But this does not require the court to advise every one who may think he has an interest under or adverse to a will or other instrument. The only case of similar procedure found in this state is Haynes v. Carr, 70 N.H. 463. In that case the executors filed an answer, which they asked to have considered as a cross-bill, asking the advice of the court, and the case was disposed of by ordering the dismissal of the plaintiff's bill with a decree advising the executors.
The power of the probate court to reopen a fiduciary's account for good cause is not disputed. Knight v. Hollings, 73 N.H. 495; Indian Head Bank v. Theriault, 96 N.H. 23; Massachusetts Bonding Co. v. Keefe, 100 N.H. 361. The pending petition however presents no cause for such reopening. The contention is made that the trustee was under a duty to expend the entire income of the trust for the benefit of the testatrix's daughter (Haynes v. Carr, 70 N.H. 463) and that he was lacking in authority to accumulate any income. The will however fails to support this contention. The trustee was given the "right" not only to "use" and "expend" the fund, but also to "hold . . . the same.
A gift of this kind constitutes what is commonly known as a charitable or public trust. Glover v. Baker, 76 N.H. 393, 417; Haynes v. Carr, 70 N.H. 463, 482; Jackson v. Philips, 14 Allen, 539; Hoeffer v. Clogan, 171 Ill. 462; s. c. 63 Am. St. Rep. 241, note 249; 11 C.J. 301. If the purpose such a trust is intended to effectuate is legal and the persons for whose benefit it is established can be ascertained, it is the duty of the court to enforce it. Fernald v. First Church of Christ Scientist, 77 N.H. 108; French v. Lawrence, 76 N.H. 234; Adams v. Page, 76 N.H. 96. It is immaterial in so far as the validity of such a bequest is concerned how large or how small a section of the public it is intended to benefit.
The property therefore was not given to the parish on condition that it build a church to be known by the testator's name, but was given to it in trust to be used for the benefit of the inhabitants. Such a bequest, — one intended to benefit the inhabitants of the world, Fernald v. Church, 77 N.H. 108, or those of a particular state, Haynes v. Carr, 70 N.H. 463, or those of a particular city, Keene v. Eastman, 75 N.H. 191, constitutes a public trust. Since this is so, the bequest will not fail even if the plaintiffs' contention that the parish church cannot be known by the testator's name is sound; for it is the court's duty, whenever a testator's intention can be ascertained and is legal, to effectuate it. This is as true when the scheme the testator devises for that purpose breaks down, or is for any reason illegal, as when his scheme is both legal and workable.
] Such use of the income it has already been determined would be a violation of the imperative command to expend the income, which was said to be "plain and easily understood." Haynes v. Carr, 70 N.H. 463, 478, 479. No new arguments have been advanced by the plaintiffs of sufficient weight to overturn the conclusion previously reached.
"In Stratton v. Physio-Medical College, 149 Mass. 505 ( 21 NE 874), the will gave one-fourth of the net income of the residue of testator's property to the defendant to be used for the promotion of the medical art as favored and believed in by the testator during his lifetime and in support of that institution, as the trustees thereof should from time to time determine. It appeared that the supposed corporation in the mind of the testator was neither a free nor a public school, but a private pecuniary enterprise. It was held that such an enterprise is not a public charity, even if indirectly it serves charitable ends. "In Haynes v. Carr, 70 N.H. 463 ( 49 A. 638) * * * the court say (p 483): `It is undoubtedly the law in most states that where property is given to trustees, with power to apply it either to uses which are or those which are not within the classes included in charities, the whole must fail, so far as the application of the peculiar doctrines of charitable uses is concerned.'" The case of Attorney General v. Soule (1873), 28 Mich. 153, referred to in the Shattuck decision, supra, was decided many years before the enactment of the statute permitting charitable trusts in Michigan.
We think such a conclusion does violence not only to the language of the trust instrument, but to the clear purpose and intent of the settlor. Haynes et al. v. Carr, 70 N.H. 463, 49 A. 638, 639. The discretion vested in the trustee was merely as to the means of executing the command of the settlor.
See, e.g., In re Farnsworth's Estate, 109 N.H. at 15-19, 241 A.2d 204 ; Haynes v. Carr, 70 N.H. 463, 463, 480, 49 A. 638 (1900) ("There is a wide distinction between a gift to charity and a gift to a trustee to be by him applied to charity." (quotation and emphasis omitted)); Eyre, 37 N.H. at 120 (a decedent's personal property passes according to the law of the state of domicile, while real property passes according to the law of the state where it lies).
Hence it was found unnecessary to consider whether the court had jurisdiction of causes involving bequests for unspecified charitable purposes, or seeking diversion of funds from an illegal purpose to one which would be legal. See also, Haynes v. Carr, 70 N.H. 463, 465, 481. The authority of the Legislature in such matters has been said to be limited to the enactment of "general rules as to the extent and the exercise of the judicial power of the court" (Restatement, Trusts, supra); and the legislative power to "control the administration of charitable trusts already created" is considered to be "limited by provisions of the federal and state constitutions."
The provisions of the will are sufficient to establish a valid trust without regard to the "general plan." Haynes v. Carr, 70 N.H. 463, 480. See Scott, Trusts and the Statute of Wills, 43 Harv. Law Rev. 521, 544.