24 Tenn. 170 | Tenn. | 1844
delivered the opinion of the court.
Wm. Wright departed this life in the county of Montgomery, in the year 1840, having previously made and published his last will and testament, by which he directed his executor, N. H. Allen, to sell his mill with the appurtenances, and all and every species of property found in his possession at his death, and not otherwise disposed of; and gives one-fourth part of the proceeds arising therefrom to the Tennessee Annual Conference of the Methodist Episcopal Church, for the benefit of institutions of learning under the superintendence of said Conference, and to the Missionary Society of the Methodist Episcopal Church, and to be otherwise disposed of as the Tennessee Annual Conference may deem best in their wisdom. This will was duly proven by the executor, at the August term, 1840, of the County Court of Montgomery, who thereupon proceeds to execute the trust reposed in him.
On the 22d day of December, 1841,'the Legislature of the State of Tennessee passed a private act, by which A. L. P. Green, John F. Hughes, George W. Dye, John B. McFerrin and James G. Henning were appointed trustees to receive the
The question presented for consideration upon the demurrer is, whether the bequest is such one as can, by established principles of law, be sustained as a charitable use, the execution of which can be decreed and enforced by a Court of Chancery in the State of Tennessee.
This is the first time that questions arising out of donations for pious and charitable purposes, have been presented for the consideration of our courts. We are consequently left without the aid of previous adjudication upon the subject, except so far as to be found in the decisions of the courts of England, and in some of our sister States. We are also left without the aid of legislative enactment, and thrown altogether upon the common law, English statutes, and English exposition of them, as the sources from which our information is to be derived. The necessary consequence is, that in the attempt to adapt to our social relations, a system which has been matured by usage, by statutes, by judicial construction, in a country so different from ours in the origin and form of its government, the habits and customs of its people, the form of its religion, and its tenures of property, we are involved in much difficulty and perplexity. This difficulty is much increased by a confusion in the authorities, arising out of the conflict of power in relation thereto, as exercised by the Chancellor, on the one hand, as the representative of the King, who, as parens patries exercises an absolute control of a large class of charities, and on the other as a judicial officer, administering justice by virtue of his office, in the execution and administration of uses and trusts.
1st. What is the common and statutory law of England in relation to the question in controversy.
2d. What portions of the law, as thus fixed in England, are in force and obligatory in the State of Tennessee.
The first proposition opens a wide field of investigation, commencing with the origin of donations for pious and charitable purposes, and ending with the principles upon which they are at present recognized and protected by the Court of Chancery in England: an investigation alarming from its extent and perplexity, but necessary, absolutely necessary for the proper understanding of the questions in controversy. I do not propose to conduct it minutely, and have no hope that I shall do it with perfect accuracy; all I design or expect, is so to review the subject as to be able to approximate with a sufficient degree of certainty, to the true sources of power, out of which the jurisdiction of the Chancellor in England arises in relation to trusts of this character, and be enabled to deduce therefrom the true rule of action upon them in the State of Tennessee. Mr. Story in the 2d volume of his Treatise upon Equity Jurisprudence, sec. 1137, observes, “that it is highly probable, that the rudiments of the law of charities were derived from the civil laws.” If by this is meant, that the first evidences of the existence of an unsuccessful attempt to confine donations for pious and charitable purposes within proper bounds, and to restrain the civil and religious abuses arising out of them, is to be found in that code of jurisprudence, I see no reason to question the correctness of the observation. But if we are to understand by it, that the source of the English jurisprudence, upon the subject, is to be sought and found in the civil law, I trust I may be per
It is a cause of melancholy reflection to those who have looked into the history of the Church, to find at how early a period its hierarchy, forgetting the great and vital principle which had been so impressively taught them, “that the Kingdom of Christ was not of this world,” entered into a struggle in the first place for the attainment of wealth, and in the second place for the acquirement of temporal power. The new but zealous converts, imperfectly acquainted with the mild and self-denying tenets of the religion they professed, having but a very imperfect conception of the principles of action upon which they hoped for the enjoyment of that immortality of happiness promised them; ignorant of the propriety and necessity of controlling and suppressing their evil and wicked propensities, were early led into the belief, that a composition for their indulgence was to be found in dedicating to the Church their worldly wealth, which from the high estimate placed upon it by themselves, they judged, might be highly prized as an atonement for their crimes. Accordingly as Mr. Story observes, one of the earliest fruits of the Emperor Constantine’s real or pretended zeal for Christianity, was a permission to his subjects, to bequeath their property to the Church. Code. Theodos. Lib. 16, tit., 2,1,4. But this permission was soon abused to so great an extent as to induce the Emperor Valentinian to enact a mortmain law, by which it was restrained. This restraint was, however, gradually relaxed, and in the time of Justinian, it became a fixed maxim of Roman jurisprudence, that legacies to pious uses were entitled to peculiar favor, and to be deemed privileged testaments. The influence of the clergy, and the blind credulity of their followers, having been enabled to abrogate the wise policy of Valentinian, established upon the empire a system destructive alike to the prosperity of the country, and to the purity and piety of the Church.
Like causes produced like effects in the barbarian kingdoms erected upon the destruction of the Western Empire, and it is
The first legislative enactment upon the subject, is to be found as early as 9th Henry 3d, ch. 36, re-enacted 25th Edward 1st, ch. 36, which provides, that “it shall not be lawful, from henceforth, to any, to give his lands to any religious house, and to take the same lands again, to hold of the same house. Nor shall it be lawful for any house of religion to take the lands of any, and to leave the same to him of whom he received it. If any, from henceforth, give his land to any religious house, and thereupon be convicted, the gift shall be utterly void, and the land shall accrue to the lord of the fee.” But the religious houses and the clergy, who, Lord Coke quaintly observes, ‘were to be commended, for always having of their counsel the most
In order to evade this statute of 7th Edward 1st, the religious houses used to set up a fictitious title to the lands intended to be given or sold, and brought an action against I he tenant to recover them. The tenant by collusion made no defence, whereby judgment was given for the religious house, which then recovered the lands by sentence "of law upon a supposed superior title. And although proceedings of this kind were carried on, by a species of conventional fraud, between the religious houses and tenant of the.land, yet the judges held, that in these cases the religious communities did not appropriate such lands •per'titidumdoni vel alterius alienationis, as the statute dereligiosis
To meet this device of the ecclesiastics, the statute of 13th Edw. 1st, chap. 32, was passed, by which it was enacted that “when religious men and other ecclesiastical persons did im-plead any, and the partjr impleaded made default, whereby he ought to lose his land, forasmuch as the Justices thought hitherto, that if the party impleaded made default by collusion, that where the demandant by occasion of the statute could not obtain seisin of the land, by title of gift, or other alienation, he should now by reason of the default, and so the statute was defrauded; it was enacted, that in this case after default made, it shall be enquired by the country, whether the demandant had right in the thing demanded or not: if it was found he had right, judgment should pass for him, and he should recover seisin; and if he had no right the land should accrue to the next lord of the fee, if he demanded it within a year of the time of the inquest taken, &c.
The next expedient resorted to by the ecclesiastics, to elude the statute of mortmain, was the adoption from the Roman law, of the distinction between the possession of land, and the use or beneficial interest, by obtaining grants, not directly to, but to the use of, their religious houses, and their successors, by which they took the profits. The Clerical Chancellors, who presided at that time, assumed a power of compelling the feoffees to perform the trust which had been reposed in them; by which means the same inconvenience was soon felt by the King and Lords as would have followed from direct alienation in mortmain. Shelford on Mortmain, 16; 2 Inst. 75; 1 Saunders on Uses, 16, 17; 4 ed.
To remedy this abuse, it was enacted by the statute of 15th Richard 2d, ch. 5, “that within a limited time all those who were possessed by feoffment, or by any other means, of lands and tenements, fees, advowsons, or possession of any other kind whatever, to the use of religious people or other spiritual persons, should either regularly convey them in mortmain by the
Up to this time, as Mr. Shelford observes, all the statutes of mortmain, made, relate only to ecclesiastical corporations: civil corporations began now to attract the public attention, and the same inconvenience to be felt from the appropriation of land or tenements by them as by the former. It was therefore enacted by the statute of 15th Richard 2d, ch. 5, “that the same statute should extend and be observed of all lands, tenements, fees, advowsons, and other possessions, purchased or to be purchased, to the use of guilds or fraternities;” and moreover it was assented, “because mayors, bailiffs, and commons of cities, boroughs and other towns, which have a perpetual commonalty, and others, which have offices perpetual, as people of religion; that from henceforth they shall not purchase them, and to their commons or office, upon pain contained in the statute de religiosis; and whereas others be possessed or shall hereafter purchase to their use, and they thereof take the profits, it shall be done in like manner, as is aforesaid of people of religion.”
