dica, 129, 135. Sir William Scott and Sir John | claimant has died and his representatives have Nicholl, in their letter to chief Justice Jay when not been made parties. Penhallow v. Doane, 3 Minister to England in 1794, stating the general Dall., 54, 86, 91; Story, note, 2 Wheat. App., principles of proceeding in prize causes in Brit- 68; 3 Phillim. Inter. L., sec. 492. It does not ish courts of admiralty, observed that those establish the title of any particular person, unprinciples could not be more correctly or suc- less conflicting claims are presented to the court cinctly stated than in an extract which they and passed upon. In Penhallow v. Doane, Mr. gave from that report, including the passage Justice Iredell said: 'In case of a bona fide just quoted; and, in describing the measures claim, it may appear to be good by the proofs which ought to be taken by the neutral claim- offered to the court, but another person living ant, said: "The master, correspondent or con- at a distance may have a superior claim which sul applies to a proctor, who prepares a claim, he has no opportunity to exhibit. It is true, a supported by an affidavit of the claimant, stating general monition issues and this is considered briefly to whom, as he believes, the ship and notice to all the world, but though this be the goods claimed belong, and that no enemy has construction of the law from the necessity of the any right or interest in them." Wheaton, Capt-case, it would be absurd to infer in fact that all ures, 311, 314. the world had actual notice and, therefore, no superior claimant to the one before the court could possibly exist." 3 Dall., 91. It has often been said by judges of high authority that the claimant has the burden of proving his title to the property. But in the leading cases in which this was said there was but a single claimant, and either, as in The Walsingham Packet, 2 C. Rob., 77, 87, and The Bremen Flugge, 4 C. Rob., 90, 92, the words "support his title were used as equivalent to the general expression "prove the neutrality of the property;" Croudson v. Leonard, 4 Cranch, 434, 437; The Mary, 9 Cranch, 126, 146; Story, note, 1 Wheat., 506; The Amiable Isabella, 6 Wheat., 1, 77; or else the neutral claimant asserted a title in property appearing to have once belonged to an enemy, as in The Rosalie & Betty, 2 C. Rob., 343, 359; The Countess of Lauderdale, 4 C. Rob., 283; and The Soglasie, 2 Spinks, 101; 8. C., Spinks, Prize Cases, 104. And in The Maria, 11 Moore (P. C.), 271, 286, 287, Lord Chief Justice Cockburn, delivering the judgment of himself, Lords Justices Knight, Bruce and Turner, Sir Edward Ryan, Sir John Dodson and Mr. Justice Maule, reversing upon the facts a decree of Dr. Lushington, emphatically declined to assent to the application of the rule to a case in which the property appeared to be neutral, although not shown to belong to the claimant. The proceedings of a prize court being in rem, its decree, as is now universally admitted, is conclusive, against all the world, as to all matters decided and within its jurisdiction. Williams v. Armroyd, 7 Cranch, 423; Bradstreet v. Neptune Ins. Co., 3 Sumn., 600. But it does not, as Chief Justice Marshall observed, "establish any particular fact, without which the sentence may have been rightfully pronounced." If the vessel is condemned as prize and sold by order of the court, the decree of condemnation and sale is conclusive evidence of the lawfulness of the capture and of the title of the purchaser. But if, as is usual, it does not state the ground of condemnation, it is not even conclusive that the vessel is enemy's property, for it may have been neutral property condemned for resisting a search, or attempting to enter a blockaded port; and, "of consequence, this sentence, being only conclusive of its own correctness, leaves the fact of real title open to investigation.' Maley v. Shattuck, 3 Cranch, 458, 488. So a decree of acquittal and restitution conclusively determines as to all the world that the vessel is not lawful prize of war. The Apollon, 9 Wheat., 362; Magoun v. Ins. Co., 1 Story, 157. But, as it operates in rem, it is not invalidated by the fact that pending the proceedings the sole When no other person interposes a claim, restitution of ship or goods is ordinarily decreed to the master as representing the interests of all concerned, or to the person who by the ship's papers or by the master's oath appears to be the owner. As said by Mr. Justice Story, and repeated by Sir Robert Phillimore, "The property, upon a decree of restitution, may be delivered to the master as agent of the shipper, for in such case the master is agent of the shipper, and is answerable to him." 2 Wheat. App., 70; 3 Phillim. Inter. L., sec. 495. See, Letter of Sir William Scott and Sir John Nicholl to Chief Justice Jay, above cited; and Rose v. Himely, 4 Cranch, 241, 277, in which Chief Justice Marshall said: "Those on board a vessel are supposed to represent all who are interested in it; and if placed in a situation which requires them to take notice of any proceedings against a vessel and cargo, and enables them to assert the rights of the interested, the cause is considered as being properly heard, and all