wiler v. Willis, 33 Cal. 20; 91 Am. Dec. 607; Abbott v. '76 Land & Water Co., 87 Cal. 323.

These authorities narrow the controversy to the question: Could the executive committee have secured a then future transfer of the patent rights of Andres to the corporation without an executed contract binding him to do so? I think the answer to this question must be negative; and, consequently, that the committee was authorized to execute such contract.

It follows, I think, that the judgment and order should be affirmed.

BELCHER, C., and BRITT, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

MCFARLAND, J., HENSHAW, J., TEMPLE, J.

[S. F. No. 133. Department Two.-June 4, 1896.] THE PEOPLE EX REL. L. R. ELLERT, MAYOR, ETC., RESPONDENT, v. HENRY D. COGSWELL ET AL., DEFENDANTS, CAROLINE COGSWELL, APPELLANT.

CHARITABLE TRUST-COGSWELL POLYTECHNIC COLLEGE-ACT OF 1885CONSTITUTIONAL LAW.-The charitable trust created by the deeds of Henry D. Cogswell and his wife Caroline E. Cogswell, for the founding of a polytechnic college, for the spread of technical knowledge, and for gratuitous instruction in the mechanical arts of the boys and girls of the state of California, is in conformity with the act of 1885 to advance learning, the arts and sciences, and to provide for the creation of trusts for the founding, endowment, erection, and maintenance within this state of universities, colleges, schools, seminaries of learning, mechanical institutes, etc., and that act is constitutional, and does not controvert section 9 of article XX of the constitution, forbidding perpetuities except for eleemosynary purposes. ID.-ACTION BY STATE-ENFORCEMENT OF PUBLIC TRUSTS-DUTY OF ATTORNEY GENERAL.-It is not only the right but also the duty of the attorney general to institute an action in the name of the state to enforce public charities or trusts, or to remedy abuses in their management.

ID-TRUST NOT VOID FOR

UNCERTAINTY-GENERAL DESIGNATION OF BENEFICIARIES.-The Cogswell trust is not void for uncertainty in

OXIII. CAL.-9

designating its beneficiaries as "the boys and girls of California,” but the very vagueness and uncertainty as to individuals and numbers is a necessary element in the creation of a valid charitable trust, and it is sufficient for the founder to describe the general nature of the charitable trust, and to leave the details of administration to be settled by trustees under the superintendence of a court of chancery. ID. CONSTRUCTION OF CONSTITUTION-PERPETUITIES FOR “ELEEMOSYNARY PURPOSES."-The term "eleemosynary," in the state constitution forbidding perpetuities “except for eleemosynary purposes,” is not confined to almsgiving or charity shown exclusively to the poor; but the phrase "eleemosynary purposes" includes in its scope all charitable purposes, including schools as well as asylums, hospitals, and religious institutions; nor can the enforcement of charitable uses be limited to any narrow and stated formula, but must expand with the advancement of civilization, and the increasing needs of men, calling for the establishment of new charitable

ID. EXECUTION OF TRUST BY MARRIED WOMAN-ACKNOWLEDGMENTACTION OF NOTARY-CONFLICTING EVIDENCE.-Where the evidence is conflicting as to whether or not the provisions of section 1186 of the Civil Code were complied with by the notary public who took the acknowledgment of the execution of a trust deed by a married woman, the wife of the trustee, which deed purported on its face to have been executed and acknowledged by her, and which was delivered to the trustees therein named, the findings of the court that she duly made, signed, executed, and delivered the trust deed will not be disturbed upon appeal.

ID. BURDEN OF PROOF-PRESUMPTION AS TO ACTION OF NOTARY.-The burden of proving want of due execution of the trust deed which purported to have been executed and properly acknowledged in due form by a married woman, is upon her; and. in the absence of proof that the notary did not ask her whether or not she wished to retract its execution, when examined separately and apart from her husband, it will be presumed that he did so ask her.

ID. EXTINGUISHMENT OF TRUST-ABANDONMENT BY TRUSTEES-IMPROPER LEASE-INTERPOSITION OF EQUITY.-Neither the abandonment of the trust by the trustees, nor an improper lease of the trust property, nor that the trust has become impracticable, operates to extinguish the trust, but where no power of revocation is reserved by the founder, the trust can only be extinguished by the entire fulfillment of its object, or by its object becoming impossible, or unlawful; and any abandonment or violation of the trust on the part of the trustees is merely ground for correction of their abuses, and removal of the offenders by the interposition of a court of equity.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. JOHN HUNT, Judge.

The facts are stated in the opinion.

William T. Baggett, for Appellants.

Plaintiff is not the real party in interest, and the attorney general has no power to institute such an action. (Code Civ. Proc., sec. 367.) There must be an allega

