Page images

while leaving the selection of the particular objects to the trustees, and is a good charitable use, sufficiently defined. Bartlet v. King, 12 Mass. 537; Going v. Emery, 16 Pick. (Mass.) 107; North Adams Universalist Society v. Fitch, 8 Gray (Mass.), 421.

The other objections to the validity of this devise are equally unavailing. The condition that no material alteration or change, but only proper repairs and improvements, shall be made in the pulpit or galleries of the present church (even if illegal, which we see no reason for supposing), is a condition subsequent, relating to the care and use of the property after the gift shall have vested in the devisee, and cannot therefore affect the original validity of the gift.

The condition that the trustees shall not alienate the land on which the school-room stands is also a condition subsequent, and is in accordance with the fifth section of their charter, and with the general law upon the subject. It will not prevent a court of chancery from permitting, in case of necessity arising from unforeseen change of circumstances, the sale of the land and the application of the proceeds to the purposes of the trust. Tudor on Charitable Trusts (2d ed.) 298; Stanley v. Colt, 5 Wall. 119, 169.

The condition as to the care and keeping of the tomb or burial-place of the testatrix is likewise a condition subsequent, and, even if invalid, would not defeat the charitable gift. Giles v. Boston Fatherless & Widows' Society, 10 Allen (Mass.), 355. In England there has been a difference of opinion upon the question whether the maintenance and repair of the tomb or monument of the donor is a good charitable use. Down to the time of the American Revolution, as by the civil law, it appears to have been held that it was. 3 Inst. 202; Masters v. Masters, 1 P. Wms. 421, 423, and note; Durour v. Motteux, 1 Ves. Sen. 320; Gravenor v. Hallum, Ambl. 643; Boyle on Charities, 45-51; Justinian's Institutes, lib. 2, tit. 1, sects. 8, 9; Dig. 11, 7, 2, 5; 47, 12, 3, 2. According to the later English cases, it is not. Doe v. Pitcher, 3 M. & S. 407; Same v. Same, 6 Taunt. 359; s. c. 2 Marsh. 61; Willis v. Brown, 2 Jur. 987; Hoare v. Osborne, Law Rep. 1 Eq. 585; Fiske v. Attorney-General, Law Rep. 4 Eq. 521; In re Birkett, 9 Ch. D. 576. See

also Dexter v. Gardner, 7 Allen (Mass.), 243, 247. But it is unnecessary to examine and weigh these conflicting authorities, or to determine whether the devise of the burial-place of the testatrix, and the direction to keep it in good order, could be upheld in the absence of local statute, because they are clearly valid under the Code of Georgia, which enumerates among charitable uses "the improvement or repair of burying-grounds or tombstones." Code of Georgia of 1873, sect. 3157, cl. 7.

The eleventh clause of the will contains a devise to the Union Society of Savannah of a parcel of land in that city, with the buildings and improvements thereon, "but on the express condition that said society shall not sell or alienate said lot, but shall use and appropriate the rents and profits of the same for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society." The Union Society was incorporated by a statute of the 14th of August, 1786, "for the relief of distressed widows and the schooling and maintaining of poor children."

The twelfth clause devises to the Widows' Society of Savannah another parcel of land in that city, "on which the improvements now consist of four brick tenement buildings, the rents and profits of the same to be appropriated to the benevolent purposes of said society, but this devise is made on condition the said Savannah Widows' Society shall not sell or alienate said lot or improvements, nor hold the same subject to the debts, contracts, or liabilities of said society." The Widows' Society was incorporated, as stated in the title and repeated in the body of its charter granted in 1837, "for the relief of indigent widows and orphans in the City of Savannah."

"The relief of aged, impotent, and poor persons" is within the very words of the Statute of 43 Eliz. c. 4, sect. 1, and of the Code of Georgia of 1873, sect. 3157; and all educational purposes are within the terms of that code, and within the scope and principle of the Statute of Elizabeth. Russell v. Allen, ante, p. 163. The fact that the gift to the Widows' Society is directed "to be appropriated to the benevolent purposes of said society" does not affect its validity, because the charter of the society shows that all its purposes are charitable,

in the legal sense. It is only when a gift might be applied to benevolent purposes which are not charitable in that sense, that the gift fails. Saltonstall v. Sanders, 11 Allen (Mass.), 446; Suter v. Hilliard, 132 Mass. 412; De Camp v. Dobbins, 29 N. J. Eq. 36; Adye v. Smith, 44 Conn. 60; In re Jarman's Estate, 8 Ch. D. 584. The conditions subsequent have no greater effect than the corresponding conditions in the tenth. clause, already considered.

The next clause of the will contains a provision applicable to the tenth, eleventh, and twelfth clauses, and is as follows:

"Thirteenth. Should either one or more of the corporate bodies or institutions named in the preceding items of my will attempt to sell, alienate, or otherwise dispose of the property and estate therein devised, contrary to the terms and conditions therein set forth, or should there be any levy on the same to satisfy the debts of said corporation, then I hereby direct my executors or legal representatives to repossess and enter upon said property or estate as to which the conditions may be so broken or violated, and in that event I do hereby give and devise the said property so entered upon and repossessed unto the Savannah Female Orphan Asylum."

