factor. A valid charitable use, must always remain, and can only be enforced, as a trust, unaffected by the provisions of the statute; since, considering it simply as a use, there is not, and never can be, any person in whom it can be executed. As the rents and profits are to be applied to the benefit of a succession of persons in perpetuity, there is not, and never can be, a cestui que trust to whom the legal estate, if that of the trustees is divested, can be given, without destroying the charity and defeating forever the intentions of its founder. As those that have now been stated were only instances that were cited to prove that in England, it is an established rule of construction that charitable uses are not covered by the general words of a statute, we must be permitted to doubt, until more pertinent and conclusive evidence shall have been given, whether in the English courts the supposed rule has ever been admitted, or even suspected, to exist. We have ourselves been unable to discover the faintest trace of its existence, and until otherwise convinced, must continue to think, with Ch. J. Marshall, that a decision such as the rule would require to be made, would overturn principles that courts of equity as well as of law have uniformly acknowledged. We do not at all share the apprehensions that have been expressed as to the consequences that may ensue, if that construction of the revised statutes shall be adopted, which our remarks have implied to be necessary. The benevolence of Christian and other philanthropists will not be unduly restrained; an ample scope will still be left for its beneficent action. Charitable and public uses are not abolished by subjecting them to the provisions of the revised statutes. For these purposes, if the alienation of the capital is not improperly restricted, donations and bequests of money may still be made to any amount, and the proceeds of real estate, directed to be sold, may be similarly applied. Practi

cally, the principal effect will be found to be, that lands cannot be granted or devised so as to render them thereafter forever inalienable, without the assent of the legislature, unless they are granted or devised to a corporation, that by law is authorized to take, and bound to retain them. The necessity of an appeal to the legislature, in other cases where perpetuities are sought to be created, we cannot regard as an evil. When a new and plainly meritorious charity is meant to be founded, such as an hospital, an asylum, a library, a college, or a school, none of us can fear that the sanction of the legislature will ever be withheld; nor will it be deemed a subject of just regret that when the aid of the legislature is required, it will have the opportunity of considering, whether the claims or fair expectations of wives, children, or relatives, have been overlooked and sacrificed. Under our present system, such as we suppose it to exist, and considering the restraints that are now laid upon corporations, their incapacity to take by devise, and the limited amount of property which they are permitted to hold, we need not the English statutes of mortmain; but revive the English doctrine of pious and charitable uses in its original extent, and the necessity of such statutes will soon be apparent. In this, as in every other country, where such uses have been suffered for a time to prevail, without restriction, there will be an inundation of abuses, which the utmost power of the legislature will be required to stem, repel, and overcome. There are some other considerations to which, as suggesting topics of useful reflection, it may be expedient to advert. If charitable and pious uses, without limitation or restraint, notwithstanding the repeal of the statute of Elizabeth and notwithstanding the express provisions of the revised statutes, now constitute a part of our unwritten law, where shall we find, who shall declare to us, the rules by which they are to be

governed? How are they to be classed, limited and defined? What is a charitable? what a pious use? In England, charitable uses are enumerated and defined in the statute of Elizabeth, and it is settled, that none can be sustained as such, that the provisions of the statute may not be construed to embrace. (Brown v. Yeates, 7 Vesey 50 n.; Morrice v. Bishop of Durham, 9 Vesey 30, S. C. 10 Ves. 523; Ommany v. Butcher, 1 Turn. & Russ. 260; Vesey v. Sampson, 1 Sim. & S. 69; 2 Story Eq. Jur. 1155, 56, 57.) Hence, when the question arises, whether a particular use is valid as charitable, it is readily solved by a reference to the statute, and the decision under it. But to us as the statute is repealed, neither its terms, nor the decisions under it, can any longer furnish a guide, and either the whole subject must be committed to the uncontrolled and arbitrary discretion of judges, or every trust, that assumes the name and wears the form and face of charity, without discrimination, must be sustained. Benevolence is the most amiable of virtues, and more than any other commands our sympathy and applause; but more than any other it needs the aid of enlightened reflection, and the direction and control of a sound judgment; and, if the execution of every trust that a mistaken philanthropy may create, must be decreed, courts of equity will frequently discover that instead of relieving distress, promoting industry, or assisting virtue, they are efficient agents in supporting the idle, encouraging the dissolute, and protecting the criminal. As to pious uses, if any are to be sanctioned other than those which are included within the general object of religious corporations, the difficulties are still greater. In England, while pious uses are retained, those which have been branded as superstitious have been abolished, and none are deemed pious but such as are strictly consistent with the orthodox faith of Protestant Christians. But with us, it is plain, that no such dis

