in the legal sense. It is only when a gift might be applied to benevolent purposes which are not charitable in that sense, that the gift fails. Saltonstall v. Sanders, 11 Allen (Mass.), 446; Suter v. Hilliard, 132 Mass. 412; De Camp v. Dobbins, 29 N. J. Eq. 36; Adye v. Smith, 44 Conn. 60; In re Jarman's Estate, 8 Ch. D. 584. The conditions subsequent have no greater effect than the corresponding conditions in the tenth clause, already considered.

The next clause of the will contains a provision applicable to the tenth, eleventh, and twelfth clauses, and is as follows: :

"Thirteenth. Should either one or more of the corporate bodies or institutions named in the preceding items of my will attempt to sell, alienate, or otherwise dispose of the property and estate therein devised, contrary to the terms and conditions therein set forth, or should there be any levy on the same to satisfy the debts of said corporation, then I hereby direct my executors or legal representatives to repossess and enter upon said property or estate as to which the conditions may be so broken or violated, and in that event I do hereby give and devise the said property so entered upon and repossessed unto the Savannah Female Orphan Asylum."

There is nothing in this clause by which the heirs at law or next of kin can be benefited, in any possible view. If the conditions against voluntary alienation and levy of execution are invalid, the previous devises stand good. If those conditions are valid, the devise over to the Savannah Female Orphan Asylum, an undoubted charity, will take effect; for as the estate is no more perpetual in two successive charities than in one charity, and as the rule against perpetuities does not apply to charities, it follows that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may or may not take place within the limit of that rule, the limitation over to the second charity is good. Christ's Hospital v. Grainger, 16 Sim. 83, 100; 1 Macn. & Gord. 460; 1 Hall & Twells, 533; McDonogh v. Murdoch, 15 How. 367, 412, 415; Russell v. Allen, ante, p. 163.

The fourteenth clause of the will contains a devise and be

quest to the Georgia Historical Society to establish a public library and museum, and is as follows:

"Fourteenth. I hereby give, devise, and bequeath to the Georgia Historical Society and its successors all that lot or parcel of land, with the buildings and improvements thereon, fronting on St. James Square, in the City of Savannah, and running back to Jefferson Street, known in the plan of said city as lot letter N, Heathcote Ward, the same having been for many years past the residence of my family, together with all my books, papers, documents, pictures, statuary, and works of art, or having relation to art or science, and all the furniture of every description in the dwelling-house and on the premises (except bedding and table service, such as china, crockery, glass, cutlery, silver, plate, and linen), and all fixtures and attachments to the same; to have and to hold the said lot and improvements, books, pictures, statuary, furniture, and fixtures to the said Georgia Historical Society and its successors, in special trust, to keep and preserve the same as a public edifice for a library and academy of arts and sciences, in which the books, pictures, and works of art herein bequeathed, and such others as may be purchased out of the income, rents, and profits of the bequest hereinafter made for that purpose, shall be permanently kept and cared for, to be open for the use of the public on such terms and under such reasonable regulations as the said Georgia Historical Society may from time to time prescribe; but this devise and bequest is made upon condition that the Georgia Historical Society shall cause to be placed and kept, over and against the front porch or entrance of the main building on said lot, a marble slab or tablet, on which shall be cut or engraved the following words, to wit: TELFAIR ACADEMY OF ARTS AND SCIENCES, the word 'Telfair' being in larger letters and occupying a separate line above the other words; and on the further condition that no part of the buildings shall ever be occupied as a private residence or rented out for money, and none but a janitor and such other persons as may be employed to manage and take care of the premises shall occupy or reside in or upon the same, and that no part of the same shall be used for public meetings or exhibitions, or for eating, drinking, or smoking, and that no part of the lot or improvements shall ever be sold, alienated, or encumbered, but the same shall be preserved for the purposes herein set forth. And it is my wish that whenever the walls of the building shall require renovating by paint or otherwise, the present color and design shall be adhered to as far as

practicable. For the purpose of providing more effectually for the accomplishments of the objects contemplated in this item or clause of my will, I hereby give, devise, and bequeath to the Georgia Historical Society and its successors one thousand shares of the capital stock of the Augusta and Savannah Railroad of the State of Georgia, in special trust, to apply the dividends, income, rents, and profits arising from the same, to the repairs and maintenance of said buildings and premises, and the payment of all expenses attendant upon the management and care of the institution herein provided for, and then to apply the remaining income, rents, and profits in adding to the library, and such works of art and science as the proper officers of the Georgia Historical Society may select, and in the preservation and proper use of the same, so as to carry into effect in good faith the objects of this devise and bequest."

