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lish equity jurisdiction over charities. 158 And in some of the states trusts for charity fail upon the ground of uncertainty, the

The very elaborate case of Attorney-General v. Drummond, 1 Dru. & War. 353, decided by Lord Chancellor Sugden, while Chancellor of Ireland, adopts the cautious view: That to aid in the construction of such a deed, evidence of the acts, but not of the opinions of the founder, are receivable; and that evidence is also admissible to explain the signification in which ambiguous words and expressions were generally understood at the time of the execution of the deed, among those with whom the founder consorted.

The learned Chancellor goes into a most elaborate review of the cases, complaining all the time that most of them have received and acted upon the evidence of the peculiar religious opinions of the founder, and finally concludes by saying he will act upon such evidence only "with respect to the admissibility of which there can, I think, be no dispute."

Thus while there seems to be, both in the British and in the American courts, some conflict, in regard to the extent to which testimony of the peculiar religious opinions of the founder are receivable, to enable the court to give the proper construction to his words, all concur in receiving so much evidence as will enable the court to understand how persons in his particular position use the words, and that includes, when we are inquiring into the latitude or longitude of Christian sects, the peculiar tenets of the founder, else we cannot define his position. The same view is maintained in many American cases. Princeton v. Adams, 10 Cush. 129; Miller v. Gable, 2 Denio, 492, 548; Kniskern v. The Lutheran Churches, 1 Sandf. Ch. 439. In the very late case of Winebrenner v. Colder, 43 Penn. St. 244, the question of adhering to the doctrine of the founder was thus illustrated. The doctrine of the minority, who adhered and submitted to the regular order of the church, local and general, being the true congregation and corporation, if incorporated, was carried to the extent of appointing an officer of court to hold an election among the members of the congregation for ruling elders, the society having fallen into a state of anarchy, by not paying such dues as were requisite to continue membership. It was also declared:

(1.) That the church property was held in trust for the use of such of the congregation as adhered and were willing to submit to the regular order and discipline of the denomination.

(2.) That the majority of the congregation who had made use of the regular

159 McAuley v. Wilson, 1 Dev. (N. C.) Ch. R. 276; Moore v. Moore, 4 Dana, 354; Holland v. Peck, 2 Ired. Eq. 255; Carter v. Balfour, 19 Alab. R.

same as other trusts,159 which goes mainly upon the same ground. But in some cases, where very great uncertainty exists,

corporate forms to institute an organized resistance to the legitimate authority of their ecclesiastical superiors, and had instituted an expelled minister of the denomination as their pastor, was not the true congregation.

(3.) But that though in other respects the minority who adhered to the general order of the church were the true congregation, yet as by the constitution all of each class had ceased to become members by falling in arrears in their contributions for more than one year, a period of anarchy had occurred which must be overlooked, and all of the members, as they were when order still existed, who were desirous of adhering to the congregation and church, and were willing to submit to the congregational and denominational order, were to be considered members, and entitled to vote at a new election to be decreed by the court for church officers.

It seems to us that admitting evidence of the opinions of the founder, and of those with whom he consorted, in aid of the construction of the instrument of donation, is really nothing more than admitting evidence of general history, or the history of language, to enable the court to expound the terms used, as every one living at the time and conversant with the surrounding circumstances must have done. This subject is more extensively discussed, ante, pt. 1, § 41.

A very liberal rule of interpretation, under the acknowledged existence of the force and spirit of 43 Eliz. in regard to maintaining the principles of the founder, as adopted in Rhode Island, in the late case of Potter v. Thornton, 7 R. I. R. 252.

159 Dickson v. Montgomery, 1 Swan, (Tenn.) R. 348; White v. Fisk, 22 Conn. R. 31, 54, 55. Mr. Chief Justice Church, who was an excellent man, as well as a good judge, here presents a somewhat exaggerated view of the English doctrine cy pres, which is nothing more than a liberal construction of wills, in favor of charitable trusts. The bequest in question was of rather a delicate nature to be administered by an American court. It was the gift of not exceeding $1000 annually to be expended by my trustees for the support of indigent pious young men preparing for the ministry in New Haven. But we think, in all due submission to the decision here, which held the bequest void for uncertainty, that there was no difficulty in carrying the design of the testator into effect, and that it should not have failed by reason of any fancied difficulties in the matter, either on the part of the trustees or the courts. It is better, and, as a general thing, more satisfactory to do as the English courts do, and most of the American courts have done, and grapple with such difficulties as fairly present themselves, and thus, by avoiding all motive to exaggerate

and the testator has appointed trustees for the purpose of applying the charities in their discretion, there has been found no difficulty in holding them valid.160 And in a recent case in Massachusetts, Metcalf, J. said of a bequest to such charities as should be deemed most useful by the personal representatives of the donee for life: "We have no doubt the bequest to charity is valid." In Chapman v. Brown,161 Sir William Grant said: "A bequest to such charitable purposes as the executor shall think proper, is a good bequest." And there are also adjudications of this court which are decisive."162

them, they will not be so far magnified as they are very likely to become by being declared insuperable, and consequently embellished, in order to make a fair justification of such a course.

