1. In Virginia, since her repeal of the statute of 43d
Elizabeth, c. 4, charitable bequests stand upon the same footing as
other bequests, and her courts of chancery have no jurisdiction to
uphold a charity where the objects are indefinite and uncertain.
Such being the settled doctrine of her court of last resort, this
Court accepts and enforces it in passing upon an attempted
testamentary disposition of property which is claimed under the law
of the state to be a valid gift for charitable uses.
2. A., who resided and died in Virginia., by her last will and
testament, bearing date Dec. 9, 1854, and admitted to probate in
1881, bequeathed her property and money to B., "Roman Catholic
bishop of Wheeling, Virginia, or his successor in said dignity, who
is hereby constituted a trustee for the benefit of the community"
(an unincorporated association previously described as a religious
community attached to the Roman Catholic Church), the same "to be
expended by the said trustee for the use and benefit of said
community."
Held:
1. That the bequest, conceding it to be for charitable uses,
is invalid.
2. That the legislation of Virginia touching devises or bequests
for the establishment or endowment of unincorporated schools or
validating conveyances for the use and benefit of any religious
society does not apply to this bequest.
On Aug. 7, 1853, Malvina Matthews, of Wythe County, Virginia,
made her last will and testament, which was duly admitted to
probate, devising a tract of land on which she then lived, to
Granville H. Matthews in trust for her two daughters, Malvina and
Eliza, and authorizing him to sell it and invest
Page 101 U. S. 363
the proceeds at his discretion, one-half of the annual interest
or dividends accruing therefrom to go to each of them as a fund for
her separate and sole use and benefit, especially in the event of
her marriage. The will declared that one moiety of the principal
arising from the sale of the land might be disposed of by each,
either by deed to take effect after her death or by will, and not
otherwise.
Matthews sold the land, but was removed from the executorship
and trusteeship, and Robert Gibboney, who was appointed in his
stead, received of the trust fund $7,985.88, of which one-half
belonged to said Eliza. The latter died, and her will, bearing date
Dec. 9, 1854, was, in 1861, admitted to probate in the County Court
of Wythe County. Robert Gibboney qualified as her administrator.
The will, after making various pecuniary bequests, among them one
of $500 to "Richard V. Wheelan, Roman Catholic Bishop of Wheeling,
Virginia, and his successors in that church dignity," contained the
following provision:
"In the event that I may hereafter become a member of any of the
religious communities attached to the Roman Catholic Church, and am
such at the time of my death, then it is my will that all the
foregoing bequests and legacies be void, and that my executors
hereinafter named shall pay over the whole of the property or other
thing, after disposing of the same for money, to the aforesaid
Richard V. Wheelan, bishop as aforesaid, or his successor in said
dignity, who is hereby constituted a trustee for the benefit of the
community of which I may be a member, the said property or money to
be expended by the said trustee for the use and benefit of said
community."
After making her will, she became a member of an unincorporated
religious community attached to the Roman Catholic Church known as
the "Sisters of Saint Joseph," and was such at the time of her
death.
In 1871, Alexander S. Matthews, her brother, instituted a suit
against her legatees and other heirs at law in the circuit court of
said county, to contest the validity of her will. An issue of
devisavit vel non was ordered but not tried, as by consent
of the counsel of the parties it was decreed that he should be paid
from her estate the part thereof to which he would have been
Page 101 U. S. 364
entitled had she died intestate; and that the devisee named in
the will should proceed to collect the estate, and, after paying
the debts and costs of suit, pay to said Alexander the tenth part.
The suit was thereupon dismissed, with leave to have the same
reinstated if necessary, for the purpose of enforcing the
decree.
Some time thereafter, Elizabeth G. Gibboney, the executrix of
Robert Gibboney, who had departed this life, delivered to Wheelan,
as part of the estate of Eliza, a bond of one Johnson for $500.
Thereupon Wheelan brought this suit, in the court below, against
said Elizabeth, to recover the residue of that estate, and alleged
that said Robert had never invested the fund which he received as
the trustee of Eliza, but had converted it to his own use, except
the bond of Johnson.
Wheelan died, and John J. Kain having been duly appointed Bishop
of Wheeling, the suit was revived in his name.
The bill was, on demurrer, dismissed, and Kain appealed to this
Court.
MR. JUSTICE STRONG delivered the opinion of the Court.
The bequest which the complainant seeks to enforce by this bill
was an attempted testamentary disposition under the law of
Virginia, and the matter now to be determined is whether by that
law it can be sustained. It may be conceded that notwithstanding
its uncertainty, a legacy given in the words of this will, if for a
charity, would be held valid in England, and in most of the states
of the Union. But we have now to inquire what is the law of
Virginia? The gift was made to "Richard V. Wheelan, Bishop of
Wheeling, or to his successor in said dignity." It was therefore,
in effect, a gift to the office of the Bishop of Wheeling. Neither
Bishop Wheelan, nor any bishop succeeding him, was intended to
derive any private advantage from it. Nothing was intended to vest
in him but the trust, and that was required to be executed by
whomsoever should fill the office of bishop, only so long as he
should fill it,
Page 101 U. S. 365
and executed in his character of bishop, not as an individual.
