(December 12, 1889.)

APPEAL by defendant, Henry George, from a decree of the Court of Chancery holding the provision of a certain will, favorable to him, to be void upon a bill filed by the executor for a construction of the will. Reversed.

Statement by Beasley, Ch. J.:

W domicil at the time of his death was in this State. It is dated the 28th day of February, 1887, and it contains a residuary clause that is ser forth at large in the statement of facts prefacing this opinion. In that clause the testator has set apart property to be devoted to the propaga tion of certain designated works, as will hereafter appear, and the question propounded to this court is whether such testamentary disposition is to be established as a charitable use.

"Lastly. All the rest and residue of my estate, of any and every form, kind and de- It is familiar learning that, from the enuscription whatsoever, I hereby give, devise and meration of certain subjects in the Statute of bequeath, under the name of "The Hutchins' Elizabeth, and from the judicial expositions of Fund,' to Henry George, the well-known au- that Act, there have been evolved certain dethor of 'Progress and Poverty,' his heirs, ex- fined classes of testamentary gifts that are now ecutors and administrators, in sacred trust, for universally admitted to be, in the estimation of the express purpose of 'spreading the light' on the law, charitable uses. With regard to such social and political liberty and justice in these classes, debate and doubt have ceased, and conUnited States of America, by means of the sequently all examination of the grounds upon gratuitous, wise, efficient and economically which such classification has been justified conducted distribution all over the land of said would, at the present time, be profitless, and George's publications on the all-important land nothing better than empty pedantry; for it is question, and cognate subjects, including his obvious that the instance now before this court 'Progress and Poverty,' his replies to the criti- belongs, so far as the testamentary intent is cisms thereon, his 'Problems of the Times,' and concerned, to one of such established classes. any other of his books and pamplets which he The testator's direction is that the property may think it wise and proper to gratuitously designated by him shall "constitute a sacred distribute in this country: provided, first, trust, for the express purpose of spreading the that said George, his heirs, executors and ad-light on social and political liberty and justice ministrators shall regularly furnish true annual in these United States of America." That such reports of the management and disbursement a purpose is a charitable use, according to the of the said 'Hutchins' Fund' to the paper called legal import of those terms, is self-evident, in "The Irish World and the American Industrial view of the present state of the decisions on Liberator,' or its acknowledged successor, and that subject. Consequently, if there be any shall also annually mail, or otherwise send, a illegality in this testamentary disposition, of copy of said paper, containing such annual re- necessity it must reside in the methods conport, to each of the following persons, to wit: trived by the testator for the fulfillment of such my afore-mentioned wife, Mary Hutchins, now legitmate purpose. Those methods are deof this place, William S. Wood, now of Parker, scribed by the testator in these words, viz.: County of Randolph, State of Indiana, and "The gratuitous, wise, efficient and economiJames Hutchins, now of Selma, County of cally conducted distribution all over the land Delaware, and State of Indiana: and provided, of said George's publications on the all-importsecond, that said George, his heirs, executors ant land question, and cognate subjects, includand administrators, shall cause to be inserted or ing his Progress and Poverty,' his replies to printed, opposite the title-page of every free criticisms thereon, his 'Problems of the Times,' copy of his books distributed by means of this and any other of his books and pamphlets fund, this, my solemn request, virtually, to wit, which he may think it wise and proper to gratuthat each recipient shall read it, and then cir- itously distribute in this country." culate it among such neighbors or other persons as in his best judgment will make the best use of it. In testimony whereof I have hereunto set my hand and seal, and publish and declare this to be my last will and testament, in the presence of the witnesses named below, this eighth day of September, in the year one thousand eight hundred and eighty-three.

"George Hutchins. [L. s.]"

Messrs. John T. Woodhull, Samuel W. Beldon and James F. Minturn for appellant.

Mr. George A. Vroom for respondent, Braddock.

Messrs. S. C. Woodhull and D. J. Pancoast for Mary Hutchins.

Mr. C. V. D. Joline for James Hutchins.

