Trustees of the Philadelphia Baptist Association v. Hart's Executors/Opinion of the Court

IN the year 1790, Silas Hart, a citizen and resident of Virginia, made his last will in writing, which contains the following bequest: 'Item, what shall remain of my military certificates, at the time of my decease, both principal and interest, I give and bequeath to the Baptist Association that, for ordinary, meets at Philadelphia, annually, which I allow to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the descendants of my father's family.'

In 1792, the legislature of Virginia passed an act, repealing all English statutes, including that of the 43 Eliz., c. 4. In the year 1795, the testator died. The Baptist Association which met annually at Philadelphia, had existed as a regularly organized body, for many years before the date of this will, and was composed of the clergy of several Baptist churches, of different states, and of an annual deputation of laymen from the same churches.

It was not incorporated, until the year 1797, when it received a charter from the legislature of Pennsylvania, incorporating it by the name of 'The Trustees of the Philadelphia Baptist Association.' The executors having refused to pay the legacy, this suit was instituted in the circuit court for the district of Virginia, by the corporation, and by those individuals who were members of the association at the death of the testator. On the trial of the cause, the judges of that court were divided in opinion, on the question, whether the plaintiffs were capable of taking under this well? Which point was, therefore, certified to this court.

The Attorney-General, for the plaintiffs, argued, that the peculiar law of charitable bequests did not originate in the statute of the 43 Eliz., which was repealed in Virginia, before the death of the testator. If lands had been conveyed in trust, previous to the statute, for such purposes as are expressed in this will, the devise would have been held good at law; and consequently, the court of chancery would have enforced the trust, in virtue of its general equity powers, independent of that statute. The statute does not profess to give any validity to devises or legacies of any description, not before valid; but only furnishes a new and more convenient mode for discovering and enforcing them; but the case before the court is such as requires the interposition only of the ordinary powers of a court of equity. Devises equally vague and indefinite, have been sustained in courts of common law, before the statute of Elizabeth, and would, a fortiori, have been supported in courts of equity. Porter's Case, 1 Co. 22 b; Plowd. 522. And the court of chancery, exercising the prerogative of the king as parens patrioe, has been constantly in the habit of establishing charitable bequests of this nature. 'In like manner,' says Lord Chancellor MACCLESFIELD, 'in the case of charity, the king, pro bono publico, has an original right to superintend the case thereof, so that, abstracted from the statute of Eliz., relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice, to file informations in chancery, in the attorney-general's name, for the establishment of charities.' Eyre v. Countess of Shaftsbury, 2 P. Wms. 119. So also, Lord Keeper HENLEY says, 'and I take the uniform rule of this court, before, at, and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses. Thus, though devises to corporations were void under the statute Hen. VIII., yet they were always considered as good in equity, if given to charitable uses.' Case of Christ's College, Cambridge, 1 W. Black. 91. The powers of the court of chancery over these subjects, are derived from, and exercised according to the civil law. 3 Bl. Com. 476; White v. White, 1 Bro. C. C. 15; Moggridge v. Thackwell, 7 Ves. 36. Lord THURLOW says, 'the cases have proceeded upon notions adopted from the Roman and civil law, which are very favorable to charities, that legacies given to public uses, not ascertained, shall be applied to some proper object.'

White v. White, 1 Bro. C. C. 15. By that law, bequests for charitable purposes, ad pios usos, are not void for uncertainty. Swinb. pt. 1, § 16; pt. 7, § 8. But even supposing all the powers of the English court of chancery over charities to have been originally derived from the statute of Elizabeth, still it does not follow, that the courts of the United States have not all the powers which the English courts of equity possessed, when this country was separated from the British empire. The chancery system originated in various sources; in the peculiar jurisprudence of the court, which may be denominated its common law; in statutes; and in the authority of the chancellor, as keeper of the king's conscience. It is difficult to find any chancery decisions wholly purified from the influence of statutory provisions. The grant of equity powers in the constitution, to the national judiciary, extends 'to all cases in equity.' It is not limited to those cases which arise under the ordinary jurisdiction of the court of chancery. This is not a question of local law, nor can the equity jurisdiction of the United States courts depend upon the enactment or repeal of local statutes. This court has already determined, that the remedies in the court of the United States, in equity, are to be, not according to the practice of state courts, but according to the principles of equity as known and practised in that country from which we derive a knowledge of those principles. Robinson v. Campbell, 3 Wheat. 212. In England, this bequest would, unquestionably, be sustained. The association, which was the object of the testator's bounty, though unincorporated at the time, was certainly as definite a body as the 'sixty pious ejected ministers,' in one case (Attorney-General v. Baxter, 1 Vern. 248; Attorney-General v. Hughes, 2 Ibid. 105), or, 'the charitable collections for poor dissenting ministers living in any county in England,' in another. Waller v. Childs, Amb. 524. Nor was it necessary that they should be incorporated, in order to take. A devise by an impropriator, directly 'to one who served the cure, and all who should serve it after him,' &c., has been carried into effect. Anon., 2 Vent. 349. So, if the devise be to a charitable use, though the object be not in esse, and though it depend on the will of the crown, whether it shall ever be called into existence, equity will establish it. Lady Downing's case, Ambl. 592; Aylet v. Dodd, 2 Atk. 238; Attorney-General v. Oglander, 3 Bro. C. C. 166; Attorney-General v. Bowyer, 3 Ves. jr. 725.

Leigh, contra, contended, that the association could not take the bequest, either in their individual or in their collective capacity. Not as individuals; because the persons composing the association were continually fluctuating, and were not designated, nor indeed known, at the time of the bequest. No personal benefit was intended to them. The testator's intent was, to constitute the association, in its collective capacity, trustee of the fund, for this charitable purpose; and whether the trust can be carried into effect or not, they cannot take individually to their own use. Morice v. Bishop of Durham, 9 Ves. 399; s. c. 10 Ibid. 522. Nor can they so take in their collective capacity, because not incorporated at the time: and the subsequent incorporation does not help their case. 8 Vin. Abr. tit. Devise H. pl. 1; Widmore v. Woodroffe, Ambl. 636. Therefore, this is to be regarded as a bequest to charitable uses, without the intervention of trustees to take the legal estate and fulfil the uses. According to the law of Virginia, which must govern in this case, such a trust cannot be carried into effect by any court in any mode. Had such a case occurred in England it is admitted, that the court of chancery would carry the trust into effect, by supplying legal and capable trustees, to take and hold the fund for the objects of the testator's charity; or, if those objects were not designated in the testator's will with sufficient certainty, would execute it, upon the doctrine of cy pres, for objects ejusdem generis, according to a scheme digested by the master. But the court of chancery in England exercises such powers solely in virtue of the statute of the 43 Eliz.