The bequest was practically to a bishopric, and as a bishop is not
a corporation sole, it may be doubted whether, at the decease of
the testatrix, there was any person capable of taking it. True it
is that generally a trust will not be allowed to fail to want of a
trustee -- courts of equity will supply one. But if it could be
conceded that Wheelan was, in his lifetime, capable of taking the
bequest, and that Bishop Kain is capable of taking and holding
after the death of his predecessor, a greater difficulty is found
in the uncertainty of the beneficiaries for whose use the trust was
created. In the words of the will, they are a religious community,
of which the testatrix contemplated she might die a member. She
died a member of a religious community attached to the Roman
Catholic Church, known as the "Sisters of St. Joseph." That is an
unincorporated association, and it is the association as such, and
not the individual members who composed it, when the testatrix
died, which is declared to be the beneficiary. Nor is it the
community attached to any local church which is designated, but a
community attached to the Roman Catholic Church, wherever that
church may exist. Its members must be constantly changing, and it
must always be uncertain who may be its members at any given time.
No member can ever claim any individual benefit from the bequest,
or assert that she is a
cestui que trust, and the
community, having no legal existence, can never have a standing in
court to call the trustees to account. This bequest is therefore
plainly invalid unless it can be supported as a charity. And it is
far from evident that it is a gift for charitable uses. It looks
more like private bounty. Charity is generally defined as a gift
for a public use. Such is its legal meaning. Here the beneficial
interest is given to a religious community, but not declared to be
for religious uses. There is nothing in the will to show that aid
to the poor, or aid to learning, or aid to religion, or to any
humane object was intended.
Conceding, however, that it is a charitable bequest, it is a
Virginia gift, by a Virginia will, and in that state charities in
general are not upheld to any greater extent than ordinary trusts
are. This will be very manifest when the decisions of
Page 101 U. S. 366
the courts of the state and of this Court are reviewed. The
subject was fully considered in
Baptist
Association v. Hart's Executors, 4 Wheat. 1,
decided in 1819. There it appeared that the testator, a citizen of
Virginia, had bequeathed certain military certificates to "the
Baptist Association that for ordinary meets at Philadelphia
annually," to be a perpetual fund for the education of youths of
the Baptist denomination, who shall appear promising for the
ministry, always giving a preference to the descendants of his
father's family. Before the death of the testator the legislature
of the state had repealed all English statutes, including, of
course, the 43d Elizabeth, c. 4, at that time generally regarded as
the origin of the jurisdiction of equity over charities. This Court
held that the Baptist Association, not having been incorporated at
the testator's decease, could not take the trust as a society. 2.
That the individuals composing it could not take. 3. That there
were no persons who could take if it were not a charity. 4. That
the bequest could not be sustained as a charity. 5. That charitable
bequests, where no legal interest is vested and which are too vague
to be claimed by those for whom the beneficial interest was
intended, cannot, independently of the 43d Elizabeth, c. 4, be
sustained by a court of equity, either in exercising its ordinary
jurisdiction, or in enforcing the prerogative of the king as
parens patriae.
It is true, that the fifth rule thus announced, as a general
proposition, is now known to have been erroneously stated. Trusts
for charitable uses are not dependent for their support upon that
statute. Before its enactment, they had been sustained by the
English chancellors in virtue of their general equity powers in
numerous cases.
Vidal v. Girard's
Executors, 2 How. 127. And generally, in this
country, it has been settled that courts of equity have an original
and inherent jurisdiction over charities, though the English
statute is not in force, and independently of it. It is believed
that such is the accepted doctrine in all the states of the Union,
except Virginia, Maryland, and North Carolina. But, as we have
said, the rule in Virginia is different, and it has been different
ever since the case of
Vidal v. Girard's Executors was
decided.
Page 101 U. S. 367
In 1832, the case of
Gallego's Executors v. The Attorney
General, 3 Leigh (Va.) 450, came before the Court of Appeals
of that state. A testator had directed his executors to lay by
$2,000, "to be distributed among needy poor and respectable
widows;" and in case the Roman Catholic chapel should be continued
at the time of his death, he directed the executors to pay $1,000
towards its support, and if the Roman Catholic congregation should
come to a determination to build a chapel at Richmond, to pay
$3,000 towards its accomplishment. He further devised a lot to four
trustees, in trust, to permit all and every person belonging to the
Roman Catholic Church as members thereof, or professing that
religion and residing in Richmond, to build a church on the lot for
the use of themselves, and of all others of their religion who
might thereafter reside in Richmond. These were undoubtedly gifts
to charitable uses. Upon an information and bill in chancery to
enforce the bequest and devise as charities, it was held that they
were all uncertain as to the beneficiaries, and therefore void. The
court ruled that the English statute of charitable uses having been
repealed in Virginia, the courts of chancery of that state had no
power to enforce charities where the objects are indefinite and
uncertain, and that charitable bequests stand on the same footing
as other bequests. The opinion of President Tucker is very
elaborate, and fully sustains that view, approving the doctrine
announced in
Baptist Association v. Hart's Executors,
supra.
