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N. Y. Superior-Court.-Ayres, &c., v. Trustees, &c. The devise to the Orphan Asylum Society, which the court, in opposition to the opinion of the chancellor, held to be direct, and therefore void, was not general, so as to give to the society an unlimited power of disposition or application, but the will expressly directed that the property should be applied to the charitable purposes of the institution, that is, to the support and education of orphans. The devise, therefore, plainly and unequivocally created a trust; and as this trust was for purposes which the legislature, by incorporating the society, had expressly authorized, no doubt could be raised, or indeed was suggested as to its validity ; hence the question, whether, although the devise was void, and the legal estate had descended to the heir, it was not the duty of a court of equity to effectuate the intention of the testator, by decreeing the execution of the trust, necessarily and distinctly arose ; nor is it possible that it could have.escaped the attention of counsel or the observation of the court. We have the most abundant evidence that it did not escape such observation, but was thoroughly investigated and maturely considered. Chancellor Jones, in his elaborate opinion, (an opinion which there is no exaggeration in saying, displays almost unequalled powers of reasoning and research,) after endeavoring to sustain the validity of the devise to the society, states the next question to be, whether upon the supposition “that the devise was void in law, as being in effect a devise of land to a corporate body, it was not in the power of the court, as a court of equity, to effectuate the intention of the testator ;'' (9 Cowen, 469,) evidently meaning, to effectuate his intention by sustaining the trust and decreeing its execution. He devotes nearly twenty pages of his opinion to the examination of this question, and after a full review and careful analysis of the authorities, arrives at the conclusion that the use to which the testator had devoted his estate, was valid as a charitable use, and the estate chargeable with it as a subsisting trust, and that as chancellor, he had power to establish the trust, and to decree the estate to be settled and conveyed to the uses of the will, (9 Cowen, 483); and, let it be remarked, that if he were justified in these conclusions, his decree, which directed a conveyance to the society to the uses of the will, ought never to have been reversed. It is true, that the learned judge who delivered the opinion which prevailed in the Court of Errors, takes no notice of these positions of the chancellor, or of the arguments and authorities upon which they were rested ; but as he could not have been ignorant that these positions had been taken, it is certain that he and the majority who concurred with him, meant deliberately to reject them; otherwise the decree of the chancellor, although it might have been modified, could not have been wholly reversed, and the property have been permitted to descend to the heirs, discharged from the trust. It is ir possible to explain the actual decision upon any other ground, than that in the judgment of the court, the devise was absolutely void in relation to the trust as well as the legal estate.

Were it possible for us, however, to evade this conclusion, and escape by any means from the authority of this decision, we should,

VOL. VIII.

N. Y. Superior Court.-Ayres, &c., v. Trustees, &c. still be compelled to say, that we have no power as a Court of Equity, to decree the execution of the particular trust which this will creates; we fully admit the general rule, that a trust is not to be defeated merely from the disability or failure of a trustee—but the rule is not to be applied, unless the court, in the exercise of its proper jurisdiction, may decree the execution of the trust. The trust that we are now required to execute, is a general indefinite charity, the persons to whose use and benefit the rents and profits are to be applied, not being designated with certainty in the will, but the selection being left to depend upon a future exercise of discretion. Hence, as from the illegality of the devise there is no trustee, so from the nature of the use there is no cestui que trust, and in England the rule is fully settled, that in such cases the disposition of the charity belongs to the King as parens patriæ, and must be carried into execution under his sign manual and not by the Court of Chancery, in the exercise of its ordinary and proper jurisdiction. It would be easy to cite numerous cases as proving the existence of the rule, but as all the preceding cases are reviewed and weighed by Lord Eldon in his elaborate opinion in the case of Moggridge v. Thackwell, it is needless to refer to any other authority. In that case bis Lordship states, as the result of a most diligent and searching examination, that the general principle most reconcileable to the cases, is, that where the purpose of the charity is general and indefinite, not fixing itself with certainty upon any object, the disposition is in the King by sign manual—and that the court will only take the adıninistration of the trust where the execution is to be by a trustee, (7 Vesey, jr., pp. 63 and 86, Carey v. Abbot, 490.) Even in England, therefore, the present trust would be void in equity as well as at law, and could only be rendered effectual by the direct exercise of a royal prerogative. It is possible that the courts of equity in this state have succeeded to the powers and jurisdiction of the court of chancery in England, in regard to the execution and administration of charities, but we have yet to learn, that they have also succeeded to the prerogatives of the crown, or that there is any sovereign, whose directions as given by his sign manual, they are bound to follow. It must also be remembered, that where the disposition of a charity belongs to the king, his majesty is not bound to follow the intentions of the testator, but that his discretion, in regard to the disposition of the property or fund, is unlimited and absolute. That courts of equity in this country have ever possessed or claimed a similar discretion, will not be pretended. Hence, even upon the supposition that we possess the same power as a court of chancery in England, to decree the execution of a charitable use, violating in its terms and in its duration, the general rules of law in relation to other trusts, we should still be bound to declare that the present trust, as well as the devise to which it is annexed, is illegal and void.

