1. In a will containing many legacies, bequests, and devises,
each present and immediate in form, to individuals and to
charitable institutions, a clause expressing a wish and direction
that none of the legacies, bequests, or devises "shall be executed
or take effect until" a certain memorial hall (in fact nearly
finished at the time of the execution of the will and of the
testator's death) on land previously conveyed by the testator in
trust, "shall be completed and entirely paid for out of my estate,"
does not suspend the vesting, but only the payment and carrying out
of the various legacies, bequests, and devises.
2. Section 2419 of the Code of Georgia of 1873 does not
invalidate a charitable devise contained in a will executed within
ninety days before the testator's death unless he leaves a wife or
child or descendants of a child.
3. The validity of a charitable devise as against the heir at
law depends upon the law of the state where the land lies.
4. The validity of a charitable bequest as against the next of
kin depends upon the law of the testator's domicile.
5. The law of charities is fully adopted in Georgia as far as is
compatible with a free government where no royal prerogative is
exercised.
6. A parcel of land, with buildings thereon, was devised to the
trustees of the Independent Presbyterian Church in Savannah, an
incorporated religious society, "upon the following terms and
conditions, and not otherwise:"
1st. That the trustees should appropriate annually out of the
rents and profits the sum of $1,000
"to one or more Presbyterian or Congregational Churches in the
Georgia in such destitute and needy localities as the proper
officers of said Independent Presbyterian Church may select, so as
to promote the cause of religion among the poor and feeble churches
of the state."
2d. That the trustees should not materially alter the pulpit or
galleries of the present church edifice, or sell the lot on which
the Sabbath school room of the church stood.
3d. That the trustees should keep in order the burial place of
the testator, which he devised to them for that purpose.
Held that under the Code of Georgia of 1873, sec. 3157,
the charitable purposes named in the first and third conditions
were good charitable uses, sufficiently defined; that the trustees
were capable of taking the devise, and that its validity was not
impaired by the conditions subsequent.
7. A devise to a society incorporated "for the relief of
distressed widows and the schooling and maintaining of poor
children" of buildings and land, to "use and appropriate the rents
and profits for the support of the school and charities of said
institution, without said lot being at any time liable for the
debts or contracts of said society" is a good charitable
devise.
8. A devise to a society incorporated "for the relief of
indigent widows and orphans in the City of Savannah" of buildings
and land, "the rents and profits to be appropriated to the
benevolent purposes of said society," is a good charitable
devise.
9. The rule against perpetuities does not apply to charities,
and if a devise is made to one charity in the first instance and
then over upon a contingency
Page 107 U. S. 175
which may not take place within the limit of that rule, to
another charity, the limitation over to the second charity is
good.
10. Restrictions imposed by the charter of a corporation upon
the amount of property that it may hold cannot be taken advantage
of collaterally by private persons, but only in a direct proceeding
by the state.
11. The provision of the Constitution of Georgia of 1808 which
declares that "the General Assembly shall have no power to grant
corporate powers and privileges to private companies" (with certain
exceptions), "but it shall prescribe by law the manner in which
such powers shall be exercised by the courts," does not take away
from the General Assembly the power to amend the charters of
existing corporations by modifying or enlarging their powers.
12. A devise to a historical society of a house containing a
collection of books, documents, and works of art, in trust to keep
and preserve the same, with the collection therein, and other books
and works of art to be purchased by the officers of the society out
of the income of a fund bequeathed by the devisor for the purpose,
"as a public edifice for a library and academy of arts and
sciences," and "to be open for the use of the public" on such terms
and under such reasonable regulations as the society may prescribe,
is a good charitable devise, and is not invalidated by a
requirement to place and keep over the entrance a marble slab with
the name of the testator engraved thereon, and if the society is
incapable of executing the trust, a court of equity, in the
exercise of its ordinary jurisdiction and under sec. 3105 of the
Code of Georgia of 1873, may appoint a new trustee.
13. A devise and bequest in trust for the building, endowment,
and maintenance of
"a hospital for females within the City of Savannah on a
permanent basis into which sick and indigent females are to be
admitted and cared for in such manner and on such terms as may be
defined and prescribed by"
certain directresses named and their associates, who are to
obtain an act of incorporation for the purpose, is a valid
charitable devise and bequest, although no time is limited for the
erection of the building or the obtaining of the charter.
14. A bequest
"to the first Christian church erected or to be erected in the
village of Telfairville in Burke County, or to such persons as may
become trustees of the same"
is a good charitable bequest.
The case is fully stated in the opinion of the Court.
MR. JUSTICE GRAY delivered the opinion of the Court.