All ancient precedents of the exercise of such powers, to effect such charitable uses, are expressly stated to be founded on that statute. Attorney-General v. Rye, 2 Vern. 453; Rivett's case, Moor 890; Pigot v. Penrice, 2 Eq. Cas. Abr. 191, pl. 6; Attorney-General v. Hickman, Ibid. 193, pl. 14. As all the early decisions are founded on the statute, so the more modern cases are founded on the authority of the ancient; with this only extension of their principle, that although the statute merely provides that charitable donations shall be applied to such of the charitable uses therein expressed, for which they were appointed by the donors or founders, the court of chancery has gone a step farther, and held, upon the equity of the statute, that where objects of charity are in any way pointed out, however vaguely and indefinitely, the court will apply the fund to charitable uses of the same kind with those intended by the donor, according to a scheme digested by the master. Baylis v. Attorney-General, 2 Atk. 239; White v. White, 1 Bro. C. C. 12; Moggridge v. Thackwell, 3 Ibid. 517, S.C.. 1 Ves. jr. 464; s. c. 7 Ibid. 36. All the elementary writers and compilers concur in deducing the jurisdiction of the English court of chancery over charitable bequests from the statute of Eliz.; tracing all the powers of the court, as a court of equity, over this subject, to that source; its liberality and favor toward charitable donations; its practice of supplying all the defects of conveyances to charitable uses; of substituting trustees where those named by the donor fail, before the vesting of the legal estate; and of taking on itself the execution of the trust, where incapable, or no trustees are appointed by the donors. 2 Bl. Com. 376; 2 Fonbl. Eq. 213; Roberts on Wills 213, 214; 1 Bac. Abr., tit. Ch. Uses; 5 Vin. Abr. same tit.; 1 Burn's Eccles. Law, same tit. Indeed, no donation is considered in England as a donation to charitable uses, unless for such uses as are enumerated in he statute of Eliz., or such as are analogous. Attorney-General v. Hewer, 2 Vern. 387; Brown v. Yeale, 7 Ves. 50, note c; Morice v. Bishop of Durham, 9 Ibid. 399; s. c. 10 Ibid. 540. The very signification of the words charity and charitable use are derived from that statute. In the case last cited, Sir W. GRANT said, 'In this court, the signification of charity is derived prircipally from the statute of Elizabeth. Those purposes are considered charitable which that statute enumerates, or which, by analogies, are deemed within its spirit and intendment.' Morice v. Bishop of Durham, 9 Ves. 399. Lord ELDON, in rehearing the same case, confirms the doctrine. 'I say, with the master of the rolls, a case has not yet been decided, in which the court has executed a charitable purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the property to purposes of charity in general.' S.C.. 10 Ves. 540. In a previous case, Lord LOUGHBOROUGH had said, 'It does not appear that the court, before that period (the 43 Eliz.), had cognisance of informations for the establishment of charities. Prior to the time of Lord ELLESMERE, so far as tradition in times immediately following goes, there were no such informations, but they made out the case as well as they could at law.' Attorney-General v. Bowyer, 3 Ves. 726.

The repeal of the English statute of charitable uses by the legislature of Virginia, must be considered as almost, if not entirely, repealing that whole head of equity. The effect of this repeal may be estimated, by recurring to the history of the system of equitable jurisprudence. Every part of that system has been built up since the 43d year of Elizabeth, and there is not a single chancery case, touching charitable bequests, prior to the statute of that year. The court is then driven to ascertain, either the common-law method of effecting charitable uses, or the jurisdiction of the English chancery, independent of the statute. Lord LOUGHBOROUGH says, that it had no jurisdiction whatever of the matter, before the statute, and that they made out the case as well as they could at law; and he instances certain cases. Porter's Case, 1 Co. 23; Sutton Hospital Case, 10 Ibid. 1. The jurisdiction of the court of chancery, in England, abstracted from, and independent of, the statute of the 43 Eliz., may be inferred from the course of the court, in cases where the donors of charities, failing to point out any object of charity, or designating improper, impolitic or illegal objects, the statute gives the court no authority to direct the charity to any definite purpose. In all such cases, the disposition of the funds belongs to the king, as parens patrioe, and is made by him under his sign manual. In Moggridge v. Thackwell, 7 Ves. 36, Lord ELDON, after reviewing all the cases (acknowledging that they conflicted with each other, and that his own mind was perplexed with doubts), came to this general conclusion, which he deemed the most reconciable to authorities; that when the execution of the trust for a charity is to be by a trustee, with general, or some, objects pointed out, there the court will take upon itself the execution of the trust: but where there is a general indefinite purpose, not fixing itself on any object, the disposition is to be made by the king's sign manual. A due attention to the cases there collected by Lord ELDON, will show that the first class of cases are those over which the statute of the 43 Eliz. gives the court a jurisdiction, and which it will consequently exercise; and that the second class consists of those which belong to its jurisdiction, abstracted and independent of the statute, and in which the disposition belongs to the king. Attorney-General v. Syderfen, 1 Vern. 224; Frier v. Peacock, there cited; Attorney-General v. Herrick, Ambl. 712. So, if the donation be to a charitable use, but one which is deemed unlawful or impolitic, the disposition belongs to the king. Attorney-General v. Baxter, 1 Vern. 248; De Costa v. De Pas, Ambl. 228; Cary v. Abbott, 7 Ves. 490. And were it not for the statute, all charitable donations, whatever, would be subject to the disposition of the king, as parens patrioe.

It is true, there are some dicta, which, at first sight, seem to support a different doctrine. Such is that of Lord Keeper HENLEY, in the case of Christ's College, 1 W. Black. 91. But this dictum is directly contradicted by Lord LOUGHBOROUGH, in the Attorney-General v. Bowyer, 3 Ves. 726. Lord Keeper HENLEY cites no authority for this dictum; but Lord Chief Justice WILMOT having, in the case of Downing College (Wilm. Notes 1), said something of the same kind, cites the authority which, doubtless, Lord Keeper HENLEY had in his mind, which is what fell from Lord MACCLESFIELD, in Eyre v. The Countess of Shaftsbury. 'And in like manner, in case of charity, the king, pro bono publico, has an original right to superintend the care thereof; so that, abstracted from the statute of Elizabeth relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file an information in chancery, in the name of the attorney general for the establishment of charities.' 2 P. Wms. 118-19. Whence it appears, that the information which might be filed in the attorney-general's name, for the establishment of charities, abstracted from, and independent of, the statute, related to such as depended on the disposition of the king as parens patrioe. This explanation is corroborated by what is said by Lord SOMERS, in the case of Lord Falkland v. Bertie, 2 Vern. 342. Lord THURLOW'S dictum, in White v. White (1 Bro. C. C. 15), that 'the cases had proceeded on notions derived from the Roman and civil law,' cannot be construed to extend to the entire adoption of the civil law on charities. By the civil law, if a man make a will containing a charitable bequest, and afterwards cancel the will, the bequest to charity is not thereby revoked. It is otherwise by the law of England. So, in case of a deficiency of assets, the civil law gave a preference to charitable legacies; but in the English court of chancery, they abate in proportion. Attorney-General v. Hudson, 1 Coxe's P. Wms. 675, and note.

The conclusion, then, is, that in every case of charity, wherein the English court of chancery has not jurisdiction to durect the application of the charity, either by the words or the equity of the statute 43 Eliz., the disposition belongs to the king, as parens patrioe, and the court of chancery is only resorted to, in order to enforce his disposition. That statute being repealed in Virginia, and no similar one enacted in that state, the disposition of all charitable donations is in the parens patrioe of Virginia. The courts of the United States cannot direct this charity, or carry it into effect. It is the government of Virginia which is the parens patrioe of that state. At the revolution, all the rights of the crown devolved on the commonwealth; and still remain in the commonwealth, except such as are delegated to the United States by the national constitution. But none of the rights that appeartain to the state government, as parens patrioe, are delegated to the United States. Can this, or any other court of the United States, pretend to the care or guardianship of infants, lunatics and idiots? If not, neither can they undertake the direction of a charity, which stands on the same footing as belonging to that government which is parens patrioe. Even, therefore, if it were admitted, that the court of chancery of Virginia could carry this bequest to charitable uses into effect, the courts of the United States cannot.

