Page images

of the gift will be to increase the property of the corporation to double the amount which the corporation is allowed by the proviso in the first section of its charter to hold, the whole gift is void.

But there are two conclusive answers to this argument: 1st. Restrictions imposed by the charter of a corporation upon the amount of property that it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the State which created it. Runyan v. Coster, 14 Pet. 122, 131; Smith v. Sheeley, 12 Wall. 358, 361; Bogardus v. Trinity Church, 4 Sandf. (N. Y. ) Ch. 633, 758; De Camp v. Dobbins, 29 N. J. Eq. 36; Davis v. Old Colony Railroad Co., 131 Mass. 258, 273.

2d. By an act of amendment of the 28th of October, 1870, the provisos in the first section of the original charter are repealed. It is contended that the act of 1870 is unconstitutional and void, as being a grant by the legislature of corporate powers and privileges, in contravention of this provision in the Constitution of the State: "The General Assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, navigation, mining, express, lumber, manufacturing, and telegraph companies; nor to make or change election precincts; nor to establish bridges or ferries; nor to change names or legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts." Constitution of Georgia of 1868, art. 3, sect. 6, § 5; Code of 1873, sect. 5068. But the words "corporate powers and privileges," as here used, signify the corporate franchise, the aggregate powers and privileges which constitute a corporation, not every separate power and privilege which may be conferred upon a corporate body. The object is to take away from the legislature, and to vest in the courts, under its direction, for the future, the creation of private corporations for literary, religious, charitable, or other purposes, except those specially excepted; but not to prevent the legislature from amending the charters of corporations already existing, and modifying or enlarging their powers, either by repealing former restrictions or otherwise. The act of 1870 is therefore constitutional and valid.

[ocr errors]

That a devise and bequest "to keep and preserve as a public edifice" a house containing a library and an academy or museum of works of art and science, "to be open for the use of the public" on such terms and under such reasonable regulations as the trustees may from time to time prescribe, is a valid charity, cannot be doubted. British Museum v. White, 2 Sim. & Stu. 594; Drury v. Natick, 10 Allen (Mass.), 169; Donohugh's Appeal, 86 Pa. St. 306. The directions tending to perpetuate the memory of the founder do not impair its public character or its legal validity. In the cases of Thomson v. Shakespeare, H. R. V. Johns. 612, and 1 D., F. & J. 399, and of Carne v. Long, 2 id. 75, on which the appellants rely, the gifts failed because not exclusively devoted to a public charitable use, the definition in the one case including purposes that might not be charitable, and the bequest in the other being to a private library established for the benefit of the subscribers alone. See Beaumont v. Oliveira, Law Rep. 4 Ch. 309, 314, 315.

A corporation may hold and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have authority itself to establish or to spend its corporate funds for. A city, for instance, may take a devise in trust to maintain a college, an orphan school, or an asylum. Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 id. 367; Perin v. Carey, 24 id. 465. There is some ground for holding that the objects of a historical society would be promoted by administering a devise and bequest to maintain for the public instruction and benefit a house containing a collection of books, documents, and works of art, with other such books and works to be selected by the officers of the society and purchased out of the surplus income; and that the purposes of the trust are, in the words of Mr. Justice Story in Vidal v. Girard, 2 id. 189, " germane to the objects of the incorporation," and "relate to matters which will promote, and aid, and perfect those objects."

But if any doubt remains of the capacity of the Georgia Historical Society to assume and execute those charitable trusts, it would be within the ordinary jurisdiction of a court

of equity to appoint other trustees in its stead, according to the maxim, expressly affirmed in the Code of Georgia, that a trust shall never fail for the want of a trustee. Reeve v. AttorneyGeneral, 3 Hare, 191; Winslow v. Cummings, 3 Cush. (Mass.) 358; Code of Georgia of 1873, sect. 3195.

