By the agreed facts, we understand that the parties
wish to waive all matters of form and of process, and to desire the opinion of the court upon the question, whether the plaintiff, at the day of the date of the writ, was entitled to the funds given to it by the will of the late Ephraim Foster. The question is not one of pleading, but is to be decided irrespective of the mode of proceeding; and if, in any process with proper parties in law or in equity, the plaintiff is entitled to hold and administer the trust created by the will, judgment is to be entered for the plaintiff, with this single qualification, that if, as against the defendant, the process is barred by the statute of limitations, judgment is to be entered for the defendant.
Upon the first question, we are of opinion that the plaintiff is entitled to the fund. The gift was a gift for charitable uses. In all the discussions upon the question, What is a charity? there has never been a question that education is a proper subject of a gift for charitable uses. The St. of 43 Eliz. o. 4, recognizes no charitable uses which are not now upheld, both in England and in this Commonwealth. In that statute are enumerated, in words, “ schools of learning,” “ free schools,” “ scholars in universities,” “education and preferment of orphans.”
The beneficiaries are indefinite. The gift is not for the edu cation of any particular person or persons. The parenthetical expression “ as the law directs ” we can construe only as designed to embrace all persons for whom the law then designed schools to be supported. If the gift had been for the support of poor persons, as the law now directs, the natural construction would be for such poor persons as by law towns are required to furnish support for. There can be no doubt, therefore, that the teneficiaries of the bequest are sufficiently indefinite to be the subject of a bequest for charitable uses.
*328No question is made by the defendant that the plaintiff is uj>t competent to take and hold in trust for charitable uses. His claim is, that the plaintiff has fully executed the trust; if not exactly, at least cy pres.
This leads to inquiry into the legal effect of the action of the parish. It is quite probable that the purpose and intention of the plaintiff was to limit the benefits of the trust to such persons as should be resident within the Seventh School District. To do this, it conveyed the trust fund to the district, thereby surrendering all control of it, and permitting it to be administered by such district. If it were an absolute disposition of the fund, it would be a violation of duty. If, however, it was understood, as it seems to have been understood by all parties, as a mere substitution of the district for the parish, in order that the district might as trustee administer the trust, it was not competent for it to do so without the consent of a court of chancery, which it did not have. Harvard College v. Society for Theological Education, 3 Gray, 280.
The plaintiff accepted the trust. It has not administered it. Upon proper proceedings had, it would be compelled to account for the funds, and either to hold and administer the trust, or to pay the fund over to a new trustee, duly appointed.
The question submitted is, whether the plaintiff has authority to do that voluntarily, which it may by law be compelled to do ; or rather, whether it may recover the property from one to whom it has wrongfully disposed of such property, instead of furnishing the necessary sum from its own resources. This must depend upon the circumstances of the case. We have no doubt that a trustee may so dispose of trust funds as that he cannot reclaim them, and we are equally clear that, under some circumstances, he may reclaim the fund, even though he has made what he intended should be an absolute and final disposition of it. It becomes necessary, therefore, to see what the facts are in the particular case. The defendant was a member of the plaintiff society; he was also an inhabitant of the Seventh School District, as well as an inhabitant of the town. When the plaintiff voted to accept the legacy, the defendant was chosen upon the committee to receive it, of which committee he seems to have been chairman; when the plaintiff proposed to transfer the *329fund to the Seventh School District, and the district proposed to accept it, the defendant was chosen upon the committee of the district to receive it; of this committee he also seems to have been chairman, and at present is the only member of the committee, his associates disclaiming any authority to act or power over the fund. As chairman of the plaintiff’s committee, the defendant received the fund and the nominal transfer of the fund to the district, involving no change, in the actual custody of the fund. The defendant has had, since its receipt from the estate of Foster, the actual keeping and control of the fund, which he has kept specifically as the fund, and now holds. He has never contended that he has a personal property in the fund; but has always held it, claiming to hold it only as subject to the trust. This fund we think the plaintiff is entitled to hold. -
The various changes and attempts at change of the district, and the final abolition of the system of districts, and the merger of all district property in the town, we have not thought it necessary to discuss; for the reason that, as we understand the agreement of facts, no question is made as to the parties to the suit, but only the question, whether, in any proceeding at law or in equity, the plaintiff has a right to repossess itself of the fund.
Nor can we regard the statute of limitations as a bar to the claim against the defendant. He took the fund as a trust fund. The general rule of law is, that one holding a trust fund cannot avail himself of the statute of limitations to bar the claim of any person to such fund. He must show that in some open and notorious manner he has disclosed to the party in interest his purpose to hold the fund adversely to the trust, for a period of time long enough to bar the claim, and under circumstances in which he was subject to a suit for it. In this case there is no such evidence, nor any evidence that the defendant ever claimed the fund as his, but has always held it subject to the claim of the rightful owner. It is true that the report of the case finds that the defendant, ever since his appointment on July 8, 1865, “ has claimed to hold said fund as chairman of the committee of the said Seventh School District; ” but it is apparent that he was claiming it simply as a trust fund ; for when it was demanded of him on April 29, 1875, he “ declined to pay it, except upon a decree of the court, as to whom it belonged.” It *330is quite clear from this that, at least up to that date, he had made no claim to it except as a trust fund to be administered according to law; and we think that, at all events, the statute of limitations had not then begun to run.
Our opinion therefore is, that, by some suitable proceedings in law or in equity, the plaintiff is entitled to the fund, and that the statute of limitations is not a bar in favor of the defendant. And consequently, by agreement of the parties, judgment is to be entered for the plaintiff for such sum as may be agreed upon, or as shall be determined by an assessor.
Judgment for the plaintiff.