P. Episcopal E. Society v. Churchman's Reps.

80 Va. 718, 1885 Va. LEXIS 112

• Court: Supreme Court of Virginia
• Decided: September 25, 1885
• Status: Published

Opinion

Richardson, J.,

delivered the opinion of the court.

The object of this suit was to have a judicial construction of the will of the late Dr. Henry J. Churchman, of Staunton, in respect to certain bequests therein contained, and a settlement of the estate of the testator, who died unmarried and childless.

By the 1st, 2d and 3rd clauses of his will, after the usual provisions as to burial expenses and the payment of debts, the testator bequeathed his gold watch and chain and his library to his sister, Virginia M. Churchman. And by the 7th clause he also gave to his sister, Virginia M. Churchman, $4000, absolutely; and by the same clause he gives to his sister, Eaunie Cosbj^ G-eiger, and his brother, John S. Churchman, each one dollar.

By each of the 4th, 5th and 6th clauses of the will, a specific legacy is given to the appellant corporation; and by the 8th clause, it is made residuary legatee. The 4th clause reads; “Jour thousand dollars of my remaining estate shall go into the hands of a guardian or trustee, as may at the time be deemed best by the court, for my niece, Alice Clark Churchman, daughter of Dr. V. T. Churchman, dec’d, to be invested in some safe, permanent interest-bearing fund, so that the semi-annual or an■nual dividends arising therefrom shall go to the support and education of the said Alice Clark Churchman, until she is twenty-one years old, when this same fund, if not already in the hands of a trustee, shall then go into the hands of a trustee, to be invested as before, in some safe, permanent interest-bearing fund, that she, Alice, may receive for her sole and separate use, notwithstanding any marriage she may contract, the interest-bearing dividend that may accrue sémi-annually of. annually on the fund for her benefit as' long as she may live. In no case, however, shall the principal sum of four thousand dollars be diminished. The guardian and the trustee shall give ample security, under the direction of the court, for the amount intrusted. At the death of the said Alice Clark Churchman, whenever that may be, the principal sum of four thousand dollars, and ally unexpended interest, shall be paid to The Protestant Episcopal Education Society of Virginia, said bequest to be used exclusively for educating poor young men for the Episcopal ministry, upon the basis of evangelical principles as now established.”

By the 5th and 6th clauses, $3000 is directed to be set apart for the support and education of each of two nephews of the testator, until they are respectively twenty-one years old, or shall die, when the said sums shall go at once iuto the hands of “ The Protestant Episcopal Education Society in Virginia,” to be used under precisely the same restrictions and for the same purposes mentioned in the 4th clause, ample security being required of the trustee and guardian in each case.

The testator accurately describes the legatee corporation in the 5th and 6th causes of his will, whilst, in the 4th and 8th clauses, there is a slight misdescription, it' being in the latter, “ The Protestant Episcopal Educational Society of Virginia,” when in the former it is accurately described as “ The Protestant Episcopal Education Society in Virginia.” But this is wholly immaterial when we look to the 8th clause, where the residuum is given to the same society, “to he used under the same instructions, and for precisely the same purposes, as the preceding bequests to the same society.” And for still greater certainty the testator adds: “To more fully identify, beyond mistake, the society I mean, I state that it is the same for which Bishop 'Whittle, of Virginia, is now and has been for years collecting in his usual visitations.”

The only question to be determined by this court is, whether the bequests to this corporation are valid. The circuit court of Augusta county, by its decree, held them to be null and Amid. The decree rests upon two grounds, neither of which can be maintained upon principles applicable to the case.

The first proposition announced in the decree is, that the bequests to the corporation were not absolute “for its own use as a corporate body.” 2d. That “the same were given to said corporation in trust to be exclusively used for the purpose in the Avill named, that the-uses and trusts declared by said testator are null and void, because said trusts are religious in their character, and too vague and indefinite to be upheld under the larv of this state or to be administered by a court of chancery, even if said trusts were merely educational, as contemplated by § 2, ch. 77, Code of Virginia, 1873.” These propositions Avill be examined in the order stated. The first proposition, that the bequests to this corporation are not absolute, though it does not in terms so state, necessarily imports, and correctly too, that if absolute the gift would be valid; but assumes the further proposition that a corporation, as such, is incapable of taking and holding property by devise or bequest upon the trusts and for the uses indicated by the testator. Upon principle and authority the proposition is wholly untenable.

Formerly the law was that corporations could not be seized of lands and other property to the use of another, and could not be trustees. The reason for the rule was found to be too artificial for the substantial demands of society, and has long since been rejected as insufficient; and now the well-established doctrine is that corporations of every description may take and hold estates, as trustees, for purposes not foreign to the objects of their creation and existence; and they may be compelled by courts of equity to carry the trusts into execution. Perry on Trusts, § 42, and numerous authorities there cited.

As a proper qualification to the general rule above stated, Mr. Perry calls attention to the fact that corporations are the creatures of the law, and that as a general rule they cannot exercise powers not given to them by their charters. And he says: “For this reason they cannot act as trustees in a matter in which they have no interest, or in a matter that is inconsistent with, or repugnant to, the purposes for which they were created. Nor can they act as trustees if they are forbidden to take and hold lands, as by the statutes of mortmain, nor if they are not empowered to take the property. But if the trusts are within the general scope of the purposes of the institution of the corporation, or if they are collateral to its general purposes, but germain to them, as if the trusts relate to matters which will promote and aid the general purposes of the corporation, it may take and hold, and be compelled to execute them, if it accepts them.” Ib. § 43; and Vidal v. Girard, 2 How. 188-190, and authorities there cited.