Another device practised by eccle-siastics, was to get their villains to marry free women, who had inheritances, so that the lands might come to their hands, by the right which the lord had over the property of his villain. The commons, in the 17th year of Richard 2d, petitioned for remedy against this evil, but were answered that sufficient remedy was provided by the statute. Shelford, 182.
Only a spiritual body politic or corporate, having perpetual succession, was capable of an appropriation: the effect of which was to create a'perpetual incumbent with all the temporal rights of the benefice and cure of souls; and therefore, originally, appropriations were made to abbots, priors, deans, prebenda-ries, and such others as could perform divine service. But in progress of time, appropriations were made to orders consisting
It being found that some gifts of lands, not within the statute of mortmain, had very much increased, it was thought expedient to restrain such alienations as eqally prejudicial to the community with those in mortmain: accordingly the statute of 23d Henry 8th, ch. 10, the first act against superstitious uses, was enacted; by which it was provided, “that all assurances and trusts of lands, to the use of parish churches, chapels, churchwardens, guilds, fraternities, commonalties, companies or brotherhoods, erected and made for devotion, or by common assent of the people without any corporation, or to uses to have obits perpetual, or a continual service of a priest forever, or for sixty or eighty years, should be held to be within the mischiefs of alienations in mortmain, and to be utterly void as to such gifts as were made after the first of March in that year, for any term exceeding twenty years from the creation of such uses, and all collateral acts and assurances for evading that act are declared to be utterly void. It appears from this statute, that
In this attitude were the contending parties found at the time of the rupture between Henry the 8th and the Church. The cause of that quarrel and the consequences resulting from it, are too well known to need particular specification: let it suffice, that the property which had got into the religious houses and monasteries was appropriated by him to his own uses. The first statute on this subject was passed in the 27th Henry 8th, ch. 28, by which all monasteries, priories, and other religious houses of the monks, canons and nuns, which had not lands, tenements, rents, tithes, portions, and other heredita-ments, above the clear yearly value of ¿£200, together with all the possessions of such religious houses, were given to the King, his heirs and assigns, forever. The monasteries described by this act are usually called the smaller abbeys. By the second, passed 21st Henry 8th, ch. 18, “all monasteries, priories, nunneries, colleges, hospitals, houses of friars and other religious and ecclesiastical houses and places, and all their manors, lands, tenements, tithes and other hereditaments, which since the 4th day of February, in the 27th Henry 8th, had been dissolved, suppressed, renounced, relinquished, forfeited, given up, or by any other means come to the King, and all other monasteries, &c. and places, which should afterwards happen to be dissolved, suppressed, renounced, relinquished, forfeited, given up, or by any other means come to the King, and all their manors, lands, tenements, &c. and other heredit-aments were vested in the actual seisin and possession of the King, his heirs, successors, &c. forever.”
The Priory or Hospital of St. John of Jerusalem in England and another house belonging to the same order in Ireland were dissolved by the statute of 32d Henry 8th, which was passed expressly for that purpose. The statute of 37th Henry 8th, ch. 4, charged misdemeanors on the priests and governors of chantries; that of their own authority, without the assent of their donors, patrons or founders, they had let leases for life, or terms of years, of their lands, and some had suffered recoveries, levied fees, and made feoffments or other conveyances, contrary
Thus ended this desperate struggle between the temporal powers and the church, which commenced, as we have seen, as early as the reign of Henry 3d, and was ended in the reign of Edward 6th, by a complete and triumphant prostration of a domineering and grasping hierarchy, and the establishment of a system in relation to the conveyance of lands, tenements and hereditaments in perpetuity, which is absolutely necessary to the wellbeing of society, which is still in existence in England, and which was imported by our ancestors into the province of North Carolina, and from thence into the State of Tennessee.
These statutes have not, however, been held applicable to conveyances for charitable uses and trusts, though in most respects liable to the same abuses as conveyances in mortmain, and productive of the like political and civil evils. The only apparent and rational reason why these statutes were not made to embrace such conveyances, would seem to be, that during the dominance of the church of Rome, and pending its struggle with the Kings and Parliament of England, for the right to hold lands in mortmain, conveyances for charitable purposes, as such, were very rare; because the church assumed to be the proper channel through which charities were to be distributed, and were ever ready and able to procure to itself all such conveyances. The history of the law upon this subject prior to the statute of 43 Elizabeth, ch. 4, which is emphatically called the statute of charitable uses, is extremely obscure. We have
Mr. Story further observes in this connexion: “The absence, therefore, of all authority derived from equity decisions, on an occasion where they would probably have been used, if any existed, certainly does very much favor the conclusion of Lord Eldon. If we might hazard a conjecture, it would be, that Porter’s case, having established, that charitable uses, not superstitious, were good at law, the court of chancery, in analogy to cases of other trusts, immediately held the feoffees to such uses, accountable in equity for the due execution of them; and that the inconvenience felt in resorting to this new and anomalous proceeding, from the indefinite nature of some of the uses, gave rise within a very few years to the statute of 43d Elizabeth, ch. 4.”
But be this as it may, (and in our opinion, as before observed, it is a question of little or no importance in the consideration of this case,) it is certain that, under the statute of Elizabeth, the jurisdiction of the Chancellor was greatly enlarged, either by the operation of the statute, or what is more probable, by an assumption of power hitherto unknown in that court, and based uponthat statute, by construction, whether well or ill founded, as Mr. Story observes, is now of no consequence. For, as he again observes, “bills to establish charitable uses might have been introduced by Lord Elesmere about five years before the statute of Elizabeth, which were sustained against feoffees for charitable uses, but not where the donation was to charity generally and no trust estate was interposed, and no legal estate devised, to support the uses; as it is very certain, that at law devises to charitable uses generally, without interposing a trustee, and devises to non-existing corporations, or to an unincorporated society, would have been, and in fact were, held utter
The statute of Elizabeth cured this defect, and provided a new mode of enforcing such uses, by a commission under the direction of a court of chancerjn This brings us to the examination of that statute, and the discussion of the principles introduced by, and the practice under it. This statute, after reciting “that lands, rents, annuities, hereditaments, goods, chattels and stocks of money, had been given and appointed, for various charitable uses, therein enumerated, viz, relief of aged, impotent and poor people, maintenance of sick and maimed soldiers and marines, schools of learning, free schools and scholars in universities, for repair of bridges, ports, havens, causeways, chui'ches, sea banks and highways, for education and preferment of orphans, for or towards relief, stock, or maintenance, for houses of correction, for the marriage of poor maids, for supportation and help of young tradesmen, hadicraftsmen, and persons decayed, for relief or redemption of prisoners or captives, and for aid and ease of any poor inhabitants concerning payments of fifteenths, setting out soldiers and other taxes; which had not been employed according to the charitable intent of the giver and founder thereof, by reason of frauds, breaches of trust, and negligence in those who should pay, deliver and employ the same;” enabled the Lord Chancellor or Keeper of the Great Seal of England, for the time being, “to award commissions into all or any of the parts of the realm respectively, to the bishop of every civil diocese, and his chancellor and other persons, authorizing them, or any four or more of them, to enquire, by a jury of the country and by other means, of all gifts, limitations, assignments and appointments aforesaid; and of the abuses, breaches of trust, negligences, misemployments, not employing, concealing, misconceiving or misgovernment, of any lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money or stocks of money, theretofore or thereafter to be given, limited, appointed oras-signed, for any of the charitable and goodly uses before rehearsed; and after the commissioners, or any four of them, upon calling the parties interested, should make enquiry, by the
In the case of Doe dem. Willard vs. Hawthorn, 2 Barnwell & Alderson, 96, Lord Tenterden seems to have been of opinion, that a trust for supporting a chapel, for a congregation of pro- ■ testants assembling under the patronage of Lady Huntingdon’s college, was a superstitious use within the statute of Henry 8th, ch. 10. So is a legacy for such purposes as the superior of a convent or his successor, should judge most expedient. So is a bequest of legacies to Roman Catholic establishments
There is also a class of cases, in which uses and trusts are neither charitable nor superstitious. A general direction by a testator to apply property for benevolent purposes, or to such objects of benevolence and liberality, as the executor in his own discretion shall most approve of, or in private charity, or for charitable and public uses in general and undefined terms, without naming any specific object, have been held not to create charitable uses. Thus where the testatrix bequeathed all her personal estate to the Bishop of Durham, his executors, &c. upon trust, to pay her debts and legacies, and to dispose of the ultimate residue to such objects of benevolence and liberality, as the Bishop of Durham in his own discretion shall most approve of, — it was said the residue could not be held to be given to charitable purposes; and as the trust was too indefinite to authorize an application to any other purpose, it followed that the residue remained undisposed of, and to be distributed among the next of kin to the testatrix. 9 Vesey, 399.
