evidence of monuments not called for in patent; Opdyke v. Stephens, 28 N. J. L. 86, sustaining charge to jury that, in construing deed, they should award according to course and distance when no monument is mentioned; Negbauer v. Smith, 44 N. J. L. 674, applying rule in action for breach of covenant where grantor did not own entire lot as described by course and distance; Booth v. Strippleman, 26 Tex. 443, holding course and distance cannot be controlled by call for "stake" where such call would include 3,000 acres more than required; Robinson v. Doss, 53 Tex. 507, locating survey by course and distance where natural object is mentioned by mistake.

Distinguished in Alshire v. Hulse, Wright, 171; S. C., 5 Ohio, 534, holding "posts" called for in description in improved country are distinguishable, natural objects and control course and distance.

Public land grants.- The law directs a survey of land granted by United States to be made by sworn officers, and the description thus made by survey is transferred into the grant, p. 96.

Cited generally in McManus v. Carmichael, 3 Iowa, 38, collecting cases on point that United States grants have relation to the surveys, plats and field-notes.

Public land grants - Deeds.— Grant of land must so describe land conveyed that subject granted can be identified by description in instrument itself, p. 96.

Cited and followed in Kennedy v. Townsley, 16 Ala. 245, holding donation by Congress is not invested until land is surveyed and location ascertained; Booth v. Upshur, 26 Tex. 67, holding, where a discrepancy exists between two descriptive objects in survey, evidence to show which is correct is admissible; Norris v. Hunt, 51 Tex. 614, applying rule to deed of United States marshal void for failure to describe land by metes and bounds.

Surveys.- An office survey, not actually made, cannot be made to conform to surveyor's intention when such intention is not indicated on the survey, p. 97.

Distinguished in Robinson v. Doss, 53 Tex. 507, correcting erroneous call in survey when surveyor's intention was apparently thwarted by error; dissenting opinion in Sanborn v. Gunter, 84 Tex. 297, 20 S. W. 78, holding survey should be controlled by intent of surveyor as shown by calls in field-notes.

Public land grants - Deeds. In grant, courses and distances may be controlled and corrected by other objects of description showing that survey covered ground other than called for by line of grant, p. 98.

Cited to this point, Urquhart v. Burleson, 6 Tex. 511, correcting mistake of east" for "south " in patent so as to include land actually surveyed.

3 Pet. 99-192, 7 L. 617, INGLIS v. SAILORS' SNUG HARBOR.

Wills. In construction of will, intention of testator is to be sought after and given effect; if effect cannot lawfully be given to such intention in mode specified, an alternative provided in will must be carried out if lawful, p. 113.

Cited approvingly and rule applied in the following: Elyton Co. v. M'Elrath, 53 Fed. 766, 2 U. S. App. 584, construing devise to wife of property to be "hers and at her disposal during natural life," to carry fee-simple; Fowler v. Duhme, 143 Ind. 259, 42 N. E. 626, reviewing cases, and holding devise to children and to others in case of their death refers to death in testator's lifetime; Miller v. Chittenden, 2 Iowa, 368, collecting cases, applying rule to a grant to trustees for a charitable use; Sewall v. Cargill, 15 Me. 420, sustaining devise to inhabitants of unincorporated town for charitable use, according to evident intent; Wade v. American Col. Soc., 7 Smedes & M. 696, 45 Am. Dec. 329, holding, where apparent intent is that executor shall deliver slaves to trustees for transportation, latter may compel former to act; Magill v. Brown, 16 Fed. Cas. 431,

Wills.- Designation of trustees in a will by their official character is valid and equivalent to naming them by their proper names, p. 114.

66

Cited approvingly and relied upon in Dunbar v. Soule, 129 Mass. 286, holding devise to mayor of the city" as trustee appoints mayor at time of testator's death and not the mayor at time of appointment. Cited, but without particular application of the rule, in In re John's Will, 30 Or. 516, 517, 518, 519, 47 Pac. 348, 349, 36 L. R. A. 249, 250, reviewing cases, and holding devise to trustees to be appointed by certain officers will not fail because such officers neglect to appoint.

Distinguished in People v. Ashburner, 55 Cal. 523, holding persons designated by statute to care for public lands are officers whose terms expire by limitation.

Wills - Executory devise.- If testator bequeaths property to an association upon its becoming incorporated within reasonable time, the subsequent incorporation confers on the association the capacity to take and manage the property, p. 114.

