sion as to Milton College failed because the beneficiary in contemplation, to be thereafter created, never came into existence. In the case of the Cumberland University, the theological department was, by a declaration of the board of trustees, abolished, and this was held to operate as a renunciation of the devise. The court said in this connection: "This was in effect a renunciation of the devise, and caused it to lapse as effectually as if the charter of the corporation had expired, and, the specific devise of the estate in remainder having lapsed, the legal title to that estate, on the concession stated, passed over to the heirs of testator, Hannah J. Caldwell. The theological department of the Cumberland University, to which the estate in remainder was devised, was as dead as Milton College, and with no better chances of resurrection. Indeed, it might with reason be said that the lapse occurred at the time when the northern church took over the university, for upon the whole it appears that testator, Hannah J. Caldwell, intended that her bounty should not inure to the benefit of any theological department of any institution not under the control of the Cumberland Church; but, however that may be, we do not see how the formal resolution of the trustees can be accepted as anything less than a renunciation, and so as a lapse, of the devise in question. After that resolution, on the hypothesis that title vested originally in the trustees, there was not a mere possibility of a reverter, but a reversion actually accomplished."

In Miller v. Riddle (1907) 227 III. 63, 118 Am. St. Rep. 261, 81 N. E. 48, it appeared that the balance of what might be realized from the sale of certain real estate was left by the testatrix for the following purposes, as expressed in the will: "As the permanent fund for the benefit of the Baptist Church at Old Town, to be in the hands of the trustees of the said church like a school fund, said church being the place of my membership. The above fund to be subject to the same rules and legal regulations as a

school fund, and the trustees shall apply the interest from time to time, as may be needed, to support the church in the ministration of the Word and otherwise, or for needed repairs." The society continued in existence and held religious services until about fifteen years before the bill was filed, when all such services and meetings of the society ceased. When the bill was filed the church building was decayed, the sills were rotten, the plaster was entirely off the ceiling and mostly off the walls, the window sashes had been knocked out, and the roof was full of holes. The whole building was worth about $30 or $40. There were still in the vicinity eight women and three men who had been members of the church, and after this suit was commenced they elected three trustees, but did not resume religious meetings or take any other steps towards keeping up the society. The court said: "The voluntary religious society which was made beneficiary of the will was in existence and exercising the functions for which it was organized when the testatrix died and the will became operative, but if it has since been dissolved the property given by the will for its use has reverted to the heirs at law of the testatrix. . . There was no dissolution of the society by the consent or agreement of its members, but undoubtedly there may be a dissolution by abandonment and nonuser. In order to constitute a religious society, there must be a membership of persons associated together, which collectively constitutes the society, with such officers as are required, or at least a definite collective body acting as a society. . . . If there is no such definite collective body associated together, acting as a society for such a period of time that an inference of abandonment necessarily follows, the association should be regarded as dissolved. It cannot be regarded as having a continued existence after permanently abandoning the purpose of its creation and ceasing to exercise the functions for which it was organized. In this case there was no pastor of the church for fifteen years,

and there was no meeting or religious service of any sort during all that time. There was no collection of persons meeting together for religious worship or performing any of the functions, social or religious, of an organized society. The facts proved would justify no other inference than that the society was dissolved and ceased to exist. Upon such dissolution the property reverted to the heirs at law of the testatrix, but, after the bill was filed, eleven persons who had been members of the society met and elected three trustees. In our opinion this action was not sufficient to recreate the former organization or reinvest it with a right to the property. If that could be done it would not be necessary to do anything more for another period of fifteen years, when the survivors might again elect trustees. There was nothing in the nature of a religious society or collective body sustaining church services or fulfilling any of the purposes of such society for many years before the bill was filed, and we conclude that the court erred in establishing the right of the defendants, assuming to constitute the church, to the fund in question."