There is nothing in this clause by which the heirs at law or next of kin can be benefited, in any possible view. If the conditions against voluntary alienation and levy of execution are invalid, the previous devises stand good. If those conditions are valid, the devise over to the Savannah Female Orphan Asylum, an undoubted charity, will take effect; for as the estate is no more perpetual in two successive charities than in one charity, and as the rule against perpetuities does not apply to charities, it follows that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may or may not take place within the limit of that rule, the limitation over to the second charity is good. Christ's Hospital v. Grainger, 16 Sim. 83, 100; 1 Macn. & Gord. 460; 1 Hall & Twells, 533; McDonogh v. Murdoch, 15 How. 367, 412, 415; Russell v. Allen, ante, p. 163.

The fourteenth clause of the will contains a devise and be

quest to the Georgia Historical Society to establish a public library and museum, and is as follows:

"Fourteenth. I hereby give, devise, and bequeath to the Georgia Historical Society and its successors all that lot or parcel of land, with the buildings and improvements thereon, fronting on St. James Square, in the City of Savannah, and running back to Jefferson Street, known in the plan of said city as lot letter N, Heathcote Ward, the same having been for many years past the residence of my family, together with all my books, papers, documents, pictures, statuary, and works of art, or having relation to art or science, and all the furniture of every description in the dwelling-house and on the premises (except bedding and table service, such as china, crockery, glass, cutlery, silver, plate, and linen), and all fixtures and attachments to the same; to have and to hold the said lot and improvements, books, pictures, statuary, furniture, and fixtures to the said Georgia Historical Society and its successors, in special trust, to keep and preserve the same as a public edifice for a library and academy of arts and sciences, in which the books, pictures, and works of art herein bequeathed, and such others as may be purchased out of the income, rents, and profits of the bequest hereinafter made for that purpose, shall be permanently kept and cared for, to be open for the use of the public on such terms and under such reasonable regulations as the said Georgia Historical Society may from time to time prescribe; but this devise and bequest is made upon condition that the Georgia Historical Society shall cause to be placed and kept, over and against the front porch or entrance of the main building on said lot, a marble slab or tablet, on which shall be cut or engraved the following words, to wit: TELFAIR ACADEMY OF ARTS AND SCIENCES, the word 'Telfair' being in larger letters and occupying a separate line above the other words; and on the further condition that no part of the buildings shall ever be occupied as a private residence or rented out for money, and none but a janitor and such other persons as may be employed to manage and take care of the premises shall occupy or reside in or upon the same, and that no part of the same shall be used for public meetings or exhibitions, or for eating, drinking, or smoking, and that no part of the lot or improvements shall ever be sold, alienated, or encumbered, but the same shall be preserved for the purposes herein set forth. And it is my wish that whenever the walls of the building shall require renovating by paint or otherwise, the present color and design shall be adhered to as far as

practicable. For the purpose of providing more effectually for the accomplishments of the objects contemplated in this item or clause. of my will, I hereby give, devise, and bequeath to the Georgia Historical Society and its successors one thousand shares of the capital stock of the Augusta and Savannah Railroad of the State of Georgia, in special trust, to apply the dividends, income, rents, and profits arising from the same, to the repairs and maintenance of said buildings and premises, and the payment of all expenses attendant upon the management and care of the institution herein provided for, and then to apply the remaining income, rents, and profits in adding to the library, and such works of art and science as the proper officers of the Georgia Historical Society may select, and in the preservation and proper use of the same, so as to carry into effect in good faith the objects of this devise and bequest."

The Georgia Historical Society was incorporated by a stat ute of the 19th of December, 1839, the preamble of which recites that "the members of a society instituted in the City of Savannah for the purpose of collecting, preserving, and diffusing information relating to the history of the State of Georgia in particular, and of American history generally, have applied for an act of incorporation." The first section makes them a corporation with the usual powers, and especially "to purchase, take, receive, hold, and enjoy, to them and their successors, any goods and chattels, lands and tenements, and to sell, lease, or otherwise dispose of the same, or any part thereof, at their will and pleasure: Provided, that the clear annual income of such real and personal estate shall not exceed the sum of five thousand dollars: And provided, also, that the funds of the said corporation shall be used and appropriated to the purposes stated in the preamble of this act, and those only." And the fourth section declares that the act of incorporation shall be a public act, "and shall be construed benignly and favorably for every beneficial purpose therein intended."

It is stated in the bill, and admitted by the demurrer, that the net income of the Georgia Historical Society from property held by it at the time of the death of the testatrix was between $3,000 and $4,000, and that the income of the property now bequeathed to it will add $7,000 to that inIt is argued for the appellants that because the effect


« PreviousContinue »