chancery; and in connection herewith, the impossibility of executing this trust as a charity, in any other way than by an application of the property under the sign-manual; and incidentally, it will be inquired, whether this trust is a charity within the Statute of 43 Eliz., which Statute defines the charities of the English law, though it did not originate the doctrine of charities, as recognized by that system of jurisprudence.

3. That the cy pres doctrine of the English Court of Chancery, has not been adopted in Pennsylvania, South Carolina or the other States of the Union, either as a part of the common law or as an inherent power of a court of chancery; and herein of the law of charitable trusts in the United States generally, but particularly in the States of Pennsylvania and South Carolina, and the whole of the difference between that law and the doctrine of private trusts; and incidentally, the impossibility of sustaining the case for the plaintiff under the law of charitable or private trusts in the United States, and particularly in either of the States just mentioned or in any other way than under the cy pres doctrine.

4. That the doctrine of powers, or the Pennsylvania Statutes in relation to executors and administrators, are entirely inapplicable to the present case.

5. That if a bequest or devise, like the present, fails or becomes void, it is like an ordinary lapsed legacy, and the next of kin or heirs at law will take the bequest or devise."

1. Ordinary or private trusts must be in every particular certain; certain as to the words creating the trust; certain as respects the subject matter of the trust; and certain as regards the objects or persons to be benefited by the trust. If this last is uncertain, there is a trust, but as there is no specified object, the trust fails. That this certainty is required is proved by the following cases:

Malim v. Keighley, 2 Ves. Jr. 333, 529; Lucas v. Lockhart, 10 Sm. & M. 466; Jackson v. Jackson, 2 Barr. 212; Atty-Gen. v. Hall, Fitzg. 314: Strange v. Barnard, 2 Brown, Ch. 586; Tibbits v. Tibbits, 19 Ves. 656; Briggs v. Penny, 8 Eng. L. & Eq. 231; Inglis v. Trustees S. S. Harbor, 3 Pet. 99; Erickson v. Willard, 1 N. H. 217; Harrison v. Harrison's Adm'r, 2 Gratt. 1. There is only one kind of trust which the laws of England have excluded from the doctrines governing ordinary or private trusts. The exception is the trust for technical charities.

In England, a technical charity is one defined in the law as a charity. If a technical charity is clearly intended in a trust, the object of the charity may be uncertain; yet chancery will, on account of the charitable intention, when clearly manifested, carry out that intention by executing or causing to be executed the charitable trust for some charitable object as near as may be (cy pres) to the object proposed by the donor. This may be done by the exercise of the royal prerogative which is vested in the crown as parens patriæ through the Chancellor, or by the direct application of this prerogative by the sovereign under the sign-manual.

2. This case is not a charity within the Statute of 43 Eliz. ch. 4.

If the bequest of Mr. Kohne be compared

with the twenty-one objects there specified, it will be seen that it cannot be included within any of them; his bequest is to such "charitable institutions of Pennsylvania and South Carolina," as his executors shall "deem most beneficial to mankind,” but a desire to benefit mankind is not so much indicative of charity as of benevolence, and it has been expressly decided in England that this is not sufficient to support a trust as a charity.

Olmaney v. Butcher, 1 Turner & R. 260; Chittenden v. Chittenden, 1 Am. Law Reg. 542. But supposing this to be a charitable trust, it does not belong to that class of cases which would be executed cy pres under the extraordinary powers of the Lord Chancellor representing the person of his sovereign, but must be executed by the sovereign personally under the sign-manual.

Taking the law of charities in England as it existed at the time that the American Colonies became independent States, or even as it exists now, it would even be found a nice question to determine whether a trust for charity, which would be void as an ordinary trust, should be executed under the extraordinary powers of the Lord Chancellor by means of a scheme or by the sovereign personally under the sign-manual.

