At the October term, 1890, this case was before the court on demurrer *Page 63 to the bill. 17 R.I. 306. The bill is brought by the heirs of Joseph Greene to avoid a testamentary trust, and the question then raised was whether the gift to the trustees, was valid as a gift to charitable uses. We held that it was not. The case is now before us on bill, answer and evidence and the same question is again urged, upon an exhaustive review of authority. It is now claimed upon the answer and evidence that a practice of hospitality has grown up in the society of Friends in freely entertaining ministers and others, members of the society, coming from a distance to attend the meetings, and that such entertainment is furnished not as simple hospitality, but in the service of religious truth and with a view to aid the religious meetings. It also appears that the society is accustomed to pay from its treasury for the travelling expenses and entertainment of members. Hence it is claimed that what the society itself may do may also be done by way of a charitable trust.
It is to be observed at the outset that a religious society may do many things in the administration of its own affairs, usually from voluntary contributions, which would not support a charitable trust in perpetuity. For example, it is not uncommon for such societies to provide excursions or picnics for the children, but it could hardly be contended that a gift to trustees simply for that purpose could be sustained. Many societies procure portraits of their ministers and place tablets or other monuments to their memory; but these things would not fall within any recognized division of charitable trusts. A society has necessarily a wide discretion in dealing with its own funds, which cannot be made the criterion of a valid trust. This distinction is clearly brought out in Dexter v. Gardner, 7 Allen, 243, where it was held that a gift to a religious society was valid, although it might be used for the purchase and repair of burying grounds, because all the objects to which a society, by the usages of a denomination, may appropriate its funds are to be regarded as charitable, when similar objects cannot be regarded as charitable under a secular trust. "As the gift is to the society for its benefit it is not within the rule against perpetuities." *Page 64
The respondents in the present case admit that a gift for hospitality alone does not create a valid trust; but they contend that the trust in this case being in aid of the religious meetings of the society of Friends the gift is really to a religious use. We do not see that we can adopt this view. The connection between the gift and the result to be secured is too indirect, too remote and too inconsequential. Suppose a gift were to be made to furnish dinners to all persons attending at church or to provide gifts for a Christmas tree, in the hope of inducing thereby a larger attendance upon church service, we could not hold that such a gift is to a charitable use. It would be benevolence rather than charity as this word is understood in law. The test lies in the controlling purpose as shown by the terms and character of the gift. The practical effect of the gift in question is simply to relieve others from extending that hospitality which it is said the Friends accept as a part of their religious duty. Its controlling purpose is to insure a continuance of such hospitality in the house where the testator and his fathers had dispensed it. It is not a gift to the society itself for its work; nor to trustees to apply to the benefit of the society; nor for any work of religion or public use, but for private entertainment only. It is not for ministers nor for the poor, but for all, "travelling to meetings or otherwise in the service of truth." It might be administered, consistently with the terms of the will, simply for the benefit of those who are neither ministers nor in need, who might be deemed to be in any way in the service of truth, whatever that phrase may mean. It is argued that all meetings of Friends are in the service of truth; but this trust is not confined to those attending meetings. Under this will the trustees might provide a home for a travelling author engaged in writing a book on the doctrines of the society, if they were satisfied that he was engaged in the service of truth, as the testator defined it; and other ways are equally conceivable in which the trustees might follow the terms of the will in the line of pure benevolence instead of a trust for religious uses. As was stated in Pell v. Mercer, 14 R.I. 412, 442, if a bequest can, consistently *Page 65 with the will, be applied to other than charitable uses the bequest is invalid. In that case the testator gave a portion of his property "to such works of religion or benevolence" as his executors might select. The court held that if the alternative of benevolence were to be taken in its broad sense the bequest would be invalid; but that it was apparent from other directions in the will that the term was used in a restricted and narrower sense as synonymous with charity. In the present case, however, the general intent is so specifically set out that we cannot restrict the provisions to a purely charitable use. The trouble does not lie in the uncertainty but in the very definiteness of the will. The testator has made it clear that he desired and intended to continue to keep his house open for the reception and entertainment of all who might be deemed to be engaged in the service of truth, in the same manner that he and his ancestors before him had dispensed their hospitality. This is the main purpose of the will, to which all other directions are subordinated. We are constrained to say that this is a bequest merely for hospitality and not to a religious or charitable use. An expectation that this may result in some indirect and indefinite way to the benefit of a religious society does not change its essential character, nor warrant our holding it to be a charity. There must be some limit in the interpretation of a trust, more definite than the fervid fancy of a judge. If this trust is sustainable it is difficult to conceive of a trust in any way however remotely connected with religion or education which would not be equally so. We know of no definition of a legal charity more accurate, concise and comprehensive than that given by Mr. Justice Gray in Jackson v. Phillips, 14 Allen, 539, 556: "A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. *Page 66 It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." We do not see how it can be claimed that this gift falls within either of these divisions of a charity, without giving a wide range to the imagination, in the hope of drawing therefrom some ulterior and possibly resultant benefit, which the testator himself has not disclosed. Undoubtedly, if a general charitable intent be disclosed in the will the gift will be supported, even though the particular mode of administering the trust pointed out by the testator may be ineffectual. But this general intent is to be found in the will itself. In the will before us we can find no such general intent. The idea of the testator was not to furnish funds for the use or benefit of any of the local or general meetings of Friends, nor for the poor among their number for fear that such beneficiaries might become apostate; but his primary and predominating purpose was to provide