I agree that neither the Iowa State College of Agriculture and Mechanic Arts nor the State of Iowa can take. Eliminating the codicil, I am inclined to the opinion that the will itself, under the law of this State as it now exists by virtue of chapter 701 *752of the Laws of 1893, as amended by chapter 291 of the Laws of 1901, could be sustained as a bequest for an educational use to found, scholarships for needy and deserving students of the Iowa State College of Agriculture and Mechanic Arts, to be selected in a prescribed manner. To uphold the bequest it is true the college itself must be eliminated and the object of founding scholarships alone given effect. Such a construction, it seems to me, from the reading of the will itself is justified.
The act of 1893, as construed in Allen v. Stevens (161 N. Y. 122), and kindred cases^ clearly revives the law of charitable uses,, Under the doctrine of charitable uses, as well as by the statute, the naming of a trustee is not a necessity. So too, under that doctrine, the giving of property for a charitable purpose creates a trust. In Moore’s Heirs v. Moore’s Devisees (4 Dana, [Ky.] 354) the rule is summarized as follows: “ Whereever a person by will gives property and points out the object, the property and the way it shall go, a trust is created. * * * When such a trust is created a court of equity will, support and enforce it even if the donor had appointed no trustee and had let the legal title go to his heirs; for it is well settled that where there is, a beneficial trust a court of equity will act as trustee, or appoint one if necessary, for effectuating the objects of the grantor.”
In Hornbeck's Executor v. American Bible Society (2 Sandf. Ch. 133) it was held that bequests f.or charitable purposes even to unincorporated societies can be sustained where the object is competent and is designated or may be clearly ascertained. The will, therefore, although it named no trustee, which was not a necessity, provides for a charitable bequest, which by virtue of its character must be deemed a trust for a certain object, to wit, scholarships for worthy and deserving .students of the college. The statute provides that the gift shall not fail for indefiniteness of the beneficiary. If the bequest be in trust, as it would seem it must be deemed to be, the beneficiaries are not fatally indefinite, nor as indefinite as in many of the cases, which I have been at some pains to collect, in all of which the provisions of the will were held to be valid and which are as follows: “ Education of the children of the poor ” ( Williams v. Williams, 8 N. Y. 525); “ Founding a scholarship ” for the preparation for the ministry of one of testator’s kindred, to be selected (Andrews v. General Theological Seminary, 8 N. Y. 559); “ For *753the advancement of the Christian religion amongst infidels in.North America ” (Attorney-General v. City of London, 3 Bro. C. C. 171); “For poor clergymen” (Moggridge v. Thackwell, Id. 517); “Poor inhabitants of St. Leonard.” (Attorney-General v. Clarke, Arab. 422); “ Poor dissenting ministers of the Gospel living * * * in any of the counties ” ( Waller v. Childs, Id. 524); The creation of “ a public sentiment that will put an end to negro slavery ” (Jackson v. Phillips, 14 Allen, 539) ; “ To the cause of Christ, for the benefit and promotion of true evangelical piety and religion ” (Going v. Emery, 16 Pick. 107); “For the promotion of such religious and charitable enterprises as shall be designated by a majority of the pastors composing the Middlesex Union Association” (Brown v. Kelsey, 2 Cush.. 243); “ Educating some poor orphans for this county, to be selected by the county' court ” (Moore's Heirs v. Moore's Devisees, supra); and to buy bread for the poor of a church, and help in the education of young students (Witman v. Lex, 17 S. & R. [Pa.] 88).
The 'Massachusetts court in Jackson v. Phillips (supra) went even further and applied the ey pres doctrine, and distributed the bequests as near to the object of the testator as the court was able to determine — the conferring of which power upon the Supreme Court would seem to be the effect of the amendment of 1901 to the statute of 1893.
That the Court of Appeals recognizes the doctrine of the above cases as revived by the law of 1893, is illustrated by the remarks of. Cullen, Ch. J., in Moumt v. Tuttle (183 N. Y. 358), which are as follows: “ For example, we do not at present see why a legacy given by a citizen of this State, even to a foreign trustee in trust to distribute the principal or the annual income among poor clergymen in a foreign State, could not be upheld.”
If the foregoing observations be correct, the only question that would remain respecting the will itself, would be whether, the beneficiaries being foreign to this State, our Supreme Court would administer the trust for their benefit.
