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Cornell University Library 
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 The law of charitable uses :trusts and d 
 
 3 1924 022 814 176 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022814176 
 
THE 
 
 Law of Charitable Uses, 
 
 TRUSTS AND DONATIONS 
 
 IN 
 
 NEW YORK 
 
 BY 
 
 ROBERT LUDLOW FOWLER 
 
 COUNSELLOR AT LAW 
 
 NEW YORK 
 
 THE DIOSSY LAW BOOK COMPANY 
 §)ttblt8kt[S 
 
 1896 
 
74<K 
 
 COPYBIGHT, 1896, 
 BY 
 
 ROBERT LUDLOW FOWLER. 
 
PREFACE. 
 
 ' ' An Act relating to real property, constituting chapter forty- 
 six of the general laws" (Chap. 547 Laws of 1896), became a law 
 May 12, 1896. As this new " general law '' entirely changes the 
 ancient references to the Revised Statutes concerning real prop- 
 erty, it is deemed best to subjoin a Table which will show the 
 references made in these pages to the new form of the law of real 
 property. By this means the references in this Treatise are fully 
 adapted to the order of things which will ensue in this State after 
 October 1, 1896, when the new law takes effect. 
 
 The former law of New York relating to Charities was greatly 
 modified by Chapter 701, Laws of 1893. This act is discussed in 
 this Treatise : it is not repealed by Chapter 547, Laws of 1896. 
 On the contrary, the new Article on Uses and Trusts (Article III. 
 of Chapter 46, General Laws) distinctly tolerates and even 
 strengthens the reform contemplated by Chapter 701, Laws of 
 1893. The Legislature, by inserting a portion of the law of 1893 
 in the new article on Uses and Trusts, manifestly restores Chari- 
 table Uses to a situation which they have not enjoyed in the law 
 of this State since the Revised Statutes first went into effect (Sec- 
 tions 72, 93,. Chap. 46, General Laws). This is a great gain for 
 charity. 
 
 No apology seems necessary for the appearance of this book, 
 however imperfect it may be; for there is no other treatise dealing 
 with precisely the same topics. The English books do not go back 
 of the Statute of Charitable Uses (43 Eliz. ). The American books 
 make scant reference to the particular features of the law of this 
 State. 
 
 The law of charities forms no exception to the rule, tbat in the 
 early stages it demands a separate investigation of the principles 
 governing land and of those principles governing movable prop- 
 erty. It also requires an investigation of the doctrines acted on 
 in the courts of law, as contrasted with those applied in the extra- 
 ordinary tribunals, or the courts of equity. It is only in the most 
 advanced stage of a nation's jurisprudence that all these rules and 
 principles become uniform. 1 
 
 In New York the law relating to charitable gifts presents features 
 which are peculiar to its own jurisprudence and the product of its 
 own sovereignty. But even the existing law may be best under- . 
 stood in the light of history, which alone shows the nature of the 
 changes wrought in its fabric by revolution and by statutes. When 
 we become familiar with the history of the lnw of charities in this 
 State, the doctrines established at the present day are less diffi- 
 cult of application to a given case. 
 
 New York, May 30, 1896. 
 i Maine, Ancient Law, chap, viii ; Amos, The Science of Law, pp. 164, 165. 
 
TABLE SHOWING REFERENCES ON P. XXVI, 
 TO CHAPTER FORTY-SIX OF THE GEN- 
 ERAL LAWS, TAKING EFFECT 
 OCTOBER 1, 1896. 
 
 1 R. S. 719, sec. 8 is Chap. 46, Art I. sec. 2 
 
 1 R S. 719, sec. 10 " " " Art II. sec. 3 
 
 1 R S. 723, sec. 11 " "... " " Art II. sec. 28 
 
 1 R S. 723, sec. 14 " " " Art II. sec. 32 
 
 1R S. 723, sec. 15...-. .." " " Art II. sec. 32 
 
 1 R S. 723, sec. 16 " " " Art II. sec. 32 
 
 1 R S 723, sec. 17 '* " " Art II. sec. 33 
 
 1 R S. 724, sec. 24 " " " Art II. sec. 40 
 
 1 R S. 724, sec. 26 " " " Art II. sec. 42 
 
 1 R S. 725, sec. 34 " " , " Aft II. sec. 48 
 
 1 R S. 726, sec. 37 " " " Art II. sec. 51 
 
 1 R S. 726, sec. 38 "... ,' " " Art IL sec. 51 
 
 1 E. S. 726, sec. 40 " ,' " " Art II. sec. 53 
 
 1 R S. 726, sec. 41 " " " Art II. sec. 54 
 
 1 R. S. 727, sec. 45 " " " Art III. sec. 71 
 
 1 R. S. 727, sec. 47 " " " Art III. sec. 72 
 
 1 R S. 728, sec. 55 " " " Art III. sec. 76 
 
 1 R S. 729, sec. 56 " " " Art III. sec. 77 
 
 IRS. 729, sec. 58 " " "Art III. sec. 79 
 
 1 R S. 729, sec. 59 " " "Art III. sec. 79 
 
 1 R S. 730, sec. 64 " " "Art III. sec. 84 
 
 1 R o. 730, sec 65 " " "Art III. sec. 85 
 
 1 R S. 730, sec. 66 " " "Art III. sec. 88 
 
 1 R S. 730, sec. 67 " " " Art III. sec. 89 
 
 1 R S. 734, sec. 96 " " " Art IV. sec. 137 
 
 1 R. S. 734, sec. 97 " " " Art IV. sec. 137 
 
 1 R S. 734, sec. 100 " " " Art IV. sec. 140 
 
 1 K. S. 734, sec. 101 " " " Art IV. sec.141 
 
 1 R S. 734, sec. 102 " " " Art IV. sec. 162 
 
 1 R S. 735, sec 106 " " " Art IV. sec. 120 
 
 1 R S. 737, sec. 128 " " '• Art IV. sec. 158 
 
 1 R 8. 737, sec. 129 " " " Art IV. sec. 159 
 
 1 R S. 739, sec. 142 " " " Art VII. sec. 211 
 
 The readpr will note that the references on page XXVI infra 
 to 1 R. S. 725, sec. 4o, should be I R. S. 727, sec. 45, and that the 
 reference to 1 R. S. 7-9, sec. 142, should read 1 R S. 739, sec. 142; 
 
 while the reference on page 144 note, to 1 R S. 73 , sec. '6, should 
 be to see. 65. 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Preface i 
 
 Table of Contents v 
 
 Table of Cases xi 
 
 Table of Statutes xxiii 
 
 CHAPTER I. 
 
 EARLY ENGLISH LAW OF CHARITIES. 
 
 Adoption of English Law of Charities in New York — Charitable 
 Gifts — Characteristics of Charitable Donations — The Charit- 
 able Use — Forms of Charity — Uncertain Donations — Certain 
 Donations to Charitable Corporations — Definitions — Uses in 
 English Law — Feudal System — Growth of the Lord Chancel- 
 lor's Jurisdiction over Definite Uses — Question as to Jurisdic- 
 tion over Indefinite Uses — Statute of Uses — Wills — Questions 
 Raised in America about Jurisdiction in Charity Cases — Record 
 Commissioners — Jurisdiction of Clerical Chancellors — Refor- 
 mation in England — Chief Justice Marshall's Opinion about 
 Equity Jurisdiction in Charity Cases — Mr. Justice Story's 
 Opinion — The Debate in New York on the Extent of the Lord 
 Chancellor's Jurisdiction over Charities — Lord Redesdale's 
 Opinion — Lord St. Leonard's Opinion — Historical Divergence 
 in American Cases — Origin of the English Law of Charities — 
 Norman Conquest — Early Roman Law of Charities — The Roman 
 Christian Law — Saxon Law — Law of Charities after Conver- 
 sion of England — Effect of Feudalization of Lands — Littleton 
 and Coke — Pia Corpora in English Law 1-20 
 
VI TABLE OF CONTENTS. 
 
 CHAPTER II. 
 
 CHARITABLE USES AND GIFTS IN ENGLISH JURISPRUDENCE. 
 
 PAGE 
 
 History of Uses in England — Definite Uses — Indefinite Uses or 
 Charities — Retention of Ancient Characteristics of Charitable 
 Donations after the rise of Uses — Reformation in England — 
 Pious Uses — Statutory Changes — Statute of Superstitious 
 Uses — Trusts — Donations to Charitable Corporations — Mort- 
 main Statutes — Roman Ecclesiastics, the Chief Almoners — Re- 
 straints on Alienation — License to Amortize Lands — Corpora- 
 tions Empowered by Special Acts — Eleemosynary Corporations 
 in Roman Catholic England — Perpetuities — Practice in Eng- 
 land — Statute of Frauds — Personal Property — Reports of the 
 Commissioners of Charity — Destruction of Ancient Charities 
 Under Tudor Dynasty — Statute of Charitable Uses — Effect of 
 the Statute — Construction of the Statute — Intent of the 
 Statute — A Declaratory Statute — Shelford's Classification of 
 Charitable Uses — Act of 9 Geo. II., commonly called the 
 " Statute of Mortmain " — Cy pres Doctrine — Judicial Cy fires — 
 Royal or Administrative Cy pres — A Trust never fails for want 
 of a Trustee — Equity, the English Jus Honorarium 21-42 
 
 CHAPTER III. 
 
 LAW OF CHARITIES IN NEW YORK. 
 
 English Law in some Form Adopted in New York — Uncertainty 
 in Extent of such Adoption — Judicial Rules Adopted — Ex- 
 tension of Statute of Charitable Uses to New York — New 
 York, Part of the Diocese of London in partibus exteris — 
 Charities in the Province of New York — Jurisdiction of the 
 N. Y. Court of Chancery over Charities — Constitutional 
 Adoption by the State of the Former Law of the Province — 
 Modifications in the Law Occasioned by the Rejection of the 
 Royal Form of Government — Treaty of Peace with England — 
 Jones and Varick's Revision of English Statutes Extending 
 Here — Charitable Uses — Law of Charities Prior to the Revised 
 Statutes — Chancellor Kent's Opinion on Law of Charities — 
 Chancellor Jones' Opinion — Chanqery Doctrines Concerning 
 Charities— Vice Chancellor Sandford — Reversal of Chancery 
 Doctrines on the Law of Charities in New York— Cy pres 
 Doctrine in New York — Discussion of the Royal Prerogative 
 — Federal Sovereignty — Crown as parens patriae — Attorney 
 
TABLE OF CONTENTS. Vll 
 
 PAGE 
 
 General — Effect of the Revised Statutes on Charitable Uses — 
 History of Contention over Law of Charities in New York State 
 — Informations by the Attorney General — Rise of the New 
 Doctrines Concerning Charities in New York — Effect of State 
 Legislation on the Law of Charities 43-68 
 
 CHAPTER IV. 
 
 CHARITABLE DONATIONS NOT IN TRUST. 
 
 Corporate Vehicles of Charity — Definitions of Charity — Chari- 
 ties favored at Common Law — New York Doctrines — Cor- 
 porate Donees — Trust Character of Corporate Holdings — 
 Rise of Corporate Charities — What Charitable Donations 
 Involve — Capacity of Donor — Capacity of Donee — Statutes 
 Affecting Capacity — Common Law Rule — Charter of Corpora- 
 tion Restricts Amount of Corporate Holdings in New York — 
 Other Statutes Affecting Corporations — Mode of Donations 
 Absolute to Charitable Corporations — Power of Corporations 
 to Acquire by Will — Devise to Corporation — Common Law 
 Rule as to Bequest to Corporations — Debts of Corporations 
 Deducted — Amount of Property Charitable Corporations may 
 now Take — Effect of the new Policy on Charities in New York — 
 Donations Absolute to Charitable Corporations — Gifts Classi- 
 fied — How Effected — Estates in Lands of Bodies Corporate — 
 Corporation as Residuary Legatee — Remainders to Corpora- 
 tions—Personal Estates — Devise or Bequest to Corporation to 
 be Formed — Corporation, how Described in Devise — Unincor- 
 porated Associations — Bequests to Priests or for Masses — 
 Foreign Corporations — Devise to the Government of the 
 United States — Policy as to Gifts to Take Effect in Foreign 
 States 69-94 
 
 CHAPTER V. 
 
 CHARITABLE USES AND TRUSTS IN NEW YORK. 
 
 Charitable Uses Abrogated by the Revised Statutes — Express 
 Trusts — Powers in Trust — The Statute of 1893 — Trusts in Per- 
 sonalty — Statutory Trusts — Suspension of the Power of Alien- 
 ation—Trust Property not Inalienable — Conditions — Trusts for 
 Quakers — Characteristics of Charitable Uses — Charitable Uses 
 Subjected to Ordinary Rules — Definite Beneficiaries— Elements 
 
Vlll TABLE OF CONTENTS. 
 
 PAGE 
 of a Valid Trust under the Revised Statutes — Recent Changes 
 in the Law — The Act of 1893 — Construction of the Act of 1893 
 to regulate Charitable Gifts — Religious, Educational, Charitable 
 and Benevolent Uses — Superstitious Uses — Procedure under 
 the Act of 1893 — Gifts for Unincorporated Associations — Trust 
 for Charitable Corporation to be formed — Power of Selecting 
 Beneficiaries — What Trust Purposes are now Sanctioned — 
 What is a Charitable Use at the Present Time — Language 
 raising Charitable Trusts — Creation of Trusts — Trustees of a 
 modern Charitable Use — Who may be such Trustees — Chari- 
 table Trusts of Personalty — Gift to Trustees of a Charitable 
 Corporation — Precatory Trusts — Remedy for the Violation of 
 Charitable Trusts — Succession Tax Exemption 9S~ 12 Z 
 
 CHAPTER VI. 
 
 FORMS AND COMMENTARY. 
 
 Common Forms — Form of Bequest to a Charitable, or a Literary 
 Association — Notes on Description of Corporation — Form of 
 Bequest of "Remainder" in Personal Estate to a Charitable 
 Corporation — Note on "Remainders" of Personalty — Devise 
 of Remainder to Charitable Corporation — Note on the Vesting 
 of a Remainder — Form of Bequest to Religious Corporation 
 with Alternative Bequest over on a Contingency — Note on 
 
 < Description of Episcopal Church Corporation — Form of 
 Bequest to Charity Subject to Annuities — Note on Annuities — 
 Bequest of Money to Charitable Corporation for Specific Pur- 
 pose or Single Corporate Use — Note on Restricted Devises 
 and Bequests to Bodies Corporate — Note on Conditions Pre- 
 cedent and Subsequent, etc — Form of Bequest to Charitable 
 Corporation on Condition — Note on Common Law Con- 
 ditions — Form of Devise to Charitable Corporations on Con- 
 dition — Notes on Conditions — Note on Determinable Fees 
 
 Form of Bequest and Devise of Residuary Estate, Real and 
 Personal, to Trustees of an Express Trust for Two Lives (or 
 the Shortest Possible Period within such Lives), for the 
 Ultimate Benefit of a Hospital Corporation, Directed to be 
 Formed after the Testator's Death — Notes on Devises and 
 Bequests to Corporations to be Formed — Note on Powers 
 
 of Sale — -Note on Joint Tenants — Note on Accumulations 
 
 Note on Presumption — Note on the Trustees' Estate 
 
 Note on Estates — Notes on Incorporation, Perpetuity 
 etc. — Note on Testator's wish Concerning Management of 
 Beneficiary Corporation — Note on Limitations in Trust for 
 
TABLE OF CONTENTS. IX 
 
 PAGE 
 Arbitrary Period Within Two Lives — Note on Alternative 
 Devises and Bequests — Note on Selection of Executors and 
 Trustees Under a Will to Establish a Charity — Notes on Ex- 
 ecution of Wills and Witnesses — Form of Bequest and Devise 
 of Residuary Real and Personal Estate (Without any Express 
 Trust) for the Bsnefit of a Hospital Corporation to be Formed 
 — Note on Tilden v. Green and Executory Limitations to Cor- 
 porations to be Formed — Note on Dispositions of Residuary — 
 Note on Perpetuities — Note on Express Trusts Under Revised 
 Statutes — Note on Remainder to Corporations not in esse — 
 Note on Discretionary Trusts — Note on Partial Intestacy — 
 Limitations in Trust — Note on Trust Powers — Note on Leasing 
 Powers — Form of Devise in Trust for Testator's son with 
 Power to Latter to Appoint to Charity — Notes on Powers — 
 ' Hereditaments." 124-154 
 
 APPENDICES, NOTES AND COMMENTS. 
 
 Comments on Statute of Charitable Uses — Comments on History 
 of Charitable Uses — Comments on Recent Legislation in New 
 York Concerning Charitable Legislation 1 55-159 
 
 APPENDIX No. I. 
 Statute of Charitable Uses [43 Eliz., c. 4] 160-164 
 
 APPENDIX No. II. 
 
 Principal Statutes of New York Concerning Benevolent, Chari- 
 table, Scientific and Missionary Corporations 1 65-1 71 
 
 APPENDIX No. III. 
 
 Principal Statutes of New York Concerning Religious Corpora- 
 tions and Incorporated Cemeteries, Burial Places or Grave- 
 yards 172-197 
 
TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Adams v. Perry, 43 N. Y. 487 
 
 55, 62, 71, 79, 87, 89, 95, 102, 103, 104, 116, 117, 119, 120 
 
 Addlington v. Cann, 3 Atk. 141; Barn. 130 30, 36 
 
 Alexander v. Bennett, 60 N. Y. 204 109 
 
 American Dramatic Fund Assoc 'n, Matter of, 22 Abb. N. C. 231 123 
 
 Andrew v. N. Y. Bible & Prayer Book Society, 4 Sandf. 156; 8 N. Y. 
 