tinction can be admitted. With us, as all religions are tolerated, and none is established, each has an equal right to the protection of the law; and, consequently, all uses directed to a religious object must be equally proscribed, or all must be upheld as pious, which are consecrated by the faith of any description or class, not merely of Christians, but believers. Hence, if the Presbyterian and the Baptist, the Methodist and the Protestant Episcopalian, must each be allowed to devote the entire income of his real and personal estate, forever, to the support of missions, or the spreading of the Bible, so must the Roman Catholic his, to the endowment of a monastery, or the founding of a perpetual mass for the safety of his soul; the Jew his, to the translation and publication of the Mishna or the Talmud, and the Mohammedan, (if in that colluvies gentium to which this city, like ancient Rome, seems to be doomed, such shall be among us) the Mohammedan his, to the assistance or relief of the annual pilgrims to Mecca. Upon the whole, we are certainly inclined to think that it is better that judges shall say, as it seems to us the legislature has said, that no use or trust can be valid that the revised statutes have not authorized, and that the absolute power of alienation, in respect both to real and personal estate, shall not be suspended for a longer period than the statutes allow, 'by any limitation or condition whatever. (1 R. S. § 15, p. 723; § 1, p. 773.) These rules, as general, we believe are safe and salutary, and when in special cases they need to be relaxed, the legislature has the power to relax them. That power has already, in many cases, been wisely and beneficially exercised. (Laws 1840, ch. 318, 1, 2, 3, 4; Laws 1841, ch. 261; Laws 1839, ch. 174, § 1, 2, 3; Laws 1839, ch. 184, 2 R. S. 3d ed. pp. 23, 24, 25.) And let it be remembered, that by its exercise, the legislature has virtually adopted that construction of the

statutes which we have supposed that their terms necessarily import. And that the revisers, by incorporating the provisions of the acts to which we refer, in a separate article, in the title relative to the nature and qualities of estates in real property, have clearly shown that they regarded them as exceptions to the general rules which that title was meant to establish. (2 R. S. 3d ed. p. 23.) We shall not pursue remarks which, although they are far from having exhausted a subject of wide extent and deep interest, have led us further than we intended, but shall proceed to state briefly the result of our opinion. As we have declared that the devise to the trustees of the Methodist Church, and the trust annexed to it, are illegal and void, it is a necessary consequence that the direction to the executors to accumulate the residue of the personal, and the rents and profits of the real estate, for the purpose of building a house on the lot in Brooklyn, cannot be supported. That direction could only have been sustained as ancillary to the principal trust, and therefore a constituent part of a valid charitable use. Separated from the trust, it is clearly void, not only from the failure of its object, but as directing an accumulation for a purpose not authorized by law, and as involving an indefinite suspense of the power of alienation.” And again in 1850, in Andrew v. Bible Society, 4 Sandf. 178: "As a general rule chancery has no power to compel the performance or decree the execution of a trust where there is neither a trustee nor a cestui que trust. The trust is then wholly void in equity as well as at law and this is emphatically true when the trust involves a perpetuity; when, as in the present case, it locks up forever the capital of the property or fund which it embraces and calls for a perpetual succession of trustees to administer the income. Let it be admitted that pious and charitable uses are an exception from these general rules, it by no