Beasley, Ch. J., delivered the opinion of the court:

This is an executor's bill, seeking a judicial exposition of the last will which he is called upon to execute. The instrument in question was executed by one George Hutchins, whose

It is now urged that the doctrines taught in the works thus designated are of such a character that the court will not permit their dissemination. The inquiry thus started should be preceded by a consideration of the rule or test applicable in such affairs. It is plain that such rule has but little to do with the ordinary canons of criticism. For present purposes the scientific or literary value of these works are not to enter into the account. If I should say that I have concluded, which is the truth, that these works of Mr. George have greatly elucidated and enriched, in many ways, the subjects of which they treat, and that they are very valuable contributions to the science of economics, it would not be shown that a step had been taken in the path of present duty.

It is not to be doubted that the public circulation, by virtue of a charitable use, of the works of Sir Robert Filmer, which maintain the divine right of kings, would be entitled to the judicial imprimature equally with a treatise on government under the signature of John Locke. It matters not in the least to the judicial inquiry whether the instrumentalities ap

A single glance at the rule of judgment here propounded will suffice to show that it is one of entire novelty. It does not appear to have been suggested, or even alluded to, in any former consideration of the subject. Stripped of unnecessary terms, in its ultimate analysis it promulges this far-reaching principle: that a court of law will not, in view of the purposes for which it was instituted, lend its aid by its decree to the agitation of the question whether the laws which it is in the habit of executing have or have not any better foundation than wrong and injustice. In this analysis I have of course disregarded the presence of the term "robbery" in the foregoing quotation that gives the ratio decidendi in the court below, because I am well aware that the learned vice-chancellor did not put his judgment, either in whole or in part, upon a mere epithet or turn of phrase. I have also put, in a general form, the judicial proposition, because it would be manifestly absurd to declare that the courts will not assist in providing for a discussion of the existing title to land, but that such refusal does not extend to the discussion, in a similar way, of the title to personalty and personal rights. It seems inevitable that the proposed principle of judgment must be applicable to the whole field of established law, if it be applicable to any part of it. And before leaving this formula, that embraces the ground of decision in the court below, it is important to observe that its expressions convey the idea that all that the court does, or is required to do, in these instances, is to refuse to aid in the circulation of the writings that are impugned; but that in this respect they are misleading, for what the court does is to adjudge that it is not permissible for any person to make provision for such circulation.

pointed by the donor to fulfill his purpose be good or bad, fit or unfit; whether they be the best possible or the worst possible. In this particular the largest discretion resides, and properly resides, in the creator of the trust. These public benefactions are properly regarded as matters of great interest to the community; as entitled to the most favorable reception by the courts, and to their amplest protection. It is not surprising therefore, that it has heretofore been understood that the entire restriction imposed by the law on such donations is that comprised in a single sentence: "The writings to be circulated must not be, when considered with respect to their purpose and general tendency, hostile to religion, to law or to morals." The rule, in this definite form, in my opinion, has been by repeated adjudications thoroughly established; and the only difficulty inherent in the subject is to properly select the writings to which it is applicable. Regarding, then, this principle of proscription as settled, the question arises, Has it been | applied by the vice-chancellor in the present instance? It has not been, and could not be, reasonably alleged that the writings now in question are either sacrilegious or immoral; but the argument proceeds exclusively on the theory that the doctrines they teach are antagonistic to the law. It was urged that this was the case, by reason of the hypothesis of this author respecting the title to land. The view on that subject expressed by Mr. George is that the earth belongs to mankind, and is a heritage that is inalienable, and that, consequently, one generation or a series of generations of men cannot, either by act or omission, debar a succeeding generation from claiming its own. The doctrine therefore inculcated is that no private absolute ownership in land can rightfully exist; the consequence being that the public, as the real proprietor, has the right to regain possession of all property of this nature by the use of any legal method. The decree appealed from avoids the charitable use attempted to be created, and the principle of decision is thus stated in the opinion pronounced. The vicechancellor says: "Clearly, the author, in these passages, not only condemns existing laws, but denounces the fact that the title to land in private individuals is secure, as robbery, -as a crime. It is this aspect of the case which The vice-chancellor educes this principle leads me to the conclusion that the court from a consideration of the functions and conought to refuse its aid, in enforcing the pro- stitution of judicial tribunals; and if I were to visions of this will. Whatever might be the stand on that ground, and indulge in specularights of the individual author, in the discus- tion, it must be confessed that my conclusion sions of such questions in the abstract, it cer- would be the opposite of that which he has artainly would not become the court to aid in the rived at. I cannot perceive for what reason distribution of literature which denounces as the testator's scheme was designed to be educarobbery as a crime--an immense proportion of tional with respect to an important branch of the judicial determinations of the higher courts. legal and economic science, and in his opinion This would not be charitable. Society has the circulation of the works of Mr. George constituted courts for the purpose of assisting would contribute to the accomplishment of in the administration of the law, and in the that purpose; therefore, viewing the subject preservation of the rights of citizens, and of the from the stand-point suggested, I could not, in public welfare; but I can conceive of nothing the line of judicial duty, have sanctioned a more antagonistic to such purpose than for the principle that, while it would repress the discourts to encourage, by their decrees, the dissemination of the writings of Mr. George, semination of doctrines which may educate the people to the belief that the great body of the laws which such courts administer concerning titles to land have no other principle for their basis than robbery."