The residuary clause of the will disposes of real and personal estate to the amount of $300,000, and is as follows:


Twenty-first. All the residue of my estate, of whatever the same may consist, real, personal, and mixed, and wherever situated, I hereby give, devise, and bequeath to my executors hereinafter named, and to the survivor of them, and to the successors in this trust of said survivor, in trust, to use and appropriate the proceeds arising from the same to the building and erection and endowment of a hospital for females within the City of Savannah, on a permanent basis, into which sick and indigent females are to be admitted and cared for in such manner and on such terms as may be defined and prescribed by the trustees or directresses provided for in this item or clause in my will. The income, rents, and profits of such portion of the residuum of my estate as may not be expended in the building, erection, and furnishing said hospital shall be annually appropriated to the support and maintenance of the same. My desire and request is that a thoroughly convenient hospital, of moderate dimensions, suited to the wants of the City of Savannah, and capable of enlargement if necessity should require, may be built and erected, with no unnecessary display connected with it. And I do hereby nominate, as the first trustees, managers, or directresses of said hospital, Mrs. Louisa F. Gilmer, Sarah Owens, Mary Elliott (formerly Habersham), Susan Mann, Florence Bourquin, Eva West, and Eliza Chisolm, all of Savannah, Georgia, and do request and instruct my executors to advise and consult with the ladies named as to the construction, arrangement, and furnishing of said hospital. It is further my wish and desire, and I do hereby request, that a suitable and proper act of incorporation for said hospital shall be obtained from such tribunal in the State of Georgia as may have jurisdiction in the premises, to be called and known as the Telfair Hospital for Females,' with the ladies above named, or such of them as may consent to serve, and such others as they may apply for to be associated with them, as the first trustees, managers, or directresses under said act of incorporation, with power to fill any vacancies that occur in their number. And for the purpose of accomplishing the objects contemplated in this item or clause of my

[ocr errors]

will, I do hereby authorize and empower my executors, or the survivor of them, to sell and convey all or any portion of the real estate, or any interest in the same, which I may have or be entitled to, and not given or devised in any of the previous items or clauses of this my will, using their discretion as to private or public sales, and as to whether and at what time such sales shall be made."

That this devise and bequest to establish a hospital for sick and indigent females in the City of Savannah is sufficiently definite, and that its validity is not impaired by the provision of the will requiring an act of incorporation to be obtained, are clearly settled by the cases of Inglis v. Sailor's Snug Harbor, 3 Pet. 99; Ould v. Washington Hospital, 95 U. S. 303; and Russell v. Allen, ante, p. 163.


The bequest, in the twenty-third clause of the will, of $1,000 to the first Christian church erected or to be erected in the village of Telfairville in Burke County, or to such persons as may become trustees of the same," is supported by the same authorities, and is directly within the decisions of Lord Thurlow in Attorney-General v. Bishop of Chester, 1 Bro. Ch. 444, of Sir John Copley, Master of the Rolls (afterwards Lord Lyndhurst), in Society for the Propagation of the Gospel v. Attorney-General, 3 Russ. 142, and of Lord Hatherley in Sinnett v. Herbert, Law Rep. 7 Ch. 232. See also Cumming v. Reid Memorial Church, 64 Ga. 105.

The result is that all the devises and bequests contained in Miss Telfair's will are valid as against her heirs at law and next of kin.

Decree affirmed.

ATLANTIC Works v. Brady.


1. Letters-patent granted to Edwin L. Brady, Dec. 17, 1867, for an improved dredge-boat for excavating rivers, are invalid for want of novelty and invention.

2. The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. It was never their object to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.

8. Although letters-patent are not set up by way of defence in an answer, yet if the invention patented thereby is afterwards put into actual use, their date will be evidence of that of the invention on a question of priority between different parties.

4. One person receiving from another a full and accurate description of a useful improvement cannot appropriate it to himself; and letters-patent obtained by him therefor are void.

APPEALS from the Circuit Court of the United States for the District of Massachusetts.

The case is stated in the opinion of the court.

Mr. William A. Abbott and Mr. Albert A. Abbott for Brady. Mr. Assistant Attorney-General Maury, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court. This case arises upon a bill in equity filed by Edwin L. Brady against The Atlantic Works, a corporation of Massachusetts, having workshops and a place of business in Boston, praying for an account of profits for building a dredge-boat in violation of certain letters-patent granted to the complainant bearing date Dec. 17, 1867, and for an injunction to restrain the defendants from making, using, or selling any dredge-boat in violation of said letters-patent. The bill was filed on the 9th of April, 1868, and had annexed thereto a copy of the patent alleged to be infringed. The following are the material parts of the specification:

"The excavator consists of a strong boat propelled by one or two propellers placed in the stern of the boat. I prefer two pro

« PreviousContinue »