§ 210. Foreign corporations as landowners.-On a question whether a foreign corporation is entitled by its charter to hold land in a particular state, the court will give its own construction to the charter and will be governed by the decision of the courts of the state under whose laws the corporation was created only so far as the reasons upon which they were founded entitle them to consideration.' But a state may place whatever restrictions it pleases upon the power of foreign corporations to hold lands, or may prohibit such holding entirely." And where a corporation is prohibited from owning land directly in a state, it cannot exercise ownership indirectly as by obtaining a majority of the stock of a domestic corporation. But a corporate deed in a chain of title though executed by a foreign corporation will be presumed to be valid though made by a foreign corporation.*

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If the charter of a foreign corporation does not permit it to acquire real estate by ordinary methods, it cannot take it by devise in another state. But where the laws of the state where a devise to a foreign corporation is made allow it, it is valid notwithstanding a prohibition in its charter or in the laws of the state of its creation.6

1 Boyce v. City of St. Louis, 29 Barb. 650; Nicholson v. Leavitt, 4 Sandf. 276; White v. Howard, 38 Conn. 342; Com. v. N. Y. L. E. & W. R. Co., 114; Pa. St. 340; 1 Ry. & Corp. L. J. 108; 7 A. 756.

2 It was held that statutes authorizing railroads to take land for their right of way do not apply to foreign corporations. Holbert v. St. K. C. & N. R. Co., 45 Ia. 23. An educational institution chartered in another state not having a capital stock was held not prohibited from owning real estate in Illinois within the terms of sec. 26 Ill. corporation act of 1872. Santa Clara Fem. Acad. v. Sullivan, 116 Ill. 375; 6 N. E. 183.

3 Com. v. N. Y. L. E. & W. R. Co., 114 Pa. St. 340.

4 Tarpey v. Deseret Salt Co., (Utah) 17 P. 651.

5 Boyce v. St. Louis, 29 Barb. 650; Starkweather v. Am. Bible Soc., 72 Ill. 50. 6 Am. Bible Soc. v. Marshall, 15 O. St. 537. Thompson v. Swoope, 24 Pa. St. 474; Sherwood v. Am. Bible Soc., 4 Abb. App. Cas. 227. And though duly authorized by its charter, if contrary to law of the state where made, the devise

$211. Capacity to hold as trustee. Title as cestui que trust. -It seems that in England a corporation cannot assume to designate an agent to perform the duties of an executor or administrator with the will annexed under an

appointment as such.1 But with respect to trusts which are not strictly matters of personal confidence, the former rule has been relaxed and corporations may now take property in trust for others where they might take it directly and absolutely for their own purposes. "Where a corporation has legal capacity to take real and personal estate, then it may take and hold it upon trust in the same manner and to the same extent as a private individual may do." 2

If property be granted to a corporation in trust partly for itself and partly for another corporation, it may hold it and execute the trust. And one incorporated mission society may take and hold property in trust for another.4

It was settled by the early decisions in this country, that corporations might execute trusts of a religious and charitable nature if consistent with the objects of their creation.5 And equity will not allow a trust to

is void. See United States v. Fox, 94 U. S. 315, holding a devise of land to the government of the United States to be void.

1 Georgetown College v. Brown, 34 Md. 450; Matter of Thompson, 33 Barb. 334.

2 Vidal v. Girard's Exrs., 2 How. 127, 187, per Justice Story. A bequest of all the residue of the testator's estate to trustees, to be converted into personalty, and the income derived therefrom to be paid to the board of water commissioners of Detroit, or their successors, to be used by them in beautifying and improving the grounds whereon the water works are situated, and for the maintenance of a library, is valid; being a trust of which the subject, the beneficiaries, and the purpose are clearly defined, and the beneficiaries having been expressly authorized by the legislature to accept and expend the fund arising thence. Penny v. Croul, 76 Mich. 431; 43 N. W. 649.