concerned are parties to it.' Even when conflicting claims of title are put in, the prize court will not ordinarily determine between them, unless one of the claimants is a citizen of its own country. Thus, in a case in which an American vessel was taken by the Danes and captured from them by an English ship of war and brought into the High Court of Admiralty as prize, the master made affidavit that he had previously sold her, under the pressure of necessity, by reason of injuries from perils of the sea, to one Ormsby, an American, from whom the Danes took her; and separate claims were presented in behalf of Ormsby and of Coit and Edwards, also Americans, who were admitted to be the original owners and whose names appeared as such in the register and other papers of the ship; Sir William Scott, after observing upon the circumstances attending the sale by the master, said: "But the court is not called upon to determine upon the validity of the title, which may be matter of discussion hereafter in the American courts. It is only required to give possession." "The ship's register and all the papers point to Coit and Edwards as the owners of the vessel, and I have no hesitation in restoring the possession to them." "I, therefore, restore the possession of the vessel to the persons appearing by the register and ship's papers to be the owners, without prejudice to such rights as Mr. Ormsby, or any other persons, may have acquired by purchase, or otherwise as shall appear to the proper court of justice in America." The Fanny & Elmira, Edw. Adm., 117, 120, 121. In The Lilla, 2 Sprague, 177, affirmed on appeal, 2 Cliff., 169, an American vessel owned by Maxwell, a citizen and resident of Maine, was taken by a confederate privateer and carried into Charleston, South Carolina, and there condemned and sold by a tribunal, acting under the assumed authority of the Confederate States, to persons who took her to England, where she was registered in the name of one Bushby, after which she was captured on the high seas and brought in by a United States gunboat. Claims were presented by Maxwell and by Bushby, and after hearing counsel in behalf of each claimant, as well as of the captors, the court decided against the claim of Bushby, and ordered the vessel to be restored to Maxwell, on condition of payment of salvage to the recaptors. But the opinion of Judge Sprague shows that jurisdiction over the question of title was exercised only to protect the rights of one of our own citizens against foreigners, to property in the possession of the court, and that if the question of ownership were wholly between foreigners, the court might refuse to decide it. 2 Sprague, 187. As incidental to the question of the lawfulness of the capture, prize courts have, doubtless, jurisdiction to determine the liability of the captors for damages, expenses and costs, occasioned by their own wrongful acts, or by the fault of those in charge of the prize while in their custody. Le Caux v. Eden, 2 Doug., 594, 610; The Siren, 7 Wall., 152 [74 U. S., XIX., 129]; 1 Kent, Com., 359. But the learning and research of counsel have failed to furnish a single case, where there was but one claimant of property libeled as prize of war, in which a prize court has undertaken to pass upon the validity of his title as against other persons, or in which its decree has been set up in a subsequent suit as an adjudication of that title as between him and them. All the proceedings in the case of The Wren were according to the usual practice in prize causes. The libel was filed within three days, and the monition was returnable, and the hearing upon the evidence in preparatorio had, within fourteen days, after the capture. The only claim put in was by the master, under oath, stating positively that he was the master and as such lawful bailee of the vessel, and claimed her for the owner. The further statement in the claim that Laird and no other person was the true and bona fide owner of the vessel, was only upon information and belief, and reference to her register in the possession of the court. That register was dated at Liverpool six months before, showed Laird to have been the owner, and had at its foot a memorandum stating that by the Merchant Shipping Act, 1854 (St. 17 & 18 Vict., ch. 104), it was not a document of title, and did not necessarily contain notice of all changes of ownership. The court ordered further proof from certain witnesses on specified interrogatories to be taken forth with; and, after a final hearing upon the whole evidence, announced, within twenty-two days from the filing of the libel, its decree of condemnation, which was afterwards entered in form. The decree of this court, on appeal, merely reversed the decree of condemnation and directed the vessel to be restored to the claimant. The references in the argument of counsel before this court, and in its judgment delivered by Mr. Justice Nelson, to the evidence upon the ques tion whether she was the property of Laird or of other persons, were only by way of assisting in the determination of the sole question at issue, whether she was or was not enemy's property and, therefore, lawful prize. The Wren, 6 Wall., 582 [73 U.S., XVIII., 