Another objection to the jurisdiction of those courts is, that the attorney-general (that is, of Virginia) representing the parens patrioe, must be made a party. Mitf. Plead. 7, 93; Cooper's Plead. 219; Anon., 3 Atk. 277; 2 Ibid. 87; Monell v. Lawson, 1 Eq. Cas. Abr. 167; Attorney-General v. Hewett, 9 Ves. 432. But to make the attorney-general of Virginia, that is, the state of Virginia, a party defendant, would be contrary to the constitution of the United States. There is a further, and an insurmountable objection to the jurisdiction of the United States courts in cases of charity, where there is no trustee appointed, or (which is the same thing) unascertainable and incapable trustees are appointed. If not the whole jurisdiction of the English court of chancery, at least so much of it as is abstracted from, and independent of, the statute 43 Eliz., belongs neither to its ordinary nor extraordinary jurisdiction, but to the Lord Chancellor personally, as delegate to the king. But by the constitution and laws of the United States, the only branch of the English chancery jurisdiction which is vested in the courts of the United States, is the ordinary or equity jurisdiction of the court of chancery in England.

Finally, it is impossible to give effect to this charity in any mode. Not only are the trustees uncertain and unascertainable, but the objects of the charity are also uncertain, and not ascertainable by this court. The very idea of the court attempting to execute the trust, cy pres, and referring it to the master to digest a scheme for that purpose, is absurd and impracticable.

The Attorney-General, in reply, insisted, that if it were necessary to show the capacity of the plaintiffs as trustees, it could be done. Id certum est quod certum reddi potest: and the court might direct the money to be paid to those who constituted the association at the time of the bequest. But this association was incorporated shortly after the death of the testator; and it is sufficient to support the charity, that its objects may be in esse. The first of the two cases, cited to show that the devise must take effect at the time, or not at all, was a devise of lands to the priests of a chantry or college in the church of A.; and there were none such, neither chantry, college nor priests. 8 Vin. Abr. tit. Devise, H. But suppose there had been, as in the case now before the court, would their want of a corporate character have defeated the devise? But this case is entirely inapplicable. The objects designated did not exist, even under the description which the testator used. Nor did they exist, at the time of the decision, so as to present the question as to the efficacy of the devise in that respect; and all that the court said upon this subject, must be regarded as extrajudicial. The whole question was on a devise of lands, on the rigid rules of the common law. The case of Widmore v. Woodroffe, Ambl. 636, was a bequest of money to the corporation of Queen Anne's Bounty to augment poor vicarages, which was held to be void by the statute of mortmain, as the corporation were bound by their rules to lay out their donations in lands. It does not touch the question, whether a devise of a charity must take effect at the death of the testator, or not at all. But if the court should think, that the Baptist Association were incapable of taking, as trustees, at the death of the testator, and that there must be some person then in esse, to hold the legal estate, the executors will be considered, by a court of equity, as trustees, whether so named or not. 1 Bridg. Index 761. So also, the court will regard the heir as a trustee for the same purpose. 2 Ibid. 607. The case of the Attorney-General v. Bowyer, was decided on this very principle. The law had thrown the legal title on the heir, but he was held responsible for the intermediate profits, in the imputed character of a trustee. 3 Ves. 726.

The position, that the English court of chancery derives the jurisdiction now in question from the statute of Eliz., is denied. The title of the act is, 'Commissioners authorized to inquire of misemployment of lands or goods, given to hospitals, &c., which, by their orders, shall be reformed.' The preamble recites, that whereas, lands, &c., had been theretofore given, limited, appointed and assigned, to various objects which are specified, which lands, & c., had not been employed 'according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same.' It is clear, from this preamble, that no new validity was intended to be given to these donations. Their previous validity is admitted; and the mischief was, that they had been defeated by the frauds, breaches of trust, and negligence of those who should have paid them. Frauds and breaches of trust were, at this time, known heads of the equitable jurisdiction of the court of chancery; but the statute proceeds to provide a new remedy for the mischief announced in the preamble. This is the appointment of commissioners, with powers to institute an inquisition to detect the frauds which had been practised; authorizing the commissioners, conformable to the title of the act, to make orders to carry the intention of the donor into effect; and allowing the party injured by such orders, to complain to the chancellor for an alteration or reversal of such orders. Even supposing the statute did profess to confer on the court of chancery a new jurisdiction, it is merely an appellate jurisdiction from the decrees of the commissioners; and this appeal is given to one party only, he who is charged with the fraud. So that, it is neither an original jurisdiction, nor is it a jurisdiction to enforce a charitable trust. The eighth and ninth sections of the act direct the commissioners to certify their decrees into the high court of chancery of England, and the chancery of the Palatinate of Lancaster, and direct the chancellors to take such order for the due execution of the decrees (of the commissioners) as to them shall seem fit and convenient. This is not a power to make a decree, but to execute the decrees made by the commissioners. The 10th section reiterates the appellate power of the chancellor, recognised by the 1st section. The only principles the 10th section prescribes for the regulation of the chancellor on these appeals, are so far from being new to the court, that they have existed ever since its equitable jurisdiction commenced.

If, then, the jurisdiction of the court of chancery over charitable bequests cannot be derived from the letter of the statute of Eliz., can it be supported from ancient adjudged cases, interpretative of that statute? Even if it could, this would be but a frail support; because the court of chancery was then in the infancy of its existence, and grasping at everything to enlarge that jurisdiction, which time and usage have since consecrated; and because, if its jurisdiction to enforce a charity by original bill, is to depend upon the statute, it has been shown from the statute itself, that it cannot be sustained. But the adjudged cases do not support the position, that the jurisdiction of the court over charities is derived from the statute. It is necessary, however, to distinguish between the two questions, whether a particular charity is within the statute? and whether the original jurisdiction of the court of chancery is derived from the statute? The first question properly arises, where the commissioners have acted, and the court is reviewing their decree in its appellate character. As the commissioners derive their whole authority from the statute, and are, therefore, confined to the cases enumerated in it, the first question, upon the threshold of the appeal, is, whether the case on which they have acted, be within the statute. Of this description are the cases cited on the other side, as being the ancient cases upon the authority of which the modern cases have been decided. The cases of the Attorney-General v. Rye, 2 Vern. 453, and Rivett's Case, Moor 890, are expressly stated by the reporters to have come before the chancellor on exceptions to the orders of the commissioners. Piggot v. Penrice, 2 Eq. Cas. Abr. 191, is given by the editor on the authority of another reporter. Gilb. Eq. Rep. 137. On looking into the original report, it will be seen, that the question of the statute was not involved in case as it stood before the Chancellor. The only questions before him were, 1st. Whether any estate in lands passed to an executor by the words, 'I made my niece Gore, since married to Sir Henry Penrice, executrix of all my goods, lands and chattels'? and 2d. What writing would amount to a revocation of a will? At the end of the report, there is a note in these words: 'Note, the testatrix, by her second will, gave part of these lands to charitable uses, and they were decreed, at the rolls, to be good, as an appointment upon the act of parliament, notwithstanding there was no revocation; but that point was not now in question.' (Ibid.) How this question came before the Master of the Rolls does not appear; but all that is, decided is, that the charity is within the statute, which leaves the question of the original jurisdiction of the court over charities untouched.

