that they, on that day, at a meeting called by public notice, voted and resolved that they would not any longer endeavor to maintain the appearance of a visible church; that they declared the same dissolved and extinct; and that the said vote and resolve were entered on the records of said church. This seems to the court to have been a dissolution of the church, so that it thenceforth ceased to be a visible church in any sense, legal or ecclesiastical. Of course, the attempt afterwards made to admit members was futile. If any of these alleged facts could have been safely denied or successfully admitted and avoided, the defendant should have filed an answer to the bill, and not have demurred to it. The devise to the defendant of the property in question was doubtless a devise in fee, . . . and having been made to him as trustee, and for a specific purpose only, he holds the property, since the failure of the trust by the extinction of the cestui que trust, not for his own benefit, but for the devisor's heirs at law, as a resulting trust, and is answerable to them for it. . . . The precise mode of relief to which the law entitles the heirs may be a subject for consideration hereafter." In Bowden v. Brown (1908) 200 Mass. 269, 128 Am. St. Rep. 419, 86 N. E. 351, it appeared that a testatrix, after giving certain legacies, provided as follows: "The remainder shall ... be given to the town of Marblehead, toward the erection of a building that should be for the sick and poor, those without homes." The town of Marblehead declined to accept the legacy, and it was held that the gift failed, and that the residuary estate went to the next of kin. The court said: "This gift constitutes a public charity. . . But by the terms of the will, it is to go to a designated donee, to be used for a specified purpose, for the benefit of a certain class of sick and poor. The donee, the town of Marblehead, at a meeting of the voters, has declined to accept the legacy. It was given 'toward the erection of a building' by the town. The action of the town is equivalent to a refusal to erect such a building. It appears that the charity cannot be administered in the way stated in the will. It therefore must fail altogether, unless it can be administered under the doctrine of cy pres. The question arises whether the purpose of the testatrix was to give her property for this specific charity, or whether her charitable purpose was general, so that the court is authorized to apply the money to some other charity, similar to that mentioned in the will, under a scheme to be devised for that purpose. It is manifest that the amount of the property, which is only about $8,000, is insufficient for the erection and maintenance of such a building as the testatrix contemplated. She expected that the building would be erected and maintained by the town, with such aid as would be derived from the use of her gift. The trust was not for the erection of a building by trustees under her will, entirely from the proceeds of her property. It being impossible to do that which the testatrix had in mind, can we discover a purpose to do something else of a similar character? We think not. There is nothing to indicate that she intended to make provision generally for the sick and poor of the town, or particularly for those without homes, unless they could be provided with a home in a building to be erected for their use. General provision for the sick and poor would seem to include a charity much broader than anything in her contemplation. The case seems to fall within the class where no intent to use the gift for other charitable purposes can be discovered, if it is impossible to execute the particular charity for which provision is made. In such cases the charity fails altogether." In Campbell v. Kansas City (1890) 102 Mo. 326, 10 L.R.A. 593, 13 S. W. 897, the plaintiffs, as heirs of the donors brought an action of ejectment to recover land which had been dedicated to the city of Kansas for cemetery purposes. It appeared that the land had been used for such purposes for about ten years when the city council passed an ordinance vacating it for graveyard purposes. It subsequently notified the relatives of persons buried there to remove the remains. The city subsequently improved the land and treated it as a park. Nothing remained to indicate that it was a graveyard. The question was submitted on two instructions to the jury, one involving the question of abandonment of the cemetery, and the other worded as follows: "Although you may believe from the evidence that the land in controversy was dedicated, at the time and in the manner as alleged in defendant's answer, to the public for its use as a graveyard, and that the public, for a number of years after such dedication, used the said land for such purpose, if you further believe from the evidence that the public, and those interested in the use of said land as a graveyard, had, before the commencement of this suit, abandoned the same as a graveyard, and that the same was not at the commencement of this suit a graveyard, and was in