delivered the opinion of the court:
David Robinson died, in Fayette county, in the year 1806, having made a will, which was proved, and admitted to record by the Fayette county court. All the provisions of the will have been long since fully executed, except that which forms the basis of this action. The provision is in these words:
“The residue of my said tract, called the Rye-Field, after the title to the same shall be completely adjusted, and the present law suit ended, I direct shall be sold by my executors, and the money arising therefrom be applied by my executors, from time to time, to the advancement, support or education of any of my nephews or nieces, or their descendants, whose merit or indigence may, in the opinion of mjr said executors, entitle them to assistance ; my said executors always keeping in remembrance that the *511aid to be afforded by this land is not intended for those whose indigence and want have been caused by fheir immorality or vice, but for the advancement of those whose merit, good deportment, or genius, does, in their opinion, deserve assistance. In the application, therefore, of this fund, I rely on the discernment and discretion of my executors, with this restriction, viz: that the concurrence of at least two of them shall be necessary to any part of its application.” »
The testator having previously conveyed a tract of land to his nephew, John Edmonson, he directed in the next clause of his will, that as Edmonson’s title was disputed in a suit then pending between him and an adverse claimant, if that suit should result in the loss of any portion of his land, he should be indemnified out of the tract described in the clause just quoted; and until that litigation should be terminated, no sale was allowed to be made by the executors. The suit against Edmonson lasted until a few years before the commencement of this action ; and, in the meantime, all the executors had died, and the nephews and nieces of the testator, with one exception, had also died; all the latter, except two, having left descendants. Some of those descendants had also died, leaving children and grand-children.
The tract of land in controversy remaining thus undisposed of and unoccupied, the appellant, Mrs. Margaret Flint, the daughter of a grandniece of the testator, entered upon and took possession of it about the year 1846; built a house and cleared a portion of the tract, and has occupied it ever since, claiming the right to do so under the provisions of the will, as the most indigent and meritorious of the descendants of the testator’s nieces or nephews.
The appellees, who are great grandnephews and nieces of the testator, and descendants of one of his nieces, and who sue on behalf of themselves and of other descendants of the nieces and nephews, instituted this action against Mrs. Flint, the administra*512tor de bonis non of Robinson and others, seeking to have that clause of the will carried into effect, as far as is practicable under the circumstances, by a sale of the land and a distribution of the proceeds among either the descendants of the nephews and nieces, or among the heirs at law of the testator.
1. The county in which a will is recorded, and the p e raonal r e p r esentatiye qualifies, is the proper county in which to bring» suit for the sale of land and distribution of the proceeds, directed by will.— (Code Practice, sec. 96 and 97.)*512Mrs. Flint, in her answer, resisted the right of the appellees to the relief sought, or to any relief upon the several grounds hereafter stated.
The circuit court rendered judgment, directing a sale of the land and a division of the proceeds, into as many shares as there were, at the death of the testator, nephews and nieces who are now alive, or having died have left surviving descendants; and that to each surviving niece or nephew, or their assigns, shall be paid one share, and a share shall be distributed among the descendants of each deceased niece or nephew per stirpes — the number and names of such nephews and nieces, and their descendants, to be ascertained by the commissioners, to be from time to time reported, &c.
Fi’om this judgment Mrs. Flint has appealed, and seeks a reversal upon the same grounds relied upon by her in the circuit court, which are :
1. That the court had no jurisdiction.
2. That those of the descendants not made parties, but in whose behalf the suit is brought, do not approve of, or wish to unite in it.
3. That when this action was commenced, there was another suit pending for the same purpose.
4. That the judgment is erroneous upon the merits.
We will proceed to dispose of the questions arising upon each of these objections, in the order in which they are stated.
1. By the Civil Code, (sections 96, 97,) it is provided “ that an action to settle the estate of a deceased person must be brought in the county in which his personal representative qualified,” and “ that an action for the distribution of the estate of a deceas*513ed person, or for its partition among his heirs, or for the sale of real property or slaves descended from him, must be brought in the county in which his personal representative was qualified.” This case, it seems to us, comes clearly within these provisions of the Code. An action for the mere partition of real estate, or for the sale of real property under a mortgage, lien, or other incumbrance, must be brought in the county in which the subject of the action, or some, part of it lies ; but this suit is for neither the one nor the other of these purposes. Its object is a sale of land, it is true, but it is a sale directed by a will, for the purpose of distribution among those entitled to the proceeds. The will was recorded in Fayette county ; there the personal representative was qualified, and there the suit was brought — properly,' as we think.