Atty.-Gen. v. Hickman, 2 Eq. Cas. Abr. 193; White v. White, 1 Brown Ch. 12; Atty.-Gen. v. Bolton, 3 Anstr. 820; Mills v. Farmer, 1 Mer. 55; Hayter v. Trego, 5 Rus. 113; Atty. Gen. v. Earl of Lonsdale, 1 Simons, 105; Atty.Gen. v. Coopers' Co., 19 Ves. 187; Moggridge v. Thackwell, 1 Ves. Jr. 464; S. C. 7 Ves. Jr. 36; Story's Com. on Eq. Vol. II. sec. 1190; Atty.Gen. v. Syderfen, 1 Vern. 224; Atty.-Gen. v. Baxter, 1 Vern. 248; Atty.-Gen. v. Matthews, 2 Lev. 167; The King v. Lady Portington, 1 Salk. 162.

3. The cy pres doctrine of English chancery has not been adopted in Pennsylvania, South Carolina or other States of the Union, either as a part of the common law or as an inherent power of a court of equity.

Our forefathers incorporated with our jurisprudence so much of the common law as accords with the alteration from a monarchy to a republic, and the cy pres principle could not have been admitted into our law. There being no king there can be no such prerogative.

If the power claimed for our laws exists, it will be found defined in our federal or state constitutions, and it will be easy to ascertain how much, if any, of this enormous power was really vested in the State.

No such power can be claimed for the executors in the constitution of the State of Pennsylvania.

By the words of the constitution, our tribunals have "the care of the person and the estates of those who are non compos mentis, and the Legislature may vest in the said courts such other powers to grant relief in equity as shall be found necessary." The Legislature of Pennsylvania has repeatedly exercised the power thus granted; but no cy pres doctrine can be found in any of its enactments. This ought to be conclusive, as it is direct negative proof; and as the power is an extraordinary one, it should be positively declared.

Again, we submit that the cy pres principle is entirely beyond the reach of proper execution by a state without an established religion.

One large class of cases to which it is applied in Great Britain, "superstitious uses," as they are termed in the English law, is taken away by universal religious toleration; for a "superstitious use" is one which has for its object the propagation of the rights of a religion not tolerated by law.

Boyle on Charity, 242; M. E. Church v. Remington, 1 Watts, 224; Miller v. Lerch, 1 Wall. Jr. 215; Andrew v. N. Y. Bible and Com. Prayer Book Soc. 4 Sand. 156.

The appellant's counsel, however, contend that his case can be sustained under the doctrine of private or ordinary trusts; and under this head they assert that our courts will exercise the discretion in regard to the beneficial objects of a trust in the cases where those objects are much less certain than in the present instance. Nay, more, it is claimed that as the courts should control the discretion of the trustees in cases like the present, therefore they could act for the trustees where they did not act.

As they have not cited any precedents to sustain these assertions, we presume it is not necessary to do more than deny their correctness, and call for the proof of them. We do not find them in the book, and they are contrary to the whole tenor of the decisions upon the subject.

4. This is not the case of a power, but of a trust, and consequently does not fall within the law of powers. And if it were a power, this would not help the complainant; for it is a general rule, that although equity will aid the defective execution of a power, it will not supply a non-execution.

Story's Confl. of Laws, sec. 47.

2. The provision here is "to such charitable institutions in Pennsylvania and South Carolina as the executors or the survivor of them may deem most beneficial to mankind, and so that part of the colored population in each of said States may partake of the benefit thereof." Charitable institutions mean institutions incorporated for charitable purposes.

Blenon's Estate, Brightly, 338.

3. This disposition for the benefit of charitable institutions was a lawful disposition, and one which would be supported by the courts in England and Pennsylvania, and, it is believed, in South Carolina. The difficulty in treating questions of this kind is in avoiding a tedious repetition of things already familiar to the court. Since the decision of Vidal v. The City of Phil. 2 How. 127, the principle may be considered established, that the Statute of Elizabeth neither created nor enlarged the rule governing charitable bequests. The Statute itself does not purport to have done so, but merely to give an additional remedy. And it was established, in the case referred to, that from the earliest times, chancery had, in an unbroken course of precedents, constantly exercised jurisdiction over charities, and had supported them. It is enough to say that such a gift as this is perfectly valid; for which we refer to the cases stated in the original brief of the appellants, and in the brief of the appellee. The court will understand how far this principle is carried out in Pennsylvania; by what is said in Witman v. Lex, 17 S. & R. 93, that court would have found no difficulty in ruling in favor of the legatee in Morice v. Durham, 9 Ves. 399. There, the bequest was for the purposes of benevolence and liberality. In Beaver v. Filson, 8 Barr, 327, it is said: Pennsylvania, religious and charitable institutions have always been favored, without re

