so numerous that it is almost impossible to classify them; nevertheless, the four following heads, without including all possible charitable bequests, may be said to embrace a large majority of them :

1. Gifts for strictly eleemosynary purposes, such as "to the poor," "to a parish," "for releasing poor debtors," "for a hospital," "for orphans," "for the benefit of fugitive slaves," "for poor relations," or "for the relief of Indians."8

121. 2. Gifts for educational purposes: as to a college for educating orphans,' for advancement of learning,10 for the diffusion of knowledge among the working classes," to erect a free grammar school, or to promote the moral, intellectual, and physical instruction of a city,13 to increase the salaries of teachers,1 or for the foundation of scholarships and fellowships.15

122. 3. Gifts for religious purposes: as for the advancement of Christianity among the infidels,16 for the dissemination of the gospel," for foreign missions,18 for distributing Bibles and religious tracts,19 for the benefit of ministers of the gospel,20 and for building, ornamenting, or repairing churches." It may be here

1 Att. Gen. v. Matthews, 2 Lev. 167; Howard v. American Peace Society, 49 Maine, 288; Heuser v. Harris, 42 Ill. 425.

2 Att. Gen. v. Blizard, 21 Beav. 233; Att. Gen. v. Old South Society, 13 Allen, 474; State v. Gerard, 2 Ired. Eq. 210; Shotwell v. Mott, 2 Sand. Ch. 46; Overseers v. Tayloe, Gilm. 336.

Att. Gen. v. Ironmongers' Co, 2 My. & K. 576.

(the Smithsonian Institution case), cited in this case.

11 Sweeney v. Sampson, 5 Ind. 465.

12 Hadley v. Hopkins Academy, 14 Peck. 240; State v. McGowen, 2 Ired. Eq. 9.

13 Lowell's Appeal, 22 Pick. 215; Pickering v. Shotwell, 10 Barr, 27.

14 Price v. Maxwell, 4 Casey, 23.

15 Rex v. Newman, 1 Lev. 284; Att.

Corp. of Reading v. Lane, Duke, 81; Gen. v. Andrew, 3 Ves. 633; Case of Att. Gen. v. Kell, 2 Beav. 575.

5 Vidal v. Girard's Exrs., 2 Howard, 128. 6 Jackson v. Phillips, 14 Allen, 571. 7 Brunsden v. Woolridge, Amb. 507; Swasey v. American Bible Soc., 57 Maine, 527; Smith v. Harrington, 4 Allen, 566. s Magill v. Brown, Brightly, 347.

9 Vidal v. Girard's Exrs., 2 Howard, 128; Miller v. Atkinson, 63 N. C. 537. See, also, Paschal v. Acklin, 27 Tex. 173; Miller v. Porter, 3 P. F. Sm. 292.

10 Whicker v. Hume, 1 De G. M. & G. 506; 7 H. L. Cas. 123. See the PresiIdent of the United States v. Drummond

Jesus Col., Duke, 78; Att. Gen. v.
Bowyer, 3 Ves. 714.

16 Att. Gen. v. William and Mary's College, 1 Ves., Jr. 243.

17 Att. Gen. v. Wallace, 7 B. Mon. 611; Burr v. Smith, 7 Verm. 241.

18 Bartlet v. King, 12 Mass. 537; Fairbanks v. Lamson, 99 Mass. 533.

19 Att. Gen. v. Stepney, 10 Ves. 22; Winslow v. Cummings, 3 Cush. 358; Bliss v. American Bible Soc., 2 Allen, 334; Pickering v. Shotwell, 10 Barr, 23. 20 Att. Gen. v. Gladstone, 13 Sim. 7. 21 See cases cited, supra, p. 130, notes.

observed that the only religious use which is mentioned in the statute of Elizabeth is that for "repairs of churches;" but bequests for religious and pious purposes have always been considered within the equity of the statute, and have always been upheld.1 It may also be mentioned here that in England gifts for superstitious uses, that is, religious uses, which, according to the English ecclesiastical law, were illegal (as, for example, the maintenance of a priest to pray for the soul of the donor), were void. But in the United States there are no uses which can be denominated superstitious. A trust, however, for an infidel society cannot be sustained.3

123. 4. Gifts for erecting or maintaining public buildings or works, or otherwise lessening the burdens of government; and under this head may be comprehended all trusts for the building or repair of bridges, ports, causeways, sea-banks, for paving, cleansing, and lighting a town, for erecting town houses, and bequests of a like character."

