undoubtedly for a charitable object, in Staines v. Burton (1898) 17 Utah, 331, 70 Am. St. Rep. 788, 53 Pac. 1015, where the court stressed the fact that the church members comprised almost the entire population of the territory, which was in a very arid condition, and observed that the enterprises which the testator wished to foster and aid by his bounty were the ones upon which advancement, prosperity, and welfare of the people largely depended.

The view that a bequest for a children's playground in a public park, with buildings, appliances, and attendants, was for a charitable use, was taken in Smith's Estate (1897) 181 Pa. 109, 37 Atl. 114, approving the lower court's statement (in connection with this bequest and one for a monumental arch as a Civil War memorial) after it had referred to the playground as furnishing "a secure place for the comfort and gratuitous healthful amusement and recreation of young children, amid pure and attractive rural surroundings, removed from the dangers of the streets and contaminated atmosphere of a great city," that it could not conceive any more strictly charitable use than the purposes and objects contemplated by the testator.

In

Richardson v. Essex Institute

(1911) 208 Mass. 311, 94 N. E. 262, 21 Ann. Cas. 1158, in connection with the gift of a house or museum in trust for public use, a botanical garden was also given, the grounds being adapted

for

the

use as a small public park, and Court observed that it was well

settled that a gift for a public park constituted a public charity.

public park," in Lester v. Jackson (1892) 69 Miss. 887, 11 So. 114.

And gifts for public parks were upheld as valid charities in Burbank v. Burbank (1890) 152 Mass. 254, 9 L.R.A. 748, 25 N. E. 427; Re Bartlett (1895) 163 Mass. 509, 40 N. E. 899; and Williams v. Oconomowoc (1918) 167 Wis. 281, 166 N. W. 322. See also McKeritt v. Sacramento (1921) 55 Cal. App. 117, 203 Pac. 132, hearing denied by supreme court in (1922), as recognizing that such a gift would be valid; and Wachovia Bkg. & T. Co. v. Ogburn (1921) 181 N. C. 324, 107 S. E. 238, supra.

Property which was held in trust by the city under a will which provided that the income thereof should be applied to the maintenance and improvement of the common and parks in that city was declared in Burr v. Boston (1911) 208 Mass. 537, 34 L.R.A. (N.S.) 143, 95 N. E. 208, not to

be

subject to taxation, since it was held under a public charitable trust. A city was held to be entitled to hold property outside of its territorial limits, which was left to it "for a

In Lackland v. Walker (1899) 151 Mo. 210, 52 S. W. 414, it was conceded that the devise to a city of property for a botanical garden, with a museum and library connected therewith, created a charitable trust.

And in Noice v. Schnell (1922) N. J. Eq. 137 Atl. 582, reversing (1926) N. J. Eq. 134 Atl. 81, a bequest to trustees to maintain and develop a section of the Palisades along the Hudson river, in accordance with testator's known wishes, was held to constitute a valid charitable trust.

In sustaining the validity, as a charity, of a bequest for the erection in a public park of a "tabernacle or coliseum . suitable for the innocent pleasures and comforts of people resorting to said park," and construing testator's purpose as being for the erection of a building for public gatherings of all proper kinds, it was said in Lightfoot v. Poindexter (1917) Tex. Civ. App., 199 S. W. 1152, that, if ground for a park could be given, certainly money for the purpose of erecting a building on the ground of the park could be given.

A devise to a city for park purposes was declared valid, in view of a statute expressly authorizing such gifts, in Re Battershall (1907) 10 Ont. Week. Rep. 933.

A direction to trustees to apply a residuary estate to "afforestation on the making of domains or national parks in New Zealand" was held, in Re Bruce [1918] N. Z. L. R. 16, as reported in 8 Eng. & Emp. Dig. p. 260, to be a good charitable gift, being for

a sufficiently definite purpose of public utility.

And a bequest in which the testator mentioned a botanical garden, as one example of what was in his mind as an object of his bounty, was upheld in Harrison v. Southampton (1854) 2 Smale & G. 387, 65 Eng. Reprint, 448.

But see Wilcox v. Atty. Gen. (1911) 207 Mass. 198, 93 N. E. 599, Ann. Cas. 1912A, 833, holding that a testator's purpose of converting his homestead into a park or playground, which was communicated to his trustee, but merely referred to in the will, could not be enforced.

And see Townley v. Bedwell (1801) 6 Ves. Jr. 194, 31 Eng. Reprint, 1008, holding to be void a trust created for the purpose of establishing a perpetual botanical garden, where the testator merely expressed the hope that it might be of public benefit, but failed to declare a use for anyone.

III. Fire protection.

A bequest to a town or its citizens for a fire engine was held to be a gift for a charitable use, in Magill v. Brown (1833) Brightly, 346, note, Fed. Cas. No. 8,952.

