De Camp v. Dobbins.

of the full annual value of $2,000. If a corporation takes land by grant or devise, in trust or otherwise, which, by its charter, it cannot hold, its title is good as against third persons and strangers; the state alone can interfere. Perry on Trusts, § 45; Bogardus v. Trinity Church, 4 Sandf. Ch. 633; Wade v. Am. Col. Soc., 7 S. & M. 663. And again, if the limitation did, in fact, exist, the legislature might remove the restriction to permit the corporation to execute the trust or authorize it to receive the gift and administer the trust, notwithstanding the limitation. This court, which will not suffer a trust to fail for want of a trustee, will uphold a trust for a reasonable time, when necessary, in order to enable the trustee to obtain the requisite authority to take and execute it. Bridges v. Pleasants, 4 Ired. Eq. 26, 30; Inglis v. Trustees of Sailors' Snug Harbor, 3 Pet. 115. But, again, the restriction insisted upon does not, in fact, exist. It was removed by the act of 1872, (P. L. 1872, p. 101,) which provides that any religious society incorporated, or to be incorporated, under the act under which the corporation which is made trustee in this case was incorporated, may purchase, hold and dispose of any real estate they may deem expedient, provided it shall not be used by the corporation for but one of two purposes, that of having on the

829; Commonwealth v. Lodge, 2 Gratt. (Va.) 579; Swift v. Tousey, 5 Ind. 196; see Ludlam v. Lullam, 26 N. Y. 356, 362; Coburn v. Harvey, 18 Wis. 156; Paul v. Ball, 31 Tex. 10.

(2.) It must be applicable to our situation-e. g., the following acts do not extend:

Bankruptcy acts of England. Vanuxem v. Hazelhurst, 1 South. 192, 195: see Bunny v. Hart, 11 Moore P. C. C. 189.

Eshelman v.

Collateral warranties, 4 and 5 Ann, c. 16 (A. D. 1706). Hoke, 2 Yeates (Pa.) 509; see Den v. Crawford, 3 Hal. 90. Benefit of Clergy. Fuller v. State, 1 Blackf. (Ind.) 63. Copyright laws, 8 Ann, c. 19 (A. D. 1710). Wheaton v. Peters, 8 Pet. 591, 660.

Quia emptores, 18 Edw. I, c. 1 (A. D. 1290). Ingersoll v. Sergeant, 1 Whart. 337; Wallace v. Harmstad, 44 Pa. St. 492.

"The Black Act," 9 Geo. I (A. D. 1722). State v. Campbell, Charlt. (Geo.) 166.

Maintenance and champerty, 32 Hen. VIII, c. 9 (A. D. 1541). Den, Bickham v. Pissant, Coxe 220, 223; Morris v. Vanderen, 1 Dall. 64, 67;

De Camp v. Dobbins.

premises a building for the worship of God, or for education or the administration of charity to the bodies or souls of men. The corporation, therefore, is not, in fact, restricted in its ownership of property to that which will not exceed in value $2,000 a year. It is, however, enough to say on this head, as has been before suggested, that if the corporation exceeds the prescribed amount, though it be by an original purchase, nobody but the state can interfere with the holding of the property which it acquires, and it is a matter of which individuals cannot avail themselves in any way. Ang. & Ames on Corp., § 151; 2 Washb. on R. P., p. 567; Att'y-Gen. v. Bowyer, 3 Ves. 727; Vidal v. Phila., 2 How. 191; Wade v. Am. Col. Soc., 7 S. & M. 663. It is settled that a forfeiture by a corporation cannot be taken advantage of, or enforced against it collaterally or incidentally, or otherwise than by direct proceedings for the purpose. Ang. & Ames on Corp., § 777.

It is further urged in this connection that the trust is, by its terms, to be administered not by the corporation, but by the "church officials." The gift is to the corporation in trust for certain specified purposes, with direction that "said church officials" shall use and dispose of the property at such times and in such manner as they shall deem

Harring v. Barwick, 24 Geo. 59; Sessions v. Reynolds, 7 Sm. & M. (Miss.) 131; Schaferman v. O'Brien, 28 Md. 565; Cresinger v. Welsh, 15 Ohio 156 Fetrow v. Merriwether, 53 Ill. 275; Cassedy v. Jackson, 45 Miss. 397; Duke v. Harper, 3 Cent. L. J. 288, where many cases are reviewed; 14 Am. Law Reg. 78, and note; see Gregerson v. Imlay, 4 Blatch. 503; Brinley v. Whiting, 5 Pick. 347; Earle v. Hopwood, 9 C. B. (N. S.) 566, 574,

note.

