A resident in Pennsylvania made his will in 1829, giving
annuities to his wife and others and directing that his executors,
or the survivor of them, after the decease of his wife, should
provide for the annuitants then living and dispose of the residue
of his property for the use of such charitable institutions in
Pennsylvania and South Carolina as they or he may deem most
beneficial to mankind.
His wife and three other persons were appointed executors.
The three other persons all died during the lifetime of the
wife. No appointment of the charity was made or attempted to be
made during the lifetime of the executors.
The charity cannot now be carried out.
The executors were vested with a mere power of appointment,
without having any special trust attached to it. In England, the
case could only be reached by the prerogative power of the Crown
acting through the sign-manual of the King.
The English and American cases upon this subject examined.
This was a bill filed by Fontain, as administrator
de bonis
non cum testamento annexo of Frederick Kohne, deceased,
against Ravenel, one of the executors of Mrs. Kohne, the widow of
the deceased Frederick. The object of the bill was to recover from
the defendant certain sums of money which came into the hands of
the widow, as executrix of her husband, for the purpose of applying
them to some charitable bequests made in the will of Frederick
Kohne. These are stated, as well as the other circumstances of the
case, in the opinion of the Court, and need not be repeated.
Page 58 U. S. 370
The circuit court dismissed the bill, and the complainant
appealed to this Court.
Page 58 U. S. 382
MR. JUSTICE McLEAN delivered the opinion of the Court.
The case involves the construction of the will of Frederick
Kohne. He first settled in Charleston, South Carolina, where he
engaged in active business and accumulated a large fortune. For
many years before his death, his residence was divided between
Charleston and Philadelphia. At the latter place, he added much to
his wealth in the acquisition of real and personal property. He had
furnished houses in both cities and a country house in the
neighborhood of Philadelphia. Until his health became infirm, he
resided a part of the year in the South and the other part in the
North. In May, 1829, he died in Philadelphia, where his will was
made and published in the month of April preceding his death. In
his will, he declared himself to be of the City of
Philadelphia.
After giving several annuities to his wife and others and
legacies to his friends in this country and in foreign countries,
to charitable objects, and providing for the payment of them, he
declares:
"Forasmuch as there will be a surplus income of my estate beyond
what will be necessary to pay my said wife's annuity and the other
annuities, I do therefore direct my said executors to invest the
said surplus income, and all accumulation of interest arising from
that source yearly, for and during all the term of the natural life
of my said wife, in the purchase of such stocks or securities of
the United States or the State of Pennsylvania or of any other
state or states of the United States or of the City of
Philadelphia, bearing an interest, as they, in their discretion,
may see fit, and from and immediately after the decease of my said
wife, then all the rest, residue, and remainder of all my estate,
including the fund which shall have arisen from the said surplus
income aforesaid, after payment of the legacies hereinbefore
directed to be paid, after the decease of my said wife, and
providing for the payment of the annuities hereinbefore given, of
those annuitants who may then be still living, I authorize and
empower my executors or the survivor
Page 58 U. S. 383
of them, after the decease of my said wife, to dispose of the
same for the use of such charitable institutions in Pennsylvania
and 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."
His wife, Eliza Kohne, John Bohlen, and Robert Vaux, of the City
of Philadelphia, and Robert Maxwell, of the City of Charleston,
were appointed executors.
Mrs. Kohne survived her co-executors some years, and then died,
having made her last will and testament and appointed James L.
Petigru and William Ravenel, the defendant, executors, the latter
of whom obtained letters testamentary in the County of
Philadelphia. And on the 15th of October, 1852, William Fontain,
the complainant, obtained letters of administration
de bonis
non on the estate of Frederick Kohne, deceased, he being the
nearest of kin to the deceased and one of his heirs at law.
The bill is filed in the name of the complainant by certain
charitable societies of Pennsylvania and South Carolina under the
directions of the will to recover from the defendant, as executor
of Mrs. Kohne, so much of the property as came to her hands as the
executrix of her husband's will and which she distributed as
undisposed-of property after the death of her co-executors. And the
question in the case is whether the residuary bequest in the will,
which authorized his executors, or the survivor of them, after the
death of his wife, to dispose of the surplus "for the use of such
charitable institutions in Pennsylvania and South Carolina, as they
might deem most beneficial to mankind," has lapsed, no such
appointment having been made or attempted to be made during the
lifetime of the executors. This part of the property is understood
to have amounted to a large sum.
The domicile of the testator at the time of his death seems not
to be a controverted question. He had so lived in the two States of
Pennsylvania and South Carolina and amassed property in both that
his domicile might be claimed in either. There is no evidence in
which, if in either, he exercised the right of suffrage. For two
years previous to his death he resided in Pennsylvania.
The bequest under consideration was intended to be a charity.