The observations that we have made are not, however, to be construed as implying our assent to the positions that were so learnedly and ably maintained by the counsel for the executors and the church, namely : that the law of charitable and pious uses as it prevailed in England N. Y. Superior Court.-Ayres, &c., v. Trustees, &c. anterior to the statute of Elizabeth, or independent of its provisions, (43 Eliz. c. 4,) was in force in this state, as a part of our common law, previous to the adoption of the revised statutes, and remains in force, notwithstanding its entire inconsistency with the statutory provisions in relation to trusts and perpetuities. The authorities to which the counsel referred in support of his argument deserves great consideration and respect, but we cannot think them so conclusive as to preclude us from a free examination of the same questions, if hereafter it shall become our duty to consider and decide them. We shall not decide them in this case, since upon other grounds we are compelled to decide in favor of the heirs, and as a court we decline to express or intimate any opinion in relation to them. Hence, although the form of this opinion will not be changed, the judge who delivers it is alone responsible for the observations that follow; they are to be considered as an explanation, which for special reasons it is deemed expedient to make, of the difficulties he will have to overcome before he can give his assent to a doctrine, which, in this and in a previous case, with much ability and an unusual display of learning, was pressed upon our adoption.

We strongly incline to think that the only law of charitable uses, which was in force in this state, on the 19th April, 1775, as a part of that common law, which the constitution alone recognizes and adopts, was derived exclusively from the provisions of the statute of Elizabeth, and consequently when in 1788, that statute, together with all other English statutes, was repealed, was meant and understood to be wholly abrogated. Although we cannot refer to any positive evidence of the fact, we do not at all doubt that the statute of charitable uses, as the statute of Elizabeth is termed, was in force in this state when a colony, as a part of its common law, in the same manner and for the same reasons as the Statute de Donis, the Statute of Wills, the Statute of Frauds, the Statutes of Limitations, and many others, and indeed so far as the provisions of this statute were applicable to our condition as a colony, it is not merely a reasonable but a legal presumption that they were in fact adopted. Dutton v. Howell. (Show. P. C. 32 ;) Alty. Genl. v. Stewart, (2 Mer. 159 ;) Rex. v. Vaughan, (4 Burr. 2500;) Boehm v. Eagle, (1 Dallas, 15;) Bogardus v. Trinity Church, (4 Paige, 193.)

Reasoning upon this fact, we find it very difficult to believe that the legislature in repealing the statute of Elizabeth, and in repealing at the same time the statutes of mortmain (which there is certain evidence were also in force, Sec. 4, Act of 1784, Greenleaf, page 72,) meant to revive the equitable, or more properly, the clerical doctrine of pious and charitable uses, as it prevailed in England before the reformation, and during the prevalence of which, Lord Hardwicke says, (1 Vesey, 224,) the clergy and religious houses had contrived to possess themselves of nearly one-half of the whole real property of the Kingdom. It is indeed difficult to believe that the legislature meant to revive and establish this doctrine, not in the modified and regulated form in which it now exists in England, but wholly freed from the numerous

N. Y. Superior Court.-Ayres, &c., v. Trustees, &c. and salutary restrictions which the statutes of mortmain impose, and which the experience of every christian nation, from the earliest ages of christianity, had shown to be demanded by imperative reasons of public policy ; yet it is to this conclusion that the arguments of counsel, and the authorities to which we have been referred, if we adopt and follow them, must of necessity lead us.