It might well be held, in this case, that the bequests are to the corporation for corporate purposes, and that the corporation, in respect thereto, is a trustee only in the general sense that 'every corporation is a trustee of the powers ancl franchises with which it is invested for the purposes of its incorporation. In effect there is unquestionably a trust here, though not expressly declared in terms. It is immaterial whether it is so declared or not if, as here, in the nature of things a trust is created; nor is it material whether the trust is to be executed by the corporation in virtue of its corporate authority, or by it as expressly constituted trustee for the purpose, if the trust is within the scope of the purpose for which the corporation was created and for which it exists. In either case the purpose of the trust is obligatory, and its execution will be enforced if necessary. The case, then, may be treated in the light of an express trust, and, as such, falling either in the scope of the authority vested in the legatee corporation by its charter.

We must keep in view the rule, too well established to be questioned, that a devise or bequest to a corporation in trust, if otherwise valid, is not for that reason void. Tested by these principles, why may not this corporation take the bequests to it in trust, and execute the use prescribed by the testator? We know of no reason why it may not.

The law which must control this ease is found in sections 2 to 10, chapter 77, Code 1873, especially in said second section, which is in these words: “Every gift, grant, devise or bequest which, since the second day of April, in the year one thousand, eight hundred and thirty-nine, has been, or at any time hereafter shall be made for literary purposes or for the education of white persons within this state (other than for the use of a theological seminary), and every gift, grant, devise or bequest which, since the tenth of April, in the year one thousand, eight hundred and sixty-five, has been, or at any time hereafter shall be, made for literary purposes or for the education of colored persons in this state (other than for the use of a theological seminary), whether made in either case to a body corporate or unincorporated, or to a natural person, shall be as valid as if made to or for the benefit of a certain natural person,” &c.The provision in respect to colored persons was incorporated into the law, as found in the Code of 1873, by virtue of an act passed March, 1873 (see Acts ’72-3, ch. 265, p. 243).

The law on the subject found in the Code of 1873, is the embodiment of two acts — one passed on the 2d day of April, 1839 (see Acts 1839, ch. 12. p. 1); and another act passed on the 10th day of March, 1841 (Acts 1840-41, ch. 26, p. 52). At the revision of the laws in 1849, these two acts, without any material change, were revised and combined, and made to constitute chapter 80 of the Code of 1849, and now found in chapter 77 of the Code of 1873.

Such being the law in force on the 8th day of January, 1875, this society was incorporated by the name of “ The Trustees of the Protestant Episcopal Education Society in Virginia.” It is in proof that the trustees (the corporators) were two bishops, twelve clergymen and ten laymen of the Protestant Episcopal Church in the Diocese of Virginia. These were constituted, by their charter, a body politic and corporate by the name and style of “ The Protestant Episcopal Education Society in Virginia,”’with perpetual succession and a common seal; with capacity to sue and be sued, plead and be impleaded; and with power to receive, hold and purchase, to them and their successors forever, lands and tenements, money and other chattels, and dispose of and manage the same. The declared object of the society (§ 2 of charter) is “the education, or aiding in the education of such young men, as in the judgment of the said trustees or their successors, or of any executive committee duly appointed by them, shall seem best.” Not only is it a corporation made legally capable of taking and using property and money for educational purposes, but the power of selection and appointment is conferred; poor young men are to be the recipients, and they to be selected in the way pointed out in the charter. The bequests in question are in terms for the education of poor young men. So far, this certainly falls within the scope of the purpose of the corporation — the sole purpose for which it was created — education without restriction or limitation as to any particular kind. This is incontrovertibly so, unless it can be shown that a poor young man pursuing a course of theological instruction is not being educated. Surely 'no intelligent person will assert a proposition so palpably absurd.

Thus, as the corporation was created solely for educational purposes, and the donation is for the same purpose, and clearly within the corporate purpose of the society, in no way contravening any right or duty of the society, there can be no reason why it may not take and hold, as expressly constituted trustee for the purpose, the bequests of the testator, and apply them to the use specified, unless in other respects the bequests are invalid.

It is a gift to charitable uses, not in contravention of any statute, or of public policy. The sum given is certain; the corporation to take is thoroughly identified, and the use, falling within the purpose of the creation of the corporation, is distinctly defined. The right of appointment or selection still resides with the corporation. The direction by the testator as to how his gift is to he applied, in no manner interferes with or runs counter to the chartered right of the corporation to select the beneficiaries. The familiar rule is, that courts of equity treat that as certain which is capable of being rendered certain. It is obvious that there is no difficulty in the way in this respect. The corporation is not only willing, but stands here imploring a coui't of equity to protect it in its right to take, and hold to the use specified. The corporation has the legal capacity to take the bequests as given, and its right to do so must be upheld and enforced. This it is entirely competent for a court of equity to do.

2d. We come now to the second proposition announced in the decree of the circuit court, to-wit: That the bequests are given to said corporation in trust, to be exclusively used for. the purposes in the will named — that the uses and trusts declared by the testator are null and void, because said trusts are religious in their character, and too vague and indefinite to be upheld under the law of this state, or to be administered by a court of chancery, even if said trusts were merely educational, as contemplated by section 2, ch. 77, Code 1873. The consideration of this proposition necessarily involves the doctrine of Charitable Uses or Trusts.

Many definitions or attempted definitions are found in the books, only a few of which will be given here.

In Jackson v. Philips, 14 Allen, 156, it was said, “A charity, in a legal sense, may be more accurately described as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable.”

In Ould v. Washington Hospital, 95 U. S. 311, Mr. Justice Swayne said: “A charitable use, when neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing or well-being of social man.”

In Russell v. Allen, 107 U. S. 167, Mr. Justice Gray said: “ They (charities) may, and indeed must, be for the benefit of an indefinite number of persons; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity.”