The donor, having entire confidence in his executors, substituted
their judgment for his own. They, or the survivor of them, was to
designate such objects of his charity in the two states "as would
be most beneficial to mankind." It was to be placed on the broadest
foundations of human sympathy, not
Page 58 U. S. 384
excluding the colored race. It is no charity to give to a
friend. In the books it is said the thing given becomes a charity
where the uncertainty of the recipients begins. This is beautifully
illustrated in the Jewish law, which required the sheaf to be left
in the field for the needy and passing stranger.
It may be admitted that this bequest would be executed in
England. A charity rarely, if ever, fails in that country. The only
question there is whether it shall be administered by the
chancellor, in the exercise of his ordinary jurisdiction, or under
the sign-manual of the Crown. Thus furnished with the judicial and
prerogative powers, the intent of the testator, however vaguely and
remotely expressed, if it be construed into a charity, effect is
generally given to it. It is true this is not always done in the
spirit of the donor, for sectarian prejudices or the arbitrary will
of the King's instruments sometimes pay little or no regard to the
expressed will of the testator.
The appellants endeavor to sustain this charity under the laws
of Pennsylvania. This is according to the course of the Court. The
case of
Philadelphia Baptist Association
v. Hart's Executors, 4 Wheat. 1, was decided under
the laws of Virginia, which had repealed the statute of 43
Elizabeth. In
Beatty v.
Kurtz, 2 Pet. 566, the pious use of a burial ground
was sustained under the Bill of Rights of Maryland. The case of
Wheeler v.
Smith, 9 How. 55, was ruled under the laws of
Virginia. And in the case of
Vidal v. Girard's Executors,
2 How. 127, the laws of Pennsylvania governed.
In
Wheeler v.
Smith, 9 How. 55, this Court said, when this
country achieved its independence, the prerogatives of the Crown
devolved upon the people of the states. And this power still
remains with them except so far as they have delegated a portion of
it to the federal government. The sovereign will is made known to
us by legislative enactment. The state, as a sovereign, is the
parens patriae.
There can be no doubt that decisions have been made in this
country on the subject of charities under the influence of English
decrees without carefully discriminating whether they resulted from
the ordinary exercise of chancery powers or the prerogatives of the
Crown.
The courts of the United States cannot exercise any equity
powers except those conferred by acts of Congress and those
judicial powers which the high court of chancery in England, acting
under its judicial capacity as a court of equity, possessed and
exercised at the time of the formation of the Constitution of the
United States. Powers not judicial, exercised by the chancellor
merely as the representative of the sovereign and by virtue of the
King's prerogative as
parens patriae, are not possessed by
the circuit courts.
Page 58 U. S. 385
In 2 Story's Eq. § 1189, it is said:
"But as the court of chancery may also proceed in many, although
not in all, cases of charities by original bill, as well as by
commission under the Statute of Elizabeth, the jurisdiction has
become mixed in practice -- that is to say, the jurisdiction of
bringing informations in the name of the Attorney General has been
mixed with the jurisdiction given to the chancellor by the statute.
So that it is not always easy to ascertain in what cases he acts as
a judge, administering the common duties of a court of equity, and
in what cases he acts as a mere delegate of the Crown,
administering its peculiar duties and prerogatives. And again there
is a distinction between cases of charity, where the chancellor is
to act in the court of chancery, and cases where the charity is to
be administered by the King, by his sign-manual. But in practice
the cases have often been confounded from similar causes."
"It is a principle in England, that the King, as
parens
patriae, enforces public charities, where no other person is
entrusted with the right. Where there is no trustee, the King, by
his Lord Chancellor, administers the trust as the keeper of the
King's conscience, and it is not important whether the chancellor
acts as the special delegate of the Crown, or the King acts under
the sign-manual, his discretion being guided by the
chancellor."
It may be well again to state the precise question before
us.
"The executors, or the survivor of them, after the decease of
the testator's wife, was authorized to dispose of the property, for
the use of such charitable institutions in Pennsylvania and South
Carolina, as they or he may deem most beneficial to mankind."
No special trust is vested in the executors by reason of this
power of appointment. It is separable and distinct from their
ordinary duties and trust as executors. It was to be exercised
after the death of Mrs. Kohne, but the executors died before her
decease, and consequently they had no power to make the
appointment. The conditions annexed by the testator rendered the
appointment impossible. Had the contingency of the death of Mrs.
Kohne happened, as the testator from her advanced age contemplated,
during the life of the executors or the survivor of them, the
appointment might have been made at his or their discretion. But
had they or the survivor of them failed to make it, it might have
become a question whether he or they could have been coerced to do
so by the exercise of any known chancery power in this country. The
will contained no provision for such a contingency, and it could
not be brought under the trust of executorship. Chancery will not
compel the execution of a mere naked power. 1 Story's Eq. § 169.
But it will,
Page 58 U. S. 386
under equitable circumstances, aid a defective execution of a
power. A power when coupled with a trust, if not executed before
the death of the trustee, at law the power is extinguished, but the
trust, in chancery, is held to survive.
