346.74705 
 
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UlMIVtKSIl'Y OH 
 „ ILLINOIS LIBRARY 
 4* UR2ANA-CHAMPAIGN 
 STACKS 
 
THE LAW OF CHAIU^WLE USES. 
 
 — 
 
 ARGUMENT 
 
 OF 
 
 WM. CURTIS NOYES, 
 
 Court of Sprats of flic jltatcof |fclo Jorlt, 
 
 IN THE CASE OF* 
 
 BEEKMAN, Administrator, &c„ against THE PEOPLE, &c., and others, 
 
 IN BEHALF OF THOMAS BEEKMAN, 
 
 ONE OF THE RESPONDENTS. 
 
 NEW YORK: 
 
 WM. C. BRYANT & CO., PRINTERS, 41 NASSAU STREET, COP. LIBERTY 
 
 1861, 
 
ERRATA. 
 
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 ARGUMENT 
 
 Mr. Noyes said : 
 
 If your Honors please — A brief reference to the situation of 
 the parties litigating in this case, will be all the introduction I 
 shall make to the legal questions I propose to present to the 
 Court. There is really, as between the parties other than the 
 State, no substantial difference of interest. The Bonsors, if the 
 property is to be regarded as personal estate, will take the one half 
 of it as next of kin, and Mrs. Barthrop the widow, will take 
 the other half, so that, although there is an apparent antago- 
 nism between the representatives of Mrs. Barthrop, and the 
 Messrs. Beekrnan and the Bonsors, in respect of the farm that 
 was to be provided for the latter in this country, yet in reality, 
 the annihilation of that provision which has been effected by the 
 decree of the General Term, with the other parts of that decree 
 giving the property to the next of kin, wa3 a substantial 
 ‘provision for their benefit. They are all then, so far as the 
 results are concerned, in the same general interest, and as I 
 c i have already intimated there is no hostility between any of the 
 parties here, except in reference to the State — the State not 
 - claiming any interest, as devisee or legatee or in any other form 
 giving an interest, but simply claiming to assert a right of 
 appropriation or disposition, to carry out the intentions of the 
 testator. 
 
 h; A brief allusion to the statement I have affixed to the points 
 
4 
 
 presented on belialf of Thomas Beekman, whom I especially rep- 
 resent, will shew that he and the plaintiff were justified not only 
 in protecting themselves, but in protecting their mother’s estate ; 
 and in having regard also to the interests of the Bonsors, the 
 relatives of the testator, in contesting every provision of this 
 will, which changes the ordinary and natural course of descent 
 of the property. It seems the testator, very soon after he 
 came here, was placed in a position by which he stood in loco 
 par'entis to them, and they gave him, without any doubt, the 
 obedience and respect due to a person in that condition. And 
 the manner in which that respect was requited appears in this, 
 — that by his will he gave them nothing, and by the codicil he 
 gave them a forest — a small lot of woodland — a place as barren 
 as his affection towards them seems to have been, and they were 
 not, but other persons were appointed his executors. If, there- 
 fore, the disposition which he made of his property, in disregard 
 if not in violation of the relation in which he stood to them, 
 was not in all respects strictly legal, it was not only their 
 right, but it was their duty to themselves, to their mother, and 
 to the Bonsors, to set it aside. But no apology is necessary 
 where there is a plain legal right ; and yet it is not improper 
 that your Honors should see, that the claims of duty entirely 
 coincide with those of legal right in a case of this de- 
 scription. 
 
 I shall first present to the Court the question growing out of 
 the devise of a farm for the Bonsors in this country, and I will 
 read that provision. The testator makes a very small provision 
 by his will for the family with which he was so intimately con- 
 nected. lie seems never to have desired their presence in this 
 country while he was alive and in a condition to contribute to 
 their happiness, and it does not appear that they ever wished to 
 expatriate themselves. It does seem that after his decease, and 
 
5 
 
 when he could give them no personal attention, he desired that 
 they should come here. 
 
 “ I will that my executors purchase a farm in trust for the 
 benefit of my nephews and nieces, children of my sister Mary 
 Bonsor, of Nottinghamshire, in England, not exceeding six 
 thousand dollars, as an asylum .” 
 
 Mark the phrase ! A sort of semi-public charitable institu- 
 tion for his own family — the descendants of a sister ! 
 
 “ And it is my wish they come and occupy the same, espe- 
 cially my nephew Henry, but my executors must have full 
 power over the same for fifteen years, for the benefit of all my 
 nephews and nieces as they think fit, and after the fifteen years 
 is expired, they may sell the same and apportion the avails 
 among them, or their heirs or survivors, as they think just, and 
 if any of my nephews and nieces cavil or dispute with the ar- 
 rangements my executors make for their mutual benefit, I will 
 that they receive no part thereof. 5 ’ 
 
 So that the executors were appointed a committee to manage 
 these unknown people when they came, and if they were not 
 satisfied with the means adopted for that purpose, they were 
 to be cut off from all participation in his bounty. Consider 
 tins for a moment in connection with the residuary clause. He 
 gives, after satisfying all the provisions of his will in regard to 
 the dispensary, the residue to his executors in trust, 
 
 “ to pay and apply the same in such sums, and at such 
 
 time and times as in their discretion they shall think fit and 
 proper, to the treasurer or other officer having the management 
 of the pecuniary affairs of any one or more societies for the 
 support of indigent respectable persons, especially females and 
 orphans, and for the use of said society or societies, hereby in- 
 tending to give to my executors full discretionary power as to 
 the disposition of the same, but so as that the same shall be ap- 
 plied to objects of charity.” 
 
6 
 
 It is not said whether these societies shall be incorporated, or 
 not ; but before his relations can receive the benefit of the six 
 thousand dollars, they are to occupy this domestic “ asylum,” 
 under the management of his executors. And before they can 
 reap one particle of benefit under this residuary clause, they are 
 to become, in addition to this unfortunate aud unhappy condition 
 in a private asylum, corporate paupers ! If they should connect 
 themselves with any association of that sort — a refuge for pau- 
 perism — they could receive its benefits, and not otherwise. 
 
 If the Court please, a will which contains such provisions — 
 and I do not say this for the purpose of reflecting on the 
 memory of the testator — a will which contains such provisions 
 as this in relation to the blood relations of a man, should not 
 stand, unless there be some imperative rule of law which re- 
 quires it. And I ask, therefore, in aid of this family, which 
 has been in part sustained by the bounty of the administrator 
 in this case (as I know from their correspondence) during the 
 time this litigation has been going on, that this provision for a 
 domestic asylum be set aside and the decree of the General 
 Term be affirmed, giving them, as it will, a respectable living 
 out of the estate. I do not propose, however, to occupy any 
 considerable time on that question. The first point embraces it. 
 
 I say, if the Court please, this direction or devise in the first 
 codicil ( See Appendix ), that his executors “ purchase a farm in 
 trust ” for benefit of his nephews and nieces, in England, not 
 exceeding $6,000, •“ as an asylum,” and that “they come and 
 occupy the same, but my executors must have full power over 
 the same for fifteen years , * * * as they think fit,” and 
 
 “ after the fifteen years is expired, they may sell the same and 
 apportion the avails among them, or their heirs and survivors, 
 as they may think just” was illegal and void. 
 
7 
 
 First, it suspended the absolute power of alienation for more 
 than two lives in being at the creation of the estate, there being 
 more than that number of nephews and nieces. (Case,fol. 193, 
 Judge MitchelVs Opinion / 1 Rev: St ., 723, §§ 14, 15/ Id., 773, 
 §§1,2/ Id., 729, §§ 60, 63 / 4 Kent's Comm., 282-3 / Hawley 
 v. James, 16 Wend . R., 61, 120, 127/ Boynton v. Hoyt, l 
 Denio R., 53.) 
 
 Second, by the devise the executors have the power to 
 allot the proceeds of the estate, after the expiration of the 
 fifteen years, among any one or more of the nephews and 
 nieces, or their heirs or survivors, as they may think just. (1 
 Rev. St., 734, § 99.) Besides, the beneficiaries, the nephews 
 and nieces, being non-resident aliens, the “ devise of any interest 
 in real property ” to them, was void by statute (2 Rev. St., 
 57, §4/ 2 Kent's Comm., 62), and at the time this will was 
 made, the Revised Statutes were imperative. I am aware there 
 have been changes made since that time. 
 
 If, as contended in their behalf in the Court below, “ the 
 bequest does not come within any of the classes of express 
 trusts named in the statute,” then the devise was also void, as 
 attempting to create an unauthorized trust. (1 Rev. St., 128, § 
 55 / Ring v. McCoun, 6 Seld., 268, 271.) It is not a trust to 
 apply the rents and profits absolutely to certain persons. 
 
 “ It is my wish they come and occupy the same, especially 
 my nephew Henry, but my executors must have full power 
 over the same for fifteen years.” 
 
 There is no obligation on the executors to apply the rents and 
 profits. And then, if they cavil, they are to be cut off. 
 
 I say in the next place ; nor could the title vest in them under 
 §§ 47, 48 and 49, inasmuch as the devise of “any interest ” to 
 them was forbidden by the statute cited, and the trust was 
 also void. 
 
8 
 
 Again, equity would not raise a resulting trust in their favor, 
 in fraud of the rights of the State, or the law of the laud ; and, 
 clearly, an estate or interest would not vest in them under these 
 sections, in fraud of the statute cited. ( Leggett v. Dubois , 5 
 Paige R., 114. Ilubbard v. Goodwin , 3 Leigh R., 492. 2 
 
 lientfs Comm., 62, note.) That devise could not he made to an 
 alien. A resulting trust never arises in favor of an alien. It 
 never arises in any matter involving an illegality ; and in this 
 case, therefore, there would not be a resulting trust. 
 
 My next proposition is, that the devise and bequest in the 
 first codicil (See Appendix,) for “a public dispensary as in 
 Hew York, on a similar plan, for indigent persons, both sick 
 and lame, to be attended by a physician elected to the establish - 
 ment, at their own homes, and also daily at the dispensary 
 * * * and funds enough to carry on the building , 
 
 and yearly expenses/’ was illegal and void ; because it seeks 
 to create a trust in lands and personal property contrary to the 
 Eevised Statutes. 
 
 If valid, the direction would be imperative, and would re- 
 quire the purchase of land, and the erection of buildings upon 
 it for a dispensary. It demands an “ establishment,” which is 
 something “settled firmly,” or “instituted for public or private 
 uses,” and also a “ building ” ; both involving a substantial and 
 permanent edifice, or structure erected on land. 
 
 “A dispensary as in Hew York — ” 
 
 Where they are public edifices, used as dispensaries, 
 
 “ — on a similar plan, for indigent persons, both sick and lame, 
 to be attended by a physician elected to the establishment, 
 at their own homes, and also daily at the dispensary ; my 
 executors to consult judicious men in Albany respecting the 
 same, and funds enough to carry on the building and } 7 early 
 expenses :” 
 
9 
 
 The association of these terms, it seems to me, shews that the 
 testator contemplated the carrying on of the dispensary after 
 the edifice, to be used for that purpose, was erected. Now 
 Boyle .says (page 90) that— 
 
 “Where money is bequeathed for the purpose either of 
 4 erecting,’ or { building ’ an infirmary or school, or other char- 
 itable institution, without saying upon what lands, the Courts 
 have, for some time past, contrary to the construction put upon 
 the words in former cases, held that prima facie the testator 
 must be taken to mean that land must be bought, * * * It 
 
 matters not, therefore, whether a bequest for that purpose stands 
 alone, or is accompanied with a devise of, or express directions 
 to purchase land to be appropriated for the building; such a 
 bequest being, in any case, equally invalid.” 
 
 I have referred to several cases on this subject. (1 Jarman 
 on Wills , 209-10 ; Ally. Gen. vs. Weymouth , Ambler , 20 ; 
 Same vs. Graves , Id . , 155 ; Same vs. Tyndall , Id., 614 ; Same 
 vs. Caldwell , Id., 637 ; Gravenor vs. Ilcdlam , Id., 643 ; Chap- 
 man vs. Brown , 6 Vesey, 404 ; Atty. Gen. vs. Davies, 9 Id., 
 514 ; Frye vs. Corp. of Gloucester, 14 Beav., 173, 196; Atty. 
 Gen . vs. Hull, 9 Hare, 647 ; S. C. 15, Law and Eg. B., 182 ; 
 Lang staff vs. Dennison, 1 Drewry, 28; S. C. 11 Law and Eg. 
 B., 267 ; In re Chancery, 16 Beav., 295 ; Kane vs. Gotti 24 
 Wend., 641 ; Bogert vs. Hertell, 4 Hill, 492; Stagg vs. Jack- 
 son, 1 Comst. 212.) I do not mean to go into them at all. I 
 will only refer to one or two. 
 
 In the case of the Attorney General vs. Davies, (9 Vesey, 
 544), Loed Eldon says, 
 
 “ Whatever were the decisions formerly — ” 
 
 And he is speaking more than half a century ago, 
 
 “ when charity in this Court received more than fair consider- 
 ation, it is now clearly established, and 1 am glad it has come 
 2 
 
10 
 
 ~back to some common sense , that unless the testator distinct^ 
 points to some land already in mortmain, the Court will under- 
 stand him to mean, that an interest in land is to be purchased, 
 and the gift is not good.” 
 
 In the case of the Attorney General vs. Hull, (9 Hare , 617, 
 S. G. 15 Laio and Equity , 18?,) there was a bequest of £100 
 “ towards establishing a school near the Angel Inn, at Eltham,” 
 words not so strong as those here, because nothing was said 
 about the expenses of carrying it on ; simply the words towards 
 establishing ;” implying, it might be, in aid of one already 
 established. And yet the Court said it required something in 
 perpetuity involving the purchase of land, and therefore was 
 void. 
 
 In Langsiaff vs. Dennison , (1 Drewry , 28, S. C. 11 Law and 
 Equity , 267,) it was a gift of the residue. The simple words 
 were, “ to establish a school.” and it was held void. 
 
 In re Clancy , (16 Beavan , 295,) was the case of a bequest of 
 £100 to be applied by the trustees for t!io establishment of a 
 charity school for poor Catholic children in Reading; and that 
 was held to be void for the same reason, upon the ground that 
 it required the purchase of property not in mortmain, and 
 hence was void. 
 
 But even if the bequest would be satisfied by hiring or leas- 
 ing a house and lands, still the rule would be the same. My 
 learned friend seemed to think that that would authorize a dis- 
 tinction, but this cannot be, as it must be a hiring or leasing con- 
 tinuously or in perpetuity, so as to be as unlimited in duration as 
 the dispensary itself. It certainly would not be an answer to 
 say, you can hire for a year, and then for another year, and so on. 
 It presupposes the necessity of a continuous possession of real 
 estate, commensurate with the duration of the trust, and High- 
 more on Mortmain {page 226) contains the principle that even 
 such a devise is void. 
 
11 
 
 I say, in addition, then, under this proposition, the trust 
 is in contravention of the Revised Statutes in regard to uses 
 and trusts inasmuch as, in order to carry the testator’s inten- 
 tion into effect, it requires the creation of some organized legal 
 existence, capable of indefinite duration, to receive and hold 
 the title to the land and buildings necessary for the dispensary, 
 and to the funds or money, with which to pay the. salary or 
 compensation to the “elected,” “physician of the establish- 
 ment,” and the incidental expenses, and to disburse the same 
 from time to time, in perpetuity. Row, if such trustees have 
 not been created by the will, or if the authority, in express 
 terms, has not been conferred upon this Court, or upon some 
 other tribunal or body authorized to create them, then they 
 must be constituted in virtue of some inherent power in the 
 Court, or in some other body, to do the same thing; and I say 
 this can only be done by creating a corporation, or by the ap- 
 pointment of trustees by a Court or some other tribunal, or a 
 legislative body, authorized ~by law to appoint them. 
 
 Row I need not say it is no part of the power of the Court 
 of Chancery to appoint trustees de novo of anything. It may 
 continue trustees that have been appointed by some legal 
 means ; but a bill in a Court of Equity to appoint trustees of a 
 fund which never had trustees — has no existence. It is, in 
 effect, the creation of a corporation. Trustees, unlimited in 
 duration, or capable of unlimited existence by means of a new 
 creation as often as there is a vacancy, are in effect a corporation. 
 They have a continuous existence. They never die. And the 
 Court of Chancery has no power, inherently or otherwise, to 
 appoint trustees to anything, where trustees have never been 
 appointed before. 
 
 I say in the next place, a corporation to execute the trust 
 could only be created by the Legislature. The Court of 
 Chancery as such, in the exercise of its ordinary jurisdfe- 
 
12 
 
 tion, lias no power to appoint trustees where the testator lias 
 not appointed them, or made provision for their appoint- 
 ment ; nor to make any illegal trust, though charitable in its 
 character, valid, by appointing trustees for it. And I might use 
 a term less significant than “ illegal.” The Court of Chancery 
 has no power to make a trust which cannot exist, or which was 
 invalid aside from any illegality, valid by the appointment of 
 trustees ; such trustees being essential to the executions of the 
 trust, and there having been no provision by the terms of the 
 trust for the appointment of trustees. 
 
 I refer to some authorities on this subject. Rill on Trustees, 
 (j pages 176, 212,) says : 
 
 “ A power to appoint new trustees can only be created by 
 the author of the trust himself. The Court cannot in general 
 delegate to others, the authority which it assumes in such cases ; 
 and trustees appointed or substituted by the Court, will not 
 usually be authorized to appoint others in their stead.” 
 
 Now, the only way in which the scheme of a dispensary could 
 be carried out, which Judge Mason as referee, by the judgment 
 of the Special Term was authorized to frame, was by making trus- 
 tees and providing the terms of an instrument necessary to the 
 devolution of the trust from time to time, as in the scheme to be 
 found in Tudor on the Charitable Trust Act , p. 214, where 
 twenty-four trustees were appointed to carry on the Dispensary, 
 with power to fill vacancies. 
 
 Ilill then adds : 
 
 “ However, there seems to bean exception in cases of charity. 
 For in charitable trusts, equity will usually appoint new trustees 
 to fill the vacancies actually created, but it will also sanction 
 the insertion of a direction in the scheme, that regular appoint- 
 ments may be made by the proper parties from time to time, as 
 often as occasion may require.” 
 
13 
 
 Not that it will make new trustees, or trustees where there 
 were none before ; but it will make provision in the scheme to 
 continue the appointment of trustees, the power having origin- 
 ated in the act dedicating the charity, or creating the charitable 
 use. 
 
 He says again : 
 
 “ Whenever circumstances render it necessary or desirable to 
 appoint new trustees, the Court of Chancery in exercise of its 
 inherent jurisdiction, will interpose upon a proper application, 
 and make the apointment. The jurisdiction exists, and will be 
 exercised, whether the instrument creating the trust does or 
 does not contain a power to appoint new trustees. 55 
 
 Hence, it is entirely clear, that the jurisdiction of the Court 
 proceeds upon the basis of the appointment of a trustee, by the 
 act creating the charitable use. And then he says : 
 
 “ All the persons beneficially interested, must be made parties 
 to the suit for the appointment of a new trustee. 55 
 
 I will now consider the reference to Boyle on Charities (page 
 23 T). He says : 
 
 “ It is a point perfectly well settled, that where money is 
 given to charity generally and indefinitely, without trustees or 
 objects selected, the king, as parens patriae, is the constitutional 
 trustee. On the other hand, it is equally clear, as has been 
 stated under the last chapter, that in order to give jurisdiction 
 to the Court of Chancery, it is absolutely necessary that there 
 should have been an appointment, or at least an intended ap- 
 pointment of trustees. 55 
 
 I have referred also to Moggridge vs. Thachwell (7 Vesey, 83, 
 86), which is a leading case on the subject. Lord Eldon says : 
 
14 
 
 “ The general principle most reconcileable with the cases 
 was, that where there is a general indefinite purpose, not fixing 
 itself upon any object, the disposition is in the king by sign 
 manual ; but where the execution is to be by a trustee, with 
 general or some objects pointed out, then the Court will take the 
 administration of the trust.” 
 
 Lord Eldon, in the liberality with which he regards the rule, 
 only maintaining that the Court of Chancery has jurisdiction 
 where a trustee has been appointed. 
 
 In another case, which I believe has not been referred to be- 
 fore, Paice vs. The Archbishop of Canterbury, (14 Vesey, 372,) 
 Lord Eldon, purporting to follow this distinction, says : 
 
 “ Where the bequest is to trustees for charitable purposes, 
 the disposition must be by scheme before the master; but where 
 the object is charity, without a trust interposed, it must be by 
 sign manual.” 
 
 Here, where there were no trustees, the Court below com- 
 pelled the adoption of a scheme. Boyle, (at page 241) in sum- 
 ming up the whole rule, says : 
 
 “ It may therefore be considered, that however vague and 
 indefinite the gift may be, provided it is strictly charitable in 
 its nature, and not mixed up with general purposes, the dis- 
 position will be carried into effect cy-pues, either by the Court 
 or the Crown, according as there has or has not been an inter- 
 position of trustees.” 
 
 I will ask your Honors to note some additional authorities in 
 our own State, as to the question of jurisdiction to appoint trus- 
 tees under our statute, where the right of the Court of Chancery 
 to appoint trustees, independent of the statute, and as' substi- 
 tutes for executors, was considered by the Chancellor. Matter 
 of Stevenson, (3 Paige, 420) ; Matter of Van Wyck, (1 Barb. 
 Ch. P. : 5G5). 
 
