prejudice of the others. 4. That the fund having proved insufficient to pay all, the unpaid legatees were entitled to look to the executors themselves for their ratable proportions of the fund, and could not be turned round to demand of the satisfied legatees that they should refund the excess which they had received above their just proportion. And he made an interlocutory decree accordingly. The executors appealed to this court.

Stanard and Johnson, for the executors, cited and relied on Baptist Association v. Hart's Ex'rs, 4 Wheat. 1, on the question relating to the charities, and on the other points raised they cited Lewin v. Lewin, 2 Ves. sen. 415; Attorney-general v. Robins, 2 P. Wms. 23; Crofts v. Lindsey, 11 Vin. Abr., Executors, B. c., pl. 11, p. 430; Holt v. Holl, Id. pl. 16; 1 Ch. Cas. 190; Miller's Ex'r v. Rice, 1 Rand. 438.

Daniel and Nicholas, for the charities, cited Beatty v. Kurtz, 2 Pet. 566; Inglis v. Trustees of Sailors' Snug Harbor, 3 Id. 99; Story's Opinion in Baptist Association v. Hart's Ex'rs, Id. appendix, 481; Attorney-general v. Matthews, 2 Lev. 167; Same v. Syderfen, 1 Vern. 224; Ld. Falkland v. Bertie, 2 Id. 342; Rex v. Portington, 1 Salk. 162; Eyre v. Shaftsbury, 2 P. Wms. 119; White v. White, 1 Bro. C. C. 12, 15; Moggridge v. Thackwell, 7 Ves. 35; Cary v. Abbot, Id. 490; Attorney-general v.. Fowler, 15 Id. 85; Attorney-general v. Price, 17 Id. 371; Mills v. Palmer, 1 Meriv. 54.

Taylor and Leigh, for the unsatisfied legatees, cited: 1 Roper on Leg. Ch. 9; Tilsy v. Throckmorton, 2 Ch. Cas. 132; Coppin v. Coppin, 2 P. Wms. 292-296; Orr v. Kaimes, 2 Ves. sen. 194; Blower v. Morrett, Id. 420; Walcott v. Hall, 2 Bro. C. C. 305; Noel v. Robinson, 1 Vern. 92, 460; Newman v. Barton, 2 Id. 205; Keylinge's case, 1 Eq. Cas. Abr. 239, pl. 25; Brisbane v. Dacres, 5 Taunt. 144; Skyring v. Greenwood, 4 Barn. & Cress. 281; 1 Com. Law Rep. 43, 46; 10 Id. 335, 338; Lawrason v. Davenport, 2 Call, 95; Ruth v. Owens, 2 Rand. 507.

CARR, J. This case involves several very important questions, which I shall consider in the order they were discussed at the bar.

First, then, as to the charities. The attorney-general filed an information and bill to have them applied to the objects for which they were bequeathed, and to enfore the execution of the trusts in respect to them; and the chancellor considering them good and valid, decreed them. It was contended in the argu

ment that this decree was erroneous, because the devise and bequests were vague and indefinite, and therefore void. Let us examine this. The pecuniary legacies of four thousand dollars are, in effect, given to the Roman Catholic congregation, but for the building and support of a chapel; and the ground is given to the trustees to permit the Roman Catholics to build a church on, for the use of themselves and all persons of that religion residing in Richmond. The bare statement seems sufficient to show that under the general rule, as applicable to ordinary legacies, these would be void. Who are the beneficiaries? The Roman Catholic congregation residing in Richmond. And who are they? Suppose you name them to-day; are those the same persons who constituted the congregation yesterday? or who will constitute it to-morrow? Will none remove from or

come to Richmond, to reside? Will none be converted to or from the Roman Catholic religion? For it is to the Roman Catholic congregation for the time being that the legacies are given. This, however, is a point which need not be pressed; for it was not pretended that they could be supported, as legacies to individual persons. But it was strongly insisted, that as charitable legacies they were entitled to the aid and protection of a court of equity; and the practice of the English courts in similar cases was referred to in proof of the position. The course of decisions in England was admitted on the other side, but it was contended that they rested entirely on the statute of charitable uses, 43 Eliz., and did not at all belong to the ordinary powers of a court of equity. This was the only serious question. I certainly shall not discuss it; for I find this completely done to my hand by Chief Justice Marshall, in the case of the Baptist Association v. Hart's Ex'rs. The cases cited and examined and the reasons given by him prove conclusively, to my mind, that in England charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, can not be established by a court of equity, either exercising its ordinary jurisdiction or enforcing the prerogative of the king as parens patriæ, independently of the statute 43 Eliz.; and as that statute, if ever in force here, was repealed in 1792, I conclude that charitable bequests stand on the same footing with us as all others, and will alike be sustained or rejected by courts of equity. I think the bill of the attorney-general must be dismissed.

