Executors of Burr v. Smith

7 Vt. 241

• Court: Supreme Court of Vermont
• Decided: February 15, 1835
• Status: Published

Opinions

The opinion of the court was delivered by

Williams, Chancellor.

The case before us is not only important on account of the principles which áre to be decided, but also as it decides the right to property of some amount. It was argued two years since ;• but the court did not think proper, on fhe first argument, to decide a case, where the principle involved was so important, and where the decisions in the several states on the subject had been in some measure contradictory. A change having taken place in the members of the court after the first argument, the case was again heard a year ago. As there was only three .members of the court present at that time, ■ and their views on the subject were not alike, it was thought proper to continue the" case for further argument; and to prevent any further delay, that it should be heard at this term, by all the judges of the court.

The case now, as heretofore, has been fully and ably argued; and probably all the authorities which have any bearing on the subject, have been brought to our notice. Unfortunately, we are not now agreed. We have endeavored to bestow upon it, both now and at the previous arguments, all the consideration which our time would admit; and although we are not all agreed, we are persuaded that this disagreement arises from the difficulty of the subject itself; and that there is no prospect that at any future time, or by any other court, there would be more unanimity.

It is not to be expected that the court would hereafter ever be unanimous ; and there can be no use in protracting the decision to any future period. It cannot be necessary, in delivering the opinion of the court, to go into a particular examination of all the cases which have been read or cited. It is due however to the counsel, as well as to the case, to examine the several points which have been made in the argument, as well as the cases read or referred to, in their support; and if they are not mentioned, it is not because they have not been attended to.

In delivering the opinion of the court, I shall only mention the reasons or authorities which have influenced me in coming to a conclusion on this subject. The other members of the court, who concur in the decree, may have been influenced by cither and more pertinent and forcible reasons and arguments.

The different parties who claim these legacies, are brought before us by the executors. The funds to pay the same, are placed under our direction ; and we must now determine whether these legacies are to be, or can be paid, according to the intention and direction of the testator, or whether that intention js to be frustrated, and the money decreed to the residuary legatees, because his intention cannot be carried into effect under the existing laws.

The first question which presents itself is, whether the several societies, to whose .treasurer the legacies are directed to be paid, not being incorporated, can receive the legacie's for the purposes for which they were given, or whether they can receive and distribute a gift or legacy, given tó a public, pious, or charitable use. I shall not inquire whether the uses intended were of that kind which are denominated pious or charitable, as this has not been denied in the argument; and indeed they are strictly of thaJ char acter which by all the writers, either on the civil or common law, denominated pious or charitable uses. — Domat. 2 vol. p. 168, antj seq.

I think we shall find, that societies, or bodies of men, unincorporated, have ever been considered, at common law, as capable of receiving gifts or legacies, to be applied to charitable uses ; and that it has been the invariable policy of our state, to consider them as capable. That they were considered capable at common law, is apparent from the fact, that it was found necessary to pass a statute to jeake void grants in trust for them. The statute 23d Henry VIII. chap. 10, declares, “ If any grant of lands or other hered-itaments, shall, be made in trust to the use of churches, chapels, church-wardens, guilds; fraternities, commonalties, companies, or brotherhoods, to have perpetual obits, or a continual service of a priest forever, or for 60 or 80 years, or to such like uses, or intents, and purposes shall be void, they .being no corporation, but erected either of devotion, or else by common consent of the people — 15 Viner. 481.

The passage of this statute, shows that at common law, the want of a charter of incorporation was no impediment to a body of men, changing from time to time, from receiving and distributing according to the intent of the donor, money, or other property, giyen or granted for a charitable use.

By the statute of 1 Edward VI. chap. 14, all, and all manner of colleges, free chapels, and chauntries, 8tc., and all manors, lands, tenements, &rc. belonging to them, were given to the king. In Adams and Lambert’s case, (4 Coke, 96) where the question was discussed, what chauntries, fee. were, given to the king by that act, the distinction between those which were incorporated and those which were not, was recognized ; and although it was resolved that the statute only intended such chauntry as was lawfully incorporated, or at least, had the countenance or beginning of a corporation, yet it was considered that some chauntries, which existed only in reputation, were by that act given to the king: thus it was said, that when a college or chauntry, &c. had such beginning, which might be made a lawful foundation, but for error or imperfection in the penning or proceeding of it, was not in judgment of law lawfully founded* such college or chauntry is given to the king by the said act; but when they existed only in reputation, they were not given to the king. Several instances are there mentioned, where lands are given for the use or purpose of chauntries not incorporated.

In Porter’s case, (1 Coke, 21) which is a very prominent one in all the arguments which have been made on the subject of charitable uses, and to which our attention will be directed in another part of the case, we find the existence of such societies or companies not incorporate, very distinctly recognized. The testatór'had devised certain lands to his-wife, upon condition that she should assure, give and grant the same for the maintenance and continuance of a certain free-school, certain alms-men and women forever. The condition was not performed, and the heirs entered, and granted to the queen. Porter, who had under the devisee, claimed the land upon the ground that the condition in the will vfas against law, and so the estate was absolute in the devisee. It was argued for him, that though the object was a work of charity,-and good in itself, yet that the statute of 23d Henry VIII. chap. 10, was enten-ded to abolish good uses as well as others, that the intent of the statute was for the benefit of the lords, and that feoffments made to the use of companies not incorporate, were as prejudicial to lords as alienations in Mortmain.

Sir Thomas Edgerton, who jwas then attorney general, and Sir Edward Coke, for the queen, contended that the use was not vojd ; that neither the act aforesaid, or any other laws of Henry VIII. or Edward VI. were intended to abolish good or charitable uses, but that they were intended to be maintained — that it would be dishonorable in the law to make such good uses void; and they said, {hat almost all the land belonging to the towns or boroughs, not incorporate, are conveyed to several inhabitants in trust and confidence to employ the profits to such good uses as repairing highways, repairing the church, maintaining the poor of the parish, fee.; and they seriously contended that the statute of wills, by excluding bodies politic and corporate from being devisees, intended *.to make companies not incorporated capable of receiving a devise. It is to be remarked however, that on this latter point, the court did not deliver any opinion; yet the court decided, that the statute was not intended to extend to take away the good and charitable usei It is certainly worthy of remark, that all the counsel in the case distinctly recognized unincorporated companies as capable of being cestui que trusts in a gift or grant to a charitable use.

In a case decided in the circuit court in the district of Pennsylvania, on the will of Sarah Zane, Judge Baldwin, in an opinion in which he investigates the whole subject of charitable uses, remarks, that the common law requires no charter to enable a body of men in any place, to purchase chattels, or receive donations of m.Qney,achat-tel interest, or an estate, for the lives of the grantee in land by their name as a body, without other words, “ that a charter is necessary, t0 ena^d0 them as a natural person, capable of enjoying an estate ¡n fee, without words of inheritance,” to which it may be added, that to enable them to have perpetual succession, or to receive goods or personal property in succession, probably an act of incorporation is necessary. In this state, it appears to me, that a decision that a company of individuals are incapable of receiving gifts, for a public or charitable purpose, or that such a society should not be protected in the enjoyment of property given to them, (and I can make no distinction between protecting them in the enjoyment of property of which they are actually in possession by gift, and enabling them to recover that which is bequeathed to them by will) would be at variance with all our received ideas since the establishment of 'the state — at variance with the constitutional provisions made on the subject, and directly at war with the principles of religious freedom. It has always been the practice in this state, and may be considered as their settled policy, to encourage voluntary associations for public, pious and charitable purposes. All corporations, at times, and religious corporations at all times, have been viewed with a jealous eye. It is very rare that any acts constituting an ecclesiastical or eleemosynary corporation, or for any religious purpose whatever, have been suffered to pass the legislature. But a few years since, when an act incorporating “ The Baptist General Convention,” which was solely for the management of their funds, had passed the house of assembly, it was met in the council, by reasons so able and so unanswerable, that there was no further disposition to press the subject upon the consideration of the legislature. -It has been considered by community generally, that associations may be formed, money subscribed and collected, property-given and received, for the promotion of any cause interesting to the public, and designed to subserve their interests, or for the encouragement or promotion of charity, morality, learning, or religion. So far as it respects the support of religious teachers, or ministers of the gospel, the spirit of our constitution and laws has for a long been considered as opposed to any legal provision. And although laws were formerly passed for the support of the gospel, and making provision by law for collecting taxes for their support, yet these provisions were rejected by most of the religious denominations among us. They created so much dissatisfaction, that their repeal was imperiously demanded, both by public sentiment and by the constitutional tribunal, whose duty it is to inquire whether the con » stitution has been regarded. Our statute for the support of the gospel, passed in 1797 and in 1814, (page 600 and 601 of statute) yet contains a provision, that voluntary associations for hiring a minister, or erecting a place of public worship, or for the settlement and support of a minister, may for some purposes become a body corporate. Yet it is believed that a great, if not the greater part of our religious teachers, are supported and maintained by voluntary associations, who do not avail themselves of the provision of the statute to become incorporate. Associations for all public, pious and charitable purposes, have taken subscriptions, held property which has been given to them either by contribution or otherwise, and performed all and every act necessary for the objects contemplated by their association, without any doubt being entertained of their ability so to do. Legacies have been given for public and charitable purposes, and no questions made as to their legality or validity. Every constitution of government which has ever existed since we became a state, have recognized these voluntary associations as deserving of encouragement, and have considered them • as standing on the same ground, whether simply united as a voluntary association, or incorporated by an act of the legislature. The 41st section of our constitution provides, “That all religious societies, or bodies of men, that may be hereafter united or incorporated, for the advancement of religion and learning, and for other pious and charitable purposes, shall be encouraged and protected in the enjoyment of the privileges, immunities and estates, which they in justice ought to enjoy, under such regulations as the general assembly of this state shall direct,” I think it may at least be said to admit of a doubt whether this clause in the constitution does not, in fact, give to all voluntary associations, for the purposes therein expressed, more extensive and large powers, than have ever been' claimed for the associations who are made the subjects of the bounty of Mr. Burr in this will. All that is asked for by these associations is, that they may receive, for the purposes of their association, either a gift of money from a person living, or legacy from him, to be paid after his decease. It may be contended, that this clause in the constitution is intended directly to place bodies of men, united for the purposes there mentioned, on the same ground as bodies incorporated, so far as to enable them to receive property given' to them, and protect them in the enjoyment thereof, subject only to be regulated by the general assembly, by some general law, applicable to all such associations, whenever the public interest should require such regulation: And until such law should be passed;that they should be left free to receive,, hold, and enjoy all such estates as might be acquired by them for the legitimate purposes of their associations.