15 
 
 I say, in the next place, the testator not having appointed 
 trustees to build the dispensary, or to administer the funds 
 necessary to establish, it and carry it on, the devise and be- 
 quest, without the exercise of the royal prerogative by sign 
 manual, is as illegal and invalid, as if it had been made to the 
 unascertained and unascertain able persons who might be re- 
 lieved at the dispensary, or to the unknown and undefined 
 locality where it may be erected, or to an unincorporated 
 society or association. If to the latter specifically, or by name, 
 where there was no actual incorporation, it would be void, and 
 the property would go to the heirs and next of kin. I cite 
 Owens vs. Meth. Ep. Church , (14 1ST. Y. 7?., 380,) and I under- 
 stand the doctrine of that case to be, that where there is no 
 trustee competent to take at the creation of the trust, the Court of 
 Chancery lias no jurisdiction to uphold a bequest, even for 
 charitable or religious purposes, 
 
 But even if the Court of Chancery could appoint trustees, it 
 has no power to do so, also, because the trust is in contraven- 
 tion of the Revised Statutes as to uses and trusts. And the 
 creation and administration of such trust is forbidden in the 
 plainest and most general language ; not only by private parties, 
 but by the judicial tribunals. 
 
 My first proposition under that point is that the Statute is 
 imperative; and the Court will allow me to call attention to 
 its language : (2 R. A., 727, § 45). 
 
 “Uses and trusts, except as authorized and modified in this 
 article, are abolished ; — ” 
 
 Row, a trust for a charity was originally called a “ use,” and 
 this prevailed for a long time ; the phrase, “ charitable uses,” 
 being, especially after the Statute of Elizabeth, well known to 
 the law. 
 
16 
 
 “ — and every estate and interest in lands shall be deemed a 
 legal right , cognizable as such in the courts of law, except 
 where otherwise provided in this chapter.” 
 
 Now, I submit that there cannot be language more general, 
 more forcible, or more direct in its character for the general 
 abolition of trusts and uses. Here comes the 46th section. 
 
 “Every estate which is now held as an use , executed under 
 any former statute of this State, is confirmed as a legal estate.” 
 
 Then, we have the 55th section, which does not embrace a 
 trust for a charity, except in a limited way. That authorizes 
 a trust : 
 
 “ To receive the rents and profits of lands, and apply them 
 to the use of any person during the life of such person, or for 
 any shorter term, subject to the rules prescribed in the first 
 article of this title. 
 
 To receive the rents and profits of land, and to accumulate 
 the same for the purposes and within the limits prescribed in 
 the first article of this title.” 
 
 which necessarily excludes all trusts and all accumulations for 
 general purposes, such as in the English Law are regarded as 
 for a charitable purpose. 
 
 IIow, then, is this general, forcible language to be avoided ? 
 Can it be avoided ? I submit, it can only be avoided by im- 
 plying an exception, defeating its plain intention and words. 
 There is no other way. The Legislature has not declared that 
 any exception shall be made, nor said anything implying it. I 
 will refer the Court to the case of Williams v. Williams , (4 Sel- 
 den , 525, 552) where this right to interpolate an exception has 
 been supposed by some to be judicially established. With the 
 judgment in that case I am entirely satisfied — all of us will 
 agree that it was right. It is in the reasoning of the Court that 
 
17 
 
 authority is said to be found, justifying the implication hold- 
 ing that trusts for- charity are exempts from the general sta- 
 tute rule as to trusts. 1 contend, however, that that case ought 
 not to be regarded as controlling, because it was decided, in 
 fact, against a majority of the opinions of all the Judges who 
 heard it in the various Courts to which it was presented, and 
 has since been questioned in the Court of last resort and else- 
 where. 
 
 Judge Denio. — I do not see, Mr. Noyes, that that case has 
 anything to do with the statute you were referring to. It had 
 reference only to personal property, and the statute covers real 
 estate only. 
 
 Mr. Notes. — I was going to point that out. I said, it was 
 supposed by some that it had something to do with this ques- 
 tion. 
 
 Chief Justice Comstock. — Then, it has nothing to do with 
 this case. 
 
 Mr. Noyes. — Then I shall not discuss it now; the will in 
 that case was of personal property only. I shall refer to it in 
 another point of the argument. I was, about, however, to ob- 
 serve that the case of Williams vs. Williams is sustainable upon 
 other grounds. There the bequest of $6,000 to the trustees of 
 the Presbyterian Church of Huntingdon w T as clearly valid, be- 
 cause the Church could take by the statute under which it 
 was incorporated. And so the other bequest of $6,000 to 
 the trustees, as a fund to educate poor children in the Aca- 
 demy, in the village of Huntingdon, w T as clearly sustainable as 
 a trust to the Academy, which was an incorporated institution. 
 I cite in connection with this the case of Shepard vs. McEvers , 
 (4 Johns Ch. if. 136), decided in 1819, as showing that where a 
 3 
 
18 
 
 trust is created for the benefit of a third party, even without 
 his knowledge, he may adopt the trust and enforce it. Within 
 this rule, the Academy could have compelled the performance 
 of this .trust in its own favor. 
 
 Let me revert, for an instant, to the case of Williams vs. 
 Williams , and the opinion of Justice Strong in regard to it, 
 in Wilson vs. Lynt , (30 Barb ., 124). He says {page 130) : 
 
 “ It has been decided, however, by our Court of Appeals that 
 the general and strong language of the Revised Statutes against 
 the perpetual suspension of the absolute ownership of personal 
 property, is inapplicable to religious societies, and that as to 
 them, such suspension may endure for all time to come. In 
 differing from that high tribunal in that particular, as I do, in 
 toto co&lo , I may be exempted from the charge of presumption, 
 by the history of the case just cited. The action was brought 
 to annul two legacies, one to a religious society , and the other 
 to certain trustees , for a charitable purpose, of S3, 000 each, to 
 accumulate by the addition of half of the income, until each 
 should amount to $10,C00,.to be held in perpetuity for purposes 
 which permanently suspended the absolute ownership. In its 
 different stages, it was heard by eleven judges. Of these, 
 Judge Buggies, (who had, as vice-chancellor, affirmed the 
 validity of these bequests) and Judge Henio, of the Court of 
 Appeals, and Justices Mason, Morse and Willard, of the Su- 
 preme Court, (but sitting in the Court of Appeals) sustained 
 the legacies, while they were condemned as null and void by 
 Judges Gardiner and Johnson, of the Court of Appeals, and 
 Justices Taggart, (sitting in that Court) McCoun, Barculo and 
 Brown of the Supreme Court. So that the judgment which 
 was eventually pronounced was actually against the opinions of 
 a majority of the Judges. Possibly, that may lead to a recon- 
 sideration of the questions involved, and a different determina- 
 tion by that high tribunal ; especially, as it has sometimes 
 overruled its own decisions. (See Brewster vs. Silence , 4 Seld., 
 209, expressly overruling Brown vs. Curtiss , 2 Cornst ., 225, 
 and Dunham vs. Manrow , Id. 533, and Robertson vs. BuV 
 lions , 1 Kern , 243, and an unreported case, relative to a devise 
 
19 
 
 for charitable purposes, to an unincorporated association, over- 
 ruling some points in Williams vs. Williams .)” 
 
 The case last referred to by the learned Judge is that of 
 Oicens vs. The Miss. Soc. of the Meth. Tipis-. Church , (14 Ah 
 Y. if., 380, 411) where Judge Selden delivered an opinion, 
 denying the existence in this State of the English law of chari- 
 table uses. In this opinion, Judges A. S. Johnson, T. A. John- 
 son, Hubbard and Wright concurred; Judges Denio and Com- 
 stock decided the case on the ground that the object of the 
 charity was not sufficiently definite, and Judge Mitchell dis- 
 sented entirely. Judge Selden «had previously held a similar 
 trust illegal in Chittenden vs. Chittenden , (1 American Law 
 Register , 543.) 
 
 I contend, further, that upon principle the point may be 
 reconsidered. ( Ram on Legal Judgment , Ch. 14, §1,jA 112; 
 Ld. § 3, pp. 121-2-3 ; Ld. § 4, pp. 125-6 ; Id. p. 161 : Lug- 
 den on the Laws of Judgment on the House of Lords, p. 21, 
 '§§ 18 to 26; Miller vs. Emans , 19 N. Y. R ., 384, overruling 
 Pelletreau vs. Jackson, 11 Wend., 110, and Jackson vs. Wal- 
 dron, in the Court of Errors, being the same case, 13 Wend. t 
 178, decided there in 1834 ; and Edwards vs. Yarick, also in 
 the Court of Errors, decided in 1848 by a vote of 15 to 1.) In 
 Plattner vs. Sherwood, (6 Johns. Ch. R., 118,) Chancellor 
 Ivent said, in reference to reconsidering a question once ad- 
 judged : 
 
 “This same point arose, incidentally, in respect to this same 
 conviction, in the case of Troup vs. Wood, (4 Johns. Ch. R., 
 228,) and I was there induced to think, upon the authority of 
 Lord Coke, that every person attainted of felony was accounted 
 in law, civiliter mortuus. It was not a necessary or very ma- 
 terial point in that case, and I did not pursue the subject to 
 the extent I should have done, if it had been then, as it is now, 
 the direct and material point in issue. I have, likewise, since 
 
20 
 
 had the benefit of a full and able discussion, and of a diligent 
 and accurate research, particularly on the part of the plaintiff, 
 respecting this very unusual question of law.” 
 
 This great Judge, accordingly, reversed his previous opinion, 
 and his example is commended to the imitation of this Court, 
 if the case of Williams vs. Williams shall be deemed in any 
 way to come in conflict with the principles contended for on 
 this occasion. 
 
 Judge Mason. — I would remark here, that I was on the Bench 
 when Williams vs. Williams was heard. The case was very 
 ably argued and no case was ever decided with further research. 
 I do not think it would be policy for this Court to review and 
 reverse a former decision, when founded on so thorough an ex- 
 amination of the law as the one referred to. 
 
 Mr. Noyes. — I leave the matter entirely to the consideration 
 of the Court, to be dealt with as it shall think fit, and will pro- 
 ceed with my next proposition, that implying such an excep- 
 tion is a departure from several well established principles in 
 the interpretation of statutes, such as, “that when the intent is 
 plain and the words unambiguous, the Court is bound to give 
 effect to them, vdiatever may be its opinion of the wisdom or 
 policy of the law,” (Broomis Maxims , 246-S / 2 Dwarris on 
 Statutes , 689-90 / The Sussex Peerage Case , 8 Jurist , 795 * 
 S. C. 11 Clark <& Fin , 143,) I shall also refer to a very clear 
 authority in the language of Chief Justice Tindal, in the 
 case last cited. Next, “that a remedial act is to be benefi- 
 cially construed, so as to meet the end in view,” which here 
 was to invalidate all uses and trusts, not especially authorized. 
 I do not deduce that reasoning from the state of public affairs, 
 or the damages growing out of such trusts. It seems to me it 
 arises from the language of the Act and its general sweeping 
 terms. It is enough for me to say that the Legislature has not 
 
21 
 
 authorized such a trust, and the language employed seems 
 necessarily to exclude it. Chief Justice Tindal says, in the 
 case to which I have referred, (8 Jurist , at page 795,) 
 
 “ The only rule for the construction of Acts of Parliament is, 
 that they should be construed according to the intent of the 
 Parliament which passed the Act. If the words of the statute 
 are in themselves precise and unambiguous, then no more can 
 be necessary than to expound the words in their natural and 
 ordinary sense. The words themselves alone do, in such case, 
 lest declare the intention of the law-giver .” 
 
 And I submit that the modern and safer rule is, that when 
 the words of a statute are clear and unambiguous, an exception 
 contrary to the language cannot be implied. ( Sedgwick on 
 Stat. and Const. Law, .297 to 311.) The opinion of the Supreme 
 Court of the United States is to that effect, “that the judiciary 
 has no right to make exceptions, or insert qualifications, how- 
 ever abstract justice or the justice of the particular case may 
 seem to require it.” (. Priest-man , vs. If. S., 4 Dallas, 30, Note per 
 Chace, J) 
 
 I submit, too, that the weight of reasoning and judicial author- 
 ity upon the statute, is decidedly against implying such an 
 exception. The principal reason for implying it is, that char- 
 itable uses are not deemed within the common law and the 
 statute of perpetuities in England. That is the reasoning in 
 Williams vs. Williams. But as far as the common law was 
 concerned, the two systems could and did exist together ; that 
 of charitable uses, at the common law and under the statute 
 of Elizabeth, as an exception to the general rule of the common 
 law, forbidding perpetuities; the statute itself operating to 
 create the exception to tire rule, and sustaining it in respect 
 both of real and personal property, as 1 shall show by and 
 by. In other words, the common and statute law of England, 
 while it forbade perpetuities as a general rule, tolerated and 
 
regulated them as to charitable uses ; perpetuity being most 
 frequently the essence of donations for such purposes. But 
 there was no such general statute as that now under consid- 
 eration, abolishing all uses and trusts except those which do 
 not embrace gifts to charities ; and there never has been such 
 an act to my knowledge passed in England. Besides, the Thel- 
 lusson Act (39 and 40 Geo. III., Cap. 98) does not contain 
 any negative words, nor anything declaring that all trusts or 
 accumulations, other than such as were authorized by it, were 
 abolished. It was evidently intended only to apply to the ex- 
 isting state of the laws; and not to repeal the common law as 
 to charities, or the statute of 43d Elizabeth, so far as it was un- 
 affected by the former. It was special legislation growing 
 out of the evils of that particular case, leaving the statute of 
 Elizabeth, that of George II. as to Mortmain, and as much of 
 Magna Cliarta as related to it, untouched. Our own statute is 
 entirely different. Me have no statute declaring what are 
 superstitions or charitable uses and what not — -no statutes of 
 Mortmain. There is nothing therefore to sustain them. Does 
 not the statute of uses and trusts, in its plain and general terms 
 abolish the statute of 43 Elizabeth ? Besides this, the weight 
 of judicial authority in this State is against the implication of 
 such an exception, and in favor of giving the words of the 
 statute their ordinary signification. The cases in favor of the 
 exception are, KinisTcen vs. 'Lutheran Church , (1 Sandf. Ch. 
 R 439,) Shotwell vs. Mott , (2 Id. 46, 52,) and Williams vs. 
 Williams , (4 .Seld,, 551.) Those against it are, Ayres vs. Meth. 
 Ejpis. Church , (3 Sandf \ S. C. R. } 351, 371,) Yates vs. Yates , 
 (9 Barbour , 324, 340,) Morgan vs. Master-ton , (4 Sandf. S.C.R 
 440,) Yoorhies vs. Presbyterian Church , (17 Barbour , 101-5,) 
 McCaughal vs. Ryan , (27 Id. 376,) Wilson vs. Lynt, (30 Id., 
 124.) I have arranged these cases in the order in which they 
 arose. It is enough for me to say that a majority of all the 
 
23 
 
 Judges who have heard this question discussed, have been 
 against implying the exception. I will not occupy the time of 
 the Court w r ith arranging or classifying those cases. I ought 
 perhaps to refer to the opinion in one of them decided by 
 the Superior Court of this City. ( Ayres vs. The Methodist 
 Church , 3 Sand/. 8. C. 7?., at page 371.) This declaration by 
 one of the Revisers, Judge Dues, is quite important. 
 
 “It is said that the revisers, in their notes, make no reference 
 or allusion to charitable uses; and it is assumed that they would 
 not have been silent, had they meant to abolish them ; but it 
 seems far more reasonable to say, that had they meant to ex- 
 cept them from the universal terms of the enactments which 
 they proposed, they would certainly have said so, since, had 
 such been their intention the necessity of a positive exception, 
 in order to prevent misconstruction, could not possibly have es- 
 caped them ; on the other hand, if they meant not to except, 
 but to include charitable uses, the explanation of their silence 
 is easy and obvious. They may have deemed it unnecessary to 
 speak ; they may have thought that the provisions which they 
 recommended, spoke for themselves, in a language that neither 
 the legislature nor Judges could fail to understand.” 
 
 I say, then, in conclusion of this branch of the case, that de- 
 vises and bequests to charitable uses, are within all the mis- 
 chiefs which the statute of uses and trusts was intended to pre- 
 vent. They are often made in extremis , under wrong influences, 
 and to the disinherison of heirs and next of kin. “They with- 
 draw the lands and assets devoted to them, from commerce, 
 and render them inalienable,” ( Lewis on Perpetuities , 688-9,) 
 and it is a breach of duty to alien them, whether vested in a 
 corporation or trustees. In that respect we all agree. It is the 
 doctrine of the case of Williams vs. Williams , and the general 
 doctrine of the law. I shall not go into the question con- 
 cerning the evils which have arisen from them. I shall leave 
 those to the historical recollections of the Court, and to such 
 examination as they may think proper to make on that subject. 
 
24 
 
 I proceed now, if the Court please, to the proposition, that 
 the devise and bequest as to the dispensary is also void because 
 it is in contravention of the provisions of the Revised Statutes, 
 forbidding accumulations of the rents and profits of real estate, 
 or of the income of personal property, except in the cases 
 therein enumerated. And I maintain that the accumulation of 
 rents and profits provided for by the testator, or the use of 
 lands and buildings for the dispensary, which is the equivalent, 
 is not “for the benefit of one or more minors then in being and 
 to terminate at the expiration of their minority,” as authorized 
 by the Revised Statutes. 
 
 Your Honors will remember the “ wish ” expressed by the 
 testator, without regard to the dispensary. lie wished to have 
 it fulfilled within ten years. 
 
 “ After the expiration of ten years or sooner , if my executors 
 find there will be sufficient funds, I would wish a public Dis- 
 pensary, &c.” 
 
 There must of course be an accumulation in the meantime, 
 and so he continues, 
 
 “And should there be any overplus, my executors, within 
 fifteen years, may give it to any other charitable society or 
 societies, for relieving the comfortless and indigent ; they shall 
 select, I say, within fifteen years from my death.” 
 
 In other words, the interest must be added to. the principal 
 as fast as it accumulates. We say further, that it is not directed 
 to commence within the times permitted “ for the vesting of 
 future estates, and during the minority of the persons for whose 
 benefit it is directed, and to terminate at the expiration of such 
 minority.” (1 Rev. St., 72G, § 37.) And then comes the general 
 prohibitory clause, (§ 38,) that “all directions for accumulation 
 of rents and profits, other than those allowed by this and the 
 
25 
 
 next section,” shall be void ( Haxtun v. Corse , 2 Barb. Ch. if., 
 518) — language just as strong as that in the statute concerning 
 uses and trusts. 
 
 So, as to any accumulation of the interest of money, or in- 
 come of personal property necessary to found or carry on the 
 Dispensary, the same rule applies. The statute declares “ all 
 directions for the accumulation of the interest, income, or pro- 
 fits of personal property, other than such as are herein allowed, 
 shall be void.” It is no answer to these objections to say, that 
 the accumulations are only implied, inasmuch as it would be 
 the duty of the trustees, or other continuing body having charge 
 of the Dispensary and its funds, to accumulate ; and implied 
 accumulations are as much forbidden as express ones. ( Vail v. 
 Vail , 4 Paige , 317 ; S. C. 7 Barb. S. C. i?., 226 ; Hawley v. 
 James , 5 Paige , 318, 481.) I do not know to what extent the 
 recent important decisions on this point by this Court have 
 gone ; but I do not deem it necessary to pursue it further at 
 present. 
 
 Mr. Reynolds,— In what part of the will do you claim there 
 is a necessary accumulation, until the Dispensary is established 1 
 
 Mr. Noyes. — The part I have already referred to, I believe 
 meets the suggestion of the learned counsel. 
 
 I say, in the next place, that the accumulations are not with- 
 drawn from the condemnation of the statutes which declare 
 them void, because they are for the purpose of aiding and car- 
 rying on a charity, for the reasons I have already stated. As 
 they are expressly forbidden, nothing short of legislative pow- 
 er can legalize them. 
 
 I proceed now to the consideration of another proposition, 
 upon which I shall not devote much time. It is, that the devise 
 and bequest for the Dispensary, is wholly uncertain and indefi- 
 nite. It vests no interest in any person or persons capable of 
 4 
 
26 
 
 being ascertained, or of sueing, or being sued in relation to it. 
 And as it stands, and without the aid of some extraordinary 
 power not usually possessed by any judicial tribunal exercising 
 common law or equity powers, it is incapable of being carried 
 into effect. 
 
 I claim first, that it specifies no place where the Dispensary 
 shall be built. I wish to make one or two suggestions on that 
 point, growing out of the phraseology of the will and its cod- 
 icils. It is said, the testator lived at Kinder hook {Case, fol. 3.), 
 but he had a house and lot at Canaan { fol . 6). He came ori- 
 ginally from Nottingham ( fols . 5, 15), and he made large be- 
 quests to societies in Philadelphia {fols. 11, 13, 29, 32). He 
 mentions also, Stuyvesant {fols. 10, 23) ; Hudson {fol. 6) ; 
 Oswego {fol. f and New York {fol. 19). Here are seven dif- 
 ferent places, with many of which it is probable he was almost 
 as well acquainted as with Kinderhook. He could not have 
 preferred the latter above the place of his nativity; because 
 when he gave over the estate, he couples it with the expression 
 of a doubt whether, when all his bequests prior to that for the 
 Dispensary was discharged, there would be enough left to found 
 that Institution. Therefore he could not have contemplated 
 Kinderhook as the particular locality for the establishment of 
 the Dispensary ; and which was the locality he did intend, must 
 be left entirely to conjecture. 
 
