tion, unless there be some objects or class of objects mentioned by the testator.

How stands the law in America? Uniformly against it. Fontain v. Ravenel, 17 How. 369. The testator authorized his executors, or the survivor of them, after his wife's death, "to dispose of the same (the rest and residue) for the use of such charitable institutions in Pennsylvania and 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 shall partake of the benefits thereof." The wife survived all the other executors several years, but neither they nor she disposed of the fund to any such institutions, but she distributed it as undisposed of property, after the death of her coexecutors. After her death, the testator's administrator, de bonis non, brought a bill against her executor for certain charitable socioties of Pennsylvania and South Carolina, to recover the property the widow had so disposed of. Held, that even if such a power to these particular persons, by the testator, could be executed by the Chancellor in England, it could not be by any court in the United States, and that the court could not take the fund from the next of kin. And see an elaborate discussion of the subject in Grimes v. Harmon, 35 Ind. 198. Beekman v. Bonsor, 23 N. Y. 298. The bequest was in these words: "After the expiration of ten years, or sooner, if my executors find that there will be sufficient funds, I would wish a public dispensary, as in New York, on a similar plan, for indigent persons, both sick and lume, to be attended by a physician elected to the establishment, at their own houses, and also daily at the dispensary; my executors to consult judicious men in Albany, respecting the same, and funds enough to carry on the building and yearly expense; and should there be any overplus, my executors within fifteen years may give it to any other charitable society or societies for relieving the comfortless and indigent they shall select." The executors renounced the trust. Held, that even if the bequest were valid, if they had carried it out, yet having renounced the trust it could not be administered by judicial authority, but only by the prerogative power, which did not exist in New York. A bequest of money to the executors, to be applied by them "to such charitable societies for indigent

VOL. XXXVI.-30

and respectable persons, especially females and orphans, as they in their discretion shall think of," was held to fail if the executors renounced the trust and discretion reposed in them. See also Lepage v. McNamara, 5 Iowa, 124, before stated. So in Zeisweiss v. James, 63 Penn. St. 465 (1870), it was held that although a devise to indefinite charities may be good, if a trustee be named, clothed with discretionary power to carry out the general purposes of the testator, yet if such trustee die or resign, and there is no provision made by the testator for the continuance of the trust, the charity must fail, since the discretion of the first trustee cannot be assumed by the court, nor reposed in a trustee of their selection: and Fontain v. Ravenel, 17 How. 369, was fully approved, on p. 469. Bristol v. Bristol, 53 Conn. 242, is also directly in point. The language of Judge GRAY, in the exhaustive opinion in Jackson v. Phillips, 14 Allen, 576, appears to be in conformity with this view, in which he says: "The second class of bequests which are disposed of by the King's sign manual, is of gifts to charity generally, with no uses specified, no trust interposed, and either no provision for an appointment, or the power of appointment delegated to particular persons who die without exercising it. Boyle on Charities, 238, 239; Attorney-General v. Syderfen, 1 Vern. 224; s. c. 1 Eq. Cas. Abridge. 96; Attorney-General v. Fletcher, 5 Law. J. (N. S.), Ch. 75."

No doubt if the trustee accepts and is still living, a court of equity could compel him to execute the trust and make a selection, and would not allow him to keep the fund himself: Bartlett v. Nye, 4 Met. 378; Tainter v. Clark, 5 Allen, 66. They could order him to report a scheme as in Cook v. Duckinfield, 2 Atk. 562; Pocock v. Attorney-General, 3 Ch. Div. 342, and many other cases. But they could not remove him and appoint another trustee to do it, nor do it themselves, upon a scheme suggested by the Attorney-General. They would have no right to substitute another man's discretion for that of the trustee named, whether it be that of a new trustee, a master of chancery, an attorney-general, or the court. It is elementary law that a power of trust which is purely personal cannot be exercised by another: Tainter v. Clark, 13 Met. 220; Down v. Worrall, 1 M. & K. 561. There being, therefore, no method in America

by which a fund so given can be applied to any charitable purpose, and the trustee named not having any personal interest in it, it must go to the heirs at law or next of kin, as intestate

estate.

Boston.

EDMUND H. BENNETT.

RECENT AMERICAN DECISIONS.

Supreme Judicial Court of Maine.

WOODMAN v. PITMAN AND OTHERS.

Neither the right of traveling upon the ice of a river affected by the tide, nor the right of taking ice therefrom, is an absolute property right in any person. Both are natural or common rights, belonging to the public at large. Though such rights are theoretically open to all, those persons who first take possession of them are entitled to their enjoyment without interference from others, such rights being the subjects of qualified property by occupation.