So when a testator, after the decease of his wife, gave lands to trustees and their heirs upon trust to pay certain legacies', with a power to sell or mortgage, and proceeded thus: “The surplus or reversion of said messuage, &c. and premises, after my said debts and legacies are so discharged, to be applied to the said trustees and the officiating ministers of the congregation: or assembly of the people called Methodists, that now usually or that shall for the time being assemble at Longford in Fbleshill, as they shall from time to time think fit to apply the same. To which purpose I will and devise, that when any two or more of my said trustees shall die, the survivors or survivor shall, from time to time, nominate or appoint others.” Lord Elenborough, 0. J. said, that it was nothing like a devise to charitable uses, for the trustees might apply the estate to any use they thought fit, the will not aiming to confine them to apply it to charitable uses, although it might be supposed that the
So a bequest to three persons and their executors and administrators, “in trust, to be by them applied and disposed of for and to such benevolent purposes as they in their integrity and discretion may unanimously agree on,” was held not to amount to a charitable use. James vs. Allen, 3 Mer. 17.
In order to create a charitable use, the general principle is, that the trust must be of such a tangible nature, that the court can deal with it: when it is mixed up with general moral duty, it is not the subject of the jurisdiction of a court of chancery. Shelford on Mortmain, 85.
A devise of money to be given in private charity, was held not to be sufficiently definite to give the crown jurisdiction, or to enable the court to execute the trust. Ommanney vs. Butcher, Tur. & Russ. 260.
A great many other cases of like character may be found in the 2nd section of Shelford on Mortmain, 83. These are sufficient for the purposes for which .they were designed. The charitable use under the statute, being in existence, and the power of the chancellor in England -to protect and enforce it being granted, the next subject of enquiry is, how this power is exercised. His jurisdiction upon the subject seems to be derived from three sources: 1st, As a representative of the crown: 2nd, Under the statute of Elizabeth, which is personal, and not exercised in virtue of his ordinary or extraordinary jurisdiction: and 3rd, As a judge exercising inherent power in the execution and administration of uses and trusts, under the extraordinary jurisdiction of the court. These three branches of jurisdiction embrace every ease of charitable donation, cognizable before the chancellor.
Mr. Maddox, in his treatise upon the principles and practice of the High Court of Chancery in England, says, in book 1st, page 1: All matters determinable in the Court of Chancery, may be classed under the one or the other of the following heads: 1st, The common law jurisdiction; 2nd, The equity jurisdiction; 3rd, The statutory- jurisdiction, and 4th, The specially delegated jurisdiction. The first and second are fre
I therefore think that we may safely assume, that the power of the chancellor to decree an execution of a trust for charitable purposes so far as it arises out of his extraordinary jurisdiction, rests upon the same principles as trusts of every other kind and description, and that there must be either a cestui que trust, having sufficient legal capacity to take as devisee, or do-nee, or that there must be a feoffee or trustee, charged with a specific and legal trust, before the jurisdiction can be exercised. The jurisdiction of the chancellor as exercised upon this subject, by the construction of the statute of Elizabeth, and by delegation, is essentially different from that exercised by him under the extraordinary jurisdiction of the court, and is either by virtue of the sign manual of the King, or information by original bill, to which the Attorney General; as representative of the King, is necessarily a party. It becomes necessary to investigate the nature of the King’s power upon this subject, with the view of ascertaining the extent to which it goes, and when it may be exercised by virtue of his sign manual, and when by information by the Attorney General.
Mr. Shelford, in his Treatise upon Mortmain, 268, says: “The protection of several interests is vested in the crown as Parens Patrice, as in the case of charities, infants and lunatics. It is said, that the King, as Parens Patrice, has a superintending power over all charities, abstracted from and antecedent to the statute of 43rd Elizabeth, ch. 4, which paternal care and protection is delegated to thé court of chancery; and therefore, when persons, who are named as trustees to charities, fail in the performance of their duties, either by death or disability, or refusal to act, the constitution has provided a trustee in the person of the King.”
Sir William Blackstone, in the third volume of his Commentaries, 427, observes, that the King, as Parens Patrice, has the general superintendence of all charities, which he now exercises by the keeper of his conscience; and therefore, whenever it is necessary, the Attorney General,-at the relation of some
Mr. Shelford again observes, same work, page 269: “The principal, originally the whole, jurisdiction,'of a court of equity, was the administration of trusts, by protecting not only the visible owner, who alone can proceed at law, but the individual equitably, though not legally, entitled. From that principle arose the practice of administering the trusts of a public charity. Persons possessed of funds appropriated to such purposes, are within the general rule: but no one being entitled by an immediate and peculiar interest, to prefer a complaint for compelling the performance of the obligations of trustees, and to enforce their responsibility, it is the duty of the Crown, as Parens Patrice, to protect property devoted to charitable uses, and that duty is executed by the officer who represents the Crown for all forensic purposes; and on that foundation rests the right of the Attorney General in such cases to obtain by information the interposition of a court of equity.
In the case of Wellbeloved vs. Jones, 1 Sim. & Stew. 40, it was held that the Attorney General is a necessary party to all suits for charitable funds, except where a legacy is given to the officer of an established institution as part of its general funds; and that when a legacy is given for permanent charitable purposes to persons having no corporate character, the court will not, without a reference to the Master, allow the fund to be paid over to those persons, even when they are intrusted by the testator with the management of the fund. The Vice Chancellor said, “The Attorney General must be made a party, because the King, as Parens Patrice, superintends the adminis
Lord Redesdale, in the case of The Corporation of Ludlow vs. Greenhouse, 1 Bligh.N. S. 48, said, “That the ground stated in all the books is this, that the King is to be considered as the Parens Patrice; that he is the protector of every part of his subjects; and that therefore it is the duty of his officer, the Attorney General, to see that justice is done to every part of those subjects. It would be highly improper for the Attorney General, assisting in that character, to press harder upon one party than on another. It is his duty to see that justice is done, and it was for that purpose that informations in the name of the Attorney General were presented, for the purpose of carrying into execution charitable dispositions, or for providing for the due distribution of charitable funds. Relators were required, because the Crown paid no cost. The Attorney General, prosecuting as the officer of the Crown, could not be liable for costs, and a complaint might be made highly oppressive, unless there were some persons responsible for the cost that might be incurred in consequence of the proceeding.”
It was established by three early cases, viz, Attorney General vs. Siderfin, 1 Vernon, 224, Attorney General vs. Matthews, 2 Lev. 167, Clifford vs. Francis, Freem. 320, “that when property was not vested in trustees, and the gift was to a charity generally, not to be ascertained by the act of the individuals referred to, the charity was to be disposed of, or a bill to be preferred in the Attorney General’s name, not by a scheme
Mr. Story, in his work upon Equity Jurisprudence, §1190, says: “The general doctrine in England is, that the King, as Parens Patrice, has a right to guard and enforce all charities of a public nature, by virtue of his general superintending power over the public interest, where no person is intrusted with that right.
Whenever, therefore, money is given to charity, generally and indefinitely, without any trustees pointed out, who are to administer it, there does not seem to be any difficulty in considering it a personal trust devolved upon the King as the constitutional trustee, to be administered by him, through the only proper functionary known to that government, viz, the Lord Chancellor, who is emphatically, for all public purposes of this sort, styled the keeper of his conscience. In such case it is not ordinarily important whether- the Chancellor acts as the special delegate of the Crown, or the King acts under his
The question is, however, of very little importance, for the case now under consideration. All the authorities, and all the comments thereon, clearly establish the position, that, be" it by the one or be it by the other, it is a prerogative exercise of power: in the one case by the King himself in person, by virtue of his sign manual, and in the other by the Chancellor, by virtue of the prerogative delegated to him, and upon information received through the Attorney General.