 Next, it provides for no particular sum of money to be em 
 ployed, either in the purchase of land, or in buildings, or to 
 carry on the Dispensary; thus leaving the whole expenditure 
 uncertain. It furnishes no means of ascertaining the “sick and 
 lame” who are to receive the benefits of the Dispensary within 
 its own walls, or “at their own homes;” so that the beneficiaries 
 are wholly uncertain. Now, in the first edition of Swinbourne 
 on Wills , (A.D. 1590.) at page 251, your Honors will find the 
 following passage, which shows that such an uncertainty, even 
 
2T 
 
 at that period, rendered the disposition of the funds bequeathed 
 a matter of discretion with the executor : 
 
 “ In like manner, if the testator make the poor his executors, 
 giving them the residue of his goods ; this disposition is not 
 void by reason of uncertainty, for that is a testament ad pias 
 causas. By the poor, therefore, is understood, the poor of the 
 parish where the testator did dwell and keep house ; for it is 
 likely he did have a great affection to the poor where he did 
 dwell ; especially also if the testator was buried in the same 
 place. * * * * * * But, if the testator do bequeath a 
 certain sum to be distributed among the poor, and do appoint 
 an executor, then it is the office of that executor to distribute 
 the same, who, in the distribution thereof, is not necessarily tied 
 to bestow it wholly upon the poor of that city, parish, or place, 
 where the testator did dwell, nor is he precisely tied to make 
 choice of the poorest persons, but may use a further liberty,” &c. 
 
 Again, it makes no provision as to the persons who are to 
 purchase the lands, erect the buildings, or superintend their 
 erection, by the appointment of trustees or otherwise, nor any 
 for carrying on the Dispensary when established. No overseers 
 or governors are appointed, nor any provision made for appoint- 
 ing them, or for perpetuating the trust ; so that its managers 
 are wholly uncertain. Let me call the attention of the Court 
 to the terms of the bequests, for the purpose of showing that the 
 testator did not intend to establish any such persons as trustees* 
 He knew how to create a trust, and did so in several instances* 
 In the first codicil, he wills : 
 
 “ — that my executors purchased a farm in trust , for the 
 benefit of my nephews and nieces, * * * * * my executors must 
 have a full power over the same for fifteen years, for the bene- 
 fit of all my nephews and nieces, as they think fit ; and after 
 the fifteen years is expired, they may sell the same,” &c* 
 
 Showing that he knew it was necessary in some cases to ere- 
 
28 
 
 ate a trust, and that he did create a trust as far as he could for 
 this family in apt and precise words. But when he comes to 
 the Dispensary, he drops all this formal language, and says : 
 
 “ — if my executors find their will be sufficient funds, I 
 would wish a public Dispensary, as in New York, on a similar 
 plan, for indigent persons, botb sick and lame, to be attended 
 by a physician elected to the establishment, at their own homes ; 
 and also daily, at the Dispensary.” 
 
 He “ wishes ” it to be done, without saying who shall do it, 
 and without creating any trust ; when in the same instrument, 
 and on the preceding page, he creates a valid trust for his sis- 
 ter’s family. Then, again, in the same instrument we find : 
 
 “ I give and bequeath all my estate then remaining, if any 
 there shall be, to my executors in trusty that they shall and may 
 apply the same,” &c. 
 
 Showing that he had created specific trusts in two instances, 
 and left a wish for a third as I have shown ; so that, ex indus- 
 trial, there were no trust intended to be established in regard to 
 this Dispensary. 
 
 And he does not make or authorize the making of any pro- 
 vision for the choice of a “ physician to be elected ” to the es- 
 tablishment, or “ for a new election in case of vacancy,” as will 
 be seen by reference to the part of the will I have just quoted ; 
 so that the mode of choosing its head officers is wholly uncertain. 
 
 The result of all which clearly is, even under the English 
 doctrines in regard to charitable uses, that there are no persons 
 capable in law of ascertaining the amount of the funds neces- 
 sary for, or of locating the Institution, or of administering it 
 when established, or of perpetuating its existence ; nor are the 
 necessary funds, or any part of them, given to any one for the 
 
29 
 
 purpose of a Dispensary. And I contend that no person other 
 than the Crown could bring any suit, at law or in equity, in re- 
 gard to such funds, against the executors, or next of kin of the 
 testator, for want of a sufficient legal or equitable interest to 
 maintain such suit ; and hence, no such suit could be maintained 
 here, except in behalf of the State. Now, who else can bring 
 the suit? Who has a definite legal interest? Who has any 
 care of the fund, as trustee, under the law, except it be the 
 Legislature, or the People, or the Crown exercising the pre- 
 rogative existing in such cases, by sign-manual. There can be 
 no legal or equitable interest such as I have named, except that 
 which the Sovereign always possesses in England, or which ex- 
 ists in the People, as to property devoted to a charitable use 
 and then only to see that it is properly applied to such use. 
 
 But I assert that neither the People of the State, nor the State 
 as its representative, could maintain any action whatever in 
 regard to the funds and property necessary to establish and 
 carry on the Dispensary ; or as to the residue as owner, or as 
 having any legal title founded upon absolute proprietorship. 
 They are not devised or bequeathed to the State or to the Peo- 
 ple ; nor does a title of any sort vest in them by reason of any 
 uncertainty in the devises or bequests, or because of their fail- 
 ure, or on any other ground. I do not mean to say that in a 
 certain view of the law in England, the title would not, in some 
 cases, vest in the Crown ; but I do say it would not, under any 
 condition of our law, vest in the People of the State of New 
 York. Prima facie, the heirs and next of kin are entitled; 
 and their right to the succession cannot be displaced, except by 
 some positive existing rule of law, giving the control and dispo- 
 sition of the funds and property to some one else, or to some 
 legal tribunal, and thereby divesting their interest. 
 
 Chief Justice Comstock* — Does it not vest in the executors in 
 the first instance 1 
 
Me. Noyes — Yes, certainly ; but it does not vest in the Peo- 
 ple, 
 
 Chief Justice Comstock. — Would not the executors take the 
 personal property then, as trustees ? 
 
 Me. Noyes — They would not. As executors, they are not 
 trustees of a charity. They take it as executors only under the 
 will and codicils, and hold it for those who are legally entitled 
 to it. If the purpose declared by the will and codicils is void 
 or illegal, they take it for the next of kin. 
 
 Now, if the creation of a trust for a dispensary was illegal, 
 then the heirs and next of kin would take. ( West v. Shuttle - 
 with, 2 Myl <& Keene , 685.) So, if the purpose of the testator 
 cannot take place by reason of indefiniteness, or any other cause 
 not involving an illegality, “ the Courts (even in England) will 
 not look out and substitute another as they once did.” ( Boyle 
 On Charities , 147.) That is the modern doctrine in England, 
 and is contained i n Shelf ord on Mortmain , 201, and in the cases 
 there cited. I will ask the Court to note also the cases of 
 Waldo v. Casey (16 Vesey , 206), and Hoard v. Earl of Suffolk 
 (2 Myl <& Keene , 59). Hill on Trustees , at page 131, states the 
 rule : 
 
 “ Where by the express direction of the testator, although the 
 property is devoted generally to charity, its distribution and the 
 selection of the objects are left entirely in the power and at the 
 discretion of the trustee, the Court will not control the exercise 
 of that discretion by directing a scheme, unless a case of mis- 
 conduct is established.” 
 
 And Judge Denio, in the case of Williams v. Williams (1 
 Seld., at page 548), says : 
 
 “It is a clear principle of law, that an heir cannot be disin- 
 
31 
 
 lierited without plain words of gift or necessary implication ; 
 and in doubtful cases , the title of the heir will prevail” 
 
 Now, here the executors never qualified or proved the will, 
 but renounced, and the whole title, if any, went to the adminis- 
 trator with the will annexed. So that they never were execu- 
 tors, and never took any estate or interest whatever. 
 
 Unless, therefore, the State, represented by the Attorney 
 General, or the Court of Chancery in the exercise of its ordinary 
 equity jurisdiction, can wrest the estate from the heirs and next 
 of kin, to whom it has passed by succession prima facie, and 
 devote it to the purposes specified, or some other, their title is 
 perfect. And I submit that no such authority exists in the 
 State, or in any person representing it ; and that there was no 
 .such jurisdiction in equity in England, independently of the 
 Statute of 43d Elizabeth, and none in this State. The point 
 has never been adjudged in this Court in any case, nor has any 
 principle been settled adversely upon which this case depends. 
 
 I do not think it was settled in the case of Williams v. Wil- 
 liams , although the doctrine asserted there tended, as has been 
 supposed, to a different result. That case decided only, first , 
 that a religious corporation, authorized to take for “ pious uses, 55 
 could receive a legacy of money for the support of its minister 
 to the amount limited by its charter ; and second , that a bequest 
 to three trustees named, of a fund u for the exclusive education 
 of poor children, 55 “ who shall be educated at the Academy in 
 the village of Huntington, or in the school-house next west of 
 it, 55 — “ no part of the fund to be appropriated to the erection or ✓ 
 repair of buildings, 55 the trustees to be maintained in perpetuity 
 by the survivors filling up vacancies ; was a valid trust under 
 the English law of charitable uses, and not in contravention of 
 our statute concerning uses and trusts, or as to accumulations of 
 personal property. Now, there was a bequest in substance to 
 an unincorporated academy, the purpose of which was the edu- 
 
32 
 
 cation of children and youth. If it had failed in respect of 
 trustees, it would still have been good for the academy, which 
 the learned judge then regarded as an incorporated institution 
 within the principle already cited as established in the case of 
 Shepherd v. Me Evers {supra). 
 
 I will now proceed, with the permission of the Court and 
 with respectful deference, to prove that there is no conflict of 
 opinion between that case and the views which I shall present 
 in regard to the law of charitable uses. 
 
 According to the opinion (4 Selden , at page 542), the learned 
 Judge says : 
 
 u From a careful examination of these authorities, I have come 
 to the conclusion that the law of charities was, at an indefinite 
 but early period in English judicial history, engrafted upon the 
 common law : that its general maxims were derived from the 
 civil law, as modified in the later periods of the Empire by the 
 ecclesiastical element introduced with Christianity ; and that 
 the statute of charitable uses was not introductory of any new 
 principles , but was only a new and less dilatory and expensive 
 method of establishing charitable donations, which were under- 
 stood to be valid by the laws antecedently in force.” 
 
 With great respect, I propose to differ from the latter part of 
 that opinion, and by an examination of the authorities, to show 
 that the learned judge was in error, and that the statute of 43d 
 Elizabeth did introduce a new and entirely different set of rules 
 and principles in reference to the validity and execution of 
 charitable uses and trusts. 
 
 Ilis Honor goes on to state, {page 348) 
 
 “ — that the English doctrine is in force here, only so far as it is 
 adapted to our political condition. In that class of cases, there- 
 fore, where the gift is so indefinite that it cannot be executed by 
 the Court, and where the purpose is illegal or impossible, the 
 claim of the representatives of the donor must prevail over the 
 
33 
 
 charity. The reason is, that we have no magistrate clothed 
 with the prerogatives of the Crown, and our Courts of Justice 
 are entrusted only with judicial authority. Where the gift is 
 capable of being executed by a judicial decree , I know of no rea- 
 son why the Court should refuse to execute it. 55 
 
 Undoubtedly such a gift may be executed by a judicial 
 decree to be made between the parties having an interest in the 
 subject matter, or having a right to control or dispose of the 
 fund as trustees. There is no doubt of that. He continues : 
 
 “ It is unnecessary to decide in this case whether we could 
 proceed upon the notion of approximation where it is impossible 
 to execute the gift substantially, according to the terms of the 
 grant or devise. My own opinion is, that the distribution of 
 powers among the great departments of the government, which 
 is a fundamental doctrine in the American system, would pro- 
 hibit the Courts from exercising a jurisdiction so purely discre- 
 tionary. But in this case, there is no occasion for an executive 
 sign manual, or for the application of what is called the cypres 
 doctrine. There is here a good trustee to take the funds in the 
 first instance ; and a succession of trustees may be provided by 
 the Court by new r appointment, as often as circumstances may 
 require. The trust is for the education of the children of the 
 poor, at a particular institution of learning, which I presume to 
 be an incorporated Academy ; and a rule of ready application 
 is given for selecting the objects of the testator’s bounty. It is 
 true that no locality from which the poor children are to come, 
 is prescribed, but practically, they will be chosen from families 
 residing in the vicinity of the academy. If there should be an 
 excess of beneficiaries, it will become the duty of the trustees to 
 select such as are to enjoy the benefit of the legacy.” 
 
 Then, His Honor goes on, and cites the cases in which the 
 Crown and the Court may interpose, and the opinion con- 
 cludes (page 550) : 
 
 “ It is only where the purpose is indefinite, as in the case of 
 5 
 
34: 
 
 a gift for a charity generally, or has become impracticable, 
 f on account of the death of a party who was to select the object, 
 or is illegal, as in the case last referred to, that the aid of the 
 Crown is required.” 
 
 Now, I say that other cases in this country, prior and subse- 
 quent to this decision, are hostile to the doctrine that the Eng- 
 lish law of charitable uses, as it now exists in that country, 
 ever was a part of the general common law of England ; or 
 that it was ever administered in Chancery in that form, prior 
 to the Statutes of Elizabeth ; or that it existed there in its pre- 
 sent condition, without the aid of those statutes. I have re- 
 ferred to these cases on my points : {Baptist Ass'n. vs. Hart's 
 Fx'rs ., 4 Wheats 1 ; McAuley vs. Wilson , 1 Dev . Eg. B.. 276 ; 
 Griffin vs. Graham , 1 Hawk's i?., 96 ; Dashiel vs. Atty. Gen 
 5 Harr. de J. 392, S. G. 6 Id. 1 ; Green vs. Dennis , 6 Conn ., 293 ; 
 Witmann vs. Lex , 17 Berg. <& B., 88 ; Galligo's Ex'rs vs. Atty. 
 Gen., 3 Leigh , 450; Holland vs. Peek) 2 Iredell Oh. B., 255 ; 
 State vs. Gerard) Id. 210 ; Briges vs. PleasantS) 4 Id. 26 ; 
 White vs. Fish) 22 Conn.) 31 ; Chittenden vs. Chittenden) 1 
 Am. Law Beg.) 53S; Fontaine vs. Bavenel) 17 How. TJ. S. B ., 
 369 ; Owens vs. Miss. Soc 14 JY. Y. B ., 3S0.) I do not mean 
 to examine them at any considerable length . I will, however, 
 call the attention of the Court to the concluding part of Judge 
 Selden’s opinion in the case last cited, as to the remedy by 
 information here, to reform or prevent the abuse by a trustee 
 of his trust. He says {page 408) : 
 
 “ — the remedy, by information, so far as it was a common 
 law remedy, is as available here as in England, although it 
 must undoubtedly, be modified so as to conform to our differ- 
 ent modes of proceeding. Informations have been said to be a 
 prerogative remedy, and it is true that the jurisdiction exer- 
 cised upon them was, in some degree, strengthened and ex- 
 tended by a resort to the royal prerogative; but, it is, never- 
 
35 
 
 theless, plain that such informations were the natural result of the 
 application of common law principles and forms of proceeding 
 to those particular cases, and that they could be and were sus- 
 tained, independently of prerogative. Here, this remedy must 
 assume the form of an ordinary suit, in the name of the Attor- 
 ney General, or, perhaps, of the People of the State, and would 
 be limited in its scope by the principles of the common law. 
 I see no reason why, to this extent, it may not be administered 
 by our Courts.” 
 
 The case of the Att’y Gen. vs. Compton , (1 Young <& Coll., 
 417) is to the same point. 
 
 Vice-Chancellor Bruce said : 
 
 “ Where property, affected by a trust for public purposes, is 
 in the hands of those who hold it devoted to that trust, it is the 
 privilege of the Public that the Crown should be entitled to in- 
 tervene, by its officer, for the purpose of asserting, on behalf 
 of the Public generally, which probably no individual could 
 be found willing effectually to assert, even if the interest were 
 such as to allow it.” 
 
 The array of cases cited all follow in the same direction ; 
 although as to the particular subject matter and its minor de- 
 tails, each may differ from all the rest. There are other cases 
 to the contrary which should, in frankness, also be referred to. 
 That of Ex’ rs of Burr vs. Smith , (7 Vermont 7?., 211,) decides 
 that an unincorporated association may take a bequest for a 
 charitable use. Wright vs. Trustees Meth. Ch ., ( Hoffman Ch * 
 Z?., 202,) did not involve the question. Vidal vs. Girard’s 
 Ex’rs. (2 Hoio., U. S. B. 127), more usually known as the 
 Girard Will Case , did not involve the question either. The 
 opinion is there expressed “ that the corporation of the city (of 
 Philadelphia) is capable by law of taking the donation for such 
 trusts.” There the bequest was to the city of Philadelphia as a 
 trustee. The Statute of 43d Elizabeth was held to prevail in 
 
36 
 
 Pennsylvania, and hence the bequest was sustained. It is true 
 that Justice Story remarked in that case “ that very strong 
 additional light has been thrown upon this subject by the re- 
 cent publications of the Commissioners on the public Records 
 in England, which contain a very curious and interesting col- 
 lection of the Chancery Records in the reign of Queen Eliza- 
 beth, and in the earlier reigns,” and he expresses a doubt 
 whether these would not have removed the difficulty enter- 
 tained by the Supreme Court of the United States, in the case 
 of Baptist Ass*n vs. Hartfs Ex'rs, which I have already cited, 
 which held that the English law 7 of charitable uses did not ob- 
 tain generally in this country. 
 
 Chief Justice Comstock. — Could not the City of Philadel- 
 phia, by the common law, have taken the bequest as trustees 
 for the charity ? 
 
 Mr. Noyes. — I confess, I did not think they could, although 
 the Court seemed so to hold ; for the establishment of a college for 
 the education of orphans, without a grant of express power to 
 that effect, w T ould hardly be the proper office of a municipal 
 corporation. I shall not enter into an examination of these 
 points or the authorities, as I know them to be familiar to your 
 Honors. 
 
 But, conceding that the English Court of Chancery did, prior 
 to the Statutes of 39 Elizabeth, Cap. 6, (repealed by 43 Eliza- 
 beth, Cap. 9, see Qibsorts Codex, 1113,) and 43 Elizabeth, Cap . 
 4, take cognizance of trusts for charities in some cases; the 
 material inquiry is, whether it ever administered assets on the 
 profits of real estate, or enforced trusts created for the purposes 
 of charity, as it confessedly did after those statutes, and under 
 their authority. In other words, whether they w’ere not held 
 to authorize its interference in an entirely new class of cases, 
 and did not introduce a new set of principles. I respectfully 
 submit they did. 
 
37 
 
 There has, hitherto, been much doubt about the line of de- 
 mark a tion of the jurisdiction of Chancery over charitable uses, 
 and the extent of the jurisdiction. Much difficulty has arisen 
 in determining where it began, and what cases it reached — 
 where the line was to be drawn. I propose, if the Court please, 
 to show where it did begin, and to what extent it was carried ; 
 and 1 maintain that, in cases of charitable uses, prior to these 
 statutes of Elizabeth, the jurisdiction of Chancery could only 
 have been exercised, if exercised at all, in the following in- 
 stances, which I will consider : 
 
 First, in Feoffments to Uses. Now, the term “ charity,” 
 or “ charitable use,” is not found in any of the old common 
 law books. It does not occur in Statham's Abridgment , the 
 first book of English law ever printed— published in 1470 ; nor 
 in Fitzherbert (A. D. 1514), nor even in Brooke , (A. D. 1573). 
 True, there is a head in the latter, “ Feoffments to Uses” ; but 
 it contains no such doctrine in regard to them, and they were 
 wholly void at common Jaw — 'giving no right to the land or 
 the profits, nor was any remedy afforded for either, by their 
 modes of procedure. (Spence Eg. Jur. of Ch ., 439, 441 ; Ba- 
 con's Beading on Stat. of Uses , Vol. 3 of Works , 302.) They 
 were, in truth, invented by the ecclesiastics to evade the 
 statutes of Mortmain, and they chiefly acquired their import- 
 ance in the civil wars which prevailed in Englannd for a long 
 period of years, and when there was danger of the unsuccessful 
 party being attainted— their office being to save the property 
 by means of the use, as the attainder only affected the legal 
 estate. 
 
 In the early periods of English judicial history, the Ecclesi- 
 astical Courts assumed and had jurisdiction over breaches of faith 
 and trusts — whether by u feoffments to usesj” or otherwise — 
 operating upon the conscience of the trustee, and visiting him 
 with excommunication if he refused obedience. There was no 
 
38 
 
 necessity of going into the Court of Chancery for a decree, be- 
 cause the Ecclesiastical Court had the power and enforced it 
 by the. penalty of excommunication, which was a fearful one. 
 The historian Froude thus describes its potency. (Hist, of 
 Engl . , Vol. 1, 192.) 
 
 14 It was no light thing when it was equivalent to outlawry; 
 when the person excommunicated might he seized and impri- 
 soned at the will of the Ordinary ; when he was cut off from all 
 holy offices; when no one might speak to him, trade with him, 
 or shew him the most trivial courtesy ; and when his friends, if 
 they dared to assist him, were subject to the same penalties.” 
 
 Now, the statute of 15 Richard II., (A.D. 1491) which de- 
 nounced the evasions of the statutes of mortmain by means of 
 feoffments to uses, and brought them within the operation of 
 those statutes, came into being contemporaneously with the es- 
 tablishment of the Court of Chancery ; and of course it put a 
 stop to applications to the Clerical Chancellors in such cases, 
 if there were any, which, however, does not appear. (Spence 
 Eg. Jur. of Chari., 442.) 
 
 Lokd Bacon says (Reading on Stat. Uses ), he finds no act of 
 attainder, using the words 44 which he has in possession or in 
 use,” until the reign of Edward IY. (A.D. 1416) ; and he col- 
 lects out of Choke’s speech in the eighth year of that reign 
 (A.D. 1469), that there were no such instances ; for he says : 
 
 44 — that by the advice of all the judges, it was thought that 
 the subpoena did not lie against the heir of the feoffee, which 
 was in by law , but that the eestue gue trust was driven to Bill in 
 Parliament ; for no doubt the Chancery, at the first, made dif- 
 ficulty in giving any remedy at all, but to leave to the particu- 
 lar conscience of the feoffee ; but after the Chancery grew ab- 
 solute, as may appear by the statute made in the reign of Hen- 
 ry YI., (whose reign began A.D. 1422,) that complainants in 
 
39 
 
 Chancery should enter into bonds to prove their suggestions, 
 which sheweth that at that time the Chancery began to embrace 
 too far, and was used for vexation ; yet, nevertheless, it made 
 scruple to give remedy against the heir being in by act of law, 
 though he was privy.” 
 
