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of English opinion and argument would seem to be in favor of an original and necessary jurisdiction in chancery, in respect to bequests and devises in trust, to persons competent to take for charitable purposes, when the general object of the charity was specific and certain, and not contrary to any positive rule of, law.

The elements of the doctrine of the English chancery relating to charitable uses, are to be found in the civil law;(6) and it is questionable whether the English system of charities is to be referred exclusively to the statute of Elizabeth. The statute has been resorted to as a guide, because it contained the largest enumeration of just and meritorious charitable uses; and it may, perhaps, be considered rather as a declaratory law, or specification of previously recognized charities, than as creating, as some cases have intimated, (c) the objects of chancery jurisdiction over charities. If the whole jurisdiction of equity over charitable uses and devises was grounded on the statute of Elizabeth, then we are driven to the conclusion, that, as the statute has never been reenacted, our courts of equity in this country are cut off from a large field of jurisdiction, over some of the most interesting and meritorious trusts that can possibly be created and confided to the integrity of men. It would appear from the preamble * to the statute of Elizabeth, that it did not intend to give * 288 any new validity to charitable donations, but rather to

(b) Codo, lib. 1, tit. 2, sec. 19, 26; tit. 3, sec. 38. Dig. 30, tit. 1. Ibid. 23, 2, 16. Strahan's note to Domat, b. 1, tit. 1, sec. 16. Swinburne, part 6, sec. 1. 2 Domat, b. 3, tit. 1, sec. 6; b. 4, tit. 2, sec. 2, 6; b. 3, tit. 1, sec. 6. Lord Thurlow, in White v. White, 1 Bro. 12. By a rescript of the Emperor Diocletian, corporations could not take real estate without special license; and Gibbon, who refers to the rescript of Diocletian, says, that there were several laws under the Roman emperors enacted with the same design as the English statutes of mortmain. Gibbon's Hist. vol. ii. 345. He alludes, however, to several instances in which those laws had been suspended in favor of Christian charities. The edict of Constantine (as cited from the Theodosian Code by the assistant vice-chancellor, in his able and learned opinion on the subject, in Wright v. The Trustees of the Methodist Episcopal Church, 1 Hoff. Ch. 246) gave legality to legacies to the Christian church, and broke down the Roman statutes of mortmain. Legacies to pious uses became afterwards privileged in the Roman law, and their uncertainty was no objection to their validity. Charities have their foundation in Christianity. A religious purpose is a charitable purpose. Lord Langdale, 1 Keen, 233. Their element is Christian benevolence, or an enlarged love of human kind, without regard to selfish considerations, or even the relations of blood, or affinity, or friendship.

(c) i Ch. Cas. 134, 267. 6 Dow, 136.

provide a new and more effectual remedy for the breaches of those trusts. (a)

