Dtjrfee, J.
In this case the plaintiffs have submitted to us an argument upon two points relating, first, to the jurisdiction of the court, and second, to the question whether there is anything in the terms and provisions of the deed under which the plaintiffs hold, to prevent the proposed exchange.
1.
There are several English cases in which the power of a court of chancery to sanction or direct an alienation of charity lands has been more or less distinctly recognized.
Attorney General
v.
Warren,
2 Swanst. 291;
Attorney General
v.
Mayor of
Newark, 1 Hare, 395, 400 ;
Attorney General
v.
Kerr,
2 Beav. 420;
Attorney General
v.
Hungerford,
8 Bligh. 437 ; and Lord Plunket’s judgment in the same, Ib. 463 ;
Attorney General
v.
Brettingham,
3 Beav. 91;
In re, Suir Island Charity School,
3
Jones & Lat. 171, and other English cases in which the power has been exercised, apparently without a question as to its existence ;
In re, Parke’s Charity,
12 Sim. 329 ;
Exparte, The Overseers of the Poor of Ecolesall Brierlow,
13 Eng. L. & Eq. 145 ;
Attorney General
v.
Biddulph,
39 Eng. L. & Eq. 512 ; and see
Stanley,
v.
Colt,
5 Wallace, (U. S.) 119.
We are satisfied, upon the authority of these cases, that it is within the jurisdiction of this court, under the full chancery powers conferred upon it by Sec. 8 Chap. 164 of the Revised Statutes, to sanction, in a proper case, the sale or exchange of real estate held upon trust for charitable uses. And see Dig. of 1844 p. p. 88, 89.
The counsel for the plaintiffs refers us to the Public Laws, Ch. 663, as conferring upon us the jurisdiction which they invoke, and to the case of
Wells & Prince
v.
Heath,
10 Gray, 25, as showing that in Massachusetts a similar jurisdiction has been exercised, under a similar statute. We think, however, without denying that Chap. 603 may authorize the jurisdiction, that it previously existed under Chap. 164 § 8, with the benefit to the court of all the light which it can derive from the English precedents.
2.
The lot sought to be exchanged is a lot which Moses Brown, by his deed dated April 19, 1819, conveyed to Obadiah Brown and others “ in trust for the purpose and use of erecting thereon a suitable building for a school-house on the Lancaster plan of education, and also for a meeting-house for divine worship for the people of color, that now are or hereafter may be in this town, and for no other use but for the said people of color forever.” And the grantor, further on in the deed, uses the following language : “ And whereas one of the first public documents for a form of government to hold forth liberty of conscience, was, by two of my ancestors, first and early comers here, as appears in Hazard’s State Papers, vol. 1, page 464, so I am desirous of promoting it in my native town, and in the meeting-house to be erected on the hereby granted lot of land purchased and hereby conveyed for that purpose.” Again he uses the following language : “ hereby conveying all may right, title,” &c., ■“ in said
lot of land,” &c., “ to be applied to and for tbe use ofthe people of color forever for a school house for them and their descendants and associates forever.”
One question which has been discussed as arising on this language, or some of it, is, whether it does not amount to a condition annexed to the grant, so that the land, if alienated, will revert to the heirs of the grantor.
The cases cited on this point are against such a construction, where the only thing relied upon to show that the estate is conditional, is the fact that the grant purports to be made for the accomplishment of some purpose, hot of private interest to the grantor, but public or general in its nature. In this case there is still another reason why, in the absence of any express condition, none should be implied. The grant is upon a
trust
for certain charitable uses, and, if the estate be misapplied, the fitting remedy is not its forfeiture to the grantor or his heirs, but a proceeding upon the equity side of the court to enforce the trust.
Barr
v.
Weld,
24 Penn. St. 84;
Stanley
v.
Colt,
5 Wallace, (U. S.) 119. We do not mean that such a trust may not be coupled with a condition that the estate shall revert if misapplied, but that the court will not infer such a condition, where none such is expressed or necessarily implied. Agreeably to these views, we find that this estate is not upon a condition which will entitle the heirs of the grantor to re-enter for its alienation ; and of course the alienation, if made under the sanction of the court, will not be regarded as a violation of the trust.
But though the estate may not be conditional, the language of the deed shows that the grantor designed or expected that it should be used as the site whereon the proposed school-house or meeting-house should be built; and it may be that the house was built by contributions given to some extent in view of this language. In consideration of this character of the grant, ought the court to sanction the exchange proposed ?
This is a consideration which appears to have been forcibly present to the mind of Sir James Wigram, in his remarks in the case of
Attorney General
v.