2. Where parties claiming an interest are numerous, and a suit is brought for their benefit with others who are active in its p r o s e c u t ion, their assent to its prosecution will be presumed, unless they show their disapprobation. 3. The pendency of one suit to restrain the commission of waste, brought by those claiming a residuary or contingent interest during the pendency of a suit about the land, cannot be relied on as a bar, or to abate a suit brought in a proper county to settle the rights of the parties to the lands when that right' has accrued.2. It is not shown that any of the parties in whose behalf the action is brought disapprove of it. The presumption is that they concur in its objects ; but even if the contrary were shown, it would be no ground for dismissing the suit, inasmuch ,'as the plaintiffs would certainly have a right to prosecute it for themselves.
3. The suit, the pendency of which is relied upon in bar of this action, was brought to restrain the appellant from the commission of waste by cutting and carrying off the timber from the land in contest. The action of ejectment against Edmonson was then undecided, and of course no sale of the land, or application of the proceeds, under the provisions of the will, could have been then decreed or made, nor do we understand from the record that such was any part of the relief then sought by the plaintiff in that suit.
4. The next and most important question is whether the provision of the will in question is to be construed as creating a trust in favor of the class out of which the executors were required to select the proper recipients of the testator’s bounty, or whether it is *514such a trust as could have been specifically executed by the court, and which should have been so executed in favor of the appellant, upon the state of fact presented by her as the basis of her title and claim to the whole of the land so devised?
A discretionary power is said to exist wherever an authority is given to trustees, which it is either not compulsory upon them to exercise at all, or if compulsory, the time or manner or extent of its execution is left to be determined by the trustees. (Hill on Trustees, 485.) The authority conferred on the executors of this will is discretionary only as to the manner of its execution in the selection of the individuals or classes to be benefitted. In all other respects it is imperative. They are directed to sell the land, after the determination of the law suit referred to, and to apply the proceeds in the manner designated. Having been prevented, by the causes stated, from the exercise of those powers, and all of them having since died, it is now insisted by the appellant that it is the duty of the court to assume the direction which had been confided to the trustees, and to exercise the powers conferred upon them by the will, in the same manner, and to the same extent that they were required to do, with this difference only, that the court can consider and adjudicate upon the claims of the indigent alone.
It is argued that “indigence” is a fact which may be proved and judicially decided, like any other fact; that merits or talents or genius are matters depending on judgment or opinion merely, and are not therefore judicially cognizable, but to be referred exclusively to the personal discretion of the trustees, who having died before being able to exercise any portion of this discretionary power, “indigence” alone can claim the benefit of the trust.
The case of Gower vs. Mainwaring, 2 Vez., 87, is confidently relied upon as showing the distinction which was taken by the English courts between a discretion given to a trustee, to be exercised on a *515matter of opinion and judgment, and one to be exercised on a matter of fact. There three trustees were directed, by deed, to give the residue of the grantor’s estate “among his friends and relations, where they should see most necessity, and they should think most equitable and just.” The trustees failed to act, and the question being whether the court would take upon itself this discretion, Lord Hardwicke is reported to have said, “the trustees are to judge on the necessity and occasions of the family; the court cannot judge of such necessity of the family; that is a judgment to be made on facts existing, so that the court can make the judgment as well as the trustees; and when informed, by evidence, of the necessity, can judge what is equitable- and just on this necessity.” And he ultimately decided that the residue was to be divided between the brother of the plaintiff and a son of a deceased sister, “according to their necessities and circumstances, which the master was to enquire into, and consider how it might be most equitably divided.”
Hill, in his Treatise on Trustees, remarks, in commenting upon this case, that “Lord Hardwicke’s words, as quoted above, are somewhat unintelligible, if not inconsistent with themselves; and on several other occasions, and indeed in the course of his judgment in Gower vs. Mainwaring itself, he expressly disclaimed any jurisdiction of exercising discretionary powers in general. And the current of more recent authorities renders it very doubtful w'hether the case in question would meet with a similar decision at the present day; at all events it will be found extremely difficult to make any practical application of this distinction between matters of fact and those of mere judgment and opinion.” [In the report of the case of Gower vs. Mainwaring, to which Hill refers in the passage cited, there is probably a misprint as to words “cannot judge.” See Lewin on Trusts and Trustees, 24th vol. Law Library, tap page 293“, note y.]