The testator was unwilling to give this discretion to select the
objects of his bounty except to his executors. He relied on their
discrimination, their judgment, their integrity, and fitness to
carry out so delicate and important a power. He made no provision
for a failure in this respect by his executors or the survivor of
them, nor for the contingency of their deaths before Mrs. Kohne's
decease. They died before they had the power to appoint, and now
what remains of this bequest on which a court of chancery can
act?
There must be some creative energy to give embodiment to an
intention which was never perfected. Nothing short of the
prerogative power, it would seem, can reach this case. There is not
only uncertainty in the beneficiaries of this charity, but behind
that is a more formidable objection. There is no expressed will of
the testator. He intended to speak through his executors or the
survivor of them, but by the acts of Providence this has become
impossible. It is then as though he had not spoken. Can any power
now speak for him except the
parens patriae? Had he
declared that the residue of his estate should be applied to
certain charitable purposes under the statute of 43 Eliz. or on
principles similar to those of the statute, effect might have been
given to the bequest as a charity in the State of Pennsylvania. The
words as to the residue of his property were used in reference to
the discretion to be exercised by his executors. Without their
action, he did not intend to dispose of the residue of his
property.
It is argued
"that in England, the Chancellor, in administering charities,
acts as the delegate of the Crown inasmuch as he discharges all his
judicial functions in that capacity."
If by this it is intended to assert that the Chancellor, in
affixing the sign-manual of the King, or when he acts under the
cy pres power, is in the discharge of his ordinary
chancery powers, it does not command our assent.
The statute of 43 Eliz., though not technically in force in
Pennsylvania, yet by common usage and constitutional recognition
the principles of the statute are acted upon in cases involving
charities.
Witman v. Lex, 17 Serg. & Rawle 88.
In the argument, the case of
Moggridge v. Thackwell, 7
Ves. 86, was cited as identical with the case before us. "The only
difference between that case and this one, it is said, is that in
the former the devise was for objects not defined, as they are in
this case." In this the counsel are somewhat mistaken, as the case
of
Moggridge will show.
Page 58 U. S. 387
The devise in the will of Ann Cam was:
"And I give all the rest and residue of my personal estate unto
James Vaston, of Clapton, Middlesex, gentleman, his executors and
administrators, desiring him to dispose of the same in such
charities as he shall think fit, recommending poor clergymen who
have large families and good characters, and I appoint the said
John Maggridge and Mr. Vaston, before mentioned, executors of this
my will."
In the final decree,
"upon a motion to vary the minutes, Lord Thurlow declared that
the residue of the testatrix' personal estate passed by her will,
and ought to go and be applied to charity,"
&c.
Now here was a trust created not only in Vaston, but in his
executors and administrators, to whom the residue of the estate was
bequeathed for the purposes of the charity. In this view Lord
Thurlow might well say, "the residue of the personal estate passed
by the will." This was true, though Vaston was dead when the will
took effect. This being the case, it is difficult to say that that
case is identical with the one before us.
The case of
Moggridge v. Thackwell was before Lord
Eldon on a rehearing. He entered into a general view of the subject
of charities by the citation of authorities which showed the
unreasonableness of the doctrine maintained by the courts, the
inconsistencies in the decisions in such cases, and the gross
perversions of charities by the exercise of the prerogative power,
but at last he says:
"Therefore I rather think the decree is right. I have conversed
with many upon it. I have great difficulty in my own mind and have
found great difficulty in the mind of every person I have
consulted, but the general principle thought most reconcilable to
the cases is that where there is a general indefinite purpose, not
fixing itself upon any object, as this in a degree does, the
disposition is in the King by sign-manual; but where the execution
is to be by a trustee, with general or some objects pointed out,
there the court will take the administration of the trust. But [he
observes] it must be recollected that I am called upon to reverse
the decree of a predecessor, and of a predecessor who, all the
reports inform us, had great occasion to consider this subject. I
should hesitate with reference to that circumstance; but where
authority meets authority and precedent clashes with precedent, I
doubt whether I could make a decree more satisfactory to my own
mind than that which has been made."
It will be perceived that this decision was made reluctantly,
and after much balancing of the law and the force of precedents,
and chiefly, as it would seem, in respect to the decree of Lord
Thurlow. This decision of Lord Eldon was made in 1802, and it is
not known to have been recognized in this country.
Page 58 U. S. 388
Neither the doctrines on which this decision is founded nor the
doubts expressed by the chancellor are calculated very strongly to
recommend it to judicial consideration. The case, however, is
different from the one before us in this: the residuary estate of
Mrs. Cam passed to the trustee; that of Mr. Kohne remained as a
part of his estate in the hands of the executors, and descended to
his heirs at law on the death of Mrs. Kohne. The beneficiaries were
not more definitely described in the one case than in the other. In
Kohne's Case, no trust was created except that which was
connected with the executorship.
