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obscure and the authorities are so meagre that no definite conclusion can be drawn as to the law. As, however, the state grows older and wealthier and charitable foundations increase, the doctrine will undoubtedly be more frequently discussed and applied. But little can be done now except to indicate a few general principles. The doctrine is perhaps, in its nature incapable of being reduced to exact limits, and if it were so reduced its usefulness would be considerably diminished. It has been said that the cy pres doctrine now exists in Pennsylvania in all its branches. There is nothing in the Acts of 1855 or 1895 to support this statement, and it has been expressly decided that the doctrine does not apply to a gift at law. It has also been said that the doctrine only applies where a discretion is lodged somewhere in the disposition of the charitable gift or where the object itself of the gift is permanent.7 It has also been said that the doctrine does not apply where the charity has ceased to exist at the testator's death, on the ground that the act does not apply to the case where the gift shall become void. Yet, on the other hand, it has been observed that the doctrine does not apply when the gift is unlawful because made within thirty days of the donor's death. The true principle, it is apprehended, is this: where there is a vested gift in trust for a charity, and at any subsequent time, for any reason, it appears that the property embraced in the trust cannot be applied to the purposes originally designated, the court will, under the doctrine of cy pres, direct an application to other charitable objects as near as possible to those which were specifically indicated. Where, however, there is a gift in trust which cannot take effect because of the application of the rule against perpetuities,10 the doctrine of cy pres cannot be applied, because there has never been a complete gift to a charitable object. In this case, therefore, the court will always decree a resulting trust to the residuary devisee, heir at law or next of kin, according to the circumstances.1 Where the gift is at law, the doctrine

9

of cy pres is inapplicable except in the case of a present gift to the members of an indefinite charitable class.2 Where the gift is in trust for a definite charitable corporation, and the corporation dissolves or ceases to exist, there is no reason why the court should not, if the gift survives the rule against perpetuities, apply the doctrine of cy pres and direct a disposition of the fund accordingly.3

Preliminary Discussion of Gifts to Charitable Corporations

782. All gifts to specific charitable corporations may be considered as gifts to definite charitable objects. Such a gift may be made in two ways, directly or in trust; thus, a legacy to the Old Men's Home, or a legacy to B. in trust for the Old Men's Home. In the first case, the gift will immediately vest in the corporation; in the second place, the trust will remain in the hands of the trustees specified, and the home will receive the income. Where there is a direct gift at law, it is sometimes said that there is an implied trust, the corporation being the trustee for the purposes of the institution. This, however, is an unnecessary fiction. The charter of the corporation and the laws applicable thereto effectually fix the control and destiny of the fund, and there is no occasion to have recourse to any doctrine of trust. This fiction has served its purpose in the development of the law and can now be discarded. It was probably introduced in the early history of the state in order to support gifts which it was erroneously supposed would otherwise be void. A direct gift to a charitable corporation which is not remote is always valid except for the statutes of mortmain. It may have been supposed that the invalidity of the gift to a charitable corporation rested on the same ground as the invalidity of a gift at law to indefinite objects, and that it was consequently necessary to imply a trust in order to sustain the gift.

Gift to Charitable Corporations Forbidden by Statutes of Mortmain

783. Gifts to charitable corporations were forbidden in England by the statutes of mortmain. The judges in their note at the end of the report on the English statutes in force in Penn

2 For a discussion of such gifts, see §§722, 723, ante.

3 Commonwealth v. Pauline Home, 141 Pa. 537 (1891), stated §771, ante.

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sylvania, speaking of the statutes of mortmain, said: "They are so far in force, that all conveyances, either by deed or will of lands, tenements, or hereditaments, made to a body corporate, or for the use of a body corporate, are void, unless sanctioned by charter or Act of Assembly. So also are all such conveyances void, made either to an individual, or to any number of persons associated but not incorporated, if the said conveyances are for uses or purposes of a superstitious nature, and not calculated to promote objects of charity or utility." A charitable corporation is also limited in the amount of property which it may hold. A detailed discussion of the subject seems to fall under the law of private corporations. A few matters, however, may be noticed as peculiar to charitable gifts."

Gifts of Real Estate to a Foreign Charitable Corporation

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784. In Thompson v. Swoope it was decided that a foreign charitable corporation could take land in Pennsylvania by devise. This was altered by the Act of April 26, 1855,o which provided that no corporation other than such as should have been incorporated under the laws of this state, should thereafter acquire and hold any real estate in Pennsylvania directly or by or through any trustee.10 By the Act of June 5 3 Binney, 595 at 625 (1808).

6 See §657, ante, as to domestic corporations, and §785, post, as to foreign corporations.

7 The trustees of a charitable trust: Brown v. Hummel, 6 Pa. 86 (1847), or the persons interested: Gumbert's App., 110 Pa. 496 (1885), Stevens's Est., 200 Pa. 318 (1901), may incorporate themselves: City v. Bicknell, 35 Pa. 123 (1860), and receive the fund from the trustees under the will: Stevens' Est., 200 Pa. 318 (1901). 8 24 Pa. 474 (1855). " P. L. 328, §5.