Leaving this part of the subject, however, to be disposed of whenever it shall become necessary to decide upon it, I shall only remark, that no legislative provision is necessary to enable any body of men to avail themselves of the benefit of this clause in the constitution. The legislature may regulate, or. they m ay restrain within proper limits, all these societies ; but their aid is not necessary for the purpose of enabling the bodies of men united for the purposes contemplated by the constitution, to enjoy what the constitution has guaranteed to them. To decide or declare that a charter or act of incorporation is necessary to enable a society or body of men, united for the advancement of religion, learning, or other pious or charitable purposes, to carry into effect the objects ot their association, or to be protected in the enjoyment of their estate, would be in effect to’ decide that our religious liberties were dependent on the will of the legislature, and not guaranteed by the constitution ; — that the legislature might interfere with the right of conscience, and the free exercise of religious worship, by granting a charter of incorporation, with large powers and capacities to the members of one religious sect or denomination, and withhold ing such charter from those of a different sect. Although the legislature have, in the instance before alluded to, for the support of the gospel, thought proper to declare these privileges and immunities, and in some measure to enlarge them by providing that they may become incorporate, yet they have never thought proper either to regulate or restrain them from the freedom of opinion on religious subjects, which it has always been our policy to tolerate and allow. No statutes of Mortmain have been passed, as none have been required for the interest of the public, — no statute to prevent superstitious uses. We have a better protection against superstition, in an enlightened public sentiment, than from any statutes, — no statutes to promote one sect of religion, to the exclusion of another. Error of opinion on this subject is to be corrected by reason and reflection. No statutes to restrain or to encourage charitable donations or legacies, believing that men, as to this, were better able to judge for themselves, than the legislature to judge for them. No fears have been entertained by our legislature, that heirs might be improperly disinherited — that religious societies would grow too rich or powerful — that any one denomination or sect could so far obtain the ascendency as to persecute the other, or deprive them of the free exercise of their particular opinions or dogmas; but the good sense of the people has been considered as amply sufficient to guard against any evils which might be supposed to arise from the want of legislation. From the neglect of the legislature to make any provisions on this subject, we may infer, that whatever sentiments or feelings individuals may have had or expressed, they at least, as a body, are fully satisfied that no injury can arise here, from the unrestrained exercise of religious freedom ; — that they are convinced, that none of the reasons, which in another government dictated the statutes of Mortmain, the statutes to restrain gifts to superstitious uses, or the statute to regulate or restrain gifts to charitable uses, have any existence in this state. Individuals may here associate for the purpose of erecting a public monument, or any works of public utility, any memorial of heroism, patriotism or val- or — they may unite for the purpose of erecting a monument in commemoration of the battle of Bennington, as they have in another state of the battle of Bunker Hill — may erect houses of public worship, print and distribute books, tracts, political or religious papers or pamphlets — may receive subscriptions or legacies therefor, and the law will so far encourage them as to protect them in the enjoyment of whatever may be received or bequeathed for that purpose. The different denominations of Christians, whether Catholic or Protestant, the Jew or Mahometan, may here associate for the purpose of enjoying their particular religious tenets, build churches, monasteries, synagogues, or mosques, and are equally entitled to the protection of the law.

When we are told, then, of the danger of building up a system of charities — of the danger of disinheriting heirs, or of wills or testaments made by persons in extremis, and are referred to the statute of Geo. II. -as wholly destroying bequests for charitable uses, we can only answer, that when the legislature apprehend any such danger, they will provide against it; and until they do, we must administer the law as we find it to be, without any fear of any such consequences.

In considering the powers and capacities of voluntary associations or companies, I have not considered whether they are capable of receiving goods in succession, or whether they have a perpetual existence, as it is not required by the case before us. The legacies here given and claimed by the associations, mentioned in the will of Mr. Burr, do not contemplate a perpetuity or require a perpetual existence in them, to carry into effect the intention of the testator. It is an attribute of a corporation aggregate, to receive lands or goods in succession, and a gift or grant to them, without any term of inheritance, or succession give to them, the whole property in the thing granted. Their life is a perpetuity : Hence a grant to them, which in the case of an individual, would only convey an estate for life, is a grant to them and their successors. It is not claimed by, or conceded to these societies, that they can purchase lands in the name of their association, which shall go to those who succeed them, or that they can take a bond or obligation, and maintain á suit thereon by that name, unless they can claim such an immunity or right, by virtue of the constitution before mentioned, which is not here insisted on. It is contended, however, that they may receive a gift of money for a charitable use, — that they may be protected in the enjoyment of whatever is thus given, and that if they are disturbed in this enjoyment, they must have some appropriate remedy therefor; and thus far the court are disposed to say, that both by the common law and the usages and practices of this state, as recognized by the constitution, they are capable, and may be protected.

As thése associations for public and charitable purposes are found to exist among us — as they have ever here existed, are recognized and provided for, and their- immunities and privileges guaranteed by the constitution — as they have always existed both in countries subject to the common law and to the civil law, and a vast amount of property has always been given, and is still given to them, to promote works of public utility, convenience or ornament, or works or acts of piety, learning or charity, it is important to inquire whether they can be thus protected in the enjoyment of their property. And here it will be perceived,¿hat unless they can come into some tribunal, provided for the administration of justice — unless some court has jurisdiction over them, they are without the pale of the law, and their whole funds at the mercy of every one who may be disposed to invade them. If their treasurer should squander their funds, or any one who receives their subscriptions should choose to appropriate the money to himself, there could be no tribunal tq call them to account. It is believed, however, that they can be protected in the enjoymenc of these funds, by courts of justice, — that a suit can he maintained against any one who illegally comes into the possession of their property, — that a bond or note, given upon good and valuable consideration to them, even by their name of association, might be collected in the name of some proper party, connected with their right to hold money or property given to them, and to maintain action's against one who despoils them of it, must be the right to sue in a court of justice, and to demand before a proper tribunal, legacies given to them by a will.

The cases are numerous where associations of this kind have been recognized as entitled to equitable rights, and as competent to come into a court of equity in the name of one or more of their members, for the benefit of the whole.

In the case of Terrel and others vs. Taylor, (9 Cranch, 43) Judge Story remarks, that if the plaintiff have shown a sufficient title to the trust property, the court could grant the relief prayed for, — that it can make no difference whether a society was¿incorporated or not; for in equity, as to objects which the law cannot but consider as useful and meritorious, the same reason would exist for relief in the one case as in the other. It is to be noticed, that in this case, there was a bill filed by the plaintiffs, as members of the vestry of 'the church in Alexandria, in behalf of themselves and other members of the church. In Beatty and others vs. Kurtz, (2 Peters. 566) a bill was sustained in the name of a committee of a voluntary society. Lord Eldon, in Cockburn vs. Thompson, (16 Ves. 321) and Lord Tburlow, in Buckley vs. Carter, (cited in Pierce vs. Piper, 17 Ves. 11) recognize the same principle. In Waller vs. Child, (Amb. 526) on a bill brought by the heir at law, to set aside certain charitable bequests, to be paid to the treasurer, for the time being, of a voluntary society, the society was recognized as capable of receiving and disposing of the legacy, and decree was made that the money should be paid to their treasurer. Wellbeloved vs. Jones (1 Simons & Stuart, 40) was a bill brought by the trustees or officers of an unincorporated society: Their right to maintain the bill was established, as well as their capacity to receive a legacy for a charitable use. Several cases of a similar import have been decided in the several state courts, which it will be unnecessary to examine at this time. It is sufficient for the present to say, It appears tq me that the position is established, that voluntary societies, by the common law, were considered as capable of receiving and distributing money and other property given for public or charitable uses, — that they aré recognized hy the constitution of this state, as existing and to exist for that purpose, — as deserving of encouragement, and entitled to protection in the enjoyment of their estates, and that their rights may be asserted in, and by the judicial tribunal.

