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ciety. When in 1824 the bishops were appointed the fund was awarded to the Society with little discussion, as there were practically no conflicting claims.

The whole question, however, was raised in Christ's Hospital v. Grainger, 16 Sim., 83; 1 MacN. & G., 460; 1 H. & Tw., 533, properly regarded as the leading case. Property has been devised to the corporation of Reading upon charitable trusts, with a proviso that if the corporation should fail to perform its duties as trustee for one year, the property should go to the corporation of London for the benefit of Christ's Hospital. The corporation failed to perform its duties as trustee, and the question was upon the validity of the gift over. Since property held for charitable purposes is forever inalienable, the lord chancellor reatoned, the rule against perpetuities did not apply The property was neither more nor less alienable because given from one charity to another. "Here," says Mr. Gray, "with submission to so great an authority (Lord COTTENHAM) is the common confusion between perpetuity in the sense of inalienability and perpetuity in the sense of remoteness." And, although the decision has long stood as authoritative, he would have it examined with a view to its rejection in any jurisdiction where the matter is not closed.

English writers have not felt called upon to offer objections to the ruling: Marsden on Perpetuities, 295; Tyssen on Charitable Bequests, 423; re Connington's Will, 8 W. R., 444. And the decision has met with approval in a recent case in the Court of Appeals: In re Tyler (1891), 3 Ch., 252. Testator

gave a fund to trustees of the London Missionary Society, and committed the keys of his family vault in Highgate Cemetery to their charge, the same to be kept in good repair. Failing to comply with this request, the money to go to the Blue Coat School. The society, although willing to comply with wishes of the testator, objected to having the gift clogged with such a condition, contending with great justice that it would enable the testator to do indirectly that which he could not do directly, namely, to create a perpetual trust for a non-charitable object. The court, however, thought the case fell directly within the principle upon which Christ's Hospital v. Grainger (supra) was decided. And as to the suggestion that it would open the way to evasions of the law, it was thought that the decision would not go to the length of holding "that one could get out of the rule against perpetuities by making a charity a trustee." That, said the court, would be absurd. Much was said about the comparatively harmless nature of the condition attached to the bequest; but, though harmless, it was none the less for a private purpose, and renders it difficult to decide where the line is to be drawn.

Where the gift is for the establishment of a charity, subject to a condition precedent, such, for example, as a gift of land for a site, the court has not subjected such gifts to the rule against remoteness, but has laid down the general principle that all such conditions must be fulfilled within reasonable time. This applies only where the gift is immediately and entirely devoted to charity. If personal estate is once effectively

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given to charity, it is taken out of the scope of the law of remoteness. But if the gift in trust for charity is itself conditional upon a future and uncertain event, it is regarded as subject to the same rules and principles as any other estate de pending for its coming into existence upon a condition precedent: Synnett. Herbert L. R., 7 Ch., 232.

tentions, will be distrusted To fairly test the rule, it would be necessary for the point to arise in a suit by one charity to obtain the benefit of the gift over, upon the happening of the remote contingency which is to divest the previous charitable gift.

The decision in Christ's Ilospital v. Grainger met with approval in Odell . Odell, 10 Allen, 1. Here the trust was for the accumulation of income for fifty years, and then to charity. Justice GRAY, in reviewing the authorities, made particular mention of the leading case. Seven years later the same distin

In Chamberlayne . Brockett, L. R., 8 Ch., 206, there was a gift for the erection of alms houses, "when and so soon as land shall at any time be given for the purpose." The master of the rolls thought the gift void for remote-guished jurist had occasion to con

ness, inasmuch as it was dependent upon an event which might not arise for an indefinite time. The lord chancellor thought that there was an immediate gift for charity. The case in re White's Trusts is a complete illustration of the working of the rule. Testator left a fund for the erection of alms houses when a proper site could be obtained. The gift was held good if the site were provided: 30 W. R., 837; but the trustees failing to obtain a site within reasonable time, it was held that the legacy lapsed: 33 Ch. D., 449.