The decree in this case frustrated the will of this testator, declared his trust void, and diverted the property invested in it in other directions. It would seem, therefore, that the rule in question should have been, and, if it is to be adopted, must be, thus formulated; that a court of equity will not permit the fulfillment of a testamentary use that is designed to circulate works that call in question any of the fundamental rules and establishments of the law.

would undoubtedly lend its aid to the circulation of the reply of the Duke of Argyle, on the ground that the former are aggressive towards the legal establishment in question, while the monograph of the latter tends on that subject

to quietism and public acquiescence. In such | a situation, if I had possessed the power, I should not only have sanctioned, but have favored, the propagation of any or all of these works, in the conviction that such discussions advance the cause, not of error, but of truth. If, therefore, I were to accept the principle of judgment adopted by the vice-chancellor, I should have been obliged to dissent from his conclusion.

But, waiving such considerations, let us turn to the question how far the principle of decision under criticism will stand the touch of judicial authority. Is it incompatible with judicial position to aid, if invested with such power, in the circulation of the works of a learned and ingenious man, putting under examination and discussion any part of the legal system? It would not seem to me that, as a judge, I was called upon to discard the use of means in the development of the law, which in every other science are regarded as absolute essentials. With respect to all intellectual creations, embracing, of course, laws and judicial institutions, the most potent of all forces tending to improvement and evolution are those of examination and discussion; and, recognizing them as the motive agents of progress, I should, very confidently, have concluded that it was neither proper nor becoming in me, as a judge, to refuse to this testator the right to use them in this instance. According to the theory indicated, and, in some degree, expounded, in the beginning of this opinion, it is attempted to be shown that, on such occasions as the present, the index expurgatorius to be applied by the court is formed on the principle that only such works are to be prescribed as manifestly tend to violations of law, or to the corruption of morals or religion. To this catalogue the court below, as has appeared, added a class comprising such writings as a court, from its inherent nature, could not properly or becomingly aid in circulating. It is evident that this extension of the rule will not harmonize with any of the adjudged cases. A reference to two of such authorities will be a sufficient illustration. Both of these decisions are cited in the briefs of counsel, and are referred to in the opinion of the vice-chancellor without hostile comment.

The first to which attention will be called is that of Thornton v. Howe, 31 Beav. 14. It was a case embracing a charitable use, and the words of the bequest were, “to propagate the writings of Joanna Southcote.' The argument took place before Sir John Romilly, who, upor looking into the works in question, found that their authoress was under the deJusion that she was with child by the Holy Ghost; that she had conversations with the devil, and inter-communings with the spiritual world. In view of these things the master of the rolls said: "I have found much that, in my opinion, is very foolish, but nothing which is likely to make persons who read them either immoral or irreligious. I cannot therefore say that this devise of the testatrix is invalid by reason of the tendency of the writings of Joanna Southcote." And afterwards his further declaration is: "But if the tendency were not immoral, and although this court might consider the opinions sought to be propagated

foolish, or even devoid of foundation, it would not on that account declare it void, or take it out of the class of legacies which are included in the general term, 'charitable bequests.'