 And they were subsequently compelled to give pledges to 
 prosecute as in the old Common Law process, which existed 
 several years ago in this State. 
 
 The first notice of such an application according to Mr. 
 Spence, was in the reign of Henry Y., which began A.D. 1413 
 —nearly a quarter of a century after the Court had been es- 
 tablished. He says [Eg. Jur. of Cha'y , p. 443) : 
 
 “ — at which time, as we have seen, the greater part of the 
 lands in England were held by feoffees in trust; it was no long- 
 er possible to leave the fulfilment of trusts to the influence of 
 the mere dictates of honour, or to the coercion of the confessor 
 
 The Ecclesiastical Courts undoubtedly had jurisdiction in the 
 first instance. That being taken away, and half of the lands in 
 the realm being in the hands of feoffees in trust, the Chancel- 
 lor, as Judge for matters of conscience, was applied to, and the 
 applications were entertained. In the case cited by Spence, 
 [Dodd v. Browning , et at., 1 Calendars in Chan.,p. 13) we have 
 an instance where the feoffor appears against the feoffee suing for 
 the application of the trust to its use ; the feoffee having let the 
 feoffor’s lands and withheld his goods without authority. It 
 was the ordinary case of a person interested in a trust fund ask- 
 ing by bill, that the property be applied to the purposes of the 
 trust, by the intervention of the Court of Chancery. All this 
 power w T as independent of the jurisdiction of charitable uses, 
 or of pious uses . That had always belonged to the church, and 
 Chancery had nothing to do with it, which renders it quite 
 clear that the jurisdiction of Chancery over feoffees in trust, 
 )vas not settled until the year 1469. 
 
40 
 
 As the uses of a feoffment could be, and usually were 
 declared by wull, the power of equity over wills would be 
 the next ground upon which the jurisdiction of Chancery 
 might have been invoked, if it had existed. But wills were 
 always proved, and the goods or property administered in 
 the Ecclesiastical Courts ; and this, whether they contained 
 gifts to pious uses or not. If they did, it was particularly 
 a matter for the Spiritual Courts. This was the rule as to 
 all wills. They w T ere exclusively within the jurisdiction of the 
 Ecclesiastical Courts, and the Court of Chancery had nothing 
 to do with them, or with administering the property bequeathed 
 by them. The power to make wills was indeed limited until 
 the statute of 34 and 35 Henry YIII. passed in 1513, five 
 years after the statute of uses ; yet some wills could be made 
 and they were common, as to personalty at least, and trusts 
 could be created by them ( Wentworth on Executors , 470, 477), 
 the same as the uses of feoffments could be declared by will in 
 certain cases. My position is, that the uses being stated, wheth- 
 er based upon a trust created by will, or a will declaring the 
 uses of a feoffment, the Court of Chancery at that day, and for 
 a long period afterwards, exercised no authority over them. 
 
 But wills to pious uses were always favored by the civil and 
 ecclesiastical law. Before the time of Justinian, a general in- 
 definite gift by will, for the poor, was void. He, by an edict, 
 declared that “ a gift for poor persons, by will or codicil, is not 
 to be lost, but is to be preserved firm and fixed by every means 
 possible.” {Code Lib. 1, Tit. III., “ De Episcopis ,” § 25 ; 2 
 Corp. Juris. Civilis , by Richter, 30, 43, 46.) Thus the original 
 rule of the Boman law was precisely like that of the common 
 law, that a general indefinite gift, although for the poor, was void 
 without the aid of a statutory enactment. The edict continues : 
 
 “ — That if any dying person shall have made a pious be- 
 quest, either in the form of an institution, or by a legacy, or 
 trust, or donatio causa mortis , or by any other lawful means 
 
41 
 
 whatsoever, whether he shall have enjoined upon the bishop 
 that he undertake the charge for a time so that what he wished 
 might be accomplished ; or whether he shall have said nothing 
 on this subject ; or whether, on the other hand, he may have 
 forbidden it, the heirs, as matter of necessity, shall have to do 
 and accomplish that which has been directed, by every means 
 in their power. But if they shall be unwilling to do these 
 things, then the most pious bishops in the district shall investi- 
 gate these matters, and exhort them to accomplish all things 
 according to the wishes of the deceased. If, however, the test- 
 ator shall have enjoined the erection of a building, they may do 
 the work within three years, so that it be done ; but if he shall 
 have imposed upon them the construction of a hospital, they 
 may certainly compel that to be done within a year, so that this 
 period of time may be fixed as that in which to accomplish the 
 wishes of the testator. For a house may be hired for the latter 
 purpose, and the sick on couches conveyed there until the work 
 of building the hospital shall be completed. But if anything 
 is directed to be given at once to charitable uses , they (the bishops) 
 may cojnpel these (heirs) to do it immediately , for this is accord- 
 ing to the implied will of the testator, and according to the pro- 
 visions of the inheritance or legacy granted by those who have 
 been thus honorable.” 
 
 That is the English law of mortmain an\l uses, exactly as it 
 was administered at the time of the passage of the Statute 43d 
 Elizabeth. Such testaments were directed to be proved and 
 administered in a mode pointed out by another edict, before 
 ecclesiastical tribunals only. ( Aylijfds Par ergon , 264.) And 
 those containing any bequests to pious uses, were among the 
 class of privileged testaments, and were exempt from most of 
 the ordinary rules affecting the validity of other wfills. Your 
 Honors will find these privileges set forth in the first edition of 
 Swinburne on Wills , (published in 1590,) at page 30, whicli 
 contains the law as it existed at that period, and prior to both 
 the statutes 39th and 43d Elizabeth, as to charitable uses. There 
 are, in fact, precise provisions as to testaments in a series of 
 6 
 
42 
 
 articles, all of which have diffused themselves through the law 
 of England, and which were invariably acted upon in the 
 Ecclesiastical Courts, where property was bequeathed for the 
 use of the poor, or by any legal means charged with a trust for 
 a pious use. I refer to Godolphin's Orphans' legacy , (3d edi- 
 tion , A. D. 1685,) as containing the same rules in substance. 
 One of these privileges is, that, if the will be cancelled on its 
 face, “ the law doth presume it to be cancelled unadvisedly ; 
 and so it is in effect as if it had not been cancelled at all ; 
 whereas , in other testaments , the contrary is presumed." 
 
 Another is, that 
 
 “ — it is not void in respect of uncertainty (as other testaments 
 are), and, therefore, if the testator say, I make the poor my 
 executors, or, I will that my goods be distributed amongst the 
 poor, such manner of appointing executors or legacies is not 
 void.” 
 
 Is it not clear then, such being the ecclesiastical law, and 
 such the privileges of these wills, that they would always be 
 administered in the Ecclesiastical Courts, where such rules pre- 
 vailed, rather than in those tribunals where no such rules 
 existed 1 
 
 I contend, further, that there is no evidence that any of these 
 rules, in regard to such testaments, w r ere ever adopted or acted 
 upon in the Court of Chancery in England, — even during the 
 time that the Ecclesiastical Chancellors sat in that Court. 
 They never were acted upon, qualifiedly or otherwise, until the 
 statute of 43d Elizabeth. And obviously there was no neces- 
 sity for it, as the Ordinary superintended the distribution of 
 the assets in all cases, whether specially bequeathed or not, and 
 whether given to pious uses or not. There was no necessity for 
 going into the Chancery for a discovery in aid of any proceed- 
 ing in the Ecclesiastical Court ; as the latter could examine all 
 
43 
 
 parties, and always had the strongest control of the conscience 
 of offending feoffees to uses and other trustees, by means of its 
 spiritual thunders, especially after it was authorised to compel 
 a verification of the accounts of executors. It excommunicated 
 for non-compliance as well as for general disobedience to its 
 judgments. ( Wentworth on Executors , 417; Latch's Cases , 
 117.) 
 
 Again : The Court of Chancery could not for many years 
 after its institution, have exercised jurisdiction by reason of any 
 power connected with intestates’ estates. These, like wills, 
 were chiefly within the jurisdiction of the Ordinary, long after 
 the statutes of Elizabeth, and even after the statute of Dis- 
 tributions; (22 and 23 Car. //., Cap. 10; 2 Bl. Comm. 515,) 
 which only qualified the power of that officer. This statute 
 was demanded as one of the reformations on the Restoration of 
 Charles II. ; it being claimed that a general statute, regulating 
 the distribution of the estates of intestates was needed, to ob- 
 viate the difficulties arising from the existing abuses, which 
 universally prevailed prior to that time. For prior to the 
 statutes regulating distributions, -all the goods of the intestate 
 went to the Ordinary, except in counties or cities where cus- 
 toms to the contrary existed ; and he could dispose of them as 
 he chose, in pious uses, excluding even the relatives of the de- 
 ceased. This was the general rule, as late as after the reign of 
 Henry YIII. ; the statute of Westminster Second, having only 
 provided that the debts of the intestate should be paid. The 
 Ordinary received them, either in his own right, representing 
 the Church, or in the right of the Crown, having such absolute 
 control over, or property in them, that he could dispose of them 
 for pious uses, even as against the immediate relatives of the 
 deceased. I refer for authority on this point to a case in Plow- 
 den ( Graysbrook vs. Fox, Plowd ., 277, 280, decided 7 Eliz. A. 
 D. 1565, see also 4 Reeve's Eng. Law , 82-3,) which states the rule 
 and the ground on which it prevailed at that particular time. 
 
44 
 
 <c If a man died intestate, the Ordinary should have had his 
 goods to dispose of in pious uses ; for when he died intestate 
 and had not committed his goods to any person to dispose of, 
 the law adjudged the Ordinary the most proper person to have 
 the disposition of them. For it was to be presumed that the 
 Ordinary , who had the care of his soul in his lifetime , would 
 he the fittest to ham the care and disposal of his goods in pious 
 uses after his death” 
 
 Indeed, the rule originally was said to be, that on one dying 
 intestate, all his assets went to the Crown to be disposed of, as 
 parens patriae , and that this right being granted to the Ordin- 
 ary was the origin of his jurisdiction. I confess I do not think 
 so myself, but some of the books say so. ( ILenslce’s Case , 9 Rep, 
 38 ; Jacob’s Law Diet . “ Execution’’ 1.) My own belief is, that 
 at an early period, even as against the Crown, the Ordinary 
 had the disposition of the goods — at any rate there was for a 
 long time a question, whether the Ordinary could be compelled 
 to make any distribution, even in payment of the debts of the 
 intestate, prior to the statute referred to. The contrary was 
 not settled until that statute was passed in 1670. (Jacob’s Law 
 Diet., “ Executor ” 8 ; Godolphin’s Orphan’s Legacy , Chap, 32, 
 pp. 253-4, 3 d Ed ., A. D. 1685.) 
 
 The jurisdiction of the Ecclesiastical Courts being, however, 
 in some cases defective as to creditors , they found it necessary 
 in some instances to resort to Chancery, where the accounts of 
 the executor or administrator could be contested, and distri- 
 bution decreed. These cases began in the reign of Edward VI., 
 (A. D. 1547,) but the jurisdiction was not considered settled 
 until 1598, being the 40th year of the reign of Elizabeth. 
 (Spence Eg. Jur. of Ch’y , 580, Cary R. 11.) The rule in 
 the Court of the Ordinary was, that the oath of the executor to 
 his accounts was conclusive ; whereas the Chancery rule al- 
 lowed his statement to be contested and his accounts to be fal- 
 sified; as in the modern practice of surcharge and falsification. 
 
45 
 
 A year after the first statute of charitable uses was passed, 
 and three years before the present statute of charitable uses 
 was adopted in its place, the same rule prevailed as to the next 
 of kin, the Chancery, down to a comparatively late period, hes- 
 itating and refusing to entertain a bill in their behalf ; and this 
 although the office of executor was treated as a trust. [Spence 
 Eq. Jur. of Chiy, 588 ; Tothill if., 81.) 
 
 I maintain further that the Court of Chancery did not, prior 
 to the time of Elizabeth, exercise jurisdiction over charitable 
 uses or trusts, ad pias causas , upon information, at the suit of 
 the Crown, as it unquestionably did afterwards. {Spence Eq. 
 Jar. of Ch?y-i 585.) This practice, when it came into general 
 use, prevailed only when there was no trustee and the trust 
 was indefinite; as, to the poor, generally; or when the trustee 
 violated his trust, and attempted to impair or misappropriate 
 the fund of which he was the custodian. The application was 
 then made at the instance of some person, on behalf of the King 
 as parens patrice — usually by the Attorney General, although in 
 some cases it might be made by a person other than the Attor- 
 ney General. 
 
 There is no such claim made by the Attorney General in the 
 present case. Ilis answer, (at folio 53 of the Case ,) states that 
 the People whom he represents 
 
 “ — are strangers to all and singular the matters and things in 
 said complaint contained, and cannot admit or deny the same, 
 and they leave the said complainants to make such proof there- 
 of as they may be advised.” 
 
 And then they “submit their rights to the Court to make 
 such order and decree as shall be agreeable to equity.” Ho de- 
 mand or assertion of any interest in the State. Ho claim of any 
 right in the State to appoint as parens patriae / but instead of 
 this an absolute disclaimer of all right to interfere in the con- 
 troversy, or the subject matter of it. 
 
46 
 
 Now, the application by the Crown was clearly as a matter 
 of prerogative and substantially an assertion of the doctrine, 
 that the goods of persons dying intestate or not well disposed of, 
 belonged to the Crown, who could appoint them as it saw fit. 
 But there is no pretence for such a jurisdiction in this State, 
 and I am therefore spared the necessity of showing, as I think 
 I can, that it did not exist in England prior to the Statute of 
 Elizabeth so as to uphold bequests to charities void at common 
 law, for in definiteness or for want of a competent trustee. I 
 refer the Court to the opinion of Judge Selden (1 Am. Law Leg ., 
 546-7, 14 N. Y. R., 387), and to that of Judge Denio in the 
 case of Williams (4 Seld. 7?., 548). I will ask your Honors to 
 note also the cases of Atfy Gen. v. Glegg (1 Atk. R., 356) ; 
 Atfy Gen. v. Jennis (Id., 355) ; and I cite also Highmore on 
 Mortmain , 237, and 1 Daniel Chancery Practice, 7 and 8. The 
 case of Atfy Gen. v. Compton (1 Young dc Coll., 417), is a 
 modern case against the exercise of such jurisdiction. 
 
 Again, I assert that the Court of Chancery did not exercise 
 jurisdiction of trusts for charities or oyer charitable uses 
 prior to the Statutes of Elizabeth, except in cases where gifts 
 of personal estate were made by act inter vivos to persons 
 capable of taking for definite charitable uses or purposes / or 
 where lands or the use of lands were by will or deed directed 
 to be applied for the like purposes / and only then under its 
 general powers to enforce the performance of trusts, in like 
 manner as private trusts, and between persons competent to sue. 
 I refer to Spence on the Eguitable Jurisdiction of Chancery, at 
 page 588, and to the Calendars there cited by him. 
 
 Now, these were suits by original bill only, between parties 
 claiming an interest in a specific charity, and competent to sue 
 and assert their title. Mr. Binney in his argument in the 
 Girard Will Case , contends for no more, and refers to no case 
 earlier than in 1459 (37^4 Ilenry VI.), and this was not a con- 
 
47 
 
 tested one. Let me refer for a few moments to Mr. Binney*s 
 arguments. His third proposition is {Girard Will Case, p. 108), 
 
 “ The defendants are entitled upon general principles, and by 
 the constitution of a Court of Equity, to have this valid trust 
 protected in this Court, whatever may he the defects of the le- 
 gal estate. I do not at present say , that in the case of charitable 
 uses , this was so settled before the 43 d Elizabeth 
 
 Thus, one who has given the most elaborate examination 
 probably of any man living, to the whole subject of charitable 
 uses, does not claim that such was the jurisdiction of the Court 
 of Chancery prior to the Statute of 43d Elizabeth. He goes 
 on then to examine the cases to show that generally where 
 «a trust is valid, it is a fundamental principle of equity, and 
 has been so for ages, that the trust shall be protected and 
 enforced by a Court of Equity. It would occupy too much 
 time to go over them all, but none of the cases cited by him 
 sustain a bequest, general and indefinite in its character, or 
 made to a person incompetent to take, prior to the Statutes of 
 Elizabeth. And as will be seen by reference to the Calendars 
 which he cites, the suits are all by the beneficiaries or other 
 persons having an interest, capable of protection, against the 
 trustee. The effort was made by him to show that the decree 
 in Elmer v. Scott , {Choice Cases in Chancery , 155 ; Girard 
 Will Case , 126,) was made in the 24th Elizabeth, before the 
 statute of Charitable Uses, upon ordinary and judicial equity 
 in Chancery ; thus showing that Chancery must have had some 
 general jurisdiction over charitable uses prior to the Statute of 
 Elizabeth. The case referred to is this— 
 
 “ One Symons, an alderman of Winchester, sold certain land 
 to Sir Thomas Fleming, now Lord Chief Justice, then recorder 
 of that town, and this was upon confidence to perform a chari- 
 table use, which the said Symons declared by his last will , that 
 
48 
 
 Sir Thomas Fleming should perform. The bargain was never 
 enrolled; and yet the Lord Chancellor decreed that the heir 
 should sell the land, to be disposed according to the limitation 
 of the use.” 
 
 ISTow here ; there was a competent trustee, Sir Thomas Fleming 
 and there is nothing to show that the trust was vague or in- 
 definite. I mention this case for the purpose of showing that 
 every one of the authorites cited by Mr. Binney should be cri- 
 tically examined with reference to the character of the trust, and 
 the language of the Court in passing upon it. 
 
 He says with Sir Francis Moore, that this decision was 
 
 “ — before the statute of Elizabeth of Charitable Uses, and 
 this decree was made upon ordinary and judicial equity in 
 Chancery.” 
 
 But the question is not whether the Court did not in some in- 
 stances exercise jurisdiction over trusts for charities, but wheth- 
 er it sustained those which were so vague and indefinite as to 
 be Void at law, and where no competent trustee was appointed, 
 or any other equivalent provision made for enforcing them, in- 
 depently of the statute of Elizabeth. 
 
 Your Flonors will see by looking into Bridgman's edition of 
 Duke , and comparing it with the original, that some of the cases 
 cited by Mr. Binney as showing the existence of the jurisdic- 
 tion prior to 43d Elizabeth, are erroneously stated in point of 
 time, and that the trusts were definite, and that there was a com- 
 petent trustee in each instance. Among others he mentions 
 Elmeley Lovett and Brattlington Sussex , as before 37 Elizabeth 
 {Bridgman's Duke 359 ; Duke 32-3) ; but there is nothing in 
 the original Duke to show that these cases were decided at so 
 early a period. On the contrary, the presumption is against it, 
 and that they were adjudged long after the statute ; and as to 
 the last one, it is clear that it was a proceeding by inquisition 
 
4 9 
 
 under the statute of Elizabeth. They are reported in the ori- 
 ginal Duke under the head of u Decrees,” which Bridgman 
 changes to “ Adjudged cases,” omitting the time which immedi- 
 ately follows in the original edition, thus “ 5 Caroli Primi Bo- 
 tulo jprimo .” Then follow three cases, two of which were pro- 
 ceedings by commission under the statute, and the first case 
 cited, thus : 
 
 “ Elmeley Lovett in Com., Sussex. Lands given by several 
 persons to a parish,, for the use of the poor, repair of the church, 
 and other charitable uses to be done in the parish, decreed and 
 confirmed.” 
 
 That this was also a proceeding under the statute, is evident 
 from its being stated to be in the county {in cornitatu) of Sussex ; 
 a suit in equity was never thus distinguished. Besides, the 
 lands were given to the parish— a competent trustee, and the 
 charitable uses were defined. 
 
 The other case is thus stated : 
 
 u Brattlington in Sussex.” 
 
 “ An inscription upon the donor’s tomb-stone declaring the 
 donor’s gift to a charitable use was found, in haec verba. And 
 a decree thereupon accordingly ; and is a very good president.” 
 
 This was also a proceeding under the statute, as is clear 
 from the word u found,” which properly distinguishes the find- 
 ing of the trust by the Commissioners and jury, but was never 
 applied to any proceeding in a Court of Chancery. Besides, 
 this gift was clearly not enforceable at common law ; as an in- 
 scription upon a tomb-stone can hardly be imputed to the sleeper 
 beneath it, as his own act and deed. What the charitable use 
 was, does not appear, and it is therefore no proof that an indefi- 
 nite trust, or one without a trustee, was sustained. 
 
 In the original edition of Duke , two other cases only, imme- 
 diately follow that last cited ; and they were both before Com- 
 7 
 
50 
 
 missioners under tlie statute 43d Elizabeth. They are separa* 
 ted from the other cases in Bridgman’s Duke (p. 633), and thus 
 the exact chronology of all of them is confounded. The ear- 
 liest of these two, ( Crouch vs. Citizens of Worcester Duke 33, 
 Bridgmans Duke 633,) came up on appeal from the Commis- 
 sioners, before Lord Keeper Coventry, in 1626, a quarter of a 
 century after the statute of Elizabeth. 
 
 Mr. Binney also cites Howard’s Case as Anno 40 Elizabeth 
 [Duke 141, Bridgman’ s 136) , but this was after the statute 39 
 Elizabeth, and was, doubtless, in a proceeding upon it ; a3 it 
 compelled the performance of a charitable use imposed by a 
 husband in his will upon the executors and administrators of his 
 wife — a devise clearly void at common law and so stated in the 
 report. Nothing but the supposed efficacy of the statute could 
 have compelled the creation as well as the performance of a 
 trust by the representatives of the wife, against her will and 
 theirs. 
 
