tion. Those purposes may change with the will of the associates. They may be pious to-day and impious to-morrow. There is no law to prevent or restrain such changes. It is difficult to see, therefore, how a bequest to such an association can be deemed to create a "charitable use" unless the purpose to which it is to be devoted is pointed out by the testator.

It has nevertheless been held in several cases that a mere naked bequest to an unincorporated association is valid as a charity. In Hornbeck's Ex'rs v. American Bible Society, 2 Sandf. Ch. 133, a legacy, absolute in terms, to the New York State Colonization Society, a mere voluntary association, was held valid by Assistant Vice-Chancellor Sandford, under the law of charitable uses; and in the case of Banks v. Phelan, 4 Barb. 80, a legacy to the Roman Catholic church of Petersburg was sustained by the late Justice Edwards upon similar grounds, although the church was not incorporated, and although there was not a word in the will indicative of the use to which the fund should be applied. So in the case of Executors of Burr v. Smith, 7 Vt. 241 [29 Am. Dec. 154], the supreme court of Vermont, after a very elaborate argument and investigation, held legacies valid as charities which were given to the treasurers of the American Bible Society, the American Colonization Society, and the American Home Missionary Society, respectively, the societies being unincorporated. The legacies were given in each case, as expressed in the will, "for the use and purposes of the society," and there was no other express limitation of the uses to which the fund was to be applied.

In these cases the courts must have proceeded upon the ground that it was to be presumed that the testator intended the legacy to be used to promote the objects indicated by the names of the societies. In no other way could these bequests have been regarded as "charities," it being essential to a legal charity that there be a use and a trust. Without intending to express any opinion as to the correctness of these cases in this respect, I shall nevertheless assume, for the purposes of this case, that when a bequest is made to an unincorporated society, whose general objects are known to be, as its name indicates, religious or charitable, a trust is implied that the fund shall be devoted to those objects. With this assumption, can the bequest in this case be supported as a charity?

This question opens up an inquiry which is surrounded with difficulty. The law of charitable uses, as it has existed in England, may be ascertained with reasonable certainty; but how far

that law prevails in this state, and to what extent our courts have succeeded to the powers exercised in the English courts of equity on the subject, depends upon considerations which are necessarily obscure.

The jurisdiction of the court of chancery in England, in relation to charities, was derived from three sources: 1. From its ordinary jurisdiction over trusts; 2. From the prerogative of the crown; 3. From the statute of 43 Eliz., c. 4. It has never been seriously contended that the courts of this state possessed that portion of the jurisdiction which was derived from the statute of Elizabeth. This statute was embraced in the general repeal of English statutes in 1788, and there is not the slightest evidence that it had previously been adopted so as to become a part of the common law of the state. It is clear, therefore, that, so far as the law of charitable uses was derived from and dependent upon the statute of 43 Eliz., it is not in force here, and it seems equally clear that our courts are not endowed with any portion of the power which the chancellor of England exercises by virtue the royal prerogative, and as the personal representative of the crown. It follows that the jurisdiction possessed by the courts of this state over trusts for charitable purposes is limited to that which the court of chancery in England possessed independent of those two sources. This is the view which seems to have been taken of the subject by this court in the case of Williams v. Williams, 8 N. Y. 525.

Were it possible, then, to analyze at this day the jurisdiction of the English courts, and to ascertain the exact proportion of its separate parts, all doubts in regard to the jurisdiction of our own courts would be resolved. But the blending of the powers derived from these various sources in the same court, and their consequent indiscriminate exercise, has rendered this a difficult task. I think, however, that a careful attention to the history of the jurisdiction, and especially that part of it which is based upon the statute of Elizabeth, will enable us to determine with some degree of precision the relative importance of its different branches.

To comprehend this history fully, it will be necessary to recur to the origin of uses, and to some of the statutory enactments bearing upon them, "charitable uses" being the legitimate offspring of these enactments. The first invention by which the ecclesiastics of England sought to evade the statutes of mortmain, viz., common recoveries, having been defeated by the statute of Westminster 2, 13 Edw. I., c. 22, which provided that, not

withstanding the defendant made default, it should still "be inquired of by the country whether the demandant had right,” the next device was that of uses. As lands could not be conveyed directly to the ecclesiastical bodies themselves, they were procured to be conveyed to others to the use of such bodies, and by the aid of the court of chancery, which held the feoffees bound to execute such uses, the object of the ecclesiastics was accomplished. An attempt was made to meet this new device by the statute of 15 Rich. II., c. 5. But as this statute was only aimed at corporations and such bodies as had perpetual succession, there were many uses of a superstitious nature which were not within its provisions. It was not, therefore, until the statute of 23 Hen. VIII., c. 10, that this new invention of the clergy met with its final overthrow. That statute provided that all uses, etc., to the use of churches, chapels, church-wardens, guilds, companies, or brotherhoods, made of devotion, or by assent of the people, without any corporation, and also to the intents to have any continued service of a priest for threescore years, or other like uses, should be void.

