chaser had notice that there are no debts, and that this was so at the death of the testator. The form of such a bequest implies a confidence reposed in the trustee, in regard to the application of the purchase-money; and in all such cases it is unreasonable to require the purchaser to look to the application. And this is a principle which will, we apprehend, ultimately mark an intelligible distinction among the cases, in regard to this question.] § 1133. Where the time directed by the devise for a sale of the real estate has arrived, and the persons entitled to the money are infants, or are unborn; there, the purchaser is not bound to see to the application of the purchase-money, because he might otherwise be implicated by a trust of long duration.2 But, if an estate is charged with a sum of money, payable to an infant at his majority; there, the purchaser is bound to see the money duly paid on his arrival at age; for the estate will remain chargeable with it in his hands.3 § 1134. Where the trusts are defined, and yet the money is not merely to be paid over to third persons, but it is to be applied by the trustees to certain purposes, which require, on their part, time, deliberation, and discretion, it seems that the purchaser is not bound to see to the due application of the purchase-money; as, where it is to pay all debts, which shall be ascertained within eighteen months after the sale; or where the trustees are to lay out the money in the funds, or in the purchase of other lands upon certain trusts.5 [So, where a sale is made by trustees, under a power to sell and reinvest upon the same trusts, it has been held in America, that the purchaser is not bound to see to the disposition of the purchase-money."] § 1135. These are some of the most important and nice distinc 1 [* Stroughill v. Anstey, 1 De G., M. & G. 635. See also Andrews v. Sparhawk, 13 Pick. 393; Hauser v. Shore, 5 Ired. Eq. 357; Canbury v. Duval, 10 Penn. St. 267; Ad. Eq. Am. note, 156.] 2 Sugden on Vendors, ch. 11, § 1, p. 519 (7th edit.); id. ch. 11, § 1, vol. 2, p. 32 to 34 (9th edit.); Sowarsby v. Lacy, 4 Mad. 142; Lavender v. Stanton, 6 Mad. 46; Breedon v. Breedon, 1 Russ. & Mylne, 413. 3 Ibid.; Dickinson v. Dickinson, 3 Bro. Ch. 19. Sugden on Vendors, ch. 11, § 1, p. 520, 521 (7th edit.); id. ch: 11, § 1, vol. 2, p. 35, 36 (9th edit.); Balfour v. Welland, 16 Ves. 151; Wormley v. Wormley, 8 Wheat. 421, 442, 443. Ibid.; Wormley v. Wormley, 8 Wheat. 422, 442, 443. See Lining v. Peyton, 2 Desauss. 375; Redheimer v. Pyson, 1 Spear's Eq. 135. See also Nichols v. Peak, Beasley, Ch. 69. tions which have been adopted by courts of equity upon this intricate topic; and they lead strongly to the conclusion, to which not only eminent jurists, but also eminent judges, have arrived, that it would have been far better to have held in all cases, that the party, having the right to sell, had also the right to receive the purchasemoney, without any further responsibility on the part of the purchaser, as to its application. CHAPTER XXXII. CHARITIES. [* § 1136. Charities an important branch of trusts. § 1137. The civil law regarded charities with favor. § 1138. So also did it all gifts for public purposes. § 1139. How charities were sustained by the civil law. § 1140. Not allowed to fail for want of trustee, or object. § 1141, 1141 a. Law of charities derived through the civil law, but chiefly matured by Christianity. § 1142. English law of charities before statute of Elizabeth. § 1143-1145. Equity having recognized charitable bequests as valid led to the statute of Elizabeth. § 1146. At common law, bequests for charity required trustee. § 1147. Doubt whether original bill lay, in cases of charity, before statute of Elizabeth. § 1148-1154 c. It seems to be settled finally, that equity did sustain charitable bequests, independent of the statute. § 1154 d. The same rule prevails generally in America. § 1155. Since the statute of Elizabeth, the jurisdiction is confined to the objects there enumerated. § 1156. Trusts too indefinite are void, and the trustee holds for him who is legally entitled. § 1156 a, 1157. Bequests void for uncertainty under the statute. § 1158. The bequests must be charitable within statute. § 1159. Abstract of the provisions of statute of Elizabeth. § 1160. Enumeration of charitable uses specified in statute. § 1161. Chancery has jurisdiction of charities by bill. § 1162. The