In Quimby v. Quimby (1912) 175 Ill. App. 367, it appeared that a testatrix by will left the residue of her estate to her grandson, who had previously disappeared, with a further provision that, in case he had not appeared at the expiration of five years after her death, such residue should go to the Chicago Waif's Mission and Training School. The five years expired without his claiming the bequest. At that time the Chicago Waif's Mission and Training School had wholly ceased to carry on the work for which it was organized, or any other work, having about a year prior to that time turned over to the Illinois Industrial Training School for Boys, at Glenwood, Illinois, all of its property and boys. The Illinois Industrial Training School for Boys afterwards changed its name to the Illinois Manual Training School Farm. Subsequently an order of cancelation of the charter of the Chicago Waif's

Mission and Training School was entered in the office of the secretary of state, and it was never reinstated. About fourteen years after the death of the testatrix, the Chicago Title Trust Company, as trustee, filed its petition in the chancery court, representing that distribution could not be made to the Chicago Waif's Mission and Training School, as it had ceased to carry on the charitable work for which it was organized, and set up the claim of the heirs and of others, and asked for an order of court in the premises. The bill made as parties defendant the heirs of Walter Reynolds Quimby and "unknown owners." To this bill certain collateral heirs at law of the testatrix filed their answer, as did the attorney general, who was made a defendant. The Illinois Manual Training School Farm filed its answer as one of the unknown owners made parties defendant to the petition, and claimed the fund under the equitable doctrine of cy pres, by rea son of the similarity of the work carried on by it to that carried on by the Chicago Waif's Mission and Training School. This Training School Farm was a corporation not for pecuniary. benefit. Its object was stated in its articles of incorporation thus: provide a home and proper training school for destitute and dependent boys who may be committed to its charge." On the hearing, a decree was entered by the chancellor finding the facts as heretofore set forth, and also determining the heirs at law and next of kin of Jane Reynolds, and further that inasmuch as the Chicago Waif's Mission and Training School ceased to carry on the charitable work for which it was organized on July 14, 1898, "and has not since said lastmentioned date done or performed any of the work for which it was organized, and has discontinued the exercise of its corporate functions and abandoned its corporate franchises, it is not now entitled to said trust estate or any part thereof." The decree further found that "there is nothing in said will of Jane E. Reynolds, deceased, showing a general charitable intention, and showing that the

said testatrix intended to devote said trust estate to charitable purposes in the event that the gift over to the Chicago Waif's Mission and Training School failed, and that therefore the said trust estate ought not to be applied cy pres by the court to other charitable purposes." From this decree the Illinois Manual Training School Farm appealed. The decree of the chancellor was affirmed on appeal, the court saying: "The gift is not to any cause, plan, or scheme of charity, but to a specific and particular organization. We therefore must hold that the better reasoning favors the conclusion that no general charitable intent was indicated by the testatrix in her will. To hold otherwise would so extend the application of the rule of cy pres as to compel courts to administer charitable bequests in every case where the particular object named in the will is incapable of taking, unless apt words negativing such a course should be used in the will. The true rule is that the court will not act for the testator in this regard unless some words are used in the will showing an intention which only the chancery court can carry out."

In Miller v. Chittenden (1856) 2 Iowa, 315, it was said in this connection: "If the intention of the donor can be legally executed, whether the gift is to a general charity or specific object, it will be done; but if this cannot be accomplished, the claim of the heir will not be defeated by appropriating the property to another and different object."

In Taylor v. Rogers (1908) 130 Ky. 112, 112 S. W. 1105, it appeared that land had been conveyed by one Taylor for the purpose of aiding in the establishment of a training school, and that a building had been erected thereon with funds donated by others for that purpose. The trust failed, owing to the fact that it became impossible longer to conduct the school because of inability to obtain teachers. The deed provided that, in case of a failure of Bethel College to maintain a good school at Guthrie on said land, of the grade and character outlined in the contract entered into

March 14, 1892, the board of trustees of Bethel College were to reconvey the land to the board of trustees of the Guthrie School, "to be sacredly used by them for the purposes for which it is hereby deeded." In determining what disposition should be made of the property, the court said: "This language makes it certain that the grantor in that deed conveyed the land in trust for the purposes expressed in the deed, and for no other purposes. As it is admitted that the school is a failure and can no longer be conducted, it follows that the trust itself has failed. That being the case, what are the rights of the donors? The erection of the training school in question was a joint enterprise.

