Johnson v. Holifield.

it can be brought within the exception - a charitable use. 1 Perry Trusts, SS 377-380. However strongly the courts may be moved to carry into effect the intention and objects of the testator in the construction and execution of wills, such purpose cannot be accomplished, when any principle of law will be thereby violated. The rule against perpetuities, so firmly established and universally sustained, with a single exception, is founded on considerations of public policy. It has been said: "A perpetuity is a thing odious in the law, and destructive to the Commonwealth; it would stop commerce, and prevent the circulation of property." A private trust cannot be created, so as to operate the inalienability of property beyond the period prescribed by the rule. But gifts to charitable uses, being highly favored by the courts, and the public being regarded as concerned in upholding such trusts, will be sustained and carried into effect, though their duration may be perpetual. Hence, the sole subject of inquiry is, whether the bequest creates a private trust, or is its object a charitable use, in the legal sense.

It may be conceded, that a testator may make a valid bequest of money to erect a tomb, or monument; and that a valid trust to preserve and keep in repair a vault or tomb, or burying-ground may arise, when imposed as a condition to a bequest of property to individuals or to a society, a perpetuity not being created. Within the latter class falls Lloyd v. Lloyd, 10 Eng. L. & Eq. 139, in which the vicechancellor says: "Now I am satisfied that a condition for keeping a tomb in repair is not a charitable use, and is not illegal. It may be illegal to vest property in perpetuity in trust for that purpose, so as to create a perpetuity; but a direction that the wife and Mary Martha Lockley are during their lives to enjoy the annuity, and are to keep the tomb in repair, is quite lawful; it is a valid condition imposed on the enjoyment." And it may be that a bequest to maintain and keep in repair a public cemetery, though in perpetuity, would be sustained. The present case does not fall in either of these classes. The trust is, that the interest shall be expended annually, in the repair, preservation and neat keeping of the graves and monuments of testatrix and four other named persons, a trust characterized by an English vice-chancellor as merely honorary.

Trusts for charitable uses did not originate in the English statute, nor are they limited to the objects therein enumerated. Whatever object comes within the spirit and intendment of the

Johnson v. Holifield.

statute is included. GRAY, J., gives a clear and comprehensive definition in Jackson v. Phillips, 14 Allen, 539. He says: "A charity, in the legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." In Dexter v. Gardner, 7 Allen, 243, a bequest, which gave personal property to the overseers of the 'Long Plain Friends' preparatory meeting and their successors in office in trust forever, the income to be appropriated for the benefit. of the Friends' meeting in Fairhaven and Rochester," was sustained on the ground that all the objects, to which the overseers had a right, by the usages of their denomination, to apply their funds, are to be regarded as charitable. The objects were the maintenance of religious worship, aiding the sick and poor, and the purchase and repair of burying grounds. But in this case the distinction is recognized. It is said: "The case of Doe v. Pitcher, 6 Taunt. 359, in which it was held that a grant in trust to repair, and if need be, to rebuild a vault and tomb for a private family, was not a charity, is not in point, because the object there was merely secular." And in a late case in the same court it is held that a provision by will, for perpetually preserving, adorning and repairing a private mortuary monument, is void. Bates v. Bates, 134 Mass. 110; s. c., 45 Am. Rep. 305. In Swasey v. American Bible Society, 57 Me. 523, a legacy to keep in repair a family burying ground was upheld. But in a recent case it was also held that a bequest of money, the income to be expended forever to keep the testator's lot in a certain burying ground, in good order and condition, is in perpetuity, and void. Piper v. Moulton, 72 Me. 155. In this State, the jurisdiction of courts of equity, in such cases, is independent of the statute of uses, or of any prerogative power of the court, and is founded on its original and inherent power to sustain such trusts, because of their charitable uses, a jurisdiction which was exercised prior to the statute. Excepting the doctrine of cy pres, of the prerogative power, and of superstitious uses, as

Johnson v. Holifield.

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inconsistent with the character of our institutions, "the law of charities, as administered in the English Court of Chancery, is substantially our law." Williams v. Pearson, 38 Ala. 299. the English law, as modified by our decisions, must be mainly derived the rules and principles governing the nature and validity of the bequest under consideration. It seems to be well settled by the course of decisions, that a bequest of money, the interest thereon to be perpetually applied to preserving and keeping in repairs the graves and monuments of testatrix and other named persons, is repugnant to the rule against perpetuities, and void. Richard v. Robson, 31 Beav. 244; Fowler v. Fowler, 33 Beav. 616; Doe v. Pitcher, 6 Taunt. 358; Hoar v. Osborne, L. R., 1 Eq. 583; Dawson v. Small, L. R., 18 Eq. 114; Thompson v. Pitcher, 2 Marsh. 61; 1 Jarm. Wills (Big. ed.), 211; 2 Williams Ex'rs, 1140.

The bequest under consideration possesses none of the elements of a charitable use. It is not a gift to any public purpose. In the object, for which the interest on the money is to be expended, the public have no concerns. There is not the requisite vagueness and indefiniteness as to the number of persons to be benefited. It is not to keep in repair a family burying ground, in which rich and poor members may be buried. The object is to preserve the graves and monuments of testatrix and four relatives, specifically designated. The purpose is merely secular. However gratifying and creditable to the heart of the testatrix may be the object of the bequest, we are forced by the current and weight of authority, both in England and America, to declare that it is not a charitable use in the legal sense; and that the bequest attempts to create a perpetuity, and is void.

The record does not show whether the residuary legatee is also the heir at law. If not, the heir is not made a party. We therefore express no opinion, to whom the money bequeathed passes, the legacy being void.