In Old South Soc. v. Crocker, 119 Mass. 23, it is said: “To give it (a gift) the character of a public charity, there must appear to be some benefit to be conferred upon, or duty to be per* formed towards either the public at large or some part thereof, or any indefinite class of persons.”

In Fontain v. Ravenel, 17 How. 384, Mr. Justice McLean says: “In the hooks, it is said, the thing given becomes a charity when the uncertainty of the recipients begins. This is beautifully illustrated in the Jewish law, which required the sheaf to be left in the field for the needy and passing stranger.”

In Perry on Trusts, § 701, referring to the fact that the English statute, 43 Elizabeth, makes no reference to religious uses except the “repair of churches,” it is said: “Butin a Christian, community of whatever variety of faith and form of worship, there would be little need of a statute to declare gifts for religious uses to be charitable. Therefore, both before and since the statute, gifts for the advancement, spread and teaching of Christianity, or for the convenience and support of worship, or of the ministry, have been held charitable.”

Erom the definitions and descriptions of “charities” found in the text-books, and the illustrations furnished by decided cases, there is no reasonable ground to doubt that the bequests to this corporation, even if given for purposes not embraced by its charter, if not repugnant thereto, are in a legal sense charitable trusts. See Vidal v. Girard, 2 Howard, 127, and authorities cited.

In the first branch of the second proposition contained in the decree of the circuit court, it is declared that the bequests in this case are null and void, because religious in their character. Can this be considered a valid objection in Virginia? Cleai’ly not, unless, as would seem to be implied in the objection, it be true that religion and religious education are under the ban of government in Virginia. No decision of the court of last resort in this state has gone to the unreasonable extent of holding that a charity for religious uses is, for that reason, void. Even Gallego v. Attorney-General, 3 Leigh, 450, (presently to be examined) stops far short of deciding any such proposition. An examination of all the Virginia cases will show that whenever a charitable trust, though for religious uses, has been declared to be void, it has been, not because “religious in its character,” but because, and only because too indefinite to be executed by the courts. We have seen that in the 2d section of chapter 77, Code 1873, the only exception is “for the use of a theological seminary.” In the acts, as they stood prior to the revision of 1849, this exception was in the form of a proviso. In the revision of 1849, the acts of 1839 and 1841 were revised and combined, and together, as before stated, constituted chapter 80 of the Code of 1849, the proviso being then put in parenthesis, and with the words in parenthesis, “ other than for the use of a theological seminary,” the revisors reported the additional words, “ or purposes of religious education.” Report of Revisors, 421. These latter words the legislature deliberately struck out, and in doing so, in effect, declared that religious education should not be embraced in the exception, and should not be excluded from the general provision of the law in favor of education. See Robertson v. Clopton, Judge, etc., July number, 1881, of the Virginia Law Journal.. In that case Staples, J., said: “When the framers of that instrument [the constitution] deliberately omitted the disqualifying clause affecting the commonwealth’s attorney, without substituting others in their place, we must suppose it was intended that this disqualification should thereafter cease.” See also other authorities on the subject referred to in Burks v. Hinton, 77 Va. 35, 36 and 37. It cannot be necessary to further consider this objection. It is opposed to the letter and spirit of our constitution, which guarantees protection to every religious faith and creed. There is something in the objection itself more suggestive of the insidious workings of infidelity, than of the true spirit of Christian forbearance, love and charity enjoined upon all by our constitution.

But it is insisted in argument that the bequests of Dr. Churchman to the legatee corporation, “ to be used exclusively for edu-eating poor young men for the Episcopal ministry,” are void at common law; and it is said that this is clearly established in Virginia, upon the authority of Gallego v. Attorney-General, 3 Leigh, 450: Brooke v. Shacklett, 13 Gratt. 301; Seuburn v. Sea-burn, 15 Gratt, 423; and Baptist Association v. Hart, 4 Wheat. 1. And it is further said that there is no ground upon which this case can be brought within the principles laid down in the leading case of Ingles v. Sailor’s Snug Harbor, 3 Peters, 99, followed in Virginia by Literary Fund v. Dawson, 10 Leigh, 147; Miller’s Case, 25 Gratt.; and Stonestreet v. Doyle, 75 Va. 364; whereby-the doctrine ivas held that a charitable bequest to a corporation thereafter to be created, may be enforced as an ex-ecutory devise.

As to the cases last named, it need only be remarked, that there is in this case no occasion to discuss the doctrine in respect to executory devisees as applied in these cases, or in any other respect. That doctrine can have no application here, as in this case, when the testator’s will was made, and when he died, the legatee corporation was in existence and fully equipped with legal capacity to take, hold and use, for the identical purpose for which the testator niade the bequests.

Let us, however, recur to the proposition contended for, that the bequests in this case are invalid, upon the principles of the common law.

In entering upon this enquiry, one of grave public importance, it becomes proper to review the doctrine laid down in Gallego v. Attorney-General. This, however, will be done, not because it is essential to a proper determination of the question here involved, but because that case is confidently relied on as governing this case, and because the public interest demands that the doctrine laid down in that and certain-later cases, the same way, should be definitely settled, at least in so far as it is affected by legislation subsequent to that decision.

In Virginia, it may be truly said, in respect to the doctrine laid down in Gallego v. Attorney-General, not exactly what is uu-derstood by the maxim, “communis error fac,it jus,” but that, for a long time, that doctrine has been the only foundation in this state for the “ common error,” in respect to charitable trusts. In Brown’s Legal Maxims, at page 124, Lord Dunmore, C. L, when delivering judgment in the house of lords, in a case involving some very important legal and constitutional doctrines, is quoted as saying, “that a large portion of that legal opinion which has passed current for law, falls within the description of ‘law taken for granted;’ and that, when, in the pursuit of truth, we are obliged to investigate the grounds of the law, it is plain, and has often been proved by recent experience, that the mere statement and re-statement of a doctrine * * * cannot make it law, unless it can be traced to some competent authority, and if it he irreconcilable to some clear legal principle.”