 559 2, 47, 49, 54, 56, 59, 60, 61, 64, 65, 69, 74 
 
 Andrews v. Gen. Theolog. Seminary, 8 N. Y. 559 57 
 
 Anon, 1 Ch. Ca. 267 36 
 
 Armitage v. Coates, 35 Beav. 1 147 
 
 Att'y General -v. Bains, Prec. Ch. 271 ; 2 Vernon, 598 36 
 
 Att'y General v Barnes, 2 Ver. 597 30 
 
 Att'y General v. Bishop of Oxford, 1 Bro. C. C. 444 N 40 
 
 Att'y General v. Bowyer, 3 Ves. 726 36, 37, 64 
 
 Att'y General v. Brereton, 2 Ves. Sr. 426 , 64 
 
 Att'y General v. Clarke, Ambler, 422 22 
 
 Att'y General v. Craig, 2 My. & C 22 
 
 Att'y General v. Cullen, cited in Williams v. Williams 46 
 
 Att'y General v. Davies, 9 Ves. 535 38, 40 
 
 Att'y General v. Day, 1 Ves. 223 38 
 
 Att'y General v. Flood, Hayes, 611 64 
 
 Att'y General v. Kohler, 11 Ho. L. Cas. 654 31 
 
 Att'y General v . Lord Weymouth, Amb. 23 38^ 
 
 Att'y General v. Master of Brentwood School, 1 Mylne & K. 376 37 
 
 Att'y General v. Mayor of Dublin, 1 Bligh, N. S. 312 13, 33, 36, 46, 64 
 
 Att'y General v. Mayor of Galway, 1 Moll. 95 64 
 
 Att'y General v. Middleton, 2 Ves. Sr. 327 64 
 
 Att'y General v. Newman, 1 Ch. Ca. 157 64 
 
 Att'y General v. Peacock, Fin. 245 36 
 
 Att'y General v. Ranee, Ambler, 422 22 
 
 Att'y General v. Rye, 2 Vernon, 453 36 
 
 Att'y General v. Stewart, 2 Meriv. 143 39 
 
 Att'y General v, Tancred, 1 W. Bl. 90 ; Ambler, 351 18 
 
 Att'y General v. Vivian, 1 Russ. 236 ". 64 
 
Xli TABLE OF CASES. 
 
 PAGE 
 
 Att'y General v. Webster, L. R. 20 Eq. 483 22, 50 
 
 Att'y General v. Whitely, 1 1 Ves. 241 4° 
 
 Avery v. Everett, no N. Y. 317 9 2 
 
 Ayres v. Meth. Church, 3 Sandf. 351 
 
 3, 4, 6, 36, 44, 45, 49, 54, 56, 59, 61, 65, 69, 70, 73, 76, 96, 107, 108 
 
 Babington v. Gull, Cal., I., pp. lvi., lvii., lviii.; temp. Hen. VI 32 
 
 Bacon v. Bacon, 4 Dem. 5 114 
 
 Bailey, Matter of, 24 Abb. N. C. 206 115 
 
 Bailey v. Bailey, 97 N. Y. 460 145 
 
 Banks v. Phelan, 4 Barb. 80 53. 55 
 
 Baptist Association v. Hart's Ex'rs, 4 Wheaton, 1 9, 11, 22, 33, 36, 64 
 
 Baptist Church v. Witherell, 3 Paige, 296 122 
 
 Barry v. Lambert, 98 N. Y. 300 120 
 
 Bascom v. Albertson, 34 N. Y. 584 
 
 10, 12, 23, 39, 48, 49, 57, 59, 61, 62, 63, 65, 66, 67, 69, 72, 73, 79, 81, 
 
 83, 98, 101, 102, 104, 119 
 
 Beekman v. Bonsor, 23 N?Y. 298 12, 49, 56, 60, 101, 103, 148 
 
 Belmont v. O'Brien, 12 N. Y. 394 95, 97, 114, 152 
 
 Bennett v. Culver, 97 N. Y. 250 131 
 
 Betts v. Betts, 4 Abb. N. C. 317 78, 81, 82, 83, 90 
 
 Bird v. Merklee, 144 N. Y. 546. .49, 72, 73, 82, 84, 86, 87, 96, 115, 117, 130 
 
 Black, Matter of, 1 Connoly 477 ; 24 State Rep. 341 91 
 
 Boardman, Matter of, 20 N. Y. Supp. 60 102 
 
 Boasberg v. Cronan, 30 St. Rep. 483 ; 9 N. Y. Supp. 664 73, 116 
 
 Bogardus v. Trinity Church, 4 Paige, 178 43 
 
 Booth v. Baptist Church, 1 26 N. Y. 2 1 5 
 
 71, 87, 89, 95, 97, 99, 102, 104, 114, 115, i2i, 125, 128, 130, 131, 134, 
 
 J 38. 139, 14°. H 2 . H . 148, 149, 152 
 
 Bowden v. M'Leod, 1 Edw. 588 122 
 
 Boyle v. Boyle, Ir. R. 1 1 Eq. 433 108 
 
 Brackett v. Barney, 28 N. Y. 333 80 
 
 Brandow v. Brandow, 66 N. Y. 401 144, 151 
 
 Browne v. Yeall, 7 Ves. 50, cited 10 Ves. 27 40 
 
 Brudenel v. Elwes, 7 Ves. 382 40 
 
 Bullock, Matter of, 6 Dem. 335 94 
 
 Burgess v. Wheate, 1 Eden, 177 30 
 
 Burrill v. Boardman, 43 N. Y. 254 62, 86, 89, 134, 149 
 
 Butler v. Trustees, &c, 92 Hun, 96 102, 109 
 
 c. 
 
 Cadell v. Palmer, 1 Clark & Finnelly, 372 147, 148 
 
 Cager, Matter of, 1 1 1 N. Y. 343 88, 125 
 
TABLE OF CASES. Xlll 
 
 PAGE 
 
 Campbell v. Foster, 35 N. Y. 361 99 
 
 Canfield v. Ford, 28 Barb. 336 1 54 
 
 Carpenter v. Historical Society, 2 Dem. 574 90 
 
 Cary v. Berty, 2 Vern. 333 41 
 
 Chamberlain v. Chamberlain, 43 N. Y. 424 74, 81, 82, 83, 92, 94 
 
 Chamberlain v. Stearns, 1 1 1 Mass. 267. 108 
 
 Chamberlains. Taylor, 105 N. Y. 185 58, 74, 146 
 
 Children's Aid Society v. Loveridge, 70 N. Y. 387 141 
 
 Cholmley's Case, 2 Rep. 50 1 34 
 
 Christ's Hospital Case, Bridgman's Duke, 370 37 
 
 Christ's Hospital v. Grainger, 1 Mac. & G. 460 127 
 
 Church of Redemption v. Grace Church, 68 N. Y. 570 
 
 75, 100, no, 122, 127 
 
 Chwatal v. Schreiner, 148 N. Y. 683 147 
 
 Cochrane v. Schell, 140 N. Y. 516 97, 104, 113, 120 
 
 Cocks v. Barlow, 5 Redf. 406 149 
 
 Coggeshall v. Pelton, 7 Johns. Ch. 292 51, 55 
 
 Cole v. Sewell, 4 Dr. & W. 1 29 
 
 Collison's Case, cited in Christ's Hospital v. Hawes, Bridgman's 
 
 Duke, 370 37 
 
 Commissioners of Char. Don. v. Walsh, 7 Ir. Eq. Rep. 24 N 108 
 
 Cooke v. Piatt, 98 N. Y. 35 146 
 
 Corbyn v. French, 4 Ves. 418 38 
 
 Corning v. McCullough, 1 N. Y. 47 48 
 
 Corporation of Ludlow v. Greenhouse, 1 Bligh. N. S. 17 13, 36 
 
 Coster v. Lorillard, 14 Wend. 265 56, 147 
 
 Cottman v. Grace, 1 1 2 N. Y. 299 
 
 Countryman v. Deck, 13 Abb. N. C. 112 131 
 
 2, 46, 55, 56, 62, 67, 87, 89, 95, 101, 103, 104, 119 
 
 Crooke v. The County of Kings, 97 N. Y. 421 145 
 
 Cross v. U. S. Trust Co., 131 N. Y. 330 93, 103, 104, 118 
 
 Crozier v. Bray, 120 N. Y. 366 88, 125, 126 
 
 Cruikshank v. Home for the Friendless, 1 13 N. Y. 337 
 
 87, 89, 104, 135, 138, 140, 144, 146, 148, 149, 152 
 
 Currins. Fanning, 13 Hun, 458 83, 117 
 
 Curtiss v. Barrus, 38 Hun, 165 3 
 
 Cutting v. Cutting, 86 N. Y. 522 104, 119, 1 52 
 
 D. 
 
 DaCosta v. DePas, Ambler, 228 114 
 
 Dammert v. Osborn, 140 N. Y. 30 54, 58, 62, 67, 94, 104, 105, 109, no 
 
 Day v. Roth, 18 N. Y. 448 120 
 
 Deegan v. Wade, 144 N. Y. 573 139, 150 
 
 Degraw -v. Clason, 1 1 Paige, 1 36 99 
 
 Delaney v. McCormack, 88 N. Y. 174 95, 97, 113, 152 
 
XIV TABLE OF CASES. 
 
 PAGE 
 
 Denton v. Jackson, 2 Johns. Ch. 320 45> 7& 
 
 De Peyster v. Clendining, 8 Paige, 295 97 
 
 Despard v. Churchill, 53 N. Y. 192 93 
 
 Dillaye v. Greenough, 45 N. Y. 438 1 14, 149- 
 
 Dillon v. Reilly, Ir. R. 10 Eq. 1 52 108 
 
 Dodge, Ex'r v. Pond, 23 N. Y. 69 6a 
 
 Doe v, Burnsall, 6 T. R. 30 140 
 
 Donovan v. Van DeMark, 78 N. Y. 244 114. 149 
 
 Dowd's Will, 8 Abb. N. C. 118 74 
 
 Downing v. Marshall, 23 N. Y. 366 
 
 30, 44, 45, 56, 61, 74, 76, 80, 81, 90, 93, 95, 97, 102, 103, no, 114, 
 
 119, 144, 152 
 
 Draper v. Harvard College, 57 How. Pr. (N. Y.) 269 93 
 
 Duke of Cumberland v. Graves, 7 N. Y. 305 ; 9 Barb. 595 119 
 
 Duke of Marlborough v. Earl Godolphin, 1 Eden, 404. 152 
 
 Dumpor's Case, 1 Smith Lead. Cas 133. 
 
 Dutch Church in Garden St. v. Mott, 7 Paige, 77 
 
 7, 11, 14, 30, 44, 45, 46, 50, 52, 76 
 
 E. 
 
 Edson v. Bartow, 15 Misc. 179 ; (14 Law Journ. 811) 85, 121 
 
 Erwin v. Hurd, 13 Abb. N. C. 91 95, 100, 115, 120, 130, 131 
 
 Everitt v. Everitt, 29 N. Y. 39 97, 98, 104, 114, 152 
 
 Eyre v. Countess of Shaftesbury, 2 P. Wms. 103 36, 64 
 
 Farmers' Loan & Trust Co. v. Carroll, 5 Barb. 615 95, 97, 116, 152 
 
 First Presbyterian Society of Buffalo, Matter of, 106 N. Y. 251 2, 84 
 
 Fisher v. Fields, 10 Johns. 495 30, 50 
 
 Fisher & Mead, Matter of, 27 State Rep. 36 ; 8 N. Y. Supp. 10 1 14 
 
 Foley, Matter of, 10 N. Y. Supp. 12 102 
 
 Fontain v. Ravenel, 17 Howard U. S. 369 1,6, 10, 57, 64 
 
 Foose v. Whitmore, 82 N. Y. 405 ; 86, 114, 149. 
 
 Fosdick v. Town of Hempstead, 125 N. Y. 581 
 
 62, 67, 72, 83, 86, 112, 115, 116, 117, 118 
 
 Fox, Matter of Will of, 52 N. Y. 350 93 
 
 Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175 114, 148 
 
 Gibbons v. Maltyard, Pop. 6 . . 23 
 
 Gibert v. Peteler, 38 N. Y. 165 139. 
 
 Gilman v. McArdle, 99 N. Y. 451 91, 97, 104, 108, in, 113, 120 
 
 Gilman v. Reddington, 24 N. Y. 9 95. 97. 104, 113, 114 
 
TABLE OF CASES. XV 
 
 PAGE 
 
 Gott v. Cook, 7 Paige, 521 , 97 
 
 Gower v. Mainwaring, 2 Ves. Sr. 89 41 
 
 Graff v. Bonnett, 31 N. Y. 9 99, 104 
 
 Graves v. Detterling, 120 N. Y. 447 131 
 
 Gray v. Barton, 55 N. Y. 68 3, 80 
 
 Greenes. Greene, 125 N. Y. 506 103, 117 
 
 Greenland v. Waddell, 116 N. Y. 234 152 
 
 n. 
 
 Hagenmeyer's Will, 1 2 Abb. N. C. 432 91, 92, 108 
 
 Hallock v. Thompson, 5 Paige, 583 99 
 
 Harris v. The Bible Society, 2 Abb. Ct. App. Dec. 316 75 
 
 Hart v. Hamburger, 1 State Rep. 293 118 
 
 Hartnett v. Wandell, 60 N. Y. 346 141 
 
 Hawley, Matter of, 104 N. Y. 250 114 
 
 Hayes v. Pratt, 147 U. S. 557 134 
 
 Heermans v. Robertson, 64 N. Y. 332 114, 149 
 
 Henderson v. Henderson, 113 N. Y. 1 114 
 
 Higgins v. Town of Southampton, Dickens, 146 33, 36 
 
 Hillam's Case, Duke, 375 37 
 
 Hillen v. Iselin, 144 N. Y. 365 98, 144 
 
 Hirsh v. Auer, 146 N. Y. 13 104, 120 
 
 Holland v. Alcock, 108 N. Y. 312 : 
 
 1, 4, 12, Si, 22, 24, 27, 39, 48, 49, 62, 63, 65, 66, 70, 72, 73, 81, 91, 
 
 98, 101, 102, 103, 107, 108, III, 112 
 Hollis v. Drew Theological Sem., 95 N. Y. 166. ... 56, 70, 75, 76, 77, 82, 83 
 
 Holly v. Hirsch, 135 N. Y. 590 95, 114 
 
 Holmes v. Mead, 52 N. Y. 332 62,71,102,113, 115 
 
 Hope v. Brewer. 136 N. Y. 126 93, 102, 104 
 
 Hornbeck's Ex'r v. Am. Bible Society, 2 Sandf. Ch. 133 51, 55 
 
 Horn beck v. Westbrook, 9 Johns. 73 18 
 
 Howe, Matter of, 1 Pai. 214 83, 115, 116, 117 
 
 Hoyt v. Dillon, 19 Barb. 644 131 
 
 Huss, Matter of, 1 26 N. Y. 537 : 92, 93 
 
 Hutchins v. Van Vechten, 140 N. Y. 155 120 
 
 Hutton v. Benkard, 92 N. Y. 295 104, 119 
 
 Hyde v. Parrat, 1 P. Wms. 2 88 
 
 I. 
 
 Incorporated Society v. Richards, 1 Connor & Lawson, 58 ; 1 Drury 
 
 & Warren, 258 13, 64 
 
 Ingersoll, Matter of Will of, 59 Hun, 571 ; 131 N. Y. 573.. .72, 84, 86, 115. 
 
 Inglis v. Sailors' Snug Harbor, 3 Peters, 99 ' 
 
 87, 89, 121, 122, 134, 142, 147, 151 
 
XVI TABLE OF CASES. 
 
 PAGE 
 
 Isbell, Matter of, 93 Hun, 158 (1 App. Div. 158) 115, 129 
 
 Isemant/. Myres, 26 Hun 651 51.83, 115, 117. 118, 119 
 
 J. 
 
 Jackson, Matter of, 20 N. Y. Supp. 380 102 
 
 Jackson v. Brown, 13 Wend. 437 40, 55 
 
 Jackson ex. dem. v. Cory, 8 Johns. 385 18 
 
 Jackson ex. dem. v. Hammond, 2 Cai. Cas. 337 43, 48, 49, 80 
 
 Jackson ex. dem. v. Hartwell, 8 Johns. 422 116 
 
 Jackson v. Phillips, 14 Allen (Mass.), 539 70 
 
 Jackson v. Schutz, 18 Johns. 174 48 
 
 Jenner v. Harper, 1 P. Wms. 246 ; 1 Sack. 163 30, 37 
 
 Jenning v. Conboy, 73 N. Y. 230 152 
 
 Jesus College Case, Duke, 363 37 
 
 Jones v. M. E. Sunday School, 4 Uem. 271 89 
 
 Jones v. Williams, Ambler! 651.. 22, 70 
 
 Journeyman Cordwainer's Case, Yates Sel. Cas. ill 43 
 
 K. 
 
 Kane v. Gott, 24 Wend. 641 99 
 
 Kavanagh, Matter of, 125 N. Y. 418 75 
 
 Kearney v. Miss. Society, 10 Abb. N. C. 274 83, 89 
 
 Kerr v. Dougherty, 79 N. Y. 327 75. 79 
 
 Kimball v. Chappel, 27 Abb. N. C. 437 90, 102 
 
 King v. Rundle, 15 Barb. 139 : 59, 66, 81 
 
 King v. Woodhull, 3 Edw. Ch. 79 55 
 
 Kinnierw. Rogers, 42 N. Y. 531 • 146 
 
 Kirk v. Kirk, 137 N. Y. 510 103 
 
 Kirkley Hospital, Matter of, 1 5 Ves. 306 36 
 
 Kniskern v. The Lutheran Churches, 1 Sandf. Ch. 439 9, n 
 
 L. 
 
 Le Couteulx v. City of Buffalo, 33 N. Y. 333 74, 78 
 
 Lefevre v. Lefevre, 59 N. Y. 434 74 ; yc io2 
 
 Leggett v. Firth, 132 N. Y. 7 89, 125 
 
 Leggett v. Perkins, 2 N. Y. 297 97i II4> I49 
 
 Lent v. Howard, 89 N. Y. 169 I4 5 
 
 Leonard v. Burr, 18 N. Y. 96 60, 87, 107, 132, 144 
 
 Lessees of Levy v. McCartee, 6 Peters, 102 a, aq ca 
 
 Levy v. Levy, 33 N. Y. 97 
 
 1, 4, 8, 12, 38, 39, 44, 45, 48, 49, 56, 58, 61, 63, 65, 66, 67, 69, 72, 73, 
 
 77' 81, 93, 98, 101, I0 3, 104, 109, 116 
 
TABLE OF CASES. XV11 
 
 PAGE 
 
 Livingston v. Gordon, 7 Abb. N. C. 53 83, 100, 112 
 
 Loddington v. Kime, 1 Salk, 224; 1 Ld. Raym. 203 140 
 
 Look, Matter of, 26 State Rep. 745 86, 115, 117 
 
 Losey v. Stanley, 147 N. Y. 560 57. 98 
 
 Lougheed v. Dykeman's Baptist Church, 129 N. Y. 211 90 
 
 Luhrs 11. Eimer, 80 N. Y. 171 58 
 
 Lynch v. Loretta, 4 Dem. 312 92, in 
 
 Lyon v. Hewe, temj> Edw. IV., Cal. in Ch. II., p. xliv 29, 30 
 
 M. 
 