876]. The final decree of the district court recited the decree and mandate of this court, and in conformity therewith ordered the proceeds to be paid to Laird, the person appearing to be the owner by the ship's papers, and according to the best information and belief of the master, as stated in the claim put in by him. Neither the decree of this court nor the subsequent decree of the district court determined, or assumed to determine, any question of title as between Laird and Prioleau or other persons who had not appeared in the cause nor contested Laird's claim." The libelants, in this suit against Laird personally, and against Foster & Thomson as his garnishees, have the burden of proving that the fund in the hands of the garnishees belongs to Laird. There is nothing in the acts of Prioleau or of the garnishees as his attorneys which es tops the garnishees to deny that fact and to put the libelants to proof of it. He had no knowledge of the prize proceedings until after the decree of condemnation. Having a title to the vessel under the bill of sale from Laird, he prosecuted the appeal from that decree in Laird's name and by Laird's authority. Whatever effect Prioleau's omission to disclose his own interest might have had, if discovered, upon the issue in the prize cause, or might have, by way of estoppel, if the present suit were brought by the United States, he has done nothing which Laird or Laird's creditors have been misled by or have acted upon. The title in the vessel, as between Laird and Prioleau, was in Prioleau. The garnishees, being attorneys both of Laird and of Prioleau, received the proceeds in the name of Laird, but for Prioleau. There being no estoppel, either of record or in pais, the libelants fail to prove that the fund belongs to Laird, and cannot, therefore, maintain their attachment. This case does not present the question wheth er, if Prioleau were plaintiff or actor, seeking affirmative relief against Laird or against these libelants, he must be considered as standing in such a position by reason of his having concealed from the prize court his own title to the vessel, and of his having permitted restitution to be de creed to Laird, that the court would decline to assist him, upon the principle applied in De Metton v. De Mello, 12 East, 233, and 4 Camp., 420. Decrees affirmed. Mr. Justice Blatchford did not sit in this case, and took no part in its decision. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. JAMES D. RUSSELL ET AL., Appts., 0. ANNE R. ALLEN, Exrx., and WILLIAM R. ALLEN ET AL., Exrs. of THOMAS ALLEN, Deceased. (See S. C., 17 Otto, 163-173.) Charitable gift, when valid. *William Russell, of St. Louis, "for the purpose of founding an institution for the education of youth in St. Louis County, Missouri," granted lands and personal property in Arkansas to John 8. Horner and his successors, in trust "for the use and benefit of the Russell Institute of St. Louis, Missouri," with directions to the grantee to sell them, and to account for and pay over the proceeds "to Thomas Allen, President of the Board of Trustees of the said Russell Institute at St. Louis, Missouri," whose receipt should be a full discharge to the grantee. Held, that this was a charitable gift, valid against the donor's heirs and next of kin, although the institution was neither established nor incorporated in the lifetime of the donor or of Allen. AF Decided Mar. 5, 1883. PPEAL from the Circuit Court of the United States for the Eastern District of Missouri. The bill in this case was filed in the court below, by the appellants, as heirs of William Russell, deceased, to have a certain trust, created by the said William Russell by certain instruments executed by him before his death for the purpose of founding an educational institution in St. Louis, declared invalid, and to establish in lieu thereof a trust in favor of the heirs of the said William Russell, and for an account. The court below having sustained a general demurrer and dismissed the bill, the complainants appealed to this court. The facts of the case are fully stated by the court. Messrs. William Brown and W.M. Springer, for appellants: There must be a donee capable of administering the fund in accordance with the intention of the donor. Beekman v. Bonsor, 23 N. Y., 299; Andrew v. N. Y. Bib. Soc., 4 Sandf., 156. This was conceded in Vidal v. Girard, 2 How., 127; Chambers v. St. Louis, 29 Mo., 543. This defect cannot be remedied by a Court of Chancery in this country. White v. Fisk,22 Conn., 53, 54, and cases there cited; LePage v. McNamara, 5 Iowa, 124; Andrew v. New York Bib. Soc., 4 Sandf., 156; Williams v. Williams, 8 N. Y., 527; Fontain v. Rarenal, 17 How., 382 (58 U. S., XV., 85). In the following cases the trust has been held invalid because of uncertainty of the charitable use. White v. Fisk, 22 Conn., 50–54; Trustees Bap. Asso. v. Hart, 4 Wheat., 1; Grimes v. Harmon, 35 Ind., 198; LePage v. McNamara, 5 Iowa., 124; Wheeler v. Smith, 9 How., 55; Owens v. Miss. Soc., 14 N. Y., 387; Williams v. Williams, 8 N. Y., 527; Fontain v. Ravenal (supra); Wil *Head note by Mr. Justice GRAY. NOTE-What is a charity; bequests valid for charitable purposes and those not. See note to Vidall v. Girard's