 He also cites Throgmorton and Gray’s Case , 41 Elizabeth 
 {Duke 137, Bridgman’ s Duke 131) ; but this was also after the 
 statute 39 Elizabeth, and there is nothing to show whether it 
 was a proceeding in Chancery or not. Indeed, no such case is 
 to be found in the Chancery Calendars, although I have made 
 diligent search for it. 
 
 Kensen’s Case is also cited as in 41 Elizabeth ( Bridgman’s 
 Duke 361) ; and it is there stated, that it was in Chancery , but 
 no such thing is found in the original edition of Duke (p. 80), 
 the only place where the case is mentioned, and I know of no 
 authority for the statement. And it decides nothing upon this 
 subject, as it was resolved only, “ that a copyhold may be charged 
 or given to a charitable use,” and was probably a proceeding 
 under the 39 Elizabeth. No such case is found in the calendars. 
 
 Baggs vs. & ktmpner, 43d Elizabeth ( Tothill 120) is also cited, 
 but the case is imperfectly reported. It is found with more 
 
51 
 
 particularity in 1 Calendars in Ch'y (p. 96, No. 49), and appears 
 to liave been a bill filed to establish the charitable uses of a 
 tenement called the “ old Pole,” and lands thereto belonging, 
 in Harlow, conveyed tempore Henry VIII. to feoffees in trust, 
 for the poor of the parish of Harlow, and the plaintiffs were the 
 feoffees in trust for the parish. Thus there were competent 
 trustees and a clear and definite trust, which they sought to pro- 
 tect and enforce. 
 
 The case of The Mayor of Heading vs. Lane* 43 Elizabeth, 
 which Mr. Binney states is perhaps on the dividing line,” is 
 reported in Bridgman's Duke (361) as in “ 1601 Garde f but in 
 the original Duke there is nothing of the kind, and it does not 
 appear whence Mr. Bridgman derives his authority for stating 
 That it was in Chancery. It may have been there on appeal 
 from the Commissioners of Charitable Uses, and this is infera- 
 ble from the language of the report which is : 
 
 “ a devise w 7 as made to poor people maintained in the hos- 
 pital of St. Lawrence, in Heading, for ever ; exception was 
 taken,” &c. 
 
 The only mode of raising the question in Chancery on ap- 
 peal from the decree of the Commissioners was by exception ; 
 and that was probably done here. This view is strengthened 
 by the fact that no such case is found in the Chancery Calen- 
 dars. Mr. Binney refers to Atty. Gen. v. Master of Brentwood 
 School (1 Myl dc Keene , 3 16) as showing the exercise of juris- 
 diction by Chancery over a charitable use in 1570 (13 Eliza- 
 beth ) and establishing one void at law before the statute 43 
 Elizabeth, for w T ant of corporate capacity to take the lands. 
 But, on examination of that case {pp. 385, 389,) it will be 
 seen that the grant was only void in part and was valid as to 
 two-thirds of the land held in capite , and that the decree was 
 in fact made upon a compromise ; that the plaintiff was cornpe- 
 
 library 
 
 UNIVERSITY or 
 
52 
 
 tent to sue, and the heir at law acceded to the wish of his an- 
 cestor as to the whole of the lands, and assented to a decree to 
 convey accordingly. 
 
 This case is also found in the Chancery Calendars ( Yol . 1, p. 
 81, No. 54), and appears to have been a bill to “ establish dona- 
 tions,” filed by “Thomas Parker and others, in behalf of 
 themselves and other inhabitants of the town of Brentwood, 
 Essex,” and the lands were granted in aid of a former grant of 
 lands by royal license, for the establishment of a free grammar 
 school in that town and for other purposes. There was, there- 
 fore, in this case also, a legal and definite trust, a competent 
 trustee (which was an incorporated grammar school), and the 
 suit was brought by persons interested in the due execution of 
 the trust. 
 
 Without going into all the other cases noticed by Mr, Bin- 
 ney at length, I may be permitted briefly to notice one or two 
 more. 
 
 In Babington v. Gull , cited by him from 1 Cal. in Ch'y 
 LYI. as having been decided one hundred years before the 
 statute of Elizabeth ( Girard Will Case , jp. 129) the complaint 
 was that the plaintiff’s mother had placed 600 marks in the 
 hands of the defendant for the purpose of founding a chantry, of 
 which the plaintiff and his heirs were to be the patrons. On 
 looking into the bill it will be found that it was filed by Bob' 
 ington himself as patron of the chantry to compel its estab- 
 lishment under a royal license which had been granted, but 
 which the defendant refused to execute. 
 
 So, in Wakering v. Bayle , (1 Cal. in CKy , I VII) a bill 
 filed to compel the defendant, a feoffee in trust, to make an es- 
 tate in lands to the Hospital of St. Bartholomew, to find a priest 
 to sing perpetually, &c., and to office in a chapel made at the 
 cost of one of the feoffors. The plaintiff was Master of the 
 Hospital, and sued in its behalf , and the answer admitted the 
 feoffment and trust. 
 
53 
 
 Lyon cb Wife v. LLewe cb Kemp , also cited by Mr. Binney 
 (from 2 Gal . m XLIV.) as of the reign of Edward IV., 
 was a bill by the executors of the feoffor, who had by will de- 
 clared the uses of a feoffment of the defendants in trust, to find 
 a priest for a particular church, and making an aisle and porch 
 therein, the mending of an highway and the marriage of five 
 poor maidens. The suit was against the feoffee, who was the 
 trustee, for aliening the trust fund. Here there was a valid 
 trust, a competent trustee and plaintiffs authorized to protect 
 the trust property. 
 
 Baggs v. Sompney, also cited, is the same as Baggsand others 
 v. Sumpner , already mentioned, where the plaintiffs sued in 
 trust for the parish ; and although Mr. Binney does not notice 
 and may not have known it, it is the same case reported in 
 Tothill ( page 120), which he had previously cited for another 
 purpose. 
 
 In Buttlell and Purchas v. Fitche , the plaintiffs sued as 
 church-wardens , and the trust was for repairing the parish church 
 of Lyndsell, and Mr. Binney observes, after citing the case, “Ho 
 trustees, and complainants not a corporation to hold lands”; 
 but there is no evidence of this in the Calendars ( Vol. 1, p. 96) 
 and I am at a loss to know whence he derives his authority for 
 this conclusion. It is entirely clear that the church-wardens 
 were competent trustees of the fund. 
 
 In Blenkinsopp cb Salkeld v. Aronder sonne , the trust was of 
 “ an annuity of £8. for certain paupers and a schoolmaster in 
 the parish of Burch.” (1 Gal. in Ch. 101.) Mr. Binney re- 
 marks at the foot of his citation “ no trustees.” Why, the plain- 
 tiffs sued in an official capacity — one of them is described as 
 “ clerk” — “ clericalis” — and they were undoubtedly the benefi- 
 ciaries under the trust, and the defendants were the claimants 
 under the creator of the trust. The same objections may be 
 made upon the next three cases. Booking Parish v. F-ytche cb 
 
54 
 
 Goodwin , Church-wardens { vol . 1, 134). Barington Parish v. 
 Tgchner dc College , {vol. 1, 141). Careton and others v. Blythe 
 {Id. 159). In each of these the parish was the trustee ; and in 
 two of them the trust was for the parish poor, and the parish 
 which assented to the trust was the plaintiff. So Christ Church 
 vicar and Chur ch-war dens within Newgate , v. The Parish of 
 All Saints , {Cirard Will Case , 131) was the case of a legacy of 
 £ per annum claimed by both parishes. Mr. Binney says 
 there were u no trustees,” “ and apparently an indefinite char- 
 ity.” There is nothing said about it in the Calendars {vol. l,p. 
 218). Again {on page 132) Fairford v. Jenldns and others, 
 inhabitants of the manor of Oldsenth (1 Cal. in. Ch. 291), is the 
 same remark, but nothing is said about it in the Calendar. So 
 in Gillingham v. Edward and others {Cal. CFy p. 376), and in 
 Goodson and others v. Mind ay and others {vol. 1, 378). These 
 remarks are not warranted by the Calendars. In the first two 
 cases the parishes were the trustees, and there is no statement 
 in the one last cited that “ the trustees were unknown.” So at 
 page 135, By car dee and others for themselves and the inhabi- 
 tants of Bodborough , {vol. 2, p. 203) v. Payne and others , 
 
 u Bill to protect a charitable donation * * * * * of certain 
 lands which in the time of Henry YI. were given to the church 
 and parishes and inhabitants of Bodborough, for the perform- 
 ance of divine service in a chapel of ease to said parish, but 
 which defendants claim as having been forfeited to the Crown, 
 being given for superstitious uses .” ( Vol. 2 ,p. 30.) 
 
 Here there was a competent trustee, and the only claim of 
 invalidity was, that the use was superstitious. So in The In- 
 habitants of Thorplangton v. Jarvyes {vol. 3, 169), the statement 
 that it was an “ indefinite charity,” is an inference only, and is 
 not warranted by anything stated in the Calendar. 
 
 And so in regard to all the cases cited by him. In the very 
 sources from which he quotes. I do not find anything showing 
 
55 
 
 that there was not a definite trust, and that there were not trusteed 
 for the fund, having a legal or equitable interest; either in its 
 proper application, or in superintending its appropriation to the 
 objects to which it was devoted ; or as beneficiaries under it. 
 The terms of the various trusts are not attempted to be given 
 in the Calendars. The general obj ect of the bills is stated in 
 brief terms, in connection with the names of the plaintiffs, and 
 of the defendants, and this is all. For aught that appears, every 
 one of the charitable uses may have been definite and certain. 
 There is not a single case of an information prior to the time of 
 Elizabeth to be found in the Calendars. I have examined almost 
 every case and find that most of them were brought by parties 
 having some interest in or control over the trust or charity, and 
 legally competent to appear in Court and litigate for iuT protec- 
 tion and application to the use to which it had been devoted. I 
 invite attention to the numerous cases cited by Mr. Binney, in 
 verification of a remark made by one of the Judges of this 
 Court, that 
 
 “ All the elaborate research which has been given to this 
 subject has failed to prove that the Court of Chancery, prior to 
 the statute of Elizabeth, ever assumed to establish a bequest, 
 however meritorious or clear its object, if made to no one in par- 
 ticular, or to a person or body incompetent in law to take. If 
 any of the fifty cases cited from the report of the Becord Com- 
 missioners of England are of that character, the description of 
 those cases given in a note to Vidal et al. v. Girard's Executors , 
 (1 Howard's S. C. P. 155,) fails to show it” (Pr. Selden , Jus- 
 tice of the Supreme Court , in Chittenden v. Chittenden , 1 Am. 
 Law Peg. 545.) 
 
 These cases, and those earlier than the time of Elizabeth, 
 may be dismissed with the remark fitly made in the preface to 
 the first volume of the Calendars in which they are published : 
 
 “ From those proceedings it appears that the chief business 
 
56 
 
 of* the Court of Chancery in tho3e early times did not arise from 
 the introduction of the uses of land, according to the opinion of 
 most writers on the subject; very few instances of application 
 to the Chancellor on such grounds occurring among the pro- 
 ceedings in Chancery during the first four or five reigns after 
 the equitable jurisdiction seems to have been fully established.” 
 
 Even after the statutes of Uses and Wills, it was held that, 
 where a feoffment or devise was made to a person having ca- 
 pacity to take to a charitable use, though indefinite as to objects ; 
 as for the poor of a particular place, the feoffment or devise 
 was good at law. Whatever jusisdiction chancery had exercis- 
 ed in such cases seems to have been suspended, and the parties 
 claiming that the estate was divested if the use upon which it 
 was held was not performed, or that the trust was invaled, 
 brought an assize, or other proper real action and “ made out 
 their case as well as they could at law ; ” as was said by one of 
 your Honors following Lord Loughborough, in the case of Owens 
 vs. The Miss. Soc. M. Ch. ( 4 Kern , 393-4. See Spence Eq. 
 Jur. of CKy 589 ; Atty Gen. vs. Bowyer , 3 Yesey , 714, 726.) 
 Mr, Spence says : 
 
 “ It seems, however, that no bill could have been sustained to 
 establish a charity which was void at law , for want of a suffi- 
 cient devisee, prior to the Statute 43d Elizabeth.” 
 
 And he cites the opinion of Lord Nottingham, then Lord 
 Keeper of the Privy Seal, in the anonymous case reported in 
 Finch , (1 Ch. : Cases 267 ; 27 Car II. A. D. 16S7. See Shel- 
 ford on Mortmain , 277, note.) There one Prat devised his 
 houses to St. John’s College, being tenant in capite , and the 
 corporation misnamed, which was a void devise to pass the 
 lands, and so on former proceedings certified to by all the judges. 
 The Lord Keeper notwithstanding, decreed it a good appoint- 
 ment for a charitable use within the Statute 43d Elizabeth. It 
 was then objected that if so, the process and method appointed 
 
57 
 
 by the statute ought to be had, viz., a commission and inquisi- 
 tion and decree by commissioners, and so to come at last to a 
 final decree by the Lord Chancellor, but not to sue by original 
 bill, as in the case. But the Lord Keeper decreed the charity, 
 u though before the statute, no such decree could have been 
 made.” 
 
 Judge Denio. — Is there a preamble to that statute? 
 
 Mr. Noyes. — -There is a preamble to that statute, and I have 
 it here in the original Duke. 
 
 Now the case I have just cited proves that the Statute of 
 Elizabeth did introduce a new set of principles for the adminis- 
 tration of charitable uses; and that one of its objects was to 
 give what was supposed would prove a less dilatory and expen- 
 sive mode of proceeding; and the other to sustain trusts for 
 charities, which without its aid would have been void. 
 
 For if the remedy in Chancery was as perfect before the stat- 
 ute as it afterwards became with its aid, why pass it at all? Its 
 practical working was never very well, and it was ultimately 
 abandoned for that reason, although never repealed. There has 
 been no information filed under it since 1760, and it was retain- 
 ed for the purpose of upholding charities that could not be 
 maintained without it, but was given up as a mode of proceed- 
 ing. (, Shelf ord on Mortmain , 278-9 and notes. Tucker , </., in 
 G allego’s ETrs vs. Atty. Gen., 3 Leigh R., 470.) The imme- 
 diate necessity for the Statute grew out of the condition of the 
 law in regard to superstitious uses ; one of its main designs 
 being to declare by a positive enactment what uses were not of 
 that character, as well as to reform abuses in them. ( Shelford 
 on Mortmain , 89 to 103. Seepp. 95, 99.) 
 
 Another necessity was to furnish rules to supply the place of 
 the Ecclesiastical law in regard to pious uses, not superstitious, 
 8 
 
58 
 
 which had been abandoned at the Reformation, and which was 
 not applicable to -the existing state of things ; the effect being, 
 that the rules thereafter regulating such uses would emanate 
 from the Crown, and not from the Roman Civil law, combined 
 with the Ecclesiastical ; both of which previously existed under 
 papal authority. 
 
 Let me refer to that Statute for a moment. The Statute of 
 39th Elizabeth did not enumerate the uses which were charit- 
 able. It was not specific. The Court will see by reference to 
 Duke {Ed. of 1670, y>. 62,) that the Judges had a consultation 
 on that subject ; proceeding, as they were accustomed to do in 
 criminal cases, by deciding the case upon particular points in 
 the absence of and without hearing the parties interested. {Sir 
 John Kelynge's D.,p. 7.) Duke says, “Egerton, Popham, An- 
 derson, and Cooke (Coke), Attorney General, resolved these 
 questions upon the said statute,” and then follow resolutions as 
 of 44 Elizabeth, commencing in this way : 
 
 “That the bishops of the dioceses, if there be any, at the time 
 of the sealing of the commission, ought by the express words of 
 the said statute to be named as commissioners, or otherwise the 
 commission is void.” &c. 
 
 The report seems to have been taken from Baron Wild's 
 manuscript, and resolutions of a similar character, in some re- 
 spects, are found in Moore's Deports, (559,) where it appears they 
 were adopted in 41 Elizabeth, and they undoubtedly led to the 
 repeal of the Statute of 39 Elizabeth and the passage of that of 
 43 Elizabeth, because of the defects pointed out in the former. 
 They differ materially from those in Duke , and are translated 
 thus : 
 
 “Rote, that on St. Simon’s and St. Jude’s day, in the year 
 41 Elizabeth, I, with Cook, Attorney General, by order of Eger- 
 ton, Keeper of the Great Seal, applied to the two Chief Justices 
 
59 
 
 Popham and Anderson, for their decision on several points 
 under the Statute of 39 Elizabeth, cap. VI., which authorizes 
 commissions to redress deceits and breaches of trust of lands 
 aud effects bestowed for charitable uses. And the said Chief 
 Justices and Attorney decided on these points — 
 
 Fisrt. — That although the bishop of the diocese is one of these 
 commissioners by the express words of the act, still it is not 
 necessary that he should be present at the execution of the com- 
 mission ; but if the commission be directed to him and several 
 others, giving to them all and to several of them authority as to 
 five or four, those five or four may proceed without the bishop ; 
 still if the commission be not directed to the bishop, all is void. 
 
 Second . — That if the commission be directed to a vacant see, 
 that need not be the metropolitan because the bishop of the 
 1 diocese is not named, but a commission then issued without 
 naming any bishop is good ; and as a bishop may be created 
 before the execution of the commission, this will not take away 
 the force of the commission, but the commissioners will proceed 
 notwithstanding. 
 
 Third . — If the commissioners decree a lease or feoffment to 
 be void, it is void in interest and estate. And if the Chancellor 
 or Keeper of the Seal afterwards decree the estate to be good, 
 this is again good in interest, but it seems, that the Chancellor 
 cannot make any decree , unless the former decree of the commis- 
 sioners be contrary to aquity. 
 
 Fourth. — That where a lease is made in fraud of charitable 
 uses, and is afterwards assigned to one who had no notice of the 
 fraud, for a good and valuable consideration : still the commis- 
 sioners have power to decree the assignment void as well as the 
 original lease. 
 
 Fifth. — That the commissioners may decree the mesne profits 
 which have been witlield for a long time back, to be repaid by 
 the party, his executors or administrators, who received them 
 for these purposes and misapplied them — -just as well as they 
 may order for the time to come. 
 
 Sixth. — That the word ‘ given 5 in the proviso for the erec- 
 tion of hospitals, &c., in towns corporate, extends to a gift after 
 the statute, as well as to gifts before the statute. 
 
60 
 
 Seventh. — That the commissioners cannot by decree establish 
 a corporation of church-wardens or others for a charitable use, 
 although they may decree land to a body politic, capable, with- 
 out danger of mortmain, whether the lands be held iri capite or 
 by no one, because the Queen is bound by the statute on this 
 point. And they may establish lands in natural persons and 
 their heirs to continue charitable use.-. 
 
 Eighth . — That the commissioners have power to reform the 
 abuses of such corporations situate without corporate towns, or 
 to add land or make orders for those who are in the same con- 
 dition and whom Parliament by private acts incorporated for 
 charitable uses, in all cases where their private acts did not 
 provide any special course or form. 
 
 But note that after this decision the said Chief Justices, in con- 
 ference with other Judges, changed their opinion on this point, 
 that the commissioners could not decree the lease or estate void 
 which came to a person without notice, and for a good conside- 
 ration. And thus they certified their opinions in Chancery this 
 term.” 
 
 Chief Justice Comstock. — That is under the 39th Elizabeth ? 
 
 Mk. Noyes. — Yes, sir. 
 
 Chief Justice Comstock. — Do the two statutes differ? 
 
 Mr. Noyes. — They do, in many respects, but chiefly in this, 
 that the last enumerates the charities that are validated by it. 
 The Statute of 39th Elizabeth was repealed by 43d Elizabeth, 
 Cap. IX. ( Gibson’s Codex , 1114.) That of 43d Elizabeth, Cap. 
 1Y. is entitled — 
 
 “ An Act to redress the mis-einployment of lands, goods, and 
 stocks of mone}r, heretofore given to charitable uses.” 
 
 After reciting that — 
 
 “ Whereas, lands, tenements,” &c., u have been heretofore 
 
61 
 
 given, limited, appointed, and assigned, as well by the Queen’s 
 most Excellent Majesty, and her most Noble Progenitors, as by 
 sundry other- well disposed persons; some for relief of aged,” 
 &c., 
 
 then follows a long list of uses which are deemed charitable. 
 On page 3 of Duke (ed. of 1676) is the provision of the statute 
 in reference to the jurisdiction of the Ordinary, to which I have 
 adverted : 
 
 “ Provided also, and be it enacted by the authority aforesaid, 
 that neither this act, nor anything therein contained, shall be 
 any way prejudicial or hurtful to the jurisdiction of the Ordi- 
 nary, but that he may lawfully, in every cause, execute and per- 
 form the same, as though this act had never been had or made.” 
 
 And this was full seventy years before the Statute of Distri- 
 butions — 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 adopt- 
 ed 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 , 
 in Id N. Y if., 399.) I say, therefore, 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 
 stringent 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 
 
62 
 
 page 137. Pie 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 crystal- 
 izing the rule as it was then understood, with substantial ac- 
 curacy. 
 
 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 bad 
 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 rever- 
 sion ; no surrender to the uses of the will where a copy hold is 
 devised; or a defective recovery by a tenant in tail, who de- 
 vised 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 43d Elizabeth 
 ch. 4, supplies the defects, and though they cannot be called 
 legal gifts, yet they are good limitations and appointments of 
 the charity, which are the very words of the statute.” 
 
