426 • HARVARD LAW REVIEW. Supreme Court of the United States has repeatedly affirmed that becau=;e legislation is special it does not therefore deny the equal protection of the laws. Missouri Pac. R. R. v. Humes ^ 115 U. S. 512; Ba?'bie?- v. Connolly, 113 U. S. 27 ; Missouri R. R. v. Mackey, 127 U. S. 205 ; Minne- sota R.R. V. Beckwith, 129 U. S. 27. In Soon Hing v. Crowley, 113 U. S. 704, it was said, *' The specific regulations for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind. The discriminations which are open to ob- jection are those where persons engaged in the same business are sub- jected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the laws." See also an able dissenting opinion in State . Loomis^ 115 Mo. 307. Is A Trust Invalidated by Lack of Beneficiaries ? — A recent Ala- bama case, Festorazzi et al. v. St. Joseph's Church of Mobile et al., 18 So. Rep. 394 (Ala.), raises again the question involved in Moricew. Bishop of Durham., 10 Vesey, 521, whether under a bequest for an indefinite object the trustee shall be allowed to carry out the testator's wishes. The court decreed that the trustees of a bequest " to be used in solemn masses for the repose of my soul," should not perform the trust, but that the sum must be held in trust for the testator's next of kin. This accords with Morice v. Bishop of Durham, and decisions in several of the American States, particularly New York, where the doctrine was made famous by the ruling on the " Tilden Trust." The doctrine obviously is based on the fact that there is nobody who can compel performance according to the terms of the will, and therefore there is no legal trust. But under this doctrine the testator's wishes are utterly defeated. It is admitted that if the honorary trustee does not choose to fulfil his trust, he should become constructive trustee for the testator's next of kin, since the testator never intended him to receive the benefit, and next to the intended beneficiary the testator's next of kin have the best equitable right. But it would seem to be better justice and equally good law that where the trustee is wilHng to fulfil his duty he should not be interfered with. In most jurisdictions an exception to this doctrine of Morice v. Bishop of Durham is taken in the case of charitable trusts. Even in New York the exception is now established by statute. The place of the cestui que trust is assumed by the State. In Massachusetts and Pennsylvania a bequest for masses is held to come within this exception. But elsewhere, on the theory of Morice v. Bishop of Durham, a bequest for masses is void, except in Ireland, where by numerous decisions the trustee is al- lowed to fulfil the trust. In England such a bequest is void as a super- stitious use (i Ames's Cas. on Trusts, 210, 211); yet a gift inter vivos upon trust for masses is in general valid, even in New York, where Morice V. Bishop of Durham is in other respects followed to the bitter end. In addition to these departures from Morice v. Bishop of Durham, there are several groups of cases indistinguishable from it in principle, in which equity judges have declined to prevent the performance of a purely honorary trust. Such cases are those of bequests in trust for erection