3 Matter of Howe, 1 Paige, 214. See In re Tweed, 12 N. Y. S. 642. + Sheldon v. Chappel, 47 Hun, 59.

5 Robertson v. Bullions, 11 N. Y. 243; Chaplin v. School Dist., etc., 35 N. H. 445; Phillips Academy v. King, 12 Mass. 546. A township being a distinct municipal corporation, with power to receive and expend funds coming into its possession, for school purposes, a devise to it for the support of the common

fail merely because a corporation appointed as trustee is incompetent from lack of legal capacity to execute the trust. The court will appoint a proper trustee to carry it out.1

§ 212. Must have capacity to execute the trust.—Notwithstanding the general rule that whoever is capable of taking the legal title or beneficial interest in property may take the same in trust for others, it does not follow that such party is capable of performing or executing the trust. The ability or competency to execute the trust is the real test in determining whether a corporation may take. If, for instance, the law does not allow aliens and non-residents to become trustees, the prohibition would apply to foreign corporations, though the latter be authorized to purchase real estate for its necessary uses. The general rule of qualification and capacity of corporations as trustees applies and

schools is germane to the purpose of its creation, and is not void for want of capacity in the devisee to hold. Skinner v. Harrison, 116 Ind. 139; 18 N. E. 529. The charter of the North American Relief Society for the Indigent Jews in Jerusalem contains by implication power to ameliorate their condition by the contribution of money for the purposes of education, and hence it can take money left it by will for that purpose. Riker v. Leo, 1 N. Y. S. 128.

A legacy of $30,000 "to the trustees of Bloomfield Academy to be appropriated at their discretion in founding a free public library in the town of Showhegan," is vested absolutely in the donee. Dascomb v. Marston, (Me.) 13 A. 888.

Where land was given an association to establish a school, and the association built on it, and afterwards obtained a charter, which was allowed to lapse, it was held that the obtaining of the charter put the association in abeyance, and at its expiration the land revested in the members of the association, and did not revert to the donor. Bates v. Palmetto Soc., (S. C.) 6 S. E. 327.

Testator gave legacies to named educational and charitable institutions, and provided for the accumulation of a trust fund, from the income of which onequarter should go to "educational institutions similar to those mentioned,” and one-quarter to "charitable institutions similar to those mentioned." Held, that it is for the trustee to decide to which of similar institutions the fund should be distributed, and the proportions to be given to each. Rhode Island Hospital Trust Co. v. Olney, (R. I.) 13 A. 118.

1 Infra, Ch. 37. Story Eq. Jur., secs. 98, 976; McCarter v. Orphan Asylum Soc., 9 Cow. 437; Crocheron v. Jaques, 3 Edw. 207; Bundy v. Bundy, 28 N. Y. 410; Perry on Trusts, 38.

determines who and in what cases they may be cestuis que trust and a corporation may be a beneficiary in a trust estate where it could legally acquire and hold the legal title.

A simple bequest of money to be paid to a foreign corporation is valid even if the law of the state where the will is made forbids the execution of such a trust as that, for which the corporation is created.1

They cannot evade statutory limitations upon their right to take the legal title to lands by taking the legal title to trustees and the beneficial interest to themselves.2

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§ 213. A liberal rule with respect to charitable trusts.But to this rule there is an important exception in favor of charitable trusts. A limitation of one charity upon another is not an infringement of the rule against perpetuities. In these the cestuis que trust are not and need not be capable of taking the legal title, as when property is given in trust for the poor of a parish or for the education of youth, or for pious uses, or for any charitable purpose. The beneficiaries are generally unknown, uncertain, changing and incapable of taking or dealing with the legal title. Such trusts are valid in equity; and courts of equity will administer them and protect the rights of the cestuis que trust.1

1 Trustees Presby. Ch. v. Guthrie, 6 L. R. An. 321; 86 Va. 125; Bank of Augusta v. Earle, 13 Pet. 521; Cowell v. Colo. Spgs. Co., 100 U. S. 55. 2 Hill on Trustees, 52; Lewin on Trusts, 36.