(a) The statute defined the charities which chancery would protect, and which were to be enforced; but the better opinion is, that it left the jurisdiction as it existed prior to the statute, untouched. In Dashiell v. Attorney-General, 5 Harr. & Johns. 392, it was decided, after an able discussion, that, independent of the statute of 43 Eliz., (and which had not been adopted in Maryland,) a court of chancery cannot sustain and enforce a devise to charitable uses, which would, without the statute, have been void at law, as vague and indefinite. The same decision was made in Virginia, in Gallego v. The Attorney-General, where the statute of 43 Eliz. was repealed. 3 Leigh, 450.1 Janey's Executor v. Latane, 4 Ibid. 327. See, also, Story J., in 3 Peters (U. S.) 494, S. P. But in Whitman v. Lex, 17 Serg. & Rawle, 88, it was held, that a bequest to St. Michael and Zion churches in Philadelphia, the interest to be laid out in bread annually for ten years, for the poor of the Lutheran congregation, was a valid bequest. That case established that a trust in favor of an incorporated, religious, or charitable society, was an available one ; and the same principle was declared in the case of the Mayor and Corporation of Philadelphia v. Elliott, 3 Rawle, 170, and by Mr. Justice Baldwin, in the case of Sarah Zana's will, decided in the Circuit Court for Pennsylvania, 1833, and cited in 2 How. (U. S.) 195, 197. Though the statute for charitable uses of 43 Eliz. was not extended to Pennsylvania, yet the principles adopted in chancery, in the application of that statute, applied as part of the common law. The Supreme Court of Pennsylvania, in Zimmerman v. Anders, 6 Watts & Serg. 218, declared that a devise of real estate to an unincorporated association for religious purposes, but incorporated after the testator's death, was good, and that the conservative provisions of the statute of Elizabeth, and charitable uses supported before that statute and beyond it, are in force there. So in the American Bible Society v. Wetmore, 17 Conn. 181, it was admitted as a rule of equity to recognize and protect charities not incorporated, in their interests in bequests and devises, though not incorporated, but remaining in abeyance. See Inglis v. Sailor's Snug Harbor, 3 Peters (U. S.) 99. Where the object was defined, and the instrument not inadequate, they give relief to the extent of the English chancery. The bequest, in the case in 9 Vesey, 399, would be good there. It is immaterial whether the person to take be in esse or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to these objects. If the intention sufficiently appears on the bequest it would be held valid. But where the particular charitable object is not specified, or the charitable purpose in the channel of the testator's intention cannot be effected, there is no case in Pennsylvania in which the courts have undertaken to make new channels for the trust on the doctrine of cy pres, though there might be trustees willing and competent to act. Report of the Pennsylvania Commissioners on the Civil Code, Jan. 1835. Uncertainty of individual object would seem to be a characteristic of charity, for personal or individual certainty has often been held fatal to it. The cases to this point are cited by Mr. Binney, in his argument in the great will case referred to in a subsequent page. The decree in the case of the

1 Wheeler v. Smith, 9 How. (U. S.) 55.

2 As to bequests void for uncertainty, see Second Congregational Society, &c. v. First Congregational Society, &c., 14 N. Hamp. 315. Wade v. The American Colonization Society, 7 Smedes & Marsh. 663. Bridges v. Pleasants, 4 Ired. Eq. 26. White v. University, Ibid. 19. Pickering v. Shotwell, 10 Barr, 23. Owens v. Missionary Society, 14 N. Y. (4 Kernan) 380.

(6.) Their powers to make contracts. It was an ancient and technical rule of the common law, that a

Orphan Asylum Society v. M'Cartee, was reversed, on appeal to the Court of Errors of New York; (9 Cowen, 437 ;) but it was on the ground that the devise to the corporation was direct, and not a trust for the corporation; and the opinion of Chancellor Jones, on that point, remains undisturbed. The question relative to the jurisdiction of chancery over devises to charitable uses, remains to be definitely settled in this country. See infra, vol. iv. p. 503. In Moore v. Moore, 4 Dana (Ken.) 357, it was held, that a court of equity, without the aid of any statute, may enforce a trust, whenever it is so defined or described by the donor as to enable the court, consistently with the rules of law, to ascertain and apply it to the objects intended; and where, in such case, there is no trustee appointed by the will, the court will act as trustee and appoint one. The chancery jurisdiction, whether a trust was deemed a charity or not, had been established in England prior to the statute of 43 Eliz. It was further considered that the statuto of Elizabeth, so far as it gave validity to numerous charitable gifts and bequests which would otherwise be void, was in force in Kentucky; but so far as it related to the remedy, when no specific application existed or had failed, by authorizing the appropriation upon the civil law doctrine of cy pres, of the charity to some suitable and congenial purpose of charity, it was not applicable to our institutions, or in force. In this last case, the equity jurisdiction over charitable bequests and trusts was ably and learnedly discussed by C. J. Robertson, in delivering the opinion of the court; and in the case of Potter v. Chapin, 6 Paige, 639, it was held, that the Court of Chancery would sustain a gift or bequest, or dedication of personal property to public or charitable uses, if the same be not inconsistent with local law or public policy, and where the object of such gift or dedication is specific and capable of being carried into effect according to the intention of the donor. Chancellor Walworth said, that the decision in the case of the Baptist Association v. Hart's Executors, 4 Wheaton, 1, was generally admitted to be wrong. That decision was, that the Baptist Association was not incorporated; that the individual associates could not take as trustees, they being a body vague and uncertain ; and that no legal interest vested; and that legacies to charities were sustained in England under the statute of Elizabeth only. Again, in the case of the Dutch Church in Garden street v. Mott, 7 Paige, 77, it was decreed, that the Court of Chancery had an original jurisdiction to enforce and compel the performance of trusts for pious and charitable uses, when the devise or conveyance in trust was made to a trustee capable of taking the legal estate.

