APPENDIX. NOTE I. On Charitable Bequests. (By Mr. Justice STORY.) VERY few cases upon the subject of charitable donations have originated in the United States; in some of which, however, it is highly probable, the English doctrines on this subject may be of limited, and perhaps, even of general application. Where this is not the case, they may gratify professional curiosity, and afford materials for illustration in analogous branches of the law, as there is hardly any portion of the science in which more ingenious reasoning and indefatigable diligence have been employed. The object of the following sketch is to give a connected view of some of the principal features of the system. It is highly probable, that the rudiments of the law of charities were derived fron the civil law. One of the carliest fruits of the emperor Constantine's real or pretended zeal for Christianity was a permission to his subjects to bequeath their property to the church. (a) This permission was soon abused to so great a degree, as to induce Valentinian to enact a mortmain law, by which it was restrained. (b) But this restraint was gradually relaxed, and in the time of Justinian, it became fixed, as a maxim of Roman jurisprudence, that legacies to pious uses, which included all legacies destined for works of charity, whether they related to spiritual or temporal concerns, were of *peculiar favor, and to be deemed privileged testaments. (c) The construction of [*4* testaments of this nature was most liberal; and the legacies were never permitted to be lost, cither by the uncertainty or failure of the persons or objects for which– they were destined. • Hence, if a legacy was given to the church, or to the poor generally, without any description of what church or what poor, the law sustained it, by giving it, in the first case, to the parish church of the place where the testator lived; and in the latter case, to the hospital of the same place; and if there was none, then to the poor of the same parish. (d) And in all cases where the objects were indefinite, the legacy was carried into effect under the direction of the judge having cognisance of the subject. (e) So, if a legacy were given for a definite object, which either was previously accomplished, or which failed, it was, nevertheless, valid, and applied under judicial direction to some other object. (g) The high authority of the Roman law, coinciding with the religious notions of the times, could hardly fail to introduce the principles of pious legacies into the common (a) Cod. Theodos. L. 16, t. 2, leg. 4. (b) Ibid. leg. 20. (e) 2 Domat, Loix Civiles, L. 4, t. 2, § 6, I. 1, 2, 7, p. 161, 163; Ferriere, Dict. h. t.; Swin burne, p. 1, § 13, p. 103. (d) 2 Domat, L. 4, t. 2, § 6, l. 4, p. 162; Ferriere, Dict. h. t. (e) 2 Domat, L. 4, t. 2, § 6, l. 5, p. 152; Swinburne, p. 1, § 16, p. 104. (g) 2 Domat, L. 4, t. 2, § 6, l. 6, p. 162, 163. Charitable Bequests. law of England; and the zeal and learning of the ecclesiastical tribunals must have been constantly exercised to enlarge their operation. Lord THURLOW(a) was clearly of opinion, that the doctrine of charities grew up from the civil law; and Lord ELDON, (b) in assenting to that opinion, has judiciously remarked, that, as at an early period, the Ordinary had power to apply a portion of every man's personal estate to charity, when, afterwards, the statute compelled a distribution, it is not impossible, that the same favor should have been extended to charity, in wills which, by their own force, purported to authorize such a distribution. Be the origin, however, what it may, it cannot be *5] *denied, that many of the privileges attached to pious legacies have been for ages incorporated into the English law. Indeed, in former times, the construction of charitable bequests was pushed to a most alarming extravagance; and though it has been in a great measure checked in later and more enlightened times, there are still some anomalies in the law of this subject, which are hardly reconcilable with any sound principles of judicial interpretation, or the proper exercise of judicial authority. The history of the law of charitable bequests, previous to the statute of 43 Elizabeth, c. 4. which is emphatically called the statute of Charitable Uses, is extremely obscure. (c) Few traces remain of the exercise of jurisdiction over charities, in any shape, by any courts, previous to that period. Of the jurisdiction of chancery, nothing is ascertained with precision; and the few cases to be found at law turned mainly on the question whether the uses were charitable, or whether they were superstitious, within the statutes against superstitious uses. One of the earliest cases is Porter's Case, 1 Co. 22 b, in 34 & 35 Eliz., already alluded to in the decision of the supreme court in the text (ante, p. 33), but there the parties made out their case at law, upon general principles, without reference to any peculiar rules of construction as to charities; and Lord ELDON seems to think, that this was the usual course, prior to the time of Lord ELLESMERE. (d) The statute of Elizabeth is now considered as the principal source of the law of charities, and has given rise to various questions. It is to this statute that the very extensive jurisdiction at present exercised by the court of chancery over subjects of this nature is generally, if not exclusively, to be referred. *6] The statute, in its preamble, (e) enumerates certain uses which *it deems charitable. These