Mr. Story, in §1188 of his work upon Equity Jurisprudence, says: “The jurisdiction exercised by the Chancellor under the statute of 43 Elizabeth, ch. 4, over charitable uses, is held to be personal in him and not exercised in virtue of his ordinary or extraordinary jurisdiction in chancery, and in this respect resembles the jurisdiction exercised by him in the cases of idiots and lunatics, which is exercised purely as the delegate of the Crown. 3 Blacks. Com. 427, 428.
Mr. Maddox, in his work upon Chancery, 2nd vol. 721, says: “The administration of idiots and lunatics by the Chancellor,, is in virtue of personal authority given by the Crown.” 2 Atkins, 553; 19 Vesey, 122.
Mr. Story, in §1191 of the same book we have so frequently quoted, observes: “But when a charity is definite in its objects, and lawful in its creation, and is to be executed and regulated by trustees, whether they are private individuals or a corporation, then the administration properly belongs to such trustees: the King, as Parens Patrice, has no general authority to regulate or control the administration of the funds.” The same author also says, in §1141, that “the construction of char
As has been heretofore observed, the conveying of lands to charitable uses is certainly liable, in many respects, to the same objections and the same abuses, as conveyances in mortmain: accordingly we find that the statute of 9th George 2nd, ch. 26, has been passed upon the subject, not indeed prohibiting such conveyances, but restraining them.' This statute, after reciting “that gifts or alienations of lands in mortmain were prohibited by Magna Charla, and other wholesome laws, as prejudicial to the common utility, and that such public mischief had greatly increased, by many large and improvident dispositions, made by languishing or dying persons to charitable uses, to take place after their deaths, to the disherison of their lawful heirs, enacts, that after the 24th day of June, 1736, no lands or heredita-ments whatsoever, nor any sums of money, or an}r other personal estate whatsoever, to be laid out or disposed of, in the purchase of any lands or hereditaments, should be given, or in any other way conveyed to, any person or persons, body politic or corporate or otherwise, for any estate or interest whatsoever, or any ways charged or encumbered, by any person or persons whatever, in trust or for the benefit of any charitable use whatever; unless such gift or conveyance of any such lands or here-ditaments, sums of money or personal estate, (other than stocks in the public funds,) be made by deed executed in the presence of any two or more creditable witnesses, twelve calendar months before the death of such donor or grantor, and be enrolled in the Court of Chancery within six months next after the execution thereof; and unless the same be made to take effect in possession, for the charitable use intended, immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, or agreement whatsoever, for the benefit of the donor or grantor, or of any person claiming under them: and declares all gifts, grants,
Although this statute contains no express words prohibiting a bequest of money, to be produeéd by the sale' of lands, for charitable purposes, yet it is settled by construction, that such bequest is within the spirit and meaning of the law. Thus where a testator devises all his real estate to his executors, in trust, to sell, and after the payment of certain legacies bequeathed, the money to arise by the sale of his real estate, and the intermediate rents, and all his personal estate, to his executors in trust, to pay one moiety, to the Governor of Bethlehem Hospital, for the support and benefit of the incurable lunatics, and the other half to the Treasurer of St. George’s Hospital, to be applied in carrying into effect the designs of that Hospital. The case was held to be clearly within the act, which prevents both the conveyance of land, and the charging of land for charitable purposes. Ambl. 20 — See also 2 Vesey, Sen., 52: Shel-ford on Mort. 165. Such it seems to me is the common and statute law of England upon the subject of charitable uses.
Let us endeavor to reduce it to a few general propositions, so far as it is applicable to the present case.
Devises or donations to charitable purposes, are not within the operation of the statutes of Mortmain. If the charity be created either by devise or deed, it must be in favor of a person having sufficient capacity to take as devisee or donee, or if it be not to such person, it must be definite in its object, and lawful in its creation, and to be executed and regulated by trustees, before the Court of Chancery can, by virtue of its extraordinary jurisdiction, interfere in its execution. All charities, not supported by trustees, (unless in favor of an individual
The second proposition to be discussed is, what portions of the law, as thus fixed in England, are in force and obligatory in the State of Tennessee.
The 1st Statute (and the only one necessary to be examined for the present purpose) establishing and defining the jurisdiction of the Court of Chancery in North Carolina, was passed in 1782, ch. 11. After the preamble, that courts of law, as at present established, are not equal to the redress of all kinds of injuries, but many innocent men are withheld from their just rights, and some deprived of them altogether, for want of a Court or Courts of Equity, it provides, “That from and after the present session of the General Assembly, each Superior Court of law in this State, shall also be made and act as a Court of Equity for the same district, and possess all the power and authority within the same, that the Court of Chancery, which was formerly held in this State under the late Government, used and exercised, and that are properly and rightfully incident to such a court, agreeable to the laws in force in this State, and not inconsistent with our present constitution.”
What were the powers and authorities used and exercised by the Court of Chancery, held in the Colonial Government of the Province of North Carolina, we have now no means of ascertaining. The probability is, that they did not embrace, either the ordinary jurisdiction of the Chancellor in England,
But it has been urged, the statute of 43d Eliza, ch, 4, is in full force in this State, and that under its provisions the jurisdiction contended for is in existence. To this proposition I cannot accede; because, in the first place, to say the least of it, it is very doubtful, whether this branch of the Chancellor’s jurisdiction could have been derived therefrom; it certainly was not, unless it were by usurped construction; for this statute, as has been observed, was entirely of a remedial character, and only contemplated a speedy and effectual remedy for the abuse of trusts for charitable purposes, which had been or might be created, viz, by commission, under the superintendence and control of the Chancellor.
The powers given by the statute of 43d Eliz. ch. 4, have;
By'the 2d section of our Bill of Rights, it is provided, “That all men shall have a natural and indefeasible right, to worship Almighty God according to the dictates of their conscience; that no man of right can be compelled to attend, erect or support any place of worship, or maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given by law, to any religious establishment, or mode of worship.”
It cannot require argument to show, that the whole distinction existing in England, between trusts, charitable and superstitious, is broken down by this section of our Bill of Rights; and that the ground over which charitable trusts are to be spread, are tremendously extended, if we adopt the English practice upon the subject. Every creed of religion is neces
Now, it may be well doubted, whether the last clause of the devise, viz, “And to be otherwise disposed of as the Tennessee Annual Conference may deem best in their wisdom,”' does not control the preceding claims of the devise to schools and missionary society, and leave it, charity at large, to be disposed of by the Annual Conference of the Methodist Episcopal Church of Tennessee, for “benevolent purposes;” and therefore falling within the class of uses and trusts, not charitable, and not recognized by the Chancery Court of England, of which we have heretofore treated in this opinion sufficiently for the understanding of this proposition. But it is certain, that, put what construction you may upon it most favorable to its maintenance, it must fall within the rule, as established by Lord Eldon, and recognized by Mr. Story, that it is a general indefinite purpose of charity, not fixing itself upon any particular object, and unsupported by trustees to the uses, the disposition and administration of which, in England, would have been by the King under his sign manual, by virtue of his prerogative, as parens
But to illustrate still further. Under what rights do the complainants come into this court? They are not trustees of the charity under the will, and they have no legal or equitable interest in it: it is said by virtue of the act of the Legislature of the State of Tennessee, passed on the 23d day of December, 1841, appointing them trustees' to receive the charity. To this, then, there are two objections.
1st. The charity must stand or fall, as it was found to exist at the death of the testator. If it were not then legal and valid, no subsequent statute of the legislature can make it good, as it would be legislative action upon a subject beyond its control.
2nd. Because the act of 184Í is unconstitutional and void, under the 7th section of the 11th article of our amended Constitution, which provides, “That the legislature shall have no power to pass any law for the benefit of individuals, inconsistent with the general laws of the land, nor to pass any law granting to any individuals, rights, privileges, immunities or exemptions, other than such as may be by the same law extended to any member of the community, who may be able to bring himself within the provisions of this law.”
But it has been contended, that the executor of the will in this case is the trustee for the charity. This clearly is not so. He is directed to pay it to the Tennessee Annual Conference of the Methodist Episcopal Church, which is to appropriate it as devised. This would constitute the Tennessee Conference of the Methodist Episcopal Church the trustees for the charity, if it could legally be so, which it cannot, from not being incorporated, and cannot therefore be looked upon by this court as having any legal existence whatever.
I have not deemed it necessary to enter into an examination of the American authorities upon this subject; they certainly do not conflict with the general views of this opinion, upon the nature and the source of the jurisdiction of the Chancellor in England in enforcing charities, viz, delegated prerogative. The Assistant Vice Chancellor of New York, in the conclusion of his elaborate opinion in the case of Wright and others vs. The
Upon the whole, therefore, I consider the devise void and inoperative; that the-executor holds the proceeds under it, as he does the balance of the estate, subject to distribution among those entitled to it by the law; and am, therefore, in favor of sustaining the demurrer and dismissing the bill with costs.