We come now to the other questions arising between some

of the legatees and the executors. There can be no doubt that the specific legacies are first to be delivered. Next in order are the legacies of fifty thousand dollars to the testator's Spanish relations, fifteen thousand dollars to P. J. Chevallie, and the legacies given to the slaves emancipated by the will. The legacies of this class amount to sixty-nine thousand six hundred dollars. The testator then, after directing all the residue of his estate to be converted into money, directs his executors to pay out of it his funeral expenses, and their own commission; then twenty-six legacies to as many legatees, amounting to one hundred and fourteen thousand dollars, and all legacies which he should bequeath by codicil; and lastly, he creates another residuum, which he bequeathes to residuary legatees. Then come eleven codicils, giving pecuniary legacies to an amount exceeding forty-seven thousand five hundred and fifty dollars. I think the twenty-six legacies bequeathed by the will out of the first general residue, and the pecuniary legacies bequeathed by the codicils, stand all on the same footing. From the passage directing that Mrs. Fisher should be paid her legacy as soon as possible, knowing she was in need, and another in the first codicil, saying that as to the payment of the legacies left by his will, he directs his executors to begin to pay those that they think most in need, and a similar direction as to his brother Francisco's legacy, it was contended that the testator meant to place Mrs. Fisher, and those who should be thought by the executors most needy, on higher ground than the other legatees, and to authorize the executors to pay them in preference to the others in case of a deficiency; and this was said to be rendered more clear by that clause in the fourth codicil, by which he "desires his executors to use their best judgment in making the sales of his real estate, and not to hurry them, as it might create sacrifices."

But I do not think that the testator ever intended such preference or dreamed of such deficiency. He believed that the fund would be abundant for all the legacies; and only feared that to hurry the sales at an unfortunate time might injure his Spanish relations, who were to have the residuum. He wished this residuum as large as possible, and therefore cautioned the executors; but he never thought about exclusive preferences among the second class of legatees. The executors, however, have gone on to pay some of the legatees entirely, others partially; and it is now discovered that the fund will fall far short of paying all the claims upon it. In this state of

things, the unsatisfied legatees insist that the executors are liable to them for their fair and equal proportion of the whole fund; while the executors contend that they must be credited by the full amount of all legacies, or parts of legacies paid, leaving the unpaid legatees to make those who have been overpaid, account to them for the excess. I have the fullest confidence that the executors have proceeded honestly in this business; but, assuredly, most incautiously. They had the fund in their hands, the will for their guide, and the best counsel at their call; they could have secured themselves, either by paying pari passu, or by taking bonds to refund, or by bringing the whole affair under the control of the chancellor. The legatees could do nothing to prevent improper disbursements; their claim was against the executors alone, and they have made it by suit. Would it not now be most cruel injustice to tell them, the executors, to be sure, ought to have paid you your proportion of the fund; but they have, by mistake, paid it to other legatees; and your only remedy now is, to seek them over the face of the earth, and call them to account? I can never agree to tell them I think it but simple justice to give them a decree against the executors for their fair proportion of the whole fund, and let the executors, if they can (a question which I pass by, as it is not before us), recover from the overpaid legatees. It was also contended that the defect of assets resulting from the general and rapid fall in the value of property, presents a case where equity will relieve executors from the effects of what the law would call a devastavit; and the cases from 11 Vin. Abr. 430, and 1.Ch. Cas. 190, are cited. In one, the property was consumed by the great fire in London; in the other, it was taken away by the restoration; these were cases in which no vigilance or prudence of the executor could have protected him. But the case before us is different; safety was perfectly in the executor's power.

80.

CABELL, J. I concur in the opinion just delivered, and in the decree which is to be entered; but so far as it charges the executors, I own with much reluctance. For I am quite sure that they have acted with the utmost good faith, and that they were betrayed into the excess of payments to some of the lega tees, over and above their just proportion, by a delusion as to the value of the subject on which the legacies were charged, not peculiar to themselves, but as universal at the time as it has proved to have been great.

AM. DEO. VOL. XXIV-42

TUCKER, P. It can not be denied that the principal question in this case is one of the deepest interest and importance. It is worthy of the diligent research and great ability which have been devoted to the discussion of it, and will justify the enlarged view which may be found necessary in the decision; I mean the question as to the charities.

It is contended, on the one hand, that these several bequests are void and ineffectual, for uncertainty as to the beneficiaries who are to take under them; and on the other, that they are good as bequests to charitable purposes, which the law will support, and which the court of chancery, upon the general principles of its equitable jurisdiction, will enforce at the instance of the attorney-general.

There is no principle supposed to be more perfectly settled in reference to conveyances than that every deed must have sufficient certainty as to the grantee who is to take under it. If there be such uncertainty as to the grantee, that it can not be known distinctly who is to take by the grant, it is ipso facto void for that uncertainty. This, it would seem to me, was not merely a principle of common law, but the dictate of common sense; and hence this defect is equally fatal, whoever may be the grantor, for it is a defect, not of power in him, but growing out of the utter impossibility of effectuating the grant by reason of the undefined character of the grantee. The absurdity of such a grant can not be better exposed than by an attention to its operation in this very case, if it could be supposed to be valid. It is obvious that the bequest here, though for building a church, is a bequest to the Roman Catholic congregation in Richmond, and it is equally obvious that the testator designed no individual benefit to the members of that congregation; yet, as the society or congregation is not incorporated, it may well be asked, who are to be regarded as the beneficiaries entitled to the advantage of this bequest? Who can present himself as a claimant of this aid designed for the Roman Catholic religion?

If membership of the congregation is to be the test of right, then the title will be in a continuing state of flux. What belongs to A. to-day, will, by his removal from Richmond, or apostacy from the church, cease to be his to-morrow; whereas B., by removal to the city, or conversion to the church, might, by the converse of the principle, acquire to-morrow a right which he has not to-day. Moreover, who would be the legally constituted triers of the fact of conversion or apostacy whereby