Each right is relative or comparative, and, when conflicting with the exercise of the other right, is itself to be exercised reasonably. What would be a reasonable exercise of the one or the other, at any particular place, must depend largely upon the benefits which the people at large are to receive therefrom.

The right of passage over the ice for general travel is not the paramount right at such a place as the Penobscot river at Bangor, and for some distance below, where the great body of the ice is annually harvested for the purposes of domestic and foreign trade; the traveler's privilege at such place being of trifling consequence, compared with other interests conflicting with it, and beset with difficulty and danger during the ice-cutting season.

It is the duty of those who appropriate to their use portions of a public river for ice-fields to so guard their fields, after they have been cut into, as not to expose to danger any persons who may innocently intrude upon them.

Although the defendant may have been in fault in leaving his ice-field unprotected against accident, yet, where the plaintiff's servant, knowing the customs of ice-gatherers, willfully left the usual driven track, and drove over a bank of snow by the side of the defendant's ice-field, knowing that he was going upon an ice-field, and that it was dangerous to do so, he was guilty of contributory negligence, and the plaintiff cannot recover for injuries to his property.

Ox motion by defendants from Supreme Judicial Court, Penobscot county.

Action on the case to recover damages to plaintiff's property because of alleged negligence of defendants. The verdict was in favor of the plaintiff, and the defendants filed a motion for new trial. The opinion states the material facts.

C. P. Stetson, for plaintiff.

Wilson & Woodward, for defendants.

PETERS, C. J.-This case largely depends for its solution upon what may be the extent of the right to harvest ice from our large rivers, compared with the conflicting right of traveling upon such rivers during the winter season. This is an interesting topic of inquiry, in view of the importance which ice has lately assumed as a merchantable commodity, and is a branch upon which the law has as yet hardly passed beyond a formative period. The inexhaustible and ever-changing complications in human affairs are constantly presenting new questions and new conditions which the law must provide for as they arise; and the law has expansive and adaptive force enough to respond to the demands thus made of it, not by subverting, but by forming new combinations and making new applications out of its already established principles, the result produced being only "the new corn that cometh out of the old fields."

Neither of the rights which seem in conflict in the present case, that of harvesting ice and that of traveling upon the ice, is absolute in any person. No one has any absolute property in either. They are derived from a natural right which all have, to enjoy the benefit of the elements, such as air, light, and water, and are common or public rights, which belong to the whole community. In the Roman law they were classified as “imperfect rights." Not that all persons can or do enjoy the boon alike. Much depends upon first appropriation. One man's possession may exclude others from it. Says Blackstone (2 Comm. 14): "These things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterward." They are the subjects of qualified property by occupation: 2 Kent, Comm. 348.

Each right is in theory, speaking generally, relative or comparative. Each recognizes other rights that may come in its way. Each must be exercised reasonably. And what would be a reasonable exercise of the one or the other, at any particular place (for, clearly, there would be a difference in the relative

importance of the different rights in different localities), depends in a large degree upon the benefits which the community derive therefrom. The public wants and necessities are to be considered. The two kinds of franchise belong to the people at large, are owned in common, and the common good of all must have a decisive weight on the question of individual enjoyment.

These, and all other public rights, and the relation that shall subsist between them, when not thereby trenching upon congressional jurisdiction, may be regulated by the legislature. The legislature is the trustee of the public rights for the people. And, as such agent or trustee, the legislature of this State has gone a great way in abridging an individual enjoyment of some of the common rights and privileges possessed by society, when the legislation has presumably inured to the common good. It authorized the changing of the channel of the Saco river, although the effect of the diversion was to impair the value of a good deal of private property (Spring v. Russell, 7 Me. 273); has allowed private interest to be subserved to the injury of other private interests, by permitting dams and mills to be erected which prevented the flow and ebb of the tide, upon the ground that the public as a whole were to be benefited thereby (Parker v. Cutler Mill- Dam Co., 20 Me. 353); has granted to a single individual, the exclusive right of navigating Penobscot river above the tide with steamers, for a period of 20 years, for the consideration of improvements to be made in the navigation of the river by the grantee (Moor v. Veazie, 31 Me. 360; 32 Id. 343; 14 How. 568). These are illustrations of the legislative power in such matters.

The legislature has the constitutional authority, no doubt, to provide rules regulating the possession and cultivation of the ice-fields upon our navigable rivers, where the tide ebbs and flows, at all events so far as the business is carried on below low-water line, and for the adjustment of conflicting interests which may affect that privilege. If it omits to do so, such matters necessarily become the subjects of judicial interpretation. While the judicial is not co-extensive with the legislative jurisdiction upon the questions, there can be no doubt that it is within the scope of judicial authority to determine the manner in which such public privileges may be best enjoyed by the