It is apparent from the terms of the will, interpreted in the light of the agreed statement of surrounding facts, that the testator intended these bequests for the institution known to him as the Rock Nook Home for Children, located in Norwich, in whose work he was greatly interested. This is not seriously disputed.
It is pointed out, however, by the appellant, that since this action is an appeal from a decree of probate appointing a trustee, the only questions properly before us are whether, by the terms of these bequests, a trust is created, and if so, whether the Court of Probate had power, under the circumstances, to appoint a trustee.
On principle and authority we think both of these questions must be answered in the affirmative. The misdescription of the Children's Home as a corporation is not fatal, because the legatee is fully identified notwithstanding the misdescription. Neither is the legal incapacity of the Children's Home to take the bequests fatal. In several cases of charitable bequests where the real beneficiaries were definitely ascertained and the primary legatee was the almoner of the testator's bounty, this court has refused to declare the gifts void merely because of the incapacity of such a legatee to take. In American Bible Society v. Wetmore, 17 Conn. 181, a bequest to the Tract Society was sustained, although the intended legatee, The American Tract Society, was a mere voluntary association, "unincorporated and without legal existence," as the law then stood; and the payment of the legacy to a corporation *Page 597 of the same name organized after the testator's death was approved. In Eliot's Appeal, 74 Conn. 586,51 A. 558, the gift was to the Ladies' Seamen's Friend Society, a corporation which, by the limitations of its charter, was unable to take so large a bequest, until the legislature, after the death of the testatrix, amended its charter so as to authorize it to do so.
The principle upon which these gifts were sustained, although the primary legatee was at the testator's death incapable of taking them, was stated as follows by CHURCH, J., in American Bible Society v. Wetmore,17 Conn. 181, 188: "But we believe it is a doctrine now universally admitted, by the equity courts of the country, that a devise for a public charitable purpose, shall not fail . . . for want of a devisee then capable of taking the legal estate; and that to protect and perpetuate such charity, the legal estate will be considered, either as remaining in abeyance, or vesting in the heirs of the testator, as trustees for the persons beneficially interested." And again, by BALDWIN, J., in Eliot's Appeal,74 Conn. 586, 598 (51 A. 558): "The bequest was to a good charitable use, the aiding of a certain and definite class of the poor, and the power in the legatee to select the particular members of the class to be benefited was necessarily implied. New Haven Young Men's Institute v. New Haven, 60 Conn. 32, 41 [22 A. 447]. The society was incorporated for accomplishing that and other purposes. It was therefore a suitable agency for the administration of the charity. It was to receive no beneficial interest. Whatever should come into its hands, would come clothed with a special trust. Dexter v. Evans, 63 Conn. 58, 60, 38 Am. St. Rep. 336 [27 A. 308]. If, then, it were legally incompetent to receive so large a legacy, the case would be simply one of the failure of a trustee. This in equity never involves a failure of the trust." *Page 598
From these expositions of the underlying principles involved, it is clear that if the incapacity of the legatees in question had not been cured, trustees might properly have been appointed in both of these cases to carry the charitable bequests into effect.
On the other hand, the appellant relies upon Pierce v. Phelps, 75 Conn. 83, 86, 52 A. 612, as authority for the proposition that a gift to a charitable corporation to aid in carrying out the purposes for which it was organized does not create a trust in any legal sense; and it is argued from that premise, that the incapacity or refusal of such a legatee to accept the gift will not present a case of the failure of a trustee. It is quite true that a charitable bequest does not create a trust in any strict legal sense. Such bequests are matters of public as distinguished from private concern. They are, however, governed by our statute of charitable uses (§ 4026), and its positive declaration that such gifts shall be and "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," imposes on the courts, whenever it appears that the gift is for an object which the law recognizes as a public charitable use, the duty of seeing that the statutory trust thus created does not fail for want of a trustee.
We think the bequests to the Rock Nook Home for Children are good charitable bequests. The object is to aid a certain and definite class of destitute children, and the power to select the particular beneficiaries is vested in a standing committee of the United Workers for the Rock Nook Children's Home. If the Home had been actually incorporated for the purposes indicated in the agreed statement of facts, the charitable character of the bequest of $50,000, "the principal thereof to be invested by said corporation and the income thereof *Page 599 to be used for its general uses and purposes," could not be questioned. The residuary bequest is just as clearly a charity. The intention that the residuary gift also shall be for the general uses and purposes of the Home is as apparent as if that intent were expressed for the second time; and the only difference is that the principal as well as the income of the residuary bequest may be expended for such purposes. In American Bible Society v. Wetmore, 17 Conn. 181, the bequest of the residuary estate was in the following words: "The one half I will and bequeath to The Bible Society for Foreign Distribution; and the other half I will and determine to be divided equally between The Foreign Mission Society and the Tract Society." Yet there was no question but that the gifts were for the charitable purposes of the several primary legatees. The reason for this is very well stated by Stevens, V. C., in AmericanBible Society v. American Tract Society, 62 N.J. Eq. 219,220, 221, 50 A. 67: "By necessary implication a gift to the society is a gift in trust for those [its] proper objects. . . . To say that where the devise is, without more, to the society, it is invalid, but that where it is to the society to promote its proper objects (without specifying them), it is valid, is quite at war with legal principle and common sense. And for this obvious reason: The society is bound to use the property given to it for such objects, and for such objects only, as are mentioned in its constitution. Any other use would be illegal. Hence, to give to the society, is to give in trust for the objects of the society."
It is objected that in the present case the general uses and purposes of the Children's Home cannot be ascertained, because it is without a charter and without a constitution; but the agreed statement of facts answers this objection by showing that for many years the charity known by the name of Rock Nook Children's *Page 600 Home has been carrying on a home for friendless and destitute children in substantial accordance with the requirements stated in the Moses Pierce deed. Its general purposes and uses were in point of fact limited to the definite object of aiding destitute children, as the testator knew; and the necessary presumption of law is that according to the true intent and meaning of the testator these bequests were to be used for that object and for no other.
It is also objected that the agreed statement of facts was made for the sole purpose of showing the surrounding circumstances, and that it cannot be used to establish the charitable nature of the bequests. This objection is too narrow. Extrinsic evidence is always necessary to identify legatees; and the mere identification of this legatee necessarily characterizes the legacies as charitable bequests, as was also the case in AmericanBible Society v. Wetmore, 17 Conn. 181.
We think the Court of Probate had power to appoint a trustee in this case. It had power to ascertain the legatee, and to pass upon the validity of these bequests as charitable bequests, because these determinations were necessary incidents of its statutory power to order distribution of the estate. Eliot's Appeal, 74 Conn. 586,601, 51 A. 558. Upon determining that the bequests were valid charitable bequests, and that the primary legatee was incapable of taking, it had power, under § 249 of the General Statutes, and it was its duty, under § 4026 of the General Statutes, to appoint a trustee to take and hold the bequests for the purpose of carrying the statutory trust into effect.
The argument that the gifts to the United Workerseo nomine exclude any intent to make additional gifts to the Rock Nook Children's Home, when it is shown that the latter is maintained and operated by the United Workers, is unsound. The gifts to the United *Page 601 Workers are for the general purposes of that corporation, and the gifts to the Rock Nook Home are for one of its special charitable activities. There is no reason to suppose that the testator would not have made these latter bequests had he known of the connection between the United Workers and the Children's Home.
These considerations dispose of the entire case. The first, second, third, fourth, fifth and sixth questions formulated in the reservation are answered in the affirmative.
The Superior Court is advised to enter judgment affirming the decree of the Court of Probate.
In this opinion the other judges concurred.