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N. Y. Superior Court.--Ayres, &c., v. 'l'rustees, &c. in relation to trusts and perpetuities, we confess our present inability to understand or conceive, why they are not now to be considered as positively forbidden, and therefore abolished. That they are embraced within the terms of these statutory provisions, terms as explicit, as strong, and as comprehensive as the language can furnish, it is impossible to deny, and we yet remain to be convinced, that they are not just as certainly embraced within their spirit and policy. At any rate, to declare that they are not, and upon that ground to introduce an exception, which there is not the slightest evidence, was ever contemplated by the revisers or by the legislature, would seem to us, as at present advised, an unjustifiable, if not unexampled, stretch of judicial power. It is said that the revisers, in their notes, make no reference or allusion to charitable uses ; and it is assumed that they would not have been silent, had they meant to abolish them ; but it seems far more reasonable to say, that had they meant to except them from the universal terms of the enactments which they proposed, they would certainly have said so, since, had such been their intention, the necessity of a positive exception, in order to prevent misconstruction, could not possibly have escaped them; on the other hand, if they meant not to except, but to include charitable uses, the explanation of their silence is easy and obvious. They may have deemed it unnecessary to speak; they may have thought that the provisions which they recommended spoke for themselves, in a language that neither the legislature nor judges could fail to understand. The article in relation to uses and trusts, commences with this declaration. “Uses and trusts, except as authorized and modified in this article, are abolished," (1 R. S., p. 727, sec. 45,) and the addition of a note, telling the legislature that all uses and trusts, not excepted, were meant to be included, would have been an idle repetition of a text, which, if words have a meaning, could bear no other interpretation. Not only are uses and trusts abolished, but to exclude the supposition that any, previously existing, were meant to be preserved, it is declared, that none are to be excepted but those which the article itself authorizes and modifies; and that by any comment upon such a text, the meaning of the revisers, and the duty of judges could have been rendered more plain and evident, we exceedingly doubt. Of this we feel assured, that had the revisers intended to revive or continue in force the ancient doctrine of pious and charitable uses, as it practically existed in England during the ages of darkness and superstition, and subject to none of the restraints that constant evasion and successive abuses had shown to be necessary, and successive statutes of mortmain had imposed, they would not have been silent. Their views would not have been concealed from the legislature ; but upon this, as upon all other occasions of importance, if not fully vindicated, would have been fully explained. Comparing their notes with the actual provisions in their text, the just inference seems to be, that they believed that charitable uses, as they then existed, were subject to the general rules of the common law, and, consequently, would be subject to the statutory rules which they desired to substitute.

N. Y. Superior Court.-Ayres, &c., v. Trustees, &c. Whether this inference be just or not, our conviction remains, that charitable uses may possibly have been overlooked or forgotten, but certainly were not meant to be excepted.

It was urged upon the argument as a conclusive reason for excepting charitable uses from the general provisions of the Revised Statutes, that in England they are held not to be embraced within the general words of an Act of Parliament; but however broad and unlimited the terms of the statute are uniformly treated as an exception which the law implies. In proof of this assertion, we were told that the exception in the Statute of Wills (34 and 35 H. VIII. c.5,) by its terms, renders every devise to a corporation void, whatever its inent or object; and yet a devise to a corporation for a charitable use, it has been frequently decided, as not within the statute, is valid. So, also, that the terms of the Statute of Uses (27 Hen. VIII. c. 10) are general, comprehending all uses; and yet it has never been held nor supposed that, under the statute, a charitable use is or can be executed." Such uses are an admitted exception. To the argument drawn from the construction of the Statute of Wills, Ch. J. Marshall has replied ; and we shall give the reply, without the addition of a word, in his own clear and forcible language. In the case of the Baptist Association v. Hart's Executors (4 Wheat. 1,) it was alleged by the counsel for the plaintiffs, as a proof that charitable uses were not derived from the Statute of Elizabeth, that before the passage of that act, it was held that a devise to a corporation for a charitable use, notwithstanding the exception in the Statute of Wills, was good in equity. It was in reply to this allegation that the chief justice, in delivering the judgment of the court, said, “We think we cannot be mistaken when we say that no case was decided between the statute of Hen. VIII. (the Statute of Wills) and the statute of Elizabeth, in which a devise to a corporation was held good in equity. Such a decision would have overturned principles uniformly acknowledged in that court. The cases of devises that have been held good, were decided since the statute of Elizabeth on the principle that the latter statute, so far as relates to charities, repeals the former, (4 Wheat, p. 40.) The language of Mr. J. Story, in the most instructive of his works, upon the same point, is just as explicit.“ Devises to corporations,” he says, “ which are void under the statute of Hen. VIII. are made good solely by the statute of Elizabeth ; for it is plain that a devise, void by statute,

cannot be made good upon any principle of general law,” (2 Story's Eq. Jur. 1152)—a remark which, considering the subject to which it was applied, is equivalent to saying that where the words of a statute are general, there is no principle of law that can justify a court of justice in creating an exception that is not created by the statute itself.

