dissenting.
The bequest in this case is as follows: “The rest of my estate, I wish held in trust for the benefit of the West Florida Seminary, the institution located at Tallahassee, *845with which Col. Rivers is connected. I wish only the interest upon the principal used yearly, and in this and in all other matters my executor is hereby given authority to change investments of funds in his discretion. If, however, he should not qualify, then the investment may be changed by the officers controlling the institution. I wish at least one-half of this interest expended for the benefit of students of Leon County under the direction of the managing officers of the institution. I wish none of it used for building or improvements of grounds.”
The court holds that the legal title to the property is in the testator’s heirs subject to the bequest and to the right to change the investments; and that The Florida State College for Women now established at the place where The West Florida Seminary was located before it was abolished and discontinued, is the beneficiary intended by the testator in making the bequest.
Charitable bequests are favored, and if practicable they should be so applied as to effectuate the testator’s purpose whether the exact limitations of the bequests are expressed in definite words or not. But the heirs of the testator can lawfully be deprived of the beneficial use of property bequeathed to charity, only when the designated beneficiaries can legally and in fact receive the bequest as intended by the testator. Where there is a bequest to a specific charity, and no general charitable purpose appears, the application of cy pres or other rules of construction that operate to give the bequest to a purpose or to beneficiaries not clearly intended by the testator, encroaches upon the rights of the testator’s heirs to inherit the property when the particularly designated beneficiaries cannot receive the bequest. While a charitable bequest should be so construed as to give effect to the ascertained intent of the testator in making the bequest, yet *846when circumstances affecting the identity of the beneficiaries have changed, and there is real doubt as to Avhether those claiming to be the beneficiaries are in fact those intended by the testator, the certain provisions of the statute of descents should be applied rather than to resort to oy pres or other uncertain rules of construction that give the bequest to beneficiaries that may or may not be those intended by the testator. Especially should this be the rule where no general charitable intent is disclosed, and the bequest is specifically made to a special charitable object, and the gift is of only the annual income from property, the title to which descends to the testator’s heirs. The province of the court is to ascertain and enforce the intent of the testator in making a bequest, and not to conjecture as to what would be the intent of the testator under changed conditions, for that would in effect be to make a bequest for the testator. In ascertaining the intent of the testator, the circumstances that prompted a bequest and the purpose designed to be accomplished, may be considered where the language used does not precisely and fully define the exact limitations of the bequest.
The will discloses no general charitable purpose — no intent to aid public education generally at Tallahassee or elsewhere^and the bequest was specifically and expressly made “for the benefit of The West Florida Seminary,” a State institution of learning and its students. It is obvious that the testator contemplated a continuance of the educational facilities as then afforded to all the classes of persons such as were then students at the particularly designated institution, and that he made the bequest of the annual income from the property to aid that continuance. While the testator knew that the character of the institution could b'e changed by law, he also knew that if *847by such a change it is made impracticable for his intended beneficiaries to receive the bequest as he designed, it would relieve the property of the trust, and the beneficial interest would revert or result to his heirs, who, as the court holds, succeeded to the legal title to the property at the death of the testator. The power of the legislature to abolish or to change the character of the institution specifically designated as the beneficiary of the bequest, does not, as against the heirs, authorize the use of the property for a different institution or for a purpose or for beneficiaries not clearly intended by the testator.
The fact that the bequest was for a number of years used for the benefit of the institution as designated by the testator, does not prevent the beneficial use of,the property from merging into the legal title of the heirs, when because of changed circumstances the beneficiaries intended by the testator cannot now receive the bequest. The will shows no intent to exclude the testator’s heirs except “for the benefit of The West Florida Seminary.” And such an intent if shown could not avail where the’ property is not completely disposed of to others. See McDougald v. Gilchrist, 20 Fla. 573, text 577. The testator allowed the legal title to the property to descend to his heirs subject only to the specific bequest, so there could have been no intent to exclude the heirs • except for the purposes of the particularly designated trust impressed upon the property in making the specific bequest.
“The institution located at Tallahassee” referred to as the beneficiary of the bequest was by the terms of the will specifically designated and declared to be “The West Florida Seminary,” an institution then existing under the law, and since then referred to by that name in statutes of the State making appropriations for its support and *848maintenance. The court cannot substitute another institution of a different character for the one designated.
Where the bequest is made in plain terms for a specific beneficiary, and there has been a change of circumstances from those existing at the date of the execution of the will and the death of the testator, no other beneficiary can be substituted upon what ma3r be presumed would have been the wish of the testator under such changed circumstances. “Upon the happening of a state of facts not contemplated and provided for by the testator, courts are not authorized to imagine what would have been the desire of the testator under such circumstances and to enforce such presumed desire as a part of the will.” Jenkins v. Merritt, 17 Fla. 304.
A trust arising under a will is an express trust to be controlled and interpreted under the terms of the will. Gale v. Harby, 20 Fla. 171.
The bequest is of the annual “interest upon the principal” “for the benefit pi The West Florida Seminary, the institution located at Tallahassee,” “at least one-half of this interest” is directed to be “expended for the benefit of students of Leon County under the direction of the managing officers of the institution.” These definite express limitations taken with the other provisions clearly indicate an intention that the bequest shall be used only to aid “The West Florida Seminary” in continuing the instruction it afforded when the bequest was made; and it is conceded that such instruction was by law and in fact then given to both male and female students. When the terms of the bequest are considered in connection with the admissions of the demurrer that the testator was educated at “The West Florida Seminary, the institution located at Tallahassee,” and that the testator “having such connection and association therewith did make said *849provisions, devises and bequests in his will in trust for that institution alone as specifically named and designated in his said will,” the inevitable conclusion seems to be that the testator intended to aid only the particularly named institution in continuing to give appropriate instruction to both male and female students as was being done when the testator was a student there and when the bequest was made.
“The West Florida Seminary” has been abolished in name and in law, “and has ceased to operate and has been wholly discontinued and so remains,” the educational facilities now afforded by a different institution at the same place are appropriate only to girl students in the higher grades, and are materially different in scope and purpose from that afforded by the Seminary as shown by the statutes; and the classes of persons now received as students there under the statute are only females who have attained the tenth grade. Under these changed circumstances the purpose of the testator cannot now be effectuated as intended, the beneficiaries intended by the testator cannot now receive the bequest as designed, and the courts cannot substitute beneficiaries that the testator may or may not have favored had he contemplated the changed circumstances. This being so it seems that the intention of the testator as shown by the will no longer operates to exclude the heirs from the beneficial use of the property, the legal title to which they have had since the testator’s death.
Shackleford, J., concurs in the foregoing dissent.