in trust "for the use and benefit of the Russell Insti- subject of charitable uses go far toward determining tute of St. Louis, Missouri; they direct him to sell the question presented in this case. As the extent the property and account for and pay over the pro-and effect of these adjudications have hardly been apceeds "to Thomas Allen, president of the board of❘preciated, it will be convenient to state the substance trustees of the said Russell Institute of St. Louis, of them. Missouri," whose receipt shall be a full discharge of Horner; and they end by declaring that all these conveyances shall be deemed taken and accounted for as one trust, and that it is the intention of the donor to convey the property included in all of them "to and for the benefit of the said Russell Institute of St. Louis, Missouri," to which one of the deeds adds, "represented by their president as aforesaid."

The donor thus clearly manifests his purpose to found an institution for the education of youth in St. Louis, to be called by his name; and he executes this purpose by conveying the property to Horner in trust, to hold and convert into money and pay that money to the officers of the institute when incorporated and a board of trustees appointed. The direction to pay the money to Allen, as president of the board of trus tees, and the mention, at the close of one of the deeds, of the institute as represented by its president as aforesaid, clearly show that the fund is not to be paid to Allen individually; and while they imply the donor's wish that Allen should be the first president of the board of trustees of the institute, they do not make his appointment to and acceptance of that office a condition of the validity of the gift or of the carrying out of the donor's charitable purpose. The terms of the deeds clearly show that the donor did not contemplate or intend doing any further act to perfect his gift. It is not pretended that the allegations in the bill as to his weakness of body and mind amount to an allegation of insanity, and they are irrelevant and immaterial.

The principal grounds upon which the plaintiffs seek to maintain their bill are that the deeds create a perpetuity; that the uses declared are not charitable; and that if the uses are charitable, there are no ascertained beneficiaries and no donee capable of assuming and administering the trust, and the uses are too indefinite to be specifically executed by a court of chancery. But these positions, as applied to the facts of the case, are inconsistent with the fundamental principles of the law of charitable uses, as established by the decisions of this and other courts exercising the ordinary jurisdiction in equity

By the law of England from before the statute of 43 Eliz., ch. 4, and by the law of this country at the present day, except in those States in which it has been restricted by statute or judicial decision, as in Virginia, Maryland, and more recently in New York, trusts for public charitable purposes are upheld under circumstances under which private trusts would fail. Being for objects of permanent interest and benefit to the public, they may be perpetual in their duration, and are not within the rule against perpetuities; and the instruments creating them should be so construed as to give them effect if possible, and to carry out the general intention of the donor, when clearly manifested, even if the particular form or manner pointed out by him cannot be followed. They may, and indeed must, be for the benefit of an indefinite number of persons; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of the charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery; and an omission to name trustees, or the death or declination of the trustees named, will not defeat the trust, but the court will appoint new trustees in their stead.

The case of Baptist Association v. Hart, 4 Wheat. 1, in which a bequest by a citizen of Virginia "to the Baptist Association that for ordinary meets at Phila delphia annually," as "a perpetual fund for the education of youths of the Baptist denomination who shall appear promising for the ministry," was declared void, was decided upon an imperfect survey of the early English authorities, and upon the theory that the English law of charitable uses, which it was admitted, would sustain the bequest, had its origin in the statute of Elizabeth, which had been repealed in Virginia. That theory has since, upon a more thorough examination of the precedents, been clearly shown to be erroneous. Vidal v. Girard, 2 How. 127; Perrin v. Carey, 24 id. 465; Ould v. Washington Hospital, 95 U. S. 303. And the only cases in which this court has followed the decision in Baptist Association v. Hart have, like it, arisen in the State of Virginia, by the decisions of whose highest court charities, except in certain cases specified by statute, are not upheld to any greater extent than other trusts. Wheeler v. Smith, 9 How. 55; Kain v. Gibbony, 101 U. S. 362.

In Beatty v. Kurtz, 2 Pet. 566, the owners of a tract of land (afterward part of Georgetown) laid it out as a town, and made and recorded a plan of it, marking one lot as for the Lutheran Church; " and the Lutherans of the town, a voluntary society not incorporated, erected and used a building upon this lot as a church for public worship, and fenced in and used the land as a church yard, for the burial of others as well as of Lutherans, for fifty years. Upon these facts, it was held that the Bill of Rights of Maryland, affirming the validity of any sale, gift, lease, or devise of land, not exceeding two acres, for a church and burying ground, recognized to this extent at least, the doctrine of charitable uses, under which no specific grantee or trustee was necessary; that this land had been dedicated to a charitable and pious use, beneficial to the inhabitants generally, which might at all times have been enforced through the intervention of the government as parens patriæ, by its attorneygeneral or other law officer; and that a committee of the society might maintain a bill in equity to restrain by injunction the heirs of the original owners from disturbing that use.

