Our holding that under the conditions here shown the gift in question was in legal effect a gift to Birmingham College is by no means rested upon the authority of New York Institution for the Blind v. How's Ex'rs, 10 N.Y. 84. On the contrary, that case was cited merely in confirmation of our view.
Counsel are in error in the assumption that the question was not involved in that case, for on no other possible theory could the institution have maintained the suit in its own corporate name for the recovery of the legacy given to the trustees (or managers) of the institution, and it was declared in the opinion (page 92) that:
"A bequest 'to the trustees of the institution was a bequest to the institution itself, * * * and it was none the less so because those having charge of it are called 'managers' in the charter."
The case of Hasbrouck v. Knoblauch, 130 App. Div. 378,114 N.Y. Supp. 949, 954, cited as contra by counsel, has nothing whatever to do with the question; the point of decision being that the bequest was to the trustees of Rutgers College absolutely and not in trust. Incidentally, the opinion shows that the bequest, though nominally to the trustees, was in fact to the college; reference being made to "the disposition of the fund by the college." In Keith v. Bingham, 97 Mo. 196, 211,10 S.W. 32, 37, a similar question was presented, and the court said:
"It is also insisted that, although the church had become a separate body when Moore executed his deed conveying the lot in dispute to 'the trustees of the First Baptist Church of Kansas City, Missouri,' said deed was ineffectual to vest the title of the lot in the corporation. In support of this contention, we have been cited to a line of cases which hold that, when a conveyance is made to certain named persons as trustees of a corporate body, the effect of such conveyance is to vest title in them as trustees, but that is not this case. Here the conveyance is made to the trustees, etc., without naming them, or any of them, and in such case the title vests in the corporation named in the deed, as is shown by the following cases: [Citing them.]"
Counsel cite, as opposed to this view, our own case of Trustees of Cumberland University v. Caldwell, 203 Ala. 590,84 So. 846. In that case the subject of controversy was a testamentary gift in trust, and the court said:
"It results, necessarily, that in neither instance did this testatrix intend to constitute the entities, Milton College or Cumberland University, devisees under her will. She made the trustees of Milton College, and, in an event, the trustees of Cumberland University, the agency to carry out her purpose, and, according to her design, committed the application of the subject of her gift to the specific object clearly prescribed in her will, viz. the theological department permanently to be established at Milton College under the conditions she prescribed, and, failing which, that already established at Cumberland University."
The distinction between that case and this scarcely requires elucidation. There the terms of the trust, and the divergent uses of the fund, rebutted the ordinary intendment of a gift to the institution whose trustees were designated as administrators of the fund. And it must be always understood that, when a gift is made to the trustees of an institution, to be applied to a purpose and a service other than that administered by the institution itself, the ordinary intendment of a gift to the institution is thereby denied, and the trustees, as individuals, will take and administer the fund as agents of the donor.
Counsel are in error, also, in the assumption that the gifts dealt with in Dodge v. Williams, 46 Wis. 70, 1 N.W. 92, 50 N.W. 1103, were in terms gifts to the educational institutions themselves, for in each instance the gift was to the trustees of the institution, as an examination of the report of that case will show. That case was fully reviewed, with other Wisconsin cases, in Harrington v. Pier, 105 Wis. 485,82 N.W. 345, 50 L.R.A. 307, 76 Am. St. Rep. 924, and was interpreted as holding that a public charity is "sufficiently definite as to immediate beneficiaries by the power of selection lodged expressly or impliedly in the trustee appointed by the donor." (Italics ours.) We find nothing in Harrington v. Pier, supra, or in Sawtelle v. Witham, 94 Wis. 412, 69 N.W. 72, in denial of the doctrine of implied power of selection by the trustee, as supposed by counsel. But, if there were, it would not influence our conclusion.
Unquestionably there are cases which take no account of the doctrine of an implied power of selection by the trustee in the administration of the gift in trust, but we think they are opposed to reason and the best judicial authorities, and therefore are not to be followed. In Woodroof v. Hundley,147 Ala. 287, 291, 39 So. 907, 909, property was given to three trustees, to be applied "to the maintenance and education of young men preparing for the ministry of the Cumberland Presbyterian Church, or in *Page 673 any other Protestant church; said young men to be selected by said trustees, or any two of them." Answering the contention that the power of selection thus given was a personal confidence in the trustees named, and that therefore the gift could not have been intended as a permanent charity, the court said, per Tyson, J.:
"The provision giving the trustees, or any two of them, power to select the young men preparing for the ministry of the Cumberland Presbyterian Church, or for the ministry of any Protestant church, as recipients of the charity, is a power which would, by the law and without respect to the special provision of the will, appertain to the office of trustee. The property is given to the trustees for the defined charitable trust of applying the income 'to the maintenance of young men preparing for the ministry' of the Cumberland Presbyterian Church, or any Protestant church. If all the trustees had died, the trust would not have failed. And the fact that the power of selection was expressly vested in the trustees is immaterial, as it would appertain by implication to the office, whether filled by appointees of the court or by selection of the testatrix."
This was in no sense obiter dictum, though it was perhaps not necessary to the decision of the question before the court. On the contrary, it was a deliberate and studied statement of the law, upon which was grounded the decision of the question actually presented. We are therefore justified in regarding it as an authoritative determination of the question. Moreover, we are convinced that it is correct, and for that reason ought to be followed.
We find no reason for changing our views and conclusions, as originally expressed, and the application for rehearing will be overruled.
Application overruled.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.