This view of the subject alone would in my mind be decisive of the question submitted to us in the present case. The whole doctrine, however, in relation to charitable uses, as well as the jurisdiction over them exercised in a court of chancery, has been dis- *

^ has been asserted, on the part of the residuary legatees, that the law in relation to charitable uses, as well as the jurisdiction of the chancellor over them, is founded wholly on the statute of 43 Elizabeth, sometimes called the statute of charitable uses. That there is a law, or a series of decisions on this subject, establishing or recognizing a rule in relation to them, different from the rules in relation to other subjects, is unquestionable. It is, however, denied that this rule either is founded on that statute, or grows out of any considerations connected therewith ; but rather that it arises necessarily from the nature of the use itself. The statute of Elizabeth does not profess to establish any new law upon this subject. The gift, limitations and appointments, which were to be carried into effect under that statute, existed anterior to the passing it. The principles of the law itself, as now recognized, as well as some of its most objectionable features, were known in England long before the passing of that statute. The passages which have been read from Domat, the prevalence of this law wherever the civil law prevails, the several cases which will be noticed, the remarks of Lord Thurlow in White vs. White, 1 Brown C. C. 15, and the remarks of Chancellor Kent, warrant this opinion. Judge.Story considers that the principle of the civil law respecting charities was engrafted into the common law ; and Judge Johnson says, that it appears to him demonstrable, that the 43d Elizabeth introduced no new law of charities, and made none valid, not valid before.

From the very nature of the subject, the donations to such uses must be vague and indefinite. The objects to be benefitted are numerous, and must be looked up and ascertained, and the relief must be administered according to the direction and judgment of those who are to select the necessitous objects for whose benefit the use is created; and moreover, the charitable uses themselves will be declared according to the spirit of the age in which they are established. We find that there were a great variety of gifts and grants to pious and charitable uses recognized by the statutes, as well as by the decisions of the oourts of justice, from a very early period. They mostly, it is true, partook of the religious character of the age, as for the exercise and celebration of divine services, to find chaplains, &c., many of them for hospitality and the relief of the poor; but very few, however, if any, for the establishment of schools of learning, until the time of Edward VI. In almost every reign, we find that this subject engaged the attention of parliament, and that men piously or religiously inclined gave property for the purposes then considered charitable and meritorious.

In the case reported by Sargeant Bendlow, mentioned in Porter’s case, and in the note to Porter’s case, which was before the 43d Elizabeth, a variety of charitable and meritorious purposes are enumerated, for which lands, tenements, or hereditaments may be given, the objects of some of which must have been vague and indefinite, such as for the use of poor people, the relief and comfort of maimed soldiers, sustenance of poor people, discharging poor inhabitants of cpmmon charges, marriage of poor virgins, &c. Whenever a statute was passed on the subject, it was not to create any uses, but either to restrain or to regulate them in such a manner as that the charitable intent should be preserved, and that they should not become prejudicial to the kingdom.

The doctrine of Cypres, which has led to decisions that have very justly been pronounced strange by Lord Eldon and Judge Story, evidently was a principle recognized in the English law at a very early period. In the very able opinion of Judge Baldwin on the will of Sarah Zane, he considers that the statute, de terris iem-plarium, 17 Edward, 2, established and ordained as a principle of the law of England, that lands once given to a charitable use should remain for charitable purposes forever. Certain it is, that the words of that statute, viz. “ ita semper, quod pia et celeberima vo-hmtas donatorum teneatur et exphatur et perpetua sanclissime per-severet,” afforded a rule which Lord Coke speaks of with approbation in several of his reports. The doctrine of Cypres, or something very similar to it, was there recognized. The original charitable purpose failed by the suppression of the order, and yet the lands were preserved to a charitable use. The order of templars, as we learn from the history of that period, were established at an early day for the purpose of watching the roads leading to the city of Jerusalem, and protecting pilgrims. Their numbers increased, and legacies were annually left to them from every part of Christendom, so that they became rich and powerful. As a measure of expediency and justice, the order was suppressed. In those times of violence, when but little regard was paid to individual rights, we should expect to have seen their possessions seized upon and appropriated to satisfy the rapacity of the powers who then ruled. But the pope, who suppressed the order, thought proper that their property should still be preserved for the purposes for wdiich it was given, and determined to transfer it to the knight’s hospitals, and published an ordinance to that effect. The king, Edward II., asserted his own rights and that of his subjects to the possession, and suspended the execution of the ordinance. He consulted the judges, who determined that all the possessions of the templars had reverted as escheats to the lords of the fee. But an act of parliament was passed, assigning them to the hospitalers for purposes similar to those for which they had originally been bestowed on the templars. It is very evident, that a power was here exercised of appointing a charitable donation to a new and similar purpose, on the ceasing of the one to which it was devoted in the first place. The judges of the court determined that the land reverted to the lords, and yet because it had been appropriated to a charitable use, it was considered that it should still continue appropriated to such purposes.

On the suppression of the monasteries in the reign of Henry VIII, such parts of the lands as had been given to good, virtuous and godly uses, and been misapplied, were directed to be continued to such uses.

A great object of the statute of Edward I. b. c, ch. 14, in dissolving these chapels, chauntries, &c. was, to convert the funds from the uses then considered superstitious, to good and godly uses, as erecting grammar schools, &c. educating youth, &c. It evidently appears to have been a fundamental principle on this subject, that where property had once been given to and used for a charitable purpose, the intent of the donor should be respected and preserved ; and where, from reasons of state, it could not be observed in the particular manner by him pointed out, it should be done in such a manner.as'-that it should be preserved for a charitable use.

Now it is of no consequence here- to discuss the propriety of this principle, or to inquire whether-it- was at all times correctly and faithfully observed, so long as we find the principles of the law of charitable uses there existing and acted upon before the statute of Elizabeth was made. In the two instances mentioned, the legacies had been given to the templars, the lands, &c. had been given to the monasteries, the original testators and donors had been long deceased, and they intended to part with their interest in the property bequeathed. Possibly no injustice was done in not permitting this property to revert to the remote heirs and kindred of the donors, and if it had been faithfully applied to new and useful objects, it could not have' been a subject of much complaint. Of this, however, we at this age cannot judge with any accuracy.

It has been confidently argued, that this statute of Elizabeth made certain gifts to charitable uses valid, which were not valid before; that it has given effect to certain conveyances, which were void before. This opinion is undoubtedly sanctioned by great authority. The language made use of in the early reports gives a strong countenance to this idea. There are, however, not wanting the opinions of eminent judges and chancellors, that the statute introduced “no new law upon this subject, and made none valid, not valid before.”

It is to be remarked, that the statute does not seem to contemplate giving effect to any charitable donations, not good before, it recognizes them as existing, and as not having been employed according to the intent of the donors. It adopts the terms which had previously been used to set apart property for such purposes, “limited, appointed, and assigned;” the same words which were used in the statute of Edward, VI. c., chapter 14, “ all lands, &c. given, assigned, limited, or appointed,” &c. and the same which are used in conveyances for the purposes of declaring, or in the appropriate words, limiting, appointing, the use for which property is conveyed.

