63 S.E.2d 786 (Va. 1951)
Charles B. Henry, a resident of Winchester, Virginia, died testate on April 23, 1949.1 His will dated April 21, 1949, was admitted to probate and the Shenandoah Valley National Bank of Winchester qualified as the designated executor and trustee.2
Subject to two inconsequential provisions, Henry's entire estate valued at $86,000 was left in trust to be known as the Charles B. Henry and Fannie Belle Henry Fund.3 The trustee was directed to invest and reinvest the estate, collect the income, and on the last school day before Easter and before Christmas each year divide the net income into equal parts and pay one part to each child then enrolled in the first, second, and third grades of the John Kerr School in Winchester, with the payments to be used by each child in the furtherance of his or her education.4
The John Kerr School is a public primary school with an enrollment of approximately 458 pupils.5 If the school were discontinued, payments would be made instead to children in the same grades of any successor school or schools as determined by the Winchester School Board.6 The trustee was granted broad power and discretion to retain, sell, invest, and reinvest estate assets as it deemed in the best interest of the trust.7
Henry left no children or near relatives.8 His heirs and distributees upon intestacy were first cousins and more remote kin.9 One next of kin filed suit against the executor and trustee challenging the trust provisions.10 The bill alleged that the trust did not constitute a charitable trust and was invalid because it violated the rule against perpetuities.11 Other heirs joined the suit and sought to have the trust declared void with the estate distributed among the next of kin.12
The cause was heard on the bill and a demurrer filed by the executor and trustee.13 The demurrer was overruled and decrees were entered adjudicating the principles of the cause.14 From those decrees this appeal was awarded.15
Whether the will creates a valid charitable trust?16
A charitable trust is created only if the settlor properly manifests an intention to create a charitable trust for purposes including the advancement of education or other purposes the accomplishment of which is beneficial to the community, requiring a gift applied for the benefit of an indefinite number of persons by relieving poverty, advancing education, or otherwise lessening the burdens of government, as distinguished from a mere private benevolence or liberality that lacks this public character and violates the rule against perpetuities when perpetual.17
No. The established facts show that the will directed the trustee to divide net income into equal parts and pay one part to each of the approximately 458 children enrolled in the first, second, and third grades of the John Kerr School on the last school day before Easter and before Christmas.18
The payments were to be used by each child in the furtherance of education.19 This mandatory distribution, without any trustee discretion to select recipients based on need or to control application of the funds, demonstrates that the dominant intent was to confer direct cash gifts upon a fixed class of children for holiday enjoyment rather than to advance education or relieve poverty.20
The facts further establish that Henry left no children or near relatives.21 The John Kerr School is a public primary school.22 If discontinued, the payments would shift to successor schools as determined by the Winchester School Board.23 Yet these provisions do not alter the core character of the trust as a series of private benefactions.24 Because the ultimate recipients are personally designated by grade enrollment at specific times, the trust lacks any requirement that beneficiaries be poor or in necessitous circumstances.25
Therefore, the disposition fails to meet the requirement of indefiniteness and public benefit essential to charity.26 Application of the rule to these facts confirms that the appended educational-use phrase is ineffectual against the explicit mandatory payment language.27 This renders the trust a private one that offends the rule against perpetuities and is therefore void.28
The will does not create a valid charitable trust.29