Judge Reese delivered a verbal opinion, in which he concurred in the general propositions laid down in the opinion de
delivered the following opinion.
This is a bill filed by A. L. P. Green and others, Trustees appointed by an act of the General Assembly of the State of Tennessee, in December 1841, for the purpose of receiving the donation under the will of William Wright, deceased, and as members of the Tennessee Conference of the Methodist Episcopal Church, in behalf and by order of the Conference, and Robert R. Roberts, President of the Missionary Society of the Methodist Episcopal Church, and Senior Bishop of said Church in behalf of said Society, against the Executor and heirs at law of William Wright, deceased.
The object of the bill is, to establish the validity of the bequests contained in the will, to the Tennessee Conference and to the Missionary Society of the Methodist Episcopal Church; and that the Executor may account to complainants, in behalf of the Conference and Society, for that portion of the fund which has been bequeathed to them; and they pray for general relief.'
It appears from the exhibits in the bill, that the boundaries of the Tennessee Annual Conference-include Middle Tennessee and North Alabama.
It also appears, that the Conference consists of all the travel-ling Preachers who are in full connection, and those who are to be received into full connection with that body; that the Methodist Episcopal Church consists of 34 Annual Conferences, and that the Tennessee Conference was organized more than thirty-one years ago.
It also appears, that the Missionary Society of the Methodist Episcopal Church, has its annual election of officers in the city of New York, and that it is managed by a President, Vice President, Treasurer and Assistant Treasurer, Secretary and thirty-two Managers — and that the Association is established for the purpose of enabling the several Annual ■ Conferences
It also appears, that the Board has authority to appropriate money to defray incidental expenses; to provide for the support of superannuated missionaries, widows and orphans of missionaries, who may not be provided for by the Annual Conferences; to print books at their own press for the benefit of Indian and other Foreign Missions, &c.
The defendants demurred to the bill in the court below; the Chancellor sustained the demurrer and dismissed the bill, from which complainants appealed to this court.
The provisions of the will, which is dated 25th July, 1840, so far as this case is concerned, are as follows:
Item 4th. “I desire that my mill, with the appurtenances thereto, and all and every species of property found in my possession at my death, not otherwise disposed of, shall be sold.
Item 5th. “I desire that one-fourth of the money arising from the sale of all the property disposed of as above mentioned, shall be given to the Tennessee Annual Conference of the Methodist Episcopal Church, for the benefit of Institutions of learning under the superintendence of said Conference, and to the Missionary Society of the Methodist Episcopal Church, and to be otherwise disposed of as the Tennessee Annual Conference may deem best in their wisdom.
Item. 7. “Heave my trusty friend, Nathaniel H. Allen, executor to this-my last will and testament.”
This will was made by a competent testator, has been executed according to all the forms of law, and regularly admitted to probate in the county of Montgomery, where the testator died, at the August term, 1840, of the court, and the question now is, shall this bequest contained in it be sustained?
The questions involved here, are of deep interest; they have been discussed by the counsel, with signal ability, and I have given them a laborious and careful examination.
The general and obvious rule, which has always governed the courts, is to endeavor to carry into effect the intention of the
And I would remark in the outset, that we are not involved here in any discussion in regard to perpetuities, or the conveyance of real estate, for the express direction of the testator to sell tbe property, and to pay over the proceeds of the sale to the objects specified in the 5th and a.subsequent clause in the will, has changed the character of the real estate and converted it into personalty. It operates as <!a conversion out and out,” and makes the question here, solely one in reference to the bequest of personal property. It is said by Sir William Grant, blaster of the Rolls, in Berry vs. Usher, 11 Ves. 91, that where it clearly appears to have been the intention of the testator, to impress upon real estate the character of personal estate to all intents and purposes, the mere appointment of an executor will be sufficient to carry that property to him either for his own benefit, in cases where he is beneficially entitled to the personal estate, or as a trustee for others, where he holds the personal estate on the like trust. See 1 Roper on Legacies, 341, et seq. 1 Williams on Ex’rs, 417, 418.
This brings us to the important question whether this is a good bequest contained in this will, and whether it is of such a
And, 1st. In regard to the objects of the bequest. It cannot be denied that they are of the most beneficent character. It is for the benefit of institutions of learning under the superintendence of the Tennessee Annual Conference of the Methodist Episcopal Church, and to the Missionary Society of the Methodist Episcopal Church. In other words, the object of the testator, in making the bequest, is to advance the cause of human learning, together with the spread of the Gospel, and the consequent improvement and amelioration of our race. Letters promote civilization, and when connected with the Christian religion in all its unapproachable beauty and grandeur, the result is the highest and most perfect state of human society. According to Lord Coke, in Porter's case, 1 Coke, part 1, p. 24, there was no time so barbarous as to abolish learning and knowledge; much more in this enlightened day, do they demand encouragement and support from every virtuous citizen.
We need not go back to a remote antiquity for authority upon this subject, for we find these principles incorporated into odr fundamental laws. So strongly impressed were the framers of the amended Constitution of Tennessee, with the importance of these objects,' that by an express provision, they made it “the duty of the General Assembly, in all future periods of this Government, to cherish literature and science.” See Art. 11, sec. 10. This to be sure is merely a direction to the legislature, but it nevertheless indicates the popular feeling and the public policy upon this great question.
The act too of the General Assembly of the State, passed in December 1841, (See Acts of Tennessee, 1841-2, p. 23,) appointing trustees to receive and administer this charity, although not to be regarded for any other purpose, may still be appealed to, as furnishing evidence in favor of the- character of the bequests contained in the will.
In the Constitution of the United States, (amendments, Art. 1, sec. 1,) is the following provision: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” And in the Declaration of Rights, pre
But although the object of the bequest is such a one as must commend itself to the regard of an enlightened judiciary, being unquestionably for pious and charitable uses, according to all the authorities, the important enquiry still remains, whether the testator has made this disposition in such a way that it is valid and can be enforced by this court?
The argument on the part of the defendants, is,
1st. That these Societies, to whom the bequest is made, are mere voluntary associations, unincorporated, and not capable in the law of taking the bequest, and that the same is therefore void. And
2nd. That there are no trustees created by the will; no legatee to take; nor any trust declared with sufficient certainty, nor the manner of its execution, but that it is altogether vague and indefinite, resting upon an arbitrary and uncontrolled discretion; and consequently invalid and not to be enforced in a •Court of Equity.
And this brings me to the next question which I propose to examine, which is, whether this court by virtue of its common law powers, independent of the Statute of 43 Elizabeth, ch. 4, in regard to charitable uses, has not the power to execute and enforce the trusts contained in this will? Upon principle it would seem, that a Court of Equity must possess the power independent of positive statute, for one of the most fruitful, as well as acknowledged sources of equity jurisdiction, has always been the execution of the trusts of a will or other instrument, according to the intention expressed in that will or instrument.
That a trust was intended to be created by the testator there can be no question. He directs that one-fourth of the money arising from the sale of the property mentioned, “shall be given to the Tennessee Annual Conference of the Methodist Episcopal Church for the benefit of Institutions of learning under the superintendence of said Conference.” Here the fund is pointed out, the object to which it is to be applied, and the body which is to have the control and superintendence of the same. What more is necessary to constitute a good and valid trust? Is it to be expected that a man, by his will, would point out the exact specific application of the fund?
The bequest adds, “And to the Missionary Society of the Methodist Episcopal Church.” This Association is described with sufficient accuracy to be clearly understood, which is all that is necessary. See 4 Wheat. 28. It is true there is no specific direction given in regard to the application of this part of the fund, except in the language before-mentioned — nor was
It is true that the will proceeds, “And to be otherwise disposed of as the Tennessee Annual Conference may deem best in their wisdom.” But I take it this general, indefinite direction, cannot control or render nugatory the direct and specific appropriation of the fund which had been before made. It is a rule, that general words in a will may be restrained to make the whole will consistent. 6 Ves. Jr. 129: 7 ditto, 403: 10 do. 595: 7 Bacon, 341. And again: general and doubtful words in a will shall not alter an express devise before, nor carry any thing contrary to the apparent intent. 7 Bac. 342. Nor can
It seems to me, then, upon principle, that this is a good trust, created by the will; it has been defined with sufficient certainty, the property and the way it is to go indicated, which the court can see, and by virtue of its general jurisdiction over trusts, enforce the same, and cause the fund to be applied to the objects intended. Even if no trustee was appointed, or the trustee was incompetent to take, the bequest would not upon that account fail, for it is the trust and not the trustee that gives a Court of Equity jurisdiction, and when necessary the court will appoint a trustee to execute the trust. 4 Dana, 358, Moore vs. Moore: 9 Cowen, 484, McCartee vs. Orphan Asylum Society: 3 Edwards, 79: 2 Peters, 583: 2 Kent, 286, note, 288, note: 7 Vermont, 294: 3 Yerg. 268.
