monographic note to Hoeffer v. Clogan, 63 Am. St. Rep. 264-266.

A Gift by Will to a supposititious and nonexisting corporation, by name, is not a public charity, and cannot be claimed by another incorporated institution of nearly similar name and nature, under the doctrine of cy pres. Even if the supposititious donee was in existence at the date of the will, still the charity would terminate if the donee ceased to exist before coming into possession of the gift: Stratton v. Physio-Medical College, 149 Mass. 505, 14 Am. St. Rep. 442.