Dissenting Opinion, per MARSHALL, C. J.

Referring to the case of Trustees of McIntire Poor School v. Zanesville Canal & Mfg. Co., 9 Ohio, 203, 287, and Zanesville Canal & Mfg. Co. v. City of Zanesville, 20 Ohio, 483, Judge Ranney points out that in that estate the devise was claimed to be void for uncertainty as to the objects intended to be benefited, but that it was sustained upon the following principle declared in that case, "Where a trust is plainly defined, and a trustee exists capable of holding the property, and executing the trust, it has never been doubted that chancery has jurisdiction over it, by its own inherent authority."

That case, as above noted, was before this court three times for judicial construction and for the court's direction, and by reference to the report found in 9 Ohio, 203, 287, it will be found that after the death of McIntire the general assembly of Ohio enacted an amendment to the charter of The Zanesville Canal & Mfg. Co., trustee, giving that corporation power to administer the trust, such enactment being dated the year 1836.

By reference to the case of Vidal v. Girard's Exrs., 2 How., 127, it will be found that Girard named the mayor, aldermen and citizens of Philadelphia as trustees to carry out the trust. Thereafter a corporation was organized under Pennsylvania laws incorporating the mayor, aldermen and citizens of Philadelphia into a separate corporation for the particular purpose of carrying out the provisions of the trust.

More than a dozen such instances can be found among the reported cases, all of which will be found

Dissenting Opinion, per MARSHALL, C. J.

referred to in the case of Rockwell v. Blaney, 9 N. P., N. S., 500. In that case, Judge Duncan, sitting in Union county, in a well-considered opinion, holds that a trust will never fail for the want of a trustee.

In the case of Landis & Vaniman, Exrs. of Urmey, v. Wooden, supra, Judge Ranney made the following closing observation in his opinion: "It is suggested that the trustees in this case should be changed. The papers present no reason why this court should interfere with the appointment made by the testator himself. If for any reason hereafter, the trust shall not be faithfully executed, the court of chancery in the county will possess full power to remedy the defect so as to carry into full effect the intention of the testator: for no trust can fail for the want of a trustee."

It is urged, however, in the majority opinion, that paragraph No. 18 is also void. And if the majority opinion can be said to assign any reason for its conclusion concerning paragraph No. 18, it is found in the following language: "by attaching thereto a private charity which may conflict with the public charities so to be created in paragraph No. 17." A careful examination of the two paragraphs will show that there is no conflict. It is true that in No. 18 the testatrix sought to make some provision for needy relatives. This provision, however, was confined to three persons, and it has been stated in argument that they are old and these charges against the property cannot long continue. These benefactions would make no impression upon the value of

Dissenting Opinion, per MARSHALL, C. J.

the estate, because it is only provided that they should have shelter in one of the houses on the property, and a further sum of $200 per year if they should become objects of charity. It is possible, therefore, that the entire real estate referred to in paragraph 17 might not be available for the purposes of the charitable trust until the death of such three relatives, but this would merely amount to a postponement of the full administration of the trust during the lifetime of the three relatives. The last sentence in paragraph 18 indicates that the testatrix did not expect that any such assistance to relatives would be necessary. But even if it should have become necessary, it would not militate against the validity of either paragraph 17 or 18. No authorities are cited in the majority opinion for reaching this conclusion, but many authorities might be cited to the contrary. The will of Henry C. Frick gave a life estate to his wife in his homestead, and at her death the house and all his art collections, valued at millions, were left to a corporation to be formed for "A Gallery of Art." In the case of Howe v. Wilson, Exr., 91 Mo., 45, a bequest was upheld in which the entire estate was given to the wife for life, under the management of a trustee, with power to apply the interest and income, and a portion of the principal, if necessary, for the support of the wife, and at her death to be distributed among haritable institutions. In the Matter of MacDowell, 217 N. Y., 454, a bequest was made to provide for "a home for refined, educated Protestant gentlewomen, whose means are small and whose home is made unhappy by having to live with

Dissenting Opinion, per MARSHALL, C. J.

relatives, who think them in the way." The will further provided that preference should be given to a sister of the testator as an inmate of such home.

Many other instances might be cited where provisions of a will similar to paragraph 18 of the will of Mrs. Sturges have been upheld. Even if paragraph 17 is invalid it does not follow that paragraph 18 is invalid, because they are entirely separate paragraphs; and after 17 has been declared to be invalid there is absolutely no reason for declaring 18 to be invalid and it is a particularly cruel thing to do so. After paragraph 17 has been declared invalid the provisions of paragraph 18 are left standing alone, and they amount to only a reasonable provision for needy relatives. Surely there is nothing indefinite or uncertain in the requirement that house accommodations be furnished to relatives, not exceeding three in number, and in addition thereto the sum of $200 annually, if they should become objects of charity.

Statement of the Case.

THE COUNTY BOARD OF EDUCATION OF HANCOCK COUNTY V. BOEHM ET AL.

Schools-New districts created, how-Section 4736, General Code -Scope of power of county board - Remonstrance by electors

- Statutory construction-Repeals and new enactments-Presumption as to legislative intent.

1. When an existing statute is repealed and a new and different statute upon the same subject is enacted, it is presumed that the legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.

2. Where the legislature in plain and unambiguous language within the scope of its constitutional power vests the power and discretion in a county board of education to "create a school district from one or more school districts or parts thereof" no presumption arises that it was the intention of the legislature that the power and discretion thus vested in such board was intended to be limited or controlled by other sections of the Code theretofore enacted and unrepealed, providing for an entirely different mode of transferring territory from one district to another.

3. Section 4736, General Code, vests in the county board of education the power to create a new school district from an existing district and a part of another existing district, and, in the absence of fraud, bad faith, or the taking of such arbitrary, whimsical and unreasonable action by the board as amounts to an abuse of discretion, the only limitation upon such power and discretion is the limitation contained in that section providing for a remonstrance by a majority of the qualified electors residing in the territory affected by such order.

(No. 16790- Decided April 26, 1921.)

CERTIFIED by the Court of Appeals of Hancock county.*

* Certified as being in conflict with Shearer et al. v. Board of Education of Stark County, in which case the Court of Appeals of Stark county rendered judgment upon the authorities and reasons set forth in the opinion of the court of common pleas. REPORTER.