In this case however, as it is believed, the executor has full authority under the will to sell and convert the estate into money, and that he will then hold the fund as trustee for the legatees. 3 John. Ch. 215: 10 Yerg. 104: 4 Dana, 358: 2 Peere Williams, 211: 1 Atk. 458. And when the fund is paid over by the executor to the proper officer of the different Societies, these Societies will then hold the fund as trustees for the purpose of carrying into effect the declared intention of the testator.
I will now proceed to examine this upon authority. In the opinion of distinguished jurists, the leading principles in regard to charities have been drawn from the civil law and en-grafted into the common law. This was the opinion of Lord Thurlow, in White vs. White, 1 Br. Ch. Cas. 12; and that of Lord Eldon, in Moggridge vs. Thackwell, 7 Ves. 36, 69; and likewise of Mr. Justice Story, 2 Story’s Eq. 489. These principles, however, may no doubt be traced to a still higher source, the Christian religion, and were engrafted from that upon the civil law. See 1 Hoffman, 245. And from the time of Justinian, it became a fixed maxim of Roman jurisprudence, that
The sources of information in regard to the early exercise of powers by a Court of Chancery are necessarily very obscure, as the-Reports of adjudged cases in chancery are exceedingly imperfect until after the restoration. 1 Kent, 492, Sarah Zane's will, 50. But still there is the highest authority in favor of the original, inherent, and necessary jurisdiction of a Court of Chancery over bequests and devises in trust for charities as well as other objects. Lord Northington in the case of the Attorney General vs. Tancred, 1 Eden, 10, 1 Wm. Black. Rep. 91, states it to have been the uniform rule of the Court of Chancery before, as well as at and after the Statute of Elizabeth, when the uses were charitable; and the grantor competent to convey, to aid even a defective conveyance to uses. Sir Joseph Jekyll, in Eyre vs. Countess of Shaftslury, 2 Peere Wms., 119, speaks of it as “an original right” in a Court of Chancery, and 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.” Lord Chancellor Somers, in the case of Falkland vs. Bertie, 2 Vernon, 342, speaking of things that fall under the care and direction of a Court of Chancery, among others, mentions that of “charities.” Lord Redesdale, in the case of the Attorney General vs. Mayor of Dublin, 1 Bligh’s Rep. 347, in speaking of the Satute of Elizabeth, with respect to charitable uses, says, “That statute only created a new jurisdiction; it created no new law. It created a new and auxiliary jurisdiction, a jurisdiction created by commission, &c.; but the proceedings of that commission were made subject to appeal to the Lord Chancellor,” &c. In Duke on Char, uses,
I deom it unnecessary to refer minutely to all the cases that have been decided by the English courts, where charities have been sustained upon common law principles, and under the general powers of a Court of Equity,independent of the statuteof 43 Elizabeth. A brief reference to a few others must suffice. The case of Mayor and Burgesses of Reading vs. Lane, 43 Elizabeth, Tothill 34, was a devise to the poor people maintained in the hospital of the Parish of St. Lawrence in Reading forever. This was sustained. See too the case of Palmer vs. Newman, 21 and 2 of Car. 2, 1 Ch. Cas. 157, in which it was declared by the court, that the King as pater patria might inform for any public benefit for charitable uses, before the statute for charitable uses. Also the Attorney General vs. Combe, in 1679, 2 Do. 18, where a devise to charity was decreed, which was not within the statute of 43 Elizabeth. Also the Poor of the Parish of Dunstan vs. Beauchamp, 1 Ch. Cas. 193. The decree had been made by commissioners upon the statute
In addition to the foregoing I would remark, that a work has been published in England, under the authority of the Commissioners of Public Records, called “A Calendar of the Proceedings in Chancery in the reign of Queen Elizabeth, to which are prefixed examples of earlier proceedings in that court, from the reign of Richard 2d, to that of Queen-Elizabeth, inclusive,”’ which furnishes the most conclusive evidence of the correctness of the position here assumed. From this it appears, that the jurisdiction of a Court of Chancery in matters of trust, was fully established as early as the reign of Henry 6th, nearly a century and a half before the Statute of Elizabeth. (See a notice of this work in the London Jurist, 348, et seq.) Ai.d if in ordinary trusts, most assuredly the most important and highly favored of all trusts, that of charities, could not be excluded. Indeed two of the cases in that reign, are charities under a will, to wit, the case of Babington vs. Gall, and Wakening vs. Bayle. Vol. 1, p. 56-7. In the first case, the bill states, that plaintiff’s mother had placed 600 marks in defendant’s hands for the purpose of founding a chantry in the Church of St. Peters. The answer admits the trust, but adds, that if the endowment of the chantry was not completed within four years, the money was to be applied to other purposes, and concludes
The principles involved in this case have been examined by Mr. Justice Baldwin of the Supreme Court of the United States, with unequalled learning and research, in the case of Sarah Zane's will, which was decided in 1833. She was of the city of Philadelphia, and among other things, made a bequest to the Society of Friends in the city of Philadelphia, for the relief of the poor members thereof — to that in Baltimore, towards their “stock,” which was applied to the printing of books of a religious character, &c. — and to that in Virginia, towards the
Questions in regard to charities have frequently come before the-enlightened courts of the state of New York. In Potter vs. Chapin, 6 Paige, 649, the Chancellor says: “although some doubt was thrown upon the question of charitable donations for the benefit of a community or body not incorporated so as to be capable of taking and conveying the legal title to property by the decision of the Supreme Court of the United States in the case of The Baptist Association vs. Haris Executors, 4 Wheat. 1, I believe it is generally admitted that the decision in that case was wrong. And it may now be considered as an established principle of American law, that the Court of Chancery
In 7 Paige, 79, Dutch Church vs. Mott, it is decided that the statute of Elizabeth relative to charitable uses was never in force in the state of New York. But independently of that statute, the. Court of Chancery had an original jurisdiction to enforce and compel the performance of trusts for pious and charitable uses.
The case of King vs. Woodhull, 3 Edwards, 79, was decided by the Vice Chancellor of the State of New York. That was a bequest not to a trustee, but immediate, to an unincorporated voluntary association, the Home Missionary Society, where neither the object of the bequest was specified, nor any purposes to which the money was to be applied. The Vice Chancellor •says, the testatrix must be supposed to know the purposes for which the society was formed, and to what objects and uses its funds were applied; that it was manifestly her intention to aid the funds of the society and promote its usefulness by the donation; that by looking into the fundamental articles of the society, the objects of it may be seen and understood — (which were to afford assistance to religious congregations which were unable to support a gospel ministry, and to send the gospel to the destitute within the United States) — and that it will thus be seen to be a public charity neither inconsistent with law nor against public policy. And he sustained the bequest, upon the general jurisdiction of the court independent of the statute of 43 Elizabeth — and the money was directed to be paid by the executors to the treasurer of the society as a valid bequest to a charitable use.
In Coggeshall vs. Pelton, 7 Johns, ch. 292, a pecuniary legacy to the town of New Rochelle for the purpose of erecting a town house for transacting town business, although no trustee was named, was held valid as a charitable bequest, in the exercise of the common law powers and jurisdiction of the court.
In Pennsylvania, where it has been decided that the statute of 43 Elizabeth, ch. 4, is not in force, it was held that a bequest “to St Michael’s and Zion’s Churches,” to be laid out in bread annually for ten years “for the poor of the Lutheran congrega» lion,” and likewise a bequest for the education of young students in the ministry of the German Lutheran congregation, were good. The Chief Justice, in delivering his opinion, seems inclined to go further than they have in England in adjudicating upon that statute; for he intimates that a bequest such as in Morrice vs. The Bishop of Durham, 9 Ves. 399, would be supported by that court. The Chief Justice adds: “It is immaterial whether the person to take be in esse-or not, or whether the legatee were at the time of the bequest a corporation capable of taking, or not, or how uncertain the objects may be, provided there be a discretionary power vested any where over the application of the testator’s bounty to those objects. If the intention sufficiently appears in the bequest, it would be held valid.” Wilman vs. Lex, 17 Serg. & Rawles, 93.