possession of defendant, then you should find for the plaintiff." The court said: "I have considered these instructions very carefully; and, although they may be open to the criticism of repetition and redundancy, I am satisfied that they gave the jury to understand very clearly that the plaintiffs were not entitled to recover, unless the jury were satisfied from the evidence that the original uses for which the land had been dedicated had been discontinued and abandoned before the commencement of the suit." It was held that the dedication was for a charitable use, that an abandonment had been established, and a judgment in favor of the plaintiffs was affirmed. In St. Louis v. McAllister (1924) 302 Mo. 152, 257 S. W. 425, it appeared that in 1916 the city of St. Louis, as trustee under the will of Bryan Mullanphy, deceased, instituted a suit against the attorney general of Missouri, as the representative of the general public in matters appertaining to the administration of public charities, for the purpose of having the trust fund provided by said will applied cy pres. In its petition it al 1 leged, among other things, that Mullanphy, by his will, probated in 1859, had given and devised to it one third of his estate "in trust to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis, on their way bona fide to settle in the West;" that it had accepted the trust, and since that time had been administering the fund in accordance with the directions of the testator; that at the time the will was made it could be readily ascertained who were the persons that belonged to the class designated therein as "poor emigrants and travelers coming to St. Louis, on their way bona fide to settle in the West;" but that, owing to the change of conditions in the development of the country and the movements of population, it had become practically impossible to determine whether any given individual fell within such classification, and for that reason the application of the trust fund according to the scheme of the testator and his particular directions had become impracticable. The question involved was as to the right of intervening heirs to an allowance for counsel fees from the trust fund. The court, in reaching its conclusion that they were entitled to a reasonable allowance, said: "At this stage of the proceeding appellants, who are Mullanphy's heirs, intervened. They agreed with the trustee that the application of the trust fund in accordance with the directions of the testator had become impracticable; but they averred that the will did not disclose any intention on the part of the testator to devote the property devised to general charities, or to any other form of charity than that specifically declared in the will, and consequently that a trust resulted in their favor. The issues as thus framed called for a construction of the will. If the objects of a charitable trust have failed, a court of equity cannot, on the sole ground of such failure, select other charitable uses to which the fund shall be applied. It must be found that such other uses will give effect to the general intention of the donor as expressed in the instrument creating the trust; and if no general intention is disclosed the doctrine of cy pres is without application. Whether the will evidenced a general intention on Mullanphy's part to devote one third of his estate to charities, or whether he had but the one particular object in mind, namely, the relief of 'poor emigrants and travelers coming to St. Louis, on their way bona fide to settle in the West,' is by no means free from doubt. If such general intention did not exist, then, upon a failure of the particular uses upon which the gift was made, a trust resulted in favor of his heirs." In McCran v. Kay (1921) 93 N. J. Eq. 352, 115 Atl. 649, it appeared that the testatrix had made gift in trust for the purpose of establishing a house of lodging at night for destitute women, or, in the event that the establishment of a lodging house should prove to be a failure, then for a hospital for sick animals. The will further provided: "One of the houses forming a part of my real estate might, if deemed adequate, be used as a lodging house for destitute women, or should attempt to maintain such a lodging house be decided to be a failure, one of my houses might, if deemed adequate, be used, with whatever land belonged to said house, for a hospital for sick animals. Said hospital for sick animals shall be entirely under Protestant management, and for house of lodging at night for destitute women or said hospital for sick animals shall be employed as matron or helpers in any capacity, Protestant only." Another paragraph of the will appointed the executrixes, and directed them "to associate with them as advisory committee Mrs. Benj. Stites and Miss Helen J. Elmer," and further requested "my executrixes to select suitable persons to succeed them as executor or executrixes, after they, through removal, physical failure, or prospective death, shall be unable longer to perform duties." Another paragraph read: "As matron of lodging