The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

any lands, tenements, and hereditaments, or in any personal property, to any person or corporation capable of holding the same."

Whether the board of county commissioners is such a corporation, capable of receiving and holding a devise. or bequest of property for uses in harmony with the purposes for which the board has been created, seems hardly to admit of doubt.

In Perry on Trusts, section 42, the author says: "At the present day corporations of every description may take and hold estates, as trustees, for purposes not foreign to the purposes of their own existence; and they may be compelled by courts of equity to carry the trusts into execution."

In section 43 of the same work, it is said: "If the trusts are within the general scope of the purposes of the institution of the corporation, or if they are collateral to its general purposes, but germane to them, as if the trusts relate to matters which will promote and aid the general purposes of the corporation, it may take, and hold, and be compelled to execute them, if it accepts them. Thus towns, cities, and parishes may take and hold property in trust for the establishment of colleges, for the purpose of educating the poor, for the relief of the poor, and for the support of schools, or for any educational or charitable purposes within the scope of its charter."

The general purposes of the organization of the board of commissioners must be sought in the constitution and in the statutes of the State.

By section 10, article 6, of the constitution: "The General Assembly may confer upon the boards doing county business in the several counties, powers of a local, administrative character."

By section 3, article 9, the constitution provides that:

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

"The county boards shall have power to provide farms. as an asylum for those persons who, by reason of age, infirmity, or other misfortune, have claims upon the sympathies and aid of society.'

By section 8163, R. S. 1894 (section 6087, R. S. 1881), and following sections, the Legislature has exercised these constitutional powers, and county boards are invested with the supervision of matters relating to the poor, including the purchase of land in the name of the county for an asylum.

Aid is also authorized in numerous special cases to care for helpless and unfortunate persons.

By section 4596, R. S. 1894 (section 3508, R. S. 1881), and following sections, county boards may grant aid to voluntary orphan asylums, or may purchase homes for such asylums.

By section 7878, R. S. 1894 (section 1954, Elliott's Supp.), they are expressly authorized to appropriate not to exceed twenty-five thousand dollars to aid in "establishing a home for worthy, indigent old women," whenever a like amount "has been given, devised or bequeathed in trust" for that purpose.

The trust provided for in the will of Maria Dinwiddie, was "to establish a home for the benefit of worthy persons who have no home, and orphan boys where they can be learned to work and be made self-supporting, the home limited in number to as many as the farm will comfortably support, it is not to be called a poor house, but

a home where worthy, unfortunate persons can be enabled in a measure to support themselves."

It would seem, from the provisions of the statute, and the constitution, that such a trust is "within the general scope of the purposes" for which the county board was instituted. But even if collateral to the general purposes of the board, it is certainly germane to them;

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

for the trust relates to matters which will promote and aid those general purposes, namely, the care of those who, as the constitution so beautifully states it, "have claims upon the sympathies and aid of society."

But the question raised by counsel is hardly an open one in this State. In Craig, Admr, v. Secrist, 54 Ind. 419, it was held that a county has the legal capacity to take a devise of the property of a testator, as a permanent fund, the income from which is to be used in educating the colored children of the county. In Board, etc., v. Rogers, 55 Ind. 297, the devise was of real estate "to the commissioners of the county of LaGrange, aforesaid, and their successors in office, forever,

in

trust and for the use and benefit of the orphan poor, and for other destitute persons, of said county." This devise, which was held good, was very much like that in the will before us. Both the foregoing cases were approved in the case of Skinner v. Harrison Tp., 116 Ind. 139. The devise in the latter case was also of real estate, and was made to a township for the use of the common schools of the township. MITCHELL, J., said in that case: "A municipal corporation may be a trustee under the will of an individual when the trust created is germane to the purposes for which the corporation was called into being, and when the administration of the trust, and the liabilities it imposes, are not foreign to the objects for which the corporation was instituted." Citing many authorities, including 2 Dill. Munic. Corp.,

section 567.

But it is said that the will of Maria Dinwiddie names as beneficiaries persons not confined to Rush county, whereas the jurisdiction of the commissioners who are named as trustees does not extend beyond the limits of the county. Since the testatrix made choice of the commissioners of the county as her trustees, it may be rea

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

sonably inferred that she thus intended to limit the beneficiaries to "worthy persons who have no home, and orphan boys," resident, or at least present, within the limits of the county.

Besides, it is the law "that a gift of charity is maintainable in this State, if made to a competent trustee, and if so defined that it can be executed as made by the donor by a judicial decree, although the beneficiaries are not designated by name or specifically pointed out, if the trustee is invested with full and ample discretion to select the beneficiaries of such charity from the class of persons named." Grimes' Exrs. v. Harmon, 35 Ind. 198. The trustees in this case before us are competent, as we have seen, and to them is all discretion given, as to the selection of the beneficiaries from the class named, as well as in everything else relating to the home. The commissioners, as her trustees, are expressly declared by her to be "the judges of what is necessary, they to be held by the county responsible for the judicious management of all trust committed to them." The commissioners being thus made the judges of whatever is to be done in relation to the trust, must therefore select out of the class of "worthy persons who have no home, and orphan boys," such persons as they may deem most fitted for the home, and most needful of its advantages.

They must not be "dissipated or wicked persons"; and they must be "limited in number to as many as the farm will comfortably support." Otherwise, the commissioners, "responsible for the judicious management of all trust committed to them," are charged with the duty of making a proper selection. They may, therefore, confine their choice to inhabitants of Rush county; as was, perhaps, the intention of the testatrix in selecting the county commissioners as her trustees. Yet, it is not the part of the court to set bounds to the generous be

The Board of Commissioners of Rush Co. et al. v. Dinwiddie et al.

nevolence of the testatrix; and we perceive nothing in the broad charity of the will, nothing in the duties of the commissioners as fixed by statute, that would forbid their receiving as inmates of the home any suitable members of the designated class who should present themselves before the board. The fund to be disbursed is not raised by taxation, but is the free bounty of the founder of the charity.

The important matter is, that the commissioners themselves are made the judges of what is necessary," in this, as in all other matters relating to the trust.

Woodruff v. Marsh, 63 Conn. 125, is a late case in point, and, as counsel well say, "is entitled to consideration for the reason that Connecticut has followed, to a great extent, the same doctrine that Indiana has," in relation to charitable uses and trusts. The bequest, in that case, reads: "And also the sum of four hundred thousand dollars, for the purpose of maintaining and supporting a home for destitute and friendless children, permanently, on the above described premises, and to be known as the 'William L. Gilbert Home'; the same to be under the care and control of the above-named persons as trustees."

It was contended by the heirs at law in that case, as it is in this, that the devise and bequest was "void for indefiniteness, uncertainty, and the absence of any grant of power to select the beneficiaries."

The words "care and control," used in that will, are the only words which could give the trustees the right to select the beneficiaries. The court held that the "care and control" given to the trustees was not limited to the fund but extended to the institution, and that this control of the institution involved the power to select the individuals who should receive the benefit of it.

In that case the trust was for "destitute and friendless