delivered the opinion of the court,
The foundation upon which the doctrine of charitable uses rests in this state is firmly settled. While the statute of 43 Elizabeth is not in force, the principles which the English chancery has adopted on the subject obtain here, not by virtue of the statute, but as part of our common law. The fact is that those principles were recognised and applied in England before the statute, which only introduced a new remedy. Hence trusts for charities with us have always been upheld and enforced, no matter how uncertain were the objects, and though the effect evidently was to create a perpetuity. These have never been allowed as objections to their validity. Yet before the year 1855 it was a clear and well-settled rule that when the objects of the charity were uncertain, there must be vested somewhere in a competent trustee or trustees the discretion absolutely necessary to carry them into effect by selecting those objects. By the provision of the tenth section of the Act of Assembly, passed April 25th 1855, entitled “An Act relating to corporations and to estates held for corporate, religious and charitable uses,” Pamph. L. 331, this rule is impliedly recognised and a remedy enacted for future cases, in which the donor or testator has *301omitted to vest such a discretion in a trustee or trustees, or it has failed to be effectual by the death or other disability of the person or persons whom he may have appointed. That provision is, “that no disposition of property hereafter made for any religious, charitable, literary or scientific use shall fail for want of a trustee, or by reason of the objects being indefinite, uncertain or ceasing, or depending upon the discretion of a last trustee, or given in perpetuity, or in excess of the annual value hereinbefore limited; but it shall be the duty of any Orphans’ Court or court having equity jurisdiction in the proper county to supply a trustee, and by its decrees to carry into effect the intent of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity, for which purpose the proceeding shall be instituted by lea've of the attorney-general of the Commonwealth, on the relation of any institution, association or individual, desirous of carrying such disposition into effect.” It has been decided by this court that this act is prospective and applies only to dispositions of property thereafter to be made : Taylor v. Mitchell, 7 P. F. Smith 209. The will of Job Mann, which created the trust which is now before us for adjudication, was executed before the passage of the act. By that instrument it is perfectly clear, and indeed it has not been and cannot be controverted, that the only person or body in whom he vested the discretion of selecting as the objects of the charity which he meant to establish for the poor young men of Bedford county, such as may be worthy and intend preparing themselves for the ministry, is the Court of Common Pleas of that county. The ingenious young gentleman who argued this cause on behalf of the plaintiffs in error, with great ability and commendable industry and research, contended that it was not within the power of that court to accept and exercise such a discretion, it not being of a judicial nature, and no court in this state possessing that jurisdiction of the lord chancellor which he holds as keeper of the king’s conscience, under the sign-manual, and which springs exclusively ex prerogativa regis.
We are inclined to concede the truth and correctness of this com tention as of the date of Mr. Mann’s will, and that at that time the Court of Common Pleas was not competent either itself or by a trustee to be appointed by it to exercise such a discretion as the testator intended to confide in it. But in 1878, when Mr. Mann died and his will went into effect, the legislature, by a general law, had vested in the Court of Common Pleas, being a “ court having equity jurisdiction in the proper county,” as a judicial function the duty of carrying into effect the intent of a donor or testator, where-ever in a disposition of property for charitable uses thereafter to be made, there was either no trustee or it “ depended upon the discretion of a last trustee.” The will of Mr. Mann was ambulatory until *302his death. No rights in his estate under it or against it vested until that period. If at that time the Court of Common Pleas could not as a judicial function have exercised the discretion intrusted to it by the will, there would have been no competent trustee and the trusts would have failed. We agree that no subsequent act of the legislature, general or special, could have imparted to it new life. But here at the period when the will went into effect the court was invested with this function as part of its judicial duties. It may be objected that it was only so invested as to dispositions of property made subsequent to the passage of the law. It is undoubtedly true that if Mr. Mann had named no trustee, or to use the words of the act the trust had “ depended on the discretion of a last trustee,” the statute would not have helped the case. But here Mr. Mann did name the court as trustee, incompetent to exercise such a discretion at the date of his will, but made competent by a legislative enactment before his death as to wills made subsequently thereto. It can no longer be said that it is not a part of the judicial functions of a Court of Common Pleas by its decrees as a court of equity to carry into effect the intent of a donor or testator who has meant to establish a charity, but has failed to name a trustee to exercise the necessary discretion. The legislature has declared that the court is not incompetent to exercise such a function. Apart then from the operation of the tenth section of the Act of 1855, which we agree to be prospective only, it is a declaration of the will of the legislature that the Courts of Common.Pleas are tribunals competent to carry into effect discretionary trusts, that such a jurisdiction may be safely intrusted to them, and although where the donor or testator has not named them in a disposition prior to the date of the statute, they cannot assume the function, yet the case is very different where he has appointed them, and the only question is as to their competency. No one can doubt that if Mr. Mann had confided this discretion to a person who at the date of the will was a child, an infant without discretion or a lunatic, or under any other disability to exercise it, and before his death the disability had been removed, the trust would have been unimpeachable for this cause.
Judgment affirmed.