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beth, and would, à fortiori, have been supported in
courts of equity." And the Court of Chancery, exBaptist As.
sociation ercising the prerogative of the king as parens patriæ, Hart'sEx’rs, has been constantly in the habit of establishing charitable bequests of this nature.
66 In like manner, says Lord Chancellor Macclesfield, “ in the case of charity, the king, pro bono publico, has an original right to superintend the care thereof, so that, abstracted from the statute of Eliz. relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file informations in Chancery, in the Attorney General's name, for the establishment of charities.” So also, Lord Keeper Henly says, 66 and I take the uniform rule of this court, before, at, and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses. Thus, though devises to corporations were void under statute Hen. 8., yet they were always considered as good in equity, if given to charitable uses.” The powers of the Court of Chancery over these subjects, are derived from, and exercised according to the civil law.d Lord
“ the cases have proceeded upon notions adopted from the Roman and civil law, which are very favourable to charities, that legacies given to public uses, not ascertained, shall be applied to some
a Porter's case, 1 Co. Rep. 22. b. Plowd. 522,
d 3 Bl. Com. 476. White v. White, 1 Bro. Ch. Cas. 15. Moggridge v. Thackwell, 7 Ves. 36.
proper object.”* By that law, bequests for charitable purposes, ad pios usos, are not void for uncer
Baptist Astainty. But, even supposing all the powers of the sociation English Court of Chancery over charities to have Hart'sEx'rs. been originally derived from the statute of Elizabeth, still it does not follow, that the courts of the United States have not all the powers which the English courts of equity possessed, when this country was separated from the British empire. The chancery system originated in various sources; in the peculiar jurisprudence of the court, which may be denominated its common law; in statutes ; and in the authority of the Chancellor, as keeper of the king's conscience. It is difficult to find any chancery decisions wholly purified from the influence of statutory provisions. The grant of equity powers in the constitution, to the national judiciary, extends “ to all cases in equity." It is not limited to those cases which arise under the ordinary jurisdiction of the Court of Chancery. This is not a question of local law, nor can the equity jurisdiction of the United States' courts depend upon the enactment or repeal of local statutes. This court has already determined, that the remedies in the court of the United States, in equity, are to be, not according to the practice of State courts, but according to the principles of equity as known and practised in that country from which we derive a knowledge of those principles. In England, this bequest would, unquestionably, be sustained. The Association, which was
à White v. White, 1 Bro. Ch. Cas. 15.
the object of the testator's bounty, though unincorpo
rated at the time, was certainly as definite a body as the Baptist As
sixty pious ejected ministers,” in one case," or “the HartsEx'rs. charitable collections for poor dissenting ministers
living in any county in England,” in another. Nor was it necessary that they should be incorporated, in order to take. A devise by an impropriator, directly “to one who served the cure, and all who should serve it after him,” &c. has been carried into effect. So, if the devise be to a charitable use, though the object be not in esse, and though it depend on the will of the crown, whether it shall ever be called into existence, equity will establish it."
Mr. Leigh, contra, contended, that the Association could not take the bequest, neither in their individual nor in their collective capacity. Not as individuals; because the persons composing the Association were continually fluctuating, and were not designated, nor indeed known, at the time of the bequest. No personal benefit was intended to them. The testator's intent was to constitute the Association, in its collective capacity, trustee of the fund for this charitable purpose ; and whether the trust can be carried into effect or not, they cannot take individu
a The Attorney General v. Baxter, 1 Vern. 248. Attorney General v. Hughes, 2 Vern. 105.
b Walker v. Childs, Amb. 524. C Anon. 2 Vent. 349.
d Lady Downing's case, Amb. 592. Ayliff v. Dodd, 2 Atk, 328. The Attorney General v. Oglander, 3 Bro. Ch. Cus. 166, The Attorney General v. Bowyer, 3 Ves. jun. 725.
ally to their own use." Nor can they so take in their collective capacity, because not incorporated at
Baptist Asthe time : and the subsequent incorporation does not sociation help their case. Therefore, this is to be regarded HartsEx’r. as a bequest to charitable uses, without the intervention of trustees to take the legal estate and fulfil the uses. According to the law of Virginia, which must govern in this case, such a trust cannot be carried into effect by any court in any mode. Had such a case occurred in England, it is admitted that the Court of Chancery would carry the trust into effect by supplying legal and capable trustees to take and hold the fund for the objects of the testator's charity; or, if those objects were not designated in the testator's will with sufficient certainty, would execute it, upon the doctrine of cy pres, for objects ejusdem generis, according to a scheme digested by the master. But the Court of Chancery in England exercises such powers solely in virtue of the statute of the 130 Eliz. All ancient precedents of the exercise of such powers, to effect such charitable uses, are expressly stated to be founded on that statute. As all the early decisions are founded on the statute, so the more modern cases are founded on the authority of the ancient; with this only extension of their principle, that although the statute merely provides that
a Morrice v. The Bishop of Durham, 9 Ves. 399. S. C. 10 Ves. 522.
6 8 Vin. Abr. tit. Devise, H. pl. 1. Woodmore v. Woodroffe, Amb. 636.
c The Attorney General v. Rye, 2 Vern. 453. Rivett's case, Moor, 890. Pigott v. Penrice, 2 Eg. Cas. Abr. 191. pl. 6. The Attorney General v. Hickman, Ib. 193. pl. 14.
charitable donations shall be applied to such of the
charitable uses therein expressed, for which they Baptist As
were appointed by the donors or founders, the Court Hart'Ex’rs
, of Chancery has gone a step farther, and held upon
the equity of the statute, that where objects of charity are in any way pointed out, however vaguely and indefinitely, the Court will apply the fund to charitable uses of the same kind with those intended by the donor, according to a scheme digested by the Master. All the elementary writers and compilers concur in deducing the jurisdiction of the English Court of Chancery over charitable bequests from the statute of Eliz.; tracing all the powers of the Court, as a court of equity, over this subject, to that source; its liberality and favour toward charitable donations ; its practice of supplying all the defects of conveyances to charitable uses; of substituting trustees where those named by the donor fail before the vesting of the legal estate ; and of taking on itself the execution of the trust, where incapable, or no, trustees are appointed by the donors. Indeed, no donation is considered in England as a donation to charitable uses, unless for such uses as are enumerated in the statute of Eliz., or such as are analogous. The very signification of
a Barlis v. The Attorney General, 2 Atk. 239. White v. White, 1 Bro. Ch. Cas. 12. Moggridge v. Thackwell, 3 Bro. Ch. Cas. 517. S. C. I Ves. Jun. 464. S. C. 7 Ves. 36.
6 2 Bl. Com. 376. 2 Fonbl. Eq. 213. Roberts on Wills, 213, 214. 1 Bac. Abr. tit. Ch. Uses, 5 Vin. Abr. same tit. i Burn's Eccles. Law, same tit.
c The Attorney General v. Hewer, 2 Vern. 387. Brown v. Yeale, 7 Ves. 50. note c. Morrice v. The Bishop of Durham, 9 Ves. 399. S. C. 10 Ves. 540.