It needs no comment to show that this decision is irreconcilable with the rule upon which the present case has been decided. The master of the rolls, concluding that the tendency of the works was not immoral or irreligious, assented to their circulation, although he was satisfied that the doctrines taught by them were foolish and without foundation.

The second authority to which I shall refer is that of Jackson v. Phillips, reported in 14 Allen, 539. This controversy also related to a charitable use; the bequest being of a fund, to trustees, to be expended, at their discretion, "in such sums, at such times, and such places as they deem best, for the preparation and circulation of books, newspapers, the delivery of speeches, lectures and such other means as in their judgment will create a public sentiment that will put an end to negro slavery in this country." The decision of the court, in its own language, was: "The bequest itself manifests its immediate purpose to be to educate the whole people upon the sin of a man's holding his fellow-man in bondage; and its ultimate object,-to put an end to negro slavery in the United States,-in either aspect, a lawful charity."

It is conspicuous that this decision is diametrically opposed to the rule under criticism. In the present case the decision was that the court would not help in the circulation of books that strove to show that private ownership in lands, the validity of which had been repeatedly recognized by the courts, had no better foundation than robbery. In the reported case, the court helped the dissemination of writings whose object was to prove that the ownership of human beings, which was a species of property established by the Federal Constitution itself, and sustained as such by repeated judgments both in the national and state courts, had no better foundation than sin. The legal rule imposing limits on charitable uses is one of great importance; and, influenced by that consideration, I have examined with care the principle upon which the present case has been decided, and my conclusion is that such principle does not consist with the authorities, and, if it were adopted by this court, would be productive of serious mischief. If sanctioned, the subject, with respect to the rights of donors in this field, would be involved in clouds and darkness, for instead of a rule we would have a speculation. By force of the prevalence of such a change, it may well be doubted whether it would not be altogether impracticable to disseminate, by means of a charitable use, the works of any of the leading political economists, either of the present or past age; for it is believed that none can be found that do not, in material particulars, make war, more or less aggressive, upon some parts of every legal system as it now subsists. Certain it is that neither the Political Economy, of Mr. Mill, nor the Social Statics, of Mr. Herbert Spencer, could be so circulated, for each of these very distinguished writers denies the lawfulness of private ownership in land. A principle bearing such fruits could not properly

be introduced into our legal system, except up- | cause the repeal, in a legitimate mode, of the on the compulsion of irresistible authority. It is obvious that, by the application of the ordinary test, and which, it has been thus insisted, is, and always has been, the legal test, the works now in question do not come under the proscription of the law. It has been heretofore stated that they do not tend to the corruption of morals or religion, and it is equally evident that they are not opposed to any legal rule or ordinance. What these writings are calculated and were intended to effect is to

WEST VIRGINIA SUPREME COURT OF APPEALS.

fore, and, perhaps, at the time of the gift, in the 18, 1886, Samuel A. McMechen was duly appossession of the donee, as the agent of his aunt, was a valid and complete gift.

(November 18, 1889.)

APPEAL by George S. Neff's administrator one of the judges of this court. The said Me

de bonis non from a decree of the Circuit Court for Berkeley County charging his estate, upon the report of a commissioner, with the payment of a certain claim for money as to which it was alleged his duty was to account. Reversed.

The case is fully stated in the opinion.
Messrs. W. H. H. Flick, W. F. Dyer and
D. C. Westenhaver, for appellant:
Strong affection of donor for donee is a cir-
cumstance favoring a claim of gift.

Rhodes v. Childs, 64 Pa. 18.

pointed administrator de bonis non of the estate of George S. Neff, deceased. Afterwards, on May 14, 1888, on the petition of said Samuel A. McMechen as such administrator, an appeal was allowed him from the aforesaid decree by Mechen was not by any order of the court below made a party to this suit, but he states in his petition for the appeal the death of said Fisher, and the fact that he had been appointed such administrator de bonis non, and exhibits therewith a certified copy of the order so appointing him administrator. On this state of facts the appellees, by their counsel, move this court to dismiss the appeal upon the ground that the same has been improvidently awarded.

