Graham and Others v. Henderson,

communicated to the defendant Archibald C. Graham the terms of the contract made by the plaintiff and said Felix W. Graham, on which the suit is brought. It is enough to say that the bill of exceptions does not show any offer of such evidence.

The second point relating to the exclusion of evidence is, that the court erred in refusing to allow Archibald C. Graham to testify as to his understanding of the terms of the contract sued on, &c. The bill of exceptions states. that the offer was to prove that "he had been informed by the defendant Felix W. Graham," &c. If it was competent for the defendants to prove the understanding of one of them as to the terms of the contract, that proof could not be made by proving what one of his co-defendants had said about it, in the absence of the plaintiff.

Next as to the sufficiency of the evidence. The first paragraph of the complaint charges the defendants as partners. The second charges them as joint contractors. The general denial required the plaintiff to prove that all the defendants were liable under the first paragraph as partners, and under the second paragraph as joint contractors. There was no evidence whatever that the defendants were partners; without this evidence the case was not made out under the first paragraph. Tomlinson v. Collett, 3 Blackf. 436; Dickensheets v. Kaufman, 28 Ind. 251.

The evidence shows the making of two contracts with reference to the sale of wheat, one by Felix W. Graham, one by Archibald C. Graham, each separately. James P. Graham is not shown to have been in any way concerned or interested in either of the contracts; and therefore his liability is not shown.

Counsel for the appellee insist that this is merely a variance, and not such a defect of evidence as will justify a reversal of the judgment; that as the code authorizes judgment against all or any of the defendants, whether the contract be joint or several, as held in Hubbell v. Woolf, 15 Ind. 204 the attention of the court should have been spec

Grimes Executors v. Harmon and Others.

ially directed, by the motion for a new trial, to this point; and that the general statement in the reasons for a new trial, that the evidence was not sufficient to sustain the finding of the court, was not enough. We cannot agree to this. It is only where the court or jury finds for some of the defendants and against others, that judgment can be so rendered. Here there was a finding against all the defendants, and a judgment in accordance with the finding. The evidence was insufficient to justify this finding and judgment as to one, if not as to two, of the defendants, and the reason for a new trial was sufficiently specific.

The judgment is reversed, with costs, and the cause remanded, with directions to grant a new trial.

S. P. Oyler and D. W. Howe, for appellants.
G. M. Overstreet and A. B. Hunter, for appellee.

GRIMES' Executors v. HARMON and Others.

CHARITABLE USE.-Will-The residuary clause of a will was as followse "Item.. I give and bequeath the residue of my estate, after the foregoing bequests have been fully paid, to the orthodox protestant clergymen of Delphi and their successors, to be expended in the education of colored children, both male and female, in such way and manner as they may deem best, of which a majority of them shall determine; my object in this bequest being to promote the moral and religious improvement and well being of the colored race."

No organized or corporate body known as the orthodox protestant clergymen of Delphi existed at the time of the execution of the will or afterwards Held, in a suit by the heirs at law of the testator against his executors, that said residuary clause was void at law for vagueness and uncertainty, and incapable of judicial enforcement by a court of chancery possessing only the ordi nary powers of a court of equity, and therefore could not be sustained by the courts of this State.

CHARITABLE USES.-Cy Pres Power.-Prerogative.-The power possessed by the court of chancery in England in reference to charitable uses, so far as it differs from the power exercised by that court in other cases of trust, does

Grimes' Executors v. Harmon and Others.

not belong to that court as a court of equity, nor is it a part of its judicial power and jurisdiction, but it is a branch of the prerogative power of the king as parens patriæ, which he exercises by the chancellor. SAME.-Prerogative Power.—Whence Derived.—Statute of 43 Elizabeth.—This prerogative power was derived directly from the king under his sign- manual, and was not conferred on the court by the statute of 43 Elizabeth, commonly called the Statute of Uses, but was exercised by the court before the passage of that act, which created no new law or new objects of charity, but only provided a new remedy for existing rights, by creating a new and ancillary jurisdiction by commission, and which was local to the kingdom of Great Britain. SAME.-Power of Courts of this State.-The courts of this State, possessing no prerogative power, and being incapable of administering and enforcing the remedy provided in England by the statute of 43 Elizabeth, have only judicial power, and can only exercise in reference to charitable uses and trusts such power and jurisdiction as was and is possessed and exercised by the court of chancery in England acting as a court of equity.

SAME.-The cy pres power, which constitutes the peculiar feature of the English system, and is exerted in determining gifts to charity, where the donor has failed to define them, and in framing schemes of approximation near to or remote from the donor's true design, is unsuited to our institutions, and has no existence in the jurisprudence of this State on this subject. SAME-A devise or grant to a corporation capable of holding, or to a person or persons, either by name or so described that they can be readily ascertained, for a definite and specific use, is good at law; and the powers of a court of chancery are confined to the mere execution of the trust, to secure the faithful application of the fund or property to the use and object indicated in the deed or will; in other words, to carry out the intention of the grantor or testator as thus expressed.