This a bill in equity, by the heirs at law, and next of kin of
Miss Mary Telfair, of Savannah, against the executors of her
Page 107 U. S. 176
will, and the devisees and legatees named therein, to have the
devises and bequests adjudged void, and a resulting trust declared
in favor of the plaintiffs. The will, which was executed the day
before the testatrix died, and was afterwards admitted to probate
in the court of appropriate jurisdiction of the State of Georgia,
disposed of property amounting to more than $650,000, contained
many devises and bequests to individuals and to charitable objects,
and appointed the executors of the will trustees under its
provisions. The defendants filed a general demurrer. The opinion
delivered by MR. JUSTICE BRADLEY, in the circuit court, sustaining
the demurrer and dismissing the bill, is reported in 3 Woods
443.
The plaintiffs, in the first place, contend that by the
twenty-second clause of the will all the devises and bequests, as
well those to private persons as those for charitable purposes, are
brought within the rule against perpetuities, by which every devise
or bequest is void which may by possibility not take effect within
a life or lives in being and twenty-one years afterwards. That
clause is as follows:
"Twenty-second. It is my wish, and I hereby so direct, that none
of the legacies, bequests, and devises in any of the clauses of
this my will shall be executed or take effect until the building
and other improvements on the lot on the corner of Gaston and
Whittaker Streets, and known as the Hodgson Memorial Hall, which I
have conveyed in trust to the Georgia Historical Society, shall be
completed and entirely paid for out of my estate."
The bill, which was filed nearly four years after the death of
the testatrix, alleges, and the demurrer admits, that the building
and other improvements referred to were in course of construction
at the time of her death, but were not completed until many months
thereafter, but whether they were yet entirely paid for the
plaintiffs were not certainly informed, and that if not paid for,
it was the only debt known to them now existing against the
estate.
Reading the twenty-second clause in connection with the other
parts of the will, and in the light of the attending facts, it is
quite clear that the words "take effect" are used by the testatrix
as synonymous with or equivalent to the word "executed,"
Page 107 U. S. 177
with which they are coupled, and not as signifying that the
devises and bequests shall not vest immediately, but only that they
shall not be paid or carried out until the debt contracted by the
testatrix for the construction of the Hodgson Memorial Hall shall
have been paid out of her estate. Each devise and bequest is
present and immediate in form, introduced by the words "I give,
devise, and bequeath." The bill shows that the building and
improvements referred to were at the time of the death of the
testatrix, in the course of construction, and so far advanced that
they were actually completed within some months afterwards, so that
the probable cost must have been capable of estimation at the time
of the making of the will. The twenty-second clause is but a
declaration of what the law would require, that the debt of the
testatrix for the construction of the memorial hall must be first
paid out of her estate before her devisees and legatees receive any
benefit therefrom.
The next objection, which touches all the devises to charitable
purposes, is based on the following provision of the Code of
Georgia of 1873:
"SEC. 2419. No person leaving a wife or child, or descendants of
child, shall by will devise more than one-third of his estate to
any charitable, religious, educational, or civil institution, to
the exclusion of such wife or child, and in all cases the will
containing such devise shall be executed at least ninety days
before the death of the testator, or such devise shall be
void."
The plaintiffs contend that the latter part of this section
applies to every will containing a charitable devise, whether the
testator does or does not leave a wife or child or the descendants
of a child, and that therefore, although this testatrix left no
issue and had never been married, yet the will having been executed
less than ninety days before her death, the charitable devises
contained therein are void.
In support of this position reference is made to cases in the
courts of New York and Pennsylvania.
Harris v. Slaght, 46
Barb. 470;
S.C. nom. Harris v. American Bible Society, 2
Abb., App.Dec. (N.Y.) 316;
Lefevre v. Lefevre, 59 N.Y.
434;
Price v. Maxwell, 28 Pa.St. 23;
McLean
v.
Page 107 U. S. 178
Wade, 41 Pa.St. 266;
Miller v. Porter, 53
Pa.St. 292;
Rhymer's Appeal, 93 Pa.St. 142. But the
statutes under which those cases were decided were quite different
from that of Georgia.
The enactment in New York formed part of an act for the
incorporation of charitable societies, and is as follows:
"Any corporation formed under this act shall be capable of
taking, holding, or receiving any property, real or personal, by
virtue of any devise or bequest contained in any last will or
testament of any person whatsoever, the clear annual income of
which devise or bequest shall not exceed the sum of $10,000,
provided no person leaving a wife, or child, or parent,
shall devise or bequeath to such institution or corporation more
than one-fourth of his or her estate, after the payment of his or
her debts, and such devise or bequest shall be valid to the extent
of such one-fourth, and no such devise or bequest shall be valid in
any will which shall not have been made and executed at least two
months before the death of the testator."