entertainment in a merely private way for those who should be acceptable to his trustees on account of their soundness in faith. The gift is not in general intent for the benefit of the society of Friends; for in the instructions to his trustees he contemplates the contingency that the society may become so largely affected by apostacy from the faith that true believers will be deprived of their membership, "and, as it were, driven into the wilderness;" but still the trustees "are to follow the original principles of truth in the application of the benefits of this trust, without regard to the outward appearance, mere name, lifeless profession, numbers or majority of such apostates." Neither is the gift for the teaching or preaching of the gospel or for any religious use other than what his trustees may deem to be comprehended in the vague expression "in the service of truth," which the answer, by substituting a conjectural motive for the thing itself, makes the equivalent of simple hospitality. But what is the "application of the benefits of this trust" which the testator directed? Nothing but the entertainment of travelling Friends whose belief is similar to his own. The many pious expressions in the will and the ardor for what he calls the truth, may lead a superficial *Page 67 reader to mistake the pious expressions for the object aimed at, but a close analysis shows clearly that what he was aiming at was not the general benefit which comes from religious teaching, but a perpetuation of his own good will to orthodox followers of the faith, whom these pious expressions simply point out. His desire was to put into permanent, concrete and literal form the sentiment of the patriarch: "As for me and my house we will serve the Lord." Any resort to the doctrine of cy pres, therefore, so as to turn this fund to the benefit of the religious society or its ministers would not only be liable to aid the teaching of doctrine contrary to his notion of truth by a society which he was not willing to trust, a thing which he sought with great care to prevent, but it would be turning his bounty in a direction quite different from the plain purpose of his will, which was merely that of maintaining a long established hospice for orthodox travelling Friends. Should we set it apart for the poor, or for printing religious books, we should substitute for the primary purpose of the will a subordinate and conditional direction, which applies only to a possible surplus after the expenses of entertainment have been met. In our view, the will does not disclose a general intent for a legal charity to which we may resort to support the trust, but only provides, in general intent and particular direction, for a continuance of that practice of hospitality which had become the tradition of his house.
Among the numerous cases cited by the respondents we find no decision analogous in fact or principle to a trust like the one before us. Without attempting to consider the cases in detail, it is sufficient to say that they are all cases where the gifts were directly and expressly for recognized religious or charitable uses; for building parsonages; for the repair of churches; for support of ministers; for increasing the salaries of those in need of assistance; for the poor; for the ordinary expenses of a parish as a governing body; or for the maintenance of some definite work akin to the purposes of a religious society where the gift was to the society itself. All these objects are quite distinguishable from that contained *Page 68 in the will before us. The case which most nearly resembles the one before us is that of Shotwell, Executor, v. Mott, 2 Sandf. Ch. 46. But in that case the trust was for ministers in limited and straitened circumstances, which is a very different trust from that which is here sought to be established. Gratuitous aid to the needy is charity, but the same thing for those not needy is benevolence. A salary may be provided for those who perform some religious service or expenses in lieu of salary, and hence it is urged that entertainment itself may be provided; but even so it is a very different thing from providing for the entertainment of others simply because they attend a meeting or in some other way are deemed to be "in the service of truth." We see nothing in the present aspect of this case which leads us to any different conclusion in regard to the trusts from that declared upon the demurrer in 17 R.I. 306, 316, or which calls for any further discussion of the law relating to them. We must therefore hold that the trusts in this will do not come within the boundaries of charitable trusts.
If the trust is invalid, the next question is whether the residuary devisee took the estate under the residuary clause of the will or whether it passed under the statute of descent. The contention in behalf of the representatives of the residuary legatee is that as the trust is invalid the gift was void and so the same as if it had not been made, and therefore the property attempted to be conveyed thereby falls into the residue of the estate. The residuary clause was: "all the rest and residue of my estate and effects of every kind and nature not hereinbefore disposed of." It is well settled that where a gift is made upon trusts which are void in whole or in part for illegality a trust results for the donor, his heirs or legal representatives, if the property is not otherwise disposed of; but the question remains whether, as to real estate, the trust results to the heirs or to the residuary devisee. Perry on Trusts, 4th ed. §§ 160, 160 a;Church v. Church, 15 R.I. 138. It is to be observed that this will has practically two residuary clauses. It starts out by giving all "real and personal estate whatsoever and wheresoever to be found," to the trustees; *Page 69 then gives certain special legacies, ending with the residuary clause above quoted. The devise might be treated as residuary in its inception, which therefore could not fall into the residue. But, taking the question in its broader aspect, we think it is clear that the residuary devisee in this case does not take upon the failure of the trust. This will was made in 1839, and the testator died in 1840, before the statute allowing the devise of after acquired real estate. Since the passage of such statutes there has been much question whether a distinction between lapsed legacies and lapsed devises still holds. However this may be there seems to be little doubt that prior to the statutes the estate descended to the heir upon a void devise. 4 Kent Comment. 12th ed. *541; 2 Redfield on Wills, 2d ed. 115; Perry on Trusts, § 160 a; 2 Washburn on Real Property, *692; 13 Amer. Eng. Encyc. of Law, 51; Schouler on Wills, 521. This question has been so much discussed that it is not necessary now to review the cases, nor to decide upon the effect of the statute. We think the weight of authority is that the interest in the real estate, which failed under this will, passed to those entitled to the estate under the statute of descent, and not to the residuary legatee.
In the matter of account, as the complainants have so long stood by and allowed the trustees to administer the estate in good faith upon what they believed to be a valid trust, we think the trustees should not be chargeable with expenditures made by them in the proper execution of the trust as directed by the will down to the time of the filing of this bill.