The existence of a judicial power to administer a charity cy pres where the expressed intention of the founder can not be exactly carried out, has been either admitted or left an open question in all the New England states except Connecticut." In New Jersey the doctrine is favorably regarded. In Kentucky the statute of Elizabeth is re-enacted. Grants and devises for charitable and educational purposes are declared valid,' and the judicial doctrine of cy pres was formerly fully applied,10 but those decisions have been practically overruled.11 In other

states the doctrine of charitable trusts has never been adopted, or has been abolished, either by statutory prohibition of all uses and trusts where the trustee has no active service to perform, with a few specified exceptions, or by the provisions of the law against perpetuities, or by the general policy of the state legislation. And in those states, charitable trusts do not exist except where they are merely the express private trusts permitted by the law, or in those particular instances authorized by statute.12 In this class are included Michigan,13 Louisiana,1 Maryland,15 North Carolina,16 Virginia,17 and West Virginia.18 In all these states a trust for charitable purposes would be upheld provided it possessed all the ele

123 Pomeroy's Equity Jur. (3d ed.) § 1029.

13 Hopkins V. Crossley, 132 Mich. 612, 96 N. W. 499; Cook v. Universalist Gen. Convention, 138 Mich. 157, 101 N. W. 217.

14 Fink v. Fink's Exr., 12 La. Ann. 301; Perin v. McMicken's Heirs, 15 La. Ann. 154. And see Meunier's Succession, 52 La. Ann. 79, 48 L. R. A. 77, 26 So. 776.

15 Eutaw Place Baptist Church v. Shively, 67 Md. 493, 1 Am. St. Rep. 412, 10 Atl. 244; Dulany v. Middleton, 72 Md. 67, 19 Atl. 146. But see Chase v. Stockett, 72 Md. 235, 19 Atl. 761.

The statute of Eliz. is not recognized in Maryland.

16 McAuley v. Wilson, 16 N. C. 276, 18 Am. Dec. 587; Trustees of Davidson College v. Chambers, 56 N. C. 253; Holland v. Peck, 37 N. C. 255; White v. Attorney-General,

39 N. C. 19, 44 Am. Dec. 92; Miller v. Atkinson, 63 N. C. 537.

17 The English law of charitable uses and trusts not recognized.Seaburn's Exr. V. Seaburn, 15 Gratt. (Va.) 423; Gallego's Exrs. v. Attorney General, 3 Leigh (Va.) 450, 24 Am. Dec. 650; Literary Fund v. Dawson, 10 Leigh (Va.) 147, 153; Fifield v. Van Wyck's Exr., 94 Va. 557, 64 Am. St. Rep. 745, 27 S. E. 446.

Compare: Protestant Episcopal Educ. Soc. v. Churchman's Representatives, 80 Va. 718; Trustees etc. of Presbyterian Church V. Guthrie, 86 Va. 126, 6 L. R. A. 321, 10 S. E. 318.

18 The English law of charitable uses and trusts is not recognized. -Carpenter v. Miller, 3 W. Va. 174, 100 Am. Dec. 744; Mong v. Roush, 29 W. Va. 119, 11 S. E. 906; Wilson v. Perry, 29 W. Va. 169, 1 S. E. 302.

ments of a valid ordinary trust, a competent and certain trustee, certainty in the beneficiaries, and compliance with the laws against perpetuities.19 And in Tennessee it has been said that if a charity be created, either by devise or deed, it must be in favor of a person having sufficient capacity to take as devisee or donee, or if not in favor of such a person, it must be definite in its object and lawful in its creation, and devised or granted to trustees before the Court of Chancery can, by virtue of its extraordinary or simple equity jurisdiction, interfere to enforce its execution.20 But in Massachusetts, when land is devised to a charity without naming a trustee, the heir will hold the property in trust until a trustee be appointed by a court of chancery.21 New York and Wisconsin formerly recognized only such trusts which fulfilled the requirements of private trusts. In New York, by legislative enactment, the rule has been changed;22 and in Wisconsin, the later decisions overrule the earlier with respect to personal property.28

19 3 Pomeroy's Equity Jur., (3d ed.) § 1029, n.

20 Reeves v. Reeves, 5 Lea (73 Tenn.) 644; Cheatham v. Nashville Trust Co., (Tenn.) 57 S. W. 202.

21 Bartlett v. Nye, 4 Metc. (45 Mass.) 378; Washburn v. Seawall, 9 Metc. (50 Mass.) 280; North Adams Univ. Soc. v. Fitch, 8 Gray (74 Mass.) 421; Bliss v. American Bible Soc., 2 Allen (84 Mass.) 334; Brown v. Kelsey, 2 Cush. (56 Mass.) 243; Winslow V. Cummings, 3 Cush. (57 Mass.) 358; Fellows v. Miner, 119 Mass. 541; Missionary Soc. v. Chapman, 128 Mass. 265.