 Magill v. Brown, 16 Fed. Cas. 408 ; Brightly N. P. 346 ; 14 Haz. Rag. 
 
 Pa. 305 4, 8, 23, 26, 37, 44, 54, 56, 76 
 
 Manice v. Manice, 43 N. Y. 303 53, 92, 120, 146, 150, 151 
 
 Manning v. Manning, 1 Johns. Ch. 527 52 
 
 Marlborough, Duke of, v. Earl Godolphin, 1 Eden, 404 152 
 
 Marx v. McGlynn, 88 N. Y. 357 90 
 
 Mayor of Bristol v. Whitton, Toth, 95 ; Duke, 81 ; PI. 31 36, 37 
 
 Mayor, etc., of Reading v. Lane, Toth, 94 36 
 
 McCartee v. Orphan Asylum Society, 9 Cow. 437 
 
 10,11,13,22,27,30,33,34, 36,38,41,46,48,52,55, 56,64,74,80,81, 118 
 
 McCaughal v. Ryan, 27 Barb. 376 101 
 
 McGraw, Matter of, m N. Y. 66 26, 58, 76, 77, 79, 80, 81, 82, 83 
 
 Merriam, Matter of Will of, 136 N. Y. 58 93 
 
 Miller v. Gable, 2 Denio, 492 45, 46, 122 
 
 Mills v. Farmer, 1 Merriv. 55 14, 22 
 
 Ministers, Elders, etc., of Dutch Church of Schenectedy v. Veeder, 
 
 4 Wend. 494 6, 46, 50 
 
 Moderno, Matter of, 5 Dem. 288 83 
 
 Moggridge v. Thackwell, 7 Ves. 36 14, 41 
 
 Moncrief v. Ross, 50 N. Y. 431 146 
 
 Montignani v. Blade, 145 N. Y. in 1 39 
 
 Moore v. Hegeman, 72 N. Y. 376 1 14, 149 
 
 Morice v. Bishop of Durham, 9 Ves. 399, 405 36, 40, 69 
 
 Mormon Church v. United States, 136 U. S. 1 57 
 
 Morse v. Morse, 85 N. Y. 53 .114, 149 
 
 ST. 
 
 Nesmith, Matter of, 140 N. Y. 609 150 
 
 Newcomb v. St. Peter's Church, 2 Sanf. Ch. 636 55 
 
 N. Y. Institute for the Blind v. How's Ex'rs, 10 N. Y. 84 
 
 85, 90, 102, 120 
 
 NicollT/. N. Y. &Erie R. R. Co., 12 N. Y. 121 131, 133 
 
 Norrisw. Beyea, 13 N. Y. 272 88, 104, 119,125, 148 
 
xviii TABLE OF CASES. 
 
 O. 
 
 Page 
 
 O'Connor v. Gifford, 117N.Y.275 91, xu 
 
 O'Hara v. Dudley, see Re Will of O'Hara. 
 
 O'Hara, Matter of Will of, 95 N. Y. 403. . . .38, 86, 102, 104, 112, 119, 121 
 
 Ould v. Wash. Hospital, 95 U. S. 303 10, 33, 64, 134, 155 
 
 Owens v. Missionary Society of M. E. Church, 14 N. Y. 380 
 
 2, 3, 11, 12, 18, 22, 26, 31, 36, 38, 45, 49, 50, 51, S3, 55, 56, 57, 60, 
 
 64, 66, 90, 96, 97. 102, 103, 106 
 
 Paice v. Archb. of Canterbury, 14 Ves. 364 40, 41 
 
 Parsons v. Lyman, 20 N. Y. 103 92 
 
 Patterson v. Winn, 5 Peters, 233 ' 43 
 
 Pell v. Folger, 23 N. Y. 42 103 
 
 Pennyman v. Jenny, Duke, 82 35 
 
 People v. Clarke, 9 N. Y. 349 48 
 
 People v. Dispensary and Hospital Society, 7 Lans, 304 123 
 
 People v. Ingersoll, 58 N. Y. 1 12, 36, 56, 57, 58, 64, 109 
 
 People v. North River Sugar Refining Co., 121 N. Y. 582 123 
 
 People v. O'Brien, 1 1 1 N. Y. 1 123 
 
 People v. Powers, 83 Hun, 449 ; 147 N. Y. 104 
 
 57, 64, 81, 91, 102, 108, 109, in, 112, 113 
 
 People v. Simonson, 126 N. Y. 299 56, 58, 89, 104 
 
 People's Trust Co. v. Smith, 82 Hun, 494 75 
 
 Phelan v. Russell, 4 Ir. Eq. Rep. 701 108 
 
 Phelps, Ex'r, v. Pond, 23 N. Y. 69 102, 103, 119 
 
 Porter's Case, 1 Rep. 22 B 23 
 
 Potter v. Chapin, 6 Paige, 639 10, 11, 54, 55, 67 
 
 Powers. Cassidy, 79 N. Y. 602 102, 112, 113, 121 
 
 Prichard v. Thompson, 95 N. Y. 76 102 
 
 Prime, Matter of Estate of, 136 N. Y. 347 71, 76, 102 
 
 Pritchard v. Smith, 95 N. Y. 76 112 
 
 Proprietors of the Church in Brattle Square v. Grant, 3 Gray (Mass.), 
 142 133 
 
 R. 
 
 Radley v. Kuhn, 97 N. Y. 26 144 
 
 Rainey v. Laing, 58 Barb. 453 87, 108, 129 
 
 Ramsay v. De Remer, 65 Hun, 212 103 
 
 Randall, Re, 38 Ch. D. 213 I2 y 
 
 Read v. Hodgens, 7 Ir. Eq. Rep. 17 108 
 
 Read v. Williams, 125 N. Y. 560 97, 102, 112, 114, 119 
 
 Rex v. Portington, 1 Salk, 162 41 
 
TABLE OF CASES. XIX 
 
 PAGE 
 
 Rich v. Tiffany, 2 App. Div. 75 75, 77, 82 
 
 Ridden v. Thrall, 125 N. Y. 572 80, 85 
 
 Rikerw. Cornwall, 113 N. Y. 115 87 
 
 Riker v. Leo, 1 1 5 N. Y. 93 78, 81, 102 
 
 Robert v. Corning, 89 N. Y. 225 99, 115, 146 
 
 Robertson v. Bullions, n N. Y. 243 115 
 
 Robes v. Bent, Moore, 552 21 
 
 Root v. Stuyvesant, 1 8 Wend. 257 152 
 
 Rose v. Hatch, 125 N. Y. 427 103, 1 17 
 
 Rose v. Rose, 4 Abb. Ct. App. Dec. 108 29, 61, 87 
 
 Rostianhale v. Wychingham, Cal. II., p. iii. {temp. Hen. V.) ; Cal. 
 
 II., pp. xxiii.-li ; Cal. I., p. xlviii 21 
 
 Rushmore v. Rushmore, 35 State Rep. 845 86 
 
 s. 
 
 Schermerhorn v. Cotting, 131 N. Y. 48 136, 139, 145 
 
 Selden v. Vermilyea, 3 N. Y. 525 95, 97 
 
 Shandor v. Brownlow, 2 Ridg. P. C. 428 37 
 
 Sheldon v. Chappell, 47 Hun, 59 117, 118 
 
 Sherwood v. Am. Bible Society, 1 Keyes, 561 ; 4 Abb. Ct. App. Dec. 
 
 227 70, 76, 82, 90, 102, 116, 119 
 
 Shipman v. Fanshaw, 1 5 Abb. N. C. 288 89 
 
 Shipman v. Rollins, 98 N. Y. 311 87, 89, no, 125, 126, 134, 135, 149 
 
 Shotwell, Ex'r, v. Mott, 2 Sandf. Ch. 46 
 
 2, 8, 9, 10, 11, 17, 22, 23, 50, 51, 52. 53, 55, 59, 62, 72 
 
 Simmons v. Burrell, 8 Misc. (Delehanty,) 388 75, 102, 109 
 
 Smith v. Floyd, 140 N. Y. 337 113, 152 
 
 Smith v. Stowell, Chan. Cas. 195 36 
 
 Smith v. Van Ostrand, 64 N. Y. 278 88 
 
 Steinway v. Steinway, 10 Misc. 563 117 
 
 Stephenson v. Short, 92 N. Y. 433 38, 72, 74, 75, 77, 82 
 
 Stone v. Dutton, 21 Rep. of Com'rs Char. 166 30 
 
 Sweeney v. Warren, 127 N. Y. 426 - 97, 114, 146 
 
 Symon's Case, Bridgman's Duke's Char. Uses, 163 29, 30, 37 
 
 T. 
 
 Taltarum's Case, 1 2 Edw. IV., PI. 25. F. 19a 28 
 
 Teed, Matter of, 59 Hun, 63 87 
 
 Thelluson v. Woodford, 4 Ves. 227 29, 148 
 
 Thomas v. Howell, 1 Salk, 170 131 
 
 Thompson v. Shakespear, 1 DeG., F. & J. 399 28 
 
 Tilden v. Green, 130 N. Y. 29 
 
 87- 89, 97, 101, 102, 103, 112, 113, 114, 134, 135, 140, 142, 149, 150. 
 
XX TABLE OF CASES. 
 
 PAGE 
 
 Toffison's Ex'r v. Norfis, 20 N. J. Eq. 489 108 
 
 Toronto, etc., Trust Co. v. C. B. & Q. R. R. Co., 123 N. Y. 37 
 
 114, 115. 149 
 
 Towle v. Remseh,. 70 N. Y. 303 131 
 
 Trustees of N. Y. Prot. Epis. School, Matter of, 31 N. Y. 574 45, 51 
 
 Trustees for Episcopate v. Colgrove, 4 Hun, 362 ; 6 Supm. Ct., T. 
 
 & C. 614 120 
 
 Trustees of Amherst College v. Ritch, 91 Hun, 509 75, 77, 121, 122 
 
 Tucker v. St. Clement's Church, 3 Sandf. 242 ; 8 N. Y. 558 24, 59 
 
 Tucker v. Tucker, 6 N. Y. 416 146 
 
 Tyrrel's Case, Dyer, 155a 6, 30 
 
 Tyson v. Blade, 22 N. Y. 558 88, 125 
 
 u. 
 
 Underhill, Will of, 6 Dem. 466 118 
 
 United States v. Fox, 94 U. S. 315 93 
 
 V. 
 
 Vail v. L. I. R. R. Co., 106 N. Y. 283 133 
 
 Vander Volgen v. Yates, 3 Barb. Ch. 342 no 
 
 Van Deuzen v. Trustees, 4 Abb. Ct. App. Dec. 465 120 
 
 Vanderveer v. McKane, 24 Abb. N. C. 105 91 
 
 Van Home v. Campbell, 100 N. Y. 287 88, 125, 128 
 
 Van Rensselaer v. Dennison, 35 N. Y. 393 139 
 
 Van Rensselaer 11. Hays, 19 N. Y. 68 48 
 
 Van Rensselaer v. Read, 26 N. Y. 558 133 
 
 Vernon v. Vernon, 53 N. Y. 351 114, 146, 149 
 
 Vesey v. Jamson, [ Sim. & Stu. 69 40 
 
 Vidal v. Girard's Ex'rs, 2 Howard, U. S. 127 
 
 1, 8, 9, 10, 11, 12, 14. 16, 22, 23, 30, 36, 64, 70 
 Voorhees v. Presbyterian Church, 17 Barb. 103 59 
 
 w. 
 
 Wadhams v. Am. Home Miss. So., 12 N. Y. 415 ng 
 
 Wagstaff v. Wagstaff; 2 P. Wms. 258 3 o 
 
 Wainright v. Low, 132 N. Y. 313 58 
 
 Wakering 11. Bailie, temp. Hen. VI., Cal. of Pro. Ch. I., pp. lxii-lxiii. .21, 29 
 
 Ward v. Ward, 105 N. Y. 68 I49 
 
 Watkins v. Reynolds, 123 N. Y. 211 I37 
 
 Wehrhane, Matter of, . 40 Hun, 542 90, 102 
 
 Welsh v. Allen, 21 Wend. 147 ; r 
 
 Wellbeloved v. Jones, 1 S. and S. 40 g . 
 
TABLE OF CASES. XXI 
 
 PAGE 
 
 West v. Knight, I. C. C, 134 36 
 
 Wetmore v. Parker, 52 N. Y. 450 
 
 72, 76, 77, 82, 83, 84, 101, 104, 115, 116, 117, 125, 128, 129 
 
 Wheaton v. Byrne, MS. {Anno 1896) Barnard, J 103 
 
 Wheeler v. Smith, 8 Howard (U. S.), 55 10, 57 
 
 Whicker v. Hume, 14 Beav. 524 ; 1 DeG. M. & G. 505 39 
 
 White v. Hindle's Contract, 7 Ch. Div. 201 140 
 
 White v. Howard, 46 N. Y. 144 48, 90, 93 
 
 Whiter. Miller, 71 N. Y. 118 100 
 
 White v. White, 7 Vesey, 423 50 
 
 White v. White, 1 Bro. Ch. Cas. 12 14, 22 
 
 Widmore v. Gov. of Corp. of Queen Anne's Bounty, 1 Bro. C. C, 
 
 p. 13" 40 
 
 Willets v. Willets, 20 Abb. N. C. 471 112 
 
 Williams v. Montgomery, 148 N. Y. 519 99, 148 
 
 Williams v. Thorn, 70 N. Y. 270 99, 104 
 
 Williams v. Williams, 8 N. Y. 525 
 
 1, 3, 11, 28, 33, 43, 44, 45. 46, 48. 51. 53. 55. 56, 60, 61, 64, 67, 72, 
 
 76, 97, 101, 103, 115, 129 
 
 Wood -v. Brown, 34 N. Y. 337 140, 149 
 
 Woodward v. James, 115 N. Y. 346 103, 1 17 
 
 Woodworth v. Paine, 74 N. Y. 196 131 
 
 Wright, Matter of, N. Y. Law Jour., Jan'y 10, 1893 11 1 
 
 Wright v. Douglas, 7 N. Y. 564 114, 149 
 
 Wright v. Trustees of Meth. Epis. Church, 1 Hoffman's Ch. 201 
 
 2, 5, 6, ii, 15, 16, 18, 23, 31, 32, 33, 36, 40, 54, 55, 90 
 
 Y. 
 
 Yates v. Yates, 9 Barb. 324 
 
 1, 11, 16, 43, 44, 49, 56, 59,65, 66, 69, 70, 76, 80, 81, 83, 119, 148 
 Yeap Cheap Neo v. Ong Cheng Neo, L. R. 6 P. C. 381 28, 108 
 
 Z. 
 
 Zane, Will of Sarah, see Magill v. Brown. 
 
TABLE OF STATUTES.* 1 
 
 STATUTES OF ENGLAND. 
 
 PAGE 
 
 9 Hen. III. (Magna Charta) 25 
 
 9 Hen. III. c. 36 (Magna Charta) 26 
 
 7 Edw. I. (cle viris religiosis) 26, 27, 28 
 
 13 Edw. I. c. 32 (Mortmain) 26, 27, 28, 39, 76, 81, 82 
 
 13 Edw. I. c. 33 (Mortmain) . .26, 27, 28, 76, 81 
 
 18 Edw. I. c. 1 {Quia Emptores) 19, 27, 28 
 
 13 Edw. I. (Stat. West. 2d, De Donis) 28 
 
 27 Edw. I. c. 2 (Mortmain) 26, 27, 28, 39 
 
 18 Edw. III. st. 3, s. 3 (Mortmain) 26, 27, 28, 39, 76, 81, 82 
 
 1 5 Rich. II. c. 5 (Mortmain) 26, 27, 28, 39 
 
 23 Hen. VIII. c. 10 (Stat. Superstitious Uses) 3, 22, 23 
 
 27 Hen. VIII, c. 10 (Stat, of Uses) 
 
 6, 7, 13, 16, 24, 27, 28, 29, 30, 32, 50, 59, 98, 120, 142, 145, 147, 152 
 
 27 Hen. VIII. c. 16 (Enrollment) 37 
 
 27 Hen. VIII. c. 28 23 
 
 31 Hen. VIII. c. 1 (Stat, of Wills) 6, 7, 13, 21, 27, 30, 35, 56, 80, 142 
 
 31 Hen. VIII. c. 13 23 
 
 32 Hen. VIII. c. 1 48 
 
 32 Hen. VIII. c. 4 23 
 
 32 Hen. VIII. c. 28. 1 50 
 
 34 and 35 Hen. VIII. c. 5 (Stat, of Wills) 
 
 6, 7, 13, 21, 27, 30, 35, 48, 56, 80, 142 
 
 1 Edw. VI. c. 14 23 
 
 1 and 2 Ph. & Mar. c. 8 19 
 
 14 Eliz, c. 5 33 
 
 14 Eliz. c. 14 33 
 
 35 Eliz. c. 7 33 
 
 39 Eliz. c. 4 33 
 
 39 Eliz. c. 5 33 
 
 39 Eliz. c. 6 22, 23, 33 
 
 39 Eliz. c. 12 33 
 
 *' The Statutes referred to in Appendices II. and III. are not included in this Table. 
 
 xxiii 
 
xxiv TABLE OF STATUTES. 
 