The last ancient case cited is that of the Attorney-General v. Hickman, 2 Eq. Cas. Abr. 193. A testator gave his estate to B. and his heirs, &c., by a will duly executed; and by a codicil, not attested by three witnesses, declared the use in these words: 'I would have the same employed for the encouraging such non-conformist ministers as preach God's word, and in places where the people are not able to allow them a sufficient maintenance; and for encouraging the bringing up some to the work of the ministry who are designed to labor in God's vineyard among the dissenters. The particular method how to dispose of it, I prescribe not, but leave to their discretion, designing you (B.) to take advice of C. and D.' This bequest, analogous to that now before the court, though much more vague and general, was confirmed, and the money decreed to be distributed immediately, and not made a perpetual charity. But nothing is said of the statute of Elizabeth, either in the argument, or in the opinion of the court. The question was, whether B., and his testamentary advisers, C. and D., having all died before the testatator, the court could supply trustees. The counsel who contended for this power in the court, supported it, not by the statute, but by the general authority of the court; instancing a legacy bequeathed in trust, and the death of the trustee, which, in equity, would not defeat the bequest. The court sustained its authority, without assigning any particular ground; and it may, therefore, be fairly inferred, that the court adopted the ground assumed in the argument. The case is cited from a manuscript report, and another note of the case, in the margin, goes no further than to say, that it was considered as being within the description of the statute of Elizabeth, but does not profess to found the power of the court over the case upon that statute.

Nor do the cases cited to show that the power of the court to give effect to a vague devise, by the rule of cy pres, is founded upon the statute, support that position. In the case of Baylis v. The Attorney-General (2 Atk. 239), 200l. were given under the will of Mr. Church, 'to the ward of Bread street, according to Mr. _____, his will.' Lord HARDWICKE, after rejecting testimony to fill the blank, proceeds thus: 'Though the alderman and inhabitants of a ward are not, in point of law, a corporation, yet, as they have made the attorney-general a party, in order to support and sustain the charity, I can make a decree that the money may, from time to time, be disposed of in such charities as the alderman, for the time being, and the principal inhabitants, shall think the most beneficial to the ward.' Nothing is said of the statute; and the circumstance of making the attorney-general a party points rather to the exercise of the king's prerogative, as parens patrioe, which is independent of the statute. In White v. White, 1 Bro. C. C. 12, the testator bequeathed one moiety of the residue of his personal estate to the Foundling, and the other to the Lying-in-Hospital, and if there should be more than one of the latter, then to such of them as his executors should appoint. The testator struck out the name of his executor, and never appointed another. Lord THURLOW held, that this was no revocation of the legacy, and referred it to a master, to which of the lying-in-hospitals it should be paid; but he does not countenance the idea of the power thus exercised by him being derived from the statute of Eliz. On the contrary, he refers it to notions derived from the Roman and civil law. Moggridge v. Thackwell, 3 Bro. C. C. 517, was a gift of a residue to I. Vaston, to such charitable uses as he should appoint, but recommending poor clergymen with large families and good characters; I. V. died in the testator's lifetime. The charity was sustained and executed by the court; but there is no allusion to the statute in the opinion of Lord ELD N. He says: 'Vaston, if alive, could not claim this property for his own use. All the rules, both of the civil and common law, would repel him from taking the property in that way. This reduces it to the common case of the death of a trustee, which cannot defeat the effect of a legacy.' The second report of the same case does not vary the ground taken by the court. 1 Ves. jr. 464. In the report of the case, on the rehearing, all the cases are collated, yet nothing is delivered at the bar, or from the bench, referring the power of the court to the statute of Eliz. 7 Ves. 36. Lord ELDON, speaking of former decisions, says: 'In what the doctrine (of cy pres) originated, whether as supposed by Lord THURLOW, in White and White, in the principles of the civil law as applied to charities, or in the religious notions entertained in this country, I know not.' Ibid. 69. A strange doubt, if the doctrine originated in the statute! Nor are the elementary writers and compilers understood as deducing the jurisdiction from the statute. Blackstone, who is cited for this purpose, is treating of a different subject in the passage of his commentaries referred to. 2 Bl. Com. 376. Having stated in a preceding page, that corporations were excepted from the statutes of wills of 32 Hen. VIII., c. 1., and 34 Hen. VIII., c. 5, he says, in the page cited, that the statute of 43 Eliz., c. 4, is considered as having repealed that of Hen. VIII., so far as to admit a devise to a corporation for a charitable use; he then speaks of the liberal construction which had been given to devises under this statute, byforce of the word appointment; but does not even insinuate that it was the origin of the chancery jurisdiction. All the other elementary writers and compilers cited are equally remote from proving the position assumed. Their remarks are directed to the liberal construction put upon the word appoint, under the statute of Eliz.; but the principles to be extracted from all the cases cited by them are the principles of the civil law, by which the court had been guided, antecedent to, and independent of, the statute.

The Attorney-General v. Hever, 2 Vern. 387, which is cited to prove that no donation is considered in England as a charitable donation, unless for the uses enumerated in the statute, or for analagous uses, was a devise to a school; and the lord keeper decided, that not being a free school, the charity was not within the statute, and consequently the inhabitants had not a right to sue in the name of the attorney-general. This is a very different position from that which the case was cited to prove; and it is an unfounded position: for the statute authorizes no proceeding in the name of the attorney-general; and it is admitted, that the attorney-general might, and had, informed in the name of the king as parens patrioe previous to, and independent of, the statute. Brown v. Yeale is merely stated in a note, and settles nothing. 7 Ves. 50, note a. It is true, the statute of Eliz., having enumerated charities, gave a new technical name to a portion of the uses and trusts recognised by the civil law. It is this idea which the master of the rolls pursues in Morice v. The Bishop of Durham, 9 Ves. 399. The trust before the court was for such objects of benevolence and liberality, as her executor, in his own discretion, should most approve of. Sir W. GRANT determined, that this was not within the description of charitable trusts under the statute: that purposes of liberality and benevolence do not necessarily mean the same as objects of charity. With regard to charities, he says, that it had been settled upon authorities which it was too late to controvert, that they should not fail on account of their generality, but that in some cases, their particular application should be directed by the king, and in others by the court. But he does not say that the king or the court derived this power of direction from the statute. The statute is looked at, to see if the bequest be a charity within it; but the powers of control and direction in the king and the court are derived from the original respective authority of the one, as parens patriae, and of the other, as a court of equity. It is admitted, by the clearest implication, that although the bequest was not a charity within the statute, yet if any definite object had been indicated by the will for which the money could have been decreed, it would have been so decreed. On the rehearing of the same case. Lord ELDON merely confirms the same principles. 10 Ves. 522.

But Lord LOUGHBOROUGH is supposed to have attributed the jurisdiction to the statute, in express terms, in the case of the Attorney-General v. Bowyer, 3 Ves. 726. But to understand his words correctly, it is necessary to observe, that the 43d of Elizabeth's reign, was the year 1601, and that Lord ELLESMERE received the seals in 1603, the epoch of her decease, and of the accession of James I. The point under Lord LOUGHBOROUGH'S consideration was the title to intermediate rents and profits, in the case of a trust to take effect in futuro. He first considers the question as to the legal right, and introduces Porter's case (1 Co. 226), and that of the Sutton Hospital, 10 Co. 1. The case of Porter, he says, was upon a devise before the statute of wills (32 Hen. VIII., c. 1), and before the statute of uses (27 Hen. VIII., c. 10), and consequently, before the statute of Eliz. 'It does not appear, that the court, before that period, had cognisance of informations for the establishment of charities.' At what period? Not the 43d Eliz., as has been contended; but either the period of the devise, which was in the 32d of Hen. VIII., or of the decision, which was in the 34th of Elizabeth. The chancellor proceeds, 'prior to the time of Lord ELLESMERE, as far as the tradition in times immediately following goes, there was no such information as that upon which I am now sitting, but they made out the case as well as they could at law.' The phrase, 'prior to the time of Lord ELLESMERE,' cannot be considered as equivalent to prior to the 43d of Eliz.; for there is no coincidence in point of time. The idea is singularly expressed, if he meant to deduce the practice and authority of informations from the statute of the 43d of Elizabeth. All that he really meant was, to affirm, that the practice of proceeding on informations by the attorney-general grew up in the time of Lord ELLESMERE. But this position is contradicted by Lord Keeper HENLEY (1 W. Bl. 91), by Lord MACCLESFIELD (2 P. Wms. 119), by Lord SOMERS (2 Vern. 342), by Lord THURLOW (1 Bro. C. C. 15); and finally, by the admission on the opposite side, that the proceeding of the attorney-general, was as representing the king in his character of parens patrioe. The chancellor next proceeds to establish the validity of these devises at common law, and consequently, independent of the statute; and coming to the exercise of the equitable jurisdiction, he expressly founds it on the general power of the court over trusts. It results, then, that by the civil law, devises to pious and public uses were liberally expounded, and not suffered to fail by their uncertainty; that the ecclesiastical courts, and courts of equity, acting on ecclesiastical subjects, when called upon to take cognisance of a devise to pious or public uses, exercised all the powers, before the statute, which have been since exercised; that the statute of Eliz. came, and following up the principle of the civil law, made an enumeration of those gifts to pious and public uses, under the new name of charitable uses; not to give them new validity, but to discover them by inquisition, and to effectuate them upon civil-law principles. After the statute, the new name of charitable uses, became the fashion of the court; and the word appointment was extended, to produce the same effect which Swinburne had ascribed to the civil law before. It became unnecessary to look back beyond the statute, for the exercise of power over a charitable use: the case was brought within the statutory description, and if found within it, the constructive power of the word appointment was brought to bear upon it.

