Perin v. Carey,
65 U.S. 465 (1860)

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U.S. Supreme Court

Perin v. Carey, 65 U.S. 24 How. 465 465 (1860)

Perin v. Carey

65 U.S. (24 How.) 465


Charles McMicken, a citizen and resident of Cincinnati, in Ohio, made his will in 1855, and died in March, 1858, without issue.

He devised certain real and personal property to the City of Cincinnati and its successors, in trust forever for the purpose of building, establishing, and maintaining as far as practicable, two colleges for the education of boys and girls. None of the property devised, or which the city may purchase for the benefit of the colleges, should at any time be sold. In all applications for admission to the colleges, a preference was to be given to any and all of the testator's relations and descendants, to all and any of his legatees and their descendants, and to Mrs. McMicken and her descendants.

If there should be a surplus, it was to be applied to making additional buildings and to the support of poor white male and female orphans, neither of whose

Page 65 U. S. 466

parents was living, preference to be given to our relations and collateral descendants.

The establishment of the regulations necessary to carry out the objects of the endowment was left to the wisdom and discretion of the corporate authorities of the City of Cincinnati, who should have power to appoint directors to said institution.

This will can stand, and with reference to the various points of law connected therewith, this Court establishes the following propositions, viz.:

1. The doctrines founded upon the statute of 43 Elizabeth, c. 4, in relation to charitable trusts to corporations, either municipal or private, have been adopted by the courts of equity in Ohio, but not by express legislation, nor was that necessary to give courts of equity in Ohio that jurisdiction.

2. The English statutes of mortmain were never in force in the English colonies, and if they were ever considered to be so in the State of Ohio, it must have been from that resolution by the governor and judges in her territorial condition, and if so, they were repealed by the act of 1806.

3. The City of Cincinnati, as a corporation, is capable of taking in trust devises and bequests for charitable uses, and can take and administer the devises and bequests in the will of C. McMicken.

4. Those devises and bequests are charities in a legal sense, and are valid in equity, and may be enforced in equity by its jurisdiction in such matters without the intervention of legislation by the State of Ohio.

5. McMicken's direction, in section 32 of his will, that the real estate devised should not be alienated makes no perpetuity in the sense forbidden by the law, but only a perpetuity allowed by law and equity in the cases of charitable trusts.

6. There is no uncertainty in the devises and bequests as to the beneficiaries of his intention, and his preference of particular persons as to who should be pupils in the colleges which he meant to found was a lawful exercise of his rightful power to make the devises and bequests.

7. The disposition which he makes of any surplus after the complete organization of the colleges is a good charitable use for poor white male and female orphans.

8. Legislation of Ohio upon the subject of corporations, by the Act of April 9, 1852, does not stand in the way of carrying into effect the devises and bequests of the will.

The nature of the devise is stated summarily in the headnote

Page 65 U. S. 467

of this report, and more particularly in the opinion of the Court.

The bill specified the following objections to the validity of the devises and bequests:

"1. Said of City of Cincinnati was formerly a municipal corporation, created and having certain powers conferred upon it by an act of incorporation of the Legislature of the State of Ohio, but it now exists only as a political division of the state, under a general law having a uniform operation throughout the state, and is without any power or authority to accept said devises and bequests, to acquire or hold the title to the property mentioned in said devises and bequests for the purposes therein expressed, or to execute the trusts or any of them therein set forth and declared."

"2. Said Charles McMicken, deceased, has undertaken, by said alleged devises and bequests, to render a large amount of real estate above described, situate in said City of Cincinnati, in said State Of Ohio, and an indefinite amount of real estate to be hereafter purchased in said City of Cincinnati, forever unalienable, contrary to the law and public policy of said state."

"3. There are no persons mentioned or referred to as beneficiaries under the trusts attempted to be created by said will who are so described that they are entitled to and can claim the benefit of said trusts or any of them, and the same are therefore void for uncertainty."

"4. By the terms of said will, the establishment of the regulations necessary to carry out the objects of the endowment attempted to be made, and the power to appoint directors of the institutions therein named, are vested in the corporate authorities of the City of Cincinnati, but there are no persons, either artificial or natural, who fall within or are sufficiently identified by said description."

"5. The trusts attempted to be created by said will are uncertain and illegal for the further reason that the distribution of the trust fund between the two objects, of the education of white boys and girls and the support of poor white male and female orphans, is to be left to the unrestrained discretion of

Page 65 U. S. 468

the City of Cincinnati, or of the corporate authorities of the City of Cincinnati."

"6. The trust attempted to be created by said will for the support of poor white male and female orphans is illegal and void because, without authority of law and in violation of the statutes and public policy of the State of Ohio, it is therein required that before they shall receive any benefit therefrom, their guardians, or those in whose custody they are, shall have first entirely relinquished their control of them to the said city, and provided that those orphans who may have remained until they have reached any age between fourteen and eighteen years shall be bound out by the said city to some proper art, trade, occupation, or employment."

The respondents demurred to the bill, which was sustained by the circuit court and the bill dismissed. The complainants appealed to this Court.

Page 65 U. S. 491

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