The broad and comprehensive terms of this statute evince the hostility which uses, perverted as they had generally been to superstitious purposes, had excited. Its sweeping phraseology served not only to suppress all superstitious uses, but substituted many which were meritorious. It soon came to be seen that all uses were not superstitious. Accordingly, the statute of 1 Edw. VI., c. 14, called the statute of chauntries, speaks in the preamble of "good and godly uses, as in erecting of grammar schools to the education of youth in virtue and godliness, the further augmenting of the universities, and better provision for the poor and needy."

The term "charitable," as descriptive of a particular class of uses, appears to have had its origin subsequent to the latter act, and was used, in contradistinction to superstitious, to designate such good and worthy uses as were deemed not to be within the purview of the statute of Henry VIII. There is no evidence that this term was applied to such uses to distinguish them legally as a class until after the statute of 1 Edw. VI. Indeed, there is strong evidence that it was not; otherwise it would certainly have been resorted to in the preamble to that act, instead of the far less appropriate phrase "good and godly." This preamble was clearly the germ of the law of charitable uses; not that such uses did not exist before, but they had never been grouped together as a distinct class, and no peculiar principles had been

applied to them. The words "other like uses," in the statute of 23 Hen. VIII., c. 10, naturally gave rise to this classification. They were suggestive of a class of uses not "like" those intended to be condemned, and the statute of 1 Edw. VI. was the first attempt at a description of this class. From the date of this statute, if not before, it was strenuously maintained that the statute-of 23 Hen. VIII. was aimed solely at superstitious uses, and that the uses mentioned in the preamble to the statute of 1 Edw. VI. were examples of an extensive class of exceptions. The term "charitable" soon came to be used as descriptive of this class. There appears, however, to be no reported case in which this doctrine was distinctly confirmed by the courts prior to Porter's Case, 1 Co. 16 a. This case deserves careful consideration, as throwing much light upon the law of charitable uses. It will be found to harmonize with and to be strikingly confirmatory of the view I have taken of the origin of such uses as a class.

The case was this: Nicholas Gibson, of London, had devised, in the reign of Henry VIII., all his lands and tenements to his wife, upon condition that she should, immediately upon his decease, by the advice of learned counsel, give, grant, and assure the same for the maintenance of a free school, and certain alms-men and alms-women forever. The widow, instead of executing the trust, made a lease for forty years, and the defendant Porter was in possession under this lease. The heir entered for breach of the condition and then conveyed to the queen, whereupon the attorney general filed an information in the court of exchequer in behalf of the queen to recover possession. The case was argued by Sir Thomas Egerton, afterwards Lord Ellesmere, and by Sir Edward Coke for the queen. The defendant's counsel insisted that the condition was void under the statute of 23 Hen. VIII., c. 10, for the following, among other reasons: because "the statute saith 'such uses, and all other like uses, intents,' etc., shall be void." To which the counsel for the queen replied that the case was not within the intent of the act of 23 Hen. VIII., " because it was not the intention of the said act to extend to such good and charitable uses as the uses in our case are;" and again, after referring to various other statutes made to suppress certain superstitious uses, they say: "But by none of these acts 'good and charitable' (as the uses in our case) are taken away, abolished, or made void, but rather by the act-of 1 Edw. VI. they are intended to be maintained, as appeareth by the preamble thereof, viz.: ' For

the education of youth in virtue and piety at grammar schools, for the further augmentation of the universities, and the better provision of the poor and needy,' which, by the said act of 1 Edw. VI. are called good and godly uses; and therefore it shall not be intended that such good and godly uses were made void by the statute of 23 Hen. VIII." The court held " that the statute of 23 Hen. VIII. did not extend to take away the good and charitable uses in the case at bar," and gave judgment for the queen. Lord Coke adds: "And the same day judgment was given in the king's bench, in the like case upon the said statute of 23 Hen. VIII.” This case shows that the term "charitable" was used at this time to designate a class of uses excepted from that statute. It will be seen, too, that the learned counsel for the queen based their argument for the exception, not upon any classification of uses as charitable prior to the statute of Henry VIII., but upon the inference to be drawn from the preamble to the statute of 1 Edw. VI., c. 14; and also that they argue it as an original question, and do not even allude to any judicial authority for their position,

It would be difficult, I think, to maintain, in the face of such an argument from two such men as Egerton and Coke, that the law of charitable uses, as it afterwards existed, had obtained at that time any substantial foothold in the law of England. But this is not all. The reference by Coke, in the conclusion of his report of Porter's Case, 1 Co. 16 a, to a judgment of the court of king's bench, pronounced on "the same day," and in "the like case," is very significant. The case referred to by Coke is that of Martidale v. Martin, Cro. Eliz. 288, more fully reported by Popham under the name of Gibbons v. Maltyard, Poph. 6. There Sir Richard Fulmuston had devised certain lands to his executors in trust, to be appropriated to the permanent maintenance of a preacher "to preach the word of God in the church of St. Mary, in Thetford, four times in the year, and to have for his labor ten shillings for every sermon," and to the establishment of free school. The executors neglected the trust, and the heir entered for condition broken, whereupon the lessee of the executors brought ejectment. The first point taken by the defendants was, that the use was made void by the statute of 23 Hen. VIII, c. 10. As to this, Popham says: "But it was, after often argument, agreed by all the court that the first exception was to no purpose, for they conceived that this statute was to be taken to extend only to the uses which tend to superstition," etc. Now the fact that the judgment of the king's bench in this, and of the