Statute of N.Y. 1848, c. 319, sec. 6; 2 N.Y.Rev.Stat. (ed.
1859), c. 18, tit. 7 sec. 6. The leading clause of that section, to
which the last clause of the same section was held to relate, and
which is wholly omitted in the Georgia statute, spoke of devises
and bequests to charitable corporations "contained in any last will
or testament of any person whatsoever."
The provision of the corresponding, statute of Pennsylvania was
still plainer, for it did not mention wife or child at all, but
enacted in the most positive words that
"No estate, real or personal, shall hereafter be bequeathed,
devised, or conveyed to any body politic, or to any person, in
trust for religious or charitable uses, except the same be done by
deed or will, attested by two credible, and at the time,
disinterested witnesses at least one calendar month before the
decease of the testator or alienor, and all dispositions of
property contrary hereto shall be void, and go to the residuary
legatee or devisee, next of kin, or heirs, according to law,
provided that every disposition of property within said
period,
bona fide made for a fair valuable consideration,
shall not be hereby avoided."
Statute of Penn. of (1855), c. 347 sec. 11; Purdon's Digest
(10th ed.) 208.
Page 107 U. S. 179
But in the provision on which the appellants rely, which is
inserted in the chapter on wills of the Code of Georgia, and is the
only provision as to charitable devises contained in that chapter,
the leading clause is limited to the will of a person, leaving a
wife or child or descendents of a child, containing a devise to a
charitable institution to the exclusion of such wife or child, and
the words in the subsequent clause, "in all cases the will
containing such devise," naturally, if not necessarily, refer to a
will containing a devise to such an institution by a person leaving
a wife or issue. The provision has been so construed by the Supreme
Court of Georgia in a case decided in 1867, and again in 1878 in
the case of this very will.
Reynolds v. Bristow, 37 Ga.
283;
Wetter v. Habersham, 60 Ga. 193, 194, 203. It is
suggested by the learned counsel for the appellants that what was
said upon this point in each of those cases was
obiter
dictum, because the question at issue was not of the
construction or effect of the will, but only whether it should be
admitted to probate. But the reports clearly show that the court
considered that the question whether the will was illegal and void,
so far as regarded the charitable devises, because in contravention
of this statute, was presented for adjudication upon the offer of
the whole will for probate.
The separate objections taken to the several charitable devises
and bequests remain to be considered.
According to the uniform course of the decisions of this Court,
the validity of these devises, as against the heirs at law, depends
upon the law of the state in which the lands lie, and the validity
of the bequests, as against the next of kin, upon the law of the
state in which the testatrix had her domicile.
Vidal v.
Girard, 2 How. 127;
Wheeler v.
Smith, 9 How. 55;
McDonogh
v. Murdoch, 15 How. 367;
Fontain v.
Ravenel, 17 How. 369,
58 U. S. 384,
58 U. S. 394;
Perin v.
Carey, 24 How. 465;
Lorings v.
Marsh, 6 Wall. 337;
United States v. Fox,
94 U. S. 315;
Kain v. Gibboney, 101 U. S. 362;
Russell v. Allen ante, 107 U. S. 163.
The Code of Georgia of 1873 contains the following provisions on
the subject of charitable uses:
"SEC. 2468. A devise or bequest to a charitable use will be
sustained and carried out in this state, and in all cases where
there is a general intention manifested by the testator to effect a
certain
Page 107 U. S. 180
purpose, and the particular mode in which he directs it to be
done fails from any cause, a court of chancery may, by
approximation, effectuate the purpose in a manner most similar to
that indicated by the testator."
"SEC. 3155. Equity has jurisdiction to carry into effect the
charitable bequest of a testator, or founder, or donor, where the
same are definite and specific in their objects, and capable of
being executed."
"SEC. 3156. If the specific mode of execution be for any cause
impossible, and the charitable intent be still manifest and
definite, the court may, by approximation, give effect in a manner
next most consonant with the specific mode prescribed."
"SEC. 3157. The following subjects are proper matters of charity
for the jurisdiction of equity: 1. the relief of aged, impotent,
diseased, or poor people; 2. every educational purpose; 3.
provisions for religious instruction of worship; 4. for the
construction or repair of public works, or highways, or other
public conveniences; 5. the promotion of any craft or persons
engaging therein; 6. for the redemption or relief of prisoners or
captives; 7. for the improvement or repair of burying grounds or
tombstones; 8. other similar subjects, having for their object the
relief of human suffering, or the promotion of human
civilization."
"SEC. 3158. A charity, once inaugurated, is always subject to
the supervision and direction of a court of equity to render
effectual its purpose and object."
These provisions were evidently enacted to clear up the doubts
created by previous conflicting decisions and opinions of the
Supreme Court of Georgia.
