referred to (9 Smith, p. 575). At that time, those views were not answered by anyone who had given the subject thorough historical investigation." To the foregoing reviews of cases the following synopsis of other leading cases is added in the order of the dates. In 1819 the case of the Baptist Association v. Hart, 4 Wheat., (U. S.,) was decided, since dissented from in many cases. In this case Marshall, C. J., says: "There seem to have been two motives and they were adequate motives for enacting this Statute (43 Eliz.)—the first and greatest was to give a direct remedy to the party aggrieved who where the trust was vague had no certain and safe remedy for the injury sustained; who might have been completely defeated by any compromise between the heir of the feoffor and the trustee, and who had no means of compelling the heir to perform the Trust, should he enter for the condition broken. The second to remove the doubts which existed where these charitable donations were included within the previous prohibitory statutes. We have no trace in any book of an attempt in the Court of Chancery at any time anterior to this Statute to enforce one of these vague bequests to charitable uses." See also Wheaton's note on Charities, 4 Wheaton App. Note 1. "The History of the Law of charitable bequests previous to the Statute 43 Elizabeth which is emphatically called the Statute of charitable uses is extremely obscure. Few traces remain of the exercise of jurisdiction over charities in any shape by any Courts previous to that period. Of the jurisdiction of Chancery nothing is ascertained with precision, and the few cases to be found at law turned mainly upon the question whether the uses were charitable or whether they were superstitious within the statute against superstitious uses." In 1820 followed the case of Griffin v. Graham, 1 Hawks (N. C.) 96, upholding the jurisdiction of Chancery where there

was a trust or trustee with general or specific objects of charity. In 1822, Dashiell v. Atty.-Gen., 5 H. & J. (Md.) 392, followed the authority of the Bapt. Assoc. v. Hart, Buchanan, J., saying: “The peculiar law of charities originated in the Statute 43 Elizabeth for regulating charitable uses, and independent of that Statute a Court of Chancery cannot in the exercise of its ordinary jurisdiction sustain and enforce a bequest to charitable uses which if not a charity would on general principles be void; and in this we are supported by the decision of the Supreme Court of the United States in Bapt. Assoc. v. Hart, 4 Wheat. 1." In 1832, Gallego v. Atty.-Gen., 3 Leigh (Va.) 450, was decided to the effect that prior to the Statute of Elizabeth charitable trusts were valid where there was a definite trust-but not otherwise. In 1835, in Burr's Ex'rs v. Smith, 7 Vt. 241, Ch. Williams says: "The idea that the jurisdiction of the Court of Chancery upon informations for establishing charities arose since the statute of Elizabeth, and that prior to the time of Lord Ellesmere who was made Lord Keeper in 1596 and Chancellor in 1603 there were no such informations was first suggested by the Earl of Roslyn then Lord Loughborough and I am not aware it has been suggested by any other Chancellor in England." In 1838, in the Dutch Ch. v. Mott, 7 Paige (N. Y.) 77, the jurisdiction of chancery over charitable trusts prior to the statute of Elizabeth was upheld; and, to the same effect in 1843, Att.-Gen. v. Jolly, 1 Rich. Eq. (S. C.) 99. In 1844, in the case of Vidal v. Girard's Ex'rs, 2 How. (U. S.) 127, Story, J., says of the publications of the English Commissioners of Records: "They establish in the most satisfactory and conclusive manner that cases of charities, where there were trustees appointed for general and indefinite charities, were familiarly known to and acted upon and enforced in the Court of Chancery. In some of these cases the charities were not