In Massachusetts, similar adjudications have been made. Burbank vs. Whitney, 24 Pick. 146, was a bequest to the Amor-
In 7 Vermont Reports, 241, is an important case which was well considered by the Chancellor — the case of the Executors of Burr vs. Smith and others, and which grew out of a bequest to the American Bible Society and other unincorporated societies. The form of the bequest was to “the treasurer for the time being of the American Bible Society,” &c. It was held that courts of chancery had jurisdiction of bequests to charitable uses, before the statute of-43 Elizabeth, by virtue of their equity jurisdiction, and that a gift to a charitable use might be decreed, notwithstanding the objects were vague and indefinite and the persons who were to carry into effect the intent of the testator, were a society unincorporated. The Chancellor sustains the bequest. He says' that societies or bodies of men unincorporated have ever been considered, at common law, as capable
In Kentucky, it was held in the case of Moore's heirs vs. Moore's devisees and executors, 4 Dana, 354, that a devise to the County Court of Harrison of a fund to educate poor orphans,, is not illegal,, nor void for uncertainty, when tested by the rules of the common law alone, but might be enforced independently of any English statute; that the case was not prerogative but judicial and equitable. It was likewise held that the statute of Elizabeth so far as relates to giving validity to gifts for charitable uses, was in force in Kentucky, though so far as the remedy was concerned, the appointment of commissioners, it was not applicable to' their institutions, and therefore not in force there.
In North Carolina, 1 Hawke’s Law and Eq. Reports, Griffin vs. Graham, 97, it was held that the statute of 43 Elizabeth, was in force in that State; but that independent of that statute, the court of equity had jurisdiction. In this case, the object of the bequest was, the establishment of a school for the education and maintenance of poor children, and it was sustained.
I will now notice briefly, the decisions which have been made-by the Supreme Court of the United States upon this question. The case of the Trustees of the Philadelphia Baptist Association vs. Hart's executors, 4 Wheat. 1, arose upon a bequest to “the Baptist Association, that for ordinary meets at Philadelphia-annually,” which was to be a perpetual fund for the education of youths of the Baptist denomination who shall appear promising for the ministry. It was held that the association, not be*-ing incorporated, could not take the trust as a society; that it was likewise void for uncertainty as to the devisees, and could not be established by a court of equity exercising its ordinary
In Beatty vs. Kurtz, 2 Peters, 566, a lot of ground had been marked out by the proprietor, upon the original plan of the town, for the use of the Lutheran Church, a voluntary unincorporated society.' This was sustained in favor of the society upon a bill filed by a committee in behalf of the society.
The case of Inglis vs. The trustees of the Sailor’s Snug Harbor in the city of New York, 3 Peters, 99, was one where the testator gave his estate both real and personal to the Chancellor of the state of New York and the Recorder of the city of New York (and other persons by their official description). and their successors in office, to establish an asylum called “The Sailor’s-Snug Harbor,” for the purpose of maintaining aged and de-crepid sailors. He further directs that if his intention cannot be legally carried out without an act of the legislature, that they shall apply for an act of incorporation. The legislature of the state of New York afterwards incorporated them for the purpose of executing the trusts declared in the will. The court sustained this devise upon common law' principles, and declared this was a valid devise to divest the heir of his legal estate, or at all events to affect the lands in his hands with the trusts declared in the will. The principle of this case, as I think, is directly in conflict with that in 4 Wheat, before referred to. It will be perceived that the object of the bequest, the maintaining aged and decrepid sailors, is quite as vague as the one in that case, and if the bequest to the Baptist Association was invalid in consequence of the incompetency of the trustee to take and manage the fund, the members of the Association continually changing, the same objection would exist. against the persons mentioned here and their successors in office; and if the devise was actually void, which it would have been according to that case, and the property had been vested in the next of kin, it is-clear that no subsequent act of incorporation would divest it.
In Cincinnati vs. White’s lessee, 6 Peters, 431, the court ad
In the case of Vidal et al. vs. Girard's executors, 2 Howard, 128, before referred to, one of the objections to the establishment of the will was, that the beneficiaries who were to receive the benefit of the charity were too uncertain and indefinite for the bequest to have any legal effect. These are declared in the will to be “poor white male orphans between the ages of 6 and 10 years,” first of the city of Philadelphia; 2nd, those born in any other part of Pennsylvania; 3rd, of the city of New York, and lastly those of New Orleans. The court review the case in 4 Wheat, and the authorities on which it was founded, together with the later sources of information upon this question, and come to the conclusion that this is a valid charity independently of the statute of 43 Elizabeth.
Some of the authorities in opposition to this view of the question, have already been sufficiently noticed and commented upon. But we are likewise referred to the case of Holland vs. PecJc, 2 Iredell, 255. In this case the bequest was more general than the present, it being for the benefit-of the Methodist Episcopal Church in America, whereof Francis Asburj at the date of the will was the presiding Bishop; no specific object indicated to which the fund was to be applied, but it was to be disposed of by the Conference or the different members composing the same, as they shall judge most expedient for the spread of the gospel. With all my respect for the character and virtues of Judge Gaston, I do not regard this case as a high authority, for it was evidently not much considered, but little discussion upon principle, and not a single authority from the English law referred to except that of Morrice vs. Bishop of Durham, 9 Ves. 405, nor any of the American cases upon the subject of charities. The reasoning however of the Judge
Another authority relied upon is that of Dashiell vs. Attorney General, 5 Har. & John. 392, decided in Maryland in 1822, where it was held that the statute of 43 Elizabeth, ch. 4, was not in force. In this case, the fund was given to trustees to apply the income to the maintenance and education of the poor children belonging to the congregation of St. Peter’s Protestant Episcopal Church in the city of Baltimore. The bequest was held to be indefinite and void. The court follow the case in 4 Wheat, and say, that before the statute of Elizabeth no charity could have been established where the instrument creating it was defective, or the object of the testator’s bounty so vaguely and imperfectly described as to be incapable of taking if it was not a charity. P. 400.
Á similar decision was made in Virginia, in Gallego’s executors vs. The Attorney General, 3 Leigh, 450, where it was held that the statute of Elizabeth had been repealed and that the Court of Chancery had no jurisdiction to decree charities where the objects'were indefinite and uncertain. The court follow the opinion in 4 Wheat, that there was no common law jurisdiction over devises to charitable uses prior to the statute of Elizabeth.
It must be admitted, however, that there is an irresistible
The conclusion then to which I have come upon this branch of the argument is, without any reference to the statute of Elizabeth, that this is a valid bequest, and that this court can, as a court of equity, by virtue of its common law powers immemorially exercised both in England and in the highest judicial tribunals in the United States, give it effect. This is not by virtue of any prerogative power, which is not claimed for this court. It is not upon the doctrine of cy pres, that if you cannot give effect to the intention of the testator and apply the fund to the charity he intended, the court will then apply it to some other charity as nearly analagous to it as possible, a doctrine which I wholly repudiate; but it is upon the simple judicial power of the court, and which it continually exercises. The executors are the trustees for the legatees entitled to the fund under the will. All that this court are required to do, is to declare the validity of the bequest, and to direct the executor to perform the trust, and to pay over to these societies, or their proper officer to receive it, that portion of the fund to which they are entitled, or to give a decree against him for the amount. There is no necessity for any scheme to be reported by the Master, in regard to the application of the fund, or the objects to which it is to be appropriated. These societies are fully competent to form a scheme for its administration. The testator was willing to intrust it to them, and so may this court be. We cannot suppose there will be a breach of trust on the part of these societies, in the management or application of the fund. If there is, when such a case occurs, it will be time enough then to investigate it, and to give relief as in other cases of breach of trust.
With the view ■ here taken of the validity of this bequest and of the power of this court to give it effect upon common law principles, it is perhaps not indispensable to enquire further, whether the statute of 43 Elizabeth, ch. 4, in regard to charitable uses, is in force in this State. But as that question is directly made here, and in one point of view would relieve
In addition to that, by express legislative enactment in North Carolina in 1778, chap. 5, (Nicholson & Caruthers, 438,) which is in force here, all such statutes and parts of the common law as' are not inconsistent with the freedom and independence of the State and our form of government, and which have not been otherwise provided for, nor abrogated or repealed, or become obsolete, are declared to be in full force within the State. These statutes are those which were passed previously to the date of the charter before referred to. 1 Tenn. 154.
