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the English statute of wills; and the object of the law was to prevent property from being locked up in perpetuity, and also to prevent languishing and dying persons from being imposed upon by false notions of merit or duty, to give away their estates from their families. In times of popery, said Lord Hardwicke, the clergy got nearly half the real property of the kingdom into their hands, and he wondered they had not got the whole." But under the statute of 43 Eliz., commonly called the statute of charitable uses, a devise to a corporation for a charitable' use is valid. The New-York Revised Statutes have turned the simple exception in the English, and in the former statute of New-York, into an express prohibition, by declaring, that no devise to a corporation shall be valid, unless the corporation be expressly authorized to take by devise." There was, however, the same construction of the pre-existing statutes; and, though the English statute of charitable uses has not been re-enacted either in New-York, New-Jersey,

Lord Hardwicke, 1 Vesey, 223.

This was so held in Flood's case, Hob. Rep. 136; and the court, in that case, admitted that the devise was void in law, because contrary to the statute of wills, but that such a devise in mortmain was clearly within the relief of the statute of Elizabeth. Mr. Crosley, in his learned and able Treatise on Wills, 116, 117, condemns this decision, as a strained construction, and a repeal of the exception in the statute of wills. The statute of 9 Geo. II., c. 36, has since corrected this construction, and rendered all devises for charitable uses void, except to the two universities, and certain colleges. The statute of 9 Geo. II. was not in any sense a mortmain act, for it neither prohibited nor authorized alienation in mortmain, or to a corporation. It only avoided all devises to charitable uses, for at common law it was lawful to devise to individuals to charitable uses, and the statute allows the application of property by deed to charitable purposes. Its sole object was to protect persons in extremis from imposition. The Master of the Rolls, in Corbyn v. French, 4 Vesey, 427. Mellick v. The Asylum, 1 Jacob's Rep. 180. • Vol. ii. 57, sec. 3.

This prohibition extends to a devise of any estate and interest in real property descendible to heirs, as well as real estate itself. Wright v. Trusdees of Methodist Episcopal Church, 1 Hoffman's Ch. Rep. 225.

• Jackson v. Hammond, 2 Caines' Cases in Error, 337.


Pennsylvania, or Maryland, nor probably in any of the United States, the better opinion, in point of authority, would, however, seem to be, that a devise of a charity, not directly to a corporation, but in trust for a charitable corporation, would be good. This is on the principle that a court of equity, independent of statute, and upon the doctrine of the common law, has jurisdiction over bequests and devises to charitable uses; and will enforce them, provided the objects be sufficiently definite, so as to shut out all arbitrary discretion resting upon the doctrine of cypress."

It has not been repealed, but subsists in full force in Kentucky. Vide supra, vol. ii. 285.

Orphan Asylum Society v. M'Cartee, 9 Cowen's Rep. 437. Witman v. Lex, 17 Serg. & Rawle, 88. Lord Redesdale, in Attorney General v. Mayor of Dublin, 1 Bligh's Rep. 347. Moore v. Moore, 4 Dana's Ken. Rep. 357. The case of Dashiell v. Attorney General, 5 Harr. & Johns. 392, is a strong authority in opposition to the doctrine of the other American cases which are mentioned; but in that case, there was no provision by the will for designating the poor who were to be relieved. The object was too indefinite. See the additional authorities cited, supra, vol. ii. p. 285-288, where this point is also mentioned and discussed. In the case of Inglis v. The Trustees of the Sailors' Snug Harbor, 3 Peters' U. S. Rep. 99, it was admitted that a subsequent act of the legislature would give full validity and effect to a devise for charitable uses, where the designated object or trustees were not otherwise sufficient or competent. So in the case of the Trustees of the McIntyre Poor School v. The Zanesville C. & M. Company, 9 Ohio Rep. 203, it was held, after a very elaborate and learned discussion, that a bequest for charitable uses, where the objects were sufficiently defined, and the person designated as trustee acquired a capacity to hold by a subsequent act of incorporation, took effect as an executory devise. And in Bartlett v. Nye, 4 Metcalf, 378, it was held that a devise of real estate to an unincorporated society, for charitable uses, was valid, and the heirs would be compelled to execute the trust. It is to be regretted, that in the recent revision of the laws of NewYork, this very interesting and vexatious question was not put at rest by an explicit provision, either in favour of the equity jurisdiction over such charities, to the extent, perhaps, of the statute of Elizabeth, or else by an express denial of a power to devise a charity to any persons whatever, in trust even for a charitable corporation. In Virginia, in Gallego v. Attorney General, 3 Leigh, 450, the equity jurisdiction over charities was elaborately discussed. The English statute of charitable uses, (43 Eliz.) and all the statutes of mortmain, were repealed long since in Virginia. There is no statute restraint