That the doctrine in question was laid down in Virginia by competent, authority no one will deny; hut it is a doctrine that did not have its judicial birth in Virginia, hut was an error copied from the supreme court of the United States, in which court it has long since been repudiated as palpable error, though, to some extent, it has still been persisted in here.

After the supposed repeal, in 1792, of the statute of charitable uses (43 Elizabeth), the question arose whether such trusts, as a class distinct from ordinary trusts, any longer existed in Virginia, and could still be supported on the peculiar principles which had theretofore been applied to them. The question first arose in the case of the Philadelphia Baptist Association v. Harts ex’ors, 4 "Wheat. 1, and the court being divided on the question, the case was certified to the supreme court of the United States, and was by that court, in 1819, decided adversely to the trusts declared by the testator in that case.

The points distinctly decided in Baptist Association v. Hart, were: 1st. That the association not being incorporated at the testator’s decease, could not take the trust as a society. 2d. That the bequests could not be taken by the individuals who composed the society at the death of the testator; and 3d. That .there were no persons to whom this legacy, were it not a charity, could be decreed.

True, it was strongly intimated by Chief Justice Marshall, in his opinion, that charitable bequests, wdiere no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a court of equity, enforcing the prerogative of the king, as paren* patriae, independently of the statute of 43 Elizabeth. But this doctrine was denied by Chancellor "Walworth in Potter v. Chapin, 6 Paige, 649; and it has been since conclusively proved by an overwhelming array of authorities, that the court of chancery exercised jurisdiction over charities anterior to the statute of Elizabeth, and upon the common law. See Vidal v. Girard’s ex’rs, 2 How. 196 (decided in 1844), and numerous authorities there cited.

The question next came up in Virginia, in 1832, in the ease now under review, of Gallego v. Att’y-General, in the decision of which case the doctrine laid down in Baptist Association v. Hart was simply adopted and followed. Judge Carr, who seems to have delivered the opinion of the court, after a very brief statement in reference to the question of charities involved, dismissed the subject with the remark: “I certainly shall not discuss it; for I find this completely done to my hand by Chief Justice Marshall, in the case of the Baptist Association v. Hart’s ex’rs." And Judge Carr, by way of conclusion, added that the authorities cited, and the reasons given by Chief Justice Mai’shall pi’oved conclusively to his mind “that in England charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest wras intended, cannot be established by a court of equity, either exercising its ordinary jurisdiction, or enforcing the prerogative of the king as parens patrke, independently of the statute of 43 Elizabeth; and as that statute, if ever in force here, was repealed in 1792,1 conclude that charitable bequests stand ou the same footing with us as all others, and will alike be sus-, tained or rejected.”

Such was the real decision in Gallego v. Attorney-General, and such the reasons therefor. It was, as Judge Carr’s language expressly shows, but the adoption of the views expressed by Chief Justice Marshall in Baptist Association v. Hart. That the reasoning of Chief Justice Marshall on the authorities and lights before him was entitled to the highest respect no one will question; but in the light of subsequent and thorough examination, it has been established beyond controversy that the authorities relied on by that great judge and his conclusions drawn therefrom were founded in error. See Vidal v. Girard, supra, and authorities cited.

After Gallego v. Attorney-General, came the decisions by this court of Janney v. Batane, 4 Leigh, 827, and Literary Fund v. Dawson, 10 Leigh, 147, which were the same way; and to.the same effect have been numerous decisions of this court, not affected, however, by the legislation subsequent to the decision in Gallego v. Attorney-General, the last case being that of Stonstreet v. Doyle, 75 Va. 356.

Perhaps in no case ever before the supreme court of the United States was there more depth of research, learning and ability displayed than in the celebrated G-irard will case. And any impartial mind, after a careful study of the great argument of Mr. Einney in that case, sustained as it is throughout not .only by an almost measureless wealth of research, but crowned with unanswerable logic, will not only be convinced of the fallacious reasoning through which the conclusion was reached in Baptist Association v. Hart, but will be forced to recognize the deep philosophy and truth by which the error in that case was overturned and repudiated by the opinion of Judge Story in Vidal v. Girard.

It is not, and cannot be now claimed, that the law of charitable trusts was not settled upon the true principles in the last-named case, principles irreconcilable with the erroneous doctrine laid down in Gallego v. Attorney-General, and subsequent decisions by this court. Upon what, then, rests the peculiar Virginia doctrine? It is traceable only to Gallego v. Attorney-General, and through that case to the erroneous decision in Baptist Association v. Hart. It has no other foundation, and has been persisted in here solely upon faith in what ivas said in that case, and long after the repudiation of the doctrine by the court in which it originated. It is true that, since the decision in Vidal v. Girard, the supreme court of the United States has, in cases arising in this state, according to its course, followed what was supposed to be the law here. The rule of that court, in this respect, is reasonable and just, and readily understood, especially when the state policy is well founded in fixed legal principles. But when the only foundation for such course by the supreme court of the United States is its own error, long since repudiated by that court, but persisted in here, it is difficult, if not impossible, to perceive upon what principle that court should, after righting itself, still follow and recognize as law the error imparted to us by that tribunal.

We have seen that Judge Carr in Gallego v. Attorney-General, was far from being certain that the statute of Elizabeth was ever in force in Virginia; nor did he assume as a fact that it was, and was repealed in 1792. But Judge Tucker also delivered an opinion in the case, and a very elaborate one, which is usually referred to as the leading opinion in the case. lie goes much further than Judge Carr had gone, and discusses the question upon two grounds: 1st, as to the effect of the repeal of the statute -of 43 Elizabeth, assuming that it was in force here and was repealed in 1792; and, 2d, upon the ground of public policy.