It is certain indeed, that such could not have been the intention of the legislature, if when the statute of Elizabeth was repealed, it was understood to be the true and only source of the law of charitable uses, and of the power of the Court of Chancery to compel their execution, and that at this time such was the actual belief of the legislature, and of its legal advisers, we think, for many reasons, it is hardly possible to doubt. All doubts upon this point, seem to be excluded when we remember that the belief which we attribute to the legislature, was, until a very recent period, the general, if not universal opinion of the members of our profession, including the most eminent of our judges and jurists throughout the Union, and that this opinion was apparently justified by many decisions in the English courts, and by the positive dicta of several Lord Chancellors, Gallego's executors v. The Atty. Genl., (3 Leigh, 450; 2 Story Eq. Jur. 1154, 1158, 1162; 1 Ch. Ca. 134, 269; 6 Dow P. R. 136.) Baptist Association v. Hart's executors, (opinion Ch. J. Marshall, 4 Wheat. pp. 30 and 39.) Baptist Association v. Smith, (3 Peters, App. 403 ; Mr. J. Story.) Atty. Genl. v. Bowyer, (3 Vesey, 744; Lord Longborough.) Mills v. Farmer, (1 Meriv. 551, Lord Eldon. 4 Kent's Comm. 508, N.)

Upon the supposition that charitable uses, as a distinct and peculiar class of trusts, were meant to be abolished, the conduct of the legislature in repealing and not re-enacting the statutes of mortmain, is readily explained, nor as it appears to us, can it be explained upon any other. We cannot suppose that the legislature meant to condemn and reject the policy upon which the statutes of mortmain are founded, a policy which the most enlightened statesmen and jurists have constantly approved, and the observance of which, the very nature of our institutions seems to demand. This policy, so far from having been abandoned, had been strictly adhered to, and followed in retaining the prohibition to corporations to take by devise, and in limiting the amount of the property that religious corporations are permitted to hold. The object of these provisions is exactly the same as that of the statutes of mortmain, namely to prevent real property from being locked up in perpetuity, and to save persons in extremis, from being led by false notions of merit or duty so to dispose of their estates as to impoverish, perhaps leave to actual destitution, their families or dependent relatives, (4 Kent's Com. 507.) Nor for the attainment of these objects were any further restrictions necessary, if charitable uses when inconsistent with the general rules of law, were meant to be abolished; but if such uses were meant to be continued, the legislature could not have failed to see that the restrictions we have mentioned, were wholly insufficient to prevent the mischiefs they were designed to exclude. It could

N. Y. Superior Court.---Ayres, &c., v. Trustees, &c.

not have failed to see that in order to carry out and render effectual the policy it had adopted, devises to individual trustees for charitable uses and creating perpetuities, were just as necessary to be prohibited as devises to corporations, nor could its members and legal advisers have been ignorant that this necessary prohibition, was found in one of the statutes, (19 Geo. II. c. 36,) which they were then repealing. It is indeed evident, that the restraints laid upon corporations are practically of very little value, if every individual, by the creation of a trust, may devote his whole estate, however large its amount, in perpetuity, to any use or purpose that he may deem, or in the confusion and terror of a death-bed repentance, may be led to believe, is pious and charitable. A perpetual trust requires and implies a perpetual succession of trustees, and if we attend to things and not to words, we shall be forced to admit, that to create such a trust, is, in effect, to found a corporation, unlimited in its duration, and incapable of dissolution, having no power to alienate its property, yet unrestrained as to the amount it may hold. Hence it is scarcely possible to state or imagine a more strange and glaring inconsistency than to prohibit corporations created by the legislature, from taking property by devise at all, and to restrict, within jealous and narrow limits, the amount of the property that, by any means, they are permitted to acquire, yet, at the same time, to permit individuals in the unfettered exercise of their discretion, to devise all the property they may possess, whatever its amount, to corporations, which by the act of devising they create. Can we believe that the legislature, in repealing the statutes of mortmain, was intentionally guilty of this inconsistency? Is it credible that it meant to counteract and defeat its own policy, and the long settled policy of our ancestors ? That it meant to take away a restriction plainly necessary, which then existed, and for more than half a century, had been · the law of the state, and by so doing, enlarge to a most impolitic extent, the discretionary power of individuals in the creation of charitable uses? The inference, it seems to us, is far more probable, that by the repeal of the statute of Elizabeth, this discretionary power, when exercised in hostility to the general rules of law, was meant to be wholly abolished. The legislature could not surely have meant, by an extension of the power to create perpetuities, to increase indefinitely, the evils that are confessed to flow from them; its object, we are persuaded, was by an absolute denial of the power, to suppress those evils in their source.

If, however, the opinion that we have now intimated, as to the intent and effect of the repeal of the statute of Elizabeth, shall hereafter appear to be erroneous, and we shall be ultimately persuaded that pious and charitable uses, indefinite in their nature, unlimited in their amount, locking up forever the property which they embrace, and in other respects, wholly irreconcileable to the general rules by which other trusts are governed, were sanctioned by the law of this state, previous to the adoption of the revised statutes, yet as such uses are most plainly and directly repugnant to the statutory provisions,

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