Whatever be the origin of the powers of the court of chancery, in England, whether derived from the peculiar law of the court itself, from statutes, or from the extraordinary jurisdiction of the chancellor, they are all vested in the courts of the United States, by the constitution giving to them jurisdiction of all suits in equity between citizens of different states. There is no necessity that the attorney-general of Virginia should be made a party, because that is only required where the objects of the charity contravene the policy of the law; nor is it necessary that the court should superintend the execution of the trust, since the trustees are appointed by the testator; nor that the court should refer it to a master to digest a scheme for its application, as the objects are clearly designated in the will.

MARSHALL, Ch. J., delivered the opinion of the court.

It was obviously the intention of the testator, that the Association should take in its character as an association; and should, in that character, perform the trust created by the will. The members composing it must be perpetually changing; but however they might change, it is 'The Baptist Association that, for ordinary, meets at Philadelphia annually,' which is to take and manage the 'perpetual fund,' intended to be created by this will. This association is described with sufficient accuracy to be clearly understood; but not being incorporated, is incapable of taking this trust as a society. Can the bequest be taken by the individuals who composed the association at the death of the testator? The court is decidedly of opinion, that it cannot. No private advantage is intended for them. Nothing was intended to pass to them but the trust; and that they are not authorized to execute as individuals. It is the association for ever, not the individuals, who, at the time of his death, might compose the association, and their representatives, who are to manage this 'perpetual fund.'

At the death of the testator, then, there were no persons in existence who were capable of taking this bequest. Does the subsequent incorporation of the association give it this capacity? The rules of law compel the court to answer this question in the negative. The bequest was intended for a society which was not, at the time, and might never be, capable of taking it. According to law, it is gone for ever. The legacy is void; and the property vests, if not otherwise disposed of by the will, in the next of kin. A body corporate, afterwards created, had it even fitted the description of the will, cannot divest this interest, and claim it for their corporation.

There being no persons who can claim the right to execute this trust, are there any who, upon the general principles of equity, can entitle themselves to its benefits? Are there any to whom this legacy, were it not a charity, could be decreed? This question will not admit of discussion. Those for whose ultimate benefit the legacy was intended, are to be designated and selected by the trustees. It could not be intended for the education of all the youths of the Baptist denomination, who were designed for the ministry; nor for those who were the descendants of his father, unless, in the opinion of the trustees, they should appear promising. These trustees being incapable of executing this trust, or even of taking it on themselves, the selection can never be made, nor the persons designated who might take beneficially.

Though this question be answered in the negative, we must still inquire, whether the character of this legacy, as a charity, will entitle it to the protection of this court? That such a legacy would be sustained in England, is admitted. But it is contended, for the executors, that it would be sustained in virtue of the statute of the 43 of Elizabeth, or of the prerogative of the crown, or of both; and not in virtue of those rules by which a court of equity, exercising its ordinary powers, is governed. Should these propositions be true, it is further contended, that the statute of Elizabeth does not extend to the case, and that the equitable jurisdiction of the courts of the Union does not extend to cases not within the ordinary powers of a court of equity.

On the part of the plaintiffs, it is contended, that the peculiar law of charities does not originate in the statute of Elizabeth. Had lands been conveyed in trust, previous to the statute, for such purposes as are expressed in this will, the devise, it is said, would have been good at law; and, of consequence, a court of chancery would have enforced the trust, in virtue of its general powers. In support of this proposition, it has been said, that the statute of Elizabeth does not even profess to give any validity to devises or legacies, of any description, not before good, but only furnishes a new and more convenient mode for discovering and enforcing them; and that the royal prerogative applies to those cases only, where the objects of the trust are entirely indefinite; as a bequest generally to charity, or to the poor.

It is certainly true, that the statute does not, in terms, profess to give validity to bequests, acknowledged not before to have been valid. It is also true, that it seems to proceed on the idea, that the trusts it is intended to enforce, ought, in conscience, independent of the statute, to be carried into execution. It is, however, not to be denied, that if, at the time, no remedy existed in any of the cases described, the statute gives one. A brief analysis of the act will support this proposition. It authorizes the chancellor to appoint commissioners to inquire of all gifts, &c., recited in the act, of the abuses, &c., of such gifts, &c.; and upon such inquiry, to make such order as that the articles given, &c., may be duly and faithfully employed, to and for the charitable uses and intents, before rehearsed respectively, for which they were given, &c. The statute then proceeds, 'which orders, judgments and decrees, not being contrary or repugnant to the orders, statutes or decrees of the donors or founders, shall, by the authority of this present parliament, stand firm and good, according to the tenor and purport thereof, and shall be executed accordingly, until the same shall be undone or altered by the Lord Chancellor of England,' &c. Subsequent sections of the act direct these decrees, &c., to be certified to the chancellor, who is to take such order for their execution as to him shall seem proper; and also give to any person aggrieved the right to apply to chancery for redress.

It is not to be denied, that if any gifts are enumerated in this statute, which were not previously valid, or for which no previous remedy existed, the statute makes them valid, and furnishes a remedy. That there were such gifts, and that the statute has given them validity, has been repeatedly determined. The books are full of cases, where conveyances to charitable uses, which were void by the statute of mortmain, or were, in other respects, so defective, that, on general principles, nothing passed, have been sustained under this statute. If this statute restores to its original capacity, a conveyance rendered void by an act of the legislature, it will, of course, operate with equal effect on any legal objection to the gift, which originates in any other manner, and which a statute can remove.

The authorities to this point are numerous. In the case of the Attorney-General, on behalf of St. John's College, in Cambridge, v. Platt (Cas. temp. Finch 221), the name of the corporate body was not fully expressed. This case was referred by the chancellor to the judges, who certified, that though, according to the general principles of law, the devise was void; yet it was good under the statute of Elizabeth. This case is also reported in Cases of Chancery 267, where it is said, the judges certified the devise to be void at law, but the chancellor decreed it good under the statute. So, in Chancery Cases 134, it was decided, that a bequest to the parish of Great Creaton was good, under the statute. Though this case was not fully nor clearly reported, enough appears, to show that this bequest was sustained only under the statute of Elizabeth. The objections to it were, that it was void on general principles, the parish not being incorporated; and that it would not be decreed, under the statute, the proceedings not being before commissioners, but by original bill. The Master of the Rolls ordered precedents to be produced; and on finding one in which four judges had certified that a party might, under the statute, proceed in chancery, by original bill, he directed the legacy to be paid. Could this bequest have been sustained, on doctrines applicable to charities, independent of the statute, no question could have arisen concerning the rights to proceed by original bill. In Collison's case, Hob. 136, the will made John Bruet and others, 'feoffees of a home, to keep it in reparation, and to bestow the rest of the profits on reparation of certain highways.' On a reference by the chancellor, the judges declared, that 'this case was within the relief of the 43d of Elizabeth; for though the devise were utterly void, yet it was, within the words, limited and appointed for charitable uses.'