In Inglis v. Sailors' Snug Harbor, 3 Pet. 99, a citizen of New York devised land to the chancellor of the State, the mayor of the city, and others, designating them all by their official titles only, and to their respective successors, in trust out of the rents and profits to build a hospital for aged, decrepit and worn out sailors, as soon as the trustees should judge that the proceeds would support fifty such sailors, and to maintain the hospital and support sailors therein forever; and further declared it to be his will and intention, that if this could not be legally done without an act of incorporation, the trustee should apply to the Legislature for such an act, and that the property should at all events be forever appropriated to the above uses and purposes. An act incorporating the trustees was passed and the hospital was established. A majority of the court held that the trustees took personally and not in their official capacities, and that upon their incorporation the legal title vested by way of executory devise in the corporation as against the heirs at law; and the dissenting judges differed only as to the legal title, and not as to the validity of the charitable trust. In McDonogh v. Murdoch, 15 How. 367, a citizen of The previous adjudications of this court upon the Louisiana, declaring his chief object to be the educa

tion of the poor of the cities of New Orleans and Baltimore, made a devise and bequest to the two cities, one-half to each, the income to be applied by boards of managers, who should be appointed by either city, but whose powers and duties he defined, and who should obtain acts of incorporation, if necessary, for the education of the poor and other charitable purposes, in various ways specified. And in case the two cities should combine together and knowingly and willfully violate the conditions, then he gave the whole property to the States of Louisiana and Maryland, in equal halves, "for the purpose of educating the poor of said States under such a general system of education as their respective legislatures shall establish by law." The court held that the devise to the cities was valid, and that the testator's directions as to the management of the income "must be regarded as subsidiary to the general objects of his will, and whether legal and practicable, or otherwise, can exert no influence over the question of its validity; and expressed the opinion that the failure of the devise to the cities would not have benefited the heirs at law, for in that event the limitation over to the States of Louisiana and Maryland would have been operative. 15 How. 404, 415.

York in 52 N. Y. 530, held a devise of land in New
York to the United States, for the purpose of assisting
to discharge the debt contracted by the war for the
suppression of the rebellion, to be invalid, solely be-
cause by the law of New York, as declared by recent
decisions of the Court of Appeals, none but a natural
person, or a corporation created by that State with
authority to take by devise, could be a devisee of land
in that State. Where not prohibited by statute, a de-
vise or bequest for such a purpose is a good charitable
gift. Nightingale v. Goulburn, 5 Hare, 484, and 2
Phillips, 594; Dickson v. United States, 125 Mass. 311.
In Ould v. Washington Hospital, 95 U. S. 303, a
citizen of Washington devised land in the District of
Columbia to two persons named, in trust to hold it,
"as and for a site for the erection of a hospital for
foundlings," to be built by a corporation to be estab-
lished by act of Congress and approved by the trustees
or their successors, and upon such incorporation, to
convey the land to the corporation in fee.
It was
contended for the heirs at law that the devise was
void, because it was to a corporation to be established
in the future, and might not take effect within the
rule against perpetuities, and because of the uncertainty
of the beneficiaries; and reference was made to the
Maryland Statute of Wills of 1798, still in force in the
District of Columbia, providing that no will should
"be effectual to create any interest or perpetuity,
or make any limitation, or appoint any uses, not
now permitted by the Constitution or laws of
the State,' and to a series of decisions in Mary-
land, holding that the statute of Elizabeth was not in
force in that State, and that charitable uses were
there governed by the same rules as private trust.
But those decisions having been made since the
separation of the District of Columbia from the State
of Maryland, the court held that the case must be
determined upon general principles of jurisprudence,
and that the devise was valld.

The objection to the validity of the gift before us, as tending to create a perpetuity, is fully met by the cases of Inglis v. Sailors' Snug Harbor, Mc Donogh V.