Where there is nothing more than a power of appointment
conferred by the testator, there is nothing on which a trust, on
general principles, can be fastened. The power given is a mere
agency of the will, which may or may not be exercised at the
discretion of the individual. And if there be no act on his part,
the property never having passed out of the testator, it
necessarily remains as a part of his estate. To meet such cases and
others the prerogative power of the King, in England, has been
invoked, and he, through the Chancellor, gives effect to the
charity.
It would be curious as well as instructive on a proper occasion
to consider the principles, if principles they can be called, which
were first applied in England to charities. Their most learned
chancellors express themselves, in some degree, as ignorant on this
subject. Lord Eldon said, in the case of
Maggridge,
"In what the doctrine originated -- whether, as Lord Thurlow
supposed, in the principles of the civil law as applied to
charities or in the religious notions entertained formerly in this
country -- I know not, but we all know there was a period when a
portion of the residue of every man's estate was appropriated to
charity, and the ordinary thought himself obliged so to apply it
upon the ground that there was a general principle of piety in the
testator."
In the above case, Lord Eldon again says:
"In
Clifford v. Francis, this doctrine is laid down --
that when money is given to charity without expressing what
charity, there the King is the disposer of the charity, and a bill
ought to be preferred in the Attorney General's name. I cite this
[he says] to show that it contains a doctrine precisely the same as
Attorney General v. Syderfin, and
Attorney General v.
Matthews. So those three cases [he says] seemed to have
established, in the year 1679, that the doctrine of this Court was
that where the property was not vested in trustees, and the gift
was to charity generally, not to be ascertained by the act of
individuals referred to, the charity was to be disposed of not by a
scheme before the master, but by the King, the disposer of such
charities in his character of
parens patriae. "
Page 58 U. S. 389
Some late decisions in England involving charities evince a
disposition rather to restrict than to enlarge the powers exercised
on this subject. An arbitrary rule in regard to property, whether
by a King or Chancellor, or both, leads to uncertainty and
injustice.
In a late case of
Clark v. Taylor, 21 Eng.Law & Eq.
308, a gift by will to a particular charitable institution
maintained voluntarily by private means, the particular intention
having ceased, held that the gift was not to be disposed of as a
charitable gift
cy pres, but failed and fell into the
residue.
In the case of
Baptist
Association, 4 Wheat. 1, Chief Justice Marshall
says there can be no doubt that the power of the Crown to
superintend and enforce charities existed in very early times, and
there is much
"difficulty in marking the extent of this branch of the royal
prerogative before the statute. That it is a branch of prerogative,
and not a part of the ordinary powers of the Chancellor, is
sufficiently certain."
And in the case of
Attorney General v. Flood, Hayne
630, it is said: "The court of chancery has always exercised
jurisdiction in matters of charity, derived from the Crown as
parens patriae."
In the provisions of the act of Pennsylvania defining the powers
of a court of chancery in 1836, it is declared
"That in every case in which any court as aforesaid shall
exercise any of the powers of a court of chancery, the same shall
be exercised according to the practice in equity prescribed or
adopted by the Supreme Court of the United States."
In June, 1840, an act extended the jurisdiction of the Supreme
Court within the City and County of Philadelphia in chancery in
cases of "fraud, accident, mistake, or account," and since then, an
act has been passed giving the orphans' court power where a vacancy
exists in a trust to fill it, and also to dismiss trustees,
executors &c., for abuse of their trusts &c. But no
statutory provision is found embracing the case before us.
The chancery powers are of comparatively recent establishment in
the State of Pennsylvania, and it does not appear that the
cy
pres power is given, and in the exercise of jurisdiction it
seems to be disclaimed.
In
King v. Rundle, 15 Barb. 139,
"there being a number of charitable bequests to several
charitable bodies, the remainder was bequeathed or devised to the
Protestant Episcopal Society for certain purposes"
&c., the bequests to the religious bodies were held invalid,
and so of the remainder over, as not being statutory tests. In
Yates v. Yates, 9 Barb. 324, the court said:
"We come to the conclusion that as a court of equity we possess
no original inherent jurisdiction to enforce the execution of a
charitable trust void in law as contravening the
Page 58 U. S. 390
statute against perpetuities as being authorized. In this case,
where the use is a pious one, additional reasons might be urged
against the exercise of such jurisdiction, were it important.
Unless this trust will stand the statutory test to be applied to
it, it must fall."
In
Will of Sarah Zane, Mr. Justice Baldwin sitting in
Pennsylvania and speaking of trustees, said:
"They will be considered as trustees, acting under the
supervision of this Court, as a court of chancery, with the same
powers over trusts as courts of equity in England, and the courts
of this state profess and exercise. . . . When the fund shall be so
ascertained as to be capable of a final distribution, it will be
directed to be applied exclusively to the objects designated in the
will, as they existed at the time of her death, and shall continue
until a final decree; if any shall then appear to have become
extinct, the portion bequeathed to such object must fall into the
residuary fund as a lapsed legacy. Its appointment to other
purposes or
cestuis que trust than those which can, by
equitable construction, be brought within the intention of the will
of the donor is an exercise of that branch of the jurisdiction of
the Chancellor of England which has been conferred on this court by
no law, and cannot be exercised,
virtute officii under our
forms of government."
