makes no such distinctions. The conclusions which he reaches are, however, entirely in harmony with those which have been indicated. Mr. Gray observes that the question of remoteness may present itself in connection with charitable trusts in three shapes: a gift to a charity may be followed by a remote gift to an individual; a gift to an individual may be followed by a remote gift to a charity; and a gift to a charity may be followed by a remote gift to another charity; and in each of these cases the gift over may be direct or in trust. He concedes that the rule applies in the first two cases. and the gift over is void and that the third case is doubtful. Gift to a Charity Upon a Remote Contingency After a Gift to Another Charity 9 733. A gift to a charity upon a remote contingency after a gift to another charity, is of doubtful validity. Mr. Gray submits that the gift is void and within the rule against perpetuities, on the ground that although property given for a charity is, in its nature, inalienable, yet it does not follow that it can begin on a remote contingency, and that the decision in Christ's Hospital v. Grainger, 10 that such a gift was good, proceeds upon a confusion in thought between a gift violating the rule against perpetuities and a gift that is inalienable, and he adds that the rule is only aimed at the destruction of remote future interests, and consequently the question. of alienability is of no moment.1 He further observes that the rule against perpetuities is founded upon public policy, aimed at increasing the energy and interest with which property would be used, by preventing the danger of its being lost upon a future contingency, and that that consideration applies equally well to a gift to a charity, for which further considerations he urges that, the limitation over is within the rule against perpetuities. Upon this, it is to be observed, that the consideration of energy and interest is not of the same force where the intervening estate is in a charity as when it is in an individual. Further objections to this suggestion have already been pointed out. It is apprehended that 8 Rule Perp., 2 ed. (1906), §592. Rule Perp., 2 ed. (1906), §§599-600. 10 16 Sim. 83, 1 Macn. & G. 460, 1 H. & Tw. 533 (1849). 1 Rule Perp., 2 ed. (1906), §§603a-603h. See $332, 333, ante. 2 See §14, ante. 3 the gift over is void because there is no necessity for an exception to the rule against perpetuities in this particular. There is ample opportunity for all necessary charitable gifts without allowing a gift to either definite or indefinite charitable objects to begin upon a remote contingency. It is, however, not clear whether the rule against perpetuities in Pennsylvania applies to a gift to a charity upon a remote contingency after a gift to another charity. The question was raised in Franklin's Estate, in which Mr. Gray appeared as counsel. Unfortunately, the view which the court took of the case rendered it "unnecessary to consider the other questions which were argued with great ability and learning by the counsel of the respective parties." There is a dictum by Penrose, J., in Lennig's Estate," that the gift over is valid. The learned judge took the position that the question was closed in Pennsylvania by the provisions of the Act of May 9, 1889,7 which, "in most unequivocal terms," he said, "declares that a gift to a charity shall not fail because transgressive of the rule against perpetuities." There is room to doubt whether the terms of the act "by reason of being given in perpetuity" are so broad. The words in their most natural meaning seem to apply to a perpetual trust or gift, and not to a remote contingency. The point is therefore open on the authorities, and it is impossible to say what the law is. It is apprehended, however, that reason and the weight of authority are against the validity of the gift. Summary of the Law as to the Exceptional Nature of a Gift to a Charity 8 indefinite 734. It is clear, therefore, that some gifts to objects are sustained as against the operation of the rule against perpetuities when the objects are charitable, and that all such gifts are exceptions to the rule forbidding restraints on alienation and to the rule forbidding restraints on enjoy See Gray, Remoteness of Charitable Gifts, 7 Harv. Law Rev. 406 (1894); Remoteness of Charitable Gifts Once More, 8 Harv. Law Rev. 211 (1894), by R. Mason Lisle. 4 150 Pa. 437 (1892). 5 Per Heydrick, J., 150 Pa. at p. 450; see also the same case in 13 Pa. C. C. 241 (1892). For a vigorous and somewhat caustic criticism of the view which the court did take of the case, see note in 6 Harv. Law Rev. 202 (1893). See also $653, n. 9, ante, for a discussion of the point in the case. 6154 Pa. 209 at 216 (1893). 7 P. L. 173, see Act of May 23, 1895, P. L. 114. 8 See §726, ante. ment;10 and that gifts to definite charitable objects are allowed by way of exception to the rule forbidding restraints on alienation," and to the rule forbidding restraints on enjoyment,12 but are not exceptions to the rule against perpetuities.13 The statement commonly made that a gift to a charity is an exception to the rule against perpetuities must therefore be taken with considerable qualification.14 Acts of 1855 and 1895 735. There are several statutes in Pennsylvania relating to charities, some of which being of limited application, are noticed at the proper place. There are some provisions, however, which are of such general operation, that they should be referred to at this point. The Act of May 23, 1895,' provides as follows: "That no disposition of property heretofore or hereafter made for any religious, charitable, literary, or scientific use, shall fail for want of a trustee, or by reason. of the objects being indefinite, uncertain or ceasing, or depending upon the discretion of a last trustee, or being given in perpetuity or in excess of the annual value herein before limited, but it shall be the duty of any orphans' court, or court having equity jurisdiction in the