In Fontain v. Ravenal, 17 How. 369, a testator, residing at the time of his death in Pennsylvania, appointed his wife and three others to be executors of his will, and authorized his executors or the survivor of them, after the death of his wife, to dispose of the residue of his estate "for the use of such charitable institutions in Pennsylvania or South Carolina as they or he may deem most beneficial to mankind, and so that part of the colored population in each of the said States of Pennsylvania and South Carolina shall partake of the benefits thereof." In that case, the testator had not himself defined the nature of the charitable uses, nor authorized any one but his executors to designate them; and the point decided was, that they having all died without doing so, the Circuit Court of the United States for the district of Pennsylvania could not sustain a bill to establish them, filed by charitable institutions in Pennsylvania | Murdoch, and Ould v. Washington Hospital, above and South Carolina in the name of the administrator | cited, which clearly show that a gift in trust for a de bonis non and next of kin to the testator. The question there was, whether the authority of a court of chancery, under such circumstances, belonged to its ordinary jurisdiction over trusts, or to its prerogative power under the sign manual of the crown, which last has never been introduced into this country. See Boyle on Charities, 238, 239; Jackson v. Phillips, 14 Allen, 539, 576, 588. No question of the validity of the gift as against the next of kin was presented; and even Chief Justice Taney, who differing from the rest of the court, alone asserted that "if the object to be benefited is so indefinite and so vaguely described that the bequest could not be supported in the case of an ordinary trust, it cannot be established in a court of the United States upon the ground that it is a charity," distinctly admitted that a suit by an heir or representative of the testator to recover property or money bequeathed to a charity could not be maintained in a court of the United States if the bequest was valid by the law of the State. 17 How. 395, 396. Accordingly, in Lorings v. Marsh, 6 Wall. 337, the court dismissed a bill by the next of kin to set aside a bequest by a citizen of Massachusetts "in trust for the benefit of the poor," by means of such incorporated charitable institutions as should be designated by three persons appointed by the trustees or their successors; such a bequest being valid under the law of Massachusetts as habitually administered in her

courts.

In United States v. Fox, 94 U. S. 315, this court, affirming the judgment of the Court of Appeals of New

charity not existing at the date of the gift, and the
beginning of whose existence is uncertain, or which is
to take effect upon a contingency that may possibly
not happen within a life or lives in being and twenty-
one years afterward, is valid, provided there is no gift
of the property meanwhile to or for the benefit of any
private corporation or person. Those cases are in ac-
cord with English decisions of the highest authority,
of which it is sufficient to refer to the leading case of
Downing College, reported under the name of Attorney-
General v. Downing, in Wilmot, 1 Dickens, 414, and
Ambler, 550, 571, and under the name of Attorney-
General v. Bowyer, in 3 Ves. 714, 5 id. 300, and 8 id.
256, and to the recent case of Chamberlayne v. Brockett,
L. R., 8 Ch. 206. See also Sanderson v. White, 18 Pick.
328, 336; Odell v. Odell, 10 Allen, 1.
That the gift is for a charitable use cannot be
doubted. All gifts for the promotion of education
are charitable, in the legal sense. The Smithsonian
institution owes its existence to a bequest of James
Smithson, an Englishman, "to the United States of
America, to found at Washington, under the name of
the Smithsonian institution, an establishment for the
increase and diffusion of knowledge among men."
See acts of Congress of July 1, 1836, ch. 252; August
10, 1846, ch. 178. This was held by Lord Langdale,
master of the rolls in United States v. Drummond, de-
cided in 1838, to be a good charitable bequest. The
decision on this point is not contained in the regular
reports, but appears by the letters of Mr. Rush, then
minister to England, (printed in the documents re-

lating to the origin and history of the Smithsonian institution published by the institution in 1879), to have been made after full argument in behalf of the United States by Mr. Pemberton (afterward

him to such clerk for entry. And neither the officer nor the clerk is required to perform the services without a prepayment of their respective fees.

Mr. Pemberton Leigh and Lord Kingsdown, and exceptions. Assumpsit on account annexed for

on deliberate consideration by the master of the rolls. History of Smithsonian institution, 15, 19, 20, 56, 58, 62. And it was cited as authoritative in Whicker v. Hume, 7 H. L. Cas. 124, 141, 155, in which the House of Lords held that a bequest in trust to be applied, in the discretion of the trustees, "for the benefit and advancement and propagation of education and learning in every part of the world, as far as circumstances will permit," was a valid charitable bequest and not void for uncertainty.

"Schools of learning, free schools, and scholars in universities," are among the charities enumerated in the Statute of Elizabeth; and no trusts have been more constantly and uniformly upheld as charitable than those for the establishment or support of schools and colleges. Perry on Trusts, $ 700. That the gift "for the purpose of founding an institution for the education of youth in St. Louis county, Missouri," to be managed by a board of trustees, is sufficiently definite, is shown by the decisions of this court in Perin v. Carey, and Ould v. Washington Hospital, above cited, as well as by that of the House of Lords in Dundee Magistrates v. Morris, 3 Macq. 134.