The citations collect a great many authorities affirming and applying this principle: Trustees v. State, 14 How. 274, 14 L. 418, holding reservation of land by Congress for seminary of learning vests in corporation formed later to establish such seminary; Ould v. Washington Hospital, 95 U. S. 313, 24 L. 452, reviewing cases, and holding devise to trustees to be conveyed to corporation for foundlings when Congress should create one is valid devise; Russell v. Allen, 107 U. S. 168, 171, 27 L. 399, 400, 2 S. Ct. 331, 334, reviewing cases, and holding devise of property to use of an educational institute not yet in existence is valid gift as against donee's heirs; Jones

▼. Habersham, 107 U. S. 191, 27 L. 408, 2 S. Ct. 350, holding devise to establish hospital and requiring act of incorporation to be obtained is valid charitable devise; Jones v. Habersham, 3 Woods, 480, F. C. 7,465, sustaining devise to trustees with direction to incorporate and establish hospital, although no time for such acts is set; Carter v. Balfour's Admr., 19 Ala. 829, reviewing cases, and sustaining devise to certain charitable societies, regardless of whether they are incorporated or not; Coit v. Comstock, 51 Conn. 385, 50 Am. Rep. 37, collecting cases, and sustaining bequest to executors in trust for charitable organization to be thereafter incorporated; Storrs, etc., School v. Whitney, 54 Conn. 346, 350, 8 Atl. 143, 145, sustaining devise to charitable corporation to be used in certain way, and if use abandoned, then certain sum to be paid other charities, Griffith v. State, 2 Del. Ch. 461, holding devise of property to be rented and proceeds devoted to certain charity not within rule against perpetuities; Universalist Society v. Kimball, 34 Me. 427, sustaining conditional bequest to religious society to be thereafter formed in two years; Milne's Heirs v. Milne's Exrs., 17 La. 58, sustaining legacies to orphan asylums not in esse, but subsequently incorporated; Tappan v. Deblois, 45 Me. 130, reviewing cases, and sustaining devise to trustees for use of American Peace Society, unincorporated at time of devise; Swasey v. American Bible Soc., 57 Me. 525, sustaining devise to first Baptist society that may be organized in certain locality; Going v. Emery, 16 Pick. 118, 26 Am. Dec. 652, sustaining devise to trustees for cause of religion; Odell v. Odell, 10 Allen, 8, 10, sustaining devise to trustees to invest funds and establish charity with accumulations; Taylor v. Trustees, 34 N. J. Eq. 106, sustaining gift to trustees to establish and maintain a school not existing at testator's death; Baptist Church v. Witherell, 3 Paige, 300, 24 Am. Dec. 225, holding where deed is made to unincorporated church society, subsequent incorporation vests legal title; Potter v. Chapin, 6 Paige, 650, sustaining gifts to unincorporated village for erection of schoolhouse; Williams v. Williams, 8 N. Y. 541, 552, sustaining bequest for education of poor children, although no definite cestuis que trust are named; P. E. Public School v. Davis, 31 N. Y. 592, holding, where land is devised to trustees for benefit of school, fee vested in school upon its subsequent incorporation; Burrill v. Boardman, 43 N. Y. 261, 3 Am. Rep. 699, sustaining devise to corporation to be created in two years should two certain lives continue so long; Keith v. Scales (N. C.), 32 S. E. 811, upholding devise in trust for religious the trustee being an unincorporated church which had to become incorporated; Williams v. First Presbyterian Society, 1 Ohio St. 500, holding grant to trustees for benefit of unincorporated church is not void for uncertainty; McIntire v. Zanesville, etc., Co., 9 Ohio, 289, 34 Am. Dec. 439, sustaining devise of contingent remainder to company incorporated during existence of

use,

particular estate; Trustees v. Adams, 4 Or. 87, holding grant of property may be made to use of company to be subsequently created; Pennoyer v. Wadhams, 20 Or. 284, 25 Pac. 723, 11 L. R. A. 213, sustaining devise to trustees for benefit of church to be thereafter created and maintained; In re John's Will, 30 Or. 519, 47 Pac. 349, 36 L. R. A. 250, collecting cases, and sustaining devise to trustees to create and maintain free schools; Almy v. Jones, 17 R. I. 267, 21 Atl. 617, 12 L. R. A. 416, holding bequest for an art institute after one shall be created and in meantime income to be used for prizes is not void for remoteness; Paschal v. Acklin, 27 Tex. 201, sustaining bequest to trustees to establish seminary of learning not existing at testator's death; Literary Fund v. Dawsons, 10 Leigh, 153, holding devise of property to trustees to procure statute, making it part of public fund, is valid; Kinnaird v. Miller's Exr., 25 Gratt. 121, 123, sustaining devise to trustees for benefit of poor white children, providing legislature did not inhibit; Dodge v. Williams, 46 Wis. 102, 103, 50 N. W. 1108, sustaining bequest to corporation for education of females to be created in five years; Gould v. Taylor Orphan Asylum, 46 Wis. 116, 50 N. W. 423, sustaining devise to trustees for creation of orphan asylum as soon as one is incorporated; Magill v. Brown, 16 Fed. Cas. 113, 414, 446, reviewing cases; Wentworth v. Fernald, 92 Me. 291, 42 Atl. 553, holding valid a devise in trust, after the termination of life interests in certain beneficiaries, to procure appointment of additional trustees and devote the fund forever to an educational use; Urmey v. Wooden, 1 Ohio St. 164, 59 Am. Dec. 617, sustaining charitable trust for the poor and needy fatherless of two designated townships.