original jurisdiction clear before statute. § 1163. The form of proceeding is by information of the attorney-general. § 1164, 1164 a, 1164 b, 1164 c. What charities come within the statute. § 1165. Bequests for charity liberally construed. § 1165 a. Bequest for museum not a charity. § 1166. Legacy lapsed, as to trustees, enforced for charity. § 1167. Equity supplies defects in charitable bequests. § 1168. Equity will substitute legal for illegal object. § 1169, 1170. This doctrine, cy pres, dates early in the civil law, and will be enforced even where there is no legal trustee in existence. § 1170 a-1181. Charities so given that the objects fail will be given by the court to kindred objects, upon a new scheme drawn up under the direction of the court. § 1171. Equity will supply defects in conveyances to charity. § 1171 a. Dedication of lands to charitable use. § 1172. Charities sustained with marked qualification of will of testator. § 1173. Often, in former times, sustained by forced constructions. § 1174. These decisions cannot now be disregarded. § 1175. Charities cannot be altered after death of donor. § 1176. Will not be diverted from original purpose. § 1177. Court of equity acts on failure of trustee. § 1178. Accumulations applied to kindred objects. § 1178 a. § 1178 b. § 1178 c. charity funds. Trustee changed for incapacity or unfaithfulness. The court will exercise a discretion in the application of accretions to § 1179. Charitable legacies abate in proportion to others. § 1180, 1180 a. Assets not marshalled to support prohibited charities. § 1182. Bequests for specific charity, which fails, go to personal representative. § 1183. General, indefinite, private charities, not within statute, and void. § 1184. Bequests for foreign charities, not illegal here, carried into effect. § 1185. Conflict with mortmain acts will not avoid such bequests. § 1186. Will order money paid to trustees in foreign state. § 1187. Courts of equity may control charities, as trusts. § 1188. Jurisdiction of chancellor, personal, under statute. § 1189. May also proceed by original bill or by information. § 1190. The king administers indefinite charities; the court those whose objects and trustees are defined. § 1191. Trustees have the right to administer charities, in discretion. May be removed for neglect of duty, by court of chancery. § 1191 a. The will of donor deducible from his known opinions. § 1192. The informer of charities sometimes made a beneficiary. § 1192 a. Charitable trusts not affected by statutes of limitation or lapse of time. § 1193-1194. The statute of 9th Geo. II. ch. 36, has tended to lessen charitable bequests. But has not been generally adopted in this country. § 1194 b. § 1194 a. How courts of equity will dispose of the surplus income of charity funds. Courts of equity may remodel scheme for administration of charity. What amounts to public charity, and how administered. § 1194 c. § 1194 d. Religious corporations cannot, by their own act, place their property beyond their own control. § 1194 e. The trustee after having recognized the trust for many years is not at liberty to set up a claim adverse to the same. § 1194 f. Recent cases upon charities, and mode of conducting them. § 1194 g. The distinction between trusts to produce such a change in public sentiment as abolish slavery and to change the laws in regard to female suffrage. § 1136. IT is in cases of wills also that we most usually find provisions for public CHARITIES; and to the consideration of this subject, constituting, as it does, a large and peculiar source of equity jurisdiction under the head of trusts, we shall now proceed.1 § 1137. It is highly probable that the rudiments of the law of charities were derived from the Roman or civil law.2 One of the earliest 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. This permission was soon abused to so great a degree as to induce the Emperor Valentinian to enact a mortmain law, by which it was restrained. But this restraint was gradually relaxed; and in the time of Justinian it became a fixed maxim of Roman jurisprudence, that legacies to pious uses (which included all legacies destined for works of piety or charity, 1 A considerable portion of the succeeding account of Charities, and of the jurisdiction exercised by courts of equity, touching the same, is, with some additions and alterations, a transcript of the note (1) in the Appendix to 4 Wheaton, p. 1 to 23. It becomes necessary, therefore, to say that that note was written by me at the request of that able and learned Reporter, with an express understanding that its author should not then be made known. I now reluctantly disclose the authorship. But in discussing the same subject (which I had fully examined at the time, when I prepared my opinion in the case of The Trustees of the Philadelphia Baptist Association v. Smith, since published in the Appendix to 3 Peter's Reports, 481 to 593), it became impossible for me, in the present work, to avoid going over the same ground in language or manner, substantially different from that note; and I have been compelled, therefore, to make the present avowal, since I should otherwise seem to have appropriated so large a portion of the labors of another. * In Lord Chief Justice Wilmot's notes of his opinions (p. 53, 54), it is said: "Donations for public purposes were sustained in the civil law, and applied when illegal cy pres to other purposes, one hundred years before Christianity was the religion of the Empire." And for this is cited Dig. Lib. 33, tit. 2, De Usu et Usufruc. Legatarum, § 16, 17. 3 Cod. Theodos. Lib. 16, tit. 2, 1. 4. • Cod. Theodos. Lib. 16, tit. 2, 1. 20. To those who may not be familiar with the term " mortmain," it may be proper to state that the statutes in England, which prohibit corporations from taking lands by devise, even for charities, except in certain special cases, are generally called The Statutes of Mortmain, mortuȧ manu, for the reason of which appellation Sir Edward Coke offers many conjectures. But (says Mr. Justice Blackstone, 1 Black. Comm. 479), there is one which seems more probable than any that he has given us, namely, that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law; land, therefore, holden by them might, with great propriety, be said to be held in mortuâ manu. The word is now commonly employed to designate all prohibitory laws which limit, restrain, or annul gifts, grants, or devises of lands and other corporeal hereditaments to charitable uses. See, on this subject, 2 Black. Comm. 268 to 274. whether they related to spiritual or to temporal concerns) were entitled to peculiar favor, and to be deemed privileged testaments.1 § 1138. Thus, for example, a legacy of ornaments for a church, a legacy for the maintenance of a clergyman to instruct poor children, and a legacy for their sustenance, were esteemed legacies to pious and charitable uses.2 In all these cases the bequests had their charitable motives, independent of the consideration of the merit of the particular legatees. But other legacies, although not of a pious or charitable nature, but yet for objects of a public nature, or for a general benefit, were also deemed entitled to the like encouragement and protection. Thus, for example, a legacy destined for some public ornament, or for some public use, such as to build a gate for a city, or for the embellishment and improvement of a public street or square, or as a prize to persons excelling in an art or science, was deemed a privileged legacy, and a complete validity. "Si quid relictum sit civitatibus, omne valet, sive in distributionem relinquatur, sive in opus, sive in alimenta, vel in eruditionem puerorem, sive quid aliud." 4 Again: "Civitatibus legari potest etiam, quod ad honorem ornatumque civitatis pertinet. Ad ornatum; puta, quod instruendum forum, theatrum, stadium, legatum fuerit. Ad honorem; puta, quod ad munus edendum, venationemve, ludos scenicos ludos Circenses, relictum fuerit; aut, quod ad divisionem singulorum civium vel epulam, relictum fuerit. Hoc amplius, quod in alimenta infirmæ ætatis (puta, senioribus, vel pueris, puellisque), relictum fuerit; ad honorem civitatis pertinere respondetur."5 § 1139. The construction of testaments of this nature was most liberal; and the legacies were never permitted to be lost, either 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 12 Domat, Civil Law, B. 4, tit. 2, § 6, art. 127, p. 168 to 170, by Strahan; Ferrier, Dict. h. t.; Swinburne, Pt. 1, § 16, p. 103; Trustees of Baptist Association v. Hart's Executors, 4 Wheat. 1; s. c. 2 Peters, App. 481. 22 Domat, B. 4, tit. 2, § 6, art. 1, p. 168, art. 2, p. 169. 32 Domat, B. 4, tit. 2, § 6, art. 3, p. 169. Ibid.; art. 6, p. 170; Dig. Lib. 30, tit. 1, 1. 117. Ibid.; Dig. Lib. 30, tit. 1, 1. 122. |