The defendants contend that the bequest is void (1) because the scheme the testatrix devised for administering it broke down before the administration was begun, and (2) because it cannot be found that a desire to provide those living in Franklin with hospital accommodations induced her to make the bequest.
1. By cy pres is intended the duty of the court, when the donor's scheme for administering a trust breaks down, to devise one for that purpose as nearly (cy pres) like his as may be. Adams Academy v. Adams, 65 N.H. 225; Edgerly v. Barker, 66 N.H. 434; Haynes v. Carr, 70 N.H. 463. In other words, when the donor's purpose can be ascertained and is legal, it is the court's duty to enforce it. Hayward v. Spaulding, 75 N.H. 92. No valid reason can be given why this rule should not apply as well when the scheme breaks *Page 98 down before, as when that does not happen until after the administration begins; but it will not be necessary to consider that question, for the testatrix's scheme did not become impractical until long after the trustees began to administer the trust.
The defendants assume that the administration of the trust would not begin until the trustees established the hospital. This assumption is clearly fallacious. Administering a trust is doing whatever the donor intended; consequently when the trustees do any of those things, they begin the administration of the trust. The testatrix must have known that the property she gave her trustees would not be sufficient at the time of her death to establish and maintain a hospital; consequently she must have intended that they should hold the property until, with its accumulations, or with what others might contribute for that purpose, a fund was created that would justify the establishment of a hospital. Since the testatrix intended her trustees to hold the property until it was sufficient for that purpose, the administration of the trust began when they first, received the property from the executor, or some nine years before it became impractical to establish the Proctor Hospital.
2. The defendants, both in their brief and oral argument, have discussed at some length the court's power to devise a scheme for administering a trust when the donor's scheme breaks down; but if that were an open question (Pembroke Academy v. School District, 75 N.H. 408; Keene v. Eastman,75 N.H. 191; Edgerly v. Barker, 66 N.H. 434; Adams Academy v. Adams,65 N.H. 225; Brown v. Concord, 33 N.H. 285), it would serve no useful purpose to consider it. On the one hand, if a desire to provide hospital accommodations for those living in Franklin and vicinity did not induce the making of the gift, the court had no power to make the decree; and on the other, if that was the testatrix's purpose, the defendants concede that they cannot be heard to question the decree. Burnham's Petition,74 N.H. 492.
The language the testatrix used is all the evidence there is relevant to the issue of the purpose; and if that is given its ordinary meaning, or any meaning of which it is fairly capable, a desire to provide hospital accommodations caused her to make the bequest. She says she gives the property "for the establishment and maintenance of a hospital in said Franklin," and there is nothing in the will to rebut the presumption that the desire to provide hospital accommodations induced the bequest. It is true she says the hospital is to be called the Proctor Hospital, but that has no great *Page 99 tendency to prove that it was a wish to have it known by that name which induced the bequest. It is more probable that the provision in respect to the name, like that in respect to the trustees' duties, was merely a part of her scheme for administering the trust. It cannot be found from such evidence that she intended her heirs should have the property if her scheme for administering the trust. ever broke down. Keene v. Eastman,75 N.H. 191, 193.
Defendants' exception overruled.
PARSONS, C. J., did not sit: the others concurred.