In these cases, it is expressly decided, that the bequests are void, independent of the statute, and good under it. It furnishes no inconsiderable additional argument, that many of the gifts recited in the 43 Eliz., would not, in themselves, be considered as charitable; yet they are all governed by the same rule. No dictum has been found, indicating an opinion that the statute has no other effect than to enable the chancellor to inquire, by commission, into cases before cognisable in this court by original bill. It may, then, with confidence be stated, that whatever doubts may exist in other points which have been made in the cause, there is none in this: The statute of the 43 Eliz. certainly gave validity to some devises to charitable uses, which were not valid, independent of that statute. Whether this legacy be of that description, is a question of more difficulty.

The objection is, that the trust is void; and the description of the cestui que trust so vague, that no person can be found whose interest can be sustained. The counsel for the plaintiff insists, that cases equally vague have been sustained in courts of common law, before the statute; and would a fortiori, have been sustained in courts of equity. He relies on Porter's case, 1 Co. 226, and on Plowd. 522. Porter's case is this: Nicholas Gibson, in the 32 Hen. VIII., devised a wharf and house to his wife, upon condition, that she should, on advice of learned counsel, in all convenient speed, after his decease, assure, give and grant the said lands and tenements, for the maintenance for ever of a free school the testator had erected, and of alms-men and alms-women attached to it. The wife entered into the property, and instead of performing the condition, conveyed it, in the 3 Edw. VI., by a lease for forty years. Afterwards, in the 34 Eliz., the heir-at-law entered for a condition broken, and conveyed to the queen. On the validity of this entry and conveyance, the cause depended. On the part of Porter, who claimed under the lease, it was contended, that the use was against the act of the 22 Hen. VIII., c. 10, and therefore, void, on which the estate of the wife became absolute. On the part of the queen, it was argued, 1st. That the statute of Hen. VIII. avoided superstitious, and not charitable uses. But if it extended to this, still, that it made the use, and not the conveyance, void. The devisee, there being no consideration, would stand seised to the use of the heir. 2. That in case the devise is to the wife, on condition that she would, by the advice of learned counsel, assure his lands for the maintenance of the said free-school, and alms-men and alms-women, this might be done lawfully, by procuring the king's letters-patent incorporating them, and afterwards, a letter of license to assure the lands to them. Upon these reasons, the court was of opinion, that the condition was broken, and that the entry of the heir was lawful.

In this case, no question arose concerning the possibility of enforcing the execution of the trust. It was not forbidden by law; and therefore, the trustee might execute it. On failing so to do, the condition on which the estate was given was broken, and the heir might enter; but it is not suggested that the cestui que trust had any remedy. An estate may be granted on any condition which is not against law, as that the grantee shall go to Rome; and for breach of that condition, the heir may enter, but there are no means of compelling the journey to Rome. In the argument of Porter's case, the only mode suggested for assuring to the school the benefit intended, is by an act of incorporation, and a letter of license. In considering this case, it seems impossible to resist the conviction, that chancery could, then, afford no remedy to the cestui que trust. It is not probable, that those claiming the beneficial interest would have waited, without an effort, from the 32 Hen. VIII., when the testator died, or, at any rate from the 3 Edw. VI., when the condition was conclusively broken, by the execution of the lease, until the 34 Eliz., and then have resorted to the circuitous mode of making an arrangement with the heir-at-law, and procuring a conveyance from him to the queen, on whose will the charity would still depend, if a plain and certain remedy had existed, by a direct application to the chancellor.

If, as there is much reason to believe from this, and from many other cases of the same character which were decided at law, anterior to the statute of Eliz., the remedy in chancery was not then afforded, it would go far in deciding the present question; it would give much countenance to the opinion, that the original interference of chancery in charities, where the cestui que trust had not a vested equitable interest which might be asserted in a court of equity, was founded on that statute, and still depends on it. These cases, and the idea they suggest, that at the time chancery afforded no remedy for the aggrieved, account for the passage of the statute of the 43 Elizabeth, and for its language, more satisfactorily than any other cause which can be assigned.

If, as has been contended, charitable trusts, however vague, could then, as now, have been enforced in chancery, why pass an act to enable the chancellor to appoint commissioners to inquire concerning them, and to make orders for their due execution, which orders were to be revised, established, altered, or set aside, by him? If the chancellor could accomplish this, and was in the practice of accomplishing it, in virtue of the acknowledged powers and duties of his office, to what purpose pass the act? Those who might suppose themselves interested in these donations, would be the persons to bring the case before the commissioners; and the same persons would have brought it before the chancellor, had the law afforded them the means of doing so. The idea, that the commissions were substituted for the court, as the means of obtaining intelligence not otherwise attainable, or of removing inconveniences in prosecuting claims by original bill, which had been found so great as to obstruct the course of justice, is not warranted by the language of the act, and is disproved by the efforts which were soon made, and which soon prevailed, to proceed by way of original.

The statute recites, that whereas, lands, money, &c., had been heretofore given, &c., some for the relief of aged, impotent and poor people, &c., which lands, &c., 'nevertheless, have not been employed according to the charitable intent of the givers and founders thereof, by reason of'-what? of the difficulty of discovering that such trusts had been created? or of the expensiveness and inconvenience of the existing remedy? No. 'By reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same:' that is, by reason of fraud, breach of trust and negligence of the trustees. The statute then proceeds to give a remedy for these frauds, breaches of trust and negligences. Their existence was known, when the act passed, and was the motive for passing it. No negligence or fraud is charged on the court, its officers, or the objects of the charity; only on the trustees. Had there been an existing remedy for their frauds and negligences, they could not, when known, have escaped that remedy.

There seem to have been two motives, and they were adequate motives, for enacting this statute: The first and greatest was, to give a direct remedy to the party aggrieved, who, where the trust was vague, had no certain and safe remedy for the injury sustained; who might have been completely defeated by any compromise between the heir of the feoffer and the trustee, and who had no means of compelling the heir to perform the trust, should he enter for the condition broken. The second, to remove the doubts which existed, whether these charitable donations were included within the previous prohibitory statutes. We have no trace, in any book, of an attempt in the court of chancery, at any time, anterior to the statute, to enforce one of these vague bequests to charitable uses. If we have no reports of decisions in chancery at that early period, we have reports of decisions at common law, which notice points referred by the chancellor to the judges. Immediately after the passage of the statute, we find, that questions on the validity of wills containing charitable bequests, were propounded to, and decided by, the law judges. Collison's case was decided in the 15 James I., only seventeen years after the passage of the act, and the devise was declared to be void at law, but good under the statute. Two years prior to this, Griffith Flood's case, reported in Hobart, was propounded by the court of wards to the judges; and, in that case too, it was decided, that the will was void at law, but good under the statute. Had the court of chancery taken cognisance, before the statute, or devises and bequests to charitable uses, which were void at law, similar questions must have arisen, and would have been referred to the courts of law, whose decisions on them would be found in the old reporters. Had it been settled, before the statute that such devises were good, because the use was charitable, these questions could not have arisen afterwards; or had they arisen, would have been differently treated.

