Thе advice of the Superior Court is asked in answer to three questions. The first and fundamental one is whether or not the trustees have complete title to the premises in question so that they can sell them and apply the proceeds in a prescribed manner without risk of forfeiture or jeopardizing the trust estate. The question thus presented, if taken with any degree of literalness, is one which seeks information as to the consequences which would attach to a sale and application оf proceeds as provided, if made. It does not call for advice as to the adequacy of the authority of the trustees to sell, or as to whether title could be given, if they now undertook to convey. It, and the other two questions, appear to assume that the trustees have all the authority which could be bestowed upon them, and their solicitude apparently arises from a fear that if they make a conveyance of the property which Mrs. Pettengill placed under the trust which they аre executing, the trust would be defeated, and a forfeiture to her heirs or residuary legatee result. However this may be, no one of the questions propounded directly calls for an adjudication as to the nature and extent of the power оf the trustees. Neither does any *315 one of them indirectly call for such adjudication. This latter fact follows from the nature of the trust under which the property is held, and the peculiar incidents of trusts of its class. It is a public charitable trust, and as such is brought within the aрplication of the general principles governing trusts of that nature, and of General Statutes, § 4026.
The existence of this statute, first enacted in 1684, renders it unnecessary to inquire whether or not its provisions of present pertinence add anything to what the general principles of equity would supply, did it not exist. It at least removes from the domain of discussion the policy of our law, and contains an unmistakable statutory declaration as to the permanent and abiding character of the devotion tо the charitable use which attaches to gifts intended for such use by the donor.
Wherever this policy prevails, whether it be declared in statute, or otherwise deduced, it is well settled that the trust will not ordinarily be permitted to fail through any improper action on the part of the trustees in their administration of the trust. There may indeed be express conditions so embodied in the instrument creating the trust as to make manifest the intention of the donor that for the breach of them there shall be a forfeiture and a reversion of the fund. But nothing which even remotely partakes of the character of such conditions enters into Mrs. PettengilTs will. Her provisions are all such as are regarded as either explanatory of her object, indicative of her purposе to make the trust a perpetual one, or regulations for the guidance of the trustees in the management of the trust. Similar provisions have been before the courts repeatedly, and upon several occasions before the United States Supreme Court, and held not to constitute conditions in the strict sense of that term, but regulations for the
*316
guidance of the trustees, or explanations of. the terms under which the donor intended the estate to be managed. In not a few of these casеs the terms of the gift were much more suggestive of conditions than the present, even going to the extent of expressly forbidding a sale of the property.
Stanley
v.
Colt,
5 Wall. (U. S.) 119, 165;
Ould
v.
Washington Hospital,
It follows that no forfeiture would result from any attempt on the part of the trustees to alienate the! property, that neither Mrs. PettengilFs heirs, nor the Burroughs Home as residuary legatee, have any right, t title, or interest in it to be made the subject of a release or conveyance, and that any rеlease or conveyance by any or all of these parties would be ineffectual as enlarging the title which the trustees have, as adding to their power to alienate the property, or as helping to give validity to any attempted aliеnation of it.
This conclusion, as we have already had occasion to observe, results from considerations quite apart from any question as to the authority of the trustees to convey, and the legal propriety of any attempt on their рart to do so. This question of authority, however, is so interwoven with those which the complaint propounds that we ought not perhaps in fairness to ignore it.
Whatever authority the trustees may have to sell and convey the premises in question must be derived frоm the terms of Mrs. PettengilFs will creating the trust or from the resolution of the General Assembly.! 15 Special Laws (1907) p. 356. It is clear that the will; gives them no such power. The resolution purports I to do so. It contains other provisions, some of which1 are unusual, but its second section, in clear and positive language, undertakes to empower the trustees to sell, and to direct as to the investment of the proceeds for the uses of the trust. In so far as it was competent for the General Assembly to confer such authоrity, it has beyond doubt here done so.
The decision of the Supreme Court of the United States in
Stanley
v.
Colt,
5 Wall. (U. S.) 119, supported
*318
by others prior and subsequent, removes from the field of discussion any question as to the existence of a power in the sovereignty of the State fully adequate to bestow upon trustees administering a public charitable trust authority as to its administration such as the General. Assembly attempted to confer in the present instance.
Perin
v.
Carey,
24 How. (U. S.) 465, 501;
Ould
v.
Washington Hospital,
This being so, we have only to inquire whether that power was vested in the General Assembly at the time this resolution was adopted. Stanley v. Colt, 5 Wall. (U. S.) 119, was a case which arose in this State. It involved a determination of the validity and effect of a resolution of our General Assembly of substantially the same purport as the present. It was held that it was adequate to confer the power of sale. This conelusiоn, however, was expressly placed upon the ground that under the law and practice of this State the General Assembly was vested with the exercise of chancery powers.
There can be no doubt that the court in that case, speaking in 1866, was justified in making the fundamental assumption it did as to the powers of our General Assembly by reason of both the utterances of this court and the not infrequent legislative practice./ Conceptions of our governmental organism, which had grown up under the chаrter, long survived the adoption of the Constitution in 1818. They were repeatedly acted upon, and found expression in the opinions of this court. In
Starr
v.
Pease,
In
Norwalk Street Ry. Co.’s Appeal,
The foundation upon which the decision in Stanley v. Colt was made to rest was thus removed, so that, if its conclusion that legislative action in this State can furnish authority for a sale of trust property under conditions like those then and now present is to remain unshaken, it must find support upon some other basis than the broad one that it is competent for our General *320 Assembly to exercise the chanсery powers of courts of equity. The legislative power must be found somewhere outside of the judicial domain, and within the legislative, or it is nonexistent.
The opinion in
Stanley
v.
Colt
assumes, and substantially asserts, that the power which was invoked in aid of the public charity then concernеd was a chancery power; and so it was; and so it is here under precisely similar conditions. It is one which developed through the exercise of the extraordinary jurisdiction of the English Lord High Chancellor, the keeper of the King’s conscience, аnd lies wholly within the sphere of that jurisdiction. It concerns a trust, which is emphatically a matter of conscience, and a charitable trust, .which is peculiarly the subject of a court of equity’s care and solicitude. Bispham’s Principles of Equity (8th Ed.) § 8;
Stanley
v.
Colt,
5 Wall. (U. S.) 119, 169. The pоwer is one which has come into our American jurisprudence in conformity with the English original, and is an adjunct of the judicial power. Its exercise involves an appeal to the conscience of the chancellor through an applicаtion duly made, an inquiry, and a 'determination embodying the exercise of discretion. These are peculiarly judicial functions. The judicial power includes such power as the courts, under the English and American systems of jurisprudence, have always exercised in legal and equitable actions.
Callanan
v.
Judd,
The resolution„ofJ;he General Assembly in question, in so far as it purports to confer authority upon these trusteesj must therefore fail of its purpose. The courts, in the exercise of their chancery powers, are alone competent to confer such authority. That authority not having been obtained, any attempt on the part of the trustees to sell the prоperty would be in excess of their powers.
The Superior Court is advised to render its judgment that the plaintiff board of directors has no present power to sell or convey said property; that the only authority competent to confer such рower is a court of equity, when properly invoked; that a sale and conveyance by them under authority so conferred would not result in a forfeiture; and that in the event of such sale and conveyance a release or conveyance by either the Burroughs Home or the heirs at law of the testatrix, Catherine E. Pettengill,' would not be necessary to give title.
No costs in this court will be taxed in favor of either party.
In this opinion the other judges concurred.