Mayor &c., of Newark,
1 Hare, 395, 401 2, though even he does dot seem to have regarded it as con-
elusive that the power might not be exercised in a very special case. Indeed, the cases seem to rest upon the idea — somewhat like that which obtains in
cypres
applications of charity estates, —that the primary purpose of the donor being the promotion of the charity, his incidental purpose that the particular property given shall be used for its promotion, may be disregarded, and the property sold or exchanged, if thereby the charity will be greatly benefited. If this be the true view, we think we need not hesitate to give the sanction of the court to the exchange proposed; for however evident it may be that the donor designed or expected that the granted lot should be the seat of the contemplated charity, it is still more evident, from the scope and tenor of his deed, that it was the charity' itself, and not the perpetual use of the lot for its advancement, which the benevolent donor had mainly at heart. If the gift had been apparently designed for some memorial or monumental purpose, we might come to a different conclusion ; but we do not find in the deed, which appears to contain a very full exhibition of motives and feelings under which it was made, any indication of such a purpose ; its leading, if not the sole object, appearing to be, the educational and religious improvement of the people of color, including those of Indian descent, in the town, now the city, of Providence, and in a way which would illustrate his hereditary regard for freedom of religious opinion.
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Dtjrfee, J.
In this case the plaintiffs have submitted to us an argument upon two points relating, first, to the jurisdiction of the court, and second, to the question whether there is anything in the terms and provisions of the deed under which the plaintiffs hold, to prevent the proposed exchange.
1.
There are several English cases in which the power of a court of chancery to sanction or direct an alienation of charity lands has been more or less distinctly recognized.
Attorney General
v.
Warren,
2 Swanst. 291;
Attorney General
v.
Mayor of
Newark, 1 Hare, 395, 400 ;
Attorney General
v.
Kerr,
2 Beav. 420;
Attorney General
v.
Hungerford,
8 Bligh. 437 ; and Lord Plunket’s judgment in the same, Ib. 463 ;
Attorney General
v.
Brettingham,
3 Beav. 91;
In re, Suir Island Charity School,
3
Jones & Lat. 171, and other English cases in which the power has been exercised, apparently without a question as to its existence ;
In re, Parke’s Charity,
12 Sim. 329 ;
Exparte, The Overseers of the Poor of Ecolesall Brierlow,
13 Eng. L. & Eq. 145 ;
Attorney General
v.
Biddulph,
39 Eng. L. & Eq. 512 ; and see
Stanley,
v.
Colt,
5 Wallace, (U. S.) 119.
We are satisfied, upon the authority of these cases, that it is within the jurisdiction of this court, under the full chancery powers conferred upon it by Sec. 8 Chap. 164 of the Revised Statutes, to sanction, in a proper case, the sale or exchange of real estate held upon trust for charitable uses. And see Dig. of 1844 p. p. 88, 89.
The counsel for the plaintiffs refers us to the Public Laws, Ch. 663, as conferring upon us the jurisdiction which they invoke, and to the case of
Wells & Prince
v.
Heath,
10 Gray, 25, as showing that in Massachusetts a similar jurisdiction has been exercised, under a similar statute. We think, however, without denying that Chap. 603 may authorize the jurisdiction, that it previously existed under Chap. 164 § 8, with the benefit to the court of all the light which it can derive from the English precedents.
2.
The lot sought to be exchanged is a lot which Moses Brown, by his deed dated April 19, 1819, conveyed to Obadiah Brown and others “ in trust for the purpose and use of erecting thereon a suitable building for a school-house on the Lancaster plan of education, and also for a meeting-house for divine worship for the people of color, that now are or hereafter may be in this town, and for no other use but for the said people of color forever.” And the grantor, further on in the deed, uses the following language : “ And whereas one of the first public documents for a form of government to hold forth liberty of conscience, was, by two of my ancestors, first and early comers here, as appears in Hazard’s State Papers, vol. 1, page 464, so I am desirous of promoting it in my native town, and in the meeting-house to be erected on the hereby granted lot of land purchased and hereby conveyed for that purpose.” Again he uses the following language : “ hereby conveying all may right, title,” &c., ■“ in said
lot of land,” &c., “ to be applied to and for tbe use ofthe people of color forever for a school house for them and their descendants and associates forever.”
One question which has been discussed as arising on this language, or some of it, is, whether it does not amount to a condition annexed to the grant, so that the land, if alienated, will revert to the heirs of the grantor.
The cases cited on this point are against such a construction, where the only thing relied upon to show that the estate is conditional, is the fact that the grant purports to be made for the accomplishment of some purpose, hot of private interest to the grantor, but public or general in its nature. In this case there is still another reason why, in the absence of any express condition, none should be implied. The grant is upon a
trust
for certain charitable uses, and, if the estate be misapplied, the fitting remedy is not its forfeiture to the grantor or his heirs, but a proceeding upon the equity side of the court to enforce the trust.
Barr
v.
Weld,
24 Penn. St. 84;
Stanley
v.
Colt,
5 Wallace, (U. S.) 119. We do not mean that such a trust may not be coupled with a condition that the estate shall revert if misapplied, but that the court will not infer such a condition, where none such is expressed or necessarily implied. Agreeably to these views, we find that this estate is not upon a condition which will entitle the heirs of the grantor to re-enter for its alienation ; and of course the alienation, if made under the sanction of the court, will not be regarded as a violation of the trust.
