1. A., by his last will and testament, admitted to probate June
22, 1864, devised certain lots of ground in the District of
Columbia to two trustees,
"and the survivor of them, and the heirs, executors,
administrators, and assigns of such survivor, in trust,
nevertheless, and to and for and upon the uses, intents, and
purposes following, that is to say, in trust to hold the said lots
of ground, with the appurtenances as and for a site for the
erection of a hospital for foundlings, to be built and erected by
and association, society, or institution that may hereafter be
incorporated by an act of Congress as and for such hospital, and
upon such incorporation, upon further trust to grant and convey the
said lots of ground and trust estate to the corporation or
institution so incorporated for said purpose of the erection of a
hospital, which conveyance shall be absolute and in fee,
provided nevertheless that such corporation shall be
approved by my said trustees, or the survivor of them or their
successors in the trust, and if not so approved, then upon further
trust to hold the said lots and trust estate for the same purpose
until a corporation shall be so created by act of Congress which
shall meet the approval of the said trustees or the survivor or
successors of them, to whom full discretion is given in this
behalf, and upon such approval in trust to convey as aforesaid, and
I recommend to my said trustees to select an institution which
shall not be under the control of any one religious sect or
persuasion, and until such conveyance I direct the taxes, charges,
and assessments, and all necessary expenses of, for, and upon said
lots, and every
Page 95 U. S. 304
one of them, to he paid by my executors as they shall from time
to time accrue and become due and payable, out of the residue of my
estate."
The Washington Hospital for Foundlings was incorporated by an
Act of Congress approved April 22, 1870, 16 Stat. 92, and, on the
4th of April, 1872, the trustees under the will conveyed said lots
to that corporation in fee.
Held: 1. that the devise is
not invalid for uncertainty, or because it creates a perpetuity; 2.
that the provision touching a conveyance by the trustees whenever
Congress should create a corporation for foundlings which they
approved was only a conditional limitation of the estate vested in
them; 3. that the duty with which they were charged was an
executory trust, and their conveyance was necessary to and did pass
the title.
2. The statute of 43 Eliz., c. 4, was purely remedial and
ancillary. It was never in force in the District of Columbia, and
the validity of charitable endowments, and the jurisdiction of
courts of equity over them, does not depend upon it.
3. The doctrine of charitable uses and trusts discussed, and the
authorities bearing upon it cited and approved.
This is an action of ejectment by the plaintiffs in error, who
were plaintiffs below, to recover fourteen lots of ground, being
part of square numbered two hundred and seven in the City of
Washington. The defendant pleaded not guilty. The case was tried
upon the following agreed statement of facts:
The defendant, the Washington Hospital for Foundlings,
admits:
First, that Joshua Peirce, late of the District of
Columbia, died on the eleventh day of April, 1869.
Second, that he died seised of the real estate set
forth and described in the plaintiffs' declaration.
Third, that the plaintiffs, Elizabeth C. Ould,
Elizabeth C. Beardsley, Samuel Simonton, Abnor P. Simonton, David
S. Simonton, John E. Simonton, Hannah P. Jackson, Eliza F.
Tibbetts, Abner C. P. Shoemaker, and Peirce Shoemaker, are the
heirs-at-law, and the only heirs-at-law, of said Peirce.
The plaintiffs admit:
First, that said Peirce, on the fifteenth day of
October, 1867, duly executed his last will and testament,
commencing as follows:
"I, Joshua Peirce, of the County of Washington, in the District
of Columbia, do make this my last will and testament in manner and
form following. "
Page 95 U. S. 305
That following this is a revocation of other wills, then a
provision for the payment of debts, then several specific devises,
and then the fourteenth item, in the following words:
"Fourteenth, I give, devise, and bequeath all those fourteen
certain lots or pieces of ground, part of square numbered two
hundred and seven, situate between R and S Streets North and
Fourteenth and Fifteenth Streets West, in the said City of
Washington, in the District of Columbia, which lots are numbered
from number twenty-four to number thirty-seven, inclusive, on a
certain plan of subdivision of the said square, registered and
recorded in the surveyor's office for the said city, in liber W F,
folio 211, and are situate on the east side of the said Fifteenth
Street, at the distance of one hundred and sixty feet northward
from the north side of the said R Street north, containing together
in front on the said Fifteenth Street west one hundred and thirty
feet, and in depth eastward between parallel lines two hundred and
ninety-four feet and a half inch, more or less, to Johnson Avenue
(including in the said depth a twenty-feet-wide alley, laid out
through the middle of the said lots), to my friends, William M.