Approved in dissenting opinions in the following: Henderson v. Post, 5 La. Ann. 472, majority holding will providing for laying out city to remain part of testator's succession is void; Post v. Pearsall, 22 Wend. 455, majority holding dedication to public of landing place cannot be presumed from user for want of grantee; Tilden v. Green, 130 N. Y. 72, 28 N. E. 892, 14 L. R. A. 47, 27 Am. St. Rep. 509, note, majority holding devise invalid because of discretion to convey vested in trustees; Green v. Allen, 5 Humph. 229, majority holding invalid a devise to two unincorporated societies. Cited with approval in Johnson v. Johnson, 92 Tenn. 565, 36 Am. St. Rep. 108, 23 S. W. 116, 22 L. R. A. 181, sustaining devise for charitable use naming wife and daughter as trustees with power to name successors; Laird v. Bass, 50 Tex. 416, holding conveyance to trustees for benefit of church is effectual although not made according to terms of State statute; see also note, 9 Am. Dec. 585. Cited generally ir Penny v. Croul, 76 Mich. 480, 43 N. W. 652, 5 L. R. A. 863, sustaining bequest to public water works to maintain and improve grounds and library, also Magill v. Brown, 16 Fed. Cas. 433. Cited but without particular application of the rule in Blair v. Odin, 3

Tex. 299, holding, in action by church to recover land on ground of dedication to church use, complete legal title must be shown.

Distinguished in White v. Fisk, 22 Conn. 54, rejecting bequest to "indigent pious young men preparing for ministry in New Haven" as too uncertain; Fink v. Fink, 12 La. Ann. 321, holding subject of chancery's jurisdiction over charities and testamentary trusts has no application in Louisiana; Church Extension v. Smith, 56 Md. 393, holding, where devise is to corporation under legal disability to inherit, property goes to heir subject to later act of legislature; Pearsall v. Post, 20 Wend. 118, holding public cannot acquire use of site for public landing by user for want of definite grantee; Booth v. Baptist Church, 126 N. Y. 241, 28 N. E. 240, declaring invalid a bequest to trustees for benefit of corporation to be created without limiting time; Tilden v. Green, 130 N. Y. 47, 48, 27 Am. St. Rep. 492, 28 N. E. 882, 883, 14 L. R. A. 39, declaring invalid a bequest to trustees giving them discretion to convey, or not, to corporation to be created; Stonestreet v. Doyle, 75 Va. 364, 40 Am. Rep. 732, declaring void a devise for creation of free school without provision for subsequent incorporation; P. E. E. Society v. Churchman, 80 Va. 765, sustaining bequest to corporation in existence at testator's death. Criticised in Burr v. Smith, 7 Vt. 303, 29 Am. Dec. 184, sustaining devise to American Bible Society as gift to charitable use not as executory devise. And see Owens v. Missionary Society, 14 N. Y. 384, 67 Am. Dec. 161, holding subsequent incorporation of legatee association does not affect its disability to inherit.

Executory devise. By an executory devise, a freehold may be made to commence in futuro, and needs no particular estate to support it, p. 115.

Cited and followed in Miller v. Chittenden, 4 Iowa, 270, 274, reviewing cases and sustaining grant of property to trustees for use of a church not then in existence; Goodell v. Union Assn., 29 N. J. Eq. 35, sustaining gift of $1,000 yearly to Young Men's Christian Association incorporated after testator's death. In re John's Will, 30 Or. 514, 47 Pac. 348, 36 L. R. A. 249, sustaining devise to charitable use, trustees to be appointed fifteen years after testator's death. Approved in dissenting opinion in Succession of Franklin, 7 La. Ann. 429, 430, majority rejecting devise to trustees to establish and maintain academy.

Executory devise.- A present devise to a devisee not in esse is not good, but a devise to take effect upon happening of some future event is valid as an executory devise, p. 116.

Cited approvingly and applied in Bristol v. Atwater, 50 Conn. 407, holding under devise to S., remainder to C. if S. die without issue, C.'s interest vested only on death of S. without issue; Succession of Franklin, 7 La. Ann. 415, holding devise to trustees to establish and maintain academy is devise in præsenti and invalid; Farrington v.