Witnesses to a will are rendered incapable of taking any beneficial interest under it, except it be creditors

in that state upon devises to corporations, and a devise to a corporation for a charitable purpose, if the charity be proper and definite, is valid. Lomax's Digest, vol. iii. 12. It was held, in conformity with Ch. J. Marshall's opinion, in 4 Wheaton, 1, that there was no common law jurisdiction over devises to charitable uses prior to the statute of Elizabeth; and that without the aid of statute authority, the courts of chancery had no jurisdiction to decree charities were the objects or beneficiaries were indefinite or uncertain. President Tucker, in the case in Leigh, exposed with great force the arbitrary and unreasonable nature of the cy-pres principle, when applied to vague or indefinite charities. On the other hand, in Griffin v. Graham, 1 Hawke's N. C. Rep. 96, the testator gave all the residue of his estate to his executors in trust, that out of the rents and profits they should establish a school for the maintenance of indigent scholars, and the trust was supported, though the object was very general, and not so specific as that in Dashiell v. Attorney General, supra. But the doctrine of execution cy-pres does not prevail in North Carolina; and if the intention of the testator, in respect to a charity for religious purposes cannot be literally fulfilled, a trust results for the heir, or next of kin, as the case may be. M'Auley v. Wilson, 1 Bad. § Dev. N. C. Equity Cases, 276.

In the case of Coster v. Lorillard, in the New-York Court of Errors, in December, 1835, Ch. J. Savage said, that the doctrine of cy-pres was statute law; and he cited several passages from the New-York Revised Statutes, (vol. i. 748, sec. 2. Ibid. 723, sec. 17. Ibid. 726, sec. 38,) to show that the courts are to carry into effect the intention of the party to an instrument, as far as it can be done consistently with law. He said, that in that case, if the trust had been lawful, the estate in the trustees ought to have been sustained, not during the natural lives of the twelve nephews and nieces, but during the natural lives of such two of the nephews and nieces as should soonest die. See the case, supra, p. 273, and p. 271, and the necessity of designating the two lives.

The doctrine of the English court of chancery is much broader than any that has been inculcated in America. If a bequest be for charity, it matters not how uncertain the objects or persons may be; or whether the bequest can be carried into exact execution or not; or whether the persons who are to take be in esse or not; or whether the legatee be a corporation capable in law to take or not. In all these, and the like cases, the court will sustain the legacy, and give it effect according to its own principles. Where a literal execution becomes inexpedient or impracticable, the court will execute it cy-pres. The crown has a right to interfere where a charitable object fails, and it must signify in chancery the charitable purpose the fund shall be applied to. Simon v. Barber, 1 Tamlyn, 14. Attorney General v. Andrew, 3 Vesey, 633. Attorney General v. Boyer, ibid. 714. Moggridge v. ThackVOL. IV.


whose debts, by the will, are made a charge on the real estate. This was by the statute of 25 George II.; and it has been generally adopted in the United States as a salutary provision." The English statute was the consequence of the decision of the K. B. in Holdfast v. Dowsing which established, after three several arguments at the bar, that whoever took any interest under a will was an incompetent witness to prove it. This determination, says Sir William Blackstone, threatened to shake most of the titles in the kingdom that depended on devises by will. The statute has been recently re-enacted in New

