William Russell, of St. Louis, "for the purpose of founding an
institution for the education of youth in St. Louis County,
Missouri," granted lands and personal property in Arkansas to John
S. Homer and his successors, in trust "for the use and benefit of
the Russell Institute of St. Louis, Missouri," with directions to
the grantee to sell them, and to account for and pay over the
proceeds "to Thomas Allen president of the Board of Trustees of the
said Russell Institute at St. Louis, Missouri," whose receipt
should he a full discharge to the grantee.
Held that this
was a charitable gift, valid against the donor's heirs and next of
kin, although the institution was neither established nor
incorporated in the lifetime of the donor or of Allen.
The case is stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This is a bill in equity, filed on the 16th of April, 1878, by
two of the heirs at law and next of kin of William Russell, of St.
Louis, against Thomas Allen to establish a trust in favor of
Russell's heirs at law and next of kin, and for an account.
The bill alleges that on the 19th of July, 1855, William Russell
and John S. Horner executed four indentures of trust,
Page 107 U. S. 164
by each of which Russell, in consideration of one dollar
paid,
"and for divers other good and valuable considerations, but
chiefly for the purpose of founding an institution for the
education of youth in St. Louis county, Missouri,"
granted and conveyed to Horner, his executors and administrators
or successors, in trust forever, certain lands and personal
property in the State of Arkansas, to have and to hold the same
unto him, his executors, administrators, and successors, in trust,
"to and for the following uses and purposes, to-wit, the said
property is conveyed for the use and benefit of the Russell
Institute of St. Louis, Missouri," and empowered and directed him
and them to sell the same as soon as conveniently might be, and to
account for and pay over the proceeds yearly or oftener, deducting
the reasonable expenses of executing the trust, "to Thomas Allen
president of the board of trustees of the said Russell Institute at
St. Louis, Missouri, and his receipt therefor shall be a full
discharge of the said party of the second part for the amount so
paid and the application thereof;" and Horner's trust to be brought
to a close and the net proceeds paid over as soon as conveniently
might be, and if not concluded within ten years the property
remaining undisposed of to be sold by public auction and the
proceeds paid over as before required. In each of the four
indentures, reference was made to the three others, and it was
"declared that all of said conveyances, including this, are made
to one and the same person for one and the same use and purpose,
and that the same are and are to be deemed and taken and accounted
for as one trust, according to the conditions of the deeds
respectively, it having been intended by said deeds and this
present one to convey all of the remaining property of the said
William Russell in the said State of Arkansas to the said party of
the second part, to and for the use and benefit of the said Russell
Institute of St. Louis, Missouri."
After this clause, in one of the indentures, were added the
words "represented by their president aforesaid." Each indenture
contained a covenant by Horner "faithfully to perform the trust
hereby created."
The bill further alleges that Horner, in the execution of his
trust, has converted a large portion of the property into money,
has paid over to Allen the sum of about $50,000, and has
conveyed
Page 107 U. S. 165
and transferred to Allen the property remaining unsold, and that
Allen holds and controls the whole fund, and has never applied to
any court for aid in the disposition and application thereof, and
has in no way used or recognized the fund as held by him in trust
for the uses declared by Russell.
The bill further alleges that there was not at the time of the
execution of the indentures aforesaid, nor before or since, any
such educational institution as was referred to therein; that at
the time of such execution Russell was from paralysis infirm in
body and weak in mind, and that, while he then manifestly proposed
to found such an institution, yet in his increasing incapacity of
body and mind during the short period that intervened between that
time and his death he failed to accomplish his philanthropic
purpose; that he died in 1856, without ever having founded such an
institution, or delegated to Horner or to Allen or to any other
person or corporation, authority to organize a Russell Institute,
and that no such authority has hitherto been exercised or claimed
by any person or corporation, and there is and has been no donee
capable of receiving, holding, and administering the trust fund
created by the indentures; that the beneficiaries of the trust, so
far as can be determined by the terms of the indentures, are
uncertain and indefinite, and the trust is invalid, and, there
being no debts outstanding against Russell's estate, the trust fund
belongs to his next of kin.