In McCord v. Ochiltree, 8 Blackf. 15, a bequest to a theological society, the interest of which was directed to be applied to the aid of pious, indigent youths, who are preparing themselves for the ministry of the gospel, those only who adhere to the Westminster Confession of Faith, the seminary being an unincorporated body, was held to be void at law, but good in equity, as a charitable trust under the provisions of the statute of Elizabeth, and by the law of the State of Indiana, independently of that statute. The latter decision seems to us far more creditable to the court pronouncing it, as well as more in accordance with the established doctrines of equity jurisprudence, than that in Connecticut. But the courts in Connecticut, from an early day, manifested an unfriendly or timid disposition toward charitable trusts. In Greene v. Dennis, 6 Conn. R. 292, the court plant themselves upon the narrow ground of the case of Baptist Association v. Hart's Executors, 4 Wheat. 1, of which Chancellor Walworth said, in Potter v. Chapin, 6 Paige, 639, "I believe it is generally admitted that the decision in Baptist Association v. Hart was wrong, and it may now be considered an established principle of American law, that the Court of Chancery will sustain and protect such gift, bequest, or dedication of property to public or charitable uses, provided the same is consistent with the local laws and public policy, where the object of the gift or dedication is specific, and capable of being carried into effect according to the intention of the donor."

16) American Bible Society v. Wetmore, 17 Conn. R. 181; Bull v. Conn. R. 47.

Bull, 8

161 6 Vesey, 404, 410.

163 Wells, Ex'r. v. Doane, 3 Gray, 201, 203.

66. In Baptist Association v. Smith,163 it is said that where the grantor has full power to convey, and the uses are charitable, a court of equity, before, at, and after the statute of 43 Elizabeth, c. 4, will aid a defective conveyance to such uses. And in Gass v. Wilhite,14 it is also said, that although there be a want or defect in the cestuis que trust, or a vagueness or indefiniteness in the object of the charity, yet as a charitable use it will not be invalidated, and the court will, under the cy pres doctrine, give it effect, as near the general intent as may be. In McAuley v. Wilson,165 it is said "that the English doctrine of

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1 Dev. Eq. 276. In Holland v. Peck, 2 Ired. Eq. 255, a devise to the Methodist Church in America, to be disposed of as they shall think best, for the spread of religion and the gospel, was held void, on account of the cestuis que trust being so indefinite, there being no corporate organization to represent them, and no mode of reaching the persons intended to be benefited. And in Bridges v. Pleasants, 4 Ired. Eq. 26, a bequest to "foreign missions," "home missions," and "to the poor saints," to be applied as the executor may think best, according to the scriptures, was held void, on the ground of indefiniteness. See also White v. Attorney-General, 4 Ired. Eq. 19.

But in other states a more consistent course has been pursued in the construction of public and charitable trusts. In Sewall v. Cargill, 3 Shepl. 414, where land was given to Newcastle, " to the said inhabitants, their heirs and assigns forever, to remain for a glebe or parsonage forever"; and some years afterwards the town was incorporated, and the land continued to be used for the purposes indicated in the will, it was held to be a valid and binding dedication of the same to public, pious, and charitable uses. And in Inglis . The Trustees of the Sailors' Snug Harbor, 3 Pet. U. S. 99, this question is extensively discussed by different members of the court, and the early declarations of the court, in regard to the validity of charitable trusts of an indefinite character, considerably modified.

The statute of Elizabeth is held to be in force in Maine, and the courts there manifest a favorable disposition to carry into effect charitable trusts, not so indefinite as to be unintelligible. Tappan v. Deblois, 45 Me. R. 122; Preachers' Aid Society v. Rich, 45 Me. R. 552. So in Hopkins v. Upshur, 20 Texas R. 89, it was held that equity has an inherent jurisdiction over trusts for charitable purposes, as building churches. And in Chambers v. St. Louis, 29 Mo. R. 543, the

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cy pres is not in force in that state. The validity of the devise depends on the question whether the devisees are accountable to any one for the due execution of the trust. If not, it is void, and there is a resulting trust for the heir at law, or next of kin." The learned judge here refers to the question whether or no there are any cestuis que trust capable of such identification that they could, in their own person, call the trustees to account, but it does not seem to have occurred to him, that this is the precise distinction between the degree of indefiniteness which will avoid an ordinary trust, and will not avoid a trust of a charitable character. But it will be perceived that this very distinction has not been always borne in mind in others of the American states which have professed to adopt the principles of the English law of charity, either with or without the statute of Elizabeth. Thus they have fallen into the rather marked inconsistency of professing to adopt the English law in regard to administering charitable trusts, and at the same time reject the very distinction between charitable and other trusts, upon which the entire superstructure of charity law in England is based. For if we do not recognize trusts for charity of a more indefinite character than ordinary trusts, so far as the identification of the cestuis que trust are concerned, we subvert and expunge the entire chapter of English charity law, in our courts, and from our books. But many American cases recognize this distinction.

67. Thus, in New Hampshire, in a bequest to the "westerly part of Hopkinton," and upon condition that the inhabitants will settle a Congregational minister within three years from the death of the testator, it was held that no title passed to any

same rule is declared, and also that the statute of Elizabeth is in force in that state. That was a bequest to the city of St. Louis to constitute a fund for furnishing relief for all poor emigrants and travellers coming to that city, on their way bonâ fide to settle in the West, and it was held a valid trust, to be administered by the city, subject to the control of a court of equity. But in Iowa the jurisdiction over charitable trusts is more limited. LePage v. Macnamara, 5 Clarke, 124.

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