SUMMARY V. CHARITABLE USES. Upheld, when; intention to cut off heir, § 146.— City of Philadelphia may hold property in trust, § 147.— Devise to establish a college for orphans, § 148.— Statute of 43 Elizabeth, how far in force in Pennsylvania, § 149.— Excluding ecclesiastics from college, § 150.— As to corporations; doctrines of 43 Elizabeth in force in Ohio, § 151.— City of Cincinnati may hold property for charitable uses, § 152.- Devises in trust for establishment of colleges are charities, § 153.— Perpetuities, § 154.— Certainty as to beneficiaries; preference of relatives of testator, § 155.— Devise to a bishop and his successors, § 156.— Devise to an unincorporated association, § 157. § 146. It is established in this country that where a grant or devise for charitable uses is made, and the donee is capable of executing the trust vested in him, the grant or devise should be upheld if the beneficiary or charitable object is stated in such a manner or with such distinctness that chancery can ascertain what it is so as to enforce the trust. If the intention of the testator or grantor is to cut off his heir, the devise or grant will be upheld if such trust can be upheld by a liberal construction. Russell v. Allen, § 158. § 147. The corporation of the city of Philadelphia may take real and personal property by devise in trust for the establishment and support of a college for the education and maintenance of poor orphan boys. Vidal v. Girard, §§ 159–166. § 148. A devise of property for the erection and maintenance of a college creates a charitable use, especially where it is designed for the education of orphans and poor scholars. Ibid. § 149. Although the statute of 43 Elizabeth, chapter 4, is not operative in Pennsylvania, yet the conservative provisions are there enforced by common usage and constitutional recognition, and because it appears that its provisions are declarative of the common law as theretofore existing. Ibid. § 150. A devise of property in trust for the establishment of a college for the education and maintenance of poor orphan boys is a valid charitable bequest, though, by the terms of the devise, all ecclesiastics, missionaries and ministers of all sects are excluded from holding or exercising any station or duty in said college, or from being admitted into it for any purpose or as a visitor. Ibid. $151. The doctrines founded upon the statute of 43 Elizabeth, chapter 4, in relation to charitable uses to corporations, either municipal or private, have been adopted by the courts of Ohio, but not by express legislation; that not being necessary, as courts of equity have that jurisdiction at common law. Perrin v. Carey, §§ 167–175. § 152. The city of Cincinnati as a corporation is capable of taking in trust devises to charitable uses. Ibid. § 153. Devises in trust for the establishment and maintenance of colleges are charities in a legal sense, and may be enforced by a court of equity, in Ohio, without legislative intervention. Ibid. § 154. A devise of real estate for a charitable use, with a provision that it shall never be alienated, does not create a perpetuity forbidden by law. Ibid. § 155. A devise of property for the establishment and maintenance of two colleges for white boys and girls, respectively, provided that in the matter of application preference should be given to relatives and descendants of the testator, and that if, after the establishment and maintenance of the colleges, there should be a sufficient surplus, the same should be applied to the erection of additional buildings and the support of poor white male and female orphans, is not uncertain as to beneficiaries, and the preference to relatives and descendants is valid. Ibid. § 156. A devise was to a bishop and to his successors in that dignity, in trust for the benefit of that community attached to the Roman Catholic church of which the testator should die a member. Held, that unless as a gift to charitable uses the devise would not be sustained, and that as the statute of charitable uses of 43 Elizabeth, chapter 4, was not in force in Virginia, the devise was void in that state. Kain v. Gibboney, §§ 176–178. § 157. Under the law of Pennsylvania as it stood in 1795, after the repeal of 43 Elizabeth, chapter 4, a devise to an unincorporated association for charitable use was void. The members would not take nor would the subsequent incorporation of the association enable it to take. Trustees of the Philadelphia Baptist Association v. Hart, §§ 179–181. [NOTES. See §§ 182-216.] 592 RUSSELL v. ALLEN: '(Circuit Court for Missouri: 5 Dillon, 235-240. 1879.) STATEMENT OF FACTS.