Beall v. Fox, 4 Ga. 404;
American Colonization Society v. Gartrell, 23 Ga. 448;
Walker v. Walker, 25 Ga. 420;
Beall v. Drane, 25
Ga. 430. They show, as was well observed by MR. JUSTICE BRADLEY in
the circuit court, "that the law of charities is fully adopted in
Georgia, as far as is compatible with a free government where no
royal prerogative is exercised." 3 Woods 469. And such had been the
construction given to the corresponding sections of the Code of
1865 by the supreme court of the state in a well considered
judgment, in which it was held that charitable bequests, the
general objects of which the testator had pointed out, or fixed any
means for pointing out, were sufficiently "definite and specific in
their objects, and capable of being executed,"
Page 107 U. S. 181
under the provisions of the Code and the ordinary jurisdiction
of courts of chancery, and therefore that a bequest to a county
court of a sum of money to be placed in the hands of four men, who
were to give security, and lend out the principal, and pay over the
interest annually to that court, "to pay for the education of poor
children belonging to the county," was a good charitable bequest.
Newson v. Starke, 46 Ga. 88.
In the will before us, the first of the devises to charitable
uses is as follows:
"Tenth. I hereby give, devise, and bequeath to the trustees of
the Independent Presbyterian Church of the City of Savannah all
that full lot of land in the City of Savannah on the southwest
corner of Broughton and Bull streets, with the buildings and
improvements thereon, to have and to hold the same on the following
terms and conditions, and not otherwise, to-wit: First. That the
trustees of the said Independent Church shall appropriate annually,
out of the rents and profits of said lot and improvements, the sum
of $1,000 to one or more Presbyterian or Congregational churches in
the State of Georgia, in such destitute and needy localities as the
proper officers of said Independent Presbyterian Church may select,
so as to promote the cause of religion among the poor and feeble
churches of the state. Second. This gift and devise is made on the
further condition that neither the trustees nor any other officer
of said Independent Presbyterian Church will have or authorize any
material alteration or change made in the pulpit or galleries of
the present church edifice on the corner of Bull and South Broad
Streets, but will permit the same to remain substantially as they
are, subject only to proper repairs and improvements; nor shall
they sell or alien the lot on which the Sabbath school room of said
church now stands, but shall hold the same to be improved in such
manner as the trustees or pew-holders may direct. Third. Upon the
further condition that the trustees of said Independent
Presbyterian Church will keep in good order, and have thoroughly
cleaned up every spring and autumn, my lot in the cemetery of
Bonaventure, and that no interment or burial of any person shall
ever take place either in the vault or within the enclosure of said
lot, and for the purpose of having the same protected and cared
for, I hereby give, devise, and bequeath my said lot in the
Bonaventure Cemetery to the trustees of the Independent
Presbyterian Church and their successors. "
Page 107 U. S. 182
The act of the Legislature of Georgia, of the 8th of December,
1806, incorporating the trustees of the Presbyterian Church of the
City of Savannah (whose name, by a subsequent act of the sixteenth
of May, 1821, has been changed to that by which they are called in
the will), provides, in sec. 2, that they
"and their successors in office shall be invested with all
manner of property, real and personal, all moneys due and to grow
due, donations, gifts, grants, privileges, and immunities
whatsoever, which shall or may belong to said Presbyterian church
at the time of the passing of this act, or which shall or may at
any time or times hereafter be granted, given, conveyed, or
transferred to them, or their successors in office, to have and to
hold the same to the said trustees, and their successors in office,
to the only proper use, benefit, and behoof of the said church
forever;"
in sec. 4, that
"nothing herein contained shall be construed to vest in the said
trustees any right or title to any estate or property whatsoever,
real or personal, other than such as doth, or may rightfully and
lawfully, belong to the said Presbyterian church, or congregation,
hereby made a body corporate;"
and in sec. 5, that
"it shall not be lawful for said trustees, or their successors
in office at any time or times hereafter, to grant, bargain, sell,
alien, or convey any real estate whatsoever, belonging to the said
church, to any person or persons, under any pretense or upon any
consideration whatsoever, so as to dispose of the fee simple
thereof."
It is objected that this corporation is not empowered under its
charter to accept and administer this charity. But it is a novel
proposition, as inconsistent with the rules of law as it is with
the dictates of religion, that a Christian church or religious
society cannot receive and distribute money to poor churches of its
own denomination so as to promote that cause of religion in the
state in which it is established. To hold this gift to be too
indefinite and uncertain would be to disregard the elementary
principles of the law of charitable uses. The appropriation of a
certain sum annually to one or more churches of a certain
denomination in such destitute and needy localities as the trustees
may select, so as to promote the cause of religion among the poor
and feeble churches of the state, describes the general nature of
the charitable purpose,
Page 107 U. S. 183
while leaving the selection of the particular objects to the
trustees, and is a good charitable use, sufficiently defined.
