JUNE.

where a testa rects the trustees rela- his child to pay

tor, by his will d

and guardians of

over annually a certain portion of

DASHIELL, et al. vs. THE ATTORney General. APPEAL from a decree pro forma of Baltimore county court, sitting as a court of equity, on an information filed in the name of the Attorney General, at and by the tion of The Trustees of Hillsborough School in Caroline the income of his county, on behalf of themselves, and the poor children in Caroline county who attend the charity school of which by them "applied they are trustees, against the appellants, to enforce execution of a trust in the will of James Corrie (a). will is dated the 12th of March 1805, and the clause un- attends the poor

estate to the trus tees of Hillsborough school, to be towards feeding,

the clothing, and edu

cating the poor The children of Caroline county, which

der which the relators claim is as follows: "All the neces-
sary expenses attending my daughter, and the expenses of
a woman to attend her until she attains the age of eighteen
years, shall be paid out of the income of my estate, re-
ceived by my trustees from my executors, and the residue
of the income, after deducting my daughter Mary, and
her servant's expenses, shall be appropriated, until she
attains the above age of eighteen years, as follows: It shall
be equally divided, one half to be applied towards feed
(a) See the case of Dashiell, et al. vs. The Attorney General,
ante vol. 5, 392.

or charity school established at Hillsborough, in the said county

for uncer ainty as

-Held, that the bequest was void

to the persons who were to take un. der it

The poor chil

dren or a county

of or congregation or school, are not sus

ceptible of ascer

tainment

The interpositi not make a be

on of trustees does

as an immediate

quest good, which

and direct bequest would be void for uncertainty

The poor children of Caroline county, who attend the Hillsborough school, are not a body corporate, and can..ot take in succession; and the bequest, if otherwise good, must fall as soon as the first objects of the testator's beneficence ceased to attend the school

The benefit of the undisposed subject of the trust results to the next of kin to the testator

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Attorney General

ing, clothing and educating, the poor children belonging to the congregation of Saint Peter's Protestant Episcopal Church in the city of Baltimore; the other half to be applied towards feeding, clothing and educating, the poor children of Caroline county, in the state of Maryland, which attends the poor or charity school established at Hillsborough, in said county, the trustees of which school are to receive from my trustees the aforesaid appropriation, in payments at every six or twelve months, and appropriate the same in the manner I have now willed." This provision was to be enlarged in the event of his daughter's death, or marriage without consent of his trustees, &c. In another clause of the will he declares, "I will, that if at any future period any of my relations should require assistance to be supported, clothed and educated, that my trustees, in virtue of this will, shall give the preference to them, either in the county of Caroline, in the state of Maryland, or the city of Baltimore, or in any other place; they shall attend to their wants as aforesaid, in preference to all others." The testator died before the 18th of May 1805. The answers of the defendants insist that the relators are not entitled to relief, and that the devise is void in law. The decree being in favour of the relators, the defendants appealed to this court.

The cause was argued at the last June term, before BUCHANAN, EARLE, MARTIN, and STEPHEN, J.

Taney, Winder and Murray, for the appellants, contended, 1. That the will of Corrie contained no devise for the benefit of the relators. 2. That if the will be intended for the benefit of the relators, yet they were not capable in law to take the same. 3. That the devise was void for uncertainty, and could not be supported as a devise to a charitable use.

1. They argued that the relators were a corporate body, and the inquiry was, Were they the object of the devise?" Whether a devise for the benefit of "the poor children of Caroline county, which attends the poor or charity school established at Hillsborough, the trustees of which school are to receive," &c. is a devise to the relators? Are the relators sufficiently named so as to claim the devise? A school was incorporated by the act of 1798, ch. 33, by the

style of "The Trustees of Hillsborough School in Caroline county;" and the devise is to the poor children who attend the poor or charity school at Hillsborough, to be administered and appropriated by the trustees of a certain school. The trustees of Hillsborough school are not the trustees of a poor or charity school. The object of the testator was to benefit a charity or free school, and the claimants are not the trustees of a charity or free school. There may be a school which would answer the description used in the devise; but if there be none, then the devise would lapse. The parties claiming should bring themselves with in the description of the will. The devise is claimed by a corporation, and under a will, said to refer to them in their corporate capacity. The corporate name is the essence of the corporation-it is the corporation itself. 2 Bac. Ab. tit. Corporations, (A) 2. (C) 4, (C 2,) 6. 2 Blk. Com, 474. 10 Coke, 125. A devise to a corporation must be made to it in its corporate name. The name may be supplied, if it is expressed by words synonimous. 2 Bac. Ab. tit. Corporations, (C) 5, (C 2,) 7. 11 Coke, 21. Here the corporation name is not so sufficiently set forth that the court can say the testator intended no other. The case of The Chancellor, &c. of Oxford, 10 Coke, 57, was sustained under the statute, 43 Eliz. ch. 4, for charitable uses. Some of the cases go upon the ground that an ancient corporation may acquire a name by reputation. 2 Bac. Ab. tit. Corporation, (C 3,) 7. And there are cases where the statute 43 Eliz. was necessary to cure the defect of a devise to a corporation by a wrong name. Duke on Charitable Uses, $79, 380, 506. So also in The Hager's Town Turnpike Company vs. Creeger, ante vol. 5, 122, where, in a subscription to the road, the style of the incorporation, was The President, Managers, &c. and the form used omitted the word President, and this court held it was sufficient without that word. There the omission of the word President left enough to show and distinguish the corporation from all others; but that is not the case here. The additional acts of assembly, passed since, respecting this corporation, can have no influence on the case. 2 Bac. Ab. tit. Corporations, (E 1,) 10..

