Gambell v. Trippe

McSherry, J., delivered the opinion of the Court. By the fifth or residuary clause of the last will of Emma Spence, it is provided as follows, viz., “I direct my trustee to pay over the whole residue and remainder of my means and estate to some Presbyterian institution in Baltimore, as they may determine, for charitable' or religions purposes.” By the first clause she appointed Jesse K. Hines and James A. L. McClure trustees and executors, and devised and bequeathed all her estate to them upon various trusts — that relating to the residuum being the one just quoted. Mr. Hines died a few days after the testatrix, without having qualified as executor, and letters testamentary were issued to Mr. McClure, who subsequently died without having stated an account, and without having administered the estate. Thereupon letters of administration de bonis non cum testamento an ²⁵⁴ nexo were committed to the appellant, who has passed his final account, showing in his hands a balance which constitutes the residuum of the estate.

Neither Mr. Hines nor Mr. McOluré ever designated any Presbyterian institution to receive this residuary legacy, and the father of the testatrix, her next-of-kin, claims it as a lapsed legacy. He has assigned his right therein to the appellee who filed the bill now before us. The object of the proceeding is to have the residixary legacy declared lapsed, and to procure a decree directing the fund and personal property to be paid and delivered to the appellee. There is no doubt as to the invalidity of the residuary clause of the will.

The object intended to be benefited or promoted is neither so certain nor definite as to enable a Court of equity to declare who is entitled to the fund to the exclusion of all others. The legacy is required to be paid to some Presbyterian institution for religious or charitable purposes; but what institution or what character of institution, whether religious, educational, or charitable, is no where declared or intimated. And the purposes to which the fund is to be applied, whether religious or charitable, are as indefinite and uncertain as the institution is. It was said by this Court in Barnum,. et al. vs. Mayor, &c., of Baltimore, 62 Md., 292: “If there be parties capable of taking the subject-matter of the trust, and objects legal and definite to he