Exrs., 43 U. S. (2 How.), 127. derman v. Baltimore, 8 Md., 551; Dashiel v. Atty-Gen., 5 Har. & J., 392. In cases which have been upheld, a discretion with power was given to some one to bring the trustee or donee into existence, or the use was so clearly defined as to be capable of being specifically executed by a Court of Chancery. Ould v. Wash, Hosp., 95 U. S., 303 (XXIV., 450); Inglis v. Sailors' Snug Har., 3 Pet., 99. The Statute of 43 Elizabeth is not suited to our condition of society, or institutions. Williams v. Williams, 8 N. Y., 546; Incorporated Soc. v. Richards, 1 Dru. & War., 301; (S. C.) 4 Ir. Eq., 177; Ould v. Hospital (supra); Chambers v. St Louis, 29 Mo., 543. Messrs. Chester H. Krum and W. R. Donaldson, for appellees: A trust for educational purposes is a charity in a legal sense. Perin v. Carey, 24 How., 465 (65 U. S., XVI., 701). The education of youth was a charitable use under the express terms of the Statute of 43 Elizabeth, ch. 4. The English statute is in force, both in Arkansas and Missouri, each having adopted the common law. Wag. Stat., 886, sec. 1; Guest v. Farley, 19 Mo., 147; Gantt, Dig. Ark. Stat., sec. 772. The later decisions, however, have exploded the doctrine that equity jurisdiction was at all dependent upon that statute. Ould v. Hospital, 95 U. S., 303 (XXIV., 450); Vidal v. Phila., 2 How., 128; Fontain v. Ravenal, 17 How., 379 (58 U. S., XV., 92); Schmidt v. Hess, 60 Mo., 595; 2 Story, Eq. Jur., sec. 1187. 66 'A devise to a corporation to be created by the Legislature is good as an executory devise. A distinction is taken between a devise in præsenti to one incapable, and a devise in futuro, to an artificial being to be created and enabled to take." Ould v. Hospital (supra); Inglis v. Sailors' Snug Har., 3 Pet., 99; Parlet v. Clark, 9 Cranch, 292; Vidal v. Girard, 2 How., 197; University v. Indiana, 14 How., 268; Beatty v. Kurtz, 2 Pet., 566. * * 'It is immaterial whether the person to take be in esse or not * or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to those objects." Witman v. Lex, 17 Serg. & R., 88; 2 Story, Eq. Jur., secs. 1165-6 and cases cited; Adams, Eq., p. 66; Schmidt v. Hess, 60 Mo., 595; Ang. & Ames, Corp., sec. 184. Mr. Justice Gray delivered the opinion of the court: This is a bill in equity, filed on the 16th of April, 1878, by two of the heirs at law and next of kin of William Russell, of St. Louis, against Thomas Allen, to establish a trust in favor of Russell's heirs at law and next of kin, and for an account. The bill alleges that on the 19th of July, 1855, William Russell and John S. Horner executed four indentures of trust, by each of which Russell, in consideration of $1 paid, “And for divers other good and valuable considerations, but chiefly for the purpose of founding an institu To this bill, Allen filed a general demurrer, which was sustained and the bill dismissed. [Russell v. Allen], 5 Dill., 235. The plaintiffs appealed to this court. Pending the appeal, Allen has died, and his executors have been made parties in his stead. tion for the education of youth in St. Louis | been exercised or claimed by any person or corCounty, Missouri," granted and conveyed to poration, and there is and has been no donee Horner, his executors and administrators or capable of receiving, holding and administering successors, in trust forever, certain lands and the trust fund created by the indentures; that personal property in the State of Arkansas, to the beneficiaries of the trust, so far as can be dehave and to hold the same unto him, his ex- termined by the terms of the indentures, are unecutors, administrators and successors, in trust certain and indefinite, and the trust is invalid; "To and for the following uses and purposes, and, there being no debts outstanding against to wit: the said property is conveyed for the Russell's estate, the trust fund belongs to his use and benefit of the Russell Institute of St. next of kin. Louis, Missouri ;" and empowered and directed him and them to sell the same as soon as conveniently might be, and to account for and pay over the proceeds yearly or oftener, deducting the reasonable expenses of executing the trust, "To Thomas Allen, President of the Board of Trustees of the said Russell Institute at St. Louis, Missouri, and his receipt therefor shall be a full discharge of the said party of the second part for the amount so paid and the application thereof;" and Horner's trust to be brought to a close and the net proceeds paid over as soon as conveniently might be, and if not concluded within ten years, the property remaining undisposed of to be sold by public auction and the proceeds paid over as before required. In each of the four indentures, reference was made to the three others, and it was "Declared that all of said conveyances, including this, are made to one and the same person for one and the same use and purpose, and that the same are and are to be deemed and taken and accounted for as one trust, according to the conditions of the deeds respectively, it having been intended by said deeds and this present one to convey all of the remaining property of the said William Russell in the said State of Arkansas to the said party of the second