Let us look then at this statute of Elizabeth and examine its provisions so far as this case is concerned. It recites in substance, that lands, tenements, rents, annuities, profits, heredita-ments, goods, chattels, money and stocks of money, had been before given, limited, appointed and assigned, by well disposed persons; “some for relief of aged, impotent and poor people, some for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities; some for repair of bridges, ports, havens, causeways, ■churches, sea-banks and highways; some for education and preferment of orphans,” &c.; and that the same “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.”
Now, so far as regards the main object of the act, which was the protection of the charities there mentioned, it cannot but be regarded as equally important in the Colonies, with the Mother Country, so far as they had charities which required protection — and so likewise in the State of North Carolina, after she became a State. The statute upon its face does not purport to give any new jurisdiction over charities to the Court of Chancery, which it did not before possess; but on the contrary recognizes the existing power of the court, and gives an additional remedy by the appointment of commissioners. Now, whether the Colony of North Carolina had all the officers mentioned in the act, or whether the peculiar remedy pointed out was ever followed or not, there, is wholly immaterial. The act recognizes the validity of such charities, and the jurisdiction over them of a Court of Chancery, and consequently the Court of Chancery when established in the Colony, and afterwards in the State of North Carolina, would have the right to protect such charities in any way consistent with the acknowledged powers of a Court of Chancery. It is known too as matter of history, that the Colony of North Carolina had a Court of
I take it, then, that this Statute of Elizabeth, must be regarded in force here, so far as any question growing out of it is involved in this cause, that is, to the extent of giving protection to charities, for in that regard it is eminently liberal, and in accordance with the spirit of our free institutions.
To proceed, then, with the statute. So far as regards the uses in the will, it is not denied that they are charitable within the statute. See 2 Story, 511-12. It only remains then, to en-quire whether the bequests are valid and protected by the statute. It is said, if the statute is in force here, that we .ought to look rather at the plain meaning of the act, than to the extravagant constructions which have been placed upon it by the English courts, and the Judges of some of our own States. It is true that these decisions are not binding upon this eourt, but at the same time I know of no reason why we should disregard the opinions of the master minds of English and American jurisprudence upon the construction of an English statute, which is in force here, to the extent indicated, when it is upon a subject upon which we have not legislated, and when upon other subjects we give their opinions the most respectful consideration.
But let us look at the act itself, not forgetting, however, the favor with which charities have always been regarded, and that the construction, therefore, upon a statute in reference to them should be a liberal one. Now, the objection here is, as before
With regard to the other objection to the vagueness and indefiniteness of the bequest, that the beneficiaries are not designated,'nor the precise manner of the application of the fund indicated, — is this necessary under the statute? Is the charity required to be defined with technical accuracy in order to make it valid? That is not required, either by the language or the spirit of the act. From the nature of things, from the kind of charities to be protected, they must be to some extent vague and indefinite. Suppose the charity was for the education and preferment of orphans, how could they be designated in the will? It is for a free school, or school of learning — why require anything more? The statute does not. And would not the attempt at specification under the circumstances in which wills are usually made, defeat the very object they were intended to advance? Is it to a missionary society, the object of whose labors, is the spread of the Gospel bv means of missionary schools and missions, printing books for the benefit of those schools, &c., which is within the acknowledged equity of the
But it is time to refer to some of the decisions under this statute. In the case before referred to of The Philadelphia, Baptist Association vs. Hart's Ex'rs, 4 Wheat. 1, the Chief Justice admits, p. 29, that that is a legacy which would be sustained in England under the statute of Elizabeth. It is very certain, that gifts to unincorporated societies were good and protected by the act. In the case of Waller vs. Childs, Ambler, 524, the fund was for the benefit of poor dissenting ministers, to be paid to the Treasurer of the Societies. A bill was filed by the heir at law, to set aside the charitable bequests. It was held, that the bequests were good. The case of Baylis and Church vs. The Attorney General, 2 Atk. 239, is the case of a bequest to the Aldermen and inhabitants of a ward, who were not a corporation. Lord Chancellor Hardwicke decreed, that the money might, from time to time, be disposed of in such charities as the Aldermen, for the time being, and the principal inhabitants should think most beneficial to the ward. Story recognizes it as a settled principle, that a bequest to an unincorporated society is good. 2 Story’s Eq. Juris. 515.
In Attorney General vs. Clark, Ambler, 422, George Cranstown, by will, gave the interest of ¿£4,200 bank annuities to the poor inhabitants of St. Leonard, Shoreditch. A bill was filed to establish the charity. It was insisted that the bequest was void for uncertainty, but it was sustained by Sir Thomas Clarke, Master of the Rolls. In White vs. White, 7 Ves. 423,
In Attorney General vs. Hickman, 2 Eq. Cas. Abr. 193, the testator, by a codicil to his will, devised the residue of his estate and effects to be given to such non-conforming ministers as preached God’s word in places where the people are not able to allow them sufficient maintenance, and appointed two persons to have the disposal and appointment of the charity, who died in the life time of the testator. One question was, whether the trustees having died in the life time of the testator, the charity was not gone, and in the nature of a lapsed legacy. It was decided by the Chancellor, Lord King, that the substance of the charity remained, notwithstanding the death of the trustees before the testator, and though at law it was a lapsed legacy, yet in equity it subsisted and was good within the statute of Elizabeth.
Tt is likewise a principle, that the court will in aid of charities supply all defects of conveyances, when the donor hath a capacity and a disposable estate, and his mode of donation does not contravene the provisions of any statute. 2 Story, 518.
In Attorney General vs. Comber, 2 Sim. & Stu. 93, a bequest to the widows and orphans of the Parish of Lindfield, was held to be a good charitable bequest. The Attorney General vs. Stepney, 10 Ves. 22, was a bequest for the use of the Welsh Charity School, and the increase and improvement of Christian knowledge and promoting religion, and to purchase Bibles and other religious books, pamphlets and tracts as the trustees should think fit, which was sustained. See too Moggridge vs. Thackwell, 7 Ves. 36: Mills vs. Farmer, 1 Merivale, 55, and Attorney General vs. Bishop of Chester, 1 Br. Ch. Cas. 444.
The cases to which we have been referred, that of Morrice vs. Bishop of Durham, 9 Ves. 399: Vesey vs. Jamson, 1 Sim. & Stu. 69: and Williams vs. Kershaw, cited 1 Keen R. 232: 2 Story, 505, which have not been sustained by a Court of Chancery, are not analogous to the present. They were for objects of general benevolence and liberality, and not within the class of cases enumerated in the Statute of Elizabeth, nor within its spirit and meaning, and too indefinite to be executed.’
But it is insisted, that although this charity might be enforced in England, yet it would not be upon the ordinary jurisdiction of a Court of Equity, but upon the personal and prerogative powers of the Chancellor, as the delegate and representative of the Crown, and which powers do not belong to the Chancery Court here. By statute, as before shown, our court of chancery has all the powers which properly and rightfully belong to such a court, and which are not inconsistent with our constitution and laws. And its powers are no doubt as ample as that of the chancery court in England, with no other difference except that which grows out of the difference of our institutions. We have assumed jurisdiction to the fullest extent in all other cases of trust, to protect them and to secure their due execution, and when there has been a refusal or failure on the part of the trustee to execute the trust, this court has executed it. 3 Hump. 251, 442. See too 2 Hump. 367: 3 Yerg. 257: 9 Do. 171. Why shall we stop short in reference to charities, which appeal so strongly to the support of the judiciary? A charity is nothing but a trust, but, as before remarked, the most highly favored of all trusts, being generally for purposes of education or religion. There are no doubt many cases to be found in the English courts, where the Chancellor is regarded as the special delegate of the Crown, administering its peculiar duties and prerogatives. As for instance, where money is given to charity generally and indefinitely, without any particular object designated, or any one appointed to administer it.
In whatever aspect, therefore, I have been enabled to examine this question, I regard the bequests contained in the will as valid, and that they should be sustained by this court.
As it regards the division of the fund between the Tennessee Annual Conference of the Methodist Episcopal Church, and the Missionary Society of the Methodist Episcopal Church, «quality in such a case would be equity, and there must be an equal division of the fund between them. Attorney General vs. Doyley, 7 Ves. 58, note: 10 Do. 538: 6 Paige, 653.
In my opinion, the decree of the Chancellor should be reversed, the demurrer overruled, and the cause remanded for further proceedings.
