Case 9 — Action by Elizabeth Thompson’s Bxecutob against William Brown and Others rob a Constbuotion or the Will of Elizabeth Thompson, Deceased.

June 17.

#### Thompson’s Exr. v. Brown and Others.

APPEAL EEOM MARION CIRCUIT COURT.

From the Judgment the Executor Appeals.

Reversed.

Wills — Charitable Bequests — Beneficiables—Certainty.

Held: A will devising testator’s property to her executor, to be by him distributed “to the poor in hisi discretion,” is sufficiently definite, under Kentucky Statutes, 1899, section 317, requiring that gifts for such -a purpose shall point out the purpose of the charity, and the beneficiaries thereof, with reasonable certainty.

THOMPSON *&*SPAULDING-, foe appellants.

(The original brief of the attorneys for appellant riot being in the record, 'the reporter, in, lieu thereof, takes the following suggestions from appellant’s brief on petition for a rehearing.)

In appellant’s petition for a -rehearing we aimed to call the court’s attention to the principles established by the courts up-to that time, upon the question involved in -this action, but had not at that time seen the opinion in the oasej of Coleman!, &c,, v. O’Leary’s Exr., 24 R., 1248, which seems to have been, a better considered case than the one at bar, and upon a similar question under discussion, the court was unammiousi in its opinion, The twentieth clause of the O’Leary will involves the same principles as the clause! in dispute in this action. Of coursei, it is impossible to find the words of any two wills alike, but the principle to be settled in these two clauses is thd same'.

“In the opinion in flliis case Jud-ge DuRelle claimed that it would require the aid of the ultra cypres 'dioiotrine to establish the residuary clause in this will, but -established the residuary clause in (the O’Leary will involving the salm-e principle. In -this case thq 'Clause leaves the remainder of testatrix’ elstate to be distributed to the poor by her executor in his discretion. In the O'Leary will the remainder of the estate was to be invested and placed in trust to the Rt. Reiv. Bishop of the (Catholic diiotcese of Louisville, and three others* to be chosen by him for the establishment of a home for ‘poor Catholic -men' as som as the proceeds of the estate would justify.

*103“Now it is admitted that had the testatrix in thfe case placed a territorial restriction in this residuary clause of her will, it would have been good. Had she said ‘the poor iof the county, ■State, or some distric-t of the State,’ it would have been good. Is -not the clause under discussion in the O’Leary will fully as indefinite in this particular? It does not state! where on the face of the earth this home flor the ‘poor 'Catholic men’ is! to ¡be established, nor from what territory the poor Catholic men •are to be selected, but the! *court*located the! home in the city of Louisville, and the selection of the poor iCatholi'C men’ to the diocese of the city of Louisville, which is the 'State of Kentucky.

“Now in- this case what is the territorial jurisdiction of tha executor? It is certainly confined to the State of Kentucky, as under his appointment as executor he has no authority anywhere else. If the court can settle who the! beneficiaries. arei from the poor1 Catholic men of Kentucky, can’t it settle who ■they are from the poor persons of the State? The petition alleges thait she had always lived in this State, and in, tha ■ county where the will was.made, and where she died, and it would be a rash presumption to indulge that this good woman .intended her executor would ever go ¡out of the State 'to 'find the objects of her bounty under this devise.”

CITATIONS.

■Coleman v. O’Leary, 24 R., 1248; Curling Case, 8 Dana, 38; Atty. Geni. v. Wallace, 7 B. Mon., 612.

H. P. COO'PHR, ATTORNEY FOR APPELLEES.

This appeal involves the construction of item eleven of the will, which is as follows:

“I will and direct that my house and lot in Raywick be sold at such time and on such terms as my execuitor may dee|m best, and I will that the proceeds, together with whatever other estate I may have 'after the payment of the aforesaid bequest and funeral expenses, shall be collected by my executor and by him distributed to the poor in his discretion.”

Your honors will observe that the “poor” named in the will were not designated by agq, number, color, or sex, non by any creed, church, or 'School district. They were noit located in any district, county, or State. It is impossible! for the chancellor to judicially identify the beneficiaries under this clause, and it was therefore his duty to declare the same void. Cromie’s Heirs v. Louisville Orphan Home, 3 Bush, 374; Leeds v. Shaw’s Admr., 82 Ky., 82; Spalding, &c., v. St. Joseph Industrial School, 21 R., 1107; ICivil Code, sec. 25.

*104Opinion op the court.by

CHIEF JUSTICE BURNAM

Rehearing

GRANTED, ORIGINAL OPINION WITHDRAWN AND CASE REVERSED.

Fot original opinion see 24 R., 1063; 70 S. W., 674.