only of an uncertain and indefinite na ture but, as far as we can gather from the imperfect statement in the printed records, they were also cases where there were either no trustees appointed, or the trustees were not competent to take." And following that case in the same year are Kniskern v. Lutheran Ch., 1 Sandf. Ch. (N. Y.) 439; Green v. Allen, 5 Humph. (Tenn.) 170. In 1846, in McCord v. Ochiltree, 8 Blackf. (Ind.) 15, Dewey, J., says: "It is now well established (contrary to the opinions of distinguished Chancellors and writers heretofore entertained) that the English Court of Chancery possesses an inherent jurisdiction which it has always exercised to enforce and effectuate charities which at law were illegal or informal gifts." In 1850, in Yates v. Yates, 9 Barb. (N. Y.) 345, the same jurisdiction is admitted to a limited extent; so in 1851, in Dickson *. Montgomery, 1 Swan (Tenn.) 348; and in 1853, in Williams v. Williams, 8 N. Y. 525; and in 1856, in Carter v. Wolf, 13 Gratt. (Va.) 301, and Brooke v. Shacklett, 13 Gratt. (Va.) 301; and in 1857, in Hopkins v. Upshur, 20 Tex. 89. In 1858, in Tappan v. Deblois, 45 Me. 122, it is said by Davis, J.:"In cases of bequests for charitable and other purposes we are satisfied upon a careful examination of all the authorities that our jurisdiction is not exclusively derived from, nor restricted by, the statute of 43 Elizabeth. Burbank e. Whitney, 24 Pick. 146. Before that statute courts of chancery may not have had power to enforce trusts for indefinite charities, especially if no trustees capable of taking were interposed, and even since that time if the bequest is so imperfect and vague that the intention of the testator cannot be ascertained it will be declared void. Thus a bequest to A. B. in frust without any designation of the trust would be held to be void or a trust for the heirs-at-law. But if the trust is expressed and is sufficiently definite to be understood and is consistent with the

rules of law, it will be enforced either under the statute of Elizabeth or independent of it, and though the bequest is for charitable purposes, if the charity is definite in its objects, is lawful, and is to be executed and regulated by trustees, who are especially appointed for the purpose, a Court of Chancery has jurisdiction over it, independent of the statute, derived from its general authority over trusts. 2 Story Eq., 1187." In 1860, in the case of Perin v. Carey, 24 How. (U. S.) 465, the chancery jurisdiction prior to the statute of Elizabeth was maintained. In 1866 came the case of Bascom v. Albertson, 34 N. Y. 584, criticising Williams v. Williams, 8 N. Y. 525, Porter, J., saying: “It is conceded on all hands that the theory of the Williams case ought not to be extended. The better opinion seems to have been that such jurisdiction, as chancery exercised prior to the statute of Elizabeth in cases of charity, was deduced from the royal prerogative; and such as it exercised afterwards was in effectuating gifts which in that statute received the specific sanction of the legislative department of the government." In 1867, Robertson, J., says in Cromie v. Louisville Orph. Home, 3 Bush (Ky.) 371: "The judicial legislation or rather royal usurpation of the prerogative of changing or making Wills was repudiated by this Court while the statute of Elizabeth was itself recognized as the law of this State. It has also been renounced in some other States." And in the same year, in Heuser v. Allen, 42 Ill. 425, says Breese, J.: "These principles of pious legacies under the high authority of the civil law were readily introduced into the Common Law of England anterior to the enacting of 43 Elizabeth ch. 4 known as the Statute of Charitable Uses, and have been known there and recognized for ages. Prior to this Statute however devises to charitable uses generally without imposing a trustee and devises to a non

existing corporation or to an unincorporated society were held utterly void for want of a person capable of taking as devisee. It was to remedy this defect that this Statute was enacted, providing a mode of enforcing such uses by a Commission under the direction of the Court of Chancery." In 1868, in Norris v. Thomson, 4 C. E. Gr. (N. J.) 307, Chancellor Zabriskie says that the statute of 43 Elizabeth was used in England to enlarge the chancery authority previously existing. In 1872, in Newson v. Starke, 46 Ga. 88, McCay, J., says: "It has been sometimes supposed that the whole jurisdiction of Chancery in England over this subject was only a branch of the King's prerogative and not a judicial function at all and again it has been thought that the jurisdiction was wholly derived from the 43 Elizabeth. But it is now well settled that it is only that branch of the jurisdiction, which undertakes to carry into effect charities generally where there are no trustees, which is prerogative, and that when trustees are appointed, or when the objects of the charity are pointed out even generally, then the Court acts by its inherent power over trusts: but from the nature of the subject matter it does not require the same degree of definiteness and certainty as it would if the bequest were not charitable." In 1877, in Ould v. Washington Hosp., 5 Otto (U. S.) 303, Swayne, J., says: "The opinion prevailed extensively in this country for a consider

