uncommonly adopt, of making all the contingency named in their wills conform to the state of facts existing at the date of the will, when it is almost certain that many other changes will also have occurred, as well as the particular contingency provided for, often leads to very unexpected results. These considerations should induce all persons occupied in drawing wills to provide for possible contingencies in the adoption of the more general terms, rather than those more specific, when speaking in regard to events too remote and uncertain to be strictly defined. 18. The time of determining the survivorship will not always be deferred until the period of distribution, but only till the death of that member of the class upon which event the survivorship takes effect.26 But the general rule seems to be as determined in the House of Lords, that the words of survivorship will be referred to the period of distribution, unless there is a clear indication of a contrary intent.27 SECTION VIII. GENERAL GROUNDS OF CONSTRUCTION APPLIED TO PARTICULAR LEGACIES. 1. Aid sometimes may be gained from the legacies preceding and following. 2. An annuity, without naming any limitation, held to be perpetual. 3. A lapsed legacy not revived by a codicil giving it to another. Quære. 4. Where a residue is given to legatees not exceeding £200, specific legacies and charities not included, but annuities are. § 70 a 1. It is common to gather some aid in giving a definite construction to a particular legacy, from those legacies which immediately precede and follow it, although this must be confessed to be a somewhat unsatisfactory ground for varying what is the apparently natural construction of the words. But 26 Wilmot v. Hewitt, 11 Jur. N. s. 820. "Young v. Robertson, 8 Jur. N. s. 825. in a very recent case,1 where the form of the legacy was £1.0.0, which stood between two other legacies of £100, the dots between the figuring being smeared, as if for the purpose of obliteration, it was held to be a legacy for £100. 2. And where the testatrix directed her executor to purchase an annuity of £ 50, in government securities, it was construed to be a perpetual annuity.2 3. It seems that a lapsed legacy will not pass to another, to whom the testator bequeathed it, by a codicil made after the decease of the first legatee, but will be treated as intestate estate. But this is certainly not maintainable upon general principles. Such a bequest should be held the same as if in the original will it had been provided the legacy should go to the legatee named in the codicil, in the event of the death of the first legatee before the testator. 4. Where a residue is given equally to those of the legatees in the will whose legacies do not exceed £200, specific legacies and charities will not be included; but the legatee of an annuity of £36, valued at £140, will be.1 1 Manchee v. Kay, 3 Gif. 545. 2 Ross v. Borer, 8 Jur. N. s. 1058. 3 Gibson in re, 31 Law J. Ch. N. s. 231, before Vice-Chancellor Wood. Nicholson v. Patrickson, 3 Gif. 209. CHAPTER XV. CHARITABLE USES AND TRUSTS. 1. English statutes in regard to superstitious uses. 3. Such bequests void, as being against public policy. 4. The English rule not applicable in America. 5. Uses solely for benefit of donor, or for specific purpose, where void, the bequest will revert to next of kin, or residuary legatee. n. 4. But where general charitable intent, court will execute it. 6. Bequests for the support of the interests of the testator, not regarded as superstitious. 7. Roman Catholics and Jews, now, on same footing in England as dissenters. 8. The statute has not rendered valid superstitious uses, or those against public policy. 9. Impracticable to define charitable uses with precision. 10. Statute of Elizabeth forms the basis of equity jurisdiction on that subject. 11. Subjects embraced in that statute. 12. Enumeration of subjects held charitable under the statute. 13. Objects of charitable trust not confined to the poor exclusively. 14. Subjects of bequests not regarded as charitable. 15. Bequests for general utility, or for the benefit of certain persons, as they need, not charitable. 16. How far the object must be general to create a public charity. 17. Devise to dissenting ministers good for life, but devise over not charitable. 18. Distribution of fund among different objects will sometimes be made by the court. 19. Distinction where contingency applies to bequest, or only to the distribution. 20. Some of the cases indicate that if discretion is reposed in trustee court will not exercise it. 21. Courts of equity will only recognize the validity of trusts which they can execute. 22. The policy of the early English cases and statutes was favorable to charitable uses. 23. Origin and provisions of the statute of mortmain. 24. Courts first inclined to give the statute a very wide extension. 25. How far shares in joint-stock companies come within that statute. 26. Railway debentures not within the statute. No such statute in American States generally. 