And again, in
Wright v. Linn, 9 Barr 433, Bell, J.,
says:
"Though the Statute of 43 Elizabeth, ch. 4, relating to
charitable uses, has not in terms been recognized as extending to
Pennsylvania, we have adopted not only the principles that properly
emanate from it, but, with perhaps the single exception of
cy
pres, those which, by an exceedingly liberal construction, the
English courts have engrafted upon it."
In
Methodist Church v. Remington, 1 Watts 226, the
court said:
"The original trust, though void, was not a superstitious one;
nor if it were, would the property, as in England, revert to the
state for the purpose of being appropriated
in eadem
genera, as no court here possesses the specific power
necessary to give effect to the principle of
cy pres, even
were the principle itself not too grossly revolting to the public
sense of justice to be tolerated in a country where there is no
ecclesiastical establishment."
In
Ray v. Adams, 3 Mylne & Keen 237, it was
held
"That where a power is by will given to a trustee which he
neglects to execute, the execution of the trust devolves upon the
court, but if, in the events which happen, the intended trustee
dies before the time arrives for the execution of the trust and the
trust therefore fails, the testator is to be considered as having
so far died intestate. "
Page 58 U. S. 391
In the case of
Ommanney v. Butcher, 1 Turn. & Russ.
260, a testator concluded his will, "in case there is any money
remaining, I should wish it to be given in private charity." Held,
"if the testator meant to create a trust, and the trust is not
effectually created, or fails, the next of kin must take."
There appears to be no law or usage in South Carolina that can
materially affect the question under consideration. It seems to be
conceded that if this charity cannot be administered by this Court,
in the State of Pennsylvania, it cannot be made available by the
laws of South Carolina.
After the investigation we have been able to give to this
important case, embracing the English chancery decisions on
charities as well as our own and the cases decided in Pennsylvania,
we are not satisfied that the fund in question ought to be
withdrawn from those who are in possession of it as the heirs of
Frederick Kohne. There does not appear to us to be any safe and
established principle in Pennsylvania which under the circumstances
enables a court of chancery to administer the fund. It has not
fallen back into the estate of the testator, because it was not
separated from it. It remains unaffected by the bequest, because
the means through with it was to be given and applied have failed.
The decree of the circuit court is therefore
Affirmed.
MR. CHIEF JUSTICE TANEY and MR. JUSTICE DANIEL concurred in the
judgment of the Court, but dissented from the reasoning. Their
opinions were as follows.
Opinion of MR. CHIEF JUSTICE TANEY.
I concur in the judgment of the Court. But I do not, for myself,
desire to express an opinion upon either the law of Pennsylvania or
of South Carolina in relation to charitable bequests. For assuming
everything to be true that is stated in the complainant's bill, and
that the bequest is valid by the laws of Pennsylvania, and would be
carried into execution by the tribunals of the state, yet I think
the circuit court of the United States had not jurisdiction to
establish and enforce it, and was right, therefore, in dismissing
the bill. I propose to show very briefly the grounds on which this
opinion is formed.
Undoubtedly a charitable bequest of this description would be
maintained in the English Court of Chancery. The death of the
executors in the lifetime of the widow would make no difference.
The bequest would still be good against the heirs or
representatives of the testator, and the fund applied to charitable
purposes according to a scheme approved by the Chancellor or
authorized under the sign-manual of the King.
Page 58 U. S. 392
But the power which the Chancellor exercises over donations to
charitable uses, so far as it differs from the power he exercises
in other cases of trust, does not belong to the Court of Chancery
as a court of equity, nor is it a part of its judicial power and
jurisdiction. It is a branch of the prerogative power of the King
as
parens patriae, which he exercises by the
Chancellor.
Blackstone in his Commentaries 3d vol. 48, enumerating what he
states to be the extraordinary powers of the Chancellor, says:
"He is the general guardian of all infants, idiots, and
lunatics, and has the general superintendence of all charitable
uses in the Kingdom, and all this over and above the vast and
extensive jurisdiction which he exercises in his judicial capacity
in the Court of Chancery."
And in the same volume, page 437, he says:
"The King, as
parens patriae, has the general
superintendence of all charities, which he exercises by the keeper
of his conscience, the Chancellor; and therefore whenever it is
necessary, the Attorney General, at the relation of some informant,
files an
ex officio information in the Court of Chancery
to have the charity properly established."
So, too, Cooper, in his chapter on the jurisdiction of the
court, says:
"The jurisdiction, however, in the three cases of infants,
idiots, or lunatics and charities, does not belong to the Court of
Chancery as a court of equity, but as administering the prerogative
and duties of the Crown."
