Adye v. Smith.

act is as follows: "All estates that have been or shall be granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for any other public and charitable use, shall forever 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." Gen. Stat., Revision of 1875, p. 352, § 2.

Our law is more strict than the English law in this, that it requires certainty in the persons to be benefited, or at least a certain and definite class of persons with an ascertained mode of selecting them. But the law of England in those cases where the statute applies, or where the doctrine of cy pres may be invoked, does not require any such certainty. Treat's Appeal from Probate.

30 Conn. 113.

In White v. Fisk, 22 Conn. 31, the doctrine of cy pres was repudiated, as founded originally on kingly prerogative, and as inconsistent with the provisions of our statute. In that case a bequest in trust, "for the support of indigent pious young men preparing for the ministry in New Haven, Connecticut," was held void for uncertainty. CHURCH, C. J., in giving the opinion of the court. after citing the closing part of the statute, which provides that the estates given to charitable uses "shall ever remain to the uses to which they have been or shall be given or granted, according to the true intent and meaning of the grantor, and to no other use whatever," says that "to carry out this provision of the law the intention of the donor must be certain, as well as the objects of his bounty reasonably definite, and the charity confined to the very use to which it was destined."

In the case under consideration the words used to express the trust lack every element of certainty heretofore required in this State. There is no certain beneficiary, no definite class, no ascertained mode of selection, and no certainty and no limitation in the purpose of the trust except as found in the world-wide field of benevolence; a realm as broad at least as the human race, and which may embrace even the domestic animals, for such even are now justly considered the legitimate objects of human kindness and protection.

It is conceded that there is nothing in the language of the bequest we are considering to bring the case within the provisions of our statute, unless the word "benevolent," as used in the will,

Adye v. Smith.

66

is of the same import as the word charitable as used in the statute.

While it is true that there is no charitable purpose which is not also a benevolent purpose, yet the converse is not equally true, for there may be a benevolent purpose which is not charitable, in the legal sense of the term. We have already seen that the word “charitable,” as used by the English courts and the courts of the United States, has a technical meaning. Our statute was passed nearly a century after the statute of Elizabeth and after the word "charitable" had received a definite meaning from a long line of the highest judicial opinions. When therefore our legislature, in framing an act on the same subject, deliberately used the same. word to characterize the trusts they wished to protect and enforce, there can be no doubt that the word "charitable" was used in the same technical sense it had acquired under the famous act of the mother country.

This rule of construction was virtually adopted by this court in the case of Hamden v. Rice, 24 Conn. 350.

The foregoing considerations have led us to the conclusion that the apparent trust in the will, "for any and all benevolent purposes," is void for uncertainty, and that the estate in question. upon the death of the testatrix, vested in her heirs at law.

The finding shows that the trustee has made a statement of the purposes for which he intends to dispose of said funds, and if such purposes had been specified in the will it would have been valid. But no action or statement on the part of the trustee can avail in the least to cure a radical defect in the will. It is the will of the testatrix, not that of the trustee, which is to stand or fall. And to use the language of Sir WILLIAM GRANT in Morice v. The Bishop of Durham, "the question is not whether the trustee may apply the estate upon purposes strictly charitable, but whether he is bound so to apply it."

We advise that the property in dispute be distributed to the heirs at law of the testatrix.

In this opinion the other judges concurred.

Enscoe v. Dunn.

ENSCOE V. DUNN.

(44 Conn. 93.)

Exemption from attachment-trade tools.

Under a statute exempting from attachment implements of a debtor's trade, the horses and carts of one engaged in carting coal are not exempt.*

(OVENANT upon receipt to officer for property attached. The plaintiff had judgment. The opinion sufficiently states the point.

W. C. Robinson, for plaintiff in error.

L. N. Blydenburgh, with whom was S. L. Bronson, for defendants in error.

PARDEE, J. [After disposing of another point.] When the receipt was executed and delivered to the officer, Dunn, the debtor, owned five horses, six carts and six harnesses, and used them in hoisting and carting coal, one horse being driven by himself and each of the others by a hired man; and thus he obtained his living. He now claims that these horses, carts and harnesses were protected from seizure by the statute which exempts the "implements of the debtor's trade." In Atwood v. De Forest, 19 Conn. 517, this court said: "By the word trade, as used in this statute, we suppose is meant the business of a mechanic, strictly speaking, as the business of a carpenter, blacksmith, silversmith, printer, or the like." This definition is also adopted in the recent case of Seeley v. Gwillim, 40 Conn. 109.

Dunn was engaged in the transportation of merchandise. This cannot be said to be the "business of a mechanic," either by definitions from the books or by the common understanding and speech of men. A special statute has given to the physician exemption for a horse of a value not exceeding $200; and to the fisherman, for one boat owned by one person and used by him. These instances show that the law intends to keep exemptions within narrow limits; and we see no reason for conceding to the transportation of merchan dise protection for unlimited investments in horses and carts. We advise that there be no new trial.