27. Lands devised to charity do not vest, the heir may recover at law. 28. How far bequests to charity are avoided by being associated with others which are void. 29. Equity will not execute an illegal trust for charity. But after long acquiescence all will be held regular. 30. Any secret trust, on the part of the devisee, which is illegal, will avoid the devise. 31. Such a trust, with one of two or more joint devisees, will avoid the devise as to him. 32. Equity will not marshal assets, in favor of charity, so as to avoid illegality. 33. But will apply the estate ratably, to all the objects embraced in the bequest. 34. The constructions, against the effect of charitable bequests, in the English courts, very marked. 35. The spirit of the statute of mortmain and its construction evince want of liberality and comprehension. 36. The statute of mortmain does not extend to Scotland, Ireland, or the Colonies. 37. Personal estate, may in England be applied to charity, indefinitely. Courts there favor it. 38. Enumeration of the objects of charity, where the court have decreed a substitution of others. 39. In all these cases, bequests of like character for any other objects, would be void for uncertainty. 40. But charitable bequests, for particular objects, will not be administered cy pres. 41. The distinction between the classes of charities administered by the chancellor and the crown, not important here. 42. The distinction depended upon whether the donor had appointed trustees. 43. But where trustees decline acting the court supplies others in their place. 44. And the result, proving the fund larger than testator expected, will make no difference. 45. Court will select a trustee most interested in carrying forward the object. 46. The Attorney-General not a necessary party, where the fund goes into the general funds of a charitable institution. 47. Court will generally order a fund paid over, if dedicated to foreign charity. 48. Gifts over, where the primary gift to charity fails for illegality, good. 49. Where an excess accrues in the income of the fund, will go to same charity. 50. Unless the donor give a scheme which does not exhaust the income. 51. Colleges and charitable institutions, donees of charitable funds, applied such excess to their general uses. 52. Courts of equity sometimes vary the proportions of expenditure. 53. If donee is required to perform duties, the surplus, ordinarily, goes to him, not always. 54. Gift of the surplus to donee carries any increase or income. 55. Different American states declared the statute of 43 Eliz. in force there about same time. 56. It was held in Kentucky that a Shaker community is a charity! 57. Such an association is intensely private and selfish and uncharitable. 58. The United States Supreme Court recognize the law of charitable trusts. 59. That court seemed at one time to suppose there existed no common-law charitable jurisdiction. 60. Some of the states supply a trustee, and aid him in the discharge of his trust. n. 135. History of the equitable jurisdiction over charitable uses in the United States. n. 137. It is now clear that equity had jurisdiction of charitable uses at common law. 61. Statement of some of the subjects held charitable in America. n. 151. Extended review of the American cases where religious charities are recognized. 62. Some of the American courts go great lengths in carrying charitable trusts into effect. 63. Trustees of a charity have vested rights not subject to legislative control. 64. American courts adhere to the organization of the donee and the doctrine of the donor. 65. The doctrine of cy pres not adopted to the full extent in some of the states. 66. Indefiniteness is the peculiarity which distinguishes charitable trusts. n. 153. But in many of the states indefinite charities have been held void. 67. Statement of a case in New Hampshire where charitable trusts are upheld. 68. In New York real estate cannot be devoted to charitable uses. 69. And general indefinite charities are not upheld there. 70. It is no valid objection to a charitable bequest that it tends to create a perpetuity. 71. Accumulation not allowed beyond the term fixed for vesting executory devises. n. 160. The law of remoteness in regard to executory devises stated. 72. The distinction between charities administered in chancery, and by the crown, further discussed. 73. The Court of Chancery will not, ordinarily, appoint trustees to carry into effect an indefinite charitable purpose, where none have ever before ex-. isted. n. 166. Owens v. The Missionary Society of M. E. Church, 4 Kernan, 380. 74. The case of Girard's Orphan College, and decisions in regard to it. 75. Construction of the bequest in regard to the extent of the word orphan and of the limits of the city of Philadelphia. 76. Charitable corporations hold property exempt from special legislative control. 77. Chancellor Kent's definition of the extent of charitable trusts. 78. Lord Eldon's authority upon the same subject. * |