This motion, as I understand it, is based upon two grounds: first, that the appellant had never been made a party to the cause in the circuit court; and, second, that the appeal should have been by the administrator of William Fisher, who had been the administrator of George S. Neff. This latter ground would, no doubt, have been valid, if the decree had been against Fisher in his own right, de bonis propriis, for assets of Neff converted by him; but the decree explicitly states that the recovery is against Fisher in his representative character,

The exercise of dominion over property with the plain assent of the donor (Bland v. MacculLoch, 9 Week. Rep. 65); suffering property to remain a long time in possession of the donee without demanding its return (Mc Donald v. Crockett, 2 McCord, Ch. 130); a previous expression of an intention to give, coupled with a subsequent possession by the donee (McCluney v. Lockhart, 1 Bailey, L. 117; Hackney v. Vrooman, 62 Barb. 650),—have all been held to be circumstances which strongly favor a gift, and all of which exist in the case under con--that is, for assets of Neff in his hands unadsideration.

When the courts say delivery is necessary, they do not mean "that gifts must be positively proved," or that "they may not be inferred from circumstances.'

Hansbrough v. Thom, 3 Leigh, 155. Conceding that the property was in George's hands as agent, the law requiring actual delivery did not require the useless formality of a return of the property to Bettie in order that she might pass it back again to George.

Tenbrook v. Brown, 17 Ind. 410; Wing v. Merchant, 57 Me. 383; Hackney v. Vrooman and McCluney v. Lockhart, supra; Winter v. Winter, 9 Week. Rep. 747; Bland v. Macculloch, supra; Gillespie v. Burleson, 28 Ala. 551; Gill v. Strozier, 32 Ga. 688; McGinnis v. Curry, 13 W. Va. 29. See also Ewing v. Ewing, 2 Leigh, 337; Dickeschied v. Exchange Bank, 28 W. Va. 340; Seabright v. Seabright, 28 W. Va. 412.

Messrs. Robert White and S. L. Flournoy for appellees.

Snyder, P., delivered the opinion of the

court:

Suit in equity, commenced November 3, 1877, in the Circuit Court of Hardy County, by John Miller and others, as the heirs and distributees of Elizabeth Neff, deceased, against the administrator of George S. Neff, deceased, and others. The cause was subsequently removed to the Circuit Court of Berkeley County, which latter court, on May 15, 1886, pronounced a decree in favor of the plaintiff's against William Fisher, administrator of George S. Neff, deceased, for the sum of $24,580.12, with interest and costs, to be paid out of the assets of said George S. Neff in the hands of his administrator, to be administered. Soon after the rendition of this decree the defendant William Fisher, administrator, etc., died, and on July

ministered; which is equivalent to a decree for assets unconverted. The unadministered or unconverted assets always pass to the administrator de bonis non, and must be adminis tered by him, and not by the administrator of the first administrator. Section 8, chap. 85, Code 1887.

This ground is therefore not well taken. In respect to the other ground, I think it is equally untenable. We are referred to a num ber of authorities to show that only a party or privy to the record in the court below can take an appeal. An administrator is surely a privy to the record, whether he is appointed before or after the decree appealed from. He stands in the place of his intestate, and represents his title and interests. But, as appeals are creatures of the statute law, we can only look to it, and to the decisions under it, for the doctrines in relation to them. 2 Tuck. Bl. Com. 329.

Turning to our Statute (§ 2, chap. 135, Code), we find that "any person who is a party to such controversy . . . may present his petition for an appeal.'

The administrator, as soon as he qualified. became a party to the controversy, and was therefore, under our Statute, a person who could present his petition for an appeal.

The only case cited for the appellees having any true bearing on the question is Taylor v. Savage, 42 U. S. 1 How. 282 [11 L. ed. 132], 43 U. S. 2 How. 395 [11 L. ed. 313]. This case was decided under the provisions of the statute law of Alabama. The appeal was taken in the name of the deceased administrator, and the only question decided was that the administrator de bonis non could not, by simply appearing in the appellate court and filing an appealbond, become such a party to the suit as would entitle him to prosecute the appeal. But, whatever may be the purport of this decision, and