N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al. tered in the discretion of the corporate body made trustee ; it could not be executed by a mere assignee after mesne assignments; the New-York Bible Society is not within the trusts of the assignment of July 1, 1837.

3. The New York Bible and Common Prayer Book Society was in existence at the date of the will, codicil and death of the testator, and was not made his legatee; to give the legacy to it would be a gift the testator neither made nor intended.

II.-1. The legacy to the Auxiliary New-York, &c., Society was for an accumulation for twenty-one years; the legacy was only given upon the condition of such accumulation. This accumulation this Society had no power by its charter to make, and therefore the legacy is void.

2. It is also void as a perpetuity at common law; the legacy is fettered for four lives before vesting, and then for a term of twenty-one years, not depending on a life or a minority; and is therefore void.

III.-1. The legacy to the Theological Seminary is void, because it is not given to the chartered corporation for its chartered purposes, to be managed according to its charter, but upon special trusts; the corporation had no power to take and execute such trusts.

2. The trust was for the education of one of the testator's kindred; and for an accumulation until such kindred should be fit to be a clergyman or should terminate.

3. The trust was then for the preaching of an annual sermon. These were not trusts within the charter.

DUER, J.-Without adopting the reasons of the vice-chancellor, we are constrained to affirm his decree, upon grounds to which he has not adverted in his opinion, and which we shall proceed to state with as much brevity as may be consistent with their distinct exposition. We agree entirely with the learned counsel for the appellants, that the bequests which are the subject in litigation must be treated as pecuniary legacies, notwithstanding it might become the duty of the executors, in the event of a deficiency of the personalty, to sell the lands in order to satisfy them; nor was this position, as we understood the learned counsel for the respondents, meant to be denied by him; and as it is not probable that it will be hereafter disputed, it is needless to cite authorities in its support.

The bequest to the Auxiliary New-York Bible and Common Prayer Book Society, and which is now claimed as its assignee by the NewYork Bible and Common Prayer Book Society, we are satisfied, was a contingent, not as the learned counsel for the appellants was forced to contend, a vested legacy. It could not vest even in interest until the death of the last annuitant, since the gift itself, from the terms in which it is expressed, is made to depend upon the contingency of the corporate existence of the Society at that time. The distinction between the bequest of a sum of money at a particular specified time, and a similar bequest payable or to be paid at the sanie time, is somewhat refined, and it is probable seldom exists in the mind of a testator, but

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al.

it is established by so long a series of decisions that it must now be regarded as a constituent part of the law, which it is our province and duty to administer. In the second case the gift is immediate, and only its payment postponed. In the first, the gift itself is postponed. In the language of the books, the time in the second case is annexed to the payment; in the first, to the substance of the gift. The first is a contingent, the second a vested legacy. A vested legacy, when the legatee dies before the time fixed for its payment, passes to his personal representatives, or if it has been previously assigned by him, to his assignee. A contingent, upon the happening of the same event, is wholly extinguished, and sinks into the residuum, for the benefit of the residuary legatees or next of kin, and a previous assignment is necessarily defeated, since every such assignment, if otherwise valid, is subject to the same contingency as the gift itself. (Stapleton v. Charles, Prac. in Chan. 307; Jackson v. Jackson, 2 Brown's Par. Cases, 254; Bolger v. Mackell, 5 Ves. 509; Smell v. Dee, 2 Salk. 485; Cruse v. Barley, 3 P. Wm. 20; Onslow v. South, 1 Eq. Cases Ab. 295, Pl. 6; Hanson v. Graham, 6 Ves. 241; Butcher v. Leach, 5 Beav. 391; 2 Williams' Ex'rs, 1051, 1060; 1 Roper on Legacies, by White, pp. 566, et seq.) There is, however, an exception from the general rule, that a gift to take effect at the death of a particular person, is contingent during his life. If during his life a beneficial interest is given to him, or to any other person, in the capital of the sum bequeathed, the legacy is construed as a vested remainder, and is not defeated by the antecedent death of the legatee. (2 Will. Ex. pp. 1066, 7, and cases ib. cit.) But it is manifest that this exception is not applicable to the present case, since, under the provisions of the will, neither the annuitants, nor any other person during their life time, had any beneficial interest either in the capital sum bequeathed or in its income. The sum of the annuities payable to the three annuitants who survived the testator, was only three hundred dollars, which was far less than the whole income of the testator's estate, and the surplus income the executors and trustees were directed not to pay over to any person, but to accumulate until the death of the last of the annuitants. Hence, had the present bequest been an absolute gift to a natural person to take effect at the death of the last of the annuitants, it is impossible to doubt, upon the authorities, that it would have lapsed by the antecedent death of the legatee, and we know no reason, nor was any attempted to be given, why the same rule must not be applied where the gift is to a corporate body and is accompanied with a trust. The continued existence of the corporate body until the period when the gift is to take effect, is just as certainly a condition precedent to the vesting of the legacy, as that of the individual. In this case, the Auxiliary N. York Bible and Common Prayer Book Society at the death of the last annuitant, by the prior expiration of its charter had ceased to exist, and the necessary consequences are, that the legacy has lapsed, and that the title set up by the appellants, the New-York Bible and Common Prayer Book Society, wholly fails.

