charity, but that the purpose of the donor was to provide that the fund should go to his oldest male heir if the state should violate the condition precedent to the investment of the fund in the charitable object mentioned. This view of the sixth covenant is confirmed by the language of the first covenant, which prescribes the "way and manner" in which, and the period during which, the moneys should be accumulated, the time when they should be paid over to the state, and the purpose for which they should be paid to the state. That purpose is the sole charitable purpose mentioned in the agreement. It is for "discharging the whole indebtedness of the state, and for no other purpose whatsoever." No general charitable purpose is expressed. After reading and re-reading the agreement with the utmost care, we are convinced that the able argument of the learned counsel for the appellant to the effect that the deposit of $377.35 with the trust company and the gift to charity were contemporaneous events, and, therefore, that the direction as to the "way and manner" of accumulating the moneys was a direction concerning the administration of a fund already given to charity, is not sound. The gift to charity was conditional. The donor did not intend that his deposit should ever take effect as a gift to charity if, at any time before the accumulated fund should equal the state's debt, the state should violate the condition mentioned in the sixth covenant, nor did he intend that it should take effect as a gift to charity before the time when the accumulated fund should equal the state's debt. He did not know, nor could any one know, that that time would ever come. The vesting of the fund in charity was therefore postponed, possibly forever. In such circumstances, have we the power to give effect to the donor's charitable intent?

When a gift to charity is absolute, and the gift and the constitution of the trust for charity are contemporaneous and immediate, the fund may perhaps then be accumulated, subject to reasonable control by a court of equity. Some American cases so hold (St. Paul's Church v. Attorney General, 164 Mass. 188, 203, 204, 41 N. E. 231; Woodruff v. Marsh, 63 Conn. 125, 137, 138, 26 Atl. 846, 38 Am. St. Rep. 346; Brigham v. Peter Bent Hospital, 134 Fed. 513, 524, 67 C. C. A. 393), though in England it has been held that where there is an absolute. immediate gift to charity, payable with accumulated income at a future time, no one but the charity being interested therein, the charity may put an end to a direction to accumulate (Wharton v. Masterman, App. Cas. [1895] 186; Gray on Perpetuities, § 679a). The American cases rest on the doctrine that, since the rule against perpetuities is not applicable to a gift to charity, a direction to accumulate for a period longer than a life in being and 21 years shall not make the gift void, but that a court of equity may limit the period of accumulation where in its judgment a sound public policy demands that the period prescribed by the donor should be shortened. But where the accumulation is a condition precedent to the vesting of the gift in

charity, and the period of accumulation transgresses the rule against remoteness, the gift, by the great weight of authority, is void ab initio. It was so held in Hillyard v. Miller, 10 Pa. 326.

It was said, it is true, in Odell v. Odell, 10 Allen (Mass.) 1, 12, that Hillyard v. Miller was overruled by Philadelphia v. Girard's Heirs, 45 Pa. 9, 84 Am. Dec. 470. But we do not so understand the later case. Chief Justice Lowrie, in referring to that part of the opinion in Hillyard v. Miller which dealt with this question, said: "It is quite clear that the secondary trust was void, although a charity, because it might not become vested within the time allowed for the vesting of executory devises."

In Jocelyn v. Nott, 44 Conn. 55, where lands were devised to trustees for a charitable use, subject, however, to a condition contravening the rule against remoteness, the devise was held to be void. In Brooks v. Belfast, 90 Me. 318, 38 Atl. 222, it was said: "It is suggested in reply, however, that trusts for public charitable purposes are upheld under circumstances under which private trusts would fail. Russell v. Allen, 107 U. S. 163 [2 Sup. Ct. 327, 27 L. Ed. 397]. And the statement is often found in the books that the law against perpetuities does not apply to public charities. But the statement is misleading. It is undoubtedly true that the principle of public policy, which declares that estates shall not be indefinitely inalienable in the hands, of individuals, is held inapplicable to public charities. Odell v. Odell, 10 Allen [Mass.] 1. But it must be remembered that the rule against perpetuities, in its proper legal sense, has relation only to the time of the vesting of an estate, and in no way affects its continuance after it is once vested. The perpetual duration of a charitable trust, after it has become vested, is one of its distinctive characteristics. It is the possibility that the estate left in trust for a charitable purpose may not vest or begin within the limits of a life or lives in being and 21 years that offends against the rule of perpetuity or remoteness. In this respect a gift in trust for charity is 'subject to the same rules and principles as any other estate depending for its coming into existence upon a condition precedent. If the condition is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetuities, the gift fails ab initio.'