Shuster and William H. Clagett, both of the said City of
Washington, and the survivor of them, an the heirs, executors,
administrators, and assigns of such survivor, in trust,
nevertheless, and to, for, and upon the uses, intents, and purposes
following, that is to say, in trust to hold the said fourteen lots
of ground with the appurtenances as and for a site for the erection
of a hospital for foundlings, to be built and erected by any
association, society, or institution that may hereafter be
incorporated by an act of Congress as and for such hospital, and
upon such incorporation upon further trust to grant and convey the
said lots of ground and trust estate to the corporation or
institution so incorporated for the said purpose of the erection of
a hospital, which conveyance shall be absolute and in fee,
provided, nevertheless, that such corporation shall be
approved by my said trustees, or the survivor of them, or their
successors in the trust, and if not so approved, then upon further
trust to hold the said lots and trust estate for the same purpose
until a corporation shall be so created by act of Congress, which
shall meet the approval of the said trustees, or the survivor or
successors of them, to whom full discretion is given in this
behalf, and upon such approval in trust to convey as aforesaid, and
I recommend to my said trustees to select an institution which
shall not be under the control of any one religious sect or
persuasion; and until such conveyance, I direct the taxes, charges,
and assessments,
Page 95 U. S. 306
and all necessary expenses of, for, and upon the said lots, and
every one of them, to be paid by my executors, as they shall from
time to time accrue and become due and payable, out of the residue
of my estate."
That following this is a devise of the "rest, residue, and
remainder" of the testator's estate, "real and personal, including
his estate called Linnaean Hill," in trust to trustees for the use
of the testator's wife's nephew in tail with a devise over.
Second, that on the twenty-second day of June, 1869,
the said will was duly proved and admitted to probate in the
Orphans' Court of the District of Columbia.
Third, that on the twenty-second day of April, 1870,
Congress passed an "Act for incorporating a hospital for foundlings
in the City of Washington," 16 Stat. 92, and that on the fourth day
of April, 1872, said Shuster and Clagett, trustees, conveyed the
property described in the declaration and the above fourteenth item
of the will to the defendant, so incorporated in conformity with
the directions of the testator.
The court below found for the defendant, whereupon the
plaintiffs brought the case here.
Page 95 U. S. 307
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This case was submitted to the court below, upon an agreed
statement of facts.
The court found for the defendant and gave judgment accordingly.
The plaintiffs thereupon sued out this writ of error. The questions
presented for our consideration are questions of law arising upon
the will of Joshua Pierce, deceased. The will declares:
Page 95 U. S. 308
"I give, devise, and bequeath all those fourteen certain lots
[describing fully the premises in controversy] to my friends,
William M. Shuster and William H. Clagett, of the said City of
Washington, and the survivor of them, and the heirs, executors,
administrators, and assigns of such survivor, in trust,
nevertheless, and to and for and upon the uses, intents, and
purposes following, that is to say in trust to hold the said
fourteen lots of ground, with the appurtenances, as and for a site
for the erection of a hospital for foundlings, to be built and
erected by any association, society, or institution that may
hereafter be incorporated by an act of Congress as and for such
hospital, and upon such incorporation, upon further trust to grant
and convey the said lots of ground and trust estate to the
corporation or institution so incorporated for said purpose of the
erection of a hospital, which conveyance shall be absolute and in
fee,
provided, nevertheless, that such corporation shall
be approved by my said trustees, or the survivor of them, or their
successors in the trust, and if not so approved, then upon further
trust to hold the said lots and trust estate for the same purpose
until a corporation shall be so created by act of Congress which
shall meet the approval of the said trustees or the survivor or
successors of them, to whom full discretion is given in this
behalf, and, upon such approval, in trust to convey as aforesaid;
and I recommend to my said trustees to select an institution which
shall not be under the control of any one religious sect or
persuasion; and until such conveyance, I direct the taxes, charges,
and assessments, and all necessary expenses of, for, and upon said
lots, and every one of them, to be paid by my executors, as they
shall from time to time accrue and become due and payable, out of
the residue of my estate."