In a few cases, such as Bethlehem v. Perseverance Fire Co. (1876) 81 Pa. 445, property acquired by volunteer fire companies, in part at least by subscriptions, has been regarded as held for a charitable use; and in a number of cases, as in Fire Ins. Patrol v. Boyd (1888) 120 Pa. 624, 1 L.R.A. 417, 6 Am. St. Rep. 745, 15 Atl. 553, fire companies supported by voluntary contributions have been held to be public charities, upon the ground that their purpose was to save life and property in burning buildings.

A bequest to a village hose company, which was organized to aid in suppressing fires and was named for testatrix's father, the income "to be devoted to the reasonable and proper use of said company for whatever purpose its members, acting as an organization, may see fit to direct," was held in Sherman v. Richmond Hose Co. (1921) 230 N. Y. 462, 130 N. E. 613, to have been given for a charitable purpose, the court declaring that it

was for the advancement of an object of general public utility, and that it carried the implication of a public benefit. In view of the dissolution of this company when the village became a city and a paid fire department was substituted, it was held that the fund was impressed with a public trust in favor of the city for fire protection. One dişsenting judge took the view, however, that the testatrix's purpose was to create a memorial fund, in honor of her father; while another, considering the gift to have been made for the benefit of the members of the company individually, observed that it was as much a social organization as a public utility.

Wanganui v. Wanganui Fire Bd. [1919] N. Z. L. R. 763, is reported in 8 Eng. & Emp. Dig. 260, as holding that a charitable trust of a public nature was created by a conveyance by trustees to a borough "for municipal fire purposes," upon the disbanding of a volunteer fire brigade for which the land had been held in trust.

But upon the ground that no gift had been made anyway, and further that the company's service to the public was merely incidental, and that accordingly it did not come within a statutory definition of a public charity, the view was taken in Neptune Fire Engine & Hose Co. v. Board of Education (1915) 166 Ky. 1, 178 S. W. 1138, Ann. Cas. 1917C, 789, that land which the company had acquired belonged, after its dissolution, to its surviving members, free of any trust. And see the dissenting opinion of Sherman v. Richmond Hose Co. (N. Y.) supra.

IV. Paving, cleaning, and lighting
streets.

Declaring in Franklin v. Philadelphia (1893) 2 Pa. Dist. R. 435, 13 Pa. Co. Ct. 241, supra, that Dr. Franklin's provision that the entire accumulations of his fund at the end of two hundred years should be "divided between the inhabitants of the city of Philadelphia and the government of Pennsylvania" was not a gift to individuals, but to the government for the benefit of all the people, the court observed that

there was no better way of securing good government than by furnishing revenue to enable it to pave, clean, and light its streets, preserve the peace, lives, and property of the inhabitants, and make people secure in the pursuit of happiness, and noted the similarity of this provision to that of the Girard will for the improvement of certain streets, the distribution of Schuylkill water, and the application by the city to provide for the security of persons and property by a competent police, to improve the general appearance of the city and diminish the burden of taxation.

In regarding as a charity a grant "for divers public uses and purposes for the improvement of [a city], and the preservation and support of several public buildings, bridges, highways, and establishments therein," the court, in Gort v. Atty. Gen. (1817) 6 Dow, P. C. 136, 3 Eng. Reprint, 1424, was apparently influenced by the fact that repairing, cleaning, and lighting the streets were among the purposes for which the city had long used other

grants.

And it was held in Atty. Gen. v. Heelis (1824) 2 Sim. & Stu. 67, 57 Eng. Reprint, 270, that, by virtue of an act of Parliament dedicating land for the improvement of a town, the funds given for paving, lighting, cleaning, and improving a town were charitable funds, to be administered by a court of equity.

V. Repair and construction of highways,

bridges, walls, etc.

A devise to a town of property the interest of which was to be laid out in repairing highways and bridges was upheld as a public charitable gift in Hamden v. Rice (1856) 24 Conn. 350. And in holding that a gift (by William Penn) of land to trustees for the use and benefit of the inhabitants of a town constituted a charitable use or trust, the court in New Castle Comv. Megginson (1910) 1 Boyce (1910) 1 Boyce

mon

(Del.) 361, 77 Atl. 565, Ann. Cas. 1914A, 1207, referring to the Statute of Elizabeth, said that a trust to make highways, or build bridges, would be a charitable use upon the same prin

ciple as one for repairing highways or bridges; and it further enumerated as valid objects the erection of public works or buildings, public streets, and any other form of municipal improvement.

And a bequest for building a bridge was regarded as a charity in Forbes v. Forbes (1854) 18 Beav. 552, 52 Eng. Reprint, 216.