Mortmain, 9 Geo. II, c. 36 (A. D. 1736). Vidal v. Girard, 2 How. 189; Beall v. For, 4 Geo. 404; Potter v. Thornton, 7 R. I. 252; Perin v. Carey, 24 How. 465; Wright v. Trustees, etc., 1 Hoff. Ch. 202; McCartee v. Asylum, 9 Cow. 437, 451; see Schmucker v. Reel, 61 Mo. 592; Leazure v. Hillegas, 7 Serg. & Rawle, 321.

Usury laws, 37 Hen. VIII, c. 9 (A. D. 1546). Houghton v. Page, 2 N. H. 42; see Rensselaer Glass Co. v. Reid, 5 Cow. 587, 609, 635.

Pauper laws. Commonwealth v. Hunt, 4 Metc. (Mass.) 111.

Conspiracy, 33 Edw. I (A. D. 1305). State v. Buchanan, 5 H. & J.

(Md.) 317; Commonwealth v. Hunt, 4 Metc. (Mass.) 111.

Bearing arms, 2 Edw. III (A. D. 1329). Simpson v. State, 5 Yerg. (Tenn.) 356.

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expedient to promote the interests before mentioned in the clause. The church officials had not been previously referred to, and it is evident that the testatrix used the words "church officials" instead of, and as synonymous with, the church or corporation; or rather that she referred to them as the agents of the church.

The question, whether the trust is a legal charity, remains to be considered. The trust is "to promote the religious interests of the said church, and to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing." The law of this state on the subject of charitable uses does not, it has been authoritatively declared, differ from the common law of England on that head, which has grown up in a series of decisions founded in part on the statute of charitable uses, the 43d of Elizabeth, ch. 4. Norris v. Thomson's ex'rs, 5 C. E. Gr. 489. The general principle is, that courts of chancery uphold and administer gifts where they are made to particular purposes, which are charitable within the letter and spirit of the statute just referred to, or where they are made to charity generally, if there is a trustee with power to make them definite. The word "charity" has obtained a signification in law, and courts do not uphold or administer trusts

Enrolment act, 27 Hen. VIII, c. 16 (A. D. 1536). Welsh v. Foster, 12 Mass. 93, 96; Jackson v. Dunsbogh, 1 Johns. Cas. 91, 97; see Patterson v. Winn, 5 Pet. 233, 241.

The following have been construed as operative:

Lex mercatoria. Ferris v. Saxton, 1 South. 1, 18; Pratt v. Eads, 1 Blackf. (Ind.) 81; Cook v. Renick, 19 Ill. 598; Nash v. Harrington, 2 Aik. (Vt.) 9; Hudson v. Mathews, Mor. (Ia.) 94; Commonwealth v. Leach, 1 Mass. 59, 61. Statute of uses, 27 Hen. VIII (A. D. 1536). 1 Greenl. Cruise 340, note; see Crorall v. Sherrerd, 5 Wall. 268, 282; Society v. Hartford, 2 Paine C. C. 536; Matthews v. Ward, 10 G. & J. (Md.) 443, 454; Thompson v. Gibson, 1 Ohio 439.

Statute of Gloucester, 6 Edw. I, c. 5 (A. D. 1278). Sackett v. Sackett, 8 Pick. 309, 312; see Moore ads. Townsend, 4 Vr. 284; Dawson v. Coffman, 28 Ind. 220.

Statute of Merton, 20 Hen. III (A. D. 1236). O'Ferrall v. Simplot, 4 Iora 381; Hopper v. Hopper, 1 Zab. 543, 2 Zab. 715.

Statute of frauds, 27 Eliz. (A. D. 1585). Cathcart v. Robinson, 5 Pet. 264; Brown v. Burke, 22 Geo. 574; Den v. De Hart, 1 Hal. 450, 457; Mayberry v. Johnson, 3 Gr. (N. J.) 116, 118; Lindsley v. Coats, 1 Ohio 113.

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for particular purposes which are not charitable within the meaning of the law, nor trusts expressed in general words which do not come within the legal signification of the word charity." Perry on Trusts, § 709.

66

Gifts to charity are favored by our law for the reason for which they were favored by the civil law.

"Since legacies for works of piety and charity," says Domat, "have a double favor, both that of their motive for holy and pious uses, and that of their utility for the public good, they are considered as being privileged in the intention of the law. Domat, § 3,591. Both before and since. the statute of charitable uses, gifts for the advancement, spread and teaching of Christianity, or for the convenience and support of worship or of the ministry, have been held to be charitable. Perry on Trusts, § 701. As has been well remarked by the writer just mentioned, "In a Christian community, of whatever variety of faith and form of worship, there would be little need of a statute to declare gifts for religious uses to be charitable." The church is an organization all of whose objects are within Mr. Justice Gray's definition of charity, in a legal sense. He defines it to be "a gift to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by

CONTRA, Cleveland v. Williams, 29 Tex. 204; see Murphy v. Hubert, 7 Barr (Pa.) 420; Blackwell v. Ovenby, 6 Ired. (N. C.) Eq. 38.