Bartlett v. King, 12 Mass. 537;
Going v. Emery,
16 Pick. 107;
North Adams Universalist Society v. Fitch, 8
Gray (Mass.) 421.
The other objections to the validity of this devise are equally
unavailing. The condition that no material alteration or change,
but only proper repairs and improvements, shall be made in the
pulpit or galleries of the present church (even if illegal, which
we see no reason for supposing), is a condition subsequent,
relating to the care and use of the property after the gift shall
have vested in the devisee, and cannot therefore affect the
original validity of the gift.
The condition that the trustee shall not alienate the land on
which the school room stands is also a condition subsequent, and is
in accordance with the fifth section of their charter and with the
general law upon the subject. It will not prevent a court of
chancery from permitting, in case of necessity arising from
unforeseen change of circumstances, the sale of the land and the
application of the proceeds to the purposes of the trust. Tudor on
Charitable Trusts (2d ed.) 298;
Stanley v.
Colt, 5 Wall. 119,
72 U. S.
169.
The conditions as to the care and keeping of the tomb or burial
place of the testatrix is likewise a condition subsequent, and,
even if invalid, would not defeat the charitable gift.
Giles v.
Boston Fatherless & Widows' Society, 10 Allen (Mass.) 355.
In England, there has been a difference of opinion upon the
question whether the maintenance and repair of the tomb or monument
of the donor is a good charitable use. Down to the time of the
American revolution, as by the civil law, it appears to have been
held that it was. 3 Inst. 202;
Masters v. Masters, 1
P.Wms. 421, 423, and note;
Durour v. Motteux, 1 Ves.Sr.
320;
Gravenor v. Hallum, Ambl. 643; Boyle on Charities
45-51; Justinian's Institutes, lib. 2, tit. 1, secs. 8, 9; Dig. 11,
7, 2, 5; 47, 12, 3, 2. According to the later English cases, it is
not.
Doe v. Pitcher, 3 M. & S. 407;
Same v.
Same, 6 Taunt. 359;
S.C. 2 Marsh. 61;
Willis v.
Brown, 2 Jur. 987;
Hoare v. Osborne, L.R. 1 Eq. 585;
Fiske v. Attorney General, Law Rep. 4 Eq. 521;
In re
Birkett, 9 Ch.D. 576.
See
Page 107 U. S. 184
also Dexter v. Gardner, 7 Allen 243, 247. But it is
unnecessary to examine and weight these conflicting authorities, or
to determine whether the devise of the burial place of the
testatrix and the direction to keep it in good order could be
upheld in the absence of local statute, because they are clearly
valid under the Code of Georgia, which enumerates among charitable
uses "the improvement or repair of burying grounds or tombstones."
Code of Georgia of 1873, sec. 3157, cl. 7.
The eleventh clause of the will contains a devise to the Union
Society of Savannah of a parcel of land in that city, with the
buildings and improvements thereon,
"but on the express condition that said society shall not sell
or alienate said lot, but shall use and appropriate the rents and
profits of the same for the support of the school and charities of
said institution, without said lot being at any time liable for the
debts or contracts of said society."
The Union Society was incorporated by a statute of the 14th of
August, 1786, "for the relief of distressed widows, and the
schooling and maintaining of poor children."
The twelfth clause devises to the Widows' Society of Savannah
another parcel of land in that city,
"on which the improvements now consist of four brick tenement
buildings, the rents and profits of the same to be appropriated to
the benevolent purposes of said society, but this devise is made on
condition the said Savannah Widows' Society shall not sell or
alienate said lot or improvements, nor hold the same subject to the
debts, contracts, or liabilities of said society."
The widows' society was incorporated, as stated in the title and
repeated in the body of its charter granted in 1837, "for the
relief of indigent widows and orphans in the City of Savannah."
"The relief of aged, impotent, and poor persons" is within the
very words of the statute of 43 Eliz. c. 4, sec. 1, and of the Code
of Georgia of 1873, sec. 3157, and all educational purposes are
within the terms of that Code, and within the scope and principle
of the statute of Elizabeth.
Russell v. Allen, ante, p.
107 U. S. 163. The
fact that the gift to the widows' society is directed "to be
appropriated to the benevolent purposes of said society" does not
affect its validity, because the charter of the society shows that
all its purposes are charitable,
Page 107 U. S. 185
in the legal sense. It is only when a gift might be applied to
benevolent purposes which are not charitable in that sense, that
the gift fails.
Saltonstall v. Sanders, 11 Allen (Mass.)