Although the earliest decisions we have, trace the peculiar law of charities to the statute of Elizabeth, and although nothing is to be found in our books to justify the opinion, that courts of chancery, in the exercise of their ordinary jurisdiction, sustained, anterior to that statute, bequests for charitable uses, which would have been void on principles applicable to other trusts, there are some modern dicta, in cases respecting prerogative, and where the proceedings are on the part of the king, acting as parens patriae, which have been much relied on at the bar, and ought not to be overlooked by the court.

In 2 P. Wms 119, the Chancellor says, 'In like manner, in the case of charity, the king, pro vono publico, has an original right to superintend the care thereof; so that, abstracted from the statute of Elizabeth, relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file informations in chancery, in the attorney-general's name, for the establishment of charities.' 'This original right,' of the crown, 'to superintend the care' of charities, is no more than that right of visitation, which is an acknowledged branch of the prerogative, and is certainly not given by statute.' The practice of filing an information in the name of the attorney-general, if, indeed, such a practice existed in those early times, might very well grow out of this prerogative, and would by no means prove, that, prior to the statute, the law respecting charities was what it has been since. These words were uttered for the purpose of illustrating the original power of the crown over the persons and estates of infants, not with a view to any legal distinction between a legacy to charitable and other objects.

Lord Keeper HENLEY, in 1 W. Black. 91, says, 'I take the uniform rule of this court before, at, and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses. Thus, the devises to corporations were void under the statute of Hen. VIII.; yet they were always considered as good in equity, if given to charitable uses.' We think, we cannot be mistaken, when we say, that no case was decided between the statute of mortmain, passed in the reign of Hen. VIII., and the statute of Elizabeth, in which a devise to a corporation was held good. Such a decision would have overturned principles uniformly acknowledged in that court. The cases of devises in mortmain, which have been held good, were decided since the statute of Elizabeth, on the principle, that the latter statute repeals the former so far as relates to charities. The statute of Geo. II. has been uniformly construed to repeal, in part, the statute of Elizabeth, and charitable devises comprehended in that act have, ever since its passage, been declared void. On the same reason, similar devises must, subsequent to the statute of Henry VIII., and anterior to that of Elizabeth, have been also declared void. It is remarkable that, in this very case, the Lord Keeper declares one of the charities to be void, because it is contrary to the statute of mortmain, passed in the reign of Geo. II. All the respect we entertain for the reporter of this case, cannot prevent the opinion, that the words of the Lord Keeper have been inaccurately reported. If not, they were inconsiderately uttered.

The principles decided in this case are worthy of attention: 'Two questions,' says the report, 'arose, 1st. Whether this was a conveyance to charitable uses, under the statute of Elizabeth, and therefore, to be aided by this court? 2d. Whether it fell within the purview of the statute of mortmain, 9 Geo. II., and was, therefore, a void disposition?' It is not even suggested, that the defect of the conveyance could be remedied, otherwise than by the statute of Elizabeth. The Lord Keeper says, 'the conveyance of the 22d of June 1721, is admitted to be defective, the use being limited to certain officers of the corporation, and not to the corporate body; and terefore, there is a want of persons to take in perpetual succession.' (The very defect in the conveyance under the consideration of this court.) 'The only doubt,' continues the Lord Keeper, 'is, whether the court should supply this defect, for the benefit of the charity, under the statute of Elizabeth.' It is impossible, we think, to understand this declaration, otherwise than as an express admission, that a conveyance to officers, who compose the corporate body, instead of the corporate body itself, or in other words, a conveyance to any persons not incorporated to take in succession, although for charitable purposes, would be void, if not supported by the statute of Elizabeth. After declaring the conveyance to be good, the Lord Keeper proceeds: 'The conveyance, therefore, being established under the statute of Elizabeth, we are next to consider how it is affected under the statute of the 9 Geo. II.'

The whole opinion of the judge in this case, turns upon the statute of Elizabeth. He expressly declares the conveyance to be sustained by that statute, and in terms, admits it to be defective, without its aid. The dictum, therefore, that before that statute, courts were in the habit of aiding defective conveyances to charitable uses, either contradicts his whole opinion on the point before him, or is misreported. The probability is, that the judge applied this dictum to cases which occurred, not to cases which were decided before the statute. This application of it would be supported by the authorities, and would accord with his whole opinion in the case. In the case of the Attorney-General v. Bowyer, 3 Ves. 725, the chancellor, speaking of a case which occurred before the passage of the statute of wills, says, 'It does not appear that this court, at that period, had cognisance upon information for the establishment of charities. Prior to the time of Lord ELLESMERE, as far as tradition in times immediately following goes, there were no such informations as this on which I am now sitting, but they made out the case as well as they could by law.' Without attempting to reconcile these seemingly contradictory dicta, the court will proceed to inquire, whether charities, where no legal interest is vested, and which are too vague to be claimed by those to whom the beneficial interest was intended, could be established by a court of equity, either exercising its ordinary jurisdiction, or enforcing the prerogative of the King as parens patriae, before the 43 Elizabeth?

The general principle, that a vague legacy, the object of which is indefinite, cannot be established in a court of equity, is admitted. It follows, that he who contends that charities formed originally an exception to the rule, must prove the proposition. There being no reported cases on the point, anterior to the statute, recourse is had to elementary writers, or to the opinions given by judges of modern times. No elementary writers sustain this exception as a part of the law of England. It may be considered as a part of the civil code, on which our proceedings in chancery are said to be founded; but that code is not otherwise a part of the law of England than as it has been adopted and incorporated by a long course of decisions. The whole doctrine of the civil law, respecting charities, has certainly not been adopted. For example, by the civil law, a legacy to a charity, if there be a deficiency of assets, does not abate; by the English law, it does abate. It is not, therefore, enough to show that, by the civil law, this legacy would be valid. It is necessary to go further, and to show that this principle of the civil law has been engrafted into the jurisprudence of England, and been transplanted into the United States.

In White v. White, 1 Bro. C. C. 15, the testator had given a legacy to the Lying-in-Hospital which his executor should appoint, and afterwards struck out the name of the executor. The legacy was established, and it was referred to a master to say to which Lying-in-Hospital it should be paid. In giving this opinion, Lord THURLOW said, 'the cases have proceeded upon notions adopted from the Roman and civil law, which are very favorable to charities, that legacies given to public uses not ascertained, shall be applied to some proper object.' These expressions, apply perhaps exclusively, to that class of cases in which legacies given to one charity have, since the statute of Elizabeth, been applied to another; or, in which legacies given so vaguely as that the object cannot be precisely defined, have been applied by the crown, or by the court, acting in behalf of the crown, to some charitable object of the same kind. White v. White was itself of that description; and the words 'legacies given to public uses not ascertained,' 'applied to some proper object,' seem to justify this construction. If this be correct, the sentiment advanced by Lord THURLOW, would amount to nothing more than that the cases in which this extended construction was given to the statute of Elizabeth, proceed upon notions adopted from the Roman and civil law.