To this bill Allen filed a general demurrer, which was sustained
and the bill dismissed. 5 Dill. 235. The plaintiffs appealed to
this Court. Pending the appeal, Allen has died, and his executors
have been made parties in his stead.
The deeds of gift state that they are made "chiefly for the
purpose of founding an institution for the education of youth in
St. Louis County, Missouri;" they convey the property to Horner and
his successors in trust "for the use and benefit of the Russell
Institute of St. Louis, Missouri;" they direct him to sell the
property and account for and pay over the proceeds "to Thomas Allen
president of the board of trustees of the said Russell Institute of
St. Louis, Missouri," whose receipt shall be a full discharge of
Horner, and they end by declaring that all these conveyances shall
be deemed taken and accounted
Page 107 U. S. 166
for as one trust, and that it is the intention of the donor to
convey the property included in all of them "to and for the benefit
of the said Russell Institute of St. Louis, Missouri," to which one
of the deeds adds, "represented by their president as
aforesaid."
The donor thus clearly manifests his purpose to found an
institution for the education of youth in St. Louis, to be called
by his name, and he executes this purpose by conveying the property
to Horner in trust, to hold and convert into money, and pay that
money to the officers of the institute when incorporated and a
board of trustees appointed. The direction to pay the money to
Allen as president of the board of trustees, and the mention at the
close of one of the deeds, of the institute as represented by its
president as aforesaid, clearly show that the fund is not to be
paid to Allen individually, and while they imply the donor's wish
that Allen should be the first president of the board of trustees
of the institute, they do not make his appointment to and
acceptance of that office a condition of the validity of the gift
or of the carrying out of the donor's charitable purpose. The terms
of the deeds clearly show that the donor did not contemplate or
intend doing any further act to perfect his gift. It is not
pretended that the allegations in the bill as to his weakness of
body and mind amount to an allegation of insanity, and they are
irrelevant and immaterial.
The principal grounds upon which the plaintiffs seek to maintain
their bill are that the deeds create a perpetuity; that the uses
declared are not charitable, and that, if the uses are charitable,
there are no ascertained beneficiaries, and no donee capable of
assuming and administering the trust, and the uses are too
indefinite to be specifically executed by a court of chancery. But
these positions, as applied to the facts of the case, are
inconsistent with the fundamental principles of the law of
charitable uses, as established by the decisions of this and other
courts exercising the ordinary jurisdiction in equity.
By the law of England from before the statute of 43 Eliz. c. 4,
and by the law of this country at the present day (except in those
states in which it has been restricted by statute or
Page 107 U. S. 167
judicial decision, as in Virginia, Maryland, and more recently
in New York), trusts for public charitable purposes are upheld
under circumstances under which private trusts would fail. Being
for objects of permanent interest and benefit to the public, they
may be perpetual in their duration, and are not within the rule
against perpetuities, and the instruments creating them should be
so construed as to give them effect if possible, and to carry out
the general intention of the donor, when clearly manifested, even
if the particular form or manner pointed out by him cannot be
followed. They may, and indeed must, be for the benefit of an
indefinite number of persons, for if all the beneficiaries are
personally designated, the trust lacks the essential element of
indefiniteness, which is one characteristic of a legal charity. If
the founder describes the general nature of a charitable trust, he
may leave the details of its administration to be settled by
trustees under the superintendence of a court of chancery, and an
omission to name trustees, or the death or declination of the
trustees named, will not defeat the trust, but the court will
appoint new trustees in their stead.
The previous adjudications of this Court upon the subject of
charitable uses go far toward determining the question presented in
this case. As the extent and effect of these adjudications have
hardly been appreciated, it will be convenient to state the
substance of them.
The case of
Baptist Association v.
Hart, 4 Wheat. 1, in which a bequest by a citizen
of Virginia "to the Baptist Association that for ordinary meets at
Philadelphia annually," as "a perpetual fund for the education of
youths of the Baptist denomination who shall appear promising for
the ministry," was declared void, was decided upon an imperfect
survey of the early English authorities, and upon the theory that
the English law of charitable uses, which, it was admitted, would
sustain the bequest, had its origin in the statute of Elizabeth,
which had been repealed in Virginia. That theory has since, upon a
more thorough examination of the precedents, been clearly shown to
be erroneous.