SAME. What Constitues a Chartitable Use.-To constitute a charitable use, there must be a donor, a trustee competent to take, a use restricted to a charitable purpose, and a definite beneficiary. Where, in case of a grant or devise, no party or parties are designated who can take the property, or where they are so uncertain that the court cannot direct intelligibly the execution of the trust, the property remains undisposed of and falls to the heir or next of kin. A court of chancery, always acting for the beneficiaries, stops the instant it ascertains that there are none, or that they are so uncertain that it will have to act in the dark when it sets about application of the trust. SAME.-When Court of Chancery will Interpose.-The jurisdiction of the court of chancery is not to create a trust. Its powers in this country are merely to direct the execution of the donor's intention, and to prevent the object from being deprived of the benefit intended. The court, in all of its doings, represents the persons, institutions, and classes who are to be benefitted. It interposes for the beneficiaries alone; and when invoked by the trustees it is only that they require the interposition of the court to effect the purpose and to secure to the beneficiaries the charity of which they should be the just recipients.

Grimes' Executors v. Harmon and Others.

SAME-Uncertain Beneficiaries.—A gift to charity is maintainable in this State, if made to a competent trustee, and so defined that it can be executed as made by the donor by a judicial decree, although the beneficiaries are not designated by name or specifically pointed out, if the trustee is invested with full and ample discretion to select the beneficiaries of such charity from a class of persons named; but where the beneficiaries are described as the children, both male and female, of a certain race in the United States, and where that race consists within the United States of about four million persons, it is impracticable to ascertain the beneficiaries and to distribute the proportionate share of such fund to each of such beneficiaries; and where, in such case, the trustees have no discretionary power to select the beneficiaries from the class named, the gift is void for vagueness and uncertainty.

SAME.-There is no difference whether a devise or bequest be immediate to an indefinite object or to a trustee for the use and benefit of an indefinite object. If it be immediate to an indefinite object, it is void; and if it be a trust for an indefinite object, the property that is the subject of the trust is not disposed of, and the trust results to the benefit of those to whom the law gives the property in the absence of any other disposition of it by the testator or donor. SAME.—Trustees with Discretion to Select Beneficiaries.—If the charity does not fix itself upon any particular object, but is general and indefinite, such as the promotion of the moral and intellectual condition of a race, or the relief of the poor, and no plan or scheme is prescribed, and no discretion is lodged by the testator in certain and ascertainable individuals, it does not admit of judicial administration. In such a case, in England, the administration of the charity is cast upon the king, to be executed cy pres, while in this country the property devised lapses to the next of kin. If, however, in such a case, certain and ascertainable trustees are appointed with full powers to select the beneficiaries and devise a scheme or plan of application of the funds appropriated to the charitable object, the court will, through the trustees, execute the charity. SAME.—Supplying Trustees.—Where trustees capable of taking the legal estate have been appointed originally, so that a valid use has been in the first instance raised, and the case has been thus brought within the jurisdiction of the court of chancery, that court will supply any defect which may arise in consequence of the death or disability of the trustees or their refusal to act, by appointing new trustees in their place; but where no competent trustees have been in the first instance appointed, so that no legal estate has ever vested, no use has been raised, and the court of chancery has acquired no jurisdiction of the case.

WILL.-Construction.-It is a well settled rule, that all the parts of a will are to be construed together and in relation to each other, so as, if possible, to form one consistent whole; and that words and limitations may be transposed, supplied, or rejected, where warranted by the immediate context or the general scheme of the will, but not merely on conjectural hypothesis of the testator's intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument; and such a construction should be placed upon

Grimes' Executors v. Harmon and Others.

the will as to sustain and uphold it in all its parts, if this can be done consistently with the established rules of law and construction.

SAME.-Parol Evidence.-Mistake.-Ambiguity.-The general rule is, that parol evidence of the intention of a testator is inadmissible for the purpose of explaining, contradicting, or adding to the contents of a will, but that its language must be interpreted according to its proper signification, or with as near an approach thereto as the body of the instrument and the state of circumstances existing at the time of its execution will admit of. The doctrine in reference to mistakes in wills is, that courts of equity have jurisdiction to correct them when they are apparent upon the face of the will; but they must be so apparent, and must be such as may be made by a proper construction of the terms of the will; otherwise there can be no relief. Parol evidence, or evidence dehors the will, is not admissible to vary and control the terms of the will, although it is admissible to remove a latent ambiguity. CHURCH.-Jurisdiction of Courts over.-Over the church, as such, the legal tribunals do not have, or profess to have, any jurisdition whatever, except to protect the civil rights of others and to preserve the public peace. All ques. tions relating to the faith and practice of the church and its members belong to the church judicatures to which such members have voluntarily subjected themselves. But the civil courts will interfere with churches and religious associations and determine upon questions of faith and practice of a church where rights of property and civil rights are involved.

CASES OVERRULED.-Statute of 43 Elizabeth.-So far as the cases of M'Cord v. Ochiltree, 8 Blackf. 15; Sweeney v. Sampson, 5 Ind. 465; and The Common Council of Richmond v. The State, 5 Ind. 334, decide that the power and jurisdiction of the courts of this State have been enlarged by the statute of 43 Eliz., and that such statute can be executed in this State, they are overruled.

APPEAL from the Carroll Common Pleas.

BUSKIRK, J.-The appellees filed in the court below, on the 8th day of January, 1868, their complaint against the appellants, in which the following facts are stated: that Samuel Grimes, on the 31st day of August, 1864, executed his last will and testament, at the city of Baltimore, and State of Maryland; that he departed this life at said city, on the 2d day of September, in the year 1864; that at the time of his death he was a bona fide resident of the city of Delphi, county of Carroll, and State of Indiana; that the said decedent departed this life without issue, leaving neither father nor mother nor wife surviving him; that the plaintiffs are his heirs at law; that the said decedent departed this life the owner of about eight thousand dollars worth of personal property, and seized