Although it must be acknowledged that the court of chancery went very great lengths in declaring certain wills good as appointments, and although they make use of the terms, “utterly void,” yet it was not by virtue of any provisions of the statute that these were declared to be good, but rather because those conveyances should have been held good as appointments before the statute, that they were decreed. Thus in Griffith Flood case, a devise to a corporation was prohibited by the statute of Mortmain, yet the devise was good as a limitation or appointment to a use, to be relieved under the statute, not because it was made valid by the statute, but because it should have been considered good as a limitation or appointment, whether made before or after. Collisom’s case was of the same kind. The devise was made before the statute of wills, and as a devise of the land was inoperative; but as a declaration or appointment to a charitable use, it was valid, and had the devise been to the use of an individual, it would have been equally good. Although lands could not be devised, yet uses were considered in some respects as chattels, and as such devisable. Chugleigh case, 1 Coke, 121. In the statute of 27 Henry 8, ch. 10, made to remedy abuses, it was recited that the hereditaments of the realm were conveyed without solemn: livery by last wills, sometimes by bare words, and sometimes by signs in great extrem» ities. That the courts went very great lengths in the application of these words, “ limited and appointed,” both to conveyances and devises, in order to extend the relief given by the statute of Elizabeth, is very apparent; and some of the cases are not to be reconciled either by the law, as existing before, or declared by that statute; although, undoubtedly, some of these devises might be considered as good upon the ground already mentioned. As late as the. year 1707, it was claimed that a will without any witnesses, might be good as an appointment to a charitable use, and the cases above mentioned were relied on as authorities for the position, and the Lord Keeper took time to consider before he decided against it.—2 Ver. 597. Lord Eldon, who had bestowed more attention upon the subject of charitable uses than any other chancellor, and who had at different times reviewed all the decisions made on the subject from the earliest period, in one of the last cases which came before him, and in which he reviewed the several decisions reported in Hobart’s as well as Revett’s case; Platt vs. St. Johns College, Smith vs. Stowell was pressed with the difficulty in considering that the statute of Elizabeth had a retrospective effect in divesting estates already vested. “ How,” says he, “ does the statute make good what was in itself good for nothing either befpre or after the passing of the statute. Can such a construction be put upon the words which occur in this act as will .authorize us to infer that they meant void gifts, limitations, assignments, and appointments ?” He came to the conclusion, that it was not clear that these instruments, originally void, were held to be valid by the effect of the statute of Elizabeth, but that there was in the court a jurisdiction to render effective an imperfect conveyance for charitable purposes ; that the statute had been construed with reference to such the supposed jurisdiction of the court; so that it was not by the effect of 43d Elizabeth alone, but by the operation of that statute on a supposed antecedent jurisdiction in the court, that void devises to charitable purposes were sustained.—Attorney General vs. The Skinner’s Company, 2 Russell, 407. The above case was upon the effect of a will made anterior to the statute, and although the chancellor does not express his opinion with decision, yet with Lord Eldon a doubt expressed upon a subject contrary to the common received opinion was equivalent to a declaration of his opinion and a decision. It is very evident from the whole case, that he considered the idea which, bad been advanced, that the statute of Elizabeth had a retrospective operation and made good conveyances wholly void before, was destitute of- any foundation.

It appears to me, from the examination which I have been enabled to bestow upon the subject, that the law in relation to charitable uses is not founded on any'statute, but that it existed at the common law, the elements of which were derived from the civil" law, and the principles of it may be found both in the statutes and in the adjudicated cases, long before the reign of Elizabeth.

The origin of the jurisdiction which has been assumed over these charitable uses by the court of chancery may be a subject of more doubt. On the one side, it has been declared that this jurisdiction originated and was wholly derived from that statute; and on the other, that it belongs to the ordinary judicial equity jurisdiction of the court of chancery ; and as was remarked before, there is great weight of authority for either position. The subject itself would"* seem naturally to belong to the jurisdiction of a court of chancery. If the law was known and established in England, as we have already considered, the remedy for the purpose of carrying it into effect could alone be administered either in that court, or a court having equity powers. Chancery always had cognizance of uses and trusts, and it was only in that court that the execution of a use, which was binding on the conscience of the trustees, could be decreed. The courts at common law had no means to compel the execution of a trust. If the estate was granted upon condition to perform a trust, it was forfeited, if the condition was not performed, and the land reverted, as in Porter’s case, before referred to. If the land was granted upon trust and confidence, to perform a. use, as in the case of Martindale vs. Martin, Cro. Eliz. 288, it did not revert on the non-performance of the trust.

Why should there ever have been a distinction in the .remedy to enforce the performance of a trust or use, between those which were limited and appointed to an individual, and those appointed to a charitable use, recognized by the law ? The same reason why chancery should take jurisdiction of the one, would require that they should take jurisdiction of the other. Judge Story, in 3 Peters, hazards a conjecture, that Porter’s case having established a charitable use, not superstitious, to be good at law, chancery in analogy to other trusts, held the feoffees to uses accountable in equity for their due execution, and that the inconveniences felt caused the statute of Elizabeth to be passed within seven or eight years. But if we are correct in the position, that charitable uses were good long before Porter’s case was decided, and some as vague and indefinite as the one mentioned to have been reported by Bendlow, in 5 and 6 Edward, VI. as a feoffment to the use of poor people, and in Plowden, 521, 542, there is no great hazard in believing that chan-eery, in analogy to other trusts, held the trustees accountable in equity, and compelled their execution whenever the subject came properly before them in court. In my view, it can make no difference when this jurisdiction was first exercised, whether it was assumed or usurped under the statute of Elizabeth or before. It properly belongs to a court of chancery, who are to exercise it so as to give effect to the intent of the donors, where it can be done consistently with the rules which prevail in a court of equity. I think, however, it will be found that this jurisdiction was exercised by chancery long before. It is true, but few cases can be found on this subject before' 43 Elizabeth, nor are there many cases in chancery reported for some years after, and until the reign of Charles II. There are some cases collected by Tothil in the reign of James I. and Charles I. and some cases collected in Duke, Charitable Uses. The origin of jurisdiction in England is only a subject of speculative inquiry. Their courts possess and exercise the jurisdiction, and have by their reported decisions established a regular and orderly system of law upon the subject, and it is of very little importance to them whether it was derived from that statute or not. Here it is of more importance to ascertain where the jurisdiction was first exercised in courts of chancery; if in those states where the statute has not been adopted, courts of chancery are precluded from taking cognizance of this subject. Before coming to such a conclusion, we ought to be well convinced that it is a clear and decided point.

The idea that the jurisdiction of the court of chancery, upon in-formations for establishing charities, arose since the statute of Elizabeth, and that prior to the time of Lord Ellesmere, who was made Lord Keeper in 1596, and Lord Chancellor in 1603, there were no such informations — was first suggested by the Earl of Roslyn, ‘then Lord Loughboro’, in the year 179,8, in the case of the Attorney General vs. Bower, (3 Vesey, 726) and I am not aware that it has been suggested by any other chancellor in England. Judge Story attributes this suggestion to Lord Eldon, who was not created chancellor until some years after. The result of Lord Eldon’s researches, evidently led him to a different conclusion, as we may learn from his remarks in Moggridge vs. Thackwell, (7 Ves. 69) and in Attorney General vs. The Skinner Company, (2 Russel, before mentioned). - Lord Thurlow considered that the cases had proceeded upon notions adopted from the civil law, which was favorable to charities, that legacies given to public uses, not ascertained, should be applied to some proper object. Lord Keeper Henley says, that the uniform rule has been, both before and after the statute of Elizabeth, for the court of chancery to aid a defective conveyance to such charitable uses, where the person had power to convey.' — 1 W. B. 90. The same case is reported in Eden, who was a connexion of the Lord Keeper. And there is no reason to believe either that he was mistaken, or that his language is incorrectly reported.

Lord Macclesfield, in the case of Eyre vs. Countess of Shaftsbury, (2 Pere. Wm. 119) declares, that it was everyday’s practice, antecedent to the statute of Elizabeth, to file informations in chancery in the attorney General’s name, for the establishment of charities.

Lord Redesdale, in the case of Attorney General vs. The Mayor of Dublin, (1 Bligh. Parl. Rep. 347-8) is very full and explicit upon this subject: He asserts, that not only the law, with respect to charitable uses, was the same befere as after the statute;— that the jurisdiction given to commissioners, was a new ancillary jurisdiction ; — that an information by the attorney general might be brought before, and the controlling jurisdiction of the chancellor over the subject, existed before the passing of the statute ; — that it was found the commission of charitable uses was not the best remedy, and they resorted again to proceedings, by way of information in the name of the attorney general.

So far, therefore, as we can learn the opinion of the chancellors in England, with but one exception, they attribute both the law on the subject of such uses, as well as the jurisdiction of the court of chancery, to a period more remote than the reign of Elizabeth. It is to be remembered, that there is excepted from the operation of the statute, a very considerable amount of property bestowed for such purposes. The act was not to extend to any colleges within the universities, or to the colleges of Eton,'Westminster, or Winchester ; nor to any cities or towns corporate, where there is a special governor of such lands, &c,,and it may with propriety be inquired, why should a more liberal rule be introduced with regard to the enumerated indefinite cases, and the excepted cases remain subject to a more rigid system ? Who was to exercise jurisdiction over them ? Or were the charitable donations or legacies excepted, to be left as they would be in this country, if chancery has no jurisdiction over them, without protection, and no remedy had for abuse or misapplication of the funds ?

From the case of the Attorney General vs. Matthews, (2 Lev. 167) we learn, that charities not within the statute, were enforced in chancery, on the information of the attorney general. The de-v¡se there, was for the good of poor people forever. The commissioners had made an order thereon, which the chancellor quashed, because it being a general charity, the commissioners had nothing to do with it; but it was to be determined in the court of chancery, on the information of the attorney general, which he directed to be brought, and on the information made a decree.

In the case of Attorney General vs. Newman, the court declared, that the king, as pater patries, may informf for any public benefit, for charitable uses, before the statute.—Cas. in Chan. 157.