proper county, to supply a trustee, and by its decrees to carry into effect the intent of the donor or testator, so far as the same can be ascertained. and carried into effect consistently with law or equity; for which purpose the proceeding shall be instituted by leave of the attorney-general of the commonwealth, on the relation of any institution, association, corporation not for profit, or individual, desirous of carrying such disposition into effect, and 10 See §727, ante. 11 See $729, ante. 12 See §731, ante. 13 See §730, ante. 14 Gray, Rule Perp., 2 ed. (1906), §589. P. L. 114. The Act of 1895 re-enacts §10 of the Act of April 26, 1855, P. L. 328, without any change, except the addition of the words "corporation not for profit," in the list of persons who may institute proceedings under the act; see Landis, J., in the court below, in Stevens's Est., 200 Pa. 318 at 322 (1901), and renders obsolete the conflicting and ambiguous Acts of July 7, 1885, P. L. 259, and May 7, 1889, P. L. 173, as to which see dictum of Penrose, J., in Alter's Est., 4 Pa. C. C. 558 at 560 (1887), and remarks of the court below in Trim's Est., 168 Pa. 395 at 397 (1895). The Act of 1895 seems to have been overlooked in the following cases: Young v. Church, 200 Pa. 332 (1901); Houston's Est., 28 Pa. C. C. 285 (1903), s. c. 12 D. R. 121, 19 Montg. 151; Harman v. Romberger, 34 Pa. C. C. 593 (1908); and by the learned editors of Pepper & Lewis's Digest of Decisions, title "Charities," Vol. II, and Vol. I C. R. A. col. 869. willing to become responsible for the costs thereof, subject to an appeal as in other cases in said courts respectively, and to be reviewed, reversed, affirmed, or modified by the Supreme Court of this state; but if the objects of the trust be not ascertainable, or have ceased to exist, or such disposition be in excess of the annual value permitted by law, or in perpetuity, such disposition, so far as exceeding the power of the courts to determine the same by the rules of law or equity, shall be taken to have been made subject to be further regulated and disposed of by the legislature of this commonwealth, in manner as nearly in conformity with the intent of the donor or testator, and the rules of law against perpetuities as practicable; or otherwise, to accrue to the public treasury for the public use." The tenth section of the Act of 1855 was prospective. It seems that the same construction should be given to the Act of 1895. This legislation will be noticed again at various points in the discussion. Statute of Frauds 736. A gift to a charity is not an exception to the provisions of the statute of frauds.3 Where, however, there is a parol declaration of trust upon the faith of which the promisee has acted to his detriment, the promisor is not permitted to avail himself of the statute of frauds because he would then be unjustly enriched, and of course his enrichment is the same whether the objects are charitable or otherwise.* Charitable Gifts Must be Made Within One Month of the Death of the Donor 737. All charitable gifts of real or personal estate made by will or deed are subject to the provisions of the Act of April 2 Sharswood, J., in Mann v. Mullin, 84 Pa. 297 at 301 (1877); Houston's Est., 28 Pa. C. C. 285 (1903), s. c. 12 D. R. 121, 19 Montg. 151; App. of Children's Hosp., 10 W. N. C. 313 (1881); see on the act generally, Taylor v. Mitchell, 57 Pa. 209 (1868). 3 Act, March 21, 1772, 1 Sm. L. 389, §1; Act, April 22, 1856, P. L. 532, §4. A parol promise to dedicate certain lands in trust for a charitable purpose was not within the statute of frauds, when the promise had been acted upon by the 26, 1855,5 which provides, in effect, that every disposition in trust for a religious or charitable use must be by a deed or a will, attested by two credible and disinterested witnesses, at least one calendar month before the decease of the testator or alienor. The act seems to apply only to a gift to a body politic or to an individual in trust. This distinction does not seem to have been taken in practice, and it is probable that the act has been applied to all gifts at law as well as in trust. A detailed consideration of the provisions of this act lies outside the scope of this treatise. Exemption From Taxation 738. The Constitution of Pennsylvania' provides that the General Assembly may exempt from taxation certain classes of charities. The legislature has, in pursuance of this clause, exempted the charities mentioned in the constitution from taxation. The question of what is or what is not a charity has been frequently raised in the endeavor to bring the gift within these provisions. This point does not concern us here, however, and will not be further discussed. Preliminary Discussion of a Charitable Trust 739. Where a gift is in trust for a charity, there is a charitable trust which differs from other trusts only as respects the character of the cestui que trust. The jurisdiction of the chancellor over charitable trusts was formerly supposed to 5 §11, P. L. 328. The provisions of the act are as follows: "§11. That no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust for religious or charitable uses, except the same be done by deed or will, attested by two creditable, and, at the time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary thereto, shall be void and go to the residuary legatee or devisee next of kin, or heirs, according to law; provided, That any disposition of property within said period, bona fide made for a fair valuable consideration, shall not be hereby voided." 6 The best discussion of this act in the books will be found in an anonymous article entitled Gifts to Charities, in The Forum, Vol. XII, p. 167 (1908). 7 Art. IX, §1. 8 For a few of the recent cases, see Orphan Asylum v. School District, 90 Pa. 21 (1879); Phila. v. Woman's Christian Assn., 125 Pa. 572 (1889); Episcopal Acad. v. Phila. 150 Pa. 565 (1892); Harrisburg v. Harrisburg Acad., 26 Super. Ct. 252 (1904); Mattern v. Canevin, 213 Pa. 588 (1906). |