On the first ground Judge Tucker says: “Whether that statute ever was in force here, has been made a question in the cause. I incline to think” (mark his words), “it may have been, at least according to the construction which was given to it” (evidently referring to the construction given in Baptist Association v. Hart), “and wliieli considered it not as merely constituting a commission for enquiring into breaches of charitable trusts, but as greatly enlarging, if not as opening an entirely new field for the exercise of benevolence. Though local in its operations in some respects, it was general in its operation in others. If it was ever in force, however, it wras repealed in the year 1792, in the general repeal of English statutes.” So far, Judge Tucker agrees with what was said by Judge Carr, except that Judge Tucker says, that while the statute of Elizabeth was local in its operations in some respects, it was general in its operation in others, but fails to point out in what respects the statute was general in its operations. In our opinion the statute was purely local. We do not believe it capable of being otherwise construed. It was not adapted to the condition of a young colony. And a significant circumstance to show that it was never in force here is, that in no one of the cases, from Baptist Association v. Hart, down to Stonestreet v. Hoyle, is there an intimation that the remedial machinery provided by that statute was ever provided for Virginia, or that a single commission was ever sued out of chancery as provided by that statute. In so long a period there would have been some case, if the statute had been general and in force here.

Judge Tucker proceeds to say: “That repeal was no rash or unadvised act. By an. act of the session of 1789, ch. 9, followed by the act of 1790, cli. 20, a commission * * * * was appointed whose duty it was, among other things, ‘ to prepare bills upon the subject of such English statutes, if any there were, which were suited to this commonwealth, and had not been enacted in the form of Virginia laws.’ The committee of rovisors proceeded to the discharge of the duty confided to it, and the result was the act of 1792, by which all English statutes then in force were declared to be repealed, the legislature reciting, that at that session it had specially enacted such of them as appeared worthy of adoption.” Obviously, all this proves nothing, except that what, was merely an inclination to the opinion that the statute may have been in force here, has, in a brief sentence or two, grown .into the conviction that it was — and was repealed— and that this repeal was no rash or unadvised act.

By this mode of reasoning, that able judge, to whose opinions, as a rule, we all yield the most cheerful respect, arrived at the conclusion, not. warranted by his premises, that the statute was in force here and was repealed, and that the repeal thereof “must he looked upon as an advised act of legislation, and in the same light as if it had been specially repealed by its title.” And he goes further and assumes, that “ if there were any recognized charities of an indefinite character at common law, the broad language of the statute of Elizabeth comprehended them,” and that in so far as it did comprehend them, it reduced only to the form of a statute what was law before the statute, and that our legislature, in repealing it, must he regarded as having repealed not its mere naked words, hut. the common law principle involved. ,

Keeping in mind, as stated by Judge Tucker, that it was a question in the case whether the statute was ever in force here, and that Judge Tucker, himself, merely ¡unlived to the opinion that it may have been, the enquiry is forced upon us, by what authority the conclusion was arrived at, not only that the statute was in force here, and was repealed in 1792, but that the common law principle involved was also repealed?

The very material question, looked at from Judge Tucker’s standpoint, can best be determined, not by the commission referred to by him, but by looking back and enquiring into the circumstances which brought about the legislation relied on as having repealed the statute in question.

In the transition from colonial dependence to the position of an independent State, it became necessary for the proper administration of justice to continue in force, for the time being, the common law and English statutes of a general nature so far as not repugnant to our new institutions. Hence, the general convention, in 1776, passed an ordinance declaring that the common law and English statutes of a general character, not so repugnant, and not merely local to the kingdom of Great Britain, should continue in force until altered by the general assembly. See ordinance, 1 Rev. Code, ch. 38, p. 135. Then, when this state of things had lasted for a number of years, came the commission of revisors referred to by Judge Tucker, and then the act of 1792. See 1 Rev. Code, ch. 40, p. 136. The act of 1792, after reciting in full said pi’ovision in the ordinance of 1776, in the third section declares “that so much of the above recited ordinance as relates to any statute or act of parliament, shall be and is hereby repealed; and that no such statute or act of parliament shall have any force or authority within this commonwealth.” Such is the entire repealing clause in the act of 1792. It is simply responsive to the ordinance of 1776. It, in the most general way, declares that English statutes of a general nature, such as had not been adopted, should thereafter be without, authority in this commonwealth. No reference to the statute of Elizabeth is made; nor is there, either in the ordinance of 1776 or in the act of 1792, even the remotest intimation that it was intended to be embraced, or was general in its nature and could be.

But there is another view, which shows that Judge Tucker was mistaken in the conclusion at which he arrived, — and this, whether the statute of Elizabeth was ever in force here or not. The act of 1792 contains a saving clause, in every respect as broad and comprehensive as the repealing clause in that act. It is the 5th section thereof, which reads: “Saving, moreover, to this commonwealth, and to all and every person and persons, bodies politic and corporate, and each and every of them, the right and benefit of all and every writ and writs, remedial and judicial, which might have been legally obtained from or sued out of any court or jurisdiction of this common-wealth, or the office of the clerk of such court or jurisdiction, before the commencement of this act, in like manner, with the like proceedings thereupon to be bad, as fully and amply, to all intents, constructions and purposes, as if this act bad never been made; anything herein contained to the contrary, or seeming to the contrary, notwithstanding.”