 PAGE 
 
 39 Eliz. c. 18 33 
 
 39 Eliz. c. 21 
 
 43 Eliz. c. 2 33 
 
 43 Eliz. c. 3 33 
 
 Statute of Charitable Uses (43 Eliz. c. 4) 
 
 3, 4, 8, 9, 10, 11, 12, 13, 20, 21, 24, 29, 30, 32, 33, 34, 35, 36, 37, 44, 
 
 45, 49, 50, 52, 54, 63, 65, 73, 106, 107, 109, no, in, 155, 156, 160 
 
 4 Jac. I. c. 7 27 
 
 12 Car. II. c. 24 19. 35 
 
 29 Car. II. c. 3 (Frauds) 27,. 30, 48 
 
 1 W. &M. c. 2 26 
 
 7 and 8 Will. III. c. 37 26 
 
 9 Geo. II. c. 36 (called Stat, of Mortmain) 38, 56, 77 
 
 39 and 40 Geo. III. c. 98 148 
 
 PROVINCE OF NEW YORK. 
 
 Dongdn Charter of the City of New York 46 
 
 Journal of the Provincial Convention, I. 554 51 
 
 STATUTES OF THE STATE OF NEW YORK. 
 
 1 Jones & Varick's Laws, 44 51 
 
 1 Jones & Varick's Laws, 90 77 
 
 1 Jones & Varick's Laws, 104 46, 73, 77, 127 
 
 1 Jones & Varick's" Laws, 128 (as to Trinity Church) 47 
 
 2 Jones & Varick's Laws, 67 51 
 
 2 Jones & Varick's Laws, 68 50 
 
 2 Jones & Varick's Laws, 93 48, 80 
 
 2 Jones & Varick's Laws, 282 48, 49, 54 
 
 2 Jones & Varick's Laws, 142 77 
 
 1 Greenleaf's Laws, 71 46, 73 
 
 1 Greenleaf's Laws, 72 76 
 
 1 Kent & Radcliff, 336 73, 77, 127 
 
 C. 25, Laws of 1779 51 
 
 C. 17, Laws of 1783 77 
 
 C. 18, Laws of 1784 67, 74, 77 
 
 C. 82, Laws of 1785 77 
 
 C. 35, Laws of 1786 48 
 
 C. 43, Laws of 1786 157 
 
 C. 47, Laws of 1787 80 
 
 C. 46, Laws of 1788 47, 48, 49, 54, 60, 65, 67, 76, 108 
 
 C. 29, Laws of 1795 58 
 
 1 Revised Laws of 1813, 212 73, 77 
 
 1 R. L. 260 77 
 
 1 R. L. 265 77 
 
TABLE OF STATUTES. XXV 
 
 PAGE 
 
 I R. L. 364 80 
 
 C. 60, Laws of 1813 49, 127 
 
 C. 21, Laws of 1828-9. . ., ,, , 47 
 
 C. 320, Laws of 1830 106 
 
 C. 148, Laws of 1834 58 
 
 C. 90, Laws of 1835 , , 157 
 
 C. 174, Laws of 1839 100 
 
 C. 184, Laws of 1839 120 
 
 C. 318, Laws of 1840 79, 117, 118 
 
 C. 26, Laws of 1841 79 
 
 C. 261, Laws of 1841 117 
 
 C. 74, Laws of 1846 117 
 
 C. 319, Laws of 1848 , 56, 75, 8i, 86 
 
 C. 373, Laws of 1 849 100 
 
 C. 323, Laws of 1853 157 
 
 C. 395, Laws of 1853 157 
 
 C. 432, Laws of 1855 117 
 
 C. 360, Laws of i860 56, 74, 75, 81, 83, 86 
 
 C. 555, Laws of 1864 103, 118 
 
 C. 368, Laws of 1865 75 
 
 C. 782, Laws of 1867 74 
 
 C. 267, Laws of 1875 75 
 
 C. 333, Laws of 1875 157 
 
 C. 343, Laws of 1875 75 
 
 C. 313, Laws of 1877 75 
 
 C. 209, Laws of 1878 120 
 
 C. 337, Laws of 1880 120 
 
 C. 546, Laws of 1887 117 
 
 C. 160, Laws of 1890 118 
 
 C. 398, Laws of 1890 123 
 
 C. 497, Laws of 1890 79 
 
 C. 553, Laws of 1890 79 
 
 C. 191, Laws of 1891 79 
 
 C. 25, Laws of 1892 118 
 
 C. 378, Laws of 1892 78, 157 
 
 C. 399, Laws of 1892 123 
 
 C. 677, Laws of 1892 158, 159 
 
 C. 683, Laws of 1892 122 
 
 C. 687, Laws of 1892 127, 157, 158 
 
 C. 701, Laws of 1893 
 
 53, 58, 62, 67, 74, 90, 91, 92, 96, 101, 103, 104, 105, 106, 107, 108, 
 
 109, 112, 113, 120, i2i, 123, 150 
 
 C. 400, Laws of 1894 79 
 
 C. 559, Laws of 1895 78, 138, 157. I5 8 
 
 C. 723, Laws of 1895 73.78, 127, 157 
 
 C. 821, Laws of 1895 122 
 
xxvi TABLE OF STATUTES. 
 
 REVISED STATUTES. 
 
 PAGK 
 
 Generally 52, 56, 58, 59, 62, 74, 87, 90, 96, 97, 102, 125, 135, 142 
 
 R. S. 460 77 
 
 R. S. 599 • 79. 85 
 
 R. S. 599, sec. 1 : .-77, 78, 79, 82 
 
 R. S. 599, sec. 3 .- 78, 79, 82 
 
 R. S. 600 79 
 
 R. S. 600, sec. 3 77 
 
 R. S. 718, sec. 2 119 
 
 R". S. 719, sec. 8 119 
 
 R. S. 719, sec. 10 74 
 
 R. S. 723, sec. 11 126 
 
 R. S. 723, sec. 14 87, 148 
 
 R. S. 723, sec. 15 87, 98, 107, 130, 131, 143, 144, 149 
 
 R. S. 723, sec. 16 • 98, 130, 140, 154 
 
 R. S. 723, sec. 17 ■'. 87 
 
 R. S. 724, sec. 24 ": . 134, 143 
 
 R. S. 724, sec. 26 89 
 
 R. S. 725, sec. 34 134, 143 
 
 R. S. 725, sec. 45 : 59 
 
 R. S. 726, sec. 37 ; 1 36, 1 50 
 
 R. S. 726, sec. 38 150 
 
 R. S. 726, sec. 40 143, 1 50 
 
 R. S. 726. sec. 41 143 
 
 R. S. 727 119, 154' 
 
 R. S. 727, sec. 40 146 
 
 R. S. 727, sec. 45 95, 106 
 
 R. S. 727, sec. 47. 137 
 
 R. S. 728 140, 154 
 
 R. S. 728, sec. 55 59, 95, 96, 106, 136, 143, 144, 145, 148, 152, 153 
 
 R. S. 729, sec. 56 136, 145 
 
 R. S. 729, sec. 58! 143 
 
 R. S. 729, sec. 59 95, 136, 143 
 
 R. S. 729, sec. 142 107 
 
 R. S. 730, sec. 64 ,. . . 87, 98, 107 
 
 R. S. 730, sec. 66 144 
 
 R. S. 730, sec. 67 137 
 
 R. S. 734, sec. 96 in, 113 
 
 R. S. 734, sec. 97 in, 113 
 
 R. S. 734, sec. 100 152 
 
 R. S. 734, sec. 101 1 52 
 
 R. S. 734, sec. 102 1 52 
 
 R. S. 735, sec. 106 107, 120 
 
 R. S. 737, sec. 128 > TJ2' 
 
 R. S. 737, sec. 129 IS 2 
 
TABLE OF STATUTES. XXV11 
 
 PAGE 
 
 I R. S. 750, sec. 8 126 
 
 1 R. S. 773, sec. 1 87, 88, 98, 116, 119, 121 
 
 1 R. S. 773, sec. 2 87, 89, 98, 116, 121 
 
 1 R. S. 773, sec. 3 136, 150 
 
 1 R. S. 773, sec. 4 1 50 
 
 1 R. S. 796, sec. 96 152 
 
 ■1 R. S. 57, sec. 3 81, 93 
 
 2 R. S. 57, sec. 5 146 
 
 2 R. S. 60, sec. 21 74 
 
 1 R. S. 134, sec. 6 114, 120 
 
 2 R. S. 134, sec. 7 1 14 
 
 3 R S. 292 73 
 
 CODES. 
 
 Code of Civ. Pro. sec. 1651 126 
 
 Code of Civ. Pro. sec. 1797 122 
 
 Code of Civ. Pro. sec. 1798 123 
 
 Code of Civ. Pro. sec. 1804 122 
 
 CONSTITUTIONS OF THE STATE OF NEW YORK. 
 
 Constitution of 1777 47, 48, 51, 52, 53, 78 
 
 Constitution of 1821-3 47> 5 2 
 
 Constitution of 1846 47, 48, 54, 78 
 
 Constitution of 1894-5 47, 78, 153 
 
 CONSTITUTION OF THE UNITED STATES. 
 Article I. sec. 10.. 78 
 
CHAPTER I. 
 
 EARLY ENGLISH LAW OF CHARITIES. 
 
 As by constitutional limitation the common law of 
 England and the statute law of Great Britain were sub 
 modo made the law of the State of New York in the year 
 1777, our early law of charities is, in legal theory at least, now 
 determined by the state of the law in England in 1775 ;* 
 for, in point of fact, little of such law had then been applied 
 in the Province of New York. We must, therefore, begin 
 our consideration of this branch of the law, with a brief 
 account of the law of England, and next, consider what 
 part of it was applicable to the Province of New York, and 
 is to be regarded as the law of such Province ; for only 
 that part of the law of England which was in force or ap- 
 plicable here in colonial days, became a part of the law of 
 the State of New York. 2 Since 1777 a new law of charit- 
 ies has arisen here; 3 but the new law is not wholly inde- 
 pendent of the older law. 
 
 Limitations, settlements or gifts, intended to benefit the 
 public, or which have some educational, benevolent, char- 
 itable or religious end, usually present two characteristics : 
 they are permanent in operation and they are indefinite or 
 uncertain in respect of the real or individual beneficiaries. 4 
 In the Roman law such beneficiaries are designated personae 
 
 1 Const, of 1777, Sec. xxxv. 
 
 a Const, of 1777, sec. xxxv ; Williams v. Williams, 8 N. Y., at p. 541. 
 
 3 Levy v. Levy, 33 N. Y., 97, 108 ; Holland v. Alcock, 108 N. Y., 312, 336, 
 and cases cited below in Chapters III. and IV. 
 
 4 Yates v. Yates, 9 Barb., at p. 334; Williams on Executors, 1055, note ; 
 " Uncertainty is indispensable to all charities. If any one has a right to 
 claim by law, it ceases to be a charity." Mr. Horace Binney in Vidal v. Gir- 
 ard's Exrs., 2 How., at p. 149; Levy v. Levy, 33 N. Y., at p. 104; cf. Tyssen 
 Char. Bequests, 5 ; Fontain v. Ravenel, 17 How., at p. 384. 
 
2 LAW OF CHARITABLE DONATIONS. 
 
 incertae. 1 The fact that such settlements or limitations are 
 permanent in operation, usually involves a corporate donee, 
 or one whose life shall last beyond the span of a single 
 human existence. But, so dominant is the idea of a trust in 
 connection with the law of charities, that it has been said 
 that a charity necessarily involves a trust. 2 It is undoubt- 
 edly true that the " charitable use " of English law does 
 involve the conception of a trust. 3 But charity may take 
 another form ; the gift may be absolute to an eleemosynary 
 or civil corporation, whose charter or constitution in it- 
 self supplies' the elements of a trust. 4 An absolute gift to 
 an eleemosynary corporation is not, however, a " charitable 
 use," or trust, although it may come under the law of 
 charity. 6 Hence we shall briefly survey the law respect- 
 ing gifts to uncertain persons, the law concerning charit- 
 able uses, and then the law governing gifts to ecclesiastical, 
 civil and eleemosynary corporations. In England the law 
 of uncertain gifts, or gifts in abstracto, and the law of char- 
 itable uses blend in the course of their development. The 
 third branch is, however, distinct. By the Roman Chris- 
 tian law, which to some extent grafted itself on the Eng- 
 lish law of charities, 6 all donations of land or movable 
 estates, if made for religion or charity, were upheld, how- 
 ever indefinite the object of the gift. 7 The law of charities 
 is, therefore, primarily concerned with a class of indefinite 
 or uncertain uses and gifts. But it is not exclusively so 
 concerned, for it also involves donations absolute to char- 
 
 1 Infra, p. 15. 
 
 s Owens v. Missionary Society of M. E. Church, 14 N. Y., at p. 384. 
 
 8 Owens v. Missionary Society, ibid, supra. 
 
 4 Cf. Tyssen, Char. Bequests, I ; In the Matter of the First Presbyterian 
 Society of Buffalo, 106 N. Y., 251. 
 
 6 Andrew v. N. Y. Bible & Prayer Book So., 4 Sandf., at p. 179. Grant 
 on Corporations, 4, states, by means of corporations "charitable trusts were 
 secured to the objects of them so long as such objects should continue to be 
 found." But real property devised to them is not inalienable. Shotwell, 
 Exr., v. Mott, 2 Sandf. Ch., at p. 55; Owens v. The Miss. So. of M. e'. 
 Church, 14 N. Y., at p. 386. 
 
 6 Infra, p. 14. 
 
 * Cottman v. Grace, 112 N. Y., at p. 306; Wright*/. Trustees of Meth. Epis. 
 Church, 1 Hoffman's Ch., at p. 244. An ambiguous trust was, however, no- 
 trust, even if for charity. Vid. infra. 
 
LAW OF CHARITABLE DONATIONS. J 
 
 itable foundations or corporations, as well as gifts in trust 
 to charitable foundations and corporations. 1 
 
 It may be well to observe at this point that the term 
 gift or donation (donatio) has long ceased to bear the 
 strictly technical signification which it enjoyed in the 
 older law, where it refers only to the creation of an estate 
 tail. 3 The term in the jurisprudence of New York has a 
 much more extended meaning, and is applied to both 
 lands and personal estate. 3 It is authoritatively defined as 
 a voluntary transfer of property by one to another, with- 
 out any consideration or compensation therefor. 4 As the 
 maxim, that charities are favored, seems to have now no 
 very well-defined place in the present law of New York, 
 the rules relating to donations between the living {donatio 
 inter vivos) or even to a donatio mortis causa, 5 do not appear 
 to be relaxed in favor of charitable donations or gifts. 
 The general rules of law applicable to other donations 
 seem now to apply to charitable donations. 6 
 
 The term " charitable use " as employed in England, 
 until very recently, referred exclusively to the uses men- 
 tioned in the Statute of Charitable Uses; 7 none others 
 were charitable except that by construction, others might 
 fall within that statute. 8 The term " charitable use " is 
 thought to have gained its original significance as a tech- 
 nical term only after the Reformation in England, or in 
 the reign of King Edward VI., and then to have been em- 
 ployed to distinguish certain uses of a public or non- 
 private character from those uses then first condemned as 
 superstitious by the Statute of Superstitious Uses. 9 But 
 
 1 Williams v. Williams, 8 N. Y., at p. 535. This case was subsequently de- 
 parted from, but a. great many statements in the opinion are obviously con- 
 tinuing truths. Owens v. The Miss. So. of M. E. Church, 14 N. Y., at pp. 
 
 386, 387- 
 
 8 Cruise, D., Tit. 32, c. 4, sec. 33. 
 
 3 Curtiss v. Barrus, 38 Hun, 165. 
 
 4 Gray v. Barton, 55 N. Y., 68, 72. 
 6 2 Kent's Comm., Chap. 38. 
 
 6 Infra, Chapters IV., V. 
 
 ' 43 Eliz., c. 4 ; Vid. infra. Appendix I. 
 
 8 Infra, Chapter II.; Ayres v. The Meth. Church, 3 Sandf., at p. 376 sea. 
 
 " Cf. Owens v. The Miss. So. of the Meth. Epis. Church, 14 N. Y., at p. 
 
4 LAW OF CHARITABLE DONATIONS. 
 
 at the present day in this State, "charitable use" has ac- 
 quired a merely negative meaning in contrast with private 
 uses and trusts, and in this sense is almost equivalent to 
 a public trust, 1 though the latter term has sometimes 
 reference to a trust concerning the sovereign. The term 
 " charitable use " since the abrogation of the Statute of 
 Charitable Uses, has a larger signification than formerly. 2 
 
 But before considering in detail this species of trust, let 
 us briefly survey the history of uses and trusts. in English 
 jurisprudence. The generic term " use " as employed in 
 England and the states derived from her empire, is most 
 ancient. It is now claimed by legists, that when it is 
 employed technically in legal documents, it comes from 
 the Latin " opus " and not from the Latin word " usus." 
 The scribes, they say, wrote in an ancient charter con- 
 veying land to the use of John, " ad opus Johannis," or 
 "ad usus Johannis" indifferently. 3 In this sense "use" 
 primarily denotes an agency of some kind. Be this as 
 it may, step by step the conceptions conveyed by " opus," 
 " fiducia" and "usus" in Anglo-Latin law were developed 
 by the chancellors out of this primitive agency into the 
 great doctrines of English equity relating to trusts. 
 
 When the feudal system, including the restraints on 
 alienation of lands, had become too rigorous for the con- 
 ditions of English life, uses or equitable estates were super- 
 imposed on the ancient law governing feuds. The terre- 
 tenant or feoffee to uses alone remained subject to the old 
 law ; cestui que use obtained the beneficial estate, which 
 possessed greater adaptation to social wants. The terre- 
 tenant or feoffee to uses simply held the land in conscientia 
 boni viriA The cestui que use enforced his equitable rights 
 
 389 ; Holland v. Alcock, 108 N. Y., at p. 325 ; Ayresz/. The Meth. Church, 3 
 Sandf., at p. 376. 
 
 1 Levy v. Levy, 33 N. Y., at pp. 115, 116 ; 2 Perry on Trusts, sec. 697. 
 
 2 Magillw. Brown, 16 Fed. Cas., at pp. 437, note, and p. 444 seq.; AyresV. 
 The Meth. Church, 3 Sandf., at pp. 376, 377 ; Cf. 3 Sharswood & Budd's Lead- 
 ing-Cases in the Amer. Law of.Real Prop., pp. 332, 333, 336 ; and see below 
 in Chapter III. 
 
