general principles of equity, can entitle themselves to its benefits? Are there any to whom this legacy, were it not a charity, could be decreed?

It

1819.

Baptist Association

V.

persons who

There are no could entitle

themselves to

the

the benefit of

this legacy, were it not a

charity.

This question will not admit of discussion. Those Hart'sEx'rs. for whose ultimate benefit the legacy was intended, are to be designated and selected by the trustees. could not be intended for the education of all youths of the Baptist denomination who were designed for the ministry; nor for those who were the descendents of his father, unless, in the opinion of the trustees, they should appear promising. These trustees being incapable of executing this trust, or even of taking it on themselves, the selection can never be made, nor the persons designated who might take beneficially.

Though this question be answered in the negative, we must still inquire, whether the character of this legacy, as a charity, will entitle it to the protection of this Court?

The legacy in this Court,

not sustainable

as a charity.

cy would be

England.

in

That such a legacy would be sustained in England, Such a legais admitted. But, it is contended for the executors, sustained that it would be sustained in virtue of the statute of the 43d of Elizabeth, or of the prerogative of the crown, or of both; and not in virtue of those rules by which a Court of Equity, exercising its ordinary powers, is governed. Should these propositions be true, it is farther contended, that the statute of Elizabeth does not extend to the case, and that the equitable jurisdiction of the Courts of the Union does not extend to cases not within the ordinary powers of a Court of Equity.

1819.

V.

On the part of the plaintiffs, it is contended, that the peculiar law of charities, does not originate in the Baptist Association statute of Elizabeth. Had lands been conveyed in Hart'sEx'rs. trust, previous to the statute, for such purposes as are expressed in this will, the devise, it is said, would have been good at law; and, of consequence, a Court of Chancery would have enforced the trust in virtue of its general powers. In support of this proposition, it has been said, that the statute of Elizabeth does not even profess to give any validity to devises or legacies, of any description, not before good, but only furnishes a new and more convenient mode for discovering and enforcing them; and that the royal prerogative applies to those cases only where the objects of the trust are entirely indefinite; as a bequest generally to charity, or to the poor.

It is certainly true, that the statute does not, in terms, profess to give validity to bequests acknowledged not before to have been valid. It is also true, that it seems to proceed on the idea that the trusts it is intended to enforce, ought, in conscience, independent of the statute, to be carried into execution. It is, however, not to be denied, that if, at the time, no remedy existed in any of the cases described, the statute gives one. A brief analysis of the act will support this proposition.

It authorizes the Chancellor to appoint commissioners to inquire of all gifts, &c. recited in the act, of the abuses, &c. of such gifts, &c.; and upon such inquiry to make such order as that the articles given, &c. may be duly and faithfully employed, to and for the charitable uses and intents, before rehearsed

V.

respectively, for which they were given, &c. The 1819. statute then proceeds, "which orders, judgments, Baptist As and decrees, not being contrary or repugnant to sociation the orders, statutes, or decrees, of the donors, or Hart'sEx'rs founders, shall, by the authority of this present parliament, stand firm and good according to the tenor and purport thereof, and shall be executed accordingly, until the same shall be undone or altered by the Lord Chancellor of England," &c.

Subsequent sections of the act direct these decrees, &c. to be certified to the Chancellor, who is to take such order for their execution as to him shall seem proper; and, also, give to any person aggrieved the right to apply to Chancery for redress.

It is not to be denied, that if any gifts are enumerated in this statute, which were not previously valid, or for which no previous remedy existed, the statute makes them valid, and furnishes a remedy.

The English statute, 43d of

Elizabeth,

gives validity to some devises

to charitable uses, which were not valid,

that statute.

That there were such gifts, and that the statute has independent of given them validity, has been repeatedly determined. The books are full of cases, where conveyances to charitable uses, which were void by the statute of mortmain, or were, in other respects, so defective, that, on general principles, nothing passed, have been sustained under this statute. If this statute restores to its original capacity, a conveyance rendered void by an act of the legislature, it will, of course, operate with equal effect on any legal objection to the gift which originates in any other manner, and which a

statute can remove.

In the

The authorities to this point are numerous. case of the Attorney General, on behalf of St. John's

1819.

V.

College in Cambridge v. Platt," the name of the cor

Baptist As- porate body was not fully expressed. This case was referred by the Chancellor to the judges, who certiHart'sEx'rs. fied, that though, according to the general principles. of law, the devise was void; yet it was good under the statute of Elizabeth. This case is also reported in Cases in Chancery, 267. where it is said, the judges certified the devise to be void at law, but the Chancellor decreed it good under the statute.

So, in Chancery Cases, 134. it was decided, that a bequest to the parish of Great Creaton was good under the statute. Though this case was not fully nor clearly reported, enough appears to show that this bequest was sustained only under the statute of Elizabeth. The objections to it were, that it was void on general principles, the parish not being incorporated; and that it would not be decreed under the statute, the proceedings not being before commissioners, but by original bill. The Master of the Rolls ordered precedents to be produced; and, on finding one in which four judges had certified that a party might, under the statute, proceed in chancery by original bill, he directed the legacy to be paid. Could this bequest have been sustained on doctrines applicable to charities independent of the statute, no question could have arisen concerning the rights to proceed by original bill.

In Collison's case,' the will made John Bruet and others, "feoffees of a home, to keep it in reparation, and to bestow the rest of the profits on reparation of

1819.

Baptist Association

certain highways." On a reference by the Chancellor, the judges declared, that "this case was within the relief of the 43d of Elizabeth; for, though the devise were utterly void, yet it was within the words Hart'sEx'rs. limited and appointed for charitable uses."

In these cases, it is expressly decided, that the bequests are void, independent of the statute, and good under it. It furnishes no inconsiderable additional argument, that many of the gifts recited in the 43 Eliz., would not, in themselves, be considered as charitable; yet they are all governed by the same rule. No dictum has been found indicating an opinion that the statute has no other effect than to enable the Chancellor to inquire, by commission, into cases before cognizable in his Court by original bill. It may, then, with confidence be stated, that whatever doubts may exist in other points which have been made in the cause, there is none in this: The statute of the 43d of Eliz. certainly gave validity to some devises to charitable uses, which were not valid, independent of that statute. Whether this legacy be of that description, is a question of more difficulty. The objection is, that the trust is void; and the description of the cestui que trust so vague, that no person can be found whose interest can be sustained.

V.

Charitable be no legal inteed, and which

rest 18 Vest

are too vague

to be claimed

by those for

neficial inte.

The counsel for the plaintiff insists, that cases whom the beequally vague have been sustained in Courts of com- rest was in

tended, cannot established

mon law, before the statute; and would, a fortiori, by a court of have been sustained in Courts of equity. He relies cising its ordion Porter's case," and on Plowden, 522.

nary jurisdic tion, independent of the sta

Porter's case is this: Nicholas Gibson, in the 32d tute 43 Eliz.

a 1 Co. Rep. 22. b.

VOL. IV.