I maintain however, that the final bequest at the close of the codicil of October 15th, 1838, is also void. It is wholly uncertain as to the sum bequeathed, and as to the beneficiaries. It does not appear whether the societies who are to take are incorporated or not. If the latter, then it is void within the ruling in Owens v. Missionary Society Methodist Episcopal Church (14 N. Y., 380), because unincorporated. Besides this, it is indefinite and uncertain as to what societies, and where they are located; and there is no mode of selection provided for, if the executors refuse to act, or die; and having renounced they cannot make the selection. I refer again to AttorneyGeneral v. Hickman (2 W. Kelynge R., 4, pl. 4; 2 Eq. Cas. Abv., 193,. title "Charity," A pl. 14), as being conclusive on this head; for there it was decided that if the party to whom the discretion was confided, died, that duty could not, except under the statute 43 Elizabeth, be conferred upon another. Jarman on Wills (Perk. Ed., Vol. 1, 196) contains the principle and cites some authorities, to one of which I will refer. The case of Williams v. Kershaw (5 Cl. & Fin., 111), where it was held that:

"A direction by a testator to his trustees to apply the residue of his personal property to and for such benevolent, charitable, and religious purposes as they in their discretion should think most advantageous and beneficial, and for no other use, intent, or purpose," was void for uncertainty. Again, the amount to be appropriated under this provision depends on, and is to be ascertained by, the previous application of a portion of the estate, according to the directions of the first codicil to the establishment of a dispensary; failing which it is impossible to determine the amount set apart to general charity; and the bequest necessarily falls. (Chapman v. Brown, 6 Ves., 404; Att'y Gen. v. Davis, 9 Id., 535; Limbey v. Gurr, 6 Madd. Ch., 151; Att'y Gen. v. Hinxman, 1 Jac. & Walker, 270; 1 Jarman on Wills, 205; Boyle on Charities, 78-82; Tudor Char. Trust Act, p. 70, § 70.)

We claim, therefore, that the justice at special term erred in supposing, that if the devise and bequests for the dispensary failed, the funds to be devoted to that purpose sunk into the residue of the estate, to be applied under the last codicil to general charity. (Boyle on Charity, 419, 420; Gravenor v. Hallum, Ambler, 643; 1 Jarman on Wills, 206.) Why, the very language of the last codicil expressly excludes any such inference. It says:

"In the second place, after satisfying the provisions of my will in regard to the dispensary mentioned in my will, or in the first codicil thereto, I give and bequeath all my estate then remaining, if any there

shall be," &c., leaving no doubt that the testator did not intend to devote to general charitable purposes any portion of his estate, except what might remain after the dispensary was established and funds set apart for its perpetual maintenance, and that he doubted if there would be any. Again, it was a part of the residue of the estate, if anything, that was devised and bequeathed to the establishment of a dispensary; and it is well settled "that a residue never includes what has once been bequeathed as a residue, but of which the gift fails. * * ** A part of the residue, of which the disposition fails, will not accrue in augmentation of the remaining parts; but instead of resuming the nature of residue, devolves as indisposed of."

I refer to Ward on Legacies (32), and cases there cited. (See also Floyd v. Barker, 1 Paige R., 480, 482; Skrymsher v. Northcote, 1 Swanst. R., 565; Chiplyn v. Cresswell, 2 Eden R., 123.)

But even if the entire estate should be ascertained as directed at special term, still the sums to be applied under the last codicil, and the time when the application is to be made, are left to the absolute discretion of the executors; and this cannot be exercised, as they have renounced. No individual or society has a legal interest in this bequest, or could compel the performance of it as a trust in his or their behalf. It has been shown that in such cases our Court of Chancery has no power to uphold the trust (Female Ass'n of N. Y. v. Beekman, 21 Barb. S. C. R., 565), and I have attempted to show, and hope I have proved, that the English Chancery had not the power to maintain such a trust independently of the statute of Elizabeth.

The matters which I have thus far discussed having occupied so much time, I shall not trouble the court further with reference to the remaining propositions contained in my points; but, grateful for its indulgence in allowing me to engross so much of its time, and for the attention with which I have been heard, I respectfully leave the interests of my clients in its hands.

INDEX.