* * *

It is urged by the counsel for the appellant that the rule against perpetuities or remoteness is applicable to gifts to charity only where there is a prior gift or a "first taker," whose estate may continue for a period beyond the time limited by the rule against perpetuities or remoteness. As there is no "first taker" in the case now in hand, it is said that the rule mentioned does not defeat the gift. The argument ignores the fact that by the McCay agreement there is no gift, either to charity or to any other party, except upon a condition which contravenes the rule. If by the agreement there had been expressed an intention to make an absolute immediate gift to charity, we should have a very different case before us. There are many cases in the

books where immediate gifts to charity have been sustained, although they have been made payable to corporations not formed when the gifts to charity took effect. So there are many cases where immediate gifts to charity have been sustained, notwithstanding illegal directions concerning the manner of administering the charity. But these cases are not in point. Here the gift was not vested in charity when McCay deposited his money with the Girard Trust Company. As is said by Prof. Gray in his work on Perpetuities (section 674): "If the accumulation is a condition precedent, and the time of accumulation is or may be too long, the gift of the accumulated fund is bad altogether. The settlor or testator has said that the gift shall vest at a certain time, or on a certain event. The courts cannot substitute a shorter time or a speedier event."

Our conclusion is that the gift to charity was void ab initio, and, consequently, that the Girard Trust Company held the deposits made by Charles F. McCay, and all accretions thereto, as a resulting trust, in favor of Charles F. McCay, his executors, administrators, and assigns. As McCay is now dead, his administrator is entitled to the fund.

The decree of the court below was correct, and is affirmed. The costs of both parties, both in this court and the court below, should be paid out of the fund.

BUFFINGTON, Circuit Judge (dissenting). There is no controversy as to the law in this case. Concededly, the gift was for a lawful charity. The only question is the construction of McCay's deed. Did the state of Pennsylvania take a present interest in the gift when McCay gave the fund "for the purpose of discharging the whole indebtedness of the state and for no other purpose whatsoever"? The court below held, and this court concurred in its view: "That the gift of the accumulated trust fund to the state of Pennsylvania is a gift of which the vesting is postponed beyond the limit allowed by the rule against perpetuities."

Now to me it is clear that McCay's deed vested in the state, ab initio, a present interest in the fund. True, the full, absolute enjoyment thereof was postponed until the gift's accumulations equaled the charity in view; but when the fund passed from the donor a present. interest in the corpus thereof passed to the state. I say this because clause 1 made it compulsory on the trustee to invest, and as they were paid, to reinvest, the fund in the bonds of the state of Pennsylvania. In reality the gift created, in private hands, a sinking fund for the state; and will it be contended that a state, a municipality, a private corporation, has no interest in a sinking fund which in form continues an indebtedness that in reality is paid as soon as sinking fund ownership accrues? But McCay went further. He linked the state's interest to this private sinking fund, and gave it a present interest therein, by the third provision of his deed, which made it compulsory

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on the trustee, as it turned the gift into Pennsylvania state bonds, to stamp on each one: "This bond, being purchased by the Girard Life Insurance, Annuity & Trust Company of Philadelphia for a trust fund, is not transferable, and the state of Pennsylvania is hereby released from paying the same, except to the said company."