 8 Pollock & Maitland, History of English Law, II., 226, 236 ; Harvard Law 
 Review, viii. , 127. 
 
 4 Bacon's Essay on the Use of the Law ; and "Reading on the Statute of 
 Uses." 
 
LAW OF CHARITABLE DONATIONS. 5 
 
 in foro conscientiae ; but his estate was perfected only in the 
 time of King Henry V. 1 
 
 The gradual growth of the jurisdiction of the English 
 chancellors over definite uses at the suit of the beneficiary, 
 or cestui que use, is within the knowledge of all students 2 of 
 our judicial history. At the end of the reign of Henry V. 
 (A. D. 1430) a Court of Chancery was one of the estab- 
 lished courts of the realm. Down to the end of the same 
 reign there is, however, no evidence of the English chan- 
 cellors having enforced any substantive doctrines different 
 from those which were recognized in the courts of law, ex- 
 cept two — one of these exceptions related to conveyances 
 made to the use of others besides the feoffee or grantee. 
 This assumption of a jurisdiction over uses at the suit of 
 the beneficiary, is the parent of our modern law of trusts. 3 
 
 When the definite cestui que use thus obtained in the 
 reign of Henry V. relief in a court of equity for a violation 
 of his beneficial interest, the time could not be far distant 
 in English Jurisprudence when such interest would be re- 
 garded as an estate, quite apart from the legal estate. 
 Whether the development of these doctrines relative to 
 equitable estates in England, depended on the analogies 
 found by the chancellors in the Roman law relating to 
 ususfructus, or fidei commissa, we need not stop to consider. 4 
 It is sufficient for this place to know positively that a use 
 was finally protected by the English Chancellor at the suit 
 of a definite cestui que use. How or when a charitable use or 
 one for an indefinite cestui que use 5 was so protected where 
 no legal interest vested, is the vexed historical question of 
 many of the greatest litigations in this country and will be 
 considered hereafter. 
 
 1 Infra. 
 
 * Digby, History of the Law of Real Prop., Chap. VI., and other institu- 
 tional writers treat the subject very adequately. 
 
 ""Early English Equity," by Mr. Justice Holmes, London Law Quar., I., 
 p. 162 ; Spence, Eq. Jurisdic, I., 343. 
 
 1 Cf. Digby, History of the Law of Real Property, Chap. VI. ; Spence, 
 Equit. Jurisdiction, I., 446 ; Kerly, History Eq. Jurisdic, 78-79; Tomlin's 
 Lyttleton, 521. 
 
 5 Cf. Wright v. Trustees Meth. Epis. Church, 1 Hoffman's Ch., at p. 244, 
 seq. and Cornish on Uses, Chap. I. 
 
6 LAW OF CHARITABLE DONATIONS. 
 
 The Statute of Uses, 27 Hen. VIII., c. 10 (A. D. 1536), 
 converted the beneficial estate of cestui que use into the legal 
 estate, and henceforth those uses which the statute vested 
 in possession were cognizable in the courts of common law. 
 The narrow construction, by the common law courts, of a 
 use in Tyrrel's Case 1 (A. D. 1557) led to the cognizance of 
 many secondary uses, or of a use upon a use, by the Court 
 of Chancery as trusts. 2 The uses upon which the Statute 
 operated retained their original name ; those upon which 
 the Statute did not operate obtained the name of trusts, 
 with the exception of charitable trusts, which singularly 
 enough, even in our own day, continue to be called " charit- 
 able uses," although they always differed in some respects 
 from the common use anterior to the Statute of Uses. The 
 common use of English jurisprudence and the one referred 
 to as so great an evil in the Statute of Uses, was a trust or 
 confidence of a private character, having no public or 
 charitable significance. When the use was charitable, or 
 for the benefit of the public or a class, it was never sup- 
 posed to be affected by the Statute vesting uses in posses- 
 sion. 3 In short it is not difficult to detect that the Eng- 
 lish law of charities, including charitable uses, was always 
 differentiated from the law relating to gifts or trusts for the 
 benefit of persons certain — -personae certaeA 
 
 As is well known, one of the effects of the Statute vest- 
 ing private uses in possession was to take away the ancient 
 right of transferring the vested use by means of a last 
 will. 3 This evil was soon remedied by the Statute of 
 Wills. 6 The power of devising lands was very ancient. 
 It existed among the Saxons and was interrupted in Eng- 
 land only by the perfection of the feudal system, which 
 
 1 Dyer, 155 a; held, that there could not be a use upon a use. 
 
 2 Tomlin's Lyttleton, 521; Wright v. Trustees Meth. Epis. Church, 1 Hoff- 
 man's Ch., at p. 237. 
 
 3 Cruise's Dig., Tit. 11, c. 3, sec. 7; Bacon's Essay on Statute of Uses, 
 Montagne's Edit., vol. XIII., p. 340; sed cf. Minister, Elders, etc., of 
 Dutch Church of Schenectady v. Veeder, 4 Wend., 494; Ayres v. The Meth. 
 Church., 3 Sandf., at p. 373. 
 
 * Fontain v. Ravenel, 17 How., at top p. 384. 
 
 6 Powell on Devises, I., 5. 
 
 6 32 Hen. VIII., c. 1 ; 34 & 35 Hen. VIII., c. 5 
 
LAW OF CHARITABLE DONATIONS. 7 
 
 excluded the power of alienating fiefs without the consent 
 of the lord. 1 But the introduction of inalienable feuds did 
 not take away the right of disposing of terms of years cr 
 chattel interests by will 2 After the chancellors had de- 
 veloped the system of uses, which were regarded as things 
 — res incorpor -alls— -apart from the lands, uses freely passed 
 by will. 3 
 
 We have observed that the Statutes of Uses did not vest 
 charitable uses in possession. It may be, therefore, that 
 the power of transferring uses to charity by will was not 
 intended to be affected at all by the Statute of Uses. But 
 as the Statute of Wills enabled devises of socage lands to 
 be freely made, without the contrivance of uses, when the 
 chancellor had again taken jurisdiction of those uses not 
 vested by the Statute of Uses charitable uses were gradually 
 confused with other trusts, and the law touching charitable 
 uses and trusts then first began its history of approximation 
 to the law of non-charitable uses. 
 
 , How far the chancellors, after the reign of Henry V. 
 (A.D. 1430) and before the Statute of Charitable Uses (43 
 Eliz., c. 4), assumed jurisdiction over indefinite, permanent 
 charitable uses or trusts, at the suit of private persons, and 
 without the direct intervention of the crown, is, as we have 
 already stated, the historical question generally discussed 
 in some way in the American cases decided in this century. 4 
 The question was of very little importance in England after 
 the Statute of Charitable Uses 5 for by judicial construction, 
 that statute was made to answer most of the purposes of a 
 complete and salutary jurisdiction in cases involving exist- 
 ing conceptions of charities. 6 
 
 When we come to apply the law of England relating to 
 charities to the conditions of this country, we shall find 
 several fundamental questions discussed in the leading 
 cases : (1) How far did the former jurisdiction of the Lord 
 
 1 By particular custom, certain lands always passed by will. 
 
 8 Powell on Devises, I., 4. 
 
 8 Cornish on Uses, 34 ; Williams on Executors, I., 1. 
 
 * Infra, p. 9. seq.; et cf. Powell on Devises, I., 362 et seq. 
 
 5 Dutch Church in Garden Street v. Mott, 7 Pai., 77, 79. 
 
 6 Spence, Eq. Jurisdic, I., 591. 
 
8 LAW OF CHARITABLE DONATIONS. 
 
 High Chancellor over charities depend on the Statute of 
 Charitable Uses (43 Elizabeth, c. 4) ? (2.) If independent 
 of that Statute, how far was it dependent on the royal 
 prerogative? (3.) What portions of the English law 
 touching charities and charitable uses became the law of 
 the English in America, and survived the establishment of a 
 republican form of government by the Anglo-Americans? 
 
 Until the Record Commissioners published, in 1 827-1 832, 
 the three volumes of Calendars of Proceedings in Chan- 
 cery in the reign of Queen Elizabeth, there were few 
 reported adjudications of the Lord Chancellors, who held 
 the great seal prior to 43 Elizabeth. 1 Very seldom were 
 chancery cases reported in the Year Books. 2 Conse- 
 quently the precise nature of the Lord Chancellor's primi- 
 tive jurisdiction over Charitable Uses was not easily dis- 
 cernible prior to the year 1832, 3 and even since then it 
 has been involved in much doubt by reason of the unsatis- 
 factory character of the reports. 4 
 
 Although the Court of Equity in Chancery had taken 
 its place as one of the regular courts of the Kingdom in 
 the reign of Henry V. (141 3-1422), the theory that it was 
 purely a court of conscience ceased with the clerical 
 chancellors. Subsequently and until the reign of Queen 
 Elizabeth and, indeed, until after the Statute of Charitable 
 Uses (43 Eliz.), the jurisdiction of the lay Lord Chancellors 
 must have been on uneasy and revolutionary foundations. 
 Unfortunately the regular reports in chancery begin only 
 with Lord Ellesmere, who was made chancellor by James I. 
 in the year 1603, and few of his decisions remain. 5 The 
 printed data relating to prior equity cases and jurisdiction 
 are of a most inadequate character. 6 If we reflect that it 
 
 1 Vidal v. Girard's Exrs . 2 How., pp. 155, ig6 ; Shotwell, Exr, v. Mott, 1 
 Sandf., Ch. 46, 50 ; cf. Levy v. Levy, 33 N. Y., at p. 109. 
 
 2 Spence, Eq. Jurisdic, I., 446, 447. 
 
 3 Story, Eq. Jurispru., Sec. 1143 ; Magill v. Brown, 16 Fed. Cas., 408, 410, 
 435- 
 
 1 Lord Campbell, Lives of the Lord Chancellors, II., 368. 
 
 6 Kerly, Equity Jurisdiction, 98. 
 
 6 Lord Campbell, "Lives of the Lord Chancellors," II., 368 ; Magillw. Brown, 
 16 Fed. Cas., at p. 435; the Cases in the Calendars consist only of bills, an- 
 swers, etc., or abstracts thereof. 
 
LAW OF CHARITABLE DONATIONS. 9 
 
 was not until Lord Nottingham's time, or until about 
 1673, when the Province of New York had been nearly a 
 decade under English rule, that modern equity jurisdiction 
 began to be placed on settled foundations, we may easily 
 discern why the origin, the extent and the scope of the 
 Lord Chancellor's jurisdiction over charities prior to 43d 
 Elizabeth, were debatable matters in this country. The 
 publication of the Calendars of Proceedings in Chancery in 
 the reign of Elizabeth, by the Record Commissioners in 
 1827 to 1832, naturally revised to some degree, preconceived 
 conceptions of the nature and the extent of the Lord Chan- 
 cellor's jurisdiction over charities. 1 These records were 
 forcibly used by Mr. Binney in the great case of Vidal 
 v. Girard's Executors, in 1844, 2 and more voluminously by 
 Professor D wight, in the case of the Rose Will in 1863, 3 
 both counsel claiming an inherent jurisdiction in the Court 
 of Chancery over charities independently of the Statute of 
 Charitable Uses. 
 
 Before the publication of the Calendars of Cases in Chan- 
 cery prior to 43 Elizabeth, the question indicated ap- 
 pears to have come up for discussion for the first time in 
 the Federal Supreme Court, in the year 1819. 4 
 
 The Chief Justice, Marshall, who delivered the opinion 
 of the Court, maintained that the jurisdiction of the Lord 
 Chancellor over vague and indefinite charitable uses where 
 no legal interest vested could not be upheld independently 
 of the Statute, 43 Eliz., c. 4. Mr. Justice Story prepared 
 an opinion to the same effect, which the reporter, Mr. 
 Wheaton, published anonymously as an Essay in the ap- 
 pendix to the fourth volume of Wheaton's Reports. This 
 opinion Mr. Justice Story, in the year 1835, incorporated 
 almost literally in the first edition of the celebrated Com- 
 
 1 Kniskern v. The Lutheran Churches, etc., 1 Sandf. Ch., at pp. 561, 562 ; 
 Shotwell, Exr., v. Mott, 1 Ibid., 50. 
 
 ' 2 How., 127, 135; 2 Pomeroy, Eq. Juris., p. 597, sec. 1028. 
 
 3 4 Abb. Ct. App. Decis., 108. Consult his Statistics and cases published 
 separately at New York, in 1863, as " Dwight's Charity Cases; " although un- 
 methodical they are most valuable to the legal profession. 
 
 4 Baptist Association v. Hart's Exrs., 4'Wheaton, 1 ; cf. Kniskern v. The 
 Lutheran Churches, t Sandf. Ch., 439, 561, seq. ; 1 Pomeroy 's Eq. Jurisp., 
 Sections 1028, 1029. 
 
10 LAW OF CHARITABLE DONATIONS. 
 
 mentaries on Equity Jurisprudence, and it remains the 
 basis of the original text of the chapter on Charities. x 
 
 The opinion in Baptist Association v. Hart's Exrs., how- 
 ever, was not generally acquiesced in, especially in New 
 York. 2 In 1 844, after an examination of the records of cases 
 in Chancery anterior to 43 Elizabeth, the Supreme Court 
 itself appears to have altered its judgment on the general 
 historical question of equity jurisdiction over charitable 
 uses in the great case of Vidal v. Girard's Executors, 3 Mr. 
 Justice Story delivering the unanimous opinion of the 
 Court. The opinion on this point, however, has been since 
 in this State, at least, called a dictum. 4 
 
 In 1850 in the case of Wheeler v. Smith, 5 and in 1854 in 
 the case of Fontaine. Ravenel, 6 the Federal Supreme Court 
 plainly attribute the Lord Chancellor's jurisdiction over 
 charities of an indefinite nature to the prerogative when- 
 ever such jurisdiction was exercised before the Statute of 
 Elizabeth. 1 
 
 The revised opinion of Mr. Justice Story, in Vidal v. 
 Girard's Executors, is clearly not acquiesced in either in 
 Wheeler v. Smith or Fontain v. Ravenel. Thus the later 
 expression of the Court on the historical question of the 
 Lord Chancellor's jurisdiction appeared to be to the effect, 
 that even if it was independent of the Statute of Charitable 
 Uses (43 Eliz.), it could not be asserted in the case of in- 
 definite, permanent charities, where no legal interest vested, 
 except by virtue of the Lord Chancellor's functions of a 
 non-judicial nature — or in short, of the prerogatives of the 
 Crown. But a later expression of the Court seems to 
 recur to the opinion in Vidal v. Girard's Executors. 8 
 
 The advocates of the doctrine that equity jurisdiction 
 depends on the Statutes of Charitable Uses (39 and 43 Eliz., 
 
 1 Chap. XXXI. 
 
 a Potter v. Chapin, 6 Pai., 639 ; McCartee v. Orphan Asylum Society, 9 
 Cow., 437, 470 ; Shotwellw. Mott, 2 Sandf. Ch., 46, 50. 
 8 2 How., 127, 196. 
 
 4 Bascom v. Albertson, 34 N. Y., 584, 603 
 
 5 9 How., 55. 
 
 6 17 How., 369. 
 
 ' Ibid., pp. 388, 394- 
 
 8 Ould v. Wash. Hospital, 95 U. S., 303, 309. 
 
LAW OF CHARITABLE DONATIONS. II 
 
 c. 4) conceded that before the Statute the Chancellor's 
 jurisdiction was complete when the trust was certain in its 
 object and not perpetual. But they claim that there is no evi- 
 dence that before the Statute, uncertain or indefinite trusts 
 intended to be perpetual were enforced by the Chancellors. 1 
 
 They assert also, that independently of this Statute there 
 was no mode of enforcing in equity a charitable use for 
 the benefit of the public, and that the practice of filing in- 
 formations by the Attorney-General in the interest of the 
 Crown grew up subsequently to the Statute, and had no 
 place in English jurisprudence before that time. 8 But 
 both contentions are now negatived. 3 They are, how- 
 ever, closely connected with the extent of the adoption of 
 the English law of charities in this country. 
 
 In New York the purely historical question concerning 
 the extent of the Lord Chancellor's jurisdiction over 
 charitable uses has undergone some fluctuation. The 
 opinion in Baptist Association v. Hart 4 not only was not 
 acquiesced in, 5 but there was a very distinct intimation in 
 accord with that of Mr. Justice Story in Vidal v. Girard's 
 Executors, 8 that such jurisdiction over charitable uses 
 might be wholly supported by reference to the well-known 
 jurisdiction over trusts and without reference to the Chan- 
 cellor's exercise of the prerogative in cases where there was 
 no trust. 7 This general opinion was confirmed at first in the 
 Court of Appeals. 8 But in 1856 in Owens v. the Mission- 
 
 1 See brief of Mr. Cadwallader, of Counsel, on the Cases in Chancery prior 
 to 39Eliz., 2 How., U. S., at p. 179, note; brief of William Curtis Noyes, 
 printed as an Appendix to 23 N. Y. Reports ; Owens v. Miss. So., 14 N. Y., 
 at p. 398. 
 
 a McCartee v. Orphan Asylum, 9 Cow., 437, 472, 473, 481 ; Vidal v. 
 Girard's Exrs., 2 How. U. S., at p. 193. 
 
 8 Infra. 
 
 * 4 Wheat., 1. 
 
 5 Supra, p. 10. 
 
 6 2 How., at p. 194. 
 
 'McCartee v. Orphan Asylum Society, 9 Cow., pp. 474 sea. ; Potters. 
 Chapin, 6 Pai., 639 ; Dutch Church in Garden Street v. Mott, 7 Pai., 77 ; 
 Wright v. Trustees of Methodist Church, 1 Hoff. Ch., 202, 241, 263; 
 Kniskern v. Lutheran Churches, 1 Sandf. Ch., 439, 562 ; Shotwell, Exr., v. 
 Mott, 2 Sandf. Ch., 50 ; Yates v. Yates, 9 Barb., at p. 336. 
 