The law of Missouri, as declared by the Supreme Court of that State, sustains a validity of this gift. In Chambers v. St. Louis, 29 Missouri, 543, a devise and bequest to the city of St. Louis, in trust "to be and constitute a fund to furnish relief to all poor emigrants and travellers coming to St. Louis on their way bona fide to settle in the West," which was objected to for indefiniteness in the object, as well as for want of capacity in the trustee to take, was held to be valid. And in Schmidt v. Hess, 60 Missouri, 591, a grant of a parcel of land to the Lutheran church for a burial ground was held to be a valid charitable gift, which equity would execute by compelling a conveyance to the trustees of a church which was proved to be the church intended by the testator, although it was not incorporated at the time of the gift. We have been referred to nothing having any tendency to show that the law of Arkansas, in which the lands granted lie, is different.

The money paid and the lands conveyed by Horner to Allen stand charged in the hands of Allen and his executors with the same charitable trust to which they were subject in the hands of Horner.

Steps to organize such an institution as is described in the deeds may be taken either by the attorney-general or other public officer of the State, or by individuals. Whenever an institute for the education of youth in St. Louis shall have been incorporated and shall claim the property, it will then be a matter for judicial determination in the proper tribunal whether it meets the requirements of the gift. The only question now presented is of the validity of the gift as against the donor's heirs at law and next of kin.

Decree affirmed.

ATTORNEY'S LIABILITY TO SHERIFF FOR
FEES.

MAINE SUPREME JUDICIAL COURT, AUGUST. 2, 1882.*

TILTON V. WRIGHT.

An attorney at law is liable to the officer for his fees for the service of writs delivered by him to such officer, although he is neither the plaintiff nor a party in interest; likewise to the clerk of courts for his fees on writs delivered by *Appearing in 74 Maine Reports.

fees as sheriff for the service of writs and other processes, received from the defendant, an attorney at law, amounting to one hundred and eighty-eight dollars and fifty cents. The writ also contained a count for money had and received. and was dated September 5, 1881. The jury returned a verdict for seventy-two dollars and ninety-three cents; and the defendant alleged exceptions, which are sufficiently stated in the opinion.

Folsom and Merrill, for plaintiff.

James Wright, for defendaut.

APPLETON, C. J. This is an action of assumpsit to recover fees due for the service of writs made by the defendant, and by him delivered to the plaintiff for service.

To the rulings of the justice presiding at nisi prius, various exceptions have been alleged.

1. It is insisted by the defendant, that as an attorney he was only responsible for the fees on writs handed an officer for service in suits where he was the plaintiff or the party in interest.

Writs are usually handed to the sheriff for service and to the clerk of courts for entry, by the attorney by whom they were made. The attorney has a lien on the judgment recovered, for his fees and disbursements included in the taxable bill of costs, which embraces both the service of the writ and the entry of the action. The attorney having such lien, hands the writ for service to the sheriff or to the clerk for entry. Neither the one nor the other is obliged to perform the services required, without a prepayment of their respective fees. The sheriff serving, and the clerk en. tering the action without prepayment, a promise on the part of the attorney to pay each their respective dues may be reasonably inferred, unless notice to the contrary be seasonably given.

Accordingly it has been repeatedly held, that the attorney is responsible to the sheriff and the clerk for the fees or writs handed by him to the one for service, and to the other for entry. In Tarbell v. Dickinson, 3 Cush. 245, it was held that an attorney who employs an officer to serve a writ, and gives him directions therefor, is responsible for the officer's fees for such service. In Towle v. Hatch, 43 N. H. 270, it was decided, when writs of mesne or final process are committed to the sheriff for service by the attorney who sues them out, that a promise by such attorney will ordinarily be implied unless repelled by the proof; but it is otherwise, when the writs are not so delivered by him, although he may have indorsed them. In 2 Gall, 101, an attachment was issued against an attorney, on the motion of the marshal, to compel the payment of his fees for the service of sundry writs, brought by an inhabitant of another State, but indorsed by such attorney. "We are satisfied," remarks Story, J., "that an attachment may issue to compel the payment of the fees due to the officers of the court for the performance of their official duties."

In Adams v. Hopkins, 5 Johns. 253, and in Ousterhout v. Day, 9 John. 114, it was decided that the attorney was liable to the sheriff for his fees. In Trustees of Watertown v. Cowen, 5 Paige, 510, Walworth, Chanc, says, that it has "been the uniform practice" in that State for the sheriffs, clerks, masters, registers and other officers of the several courts of record, to charge their fees to the attorney or solicitor of the party, for whose benefit the service was performed; from the uniform practice on this subject, there is an implied assumpsit by the attorney or solicitor, to pay for services done for his client in the cause, by his ex

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