446;
Suter v. Hilliard, 132 Mass. 412;
De Camp v.
Dobbins, 2 Stew. (N.J.) 36;
Adye v. Smith, 44 Conn.
60;
In re Jarman's Estate, 8 Ch.D. 584. The conditions
subsequent have no greater effect than the corresponding conditions
in the tenth clause, already considered.
The next clause of the will contains a provision applicable to
the tenth, eleventh, and twelfth clauses, and is as follows:
"Thirteenth. Should either one or more of the corporate bodies
or institutions named in the preceding items of my will attempt to
sell, alienate, or otherwise dispose of the property and estate
therein devised, contrary to the terms and conditions therein set
forth, or should there be any levy on the same to satisfy the debts
of said corporation, then I hereby direct my executors or legal
representatives to repossess and enter upon said property or estate
as to which the conditions may be so broken or violated, and in
that event I do hereby give and devise the said property so entered
upon and repossessed unto the Savannah Female Orphan Asylum."
There is nothing in this clause by which the heirs at law or
next of kin can be benefited in any possible view. If the
conditions against voluntary alienation and levy of execution are
invalid, the previous devises stand good. If those conditions are
valid, the devise over to the Savannah Female Orphan Asylum, an
undoubted charity, will take effect, for as the estate is no more
perpetual in two successive charities than in one charity, and as
the rule against perpetuities does not apply to charities, it
follows that if a gift is made to one charity in the first
instance, and then over to another charity upon the happening of a
contingency which may or may not take place within the limit of
that rule, the limitation over to the second charity is good.
Christ's Hospital v. Grainger, 16 Sim. 83, 100; 1 Macn.
& Gord. 460; 1 Hall & Twells 533;
McDonogh
v. Murdoch, 15 How. 367,
56 U. S. 412,
56 U. S. 415;
Russell v. Allen, ante, p.
107 U. S. 163.
The fourteenth clause of the will contains a devise and
bequest
Page 107 U. S. 186
to the Georgia Historical Society to establish a public library
and museum, and is as follows:
"Fourteenth. I hereby give, devise, and bequeath to the Georgia
Historical Society and its successors all that lot or parcel of
land, with the buildings and improvements thereon, fronting on St.
James square, in the City of Savannah, and running back to
Jefferson Street, known in the plan of said city as lot letter N,
Heatheote Ward, the same having been for many years past the
residence of my family, together with all my books, papers,
documents, pictures, statuary, and works of art, or having relation
to art or science, and all the furniture of every description in
the dwelling house and on the premises (except bedding and table
service, such as china, crockery, glass, cutlery, silver, plate,
and linen), and all fixtures and attachments to the same; to have
and to hold the said lot and improvements, books, pictures,
statutory, furniture, and fixtures to the said Georgia Historical
Society and its successors, in special trust, to keep and preserve
the same as a public edifice for a library and academy of arts and
sciences, in which the books, pictures, and works of art herein
bequeathed, and such others as may be purchased out of the income,
rents, and profits of the bequest hereinafter made for that
purpose, shall be permanently kept and cared for, to be open for
the use of the public on such terms and under such reasonable
regulations as the said Georgia Historical Society may from time to
time prescribe; but this devise and bequest is made upon condition
that the Georgia Historical Society shall cause to be placed and
kept, over and against the front porch or entrance of the main
building on said lot, a marble slab or tablet, on which shall be
cut or engraved the following words, to-wit, TELFAIR ACADEMY OF
ARTS AND SCIENCES, the word 'Telfair' being in larger letters and
occupying a separate line above the other words, and on the further
condition that no part of the buildings shall ever be occupied as a
private residence or rented out for money, and none but a janitor
and such other persons as may be employed to manage and take care
of the premises shall occupy or reside in or upon the same, and
that no part of the same shall be used for public meetings or
exhibitions, or for eating, drinking, or smoking, and that no part
of the lot or improvements shall ever be sold, alienated, or
encumbered, but the same shall be preserved for the purposes herein
set forth. And it is my wish that whenever the walls of the
building shall require renovating by paint or otherwise, the
present color and design shall be adhered to as far as
Page 107 U. S. 187
practicable. For the purpose of providing more effectually for
the accomplishment of the objects contemplated in this item or
clause of my will, I hereby give, devise, and bequeath to the
Georgia Historical Society and its successors one thousand shares
of the capital stock of the Augusta and Savannah Railroad of the
State of Georgia, in special trust, to apply the dividends, income,
rents, and profits, arising from the same, to the repairs and
maintenance of said buildings and premises, and the payment of all
expenses attendant upon the management and care of the institution
herein provided for, and then to apply the remaining income, rents,
and profits in adding to the library, and such works of art and
science as the proper officers of the Georgia Historical Society
may select, and in the preservation and proper use of the same, so
as to carry into effect in good faith the objects of this devise
and bequest."
