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M Cartee,a in which it was decided, in New-York, by Chancellor Jones, after a very elaborate discussion and consideration, that a devise of lands to executors, in trust for a charitable corporation, for charitable purposes, was a legal and valid trust, to be enforced in equity. Lord Northington, in the case of The Attorney General v. Tancred,b affirmed, that devises to corporations, though void under the statute of will, were always considered as good in equity if given to charitable uses; and that the uniform rule of the court of chancery *be- *287 fore, as well as at and after the statute of Elizabeth, was, that where the uses were charitable, and the grantor competent to convey, the court would aid even a defective conveyance to uses. This same principle has been advanced in other cases, and by very high authority. The weight of English opinion and argument
a See p. 288 note.
• Sir Joseph Jekyll, in Eyre v. Countess of Shaftsbury, 2 P. Wms. 119. See also, 2 Vern. Rep. 342. Lord Ch. J. Wilmot in Attorney General v. Lady Downing. Wilmut's Opinions, p. 24. 33. i Bro. Rep. 15. 7 Vesey, 69. Lord Eldon in Attorney General v. The Skinners Company, 2 Russ. R. 407. Sir John Leach in Attorney General v. The master of Brentwood School, 1 Mylne f Keen, 376. In the case of the Attorney General v. Mayor of Dublin, 1 Bligh's Rep. 347, Lord Redesdale declared, that the statute of Elizabeth created no new law on the subject of charitable uses, but only a new machinery and ancillary jurisdiction. It is stated in Duke on Uses, p. 163, that Symons sold lands, by bargain and sale, to Fleming, upon confidence to perform a charitable use, which he declared by will. The bargain was never enrolled, and yet the lord chancellor decreed a sale of the lands by the heir, to be applied according to the limitation of the use. This was the 24 Eliz., and before the statute of charitable uses. Chancel. lor Walworth, in 7 Puige, 80, places reliance upon this case as evidence of the common law jurisdiction of chancery over charitable uses. Lord Hardwicke, Attorney General v. Middleton, 2 Vesey, 327, held, that before, and independent of the statute of Elizabeth, the court of chancery did exercise original jurisdiction in cases of charities at large, and not regulated by charter. It was in the cases of charities afterwards provided for by the statute of Elizabeth. Lord Chancellor Sugden, in the case in Ireland of the Incorporated Society v. Richards, 1 Connor 9 Lawson, 58, S. C. 1 Drury f- Warren R. 258 reviews and analyzes all the cases, and
would seem to be in favour 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;a 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, b the objects of chancery jurisdiction over charities. If the whole jurisdiction of
concludes that there was an inherent jurisdiction in chancery existing before, after and at the time of the statute of 43 Eliz. sustaining devises to charitable uses though void at law.
Code, lib. 1. t. 2. sec. 19. 26. tit. 3. sec. 38. Dig. 30. tit. 1. Ib. 33. 2. 16. Strahan's note to Domat, b. ). tit. 1 sec. 16. Swinburne, part 6. sec. 1. 2 Domat, b. 3. tit. 1. sec. 6.-b. 4. tit. 2. sec. 2. 6.-6. 3. tit. 1. sec. 6. Lord Thurlow, in White v. White, 1 Bro. Rep. 12. By a rescript of the Emperor Dioclesian, corporations could not take real estate without special license, and Gibbon, who refers to the rescript of Dioclesian, 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. 2. 345. He alludes however to several instances in which those laws had been sus. pended in favor of christian charities. The edict of Constantine, (as cited from the Theodosian code by the Assis. V. Chancellor in his able and learned opinion on the subject, in Wright v. The Trustees of the Meth. Epis. Church, 1 Hoffman's Rep. 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 un. certainty was no objection to their validity. Charities have their foundation in christianity. A religious purpose is a charitable purpose, Lord Lang. dale, 1 Keen, 223. Their element is christian benevolence or an arged love of human kind, without regard to selfish considerations, or even the relations of blood, or affinity or friendship.
b 1 Ch. Cas. 134. 267. 6 Dow's Rep. 136.
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 re-enacted, 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 Eliza- *288 beth, that it did not intend to give any new validity to charitable donations, but rather to provide a new and more effectual remedy for the breaches of those trusts.
· 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. g. 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's Rep. 450. Taney's Executors v. Latane, 4 Ibid. 327. See, also, Story, J., in 3 Peters' U. S. Rep. 494. S. P. But in Witman v. Lex, 17 Serg. d. Raule, 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 be. quest. 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's Rep. 170, and by Mr. Justice Baldwin in the case of Sara Jane's will, decided in the circuit court for Pennsylvania in 1833, and cited in 2 Howard's R. 195. 197. Though the statute for charitable uses, of 43 Eliz., was not extended to Pennsylvania, yes 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 of Serg. 218, declared that a devise of real estate to an unincorpo. rated 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 B. Society v. Wetmore, 17 Conn. R. 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
(6.) Their powers to make contracts. It was an ancient and technical rule of the common
S. H. 3 Peters' R. 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 any where 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 argu. ment in the great will case referred to in a subsequent page. The decree, in the case of The Orphan Asylum Society v. M'Cartee, was reversed, on appeal to the court of errors of New York ; (9 Cowen's Rep. 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 definitively settled in this country. See infra, vol. iv. p. 503. In Moore v. Moore, 4 Dana's K. Rep. 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 statute of Elizabeth, so far as it gave validity to numerous charitable gilts 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 Ch. J. Robertson, in delivering the opinion of the court; and in the case of Potter v. Chapin, 6 Paige's Rep. 639, it was held, that the court of chancery would sustain a gist or bequest, or dedication of personal property to public or charitablo
law, that a corporation could not manifest its intentions by any personal act or oral discourse, and that it spoke
uses, if the same be not inconsistent with local law or public policy, and where the object of such gist or dedication is specific and capable of being carried into effect according to the intention of the donor. Chancellor Wadsworth said, that the decision in the case of The Baptist Association v. Hart's Executors, 4 Wheaton's Rep. 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 ani 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 Milne v. Milne, 17 Louis. Ch. Rep. 46, under the will of Alexander Milne, in which legacies were left to two public charitable asy. lums 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 Rep. 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 60 again, in Saunderson v. White, 18 Pickering, 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 Sailor's Snug Harbour, 3 Peters' U. S. Rep. 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 R. 378, a devise of real estate to au uvincorporated society, for charitable uses, was held valid, and equity would enforce the trust as against the heirs.
In the case already alluded to, in 1 Hoffman's Ch. Rep. 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 A. V. Chancellor (Hoffman) concludes that there was a jurisdiction in chancery anterior to the statute of. 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 citės several ancient cases from the precedents of bills and pleadings printed under the direction of the English record commission