3 Storrs Agr. School v. Whitney, 54 Conn. 342; 8 A. 141; so a conveyance of land to the trustee of an incorporated religious society, to be used for the erection of a church building, does not violate the statutes against suspension of the power of alienation, for the reason that such trustees are within the meaning of the statutes, "persons in being, by whom an absolute fee in possession" could at any time be conveyed through the agency of the circuit court, as prescribed in the statutes. Fadness v. Braunborg, 73 Wis. 257.

"It is immaterial how uncertain, indefinite, and vague the cestuis que trust or final beneficiaries of a charitable trust are, provided there is a legal mode of rendering them certain by means of trustees appointed or to be appointed. In

§ 214. How affected by doctrine of cy pres.-The doctrine of cy pres has an important bearing upon all be

other words, it is immaterial how uncertain the beneficiaries or objects are, if the court, by a true construction of the instrument, has power to appoint trustees to exercise the discretion or power of making the beneficiaries as certain as the nature of the trust requires them to be. Uncertainty as to the individual beneficiaries is characteristic of a charitable use." Beckwith v. St. Phillips Parish, 69 Ga. 564; Miller v. Atchinson, 63 N. Car. 537. See also McLain v. School Directors, 51 Pa. St. 196. In order that a bequest to a town for the purpose of investing the principal and applying the income to a specific object may take effect as an absolute gift to the town, the gift must be made for some one or all of the purposes for which the town was incorporated; and where it is under no legal liability to support persons who do not come within the statutory definition of poor persons, a bequest "for the support of the poor of the town' cannot take effect as an absolute gift to the town. Reversing 8 N. Y. S. 772. RUGER, C. J., and FINCH and GRAY, JJ., dissenting, Fosdick v. Town of Hempstead (N. Y.) 26 N. E. 801; State v. Griffith, 2 Del. Ch. 392. A bequest to the Am. Bible Soc. .

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to be used by the said society for

the promulgation of the Holy Bible," is not void as a gift in trust, without a definite or ascertainable beneficiary capable of enforcing the trust, since the gift was limited to the precise use for which the society was incorporated. In re Look, 54 Hun, 635; 7 N. Y. S. 298. See also Wetmore v. N. Y. Inst. for the Blind, 18 N. Y. St. R. 732; 3 N. Y. S. 179; Riker v. Leo, 115 N. Y. 93; 21 N. E. 719; Rev. St. Wis. 1849, c. 57, sec. 11, subd. 5, provided that "express trusts may be created for . the beneficial interest of any person or persons, when such trust is fully expressed," etc. Held, that a conveyance to the trustees of an incorporated religious society, for the use of the "members" sufficiently designated the beneficiaries. Fadness v. Braunborg, 73 Wis. 257; 41 N. W. 84. A devise to a lodge of Odd Fellows "for the benefit of the widows and orphans," is for the widows and orphans of deceased members of that lodge, and is sufficiently definite to be sustained as a charity. Heiskell v. Chickasaw Lodge, 3 Pickle, Tenn. 668; 11 S. W. 825; Wood v. Hammond, (R. I.) 17 A. 324; App. of Goodrich, 57 Conn. 275; 18 A. 49.

A bequest to the "trustees and managers of the Phil. Water Works" for the benefit of the corporation is invalid, such a bequest not being for a public charity, and there being no corporation of that name, as the water works are owned and managed by the city of Phil., which will not be presumed to be the object of the bounty. Doughten v. Vandever, 5 Del. Ch. 51. A legacy to the "Fund for Disabled Ministers of the Presby. Ch." will go to the "Presby. Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Ministers," where it appears that the latter title is the name of the only corporation engaged in relieving Presby. Ministers; that testatrix knew and approved of this corporation; and that there was no such corporation or society as that named in the will. Woman's Un. Miss. Soc. v. Mead, 131 Ill. 33; 23 N. E. 603. A testatrix bequeathed legacies to the "trustees of the Orphans' Asylum of Phil. in the State of Penn.," the "trustees of the Widows' Asylum" of the same place, and to the "trustees of the Marine Soc." of the same city and state, for the benefit of those various institutions. Held, that these bequests were for