deemed the constitutional trustee." 187 But, "in this country, the legislature or government of the state, as parens patriæ, has the right to enforce all charities of a public nature by virtue of its general superintending authority over the public interests, where no other person is intrusted with it. The jurisdiction vested by the statute of Elizabeth over charitable uses is said to be personally in the Chancellor, and does not belong to his ordinary or extraordinary jurisdiction in chancery." 188

79. The rule is thus stated, so far as the American courts are concerned, in the latest edition of Mr. Justice Story's Equity Jurisprudence.189 "There was a jurisdiction in chancery over charitable trusts antecedent to the statute of Elizabeth, and that, although the statute was never in force in Pennsylvania, yet that the common law of that state had always recognized the chancery jurisdiction in cases of charities." 190 "The same rule is now recognized in most of the American states; and courts of equity, in most of them, take jurisdiction in carrying into effect charitable bequests, however general are the purposes and objects intended, if sufficiently certain to be intelligible; and without regard to the existence of a trustee capable of holding the legal estate. In some of the states this is done upon the theory of the common-law jurisdiction of courts of equity over the subject; and in others, upon the ground that the provisions of the statute of Elizabeth have been adopted, as a portion of the common law, in those states. 191 If there is no legal trustee, the

Moggridge v. Thackwell, 7 Vesey, 36.

188 Lord Hardwicke, in Corporation of Burford v. Lenthall, 2 Atk. 553; Story, J., in Baptist Association v. Smith, 3 Pet. U. S. 484.

190 Vidal v. Girard's Executors, 2 How. (U. S.) 127.

191 Going v. Emery, 16 Pick. 107; Burbank v. Whitney, 24 Pick. 146; Exrs. of Burr v. Smith, 7 Verm. R. 241; 1 Jarman on Wills, and the learned note of Judge Perkins, (ed. 1859,) where the cases and authorities are extensively cited and thoroughly reviewed and analyzed.

court of equity will compel the heir to act as such until another be appointed by the court.192.

80. So that we think it safe to refer all those cases which have been held to create trusts, of too indefinite a character to be enforced by a court of equity, to the general subjects of trusts; and upon examination it will be found, we think, so far certainly as the decisions of the English courts go, that although these cases have been claimed, by the parties interested to support them, to be of the nature of charitable trusts, they either did not come within the equitable construction of the statute of Elizabeth, which now forms the basis of equity jurisdiction in regard to charities in England; or if they did embrace subjects within that statute, they also extended, either absolutely or in the discretion of the trustee, to other matters not within the statute; and so the bequests were really declared void for uncertainty, because they were not exclusively charitable trusts. As is said by Mr. Justice Story: 198 Since the statute of Elizabeth the Court of Chancery will not establish any trusts for indefinite purposes of a benevolent nature, not charitable within the purview of that statute, although there is an existing trustee, in whom it is vested; but it will declare the trust void, and distribute the property among the next of kin.194

192 Bartlett v. Nye, 4 Met. 378; McCartee v. Orphan Asylum Society, 9 Cowen, 437, 484; Opinon of Chancellor Jones in Potter v. Chapin, 6 Paige, 639, 650.

193 2 Eq. Jur. § 1158.

194 Vezey v. Jamson, 1 Sim. & Stu. 69. This was a bequest to such charitable or public purpose or purposes, person or persons, as the trustees should in their discretion think fit, and it was held void, because it was not limited to charitable objects, but might be disposed of in any manner the trustees saw fit, consistent with the laws of the land, which might carry it very wide of any object embraced within the limits of the legal definition of charity. So a bequest for such benevolent religious and charitable objects as the trustees should in their discretion think most beneficial, was held void upon similar grounds. Williams v. Kershaw, cited 1 Keen, 232. But a bequest, limited to such religious and charitable uses as the trustees should think proper, was upheld as being exclu

81. The rule as to uncertainty, both in regard to the beneficiaries and the mode of carrying the bequest into effect, received a very. liberal construction in a late case in Connecticut,195 where the beneficiaries were to be selected by the trustees, with a very broad and almost unlimited discretion. But it is evident that no such distinction between charitable and other trusts is recognized in this state, as that which exists in England and in many of the other states.

82. The question of what is requisite to constitute a charitable use, has been considerably discussed, in some modern cases in Massachusetts.196 And it is here settled, in conformity with

sively charitable in its character. Baker v. Sutton, 1 Keen, 224, 232, 233. And a bequest of a fund to executors to apply to such charitable and other purposes as they should think fit, was held void upon the same ground already stated. Ellis v. Selby, 1 My. & Cr. 286, 298, 299.

We have thus, at the expense of some apparent repetition, in bringing up the same cases, in different points of light, given a careful summary of the existing charity law, both in England and America.