- Bill in equity, by the heirs of William Russell, to subject to their demands certain funds in defendant's hands, received from grants made by said decedent. In 1855 the decedent executed to Horner certain conveyances of realty and other property in trust, "for the purpose of founding an institution for the education of youth in St. Louis county," and expressed that the conveyances were "for the use of the Russell Institution of St. Louis, Mo.," and directed the proceeds to be paid over at least once a year to Thomas Allen, president of said institute, and his receipt shall be a full discharge of the said trustee. There were several deeds executed by the grantor for property in different counties of Arkansas, and the one before the court, dated July 19, 1855, recites that the grantor, by this and three other deeds of same date, has conveyed all his property in Arkansas to the same party for same purposes, and that they are to be taken and accounted as one trust. The bill alleges that Horner has paid to Allen certain sums of money; that no such institute existed at the date of said grant or has been created; that the purposes of said charity are too vague to be enforced, etc., and asks that Allen account and pay over the funds, etc., received by him to said heirs. Defendant demurs. Opinion by TREAT, J. The legal and equitable propositions involved have been discussed at great length in many English and American decisions, a review of which would require more time and labor than are at our command. Many of those decisions pertain to the force and effect of the statute of Elizabeth, the doctrine of cy pres, and the power "parens patriæ." In this country, after long doubt and disputation, the doctrine has been established that where a grant or devise for charitable uses is made, and the donee is capable of executing the trust vested in him, the grant or devise should be upheld if the beneficiary or charitable object is stated in such a manner or with such distinctness that chancery can ascertain what it is, so as to enforce the trust. In construing such instruments equity adopts, not the old rule favoring the heir, as in England, but the juster rule of effecting the intent of the grantor or devisor. In England the doctrines of cy pres and of "parens patria" were resorted to mainly to overcome the general rule which, under British institutions, favored the heir and perpetuation of estates. Under American institutions no such policy, and, consequently, no such general rule ever obtained. The just rule worked out in English courts, through the doctrines or powers named, although such powers do not exist in this country, is, as to charitable uses, made, though not technically, yet to a large extent, practically applicable in this country. By this it is not meant that the cy pres doctrine has any force here, but merely that, for the purpose of upholding conveyances for charitable uses, American courts of equity will, wherever by a liberal construction it can be done, ascertain the designated or designed charity and enforce the intention of the grantor. § 158. The intention of a grantor or devisor must prevail; and if the trust can be upheld by a liberal construction, the heir will be cut off. The various decisions of the United States supreme court, and of other courts, particularly within the past decade, are based on the sound and just doctrine that the intention of the grantor or devisor shall prevail. Hence, when, by the terms of the grant, it is clear that the heir was to be cut off, he VOL. XXVIII-38 593 will be held to be cut off if the trust can be, under even a liberal construction, upheld for its designed charitable purpose. Of course, if the grant is too vague and indefinite to enable the chancellor to detect to what charity the grant referred or was applicable, then, as the estate was not conveyed away, it (the estate) would necessarily follow the prescribed course of descent. In other words, if the decedent had not disposed of his property otherwise, the law of descents and distributions would govern. In the light of these doctrines, now fully recognized, this court must look to the conveyances in question. The purpose of the grantor was to found the Russell Institute-to have the avails of the property conveyed vested ultimately in a board of trustees for said institute, and, in the meantime to have yearly and other payments of said avails or proceeds paid over to Allen, president, and, what is very significant, to him as representing said trustees. It is obvious that the grantor knew that no such institute existed at the date of the grant, for the grant was to found such an institute in the future. In that condition of affairs, he expressed, with sufficient clearness, that as the fund should be created from time to time by Horner, the trustee, it was to be paid over to Allen as president, whose "receipt therefor was to be a full discharge;" and that, at the expiration of the ten years named, Horner's trust was, as soon as practicable thereafter, to cease, and all funds then in his hands. to be paid in the same manner as prior payments had been made to said Allen, who, as president, was to represent said board of trustees. It is obvious that the intention of the grantor was to have the proceeds of the property lodged in the hands