The Georgia Historical Society was incorporated by a statute of
the 19th of December, 1839, the preamble of which recites that
"The members of a society instituted in the City of Savannah for
the purpose of collecting, preserving, and diffusing information
relating to the history of the State of Georgia in particular, and
of American history generally, have applied for an act of
incorporation."
The first section makes them a corporation with the usual
powers, and especially
"to purchase, take, receive, hold, and enjoy, to them and their
successors, any goods and chattels, lands and tenements, and to
sell, lease, or otherwise dispose of the same, or any part thereof
at their will and pleasure,
provided that the clear annual
income of such real and personal estate shall not exceed the sum of
$5,000,
and provided also that the funds of the said
corporation shall be used and appropriated to the purposes stated
in the preamble of this act, and those only."
And the fourth section declares that the act of incorporation
shall be a public act, "and shall be construed benignly and
favorably for every beneficial purpose therein intended."
It is stated in the bill, and admitted by the demurrer, that the
net income of the Georgia Historical Society, from property held by
it at the time of the death of the testatrix, was between three and
four thousand dollars, and that the income of the property now
bequeathed to it will add $7,000 to that income. It is argued for
the appellants that because the effect
Page 107 U. S. 188
of the gift will be to increase the property of the corporation
to double the amount which the corporation is allowed by the
proviso in the first section in the charter to hold, the whole gift
is void.
But there are two conclusive answers to this argument:
1st. Restrictions imposed by the charter of a corporation upon
the amount of property that it may hold cannot be taken advantage
of collaterally by private persons, but only in a direct proceeding
by the state which created it.
Runyan v.
Coster, 14 Pet. 122,
39 U. S. 131;
Smith v.
Sheeley, 12 Wall. 358,
79 U. S. 361;
Bogardus v. Trinity Church, 4 Sandf.Ch. 633, 758;
De
Camp v. Dobbins, 2 Stew. (N.J.) 36;
Davis v. Old Colony
Railroad Co., 131 Mass. 258, 273.
2d. By an act of amendment of the 28th of October, 1870, the
provisos in the first section of the original charter are repealed.
It is contended that the act of 1870 is unconstitutional and void,
as being a grant by the legislature of corporative powers and
privileges, in contravention of this provision in the constitution
of the state:
"The General Assembly shall have no power to grant corporate
powers and privileges to private companies, except to banking,
insurance, railroad, canal, navigation, mining, express, lumber,
manufacturing, and telegraph companies; nor to make or change
election precincts; nor to establish bridges or ferries; nor to
change names of legitimate children; but it shall prescribe by law
the manner in which such powers shall be exercised by the
courts."
Constitution of Georgia of 1868, art. 3, sec. 6, sec. 5; Code
1873, sec. 5068. But the words "corporate powers and privileges,"
as here used, signify the corporate franchise, the aggregate powers
and privileges which constitute a corporation, not every separate
power and privilege which may be conferred upon a corporate body.
The object is to take away from the legislature and to vest in the
courts, under its direction for the future, the creation of private
corporations for literary, religious, charitable or other purposes,
except those specially excepted; but not to prevent the legislature
from amending the charters of corporations already existing and
modifying or enlarging their powers either by repealing former
restrictions or otherwise. The act of 1870 is therefore
constitutional and valid.
Page 107 U. S. 189
That a devise and bequest "to keep and preserve as a public
edifice" a house containing a library and an academy or museum of
works of art and science, "to be open for the use of the public" on
such terms and under such reasonable regulations as the trustees
may from time to time prescribe, is a valid charity cannot be
doubted.
British Museum v. White, 2 Sim. & Stu. 594;
Drury v. Natick, 10 Allen 169;
Donohugh's Appeal,
86 Pa.St. 306. The directions tending to perpetuate the memory of
the founder do not impair its public character or its legal
validity. In the cases of
Thomson v. Shakespeare,
H.R.V.Johns. 612, and 1 D., F. & J. 399, and of
Carne v.
Long, 2 D., F. & J. 75, on which the appellants rely, the
gifts failed because not exclusively devoted to a public charitable
use, the definition in the one case including purposes that might
not be charitable, and the bequest in the other being to a private
library established for the benefit of the subscribers alone.
See Beaumont v. Oliveira, Law. Rep. 4 Ch. 309,
314-315.
A corporation may hold and execute a trust for charitable
objects in accord with or tending to promote the purposes of its
creation, although such as it might not, by its charter or by
general laws, have authority itself to establish or to spend its
corporate funds for. A city, for instance, may take a devise in
trust to maintain a college, an orphan school, or an asylum.