means follows that we are bound, or have the power, to execute the present trust. We have recently held, in the case of Ayres v. The M. E. Church, that where a charitable use is general and indefinite, no persons being certainly designated as objects of the intended bounty, the administration of the trust, if there is no trustee, belongs in England, not to the Court of Chancery, but to the crown, so that the Chancellor, in decreeing the execution of the trust, is acting not in the exercise of the rightful and proper jurisdiction of his court but as a delegated minister of a royal prerogative. * * When the will took effect (1822), the Court of Chancery in this state could not rightfully compel the performance or in any mode decree the execution of a charitable use creating or involving a perpetuity, unless where the property was given to a corporation which by the terms of its charter was enabled to accept and execute the trust. ** It appears to us quite incredible that an enlightened legislature, when it repealed the statute of Elizabeth and the statutes of mortmain, meant to disregard and overrule the soundest measures of public policy and established a system which the wisdom and experience of ages have condemned and rejected. It is therefore incredible, that it meant to give to every individual the power of rendering his whole estate real and personal forever inalienable by devoting its income forever to any use or purpose that he might deem, or others persuade him to believe, was pious or charitable. In other words, it is incredible that the legislature meant to enable every individual under the form of a trust to found a corporation unlimited in its duration and incapable of dissolution, having no power to dispose of its property, yet unrestricted as to the amount it may hold. In the present case we go still further and shall refer our denial of the power of our Chancellor to sustain and execute a trust similar to that which the legacy

creates, to a much earlier period than the repeal of the statute of Elizabeth. The use attached to this legacy is not a charitable use, in the usual and legal sense of the term. It is strictly a pious use, not other wise charitable than as the noblest office of charity is the dissemination of religious truth, but it is impossible for a court of justice to sustain a use upon this ground, unless in a country where the truths of religion have been settled and defined by law, or judges have a discretionary power to determine and declare them. If, at any period in the juridical history of this state, it has been within the power of our court of chancery to decree the execution of a pious use violating the general rules of law, this branch of its jurisdiction was in our judgment wholly abolished long before the statute of Elizabeth was repealed. It was wholly abolished when the constitution of 1777 was adopted." (Rev'd on this point, 8 N. Y. 559.) So, in 1851, in the language of Green, J., in Dick son v. Montgomery, 1 Swan 248: "The following propositions may be stated as being established: 1st. The duties and powers which in England belong to the prerogatives of the crown in reference to idiots, lunatics, and charities, and which are vested in the Lord Chancellor by the king's warrant, under his signs manual do not exist in our chancery courts. 2nd. No powers other than those which in England were exercised by the Chancellor by virtue of his extraordinary jurisdiction exist in our chancery court. 3rd. Trusts for charitable uses are favored by courts of equity and will be supported in the exercise of the extraordinary jurisdiction of the chancellor in cases where the trust would fail for uncertainty were it not a charity. 4th. If the fund be vested in a trustee and be managed and controlled by him for a lawful definite, charitable use the gift will be valid though there is no person in being capable of suing for the enforcement of the trust. 5th. Such provisions

of the Stat. 43 Eliz. chap. 4 as were the law before the enactment of that statute, and which are applicable to our institutions are in force here as part of our common law notwithstanding the statute is not in force." In 1853, in the case of Williams v. Williams, 8 N. Y. 541, Mr. Justice Denio, in an opinion since criticised and overruled in part, says: "It has always been strenuously maintained by those who have resisted an alleged charitable donation, that the law of charitable uses originated in, and was created by, the statute of 43d Elizabeth, chapter 4; and that statute having been repealed in 1788, among the mass of English statutes which were not revised or re-enacted, it is plausibly, if not conclusively argued from these premises, that the doctrine referred to has no existence in this state. (Stat. 1788, ch. 46, § 37). This argument is usually answered by a reference to cases adjudged in the English courts prior to the 43d of Elizabeth, showing that the peculiar law of charities was known and recognized before the statute, and to the opinion of distinguished judges in equity, who have affirmed that grants and devises to charities, which would be void for this doctrine, were sustained in England as well before as since the statute. These adjudications and dicta, have been so often cited and commented upon, that it is unnecessary to do more than, to refer to the books where they may be found collected. (McCartee . The Orphan Asylum, 9 Cow. 437, per Jones, Chancellor; Executors of Burr v. Smith, 7 Vermont, 241; Vidal v. Girard's Executors, 2 Howard, 127; Story's Commentaries on Eq., ch. 31, 1136 et seq.) From a careful examination of these authorities, I have come to the conclusion that the law of charities was at an indefinite but early period in English judicial history, engrafted upon the common law: that its general maxims were derived from the civil law, as modified in the latter periods of the Empire by the eccle