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,5 no such limit is placed on the holdings of foreign charitable corporations. 6 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. 10 later cases." 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,2 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.3 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. 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."5 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. 2 154 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. * See §730, ante. 5 Gray, 15 Harv. Law Rev. 515 (1902). 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). ments were originally held to be charitable; bad, if they contravened the mortmain act; but otherwise good." The later English doctrine was that such a trust was invalid, and such was the law in Pennsylvania.10 The old English doctrine was restored in Pennsylvania by the Act of May 26, 1891.1 Such trusts are exempt from the payment of collateral inheritance tax by the Act of March 5, 1903.2 3 Trusts For Saying Masses 789. A trust for saying masses was void in England as a superstitious use, but is valid in Pennsylvania as a charitable gift.* Trusts for Schoolhouses 790. There were a number of cases in the early history of the state, before the public school system had been established, of trusts for the erecton of schoolhouses for the use of the neighborhood. One neighbor would give the lot of ground, and he and the others, or the others without him, would subscribe the money to build the schoolhouse. The neighbors would then employ a teacher to manage the school, and the ones who took charge of the school were called the employers. The form, therefore, in which the conveyance in trust was generally expressed was, "to the employers of a certain school, to hold for a schoolhouse," etc.5 By various acts of assembly the trustees of these schools were authorized to convey the trust property to the school directors established 9 Gray, 15 Harv. Law Rev. 517 (1892), and cases cited. 10 Trustees v. Wells, 5 Pa. C. C. 92 (1888). 1 P. L. 119. The act reads as follows: "Sec. 1. Be it enacted, etc., that no disposition of property hereafter made for the maintenance or care of any cemetery, churchyard or other place for the burial of the dead, or of any portion thereof, or grave therein, or monuments or other erections on or about the same, shall fail by reason of such disposition having been made in perpetuity, but said disposition shall be held to be made for a charitable use." The following cases have arisen since the act: Smith's Est., 181 Pa. 109 (1897); Nauman v. Weidman, 182 Pa. 263 (1897); Brabson's Est., 16 D. R. 669 (1907). 2 P. L. 12. See opinion of the Deputy Attorney-General, Graveyard Taxation, 30 Pa. C. C. 369 (1904); confer Long's Est., 22 Super. Ct. 370 (1903). 3 Gray, 15 Harv. Law Rev. p. 518 (1902). Rhymer's App., 93 Pa. 142 (1880); Seibert's App., 18 W. N. C. 276 (1886), s. c. 3 Sadler's Cases, 412; O'Donnell's Est., 209 Pa. 63 (1904); Dougherty's Est., 5 W. N. C. 556 (1878). 5 Morrison v. Beirer, 2 W. & S. 81 (1841); Kirk v. King, 3 Pa. 436 (1846); Martin v. McCord, 5 Watts, 493 (1836). 7 8 by law. A few cases have arisen on these acts. The construction, however, is well settled. Where the beneficiaries of the trust are the same as those entitled under the laws to the benefits of the public school, the consolidation is proper, but where the beneficiaries are a particular class or sect of the community, the trust must remain as it was. In one case, however, where a lot was conveyed in 1794 in trust "for the use of the neighborhood in general for an English Protestant School, and for no other use or uses whatever," and the trustees sold the land under the Act of April 18, 1853, there is a dictum by Woodward, J., that the lot might have been conveyed to the school authorities of the City of Philadelphia. Religious Trusts 791. All religious trusts were void in England as superstitious uses, but are valid in Pennsylvania. All property vested in trust for any church, congregation or religious society for religious worship or sepulture or the maintenance of either, must be subject to the control of the lay members of any such church, etc., or such constituted officers or representatives as shall be composed of a majority of lay members, citizens of Pennsylvania.10 A majority of the male members of lawful 6 Act of June 16, 1836, §14, P. L. 531; Act of April 7, 1849, §16, Art. 2, P. L. 444; Act of February 12, 1849, §20, P. L. 108. As to trustees of academies: Act of April 11, 1862, P. L. 471, §16, Act of June 10, 1881, P. L. 119, §1. 7 Martin v. McCord, 5 Watts, 493 (1836); Wright v. Linn, 9 Pa. 433 (1848); Trustees. Sturgeon, 9 Pr. 321 (1848); Barr v. Weld, 24 Pa. 84 (1854); McLain v. School Directors, 51 Pa. 196 (1865); School Directors v. Dunkleberger, 6 Pa. 29 (1847); Brown v. Church, 23 Pa. 495, (1854). For a case under the Act of 1863 see Pott v. School Directors, 42 Pa. 132 (1862). 8 In Stallman's App., 38 Pa. 200 at 203 (1861). 'P. L. 503; see $758, ante. 10 Act of April 26, 1855, §7 P. L. 328, as re-enacted by the Act of June 2, 1887, P. L. 298, and Act of May 1, 1907, P. L. 132. By proviso of the Act of April 26, 1855, §7, P. L. 328, as re-enacted by the Act of June 2, 1887, P. L. 298, it is provided that no charter thereafter granted by any court for any church, congregation or religious society, shall be valid without requiring such property to be taken subject to the provisions as to lay members. And, by the Act of May 1, 1907, P. L. 132, this provision is amended so as to read that all charters theretofore granted without inserting such clause, shall be as valid as if such clause had been inserted when the charter was originally granted, and so as to validate in full all titles conveyed by such corporations, with a further proviso that all property held by such existing corporation shall be subject to the provisions of the act as to control by lay members in the same manner as if a proviso to that effect had been inserted in the charter when originally granted. The heading in Pepper & Lewis's Digest of Decisions, Vol. II, col. 2798, stating age of any unincorporated church, congregation or religious society, may choose their trustees, who need not necessarily be laymen, and whenever not previously declared, may declare the manner in which the title to their trust property shall be held, and upon due proof of such consent, the proper court may direct the legal title to be conveyed accordingly, so however, that there shall be no diversion of the trust property to any other use than that to which it shall have been conveyed. There have been a number of cases in Pennsylvania in which the congregation of a particular church has split into different factions, and a controversy has arisen as to which faction conforms to the faith of the church and is, therefore, entitled to the original property. These cases turn largely on questions of church law and doctrine. Other cases have arisen dealing with the validity of a sale made by a church depending on the power and qualifications of the church officers, unfortunately called trustees. Both of these subjects lie outside the scope of this book. 3 Determinable Charitable Gifts at Law 6 5 792. There seems to be no more objection to a determinable fee vested in a definite charitable object, than to any other instance of a determinable fee. If gifts at law to indefinite charitable objects are valid, a determinable fee would, it is apprehended, be admissible in such a case. No authority on this point has been found. A determinable absolute gift of personal property seems to be unknown and probably would be invalid owing to the nature of the subject matter of the gift. the provisions of the Acts of 1855 and 1887 as extending to "charitable corporations and associations," seems to be unsupported by anything in the acts themselves. 1 By the proviso to §7 of the Act of 1855, P. L. 328, as amended by the Act of June 2, 1887, P. L. 298, and Act of May 1, 1907, P. L. 132, this proviso is amended so that the title shall be held subject to all the terms and conditions upon which the same may have been bequeathed, etc. 2 See Brown v. Church, 23 Pa. 495 (1854); Kisor's App., 62 Pa. 428 (1869); As to the validity of determinable fees, see §27, ante. 5 For an instance of such a gift, see Henderson v. Hunter, 59 Pa. 335 (1868). For a discussion of this point, see §§722, 723, ante. |