The testatrix by her last will appointed - a trustee and attempted to dispose of the remainder of her estate in trust by the use of the following language: “ It is my will that said trustee shall dispose of such remainder for any and all benevolent purposes that he may see fit, and at Ms option.”
*67The question is, whether this language is sufficiently certain to uphold the trust, and divert the estate from the lawful heirs.
If this disposition is tested by the common law rules it is clearly invalid. By the common law there cannot be a valid bequest to an indefinite object, or a valid use without an ascertained cestui quo trust. There must be a beneficiary, indicated in the will, capable of coming into court and claiming the benefit of the bequest. If the language is so indefinite that the court cannot ascertain who the cestui que trust is, it is the same thing as if there was none, and the property goes directly to the next of kin. And such a defect cannot be cured by any action on the part of the trustee, for the testator must for himself define the objects of his bounty and cannot delegate this power to another.
But while such are the established rules of the common law, it is conceded that in England a peculiar system of jurisprudence has grown up in disregard of these rules, whereby certain indefinite charitable gifts have been upheld by the exercise of chancery powers and the royal prerogative of the crown.
This system found its embodiment, if not its origin, in the statute of the 48d of Elizabeth, which specifically mentioned certain trusts to be upheld and executed by the Lord Chancellor, which trusts in the latter part of the act were referred to and characterized as “charitable and godly uses.”
Ever since the enactment of this statute the word “charitable,” when used in a will conveying property, has had a technical meaning, not only in England, but in this country as well, even in those states where the statute has never been re-enacted, or adopted by usage. And it may be remarked that in general the decisions of the English chancery upon trusts for charity have furnished the general rules of adjudication in the courts of the United States.
It will not therefore be amiss to inquire whether the trust now in question could stand if tested by the statute of Elizabeth and the decisions of the English- courts.
Sir William Grant, the Master of the Rolls, in his opinion *68in Morice v. The Bishop of Durham, 9 Vesey, 899, said: “I am not aware of any case in which a bequest has been held charitable, where the testator has not used that word to denote his general purpose or specified some particular purpose which this court has determined to be charitable.” In that case the testatrix by her will directed that the residue of her estate “should be applied to such objects of benevolence and liberality as the Bishop of Durham in his own discretion should most approve.” It was held that this language was too indefinite to uphold the trust, upon the ground that benevolence and liberality could find numberless objects not included among the charities mentioned in the statute. This decision was affirmed by the Lord Chancellor on appeal, and is again reported in the 10th of Vesey, 521.
In Vezey v. Jamson, 1 Simons & Stuart, 69, where the estate was given to the executors in trust to dispose of at their discretion, either for charitable or public purposes, the trust was held too general and indefinite to be executed.
To the same effect was the decision in Ellis v. Selby, 1 Mylne & Craig, 286, where the fund was applied “to and for such charitable or other purposes as his trustees should think fit.”
In Williams v. Kershaw, 5 Clark & Finnelly, 111, a direction by a testator to his trustees to apply the estate “to and for such benevolent, charitable and religious purposes as they in their discretion should think most advantageous and beneficial,” was held void for uncertainty.
In James v. Allen, 3 Merivale, 15, it was held that a bequest in trust “for such benevolent purposes as the trustees may unanimously agree upon,” could not be sustained, on the ground that there were benevolent purposes which the court could not construe to be charitable; and the trustees being directed to apply the property to benevolent purposes might select objects not charitable within the statute.
To the same effect is the reasoning in Kenall v. Granger, 5 Beavan, 300, and in other cases that might be cited, but the above will suffice to show that the trust in question must be held void in the light of the English decisions.
*69If now we pass to the decisions of the courts of last resort in the United States we shall find that such indefinite trusts as the testatrix here attempted to create hare repeatedly been held void for uncertainty. An examination of the numerous cases cited in the brief for the plaintiff will abundantly sustain this position. We will only refer particularly to one of these cases, which is from an adjoining state whose system of jurisprudence relative to trusts for charity is similar to our own, and in which case the testator in attempting to create a trust used words almost literally identical with the language now under consideration. It is the recent case of Chamberlain and others v. Stearns and others, 111 Mass., 267. Gray, C. J., in delivering the opinion said: “ The question presented by this case is, whether a devise in trust to be applied solely for benevolent purposes in the discretion of the trustees creates a public charity. And we are all of opinion that it does not. The word ‘benevolent’ of itself, without anything in the context to qualify or restrict its ordinary meaning, clearly includes not only purposes which are deemed charitable by a court of equity, but also any acts dictated by kindness, good will, or a disposition to do good, the objects of which have no relation to the promotion of education, learning or religion, the relief of the needy, the sick or the afflicted, the support of public -works, or the relief of public burdens, and cannot be deemed charitable in the technical and legal sense. The only difference of opinion in the adjudged cases on this subject has been upon the question how far the word ‘ benevolent,’ when used to describe the purposes of a trust, could be deemed limited in its meaning by being associated with other words more clearly pointing to a strictly charitable disposition of the fund.”