 8 Williams v. Williams, 8 N. Y., 525. 
 
12 LAW OF CHARITABLE DONATIONS. 
 
 ary Society of the Methodist Episcopal Church, 1 the opin- 
 ion on the historical question denoted, seems the other 
 way. In Beekman v. Bonsor, the historical divergence 
 between the two cases last referred to was noticed by 
 the Court, although no solution was offered. In Levy v. 
 Levy 2 in 1865, it was, however, assumed that the Chan- 
 cellor's jurisdiction may have been independent of the 
 Statute of Charitable Uses ; but again nothing of con- 
 sequence was contributed to the discussion on the his- 
 torical question. But in Bascom v. Albertson 3 in 1866, 
 the Court said, " we are convinced by the able and lucid 
 demonstration of Professor Dwight, that it (the jurisdic- 
 tion) might have been sustained * * prior to and 
 irrespective of the Statute " (43 Eliz., c. 4); " but we think 
 it would have been in the exercise of its jurisdiction, as 
 enlarged and aided by the royal prerogative and the 
 cy pres power, which do not appertain to our judicial 
 tribunals, in the absence of a special grant from the legisla- 
 tive department of the government.' ' This conclusion is 
 not very clear as no distinction was made between cases 
 of trusts and charitable donations to uncertain persons, 
 personae incertae, where alone the royal prerogative is 
 exercised. 4 But in 1874, in People v. Ingersoll, 5 the 
 opinion on the historical question seems finally to co- 
 incide with that in Vidal v. Girard's Executors. But 
 as all trusts not saved by the Revised Statutes were 
 abolished in 1830, 6 and equity had plenary jurisdiction 
 over the statutory trusts, the historical question after that 
 time was not important and never has been the crucial 
 question of the adjudged cases. 
 
 In England the historical question has been partly con- 
 sidered by Lord Redesdale and by Lord St. Leonards (Sir 
 E. Sugden) and the general conclusion reached, that the 
 
 1 14 N. Y., 380; commented on to this effect in Beekman v. Bonsor, 
 23 N. Y., at p. 309. 
 * 33 N. Y., at p. 106. 
 a 34 N. Y., 584, 592. 
 4 Infra. 
 
 " 58 N. Y., 1, 14, 15 ; Holland v. Alcock, 108 N. Y., at p. 328. 
 c Infra, Chapters III., IV. and V. 
 
LAW OF CHARITABLE DONATIONS. 1 3 
 
 Statute of Charitable Uses (43 Eliz., c. 4) did not supersede 
 the prior law, but that it simply gave liberty to proceed on 
 the old jurisdiction in a summary manner. 1 
 
 The historical divergence of the American cases may be 
 due either to inadequate Chancery data, as stated above, 
 or to too great emphasis of a very striking incident in 
 the history of English law. The Reformation destroyed 
 the ancient foundations of English equity. The clerical 
 Chancellors no longer sat in foro conscientiae, but English 
 lawyers, in an extraordinary though regular tribunal, in- 
 dependent of all external dictates. Mr. Hargrave at- 
 tributes the rise of modern law in England to the reign of 
 Henry VIII. 2 But it was the expulsion of the clerical 
 Chancellors, trained in the civil and canon law, which 
 best marks the dawn of new equitable conceptions. Yet 
 the lay Chancellors never subverted ancient institutions ; 
 they built slowly on the existing edifice, and with regard 
 to precedent and practice if possible. 3 The new regime 
 found fully established a great system of charities, regu- 
 lated by a law very different from the ordinary law of the 
 land. It is now quite certain that they took up this law 
 concerning charities just where they found it ; and 
 wherever they could apply it without disobedience to the 
 statutes 4 destroying old pious uses or institutions, they 
 applied it freely until the Statute of Charitable Uses 5 af- 
 forded a new and distinct basis for the entire jurisdiction 
 over charitable uses It is interesting to inquire into the 
 origin of the differences noticeable in the law of charities 
 and pious uses 
 
 1 Atty.-Gen. v. Mayor of Dublin, 1 Bligh. (N. S.), 312, 347, 348 ; Corpo- 
 ration of Ludlow v. Greenhouse, 1 Bligh. (N. S.), 17, 61,-62, 68 ; Incorporated 
 Society v. Richards, 1 Connor & Lawson, 58 ; s. c. 1 Drury & Warren, 258; 
 cf. Spence, Eq. Jurisdic, I, p. 591, note c, and p. 592, note a ; McCartee 
 v. Orphan Asylum Society 9 Cow., at p. 480 seq. 
 
 8 Preface to 13th Edit. Coke on Litt., p. xxiv. The reader will hardly need 
 this reminder if he will think of the Statute of Uses or Wills. 
 
 " Kerly, Hist. Eq. Jurisdic, 98. 
 
 1 23 Hen. VIII., c. 10 ; 1 Edw. VI., c. 14. 
 
 B The proofs are to be found in the Calendars in Chancery, in the Reports 
 of the English Charity Commissions, and in the Chancery cases taken from 
 the Ducatus Lancastrian, or pleadings in the Duchy Court of Lancaster. See 
 citations infra ; and Mitcheson, History of Charity Commissions, I, 2. 
 
14 LAW OF CHARITABLE DONATIONS. 
 
 Mr. Justice Story, in his Commentaries on Equity- 
 Jurisprudence, only conjectures that the English Law of 
 Charities must have been founded on the civil law. 1 
 He admits that there is a chasm in the law prior to 43 
 Elizabeth. 3 This chasm he subsequently attempted to 
 fill up as far as the Elizabethan records in Chancery per- 
 mitted. 3 He never went farther. Although there are no 
 systematic treatises relating to the law of charities in Eng- 
 land prior to the reign of Queen Elizabeth, the evidences 
 are quite sufficient to enable the inquirer to assume that 
 charitable donations and uses then stood on a legal footing 
 quite different from donations and uses not pious or 
 charitable. 1 If there were no such evidences, the practice 
 of the clerical lawyers in regard to other uses in lands 
 would in itself almost justify an inference that uses for the 
 benefit of holy church or of the poor would not be allowed 
 easily to fail for want of a compliance with the ordinary 
 rules of law. 5 Such records as we have of proceedings 
 in Chancery prior to the Reformation in England, or to 
 39 Elizabeth, tend to confirm the accuracy of such an 
 inference. Without attempting to exhaust the field of 
 inquiry, let us now glance backward to ascertain, if pos- 
 sible, the early law touching charities, its probable origin, 
 and the reason why in respect of charities we perceive a 
 state of things with which the ordinary law of England 
 is at variance. 
 
 When, before the Norman Conquest, the clergy intro- 
 duced in England the method of disposing of estates by 
 will or testament, 6 they naturally applied the only system 
 
 1 Sec. 1 137. 
 
 8 Sec. 1 142. 
 
 8 Vidal v. Girard's Exrs., 2 How, 127, 196. 
 
 4 Lord Thurlow and Lord Eldon attributed these differences to the adop- 
 tion of the Roman la* ; White v. White, 1 Bro. Ch. Cas., 12 ; Moggridge v. 
 Thackwell, 7 Ves., 36, 69 ; Mills v. Farmer, 1 Meriv., 55, 94, 95. 
 
 6 Cf. Dutch Church in Garden St. v. Mott, 7 Pai. at p. 79. 
 
 6 The reader who cares to verify this established fact may consult Kemble, 
 " The Saxons in England ;" Palgrave, and the early English chronicles, 
 Bede, Ingulph; Freeman, Norman Conquest, I., 20, or more original sources 
 in the early archives of Great Britain, such as Diplomatarium Anglicum Aevi 
 Saxonici, by Thorpe. 
 
LAW OF CHARITABLE DONATIONS. IS 
 
 of law with which they had any familiarity to gifts to 
 charity. This system was the Roman law as it had been 
 modified in Christian times. 1 The early Roman law did 
 not permit devises to uncertain persons, incertae personae 2 
 or trusts for their benefit, 3 so that devises, or bequests, 
 to the poor generally, or to societies or corporations not 
 having a legal existence, as well as trusts for their benefit, 
 were void. Under Christian legislation, pia corpora, pious 
 foundations were made capable of taking by devise, and a 
 trust for uncertain persons acquired validity from the 
 pious purposes of the disposition. 4 By the time of Jus- 
 tinian, municipal bodies were permitted to take as heirs, 
 or under a trust — fidei-commissum.* The " Saviour," an 
 archangel, or a martyr could be appointed heir, 6 and 
 these were construed as gifts to the church or shrine in 
 the place where the testator lived. 7 The Roman law re- 
 lating to charitable, pious, or public gifts in abstracto, or 
 those of an indefinite and permanent nature, was complete 
 in the sixth century of our era. 
 
 It is unnecessary to dwell upon the history of land in 
 England before the Con 4 uest further than to call to 
 the reader's recollection the familiar conversion of the 
 folc land into boc land and terra regis. 9. When the 
 folc land was chartered and became book land, or boc 
 land, it was alodial, and from its inheritable quality was 
 sometimes designated terra haereditaria. 9 The important 
 point to our inquiry is that boc land could be settled on 
 any condition desired. 10 Hence donations of land to pious 
 or charitable institutions or purposes were, before the 
 
 1 Wright v. Trustees Meth. Epis. Church, i Hoffman's Ch., at p. 244., seq. 
 
 * Gaius, 2, 238. 
 
 8 Gaius, 2, 287. 
 
 4 Poste, De Personis, 156. 
 
 8 See Amos, Roman Law, 121, for citations ; also c. 6. 24. 8 ; c. 6. 48. 
 
 6 C. 1, 2, 26 pr. 
 
 7 C. 1, 2, 25, 1 ; cf. Bracton, f. 286, h. 
 
 8 Digby, Hist. Real Prop., Chap. I., contains an elementary account of the 
 transition, with reference to authorities. 
 
 9 Allen on the Royal Prerogative, 2:3 ; cf. Sharon Turner, Hist. Anglo- 
 Saxons, II., 554, 556, 557. 
 
 10 Allen, ibid., 145, 146; Sharon Turner, Hist. Anglo-Saxons, II., 557. 
 
l6 LAW OF CHARITABLE DONATIONS. 
 
 Conquest, probably donationes sub conditione, or conditional 
 donations. 1 But it was not always easy to determine when 
 the grant was conditional, or when boc land was personal 
 land of the ecclesiastics, or when it belonged to the church. 2 
 When any condition or qualification was expressed in the 
 deed it was generally a causal or moving one, and indi- 
 cated only that the lands were given for free alms or in 
 libera eleemosina. Now conditions are said to have been the 
 predecessors of the English notions of uses or trusts. 3 
 When the judicial power of the Chancellor was confirmed 
 over uses the donations sub conditione consequently be- 
 came cognizable as uses, and after the Statute of Uses as 
 trusts. 4 
 
 We should not anticipate the historical narrative, but 
 proceed to the time long prior to the rise of uses or equit- 
 able estates, for there is a singular connection and relation 
 in the law of charities. While much land was held by 
 monasteries and other ecclesiastical bodies before the Con- 
 quest, there were many fictitious donations to them, by the 
 terms of which the donors reserved the power of revoca- 
 tion or personal benefits of asylum. 5 Consequently, the 
 charities then existing were ripe for change at the Conquest. 
 
 After the conversion of England, the Roman Christian 
 lawyers evidently applied the principles of the Roman law 
 to donations to charity, and some time before the Conquest 
 the possessions of the clergy for free alms or for divine 
 service were not inconsiderable. 6 The land chronicles 
 show that ecclesiastical bodies, lay persons, and even 
 
 1 Cf. Bracton, f. 19 b. 
 
 a Allen, Prerog., 143, cf. Ellis, Gen'l Int'd to Domesday, I., 258; Charter 
 from Kemble, Codex Diplomaticus Aevi Saxonici, cited in Digby, Hist. Real 
 Prop., 57, 58, 59, Sharon Turner, Hist. Anglo-Saxons, II., 554, 556, 557. 
 
 " Yates v. Yates, 9 Barb., at p. 335; Mr. Binney's argument in Vidal v. 
 Girard's Exrs., 2 How., at p. 152, citing Sugden on Powers; Perkins, 563; cf. 
 on this point Mr. Justice Holmes, Lond. Law Quar., I., p. 169; Tyssen, 
 Char. Bequests, 508. 
 
 4 See Mr. Butler's admirable note, 239, Co. on Litt., 290 b. 
 
 B Lingard, History of England, I., 517 ; Finlay, Byzantine Empire, 96. 
 
 6 Wright v. Trustees Meth. Epis. Church, 1 Hoff. Ch., 201, at p. 244 ; Mo- 
 nasticon Anglicanum, I., 11-22 ; Kemble, The Saxons in England, I., c. 11 ; 
 II., t. 9 ; Anglo-Saxon Chronicles, 657 ; "Bede, c. 19; Newcomb, History of 
 the Abbey of St. Albans, iq, 20. 
 
LAW OF CHARITABLE DONATIONS. 1 7 
 
 women, held lands for free alms or charitable purposes. 
 In Domesday, the " Saints " 2 are recorded as holding lands, 
 and in at least one instance an accusation of wrong-doing 
 was brought against a Saint in respect of his use of property. 
 It is not easy to determine in what manner lands possessed 
 by " Shrines " and " Saints " in libera eleemosina, or for free 
 alms, 3 were after the Conquest converted into the tenures 
 by divine service andfrankalmoigne. 4 The great author- 
 ities on the military tenures are very silent about this 
 change. 6 But there are internal evidences that it was 
 gradual. 6 The Conqueror refrained from meddling much 
 with church property, 7 and, in all probability, with all 
 property held for pious or charitable purposes. Obviously 
 no other portion of the ancient law suffered less change at 
 his hands than that regulating gifts to charity. That 
 property held in libera eleemosina was before the Conquest 
 really trust property and inalienable, is evident from a very 
 ancient document, in which it is said of certain lands, 
 " Vender e non potuerant, quia semper jacuerunt in eleemos- 
 ina Regis Edwardi tempore et omnium antecessorum suo- 
 rum."* After the holdings for free alms were converted 
 into tenures by frankalmoigne, the laws relating to dona- 
 tions of lands seem to have undergone modification at one 
 time or another. 9 We have seen that at first laymen and 
 
 1 Smith's Beda, 767, 876 ; Allen on the Royal Prerogative, 141 ; cf. Exon. 
 Domesday, 178,. 179. 
 
 2 Anglo-Saxon Chronicles contain a donation to St. Peter and Abbot Sex- 
 wolf, and see Diplomatarium Ang. Aevi Sax. 
 
 8 Those lands were originally probably conditional donations to quasi cor- 
 porations ; cf. Elton, Origins of English Hist., 215; Ingulph, History of 
 Abbey of Croyland, 67 ; Allen on the Royal Prerogative, 145, 146. 
 
 1 In 2 Bla., Comm. 101, these tenures are called ancient Saxon tenures, and 
 Sharon Turner speaks of them in a confused way. Hist. Anglo-Saxons, II., 
 554 seq.; cf. Bracton, f. 286 b; Digby, Hist. Real Prop., 38, 39. 
 
 6 Vide Freeman, Norman Conquest, V., 17, 20, 87, 253 ; Stubbs, I., 299; cf. 
 Kemble. I., c. 11, and II., c. 9. 
 
 6 Cf. Freeman, Norman Conquest, V., 87, 253; Stubb's Const. Hist., I., 
 299. 
 
 7 Freeman, Norman Conquest, IV., 14, 17; V., 2. 
 
 8 Freeman, Norman Conquest, V., Appendix B. , 498. Such ancient evidence 
 as this could seldom be brought up in the case of lay holdings. 
 
 9 Shotwell «. Mott, 2 Sandf. Ch., at p. 55, showing that lands dedicated to 
 charity became alienable sub modo. 
 
1 8 LAW OF CHARITABLE DONATIONS. 
 
 women held lands for free alms; 1 but by Littleton's time, and 
 probably before, tenure both by frankalmoigne and divine 
 service were confined to spiritual persons 2 and ultimately 
 to corporations de Jure; 3 unincorporated associations not 
 being able in modern times to acquire lands by purchase, 4 
 as anciently they might do. 5 
 
 When we come to the reign of Edward I. (A. D. 1272), 
 gifts "to God" remained valid. 6 Glanvill states that 
 every person may give a certain part of his lands to a 
 religious establishment in free alms. 1 Bracton recognizes 
 that gifts "to God " are in a secondary sense to the can- 
 ons or monks or parsons. 8 Property thus held remained 
 inalienable. 9 It is evident, therefore, that the common 
 law had all the characteristics of the Roman law relat- 
 ing to property held in trust for incertae personae ; for 
 gifts " to God," or " to a saint," were, in reality, only gifts 
 to juristic persons for the well-being of the public or the 
 poor at large. The important point to our inquiry is that 
 such indefinite trust donations were anciently valid by the 
 law of England, and fully regulated by principles very 
 analogous to those of the Roman law. 
 
 It is also obvious that the early English law relating 
 to charitable donations was less affected than the law 
 relating to other gifts, by t 3 stricter feudalization of 
 lands which followed the Conquest. Before there were 
 regular notions of corporations 10 in English law, the legal 
 status of a " Saint," and of pia corpora, was worked out by 
 
 1 Supra, p. 17. 
 
 s Litt., sec. 133. 
 
 8 Co. on Litt., 94 b; Wood's Institutes, 176. 
 
 4 Owens ®. Miss. So. of M. E. Church, 14 N. Y., at pp. 385, 407; Atty., 
 Gen'l v. Tancred, 1 W. Bl., 90 ; s. u. Ambler, 351 ; Jackson ex dem., etc., i>. 
 Cory, 8 Johns., 385; Hornbecka. Westbrook, 9 Johns., 73; Wright v. Trustees 
 Meth. Epis. Church, 1 Hoffman's Ch., at p. 248. 
 
 B Co. on Litt, 3 a. 
 
 a Pollock & Maitland, Hist, of Eng. Law, I., 122, 481. 
 
 * L. VII., u. 1. 
 
 8 f. 12, f. 286, b. ; cf. Ingulph, Histy. of Abbey of Croyland, 67. 
 
 9 Glanvill, L. 7, c. 1 ; Doctor and Student, Dialogue II., c. 39 ; Bracton, f. 
 12; and p. 17, supra, " Tempore Regis Edwardi," etc. 
 
 1 ° The law of corporations in England developed long subsequent to notions 
 of status. A corporation by prescription is only a juristic person de facto. 
 