of Allen, not for his individual benefit, but for the purpose of founding thereafter the designated institute of which Allen was to be president. In the discharge of his trust, then, it is for Mr. Allen, at the proper time, to cause such an institute to be organized, whose trustees will shape the institute and determine the persons to whom and the manner in which endowment shall be applied. It is obvious that the grantor placed the largest measure of confidence in Mr. Allen with respect to the manner of founding such institute or calling it into corporate existence. Until sufficient funds were received therefor, such an institute could not be beneficially founded. Of course Mr. Allen could not unreasonably delay action nor postpone the time indefinitely. In other words, the confidence reposed, if abused by unnecessary delay or otherwise, could be controlled by the supervision of the proper court of equity, when thereto duly called upon to act. It seems that the purpose of Mr. Russell, in creating or providing for the needed endowment, did not contemplate that the result could be achieved before the lapse of ten years; for the annual payments to Allen from the date of the conveyances, it is obvious, would not furnish funds sufficient for founding such an institute at the expiration of the first or of any succeeding year prior to the expiration of the tenth year, when Horner's trust was to cease by forced sales of the property, with the exceptions named. In the meantime, Allen, receiving the annual payments and giving to Horner acquittances, was to retain the accumulating funds, until, at the expiration of the ten years, he should be able to ascertain the aggregate amount applicable to the charitable use. He could not ascertain the amount before that time, and hence any previous attempt to call such an institute into corporate existence would have been premature. It appears that the controlling intent of the grant is that the accumulating funds should be placed in Allen's hands, so that at the expiration of ten years he could cause such an institute to be founded under the corporation laws of Missouri, with a board of trustees, of which he was to be president; and that when said corporation had been so created, he should turn over to it the aggregate funds in his hands. The board would be thus enabled to determine, in its discretion, with due regard to the intent of the founder, what should be the scope and details of the institute. The ultimate determination of the mode of administering the charity, whether by free or paid instruction to pupils, etc., would be for that board's action and discretion when organized. There are many interesting questions involved in the administration of such charitable uses which are not before us for decision, such as the proper forum and parties to compel due and prompt administration of the "use" when the person charged to act fails to do so that is, whether a United States court, before which the subject comes incidentally, can lay hold of and compel the proper administration, under its supervision, or whether application therefor must not be made exclusively to the more appropriate state courts. However that may be, in the absence of any proceeding by Allen in the nature of a cross-bill, asking the direction of this court as to the manner in which he shall execute his trust, and in the absence of any prayer of the plaintiffs in this case looking to that end, we are not called upon to decide with respect thereto. We must dispose of the questions before us as they are presented and not go beyond them. The plaintiffs are here in hostility to the existence of the indicated fund, denying that there is such a fund for the alleged charitable uses, and claiming that the funds rightfully belong to them personally. They do not ask for the administration of the fund to charitable uses, whereby their personal claim thereto would be defeated; and, consequently, this court has only one proposition to decide, viz.: whether, under the grants made and the allegations of the bill, the plaintiffs have shown any right in themselves, personally, to the fund in question. From what has already been stated it is clear that they have no such personal right-that it is evident the grantor meant to cut off his heirs as to the property granted, and that the charity which was to be the object of his bounty is sufficiently defined to enable the funds created to be definitely applied to the charitable use contemplated. The demurrer to the bill is sustained. Bills dismissed. DILLON, J., concurs. VIDAL v. GIRARD'S EXECUTORS. (2 Howard, 127-201. 1844.) APPEAL from U. S. Circuit Court, Eastern District of Pennsylvania. STATEMENT OF FACTS.