From the case of The Poor of the Parish of St. Dunston vs. Beauchamp, (Cas. in Chan. 193) we learn, that resort was had to a court of chancery, who made a decree, in a case where ,it was doubted whether the order of the commissioners would be complied with ; — that the bill was filed in the name of the indefinite object of a charity, viz, the poor of the parish; and that a decree was made by the chancellor, on an original bill; and though the reporter adds a quere whether such a bill was necessary, the case shows that no doubt was entertained as to the jurisdiction and power of the court.

In the case of Pember vs. The Inhabitants of Kingston, on the question whether money given to maintain a preaching minister be a charitable use, the Lord Keeper and the Judges decreed, notwithstanding it is not warranted by the statute to be a charitable use, that the same should be paid by the executor, to such maintenance — Tothil, 96.

Other cases might be mentioned, where charities, not within the statute, have been enforced. We shall find also, that there are cases antecedent to the statute of Elizabeth, where the court of chancery exercised jurisdiction, and enforced charities, by their equity jurisdiction. It appears to me that all that is necessary on this point, is to ascertain whether there are any cases of this kind pri- or to the statute; for if there are any such, it establishes the fact, that chancery exercised jurisdiction, and shows that it was neither given.by, assumed, or usurped under that statute. Nor is it material to find anyone case.of their exercising a jurisdiction over vague or indefinite .charities. The question is, did the court take jurisdiction under the common judicial equity powers ? If they did, they must enforce them according to the nature of the subject. If there was no trustee, the court could appoint a trustee; as no trust is suffered to fail for want of a trustee. If the objects were indefinite. so by far the greater part of the objects of all charitable bequests are. Who were to.be benefitted by the establishing of els and chauntries ? — who, by the establishment of hospitals ? — who, by the establishment of an institution for the sustenance of impotent men and women — men out of their wits — poor parishioners — for the relief of the poor and needy, &c. ? If the court of chancery had power to enforce any charities, they must have been charities of this description; for most of them are of this description.

In the few cases before the statute, which are to be found in Duke, Charitable Uses, we find not only the jurisdiction of the chancellor established, but we find also the elements, or the principles of the system of law, upon this subject, which have been incorrectly attributed to this statute. It is to be observed, that this book contains the readings of Sir Francis Moore, who penned the statute, and who was undoubtedly well acquainted both with the law on this subject, and also with the jurisdiction exercised, both before and-after the statute. As this book is not in any of the libraries in this quarter, it may be proper to recite some of the cases which are there mentioned. We find in page 131, “If a man bequeath £800 to three parishes, equally to be let out at £5 per £100 by the church wardens of each parish, this legacy is not within this statute, but yet the chancellor may give remedy by equity in chancery. If a man devise that the executors or administrators of his wife shall pay £100 tobe lent out to young tradesmen, this devise is void, because he cannot charge the executors or administrators of his wife. But if that wife take another husband, and he hath assets in his hands of the goods of the former husband, those shall be liable to the charitable use ; and J;hese observations were made upon a decree in John Howard’s case, 40th of Elizabeth.”

In page 155 — “ If the use were limited for a chaplain, they may decree by addition, that the chaplain shall be a preacher, so they may appoint the nomination of him to a man of science, as a master of a college, &tc., because such things concur in decency and order with the intent of the founder, upon a decree made 40th of Elizabeth.”

In page 163 — “ One Simons', an Alderman of Winchester, sold certain lands to Sir Thomas Fleming, now "Lord Chief Justice, then Recorder of that town, and this upon confidence to perform a charitable use, which the said Simons declared, by his last will, that Sir Thomas Fleming should perform. The bargain was never enrolled, and yet the Lord Chancellor decreed that the heir should sell the land, to be disposed of according to the limitation of the use; and tliis decree was made the 24th of Queen Elizabeth, before the Statute of Charitable Uses ; and this decree was made uPon ordinary and judicial equity in chancery, and therefore it seems the commissioners upon this statute may decree as much in a like case.”

In page 154 — “ In the 11th of King Henry VI. a gift was made to the intent to find a chaplain ad divina cehbranda, until the feoiF- or, or his heirs, should procure a foundation, &c. There was no employment until the third year of King Edward VI.; and therefore, in the Queen’s time, one Payne purchased the land as a concealment. After a commission being awarded upon this statute, the commissioners inquired and found the gift, and thereupon decreed the property to another, from Payne; but afterwards this decree was made void by the Lord Chancellor, because the use limited to find a chaplain ad divina celebrando was no use within the statute But the chancellor, by his chancery authority, may, and did decree the land to the first use.”

In a late case reported, (1 Mylne & Keene, 376) Att'y Gen. vs. The Master of Brentwood School, we learn that a decree was made in chancery, in the' 12th year of the reign of Queen Elizabeth, before the statute of charitable uses, at the suit of the inhabitants of the parish of Southweald, against the'heir at law, that he should execute a conveyance for the purpose of providing a main-" tenance of a school-master and poor people, according to the intent of Sir Anthony Brown, as expressed in his will. The Master of the Rolls, Sir John Leach, expresses himself very decidedly on the subject of that decree, “ That at that time, no legal devise could be made to a corporation for a charitable use, yet lands so devised were in equity bound by a trust, which a court of equity would then execute.”

These cases are certainly sufficient to convince us, that the subject of charitable uses was before the court of chancery, and that decrees were made, by virtue of the chancery authority of the chancellor, and upon his ordinary judicial equity in chancery. It has already been remarked, that there are no reports of cases in chancery before that period. It has been said, that although there are many cases cited in Porter’s case, yet they were all decided at law, qnd none in equity. But when we consider the hostility which existed about that time, between the court of law and equity, it is not a matter of astonishment that no reference should be had to the proceedings of chancery, in discussing a subject or question of pure law, even if the subject had frequently been discussed in the courts of chancery. It is very doubtful, however, whether the subject had very often been before the courts either of law or equity.. When we remember the spirit of the age preceding, and at the time of the. reformation, and until some time after Queen Elizabeth was seated on the throne,- it is not probable that there were many cases brought before any of the judicial tribunals. Until the time of Henry VIII. the charities were mostly of a religious character, or intimately connected with the religious or superstitious notions which then prevailed, as has already been noticed. It is not probable that up to this time there was much disposition to divert property, given or bequeathed to pious uses, to any other purpose, however wantonly or extravagantly they may have been expended. The right appro.priation of that kind of property, was so intimately connected with the religious duties enjoined and performed, that the fear of ecclesiastical censures, which carried more terror than the process of at court of law, probably prevented many misapplications of the property sequestered for such uses ; and if the trusts were abused or misapplied by the ecclesiastical bodies who had the management, the chancellor was usually selected from that class of persons; and there were no courts who had either disposition or firmness- to resist the religious influence ^exercised by the clergy. After the - commencement of the reformation, other causes operated to prevent any legal investigation of this subject. Free schools were erected principally in the reign of Edward VI. and in the beginning of the 'reign of Queen Elizabeth, intended and supposed to promote the progress of the reformation, and hostile to the interest and feeling of that part of the people who adhered to the ancient faith. After the death of Edward VI. and during the reign of Queen Mary, and we may add for the first years of Queen Elizabeth, it was uncertain what faith would be adopted as the religion of the state.— It was undoubtedly supposed, and expected by many, that the possessions of the monasteries,- chapels, &c. which had been suppressed by Henry and Edward, would be restored. The tendency of this state of things, was evidently to cause a laxity in the administration of the law in enforcing the charities of that age, and a consequent abuse and mismanagement of the funds. The trustees, either from fear or avarice, may have felt a disposition to convert the property devoted to public uses, to their own private uses. .

In the reign of Henry VIII., Edward VI.,- arid Elizabeth, there would be no disposition to enforce those charities which had been given to promote the interest.of the Roman Catholic faith; and in the reign of Queen Mary, 'there would be an utter aversion to favor those schools, which had evidently been founded to destroy the faith which she professed to uphold. It is therefore not a subject of wonder if devises and grants to charitable and pious uses were regarded with no favorable eye, — that they should have been suffered to remain dormant, without any attempt to enforce them, either in the courts of law or chancery, or in parliament, from the time of the commencement of the reformation, until it was fully settled, as was the case of the devise which gave rise to Porter’s case, in 1 Coke, and in the case of the Thetford School, which originated the case of Gibbons against Maltyard, in Popham, and Martidale vs. Martin, in Croke.