part, to and for the use and benefit of the said Russell Institute of St. Louis, Missouri.' After this clause, in one of the indentures, were added the words "represented by their president as aforesaid." Each indenture contained a covenant by Horner “faithfully to perform the trust hereby created." The bill further alleges that Horner, in the execution of his trust, has converted a large portion of the property into money; has paid over to Allen the sum of about $50,000; and has conveyed and transferred to Allen the property remaining unsold, and that Allen holds and controls the whole fund, and has never applied to any court for aid in the disposition and application thereof, and has in no way used or recognized the fund as held by him in trust for the uses declared by Russell. The bill further alleges that there was not at the time of the execution of the indentures aforesaid, nor before or since, any such educational institution as was referred to therein; that at the time of such execution Russell was, from paralysis, infirm in body and weak in mind; and that, while he then manifestly proposed to found such an institution, yet in his increasing incapacity of body and mind during the short period that intervened between that time and his death, he failed to accomplish his philanthropic purpose; that he died in 1856, without ever having founded such an institution, or delegated to Horner or to Allen, or to any other person or corporation, authority to organize a Russell Institute, and that no such authority has hitherto The deeds of gift state that they are made "Chiefly for the purpose of founding an institution for the education of youth in St. Louis County, Missouri;" they convey the property to Horner and his successors in trust "For the use and benefit of the Russell Institute of St. Louis, Missouri;" they direct him to sell the property and account for and pay over the proceeds "To Thomas Allen, President of the Board of Trustees of the said Russell Institute of St. Louis, Missouri," whose receipt shall be a full discharge of Horner; and they end by declaring that all these conveyances shall be deemed taken and accounted for as one trust, and that it is the intention of the donor to convey the property included in all of them "to and for the benefit of the said Russell Institute of St. Louis, Missouri," to which one of the deeds adds "represented by their president as aforesaid." The donor thus clearly manifests his purpose to found an institution for the education of youth in St. Louis, to be called by his name; and he executes this purpose by conveying the property to Horner in trust, to hold and convert into money and pay that money to the officers of the institute when incorporated and a board of trustees appo nted. The direction to pay the money to Allen, as president of the board of trustees, and the mention, at the close of one of the deeds, of the institute as represented by its president as aforesaid, clearly show that the fund is not to be paid to Allen individually; and while they imply the donor's wish that Allen should be the first president of the board of trustees of the institute, they do not make his appointment to and acceptance of that office a condition of the validity of the gift or of the carrying out of the donor's charitable purpose. The terms of the deeds clearly show that the donor did not contemplate or intend doing any further act to perfect his gift. It is not pretended that the allegations in the bill as to his weakness of body and mind amount to an allegation of insanity, and they are irrelevant and immaterial. The principal grounds upon which the plaintiffs seek to maintain their bill are that the deeds create a perpetuity; that the uses declared are not charitable; and that, if the uses are charitable, there are no ascertained beneficiaries and no donee capable of assuming and administering the trust, and the uses are too indefinite to be specifically executed by a court of chancery. But these positions, as applied to the facts of the case, are inconsistent with the fundamental principles of the law of charitable uses, as established by the decisions of this and other courts exercising the ordinary jurisdiction in equity. church for public worship, and fenced in and used the land as a churchyard, for the burial of others as well as of Lutherans, for fifty "By the law of England from before the Stat- years. Upon these facts, it was held that the ute of 43 Eliz.,ch. 4, and by the law of this coun- Bill of Rights of Maryland, affirming the validtry at the present day (except in those States in ity of any sale, gift, lease or devise of land, not which it has been restricted by statute or judi- exceeding two acres, for a church and burying cial decision, as in Virginia, Maryland and, ground, recognized, to this extent at least, the more recently, in New York), trusts for public doctrine of charitable uses, under which no specharitable purposes are upheld under circum-cific grantee or trustee was necessary; that this stances under which private trusts would fail. land had been dedicated to a charitable and Being for objects of permanent interest and pious use, beneficial to the inhabitants generalbenefit to the public, they