The will was duly proved and admitted to probate in the proper
court in the District of Columbia, on the 22d of June, 1864. On the
22d of April, 1870, Congress passed "An Act for incorporating a
hospital for foundlings in the City of Washington." 16 Stat. 92. On
the 4th of April, 1872, Shuster and Clagett, the trustees, conveyed
the property to the defendant in error, the Washington Hospital for
Foundlings, so incorporated, pursuant to the directions of the
will.
The Statute of Wills of Maryland of 1798, which is still in
force in the District of Columbia, provides that
"No will, testament, or codicil shall be effectual to create any
interest or perpetuity or make any limitation or appoint to any
uses not now
Page 95 U. S. 309
permitted by the constitution or laws of the state."
2 Kilty's Laws of Md., c. 101.
Our attention has been called in this connection to nothing in
the constitution, and to nothing else in the laws of the state, as
requiring consideration. No statute of mortmain or statute like
that of 9 Geo. II., c. 36, is an element in the case.
The statute of 43 Eliz., c. 4, was never in force in Maryland.
Dashiell v. Attorney General, 5 Har. & J. (Md.) 392.
It is not, therefore, operative in the District of Columbia.
The opinion prevailed extensively in this country for a
considerable period that the validity of charitable endowments and
the jurisdiction of courts of equity in such cases depended upon
that statute. These views were assailed with very great learning
and ability in 1833, by Mr. Justice Baldwin in
McGill v.
Brown, Bright. (Pa.) 346. An eminent counsel of New York was
the pioneer of the bar in 1835 in a like attack. His argument in
Burr's Executors v. Smith, 7 Vt. 241, was elaborate and
brilliant, and, as the authorities then were, exhaustive. He was
followed in support of the same view in 1844 by another counsel no
less eminent, in
Vidal v.
Philadelphia, 2 How. 128. The publication, then
recent, of the Reports of the British Records Commission enabled
the latter gentleman to throw much additional and valuable light
into the discussion. The argument was conclusive.
In delivering the opinion of the Court, Mr. Justice Story,
referring to the doctrine thus combated, said,
"Whatever doubts might therefore properly be entertained upon
the subject when the case of the Trustees of the Philadelphia
Baptist Association was before the Court (1819), those doubts are
entirely removed by the later and more satisfactory sources of
information to which we have alluded."
The former idea was exploded, and has since nearly disappeared
from the jurisprudence of the country.
Upon reading the statute carefully, one cannot but feel
surprised that the doubts thus indicated ever existed. The statute
is purely remedial and ancillary. It provided for a commission to
examine into the abuses of charities already existing, and to
correct such abuses. An appeal lay to the Lord Chancellor. The
statute was silent as to the creation or inhibition of any
Page 95 U. S. 310
new charity, and it neither increased nor diminished the
preexisting jurisdiction in equity touching the subject. The object
of the statute was to create a cheaper and a speedier remedy for
existing abuses. The Morpeth Corporation, Duke on Charitable Uses,
242. In the course of time, the new remedy fell into entire disuse,
and the control of the chancellor became again practically sole and
exclusive. The power of the King as
parens patriae, acting
through the chancellor, and the powers of the latter independently
of the King, are subjects that need not here be considered.
Fountain v.
Ravennel, 17 How. 369; 2 Story, Eq.Jur., sec.
1190.