10 For a case of a devise to a foreign corporation void under this act, see Frazier v. St. Luke's Church, 147 Pa. 256 (1892); in that case, the testator devised certain ground rents directly to a charitable corporation. It appeared that there was no corporation by that name, but that there was a New York corporation of nearly the same name. The will was

dated April 9, 1863, and it was argued that the New York corporation could not take because at the time the will went into effect the foreign corporation could not take the gift, under §5 of the Act of April 26, 1855, P. L. 328. The court appointed a trustee to take the title and hold in trust for the New York corporation. In a case stated between the trustees and the owner of the ground rent, for the arrearages of ground rent, the court gave judgment for the plaintiff, which on appeal, was affirmed. The case was not within the Act of June 8, 1891, P. L. 211, because that act was not retrospective. This decision in effect ratified the act of the court in appointing a trustee. The trust as declared was illegal at the date of the death of the testator. In order, however, that it might not fail the court appointed a trustee who could take the legal title.

8, 1891,1 it was

provided that a corporation chartered under the laws of any state in the United States, may take and hold real estate devised for charitable or religious purposes, provided that such real estate be sold within five years from the time the right of possession shall accrue.2

Gift of Personal Property to a Foreign Charitable Corporation

785. A gift of personalty to a foreign charitable corporation is good. It seems that although domestic charitable corporations are limited in the value of property which they may hold, no such limit is placed on the holdings of foreign charitable corporations."

Gift to a Corporation Not in Esse

786. Where there is a gift to a charitable corporation not in esse the gift cannot take effect immediately because there is no one to take. The court will not consider the formation of the corporation a condition precedent to the vesting of the gift, but will, under the doctrine of cy pres,' direct the trustee to hold the fund until the corporation shall have been formed. The dictum of Sharswood, C. J., where he said, "We must conclude then that this remainder, limited to a corporation thereafter to be created, was void, because there was no devisee competent to take at the time, and the possibility that there might be such a corporation during the particular estate for life was too remote," may, in so far as it was applicable to a charitable corporation, be considered as disregarded in the

of real estate to an unincorporated association which subsequently became incorporated; Witman v. Lex, 17 S. & R. 88 at 92 (1827); Act of April 26, 1855, §10, P. L. 328, re-enacted by Act of May 23, 1895, P. L. 114; Lewis's Est., 152 Pa. 477 (1893); Fisher's App., 162 Pa. 232 (1894); Daly's Est., 208 Pa. 58 (1904). In Stevens's Est., 164 Pa. 209 (1894), s. c. 200 Pa. 318 (1901) the trustee was directed to procure a charter.

9 In Zeisweiss v. James, 63 Pa. 465 at 468, (1870). The learned judge inaccurately states the period prescribed by the rule against perpetuities, as to which see §328, ante; confer §422, n. 2, ante.

later cases.10 If the formation of a corporation were considered a condition precedent, the gift would be remote and void, as the corporation might not be formed within the period prescribed by the rule against perpetuities.1 In this respect, therefore, the remarks of Ferguson, J., in Pepper's Estate,' are open to objection. The learned judge said that although a corporation might not be formed within the time prescribed by the rule against perpetuities, yet a gift to a charity was an exception, and that in such case the court would allow the fund to be transferred to a corporation constituted within a reasonable time afterward. A gift to a definite charitable corporation is clearly within the rule against perpetuities. The gift is upheld under the cy pres doctrine, and not as [an exception to the rule against perpetuities.

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Trusts for the Erection of Tombs and Monuments

787. "A monument to the deceased or for his grave is esteemed a part of his funeral expenses." A trust for such a purpose is, therefore, valid. No case has been found in Pennsylvania extending this rule to the erection of the monument to a person other than the deceased." It is doubtful how far a trust for the erection of a monument comes within the provisions of the Act of May 26, 1891.8

Trusts for the Repair of Tombs and Monuments

788. "Trusts for the perpetual repair of tombs and monu

10 See Gray, Rule Perp., 2 ed. (1906), $626, and n. 4, for discussion of this

case.

1 Gray, Rule Perp., 2 ed. (1906), §605. 2154 Pa. 331 at 336 (1893).

3 Exceptions being filed, the court in banc, Hanna, P. J., said that the case was provided for by the Act of May 9, 1889, P. L. 173 (see Act of May 23, 1895, P. L. 114, re-enacting Act of April 10, 1855) and on appeal, the Supreme Court affirmed, without discussing the point at all. It is very difficult to see how the case can be brought within the acts of assembly except in so far as these acts establish the doctrine of cy pres. 4 See §730, ante.

5 Gray, 15 Harv. Law Rev. 515 (1902).

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McGlinsey's App., 14 S. & R. 64 (1826); see Porter's Est., 77 Pa. 43 (1874), in which it was held that a gift for such a purpose was not charitable, and, therefore, valid, even though contained in a will made within one month of the testator's death. As to this, see §737, ante. The amount to be expended by the executor, when no amount is specified, is to be determined by the court, according to the circumstances of the case: Ingles's Est., 76 Pa. 430 (1874); Bainbridge's App., 97 Pa. 482 (1881).

As to this, see Gray, 15 Harv. Law Rev. 515 (1902).

8 P. L. 119; referred to in §788, post.