The Georgia Historical Society was incorporated by a statute of the 19th of December, 1839, the preamble of which recites that "the members of a society instituted in the City of Savannah for the purpose of collecting, preserving, and diffusing information relating to the history of the State of Georgia in particular, and of American history generally, have applied for an act of incorporation." The first section makes them a corporation with the usual powers, and especially "to purchase, take, receive, hold, and enjoy, to them and their successors, any goods and chattels, lands and tenements, and to sell, lease, or otherwise dispose of the same, or any part thereof, at their will and pleasure: Provided, that the clear annual income of such real and personal estate shall not exceed the sum of five thousand dollars: And provided, also, that the funds of the said corporation shall be used and appropriated to the purposes stated in the preamble of this act, and those only." And the fourth section declares that the act of incorporation shall be a public act, "and shall be construed benignly and favorably for every beneficial purpose therein intended."

It is stated in the bill, and admitted by the demurrer, that the net income of the Georgia Historical Society from property held by it at the time of the death of the testatrix was between $3,000 and $4,000, and that the income of the property now bequeathed to it will add $7,000 to that inIt is argued for the appellants that because the effect

come.

of the gift will be to increase the property of the corporation to double the amount which the corporation is allowed by the proviso in the first section of its charter to hold, the whole gift is void.

But there are two conclusive answers to this argument: 1st. Restrictions imposed by the charter of a corporation upon the amount of property that it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the State which created it. Runyan v. Coster, 14 Pet. 122, 131; Smith v. Sheeley, 12 Wall. 358, 361; Bogardus v. Trinity Church, 4 Sandf. (N. Y.) Ch. 633, 758; De Camp v. Dobbins, 29 N. J. Eq. 36; Davis v. Old Colony Railroad Co., 131 Mass. 258, 273.

2d. By an act of amendment of the 28th of October, 1870, the provisos in the first section of the original charter are repealed. It is contended that the act of 1870 is unconstitutional and void, as being a grant by the legislature of corporate powers and privileges, in contravention of this provision in the Constitution of the State: "The General Assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, navigation, mining, express, lumber, manufacturing, and telegraph companies; nor to make or change election precincts; nor to establish bridges or ferries; nor to change names or legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts." Constitution of Georgia of 1868, art. 3, sect. 6, § 5; Code of 1873, sect. 5068. But the words "corporate powers and privileges," as here used, signify the corporate franchise, the aggregate powers and privileges which constitute a corporation, not every separate power and privilege which may be conferred upon a corporate body. The object is to take away from the legislature, and to vest in the courts, under its direction, for the future, the creation of private corporations for literary, religious, charitable, or other purposes, except those specially excepted; but not to prevent the legislature from amending the charters of corporations already existing, and modifying or enlarging their powers, either by repealing former restrictions or otherwise. The act of 1870 is therefore constitutional and valid.

That a devise and bequest "to keep and preserve as a public edifice" a house containing a library and an academy or museum of works of art and science, "to be open for the use of the public" on such terms and under such reasonable regulations as the trustees may from time to time prescribe, is a valid charity, cannot be doubted. British Museum v. White, 2 Sim. & Stu. 594; Drury v. Natick, 10 Allen (Mass.), 169; Donohugh's Appeal, 86 Pa. St. 306. The directions tending to perpetuate the memory of the founder do not impair its public character or its legal validity. In the cases of Thomson v. Shakespeare, H. R. V. Johns. 612, and 1 D., F. & J. 399, and of Carne v. Long, 2 id. 75, on which the appellants rely, the gifts failed because not exclusively devoted to a public charitable use, the definition in the one case including purposes that might not be charitable, and the bequest in the other being to a private library established for the benefit of the subscribers alone. See Beaumont v. Oliveira, Law Rep. 4 Ch. 309, 314, 315.

A corporation may hold and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have authority itself to establish or to spend its corporate funds for. A city, for instance, may take a devise in trust to maintain a college, an orphan school, or an asylum. Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 id. 367; Perin v. Carey, 24 id. 465. There is some ground for holding that the objects of a historical society would be promoted by administering a devise and bequest to maintain for the public instruction and benefit a house containing a collection of books, documents, and works of art, with other such books and works to be selected by the officers of the society and purchased out of the surplus income; and that the purposes of the trust are, in the words of Mr. Justice Story in Vidal v. Girard, 2 id. 189, "germane to the objects of the incorporation," and "relate to matters which will promote, and aid, and perfect those objects."

But if any doubt remains of the capacity of the Georgia. Historical Society to assume and execute those charitable trusts, it would be within the ordinary jurisdiction of a court