Having shown that the trust'in question would be held void upon the principles adopted in England and in our sister states, we will next inquire whether there is anything peculiar to our own system relative to trusts for charity that can savo and enforce the bequest wo are considering.
This state has never adopted the statute of Elizabeth. But wo have a substitute statute of our own, first passed in 1.684, *70but which did not appear in the printed statutes until 1702, and hence it has been generally called the “ statute of 1702.” The language of the act is as follows: “All estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for any other public and charitable use, shall forever remain to the uses to which they have been or shall be granted, according to the true intent and meaning of the grantor, and to no other use whatever.” Gen. Stat., Revision of 1875, p. 352, sec. 2.
Our law is more strict than the English law in this, that it requires certainty in the persons to be benefited, or at least a certain and definite class of persons with an ascertained mode of selecting them. But the law of England in those cases whore the statute applies, or where the doctrine of cy pres may be invoked, does not require any such certainty. Treat’s Appeal from Probate, 30 Conn., 111.
In White v. Fisk, 22 Conn., 31, the doctrine of cy pres was repudiated, as founded originally on kingly prerogative, and as inconsistent with the provisions of our statute. In that case a bequest in trust, “for the support of indigent pious young men preparing for the ministry in New Haven, Connecticut,” was held void for uncertainty. Church, C. J., in giving the opinion of the court, after citing the closing part of the statute, which provides that the estates given to charitable uses “ shall ever remain to the uses to which they have been or shall bo given or granted, according to the true intent and meaning of the grantor, and to no other use whatever,” says that “to carry out this provision of the law the intention of the donor must bo certain, as well as the objects of his bounty reasonably definite, and the charity confined to the very use to which it was destined.”
In the case under consideration the words used to express the trust lack every element of certainty heretofore required in this state. There is no certain beneficiary, no definite class, no ascertained mode of selection, and no certainty and no limitation in the purpose of the trust except as found in the world-wide field of benevolence; a realm as broad at least *71as the human race, and which may embrace even the domestic animals, for such even are now justly considered the legitimate objects of human kindness and protection.
It is conceded that there is nothing in the language of the bequest we are considering to bring the case within the provisions of our statute, unless the word “benevolent” as used in the will, is of the same import as the word “charitable” as used in the statute.
While it is true that there is no charitable purpose which is not also a benevolent purpose, yet the converse is not equally true, for there may be a benevolent purpose which is not charitable, in the legal sense of the term. We have already seen that the word “charitable,” as used by the English courts and the courts of the United States, lias a technical meaning. Our statute was passed nearly a century after the statute of Elizabeth and after the word “charitable ” had received a definite meaning from a long line of the highest judicial opinions. When therefore our legislature, in framing an act on the same subject, deliberately used the same word to characterize the trusts they wished to protect and enforce, there can be no doubt that the word “charitable” was used in the same technical sense it had acquired under the famous act of the mother country.
This rule of construction was virtually adopted by this court in the case of Hamden v. Rice, 24 Conn., 350.
The foregoing considerations have led us to the conclusion that the apparent trust in the will, “for any and all benevolent purposes,” is void for uncertainty, and that the estaie in question, upon the death of the testatrix, vested in her heirs at law.
The finding shows that the trustee has made a statement of the purposes for which he intends to dispose of said iunds. and if such purposes had been specified iu the will it would have been valid. But no action or statement on the part of the trustee can avail in the least to cure a radical defect in the will. It is the will of the testatrix, not that of the trustee, which is to stand or fall. And to use the language of Sir William Grant in Morice v. The Bishop of Durham, “the *72question is not whether the trustee may apply the estate upon purposes strictly charitable, but whether he is bound so to apply it.”
We advise that the property in dispute be distributed to the heirs at law of the testatrix.
In this opinion the other judges concurred.