This indorsement in furtherance of the charity in view, and made in accord with the donor's directions, released the state from payment of such bond. If the trustee had diverted such released bond from the sinking fund, and transferred it to third persons, surrendered it to McCay, or even to his personal representatives, will it be contended the state could be held for its already released bond thus sought to be revivified? That the bonds were, in the donor's view, released by the indorsement upon them, is shown in the provision for paying over in the event of forfeiture, viz.: “Shall pay over to the oldest male heir of the said Charles F. McCay, then living, his executors, administrators, or assigns, the whole amount belonging to the said accumulating fund at that time uninvested in the said stocks of Pennsylvania, and also all the amounts they shall thereafter receive from the said state as principal and interest on said stocks."

But it is said the indorsement on the bond did not release the payment of the bond as against the trustee, and therefore no interest in the gift vested in the state. But this contention loses sight of the real purpose of this narrow exception to the broad, general release to the state. It was an exception made simply to provide for reinvestment in other state bonds and reindorsement thereon of the same release. In other words, payment by the state to its own trustees was for reinvestment in its own reindorsed and re-released securities. It was a mere continuance of a state debt extinction, which began, and had to begin, when the gift was made.

Finding such provisions in McCay's deed, and bringing to its construction the virile purpose of the law to uphold the intent of donors of public charities, for "the rule with us," as said by Judge Arnold, supra, "when a charity is created, is to adopt every means to uphold it, and every attack upon it, unless founded on strong reasons, shall fail," I am constrained to differ from the court's construction. And in so doing I cannot but believe the view here expressed is in accord with the intent of the donor, who during the 40 years of his life succeeding his gift never asserted the absence of interest of his state in his gift. This fact is a significant aid to construction, for in Attorneyj General v. Drummond, 1 Dr. & War. 368, Chancellor Sugden well said: "Tell me what you have done under such a deed, and I will tell' you what that deed means."

CHAPTER XLI

ACCUMULATIONS

SOUTHAMPTON v. HERTFORD.

(Court of Chancery, 1813. 2 Ves. & B. 54.)

By indentures, dated the 12th and 13th of July, 1790, estates were conveyed in strict settlement; subject to a term of 1000 years upon the following trust:

That during the minority or respective minorities of any person or persons respectively, who for the time being should by virtue of the limitations hereinbefore contained be immediate tenant for life, in tail male, or in tail, in possession of or actually entitled to the yearly rents, issues, and profits, the trustees should receive and take the yearly rents, &c., and pay and apply so much as should remain after answering the payments before or after mentioned in or towards the discharge of the principal sums, which should then affect the said estates, so that they might be completely freed and discharged from the same; and after payment of all such charges and encumbrances should during such minority or respective minorities as last mentioned, lay out and invest the said yearly rents, &c., in the purchase of public stocks or funds, or upon government or real securities in England, to be from time to time altered and varied as occasion should require; and receive the dividends, interest, &c.; and lay out and invest the same in the purchase of or upon stocks, funds, or securities, of the like nature, to be also from time to time altered and varied, so that the same might during such minority or respective minorities, as aforesaid, accumulate; and to stand possessed of and interested in the sums of money, stocks, funds, and securities, to be purchased with such yearly rents, and the interest, dividends, and annual produce, respectively, and the accumulations thereof respectively, and the dividends and annual produce of such accumulations, in trust for such person or persons respectively as should immediately upon the expiration of such minority or respective minorities, as aforesaid, or the death or deaths of such minor or minors, as aforesaid, be tenant or tenants in possession, or entitled to the rents and profits and be of the age of twenty-one years; and that in the mean time and until the said rents, issues, and profits should amount to a sum competent for the discharge of the sums so to be discharged, the trustees might invest the same in the purchase of stock, &c., and that in such case the dividends and interest of such last-mentioned stock should be accumulated, and the same and the accumulations. thereof be laid out and invested, as last hereinbefore mentioned, till