2. If the corporation be sufficiently described, it is not capable of taking under the devise in the will. A corporation is a creature of the charter which gives it being,

Attorney General

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Attorney General

and it is restricted within the bounds given to it, and has
no capacities but those which the charter confers upon it.
2 Bac. Ab. tit. Corporations, (D) 9. (E 3,) 13. 12 Coke,
120. 3 Mod. 14. A corporation has no right to take and
hold property, except in the manner pointed out in the
charter. 2 Bac. Ab. tit. Corporations, (E 3,) 13. The
charter of this corporation is limited to $2000 yearly va-
lue, which they may take by gift, but in no other way
than for the benefit of the school generally. Here the
fund devised by the will is to be applied in the manner
pointed out in the devise, and not to the purposes which
the trustees may consider for the benefit of the school
generally. It is a devise for the benefit of a portion of
the scholars of the school-a certain description of poor
children. This is not within the view of the charter, but
is a devise for an object dehors that of the school, and is
not compatible with the powers granted by the charter.
Wilmore vs. Woodroffe, Ambl. 636. The trustees could
not appropriate the devise in a different mode than that
pointed out by the testator. We have no cy-přes doctrine
here. A devise is void which gives a latitude of discre
tion to the trustees. Morice vs. The Bishop of Durham,
10 Ves. 541. The act of 1798, ch. 33, equally with the
statute of Elizabeth, defines the object of charity. No
other can be given than by that act. The trustees cannot
apply it within the act of 1798, without violating the in-
tention of the testator. The court cannot separate the
devise, if part of it is within the statute. There is no
rule by which it can be separated as to the portions for
feeding, for clothing, and for educating. The court can-
not divert the whole to the purposes of education; they
cannot sever that which is intended as a unit; the whole
therefore must fail. A good use is to be preferred to a
superstitious use; and if the one depends upon the other,
the bad use contaminates the other. Duke 469. 4 Coke,
115. Attorney General vs. Whorwood, 1 Ves, 559. Chap-
man vs. Brown, 6 Ves. 403. The Attorney General vs.
Davies, 9 Ves. 535. These cases show, that if a void de-
vise is connected with a good devise, both are void. The
trustees cannot claim the bequest under the trust for any
purposes connected with the objects defined in the charter.
They are incapable of such a trust, and cannot be trustees.
for any purpose; if they can, then the cestui que trust be-

ing uncertain, as in the case of St. Peter's church, they must fail.

3. The objects of the trust are not so certain and defi nite as to admit of no doubt. Who are the poor children who attend the school? This is too vague, and gives no clue by which they can be ascertained. This question has already been argued in Dashiell, et al. vs. The Attorney General, (ante, vol. 5, 392.) A corporation cannot be executor. 1 Blk. Com. 504. They cannot be trustees. The Baptist Association vs. Hart's Ex'rs. 4 Wheat. S1. A use at common law is what a trust is now under the statute of uses. 1 Coke, 122. A corporation cannot be seized to the use of another. 2 Bac. Ab. tit. Corporations, (E) 11. Gilb. Uses & Trusts, 5. Bodies politic are not capable of a use or trust for the benefit of others. They cannot be seized of a trust different from what their charter embraces. If the charter gave them a right to be trustees for others, it could not be legal, because there is no mode of enforcing the trust. This is the clear doctrine of the common law. The statute of Elizabeth overturned the common law principle, and permitted corporations to hold in trust for charitable uses, though no such power is given by their charter. But if that statute has not been introduced here, then the principle remains as at common law, 2 Bac. Ab. tit. Corporations, 11. This devise is in perpetuity to the poor children of Caroline county. The fund is locked up for ever by the will of the testator, and there is no power of alienation. It is therefore inconsistent with the policy of the law. Gilb. Uses & Trusts, 113, 120, 168. 2 Blk. Com. 77, 120, A corporation cannot give perpetuity to an object not within the charter. Christ's College, Cambridge, 1 Wm. Blk. Rep. 91, The testator says that his own poor relations are to be preferred. The cases cited show who they are. The daughter of the testator will then come in if the charity is established.

Harper and R. Johnson, for the appellee, contended, 1. That the corporation was sufficiently designated in the will. There is nothing in the act of incorporation of 1798, ch. 53, to show that it is not a charity school. The preamble of the act states that it is to endow a school; and as there was no other school then established at Hillsborough, or in Caroline county, the testator evidently meant the trustees

1823.

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Attorney General