Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-29

90 Mo, at,p. sos, the rule is aid down
as follows: -
mo doubt is entertained that the :
gift under consideration is a charity
and falls within the meaning of the
rules of chancery. e Sto. Eq. Jur,
sec. 1l64, and cases cited.) And al
though in consequence of the nom
incorporation Of the church for
whose benefit the grant was made.
there was no one in esse, lat the tim
of making the donation, tcapable OF
being the recipient Of the trust yet
court of equity, having ascertained
the intent of the grantor, will not al
low the grant on that account to fail.
but will see to its effectuation. &
Sto. Eq. Jur., secs. 1866. and cases
cited; Potter VS.. Chaplin, f Paige.
h3o. and cases cited; St. Louis County
Court VS.. Griswold, So Mo. 175.)"
In considering the question involv-
ed here, it is said in f Cys. oO3:
They are construed as valid when
possible. and are often upheld where
private trusts would fail. A gift IN
trust for a charity not existing at
the date of the gift and the beginning
of whose existence is uncertain, or
which is to take effect upon a con-
tingency that probably will not hap
pen within a life or lives in being
and twenty-one years afterwards, is
valid if there is no gift Of the prop
erty meanwhile to or for the benett
of any private person. In conse-
quence of such favor gifts of this
character are sustained, though
vaguely expressed, and, when a gift
is clearly for a charitable use, the
trustees named therein take the legal
estate in fee. though the deed does
not in terms run to their heirs and
of gift makes no provision for the
conveyance to trustees, the donated
property becomes Immediately charg-
ed with the trust in the hands of
either the executors or heirs. Equity
will not permit these trusts to fail,
because its particular purposes are
uncertain, or for want Of a trustee,
though no existing donee is named;
from which it result at common
law that though the gift to a charit-
able use is to a voluntary association
5 or an unincorporated society which
s uncertain, indefinite and fuctuat-
ing in its membership the court will
nevertheless, under the common law
-nle, at least uphold it and appoint a
trustee to take and administer the
, -und ACCORDING to the terms of the
grant"
{ The most recent decision sustain
ing our position is that In re Up
I hams Estate, 127 Cal. 90, SO Pac. 1875,
!, rom which we quote:
!, 1T is commended, however, that
the turst is void, because the parties
. named as trustees are incapable of
taking the property. The trustees of
the orphans home, it is true, do not
p constitute a corporation. 1t was Or
yanized under the auspices of the
= Grand Lodge of the Independent
. State of California, which is a cor
, poration, and it is under the manage
ment and control OF n continuous
: board of trustees, consisting of eight
persons. one-half of whom are Sc
lected every two years bv the order.
These trustees seem to be appropri-
: ate persons to take charge of this
charitable fund. and manage it for
! the purposes of the trust: but. even
, if it should be held that in a strict
legal sense they are not capable OF
taking. yet the charity would not
; fail for that reason. A court will not
, allow a charitable trust to fail for
want of a legal trustee. OF course,
IN this country. courts of equity will
not go SO far in executing indefinite
4 charities as the courts of equity went
u n England under the statute of 43
Eliz.; for there. if it could be discov-
cred from a deed or will that any,
= thing in the nature of a charity was
intended, however vague Or indefin-
u lite, the chancellor would devote It
I to some sort of charity. But in this
{ country courts have been extremely
u liberal in constituting charities. and
under principles analogous to the do,-
: trlne of cypres have enforced trusts
y tar more indefinite and inexact than
{ the one here involved"
. We are Of the opinion that not only
y is the contention Of appellants sus-
; tanned bv the great weight of author
ity, but by sound reason as we'll; and,
J. in view Of the fact that the lot was
d given to the society in consideration
OF the locating in the vicinity of the
lot in question of the Chinese inhab-
L ,tants Of Reno and of the making Of
the improvements which were made
by the society upon the lot, that
equity and good conscience should
'or all time close the mouth of Man
{ ming and his grantees to assert the
e lncapacitv of the society to take title
to the property i'll question.
1t is ordered that the judgment be
reversed and that the case be re-
II manded for a new trial.
COLEMAN. J.
d I concur:
M'CARRAN, J. ;
n | r e :