STEVENS, V. C.

Bill by William A. Green and others against Charles B. Blackwell and others to recover as next of kin, on an alleged failure of the trust, the principal of the trust fund. Dismissed.

Edwin Robert Walker and G. D. W. Vroom, for complainants.

William M. Lanning, for demurrants.

STEVENS, V. C. The bill, to which a demurrer has been interposed by the board of education of Hopewell township, alleges that Abigail Moore died in March, 1833, and that by her last will, in which she describes herself as "Abigail Moore, of Pennington, in the township of Hopewell, county of Hunterdon," she made (inter alia) the following bequest: "To that incorporated body 'The Pennington Academy,' and their successors, I give and bequeath five thousand dollars, to make a fund and establishment for the education of all the poor children in that district forever. 1 will and direct that institution and their successors to put the said sum out on interest, secured by mortgage on landed estate worth double the sum loaned, without buildings, and the interest arising to be appropriated with economy toward the instruction of the poor children pf the district, in reading, writing, arithmetic, grammar, and geography; and, if there are any savings, the same is to be put out in like manner, and for the above purpose, forever." The bill then goes on to state that Mrs. Moore's executor paid to the trustees of Pennington Academy the sum of $5,000; and that subsequent to this payment there was opened in that certain district of the township of Hopewell wherein the village of Pennington was situated a certain school, under and by virtue of the laws of the state of New Jersey, which school was always thereafter supported by the public moneys raised for that purpose; and that, upon its organization, the Pennington Academy was, in the words of the bill, "abandoned, neglected, and ceased to have any existence in fact." The bill then alleges that the fund so left by Mrs. Moore was diverted from the objects and purposes mentioned in her will, a part of it having been loaned to the trustees of the public school of Pennington, and a part to one Fitzpatrick; and that, upon the "abandonment" of the Pennington Academy and "the diversion of the fund," the complainants became entitled thereto as next of kin.

It appears to me plain that, assuming that the academy was abandoned and the fund diverted in the manner mentioned, it does not follow that it became the property of the complainants. That the bequest constituted a good charitable trust at the time of the death of testatrix is not denied. Indeed, it would be hard to frame a gift to charity less open to question. The purpose of the trust was charitable, and there was a trustee competent to execute it. Analogous trusts havebeen upheld by this court. Mason's Ex'rs v. Trustees, 27 N. J. Eq. 47; Stevens v. Shippen, 28 N. J. Eq. 532; Goodell v. Association, 29 N. J. Eq. 33. Did, then, the so-called "abandonment" of the Pennington Academy, and the loan of the money in the manner above stated, put an end to the trust? I know of no principle of law on which it could be so declared. On the contrary, it is well settled that a trust valid in its inception will not fail for want of a trustee. The court itself will appoint one. The case was argued as if the doctrine of cypres had some application to the facts. It was urged that because the public authorities had provided, at the public expense, for the education of all children, rich and poor, the court would be under an obligation to apply the fund, if it was to be used at all, to some other charitable use than that of educating poor children; and this, it was said, could not be done, for the reason that the doctrine of cypres is not known to the law of this state. Whether this be true in fact is, at least, questionable. Newark v. Stockton, 44 N. J. Eq. 191, 14 Atl. 630. But any consideration of the subject is unnecessary, because I do not think it follows that, because the legislature has devised a method by which all the children of the state may receive an education free of charge, testators may no longer devote a part of their estates to the education of the poor. Such a bequest came under consideration In Mason's Ex'rs v. Trustees, supra, and was held good. It is undeniable that the class designated to be benefited by the testatrix is still in existence, and as capable of being the recipients of her bounty now as it ever was. No change is needed in the destination of the fund, though probably a trustee should be appointed to carry out her direction. But, if the bequest under consideration be good, complainants have no interest in the fund in question, and the bill should be dismissed. It is therefore unnecessary to consider whether the residuary clause would not give this fund, if it had reverted, to the residuary legatees, rather than to the next of kin.

But the counsel of complainants suggest that, even if it be determined that the charitable bequest is still subsisting, the court ought not to dismiss the bill, but proceed to the appointment of a proper trustee. There are two ordinary modes of proceeding in equity,—by bill and by information. Where the proceeding is by bill, the rule, so far as I know, is universal, that every bill must show clearly that the plaintiff has a right to the thing demanded, or such an interest in the subject-matter (other than that merely which he has as one of the community) as gives him a right to institute a suit concerning it. Daniell, Ch. Prac. 360. Of the plaintiffs in this case, two live in Trenton, three out of the state, but in the United States, one in Australia, and only one, Mrs. Hunt, in Hopewell township. Whether Mrs. Hunt lives in Pennington, or whether she is a taxpayer in Hopewell, does not appear. If it should be thought that Mrs. Hunt's interest, as a citizen of Hopewell, or the interest of those who reside in Trenton, as citizens of the state of New Jersey, was sufficient to give them a standing before the court, the bill would still be demurrable, on the ground of misjoinder of parties complainant, for certainly no one would assert that a resident of Australia or Nevada or Missouri had any interest in a question relating to one of the public charities of New Jersey. But I do not understand that a citizen of the state of New Jersey, not being a trustee or executor or otherwise especially interested, can file a bill in a case in which he seeks to do nothing more than vindicate a public right. In cases relating to charities, he may, indeed, be a relator in an information filed by the attorney general, but the presence of the attorney general is indispensable. The rule is well exemplified by Attorney General v. Vivian, 1 Russ. 226, where an information and bill were filed, and the master of the rolls dismissed the bill, because the complainant failed to show an interest, but retained the information. The case of Attorney General v. Moore's Ex'rs, 19 N. J. Eq. 506, is an illustration of the proper method of procedure. In the case in hand, neither the attorney general nor any beneficiary of the trust is before the courts. It seems to me that it would, under these circumstances, be a singular mode of procedure to turn a bill designed only to destroy the trust into what would be virtually an information to establish and preserve it, without the presence or consent of the attorney general or a single beneficiary of the charity. The bill should be dismissed, with costs.