LAW OF CHARITABLE DONATIONS. 19 
 
 the English ecclesiastics on the analogies afforded by the 
 " collegia" and " templa" of the Roman Christian code — 
 the universal code of Christendom. 1 It is thus possible to 
 account for future notable exceptions to the course of the 
 common law of England on the assumption that pious or 
 charitable donations, even of land, always differed in prin- 
 ciple from donations not pious or charitable. 
 
 After centuries had intervened, Coke observes, 3 with- 
 out any explanation, that in " ancient times " parishioners, 
 inhabitants, or probi homines of Dale, might purchase 3 lands. 
 The explanation is simple. He undoubtedly refers to a 
 period when feudal notions of land transfer and late con- 
 ceptions of corporate status had not absolutely obtained in 
 English law in respect of charitable or pious donations. 4 
 That such donations were not always subjected to the 
 strict law of tenures is also apparent from the fact that 
 escheats were sometimes taken away where lands were 
 held to pious uses/ and this, moreover, at a time when the 
 idea of tenure had become all-pervading in English law. 
 What both Littleton and Coke say of "tenure by frankal- 
 moigne " shows scant investigation of its origin. They 
 do not even hint that it was probably a survival or adap- 
 tation of the Roman trust donations to pia corpora* They 
 deal with existing phenomena only. After the Statute of 
 Quia Emptores no private person could create the tenure 
 by frankalmoigne ; the charitable donee held the lands by 
 the same tenure which the donor held them. 7 But by the 
 time this was law the notion of a use — a new equit- 
 able estate — had dawned on lawyers and subsequently 
 the importance of tenure and of legal estates diminished as 
 
 1 Bracton, f. 13 ; f. 27, b. 
 
 8 Co. on Litt. 3 a ; c/. Lewin on Trusts (1st Edit.), 143. 
 
 8 Contrasted with inheritance and includes ' ' devise. ' ' , 
 
 4 Laws go out of fashion, or by reason of irrelevancy cease to be of univer- 
 sal application; cf. Sir Matthew Hale, Hargrave's Law Tracts, 269. 
 
 5 17 Edw. II. " De Terris Templarium." 
 
 6 Cf. 2 Bla. Comm. 101. 
 
 7 Litt. Sec. 140. For twenty years in reign of Ph. and Mary, aliter 
 by statute 1 and 2, Ph. and Mar. c. 8. This tenure, though accepted out 
 of the Stat. 12, Car. II., t. 24, ultimately went out of use; Wood, Institutes 
 of Laws of England, 177. 
 
20 LAW OF CHARITABLE DONATIONS. 
 
 that of uses and equitable estates increased. It is probable 
 that the indefinite characteristics of the Roman Christian 
 code of charities survived all the inflections of the laws 
 of England until the Statute of Charitable Uses. 1 
 
 Having now traced rapidly the early history of char- 
 itable donations, we are prepared to discuss the dawn of a 
 system which grew up when lands became undevisable by 
 reason of feudal restrictions. When lands became once 
 more easily devisable, 2 the new system of trust donations 
 was firmly seated in the habits of the people, and charitable 
 uses became lasting modes of limiting estates in lands to 
 charity. 
 
 1 Infra, Appendix No. I. 
 
 2 Infra, p. 21. 
 
CHAPTER II. 
 
 CHARITABLE USES AND GIFTS IN ENGLISH JURISPRUDENCE. 
 
 We now approach familiar ground — the history of uses. 
 With the development of the equitable doctrines relating 
 to uses and the gradual perfection of these embryo trusts, 
 it is evident that donations of lands for charitable purposes, 
 or the spiritual welfare of the donor, took the form of con- 
 veyances to feoffees for pious uses, or else of donations to 
 civil, eleemosynary, or ecclesiastical corporations in fee by 
 license of the crown. 1 It has been intimated that a defi- 
 nite cestui que use could enforce the use in the time of 
 Henry V., and that thus trust estates were established by 
 the side of the legal seisin. 2 It has been apparent also, 
 since the publication of cases in Chancery that before the 
 reign of Elizabeth, and before the Statute of Charitable Uses 
 (43 Eliz.), an indefinite pious use, or one for the benefit 
 of personae incertae, could be enforced or redressed in 
 Chancery. 3 This was for a long time a very uncertain 
 point of equitable jurisdiction. Wills or devises of uses 
 were commonly enforced by the Chancellors at the suit 
 of a definite or certain cestui que use before the Statute 
 of Wills, 4 while even after the Statute of Wills (34 and 35 
 Hen. VIII., C. 5, which made devises to corporations in- 
 valid), a will of lands to a corporation, if for charitable or 
 
 1 Wakerying v. Bailie, temp. Hen. VI. j Calendar of Proceedings in Chan- 
 cery, I., pp. lxii., lxiii. ; ibid, I., 81, case 54. 
 
 8 Supra, p. 5, and see case cited by Edgerton in Robes v. Bent, Moore, 
 552. 
 
 8 Holland *. Alcock, 108 N. Y., 312, 324 ; see the cases taken from the 
 Calendars cited by Mr. Binney, p. 156, 2 How., Note ; and Dwight, Charity 
 Cases, passim. 
 
 * Tomlin's Note to his " Lyttleton," Sec. 585 ; Rostianhale v. Wyching- 
 ham, Cal. II., p. Hi. (temp. Hen. V.) ; Cal. II., pp. xxiii., li. ; Cal. I., p. 
 xlviii. 
 
 21 
 
22 LAW OF CHARITABLE DONATIONS. 
 
 public purposes, was good in equity. 1 Thus, before the 
 statutes (39 and 43 Eliz.) relating to charitable uses, it is 
 quite apparent that in equity a use or trust for the benefit 
 of the poor (incertae personae) was good as a charity, and 
 that such uses were freely cognizable in Chancery. 2 In 
 short, charitable uses preserved all the features of the early 
 Romano-Christian law relating to charitable gifts and 
 trusts for uncertain persons. 3 
 
 When uses became a distinguishing feature of the law 
 of England, public or charitable uses 4 retained the char- 
 acteristics of the old law of pious donations. They were 
 never subjected to the ordinary rules of law. It was no 
 objection to their validity that they were expressed in 
 vague and indefinite terms, if they were not ambiguous ; and 
 as the rule against perpetuities did not apply to such 
 donations, it was no objection that the use or trust 
 was intended to have a perpetual, or indefinite, con- 
 tinuance. 5 
 
 The Reformation first tended to revolutionize the old 
 law of charities and to disturb early conceptions of pious, 
 or charitable, uses. 6 By the Statute, 23 Henry VIII., 
 c. 10, commonly called the " Statute of Superstitious Uses," 
 many gifts and settlements common in Roman Catholic 
 England were declared within the mischief of the earlier 
 statutes directed against conveyances in mortmain. The 
 uses thus condemned, though formerly good as pious uses,. 
 
 1 Cal. in Chan., I., p. 308, case 18 ; Cal. in Chan. I., p. 81, case 54 ; cf. 
 Ch. J. Marshall in Bap. Assoc'n. v Hart, 4 Wheat., at p. 40 ; Tyssen Char. 
 Bequests, 10. 
 
 s Vid. cases in temp. Eliz. cited in note, 2 How. at p. 155 ; Holt's Charity 
 (A. D. 1584) 22d Report of Commissioners of Charity, 196, cited in Dwight's 
 Charity Cases at p. 160 ; J. Story in Vidal v. Girard's Exrs., 2 How., at p. 
 196 ; Holland v. Alcock, 108 N. Y., 312, 324, 325. 
 
 8 Cf. Tudor, Char. Trusts, 29, 30, 56. 
 
 4 Public and charitable uses are synonymous, Jones v. Williams, Ambler,. 
 651 ; Atty.-Genl. ■». Craig, 2 My. & C, at p. 623. 
 
 5 Tudor Char. Trusts, 29 ; Atty.-Genl. v. Clarke, Amb., 422 ; Atty.-Genl. 
 v. Ranee, cited in Amb., 422 ; Mills v. Farmer, 1 Mer., 55, iot, 102 ; White v. 
 White, 7 Ves., 423 ; Atty.-Genl. v. Webster, L. R. 20 Eq., 483 ; McCartee v. 
 Orphan Asylum Society, 9 Cowen, at pp. 478, 479 ; Shotwell, Exr., v. Mott„ 
 1 Sandf. Ch., at p. 54. 
 
 ° Cf. Owens v. Miss. Society, 14 N. Y., at p. 393. 
 
LAW OF CHARITABLE DONATIONS. 23 
 
 are henceforth known to English law as " Superstitious 
 Uses." 1 The statute thus restricting charitable, or pious, 
 uses, by the excision of those thus condemned as super- 
 stitious, was followed by the drastic acts confiscating 
 much of the lands settled by Catholics to pious uses. 2 It 
 is unnecessary for us to consider these various acts in 
 detail for they had no particular effect upon the general 
 law of charities; they were of local application, directed 
 against the Roman Catholic foundations in England. The 
 " Statute of Superstitious Uses " was soon decided not to 
 take away the uses now known as charitable uses. 3 This 
 act would seem to be of the first historical importance in 
 determining the condition of the Law of Charities prior to 
 the reign of Elizabeth : it recites that, " by reason of feoff- 
 ments, fynes, recoveries and other estates and assurances 
 made of trusts * * * to the use of parishe churches, 
 chapels, church wardens, guildes, fraternities, comminali- 
 tiesj companyes or broderhedes erected and made of 
 devocion or by common consent of the people without any 
 corporation " inconvenience is afforded to the King and to 
 other Lords. The important point in the recital is its ad- 
 mission of a state of things which shows that gifts to the 
 use of unincorporated societies or in trust for them 
 must have been regarded as valid for a long space of 
 time. 
 
 Prior to the reign of Henry V., breaches of trusts of a 
 charitable nature were remediable only in the spiritual 
 courts. But subsequently and long prior to 39 Elizabeth, 
 as is now the better opinion, charitable uses, at least those 
 of a lay nature, were cognizable in the Court of Chancery 4 
 at the suit either of the King or a private person interested 
 
 1 Porter's case, 1 Rep. , 22b, argument of Queen's Counsel, ' ' Distinguenda, 
 sunt temfora. " 
 
 8 27 Hen. VIII., c. 28 ; 31 Hen. VIII., c. 13 ; 32 Hen. VIII., c. 4 ; 1 Edw. 
 Vl., c. 14. In the time of Philip and Mary there was a temporary suspension 
 of the policy of confiscation. 1 and 2 Philip and Mary, c. 8. 
 
 8 Porter's Case, 1 Rep., 24 ; Gibbons v. Maltyard, Popham, 6, 7 ; Shotwell 
 Exr. v. Mott, 2 Sandf. Ch., at p. 52 ; Wright v. Trustees Meth. Epis. Church,. 
 I Hoffmann, 201, at p. 248, seq. 
 
 * Magill v. Brown, 16 Fed. Cas., at p. 435 ; Vidal v. Girard's Exrs., 2 How., 
 at p. 196 ; Bascom v. Albertson, 34 N. Y., at p. 592. 
 
24 LAW OF CHARITABLE DONATIONS. 
 
 in the trust. ] But the authorities on this proposition must 
 be reserved for a future discussion. 
 
 Having briefly referred to the authorities which show 
 that the Roman Christian Code of Charities prevailed in 
 England before the Statute of Charitable Uses (43 Eliz.), 
 the enquirer should next consider cursorily the early laws 
 affecting the cases where donors chose to give the ir lands 
 to civil, eleemosynary or ecclesiastical corporations en- 
 gaged as it were in the business of charity. It is very 
 evident that a peculiar set of principles will apply to this 
 form of charitable donations and that in cases of this 
 character we are more concerned with the laws regulat- 
 ing absolute conveyances and devises of lands to corpora- 
 tions, in mortua manu, than with the law relating to 
 uncertain trusts of donations such as those for the poor. 2 
 In the modern law, a corporation, having such power, 
 may be a trustee 3 and even a charitable corporation may 
 act in that capacity, although it has been said that formerly 
 a corporation could not be seised to a use.* It may be 
 doubted though, whether before the Statute of Uses 
 (27 Hen. VIII.) this last doctrine prevailed in the case of 
 Charity. 5 But be this as it may, the law regulating 
 absolute gifts to charitable bodies, or corporations, is now 
 considered to be a part of the law touching charities. 6 
 
 The- early statutes directed against the transfer of lands ad 
 manum mortuam 1 were intended to prevent religious bodies, 
 pia corpora, from absorbing the greater part of the lands of the 
 
 1 See the cases cited from the Calendar of Cases in Chancery, vols. I., II., 
 III., in note 2 How., at p. 155 seq. and Dwight's very complete collection of 
 Prae-Elizabethan data for charity cases taken from the Reports of the Com- 
 missioners of Charities in England; "Dwight's Charity Cases ; " et infra. 
 
 s Supra, pp. 15, 16. 
 
 "Cruise's D., Tit. XII., c. 1, sec. 84 ; Tucker v. St. Clement's Church 
 3 Sandf., 242, 249 ; infra, pp. 116, 117. 
 
 4 Cruise's D., Tit. XL, c. 2, sec. 15 ; Sugden on Uses, 10 ; cf. Holland v. 
 Alcock, 108 N. Y., at p. 324. 
 
 6 Reg., Lib. A. 1594, fol. 734. In several instances the Chancellors en- 
 forced uses against corporations before the Statute of Uses in charitable cases. 
 Spence, Ex Jurisdic, I., 588, note i. 
 
 6 This is noticeably so in the modern Law of New York. Vide chapters 
 III. and IV., infra. 
 
 7 Infra, p. 26. 
 
LAW OF CHARITABLE DONATIONS. 2$ 
 
 Kingdom. It has been doubted whether there were any 
 corporations, in the modern sense, before the reign of 
 Richard II. (i 377-1 399). 1 But religious bodies in the 
 early law of England had the status of juristic persons. 2 
 This is shown by the language of Magna Charta, non liceat 
 alicui de cetero dare terram suam alicui domui religiosae, etc., 
 etc., 3 and also by the act which took away escheats (an 
 essential of tenure) where the land, was held " ad pios 
 usus"* as well as by frequent passages in Bracton. 
 
 As the ecclesiastics were the first almoners of England, 
 the law of charities is much concerned both with corpora- 
 tions and with the ecclesiastical government of England 
 prior to the reign of King Henry VIII. 5 Ecclesiastical 
 bodies were the earliest corporations aggregate known to 
 English law; cities and boroughs were recognized as juristic 
 persons only at a later period. 6 Naturally in most cases 
 these ecclesiastical corporations were the public almoners, 
 the guardians of pious and charitable wishes and donations 
 in England ; and subsequently to the Conquest, the amount 
 of property, real and personal, held by them, attracted the 
 attention of the governing authority. The possession of 
 such vast landed properties strengthened the ecclesiastical 
 power to an undesirable extent, while the conveyance of 
 lands to religious orders often deprived the feudal lord of 
 the fruits of his tenure. Restraints on alienation to such 
 bodies (at a later day called corporations 7 ) were con- 
 sequently attempted at an early period in English History. 
 
 1 Report of Select Committee of House of Commons on the Law of Mort- 
 main, p. 4. 
 
 ; 8 Supra, p. 18. 
 
 s Editions of 1217 ; and see much earlier instances supra. 
 
 * 17 Edw. II., De terris Templarium. 
 
 6 Corporations in England existed by the common law, by prescription, by 
 act of parliament, by charter or by implication. But as late as the reign of 
 King Hen. VIII., it was recognized that the Pope might incorporate bodies 
 of Friars in England. Grant on Corp., 6, 11. 
 
 6 Merewether & Stephen, History of Corporations, 728. 
 
 7 It is said there is some doubt whether there were any corporations proper 
 before the reigns of Richard II. or Henry IV. (1377-1413) ; vide Mr. Anstey 
 in Report of Select Com. of House of Commons on the Laws of Mortmain, p. 
 4. But there certainly were aggregations of persons having a juristic status 
 as one person, in very early times in England. Cf. Tyssen, Char. Bequests, 1. 
 
26 LAW OF CHARITABLE DONATIONS. 
 
 Magna Charta (9 Hen. III., c. 36) forbade alienations of 
 lands to religious houses. The statute 7 Edw. I. de viris 
 religiosis, extended the prohibition to all persons aiding in 
 any way lands to come into mortmain. 13 Edw. I., c. 32, 
 attempted to prevent conveyances to religious houses, by 
 means of fictitious suits and recoveries. 15 Rich II., c. 5, 
 prevented trusts or uses for the benefit of religious houses, 
 and also extended the statutes directed against conveyances 
 to religious bodies, to other bodies which then began 
 to be recognized in the law as corporations or juristic 
 persons. 1 
 
 Notwithstanding these enactments, as they did not make 
 alienations in mortmain (or to corporations) void, but 
 only a cause of forfeiture by the King and mesne lords, 
 charitable designs continued until the reformation to draw 
 much land into mortmain. The King and the mesne lord 
 too commonly dispensed with the forfeiture 3 when the 
 gift was to some charitable or ecclesiastical corporation or 
 body. Even after the dispensing power of the crown was 
 in England declared illegal, 4 it was thought prudent to 
 except the statutes against mortmain from the general 
 condemnation of the dispensing power ; and so the crown 
 was expressly authorized by act of Parliament to " amortize 
 lands," as it was called, or in other words, to license cor- 
 porations to hold them.k A practice also grew up before 
 the reign of James I. of empowering corporations by special 
 acts of Parliament, to take and to hold lands without 
 
 1 These statutes are set forth- sufficiently in Bridgman's Edit, of ' 'Duke's 
 Charitable Uses " (London, 1805), pp. 192-201 ; Dwight's Charity Cases, Appen- 
 dix No. 1. and in the first chapter of "Shelfordon Mortmain." They are 
 commented on in Owens v. Miss. So. of M. E. Church, 14 N. Y., 380, 383; 
 matter of Sarah Zane's will in Magill v. Brown in 1833, 16 Fed. Cas., 408, 
 412; Brightly, N. P., 346; 14 Haz. Reg. Pa., 305; Matter of McGraw, 111 N. Y., 
 66, 93 ; and see note on Restrictive Statutes, 3 Sharswood & Budd's Leading 
 Cases, Real Prop., 385. 
 
