The opinion of the Court was delivered, by
Mr. Justice Cothran.The statement of this case in the elaborate and admirable report of the special referee („Hon. J. E. McDonald) renders unnecessary any further statement. This Court concurs in the main with the reasoning and conclusions of the referee, confirmed by the decree of the Circuit Judge, but deems it proper to add the following:
1
While the residuary estate is not bequeathed and devised to any particular person in express terms, the setting aside of that estate for the purpose declared,- coupled with the express direction to the executors to carry out the provisions of the will relating thereto, constitutes a vesting, by implication,* of the estate in the executors, charged with the expressed trust.
2
It does not necessarily follow that because the trust comes clearly within the definition of a “charitable trust,” as it does, the idea is predominant that the benefits of the proposed institution are to be enjoyed gratuitously. The will provides for the establishment of a “public hospital,” in the ordinary management of which, necessarily, charges for services rendered are made. The public hospital is ordained to be established “for the treatment of white and colored patients.” The provision for gratuitous treatment
is conspicuously absent. The absence of a provision for the maintenance of the hospital is inconsistent with the purpose that the treatment should be free and consistent with self-support.
3
The executors are authorized and empowered to establish, build and equip a public hospital; no direction is given that they shall operate it. It is improbable that a physician should have confided this duty to inexperienced men. °The establishment of an institution of this character implies more than simply to purchase a lot, erect a building, and equip it with the necessary appurtenances of a hospital. The executors are directed by the execution of this trust to exercise “their best judgment”; and-if in that exercise it should be deemed most expedient, as doubtless it would appear, not only to build and equip the hospital but to organize an executive force to operate and manage it, such power would be easily implied in the duty o-f an establishment. The operating organization, through the formation of a society, association, or corporation, could be referred to that duty.
4
Acting under the discretion lodged in them by the will, the executors may well, and should, take into consideration the size of the town of Fairfax, the health and needs of the community, the proximity of similar institutions, and other considerations which would affect the reasonable extent of the venture; a discretion which, wisely exercised, would in all probability leave and unexpended fund, to be invested for the purpose of meeting a deficiency in the operation, the almost inevitable consequence of which renders justifiable, if not imperative, some provision therefor, as a proper element in the policy of a sound establishment.
The judgment of this Court is that the decree o-f the Circuit Court be affirmed.