When the statute of Elizabeth was passed, the times probably were such, as to call for a more thorough and searching remedy than had before been had, — to call for an investigation and inquisition in every county and in every diocese. The alms and hospi-talities which had been received through the monasteries, had ceased, and there evidently was a general disposition to misapply the funds and abuse the trusts given and created for those purposes. — ■ Hence the statute of Elizabeth was passed, designed, undoubtedl y, to be directory to the chancellor, recognizing that the property given for purposes strictly charitable, had been misapplied, (for it is to be remembered that none of the charities recognized in that statute were of a religious character, except one, viz: for repairs of churches,) authorizing him to award a commission to the bishop of every several diocese, to inquire into all abuses or breaches of trust, he. and to make order concerning the same. The time had come when they could distinguish between such gifts as were proper to be enforced in the then state of the kingdom, and such as were not; and the statute was passed accordingly. The proceedings under the statute, however, ceased with the necessity which required its passage. Relief, by original bill, was granted at an early day. An appeal' was allowed to the House of Lords, and before the passing of the statute of52dGeo. III. chap. 101, giving a more speedy remedy, the proceedings under the statute had ceased.-

The case of the Thetford School so fully illustrates that there was no adequate remedy at law, and also that at law, charitable uses were recognized, and where the remedy was, that a short.history of the case may not be unappropriate. It is reported in Pop-ham, 6, 7 8c 8, by the name of Gibbons vs. Maltyard & Martin, in Moore, 594, by the name of Gibbons vs. Maltyard, and in Croke Eliz. 288, by the name of Martidale vs. Martin:

“In 1566, Sir Nicholas Fulmerston made a will. This Sir Nicholas Fulmerston was probably the same person to whom the revenue and site of a monastery was given, on their dissolution, in the reign of Henry VIII. as he bears the same name, and the dissolution was within 30 years previous. In this will, he devised to his executors certain lands for the term of ten years, on condition that they should find a preacher forever, to preach in the church of St. Mary’s four times in the year, at ten shillings for every sermon;— that they should erect a free grammar school, and maintain a master and usher, and assure three tenements for the residence of the master,' usher, and their successors forever, and for the habitation of four poor people. The remainder in the said lands, he devised to Sir Edward Clark and his wife, who was daughter and heir of Sir Nicholas Fulmerston — on condition, that they should, within said ten years, assure lands and tenements in possession, of the value of £35 per annum to the executors aforesaid, or their survivors, for and towards the maintenance of the said preacher, schoolmaster and usher, and for the relief of the poor persons aforesaid; and if the said Edward Clark and his wife, should make default, he then devised that the estate of the said Clark and his wife should cease in said land, and then the said lands, upon such default, should go to his executors before mentioned, or the survivors of" them, upon trust and confidence, that they or the survivors of them, should yearly dispose of the rents and profits, in finding the preacher and other charitable works aforesaid.”

It would appear from the case, as -reported in Popham, that both the executors and Sir Edward Clark were unwilling to carry the will into effect, and probably combined to defeat the same; for we learn, that the executors refused to be executors, and that Sir Ed-' ward Clark entered and attempted to assure other land of the value of £35 per annum, with a condition, wholly different from that prescribed in the will. The son of the surviving executor commenced an action of ejectment against the person in possession, under the heirs of Sir Edward Clark, who was also heir of Sir Nicholas Fulmerston. We find that Sir Edward Clark claimed the land on the ground that the condition was against law ; and if he failed on this point, he then claimed that the executor held the same land on condition ; and as they had failed to comply, he, in right of his wife, as heir of Sir Nicholas Fulmerston, was lawfully possessed of the land. It appears however from the case, as reported in Popham, Moore and Croke, that it was decided that though the executors had refused the trust, they should still take the land as devisees; and it was further decided, that the use declared in the willj was not prohibited as a superstitious use, being in favor of learning and relief of the poor, and secondly that the devise to the executors, on the default of said Edward Clark and wife, was not upon condition, for the devise being upon trust and confidence, showed that the testator reposed trust and confidence, in them, and would not have the land returned for non-performance of it. Nothing is said how this trust was to be enforced, nor is it suggested that there was no way to enforce it. ' The courts of law could proceed no further, as between the heir and devise, they determined that the devisee, as trustee, was entitled to hold the land. The land having been thus decided to be in the devisee on trust, we do not learn what steps were then taken to compel the trustees fo perform the trust. But from what we can learn of the subsequent proceedings, we find there was still a disposition to frustrate the charitable intent of the devisor, by withholding a part of the yearly value of the lands ; for it seems that afterwards, the case was both in chancery and in parliament, where we learn from Duke, “ breaches of trust were to be relieved, although it was a tedious and chargeable remedy,” The lands devised increased in value, from £35 to £100. A private bill was exhibited in parliament in the 7th Jac. I. It was referred to the justices of the court, who kdjudged that nothing should be converted by the devisees to their own use, but that the whole should go for works of piety and charity, and should be imployed in performance and increase of the said works of charity. — 8 Coke, 259.

This case, which evidently attracted some notice atthe ti me, bad also been in chancery; for in the preface to Duke, by Bridge-man, he says, “ As early as in the year 1610, in the famous case of Thetford School, it was determined, that where a testator pointed out the particular objects of his bounty, the court of chancery will construe his intent imperative, to be norionly in exclusion of his next of kin, but to the disinheriting his heir at law. Proceeding upon this principle, the court uniformly decrees the surplus rents and profits to the augmentation of the charities.” And he adds, “ The same doctrine, has prevailed in courts of equity to this day.” In the history of this case, we see, that devises to a charitable use, were known in the courts of law, — that the court recognized them as good, so far as to determine that the estate should belong to the trustees for such uses; and that the trustees were not permitted to baffle the intent of the devisor, or appropriate the property to their own uses; and that both in chancery and parliament, the intent of the devisor could be, and was carried into effect ; and that without any aid or benefit from the statute of Elizabeth. But it may be asked, if the law in relation to these uses, existed before the statute was incorporated into their law, and the courts of equity had jurisdiction, what was the necessity of passing the statute? This question has been in some measure anticipated, viz. that it was to furnish a more effectual, searching, and less expensive remedy. This was distinctly asserted by the counsel in argument, of the case of Attorney General vs. Dixie, 13 Vesey, 522, and not denied.

That the proceeding in chancery was tedious- and expensive, we learn from the case of Hynshaw and others vs. Morpeth, (Corporation Duke, 242). The corporation refused to apply the increased value of certain lands,given for a charitable purpose, for the purposes designated, and refused to appear before the commissioners, claiming that they were visitors, and by the proviso of the statute, exempt from the power of the commissioners. The Lord Keeper declared, that as they were trustees as well as visitors, they were not within the intent of the proviso, declaring, “that if it was otherwise construed, this breach of trust would escape unpunished, unless in chancery or in parliament, which would be a tedious and chargeable suit to poor persons.” The heavy expenses attending at that time a suit in chancery, we may conjecture, when we are told, that it had been customary to give presents to the chancellors, the amount of which, as disclosed in the trial of Lord Bacon, was great and extensive... Further, about this time, the contests between courts of law and the chancery was at its height, and suitors, particularly such as were benefited by the charitable donations mentioned, would apply to a court of equity with so'me reluctance, as it was but a few years from this time that indictments were preferred against the suitors, solicitors, and ajmaster'in chancery, for questioning in the court of chancery, a judgment obtained on the king’s bench. Furthermore, the practice of the court of chancery was not at this time reduced to much system — the office of chancellor having been filled indiscriminately, as we are told, by lawyers, churchmen, and courtiers. The jurisdiction over a considerable part of-the charities then existing, had been given to other tribunals — some to the court of wards and liveries. The lands of the suppressed abbeys and monasteries were placed in the hands of commissioners, under the superintendence of the courts of augmentation of the king’s revenue, and it was customary at that time to proceed in cases similar by commissioners. The statute of 13th Edward I. provided, that if lands, given for free alms and relief of the poor, were not employed for that purpose for two years, the lands should revert to the donor, and he might have a writ of cessavit, which whs undoubtedly effectual as to all that class of charities. To furnish a better remedy, one that should extend to every diocese and every county — that should be attended with comparatively a small expense and charge, and of which any could avail themselves by petition, without being subject to the expense of a suit in equity, or without being subject to cost, unless they objected to the .proceedings of the commissioners, were undoubtedly reasons sufficient for passing that statute. But whether they are satisfactory or not, is but of little importance, if it is found that the elements of the law of charity were recognized in the courts of England, and the court of chancery exercised a control over charitable uses before. That there has always been a disposition in England to favor devises and legacies of this character, is not to be denied. The very early decision mentioned by Plowden, (523) where the courts of law upheld a devise to St. Andrews Church in Holborn, by construing it as a devise to the Parson, who was persona copax, evinced this disposition. The whole course of their decisions since, has been in accordance with this idea ; and where they have considered a charitable use declared in a will good, and have supplied any defect which existed in the will, for the purpose of upholding the use, they have only acted in analogy to their proceedings in other cases. It is a familiar principle, that this court will aid a defective conveyance. The cases where this subject has come before the courts in this country, are numerous. The law, in relation to charitable uses, is recognized in many of our sister states. And it is alone upon this principle, that many of their decisions can be supported.

