neither this act, nor anything therein contained, shall be any way prejudicial or hurtful to the jurisdiction of the Ordinary, but that he may lawfully, in every cause, execute and perform the same, as though this act had never been had or made."

And this was full seventy years before the statute of distributions -the Ordinary having jurisdiction, as already stated, over trusts and of assets and property devoted to pious uses by will or distributable for such uses in cases of intestacy.

Whether the purposes of the framers of the act were such as I have imputed or not, the adjudged cases show that the statute performed these objects; and that in interpreting it, and by force of it alone, the commissioners and the Court of Chancery adopted most of the rules regulating gifts to pious uses which had prevailed in the Ecclesiastical Courts, and held those good which at common law were void. (See Opinion of SELDEN, J., 14 N. Y., 399.) I say, there fore, that it was adjudged to have introduced a new set of principles in the administration of charitable uses, as well by commissioners under the statute as upon original bills in Chancery, and relieved such uses from the stringest rules of the common law. And I submit that this is demonstrated by the authorities to which I shall now call the attention of the court.

I refer first to Nelson's Lex Testamentaria (ed. of 1724), at page 137. He was the author of the Chancery Reports, and of many other works of considerable merit, and was a laborious and voluminous writer. This is the second edition, and I think that a book published at that period by one familiar with the then existing state of the law, may well be regarded as crystalizing the rule as it was then understood, with substantial accuracy. Now, he says:

"Where lands, rents, goods, or moneys are given or devised to any of the purposes following, it is accompted a gift or devise to a charitable use (naming those in the Statute of Elizabeth), and the use shall be good, where the donor or testator had a capacity to give or devise, and was entitled to such an estate as he had though the conveyance is defective.

"1. Either in reference to the party, as by misnaming him, or not well naming him.

"2. In the execution of the estate, as where there is no livery and seisin to a feoffment; no attornment to a grant of a reversion; no surrender to the uses of the will where a copyhold is devised; or a defective recovery by a tenant in tail, who devised the estate tail to a charitable use.

"3. Where the will itself is void in law.

"For in all these and the like cases, the Statute 43 Elizabeth, chapter 4, supplies the defects, and though they cannot be called legal gifts, yet they are good limitations and appointments of the charity, which re the very words of the statute."

This is also substantially affirmed in 1 Burn's Ecclesiastical Law by Phillimore), p. 317 (a), and the same view is there taken of the statute; that it makes wills good, which were invalid before, and prevented the heir and next of kin from succeeding.

Let me refer to some of the cases cited by Nelson (p. 140). One is, that of Damas (Moore, 882, Duke, 72, Bridgman's Duke 362), which came up in 1615, fourteen years after the Statute of 43 Elizabeth.

"A devise to a charity is good, notwithstanding the will is void in law; as where a feme covert was entitled to a debt as administratrix to her former husband, and devised part of it in charity; adjudged, that though the will was void in law, yet it was a declaration of her intent within the statute; so that, if there were assets of the intestate's estate or of her own, the charity shall be supported."

Now, this was a proceeding under the statute of Elizabeth. The commissioners held the charity good, and on appeal Lord Chancellor ELLESMERE said:

"Albeit the will of the lady were void at law, yet it was good; yet it will serve for a declaration upon the statute for charitable uses, so that if there be assets of that estate, or of his own estate that is to execute it, the use shall be supported; for the goods in the hands of the administratrix are all to go and be employed to charitable uses, and kindred and children can have no property nor preheminence in them, but under the charity of the Ordinary. It was confest that when the decree was made by the commissioners the estate would have born it and there was assets, and therefore there was negligence in the management of the estate."

"Wherefore," the report concludes, "Damas was compelled to pay the £400 to the charitable use." And this was many years before the statute of distributions that Damas was compelled to pay the £400, merely by force of the statute of Elizabeth.

Judge DENIO.-Do I understand you to say that this case of Damas was under the statute?

Mr. NOYES.-Yes, sir; most distinctly. And that statute was held to have changed the rule, and authorized the giving of the personalty

and effects to some person other than the Ordinary, and also that it would sustain a charity void but for that statute. It could also repeal, and in many cases was held to have repealed, the statute of wills (Boyle on Charities, 21), or any other statute conflicting with it, and to change the common-law rules of succession. It is clear that there were no means of enforcing the charity except under that statute, else the ordinary remedy by bill or by information would have been adopted. And this method of disposing of the assets took the place of the disposition by the Ordinary to pious uses, to the extent of what was necessary to supply the charity; and this is expressly given as the reason, showing that the next of kin had no right to the assets, except from the charity of the Ordinary.

To show the extent to which the rule was carried, the case of Attorney-General v. Syderfin (1 Vern., 224; 1 Eq. Cas. Abr., 96, pl. 8), may be cited, which came up in 1683, a long time after the one already referred to. In that case no written title to the fund was found, nor any appointment discovered, which, even under the ecclesiastical law, would have carried it to the Ordinary, or to the Crown as parens patriæ.

