The opinion
BUFFINGTON, Circuit Judge
(dissenting). There is no controversy as to the law in this case. Concededly, the gift was for a law *454 ful charity. The only question-is the construction of McCay’s deed. Did the state of Pennsylvania take a present interest in the gift when McCay gave the fund “for the purpose of discharging the whole indebtedness of the state and for no other purpose whatsoever”? The court below held, and this court concurred in its view:
“That the gift of the accumulated trust fund to the state of Pennsylvania is a gift of which the vesting is postponed beyond the limit allowed by the rule against perpetuities.”
Now to me it is clear that McCay’s deed vested in the state, ab initio, a present interest in the fund. True, the full, absolute enjoyment thereof was postponed until the gift’s accumulations equaled the charity in view; but when the fund passed from the donor a present interest in the corpus thereof passed to the state. I say this because clause 1 made it compulsory on the trustee to invest, and as they were paid, to reinvest, the fund in the bonds of the state of'Pennsylvania. In reality the gift created, in private hands, a sinking fund for the state; and will it be contended that a state, á municipality, a private corporation, has no interest in a sinking fund which in form continues an indebtedness that in reality is paid as soon as sinking fund ownership accrues? But McCay went further. He linked the state’s interest to this private sinking fund, and gave it a present interest therein, by the third provision of his deed, which made it compulsory on the trustee, as it turned the gift into Pennsylvania state bonds, to stamp on each one:
“This bond, being purchased by the Girard life Insurance, Annuity & Trust Company of Philadelphia for a trust fund, is not transferable, and the state of Pennsylvania is hereby released from paying the same, except to the said company.”
This indorsement in furtherance of the charity in view, and made in accord with the donor’s directions, released the state from payment of such bond. If the trustee had diverted such released bond from the sinking fund, and transferred it to third persons, surrendered it to McCay, or even to his personal representatives, will it be contended the state could be held for its already released bond thus sought to be revivified? That the bonds were, in the donor’s view, released by the indorsement upon them, is shown in the provision for paying over in the event of forfeiture, viz.:
“Shall pay over to the oldest male heir of the said Charles P. McCay, then living, his executors, administrators, or assigns, the whole amount belonging to the said accumulating fund at that time uninvested in the said stocks of Pennsylvania, and also all the amounts they shall thereafter receive from the said state as principal and interest on said stoclcs.”
. But it is said the indorsement on the bond did not release the payment of the bond as against the trustee, and therefore no interest in the gift .vested in the state. But this contention loses sight of the real purpose of this narrow exception to the broad, general release to the state. It was an exception made simply to provide for reinvestment in other state bonds and reindorsement thereon of the same release. In other words, payment by the state to its own trustees was for reinvestment in-its. own reindorsed and re-released securities. It was a *455 mere continuance of a state debt extinction, which began, and had to begin, when the gift was made.
Finding such provisions in McCay’s deed, and bringing to its construction the virile purpose of the law to uphold the intent of donors of public charities, for “the rule with us,” as said by Judge Arnold, supra, “when a charity is created, is to adopt every means to uphold it, and every attack upon it, unless founded on strong reasons, shall fail,” I am constrained to differ from the court’s construction. And in so doing I cannot but believe the view here expressed is in accord with the intent of the donor, who during the 40 years of his life succeeding his gift never asserted the absence of interest of his state in his gift. This fact is a significant aid to construction, for in Attorney General v. Drummond, 1 Dr. & War. 368, Chancellor Sugden well said:
“Toll me what you have done under such a deed, and I will tell you what that deed means.”