We cannot here forbear from an observation that seems hitherto to have escaped the attention it deserves.

If devises to a corporation for charitable uses, or in trust for a corporation for a similar use (for it is only upon the same principle that N. Y. Superior Court.-Ayres, &c., v. Trustees, &c. even these have been held to be good. Attorney General v. Downing, Amb. 550; Adlington v. Andrews, 3 Atk. 141,) are rendered valid in England solely by force of the statute of Elizabeth, it inevitably follows that with us all such devises, since the repeal of that statute, must be void, even upon the supposition that a charity not consistent with the general rules of law, may still be created. The plain, unequivocal meaning of the decisions is, that it was competent to the legislature alone to except any class of devises from the operation and effect of the general words in the Statute of Wills; and as the exception thus created no longer exists, it follows that those general words must now be understood in the full extent of the meaning, that but for the statute of Elizabeth would always þave been given to them —that is, as rendering void every devise to a corporation, or in trust for a corporation, whatever may be its intent and

purpose. As to the argument drawn from the statute of uses, exactly the same reply, were it necessary, might be given, that if charitable uses are an exception from the general words of the statute, they are so only by force of the statute of Elizabeth. But, in truth, no such exception exists. Charitable uses are neither within the scope nor the words of the statute of uses. The only design of that statute was to convert equitable into legal estates, by annexing the legal title to the equitable right of possession, but the persons, for whose benefit a charity is created, have no estate or interest in the lands upon which the statute could possibly operate. They are mere beneficiaries, having the right, and nothing more than the right, to compel the performance of the trust, according to its terms, and the intentions of their benefactor. A valid charitable use must always remain, and can only be enforced, as a trust, unaffected by the provisions of the statute ; since, considering it simply as a use, there is not, and never can be, any person in whom it can be executed. As the rents and profits are to be applied to the benefit of a succession of persons in perpetuity, there is not, and never can be, a cestui que trust to whom the legal estate, if that of the trustees is divested, can be given, without destroying the charity and defeating forever the intentions of its founder.

As those that have now been stated were the only instances that were cited to prove, that, in England, it is an established rule of construction that charitable uses are not covered by the general words of a statute, we must be peşmitted to doubt, until more pertinent and conclusive evidence shall have been given, whether in the English courts the supposed rule has ever been admitted, or even suspected, to exist. We have ourselves been unable to discover the faintest trace of its existence, and until otherwise convinced, must continue to think, with Ch. J. Marshall, that a decision such as the rule would require to be made, would overturn principles that courts of equity as well as of law, have uniformly acknowledged.

We do not at all share the apprehensions that have been expressed as to the consequences that may ensue, if that construction

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

of the revised statutes shall be adopted, which our remarks have implied to be necessary. The benevolence of Christian and other philanthropists will not be unduly restrained ; an ample scope will still be left for its beneficent action. Charitable and public uses are not abolished by subjecting them to the provisions of the Revised Statutes. For these purposes, if the alienation of the capital is not improperly restricted, donations and bequests of money may still be made to any amount, and the proceeds of real estate, directed to be sold, may be similarly applied. Practically, the principal effect will be found to be, that lands cannot be granted or devised so as to render them thereafter for ever inalienable, without the assent of the legislature, unless they are granted or devised to a corporation, that by law is authorized to take, and bound to retain them. The necessity of an appeal to the Legislature, in other cases where perpetuities are sought to be created, we cannot regard as an evil. When a new and plainly meritorious charity is meant to be founded, such as an hospital, an asylum, a library, a college or a school, none of us can fear that the sanction of the legislature will ever be withheld ; nor will it be deemed a subject of just regret that when the aid of the legislature is required, it will have the opportunity of considering, whether the claims or fair expectations of wives, children, or relatives, have been overlooked and sacrificed. Under our present system, if such as we suppose it to exist, and considering the restraints that are now laid upon corporations, their incapacity to take by devise, and the limited amount of property which they are permitted to hold, we need not the English statutes of mortmain; but revive the English doctrine of pious and charitable uses, in its original extent, and the necessity of such statutes will soon be apparent. In this, as in every other country, where such uses have been suffered for a time to prevail, without restriction, there will be an inundation of abuses, which the utmost power of the Legislature will be required to stem, repel and overcome.