This case was followed by
Wheeler v.
Smith, 9 How. 55, decided in 1850, after Vidal's
case. It reasserted the doctrine of
Gallego's Executors v. The
Attorney General, supra, as the law of Virginia, and declared
that the courts of chancery had no jurisdiction to uphold charities
when the objects are indefinite and uncertain. Therefore, a bequest
for a public purpose -- namely one given to trustees "for such
purposes as they might consider to be most beneficial to the town
and trade of Alexandria," was declared void.
In
Seaburn's Executors v. Seaburn, 15 Gratt. (Va.) 423,
the case of
Gallego's Executors v. The Attorney General
was again recognized as the law of the state, except so far as it
had been modified by the statutes, and it was ruled that they did
not
Page 101 U. S. 368
authorize a devise of land for the use of a religious
congregation, but a conveyance only.
A fortiori, that it
did not authorize a bequest of money, to be expended in building a
church at a specified place, or for the support of the pastor of
such church.
So in a case not reported, a devise in these words:
"I give to the Rev. W. J. Plummer, D.D., the residue of my
estate, real and personal, in trust for the board of publication of
the Presbyterian Church of the United states,"
was held to be void.
We do not overlook the fact that there are cases in which trusts
for charitable uses have been sustained, though the description of
the beneficiaries was uncertain, but in them all the decisions have
been rested upon statutes of the state enacted to provide for
special cases. In 1841-42, an act was passed by which it was
declared that every conveyance should be valid which should
thereafter be made of land for the use or benefit of any religious
congregation, as a place for public worship, or as a burial place,
or a residence for a minister. This was amended in 1866-67 by
adding
"or for the use or benefit of any religious society, or a
residence for a bishop, or other minister or clergyman, who, though
not in special charge of a congregation, is yet an officer of such
church or society, and employed under its authority and about its
business."
Civil Code of 1860, c. 78, tit. 22, sec. 8; Civil Code of 1873,
c. 76, tit. 22, sec. 8. It will be observed these statutes validate
only conveyances. They controlled the decision made in
Brooke
v. Shacklett, 13 Gratt. (Va.) 301, decided in 1856, and
Seaburn's Executors v. Seaburn, supra, decided in 1859.
The first of these cases -- a deed conveying property in trust for
the erection of a local Methodist church and the use of its members
-- was sustained. But Gallego's case was expressly recognized as
the law of the state, except so far as the statute had changed
it.
On the 2d of April, 1839, the legislature passed an act
declaring that devises and bequests for the establishment or
endowment of unincorporated schools, academies, or colleges, should
be valid, requiring, however, that reports of the devises or
bequests should be made to the legislature, and that in case
Page 101 U. S. 369
it should fail to incorporate the schools, academies, &c.,
within a certain time, the gifts should fail. Acts of 1839, c. 11,
12, 13.
So, also, at an early date, the state created a corporation to
manage what was called the literary fund, Civil Code of 1860,
chapters 78, 79, 80, and by the sections of chapter 80 it was
enacted that every gift, grant, devise, or bequest made since April
2, 1839, or which might be made thereafter, for literary purposes,
or for the education of white persons within the state (other than
for the use of a theological seminary), whether made to a body
corporate or unincorporated, or to a natural person, should be as
valid as if made to or for the benefit of a certain natural person,
with some exceptions. Under these and similar statutes, charitable
gifts in favor of the literary fund, or of schools, have been
sustained, which, without the statutes, would have been held
invalid. Such were Literary
Fund v. Dawson, 10 Leigh (Va.)
147, and 1 Rob. (Va.) 402;
Kinnaird v. Miller,, 25 Gratt.
(Va.) 107, and
Kelly v. Love, 20
id. 124. But in
all these cases the general law of the state is recognized to be as
asserted in
Gallego's Executors v. The Attorney General.
The bequest now under consideration, therefore, cannot be sustained
as a charity.
Equally certain is it that the complainant cannot stand upon the
consent decree made by the Circuit Court of Wythe County upon the
issue of
devisavit vel non, ordered to try whether the
instrument purporting to be the will of the testatrix was her will.
That issue, framed to try only the validity of the instrument, not
the validity of the disposition made by it, was never tried. It was
dismissed. No decree was made that the will was valid. To the
agreement recited in the decree the defendant was not a party, and
the arrangement made by the counsel of the parties to the record
did not bind her. Moreover, if she had been bound by it, it
conferred no right upon the present complainant.
Decree affirmed.