"In

The personal discretion conferred on a trustee or donee of a power cannot be enforced by the court.

Meggison v. Moore, 2 Ves. Jr. 630.

Where a discretion is vested in trustees which they are not to exercise until a certain specified time, and they all die before that time arrives, the trust will fail.

Ray v. Adams, 3 Myl. & K. 237.

5. If a bequest or devise like the present fails or becomes void, it is like an ordinary lapsed legacy, and the next of kin or heirs at law will take the bequest or devise.

This position requires no proof, and is only submitted as a corollary to the preceding points in this brief, with a few citations from the numerous and uncontradicted authorities which sustain it.

Morice v. Bishop of Durham, 9 Ves. 399; James v. Allen, 3 Mer. 17; Buttler v. Onmaney, 4 Russ. 70; Atty-Gen. v. Sibthorp, 2 Russ. & M. 107; Ellis v. Selby, 7 Sim. Ch. 352, 392; 1 Myl. & Cr. 286; M. E. Church v. Remington, 1 Watts, 226.

Reply by counsel for appellant:

1. We think it very clear that the domicil of testator was in Pennsylvania, and of course the law of Pennsylvania is to govern in the construction of his will, except so far as regards any real estate which he had elsewhere.

and uncertain the object may be, provided there be a discretionary power vested somewhere over the application of the testator's bounty to these objects." It is utterly impossible seriously to deny that this bequest is just as good in Pennsylvania as it would be in England, and that is perfectly valid in both.

4. We take it to be equally clear, that this is a case in which, in England, the court would itself superintend the proper application of the fund, and that it is not a case in which the crown, as parens patriæ, would administer it. And it is a case in which the courts of Pennsylvania, we contend, would have ample power to prevent a failure of the trust. But we are not to conclude that the courts of this country have no jurisdiction over charities, because in England the King is said to have a general superintending power over them. The ques tion here is, whether, in this country, the Court of Chancery would superintend the execution of the trust. We conceive it to be so clear that it would, that we do not think it necessary to enter on the argument, that even if the disposition in this case would belong to the crown, the State would have the prerogative of the parens patriæ.

See 2 Sto. Eq. sec. 1190; Wright v. Methodist Church, 1 Hoff. Ch. 202; Going v. Emery, 16 Pick. 107; 2 Kent, 5th ed. 288, n. a; 4 Id. 508, n. b.; King v. Woodhull, 3 Edw. Ch. 79,

The case of The Attorney-General v. Berryman, 1 Dickens, 168, can have but little application here. In that case, there appears to have been no controversy. Lord Hardwick decided that the legacy was good, and suggested that the King be applied to, who required that the Atty. Gen. move the Court of Chancery to apply the money to such purposes as the deceased executor had named in his lifetime.

The Chancellor so ordered it. There appears to have been no contest, and no argument in the case upon the point in question.

The case of The Attorney-General v. Baxter, 1 Vernon, 248, has been strangely misunderstood by the learned counsel for the appellees. The King did, in that case, undertake to apply the money, and declared his pleasure to be that it should go toward the building of Chelsea College; but the Lord Keeper ultimately disregarded the act of the Crown, and decreed the fund for the maintenance of a chaplain of Chelsea College, as the report of the case in Vernon shows.

work as powerfully here as did those which produce the system of relief that sprung from the statute of charitable uses. The simplicity which marked the lives of our forefathers, enabled them to do without many institutions that in the present state of society are absolutely indispensable. Incorporations were wholly unknown; yet to all sorts of pious and charitable associations in every part of the province, valuable bequests were made by those who were ignorant of the niceties of expression necessary to accomplish the object at the common law, and who were not impressed with the opinion that it was at all necessary to consult counsel. Of this, the will of the celebrated Dr. Franklin, which contains a bequest of money, to be loaned for five years to young mechanics, is a striking instance. Yet such bequests have hitherto taken effect, without a question as to their validity. There are few worshiping congregations, of any pretensions to antiquity, who have not derived a part of their property from testamentary donations, that would have failed on the principles of the Eng

case.