There, by will, a charge of £1,000 was made on a manor, to be applied to such charitable uses as the testator had, by writing under his hand, formerly directed; but no such writing was found. The Attorney-General, at the relation of the Governors of Christ's Hospital, towards which the testator was alleged to have expressed "good intentions"-said to be the pavement of a place somewhat warmer than most men desire-filed his bill, claiming that the money should be applied for the benefit of the "mathematical boys" of that institution the King, "in whom the application of the charity was," having so manifested his pleasure. The defendant answered that he believed the direction had been canceled and revoked; for, after making the will, the testator had charged several sums upon the land, and the whole estate would scarcely amount to answer all the charges, and the heir would be disinherited and left without provision. The Lord Keeper said:

"It is no question but the charity being general and indefinite (the writing being not to be found), the application of this money is now in the King, and his Majesty having declared his pleasure," &c., he thought it could not better be laid out. He cited Frier v. Peacock (sub nomine, Attorney-General v. Mathews, 2 Levinz, 167), in that court, where the testator had given several charities by his will, and devised the surplus for the good of poor people forever; and a bili

being brought for the benefit of Christ's Hospital by the King's direction, it was so decreed-although there were poor kindred of the testator who insisted that they were within the equity of that general devise to a charity. And yet they were shamefully excluded, although the law then was that any such devise, except to a charity, was void for want of a sufficient description of the objects of the testator's bounty.

This appears by the case of Hazel v. Rumney (cited in the note to 1 Vern., 226), decided in 1733, which held that a devise of a particular sum "to the nearest and poorest of my relations" was void, because "the person to take by a will should be described with certainty," and, within the doctrine of this case, the others just cited could have not been sustained prior to the statute of 43 Elizabeth; for no such jurisdiction by bill was exercised before that time, and no record of any such case is found; that statute, though not directly. proceeded upon, furnishing the analogy and being the foundation of the legal right; aided, in deed, by the exercise of the prerogative of the Crown, appointing the use of assets which had no specific owner. It also embraced an exercise of the rule of the ecclesiastical law as to privileged testaments; in that law non-cancellation being presumed even against the face of the testament itself which showeth a cancellation. The non-cancellation of the bequest was presumed in Attorney-General v. Syderfin, in accordance with this rule.

So much for Nelson and the cases cited by him. He clearly shows - from all his authorities down to the last one cited by him to show that "a devise to a charity was good, notwithstanding the will is void in law"-that the statute of Elizabeth furnished the rule of decision. This was Rolt's case (Moore, 888), known also as Collinson's;" to which I shall again refer. (Nelson, 142.)

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Next, I call the attention of the court to Boyle on Charitable Uses, a writer within the last half century. He takes the same view of the statute of Elizabeth, in substance, as Nelson and Burns; for, after quoting the words of the act, he says (p. 18):

"These we find to be breaches of trust and misemployment of lands and other property 'theretofore given, limited, and appointed or assigned to or for any of the charitable and godly uses therein before rehearsed,' and certainly the student would be little apt to imagine that anything could be found lurking in these words which might tend to enlarge the power of disposition over real estate by deed or will with respect to charitable objects, or, rather, which might take from and deprive the heir in favor of those objects, and enrich them

solely at his expense. By a singular perversion, however, of grammatical construction, it was held that the words 'limited and appointed,' which are in fact merely descriptive of some of the modes whereby property might then, as now, be given or conveyed, were in equity endowed with an extraordinary efficacy. They were considered as curing all such defects as the want of livery of seisin and attornment, which were therefore in charity cases wholly dispensed with. It sustained a remainder without a particular estate to support it."

I will call your attention to the case which he cites: Platt v. St. John's College (Duke, 77; Bridgman's Duke, 379), decided in 1638, thirty-seven years after the statute of 43 Elizabeth was passed. This was a bill by the Master and Fellows of the College to carry into effect the will which devised the lands to them by a wrong name, after a life estate to the wife, for "maintenance of the scholars there." Lord Keeper COVENTRY said:

"Although the college was incorporated by another name than the devise was to them, and therefore might not be capable of it, yet the devise is good to them by the said statute: also, if the heir avoid the estate tail against the wife, at law, yet the remainder to the college shall remain good and be a remainder without a particular estate, which by rules of law cannot be, but these defects in cases of charitable uses, are made good by that statute, by a benign and favorable interpretation thereof for maintenance of charity, as it is in the cases upon statutes for piety and charity."

Now this was not a proceeding by commissioners under the statute, and yet the statute gave the court all its authority to disinherit the heir (who had entered to avoid, and at law was entitled to avoid, the devise), and to confirm a void devise. I say further, that the statute, benevolently construed so as to disregard all settled rules, was adopted by the Court of Chancery as furnishing the rules by which all charitable devises and bequests utterly void or insufficient for want of certainty, were to be upheld in equity. And hence the general impression and the frequent dicta - if not judicial determinationsthat all the powers of the Court of Chancery to sustain such devises and bequests, were derived from that statute; which was an embodiment, in effect, of all the rules of the Papal Ecclesiastical law in regard to privileged testaments. It applied to gifts to charitable uses not deemed superstitious, after the Reformation towards the close of the reign of Henry VIII, and separately enumerated in the first section of that act. This further appears from its provisions, some of which I shall consider for a moment.