A grant for the "reparation, amendment, and fortification of the bridges, gates, towers, and walls" of a town was held to be a gift for charitable uses in Atty. Gen. v. Shrewsbury (1843) 6 Beav. 220, 49 Eng. Reprint, 810, in view of the inclusion in the Statute of Elizabeth, among such gifts, of those for "repair of bridges, ports, havens, causeways, seabanks,

and highways." See also Re Hall (1851) 14 Beav. 115, 51 Eng. Reprint, 230, where the repair of a bridge was one of the purposes for which the charity was established. A gift for the repair of highways was apparently regarded as a charity as early as Collison's Case (1617) Hobart, 136, 80 Eng. Reprint, 286; and see Eltham v. Warreyn (1734) Duke (Eng.) 67, as reported in Duke on Charitable Uses at page 641. And a grant of an impost for preventing the encroachment of the sea, by impairing or rebuilding buttresses, was so regarded in Atty. Gen. v. Brown (1818) 1 Swanst. 265, 36 Eng. Reprint, 384, 1 Wils. Ch. 323, 37 Eng. Reprint, 138. But doubt as to whether the Crown could make a grant for repairing the pavement and walls of a town was expressed in Atty. Gen. ex rel. Blake v. Galway (1829) 1 Molloy (Ir.) 95.

Repairing conduits and maintaining bulwarks, fortifications, and munitions were included among the purposes for which property was held to have been deeded to a town for charitable uses, in Atty. Gen. v. Dartmouth (1883) 48 L. T. N. S. (Eng.) 933. A grant for the repair of a sea dyke between certain points was held to be a charity, in Wilson v. Barnes (1886) L. R. 38 Ch. Div. (Eng.) 507—C. A. And a charitable trust for the repair of a road was upheld in Atty. Gen. v. Day [1900] 1 Ch. (Eng.) 31.

VI. Public buildings.

As heretofore pointed out, the annotation is not concerned with gifts of or for libraries or similar buildings, which would not ordinarily be regarded as an essentially governmental function.

A grant of land (in Pennsylvania) in trust for the erection thereon of a courthouse, for the public use and service of the county, was held to be for a charitable use, in Stuart v. Easton (1896) 21 C. C. A. 146, 39 U. S. App. 238, 74 Fed. 854, affirmed on other grounds in (1898) 170 U. S. 383, 42 L. ed. 1078, 18 Sup. Ct. Rep. 650.

A bequest to a town for a town house, for transacting town business, was held valid in Coggeshall v. Pelton (1823) 7 Johns. Ch. (N. Y.) 292, 11 Am. Dec. 471.

And a bequest for the erection and maintenance of a building to be used for the benefit of the inhabitants of a town was held valid, apparently as a charity, in New Jersey Title Guarantee & T. Co. v. Smith (1919) 90 N. J. Eq. 386, 108 Atl. 16.

It was said in Atty. Gen. v. Heelis (1824) 2 Sim. & Stu. 67, 57 Eng. Reprint, 270, that a gift to build a sessions house for a county had been held to be a charitable use.

And although beyond the scope of the annotation, it may be noted that the doctrine of charities has been carried so far as to cover a deed of a theater in trust for the people of a small town, upon the ground of increasing their happiness and social welfare. Nixon v. Brown (1923) 46 Nev. 439, 214 Pac. 524.

VII. Miscellaneous.

A bequest to establish a life boat for the use of a town was regarded as a valid charitable donation, in Johnston v. Swann (1818) 3 Madd. Ch. 457, 56 Eng. Reprint, 573.

A grant for the defense of, and preservation of peace within, a city, was apparently regarded as a charitable gift in Atty. Gen. v. Carlisle (1828) 2 Sim. 437, 57 Eng. Reprint, 851.

Although the decision of Goodman v. Saltash (1882) L. R. 7 App. Cas.

(Eng.) 633, apparently turned upon the question of a prescriptive right of inhabitants to take oysters out of a river, at least one of the judges (at page 642) seemed to consider that a charitable trust had been created by reason of a grant from the Crown.

VIII. General provisions.

Benjamin Franklin's legacy to the inhabitants of Boston, which provided, inter alia, that after 100 years a large proportion of the accumulated fund should be expended in building or procuring public works of general utility, which should promote the convenience and comfort of the people of the town or of others temporarily abiding there, was regarded as a public charity in Boston v. Doyle (1903) 184 Mass. 373, 68 N. E. 851.

In Peirce v. Atty. Gen. (1920) 234 Mass. 389, 125 N. E. 609, the court said, in reference to a gift for the use and benefit of a town, that scarcely anything could more directly lessen the burden of government as manifested to the ordinary citizen than a gift to be applied for the general benefit of the municipality in which he resides, citing numerous cases. (And that a gift for general town expenses may be a valid charity, see Wood v. Oldfield, 219 Mass. 374, 106 N. E. 1014.)

And see Rotch v. Emerson (1870) 105 Mass. 431, upholding as a public charity a bequest to trustees "for the promotion of agricultural or horticultural improvements, or other philosophical or philanthropic purposes, at

their discretion."

See also Dickerson v. Anna (1923) 310 Ill. 222, 30 A.L.R. 587, 141 N. E. 754, where a devise to a city, which did not mention that it was for any specific charity or purpose, was apparently assumed to be for a charitable purpose.

A bequest to the government of Bengal, to be applied to "charitable, beneficial, and public works," at a certain city, "for the exclusive benefit of the native inhabitants," was regarded as a good charitable bequest, in Mitford v. Reynolds (1842) 1 Phill. Ch. 185, 41 Eng. Reprint, 602.

A bequest to a town "for such pur