104 Ala. 327 | Ala. | 1893
The validity of the bequest brought to our view, in this case, must be upheld, if at all, upon one of three propositions, viz. :
1. That it is a direct bequest to the church for its general uses.
2. That it creates a charitable use.
3. That it creates a valid private trust.
First: The form of the bequest repels the idea that a gift to a church for its own general uses was intended.
Second: Charitable uses, whether arising out of the English statute of Charitable Uses, in force, in a qualified sense, in Alabama, or sustained upon the general principles of equity, (Williams v. Pearson, 38 Ala. 307), do not include dispositions of the kind in question. To constitute a charitable use it must confer a public benefit open to an indefinite number of persons. — 3 Am. & Eng. Encyc. of Law, pp. 123, 126, 127, 130; 2 Perry on Trusts, (3dEd.), §§ 693, 697, 710. In an extended note to the case of Dashiell v. Attorney General, 9 Am. Dec. 577, will be found a full discussion of the whole subject, collating the authorities. We need only to refer to what is there said. The bequest, in the present case, is, according to the religious belief of the testator, for the benefit alone of his own soul, and can not be upheld, as a public charity, without offending every principle of law by which such charities are supported.
Third : It is not valid as a private trust, for the want of a living beneficiary. A trust in form, with none to enjoy or enforce the use, is no trust. Argument is un
The authorities upon the several propositions discussed will be found in the briefs of counsel which will be reported.
Upon no principle are we able to sustain this bequest. The decree of the chancellor must be reversed and the cause remanded.
Reversed and remanded.