able 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 N. Y. was the pioneer of the bar in 1835 in a like attack. His argument in Burr's Ex'rs 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 Commissioners, 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 this subject when the case of the Trustees of the Phila. Baptist Assoc. 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.'"

Period for

which the vesting of estates may be suspended.

(h) In the writer's edition of Powell on Devises (vol. I., p. 389, n.,) the progress of this rule is fully traced.

13. The rule of the common law as to perpetuities has been re-inforced or modified in some states by constitutional or statutory provisions. In most, if not all of the other states, the common law rule prevails.

In Alabama it is provided by statute that "lands may be conveyed within the limits fixed by law so as to avoid perpetuities," but conveyances to other than a wife and children, or children only, "cannot extend beyond three lives in being at the date of the conveyance and ten years thereafter." (Code, 1876, ?? 2187, 2188). In Florida perpetuities are forbidden by statute, but not defined. (Const., Art. I., 16, 27; Thompson's Dig., p. 3, 24.) And see McLeod v. Dell, 9 Fla. 427. In Georgia "limitations of estates may extend through any number of lives in being at the time when the limitations commence and twenty-one years and the usual period of gestation added thereafter. A limitation beyond that period the law terms a perpetuity and forbids its creation. When an attempt is made to create a perpetuity, the law gives effect to the limitations not too remote, declaring the others void, and thereby vests the fee in the last taker under the legal limitations." (Code, 1873, 2267).

In Iowa the statute permits limitations for any number of lives in being and twenty-one years. (Code, 1873, 1920). In Maryland it is expressly provided that a perpetuity may not be created by will. (Code, 299, 1 Pub. Gen. Laws, 1860, p. 684).

In New York the power to suspend alienation is limited to two lives in being at the creation of the estate. (2 Rev. St. 1101, 15). In Teras there is a constitu tional prohibition of perpetuities. (Art. I., 18).

It may not be out of place here to call the reader's attention to a view frequently expressed, if not always maintained, by the courts, that the law of perpetuities does not extend to charitable uses. See Grissom v. Hill, 17 Ark. 483; White v. Fisk, 22 Conn. 31; State v. Griffith, 2 Del. Ch. 392; Dexter v. Gardner, 7 Allen 243; Williams v. Williams, 8 N. Y. 525; Trustees v. Kellogg, 16 N. Y. 83; Levy v. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 N. Y. 584; Adams v. Perry, 43 N. Y. 487; Holmes v. Mead, 52 N. Y. 332; Rose v. Rose, 4 Abb. App. 108; Banks v. Phelan, 4 Barb. 80; King v. Rundle, 15 Barb. 139; Wilson v. Lynt, 30 Barb. 124; Andrew v. New York Bib. Soc., 4 Sandf 156; State v. Gerard, 2 Ired. Eq. 210; Hillyard v. Miller, 10 Penna. St. 326; Philadelphia v. Girard, 45 Penna. St. 26; Yard's Appeal, 64 Penna. St. 95; White v. Hale, 2 Cold. 77; Franklin v. Armfield, 2 Sneed 305; Paschal v. Acklin, 27 Tex. 173; Wood v. Humphreys, 12 Gratt. 333; Perin v. Carey, 24 How. 465; Chamberlayne v. Brocketi, 8 L. R., Ch. App. 206; Attorney-General v. Greenhill, 9 Jur. (N. S.) 1307; Clark's Trusts, 24 W. R. 233. In the case of Levy v. Levy, (above cited) it is said by Justice Wright: "Charitable donations form no exception to the statute against perpetuities, at least if contingent and