In the case of Milno v. Milne, 17 Louis. 46, under the will of Alexander Milne, in which legacies were left to two public charitable asylums, to be, after the death of the testator, incorporated and established at Milneburgh, it was held that the courts were bound to aid in carrying out the intention of the will. The legacies were conditional, and took effect when the corporations were created, by way of executory devise. Also, in the case of Executors of Burr v. Smith, 7 Vermont, 241, a bequest of money to certain unincorporated societies was held good, and that there was a jurisdiction in equity independent of the statute of Elizabeth; and so, again, in Sanderson v. White, 18 Pick. 328, it was held that if trustees in a charity case, and having visitatorial powers, are guilty of a violation of law, they may be proceeded against either at law or in equity, and that equity has a general jurisdiction over abuses of all trusts. It was admitted, in the case of Inglis v. The Sailors' Snug Harbor, 3 Peters (U. S.) 99, that a bequest to an association to be thereafter incorporated, will vest when the corporation is created. So, again, in Bartlett v. Nye, 4 Metcalf, 378, a devise of real estate to an

corporation could not manifest its intentions by any personal act or oral discourse, and that it spoke and acted only by its common

unincorporated society, for charitable uses, was held valid, and equity would enforce the trust as against the heirs.3

In the case already alluded to, in 1 Hoff. Ch. 202, the whole subject of the jurisdiction of chancery over gifts and devises to charitable uses is examined with great industry and learning, and the numerous cases before and since the statute of Elizabeth analyzed ; and the assistant vice-chancellor (Hoffman) concludes that there was a jurisdiction in chancery anterior to the statute uses of 43 Eliz., over charitable uses, upon the ground of trust, and that the courts of equity in New York possess that jurisdiction. He cites several ancient cases from the precedents of bills and pleadings, printed under the direction of the English record commission in 1821, and he held it demonstrable that the statute of Eliz. did not establish a single new principle in the law of charities, and that where that statute does not exist, feoffments and grants to trustees for charitable uses were valid. Ibid. 244 to 265. The statute of Eliz. specified the objects which were to be deemed charities, and the English chancery enforces none other. The power to enforce such charities was in the court, by virtue of its original constitution, independent of the statute. Under the English statute of mortmain, of 9 Geo. II., ch. 36, a corporation cannot take the proceeds of lands devised or directed to be sold, nor moneys arising from the sale of land given to charitable uses by will. Ibid. pp. 223, 227. But in New York, a devise to trustees for the use of a corporation is valid, though a direct devise of land to a corporation for charitable uses is void. The English statute of Geo. II. avoids any gift or appointment to any person of any interest or estate in lands, or of any money or benefit derived from the sale of lands, if it be for the benefit of any charitable use. (Amb. 20, 155, 635. 14 Vesey, 541. 2 Keen, 172. Seaton on Decrees, 130. 1 Hoff. Ch. 234.) But under the N. Y. R. S. vol. ii. p. 57, sec. 3, a devise in trust to lease or sell lands and pay the proceeds to a corporation, is valid, and, as the assistant vice-chancellor observed," the great law of charities has been saved." Mr. Binney, in a learned and able argument in the case of Vidal v. The City of Philadelphia, in the Supreme Court of the United States, in February, 1844, 2 How. (U. S.) 127, selected from the volumes of the British record commission, published in 1827, above fifty cases of bills and answers in chancery relating to charitable uses, from the reign of Richard II. to that of Elizabeth ; and which went to show the fact of the exercise of chancery jurisdiction in cases of charitable uses, before the 43d of Elizabeth, and that charitable uses, for general and indefinite purposes, as well as for specific charities, were assisted at that period precisely as they are now. The fact, I think, may be considered indisputable, that chancery uses are lawful uses by the common law, and that the statute of Elizabeth was only an ancillary remedy, now supplied by chancery as the rightful original tribunal for such trusts. The cases were considered in this light in the opinion of the Supreme Court, as delivered by Mr. Justice Story, in the great case of Vidal r. Girard's Executors, above mentioned. The decision in this last case may be said to close all further discussion and controversy on the subject, and it establishes that a corporation has a legal capacity to take real or personal estate in trust for charitable, eleemosynary, and beneficial uses and purposes, in the same manner and to the same extent as a private person may do, and the trusts may be enforced in equity. It was declared that equity had an inherent jurisdiction before the statute of Elizabeth,