It may be remarked here that when the subject of the trust is not the result of a gift, but of a contract or a statute, the use will not be a charitable one, for charity is necessarily based upon the idea of bounty, and cannot be predicated of an agreement to devote money to a benevolent object, or of an assessment under a statute."

124. From the above statement of the objects which have been considered charitable uses, it will be perceived that it is a task of no little difficulty to give a definition of a charitable use which shall be at the same time accurate and comprehensive.

The definition given by Sir William Grant is that those purposes are considered charitable which are enumerated in the statute of 43 Elizabeth, or which, by analogy, are deemed within its spirit and intendment; but it has been justly re

Perry on Trusts, & 701.

Methodist Church v. Remington, 1 Watts, 218; Gass v. Wilhite, 2 Dana, 175; • Miller v. Porter, 3 P. F. Sm. 292.

3 Zeisweiss v. James, 13 P. F. Sm. 465-471.

4 Jackson v. Phillips, 14 Allen, 556. 6 Coggeshall v. Pelton, 7 Johns. Ch. 292; Magill v. Brown, Brightly, 347;

Perry on Trusts, 704; Thomas v. Ellmaker, 1 Pars. Eq. 98; Beaumont v. Oliveira, L. R., 4 Ch. App. 309.

6 Brendle v. The German Ref. Cong., 9 Casey, 419.

7 Att. Gen. v. Heelis, 2 Sim. & Stu. 77, per Sir J. Leach, V. C.

8 In Morice v. the Bishop of Durham, 9 Ves. 405.

marked that this definition leaves something to be desired in point of certainty, and suggests no principle.'

Mr. Binney, in his great argument in the Girard Will Case, defined a charitable or pious gift to be "whatever is given for the love of God, or for the love of your neighbor, in the catholic and universal sense-given from these motives and to these ends-free from the stain or taint of every consideration that is personal, private, or selfish." And this definition has been approved by the Supreme Court of Pennsylvania.3 A more concise and practical rule is that of Lord Camden, adopted by Chancellor Kent, by Lord Lyndhurst, and by the Supreme Court of the United States-"a gift to a general public use, which extends to the poor as well as the rich." Mr. Justice Grey, in the Supreme Court of Massachusetts, in the case of Jackson v. Phillips, has defined a charity in its legal sense 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 their 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.5

This last definition, while not perhaps as concise as could be desired, is nevertheless both clear and comprehensive, and has already been adopted in text-books as the most satisfactory definition of a charitable use."

125. The nature of a charitable use having been explained, it will be proper now to point out the principal characteristics of this trust, which have rendered it worthy of a separate consideration. These are, first, the uncertainty of its objects; and, secondly, the perpetuity of its existence. It has already been pointed out that the chief characteristic of charitable uses was

1 Jackson v. Phillips, 14 Allen, 555.

2 Vidal v. Girard's Exrs., 2 Howard, 128.

Price v. Maxwell, 4 Casey, 35.
Jones v. Williams, Ambl. 652; Cogge-

shall v. Pelton, 7 Johns. Ch. 294; Mitford v. Reynolds, 1 Phil. Ch. 191, 192; Perin v. Carey, 24 How. 506.

5 14 Allen, 555.

6 Perry on Trusts, & 697.

the fact that the objects of the trust were always, to a greater or less extent, uncertain; and this characteristic of charitable uses has led to a doctrine peculiar to trusts of this sort, viz., that known as the cy pres doctrine.