may be perpetual in ly, which might at all times have been enforced their duration, and are not within the rule through the intervention of the government as against perpetuities; and the instruments cre- parens patriæ, by its Attorney-General or other ating them should be so construed as to give law officer; and that a committee of the society them effect if possible, and to carry out the gen- might maintain a bill in equity to restrain by eral intention of the donor, when clearly mani- injunction the heirs of the original owners fested, even if the particular form or manner from disturbing that use. pointed out by him cannot be followed. They may and, indeed, must be for the benefit of an indefinite number of persons; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery; and an omission to name trustees, or the death or declination of the trustees named, will not defeat the trust, but the court will appoint new trustees in their stead. The previous adjudications of this court upon the subject of charitable uses, go far towards determining the question presented in this case. As the extent and effect of these adjudications have hardly been appreciated, it will be convenient to state the substance of them. The case of Baptist Asso. v. Hart, 4 Wheat., 1, in which a bequest by a citizen of Virginia "To the Baptist Association that for ordinary meets at Philadelphia annually," as a "perpetual fund for the education of youths of the Baptist denomination who shall appear promising for the ministry," was declared void, was decided upon an imperfect survey of the early English authorities, and upon the theory that the English law of charitable uses, which, it was admitted, would sustain the bequest, had its origin in the Statute of Elizabeth, which had been repealed in Virginia. That theory has since, upon a more thorough examination of the precedents, been clearly shown to be erroVidal v. Girard, 2 How., 127; Perin V. Carey, 24 How., 465 [65 U. S., XVI., 701]; Ould v. Washington Hospital, 95 U. S., 303 [XXIV., 450]. And the only cases in which this court has followed the decision in Baptist Asso. v. Hart, have, like it, arisen in the State of Virginia, by the decisions of whose highest court charities, except in certain cases specified by statute, are not upheld to any greater extent than other trusts. Wheeler v. Smith, 9 How., 55; Kain v. Gibboney, 101 U. S., 362 [XXV., 813]. Deous. In Beatty v. Kurtz, 2 Pet., 566, the owners of a tract of land, afterwards part of Georgetown, laid it out as a town, and made and recorded a plan of it, marking one lot as "for the Lutheran Church;" and the Lutherans of the town, a voluntary society not incorporated, erected and used a building upon this lot as a In Inglis v. Sailors' Snug Harbor, 3 Pet., 99, a citizen of New York devised land to the Chancellor of the State, the Mayor of the City, and others, designating them all by their official titles only, and to their respective successors, in trust out of the rents and profits to build a hospital for aged, decrepid and worn out sailors, as soon as the trustees should judge that the proceeds would support fifty such sailors, and to maintain the hospital and support sailors therein forever; and further declared it to be his will and intention, that if this could not be legally done without an Act of incorporation, the trustees should apply to the Legislature for such an Act, and that the property should, at all events, be forever appropriated to the above uses and purposes. An Act incorporating the trustees was passed and the hospital was established. A majority of the court held that the trustees took personally and not in their official capacities, and that upon their incorporation the legal title vested by way of executory devise in the corporation as against the heirs at law; and the dissenting Judges differed only as to the legal title, and not as to the validity of the charitable trust. In McDonogh v. Murdoch, 15 How., 367, a citizen of Louisiana, declaring his chief object to be the education of the poor of the Cities of New Orleans and Baltimore, made a devise and bequest to the two cities, one half to each, the income to be applied by boards of managers, who should be appointed by either city, but whose powers and duties he defined, and who should obtain acts of incorporation, if necessary, for the education of the poor and other charitable purposes, in various ways specified. And in case the two cities should combine together and knowingly and willfully violate the conditions, then he gave the whole property to the States of Louisiana and Maryland, in equal halves "for the purpose of educating the poor of said States under such a general system of education as their respective Legislatures shall establish by law." The court held that the devise to the cities was valid, and that the testator's directions as to the management of the income "must be regarded as subsidiary to the general objects of his will, and whether legal and practicable, or otherwise, can exert no influence over the question of its validity;" and expressed the opinion that the failure of the devise to the cities would not have benefited the heirs at law, for in that event the limitation |