Now, the proceedings authorized by the statute of Elizabeth had to be commenced by a commission to be sued out of chancery. The statute itself was simply remedial and ancillary to the ordinary jurisdiction theretofore residing in chancery. See Vidal v. Girard. The commission authorized by the statute, and to be sued out of chancery, was necessarily, therefore, in the nature of a remedial writ. The high court of chancery was established in Virginia in 1777, fifteen years prior to the repealing act of 1792; and if the statute of Elizabeth was ever in force here, it was in force during all that period, and the initiatory process of commission was, for all that time, legally suable out from the high court of chancery, and, therefore, necessarily embraced in said saving clause, and the substantial benefits of the statute, if any, were thus preserved to the people of Virginia, though the statute in this view, may have been in other respects repealed. Therefore, in any view of the subject, it is manifest that the conclusion of Judge Tucker in regard to the statute of Elizabeth is necessarily a mistaken one.

But it is wholly immaterial whether the statute of Elizabeth was ever in force here or not. That statute created no new law; it only created a new and ancillary jurisdiction by commission to issue out of chancery, to enquire whether funds devoted to charitable purposes had been misapplied. Upon this subject, Mr. Perry, referring to the importance of the decision in Vidal v. Girard,, justly remarks, that “ the consequences of this final determination is important in this respect, that courts of equity, in the various states where they are not prohibited by statute, exercise an original jurisdiction in equity over charities, and apply to them the rules of equity, together with such other rules, applicable to charitable uses, as courts of equity may exercise, under the constitution and laws of the several states; and the courts do this by virtue of their inherent powers, without reference to the question whether the statute has been technically adopted in their states.” Perry on Trusts.

This presents the case in Virginia precisely. There is not, nor was there ever in this State, any statute forbidding courts of equity to exercise jurisdiction over charitable trusts; it belonging inherently to courts of equity to exercise jurisdiction in all matters of trast and confidence.

In the next place, was there in Virginia, in 1832, when Gallego v. Attorney-General was decided, a pronounced public policy hostile to charitable trusts? Such is the real question. We have nothing to do with the disposition of the church to acquire large wealth and to encroach upon the civil affairs of government, nor with the rapacity of the clergy in the early periods of the church, so eloquently portrayed by Judge Tucker, and, as we feel constrained to say, outside of and beyond the case he was considering.

In his opinion, (3 Leigh, 478) Judge Tucker says: “No man at all acquainted with the course of legislation in Virginia can doubt for' a moment the decided hostility of the legislative power to religious incorporations.” No one will deny the truth of Judge Tucker’s remark, as applied especially to the early days of the commonwealth, and to acts such as that of 1784, incorporating the Episcopal church, or to acts creating religious establishments in the sense of that term as used in the bill of rights: that is establishing a religion by law, and supported by the state. But no such question was involved in the case Judge Tucker had under consideration, nor was there any question touching the policy of the state in respect to corporations of any character, whether religious or not. The question was in respect to a devise and bequest by Mr. Gallego to the Catholic congregation in the city of Richmond.

Judge Tucker further said: “Jealousy of the possible interference of religious establishments in matters of government, if they were permitted to accumulate large possessions, as the church has been prone to do elsewhere, is doubtless at the bottom of this feeling” of hostility. “Hence,” he says, “the provision in the bill of rights; hence .the solemn protest of the act on the subject of religious freedom; hence the repeal of the act incorporating the Episcopal church, and of that other act which invested the trustees appointed by religious societies with power to manage their property; hence too, in part, the law for the sale of the glebe lands; hence the tenacity with which applications for permission to take property in a corporate character (even for the necessary grounds for churches and grave-yards) have been refused.”

It will be observed at a glance that Judge Tucker’s language and every act of legislation referred to in support of his position, is aimed at religious corporations — religious establishments, and is not applicable to the question of charities, the only question involved in the case he was considering, or in the branch of the case he was considering; nor is there, in any of the legislation referred to by him, even an intimation of hostility to charity or to charitable uses.

As to the act repealing the act incorporating the Episcopal church, and the act authorizing the sale of the glebe lands, they were but acts deemed essential to the completion of the work of the revolution. Like the other acts referred to, there is not in either of them an intimation even of hostility to charitable bequests for religious or other uses. Any such sentiment was directly opposed to the personal freedom and freedom of conscience which those very acts were intended to assert, uphold and perpetuate.

One of the grand results of the revolution was the divorce of church and state. Our people were justly jealous of a religion established by law. They, or those of them who were dissenters, had for over one hundred years paid unwilling tribute to a church establishment. They regarded the act incorporating the Episcopal church, and other acts of a kindred nature, as having a dangerous tendency towards the re-establishment of that churchin Virginia. Por that reason, and only for that reason, they were denounced as “ sinful and tyrannical,” and were repealed.

■As to the “solemn protest” in the act for the establishment of religious freedom, it was not against charity or the right of courts of equity to admiuister charitable trusts, but was against the “ impious presumption of legislators and rulers, civil as well as ecclesiastical, • who, though but fallible men, assumed dominion over the faith of others, and compelled them to contribute money for the propagation of opinions they did not believe.”

It is well to remember, too, that the act for religious freedom holds this language: “ That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill-tendency, is a dangerous fallacy, which at once destroys all religious liberty, *****; that it is time enough for the rightful purposes of civil government, for its officers to interfere, when principles break out into overt acts against peace and good order.”

For these reasons, after a careful survey of the subject, we feel constrained to hold that the doctrine laid down by Judge Tucker, in Gallego v. Attorney-General, cannot he upheld upon either principle or authority. In fact, we feel assured that our present pronounced liberal policy was largely induced by certain expressions in that ease. So much as to Gallego v. Attorney-General.