And in the case of
Baptist Association v. Hart's
Executors, 4 Wheat. 1, this Court, after examining
many English authorities upon the subject, affirms the same
doctrine. And Chief Justice Marshall, who delivered the opinion of
the Court, expresses it in the following strong and decisive
language, p.
17 U. S. 48:
"It would be a waste of time [says the Chief Justice] to
multiply authorities to this point, because the principle is
familiar to the profession. It is impossible to look into the
subject without perceiving and admitting it. Its extent may be less
obvious."
"We now find [he continues] this prerogative employed in
enforcing donations to charitable uses, which would not be valid if
made to other uses, in applying them to different objects than
those designated by the donor, and in supplying all defects in the
instrument by which the donation is conveyed, or in that by which
it is administered."
Resting my opinion upon the English authorities above referred
to and upon the emphatic language just quoted from the decision of
this Court, I think I may safely conclude that the power exercised
by the English Court of Chancery "in
Page 58 U. S. 393
enforcing donations to charitable uses, which would not be valid
if made to other uses" is not a part of its jurisdiction as a court
of equity, but a prerogative power exercised by that court.
It remains to inquire whether the Constitution has conferred
this prerogative power on the courts of equity of the United
States.
The 2d section of the 3d Article of the Constitution declares
that the judicial power of the United States shall extend to all
cases in law and equity specified in the section. These words
obviously confer judicial power and nothing more, and cannot upon
any fair construction be held to embrace the prerogative powers
which the King, as
parens patriae, in England, exercised
through the courts. And the chancery jurisdiction of the courts of
the United States, as granted by the Constitution, extends only to
cases over which the Court of Chancery had jurisdiction in its
judicial character as a court of equity. The wide discretionary
power which the Chancellor of England exercises over infants,
lunatics, or idiots, or charities, has not been conferred.
These prerogative powers, which belong to the sovereign as
parens patriae, remain with the states. They may legalize
charitable bequests within their own respective dominions to the
extent to which the law upon that subject has been carried in
England, and they may require any tribunal of the state which they
think proper to select for that purpose to establish such charities
and to carry them into execution. But state laws will not authorize
the courts of the United States to exercise any power that is not
in its nature judicial; nor can they confer on them the prerogative
powers over minors, idiots, and lunatics, or charities, which the
English Chancellor possesses. Nobody will for a moment suppose that
a court of equity of the United States could, in virtue of a state
law, take upon itself the guardianship over all the minors, idiots,
or lunatics in the state. Yet these powers in the English
Chancellor stand upon the same ground, and are derived from the
same authority, as its power in cases of charitable bequests.
State laws cannot enlarge the powers of the courts of the United
States beyond the limits marked out by the Constitution. It is true
that the courts of chancery of the United States, in administering
the law of a state, may sometimes be called on to exercise powers
which do not belong to courts of equity in England. And in such
cases, if the power is judicial in its character and capable of
being regulated by the established rules and principles of a court
of equity, there can be no good objection to its exercise. It falls
within the just interpretation
Page 58 U. S. 394
of the grant in the Constitution. But beyond this the state laws
can confer no jurisdiction on the courts of equity of the United
States.
In the cases in relation to charities which have come before
this Court, there has been a good deal of discussion upon the
question whether the power of the chancery court of England was
derived from 43 Elizabeth, or was exercised by the court before
that act was passed. And there has been a diversity of opinion upon
this subject in England as well as in this country. In the case of
the
Baptist Association v. Hart's Executors, Chief Justice
Marshall, who delivered the opinion of the Court,
vide
17 U. S. 4 Wheat.
49, and Mr. Justice Story, who wrote out his own opinion and
afterwards published it in the appendix to 3 Pet.
vide 497
[omitted], were both at that time of opinion that it was derived
from the statute. But in
Vidal v. Girard's
Executors, 2 How. 127, Mr. Justice Story changed
his opinion, chiefly upon the authority of cases found in the old
English records, which had been printed a short time before by the
commissioners on public records in England. It appeared from these
records that the power had been exercised in many cases long before
the statute was passed.
But this circumstance does not affect the question I am now
considering, for whether exercised before or not, yet whenever
exercised, it was in virtue of the prerogative power, and not as a
part of the jurisdiction of the court as a court of equity. The
statute conferred no new prerogative on the Crown. And Lord
Redesdale, 1 Bligh. 347, while he held that the power existed in
the Chancellor before the statute and had been frequently
exercised, declared it to be a prerogative power and said:
"The King, as
parens patriae, has a right by his proper
officer, the Attorney General, to call upon the several courts of
justice, according to the nature of their several jurisdictions, to
see that right is done to his subjects who are incompetent to act
for themselves, as in the case of charities and other cases."
