Opinion by
Mr. Justice Brown,Patrick Jeffers died August 24, 1903. On the 10th of that month he executed his will, its sixth clause being: “All the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto St. Teresa’s Church, Broad and Catherine Streets, and St. Joseph’s House for Homeless Industrious Boys on Pine Street, share and share alike, provided however in case of my death within thirty days from the date hereof I give, devise and bequeath all my said residuary estate unto Most Rev. P. J. Ryan, Archbishop of Philadelphia, absolutely.” The appellant, who is the sister and sole heir at law of the testator, brought this ejectment for the possession of five pieces of real estate to which the appellee claims title under the foregoing clause of her brother’s will. As it *453was executed less than one calendar month before his death, the contention of the appellant is that the appellee acquired no title to these properties, because the devise is not to him personally, but was manifestly intended for the use of the two charities named, and is, therefore, void under sec. 11 of the Act of April 26, 1855, P. L. 328. If it is void, what is claimed by the appellee went to the appellant under the statute as the only next of kin and heir of the testator.
"Whether the appellee should become the residuary devisee of Patrick Jeffers depended upon the latter’s death within thirty days of the execution of his will. Upon his death during that period the devise to the appellee became not only operative, but was without condition. The devisee took absolutely, because the testator declared that he should so take, and he took as an individual, though designated and identified as the Archbishop of Philadelphia: ITodnett’s Estate, 154 Pa. 485. “ A gift will not be deemed charitable merely from the nature of the professional character of the devisee: ” 1 Jarman on Wills, 193.
If the testator had survived for one calendar month from August 10, 1903, his estate would have passed to the charities named. While he could not have given it to them by a. will executed within that period, he could give it by one intelligently executed within an hour of his death to whom he pleased, if not then fettered with uses forbidden by the statute. It may be conceded that the hope and expectation of the testator were that if his charitable disposition of his estate should fail by his death within thirty days, it would still reach the charities through the devise to the appellee, but he gave no expression to such hope and expectation and annexed no condition to his devise. "Whatever may have been the wish or expectation of the testator, the devisee is not bound by any secret trust to carry it out, but is free to dispose of the property as he pleases: Rowbotham v. Dunnett, L. R. 8 Ch. Div. 430. There could have been no understanding, express or implied, between the testator and the appellee as to what should be done with the devise, for the latter had never known nor heard of the former before his death. If the devise to the appellee had been the result of an understanding between him and the testator, that it was to be in trust for the charities *454named, and the appellee had agreed that he would so take it, his obligation would be not only a moral, but a legal one, to execute the trust,' if permitted by the statute. He could not, having so induced the devise, profit through his fraud by insisting that the will gives him the properties absolutely. If.a bequest or devise is made in consideration of a promise to execute an invalid or unlawful trust, equity will notallow the*’ legatee or devisee to profit by his fraucqbut will raise a resulting trust in favor of the heir or next of kin of the testator. Where, however, there is no bargain between a testator and his legatee or devisee, the gift or devise will be good, although from the impulse of his own mind the legatee or devisee may intend to carry out what he believes to have been the testator’s wish. See authorities cited in 28 Am. & Eng. Ency. of Law (2d ed.), 885.
From the clearly indicated intention of the testator that the two charities named should take his residuary estate, if he survived for thirty days, and from what the appellant with much force says was his manifest attempt to evade the act of 1855, by giving it to the appellee, in confidence that his wishes would be carried out, taken in connection with the testimony of the appellee, we are asked to say that the devise is not to him absolutely as an individual, but is impressed with a trust for religious and charitable uses, making it void under the statute. The appellee, called by the appellant as on cross-examination, testified with great frankness. The substance of his testimony, upon which reliance is placed for the contention that he took the devise impressed with the trust, was that he is the official head of the Roman Catholic Church of the Philadelphia diocese;' that as such official head he directs.the management of its organization and conducts its business; that he looks after its properties, trusts and charities; that as the official head of his church in his diocese, he holds title to St. Teresa’s church, a religious institution, and to St. Joseph’s House for Homeless Industrious Boys, a religious charity; that though these titles are not nominally held in trust by him, they are virtually so, because they are for the benefit of religion and the people; that if money is left to him absolutely, he can keep it, but, as a bishop, on his conscience and before God, he ought to use it as he believes the dying man would *455wish, him to use it; that this should be understood as applying to the devise to him by Patrick Jeffers, and that he intends to devote the properties devised to him by that testator to the charities to which the testator intended them to go. There could be no fuller acknowledgment of a moral obligation, nor á stronger avowal of an intention to discharge it, but our decrees do not go out to compel the performance of a mere moral duty. In foro conscientise conscience is the sole chancellor, whose decrees we are as powerless to enforce as we are to provide penalities for their violation. If the will of the testator created a trust by the devise to the appellee, which, but for the act of 1855, he would be legally bound to execute, we must so declare and hold it void under the statute.
