“ Kohne remained as a part of his estate in the hands of the executors, and descended to his heirs at law on the death of Mrs. Kohne. The beneficiaries were not more definitely described in the one case than in the other. In Kohne's case no trust was created, except that which was connected with the executorship.
Where there is nothing more than a power of appointment conferred by the testator, there is nothing on which a trust, on general principles, can be fastened. The power given is a mere agency of the will, which may or may not be exercised at the discretion of the individual. ”

“ It follows, therefore, that, in conformity with the will, there is no person who can act, and no subject to be acted upon, and no beneficiaries of the contemplated action. My opinion, therefore, is, that the devise has lapsed, or, rather, that no right ever came into existence under it; that nothing was ever passed by it from the estate, which descends, of course, to the testator's heirs.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Pennsylvania, and was argued by counsel. ”

“ Kohne happened, as the testator from her advanced age contemplated, during the life of the executors or the survivor of them, the appointment might have been made at his or their discretion. But had they or the survivor of them failed to make it, it might have become a question whether he or they could have been coerced to do so by the exercise of any known chancery power in this country. The will contained no provision for such a contingency, and it could not be brought under the trust of executorship. Chancery will not compel the execution of a mere naked power. ”

“ But it will, under equitable circumstances, aid a defective execution of a power. A power when coupled with a trust, if not executed before the death of the trustee, at law the power is extinguished, but the trust, in chancery, is held to survive. ”

“ The societies renounce the legacies. Yet held that the discertion of the trustees was not of the essence of the trust, and that the court would carry the trust into effect by a scheme. Reeve v. Attorney-General, 3 Hare, 191.
Where bequests are made to trustees for general charitable purposes, the trust must be the subject of a scheme before the master; but where the object is a charity without a trust interposed, the disposition is in the crown, and must be made according to the directions under the royal sign-manual. ”

“ Indeed, the decision of this court in the case of Vidal v. Girard's Executors, would seem to be incomprehensible and without purpose, unless interpreted as asserting and maintaining, both upon reason and authority, the regular jurisdiction of equity over devises, wherever the devisee was capable of taking, and the beneficiaries were sufficiently defined to render the directions of the testator practicable, although these directions declared or implied a charity. ”

“ There must be some creative energy to give embodiment to an intention which was never perfected. Nothing short of the prerogative power, it would seem, can reach this case. There is not only uncertainty in the beneficiaries of this charity, but behind that is a more formidable objection. ”

“ That the residuary bequest and devise in Mr. Kohne's will is a trust, and for a charity; and the courts will go further to sustain this species of trust than any other, and will not suffer it to fail for want of a trustee, particularly where there is no uncertainty in the objects, as in the present case; those objects (which are assumed to be the incorporated institutions of the two States) not being, as they assert, very extensive or difficult of ascertainment.
4. That the law of Pennsylvania favors charities. ”

“ The domicile of the testator, at the time of his death, seems not to be a controverted question. He had so lived in the two States of Pennsylvania and South Carolina, and amassed property in both, that his domicile might be claimed in either. There is no evidence in which, if in either, he exercised the right of suffrage. For two years previous to his death, he resided in Pennsylvania.
The bequest under consideration was intended to be a charity. The donor, having entire confidence in his executors, substituted their judgment for his own. ”

“ They, or the survivor of them, was to designate such objects of his charity in the two States, 'as would be most beneficial to mankind.' It was to be placed on the broadest foundations of human sympathy, not excluding the colored race. It is no charity to give to a friend. In the books, it is said the thing given becomes a charity where the uncertainty of the recipients begins. This is beautifully illustrated in the Jewish law, which required the sheaf to be left in the field, for the needy and passing stranger. ”

“ Where a tenant for life has power of disposition by will, with two subscribing witnesses, and disposes by will to a charity, without witnesses, the devise will be sustained in favor of charity, though it would not in favor of an individual not for charity. ”

“ Charities are left free for the exercise of the jurisdiction of the courts, according to the intention of the testator, disregarding defects of form or designation of a party to take, and a devise to the church is transferred to the parson where the church cannot take in mortmain. ”

“ Here there was a trustee until all the executors died, and the administrator de bonis non cum testamento annexo is the substituted trustee.
In the same year, the United States supreme court, in Beatty v. Kurtz, sustained the dedication of a lot for the Lutheran church in Georgetown, without any deed, grantee, or trustee. 2 Pet. 566-583. And a committee of the congregation was held sufficient to maintain the bill. 584.
A trust may be created by will, to bind the title of the heir or personal representative, and make him a trustee where no other is named. ”

“ Francis, this doctrine is laid down: that when money is given to charity, without expressing what charity, there the king is the disposer of the charity; and a bill ought to be preferred in the attorney-general's name. ”

“ There can be no doubt that decisions have been made in this country, on the subject of charities, under the influence of English decrees, without carefully discriminating whether they resulted from the ordinary exercise of chancery powers, or the prerogatives of the crown. ”

“ The bequest in 9 Ves. was for benevolent, not charitable purposes. Here, it is for charitable purposes only; for it is to go to charitable institutions for the purposes of their creation.
1829. In McGirr v. Aaron, 1 Pa. 49, there was no trustee at all that could take for the purpose of charity, but the devise was sustained and to become vested as soon as the charity should acquire a capacity to take. ”

“ It is there said that so much more liberal is our system in favor of bequests, though not strictly charitable, that our courts would have found no difficulty in ruling in favor of the legatee. Ib. 93; Morice v. ”

“ At the common law of England and in Pennsylvania, such a trust would be sustained without a trustee. 2 How. 192. See cases in Binney's Argument, Girard Will case, 80.
We are neither dependent upon the Stat. 43 Eliz., or the common law prerogative, to sustain such a charity. 2 How. 195.
And general and undefined charities were sustained before the Statute 43 Eliz., by the inherent power of chancery, at common law. Ib. 196.
And the law of the preceding cases is the law of South Carolina. Attorney-General v. Jolly, 1 Richardson, Eq. Rep. 99. ”

“ Girard's Executors, 2 How. 127, is not excepted from this remark; the appellant's counsel have in vain sought to obtain from it any thing in support of their bill, as will be seen by a reference to their argument. This is, however, the most convenient place for us to acknowledge the great assistance we have received from that case, in the investigation of the law of charities. We might add, also, that the case of the executors of McDonogh v. ”