The learning developed in the three cases mentioned shows
clearly that the law as to such uses, and the jurisdiction of the
chancellor, and the extent to which it was exercised, before and
after the enactment of the statute, were just the same.
It is therefore quite immaterial in the present case whether the
statute was or was not a part of the law of Maryland. The
controversy must be determined upon the general principles of
jurisprudence, and the presence or absence of the statute cannot
affect the result.
Two objections were urged upon our attention in the argument at
bar.
1. That there is no specification of the foundlings to be
provided for, and that therefore the devise is void for
uncertainty.
In this connection, it was suggested by one of the learned
counsel for the plaintiffs in error that a hospital for foundlings
tends to evil, and ought not to be supported.
2. That the devise is void because it creates a perpetuity.
The Statute of Elizabeth, before referred to, names twenty-one
distinct charities. They are:
1. For relief of aged, impotent, and poor people. 2. For
maintenance of sick and maimed soldiers. 3. Schools of learning. 4.
Free schools. 5. Scholars in universities. 6. Houses of correction.
7. For repair of bridges; 8, of ports and havens; 9, of causeways;
10, of churches; 11, of seabanks; 12, of highways. 13. For
education and preferment of orphans. 14. For marriage of poor
maids. 15. For support and help
Page 95 U. S. 311
of young tradesmen, 16, of handicraftsmen; 17, of persons
decayed. 18. For redemption or relief of prisoners or captives. 19.
For ease and aid of poor inhabitants concerning payment of
fifteens. 20. Setting out of soldiers; 21, and other taxes.
Upon examining the early English statutes and the early
decisions of the courts of law and equity, Mr. Justice Baldwin
found forty-six specifications of pious and charitable uses
recognized as within the protection of the law, in which were
embraced all that were enumerated in the statute of Elizabeth.
McGill v. Brown, supra. It is deemed unnecessary to extend
the enumeration beyond those already named.
A charitable use, where neither law nor public policy forbids,
may be applied to almost any thing that tends to promote the
welldoing and wellbeing of social man. Perry on Trusts, sec.
687.
In the
Girard Will Case, the leading counsel for the
will thus defined charity:
"Whatever is given for the love of God, or the love of your
neighbor, in the catholic and universal sense -- given from these
motives and to these ends, free from the stain or taint of every
consideration that is personal, private, or selfish."
Mr. Binney's Argument, p. 41.
The objection of uncertainty in this case as to the particular
foundlings to be received is without force. The endowment of
hospitals for the afflicted and destitute of particular classes, or
without any specification of class, is one of the commonest forms
of such uses. The hospital being incorporated, nothing beyond its
designation as the donee is necessary. Who shall be received, with
all other details of management, may well be committed to those to
whom its administration is entrusted. This point is so clear that
discussion or the citation of authorities is unnecessary. Cases
illustrating the subject in this view are largely referred to in
Perry on Trusts, sec. 699, and in the note to sec. 1164, Story,
Eq.Jur.
See also id., secs. 1164, 1190, and notes.
Hospitals for foundlings existed in the Roman Empire. They
increased when Christianity triumphed. They exist in all countries
of Europe, and they exist in this country. There are no
beneficiaries more needing protection, care, and kindness,
Page 95 U. S. 312
none more blameless, and there are none who have stronger claims
than these waifs, helpless and abandoned upon the sea of life.
A perpetuity is a limitation of property which renders it
inalienable beyond the period allowed by law. That period is a life
or lives in being and twenty-one years more, with a fraction of a
year added for the term of gestation, in cases of posthumous
birth.
In this case, the devise was in fee to two trustees and to the
survivor of them. They were directed to convey the premises to an
eleemosynary corporation for foundlings, whenever Congress should
create one which the trustees approved. If the will had been so
drawn as itself to work the devolution of the title upon the
happening of the event named, the clause would have been an
executory devise. If the same thing had been provided for in a deed
inter vivos, a springing use would have been involved; and
such use would have been executed by the transfer of the legal
title, whenever that occurred. The testator chose to reach the end
in view by the intervention of trustees, and directing them to
convey at the proper time. This provision in the will was therefore
a conditional limitation of the estate vested in the trustees, and
nothing more. Their conveyance was made necessary to pass the
title. The duty with which they were charged was an executory
trust. Amb. 552. The same rules generally apply to legal and to
equitable estates. They are alike descendible, devisable, and
alienable.