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al. Had it been possible for us to say that the legacy was vested, we should still have been compelled to hold that its payment could not be decreed to the appellants as its assignees. The assignment under which they claim was void in its origin. The gift to the Auxiliary Society was not absolute, but was clothed with a trust from which it could not be separated, and which from its nature was incapable of being assigned. The assignment of a trust is a delegation of the office of trustee. It is the substitution of a new trustee, and this power of delegation and substitution never exists unless it is expressly given by the instrument creating the trust. In all other cases the trust implies a personal confidence which may be renounced but cannot be transferred. (Attorney General v. Scott, 1 Ves. sen. 413; Alexander v. Alexander, 2 Ves. sen. 643; Adams v. Clifton, 1 Russ. 297; Lewin on Trusts, 262.)

It is, however, alleged that although either from the lapse of the bequest, or the invalidity of the assignment, there may be no trustee before the court entitled to claim the payment of the legacy, it is our duty as a court of equity to enforce the execution of the trust with which it is clothed, and for that purpose to appoint a new trustee to whom its payment may be decreed; and, certainly, if we have this power and are bound to exercise it, we could have no hesitation in selecting the appellants as trustees, and in making the required decree in their favor. If the trust exists, it is to them that its execution ought to be entrusted.

The present existence of the trust is, therefore, the question next to be considered. Whether from the nature of the use to which the income of the legacy is directed to be forever applied, namely, the purchase and distribution of Books of Common Prayer, there is a valid and subsisting trust, the execution of which has devolved upon the court, is, in our judgment, the only question, in the cause, that can create and justify a serious doubt. It is certainly a question which, from the extensive application of the principles which it involves, is of far more than ordinary importance, and we admit that its determination has been rendered somewhat embarrassed and difficult by prior decisions. The inquiry, upon which it compels us to enter, is, whether pious or charitable uses, wholly inconsistent with the rules of law in relation to all other trusts, were in force in this State prior to the adoption of the Revised Statutes. The will of the testator took effect some years before the Revised Statutes were adopted, and consequently it is not by their provisions, but by the law of the State as it then existed, that our determination must be governed.

Before we proceed to this inquiry, however, it will be proper to consider a preliminary objection which has been raised on the part of the respondents, and upon which the vice-chancellor seems to have rested his decision in their favor. If this objection is wellfounded it supersedes the necessity of any further discussion. The gift to the Auxiliary N. York Bible and Common Prayer Book Society, is in its nature an executory bequest, and the objection is, that,

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al.