The case of The Baptist Association against Hart’s Executors, (4 Wheaton, 1) though it was truly a question of local law, arising under a statute of Virginia, repealing in terms the statute of Elizabeth, and which was undoubtedly intended to abolish the law of charitable uses in that state, yet it must be admitted, was decided on general principles, applicable to all the states where that statute is not in force. To avoid coming in collision with the decision in that case, the courts have been somewhat astute in endeavoring to make distinctions between that and the case before them. In the case of Terrill vs. Taylor, before mentioned, which was before this decision, the law upon the subject of charitable uses was recognized. The case of Ingliss vs. Sailor’s Snug Harbor, (3 Peters.) it appears to me, can only be supported on the principles of the law of charitable uses. It is placed on the ground of an executory devise by one of the Judges, but according to the case of the Baptist Association, the devise was void for want of a person to take, and the estate descended to the heirs, and no courts in this country have ever admitted, that property once vested, can be divested.

Judge Johnson, who concurred in the decree in the last case, considered the law in relation to charities, as existing in the state of New-York. Two of the Judges, viz. the Chief Justice and Judge Story, considered the case of the Baptist Association as governing the case before them, and dissented. The case of Beatty et al. vs. Kurtz et al. (2 Peters. 566) was also a recognition of the doctrine, applicable to public and charitable uses. The conveyance, which was the subject of that suit, as the court say, if valid, must have been considered as valid upon other principles than those which ordinarily apply between grantor and grantee.— The law in such cases, in the language of Judge Thompson, (6 Peters. 435) applies to those rules adapted to the nature and circumstances of the case. In delivering the opinion of the court, Judge Story says, that the bill of rights in Maryland, recognizes to a certain extent, the statute of Elizabeth, under which such conveyances would be upheld, although there was no specific grantee or'trustee. As to which I may remark, that if the clause in the bill of rights in Maryland, which is rather an exception or recognition of the previous validity of such appropriations, (for it is found in an excepting clause to an article in the bill of rights which makes void all gifts for the support of religious teachers, or for the benefit of any religious sect or denomination) is considered as recognizing the statute of Elizabeth, there is much stronger reason for asserting that the clause in the 41st article of the constitution of this state, before referred to, not only recognizes the doctrine of charitable uses,-but the law on that subject, as established by the judicial tribunals in England, and all the principles of the law, not repugnant to the constitution of this state. We are not disposed however to say, that that statute is in force here, although there is not wanting a very high authority for the position.

The case of Beatty vs. Kurtz, is considered by one of my brethren, as distinguishable from the case under consideration, on the ground that each member of the Lutheran society is to be considered as having an interest in the land conveyed. The court, however, do not lay any stress upon that circumstance, in the decision, nor was it urged in the argument.

The case of The City of Cincinnati vs. The Lessee of White, recognizes the law in relation to dedications of lands to charitable uses,- which are admitted to be void, without any grantee. The subject has been fully and ably investigated in New-York, and we have the authority of the case of The Trustees of New Rochelle, (2 John. Chan. Rep. 292) and the opinion of Chancellor Jones, in the case of Orphan Asylum against McCarter, (9 Cowan, 440) in favor of charitable bequests, and the jurisdiction of chancery over them.

In Pennsylvania, the case of McGirr against Aaron, (1 Penn. 51) and Witman vs. Lex, (17 Sarg. & Rawle, 91) recognize the law as existing in that state. The very full and able (opinion of Judge Baldwin in the circuit court in that district, on the will of Sarah Zane, where he collects and examines with great industry and ability, all the law, statute and common, with the several decisions there, which,' if it is entitled to any consideration as an authority, establishes legacies, so very similar to the legacies in the will under consideration, is conclusive upon the subject.

In Massachusetts, we have the case of Bartlett and others vs. King’s Ex’rs, (12 Mass. 537) where a bequest to a piou sand charitable use was sustained similar to the bequest in this will, in trust for a society,similarly organized and constituted, to the societies who are the objects of Mr. Burr’s bounty, the case being in no otherwise distinguished from this, except that the trustees were named.

There is also the recent case of Emery vs. Gowing, of which we have a manuscript copy, where the statute of Elizabeth is considered as in force in that state.

In Connecticut, we find a legacy to be disposed ot among the brothers and sisters of the deceased, as the executors should judge most in need, of the same, according to their best discretion, was held not void for uncertainty, and the executor having deceased, a committee or trustee was appointed to execute the trust.—8 Conn. 51, Bull vs. Bull.

In New Jersey, in the case of Hendrickson vs. Hicks, the doctrine of charitable uses was recognized.

In North Carolina, in the case of Griffin vs. Graham, (Hawk. 97) after a full and elaborate investigation, it was held, that the statute of Elizabeth was in force in that state. That independent of the statute, and though the jurisdiction of the court of chancery in England over charities should be considered as belonging to the court, not as a court of equity, but as administering the prerogatives of the crown, yet the court of equity in that state had the like jurisdiction ; and that where there were trustees, and a definite trust, and specific objects pointed out, the court would, as a matter of trust, take cognizance of the same, by virtue of its ordinary jurisdiction, as a court of equity.

In this state, in the case of Stone Executor of Fuller vs. Griffin, (3 Vt, Rep. 400) a church or society incorporated, was held to be capable of receiving the use of property, devised to trustees for their benefit. In all these cases, it is apparent, that the courts have endeavored to uphold donations for public, pious, or charitable uses, and to get over all critical, technical exceptions against them, probably thinking that they were part of the voluntary system adopted in this country, for the support of pious, religious, and charitable institutions and associations, and in which we are distinguished from those countries where religion is sustained by force of law, and by extensive church establishments. The weight of authority in the American courts, is evidently in favor of the Jaw of charitable uses, and the jurisdiction of courts of equity over them.

The jurisdiction exercised in these cases, is different from the specially delegated jurisdiction which the chancellor exercises over idiots and lunatics, and over general charities and the visitatorial power over eleemosynary corporations, which is exercised on petition. Where there is a general charity, as a devise to pious and charitable uses, the king may dispose of it; and the course is, to apply to the king by petition for a sign manual.' — Ambler, 712.

A court of chancery, as such, has no jurisdiction to remove the officers of a corporation, but where the crown become visitors for want of an heir of the founder, and the removal of the officers is sought, it is by petition to the great seal. This jurisdiction js like that exercised over idiots and lunatics by the chancellors, as the representatives of the king. It is a proceeding before the chancellor, and not in the court of chancery, as was said by the Master of the Rolls.—Exparte, Dann, 9 Vesey, 547.

The proceedings in charity cases are usually before the court of •chancery, under their general equity jurisdiction. In the case of a petition to the chancellor, no costs are taxed. On bill or information in the court of chancery, costs are allowed. It is to be remembered, that this distinction has been made, that where there is a bequest to trustees, fo.r charitable purposes, the disposition is made by a court of ehaneery, and a scheme is laid before the master. Here, I apprehend, the court act on their general equity jurisdiction. But if no trust is interposed, and the disposition is to .charity generally, an application must be madé for a sign manual; :and on this, the chancellor acts as the specially delegated officer of the crown.

It is however, somewhat immaterial here, under what head this jurisdiction is exercised; although I havé no doubt it is under the general equity jurisdiction of the court of chancery, the same which is exercised over other trusts. We have all the powers incident to a court of chancery — (Stat. 123) — our rules are to be conformed to the rules and precedents established in courts of chancery in Great Britain, so far as is consistent with our constitution and laws, and we can exercise all the jurisdiction over infants, lunatics, charities, &c. which are exercised by the chancellor or the. courts of chancery in Great Britain, (except that which is delegated to other tribunals,) exercising them according to our law, and not according to their statutes. Believing that the' principles and elements of the law, in relation to donations to charitable uses, was known and established in England long before the statute of Elizabeth — that gifts and grants may be made for purposes of relief to the poor, and for upholding charitable purposes,, having in view the moral, intellectual, and religious improvement of the objects which are from necessity general, uncertain and indefinite — that communities and associations might be united for the purpose of receiving these donations and distributing them — that they are within the jurisdiction of a court of equity, which by its constitution and rules, is alone adapted to carry them into effect; and believing also, that the law, which has been built and established by a series of doctrines, as well as the jurisdiction, does not necessarily arise, or grow out of that statute. We believe that many, if not most of the decisions, in cases which have been before the court of chancery, are applicable to this country, and are authorities here. Nothing further will be necessary than to compare the legacies given in this will with those which have been established as valid by decided cases, and from them learn whether they are such as can and ought to be carried into effect, in the exercise of our equity jurisdiction. How many of the cases which have been decided on the doctrine of Cy-pres, are incompatible with our free institutions, it is not necessary here to inquire or decide. One thing however may be confidently affirmed, there are no reasons of state, no considerations arising from an established religion, requiring us to refuse to carry into effect a bequest to a charitable use, lest it should tend to propagate a'false religion.

