Page:Harvard Law Review Volume 5.djvu/415

THE FAILURE OF THE " TILDEN TRUST. 399 The most conspicuous illustration of the doctrine which is here advocated is to be found in the recent English case of Cooper- Dean v. Stevens. 1 There was in this case a bequest of j£,7$o for the maintenance of the testator's horses and dogs. It was urged by the residuary legatee, on the authority of Morice v- Bishop of Durham, that this trust must fail, although the trustees desired to perform it. But the trust was upheld. North, V.C., disposed of the plaintiff's argument as follows : " It is said that the provision made by the testator in favor of his horses and dogs is not valid; because (for this is the principal ground upon which it is put) neither a horse or dog could enforce the trust ; and there is no person who could enforce it, . . . and that the court will not recognize a trust unless it is capable of being enforced by some one. I do not assent to that view. There is no doubt that a man may, if he pleases, give a legacy to trustees, upon trust to apply it in erecting a monument to him- self, either in a church, or in a churchyard, or even in unconse. crated ground, and I am not aware that such a trust is in any way invalid ; although it is difficult to say who would be the cestui que trust of the monument. In the same way, I know of nothing to prevent a gift of a sum of money to trustees, upon trust to apply it for the repair of such a monument. In my opinion, such a trust would be good, although the testator must be careful to limit the time for which it is to last, because, as it is not a chari- table trust, unless it is to come to an end within the limits fixed by the rule against perpetuities it would be illegal. But a trust to lay out a certain sum in building a monument ... is, in my opinion, a perfectly good trust, although I do not see who could ask the court to enforce it. If persons beneficially interested in the estate could do so, then the present plaintiff can do so ; but if such persons could not enforce the trust, still it cannot be said that the trust must fail because there is no one who can actively maintained the opposite view in Holland v. Alcock, 108 N. Y. 312; O'Connor v. Gifford, 117 N. Y. 275, 2S0. (But see Hagenmeyer v. Hanselman, 2 Dem. 87. Even in New York a gift inter vivos for the celebration of masses for the soul of the donor is valid. Gilman v. McArdle, 99 N. Y. 451.) l 41 Ch. D. 552.