22 In New York the doctrine of charitable trusts is not recognized. Such a trust will be enforced as a power in trust, but it is subject to the rule against perpetuities. Cottman v. Grace, 112 N. Y. 299, 3 L. R. A. 145, 19 N. E. 839; Booth v. Baptist Church, 126 N. Y. 215, 239, 28 N. E. 238; Tilden v. Green, 130 N. Y. 29, 27 Am. St. Rep. 487, 14 L. R. A. 33, 28 N. E. 880.

And formerly the beneficiaries were required to be definitely designated, but this has been changed by statute.-N. Y. Laws 1893, ch. 701, and Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568.

23 Harrington v. Pier, 105 Wis.

§ 1115. English Statutes of Mortmain and Charitable Uses. At common law there was no restriction upon an individual acquiring lands by purchase, but corporations were required to have a license in mortmain from the crown to enable them to purchase lands. The reason of the rule was that the king, being the ultimate lord in fee, should not lose his right of escheats or forfeitures by the vesting of lands in tenants that could not be attainted or die.24 To defeat the law, the tenant who intended to alienate, first conveyed his lands to a religious body and instantly took them back, holding them as tenant of such body. This character of instantaneous seisin was held not to occasion a forfeiture. This evasion caused the passing of the statute De Religiosis, 7 Edw. I (1279), which provided that no person, religious or other, should buy, sell or receive under the pretense of a gift, or by any art or ingenuity appropriate, any lands or tenements in mortmain, upon penalty of forfeiture. The inventive genius of the clergy found new methods of evasion, and to meet them various statutes were successively passed.25

Because of the fact that persons might on their deathbeds make large and improvident dispositions, even for worthy purposes, and thus defeat the statutes of mortmain, it was enacted by the statute of 9 Geo. II, ch. 36, commonly called the Mortmain Act, that no lands or tenements, or money to be laid out therein, should be given or charged with any charitable use unless made according to law by deed executed before at least two witnesses twelve

485, 76 Am. St. Rep. 924, 50 L. R. A. 307, 82 N. W. 345.

As to realty, see Danforth v. City of Oshkosh, 119 Wis. 262, 97 N. W. 258. See, also, Fuller's Will, 75 Wis. 431, 44 N. W. 304;

McHugh v. McCole, 97 Wis. 166, 65 Am. St. Rep. 106, 40 L. R. A. 724, 72 N. W. 631.

24 Coke Litt. 94b, 95a, 99a, 250a. 25 2 Bl. Com. *270, *274.

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months at least before the donor's death, and enrolled in the court of chancery within six months after execution; also such gifts were to take effect immediately and be irrevocable.26

The last-mentioned statute was repealed and replaced by the Mortmain and Charitable Uses Act, 51 and 52 Vict., ch. 42 (1888).27 This act principally consolidated and restated the former mortmain acts, continuing in effect the restrictions just mentioned in the statute of 9 Geo. II. Under these statutes every testamentary assurance of land and of personalty to be laid out in land, and charged with any charitable use, was void. But by the amending act of 1891, 54 and 55 Vict., ch. 73, it became lawful to make testamentary gifts of land for charitable uses; but it provides the land shall not be retained by the charity, but shall be sold within one year from the death of the testator, unless the period is extended by the High Court or the Charity Commissioners. As to personal property given by will for charitable uses and directed to

26 Under this statute a mortgage upon real estate is an interest in land which can not be given by will to charity.-In re Watts, (Cornford v. Elliott), L. R. 29 Ch. Div. 947; s. c., L. R. 27 Ch. Div. 318, approving and following Brook v. Badley, L. R. 3 Ch. App. 672, and explaining In re Harris, 15 Ch. Div. 561.

The statute of 43 George III, ch. 108, authorized devises and bequests of property, to a limited value, for the purpose of erecting churches, although there was out

standing the statute of 9 George II, ch. 36; but it expressly excluded married women from doing so except with the authority of their husbands. This disability was not removed by the Married Women's Property Act of 1882 (45 and 46 Vict., ch. 75).-Re Smith's Estate, (Clements v. Ward), L. R. 35 Ch. Div. 589.

27 This statute has been held not to apply to English wills in the colonies of Great Britain. Canterbury V. Wyburn, L. R. (1895) A. C. 89.