But whatever may have been the real, or the supposed legislative policy of this State when Gallego v. Attorney- General was decided, the legislature has since, in clear and unmistakable terms, marked out, as applicable to cases like the one now under consideration, a policy distinctly opposed to the doctrine laid down in that case, as commonly understood and contended for. The policy thus set on foot, and now the controlling law of the subject, is clearly indicated in sections 2 to 10 of chap. 77 of tlie Code of 1873. The said second section is broad and comprehensive in its terms. It makes valid every transfer of property, real and personal (other than for the use of a theological seminary), which has been made since the 2d day of April, 1839, or which shall hereafter be made, by gift, grant, devise or bequest, for literary purposes, or for the education of persons within this State; and it is declared that the conveyance, whether made “to a body corporate or tin incorporated, or to a natural person, shall be as valid as if made to or for the benefit of a certain natural person.”

Thus a very wide field was opened for the safe and unrestrained exercise of benevolence and charity. If the legislature had in terms specified gifts, grants, devises and bequests for charitable uses, its obvious purpose to encourage and uphold charitable donations, for literary and educational purposes, would scarcely have been made plainer. And thus it is, that the law in its comprehensive benignity, without regard to color, without regard to sex, age, rank or condition in life, makes this humane provision in aid of education — education without qualification or restriction. The legislative design doubtless was, and the effect is, to remove, to the extent named, the perplexing doubts and difficulties, in respect to charities, which had grown out of the decision in Gallego v. Attorney-General, and to leave with courts of equity, in the exercise of their ordinary powers, the duty of enforcing such donations where it can possibly be done consistently with established rules, or of rejecting them, as invalid, if plainly in contravention of any statute or rule of public policy, or so vague and indefinite that, for that reason, they cannot possibly be enforced.

So much for said second section. The legislative design, as above indicated, is made yet plainer, if possible, by succeeding sections in the same chapter. In the third section, speaking in reference to the provisions of the second section, it is declared that the gift, grant, devise or bequest, in either case, shall be taken and held for the uses prescribed by the donor, grantor or testator. Here we have the unqualified statutory recognition of the doctrine laid down in Vidal v. Girard, and other authorities referred to, that corporations may take and hold as trustees, and for the uses provided by the donor or testator, especially if the gift and the use prescribed be not repugnant to the purpose for which the corporation was created and exists.

The fourth section provides that the attorney for the commonwealth, in the circuit court of any county or corporation, in which any will, by which such bequests are made, could be offered for probate, shall, in the name of the commonwealth, institute all necessary proceedings to have such will admitted to record. In this we have the evidence of the friendly solicitude of the legislature in providing the necessary appliances for upholding and carrying into effect every charity so described as to be capable of enforcement.

Py the 5th section it is provided, that when any such gift, grant or will is recorded, and no trustee has been appointed, or the trustee dies or refuses to act, the circuit court of the county or corporation in which the trust subject or any part thereof may be, may, on motion of the attorney for the commonwealth (whose duty it shall be to make such motion), appoint one or more trustees to carry the same into execution. And it is provided that the trustees, whether appointed by such instrument or by the court, may sue and be sued in the same manner as if they were trustees for the benefit of a certain natural person. And for enforcing the execution of such trust it is provided, that a suit may be maintained in the name of the commonwealth, when there is no other party capable of prosecuting such suit. By this section we have, first, the legislative recognition of the familiar doctrine that courts of equity will not permit a trust to fail for want of a trustee; and second, the fact that the legislature had necessarily and prominently in view the subjects of charitable trusts, and foreseeing that, as indefiniteness as to the recipients is an essential element of a legal charity, there would not be, in many cases, any one capable of suing until the recipients’were selected, made it the duty of the commonwealth’s attorney to institute necessary proceedings, in the name of the commonwealth, for enforcing the execution of the trust. Thus we have in the statute itself a complete answer to the objection, made in argument, that there is, in this case, no one who can come into equity for the enforcement of the trusts. . The legislature wisely foresaw the trouble that might arise, and with jealous care provided against it; and by the 6th section provided that the attorney for the commonwealth should be paid for his services out of the trust subject.

Passing over the 7th, 8th and 9th sections, which have no direct bearing on the subject, we come to the 10th section, which reads: “In case any devise or bequest, authorized by the 2nd section of this chapter, shall hereafter be made, the legislature, as to any such, reserves the right at any time to suspend or repeal the authority thereby given. But if in any case it shall do so, it will provide that the subject of such devise or bequest shall vest or be vested in such person, his heirs, executors or administrators, as would have been entitled had the devise ór bequest not have been made.” Thus, fully rounded, we have the legislative policy of this state upon the subject of charitable bequests for literary and educational purposes. It is important to keep prominently in view the fact that the prime object of the legislature was to give authoritative expression to the validity of charitable trusts. Hence, in Roy’s ex’ors v. Rowzie, 25 Gratt. 599, Moncure, P., commenting on the acts of 1889 and 1841, as now embodied in the Code of 1873, says, “the only purpose was, and only effect is, to make valid a certain class of indefinite charities.” Further on in the same ease, the same judge says, “the purpose of the acts of 1839 and 1841 was to make valid a certain class of donations which had never been valid before.” For reasons already stated we do not assent to the view that the legislation referred to was actually necessary to make valid donations to charity which were not valid before.. But, being of opinion that sucli donations were valid at common law, and that the common-law principle involved has not been repealed in Virginia, we regard the acts in question, so far as they go, as simply declaratory of the common-law principle which had been denied in Gallego v. Attorney-General, but subject to the limitations and restrictions impósed by statute. But the view expressed by Judge Moncure is, nevertheless, the authoritative declaration of this court that the object- of the legislature was to encourage and uphold donations for charitable purposes. In doing this the legislature has effectually repudiated and overturned the doctrine laid down in Gallego v. Attorney-General, especially in the opinion of Judge Tucker. The conclusion reached in that case by Judge Carr was, that in Virginia charitable trusts stand on the same footing with ordinary trusts, and must alike be enforced or rejected; that is, if definite they will be enforced; otherwise, not. It cannot be supposed that Judge Carr was unmindful of the fact that a charitable trust is, as to the recipients, necessarily indefinite. So when he speaks of indefinite charities as being incapable of execution by courts of equity, he ought to be understood as speaking with reference to charities indefinite upon the principles of the common law, so vague and uncertain that the courts cannot discover the real intention of the donor, and, therefore, cannot execute them. "We think Judge Carr’s language fairly open to such a construction, and in this view there can be no reasonable objection to the substantial effect of his conclusion; for obviously a charitable trust, though necessarily indefinite as to the recipients until they are duly selected, is not for that reason invalid, and, if in other respects certain, is valid, and will be upheld and enforced upon precisely the same principles applicable to the most ordinary trusts.