Croxall v.
Sherrerd, 5 Wall. 268. When such uses are
consummated and no longer
in fieri, the law of perpetuity
has no application.
Franklin v. Armfield, 2 Sneed (Ky.)
305;
Dartmouth College v.
Woodward, 4 Wheat. 518;
Perrin v.
Carey, 24 How. 465. It is intended that what is
given shall be perpetually devoted to the purpose of the giver.
In the case last named, the will expressly forbade for ever the
sale of any part of the devised property. This Court held the
inhibition valid. Of course, the legislature, or a court of equity
under proper circumstances, could authorize or require a sale to be
made.
Stanley v.
Colt, 5 Wall. 119.
There may be such an interval of time possible between the gift
and the consummation of the use as will be fatal to the
Page 95 U. S. 313
former. The rule of perpetuity applies as well to trust as to
legal estates. The objection is as effectual in one case as in the
other. If the fatal period may elapse before what is to be done can
be done, the consequence is the same as if such must inevitably be
the result. Possibility and certainty have the same effect. Such is
the law upon the subject.
A devise to a corporation to be created by the legislature is
good as an executory devise. A distinction is taken between a
devise
in praesenti to one incapable, and a devise
in
futuro to an artificial being, to be created and enabled to
take. Angell & Ames on Corp., sec. 184;
Porter's Case,
1 Co. 24;
Attorney General v. Bonyer, 3 Ves. 714;
Inglis v. Trustees of the
Sailor's Snug Harbor, 3 Pet. 99;
Sanderson v.
White, 18 Pick. (Mass.) 328.
At common law, lands may be granted to pious uses before there
is a grantee competent to take. In the meantime, the fee will lie
in abeyance. It will vest when the grantee exists.
Town of
Pawlet v. Clark, 9 Cranch 292.
See also Beatty v.
Kurtz, 2 Pet. 566, and
Vincennes
University v. Indiana, 14 How. 268.
Charitable uses are favorites with courts of equity. The
construction of all instruments where they are concerned is liberal
in their behalf.
Mills v. Farmer, 19 Ves. 487;
McGill
v. Brown, supra; Perry on Trusts, sec. 709. Even the stern
rule against perpetuities is relaxed for their benefit.
"But a gift may be made to a charity not in esse at the time --
to come into existence at some uncertain time in the future --
provided there is no gift of the property in the first instance, or
perpetuity in a prior taker."
Perry on Trusts, sec. 736.
Archbishop Secker, by his will, gave 1,000 to trustees for the
purpose of establishing a bishop in the British possessions in
America. Mansfield, of counsel, insisted that, "there being no
bishop in America, or the least likelihood of there ever being
one," the legacy was void, and must fall into the residue. Lord
Chancellor Thurlow said, "The money must remain in court till it
shall be seen whether any such appointment shall take place."
Attorney General v. The Bishop of Chester, 1 Bro.C.C.
444.
A testator devised his real estate to trustees, in trust,
with
Page 95 U. S. 314
the rents and profits to purchase ground in Cambridge, proper
for a college, and to build all such structures as should be
necessary for that purpose (the college to be called "Downing
College"), and to obtain a royal charter for founding such college
and incorporating it by that name, in the University of Cambridge.
The trustees were to hold the premises devised to them "in trust
for the said collegiate body and their successors forever." The
devise was held to be valid.
Attorney General v. Downing,
Amb. 550.
A sum of money was bequeathed to erect a blue-coat school and
establish a blind asylum, with direction that land should not be
purchased, and the expression of an expectation that lands would be
given for the charities. In answer to the suggestion at the bar
that the application of the fund might be indefinitely postponed,
it was said on the other side that the court would fix a time
within which the gift must take effect, and 2 Ves. 547, and 3 Atk.