The same author says further upon this subject, *516that the courts have long since repudiated this jurisdiction in cases of discretionary powers vested in trustees, and that it is now settled that the court will never exercise a mere discretionary power, either in the lifetime of the trustees or upon their death or refusal to act. Although, where a trust is created for a certain class of objects, and the discretionary power aoplies only to the selection from or distribution amongst those objects, the court, while it disclaims tbe exercise of the discretion reposed in the trustees, will, if necessary, enforce the performance of the trust by decreeing the distribution of the property amongst all the objects equally. (Hill on Trustees, 486, and cases there cited.)
4. A testator directed upon a certain contigency that a tract of land "be sold by his executors, and the money arising therefrom be appplied by my executors "“from time to time, to the advancement and support or education of my nephews and nieces or their descendent whose merit and indigence may, in the opinion of the said executors, entitle them to assistance my said executors said always keeping in remembrance that the aid be afforded by this land is not intended for whose indigence and caused by their immorality or vice, but for the advancement of those whose merit and good deportment or genius does, in their opinion, deserve assistance. In the applicati on, thereof, of this fund I rely on the discernment and discretion of my executors, with this restriction, viz: that the concurrence of at least two of them shall be necessary to any part of its a pp li cation.” Before the period for distribution all the executors died, & on bill filed by the descendants of the nephews and nieces for a sale and distribution amongst them all — held that the chancellor had no power to select any part of the descendants of the nephews & nieces on the ground that they were indigent, and give to such person, or persons the benefit of the provision of the will made for the indigent, &c , but that a sale of the lands and a distribution of the proceeds amongst all the descendants of the nephews and nieces, as a class, was proper; that the chancellor could not exercise the discretionary power conferred on the executors for the benefit of the indigent of the beneficiaries, to the exclusion of others who might have been the objects of the assistance povided for in the devise.*516We have found no case m which the doctrine thus lucidly stated, has been overruled or questioned, and the propriety oí its application to tbe case we are considering is manifest. The testator directs the executors to apply the fund, “from time to time, to the Advancement, support, or education of any of my nephews or nieces, or their descendants, whose merit ... .... or indigence may, in the opinion ol my said executors, enti^e them to assistance.” That the aid to be afforded is for the “advancement of those whose mer- , , , . . ..... it, good deportment, or genius does, m their opinion, ¿]eserve assistance;” and “in the application of this fund I rely on the discernment and discretion of my executors.” We are unable to conceive how the conelusion can be drawn from these clear and explicit . . , . , , 1 declarations ol the intention of the testator, that m an3r even1’ 01' upon any contingency, indigence, however faultless, was to be permitted to monopolize this bounty, to the utter exclusion of tbe claims of “merit” or “good deportment” or “genius.”
It cannot be doubted that it would have been the duty of the executors, in the execution of this power, to devote the fund to the education of such as re- ... , . . . ... quired it, or to the reward ol merit of any kind, or ^he re^e^ °f indigent, according to their best judgment and discretion; and if this be so it follows *517that the same powers, if assumed by the court, must be executed upon the same principle, and within a range of discretion no more restricted as to objects. This the court cannot do, as is conceded in the able argument of the counsel for the appellant. The utter impracticability of the exercise of this jurisdiction by a court of equity, in a case like the present, even assuming that the claims of the indigent only are to be considered, is a conclusive reason why it should have been repudiated, as it has been, by the courts of England. The difficulty of determining wffio, among the numerous descendants of the nephews and nieces of the testator, many of whom are unknown, and many probably in distant countries, are the most indigent, and what were the causes which led to their condition, involving probably the entire history of the life of each applicant, would be such as to promise no other results than delay, expense, and injustice.
The principle laid down in Hill on Trustees, above referred to, has been decided in numerous other cases. In Burrough vs. Philcox, 5 My. & Cr., 72, it was held by Lord Cottenham, “that where there appears a general intention in favor of a class, and a particular intention in favor of individuals of a class, to be selected by another person, and the particular intention fails, from that selection not being made, the court will carry into effect the general intention in favor of the class. (Harding vs. Glyn, 1 Atk., 469; Brown vs. Higgs, 8 Vez., 574.)
And the circuit court having proceeded upon this principle in the distribution of the fund in controversy, the judgment is in all respects proper., and must therefore be affirmed.