well, 7 ibid. 36. Mills v. Farmer, 1 Merivale, 55. Bennett v. Hayton, 2 Beavan, 81. Attorney General v. The Ironmonger's Company, ibid. 313. The case of the Trustees of the Baptist Association v. Smith, 3 Peters' U. S. Rep. App. 484. In this latter case, Mr. Justice Story investigates the doctrine with his usual research and accuracy; and he concludes, (p. 497, see also to S. P. his Comm. on Equity Jurisprudence, vol. ii. 410,) that the jurisdiction of the court of chancery over charities, where no trust is interposed, or there is no person in esse capable of taking, or where the charity is of an indefinite nature, is not to be referred to the general jurisdiction of that court, but that it sprung up after the statute of Elizabeth, and rests mainly on its provisions. The conclusion upon the authorities in England, drawn by Lord Eldon, is, that where there is a bequest to trustees for charitable purposes, the disposition must be in chancery, under a scheme to be approved by a master; but where the object is charity, and no trust is interposed, it must be by the king, under his sign manual; for in such cases, the king, as parens patriæ, is deemed the constitutional trustee. Moggridge v. Thackwell, 7 Vesey, 86.

In this country, the legislature or government of the state, as parens patriæ, has the right to enforce all charities of a public nature, by virtue of its general superintending authority over the public interests, where no other person is intrusted with it. The jurisdiction vested by the statute of Elizabeth over charitable uses is said to be personally in the chancellor, and does not belong to his ordinary or extraordinary jurisdiction in chancery. Lord Hardwicke, in Corporation of Burford v. Lenthall, 2 Atk. Rep. 553. Story, J., ub. sup.

The statute of Geo. II., making void a legacy to an attesting witness, was never in force in North Carolina or Tennessee. 3 Humph. Tenn. Rep. 278.

Str. Rep. 1253.

• 2 Com. 377.

York, with some qualifications. The restoration of the competency of subscribing witnesses, by declaring their

• New-York Revised Statutes, vol. ii. 57, sec. 6. Ibid. 65, sec. 50, 51. The statute (p. 58, sec. 12,) requires all the witnesses to the will, who are living in the state, and of sound mind, to be produced and examined, on proof of the will before the surrogate; and yet the provision is, that the beneficial devise, legacy, or interest, to a witness, is void, in case "such will cannot be proved without the testimony of such witness." There seems to be no room for the application of this exception, if all the witnesses must be produced and examined. But if such a witness would have been entitled to a share of the estate, if the will had not been made, so much of such share is saved to him, as will not exceed the value of the devise to him; and he shall recover that share of the devisees or legatees. This last is a very equitable qualification of the general rule; and it has been assumed in the Revised Statutes of Illinois, published in 1829.

The English statute of 1 Victoria, ch. 26, declares, that wills are not to be invalid on account of the incompetency of attesting witnesses, but beneficial devises or gifts to an attesting witness were declared void. If real or personal estate be charged with debts, the creditor, whose debt is so charged, is declared to be a competent witness, and an executor may be admitted to prove the will. The statute of 25 Geo. II., c. 6, is repealed. The word credible as to the witness is dropped. By the English statute of 6 & 7 Vict. c. 85, 22 August, 1843, the objection of incompetency to a witness in any case as far as interest and infancy go, is abolished. But the provision does not extend to the case of a party to the record; or to the husband or wife of the same.

The insanity of the testator is a question of fact to be passed upon by the surrogate, in respect to a will of personal estate. But his decision does not conclude the question so far as the will contains a devise of real estate. That can only be set at rest by an issue from chancery, or a trial at law. Bogardus v. Clarke, 1 Edw. Ch. Rep. 266. The question of insanity in a testator, when partial, and going to defeat the will, is powerfully and elaborately discussed by Sir John Nicholl, in the Prerogative Court of Canterbury, in the case of Deer v. Clark, 3 Addams, 79. He considers delusion to be the true criterion of insanity, which is when the patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and wherever, at the same time, having once so conceived, he is incapable of being, or, at least, of being permanently reasoned out of that conception; such a patient is said to be under a delusion, and delusion in that sense, and insanity are almost, if not altogether, convertible terms. The opinion of all the judges was taken in the House of Lords in June, 1847, as to the proper questions for the jury on trials in criminal cases, under the defence of insanity. See 2 N. Y. Legal Observer, 241, and Wharton's American Criminal Law, edit. Philadelphia, 1846, p. 12. .

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