The parties contributing did so for a common object. They had no other purpose in view, and were moved by no other consideration, than the erection and maintenance of the training school sought to be established. Under these circumstances it would be manifestly unjust and inequitable to hold that the entire property, including the land donated by Taylor and the sums of money donated by others and used in the construction of the building on the land, should revert to appellants herein, as the heirs and devisees of Taylor. As the trust has failed, we conclude that the present trustees hold the property in question in trust for the use and benefit of appellants and all other donors. The property may, therefore, be sold in this action, by making all the donors, or their heirs, parties, or, if they be numerous, by permitting some to sue or defend for all. The interest of the appellants in the proceeds will be that portion thereof that the value of the land at the time of its donation bears to all the sums contributed, including the value of the land. The interest of the other donors in the proceeds will be in the proportion that the sums contributed by them bear to all the sums contributed, including the value of the land."

In Grundy v. Neal (1912) 147 Ky. 729, 145 S. W. 401, it appeared that land had been conveyed by one Young to trustees for the purpose of estab

lishing and maintaining a church thereon in which the congregations of four designated churches might worship. The church was built and for many years used by the congregations in accordance with the wish and understanding of the grantor. But, with the growth of the city, came a desire on the part of the congregations for separate places of worship, which culminated in the building by each congregation of its own church and the abandonment of the old house. The representatives of these various churches, having no further use for this property as a house of worship, removed the building and sold the lot, and thereupon the heirs at law of Young instituted a suit in which they sought to recover the property on the ground that the purpose for which it had been deeded to the trustees of the named churches had failed. The court held that the heirs at law of the donor were entitled to the property, saying: "While the deed contains no provision to the effect that, in the event the property shall cease to be used for the purpose for which it was granted, it shall revert to the grantor, such provision was not necessary, for, the conveyance being a voluntary one for a charitable purpose, it would automatically revert to the grantor when the purpose for which it was conveyed had failed."

In Gilman v. Burnett (1917) 116 Me. 382, L.R.A.1918A, 794 102 Atl. 108, it appeared that a testatrix had given a farm in trust, the will providing that "said farm shall be occupied by my dear aunt, Lydia B. Pickett, and that she shall afford a home for one or two or more, if it may be arranged, of the unmarried women who have been employed in the straw industry. of Massachusetts; that having been my occupation, and knowing the many worthy and deserving cases in the employ of that industry, I desire that my accumulations, however limited they may be, shall be so intrusted as to afford to my sisters in this line of work a place of refuge and comfort; trusting that others may feel like enlarging and endowing this beautiful spot where my said farm is situated,

in order to afford them the necessary comforts and enjoyments." The trustee brought a bill in equity asking for the construction of the will, alleging in the bill that it was impossible to carry out the terms of the trust; that the farm had neither stock nor implements; that there was no money with which to purchase any or to pay the ordinary running expenses; that the income of the untilled land was very small and the property was steadily depreciating in value; that she was unable to live on the premises and afford a home to one or more of the designated beneficiaries; that no other trustee would be able to do this without assistance apart from the property; and that no outside person had shown a disposition to endow the farm so as to fulfil the purposes of the trust. All these allegations were admittedly true. The court, in holding that the trust provided for a particular charity and that the gift had failed and passed to the next of kin, said: "It is conceded that the trust is so impracticable that it is impossible of execution, for the uncontradicted reasons recited by the trustee in the bill. The real estate is grossly insufficient for the contemplated purpose. It is not even self-supporting. There is no additional endowment. There is no provision by which the property can be sold and the proceeds converted into a fund which could be allowed to accumulate, and, if accumulations were permitted, the principal is so meager that the time of enjoyment would be postponed so far into the future that the purpose of the testatrix, which was intended to be executed in a short time after her decease, would be thwarted. . . . To allow the trust property to remain as it is means its uselessness in the present and its greatly diminished value in the future. It should either be applied in such a way as to effectuate the general charitable intent of the testatrix, if such intent can be found, by invoking the doctrine of cy pres, or it should be held to belong to the heirs at law on the ground of a lapsed devise. We search in vain in the will in the pending case for evi