Vidal v.
Girard, 2 How. 127;
Perin v.
Carey, 24 How. 465;
Ould v. Washington
Hospital, 95 U. S. 303. And
the only cases in which this Court has followed the
Page 107 U. S. 168
decision in
Baptist Association v. Hart have, like it,
arisen in the State of Virginia, by the decisions of whose highest
courts charities, except in certain cases specified by statute, are
not upheld to any greater extent than other trusts.
Wheeler v.
Smith, 9 How. 55;
Kain v. Gibboney,
101 U. S. 362.
In
Beatty v.
Kurtz, 2 Pet. 566, the owners of a tract of land
(afterwards part of Georgetown) laid it out as a town, and made and
recorded a plan of it, marking one lot as "for the Lutheran
church," and the Lutherans of the town, a voluntary society not
incorporated, erected and used a building upon this lot as a church
for public worship, and fenced in and used the land as a church
yard, for the burial of others as well as of Lutherans, for fifty
years. Upon these facts it was held that the bill of rights of
Maryland, affirming the validity of any sale, gift, lease, or
devise of land, not exceeding two acres, for a church and burying
ground, recognized, to this extent at least, the doctrine of
charitable uses, under which no specific grantee or trustee was
necessary; that this land had been dedicated to a charitable and
pious use, beneficial to the inhabitants generally, which might at
all times have been enforced through the intervention of the
government as
parens patriae, by its Attorney General or
other law officer, and that a committee of the society might
maintain a bill in equity to restrain by injunction the heirs of
the original owners from disturbing that use.
In
Inglis v. Sailors' Snug
Harbor, 3 Pet. 99, a citizen of New York devised
land to the chancellor of the state, the mayor of the city, and
others, designating them all by their official titles only, and to
their respective successors, in trust out of the rents and profits
to build a hospital for aged, decrepid, and worn-out sailors, as
soon as the trustees should judge that the proceeds would support
fifty such sailors, and to maintain the hospital and support
sailors therein forever, and further declared it to be his will and
intention that if this could not be legally done without an act of
incorporation, the trustees should apply to the legislature for
such an act, and that the property should at all events be forever
appropriated to the above uses and purposes. An act incorporating
the trustees was passed and the hospital was established. A
majority of the Court held
Page 107 U. S. 169
that the trustees took personally and not in their official
capacities, and that upon their incorporation the legal title
vested by way of executory devise in the corporation as against the
heirs at law, and the dissenting judges differed only as to the
legal title, and not as to the validity of the charitable
trust.
In
McDonogh v.
Murdoch, 15 How. 367, a citizen of Louisiana,
declaring his chief object to be the education of the poor of the
cities of New Orleans and Baltimore, made a devise and bequest to
the two cities, one-half to each, the income to be applied by
boards of managers, who should be appointed by either city, but
whose powers and duties he defined, and who should obtain acts of
incorporation, if necessary, for the education of the poor and
other charitable purposes in various ways specified. And in case
the two cities should combine together and knowingly and willfully
violate the conditions, then he gave the whole property to the
states of Louisiana and Maryland, in equal halves, "for the purpose
of educating the poor of said states under such a general system of
education as their respective legislatures shall establish by law."
The Court held that the devise to the cities was valid, and that
the testator's directions as to the management of the income
"must be regarded as subsidiary to the general objects of his
will, and whether legal and practicable, or otherwise, can exert no
influence over the question of its validity,"
and expressed the opinion that the failure of the devise to the
cities would not have benefited the heirs at law, for in that event
the limitation over to the states of Louisiana and Maryland would
have been operative. 15 How.
56 U. S. 404,
56 U. S. 415.
In
Fontain v.
Ravenel, 17 How. 369, a testator, residing at the
time of his death in Pennsylvania, appointed his wife and three
others to be executors of his will and authorized his executors, or
the survivor of them, after the death of his wife, to dispose of
the residue of his estate
"for the use of such charitable institutions in Pennsylvania or
South Carolina as they or he may deem most beneficial to mankind,
and so that part of the colored population in each of the said
states of Pennsylvania and South Carolina shall partake of the
benefits thereof."