In view of the plain statutory provisions before referred to, how can it be reasonably contended that the bequests to the appellant corporation are not valid ? Wo have seen that they cannot be treated as void, because, as assumed in the decree, they are not to the corporation absolutely, but upon the trust and for the use prescribed by the testator. We have also seen that they are not invalid because religious in their character. And upon this point it may be added, that with the acts of 1839 and 1841, in full force, the legislature, on the 28th day of February, 1854 (see Acts 1853-4, p. 65), passed an act incorporating ‘‘The Protestant Episcopal Theological Seminary and High School, at Alexandria, Va.” Afterwards, on the 23rd day of January, 1872, this act was amended. (See Acts 1871-2, p. 23.) On the 8th day of January, 1875 (Acts 1874-5, p. 16), the legislature chartered the appellant corporation by the name of “ The Trustees of the Protestant Episcopal Education Society in Virginia.” The corporate name of this society, as well as the titles of all these acts, all powerfully attest the fact that the object of each was to provide for education, and for theological education, in the interest and according to the uses of the Protestant Episcopal Church in Virginia. Can it be doubted that the legislature knew what it was doing? Can it be supposed for a moment, that in deliberately chartering a society of this character, the legislature was ignorant of the fact that the object of the'graut was the education of young men for the ministry in that church? Or that the legislature or the courts would or could treat such education, the very object of the society, as in violation of its chartered right? Surely not.

Under the same general law, we have in Prince Edward county, an incorporated theological seminary. Does any one suppose that in that case the charter was asked for or was granted with any other view than the education and training of men as ministers, according to the peculiar theological system of the Presbyterian church ? And whether taught theology at the one school or the other, how can it be said, in either case, that the public policy has been violated ?

What is the public policy as to any given subject can only be determined by the current legislation on that subject. Hence, in Roy’s ex’ors v. Rowzie & als., 25 Gratt. 611, Moncure, P., delivering the opinion of the court, said: “Nor is there anything in the policy of our law, as has been argued, which can make such a bequest unlawful. The policy of our law on the subject extends no further than the law itself has extended. The law has extended only to this, that in giving effect to indefinite charities for literary purposes it has made an exception of a theological seminary, and that is the only extent of the policy of the law.” And Judge Moucure adds: “ The law has left unaffected the right to make a bequest for a certain and definite object, though it be a theological seminary.”

In this case we have no concern with the statutory exception as to a theological seminary, as the bequests here are not to make a seminary. Now, it has been settled by this court, in Ron’s ex’ors v. Rowzie als., 25 Gratt. 599, that a devise or bequest to an incorporated theological seminary, whether located within or out of this state, is not void as against either public policy or any statute, and this notwithstanding the broad language of the exception contained in the statute. Now, suppose the bequests in this ease had been to the theological seminary at Alexandria, whose business it is to educate ministers according to the Protestant Episcopal creed, would any one doubt its validity? We think not. But suppose the bequests had been made to that institution “to be used exclusively ■ for educating poor young men for the Episcopal ministry, upon the basis of evangelical principles, as now established,” and the authorities of the seminary had been asked, “can you take and hold for the use prescribed?” The unhesitating answer would have been, yes; for that is exactly what it is our chartered right to do, what we have been doing, and .will to the end continue to do, to the exclusion of all other work. The law makes the same answer in this case. The appellant corporation is chartered for the express purpose of educating young men for that ministry; it has been and is still engaged in that work, and rightfully so. So far from this being in contravention of public policy, it has the express sanction of law.

In any view, and according to the plain letter of the law, the bequests in this case are in every respect as definitely and clearly stated as it is possible to describe a charity for such a use. This being so, it necessarily follows that the second proposition announced in the decree, that these bequests are null and void because too vague and indefinite to be upheld under the law of this State, or to be administered by a court of equity, is palpably erroneous and must be rejected.

In arriving at our conclusion, we have not been unmindful of the great public* importance of the question we have been dealing with. At the same time we have kept in view the fact that it is the natural right of every man, recognized in every country where an enlightened system of jurisprudence prevails, a light guaranteed by our constitution and laws, to acquire, use and enjoy property, with the right to dispose thereof according to his own will and pleasure, and this without any limitation except that a man shall not use his own to the detriment of others. Keeping in view at the same time our duty to give effect to the will of the testator if possible, and seeing clearly that under the law we can do so, we have the consoling reflection, that in performing that duty, effect is given to a noble act of Christian benevolence and charity.

Being of opinion that the bequests in this case are valid, and that the decree of the circuit court in respect thereto is erroneous, the same must be reversed, with costs to the appellant, and the cause remanded to the circuit court of Augusta county for further proceedings to be had therein, in conformity with this opinion.

Lewis, P., and HixtoN, J., dissented.

DECREE REVERSED.