126. The cy pres doctrine has been much discussed, if not a little severely criticized, and in many cases misunderstood. The very clear statement of the law upon this subject by Mr. Justice Grey in Jackson v. Phillips, has done much to establish an accurate understanding of the doctrine.

The cy pres doctrine is one under which courts of chancery act, when a gift for charitable uses cannot be applied according to the exact intention of the donor. In such cases the courts will apply the gift, as nearly as possible (cy pres), in conformity with the presumed general intention of the donor; for it is an established maxim in the interpretation of wills, that a court is bound to carry the will into effect if it can see a general intention consistent with the rules of law, even if the particular mode or manner pointed out by the testator cannot be followed.3 Good illustrations of this doctrine will be found in the Baliol College Case, and in the Ironmongers' Case.5

127. Another instructive example may be found in the case of Jackson v. Phillips. There, one of the trusts in the will was for "the preparation and circulation of books and newspapers, the delivery of speeches, lectures, and such other means as in their (the trustees') judgment will create a public sentiment that will put an end to negro slavery in this country," and for "the benefit of fugitive slaves escaping from the slave-holding States." After the death of the testator, but while the litigation upon his will was in progress, the amendment to the Constitution of the United States abolishing slavery was adopted. The immediate purpose for which the bequest was designed having thus failed, the case was referred to a master to report a scheme, cy

'Supra, p. 127.

2 14 Allen.

3 Jackson v. Phillips, 14 Allen, 556; Bartlet v. King, 12 Mass. 543; Inglis v. Sailors' Snug Harbor, 3 Pet. 117, 118; Moggridge v. Thackwell, 7 Ves. 69.

4 Att. Gen. v. Guise, 2 Vern. 266; Att.

Gen. v. Baliol Col., 9 Mod. 407; Att. Gen. v. Glasgow Col., 2 Collyer, 665; 1 H. L. Cas 800.

5 Att. Gen. v. Ironmongers' Co., Cr. & Ph. 208.

6 14 Allen, 571.

pres, for the application of the testator's bounty, and the fund was ultimately applied to the New England Branch of the American Freedmen's Union Commission.

128. The above cases will serve to illustrate the cy pres doctrine in its general aspect. In England, however, this doctrine appeared in two distinct shapes. It was in the first place applied in the exercise of a royal prerogative, delegated to the chancellor under the sign manual of the crown; and, in the second place, by the chancellor in the exercise of his ordinary equitable jurisdiction. By virtue of the first or prerogative power, the chancellor assumed to direct a scheme for the application of a charitable bequest when the particular charitable use designed by the testator was illegal, and therefore void, or when the gift was for an indefinite charitable purpose, and no trustees were named by the donor to carry it out. Thus where a sum of money was bequeathed to a Jews' synagogue, which bequest, according to the law of England, was illegal, it was applied to the benefit of a foundling hospital. And a bequest for the education of poor children in the Roman Catholic faith has been disposed of by the king under his sign manual. It is obvious that such an extravagant stretch of authority belongs to the executive rather than to the judicial department of government; but from the circumstance that this power was in England exercised by a judicial officer (the chancellor), it has come to be confounded with the purely judicial cy pres doctrine, and has necessarily tended to bring the latter into some disrepute. The judicial cy pres doctrine is not, in fact, open to the same objections as the extraordinary assumption of power just described, and within proper limits seems to be a reasonable exercise of judicial discretion. The doctrine is this: Where a gift is made to trustees for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no intention is ex

Moggridge v. Thackwell, 7 Ves. 83. See 1 Am. Law Reg. (N. S.) 400, 401. 2 Story's Eq. Jurisp., 1168.

3 The term cy pres has also been used to designate the rule of construction which has sometimes been applied to executory devises or powers of appointment to indi

viduals, in order to avoid the objection of remoteness. It was this doctrine which has been condemmed by Lord Kenyon and Lord Eldon. See Brudenell v. Elwes, 1 East, 451; Sugdon on Powers, ch. 9, sec. 9; Jackson v. Phillips, 14 Allen, 574.