116 Ky. 102 | Ky. Ct. App. | 1903
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GRANTED, ORIGINAL OPINION WITHDRAWN AND CASE REVERSED.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
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
For reasons indicated, the judgment is reversed, and cause remanded for proceedings consistent with this opinion.