In our first brief, when it is stated that it is not necessary to resort to the doctrine of cy pres, the context sufficiently shows that the phrase "cy pres" is used, as it frequently has been, to express the principle by which, when the objects designated by the testator have failed, by reason of illegality or otherwise, the fund has been applied to purposes different from those which he expressed or intended. In this sense, the phrase is used in all our Pennsylvania cases, in which the doctrine of cy pres is disclaimed. Thus, in Witman v. Lex, 17

Serg. & R. 93, where the doctrine of cy pres is

disclaimed, the Chief Justice uses this emphatic language: "At the common law of England these bequests could not be sustained, even where there is no uncertainty as to the person. If the bequest be of a trust not defined with reasonable certainty, it will fail; for it is clear the testator did not intend that the trustee should have the beneficial interest. Such a bequest, however, would take effect under the 43 Eliz. ch. 4; and this has driven the counsel to argue against the extension of that statute to this country a point that must be conceded. But we consider the principles which chancery has adopted in the application of its principles to particular cases as obtaining here, not indeed by force of the statute, but as part of our own common law; and there the object is defined and we are not restrained by the inadequacy of the instrument which we are compelled to employ nearly, if not altogether. We give relief to the extent that chancery does in England; and this part of our system has been produced by causes which

than bequests to unincorporated congregations without the intervention of trustees; and even when there was a corporation, it frequently happened that the corporate designation was mistaken, or the trust vaguely defined; notwithstanding which, the testator's bounty was uniformly applied to its objects. Surely a usage of such early origin and extensive application, may claim the sanction of a law resting as it does on the basis of our own laws of domestic origin-the legislation of common consent."

See, also Wright v. Linn, 9 Barr, 433; Martin v. McCord, 5 Watts, 493; Morrison v. Beirer, 2 Watts & Serg. 87; Burton's Compend. 420; Pickering v. Shotwell, 10 Barr. 26; Mills v. Farmer, 1 Meriv. 54.

Mr. Justice McLean delivered the opinion of the court:

This is an appeal in chancery, from the Circuit Court of the United States for the Eastern District of Pennsylvania.

The case involves the construction of the He first settled in

will of Frederick Kohne.

Charleston, South Carolina, where he engaged

in active business and accumulated a large fortune. For many years before his death, his residence was divided between Charleston and much to his wealth, in the acquisition of real Philadelphia. At the latter place he added and personal property. He had furnished houses in both cities, and a country house in the neighborhood of Philadelphia. Until his health became infirm, he resided a part of the year in the South, and the other part in the where his will was made and published, in the North. In May, 1829, he died in Philadelphia, month of April preceding his death. In his will, he declared himself to be of the City of Philadelphia.

After giving several annuities to his wife and others, and legacies to his friends in this country and in foreign countries, to charitable objects, and providing for the payment of them he declares: "Forasmuch as there will be a surplus income of my estate, beyond what will be necessary to pay my said wife's annuity and the other annuities, I do therefore direct my said executors to invest the said surplus income,

"It is a principle in England, that the King, as parens patriæ, enforces public charities, when no other person is intrusted with the right. Where there is no trustee, the King, by his Lord Chancellor, administers the trust, as the keeper of the King's conscience; and it is not important whether the Chancellor acts as the special delegate of the Crown, or the King acts under the sign-manual, his discretion being guided by the Chancellor."