806, were cited in support of the proposition.
The Vice-Chancellor said the cases of Downing College and
Attorney General v. The Bishop of Chester seemed to be
authorities against the objection, but that the point did not arise
in the case before him. It was obviated by a codicil to the will,
which appears to have been overlooked by the counsel on both sides.
Henshaw v. Atkins, 3 Madd. 167.
See also Philpot v.
St. George's Hospital, 6 Ho. of L.Cas. 359. In this case, as
in the one we are considering, the trustee was required to approve
the designated charity before paying over the money.
A testator left a sum of money to build and endow a future
church. The question was raised, but not decided, whether the court
would hold the fund for an indefinite time. The Lord Chancellor
said:
"A gift to a charitable purpose, if lawful, is good, although no
object may be in existence at the time. This was expressly decided
in
Attorney General v. Bishop of Chester, where the gift
was for establishing a bishop in his Majesty's dominions in
America,"
&c.
Sennet v. Herbert, Law Rep. 7 Ch. 237.
A testatrix, by her will, directed, among other things, that
when and as soon as land should be given for the purpose as
Page 95 U. S. 315
thereinafter mentioned, almshouses should be built in three
specified places. She further directed that the surplus remaining,
after building the almshouses, should be appropriated for making
allowances to the inmates. It was held that the fund was well
given, for that the gift to charity was not conditional and
contingent, but that there was an absolute immediate gift to
charity, the mode of execution only being made dependent on future
events.
Chamberlain v. Brocket, 8 Law.Rep. Ch. 1872 73, p.
206. The bearing of this authority upon the case in hand needs no
remark.
See also McIntyre Poor School v. Zanesville Canal
Co., 9 Ohio, 203, and
Miller v. Chittenden, 2 Ia.
315;
s.c. 4
id. 252. These were controversies
relating to real estate. The same point as here was involved. Both
gifts were sustained. The judgments are learned and able.
The last of this series of cases to which we shall refer is an
adjudication by this Court. The testator gave the residue of his
estate, embracing a large amount of real property, to the
Chancellor of the State of New York, the Mayor and Recorder of the
City of New York, and others, designating them only by their
official titles, and to their respective successors in office
forever, in trust to establish and maintain an asylum for aged,
decrepit, and worn out sailors, the asylum to be called "The
Sailors' Snug Harbor." If the trustees so designated could not
execute the will, they were to procure from the legislature an act
of incorporation giving them the requisite authority. Such an act
was passed, and the institution was established. The heir at law
sued for the property. This Court held that the official
designations were
descriptio personarum, and that the
trustees took personally.
See Bac.Abr., Grant C;
Owen
v. Bean, Duke on Char. 486;
Wellbeloved v. Jones, 1
Sim. & St. 40. Nothing was said as to the capacity of the
successors to take. A special act of incorporation was deemed
necessary. There being no particular estate to support the final
disposition, the latter was held to be an executory devise. This
Court decided that the gift was valid. That upon the creation of
the corporation, the title to the property became vested in it, or
that the naked legal title was held by the heir at law in trust for
the corporation.
The points of analogy between that case and this are
obvious.
Page 95 U. S. 316
There, as here, a future corporation was necessary to give the
devise effect. There, as here, there was a possibility that such a
corporation might never be created. In both cases the corporation
was created, and the intention of the testator was carried into
full effect. It is a cardinal rule in the law of wills that courts
shall do this whenever it can be done. Here we find no impediment
in the way. The gift was immediate and absolute, and it is clear
beyond doubt that the testator meant that no part of the property
so given should ever go to his heirs at law, or be applied to any
other object than that to which he had devoted it by the devise
here in question.
There are numerous other authorities to the same effect with
those last cited. The latter are abundantly sufficient to dispose
of this case. It is therefore unnecessary to extend this opinion by
pursuing the subject further.
Judgment affirmed.