house at night for destitute women, or if such lodging house fail of success, and hospital for sick animals be established, for either charity, I appoint as matron Elizabeth Haas." Nancie Kay, as executrix, without consulting with, or being advised by, Mrs. Stites or Miss Elmer, attempted to carry out the trust provided for in the will, by using certain premises as a lodging house for destitute women, under the management of Mrs. Haas as matron. This proved a failure, largely through lack of patronage and the cost of its maintenance, and it was abandoned; and no attempt was made to establish the hospital for sick animals. The court said: "Notwithstanding that the trusts in question are regarded as charitable, the facts established on the hearing show the impracticability of their execution. This is apparent from the provisions of the will; and it is demonstrated by the fact that the income from the trust estate and from the patrons of the lodging house was insufficient to maintain the lodging house, and that in consequence this object of the trust had to be abandoned. . . . As it is impossible to carry out the expressed general charitable purposes of the testatrix by the means specified by her, or by the use of other means or methods, a decree will be advised that the gift lapses, and, as no other disposition has been made of the estate, it will go to Mrs. Linnett, as the sole heir at law and next of kin of the testatrix." In McAuley v. Wilson (1828) 16 N. C. (1 Dev. Eq.) 276, 18 Am. Dec. 587, it appeared that a testator bequeathed property in trust, for the support of a minister of the Associate Seceding Party, "who shall preach at the Seceding Congregation Meeting House, called Gilead." A majority of that congregation, being of a different denomination, refused to permit a minister of the Associate Seceding Party to officiate in their church. It was held that as the church at Gilead refused to accept his bounty the intention of the testator could not be literally fulfilled, and that a trust resulted for the heirs or next of kin. In Gumbert's Appeal (1885) 110 Pa. 496, 1 Atl. 437, it appeared that Daniel Frantz, for the nominal consideration of $2, executed a deed to the Presby terian and Lutheran societies, in which the purpose of the grant was stated as follows: "And the abovementioned societies to have and to hold said piece of land for the only use and purpose of a church and churchyard and burying place and for supplies of the Gospel, against me, the said Daniel Frantz, my heirs and assigns forever, except the rights of privileges above mentioned, whereto said piece of land is appropriated only." The court, in overruling a previous order of sale of the property, recognized the doctrine of reverter in the following extract from the opinion: "It is very clear that the grant above recited is for a special purpose only, and that when that purpose fails the land must revert to the heirs of Frantz. As a place of worship it has been abandoned long ago, but it is still used as a place for the burial of the dead, so that the intended use still continues, and by this use a reversion is prevented." made in their lifetime. The bill was filed in the name of the complainant, by certain charitable societies of Pennsylvania and South Carolina, under the directions of the will, to recover from the defendant, as executor of Mrs. Kohne, so much of the property as came to her hands as the executrix of her husband's will, and which she distributed, as undisposedof property, after the death of her coexecutors. The question in the case was whether the residuary bequest in the will, which authorized his executors, or the survivor of them after the death of his wife, to dispose of the surplus "for the use of such charitable institutions in Pennsylvania and South Carolina, as they might deem most beneficial to mankind," had lapsed, no such appointment having been made, or attempted to be made, during the lifetime of the executors. The court, in holding that the charity could not be carried out, said: "After the investigation we have been able to give to this important case, embracing the English chancery decisions on charities, as well as our own, and the cases decided in by Pennsylvania, we are not satisfied that the fund in question ought to be withdrawn from those who are in possession of it, as the heirs of Frederick Kohne. There does not appear to us to be any safe and established principle, in Pennsylvania, which, under the circumstances, enables a court of chancery to administer the fund. It has not fallen back into the estate of the testator, because it was not separated from it. It remains unaffected by the bequest, because the means through which it was to be given and applied have failed." Subsequently, however, it was provided by statute in Pennsylvania that "no disposition of property heretofore or hereafter made for any charitable use shall fail reason of the objects ceasing but it shall be the duty of any court having equity jurisdiction to .; carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity." See Toner's Estate (1918) 