But though the estate may not be conditional, the language of the deed shows that the grantor designed or expected that it should be used as the site whereon the proposed school-house or meeting-house should be built; and it may be that the house was built by contributions given to some extent in view of this language. In consideration of this character of the grant, ought the court to sanction the exchange proposed ?
This is a consideration which appears to have been forcibly present to the mind of Sir James Wigram, in his remarks in the case of
Attorney General
v.
Mayor &c., of Newark,
1 Hare, 395, 401 2, though even he does dot seem to have regarded it as con-
elusive that the power might not be exercised in a very special case. Indeed, the cases seem to rest upon the idea — somewhat like that which obtains in
cypres
applications of charity estates, —that the primary purpose of the donor being the promotion of the charity, his incidental purpose that the particular property given shall be used for its promotion, may be disregarded, and the property sold or exchanged, if thereby the charity will be greatly benefited. If this be the true view, we think we need not hesitate to give the sanction of the court to the exchange proposed; for however evident it may be that the donor designed or expected that the granted lot should be the seat of the contemplated charity, it is still more evident, from the scope and tenor of his deed, that it was the charity' itself, and not the perpetual use of the lot for its advancement, which the benevolent donor had mainly at heart. If the gift had been apparently designed for some memorial or monumental purpose, we might come to a different conclusion ; but we do not find in the deed, which appears to contain a very full exhibition of motives and feelings under which it was made, any indication of such a purpose ; its leading, if not the sole object, appearing to be, the educational and religious improvement of the people of color, including those of Indian descent, in the town, now the city, of Providence, and in a way which would illustrate his hereditary regard for freedom of religious opinion.
Still one other question; does not the acceptance of the trust •amount to an implied contract on the part of the trustees with the grantor, that they will perform the trust ? and if so, can the court authorize or sanction an act which is in violation of such implied contract? The grant was made in 1819 before this court had the jurisdiction which is now invoked, and therefore it cannot be said that the grant was made subject to the jurisdiction , could the General Assembly, by an act passed subsequently to the grant, give the court power to authorize or sanction the alienation of the granted premises ? would not such an act be a law impairing the obligation of a contract ?
Assuming that there is an implied contract on the part of the trustees with the .grantor, that they will perform the trust, the
answer is, that the power of alienation is itself a power implied in the grant; and that the trustees, by its proper exercise, are performing the trust.
In the case of
Attorney General
v.
Warren,
2 Swanst. 291, Sir T. Plumer, Yice Chancellor, says,
inter alia
— “ The principle that governs all the cases is this, that the trustees are bound to a provident administration of the fund for the benefit of the charity ; there is no positive law, which says that in no instance there shall be an absolute alienation ; if so, even in the case of an inquiry under an order of the court, whether alienation would be beneficial to the charity, being contrary to law, it would not be good ; but on many occasions, by the authority of the court, alienation has taken place, as in the case mentioned of a decayed house, in which, after a reference to a master to inquire whether it was for the benefit of the charity, the court directed it to be disposed ,of. If contrary to law, the court could not authorize the disposition ; alienation under the authority of the court would be as invalid as without it. These decisions, therefore, afford a conclusive proof that alienation, not improvident, but beneficial to the charity, and conformable to the rule which ought to guide the trustees, may be good, and disclose the principles on which any bill to rescind that alienation must proceed.”
The correct doctrine is, we suppose, that the trustees have the power, when the interest of the charity manifestly requires, to alienate the charity estate, and that the court is called upon to sanction the alienation, not because without such sanction the alienation may not be valid, but because without such sanction it is open to impeachment, and, also perhaps, that the trustees may have the benefit of the advice which the court, enlightened by its inquiries, can so properly afford.
This view is entirely consonant with the remarks of Lord Brougham, in the case of the
Attorney General
v.
Hungerford,
8 Bligh. 487, to the effect that he could conceive a case where the trustees would not do their duty to the charity, if they did not alienate a part of the land, and where an information might, on principle, well be maintained against them to do that which
is for tbe benefit of the charity. In the case of the
Attorney General
v.
Hungerford,
a lease of charity lands renewable forever at a fixed rent, paying £25 for each renewal made by the trustees of the charity, was supported in the House of Lords.
We think, therefore, it is no infringement of the contract implied in the acceptance of the trust, for the trustees to alienate the estate, or for the court to sanction its alienation, in a proper case, for the reason that the charity being the principal, and the use of the land as its seat merely the incidental, purpose of the grant, the trustees have, by implication, the power'to sell or exchange the land, if thereby the charity will be greatly benefited. Indeed, the question is, in another aspect, very much the same question which we have just answered, in deciding for the reasons given that the terms of the grant or trust were not such as to make it improper for the court to give its sanction to the proposed exchange. And see
Stanley
v.
Colt,
5 Wallace, (U. S.) 119.
We are satisfied from the report of the master, that the charity as it now exists, will be very much benefited by the exchange proposed, and we therefore give it our sanction and approval, and authorize it to be made. -
Decree accordingly.