The opinion
Smith, G. J.
(dissenting) — The general principles laid down by the majority are unquestioned: A trust to foster religion and to aid in the propagation of its doctrines is of course charitable; a charitable trust is not within the rule against perpetuities; charitable trusts are highly favored and instruments creating them should be liberally construed and given effect if consistent with law; and certainty as to details of execution will not be required as in the ease of noncharitable or private trusts.
These propositions need no laboring. But their mere statement does not solve our problem here. Before they become applicable or pertinent there must be shown a piirpose recognized in law as charitable. The gift must be one “ ‘to be applied * * * for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.’ ” Heald v. Johnson, 204 Iowa 1067, 1070 , 216 N.W. 772, 773 , citing Union Pacific R. Co. v. Artist, 9 C.C.A. 14 , 60 F. 365 , 23 L. R. A. 581, which, in turn, quotes from Jackson v. Phillips, 14 Allen (Mass.) 539, *1241 556. See also 14 C. J. S., Charities, section 1, and Restatement, Law of Charitable Trusts, section 368, which lists practically the same purposes to be considered as charitable.
I. I submit Doctor Small’s will fails to state any purpose or use coming within this comprehensive enumeration: “I direct that my said trustees or their successors shall distribute * * * the income thereof * * * for such purposes as they may; feel is directed by God the Father, Jesus Christ the Son and Holy Spirit, and as they believe would be acceptable to me and meet my approval * *
This is all that is said as to the purpose that we are asked to say is charitable. In a succeeding paragraph the will states: “By way of .explanation it is my desire that any disbursements made * * * shall be made to persons [emphasis supplied] who believe in' the fundamental principles of the Christian Religion and in the Bible and who are endeavoring to promulgate the same.”
The majority opinion is written on the theory that the purpose of the proposed trust is to propagate the Christian faith, but nowhere does the will so state. The “persons” designated need only be Christians. They need not be ministers, missionaries, preachers or teachers, nor need they be engaged in the advancement of Christian principles or the carrying on of any charitable or religious work. They are required only to “believe” and endeavor to “promulgate” Christian principles; that is, “to make known by open declaration, as a law, decree, or esp., a dogma.” Webster’s International Dictionary. They are not required to be needy persons, nor wanting in education, nor sick, nor underprivileged in any way. The most that can be said from the language of the “explanation” is that disbursements must be made to Christians. The purpose is nowhere indicated to foster any religious institutions or to aid in the propagation of any religious doctrines.
II. The majority opinion in Division IV states “it is necessary, only, that there be definiteness and certainty as to the particular class or group which is to partake of the charity, and not to the individuals thereof.”
*1242 What definiteness in that respect is found here? What group or class is indicated except all who believe in and endeavor to practice the principles of Christianity ¶
There is no church or particulár set of believers designated by reason of locality or otherwise. The class is worldwide and regardless of any limitations of sect or particularity of practice.
This court has held too indefinite a gift “ ‘to be divided among the Sisters of Charity’ ”, saying: “If the bequest should be sustained, how would the trustees execute it ? No one would say that it should be divided among all of them, for such, in reason, could not have been the intention. There is no limitation as to locality, state or nation.” Moran v. Moran, 104 Iowa 216, 224, 225 , 73 N.W. 617 , 620, 39 L. R. A. 204, 65 Am. St. Rep. 443 .
The majority opinion, in this situation, falls back upon the rule that uncertainties as to beneficiaries do not render the gift void “where the trustee or some other person is empowered to select the beneficiaries,” quoting 14 C. J. S., Charities, section 40 (page 477).
Doctor Small’s will designates four named “friends” to act as trustees and provides that any vacancy occurring “either by death or incapacity to act * * * shall be filled by appointment by the remaining trustees” with court approval! (Two predeceased the testator and no successors have been appointed.)
It authorizes them “to choose and change the beneficiaries as said trustees may from time to time unanimously decide” (emphasis supplied) and adds: “It being my desire, intention and direction that said fund shall continue permanently and^ forever, and only the income thereof shall be used for the disbursements herein contemplated, and nothing herein shall prevent said trustees from allowing said income to accumulate in the event they do not find a suitable beneficiary as herein stated.” (Emphasis supplied.)
I cannot believe the rule sanctioning the delegation to trustees of the power of selecting beneficiaries should apply here. It has been said:
“The reason a trustee is allowed to enforce a trust, the object of which is expressed only in general terms, is that in *1243 exercising bis discretion be carries out tbe intention of tbe testator. But when there is no trustee appointed to exercise tbis discretion in devising a scheme for tbe execution of tbe trust, the court of equity can look alone to tbe will, and, if it’does not show tbe intention of tbe testator, parol testimony is inadmissible, and tbe trust must fail.” (Citing authorities.) City of Haskell v. Ferguson, Tex. Civ. App., 1933, 66 S.W.2d 491, 495 .
And tbe Ohio Supreme Court has held that where property is devised in trust for such charitable purposes as the trustee may deem proper the testator makes tbe judgment and discretion of tbe named trustee essential to tbe creation of tbe trust notwithstanding a statute that in effect provides against tbe failure of a testamentary trust by reason of tbe death, incapacity or refusal to act of tbe named trustee. Rogers v. Rea, 98 Ohio St. 315 , 319, 120 N.E. 828 .
Tbe cqurt in that ease, in bolding tbe trust unenforceable, refers to it as a “personal trust” and points out that tbe will “is silent as to bow it shall be executed save and except that it be according to tbe judgment of” tbe named trustee, who apparently predeceased tbe testatrix.
Here, trustees are named who presumably knew Doctor Small’s wishes and to whose discretion be Avas willing to commit tbe selection of purposes and beneficiaries. We are asked not merely to bold tbis sufficient for tbe immediate present but to confide to future trustees selected by future trustees in succession, “permanently and forever,” tbe selection of such beneficiaries and tbe determination of such purposes to be served “as they [trustees] may feel is directed by God * * * and as they believe would be acceptable to” Doctor Small.
I cannot consent to tbe imposition of tbis burden upon the court for all time to come. Conceding, for argument’s sake, that trustees named by tbe testator and empowered by him to select tbe particular purpose and beneficiaries of bis bounty might be depended on to administer tbe trust, how can tbe court intelligently supervise its administration when their personal knowledge of testator’s wishes is not longer available? The question answers itself.
*1244 We all, I am sure, have the highest respect for the elevated character of Doctor Small and his aspirations as revealed by the terms of his will. It may be regretted that he did not define his wishes in such way that his bounty could be judicially administered and bestowed. But our duty to observe equitable rules and procedures should be superior even to the desirability of upholding a charity so vaguely outlined here.
I would affirm the decision of the trial court.
Hays, J., joins in this dissent.