But what is the appellee’s conception of his legal rights under the devise 2 "While avowing the moral right of the charities to what was devised to him, and his moral obligation to give it to them, he does not misunderstand his legal rights, but knows that they involve no legal duty to the charities named, or to anyone else. He testifies: “ The law does not impose on me to give $10,000 which I receive, without any qualification by a will. I have it, it is mine. Then comes in another law, higher law, which says, ‘ You have received that money, you can keep it, the state has no right to interfere with you, in natural justice it is yours, but you are a bishop and you have the care of the poor and the afflicted, and you ought to use it as the moneys intended for their benefit, — though it is not mentioned in the will. ... I received the money as in this will case. It is mine, I can use it as I please, as far as the law is concerned, and there is no prohibition, legally or otherwise— that is, by law, no ecclesiastical law, but if I have reason to believe that this man, as I did not know him, never heard of him before, has left me this money, whatever it is, for some good purpose, and because I am a bishop, then my personal conscience — it might not influence other bishops — but my personal conscience, if it is at all sensitive, would suggest to me that large sum of money or property was left To you for no personal reason; it must have been left to you as a bishop for some good purpose. Then I take that money or that property, the value of that property, and I put it into a fund which I have for religious and charitable educational or other *456good purposes. This property I know was not intended for me personally, though before the law it is, and I own it and I can do what I please with it. . . . Q. Your Grace, in your examination last Friday you were asked this question: If a man provided in a will that all the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath unto St. Teresa’s church, Broad and Catharine streets, and St.'Joseph’s House for Homeless Industrious Boys on Pine street, share and share alike, that language would indicate, would it not, that those were his favorite charities?’ and you answered ‘ Yes.’ You so testified, did you not ? A. That was in a conditional will. If he made a will saying, I leave these properties to these charities, I would find myself obliged legally and otherwise to give them to what they were intended for. But he makes two wills, so to speak, or he makes one will which is conditional. He says, I leave it to these charities if I survive this will for thirty days ; if I do not survive this will for thirty days, if I die before the thirty days — here is the second condition, the second will — I leave it to Archbishop Ryan. Therefore as he did not survive the thirty days, the second will or the condition mentioned in the will leaves it to me. Q. And in connection with the two charities, of course ? A. Not in connection with the two charities, because he has willed two things — first, if I live for such a time I leave it to the charities; second, if I don’t live for such a time, I leave it to Archbishop Ryan. And then I do with it as I please, by leaving it to the charities or doing anything else I please with it. As I said, I should think in such a case my personal conscience would be to give it to some charity, and I give it to that general fund. My conscience, however, would not have to bind others.” The devise is understood by the appellee just as the law construes it — an absolute one — involving no legal duty to anyone from him in the enjoyment of it; and this is the crucial test of a trust. There can be no cestui que trust, if there is no trustee to be compelled by law to be faithful.
The court below, in an opinion by its learned president judge dismissing the motion for a new trial and discharging the rule for judgment for the plaintiff non obstante veredicto, sustained appellee’s title to the properties devised to him on the authority of Schultz’s Appeal, 80 Pa. 396, and Hodnett’s *457Estate, supra. On this appeal an effort is made to distinguish these cases from the present one, with the result, however, that we regard the first as conclusive of appellee’s right to keep the properties, and that the second reaffirms the controlling principle announced in the first.
In Schultz’s Appeal, a testator, -wishing to bequeath his estate to charitable uses, was told by the scrivener who wrote his will that the charitable bequest would be invalid if hie should die within a month, but that he might give his estate unconditionally to some person whom he could trust to carry out his wishes. Yealde, a bishop of the church to which he belonged, was named, and an absolute bequest made to him. The testator died within a month, and Yeakle, being informed of his death and wishes, stated he would carry them out. In holding that there was nothing in the circumstances to fasten a trust on the legatee, and that the bequest was not within the act of 1855, we said, through Mr. Justice Shakswood : “ The very able and exhaustive opinions, as well of the auditor as of the learned court below, have relieved us from an examination of the English decisions upon the Mortmain act of that country. They undoubtedly throw a clear and strong light upon the question presented upon this record. They establish two positions: (1) That if an absolute estate is devised, but upon a secret trust assented to by the devisee, either expressly or impliedly, by knowledge and silence before the death of the testator, a court of equity will fasten a trust on him on the ground of fraud, and consequently the statute of Mortmain will avoid the devise if the trust is in favor of a charit}?