tion and proof of a distinct right of the people as a whole in the matter in controversy, as distinguished from the rights of individuals, before an action can be brought by that officer in the name of the people. (Orford etc. Soc. v. West etc. Soc., 55 N. H. 463; People v. Albany etc. R. R. Co., 57 N. Y. 161.) The trust is void for uncertainty; no authority is given to the trustees to designate the boys and girls entitled to the benefits of donation. (Hughes v. Daly, 49 Conn. 34; Needles v. Martin, 33 Md. 609; Goodell v. Union Assn., 29 N. J. Eq. 32.) It is void because in contravention of the provision of the constitution against perpetuities. (Const., art. XX, sec. 9; Perry on Trusts, 737.) "Eleemosynary purposes" does not embrace purely "educational purposes." There can be no valid donation in perpetuity under our constitution except for the poor and needy. (Estate of Hinckley, 58 Cal. 457; Worcester's Dictionary, Century Dictionary, and Rapalje's Law Dictionary, tit. "Eleemosynary "; Civ. Code, sec. 847; Angell and Ames on Corporations, sec. 39; Vidal v. Girard, 2 How. 127; 1 Blackstone's Commentaries, 472.) The evidence is insufficient to justify the decision, as it does not show that Mrs. Cogswell duly made, signed, executed, and delivered the trust deed. She should have been made acquainted with the contents of the instrument (Civ. Code, secs. 1093, 1186, 1191; Wedel v. Herman, 59 Cal. 514; Langton v. Marshall, 59 Tex. 297; Pease v. Barbiers, 10 Cal. 436), and asked if she wished to retract the execution. (Ruleman v. Pritchett, 56 Tex. 485; Burkett v. Scarborough, 59 Tex. 497; Landers v. Bolton, 26 Cal. 408; Chauvin v. Wagner, 18 Mo. 531; Bateman's Petition, 11 R. I. 585; Grove v. Zumbro, 14 Gratt. 501; Belcher V. Weaver, 46 Tex. 293; 26 Am. Rep. 267; Leonis v. Lazzarovich, 55 Cal. 52; Mariner v. Saunders, 5 Gilm. 125.)

The action of the trustees in leasing the college was a clear abandonment of the trust, and the property reverted by operation of law to the donors. (Pomeroy's Equity Jurisprudence, secs. 1032, 1033.) Mrs. Cogswell should not be bound by the trust deed. The attorney superintending the execution of the instrument did not ascertain whether or not she well understood the purport of the transaction, and freely and willingly participated in its execution. (Garnsey v. Mundy, 24 N. J. Eq. 243; Huguenin v. Baseley, 14 Ves. 273; Pomeroy's Equity Jurisprudence, 943, 951, 955-57, 963, 968; Smith v. Kay, 7 H. L. Cas. 750, 779; 2 Eq. Lead. Cas. 1156, 1174, 1176, 1189-91; Kempson v. Ashbee, L. R. 10 Ch. App. 15; Naldred v. Gilham, 1 P. Wms. 577; 13 Am. Law Reg., note.)

Rogers & Paterson, for Respondents.

If, after the charity is established, and is in process of administration, there is any abuse of the trust or misemployment of the funds, and there are no individuals having the right to go into court and maintain a bill, the attorney general, representing the sovereign power and the general public, may bring the subject before the court by bill or information, and obtain perfect redress for all abuses. (Perry on Trusts, 4th ed., sec. 732, p. 357; Lewin on Trusts, secs. 665, 674; 1 Daniell's Chancery Practice, 9-12, and notes; 2 Kent's Commentaries, 10th ed., 359, note; 4 Kent's Commentaries, 619, note; Parker v. May, 5 Cush. 341; Attorney General v. Garrison, 101 Mass. 223; Attorney General v. Wallace, 7 B. Mon. 611, 612, 619; Attorney General v. Parker, 126 Mass. 221; Attorney General v. Clergy Soc., 8 Rich. Eq. 190; Attor-. zey General v. Meeting House, 3 Gray, 1; Matter of Bedford Charity, 2 Swanst. 520; Wellbeloved v. Jones, 1 Sim. & St. 40.) That power is a common-law power incident to the office. (See authorities cited, supra; Attorney General v. Parker, supra; Parker v. May, supra; Orford etc. Soc. v. West etc. Soc., 55 N. H. 463; Attorney General v. Dublin, 38 N. H. 459; People v. Dashaway

Assn., 84 Cal. 114.) The trust is not void for uncertainty. The essential feature of a good trust for charitable uses is the indefiniteness or uncertainty of the beneficiaries. (See cases, supra.) A gift to promote the public good by the encouragement of learning, science, and the useful arts, without any particular reference to the poor, is a charity. (American Academy v. Harvard College, 12 Gray, 582; Whicker v. Hume, 7 H. L. Cas. 124, 141, 145; Russell v. Allen, 107 U. S. 163, 172; Hinckley's Estate, 58 Cal. 457; Goodell v. Union Assn., 29 N. J. Eq. 32.) The trust is not in contravention of section 9, article XX, of the constitution. (1 Blackstone's Commentaries, 471; Dartmouth College v. Woodward, 4 Wheat. 518, 633, 640; Vidal v. Girard, 2 How. 127, 191.) As to the question whether Mrs. Cogswell signed the deed with knowledge of what she was doing, the record shows no substantial conflict, but, assuming the contrary, the court will not interfere with the judgment below. The evidence outside of hers is abundant to support the finding. The stipulation at the trial admitting that "the acknowledgments were in due form," admits that the certificate of acknowledgment contained ail that the statute required. (Code Civ. Proc., secs. 1855, 1919, 1948; Downing v. Le Du, 82 Cal. 471, 473; Jones on Mortgages, sec. 538; Grant v. White, 57 Cal. 141; De Arnaz v. Escandon, 59 Cal. 489.) Under the law of this state a trust can be extinguished only by the entire fulfillment of its object, or its object becoming impossible or unlawful; but not by being impracticable. (Civ. Code, sec. 2279.) If trustees of a charity abuse the trust, misapply the charity fund, or commit a breach of trust, the property does not revert to the heirs or legal representatives of the donor unless there is an express condition of the gift that it shall do so. (Civ. Code, sec. 2280; Perry on Trusts, sec. 744; Brown v. Baptist Soc., 9 R. I. 177, 186; Barr v. Weld, 24 Pa. St. 84; Stanley v. Colt, 5 Wall. 119; Sanderson v. White, 18 Pick. 328; 29 Am. Dec. 591; Attorney General v. Dublin, supra; Chapin v. School Dist., 35 N. H. 445; Hadley v. Hopkins Academy, 14 Pick. 241;