*See Baker v. Willis, 123 Mass. 194; 25 Am. Rep. 61, and note, 63.

Linsley v. Hubbard.

Constitutional law

LINSLEY V. HUBBARD.

(44 Conn. 109.)

statute directing sale of land devised, and investment of proceeds.

A testator devised real estate to A for life, and after her death to B and others upon certain contingencies. Upon the petition of A, alleging that the property was producing a very small income, and was depreciating, the general assembly, against the remonstrance of B and the others, passed & resolution authorizing the sale of the land by specified trustees, and the investment of the proceeds for the benefit of all the parties interested according to their respective rights. Held, a constitutional and valid act.

BILL

for injunction against the sale of real estate. 'The defendant Mary L. Hubbard was the granddaughter of Chauncey Lisle, who died in 1862, leaving a will by which he devised to her a farm worth about $4,000 for her life, and upon her death in certain contingencies the same was devised to the plaintiffs. The defendant Hubbard had been in the enjoyment of the property. which produced a net income of only about $100 a year; she was 37 years old, unmarried, and supported by her relatives. April, 1875, she petitioned the general assembly, setting forth these facts, and praying a sale of the property, and the parties were all heard, the plaintiffs objecting to the sale. The general assembly by resolution directed the sale of the land by certain trustees, and the investment by them of the proceeds for the benefit of the parties according to their respective interests. The case was reserved for the advice of this court.

In

W. C. Case, for petitioners, argued, 1. The act is void because opposed to natural justice and the principles of the social compact. Cooley on Const. Lim. 36, 37, 175; Lieber on Civ. Lib. 103; Sedg. Stat. & Const. Law, 128; Taylor v. Porter, 4 Hill, 140 ; Goshen v. Stonington, 4 Conn. 225; Booth v. Woodbury, 32 id. 126; People v. Morris, 13 Wend. 328. 2. The act violates the implied constitutional restraint upon legislation. Sedg. Stat. & Const. Law, 447; Bradley v. N. Y. & N. H. R. R. Co., 21 Conn. 304. 3. The act takes private property without due process of law, the parties being sui juris. Rice v. Parkman, 16 Mass. 326; Davison v. Johannot, 7 Metc. 388; Sohier v. Mass. Gen. Hospital, 3 Cush.

Linsley v. Hubbard.

483; Clarke v. Hayes, 9 Gray, 426; Clarke v. Van Surlay, 15 Wend. 436; Cochran v. Van Surlay, 20 id. 365, 373. 4. The contingency of the interests does not deprive them of their character as property. Sedg. Const & Stat. Law, 152; Cooley on Const. Lim. 358.

L. Harrison and J. W. Alling, contra, cited Calder v. Bull, 2 Root, 350; Starr v. Pease, 8 Conn. 548; Pratt v. Allen, 13 id. 125; Richardson v. Monson, 23 id. 94; Rice v. Parkman, 16 Mass. 326; Dennison v. Johonnot, 7 Metc. 388; Sohier v. Massachusetts Gen. Hospital, 3 Cush. 496; Satterlee v. Matthewson, 2 Peters, 380; Edwards v. Pope, 4 Ill. 465; Carroll v. Lessee of Olmsted, 16 Ohio, 257; Stewart v. Griffith, 33 Mo. 19; Norris v. Clymer, 2 Penn. St. 277; Blagge v. Miles, 1 Story, 426; In re Columbian Metal Works, 3 Bankr. Reg. 75; Sutherland v. Lake Superior Ship Canal Co., 9 id. 298; Holman's Heirs v. Bank of Norfolk, 12 Ala. 369, 414; Cooley' Const. Lim. 352.

PARK, C. J. The controversy in this case calls in question the constitutionality of the resolution passed by the general assembly in the year 1875, authorizing the sale of the land in which the petitioners have a contingent interest, and the investment of the proceeds for the benefit of all parties concerned.

It is said by the petitioners that this resolution deprives them of their interest in the property against their will, and is therefore void, not only as opposed to natural justice, but as in conflict with the provisions of the Constitution of the State. It was held by this court in the case of Richardson v. Monson, 23 Conn. 94, that the statute which authorizes the sale of lands held in joint tenancy, tenancy in common, or coparcenary, whenever partition cannot conveniently be made in any other way, is constitutional. That case was ably discussed by counsel, who offered the same arguments against the constitutionality of the statute, which have been urged upon our consideration against the validity of this resolution. It is difficult to see any distinction in principle between the two cases. When a sale is made of real estate held in joint tenancy, the tenant opposed to the sale is as much deprived of his estate by the change which is made as these petitioners are of their property, by the change authorized by this resolution. In either case the parties are not subjected to a loss of their property. It is simply changed from one kind of an estate to another.

In