The rule in Christ's Hospital v. Grainger has been quoted with approval in the American courts, but the question has seldom been directly raised. In the majority of instances the contest has been between the heirs-at-law and the executors, or testamentary trustees. Under such circumstances the natural inclination of a court will be in favor of sustaining the charitable intentions of the testator, and arguments which are calculated to restrict or perhaps defeat such in

sider this question, then before the United States Supreme Court. The will in dispute directed that in case the institutions named as beneficiaries attempted to alienate the property devised, the executors were to enter and repossess the property, and in that event the property was devised to an orphan asylum: Jones v. Habersham, 107 U. S., 174. The Court could not see how the next of kin could be benefited whether the devise over were void or valid, but stated that "as an estate is no more perpctual in two successive charities than in one charity, and as the rule against perpetuities does not apply to charities, it follows that if a gift is made to one charity and then over to another charity upon the happening of a contingency which may or may not take place within the limit of that rule, the limitation over to the second charity is good."

The statement in the opinion that "the rule against perpetuities does not apply to charities" was incautious. That it does apply

to a limited extent was recognized in Russell v. Allen, 107 U. S., 163, where a rule was adopted that has been widely quoted, "a gift for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain, or which is to take effect upon a contingency which may possibly not happen within a life or lives in being and twenty-one years afterwards is valid provided there is no gift of the property meanwhile to or for the benefit of any private corporation or person." The language of the Court may have referred to those cases only where the gift is to a non-existent charity, or to a charity upon the happening of a possibly remote contingency without a previous gift. But the rule has been extended equally to those cases where the gift is from one charity over to another: Stoors Agricultural School v. Whitney, 54 Conn., 342.

The question then arises, what is meant by an immediate gift to charity from this point of view? The courts of Connecticut have been compelled to answer this question. In Jocelyn v. Nott, 44 Conn., 55, the gift was to trustees, directing that if any Congregational church should desire to erect a meeting-house upon the land devised, and the trustees should be satisfied that the church was able to complete the same free from debt, the trustees were to convey the land to the church. "The devise," said the Court, "is vested only in the trustees, and no interest whatever has as yet vested in the party intended to be benefited, and as such an interest may never vest, the devise tends to create a perpetuity in the trustees and vest in them property which for all

time to come may remain inalien. able. This the law will not allow." On the other hand, in Woodruff v. March, 26 A., 846 (Conn.), testator left his residuary estate to trustees for the establishment of a school, providing certain lands and buildings in W— be given free of cost for a location of the school. The court found in other parts of the will an intention to limit this proviso to the period of twenty years; but conceding that there was no such intention, the gift to the trustees was an immediate gift to charity, and should the land not be given within a reasonable time the intended purpose of the trust might fail, but it would be by the non-performance of a condition subsequert. See also New Haven Institute v. New Haven, 60 Conn., 32.

In Pennsylvania, the views of the Supreme Court, as expressed in the earlier cases, were not in harmony with Christ's Hospital v. Grainger, but in the long interval of time that elapsed before it became necessary to pass upon the question these views underwent a change. In Hilliard v. Miller, the devise was to certain church corporations to lend the income from. the fund to young farmers and mechanics in loans secured by mortgages, and if the income should accumulate beyond the application for loans, then to apply the income to the erection of a hospital. it was decided that the irst trust was not a charity, and, therefore, an illegal accumulation, and that since the gift to the hos pital was not immediate, and might not vest within the legal period, it also fell: 10 Pa. St., 326.

While this is the only early case bearing directly on the question,

the words of the Chief Justice in Philadelphia v. Girard's Heirs are worth noting in this connection. The facts need not be mentioned as the Court went somewhat out of its way in discussing the subject. "Suppose," it was said, "that some of the directions given for the management of the charity are conditions upon which a new charity is depending, they would, therefore, on the showing of the claimants here, be void conditions of the new charity, because they may not happen within the time allowed for the vesting of executory devises, and, therefore, could not divest the already vested charity. Their character is such as to avoid rather the substitutionary charities than the principal and vested one: " 45 Pa. St., 29. It can hardly be doubted that a court expressing such views would, if a case had then arisen, have rendered a decision adverse to Christ's Hospital v. Grainger.

Time has wrought a change in the views of the courts, and it is not surprising to find to-day a sentiment overwhelmingly in favor of aiding and upholding charitable bequests by the use of every rule of construction that can reasonably be turned to their advantage. In the case of Franklin's Estate, 150 Pa. St., 437, testator bequeathed

1000 to the city of Philadelphia in trust to let out the same to young married artificers, and at the end of terms in gross of 100 and 200 years the fund with accumulations to go to the city and State for designated charitable purposes. It was urged on behalf of the petitioners, the representatives of the residuary legatee, that Christ's Hospital v. Grainger was not law in Pennsyl

inia. Conceding that the first

gift was non-charitable and also that a contingent gift to a nonexisting charity beyond the period allowed by the rule against perpetuities is void, the Orphans' Court could not see how this would favor the petitioners. "The gift, though its application for the purpose ultimately intended was deferred, was immediate, and the beneficiary was itself the trustee :" 27 W. N. C., 545.