-. But (2) If the devisee have no part in the devise, and no knowledge of it until after the death of the testator, there is no ground upon which equity can fasten such a trust on him, even though, after it comes to his knowledge, he should express an intention of conforming to the wishes of the testator. The latter proposition applies directly to the case now before us. Reuben Yealde, the legatee named in the will, was not present when the instrument was executed. He had no communication with the testator, directly or indirectly, upon the subject. The testator had long intended to leave his estate for charitable purposes. On his death-bed he sent for a scrivener, and expressed to him his wish to have his property so *458disposed of after his death. He was informed that if he should die within thirty days, such a disposition would be ineffectual, but that he might make an absolute bequest to some individual, upon the confidence and belief that when he should be informed of his wishes, he would, of his own accord, carry them out. This plan was adopted, and upon the suggestion of one of the bystanders, Reuben Yealde, the bishop of the church to which the decedent belonged, was chosen by him. It is clear, not only from the evidence, but from the verdict of the juiy in the issue of devisavit vel non, that no undue influence was exercised to procure the will. ,It was the testator’s own free and voluntary act, and he was told that he could dispose of his property to a particular person unconditionally, and if that man would do it, then he could put it to those places where he wanted it; but that would be entirely at his option; he could do it or not.’ Reuben Yeakle was not informed of the will until some time after the death of the testator. When informed of it he declared his intention to appropriate the money as the testator wished it to be. He said, when examined as a witness before the- auditor: I have not seen the will, but if it gives me the absolute right to the property without condition, I should consider that I had the legal right to do with the property as I pleased. I draw a distinction in this case between the legal and moral right.’ It seems very clear that the-bequest in the will of Frederick Schultz to Reuben Yeakle is not within the words of the statute. There is nothing in the circumstances to fasten a trust upon him. The statute out of the way, the charities intended to be benefited would have had no claim, legal or equitable, to enforce payment by him to them. He would, in the eye of the law, be guilty of no fraud, legal or equitable, either against them or the testator, if he should, even at this day, change his intentions and apply the money to some other use. Being the absolute owner, under the will, the declaration of his intention would not be binding upon him. It is not, therefore, in the words of the statute, a bequest to a body politic or to any person in trust for religious or charitable uses.’ Had Reuben Yeakle been present when the will was executed, or the objects of the bequest been communicated to him before the testator’s death, and he had held his peace, there would have been *459some ground for fastening a trust upon him ex maleficio, as in Hoge v. Hoge, 1 Watts, 163. But nothing of that kind can be pretended here.”
In the foregoing case it was strenuously contended, as it is urged here, that the testator’s disposition of his residuary estate was a fraud upon the law and an evasion of the act of 1855, which ought not to be permitted; but as to this it was said : “It is urged, however, that this whole plan is nothing but a contrivance to evade the statute. No doubt such was the intention of the testator. It is said that it is a fraud upon the law, and that the bequest ought therefore to be declared void. But that overlooks the fact that the absolute property in the subject of this bequest has vested in the legatee, and that he is entirely innocent of any complicity in the fraud of the testator. If the statute is practically repealed by this construction, it is evident that it must be for the legislature to devise and apply a remedy, not the judiciary, whose province is not jus dare but jus dicere.” We have been referred to no case, and have found none, in conflict with this. Charitable bequests and devises- have been held invalid as being in evasion of the statute, but from an examination of the cases in which such evasion has not been permitted it will be found that the bequests or devises were upon a secret trust, assented to by the legatee or devisee, expressly or impliedly, before the testator’s death. If before the death of Jeffers this appellee had assented, expressly or impliedly, to a secret trust which the testator intended- to create, the devise -would be void under the statute. But there was no such assent and the case comes within the very words of the concluding paragraph of the opinion in Schultz’s Appeal.
In Hodnett’s Estate the testatrix gave one-half of the residue of her estate “ to the-Pastor of the St. John’s R. C.- Church of Altoona, Pa.” In reversing the court below and sustaining the auditor, who'had awarded one-half of the estate to-the pastor of the church, we said: “There is nothing in the will to indicate that the bequest is, or was ever intended to be,- in trust for any religious or charitable use ; nor is there, dehors that instrument, a scintilla of evidence of any such trust. The auditor says, in substance, there is no evidence that appellant was present when the codicil Avas executed, or had *460been consulted, in relation thereto, by testatrix or anyone in her behalf, or that he even knew he was to receive a legacy thereunder, nor was there any evidence of any communication whatever between him and testatrix, at any time prior to her decease, in relation to the bequest, or in regard to her wishes respecting the same; and, in summing up on this point, he finds : ‘ There is nothing in the case to indicate or show that the legacy in question was given in trust to “ the pastor of the St. John’s R. O. Church,” .... or that such pastor should devote this particular legacy to charitable or religious uses or purposes.’ .... It follows from what has been said, that, in the absence of any evidence, facts or circumstances, tending to fasten upon appellant a trust for either religious or charitable uses, he is entitled as legatee, in his own right, to one-half of the fund.” There is nothing in this will to indicate that the devise to the appellee was to be in trust for any religious or charitable use. On the contrary, from its face it appears that the testator, anticipating that his charitable disposition of his estate might fail, directed that if it should, his property was to go to an individual, “absolutely” and unimpressed with any trust, instead of to charitable and religious uses. Dehors the will there is absolutely nothing to show that Jeffers intended anything but an absolute devise to the appellee, though there was much in Schultz’s Appeal, unavailing, however, to reduce the absolute bequest or devise to a trust, in the absence of any evidence of an express or implied assent to it by the residuary legatee or devisee in the lifetime of the testator.
The assignments of error are all overruled and the judgment -is affirmed.