Vidal v.
Girard, 2 How. 127;
McDonogh
v. Murdoch, 15 How. 367;
Parin v.
Carey, 24 How. 465. There is some ground for
holding that the objects of a historical society would be promoted
by administering a devise and bequest to maintain for the public
instruction and benefit a house containing a collection of books,
documents, and works of art, with other such books and works to be
selected by the officers of the society and purchased out of the
surplus income, and that the purposes of the trust are, in the
words of Mr. Justice Story in
Vidal v.
Girard, 2 How. 189, "germane to the objects of the
incorporation," and "relate to matters which will promote and aid
and perfect those objects."
But if any doubt remains of the capacity of the Georgia
Historical Society to assume and execute those charitable trusts,
it would be within the ordinary jurisdiction of a court
Page 107 U. S. 190
of equity to appoint other trustees in its stead, according to
the maxim, expressly affirmed in the Code of Georgia, that a trust
shall never fail for the want of a trustee.
Reeve v. Attorney
General, 3 Hare 191;
Winslow v. Cummings, 3 Cush.
358; Code of Georgia, 1873 sec. 3195.
The residuary clause of the will disposes of real and personal
estate to the amount of $300,000, and is as follows:
"Twenty-first. All the residue of my estate, of whatever the
same may consist, real, personal, and mixed, and wherever situated,
I hereby give, devise, and bequeath to my executors hereinafter
named, and to the survivor of them, and to the successors in this
trust of said survivor in trust, to use and appropriate the
proceeds arising from the same to the building and erection and
endowment of a hospital for females within the City of Savannah, on
a permanent basis, into which sick and indigent females are to be
admitted and cared for in such manner and on such terms as may be
defined and prescribed by the trustees or directresses provided for
in this item or clause in my will. The income, rents, and profits
of such portion of the residuum of my estate as may not be expended
in the building, erection, and furnishing said hospital shall be
annually appropriated to the support and maintenance of the same.
My desire and request is that a thoroughly convenient hospital of
moderate dimensions, suited to the wants of the City of Savannah
and capable of enlargement if necessity should require, may be
built and erected, with no unnecessary display connected with it.
And I do hereby nominate, as the first trustees, managers, or
directresses of said hospital, Mrs. Louisa F. Gilmer, Sarah Owens,
Mary Elliott (formerly Habersham), Susan Mann, Florence Bourquin,
Eva West, and Eliza Chisholm -- all of Savannah, Georgia -- and do
request and instruct my executors to advise and consult with the
ladies named as to the construction, arrangement, and furnishing of
said hospital. It is further my wish and desire, and I do hereby
request, that a suitable and proper act of incorporation for said
hospital shall be obtained from such tribunal in the State of
Georgia as may have jurisdiction in the premises, to be called and
known as the 'Telfair Hospital for Females,' with the ladies above
named, or such of them as may consent to serve and such others as
they may apply for to be associated with them, as the first
trustees, managers, or directresses under said act of
incorporation, with power to fill any vacancies that occur in their
number. And for the purposes of accomplishing the objects
contemplated in this item or clause of my
Page 107 U. S. 191
will, I do hereby authorize and empower my executors, or the
survivor of them, to sell and convey all or any portion of the real
estate, or any interest in the same, which I may have or be
entitled to, and not given or devised in any of the previous items
or clauses of this my will, using their discretion as to private or
public sales, and as to whether and at what time such sales shall
be made."
That this devise and bequest to establish a hospital for sick
and indigent females in the City of Savannah is sufficiently
definite, and that its validity is not impaired by the provision of
the will requiring an act of incorporation to be obtained, are
clearly settled by the cases of
Inglis v.
Sailors' Snug Harbor, 3 Pet. 99;
Ould v.
Washington Hospital, 95 U. S. 303, and
Russell v. Allen, ante, p.
107 U. S. 163.
The bequest in the twenty-third clause of the will of $1,000 "to
the first Christian church erected or to be erected in the village
of Telfairville, in Burke County or to such persons as may become
trustees of the same," is supported by the same authorities, and is
directly within the decisions of Lord Thurlow in
Attorney
General v. Bishop of Chester, 1 Bro.Ch. 444; of Sir John
Copley, Master of the Rolls (afterwards Lord Lyndhurst), in
Society for Propagation of the Gospel v. Attorney General,
3 Russ. 142, and of Lord Hatherlsy in
Sinnett v. Herbert,
L.R. 7 Ch. 232.
See also Cumming v. Reid Memorial Church,
64 Ga. 105.
The result is that all the devises and bequests contained in
Miss Telfair's will are valid as against her heirs at law and next
of kin.
Decree affirmed.