The decree of the chancellor is reversed, and a decree will be here rendered declaring the bequest void. The appellee will pay the costs of suit in the Chancery Court, and the cost of appeal, the amount so paid to be retained by him out of the assets in his hands as executor. Decree reversed.

NOTE BY THE REPORTER.—In Holifield v. Robinson, 79 Ala. 419, on the same facts, it was held that the trust was void for want of capacity in the trustees to take. The court said: "If one such burden is assumed, so in

Johnson v. Holifield.

like manner another may be. The result might finally be, that in the course of a few generations, the chief time of these county officials would be monopolized in discharging duties which might more appropriately be devolved upon the sexton of a churchyard or of a city cemetery."

A bequest for permanently keeping burial lots in order is void. Coit v. Comstock, 51 Conn. 352; s. c., 50 Am. Rep. 29. To the same effect, Bates v. Bates, 134 Mass. 110; s. c., 45 Am. Rep. 305. See note, 39 Am. Rep. 738, 739. Div., June 11, 1886, 55 L. T.

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In re Vaughan; Vaughan v. Thomas, Ch. Rep. (N. S.) 547, a testator bequeathed £500 in trust to apply such part of the income thereof as might be necessary in keeping in repair a family vault, and the residue in keeping in repair his brother's tomb and the parish churchyard. Held, that the gift to repair the family vault and brother's tomb were void, but that the gift to repair the churchyard was good as a charitable gift for a public object. NORTH, J., said: "It seems to me that the repair of a parish churchyard is clearly for the benefit of the inhabitants of the parish. In the first place it was the duty of the parishioners to keep their churchyard in repair. Then again a case was cited which shows that if a person whose duty it is to repair the churchyard does not repair it he is subject to indictment. It is clear that the repair of a church is beyond all question a charitable object. So too the repair of a parsonage. Attorney-General v. Bishop of Chester, 1 Bro. C. C. 444, is an authority for that. The repair of ornaments of a church has been held a charitable object in Hoare v. Osborne, L. R., 1 Eq. 585. There KINDERSLEY, V. C., said: With respect to the monument in the church, there is no decision on the point how far a gift for perpetual repair, not of the fabric of the church, but of the ornaments in the church can be treated as a charity. In the absence of authority, I think I ought to hold such a gift to be a charity, and as such good.' To put it shortly, I do not see any difference between a gift to keep in repair what is called 'God's house,' ,' and a gift to keep in repair the churchyard round it, which is often called 'God's acre.' Then it is said that keeping in repair the tombs in a churchyard is only the same thing as keeping in repair a tomb in the churchyard. I do not think so. A testator providing for the repair of a family tomb is only ministering to his own private feeling or pride, or it may be to a feeling of affection he has for his own relations, and it is not for the benefit of the parish at large that a particular tomb should be kept in repair. But in respect of the repair of the churchyard as a whole, it is for their benefit. That distinction was pointed out by Lord ROMILLY in the case of Rickard v. Robson, 7 L. T. Rep. (N. S.) 87; 31 Beav. 244, where he says: I have had to consider this point lately in a case respecting the promulgation of the doctrines of Joanna Southcote. In that case I thought the gift was intended to be for a public benefit, and that it was a charitable gift which could be supported; but on comparing it with the present I am satisfied that this does not come within the term 'charity,' and is not within any of the words used in the preamble of the statute (43 Eliz., ch. 4). Lloyd v. Lloyd, 2 Sim. (N. S.) 255, and the other cases of Thomson v. Shakespeare, 1 L. T. Rep. (N. S.) 398; Johns. Chy. (Eng.)612, showing that a gift merely for the purpose of keeping up a tomb or building which is of no public benefit, and only an individual advantage, is not a charitable use

Snodgrass v. Reynolds.

but a perpetuity. The cases run into very fine distinction, because if the gift is to keep up an institution for the benefit of the public, then it is clearly a charity. But that does not occur in this case, for here the gift is merely to keep up certain individuals' tombs.' It seems to me clear therefore that if the gift had been for keeping in repair the churchyard and nothing else it would have been good. But in the present case the gift of the residue of the income was 'in or toward the expense of repairing or keeping in repair the tomb erected to the memory of my late brother Thomas, and the repairing and keeping in repair the same parish churchyard:' and it is said to be one complete and entire gift, a part of which at any rate is bad, and that the amount of the bad part cannot be ascertained, and therefore the whole is bad. That proposition seems to me not in accordance with the authorities. There is no difficulty in ascertaining the respective amounts to be assigned to the several objects which is what ought to be done, if possible. I find no difficulty here in saying that the gift of the residue is not void altogether; but that to the extent to which the gift is to repair the churchyard it is good; and I do not think there can be any difficulty in ascertaining what the expense of keeping in repair the brother's tomb would be. I need not fix the amount at the present moment, I can direct an inquiry as to that. To the extent of the capital representing the annual amount necessary to keep that tomb in repair, treating the capital as invested in consols, the gift fails. The rest of the £500 should be invested in the manner directed on trust to apply the income in repairing the parish churchyard."

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In an action by a lessee against a lessor for breach of a covenant to give pos session, although there was no fraud or wrong conduct, the measure of damages is the value of the lease. (See note, p. 606.)

A

CTION for breach of covenant. The head-note states the point. The plaintiff had judgment below.

S. F. Rice, E. P. Morrissett and Porter & Martin, for appellant.

H. C. Tompkins and Henry Wilson, contra.

CLOPTON, J. The defendant requested the following instruction: "If you should find for the plaintiff, and should believe from the evidence that the defendant King was not guilty of any VOL. LVIII — 76