It may be well again to state the precise question before us. "The executors, or the survivor of them, after the decease of the testator's wife, was authorized to dispose of the property, for the use of such charitable institutions in Pennsylvania and South Carolina as they or he may deem most beneficial to mankind."

No special trust is vested in the executors, by reason of this power of appointment. It is separable and distinct from their ordinary duties and trust as executors. It was to be exercised after the death of Mrs. Kohne; but the executors died before her decease, and consequently they had no power to make the appointment. The conditions annexed by the testator rendered the appointment impossible. Had the contingency of the death of Mrs. Kohne happened, as the testator from her advanced age contemplated, during the life of the executors or the survivor of them, the appointment might have been made at his or their discretion. But had they or the survivor of them failed to make it, it might have become a question whether he or they could have been coerced to do so by the exercise of any known chancery power in this country. The will contained no provision for such a 'contingency, and it could not be brought under the trust of executorship. Chancery will not compel the execution of a mere naked power. 386*] 1 Story's Eq. sec. 169. But it will, *under equitable circumstances, aid a defective execution of a power. A power when coupled with a trust, if not executed before the death of the trustee, at law the power is extinguished, but the trust, in chancery, is held to survive.

The testator was unwilling to give this discretion to select the objects of his bounty, except to his executors. He relied on their discrimination, their judgment, their integrity and fitness, to carry out so delicate and important a power. He made no provision for a failure in this respect, by his executors or the survivor of them, nor for the contingency of their deaths before Mrs. Kohne's decease. They died before they had the power to appoint, and now what remains of this bequest, on which a court of chancery can act?

There must be some creative energy to give

perfected. Nothing short of the prerogative power, it would seem, can reach this case. There is not only uncertainty in the beneficiaries of his charity, but behind that is a more formidable objection. There is no expressed will of the testator. He intended to speak through his executors or the survivor of them, but by the acts of Providence this has become impossible. It is then as though he had not spoken. Can any power now speak for him, except the parens patriæ? Had he declared that the residue of his estate should be applied to certain charitable purposes, under the Statute of 43 Eliz., or on principles similar to those of the statute, effect might be given to the bequest, as a charity, in the State of Pennsylvania. The words as to the residue of his property were used in reference to the discretion to be exercised by his executors. Without their action, he did not intend to dispose of the residue of his property.

It is argued, "that in England the Chancellor, in administering charities, acts as a delegate of the Crown, inasmuch as he discharges all his judicial functions in that capacity." If, by this, it is intended to assert that the Chancellor, in fixing the sign-manual of the King, or when he acts under the cy pres power, is in the discharge of his ordinary chancery powers, it does not command our assent.

The Statute of 43 Eliz., though not technically in force in Pennsylvania, yet, by common usage and constitutional recognition, the principles of the statute are acted upon in cases involving charities. Witman v. Lex, Serg. & R. 88.

In the argument, the case of Moggridge v. Thackwell, 7 Ves. 86, was cited, as identical with the case before us. "The only difference between that case and this one, it is said, is, that in the former the devise was for objects not defined, as they are in this case." In this the counsel are somewhat mistaken, as the case of Moggridge will show.

*The devise in the will of Ann Cam [*387 was, "And I give all the rest and residue of my personal estate unto James Vaston, of Clapton, Middlesex, gentlemen, his executors and administrators, desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters; and I appoint the said John Moggridge and Mr. Vaston, before mentioned, executors of this my will.

In the final decree, "upon a motion to vary the minutes, Lord Thurlow declared, that the residue of the testatrix's personal estate passed by her will, and ought to go and be applied to charity," etc.

Now, here was a trust created not only in Vaston, but in his executors and administrators, to whom the residue of the estate was bequeathed for the purposes of the charity. In this view, Lord Thurlow might well say, "the residue of the personal estate passed by the will." This was true, though Vaston was dead when the will took effect. This being the case, it is difficult to say that that case is identical with the one before us.

The case of Moggridge v. Thackwell was before Lord Eldon on a rehearing. He entered into a general view of the subject of charities, by the citation of authorities, which showed