Fines and common recoveries. Lyle v. Richards, 9 S. & R. (Pa.) 322; Richman v. Lippincott, 5 Dutch. 44, 50; Croxall v. Sherrerd, 5 Wall. 268, 283. Distresses, 8 Ann, c. 14 (A. D. 1710). Hamilton v. Reedy, 2 McCord (S. C.) 38; Coburn v. Harvey, 18 Wis. 156; Dalgleish v. Grundy, Cam, & Nor. (N. C.) 22; Lambert v. Dessaussure, 4 Rich. (S. C.) Law 248; In re Trim, 2 Hughes (U. S. C. C.) 355.

Damages from accidental fire, 6 Ann, c. 31 (A. D. 1708). Kellogg v. C. & N. W. R. R. Co., 26 Wis. 223, 272; as modified by 14 Geo. III, c. 78 (A. D. 1774), Lansing v. Stone, 37 Barb. 15.

Discontinuance by husband of wife's interest in lands, 32 Hen. VIII, c. 28 (A. D. 1541). Bruce v. Wood, 1 Metc. (Mass.) 542; Coale v. Barney, 1 G. & J. (Md.) 324.

Westminster the Second, 13 Edw. I, c. 34 (A. D. 1285). Coggswell v. Tibbetts, 3 N. H. 41. CONTRA, Lecompte v. Wash, 9 Mo. 551.

Jointure, 27 Hen.

VIII, c. 10 (A. D. 1536). Hastings v. Dickinson, 7

Mass. 153.

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bringing their hearts under the influence of education and religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting and maintaining public buildings or works, or otherwise lessening the burdens of government." "And," he adds, "it is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." A religious purpose is a charitable purpose. Baker v. Sutton, 1 Keen 224. And a general purpose of promoting Christian knowledge is a good charitable purpose. Att'y-Gen. v. Stepney, 10 Ves. 22.

In Townsend v. Carus, 3 Hare 257, a legacy to trustees upon trust to pay, divide or dispose thereof unto or for the benefit or advancement of such societies, subscriptions or purposes having regard to the glory of God in the spiritual welfare of His creatures, as they should in their discretion see fit, was construed to be a gift for religious purposes, and restricted to such purposes; and it was held, also, that a bequest for a religious purpose is a valid charitable bequest, although the paramount religious object might possibly be effected by an application of part of the fund to a purpose which, separately taken, would not be strictly charitable. And in Wilkinson v. Lindgren, L. R. 5 Ch. Ap. 570, where

Attornment, 4 Ann, c. 16 (A. D. 1706). Burden v. Thayer, 3 Metc. 76; Coker v. Pearsall, 6 Ala. 542; see Baldwin v. Walker, 21 Conn. 168. (3.) In aid or amendment of the common law. Commonwealth v. Leach, 1 Mass. 58, 61; Pearce v. Atwood. 13 Mass. 324, 354; Commonwealth v. Knowlton, 2 Mass. 530, 535; Boynton v. Rees, 9 Pick. 528, 531; Hamilton v. Kneeland, 1 Nev. 40; Gwin v. Hubbard, 3 Blackf. (Ind.) 14; see Scott v. Lunt, 7 Pet. 596.

As giving an additional remedy, 13 Edw. I, c. 11 (A. D. 1285). Shewell v. Fell, 3 Yeates (Pa.) 17; Gwin v. Hubbard, 3 Blackf. (Ind.) 14'; Plumleigh v. Cook, 13 Ill. 669; see Steere v. Field, 4 Mason 486, 511.

As an action of account, 4 Ann, c. 16 (A. D. 1706). Griffith v. Willing, 3 Binn. (Pa.) 317.

(4.) Or declaratory thereof. Lynch v. Clark, 1 Sandf. Ch. (N. Y.) 583; Hudnal v. Wilder, 4 McCord (S. C.) 294; Hamilton v. Russel, 1 Cranch 310, 316; State v. Hudson Co., 1 Vr. 130, 131.

(5.) Or merely cumulative. Goodwin v. Thompson, 2 Greene (Ia.) 329; Commonwealth v. Ruggles, 10 Mass. 391; see Commonwealth v. English, 2 Bilb (Ky.) 80.