## Facts

- A testator’s will bequeathed a broad category of personal property (e.g., books, pictures, statuary, antiques, and similar items) to his trustees.
- The will directed the trustees, “in trust,” to dispose of such items “by way of a memento” to “such of my friends as they … shall select.”
- The will further directed that any such property not disposed of be sold and the proceeds added to the residuary estate.
- The trustees petitioned for instructions on whether the provision created a valid, enforceable disposition and how to administer it.

## Issues

1. Whether the clause created an outright gift to the trustees, a mere discretionary power, or a trust.
2. If a trust was created, whether a private trust for “my friends” is valid when the beneficiaries are not definite and ascertainable.
3. If the attempted trust fails, how the property should be distributed under the will.

## Decision

- The court construed the clause as creating a trust, not an outright gift or a mere power, because its terms imposed an imperative duty to distribute the property.
- The court held the private trust void because “friends” is an indefinite and unascertainable class of beneficiaries.
- The property subject to the invalid trust was treated as falling into the residuary estate pursuant to the will’s direction that undisposed property be sold and the proceeds added to the residue.

## Legal Principles

- A valid private trust requires definite, ascertainable beneficiaries (or a sufficiently certain class) who can claim the benefit of the trust and compel performance.
- A disposition is a trust rather than a power when the instrument imposes mandatory duties, rather than leaving performance to the donee’s will.
- A testator cannot create an enforceable private trust by delegating to trustees the arbitrary selection of beneficiaries from an indefinite group.
- The beneficiary-certainty requirement for private trusts differs from charitable trusts, which may be enforced through public authority rather than specific private beneficiaries.

## Conclusion

The court held that the will’s language imposed a trust duty on the trustees, but the trust failed because “my friends” did not identify a definite, legally ascertainable beneficiary class; accordingly, the property passed as part of the residuary estate.


Clark v. Campbell, 133 A. 166 (N.H. 1926)