Besides, if it could be shown that at some remote period of time
the Court of Chancery exercised this power as a part of its
ordinary jurisdiction as a court of equity, it would not influence
the construction of the words used in the Constitution. For at the
time that instrument was adopted, it was universally admitted by
the jurists in England and in this country, as will appear by the
references above made, that this extraordinary and unregulated
power in relation to charities was not judicial, and did not belong
to the court as a court of equity. The Constitution of the United
States, as I have before said, grants only judicial power at law
and in equity to its courts -- that is, the powers at that time
understood and exercised as judicial in the
Page 58 U. S. 395
courts of common law and equity in England. And it must be
construed according to the meaning which the words used conveyed at
the time of its adoption, and the grant of power cannot be enlarged
by resorting to a jurisdiction which the Court of Chancery in
England, centuries ago, may have claimed as a part of its ordinary
judicial power, but which had been abandoned and repudiated as
untenable on that ground, by the court itself, long before the
Constitution was adopted.
Cases may arise in a circuit court of the United States in which
it would be necessary to decide whether the English doctrine as to
charities was founded on the statute or was a part of the law of
England before the statute was passed. And in a suit by an heir or
representative of the testator, authorized from his place of
residence to sue in a court of the United States, to recover
property or money bequeathed to a charity, the court must of
necessity examine whether the bequest was valid or not by the laws
of the state, and barred the claim of the heir or representative.
And if in such a case it appeared that the state had not adopted
the statute, it would be necessary to inquire whether the law in
relation to these bequests was a part of the common law before the
statute, and administered as such by the English Court of Chancery,
and whether it had been adopted by the state as a part of its
common law. For the prerogative powers of the English crown in
relation to minors, idiots, or lunatics, and charities are a part
of the common law of England, and the people of any state who
deemed it proper to do so might vest these powers in the courts of
the state.
Such an inquiry was necessary in the case of
Vidal v.
Girard's Executors and of
Wheeler v. Smith. But the
question of jurisdiction is a very different one when a court of
the United States is called upon to execute the duties of the
sovereignty of the state and to take upon itself the discretionary
powers which, if they exist at all by its common law or statutes,
belong to the official representatives of the
parens
patriae -- that is, the state sovereignty. And in the case of
Baptist Association v. Hart, although the court did not
expressly deny its jurisdiction to establish the charity if it had
been valid by the laws of Virginia, yet it expressed its doubts
upon the subject, saying that the question could only arise where
the Attorney General was a party.
For these reasons, a court of chancery of the United States
must, in my opinion, deal with bequests and trusts for charity as
they deal with bequests and trusts for other lawful purposes, and
decide them upon the same principles and by the same
Page 58 U. S. 396
rules. And 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. And if from
any cause the
cestui que trust in an ordinary case of
trust would be incapable of maintaining a suit in equity to
establish his claim, the same rule must be applied where charity is
the object and the complainant claims to be recognized as one of
its beneficiaries.
I concur, therefore, in affirming the judgment of the circuit
court dismissing the bill, but I concur upon the ground that the
court had no jurisdiction of the case stated by the complainant,
and express no opinion as to the validity or invalidity of this
bequest, whether in this respect it be governed by the laws of
Pennsylvania or of South Carolina.
MR. JUSTICE DANIEL.
Whilst I concur in the decision of this Court in affirming the
decree of the circuit court dismissing the bill of the appellants,
in portions of the argument by which this Court have come to their
conclusion I cannot concur. In expressing my dissent, I shall not
follow the protracted argument throughout its entire length. My
purpose is chiefly to free myself on any future occasion from the
trammels of an assent, either expressed or implied, to what are
deemed by me the untenable, and, in this case, the irrelevant
positions which that argument propounds.
I readily admit that the courts of chancery of the United States
are vested with no prerogative power, can exercise no power or
function similar to those derived to the Lord Chancellor in
England, either by commission under the sign-manual of the King as
parens patriae or in the application of the often-abused
and oppressive doctrine of
cy pres, or in virtue of the
provisions of the statute of 43 Elizabeth. But this concession,
taken in its broadest extent, by no means establishes the inference
that the Court of Chancery in England, as a court of equity, by
virtue of its inherent, and, if I may so speak, constitutional
powers, apart from the prerogative and apart from the Statute of
Elizabeth, could not take jurisdiction of trusts either in the
establishment or maintenance of those trusts, because they
expressed or implied a charitable end or purpose or because the
charitable objects were not defined with perfect precision. And if
such a power inhered and existed constitutionally in the Court of
Chancery in England as a court of equity, does it not follow
ex
consequenti that the Constitution and laws of the United
States, constituting the courts of equity of the United States with
express reference to the character and
Page 58 U. S. 397
functions of the Court of Chancery as a court of equity in
England, have conferred upon the former the regular inherent powers
of the latter?
Much of the learned and elaborate opinion of this Court,
delivered by the late Justice Story in the case of
Vidal v.