The eleventh clause of the will of Elizabeth Thompson, who died in, September, 1897, reads as follows:- “I will and direct that my house and lot in Ray wick, Ky., be sol'd at such time and on such terms as my executor may deem best, and I will that the proceeds together with whatever other estate I may have after -the payment of the aforesaid bequest and funeral expenses shall be collected by my executor, and by him distributed to the poor in his discretion.” The only question for decision upon this appeal is whether the gift in this clause is sufficiently definite to be enforceable under section 317 of the Kentucky Statutes of 1899, which requires that such- gifts shall point out with reasonable certainty the purpose of the charity and the beneficiaries thereof. Very different rules from those that are applied in establishing and administering private trusts will be applied in order to give effect to the intention of a donor -to establish a public charity. In discussing- this question, Perry on Trusts, section 687, uses this language: “If in a gift for private benefit the *cestuis que trustent*are so uncertain that they can not be identified, or can not come into court and claim the benefit conferred upon them, the gift'will'fail. But if the gift is made for a public, charitable purpose, it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of. the charity are uncertain and indefinite. Indeed, it is said that vagueness is in some respects essential to a good gift for a public charity, and that a public charity begins where uncertainty in the recipient begins.” The general doctrine upon the question -of charitable bequests is that the beneficiaries should be designated as a class only, leaving the number *105and individuals to be determined by the trustees who administer it. Devises for the poor have always been favorite modes of dispensing charity by benevolent persons, and trusts created for this purpose have been generally upheld by the courts. In Moore’s Heirs v. Moore’s Devisees, 34 Ky., 354, 29 Am. Dec., 417, it was decided: “When an ascertainable object is designated by the donor in general and collectible terms, as the poor of a given county or parish, or when a person is appointed by him to select a described portion or kind or number from a designated class, the chancellor, sitting as judge in equity, will interpose on the ground of trust.” In the case of Curling’s Adm’rs v. Curling’s Heirs, 8 Dana, 38, 33 Am. Dec., 475, James Curling left the residue of, his' estate for the use and benefit of a public seminary, not designating where it was to be located. .The circuit judge held the devise void for uncertainty, but, upon appeal to this court, Judge Robertson, delivering the opinion of the court, said: “The testratrix, by designating a general object of charity (a public seminary), must be understood as intending, either a seminary, or the seminary of his county, or any seminary which his executor or a court of equity, in the exercise of a sound ■ discretion, should select as best adapted to effect the object of charity. Upon either of these hypotheses, the testator’s purpose, as declared and circumscribed by himself, may be fulfilled by applying the fund to a specific object, without any hazard of perverting his bounty in a manner not contemplated by him and authorized by his will. Therefore, according to principles established as perfectly judicial, we are of the opinion that the devise created a charitable trust, which may be executed according to law, and without violating the will of the testator or making a will for him, and therefore we conclude that the circuit court ought to *106have decreed the appropriation.of the profits of the devise to the use of the Trigg Seminary, and appointed a trustee to execute the trust.” In the very recent case of Spalding v. St. Joseph’s Industrial School, 107 Ky., 382, 21 R., 1107, 54 S. W., 206, Judge DuRelle uses this language: “All the Kentucky cases have sustained the charitable uses therein considered because the court held that a charitable object was indicated, or a class of charitable objects designated from which choice was authorized to be made. In some of them there is room for difference of opinion as to the certainty of the objects of the charitable uses sustained, but the courts have always held that they were certain, either by being, designated by the donor, or one of a class designated by him from which choice was authorized to be made.” In Bedford v. Bedford’s Adm’r, 99 Ky., 273, 18 R., 193, 35 S. W., 926, the devise -was to the State of Kentucky in trust for the benefit of the State, the profits therefrom to be appropriated annually forever towards the education of the children of the State — particularly the poor and most unintelligent. The devise in this case was sustained as sufficiently definite. The court said: “Trusts must be for the benefit of an indefinite1 number of persons, for, iff the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity, and which distinguishes it from a mere private trust.”'

There has been considerable diversity in the decisions of the courts of the various States of the Union as to the extent they will go in upholding an indefinite trust. In some' States — particularly Maryland, Virginia, Michigan, New York and Wisconsin — it has been held that courts of equity have no greater jurisdiction, to enforce public than private trusts. On the other hand, in Kentucky, Maine, Massachusetts,' Missouri, Pennsylvania and many other *107States where the principles of 43 Eliz., c. 4, are accepted, they have gone to the farthest limit in this regard. In this State sixteen decisions have been reported upon this question of charitable uses, beginning with the case of Glass and Bonta v. Read, 2 Dana, 170, in which charitable bequests have been uniformly upheld. But it is insisted that the amendment to section 317 of the Kentucky Statutes passed by the General Assembly in 1893, which is in these words, “if the grant, devise, gift, appointment or assignment, shall have pointed out with reasonable certainty the purposes of the charity and the béneficiaries thereof,” etc., was intended by the lawmaking department of the government to change the rule which has heretofore prevailed in this State. The words of the amendment are the same as those used in several opinions sustaining bequests to vari- . ous charities, and it would be more consistent with reason and common sense to believe that the Legislature simply intended to crystallize into the statute law the doctrine which has been so often announced by this court, and which has been accepted with approval by the profession, the General Assembly, the public at large, and by most eminent text-writers. The gift in this ease is to the poor as a class, and the testratrix has appointed her executor to select from this class the persons who are to receive the benefit of the charity. In our opinion, the judgment of the trial court is in conflict with what has become the settled legislative policy in this State with respect to public charities; and Spalding v. St. Joseph’s Industrial School, 107 Ky., 382, 21 R., 1107, 54 S. W., 206, relied on to support the judgment of the trial court, is not in conflict with the other cases, and the devise in this case should be upheld.

For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.