The decision in the case of The King vs. Lady Pertington, (1 Salk. 162—3 do. 34) would not be considered as compatible with our free and liberal ideas on the subject of religion. A Jew might here give His property for building a synagogue, and we should not appropriate it to building a foundling hospital, (Amb. 228). We should be loath to decide, that a devise for bringing up poor children in the Roman Catholic faith, was void; and yet declare that it should go to such uses as others might direct, (7 Vesey, 490). But when we do find a charitable intent, and property given for any public, pious, and charitable use, tolerated among us, and we can carry it into effect in the exercise of our equitable jurisdiction, as a court of chancery, we ought to do it; and more especially, we should hesitate about giving the property, left by a testator, to those who were not considered by him as in any way entitled to it, and .disappoint his pious and charitable intention, which probably afforded him a consolation in his departing hours.

On examining the authorities upon this subject, some of the cases will be found directly applicable to the case under consideration, and embracing almost every point raised in the argument.— These general principles have been established, which seem to rise necessarily from the nature of the subject, — that the court are to be liberal in the construction of charitable bequests, to carry into effect the intention of the testator, — that where they can discover the charitable intent, they will carry it into execution, and support the charitable purpose, — that they will not suffer an equitable interest to fail for want of a trustee to support it; and that it has never been considered as an objection to a charitable use, because it was general and in some measure indefinite, unless there was an uncertainty as to the amount intended to be given, or the general purpose was of so uncertain and indefinite a character, that it could not be executed: the instances of which, will be mentioned.

In the case of the Attorney General vs. Clark, (Ambler, 422) a legacy to the poor inhabitants of St. Leonard’s Shoreditch was sustained, although there were no trustees or persons to select the objects named in the will. In this case, a reference was made to the case of the Attorney General vs. Rance, where a legacy was given to the poor, without designating what poor. As the testator was a French refugee, it was given to the poor refugees. Similar to this was the case of Power vs. Attorney General, (3 Mer. 48) where a bequest to the widows and seamen of the town of Liverpool was sustained.

A bequest to the widows and orphans of the parish of Linfield was objected to, for that the description of the persons was too general and uncertain. It was held good as a gift to the poor widows, &c.—Att’y Gen. vs. Comber, 2 Simons & Stuart, 93.

In the case of the Attorney General vs. Hickman, (2 Eq. Cas. Abr. 193) the persons who were to relieve the objects of the charity deceased in the life-time of the testator, and yet the legacy was sustained. The use declared, was for the encouragement of such nonconforming ministers as should preach God’s word in places where the people were not able to allow them a sufficient maintenance. The testator left the disposition of this charity to persons who died in his life-time. The Chancellor Lord King, said the charity which was the substance of the devise, remained, notwithstanding the death of the trustees, and could be administered by the court, as well as if the legatee was alive.

The case of Waller vs. Childs, (Ambler, 524) is very similar to the present. This was a bill brought by the heir at law, against the executors and trustees, to set aside the charitable bequests.— The directions in the will were to pay to the treasurer or treasurer s, for the time being, of a society or fund, for the maintenance and bringing up of dissenting students for the ministry of the gospel. It appears there were three denominations, yiz. the Presbyterians, Independents, and Baptists — each of which had a society, consisting of persons chosen out of their congregations, called the managers of the fund, for the support of pious dissenting ministers of their denominationsthat collections were annually taken up and put into the hands of the treasurers thereof, for the time being.— This bequest was objected to as void for uncertainty. The court decided in favor of the charity, and ordered the money to be paid to all the treasurers of these denominations, upon the trusts in the will. This case, unless it was founded on the statute of Elizabeth alone, certainly covers the whole ground contended for by the different societies in this case.

The case of the Attorney General vs. Stepney, (10 Vesey, 22) where a bequest to the Welsh Circulating Charity School for the increase of Christian knowledge, and promoting religion, and to purchase Bibles and other religious books, pamphlets and tracts, as the trustees should devise, was held to be a good bequest, subject however to such checks as might be consistent with the religious establishment of the kingdom, but which would not be required in this country.

These cases are a very few, selected out of a great multitude, to show that the remarks of Godolphin and Swinburn, made long since, “ that testaments to pious uses are not void in respect of uncertainty, as other testaments are,” is still recognized as the law upon that subject. The cases where legacies have failed for uncertainty, either as to the amount intended to be given, or of the Uncertain and indefinite purpose of the charity, are none of them . r . : similar to those under consideration.

In the case of Brown vs. Yeale, (7 Vesey, 50) the bequest was for the purchase of such books as may have a tendency to promote the interest of virtue and religion, and happiness of mankind; and was determined to be too indefinite to be executed by the court.— The correctness of the application of the principle to that case, was however doubted by Sir William Grant and Lord Eldon, (9 Vesey, 399). A bequest “ for such objects of benevolence or liberality as the Bishop should appoint,” (9 Ves. 399) “ for such benevolent purposes as the executors might agree on,” (3 Mer. 7) — a bequest for such charitable or public uses, or to any person or persons, as the trustees might direct, (1 Simons &. Stuart, 69) were held void, as uncertain and indefinite. In all these cases, there were no specific objects or purposes of charity — no charitable purposes designated ; and as they were general and indefinite, and could not be executed, the legacies failed for uncertainty.

The distribution of charitable donations, it appears also, may be made by persons unincorporated, and who are shifting from time to time.—Baylis and Church vs. Attorney General, 2 Atk. 239.—The Lord Chancellor observed, that though the Alderman and Inhabitants are not in point of law a corporation, yet as the Attorney General was a party, he made a decree that the money should be disposed of as the Alderman, for the time being, and the principal inhabitants should think'most beneficial.

In the application of the principles of the law, and these various decisions, which are selected from a great number, (for the subject and the authorities have been fully and ably sifted in several cases within a few years previous to the case before us) we shall find, that the legacies in the will of Mr. Burr are established beyond all controversy, if these decisions are to be recognized as authorities upon this subject in our courts. These different societies have been long known, united and associated, precisely the same as similar societies have for a long time existed for similar purposes; — not incorporated, because they are better adapted to the ends of their as--sociations, without an act of incorporation. The objects of their association are defined and certain, and the members are generally those who contribute their funds to, and are from -sentiment and duty friendly to the objects of their association. The purposes are such as have been considered as charitable by the decisions of courts of chancery and law, and have been recognized as such both before and after the statute of Elizabeth, and are more definite than many enumerated in Porter’s case, for which lands, tenements, and hereditaments may be given, and much more so than a great portion of those which have been adjudged to be good charitable uses from the time of Edward I. to the present time. The funds are usually expended under the direction of a board of managers or directors. The due administration of them can be enforced, and the maladministration prevented or punished in a court of chancery.— If the objects of the society are such, for which money may be lawfully given, what better way could be devised to promote that object than to employ these societies, already organized and in operation, for that very purpose ? If a scheme was to be submitted by a master to carry into effect the objects intended by this will, I can think of none so good as to direct the legacies to be paid to the societies already in existence. The testator having constituted these societies, or their managers and directors the almoners of his bounty, to expend the legacies for the objects contemplated in ther association, this court can decree the money to the amount of the legacies to be paid them, either on the application of the state’s attorney, or on the application of any of the members of the societies, in behalf of themselves and their associates. If it was a perpetual fund, the annual income of which alone was to be appropriated, the court would find some way to perpetuate the fund, and apply the income. The societies in this case, are to receive and distribute the legacies, according to the intention of the testator, for the purposes of their association. They receive nothing for their own benefit or their own individual use. The individual persons, who are to be ultimately benefited, are of course undefined and unknown. The managers of the Bible Society, of the Domestic Missionary Society, the Colonization Society, and the Traci Society, are sufficiently described, according to the case of Bartlett vs. King, (12 Mass.) and the objects as fully pointed out as in the case of Attorney General vs. Stepney, (10 Vesey) or Attorney General vs. Comber. They are competent to expend this property, which is not given as a perpetual fund, but for'immediate distribution, responsible both in'conscience and law for their fidelity in executing their trust.

Having the view already expressed, of the law, of the jurisdiction of the court, and the nature of these legacies, we must of course come to the conclusion, that if there was a devise- of real estate, directly to these societies, or the annual income of the estate was devised to them, we should decree a sale, if necessary, and the proceeds paid over, or substitute a trustee to support the fee. It be-iog however a devise of money not for the purpose of a perpetual fund, I can see no objection in decreeing the money to be paid to the one who ordinarily receives and keeps the funds of these societies, or to the treasurer for the time being, whoever he may be, as was done in the case of Waller vs. Child. But inasmuch as the testator has directed that the legacies should be paid to the treasurers of the societies for the time being, whose receipts are to be a sufficient discharge, the court have considered that whoever was designated to that office or appointment, on the death of the testator, is the person or trustee to whom the legacies are to be paid, and who is capable of receiving the legacies as they become due, for the use and benefit of these societies, to be disposed of by them for the objects contemplated in their associations, agreeable to the intent of the testator, and the solicitor may draw a decree agreeable to the minutes herewith furnished.

In thfe result, I am authorized to say, that a majority of the court concur.