are gifts, devises, &c., for the relief of aged, impotent and poor people; for maintenance of sick and maimed soldiers and mariners; for schools of learning, free schools and scholars of universities; for repairs of bridges, ports, havens, causeways, churches, sea-banks, and highways; for education and preferment of orphans; for or towards the relief, stock or maintenance for houses of correction; for marriages of poor maids; for supportation, aid and help of young tradesmen, handicraftsmen and persons decayed; for relief or redemption of prisoners or captives; and for aid or ease of any poor inhabitants, concerning payments of fifteenths, setting out of soldiers, and other taxes. These are all the classes of uses which the statute reaches. Since the passage of the staute, it has become a general rule that no uses are to be considered as charitable, and entitled, as such, to the protection of the law, except such as fall within the words or obvious intent of the statute. Sir WILLIAM GRANT has observed, that the word "charity," in its widest extent, denotes all good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. In neither of these senses, is it employed in the court of chancery. There, its signification is chiefly derived from the statute of Elizabeth.(g) And, therefore, where a testatrix bequeathed her personal estate to the Bishop of Durham, &c., upon (a) White v. White, 2 Bro. C. C. 12. (b) Moggridge v. Thackwell, 7 Ves. 36, 69; Mills v. Farmer, 1 Merivale 55, 94, 95. (c) There was, in fact, a statute passsed respecting charitable uses, in 39 Eliz., c. 9; but it was repealed by the statute 43 Eliz. See Com. Dig., Charitable Uses, N, 14. (d) Attorney-General v. Boyer, 3 Ves. 714, 726. (e) See the statute at large, 2 Inst. 707; Bridgman's Duke on Charit. Uses, c. 1. (g) Morice v. Bishop of Durham, 9 Ves. 399. APPENDIX. Charitable Bequests. [ *7 trust, to pay her debts and legacies, &c., and to dispose of the ultimate residue to such objects of benevolence and liberality as the Bishop of Durham, in his own discretion, shall most approve of; and she appointed the Bishop her sole executor: upon a bill brought by the next of kin to establish the will and all the legacies, except the residuary bequest, and to declare that void, and a resulting trust for the next of kin, it was held, first, by the master of the rolls, and afterwards on appeal by the lord chancellor, that the residuary bequest was void, aud that the property was a resulting trust for the next of kin, upon the ground, that objects of benevolence and liberality were not necessarily such as were within the statute of Elizabeth, and, *therefore, were objects too indefinite to be executed by the court; and if so, then the trust was void; for there can be no valid trust, over which the court of chancery will not assme a control. The master of the rolls said, those purposes are considered as charitable which the statute enumerates, or which, by analogies, are deemed within its spirit or intendment; and to some such purpose every bequest to charity generally shall be applied. But it is clear that liberality and benevolence can find numberless objects not included in the statute, in the largest construction of it. The use of the word "charitable," seems to have been purposely avoided in this will. The question is not whether the bishop may not apply the residue upon purposes strictly charitable, but whether he is bound so to apply it. (a) The statute appoints a mode of inquiring into, and enforcing, all charitable uses, bequests, &c., by a commission issuing out of chancery; and the commissioners, upon such inquiry, are authorized to set down such orders, judgments and decrees, as that the lands, &c., may be faithfully employed for the charitable uses to which they were appointed; which orders, judgments and decrees are to stand good, until undone and altered by the court of chancery, upon due complaint of the party grieved. The statute, then, after enumerating certain exceptions to its operation, gives authority to the court of chancery to take order for the due execution of the orders, judgments and decrees of the commissioners, returned into chancery, and upon any complaint in the premises, and the hearing thereof, to "annul, diminish, alter or enlarge the said orders, judgments and decrees, &c., as shall be thought to stand with equity and good conscience, &c." Shortly after the statute passed, it became a question, whether the court of chancery could grant relief by original bill, in cases within the statute, or whether the remedy was confined to the process by commission. That doubt remained until the reign of Charles II., when the question was finally settled in *favor of the jurisdiction [ *8 by original bill. (b) It is not quite certain, upon what grounds the court arrived at this conclusion. The probability is, that in cases of charitable uses of a definite nature, where the trustees were alive, and the objects were certain, the court exercised a general jurisdiction by original bill, upon the same grounds as other bills; for definite trusts are maintained upon its ordinary jurisdiction. And as the court might, upon all commissions, alter, amend and enlarge the decrees of the commissioners, in all cases of charities within the statute, whether definite or indefinite, the proceeding in both cases became mixed in practice,, and was inveterately established, before its correctness was very extensively questioned. And it was, in reality, more