There are remarks in Chamberlain v. Chamberlain (43 N. Y. 424) which would indicate that it would not do so. The observation in the opinion in that case is as follows: “ The courts of this
*754State will not administer a foreign charity, but they will direct money devoted, to it to be paid over to the proper parties, leaving it to the courts of the State within which the charity is to be established to provide for its due administration and for the proper application of the legacy.” As authority for the proposition thus enunciated., Hill on Trustees (468); 2 Story on Equity Jurisprudence (430); Burbank v. Whitney (24 Pick. 154); Provost of Edinburgh v. Aubery (Amb. 236) and Attorney-General v. Lepine (2 Swanst. 181) are cited.
It would seem, notwithstanding the broadness of the proposition quoted, that it has no application- to the administration of a valid, trust in this State, even though the object be a foreign' beneficiary Reference to the authorities cited for the proposition shows that Mr. Hill,* when he laid it down, was treating of the formation of schemes for carrying out a charitable bequest in foreign territory., His precise language is as follows:. “And where the trust is for a foreign charity, the court has no jurisdiction to direct a scheme, but will order the fund to be paid over to the trustees.” In Provost of Edinburgh v. Aubery (supra) and in Attorney-General v. Lepine (supra) there were bequests for the establishment of charities in Scotland resting upon the discretion of persons named. ■ The court simply decided that .it would not formulate a scheme for carrying out the bequest in either case, but would transmit the money to the individuals in Scotland, so that they themselves might carry out the -purposes of the testator. In Burbank v. Whitney (supra) specific sums were given to a b.ible and missionary society, both of which were unincorporated and located in the State .of Hew York. The court held that it was merely the duty of.the executor to pay over the moneys to such societies and let them expend it as they saw fit. In Story’s Equity Jurisprudence (Vol. 2 [13th ed.], p. 517) the.mle is stated as follows: “It has been made a question whether a court of equity sitting in one jurisdiction can execute any charitable bequests for foreign objects in another'jurisdiction. The established doctrine . seems to be in favor of executing such bequests. Of course this must be understood as subject to the implied exception that .the objects of the charities are not against the public policy or laws of the State where they are sought to be enforced or put into execu*755tion ; for no State is under any obligation to give effect to any acts of parties which contravene its own policy or laws.”
In another portion of the opinion in Chamberlain v. Chamberlain (supra) it is said: “ Bequests in aid of foreign charities, valid and legal in the place of their existence, will be supported by the courts of the State in which the bequests are made.”
This latter case is very extensively quoted in Hope v. Brewer (136 N. Y. 126). The point at issue in both of these cases was whether the courts of this State would, upon the doctrines of comity, permit a foreign State to take a bequest made here, invalid by the laws of this State, although valid by the law of the State to which it was to be transmitted, and both decisions were to the effect that it was no concern of this State whether its statute laws were violated with respect to perpetuity or capacity to take if the law of the State of domicile of the legatee did not forbid. This is the extent of the doctrine as recently reiterated in Robb v. Washington & Jefferson College (185 N. Y. 485).
If the bequest under the will is valid, it would be strange indeed that the courts of this State should permit the bequest to fail because the beneficiary chanced to be domiciled in a foreign State, The testator was a resident of this-State,- and if he succeeded in making a will in conformity with its laws his wishes should be respected and his desires carried out. 27or is there any practical difficulty in so doing. The court can appoint a trustee, at least, to aid it in carrying out the provisions of the will, and the income can be transmitted to the treasurer of the Iowa College of Agriculture and Mechanic Arts, who can pay it over for the benefit of such students as the board designated by the testator shall select. It can be very easily determined whether the selection is properly made and the money properly applied. All that is necessary to be done is that the money shall be properly invested and the income transmitted and a report of its application made, with proper vouchers in support of the same. As much certainty can thus be had as would be the case had the testator appointed some resident trust company his trustee for that purpose.
If there had been no codicil, therefore, I cannot see that the will would have been invalid, or that the courts of this State would have refused to carry it into effect. The only difficulty which I labor *756under is that the codicil, although- invalid, shows such a clear intent on the part of the testator, which reflects upon his will, to give his property directly and absolutely to-the Iowa State College of Agriculture- and Mechanic Arts as to cast doubt -upon his purpose to-found scholarships for deserving students only. The college cannot take, and if the testator’s intent was that it should take, the will must fail.
From this consideration only I am constrained to concur in the decision that the will is invalid.
Judgment ordered for plaintiff as indicated in opinion. Settle order on notice.
See 4th Am. cd. p. *468.—-[Rep.