The trust created by the will of Jacob Adams "to establish a female academy in Londonderry for the education of females," was a gift to charitable uses. It was accepted by the trustees, and has been administered for a period of sixty years, according to the purpose of the testator expressed in the will. The trustees represent that circumstances have so changed that the *Page 226 original plan of administering the trust is no longer practicable, and they ask the direction of the court whether they may change the mode of executing the same by converting certain real estate held by them as a part of the fund into money, and applying the income of the fund to the support of a school in connection with the Adams school-district, a corporation embracing the territory where the Adams Female Academy is located, and empowered by law to receive and use the income of the academy fund for educational purposes.
The question is, whether the proposed change in the mode of executing the charity is reasonable and allowable under the terms of the bequest by which it was created. The necessity of a change is shown by the fact that the fund is insufficient to maintain an independent school at the present time, and unless some other mode of executing the trust can be adopted the charity must fail. The reasonableness of the plan suggested is shown by the fact that it seems to be the nearest practicable method of carrying out the expressed intention of the donor. Whether the change is allowable under the terms of the bequest is a question of construction.
The doctrine of cy pres, although perhaps not formally adopted in this state, has been recognized. Society v. Society, 14 N.H. 315, 330; Brown v. Concord, 33 N.H. 285, 296. And regarded as a rule of construction and not of administration (Per. Tr., s. 723) it is a reasonable doctrine, by which a charity may be enforced in favor of the general intent, even where the particular mode or means provided by the donor fails by reason of its inadequacy. The rule of equity on this subject seems to be clear, that when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity; for equity will substitute another mode, so that the substantial intention shall not depend upon the formal intention. Philadelphia v. Girard, 45 Pa. St. 27; Jackson v. Phillips, 14 Allen 539. The doctrine of cy pres adopted to this extent is in harmony with the equitable rule, that a liberal construction is to be given to charitable donations to accomplish the general charitable intent of the donor.
Upon the facts appearing in the case, the trustees are authorized to make the proposed change in the mode of administering the trust. The purpose of the donor was, to provide a fund for the education of females, and the language of the will indicates an intention to establish a permanent charity. The bequest was not in terms restricted to the original plan of the donor, which having become impracticable by reason of a change of circumstances, a reasonable construction of the terms of the gift authorizes the trustees to adopt any mode of administering the trust which will accomplish the ultimate purpose of the testator, if such a scheme is practicable, and the plan proposed seems best adapted to carrying *Page 227 out the charitable intention of the testator under existing circumstances.
Decree accordingly.
BLODGETT, J., did not sit: the others concurred.
Some time after the foregoing opinion was announced, the defendants proposed a different method of dealing with the fund, and the following opinion was thereupon rendered: