The question presented in the present case is, whether the complainants were duly appointed trustees under Oliver Smith’s will, so as to be entitled to demand and receive the. trust fund from the executor. See Inhabitants of Northampton v. Smith, 11 Met. 390. The court are of opinion that they were not legally constituted the board of trustees.
As the general course, the will is explicit in directing how this board of trustees shall be constituted, by the election of electors or delegates, by the respective eight towns, at the annual meeting in March or April. Then it is provided, as a special exception to this general rule', that the first meetings of the towns for the choice of electors, and also the time of their first meeting, may be directed by the judge of probate *41but such meetings were to be held within one year of the decease of the testator.
This limitation or condition of the power of the judge of probate, to direct meetings to be held within one year of the decease of the testator, became impossible, because more than a year elapsed before the will was established. But we think the power ceased when the year elapsed.
It would have been a convenience, perhaps contemplated by the testator, if the will were proved soon after his decease, without controversy, and no appeal taken, that the board of trustees should be constituted immediately, especially if this should occur soon after the annual town meetings; so that nearly a year would intervene before a regular choice. But it was a convenience merely, and not a necessity ; and there was, therefore, no occasion for applying the doctrine of cy pres. It was, no doubt, the purpose of the testator to have a board of trustees speedily constituted ; but the mode is duly prescribed, and precisely limited. ' There was no necessity arising from the state of the funds. The testator had provided for that contingency, by providing that the trustee and executor should hold, manage and invest the funds, until the board of trustees should be constituted in the mode directed ; and he contemplated that this might extend beyond one year, by providing a compensation to his trustee and executor, if the board should not be constituted within one year.
We mean to express no doubt of the power of the court, as a court of equity, in cases of gifts to charitable uses, when the will cannot be executed precisely according to its terms, to sanction an execution which shall, as nearly as may be, carry into effect the charitable intent, ut res magis valeat, quam pereat. But to warrant a deviation from the plain directions of the will, the exigency must exist. Hero the power of the judge of probate to appoint the first meetings of the towns was limited to one year, and the year had expired ; and there was ample provision for that case.
The power given to the judge of probate, in case of the failure of trustees, is manifestly limited to a case where *42trustees have been appointed. Besides; the express provision, that the judge of probate should exercise this power, in regard to the first meetings, and limiting it to one year, excludes the implication of an intent to confer this power under the general words, giving a like power, without limitation, in the case of failure of trustees. And further; in case of the failure of trustees, after they had once been appointed and received the funds, the exigency arising from the want of proper persons to take care of the funds would be much greater than that which would exist before the first constitution of the board; because, until that time, there was an executor and trustee, appointed by the testator, charged with that duty, and competent to preserve and to manage and invest the funds, until a regular election of electors, at the annual town meetings.
Bill dismissed.