195 Treat's Appeal, 30 Conn. R. 113. The law in this state is here declared by Ellsworth, J., to require "certainty in the persons to be benefited, and an ascertained mode of selecting them, if they are to be taken from a definite class." White v. Fisk, 22 Conn. R. 31, 53. The subject is further discussed in Proprietors, &c. v. Post, 31 Conn. R. 240. There was a statute of this state passed in Provincial times, 1702, which recognized gifts for the support of the ministry of the Gospel, and for other public or charitable uses, and which exempted lands so held from the payment of taxes; and upon the extent of this exemption many decisions have turned. Brainard v. Colchester, 31 Conn. R. 407, and cases cited. 195 Shaw, Ch. J., in Attorney-General v. Federal Street Meeting-House, 3 Gray, 1; Same v. Merrimack Manufacturing Co. 14 Gray, 586. In this latter case the matter is thus clearly and succinctly stated by Mr. Justice Hoar: "There must be some strictly public object of bounty, or such indefiniteness in the designation of those who are beneficially interested, that no persons competent to sue can claim a direct interest in themselves, to authorize a proceeding by information in the name of the Attorney-General to enforce the due administration of the charity..... Whatever else may be essential to constitute a dedication of land to pious uses, the mere appropriation of it by its owner to the uses of a church, or of public worship, in the sense in which that phrase is usually understood, is not sufficient." See also Dexter v. Gardner, 7 Allen, 243,

the English rule upon this and analogous subjects, that reasonable costs of all parties, as between attorney and client, will be allowed out of the fund, where such parties are properly before the court, and the questions involved are really doubtful.197 If a legacy for a charitable purpose is given to an association incapable of undertaking the trust, the court will appoint a trustee to receive the legacy and apply it to the prescribed objects.198

83. We have said nothing in regard to the effect of the statutes of limitation and lapse of time, in barring charitable trusts, because, strictly speaking, they have no effect in that direction. It has been long settled that trusts, and especially charitable trusts, do not come within the operation of the ordinary statutes of limitation.199

84. But there can be no doubt that lapse of time is often an essential element in disposing of charity suits. Thus where a trust had been administered for more than a hundred years, without any question as to the right or manner of its administration, it was held that it ought not to be disturbed, without clear and unequivocal evidence that the true terms of the trust have been disregarded, and that the just and legal rights of the party complaining have been infringed.200

where a bequest, the income of which is to be appropriated for the benefit of the Friends' Meeting, in a particular place, in perpetuity, without any further designation of the purposes to which it is to be applied, is a public charity, and therefore not void, as a perpetuity, if it be proved that all the purposes to which the Friends apply their funds, under their usages and discipline, are the maintenance of religious worship and of schools; aiding the sick and the poor, and maintaining burial-places, the latter being regarded by them as a religious duty. It is here said by Mr. Justice Chapman, "Since the decision of Earle v. Wood, 8 Cush. 340, it must be considered as settled that the statute 43 Eliz. c. 4, is a part of our common law, and that a trust for a well-known religious community is valid, though not incorporated."

197 Bliss v. The American Bible Society, 2 Allen, 334, ante, pt. 1, § 36. 198 Ibid.

199 2 Story, Eq. Jur. § 1520 a et seq., and cases cited.

200 Attorney-General v. Reformed Protestant Dutch Church, 33 Barb. 303.

85. The effect of lapse of time in the construction of public charities is fairly stated, perhaps, by Lord Justice Turner, in Attorney-General v. The Corporation of Rochester: 201 “Undoubtedly, if an instrument be doubtful in its terms, contemporaneous usage may be referred to; and if there has been a long usage in the application of funds to purposes which may be warranted upon one construction of the instrument, but which may not be warranted upon another construction of the instrument, the court will lean to that construction of that instrument (provided it be doubtful) which will best correspond with the mode in which the funds have been for so long a time applied.

"But that is the case where the trust is doubtful in its terms and interpretation. If the court finds a clear trust expressed on a will, no length of time during which there has been a deviation from it can warrant this court, as I apprehend, in making a decree in contradiction to such trust." And the same learned judge said, in Attorney-General v. Corporation of Beverley:

202

"If the court clearly sees what the intention of the testator was, and that there has been a breach of trust in the nonobservance of that intention, I apprehend that no argument founded on the length of time can prevail."

86. And in Attorney-General v. Federal Street MeetingHouse,203 it was held, that even in the case of trusts, such as the gift of property to maintain public worship in a particular form, they might be terminated even, by the unanimous consent of the cestuis que trustent; and that where a claim had been set up and maintained adversely to the trust for forty years, it would create an effectual bar against any claim to revive and reinstate the trust.

(See Attorney-General v. St. John's Hospital, 11 Jur. N. s., August, 1865, p. 629.)

2015 DeG., M. & G. 797, 822.

2026 DeG., M. & G. 256, 268.

203 3 Gray, 1..