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Trustees of Philadelphia Baptist Ass'n v. Hart's Executors, 17 U.S. 1 (1819)

Trustees of Philadelphia Baptist Association v. Hart's Executors

17 U.S. 1




In the year 1790, S.H., a citizen of Virginia, made his last will, containing 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. In 1795, the testator died. The Baptist Association in question had existed as a regularly organized body for many years before the date of his will, and in 1797 was incorporated by the Legislature of Pennsylvania by the name of "The Trustees of the Philadelphia Baptist Association."

Held that the association, not being incorporated at the testator's decease, could not take this trust as a society.

That the bequest could not be taken by the individuals who composed the Association at the death of the testator.

That there were no persons to whom this legacy, were it not a charity, could be decreed.

And that it could not be sustained in this Court as a charity.

Charitable bequests, where 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, either exercising its ordinary jurisdiction or enforcing the prerogative of the King as parens patriae, independent of the statute, 43 Eliz.

If, in England, the prerogative of the King, as parens patriae, would, independent of the Statute of Elizabeth, extend to charitable bequests of this description: quaere how far this principle would govern in the courts of the United States?

The English statute, 43d Elizabeth, gives validity, to some devises to charitable uses, which were not valid independent of that statute.

Held that it was unnecessary to enter into this inquiry, because it could only arise where the Attorney General is made a party.

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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

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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 will, which point was, therefore, certified to this Court.

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MR. CHIEF JUSTICE MARSHALL 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,

Page 17 U. S. 28

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 forever, 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 forever. 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

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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.

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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,

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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 Attorney General on behalf of St. John's

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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

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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 cognizable 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

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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 forever 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 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:

1. 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 seized 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

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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

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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

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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

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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 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 cognizance, 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

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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 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 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

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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

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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 22 June, 1721, is admitted to be defective, the use being limited to certain officers of the corporation, and not to the corporate body, and therefore 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

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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 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 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 cognizance 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. "

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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 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

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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

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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. 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,

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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

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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

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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,

Page 17 U. S. 49

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 recognized, 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 authorities, 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

Page 17 U. S. 50

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

Page 17 U. S. 51

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.

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