convenient for all parties, that the court should do that, in the first instance, which it certainly could do, after the return of the commission, upon complaint, so that public convenience and private interest might produce a general acquiescence in a course, which settled the law of the case without any circuity, until it became too late successfully to combat its regularity. (c) (a) Morice v. Bushop of Durham, 9 Ves. 399. s. c. 10 Id. 522. (b) Attorney-General v. Newman, 1 Ch. Cas. 157; s. c. 1 Lev. 284; West v. Knight, 1 Ch. Cas. 134; Anon., Ibid. 267; Parish of St. Dunstan v. Beauchamp, Ibid. 193; 2 Fonbl. Eq. b. 3, p. 2, c. 1, § 1. ` (c) See Attorney-General v. Dixie, 13 Ves. 519; Kirkby Ravensworth Hospital, 15 Ibid. 305; Green v. Rutherforth, 1 Ibid. 362; Attorney-General ". Earl of Clarendon, 17 Ibid. 491, 499; 2 Fonbl. Eq. b. 3, p. 2, c. 1, § 1, note a; Cooper's Eq. Pl. 292; Bailiffs, &c., of Burford v. Lenthall, 2 Atk. 550. Charitable Bequests. Be this as it may, it is very certain, that chancery will now relieve by original bill, or information, upon gifts, bequests, &c., within the statute of Elizabeth; and informations by the attorney-general to settle, establish or direct charitable donations, are very common in practice. (a) But where the gift is not a charity within the statute, no information lies in the name of the attorney-general to enforce it. () And if an information be brought in the name of the attorney-general, and it appears to be such a charity as the court ought to support, though the information be mistaken in the title or prayer of relief, yet the bill will not be dismissed, but the court will support and *9 ] establish *the charity in such manner as by law it may. (c) But the jurisdiction of chancery over charities does not exist, where there are local visitors appointed; for it then becongs to them and their heirs to visit and control the charity. (d) As to what charities are within the statute, they are enumerated with great particularity in Duke on Charitable Uses, and Comyn's Digest, tit. Charitable Uses, N, 1. It is clear, that no superstitious uses are within its purview, such as gifts of money for the finding or maintenance of a stipendiary priest, or for the maintenance of an anniversary or obiit, or of any light or lamp in any church or chapel, or for prayers for the dead, or to such purposes as the superior of a convent or her successor may judge expedient. (e) But there are certain uses which, though not within the letter, are yet deemed charitable, within the equity of the statute; such as money given to maintain a preaching minister; to maintain a school-master in a parish; for the setting up an hospital for the relief of poor people; for the building of a sessions-house for a city or county ; the making a new or repairing an old pulpit in a church, or the buying of a pulpit cushion or pulpit cloth; or the setting up of new bells where none are, or amending of them where they are out of order. (f) And charities are so highly favored in the law that they have always been more liberally construed than the law will allow in gifts to individuals. In the first place, the same words in a will, applied to individuals, may require a very different construction when applied to the case of a charity. If a testator gives his property to such person as he shall hereafter name to be his èxecutor, and afterwards appoint no exec*10] utor; or if, having appointed an executor, the latter dies in the lifetime of the testator, and no other person is appointed in his stead, in either of these cases, as to individuals, the testator must be held intestate, and his next of kin will take the estate. But to give effect to a bequest in favor of charity, chancery will, in both instances, supply the place of an executor, and carry into effect that which in the case of individuals must have failed altogether. (g) Again, in the case of an individual, if an estate be devised to such person as the executor shall name, and no executor is appointed, or, one being appointed, dies in the testator's lifetime, and no one is appointed in his place, the bequest amounts to nothing. Yet such bequest to charity would be good, and the court of chancery would, in such case, assume the office of executor. (h) So, if a legacy be given to trustees, to distribute in charity, and they die in the testator's lifetime, although the legacy is lapsed at law (and if they had taken to their own use, it would have been gone for ever), yet it will be enforced in equity. (i) Again, (a) Com. Dig. Chan. 2, N, 1. The proceeding by commission appears to have almost fallen practically into disuse. Ed. Rev. No. lxii. p. 383. (b) Attorney-General v. Hever, 2 Vern. 382. (c) Attorney-General v. Smart, 1 Ves. 72;. Attorney-General v. Jeanes, 1 Atk. 855; Attorney-General v. Breton, 2 Ves. 425; AttorneyGeneral v, Middleton, Ibid. 327; AttorneyGeneral v. Parker, 1 Ibid. 43; s. c. 2 Atk. 576; Attorney-General v. Whittley, 11 Ves. 241, 247. (d) Attorney-General v. Price, 8 Atk. 108; Attorney-General v. Governors of Harrow (e) Duke's Char. Uses, 105: Bridg. Duke 349, 466; Adams v. Lambert, 4 Co. 104; Smart v. Spurrier, 6 Ves. jr. 567. (f) Duke 105, 113; Bridg. Duke 354; Com. Dig. Char. Uses, N, 1. (g) Mills v. Farmer, 1 Merivale 55, 96; Moggridge v. Thackwell, 7 Ves. 36. (h) Mills v. Farmer, 1 Merivale 55, 94; Moggridge v. Thackwell, 7 Ves. 36; Attorney-General v Jackson, 11 Ibid. 365, 367. (i) Attorney-General v. Hickman, 2 Eq. Cas. |