3 Brown v. Kelsey, 2 Cush. 243.

seal.(6) Afterwards the rule was relaxed, and, for the sake of convenience, corporations were permitted to act, in ordinary mat

upon the ground of the common law, to enforce charitable uses. Mr. Assistant ViceChancellor Sandford, in his very learned and able judgment in the case of Kniskern v. The Lutheran Churches, 1 Sandf. Ch. 439, recognizes the same doctrine; and I refer to that case for the elucidation and establishment of the great principle, that courts of equity will give effect to charities directed to religious purposes, on the ground of a trust, and will see that the intent of the founder of them, for civil as well as religious purposes, be carried into effect. If a charity be created for a religious purpose, in a Christian congregation designated by the name of a sect, without any specification of the particular worship or tenets intended, the intent of the founder will be deduced from the tenets, and doctrine, and discipline of the congregation avowed and practised by its professors and worshippers at the time of the donation, and the charity will be held appropriated to such church, and to none other. This case is distinguished by an exuberant display of theological learning on the subject of Lutheran creeds and faith, and for the intelligence, discretion, and logical acuteness of the assistant vice-chancellor. The same principles and conclusions of equity were stated and declared in the analogous cases of Lady's Hewley's Charity, before the English courts, in the Attorney-General v. Pearson, 7 Sim. 290; Attorney-General v. Shore, Ibid. 309, note; S. C. 9 Cl. & Fin. 390, 553; 11 Sim, 615, 626, note. See, also, Angell & Ames on Corporations, 3d edit. 137–150, for a full digest of the cases on this litigated question of the power of a corporation to take as devises for charitable uses. In Shotwell v. Mott, 2 Sandf. Ch. 46, the learned vice-chancellor renews the discussion of the jurisdiction of the Court of Chancery over charitable uses, and he considers it as having existed at common law long prior to the time of the Tudors; that the point is now settled by judicial decisions, whether the trustees were a corporation or individuals, or the gift was to trustees by name, or merely for an object sufficiently definite and specific to be carried into effect. Ibid. p. 50. Until the statute of 9 Geo. II., charitable uses were protected by the common law. We inherited them from England, and our land is filled with benevolent institutions, endowed and upheld by that law; and it is clear that our statutes of uses and trusts never intended to cut off gifts and devises to charitable uses, but only private uses and trusts which had perplexed real property by their intricacies and refinements, and public trusts and charitable uses were not within the purview of the Revised Statutes; the statute of uses of 27 Henry VIII. ch. 10, never had any application to public charities. Ibid. pp. 50–53. The legal restrictions against perpe

(6) Davies, 121, the case of The Dean and Chapter of Fernes.

* The rights and authorities of ecclesiastical corporations, both in the administration of charities and temporalities, and in enforcing church government, have been much discussed in later cases in New York. The People v. Steele, 2 Barb. (N. Y.) 397. Miller v. Gable, 2 Denio, 492. See, also, Smith v. Nelson, 18 Vermont, 511. In this last case, the relation of the ecclesiastical to the civil power is examined at large; and the opinion of Ch. J. Williams is marked by extraordinary perspecuity, precision, and strength. See, also, Cammeyer v. The Corporation, &c., 2 Sandf. Ch. 186. Robertson v. Bullions, 9 Barb. (N. Y.) 64.

The following decisions will appear remarkable to the American readers: Vice-Chancellor Knight Bruce has decided, that a legacy for the best essay on Natural Theology, demonstrating its evidence and its adequacy as a system of universal religion, was void, as inconsistent with Christianity; ani that a legacy for the best essay upon Emigration to America, was void for uncertainty. Briggs v. Hartley, Eng. Law Journal, Dec. 1850, p. 416. In Chancery.

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