In that case, the testator had not himself defined the nature of
the charitable uses, nor authorized anyone but his executors to
Page 107 U. S. 170
designate them, and the point decided was that, they having all
died without doing so, the Circuit Court of the United States for
the District of Pennsylvania could not sustain a bill to establish
them, filed by charitable institutions in Pennsylvania and South
Carolina in the name of the administrator
de bonis non and
next of kin of the testator. The question there was, whether the
authority of a court of chancery, under such circumstances,
belonged to its ordinary jurisdiction over trusts, or to its
prerogative power under the sign manual of the Crown, which last
has never been introduced into this country.
See Boyle on
Charities, 238-239;
Jackson v. Phillips, 14 Allen 539,
576, 588. No question of the validity of the gift as against the
next of kin was presented, and even Chief Justice Taney, who,
differing from the rest of the court, alone asserted that
"if the object to be benefited is so indefinite and so vaguely
described that the bequest could not be supported in the case of an
ordinary trust, it cannot be established in a court of the United
States upon the ground that it is a charity,"
distinctly admitted that a suit by an heir or representative of
the testator to recover property or money bequeathed to a charity
could not be maintained in a court of the United States if the
bequest was valid by the law of the state. 17 How.
58 U. S.
395-396. Accordingly, in
Lorings v.
Marsh, 6 Wall. 337, the Court dismissed a bill by
the next of kin to set aside a bequest by a citizen of
Massachusetts "in trust for the benefit of the poor," by means of
such incorporated charitable institutions as should be designated
by three persons appointed by the trustees or their successors,
such a bequest being valid under the law of Massachusetts as
habitually administered in her courts.
In
United States v. Fox, 94 U. S.
315, this Court, affirming the judgment of the Court of
Appeals of New York in 52 N.Y. 530, held a devise of land in New
York to the United States, for the purpose of assisting to
discharge the debt contracted by the war for the suppression of the
rebellion, to be invalid, solely because by the law of New York, as
declared by recent decisions of the court of appeals, none but a
natural person, or a corporation created by that state with
authority to take by devise, could be a devisee of land in that
state. Where not prohibited by statute, a devise or bequest for
such
Page 107 U. S. 171
a purpose is a good charitable gift.
Nightingale v.
Goulburn, 5 Hare 484, and 2 Phillips 594;
Dickson v.
United States, 125 Mass. 311.
In
Ould v. Washington Hospital, 95 U. S.
303, a citizen of Washington devised land in the
District of Columbia to two persons named, in trust to hold it "as
and for a site for the erection of a hospital for foundlings," to
be built by a corporation to be established by act of Congress and
approved by the trustees or their successors, and, upon such
incorporation, to convey the land to the corporation in fee. It was
contended for the heirs at law that the devise was void, because it
was to a corporation to be established in the future, and might not
take effect within the rule against perpetuities, and because of
the uncertainty of the beneficiaries, and reference was made to the
Maryland statute of wills of 1798, still in force in the District
of Columbia, providing that no will should
"be effectual to create any interest or perpetuity, or make any
limitation, or appoint any uses, not now permitted by the
Constitution or laws of the state,"
and to a series of decisions in Maryland, holding that the
statute of Elizabeth was not in force in that state, and that
charitable uses were there governed by the same rules as private
trusts. But those decisions having been made since the separation
of the District of Columbia from the State of Maryland, the court
held that the case must be determined upon general principles of
jurisprudence, and that the devise was valid.
The objection to the validity of the gift before us, as tending
to create a perpetuity, is fully met by the cases of
Inglis v.
Sailors' Sung Harbor, McDonogh v. Murdoch, and
Ould v.