 This is also substantially affirmed in 1 Burns’ Ecclesiastical 
 Law (by Phillimore ), p.' 317 ( a ), and the same view is there 
 taken of the statute ; that it makes wills good, which were in- 
 valid before, and prevented the heir and next of kin from suc- 
 ceeding. 
 
 Let me refer to some of the cases cited by Nelson (p. 140). 
 One is, that of Damas (Moore S82, Duke 72, Bridgman? s Duke 
 
63 
 
 362), which came up in 1615, fourteen years after the Statute of 
 43d Elizabeth. 
 
 u 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 nses, 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 he 
 employed to charitable uses , and hindred and children can have 
 no property nor preheminence in them , hut 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 com- 
 pelled to pay the £400 — merely by force of the Statute of Eliza- 
 beth. 
 
 Juege Denio. — D o 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 
 
64 
 
 personalty and effects to some person other than the Ordinary, 
 and also that it would sustain a charity void but tor that statute. 
 It could also repeal, and in many cases was held to have repeal- 
 ed 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 enforc- 
 ing 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 ex- 
 pressly 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 
 AtVy Gen. v. Syderfin (1 Vern., 224; 1 Eq. Cas. Ah ., 96, pi. 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 patriae. 
 
 There, by will, a charge of £1000 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 ex- 
 pressed “good intentions,” — said to be the pavement of a place 
 somewhat warmer than most men desire, — filed his bill, claim- 
 ing 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 direc- 
 tion had been cancelled and revoked ; for after making the 
 will, the testator had charged several sums upon the land, and 
 
65 
 
 the whole estate would scarcely amount to answer all the 
 charges, and the heir would he disinherited and left without 
 provision. The Lord Keeper said : 
 
 “It is no question but the charity being general and indefi- 
 nite {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 vs. 
 Peacock , {sub nomine , Att'y Gen. 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 bill 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 cases of Hazel v. Pumney {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 re- 
 lations” 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 43d 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, indeed, bj 7 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 
 9 
 
66 
 
 being presumed even against the face of the testament itself 
 which sliowetli a cancellation. The non-cancellation of the be- 
 quest w T as presumed in Atty. Gen. 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 chanty was good, notwithstanding the 
 will is void in law ” — that the Statute of Elizabeth furnished 
 the rule of decision. This was Rolfs case {Moore 888), known 
 also as “Collinsorfs to which I shall again refer. (Nelson, 142.,) 
 
 EText, 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 (page 
 18): 
 
 “ These we find to be breaches of trust and misemployment 
 of lands and other property 4 theretofore given, limited, and ap- 
 pointed or assigned to or for any of the charitable and godly uses 
 thereinbefore 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 disposi- 
 tion 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 prop- 
 erty 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 dis- 
 pensed 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. 
 
67 
 
 St. John's College , (. Duke , 77 ; Bridgman's Duke , 379), decided 
 in 1638, thirty-seven years after the Statute of 43d 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 u main- 
 tenance of the scholars there. 55 Lord Keeper Coventry said : 
 
 u 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. 55 
 
 How 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 be- 
 quests 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 determinations — that all the 
 powers of the Court of Chancery to sustain such devises and 
 bequests, were derived from that statute ; which was an embodi- 
 ment in effect, of all the rules of the Papal Ecclesiastical law 
 in regard to privileged testaments. It applied to gifts to chari* 
 table uses not deemed superstitious, after the Reformation to- 
 wards the close of the reign of Henry VIII., and separately 
 
68 
 
 enumerated in the first section of that act. This further appears 
 from its provisions, some of which I shall . consider for a moment. 
 
 In the first place, the commission to inquire, &c., was issued 
 “ to the Bishops of the diocese and his Chancellor, and to other 
 persons of good and sound behavior.” The “jurisdiction of the 
 Ordinary or the power of the Ordinary ” was expressly reserved, 
 so that “ he may carefully, in every cause, execute and perform 
 the same as though this act had never been had or made.” In 
 other words, the commission was directed to the Ordinary, and 
 to these “ other persons of good and sound behavior,” was 
 granted a sort of superintending jurisdiction over the Ordinary 
 wdio usually resided in the place where the charity existed. The 
 decrees were only to stand good until the “same shall be in- 
 dorsed or altered by the Lord Chancellor, Lord Keeper, or 
 Chancellor of the county palatine of Lancaster within this same 
 jurisdiction, upon complaint of the party grieved to be made to 
 them.” And thus the power of the Ordinary as distributor of 
 the effects of deceased persons, subject to the control of the 
 Bjshops and of the King ultimately, was expressly reserved ; so 
 that, in cases of absolute intestacy, without anything which 
 could be called, under the equitable interpretation of that act, 
 a “limitation or appointment,” the Ordinary could distribute 
 the assets in charity at his pleasure, and the King under his 
 prerogative, could determine to what charity they should be de- 
 voted, to the exclusion of the meritorious poor relations of the 
 intestate, as was done in the cases I have just cited. 
 
 Kow, a little more of Boyle . He says, (p. 19) that as regards 
 testamentary dispensations — < 
 
 “ — it was declared that a devise of copyhold lands to the use 
 of a charity was good as an appointement, without a surrender.” 
 
 And he cites Bluett's Case (Moore, 890 ; 3 Ch. Bep ., 220; 
 Duke, II ; Bridgman’s Duke, 366) decided in 1618 ; Chard v. 
 
69 
 
 Opie ( Finch B., 75 ; 1 Pq. Cas. Abr. u Copyhold ” J?. 122, pi. 
 1,) in 1673 ; Atty. Gen. v. Baines or Barnes (2 Yern 598 ; 3 
 (7A. i?., 154 ; Prec.in Chan., 271) in 1707 ; Tuffnell v. Pope, 
 (2 AA 7?., 37 ; 2 Barnadist Ch. B., 9) in 1740. This idea of 
 supplying the want of a surrender began after and had its origin 
 in the Statute of Charitable Uses. To show this, I shall refer 
 to one of the cases cited, Bumbold v. Bumbold , (3 Yesey, 69) 
 where Lord Bosslyn said : 
 
 “ I have looked into Duke’s Charitable Uses. It is clear the 
 idea of supplying the want of a surrender, began after the 
 Statute of Charitable uses.” 
 
 In the same case he had previously said, “ upon commissions 
 for charitable uses.” 
 
 I need not stop to consider all the cases referred to, as they 
 fully sustain the position which I maintain. I ought, perhaps, 
 to refer to two of them. 
 
 Biveitfs case was decided in a proceeding upon the Statute 43d 
 Elizabeth. There 
 
 “ A copyholder of land in fee deviseth the same to a char- 
 itable use, (for the relief of Stow market) without a surrender. 
 The commissioners made a decree for the land, and upon 
 the appeal the decree was confirmed ; for although it is a 
 void devise by the common law, yet it is a good limitation 
 and appointment of land to a charitable use, and it shall bind 
 the heirs, but not the Lord of his fineL 
 
 The case of Atty. Gen. v. Andrews , (1 Yesey Sen., 225,) de- 
 cided in 1748, where Lord Hardwicke, alluding to the cases 
 which regarded the Statute of Elizabeth as dispensing with the 
 Statute of Wills as to copyhold estates, devised in charity, said : 
 
 a Perhaps if these determinations were now originally to be 
 considered, Courts of law and equity would not have gone so 
 far : and it 7nay be wished it was altered ; as it is subject to the 
 
70 
 
 same inconvenience as a devise of freehold lands. But I can- 
 not set up fanciful distinctions / nor does that being the case 
 of a trust make any difference.” 
 
 In regard to the whole of this class of cases, I would remark 
 here, that the Statute 43d Elizabeth in all modes of proceeding, 
 whether before the Commissioners under it, by bill in equit}^, or 
 by information at the suit of the Attorney General, was held to 
 have made a new rule, and to sustain a charity which w T as void 
 at common law for the want of some indispensable pre- requisite. 
 JSTo case justifying the practice before the statute, was pretended 
 to exist. 
 
 Boyle continues : 
 
 “ So a devise to a corporation for charitable uses was looked 
 upon in the same light, notwithstanding devises to corporations 
 were expressly excepted out of the Statute of Wills. Such a 
 devise could not, in the face of that statute, be declared good 
 as a will, but the act under consideration was said to validate 
 and authorize the disposition by way of appointment or decla- 
 ration of trust.” 
 
 For this he cites, and I refer to Flood's case [Hobart, 130 ; 
 Duke , 73 ; Bridgman's Duke , 370 ; S. C. sub nomine DeLaycl's 
 case , 1 Fq. Cas. Abr ., 95, Ajpl. 0) decided in 1615, where the 
 the devise was to the wife for life ; and after, to her daughter for 
 life, and then to the Principal, Fellows, and Scholars of Jesus’ 
 College, Oxford, to found a scholar of his blood there ; and it was 
 held that the devise was void as against the Statute of Wills, 
 which did not allow corporations to take in mortmain, but that 
 “ it was within the relief of the Statute of Charitable Uses, 43d 
 Elizabeth, under the words ‘limit’ and ‘appoint.’” That the 
 college could take and hold as against the ward and heir, al- 
 though colleges were expressly exempted from that statute ; that 
 being only to exempt them from an examination by Commission- 
 
71 
 
 ers under the statute, “ but not to restrain gifts made to them.” 
 The same doctrine was held in The King v. Newman , (1 Levinz , 
 184). 
 
 Now, in Flood’s case , the devise was good in form, certain, and 
 capable of being enforced at the suit of the trustees of the 
 charity, a valid corporation. It was, however, void when made 
 in 1571, being before the statute, and was made valid by a stat- 
 ute passed twenty years afterwards — perhaps after the death of 
 the testator ; and this would seem to be so, although the fact is 
 not distinctly stated. 
 
 Judge Denio.— If any statute was passed, the question must 
 have arisen upon gifts made before, to affect any existing dis- 
 positions of property? 
 
 Me. Noyes.' — Undoubtedly, the statute was regarded as retro- 
 active. Chief Justice Wilmot , in a case which I shall pres- 
 ently refer to, as Bolt's, also reported as Collin son's, and the re- 
 mark is equally applicable here, said that it w T as a case of — 
 
 “ A most violent retrospective relation to make a devise void 
 at law, a good one in effect, in equity.” ( Wilmot' s Opinions , 
 p. 13.) 
 
 Its operation was to divest the title of the heir to whom the 
 land had descended, before the Statute 43d Elizabeth, when the 
 will was void; there-being no statute nor any power in any 
 Court whatever, to remedy the defect and devest his title. 
 
 Let me next call the attention of the Court more particularly 
 to Bolt's or Collinson's case , already mentioned. {Hobart, 136 ; 
 Duke , 73/ Moore B,, 888.) Collinson devised a house to his 
 wife for life, (15 Henry YIIL, 1534), and after death to feoffees, 
 (as he called them,) to keep it in “ reparations ” and to bestow 
 the rest of the profits on the reparation of highways in Eltham. 
 
72 
 
 The testator and his wife died and the house descended to Holt, 
 an infant. The report in Duke shows that it was a proceeding 
 under the Statute 43d Elizabeth, before Commissioners in Kent, 
 and came into Chancery upon exceptions to their inquisition 
 put in by Rolt. Hobart says : 
 
 “It was in Chancery” — but he meant that it was there on 
 appeal, as it would properly be on the exceptions: 
 
 “ — between the parishoners of Rolt and was referred by the 
 Court to me ( Hobart ) and Ta7ifield i and we resolved clearly 
 that it was within the relief of the statute 43 Elizabeth ; for 
 though the devise was utterly void, yet it was within the words 
 4 limited and appointed to charitable uses otherwise if he 
 were an infant,” &c. 
 
 Here was a devise good in form and to a corporation — the 
 parish— for the use of highways. There was also all the re- 
 quisite certainty as to the objects of the trust, and a trustee 
 who litigated in his own name for the “ parishioners,” who were 
 parties ; and the statute, — probably passed after the descent cast 
 — was applied retrospectively to remedy the defect. That 
 it was so applied, the language of Chief Justice Wilmot , which 
 I have already quoted, declares ; and I refer to his views to 
 complete the argument upon the authority of that case. 
 
 Judge Denio. — T hat opinion was against charity, was it 
 not ? 
 
 Mr. Hoyes. — H o, he sustained the charity in question there, 
 but many of his views were in conflict with the extravagant 
 doctrines of some of the cases decided upon the statute, 43d 
 Elizabeth. 
 
 I will now consider one or two more authorities under this 
 branch of my subject. In the Mayor of Bristol v. I Y kitten, 
 ( Duke 81, Bridgman' s Duke 377,) there was a devise of money 
 
to Bristol, a municipal corporation, for bestowal amongst poor 
 people. It was held good by Lord Keeper Coventry although 
 Bristol was a corporation. Here there was a competent trustee 
 and a valid charity, there being no uncertainty as to the objects 
 of the charity. This was decided in 1633. Previous to that 
 time, and in 1629, Uillam's Case was decided. ( Duke 80, 
 Bridgman's Duke , 375.) It was a devise of lands to a company 
 of leather sellers in London to maintain a charitable use there. 
 Upon a decree by the Commissioners (under the statute 43d 
 Elizabeth) to settle the lands upon the company, and exception 
 taken, that b§ing a corporation they w T ere excepted out of the 
 statute of Wills, the decree was affirmed, u there being many 
 precedents for it.” This was a case exactly like the one last 
 before cited — a good devise and requisite certainty. 
 
 The case of Att'y Gen. v. Bowyer (3 Yesey, 724), decided in 
 1767, which your Honors will find to be the first case in Wil- 
 mot's Opinions, under the name of the Downing College Case , 
 which I have already cited, is to the same effect ; holding that 
 a devise to trustees to found a college was good under the 
 statute of 43d Elizabeth, provided the creation of the college 
 was sanctioned by royal license; Porter's Case , (1 Rep. 16, 
 A. D. 1584,) and Sutton's Hospital Case , (10 Id. 1,) being 
 chiefly relied on to sustain the charity. 
 
 Let me again refer to Boyle. He proceeds : 
 
 “ And in the somewhat analagous case of a devise to the 
 churchwardens of a parish to a charitable use, the disposition 
 was in Chancery deemed to be good, under the words 4 limit- 
 ed and appointed,’ in the Act.” 
 
 In connection with this, he refers to Pennyman v. Jenny , 
 {Duke 82, Bridgman's Duke 374,) decided in 1626. 
 
 “ Lands were given to churchwardens of a parish, to a charit- 
 able use ; although the devise loe void in law it w r as decreed 
 10 
 
good in chancery, by the words, “limited and appointed,” 
 within the statute.” 
 
 Also to the anonymous case in 2d Ventris 349, decided in 
 1682. 
 
 “ An impropriator devised to one that served the cure, and 
 to all that should serve the cure after him, all the tithes and 
 other profits, &c. Though the curate w T as unable to take by 
 this devise in such manner, for want of being incorporate and 
 having succession ; yet my Lord Chancellor Finch decreed 
 that the heir of the devisee should be seized in trust for the 
 curate for the time being.” 
 
 Both these cases proceeded strictly upon the statute of 43d 
 Elizabeth, and without its aid the heir would have taken. It 
 does not clearly appear whether they arose upon the statutory 
 proceeding or by bill in equity. 
 
 Boyle says further — 
 
 “ — a devise or settlement by tenant in tail, who neither levied 
 a fine nor suffered a recovery, was held to be a good appoint- 
 ment under this statute of charitable uses, both against the 
 issue in tail and the remainder man.” 
 
 He cites Tay v. Slaughter , ( Prec . in Chan. 16,) decided in 
 1690, to which case I will call your attention. 
 
 “Tenant in tail settles land for a charity, and in 1652 a 
 decree was made by the Commissioners of charitable uses ap- 
 plying these lands to the charity ; then the estate tail is spent 
 and Tay who was the remainder man in fee and an infant , 
 put in exceptions to the decree, that he ought not to bo bound 
 by the decree, not coming in under the tenant in tail. But all 
 the commissioners held that all appointments of a tenant in tail 
 to a charity, are by the statute good and binding against the 
 remainder man, as well as against the issue in tail, and there- 
 fore confirmed the decree with costs.” 
 
75 
 
 Now this was a proceeding before Commissioners, under the 
 statute of 43d Elizabeth. It cut off an infant’s right and de- 
 prived him of his estate — it destroyed the remainder — and de- 
 feated the clear intent of a deed or w r ill by so doing. And the 
 founder of the charity was enabled to settle to its uses a larger 
 estate than he had ; thus giving him an absolute, when he was 
 entitled only to a limited interest in the land, and enabling 
 him to devote it for ever to the charity. 
 
 Another authority to which I may here with propriety refer, 
 is Attfy Gen. v. Bye, (2 Vernon 453 ; 1 Ey. Gas. Abr. 172, fol. 
 7,) decided in 1703 ; which was a devise of a charity to main- 
 tain a school master. The decision of the Commissioners sus- 
 , tabling the charity, was affirmed by the Lord Keeper on ap- 
 peal ; the doctrine held, being, that a tenant in tail may devise 
 lands to a charity and the devise shall be good, though there 
 be no line levied or recovery suffered. 
 
 In Attiy Gen. v. Burdett , (2 Vern. 755,) in 1717, although it 
 does not appear how the question arose or what the specific 
 charity was, it was said in the opinion sustaining it, 
 
 “ — the statute of charitable uses supplying all defects of 
 assurance, where the donor is of a capacity to dispose, and hath 
 such an estate, as is in any way disposable by him, whether by 
 line or common recovery.’' 5 
 
 Boyle says further — • 
 
 “But even this is not all, for where a person seized of lands in 
 cajoite as tenant in tail, devised the whole of such lands, giving 
 to one an estate for life, and a remainder upon that estate for a 
 charity, the determination was that the whole lands, though 
 being held in cajpite only two parts were devisable, passed by 
 the will ; that the estate tail was bound by the devise to charit- 
 able uses ,* that the particular estate could not take effect, but 
 that the remainder to the charity was good.” 
 
76 
 
 The position thus stated was cited by Lord Rosslyn , in Rum- 
 bold v. Rumbold , (3 T^y, 70,) to which I have already ad- 
 verted, as established by a case in Duke, and he characterized 
 it as “ a strange determination, that, I think, could not be law 
 now.” 
 
 In Flood's Case , already referred to, it does not appear from 
 the report in Hobart (p. 136), that the question arose as to lands 
 in cdpite , but this does appear from the other two reports. (1 
 Eg. Gas. Abr ., 95, A. 6 ; Duke , 85 ; Bridgeman's Duke , 372.) 
 The Judges there said : 
 
 c£ Also, none can devise their lands held in capite to any, but 
 must leave a third part to descend,” 
 
 But still they certified and resolved : 
 
 “ — that although it be void by the common law, yet the statute 
 of 43d Elizabeth, for charitable uses, doth make this good as a 
 limitation or appointment, and that it was good for all the land." 
 
 The same rule did not apply in Lord Montagud s Case , ( Duke 
 78, Bridgman's Duke , 370,) decided in 1619 ; for there the 
 testator had conveyed two-thirds of the land held in capite in 
 his lifetime, and the} will covered only the remaining one-third, 
 and so the Judges resolved that the will was void, and was not 
 aidedby the statute 43 Elizabeth, of charitable uses; on the in- 
 stant of his death the land descended to his heir, and the devisor 
 having disposed of two parts in his lifetime, he was disabled to 
 devise the remaining part. Yet if he had not made the con- 
 veyance of two-thirds in his lifetime, the whole would have 
 vested in the charity. 
 
 There was a similar decision to that in Flood's Case , in 
 Christ's Hospital v. Hawes ( Duke , 84, Bridgman's Duke , 370, 
 A. D. 1620,) before the Commissioners of the Great Seal. It 
 was there insisted, “ that the devise, covering the whole, was 
 
77 
 
 void as to the third part, which he could not devise “ Yet it 
 was held to be a good limitation and appointment within the 
 statute 43d Elizabeth, as doth well enable the Commissioners 
 for charitable uses to decree the whole, 55 and the Commissioners 
 
 {C decreed it to be confirmed, for that it appeared to them that 
 it was the true intent and meaning of the donor, that all the 
 lands in question should go to the hospital. 55 
 
 Boyle says, the ground of these decisions 
 
 “ appears to have been a supposed discovery of intention on the 
 part of the Legislature to remedy and supply all defects and 
 omissions in point of form. Wherever, therefore, a disposition 
 was purported to be made by a person, who had a legal capacity 
 to give in any way , the intention to devote the subject of the 
 gift to a charity, however improperly executed, was laid hold 
 of as a foundation for supplying every imperfection in the mode 
 of donation. (Citing Wilmotfs Opinions , 12.) It was con- 
 sidered also, as respects dispositions of a testamentary character, 
 that the act of Elizabeth being subsequent in point of date, must 
 be held to have superseded and repealed the Statute of Wills. 
 This would have been a proper determination enough, provided 
 the one had contained an enactment of a different purport from 
 the other, in which case, the first, though not expressly repealed, 
 must yet be considered to have been so ; but here the Courts 
 have turned words of mere description into words of enact- 
 ment, contrary to all the rules of construction, and the obvious 
 meaning of the words employed.’ 5 
 
 And on page 22, he says : 
 
 “ Other parts also of the act have been tortured in a similar 
 way. Thus, under the latter branch of the sixth section, which 
 directs that recompense shall be made by the heirs and exe- 
 cutors of deceased persons, out of the assets come to their hands 
 and which is plainly intended to be confined to those cases in 
 which there may have been frauds or breaches of trust, it used, 
 
7 $ 
 
 formerly, to be considered, that charitable bequests were pay- 
 able out of equitable assets, not only before any other legacies, 
 but even before debts / because it was assets in equity, which 
 were disposable by that statute, which ordains them to make 
 recompense ; and the equity of the statute w T as held to be above 
 the equity of the chancery.’’ 
 