In the Supreme Court the appeal was dismissed on a question of jurisdiction, and in consequence the matter was brought before the Common Pleas Court, 2 Pa. Dist., 435.

us."

Passing over Hilliard v. Miller, supra, where a strikingly similar trust was characterized as "a loan office in the garb of a charity," the bequest for the aid of the young married artificers was held a good, charitable gift, and that on the whole Dr. Franklin's will "estab. lished in legal form three valid, benevolent and beneficial charities, neither one of which is vulnerable when assaulted upon any of the grounds which were argued before While admitting that Philadelphia v. Girard's Heirs (supra) correctly stated some of the objections to a perpetuity, the Court declared that "the greater objection is the accumulation of a large fund in individual hands, thereby creating a menace to the community." The danger arising from accumulations did not disturb the courts until long after the rule against perpetuities was settled law: Thellusson Act, 39 George III, c. 98. Objections on the ground of unlawful accumulation and objections on the ground of remoteness have always been treated as entirely distinct when historically considered.

So that if this opinion is literally adopted it will certainly add a new feature to the rule against remote

ness.

In Lennig's Estate, 154 Pa. St., 209, the case annotated, the Court, in discussing Christ's Hospital v. Grainger, points out that the case is much stronger in favor of the ultimate charity where there is no change of trustees. But "whatever may be said of the soundness of the reasoning of Lord COTTENHAM, by whom the opinion was delivered, the question it would seem is no longer an open one in Pennsylvania, where the legislature has come to the relief of the judiciary by passing the Act of May 9th, 1889, P. L., 173, which in the most unequivocal terms declares that a gift for a charity shail not fail because transgressive of the rule against perpetuities," The act cited adds little to that of 1855, P. L., 331, which designed to extend the cy pres doctrine in Pennsylvania, Bispham's Equity (5th ed.) p. 197, n. 5, was not appealed to in questions of remoteness: Roger's Estate, 43 Leg. Int., 292. And it might naturally have been inferred that the Acts of 1885, P. L., 259, and of 1889, P. L., 173, were “merely auxiliary to and in aid of the purposes of the former acts upou the same subject:" Pepper's Estate, 154 Pa. St., 331. The judi

shall fail for want of a trustee or by reason of the objects ceasing, or depending upon the discretion of a last trustee, or in excess of the annual value limited by law; but it shall be the duty of any court having equity jurisdiction in the proper county, to supply a trustee and by its decrees carry into effect the intent of the donor or testator so far as the same can be ascertained and carried into effect consistently with law or eqnity subject to an appeal as in other cases, etc."

The courts of New York having rejected the common-law doctrines regarding charities, have placed the law of charitable bequests upon a basis radically different from that of England: Bascom v. Albertson, 34 N. Y., 584; Holland v. Alcock, 108 N. Y., 312. The validity of trusts, therefore, for objects which the English law describes as charitable, are in New York governed by the same rules, by which the validity of trusts for private purposes are determined. In every case the vesting must take place within two lives in being at the time of testator's death: Cottman v. Grace, 112 N. Y., 299. The objection is not to the perpetual holding of property, for a gift to a duly incorporated charitable institution, for the purposes of its creation, is perfectly good: Holmes v. Mead, 52 N„Y., 332; In re Strick

304.

cial interpretation of the act, how-fand's Estate, 17 N. Y. Supplement, ever, is final: Lewis' Estate, 1 Dist. Kep., 148, and the rule against perpetuities practically eliminated from the law of charitable bequests in Penusylvania. The act is as follows:

SECTION 1.-" Be it enacted, etc., That no disposition of property heretofore or hereafter made for any religious or charitable use

The chief difficulty has arisen in the case of a bequest to a corporation non-existent at the time of testator's death. If the will expressly provides that the corporation must be created within the period allowed for the vesting of future estates, the gift is valid: Shipman v. Robbins, 98 N. Y., 311; Burrill

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