Washington Hospital, above cited, which clearly show that a
gift in trust for a charity not existing at the date of the gift,
and the beginning of whose existence is uncertain, or which is to
take effect upon a contingency that may possibly not happen within
a life or lives in being and twenty-one years afterwards, is valid,
provided there is no gift of the property meanwhile to or for the
benefit of any private corporation or person. Those cases are in
accord with English decisions of the highest authority, of which it
is sufficient to refer to the leading case of
Downing
College, reported under the name of
Attorney
General
Page 107 U. S. 172
v. Downing in Wilmot, 1 Dick. 414, and Ambler 550, 571,
and under the name of
Attorney General v. Bowyer in 3 Ves.
714, 5 Ves. 300, and 8 Ves. 256, and to the recent case of
Chamberlayne v. Brockett, L.R. 8 Ch. 206.
See also
Sanderson v. White, 18 Pick. 328, 336;
Odell v.
Odell, 10 Allen (Mass.) 1.
That the gift is for a charitable use cannot be doubted. All
gifts for the promotion of education are charitable in the legal
sense. The Smithsonian Institution owes its existence to a bequest
of James Smithson, an Englishman,
"to the United States of America, to found at Washington, under
the name of the Smithsonian Institution, an establishment for the
increase and diffusion of knowledge among men."
See Acts of Congress of 1st July, 1836, c. 252; 10th
August, 1846, c. 178. This was held by Lord Langdale, Master of the
Rolls, in
United States v. Drummond, decided in 1838, to
be a good charitable bequest. The decision on this point is not
contained in the regular reports, but appears by the letters of Mr.
Rush, then minister to England (printed in the Documents relating
to the Origin and History of the Smithsonian Institution, published
by the institution in 1879), to have been made after full argument
in behalf of the United States by Mr. Pemberton (afterwards Mr.
Pemberton Leigh and Lord Kingsdown) and on deliberate consideration
by the Master of the Rolls. History of Smithsonian Institution, 15,
19, 20, 56, 58, 62. And it was cited as authoritative in
Whicker v. Hume, 7 H.L.Cas. 124, 141, 155, in which the
House of Lords held that a bequest in trust to be applied, in the
discretion of the trustees, "for the benefit and advancement and
propagation of education and learning in every part of the world,
as far as circumstances will permit," was a valid charitable
bequest, and not void for uncertainty.
"Schools of learning, free schools, and scholars in
universities," are among the charities enumerated in the statute of
Elizabeth, and no trusts have been more constantly and uniformly
upheld as charitable than those for the establishment or support of
schools and colleges. Perry on Trusts, sec. 700. That the gift "for
the purpose of founding an institution for the education of youth
in St. Louis County, Missouri," to be
Page 107 U. S. 173
managed by a board of trustees, is sufficiently definite, is
shown by the decisions of this Court in
Perin v. Curey,
and
Ould v. Washington Hospital, above cited, as well as
by that of the House of Lords in
Dundee Magistrates v.
Morris, 3 Macq. 134.
The law of Missouri, as declared by the Supreme Court of that
state, sustains the validity of this gift. In
Chambers v. St.
Louis, 29 Mo. 543, a devise and bequest to the City of St.
Louis, in trust
"to be and constitute a fund to furnish relief to all poor
emigrants and travelers coming to St. Louis on their way
bona
fide to settle in the west,"
which was objected to for indefiniteness in the object, as well
as for want of capacity in the trustee to take, was held to be
valid.
And in Schmidt v. Hess, 60 Mo. 591, a grant of a
parcel of land to the Lutheran church for a burial ground was held
to be a valid charitable gift, which equity would execute by
compelling a conveyance to the trustees of a church which was
proved to be the church intended by the testator, although it was
not incorporated at the time of the gift. We have been referred to
nothing having any tendency to show that the law of Arkansas, in
which the lands granted lie, is different.
The money paid and the lands conveyed by Horner to Allen stand
charged in the hands of Allen and his executors with the same
charitable trust to which they were subject in the hands of
Horner.
Steps to organize such an institution as is described in the
deeds may be taken either by the Attorney General, or other public
officer of the state, or by individuals. Whenever an institute for
the education of youth in St. Louis shall have been incorporated
and shall claim the property, it will then be a matter for judicial
determination in the proper tribunal whether it meets the
requirements of the gift. The only question now presented is of the
validity of the gift as against the donor's heirs at law and next
of kin.
Decree affirmed.