There are some other considerations to which, as suggesting topics of useful reflection, it may be expedient to advert. If charitable and pious uses, without limitation or restraint, notwithstanding the repeal of the statute of Elizabeth, and notwithstanding the express provisions of the Revised Statutes, now constitute a part of our unwritten law, where shall we find, who shall declare to us the rules by which they are to be governed ? How are they to be classed, limited and defined? What is a charitable ? what a pious use? In England, charitable uses are enumerated and defined in the statute of Elizabeth, and it is settled, that none can be sustained as such, that the provisions of the statute may not be construed to embrace. Brown v. Yeates, (7 Vesey, 50 n. ;) Morrice v. Bishop of Durham, (9 Vesey, 30, S.C., io Ves., 523 ;) Ommany v. Butcher, (1 Turner & Russell, 260 ;) Vesey v. Sampson, (1 Simon & Stuart, 69, 2 Story, Eq. Jur. S., 1155–56–57. Hence, when the question arises whether a particular use is valid as charitable, it is readily solved by a reference to the statute, and the decisions under it. But to us, as the statute

5

VOL. VIII.

N. Y. Superior Court-Ayres, &c., v. Trustees, &c. is repealed, neither its terms, nor the decisions under it, can any longer furnish a guide, and either the whole subject must be committed to the uncontrolled and arbitrary discretion of judges, or every trust, that assumes the name and wears the form and face of charity, without discrimination, must be sustained. Benevolence is the most amiable of virtues, and more than any other commands our sympathy and applause ; but more than any other it needs the aid of enlightened reflection, and the direction and control of a sound judgment; and, if the execution of every trust that a mistaken philanthropy may create, must be decreed, courts of equity will frequently discover, that instead of relieving distress, promoting industry, or assisting virtue, they are efficient agents, in supporting the idle, encouraging the dissolute, and protecting the criminal.

As to pious uses, if any are to be sanctioned other than those which are included within the general objects of religious corporations, the difficulties are still greater. In England, while pious uses are retained, those, which have been branded as superstitious, have been abolished, and none are deemed pious but such as are strictly consistent with the orthodox faith of Protestant Christians. But with us, it is plain, that no such distinction can be admitted. With us, as all religions are tolerated, and none is established, each has an equal right to the protection of the law, and, consequently, all uses, directed to a religious object, must be equally proscribed, or, all must be upheld as pious, which are consecrated by the faith of any description or class, not merely of Christians, but believers. Hence, if the Presbyterian and the Baptist, the Methodist and the Protestant Episcopalian, must each be allowed to devote the entire income of his real and personal estate, forever, to the support of missions, or the spreading of the Bible, so must the Roman Catholic his, to the endowment of a monastery, or the founding of a perpetual mass for the safety of his soul; the Jew his, to the translation and publication of the Mishna or the Talmud, and the Mahommedan, (if in that colluvies gentium to which this city, like ancient Rome, seems to be doomed, such shall be among us,) the Mahommedan his, to the assistance or relief of the annual pilgrims to Mecca.

Upon the whole, we are certainly inclined to think that it is better that judges shall say, as it seems to us the legislature has said, that no use or trust can be valid that the revised statutes have not authorised, and that the absolute power of alienation, in respect both to real and personal estate, shall not be suspended for a longer period than the statutes allow, “ by any limitation or condition whatever.” (1 R. S. sec. 15, p. 723, sec. 1, p. 773.) These rules, as general, we believe are safe and salutary, and when in special cases they need to be relaxed, the legislature has the power to relax them. That power has already, in many cases, been wisely and beneficially exercised. (Laws 1840, ch. 318, 1, 2, 3, 4; Laws 1841, ch.261; Laws 1839, ch. 174, 1, 2, 3; Laws 1839, ch. 184, 2 R. S., 3d ed., pp. 23, 24, 25.).

And let it be remembered, that by its exercise, the legislature has

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