But if Lord THURLOW used this language, under the impression that the whole doctrine of the English chancery, relative to charities, was derived from the civil law, it will not be denied, that his opinions, even when not on the very point decided, are entitled to great respect. Something like the same idea escaped Lord ELDON, in the case of Moggridge v. Thuckwell, 7 Ves. 36. Yet, upon other occasions, different opinions have been advanced, with an explicitness, which supports the idea, that the court of chancery in England does not understand these dicta as they have been understood by the counsel for the plaintiff. In the case of Morice v. The Bishop of Durham, 9 Ves. 399, where the devise was to the bishop, in trust, to dispose of the residue 'to such objects of benevolence and liberality as he, in his own discretion, should most approve,' the bequest was determined to be void, and the legacy decreed to the next of kin. The master of the rolls said, 'In this court, the signification of charity is derived principally from the statute of Elizabeth. Those purposes are considered charitable, which that statute enumerates, or which, by analogies, are deemed within its spirit and intendment.' This case afterwards came before the chancellor, who affirmed the decree, and said, 'I say, with the master of the rolls, a case has not yet been decided, in which the court has executed a charitable purpose, unless the will contains a description of that which the law acknowledges to be a charitable purpose, or devotes the property to purposes of charity in general.' 10 Ves. 540.

The reference made by the chancellor to the words of the master of the rolls, whose language he adopts, proves that he used the term 'law' as synonymous with 'the statute of Elizabeth.' Afterwards, in the same case, speaking of a devise to charity, generally, the chancellor says, 'it is the duty of the trustees, or of the crown, to apply the money to charity, in the sense which the determinations have affixed to the word in this court: viz., either such charitable purposes as are expressed in the statute, or to purposes analogous to those.' He adds, 'charitable purposes, as used in this court, have been ascribed to many acts described in that statute, and analogous to those, not because they can with propriety be called charitable, but as that denomination is, by the statute, given to all the purposes described.' It has been also said, that a devise to a charity generally is good, because the statute of Elizabeth uses that term.

These quotations show that Lord ELDON, whatever may have been the inclination of his mind, when he determined the case of Moggridge v. Thackwell, was, on more mature consideration, decidedly of opinion, that the doctrines of the court of chancery, peculiar to charities, originated not in the civil law, but in the statute of Elizabeth. This opinion is entitled to the more respect, because it was given, after an idea, which might be supposed to conflict with it, had been insinuated by Lord THURLOW, and in some degree followed by himself; it was given in a case which required an investigation of the question; it was given, too, without any allusion to the dicta uttered by Lord THURLOW and himself; a circumstance which would scarcely have occurred, had he understood those dicta as advancing opinions he was then denying. It is the more to be respected, because it is sustained by all the decisions which took place, and all the opinions expressed by the judges soon after the passing of the statute of Elizabeth. In 1 Ch. Cas. 134, a devise to the Parish of Great Creaton, the parish not being a corporation, was held to be void, independent of the statute, but good under it. So, in the same book, p. 267, on a devise to a corporation, which was misnamed, the Lord Keeper decreed the charity, under the statute, though, before the statute, no such devise could have been sustained. The same point is decreed in the same book, p. 195, and in many other of the early cases. These decisions are totally incompatible with the idea, that the principles on which they turned were derived from the civil law.

There can be no doubt, that the power of the crown to superintend and enforce charities existed in very early times; and there is much difficulty in marking the extent of this branch of the royal prerogative, before the statute. That it is a branch of the prerogative and not a part of the ordinary power of the chancellor, is sufficiently certain. Blackstone, in vol. 3, p. 47, closes a long enumeration of the extraordinary powers of the chancellor, with saying, 'he is the general guardian of all infants, idiots, lunatics; and has the general superintendence of all charitable uses in the kingdom; and all this, over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery.' In the same volume, p. 487, he says, 'the king, as parens patriae, has the general superintendence of all charities, which he exercises by the keeper of his conscience, the chancellor; and therefore, whenever it is necessary, the attorney-general, at the relation of some informant, files, ex officio, an information in the court of chancery, to have the charity properly established.'

The author of 'A Treatise of Equity' says, 'so, anciently, in this realm, there were several things that belonged to the king as parens patriae, and fell under the care and direction of this court: as, charities, infants, idiots, lunatics, &c.' Cooper, in his chapter on the jurisdiction of the court, says, 'the jurisdiction, however, in the three cases of infants, idiots or lunatics, and charities, does not belong to the court of chancery as a court of equity, but as administering the prerogative and duties of the crown.' Cooper's Eq. Pl. 27. It would be waste of time, to multiply authorities to this point, because the principle is familiar to the profession. It is impossible to look into the subject, without perceiving and admitting it. Its extent may be less obvious.

We now find this prerogative employed in enforcing donations to charitable uses, which would not be valid, if made to other uses; in applying them to different objects than those designated by the donor; and in supplying all defects in the instrument by which the donation is conveyed, or in that by which it is administered. It is not to be admitted, that legacies, not valid in themselves, can be made so by force of prerogative, in violation of private rights. This superintending power of the crown, therefore, over charities, must be confined to those which are valid in law. If, before the statute of Elizabeth, legacies like that under consideration would have been established, on information filed in the name of the attorney-general, it would furnish a strong argument for the opinion, that some principle was recognised, prior to that statute, which gave validity to such legacies. But although we find dicta of judges, asserting, that it was usual, before the statute of Elizabeth, to establish charities, by means of an information filed by the attorney-general; we find no dictum, that charities could be established on such information, where the conveyance was defective, or the donation was so vaguely expressed, that the donee, if not a charity, would be incapable of taking; and the thing given would vest in the heir or next of kin. All the cases which have been cited, where charities have been established, under the statute, that were deemed invalid independent of it, contradict this position.

In construing that statute, in a preceding part of this opinion, it was shown, that its enactments are sufficient to establish charities not previously valid. It affords, then, a broad foundation for the superstructure which has been erected on it. And although many of the cases go, perhaps, too far; yet, on a review of the authorties, we think, they are to be considered as constructions of the statute, not entirely to be justified, rather than as proving the existence of some other principle, concealed in a dark and remote antiquity, and giving a rule in cases of charity, which forms an exception to the general principles of our law.

But even if, in England, the power of the king as parens patriae would, independent of the statute, extend to a case of this description, the inquiry would still remain, how far this principle would govern in the courts of the United States? Into this inquiry, however, it is unnecessary to enter, because it can arise only where the attorney-general is made a party.

The court has taken, perhaps, a more extensive view of this subject than the particular case, and the question propounded on it, might be thought to require. Those who are to take this legacy beneficially, are not before the court, unless they are represented by the surviving members of the Baptist Association, or by the present corporation. It was, perhaps, sufficient to show, that they are not represented by either. This being the case, it may be impossible, that a party plaintiff can be made, to sue the executor, otherwise than on the information of the attorney-general. No person exists who can assert any interest in himself. The cestui que trust can be brought into being, only by the selection of those who are named in the will to take the legacy in trust, and those who are so named, are incapable of taking it. It is, perhaps, decisive of the question propounded to this court to say, that the plaintiffs cannot take. But the rights of those who claim the beneficial interest, have been argued at great length, and with great ability; and there would have been some difficulty in explaining satisfactorily, the reasons why the plaintiffs cannot take, without discussing also, the rights of those for whom they claim. The court has, therefore, indicated its opinion on the whole case, as argued and understood at the bar.

Charitable donations were of great consideration in the civil law, and bequests to pious uses were deemed privileged testaments. Swinburne, pt. 1, § 16, p. 103; Ibid. pt. 7, § 8, pt. 908; 2 Domat 160, 161, 163. There can be little doubt, that the authority of the Roman code, combining with the religious notions of former times, coutributed in no small decree to engraft the principles of that law respecting charities into the common law. This was manifestly the opinion of Lord THURLOW (White v. White, 1 Bro. C. C. 12); and Lord ELDON, in assenting to it, has added, that as, at an early period, the ordinary had authority to apply a portion of every man's estate to charity, when afterwards the statute compelled a distribution, it is not impossible, that the same favor should have been extended to charity in the construction of wills, by their own force, purporting to authorise such a dis-

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