There can be no question as to the validity of the testator's gift to the trustees of Birmingham College as a public charity, if under the terms of the trust its beneficiaries can be ascertained with reasonable certainty. Johns v. B'ham. Trust Sav. Co., 205 Ala. 535, 88 So. 835; Alstork v. Curry,207 Ala. 135, 91 So. 796; Woodroof v. Hundley, 147 Ala. 287,39 So. 907; Williams v. Pearson, 38 Ala. 299; Dodge v. Williams, 46 Wis. 70, 1 N.W. 92, 50 N.W. 1103; Hadley v. Forsee, 203 Mo. 418, 101 S.W. 59, 14 L.R.A. (N.S.) 49, note, 94, 123; Clayton v. Hallett, 30 Colo. 231, 70 P. 429, 59 L.R.A. 407, 97 Am. St. Rep. 117. *Page 671
Complainants' theory of invalidity may be briefly stated as follows: (1) If the gift was intended to be distributed amongall the members of the designated class of beneficiaries, "the sons of Methodist ministers of Alabama," the income from the fund is too small, and the number of the beneficiaries is too great, to permit of any beneficial or even practicable administration of the trust, and hence, administration as intended by the donor being practically impossible, the trust must of necessity fail. (2) If the gift was intended to be applied to the education of only a limited and practical number of the sons of Methodist ministers, no authority was given to the trustees, nor to any one else, to select individuals from the designated class for the enjoyment of the benefits provided.
If the first alternative presented the only rational construction of the terms of the gift, we would be disposed to agree with the view of counsel that the trust must fail because its administration would be practically impossible, or, if possible, barren of benefit to any one. Such a trust the courts would not sustain. But we cannot adopt the theory of an irrational intention, impossible of fulfillment, and barren of good, when a rational intention, easy of fulfillment, and beneficial in results, can be gathered from the words of the donor. Unquestionably, we think, the donor of this fund intended that it should be used for the education of selected members of the general class to whom its benefits were limited.
The donor did not expressly authorize the trustees to select any particular subjects for charitable favor, and the decisive question — the only question — presented is whether such an authority is clearly implied by the nature of the gift, the purpose the donor had in view, and the character and station of the trustees who are intrusted with the custody and administration of the fund.
The gift here under consideration is for a clearly defined purpose — the education of the sons of Methodist ministers of Alabama. It is given to the "trustees of Birmingham College," an institution which, as we judicially know, is devoted to the higher education of men, and is owned and controlled by the Methodist Church of Alabama. A gift to the trustees of an institution is in law and in fact a gift to the institution itself. New York Institution for the Blind v. How's Ex'rs,10 N.Y. 84. And when a gift is made to an educational institution, such as the Birmingham College, to be held as an "endowment fund," and to be used for the education of a specified class of men, the implication is clear, and indeed unavoidable, that the fund is to be used for the endowment of scholarships in the college itself, and thus, in that customary and methodical way, applied to the use declared by the donor. Dodge v. Williams,46 Wis. 70, 98, 1 N.W. 92, 50 N.W. 1103. Necessarily, the administration of the fund for scholarship endowments must be, as to its details, subject to the regulation and control of the college authorities, and this would include the selection of the individuals to whom the scholarships should be given.
But, apart from the considerations above stated, it is a well-settled principle that charitable trusts are especially favored by courts of equity, and hence all reasonable intendments, consistent with the terms and purpose of the gift, will be made in support of their validity. Hence the rule, which is supported by reason as well as authority, that where the fund is limited, and the scope of the charity is broader than the fund, and the donor or founder does not provide a rule or order of selection, there is "in every public charity a necessary power of selection of beneficiaries in the trustees." Woodroof v. Hundley, 147 Ala. 287, 291, 292, 39 So. 907,909, citing many authorities; Dodge v. Williams, 46 Wis. 70,98, 1 N.W. 92, 50 N.W. 1103; Hesketh v. Murphy, 36 N.J. Eq. 304; Cooke v. Women's Medical College, 82 N.J. Eq. 179,87 A. 131; Hunt v. Fowler, 121 Ill. 269, 276, 12 N.E. 331, 17 N.E. 491; Clayton v. Hallett, 30 Colo. 231, 70 P. 429, 59 L.R.A. 407, 97 Am. St. Rep. 117, 135. As stated in 11 Corp. Jur. 342, § 60:
"Even where neither the trustee nor any other person or corporation is expressly given the power of selection, the courts are very liberal, in construing the instrument creating the trust, in giving the trustee an implied power of selection."
Our opinion is that, even though the education provided for were not limited by implication to education at Birmingham College, the implied power of selection by the trustees would save the trust from the invalidating vice of uncertainty as to its beneficiaries. It results that the charitable trust in question is valid and must be sustained.
It may be conceded that in a case of this sort the next of kin may maintain a bill for the construction of doubtful or disputable provisions of the will affecting their own rights as next of kin. Such a bill has equity and, in that aspect, is not subject to general demurrer for want of equity. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885. Hence the technically correct course for the trial court to have pursued would have been to sustain those demurrers addressed to special aspects of the bill asserting the invalidity of the trust provision, and claiming the trust fund as distributees, and to have overruled the general demurrer to the bill as a whole.
However, the object of the bill has been fully accomplished, and complainants have secured a construction of the only provision of the will designated as doubtful. *Page 672 It is of no importance that this construction results from a ruling on demurrers instead of on submission on bill and answer. We will therefore not indulge in the vain ceremony of sending the cause back for resubmission, but will affirm the decree of the circuit court, with an equal division of the costs below and on appeal. It is so ordered.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
On Rehearing.