dence of any general charitable intent on the part of the testatrix. The words in every portion preclude such an inference. There is nothing to indicate that the testatrix intended to make any provision for the recipients of her bounty unless they could be provided for in her old home, the spot that she loved and thought so beautiful. Her charitable purpose was linked with the particular farm which constituted the subject of her bounty. The exact location provided for in the will was the paramount consideration in her thought, and a general provision for the beneficiaries would seem to be quite beyond her contemplation.

We are therefore of opinion that it is impracticable and impossible to execute the particular charity for which provision is made, that the doctrine of cy pres cannot be invoked, that the gift fails, and the property in question must pass to the next of kin as intestate property."

In Bancroft v. Maine State Sanatorium Asso. (1920) 119 Me. 56, 109 Atl. 585, it appeared that Chamberlin, the donor, had placed in the hands of trustees a fund for the uses and purposes of the Maine State Sanatorium Association. After the death of the donor the association conveyed all its property, real and personal, to the state of Maine, together with all its right, title, and interest in the Chamberlin endowment fund, and the state of Maine continued to maintain the sanatorium. The trustees of the fund brought a bill in equity asking for a construction of the declaration of trust, a determination of the question whether the interest of the sanatorium therein and in the income had terminated, a determination of the rights of the respective claimants to said fund and its accumulations, and full instructions as to their duties as trustees in the premises. The court said: "The gift is to this particular institution, the net income to be paid over to its treasurer for the time being, nor can it even be used for all the purposes to which the sanatorium might devote it, but it is limited solely to the annual running expenses of the said Sanatorium Association, and it

In

cannot be used for the purchase of real estate, furnishings, interest, 'or for any other purpose whatever except that above stated.' The fund is to bear the name of the donor, as a part of the assets of this institution. case of forfeiture for nonpayment of debts, the fund was to go to individuals named. Every paragraph of the declaration is consistent with the intent of a particular charitable gift and inconsistent with any general purpose to make this benefaction to the general cause of antituberculosis. It follows from what has been said that this fund now belongs to the estate of the donor as a resulting trust. The trust having failed, a trust results by implication of law to the executor under the will. His claim is therefore sustained."

In Easterbrooks v. Tillinghast (1855) 5 Gray (Mass.) 17, it appeared that the testator had devised real estate in trust to apply the income to the maintenance of a pastor or elder in a church in the town where the testator resided, so long as the members of that church, or their successors, should maintain the visibility of a church in such faith and order. A bill was brought by the heirs to obtain a release of the property on the ground that the church had ceased to be a visible church. Further facts appear in the following extract from the opinion: "The facts on which the plaintiffs rely in support of their allegation that the visibility of said church has not been maintained are set forth in the bill, and they are admitted by the defendant, for present purposes and effects, by his demurrer to the bill. The first question in the case is whether the six-principle Baptist Church in Swanzey, for whose benefit Wood's devise was made, has ceased to maintain its visibility, or, in language more commonly used, ceased to be a visible church. If it has, then the second question is whether the plaintiffs, as Wood's heirs at law, are now entitled to the devised property, which is still in the defendant's possession. The bill avers that on the 31st day of March, 1853, there were only two members of said church;