18 F. Cas. 130 | U.S. Circuit Court for the District of District of Columbia | 1840
delivered the opinion of the Court, (ThRuston, J., dissenting.)
By the “Declaration of Bights,” prefixed to the Constitution of Maryland, and which was a part of the laws of that State on the 27th of February, 1801, when they were adopted and continued in force in this county, by the Act of Congress of that date, it is declared in section thirty-four :
“ That every gift, sale, or devise of lands, to any minister, public teacher, or preacher of the gospel, as such; or to any religious sect, order, or denomination ; or to, or for the support, use, or benefit of, or in trust for, any minister, public teacher, or preacher of the gospel, as such ; or any religious sect, order, or denomination ; and every gift or sale of goods or chattels to go in succession, or to take place after the death of the seller or donor, to or for such support, use, or benefit; and also every devise of goods or chattels to or for the support, use, or benefit of any minister, public teacher, or preacher of the gospel, as such ; or any religious sect, order, or denomination, without the leave of the legislature, shall be void ; except always any sale, gift, lease, or devise, of any quantity of land, not exceeding two acres, for a church, meeting, or other house of worship, and for a burying-*635 ground, which shall be improved, enjoyed, or used only for such purpose ; or such sale, gift, lease, or devise, shall be void.”
Under this Declaration of Rights, it is admitted, in argument, that the legacies numbered 2, 3, 4, 6, 9, 17,19, 21, 22, and 23, are void, as being made either to some minister of the gospel, as such, or to, or for the use or benefit of some religious sect, order, or denomination, without the leave of the legislature. The legislature, however, is presumed to give leave to the donor to make the gift, when it permits the donee to accept and hold it.
The Sisters of the Visitation of ’Georgetown, and the Sisters of Charity of St. Vincent’s Asylum, in Washington, it is understood, have been incorporated, with powers to take and hold property by devise or bequest. The legacies, therefore, Nos. 15 and 20, are not within the prohibition of the Declaration of Rights.
We have no evidence that the Carmelite Nuns of Baltimore, or the Convent of Dominicans in Bardstown, in Kentucky, have been incorporated with like powers. The legacies, therefore, Nos. 16 and 18, must be considered as within that prohibition, and, therefore, void.
The legacies Nos. 5, 7, 8, 10, 11, 12, 13, and 14, being be queathed to the several legatees personally, by name, and not to them as ministers, are not within the prohibition of the Declaration of Rights, and are valid. One of the remaining disputed legacies is No. 1, of one hundred dollars to the Rev. William McSherry, President of Georgetown College, to be distributed equally among the clergy of said college, for the purpose of having masses offered up for the repose of the soul of the testatrix. This is substantially a bequest to “ the clergymen of the college,” not by name, but as clergymen ; for it was only in that character that they could offer up the sacrifice upon the altar, which the mass is supposed to be.
Another of the remaining disputed legacies is, of one half of the residue of the estate “to go in aid of a new Catholic church in Georgetown.”
This legacy is disputed upon two grounds: 1. Because it is prohibited by the Declaration of Rights ; and ’2. Because it is uncertain who is to claim it. •
We think it void upon one of those grounds, if not upon both. It was intended for the use of a religious sect, order, or denomination ; and if the legatee were sufficiently described, it would still be void under the Declaration of Rights. But the legatee is not sufficiently certain, and therefore, also, it is void.
The remaining disputed legacy is, that the other half of the residue of the estate is “ to go as an endowment in aid of the Georgetown Free School and Orphan Asylum,” which was incor
The annual contributors were to meet in June in every year, and elect nine female managers, whose duties were to be regulated by the by-laws which were to be made by the corporation ; but Ihe meetings of the contributors, and the election of the female board of managers, were not necessary to the existence of the corporation, which was to consist of the board of trustees alone.
It is, however, contended that the corporation never existed, because the charter never was accepted.
It is admitted, in argument, that the persons named in the charter were previously trustees of a school in Georgetown, called “ The Georgetown Free School.” The presumption, from that fact, is, 1hat the charter was granted at their instance; and the presumption, also, is, that a charter is accepted by those who have applied for it, unless, from the terms of the charter itself, it appears, that some act of acceptance is to be done, to give validity or perfection to the act of incorporation. By the present charter no such act was required. The burden of proof, therefore, rests upon the plaintiffs to rebut these presumptions.
In order to do this, they show the minute-book of the proceedings of the board of trustees of the old school, (which existed before the date of the charter,) continued on for four years after that date, that is, until 1837, when their meetings were discontinued.
In the minutes of those proceedings, nothing is said of the charter, nor of the asylum, nor of any meeting of the contributors, nor of an election of a board of female managers, nor of any by-law regulating the duties of that board of managers ; or prescribing the mode of filling vacancies in the board of trustees. Seven years have elapsed since the date of the charter, and nothing appears to have been done to organize the school and asylum under the act of incorporation.
These circumstances seem to us sufficient to rebut the prima fade presumption of acceptance, and we must say, that there is not sufficient evidence that the charter was ever accepted, and conse
The consequence of this opinion, if correct, will be, that" these void legacies will fall into the intestate residuum, to be distributed among the next of kin, according to the statute of distribution.