 Citing Duke on Charitable Uses (186), being the last page of 
 Sir Francis Moores Heading on the statute {Bridgman’s Duke , 
 191,) and he remarks, finally, that this rule was changed by 
 Lord Chancellor Cowper and others, and brought down, as Lord 
 Eldon said, “ to something like common sense.” 
 
 I now call the attention of the Court to the following cases, 
 where the bequest or devise was wholly uncertain, and yet held 
 good under the Statute 43d Elizabeth : 
 
 Steward v. Jermyn , in 1598, {Duke, 79, Bridgman's Duke , 
 360,) where one having lands and goods, appoints by his will, 
 that the same shall be sold to maintain a charitable use, but did 
 not appoint by whom the sale shall be made. The Lord Keeper, 
 on appeal to him, confirmed a decree for a sale by one J. S., 
 appointed by the Commissioners, and the proceeds to be ap- 
 plied to the charitable use, according to the donors wish. 
 
 'Wingfield's Case , in 1629 {Duke 80, Bridgman's Duke 374). 
 Money given for the good of the church of Dulk ; held a good 
 gift, notwithstanding these general words. 
 
 Cofife v. Webb, in 1602 {Duke 80, Bridgman's Duke 361). 
 Hunt seized in fee of the rectory of Haynes, devised the same 
 to be sold and the money to be distributed unto twenty of the 
 poor of his kindred ; held good, although it did not appear he 
 had any “poor kindred.” 
 
 Fisher v. Ilill, in 1612 {Duke 82, Bridgeman's Duke 484). 
 Mr. Bridgman, probably on the authority of Tothill , {p. 29) 
 says it was “ in Chancery.” Holds that — 
 
79 
 
 “ When no use is mentioned or directed in a deed, it shall be 
 decreed to the use of the poor, although the feoffees be gentle- 
 men living out of the town, and not inhabitants within the 
 town.” 
 
 Judge Denio.— Were all these cases decided under the Stat- 
 ute of Elizabeth ? 
 
 Mr. Noyes. — M any of them expressly appear to have been, 
 and I have no doubt they all were, and in many cases an instru- 
 ment in which there was a plain and palpable defect, which 
 rendered it wholly void, was held to create a valid charitable 
 use by virtue of that statute. I refer to Stoddard’s case , in 
 J605, as being almost precisely like the one now before the 
 Court, reported by Duke (81, Bridgman’s Duke 373,) and Tot- 
 hill (93 ; ed. <?/1820,^. 31) : 
 
 i . 
 
 44 Stoddard devised by parcel ( Tothill , £>. 31, says it was 44 by 
 parol” and the mistake is obvious,) a yearly rent of £10 per 
 annum forever out of his house called the 4 Swan with 100 
 marks, 5 ( Tothill says its name was the 4 Swan with two necks’) 
 in the old Jewry, London, for the maintenance of two scholars 
 in Oxford and Cambridge; and willed that one, Hugh, the 
 scrivener should put it into writing, wdiich was done according- 
 ly, and this being found by inquisition was decreed, and the 
 decree affirmed upon appeal ; for although by law, a rent can- 
 not be created or granted without a deed, yet this nuncupative 
 will was good to create the rent to a charitable use, by the 
 words of the statute 4 a limitation or appointment ; 5 for although 
 it be not a good gift, yet it is a gobd limitation or appointment. 55 
 
 Now this was after the Statute of Wills (32 Henry YIII.), the 
 will was by parol or without due execution under that statute, 
 and yet the Statute of'43d Elizabeth was held to have remedied 
 the defect. If the devise was good, it w T as certain — the ob- 
 jects were certain— and there was a proper party to ask relief 
 
80 
 
 and apply for the protection of the fund. This case, however, 
 was overruled one hundred years afterwards in Atty. Gen. v. 
 Barnes , (2 Vern., 597,) Lea v. Libb , ( Carthew , 35, A. P. 1888) 
 Pigott v. Penrice {Glib Eg. R ., 137, A 1717,) is a similar 
 case. I refer also to Atty. Gen. v. Sawtell , in 1712, (2 AiE, 
 497,) which was this : 
 
 “ Whether copyhold lands surrendered by Sir John Fash to 
 the use of his will, and devised by him to a charity, would pass, 
 as the testator had not signed the last sheets nor was there any 
 witness to it. A scrivener had orders to engross it, but the tes- 
 tator being in extremis , the rough draft consisting of eleven 
 sheets was brought to him and he signed only the two first, hut 
 died before he could sign the rest. It was found in the case 
 that the testator asked before he signed the will, whether it was 
 according to his directions, and the scrivener assured him it was. 
 The Chancellor, Lord TIardwicke, though the will was not 
 signed in the last sheet and without witnesses, yet held it to be 
 a good appointment of the copyhold estate for the charity ac- 
 cording to the Statute 43d Elizabeth, c. 4, of Charitable Uses.” 
 
 I ask the particular attention of the Court to the case of Atty. 
 Gen. v. Hickman ( W. Kelynge R 34,y>Z. 24 ; 2 Eg. Gas. Abr ., 
 Title “ Charity ,” Apt. 14; Bridgman’s Puke , 476) decided in 
 1732, as a case strikingly like the present, which establishes 
 that although a legacy be lapsed in law, yet it shall subsist in 
 equity for a charity by virtue of the Statute 43d Elizabeth : 
 
 “ An information was exhibited by the Attorney General for 
 the performance of a charity given b} T a codicil annexed to the 
 testator’s will, by which he devised that what should remain 
 and the residue of his estate and effects , be given tor encourag- 
 ing such non-conforming ministers as preach God’s word in 
 places where the people are not able to allow them sufficient 
 and suitable maintenance, and for the encouraging of such as 
 are designed to labor in God’s vineyard as dissenters, and ap- 
 points two persons to have the appointment and disposal of the 
 
 * 
 
81 
 
 said charity ; loth of which persons died in the lifetime of the 
 testator.” 
 
 Two questions arose : first, whether both the trustees to whom 
 the disposal and appointment of the said charity were given, 
 dying in the lifetime of the testator, this charity was not gone, 
 and- in the nature of a lapsed legacy. Lord Chancellor King 
 said : 
 
 “ The substance of the charity remains, notwithstanding the 
 death of the trustees before the death of the testator ; and though 
 at law it is a lapsed legacy , yet in equity it is subsisting; and 
 here is a sufficient certainty of the testator’s intention to revive 
 it, the intention , therefore , of the party is sufficiently manifested 
 that this charity should continue , within 43d Elizabeth, cap. 4. 
 It has been held that if the tenant in tail devise a charity, 
 though no recovery is suffered, yet that it shall take place and 
 be effectual as an appointment under 43d Elizabeth.” 
 
 And he cited the principle of the statute as interpreted and ap- 
 plied in the cases of Atty. Gen. v. Rye (2 Vern. 453), and Same 
 v. Burdett {Id ., 755), and he does not contend for it on any 
 other ground than the obligatory force of the statute. 
 
 The second point which arose there, was whether this was a 
 superstitious use within 1 Edward I., cap. 14 ; “ non-conforming 
 ministers” and u dissenters” being such general words, as that 
 they comprehend any persons however opposite to the Church 
 of England. In regard to this the Lord Chancellor said : 
 
 “ This cannot be a superstitious use within the statute, but 
 the dissenters here meant are protestant dissenters acting under 
 the Toleration Act (1 W. & M., Ch. 18.)” 
 
 And he decreed the residum to be disposed of in praesenti 
 and not in a perpetual charity, and ordered a scheme to be laid 
 before him for that purpose. The report in Eguity Cases 
 11 
 
82 
 
 Abridged (“ Charity ,” A pi. 14th) has this addition as part of 
 the will. 
 
 “ The particular method how to dispose of it I prescribe not, 
 1 leave it to their discretion , desiring you (B, the devisee) to 
 take advice of C and D.” 
 
 In that respect it was like this case exactly. Here, as there, 
 it embraced real and personal estate. The trust was personal 
 depending upon the discretion of the trustees, and advice of 
 other parties was to be taken. There was also a competent 
 trustee — B, the devisee. The suit was brought in Chancery by 
 the Attorney General as the representative of the Crown ; and 
 yet the will was departed from, the funds distributed at once, 
 and a scheme was directed and adopted in order to do this — 
 something entirely foreign to the whole plan of the will. Hay 
 more, the bequest was sustained only und r the Statute of 43 d 
 Elizabeth / and as the codicil by which it was given was not 
 witnessed as appears by the report in Equity Cases Abridged ’, 
 and was therefore void under the Statute of Frauds within 
 Dr. Johnson’s case (2 Vern., 597), as to the real estate; it was a 
 plain case where the heir was disinherited, solely by force of 
 that statute. Upon this general subject, the potency given to 
 the statute, I refer to what Lord Chief Justice Wilmot sajs in 
 the Downing College Case. ( Opinions , pp . 11, 12, 13.) 
 
 u But then comes the Statute of 43d Elizabeth, with such 
 medicinal qualities in it .” 
 
 I think that is an important quality in a statute. 
 
 Mr. Yan Buren. — That refers to dispensaries. 
 
 Mr. Hoyes. — “ as to heal every imperfection in a charitable 
 disposition, provided the party had a legal capacity to give at 
 all. * * * The words laid hold of by 
 
83 
 
 the Judges were “ limited and appointed.” If there was 
 a gift in fact by a person who had a legal capacity to give in 
 any way, they considered that intention, improperly executed, 
 to be a foundation for supplying any imperfection in the mode 
 of donation ; and that the Legislature intended, if estates were 
 given in fact, defects in form were not to be attended to, and 
 they were to let the charity take place.” 
 
 I also refer to the case of Attorney General Tancred (1 Eden 
 10, Ambler 351,) decided in 1757. Tancred conveyed part of 
 his real estate in default of issue, to charitable uses, defective 
 because made to certain officers of a corporation who were not 
 capable of taking in succession, and not to the corporate body. 
 On the hearing of the case it was objected between the heirs 
 and those entitled to the charity that the estate was given to 
 persons incapable of taking in succession. Lord Keeper Hen- 
 ley said : 
 
 “But the constant rule of the Court always has been, where 
 a person has a power to give, and makes a defective conveyance 
 to charitable uses to supply it as an appointment, as in Jesus ’ 
 College , (Collinson’s) Case , ( Hobart , 136.) * * * 
 
 The only doubt is, whether the Court should supply the defect 
 for the beneft of the charity under the Statute of Elizabeth, and 
 1 take the uniform rule of this Court before and after the Stat- 
 ute 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.” 
 
 Such was undoubtedly the rule after the statute, but I think 
 I have shown that it was not the rule before. I refer to one 
 other casejH&fy Gen. v. Sedgwick (1 Eden , 487), decided in 1760, 
 where an attempt was made to compel a devise to increase a 
 legacy to a charity, an amount “ not exceeding £100, being left 
 to be applied in his discretion,” and he applying only a portion 
 of that sum. Lord Keeper Henley said : 
 
84: 
 
 “ It is true, and I am sorry for it, that there are old preced- 
 ents in this Court, where, by & perverse and mistaken construc- 
 tion of the Statute of Elizabeth, this Court enabled persons to 
 give to charities, who had no power to do so by law ; and it is 
 as true that these precedents not only injured private families 
 but became a public nuisance, which called upon the Legisla- 
 ture to interpose and stop them. But I found the equity of this 
 Court liberal and impartial, and no respecter of persons, and 
 please God, I will leave it so.” 
 
 I have now laid before the Court some of the evidences which 
 have guided me in arriving at my conclusions in this case. I 
 have examined (hem witli care and stated them with fidelity. 
 In my judgment, they lead only to one result, and I submit that 
 the principles and authorities cited establish, that general and 
 indefinite trusts for charities, such as are sought to be sustained 
 in this case, were only maintainable in England by virtue of the 
 prerogative of the Crown and the statutes 39th and 43d Eliza- 
 beth. There is no case, to my knowledge, before those statutes, 
 nor any warrant except that given by them or claimed as the 
 privilege of the Crown, for sustaining indefinite trusts for chari- 
 ties. I have read every word in Duke , where the contrary 
 doctrine would be found if it ever existed, and do not find any 
 such case there. And further, I assert; that, as our Court of 
 Chancery possesses only the ordinary jurisdiction of Chancery 
 over trusts, and the prerogative of the Crown cannot be exer- 
 cised, and the Statute 43d Elizabeth does not exist here, the 
 trust for a dispensary now under consideration is void. It has 
 only been incidently said in this Court that the statute did not 
 introduce a new rule. Duke shows the contrary, and Nelson and 
 Boyle and the reported cases say the same thing, and they are cer- 
 tainly a weight of authority thatis overwhelming. Doubtless many 
 of the adjudications made under that statute would never be made 
 again. They were unrighteous as well as “ perverse.” But they 
 form the foundation of the legal edifice of England as to charities, 
 
85 
 
 and must, with the statutes themselves, be rejected as contrary 
 to the spirit of our institutions and against the policy of our 
 laws. 
 
 In regard to the cypres doctrine, that is only a branch of the 
 Ecclesiastical law, dependant originally upon the prerogative of 
 the Crown for its existence and exercise. It was administered, 
 or rather, its principles applied, in Chancery, only under the 
 statutes 39th and 43d Elizabeth. As a head of equity jurispru- 
 dence it had no existence independently of them. It has never 
 been adopted by us as applied to charities. It is wholly un- 
 suited to our modes of procedure, and cannot be invoked to aid 
 the trust in question. (Tudor's Charitable Trust Act, p. 63, § 
 66 ; Boyle on Charities , 147, 155 ; Shelf or d on Mortmain, 601.) 
 
 By refering to Swinburne (< on Wills , ed. 1590, p. 31 , ) it will 
 be seen, that the doctrine came from one of the rules as to pri- 
 vileged testaments : 
 
 “ Another privilege is, that for the obtaining of anything left 
 conditional ad pias causas, it is sufficient the condition be ac- 
 complished by other means than according to the precise form 
 of the condition. Whereas in other testaments and legacies, it 
 is not sufficient, unless the condition be precisely observed.” 
 
 And he cites Tiraquel (De prin pice causce, ch. 837). But 
 this point need not be pursued further. Judge Denio in Wil- 
 liams v. Williams (4 Selden, 548), said that “ the distribution 
 of powers among the great departments of the government, 
 which is a fundamental doctrine in the American system, 
 would prohibit the Court from exercising a power so purely 
 discretionary.” 
 
 Chief Justice Comstock.— I understand the gentleman to 
 have admitted that. 
 
 Me. Beynolds. — I do not propose to consider the cy-pres doc- 
 
86 
 
 trine, but shall rely on the cases of Moggridge v. Thackwell 
 (6 Vesey, 83) and Williams v. Williams (4 Selden , 525). The 
 former case I have cited to show the deductions of Lord Eldon , 
 exhibiting in what cases the Lord Chancellor, as the agent of 
 the Crown, and in what the Court of Chancery disposed of 
 cases of public charity. 
 
 Mr. Noyes. — I willingly accept the gentleman’s disclaimer. 
 
 Mr. Reynolds. — It is no disclaimer. It is an explanation 
 simply, of my grounds. If you find such a proposition on my 
 points, the criticism is warrantable. 
 
 Mr. Noyes. — I would simply add that the doctrine itself is 
 now greatly modified in England, and that if a specific object 
 be pointed out, as the building of a church, or giving money to 
 the inhabitants of particular parishes, it must be effected intoto , 
 or not at all ; and if it fail the property will go to the next of 
 kin or heirs at law. ( Atty . Gen. Bishop of Oxford , 1 Bro. Ch. 
 i?., 141 ; same , Goulding , 2 Id ., 428). 
 
 But further : The executors — to whom, if to any one, the testa- 
 tor committed the exercise of the large discretion which alone 
 could establish the dispensary and effectuate the trusts — having 
 renounced, there is no authorized person or body to exercise it 
 in their stead ; and as the Court has no jurisdiction to perform 
 it, it cannot authorize its performance by any one else. Indeed, 
 the testator did not intend that any persons other than the 
 executors should exercise it, and gave no power of substitution. 
 On this point the learned counsel (Mr. Reynolds), cited Coiik- 
 lin y. Edgerton , (21 Wend . 430), but that case was overruled 
 in Bogert v. Ilertell (4 JBill, 492), and disapproved by Mr. 
 Surrogate Me Yean in Andeson's Case (5 JY. Y, Leg , Obs ., 
 303.) And in reply to the other authorities cited by the coun- 
 sel, and which as I contend, do not touch the point, as they are 
 
87 
 
 not cases where a personal trust reposed in one was permitted 
 to be transferred to and performed by another, after it had 
 been renounced by such trustee, I refer also for the true rule on 
 the subject to Lewin on Trusts , (262-6) ; Bradford v. Befurd , 
 (2 Simons , 2d 4) ; Adams v. Clifton , (1 Buss., 297) ; Matter of 
 Thornton , (2 Add., 273) ; Attfy Gen. v. Scott, (1 Vesey Sr. 413 ; 
 Walter v. Manude, (19 Yesey, 425) ; Matter of Stevenson, (3 
 Paige, 420); Matter of Van Wyck, (1 Barb. Ck. R., 565). 
 
 I may be pardoned here for reverting to the force of the 
 authority of Williams v. Williams, to say a single w T ord more 
 about it. I do not for a moment suppose that the doc- 
 trine for which I am contending will unsettle any point of law 
 actually adjudicated in that case, and necessary to its determi- 
 nation. And as that case did not concern real property, it is 
 not necessarily conclusive. Even if it should be deemed in 
 conflict with any views now r presented, it may perhaps be re- 
 viewed. 
 
 The cases to which I have already called the attention of the 
 Court as authorizing a re-examination of a decision once made, 
 ( Millers . Emans , 19 N. Y. R , 384; overruling Pelletrean 
 v. Jackson, 11 Wend., 10 ; Jackson v. Waldron, 13 Id., 178, 
 and Edwards Yarick, in the Court of Errors in 1846,) are in 
 point and furnish an ample justification for asking a recon- 
 sideration of this most important question. There, the Court 
 overruled decisions of the highest Court of this State, one of 
 them made a quarter of a century since, and in doing so, in my 
 judgment, has returned to the true rule. 
 
 The other cases I also cited shew, that upon principle, 
 the point may be re-considered. The thing chiefly important 
 in the administration of justice, so far as the stream of authori- 
 ties goes, as a general rule, is that there should be sound 
 doctrines rather than unsound cases. The rule as I take it to 
 be, is, that an erroneous case should not be followed unless it 
 
has become a rule of property, and incorporated itself with the 
 interests and usages of the community. To deny to a Court the 
 power of correcting an error in its decisions, is to give it the 
 capacity of repentence, without the ability to amend. 
 
 I have referred to other authorities — particularly to Plainer 
 v. Sherwood, (6 Johns. Ch. R ., 118,) where Chancellor Kent, 
 (who always had the magnaminity to confess his mistakes), re- 
 tracted an opinion and corrected his judgment on the first 
 opportunity. His remarks I have already quoted, and they are 
 the more noticable, as in overruling himself, he also overruled 
 that great legal luminary Lord Coke, and upon a point where 
 the profession has been in an error for more than a century. 
 
 Judge Mason. — I do not see any propriety in this Court 
 changing its decisions every year. If there is any lack in this 
 Court it is in not adhering to its own decisions. I only speak 
 these things of what was legitimately decided in the case of 
 Williams. 
 
 Mr. Hoyes. — Ho one seeks such rapid changes, nor indeed, 
 any from what w T e think was necessarily and properly decided 
 there. The doctrines of that case and those we now contend 
 for, do not necessarily come in conflict. That case may be up- 
 held in England and here without the Statutes of Elizabeth. 
 This cannot, and I leave that authority to be allowed such 
 weight as it may be entitled to and close my consideration of 
 the most important question in this case. 
 
 I maintain however, that the final bequest at the close of the 
 codicil of October 15th, 1838, is also void. It is wholly uncertain 
 as to the sum bequeathed, and as to the beneficiaries. It does not 
 appear whether the societies who are to take are incorporated or 
 not. If the latter, then it is void within the ruling in Owensv. Miss. 
 Soc. M. E. Ch ., (1HA JV. Y. R.. 380), because unincorporated. 
 Besides this, it is indefinite and uncertain as to what societies, 
 
89 
 
 and where they are located ; and there is no mode of selection 
 provided for, if the executors refuse to act, or die ; and having 
 renounced they cannot make the selection. I refer again to 
 Attfy Gent. v. Hickman , (2 W. Kelynge R. 4, pi. 4 ; 2 Eg. Gas. 
 Abv. 193, Title “ Charity ,” A pi: 14), as being conclusive on 
 this head ; for there it was decided that if the party to whom 
 the discretion was confided, died, that duty could not, except 
 under the Statute 43, Elizabeth, be conferred upon another. 
 Jarman on Wills , ( Perkins Ed. Vol . 1, 196) contains the 
 principle and cites some authorities, to one of which I will 
 refer. The case of Williams v. Kershaw (5 Cl. d? Fin. Ill), 
 where it was held that ; 
 
 “ A direction by a testator to his trustees to apply the residue 
 of his personal property to and for such benevolent, charitable, 
 and religious purposes, as they in their discretion should think 
 most advantageous and beneficial and for no other use, intent, 
 or purpose, 1 
 
 was void for uncertainty. Again, the amount to be ap- 
 propriated under this provision depends on, and is to be ascer- 
 tained by, the previous application of a portion of the estate, 
 according to the directions of the first codicil to the establish- 
 ment of a dispensary ; failing which, it is impossible to deter- 
 mine the amount set apart to general charity ; and the bequest 
 necessarily falls. ( Chapman v. Brown , 6 Vesey , 404 ; Attfy 
 Gen. v. Bavies y d Id ., 535 ; Limbey v. Gurr , 6 Madd. Ch. R., 
 151; Attiy Gen. v. Hinxman , 1 Jac. c& Walker, 270; 1 Jarman 
 on Wills , 205 ; Boyle on Charities , 78-82 ; Tudor Char. Trust 
 Act , jo. 70, § 70.) 
 