260 Pa. 49, 103 Atl. 541. In Fontain v. Ravenel (1854) 17 How. (U. S.) 369, 15 L. ed. 80, a case not strictly within the scope of this annotation, it appeared that the testator provided in his will, by which he gave annuities to his wife and others, that after the death of his wife, his executors or the survivor of them should provide for the annuitants then living, and dispose of the residue of his property for the use of such charitable institutions in Pennsylvania and South Carolina as they or he might deem most beneficial to mankind. The executors died before the widow, and no appointment of the charity was made or attempted to be In Presbyterian Church v. Katsianis (1922) 78 Ind. App. 406, 134 N. E. 684, another case not strictly within the scope of this annotation, the will provided as follows: "Fourth. In case of the death of my wife, Mary F., and of Andrew J., my son, and Mary Isabella, my daughter, without issue, whatever of the estate, whether real or personal or mixed, I hereby give and bequeath the same to the trustees of the Second Presbyterian Church of Laporte, Indiana, and their successors in office, in trust for the use and benefit of said church, the proceeds of such estate, after paying all necessary expenses in keeping the same in repair, in paying taxes and insurance and all other necessary expenses, the net proceeds shall be applied as follows: One half to be paid to the support of the pastor of said church, and the other half shall be applied by said trustees to the purchase and payment of the annual rental of good, comfortable pews, in the church edifice, for the use and benefit of the poor people who may wish to attend said church for the worship of God." At the time of the execution of this will, there were in existence at Laporte two religious organizations, one known as the "First Presbyterian Church of Laporte, Indiana," and the other, the "Second Presbyterian Church of Laporte, Indiana." After the death of the testator and his wife, but before the death of the son and daughter, the two organizations were consolidated into a new organization under the name of the "Presbyterian Church of Laporte, Indiana." It was held that, by the consolidation of the two churches, the church named in the will ceased to exist and that the legacy lapsed. The court said: "Appellant contends that the 'trustees of the Presbyterian Church of Laporte' are the 'successors in office' of the trustees of the Second Presbyterian Church.' This contention cannot, in our judgment, prevail. The devise was to the 'trustees of the Second Presbyterian Church of Laporte, Indiana, and their successors in office in trust for the use and benefit of said church.' . . It is clear that the Second Presbyterian Church ceased to exist when the necessary steps had been taken to consolidate with the First Presbyterian Church, and the real estate and personal property had been conveyed and delivered to the new organization. Having ceased to exist, there could be no trustees of said church, nor could there be any successors in office to said trustees." See also Presbyterian Church v. Chu lip (1922) 78 Ind. App. 698, 134 N. E. 686. 2. Decisions denying reverter. In Stuart v. Easton (1896) 21 C. C. A. 146, 39 U. S. App. 238, 74 Fed. 854, affirmed in (1898) 170 U. S. 383, 42 L. ed. 1078, 18 Sup. Ct. Rep 650, the action was one of ejectment by William Dugald Stuart against the city of Easton and county of Northampton, corporations of the state of Pennsylvania. It appeared that the county of Northampton was laid out and erected by an act of the general assembly of the province of Pennsylvania, by which it was made lawful for certain named trustees "to purchase and take assurance to them and their heirs, of a piece of land situate in some convenient place in the said town [Easton], in trust and for the use of the inhabitants of the said county, and thereon to erect and build a courthouse and prison, sufficient to accommodate the public service of the said county, and for the ease and conveniency of the inhabitants." It further appeared appeared that subsequently Thomas and Richard Penn, the proprietaries of Pennsylvania, caused to be issued a warrant of survey, which, after reciting the above-mentioned act, proceeded as follows: "And whereas, on application and request of said trustees, and out of regard to encourage and promote the improvement of the said town, and general good and convenience of the inhabitants of the said county, we have condescended and agreed to grant to the said trustees a lot or piece of ground of 80 feet square, to be laid out in the center of the great square in the middle of the said town of Easton, for a courthouse for the use and the accommodation of the inhabitants of the said town and county forever." Following this a patent was issued, worded in part as follows: "Now, know ye, that for the further encouragement and better promoting the public benefit and service of the said town and county, we have given, granted, released, and confirmed, and by these presents do give, grant, release, and confirm, unto the said trus |