- This cause has been argued with great learning and ability. Many topics have been discussed in the arguments, as illustrative of the principal grounds of controversy, with elaborate care, upon which, however, in the view which we have taken of the merits of the cause, it is not necessary for us to express any opinion, nor even to allude to their bearing or application. We shall, therefore, confine ourselves to the exposition of those questions and principles which, in our judgment, dispose of the whole matters in litigation, so far at least as they are proper for the final adjudication of the present suit. The late Stephen Girard, by his will dated the 25th day of December, A. D. 1830, after making sundry bequests to his relatives and friends, to the city of New Orleans, and to certain specified charities, proceeded in the twentieth clause of that will to make the following bequest, on which the present controversy mainly hinges: "XX. And, whereas, I have been for a long time impressed," etc. (a) The testator then proceeded to give a minute detail of the plan and structure of the college, and certain rules and regulations for the due management and government thereof and the studies to be pursued therein, "comprehending reading, writing, grammar, arithmetic, geography, navigation, surveying, practical mathematics, astronomy, natural, chemical and experimental philosophy, the French and Spanish languages" (not forbidding but not recommending the Greek and Latin languages), “and such other learning and science as the capacities of the several scholars may merit or warrant." He then added: "I would have them taught facts and things rather than words or signs; and especially I desire that by every proper means a pure attachment to our republican institutions, and to the sacred rights of conscience as guarantied by our happy constitutions, shall be formed and fostered in the minds of the scholars." The persons who are to receive the benefits of the institution he declared to be "poor white male orphans between the ages of six and ten years; and no orphan should be admitted until the guardians or directors of the poor, or other proper guardian, or other competent authority, have given by indenture, relinquishment, or otherwise, adequate power to the mayor, aldermen and citizens of Philadelphia, or to directors or others by them appointed, to enforce in relation to each orphan every proper restraint, and to prevent relatives or others from interfering with or withdrawing such orphan from the institution." The testator then provided for a preference, “first, to orphans born in the city (a) XX. And, whereas, I have been for a long time impressed with the importance of educating the poor, and of placing them, by the early cultivation of their minds and the development of their moral principles, above the many temptations to which, through poverty and ignorance, they are exposed; and I am particularly desirous to provide for such a number of poor male white orphan children as can be trained in one institution a better education as well as a more comfortable maintenance than they usually receive from the application of the public funds; and, whereas, together with the object just adverted to, I have sincerely at heart the welfare of the city of Philadelphia, and, as a part of it, am desirous to improve the neighborhood of the River Delaware, so that the health of the citizens may be promoted and preserved and that the eastern part of the city may be made to correspond better with the interior: Now I do give, devise and bequeath all the residue and remainder of my real and personal estate of every sort and kind, wheresoever situate (the real estate in Pennsylvania charged aforesaid), unto "the mayor, aldermen and citizens of Philadelphia," their successors and assigns, in trust to and for the several uses, intents and purposes hereinafter mentioned and declared of and concerning the same, that is to say: so far as regards my real estate in Pennsylvania, in trust, that no part thereof shall ever be sold or alienated by the said mayor, aldermen and citizens of Philadelphia, or their successors, but the same shall forever thereafter be let from time to time, to good tenants, at yearly or other rents, and upon leases in possession not exceeding five years from the commencement thereof, and that the rents, issues and profits arising therefrom shall be applied towards keeping that part of the said real estate situate in the city and liberties of Philadelphia constantly in good repair (parts elsewhere situate to be kept in repair by the tenants thereof respectively), and towards improving the same, whenever necessary, by erecting new buildings, and that the net residue (after paying the several annuities herein before provided for) be applied to the same uses and purposes as are herein declared of and concerning the residue of my personal estate; and so far as regards my real estate in Kentucky, now under the care of Messrs. Triplett and Brumley, in trust, to sell and dispose of the same, whenever it may be expedient to do so, and to apply the proceeds of such sale to the same uses and purposes as are herein declared of and concerning the residue of my personal estate. |