 ¥e claim, therefore, that the Justice at Special Term erred 
 in supposing, that if the devise and bequests for the dispensary 
 failed, the funds to be devoted to that purpose sunk into the 
 residue of the estate, to be applied under the last codicil to 
 12 
 
90 
 
 general charity. ( Boyle on Charities , 419-20 ; Gravenor v. 
 Hallum , Arribler 643 ; 1 Jarman on Wills , 206.) Why, the 
 very language of the last codicil expressly excludes any such 
 inference. It says : 
 
 “ In the second place, after satisfying the provisions of my 
 will in regard to the dispensary mentioned in my will, or in the 
 first codicil thereto, I give and bequeath all my estate then re- 
 maining , if any there shall be,” &c., 
 
 leaving no doubt that the testator did not intend to devote to 
 general charitable purposes any portion of his estate, except 
 what might remain after the dispensary was established and 
 funds set apart for its perpetual maintenance, and that he doubt- 
 ed if there would be any. Again, it was a part of the residue 
 of the estate, if anything, that was devised and bequeathed to 
 the establishment of a dispensary ; and it is well settled — 
 
 “ that a residue never includes what has once been bequeathed 
 as a residue, but of which the gift fails. * * * * 
 
 A part of the residue, of which the disposition fails, will not 
 accrue in augmentation of the remaining parts ; but instead of 
 resuming the nature of residue, devolves as indisposed of.” 
 
 I refer to Ward on Legacies (32), and cases there cited. (See 
 also Floyd v. Barker , 1 Paige P., 4S0-2 ; SkrymsJier v. Worth- 
 cote, 1 Swanst II., 565; Chiplyn v. Cresswell , 2 Eden _Z?., 123.) 
 
 But even if the entire estate should be ascertained as directed 
 at Special Term, still the sums to be applied under the last 
 codicil, and the time when the application is to be made, are 
 left to the absolute discretion of the executors ; and this cannot 
 be exercised, as they have renounced. Ho individual or society 
 has a legal interest in this bequest, or could compel the per- 
 formance of it as a trust in his or their behalf. It has been 
 shown that in such cases our Court of Chancery has no power 
 
91 
 
 to uphold the trust ( Female Ass^n of N. Y. v. Beekman , 21 
 Barb. S. C. R 565), and I have attempted to show, and hope 
 I have proved, that the English Chancery had not the power to 
 maintain such a trust independently of the Statute of Elizabeth. 
 
 The matters which I have thus far discussed having occupied 
 so much time, I shall not trouble the Court further with refer- 
 ence to the remaining propositions contained in my points ; 
 but, grateful for its indulgence in allowing me to engross so 
 much of its time, and for the attention with which I have been 
 heard, I respectfully leave the interests of my clients in its 
 hands. 
 

 
 
9 ?, 
 
 APPENDIX. 
 
 LAST WILL OF WILLIAM BARTHROP, DECEASED. 
 
 “ In the name of God, Amen ! I, William Barthrop, do 
 make this my last will and testament, in manner following : 
 
 I give and devise to my beloved wife, all my household fur- 
 niture, beds, linen, plate, and live stock, to enjoy the same dur- 
 ing her natural life, and after her decease to go to my nieces, 
 daughters of my sister Mary, equally. 
 
 I further give and devise to my said wife, the use and income 
 of my dwelling-house, situate in the village of Kinderhook, dur- 
 ing her natural life, and lot of land adjoining. 
 
 I further give and devise to my said wife, the sum of two 
 hundred dollars, to be paid to her, by my executors, half-yearly, 
 as long as she remains my widow ; all the above in considera- 
 tion of her relinquishing any right of dower on land I may die 
 seized of, or have heretofore released. 
 
 I give and devise to my sister Mary Bonsor, of ^Nottingham, 
 in England, the sum of five hundred dollars, to be paid to her 
 immediately after my decease, and the further sum of one hun- 
 dred and fifty dollars half-yearly during her life. 
 
 I give and devise to each of the children of Henry Bonsor 
 and Mary his wife, my nephews and nieces, the sum of one 
 thousand dollars, who are living at the time of my decease. 
 
 I give and devise my house and lot in the town of Canaan, to 
 Jane, daughter of Jack and Soute Van Dyck. 
 
 I give and devise to the daughters of the late Arent Van 
 
94 
 
 Yleck, of the town of Kinderhook, and to their brother William, 
 respectively, and also to William Yan Yleck, son of Henry Yan 
 Yleck, of Hudson, to each one hundred dollars. 
 
 I give and devise to Frances Staats, daughter of Daniel Staats, 
 of the town of Oswego, one hundred dollars, and also after the 
 death of her mother, all the household furniture I formerly 
 bought at Sheriff’s sale, and which I have since that time al- 
 lowed the family the use of. 
 
 I give and devise to Affy Clow, to Freelove Yallet, widow of 
 the late Steven Yallet, to Maria Knight, Catharine and Alber- 
 tine Yan Alstine, daughters of the late Alexander Yan Alstine, 
 of Kinderhook, and Maria Yan Alen, daughter of John Yan 
 Alen, to each respectively one hundred dollars. 
 
 I give and devise to Phebe and Elizabeth Yallet, daughters 
 of the late Stephen Yallet, of Kinderhook, to each respectively 
 two hundred dollars, to be paid to them as they attain twenty- 
 five years, and the interest yearly until that time from the time 
 of my decease. 
 
 I give and devise to Jane Yallet, daughter of said Stephen 
 Yallet, one hundred dollars, to be paid her at twenty-five years, 
 and interest yearly as above. 
 
 All the residue and remainder of my worldly estate and 
 effects, except what is hereafter excepted, I give and devise to 
 the society in Philadelphia, and to the Society in Hew York, for 
 the Relief of Tailoresses and Seampstresses, to the Female Assist- 
 ance of Hew York, to the Society for the Relief of Respectable 
 Aged and Indigent Females of Hew York. 
 
 The estate and effects mentioned is money on interest, the 
 avails of lands which I do hereby authorize my executors to sell 
 at such time and times as they shall think proper, and also the 
 reversion of the moneys which will be due at the decease of my 
 wife and sister. And if any doubt shall arise as to the true 
 meaning of any part ot* this my last will, I will that my execu- 
 tors, or a majority of their opinions, be considered as the true 
 and correct meaning thereof. 
 
 I constitute and appoint David Yan Schaack, Esq., and Ten- 
 nis Harder, of the Yillage of Kinderhook, and Abraham J. Yan 
 Alstine, of the town of Stuyvesant, executors of this my last 
 will and testament, and I give to each respectively the sum of 
 
95 
 
 two hundred dollars after they have duly taken upon them- 
 selves the office of executors; and as I wish to have three ex- 
 ecutors, if any above appointed should decline acting, I then 
 constitute and appoint Doctor John M. Pruyn, of Kinderhook, 
 with the same legacy. 
 
 It is further my will that the Female Hospital Society, and 
 Provident Society, both of Philadelphia, be admitted to take 
 an equal share with the other before-mentioned benevolent so- 
 cieties; but my executors shall have a discretionary power to 
 withhold from any one or more and give their share to the 
 others; should they be satisfied or a majority of them any such 
 society, on diligent enquiry, is not conducted in a suitable man- 
 ner, especially in a laxity and indifference in the managers. 
 Should any one to whom bequests have been made, die before 
 the time of payment, or minors, I will that the bequest be di- 
 vided equally among the legatees of the same family. 
 
 I will that my executors take eight or ten years in collecting 
 my debts, as I would not have persons unnecessarily hurried 
 for payments, and within ten years pay the same to the socie- 
 ties aforesaid, by installments, as they collect the same ; and I 
 revoke all other will or wills heretofore made. 
 
 Witness my hand and seal, October 9th, 1837. 
 
 [l. s.] William Barthrop. 
 
 Signed, sealed, and delivered in the ] 
 presence of us, and each other, J 
 
 Augustus Writing, of Kinderhook, 
 
 Barent Hoas, of Kinderhook. 
 
 Codicil to the last will and testament of William 
 Barthrop, of Kinderhook. Will dated October 
 9th, 1837. 
 
 I hereby revoke that part of my 'will bequeathing to the so- 
 cieties in Philadelphia and Hew York for the relief of Tailor- 
 esses and Seampstresses, and also the Female Assistance Society, 
 and for Aged and Indigent Females — the residue and remainder 
 
96 
 
 of my worldly goods and effects — and in lieu thereof, I give and 
 bequeath to the Society for the benefit of Tailoresses and Seamp- 
 stresses in Philadelphia, and also to the Society for the benefit 
 of Tailoresses and Seampstresses in the city of New York, or 
 their respective managers for the time being, to eacli respec- 
 tively the sum of $1,000 for five successive years ; my execu- 
 tors to make the first payment within one year after my death ; 
 and to the Female Assistance Society, and to the Society for 
 the relief of Respectable Aged and Indigent Females, and to 
 the Female Benevolent Society, all of the city of New York, 
 the sum of five hundred dollars yearly, to each society, for six 
 successive years, to begin within one year after my death. 
 
 I will that my executors purchase a farm in trust, for the 
 benefit of my nephews and nieces, children of my sister Mary 
 Bonsor, of Nottingham, in England, not exceeding six thousand 
 dollars, as an asylum ; and ’tis my wish they come and occupy 
 the same, especially my nephew Henry ; but my executors 
 must have a full power over the same for fifteen years, for the 
 benefit of all my nephews and nieces, as they think fit, and 
 after the fifteen years is expired, they may sell the same, and 
 apportion the avails among them, or their heirs and survivors, 
 as they may think just; and if any of my nephews and nieces 
 cavil or dispute with the arrangements my executors make for 
 their mutual benefit, I will that they receive no part thereof. 
 
 The furniture bequeathed to my nieces after the death of my 
 wife, or to their heirs, is that part thereof I brought from Eng- 
 land, and what I have purchased since our marriage, and not 
 any linen, woolen, or cotton things made by my wife. 
 
 I give and devise to my wife all my live stock, hay and grain, 
 and also the wood-lot adjoining the water-ash bridge in De 
 Bruyn Bight, being upwards of six acres, all of which I say is 
 instead of dower. 
 
 I hereby revoke the nomination of executors, and their 
 respective legacies, mentioned in my will, and instead, I make 
 and appoint the following persons as executors, being near 
 together, that is to say : John Bain, and Teunis N. Harder, and 
 David Yan Schaack. To the two former I give and devise the 
 south end of the vlie opposite Alpheus Webber’s garden, begin- 
 ning on the Albany road, so that a straight line will strike the 
 
97 
 
 middle of the ditch, running directly under the hill easterly, 
 until it strikes the land of Teunis 17. Harder, then up the hill 
 easterly and southerly, by lands of Teunis H. Harder, until it 
 strikes the Albany road ; then along said road to the place of 
 beginning. And also, if any of my executors shall, within five 
 year3 after my death, choose to have a family vault, they can 
 each make one on my land next adjoining the east end of the 
 public burying ground, the same size as is general in Trinity 
 and St. Paul’s church-yards or burying grounds ; and to David 
 Yan Schaack, I devise the sum of two hundred dollars ; but 
 their respective legacies is upon the express condition that they 
 each take an active part as executors. 
 
 After the expiration of ten years, or sooner, if my executors 
 find there will be sufficient funds, I would wish a public dis- 
 pensary, as in Hew York, on a similar plan, for indigent persons 
 both sick and lame, to be attended by a physician elected to 
 the establishment, at their own homes, and also daily at the 
 dispensary. My executors to consult judicious men in Albany 
 respecting the same, and funds enough to carry on the building 
 and yearly expenses. And should there be any overplus, my 
 executors, within fifteen years, may give it to any other chari- 
 table society or societies for relieving the confortless and indi- 
 gent they shall select, I say within fifteen years from my 
 death. If any of those appointed to act as executors should 
 refuse to act, then I appoint Doctor John Mathias Pruyn, with 
 the same legacy. I would have David Yan Schaack to keep 
 my securities for money ; but my other executors must each be 
 furnished with an exact copy of the same made out by some 
 suitable person ; for which service, and taking of statement of 
 debts, that is to say, bonds, mortgages, notes, judgments, &c., 
 he must be paid out of the funds of my estate, as also must all 
 other disbursements, being necessary expenses made by any of 
 my executors, for the furtherance of settling my affairs. My 
 executors to each have a statement made out by a suitable 
 correct person, immediately after my decease, and to give every 
 debtor plenty of time to pay their debts, especially where the 
 debts are secure. I say it is my will that my executors have a 
 discretionary power, or a majority of them, within fifteen years 
 after my decease, to pay over what remains after all legacies 
 13 
 
98 
 
 paid, the residue and remainder of moneys arising from my 
 worldly goods and effects to such charitable societies for indi- 
 gent and respectable persons, especially females and orphans, 
 as they in their discretion shall think of. 
 
 As I would wish to have three executors, if any mentioned 
 should die or decline acting, I would appoint and nominate 
 Abraham J. Yan Alstyne, of Stuyvesant, an executor, with a 
 legacy of two hundred dollars, as in all circumstances I would 
 like that the majority should rule ; and in case of any other 
 not acting, then let my two executors elect any suitable man 
 to make the third, with the legacy of two hundred dollars; but 
 it is expected they will take an active part in their delibera- 
 tions and arrangements. 
 
 In testimony whereof, I have hereunto set my hand and seal, 
 this 12th day of May, 1838. 
 
 William Barthrop. [l. s.] 
 
 Signed and sealed by the testator, in 
 our presence and in the presence 
 of each other. 
 
 William Yallet, of Kinderhook. 
 
 David Yallet, of Kinderkook. 
 
 I, William Bartholf, do declare and publish this as a codicil 
 to my last will and testament, and to be taken as part thereof, 
 as follows : 
 
 First . — I give and bequeath to Doctor John M. Pruyn a cer- 
 tain note or obligation I hold against him for the payment of 
 money, and order my executors to deliver up the same to him. 
 
 Item . — I also give and bequeath to said John M. Pruyn the 
 sum of one hundred dollars, as a compensation for his medical 
 services for attending during my last sickness. 
 
 Item . — I order and direct my executors named in my said 
 
99 
 
 will, to execute and deliver to Peter T. Yan Alen a deed to 
 convey an estate in fee simple for the house and lot in which 
 he now lives in Kinderhook, adjoining the lands of Alpheus 
 Webber and Asahel Fuller; and I also release and discharge 
 said Yan Alen from any claim I have against him, whether for 
 the balance of the purchase money he had agreed to pay me 
 for said house and lot, or otherwise. But the direction and 
 legaey in this clause is made and given upon the express con- 
 dition that said Peter shall yield up, cancel, and discharge all 
 claims and demands against me, which claims and demands I 
 do hereby declare were intended as part payment of what he 
 owes me. 
 
 I give and devise to my two stepsons, John P. Beekman and 
 Thomas Beekman, and to their heirs and assigns as tenants in 
 common, all that certain lot of woodland, which I own, situate 
 in the town of Stuvvesant, and adjoining lands of Isaac Yan 
 Alstyne, which lot was a part of the estate of John Yan Als- 
 tyne, deceased. 1 do hereby revoke all such parts of my said 
 will as are inconsistent with this codicil. 
 
 In witness whereof, I have hereto set my hand and seal, the 
 6th day October, 1838. 
 
 Wm. Barthrop. [l. s.] 
 
 Signed, sealed, published, and declar. 
 ed by the testator, as a codicil to 
 his last will and testament, in our 
 presence, who have hereto set our 
 names as witnesses in his presence, 
 and in the presence of each other, 
 at his request. 
 
 Peter Yan Schaack, of Kinderhook. 
 
 Robt. H. Gray, do. 
 
 I, William Barthrop, of Kinderhook, in the county of Colum- 
 bia, do make and publish the following as a further codicil to 
 my last will and testament : 
 
 First . — I give and bequeath to my beloved wife Anna Bar- 
 throp, the sum of ten thousand dollars in money or good obli- 
 gations, immediately after my decease to be paid to her, and I 
 
100 
 
 gave said sum to her instead of the annuity given to her by my 
 will, and in lieu of dower in my estate. 
 
 In witness whereof, I have hereunto set my hand and seal, 
 the 8th day of October, 1838. 
 
 Wm. Barthorp. [l. s.] 
 
 Signed, sealed, published, and declared ' 
 by said William Barthorp, as a codi- 
 cil to his last will and testament, in 
 our presence, who have hereto, at 
 his request, and in his presence, and 
 in the presence of each other. 
 
 Peter Van Schaack, of Kinderliook. 
 
 Robert EL Gray, do. 
 
 I, William Barthorp, of Kinderliook, in the county of Colum- 
 bia, do make, and publish, and declare the following as a further 
 codicil to my last will and testament, viz. : 
 
 First . — I do hereby authorize and empower, and order and 
 direct my executors, and the survivor and survivors of them, to 
 sell all my real estate, (except what I have in my will or in any 
 codicil thereto otherwise disposed of,) and if two of my executors 
 to whom I have devised a portion of the Vly or Vlye, in Kin- 
 derhook, shall decline acting as such executors, then including 
 that portion of said Vly or Vlye also, which I also authorize my 
 executors to sell, and upon such sales being made, to execute 
 good and sufficient deeds in the law to convey an estate in fee 
 simple to the purchaser. I also authorize my executors to sell 
 all my interest and share, being one one-half in the house, out- 
 houses and lands thereto attached, in Kinderliook, in which I 
 now reside, but subject to the life estate of my wife, to whom I 
 have devised the same for* her life, and to execute a good and 
 sufficient deed in the law to the purchaser in fee simple, subject 
 as aforesaid. And I declare that the proceeds of the sale of the 
 real estate hereby directed to be sold, shall sink in and be con- 
 sidered as a part of my residuary estate. 
 
 Item. — I do hereby'revoke the legacies given in my will and in 
 
101 
 
 the codicil thereto, to the several societies in New York city 
 and in the city of Philadelphia. 
 
 Item . — As to the rest and rest and residue and remainder of 
 my estate, including the capital or principal sum to be set apart 
 to produce the annuity to my sister Mary, as mentioned in my 
 will, and which shall remain thereof at her death, and after 
 first satisfying the several legacies and bequests and provisions 
 in my will, and any of the codicils thereto, except those I have 
 by this or any other codicil revoked. I dispose thereof before 
 any money is appropriated for the establishment of a dispensary, 
 as provided for in one of the codicils to my will, as follows, that 
 is to say : 
 
 I give and bequeath thereout, in the first place, to my ex- 
 ecutors and to the survivor and survivors of them, the sum of 
 .nineteen thousand dollars upon trust — that they shall and may 
 pay thereout, if in their judgment they shall be of the opinion, 
 after due enquiry and examination and deliberation, that the 
 following societies are well managed and conducted, and their 
 funds faithfully applied to the objects for which they are estab- 
 lished or incorporated, the following sums, viz : — To the person 
 or persons having the management of the pecuniary affairs of 
 those societies, and for the benefit of these societies, viz : — The 
 Society for the benefit of Tailoresses and Seampstresses in the 
 city of Philadelphia, and the Society for the benefit of Tailor- 
 esses and Seampstresses in the city of New York, each the sum 
 of one thousand dollars annually, for five successive years after 
 my death ; the first payment to be made at the expiration of 
 one year after my death, and the residue in four equal annual 
 payments thereafter. The Female Assistance Society, and the 
 Society for the Relief of Respectable Aged and Indigent Fe- 
 males, and the Female Benevolent Society, all of the city of 
 New York, each the sum of five hundred dollars annually, for 
 six successive years after my death— the first payment to be 
 made at the expiration of one year after my death, and the resi- 
 due in five equal annual payments thereafter. But should my 
 executors be of the opinion, at any time, that any, or either of 
 said societies, do not merit the provisions aforesaid for their be- 
 nefit, by reason of mismanagement or negligence, or for any 
 
102 
 
 other cause, then, and in that case, it is my will, and I direct 
 that the moneys then remaining unpaid, shall be withheld, and 
 they pay and apply the same to any other charitable society or 
 societies, incorporated or not, which my said executors shall, in 
 their discretion, think proper ; reposing full confidence in my 
 executors, that they will endeavor to carry into effect my inten- 
 tions in regard to the disposition of said moneys ; and it is also 
 my will that my said executors shall, and do hereby authorize 
 them to retain out of my estate all the expenses they shall incur, 
 and a reasonable compensation for time spent for the purpose, 
 and from time to time acquiring correct information, in order 
 to carry into effect my intentions expressed in this clause of my 
 will. 
 
 And in the second place, also, satisfying the provisions in my 
 will in regard to the dispensary mentioned in my will, or the 
 first codicil thereto. 
 
 I give and bequeath all my estate then remaining, if any there 
 shall be, to my executors in trust, that they shall and may ap- 
 ply the same in such sums and at such time and times as in 
 their discretion they shall think fit and proper, to the treasurer, 
 or other officer having the management of the pecuniary affairs 
 of any one or more societies for the support of indigent respect- 
 able persons, especially females and orphans, and for the use of 
 said society or societies, hereby intending to give to my execu- 
 tors discretionary power as to the disposition of the same, but 
 so that the same shall be applied to objects of charity. 
 
 In witness whereof, I have hereto set my hand and seal this 
 15th day of October, 1838. 
 
 William Bakthrop. [l. s.] 
 Signed, sealed, subscribed, and deliv- j 
 ered by the testator, as and for a 
 codicil to his last will and testament, 
 in our presence, who have hereto 
 set our names as witnesses, in his S 
 presence, and at his request, and 
 presence of each other, the words 
 “subject as aforesaid,” interlined, j 
 
 Peter Yan Schaacii, Kinderhook. 
 
 .Robert II. Gray, do.