as such it exceeds the limits allowed by law and as too remote, is void in its creation. It is true that the principal sum of $1500 is to be paid to the Society at the death of the last annuitant, but the Society is directed to accumulate this sum for the period of 21 years, or until it shall amount to $5000, and it is therefore certain that during the term of accumulation the full vesting of the gift is suspended. The gift is a limitation to take effect at the end of the term. The vice-chancellor thought this objection to be fatal, and upou this single ground, that an absolute term or term in gross, having no reference to an actual minority, cannot be added to lives in being, so as to enlarge the period of suspense, held the legacy to be void. In the opinion, however, that such an addition to lives in being is prohibited by law, the learned vice-chancellor certainly erred. He was misled by his reliance on the case of Beard v. Westcott, (5 B. & Ald. 801; S. C., 1 Turn. R. 25,) and was greatly mistaken in supposing that this case, as understood by him, is consistent with all the prior decisions, and has not been overruled by any that are subsequent. It is exceedingly doubtful whether the Court of King's Bench by its certificate in Beard v. Westcott, meant to affirm the doctrine which the vice-chancellor adopts, but which the Court of Common Pleas by its previous certificate on the same case had distinctly rejected, (Beard v. Westcott, 5 Taunt. 413; vide opinion Bayley, B., 7 Bligh New R. 238.) But admitting that the judges of the King's Bench meant to decide the question as the vice-chancellor interprets their certificate, their decision has been expressly overruled by the very deliberate judgment of the House of Lords, in the subsequent case of Cadell v. Palmer, (7 Bligh, 203.) By this judgment, which was founded upon the unanimous opinion of the attendant judges, and which affirmed the concurrent decrees of the vice-chancellor and chancellor, (Bengough v. Eldridge, 1 Sim. 173,) it was definitively settled that where an absolute term, having no reference to a minority and not exceeding 21 years, is added to lives in being, a limitation to take effect only at the end of the term is not too remote, but, if otherwise valid, will be sustained. And the same rule is plainly deducible from several prior decisions. (Lloyd v. Carew, 1 Shower, P. C. 137; Goodman v. Goodright, 2 Burr, 873; Goodtitle v. Woods, Willis, 211.) And long before had been laid down in the broadest terms by text writers of the highest authority, by Blackstone, (2 Black. Čom. 174,) by Wooddeson, (2 Wood. 229.) And above all, by the profound Fearne, and his deeply learned commentator, Butler. (Tearne on Ex. Dev. 7 Ed. pp. 117, 399, 470; Con. Rem. 429, 438.) It may not be improper to add, that this rule was plainly understood by the Revisers to be the settled law, several years before the decision of the House of Lords in Cadell v. Palmer, since, in their notes to the chapter of real property, they state as one of the alterations in the law which they proposed and the legislature adopted, that "the period of 21 years after a life or lives in being is no longer allowed as an absolute term, but the rule is restored to its original object by being

N. Y. Superior Court.-N. Y. Bible and Com. Prayer Book Society v. Andrews et al. confined to the case of actual infancy." (Rev. Notes, 3 R. S. 2d ed. p. 572.)

As we cannot agree with the vice-chancellor that the bequest to the Society is rendered void by the postponement of its vesting, we must proceed to the inquiry, whether we are bound to execute the trust that accompanies the gift, by the appointment, and through the medium, of a new trustee. It is familiar law that equity will never suffer a trust to be defeated by the mere circumstance that there is no .trustee in whom the legal title is then vested, but the rule, as general can only be applied where the trust is valid, and there is a cestui que trust before the court, who claims its execution. As a general rule, chancery has no power to compel the performance or decree the execution of a trust, where there is neither a trustee nor a cestui que trust. The trust is then wholly void in equity as well as at law, and this is emphatically true when the trust involves a perpetuity; when, as in the present case, it locks up forever the capital of the property or fund which it embraces, and calls for a perpetual succession of trustees to administer the income.

Let it be admitted that pious and charitable uses are an exception from these general rules, it by no means follows that we are bound, or have the power, to execute the present trust. We have recently held in the case of Ayres v. The Methodist Episcopal Church, (8 N. Y. Legal Observer, p. 17,) that where a charitable use is general and indefinite, no persons being certainly designated as objects of the intended bounty, the administration of the trust, if there is no trustee, belongs in England, not to the Court of Chancery, but to the crown, so that the chancellor in decreeing the execution of the trust, is acting, not in the exercise of the rightful and proper jurisdiction of his court, but as the delegated minister of a royal prerogative. No reasons have been given, nor authorities cited, to induce us to change or modify the opinion which we then expressed, that discretionary powers similar to those which are exercised by the Lord Chancellor as the delegate of the crown, have never been exercised or claimed by the Courts of Equity in this State, and cannot be assumed without an entire disregard of the principles upon which our government is founded. The English cy pres doctrine in its application to charitable uses, and in both the branches. into which it is divided by the learned counsel for the appellants, is the fruit and result, not of a judicial, but of an arbitrary discretion, contemning and disregarding the rules by which the Court of Chancery in the exercise of its own proper jurisdiction over trusts has invariably been governed. We rejected the doctrine in the case to which we have referred, and we must reject it now; since it cannot be denied that the use which is attached to the present bequest is just as vague and indeterminate as to the persons to be benefitted, as those, which in that case we refused to execute.

Such would be our decision, even if we assented to the doctrine that charitable uses, contravening the general rules of law in relation to trusts and perpetuities, were in this State recognized and sustained by law prior to the adoption of the Revised Statutes. But as we can