Girard's Executors, 2 How. 127 -- nay, the great
end and stress of that opinion as correctly apprehended --
consisted in the maintenance of the position that, apart from the
prerogative power with which the Lord Chancellor was clothed, and
independently of the Statute of Elizabeth, and long anterior to the
enactment of that statute, wherever there was a devise or bequest
to a person, natural or artificial, capable of taking, and a
beneficiary under the devise or bequest sufficiently certain and
defined to be made the recipient of such a gift, the Court of
Chancery, in the exercise of its regular and inherent jurisdiction
as a court of equity in relation to trusts, one of the great heads
of equity jurisdiction, would establish and protect such devise or
bequest even in cases where the objects thereof were somewhat vague
in their character and although such devise contained a charity. To
this express point, too, are the numerous decisions produced by the
industry of the learned and able and distinguished counsel for the
devisee, as the result of the researches made in the records of the
chancery court, by a commission created under the authority of the
British Parliament. Indeed, the decision of this Court in the case
of
Vidal v. Girard's Executors would seem to be
incomprehensible and without purpose unless interpreted as
asserting and maintaining both upon reason and authority the
regular jurisdiction of equity over devises, wherever the devisee
was capable of taking, and the beneficiaries were sufficiently
defined to render the directions of the testator practicable,
although these directions declared or implied a charity.
It is somewhat curious to observe that the opinion of Lord
Redesdale in the case of
Attorney General v. Mayor of
Dublin, 1 Bligh 312, is appealed to in support of the doctrine
now promulgated when that same case is avouched and relied on in
the case of
Vidal v. Girard's Executors in support of the
legitimate and regular powers of the courts of equity. This
application of the language of Lord Redesdale would seem to grow
out of the simple fact that in the case before him the Attorney
General was a party. But what is the declaration of His Lordship in
reference to the powers of a court of equity over subjects like the
one under his consideration? After denying that the Statute of
Elizabeth created any new law and asserting that it only created a
jurisdiction merely ancillary to that previously existing in the
chancery court, he observes that
Page 58 U. S. 398
the proceedings under that commission were still subject to
appeal to the Lord Chancellor, and he might reverse or affirm what
had been done or make such order as he might think fit, reserving
the controlling jurisdiction of the Court of Chancery as it existed
before the statute. He then continues, as pointing out a different
mode of effecting the same objects and from a different source of
power, to declare that the same thing might be done by the Attorney
General by information in virtue of the prerogative.
So too it is affirmed by this Court,
nemine
contradicente, in the case of
Vidal v. Girard's
Executors, that Lord Chancellor Sugden, in the case of
Incorporated Society v. Richards, 1 Drury & Warren
258, upon a full survey of all the authorities where the point was
directly before him, held the same doctrine as Lord Redesdale and
expressly decided that there was an inherent jurisdiction in equity
in cases of charity anterior to and independently of the Statute of
Elizabeth.
Upon a just understanding of the opinion of the Court in the
case of
Vidal v. Girard's Executors and of the
interpretation given in that opinion, to the English authorities
relied on, it seems impossible to escape from the conclusions that
devises to persons capable of taking in trust for beneficiaries
sufficiently defined, and for purposes neither illegal nor immoral,
and where there exist no objections to parties such as would
exclude the jurisdiction of the courts in other cases, the courts
of the United States, as courts of equity, in the exercise of
regular, inherent, equity powers in relation to trusts, will
sustain and enforce such devises. These conclusions seem to follow
inevitably from the ruling of this Court in the case of
Vidal
v. Girard's Executors. Indeed they seem to be comprised within
the literal terms of that decision, and the decision now made seems
to me incomprehensible unless understood as designed to overrule
that case and every authority from the English chancery cited and
commented upon in its support. For such an assault upon the
previous decision of this Court, wielding a blow so trenchant and
fatal at one great and acknowledged head of equity jurisprudence,
the head of trusts, my mind is not prepared.
There is a principle, and, in my opinion, the correct principle,
on which the decision of this Court may be placed without the
innovation which is objected to. It is that on which my concurrence
in the decree of this Court is founded, and one, too, which steers
entirely clear of what is by me deemed exceptionable. That
principle is this: that by the will of Frederick Kohne, the
devisees in trust were clothed with a merely naked power, to be
exercised by them as the special and exclusive
Page 58 U. S. 399
depositories of the testator's confidence, and that power to be
dependent on conditions upon which, and on which alone, they should
have authority to act. In the progress of events to which the
devise was necessarily incident, the powers created and to be
executed by the devisees in trust have become impracticable and
void. These depositories of the testator's confidence are all dead.
The conditions on which their powers were made dependent never did
occur and can by no possibility ever occur. It follows therefore
that in conformity with the will, there is no person who can act,
and no subject to be acted upon, and no beneficiaries of the
contemplated action. My opinion, therefore, is that the devise has
lapsed, or rather that no right ever came into existence under it;
that nothing was ever passed by it from the estate, which descends,
of course, to the testator's heirs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania, and was argued by counsel. On
consideration whereof, it is now here ordered, adjudged, and
decreed by this Court that the decree of the said circuit court in
this cause be and the same is hereby affirmed, with costs.