 8 Tyssen, Char. Bequests, 10 ; "Wright v. Trustees Meth. Epis. Church, I 
 Hoff. Ch., at p. 264 ; .Matter of McGraw, m N. Y., 66, 93. 
 
 8 Shelford on Mortmain, I., 36. 
 
 1 I W. & M., c. 2. 
 
 6 7 & 8 Will. III., c. 37: the consent of the mesne lord was rendered un- 
 necessary by this statute. 
 
LAW OF CHARITABLE DONATIONS. 2J 
 
 license of mortmain and notwithstanding the mortmain 
 acts. x 
 
 The general policy of the Mortmain Acts, was, however, 
 pursued as late as the Statute of Wills ; for although the 
 Act, 32 Hen. VIII., c. 1, enabled socage tenants to devise 
 all their lands, the Act for the Explanation of the Statute 
 of Wills, 34 Hen. VIII., c. 5, qualified this right by provid- 
 ing that " the devise may be to any person or persons, ex- 
 cept Bodies Politick and Corporate." 2 But certain lands 
 in England were always devisable to corporations by 
 custom, notwithstanding the Statutes of Uses or Wills. 3 
 When the Statute of 12 Car. II., c. 24, turned all lay ten- 
 ures into the tenure by free and common socage, all lands 
 became devisable, but the restriction on wills of lands to 
 corporations remained as before. 4 
 
 The Plantagenet mortmain acts had no reference to con- 
 veyances of real or personal estates to lay individuals, or 
 natural persons, for charitable uses, or to charitable dona- 
 tions of chattels or personal estates to bodies corporate. 5 
 If land was conveyed to natural persons to the use of a 
 non-corporate charity equity, would, no doubt, protect 
 any violation of the trust and keep up the succession of 
 trustees. 6 But, as a matter of fact, eleemosynary corpora- 
 tions were in Roman Catholic times the usual vehicle of a 
 charitable foundation. * Yet there was no apparent legal 
 restriction upon the right of donors after the development 
 of uses to transfer or convey lands to natural persons to be 
 
 1 Cf. 4 Jac. I., t. 7. This practice subsequently grew up in New York sub- 
 stantially. 
 
 8 McCartee «. Orphan Asylum, 9 Cow., at pp. 452, 519. 
 
 8 Tyssen, Char. Bequests, 17. 
 
 4 By the Statute of Frauds, 29 Car. II., c. 3, the execution of wills was 
 regulated. 
 
 6 This seems to have been assumed in the minutes of evidence taken before 
 the Select Committee of the House of Commons on the Law of Mortmain in 
 1851; Vide their Report, pp. 2, 6, 10, 16, including the concurrence of Mr. 
 Shelford, the author of the celebrated work on Mortmain, at p. 30, ibid. ; 
 Lewin on Trusts, 528 ; Holland v. Alcock, 108 N. Y., 312, 324, 325. 
 
 23d Report of Commissioners of Charities, p. 304 ; Holland v. Alcock, 
 108 N. Y., 312, 324. 
 
 7 See Short's History of the Church of England, c. 5, appendix, for amount 
 of their revenue before their destruction in that country. 
 
28 LAW OF CHARITABLE DONATIONS. 
 
 held for charitable or pious uses in perpetuity. Such uses, 
 as it was said, always contemplated a species of perpetuity 
 as much as a conveyance to a corporation 1 The rules di- 
 rected against perpetuities, all originated subsequent to the 
 Statute of Uses, 2 and the rise of executory limitations or 
 legal estates possessing the quality of the old use. Before 
 that Statute the common law rules directed against abey- 
 ance of the seisin had to some extent the effect of rules 
 against perpetuities, which must alway relate either to 
 the time of the vesting of estates or to the suspension of 
 the power of alienation. But the modern rules against 
 perpetuities were formulated long after charitable uses 
 had been validated and vitalized in the law of Eng- 
 land. 
 
 In this connection let us briefly survey the history of 
 perpetuities. A conveyance to a religious body or a cor- 
 poration always tended in one sense to a perpetuity. 3 This 
 tendency was checked as far as was expedient by the 
 Statutes directed against Mortmain. 4 A strictly feudal estate 
 was also inalienable without the consent of the Lord, but 
 from the reign of Henry I. 6 property acquired by purchase, 
 "feudum novum," was alienable. 6 The Statute Quia Emptores 
 terrarum conferred a general power of alienation of lands 
 held in fee simple and did away with subinfeudation. 1 The 
 Statute De Bonis Conditionalibus* soon led to the peculiar 
 estates tail which were inalienable until Taltarums' Case 
 in 1472, 9 pointed the way to barring issue in tail by 
 a judicial recovery. From this time until after the 
 Statute of Uses 10 and the subsequent rise of the doctrines 
 
 1 Lewis on the Law of Perpetuity, pp. 688, 689 ; Yeap Cheah Neo v. 
 Ong Cheng Neo, L. R., 6, P. C. 381, 384 ; Thompson v. Shakespear, 1 DeG., 
 F. & J., 399, 407 ; Williams?). Williams, 8 N. Y., at p. 535. 
 
 a 27 Hen. VIII., u. 10; et infra. 
 
 " Lewis on Perpetuity, 689. 
 
 1 Supra, p. 26. 
 
 6 A. D. 1100-1135. 
 
 6 2 Bla. Comm., 288. 
 
 7 A. D. 1292. 
 
 8 A. D. 1287. 
 
 8 12 Edw. IV., pi. 25, f. 19a. 
 i° A. D. 1536. 
 
LAW OF CHARITABLE DONATIONS. 29 
 
 relative to executory limitations, there was no mode 1 of 
 creating a perpetuity in the sense of rendering land in- 
 alienable, except by a gift to charity or charitable use — 
 always a general exception to the whole course of the com- 
 mon law. Even a gift to a corporation did not necessarily 
 render land inalienable. But a conveyance for charitable 
 uses certainly did so. The rules against perpetuities are 
 comparatively modern and were adopted long after 3 
 charities and charitable uses had been subjected to a 
 systematic and complete set of rules, having noreal rela- 
 tion to transactions not public or charitable. At the pres- 
 ent day in England a charitable use created by an executory 
 limitation, must vest within the time specified by the rule 
 against perpetuities. 3 But other modern rules directed 
 against suspension of the power of alienation had in their 
 origin very little relevancy to the uses or trusts called 
 charitable. 4 And if by judicial decision they have since 
 been made applicable, it is because the older law has 
 been changed by the supposed necessities of moderni- 
 zation. B 
 
 Prior to the Reformation and even prior to 43 Elizabeth 
 (when the Statute of Charitable Uses was passed), there is 
 abundant evidence that a person might convey lands to 
 feoffees for the use of charity, 6 or for the use of the poor, 7 
 and that such indefinite and permanent uses were enforce- 
 able in the Court of Chancery without the intervention of the 
 
 1 At common law the only legal limitation over was by way of a remainder 
 which never created a perpetuity. Challis 159; sed. cf., Lewis on Perpetuities, 
 97; Tudor's Leading Cases, Real Prop. 472 ; Jarman on Wills, II., 731. 
 
 8 Cf. Lewis on the Law of Perpetuity, 140, and Sir Edward Sugden in Cole 
 v. Sewell, 4 Dr. & W., 1, 28 ; Mr. Hargrave in Thelluson v. Woodford, 4 Ves., 
 pp. 242 250 ; Powell on Devises, L, 389 Mr. Jarman's note. 
 
 s Challis, 157 ; Mitcheson, Char. Com. Acts, 59 ; Tudor, Char. Trusts, 56 ; 
 Rose 11. Rose, 4 Abb. Ct. Appeal Decis., ic8. 
 
 4 Tudor, Char. Trusts, 56. 
 
 B Cf. Sir Matthew Hale's Observations on "Amendment of Lawes," c. III., 
 Hargrave's Law Tracts, 269. 
 
 6 Wakeryng v. Nicholas Bailie, Cal. in Chan., I., pp.. lxii.,lxiii, temp. Hen. 
 VI. ; Lyon t. Hewe, temp. Ed. IV., Cal. in Chan., II., pp. xliv., xlv. ; Symon's 
 case, Bridgman's Duke's Char. Uses, 163. 
 
 ' Lane's Charity, 32d Report of Commissioner of Charities, Part I., p. 57 ; 
 Preamble to Stat. 23 Hen. VIII., c. 10. 
 
30 LAW OF CHARITABLE DONATIONS. 
 
 crown. 1 So devises of the use to the poor were good be- 
 fore the Statute of Wills, 8 and although these statutes 
 excepted bodies politic and corporate, a devise of land to 
 them for charity remained good in equity. 3 As until sub- 
 sequent to the Statute of Charitable Uses (43 Eliz.), trust 
 estates were not clearly recognized as valid even in equity, 4 
 it is not surprising that we do not find cases of express 
 charitable trusts arising between the Statute of Uses, 27 
 Hen. VIII. and 43 Eliz. 5 Trusts were not on a good 
 foundation until Lord Nottingham's time — long after the 
 Statute of Charitable Uses. 6 Then they were governed 
 by all the law which had been applied by the chancellors 
 to uses before the Statute of Uses. 1 So that charitable 
 uses and charitable trusts, if we abstract the ' latter from 
 the Statute of Charitable Uses, are resolved by the same 
 principles. 8 For this reason also, we have considered 
 somewhat at length the nature of charitable uses prior to 
 the Statute of Charitable Uses. 9 
 
 The reader is of course familiar with the fact that after 
 the Statute of Frauds no trust in lands could be created or 
 assigned except in writing. 1 ° This statute applied to char- 
 itable trusts in lands equally with those of a private or 
 non-charitable nature. 11 The Statute of Frauds was ex- 
 
 1 Lyon v. Hewe, ibid, supra ; Stone v. Dutton, 21st Report of Commission- 
 ers of Charities, p. 166 ; Symon's Case, cited in Bridgman's Duke's Char. 
 Uses, 163 ; Vidal ■«. Girard's Exrs., 2 How., 127, 194, 195, 196 ; et supra, 
 pp. u, 13, 23, 24. 
 
 2 Supra, 19. 
 
 8 Supra, p. 21. 
 
 * Tyrrel's Case (supra, p. 6) arose only in Mich. Term., 4 & 5 Phil, and 
 Mar. 
 
 6 Cf. Dutch Church in Garden Street v. Mott, 7 Pai., at p. 79 ; McCartee 
 v. Orphan Asylum, 9 Cow., at p. 474. 
 
 " Burgess v. Wheate, 1 Eden, 177, 223 ; Lord Nottingham took the Great 
 Seal in 1673. 
 
 ' Cruise, D., Title 12, t. 2, sec. 1 ; Fisher v. Fields, 10 Johns., 495 ; cf. 
 Downing v. Marshall, 23 N. Y., p. 378. 
 
 8 Fisher v* Fields, 10 Johns., 495. 
 
 • Cf. Tyssen, Char. Bequests, I. 
 
 10 29 Car. II., c. 3, sees. 7, 9. 
 
 11 Addlington v. Cann, 3 Atk., 141 ; Atty.-Genl. v. Barnes, 2 Vern., 597) 
 Jenner v. Harper, 1 P. Wms., 246 ; 1 Salk, 163 ; Wagstaff v. Wagstaff, 2 P. 
 Wms., 258. 
 
LAW OF CHARITABLE DONATIONS. 3 1 
 
 tended to the Province of New York, though passed after 
 the Province was subjected to English law. 
 
 Donations of personal or movable property to charity 
 were, before the Conquest, under the adopted Roman Chris- 
 tian law, 1 on much the same footing. as other charitable 
 donations. 2 The stricter feudalisation of land which fol- 
 lowed the Conquest and the relative unimportance of per- 
 sonal estates 3 ultimately brought about qualifications in the 
 English law of charitable donations of personal property. 4 
 But as the English law of wills 5 and the status of an execu- 
 tor are both concerned with the Roman law, 6 charitable 
 donations of personal or movable property were never 
 suffered under any mutation, to lose that principle of the 
 Roman law validating uncertain gifts for charity, even 
 though as a general principle in English law uncertain 
 donations of chattels were void. 7 By the old common law 
 a man could dispose, by will, of a third part only of his 
 goods, 8 and this in Roman Catholic times he usually left 
 tor pious uses. In the event of intestacy the King, it is 
 said, as parens patriae and general trustee might seize on 
 the goods as bona vacantia.'' This prerogative of adminis- 
 tration finally went to the ordinary, who disposed of a 
 third, pars rationabilis, to charity and pious uses. 10 This 
 course of administration was, however, changed by statute, 11 
 so as to compel the ordinary to commit the adminis- 
 
 1 In mature jurisprudence there is little difference between the laws relating 
 to real, or to personal property; supra, Preface. 
 
 2 It is well known that the origin of trusts in English law is found in con- 
 ditions ; supra, p. 16, donatio sub conditions 
 
 8 Bla. Comm., II., 384. 
 
 4 They approximate to charitable uses in lands. 
 
 6 Holmes, "The Common Law,'' 344. 
 
 6 Law Quar. Rev., I., 165, note 3. The English executor is the Roman heir. 
 
 ' Owens v. Miss. So. M. E. Church, 14 N. Y., 380, 385 ; cf. Co. on Litt., 
 3«, as to purchase of lands by incerta persons. 
 
 8 2 Bla. Comm., c. XXXII., and his citations in the original notes. 
 
 8 2 Bla. Comm., 494 ; 9 Co., 38^. This is wholly denied by Selden in his 
 " Origin of Ecclesiastical Jurisdiction of Testaments," who makes out a good 
 case ; sed cf. Atty.-Genl. v. Kohler, 11 Ho. L. Cas., 654. 
 
 10 2 Bla. Comm., 494 ; cf. Wright 0. Trustees Meth. Epis. Church, 1 Hoff. 
 Ch., at p. 244, seq.; Williams on Executors, 401. 
 
 11 31 Edw. III., c. 11; Williams on Executors, 402, 403. 
 
32 LAW OF CHARITABLE DONATIONS. 
 
 tration to the next of kin. Then we arrive on familiar 
 ground. 
 
 The reports of the Commissioners of Charities in Eng- 
 land 1 disclose that, before the Reformation, testators dis- 
 posed of some part of their small personal property to 
 such pious uses as the poor. Others created a rent charge 
 in favor of town authorities for the benefit of the poor. 
 As such indefinite bequests were administered, we may 
 infer that the law sanctioned indefinite charitable donations 
 long before the Statute of Charitable Uses. 2 The Statute 
 of Uses, vesting uses in possession, was intended to destroy 
 the practice of willing the use or usufructuary estate in 
 lands as res incorporate, and it had that effect until the 
 Statute of Wills, in so far as lands were concerned. But 
 the Statute of Uses could not have vested uses in chattels 
 nor have contemplated abrogating the power of making 
 wills of goods or chattel for pious uses ; 3 for it makes no 
 reference to them in its preamble, reciting the evils in- 
 tended to be put an end to by the statute. The Courts of 
 Chancery administered indefinite trusts of personal estates 
 for charity, as trusts, and side by side with confidences or 
 uses in lands, before the Statute of Uses, 4 and, conse- 
 quently, before the jurisdiction over trusts was at all on its 
 present foundation. After trusts in lands arose in the 
 place of uses, there was little difference in principle be- 
 tween trusts of lands and trusts of chattels. 5 
 
 The destruction under the Tudor dynasty of the numer- 
 ous corporations and kindred institutions, administered by 
 the Roman Catholics, 6 threw the English law of charities 
 out of harmony, and the reign of Queen Elizabeth in par- 
 ticular was much occupied with erecting a new system 
 
 1 See Mitcheson, "Charity Commission Acts" (pp. 1-28), for history of 
 these Commissions. 
 
 8 Babington v. Gull, Cal., I., pp. lvi., Ivii., lviii.; temp. Hen. VI. ; Wright v. 
 Trustees Meth. Epis. Church, 1 Hoff, Ch., 246, seq. 
 
 8 Cf. Powell on Devises, I., 4, on the effect which the law of inalienable 
 feuds had on wills of chattels. It is very analagous to the effect of the 
 Statute of Uses on wills of chattels. 
 
 4 Vide Babington v. Gull, Cal., L, pp. lvi., Ivii., lviii., temp. Hen. VI. 
 
 5 Lewin on Trusts, 4. 
 
 8 Cf. Short's History of the Church of England, c. v., Appendix. 
 
LAW OF CHARITABLE DONATIONS. 33 
 
 of poor laws, with the attendant charitable institutions, 
 such as hospitals and the like. 1 The Acts 39 Eliz., c. 6 ; 
 superseded by 43 Eliz., c. 4, commonly called the " Statute 
 of Charitable Uses," are the only acts necessary for us to 
 consider here. The latter has been often regarded in this 
 country as conferring a jurisdiction on the Court of Chan- 
 cery, not otherwise maintainable over certain charitable 
 uses, or trusts of an indefinite and perpetual character. 2 
 
 The Statute of Charitable Uses, although it introduced no 
 new principle 3 was undoubtedly a convenient source of juris- 
 diction for the lay chancellors who administered the court 
 subsequent to the Reformation. 4 It was determined to 
 sanction indefinite permanent trusts for charity without 
 regard to the form of the gift and in the same large meas- 
 ure that the clerical chancellors were accustomed to sanc- 
 tion them ; while it served to dispense with the necessity 
 of placing the later jurisdiction on any other foundation 
 than the statute itself. It was even held to operate as a 
 repeal of the statutes directed against mortmain when 
 donations to charity were concerned. 5 In this respect 
 this statute seemed to restore the law of charitable dona- 
 tions to corporations to the position jt occupied before the 
 acts directed against mortmain. But in point of fact 1 
 such claims are too general. 8 The Statute of Charitable 
 Uses is said to have been drawn up by Sir Francis Moore, 
 who made a very valuable dissertation or exposition of 
 the statute. 7 
 
 1 14 Eliz., c. 5; 14 Eliz., c. 14; 35 Eliz., u. 7; 39 Eliz., c. 4; 39 Eliz., c. 5; 
 c. 6; c. 12; c. 18; c. 21; 43 Eliz., c. 2; c. 3; c. 4. 
 
 2 Williams ®, Williams, 8 N. Y., at pp. 541, 542; Baptist Assn. v. Hart's 
 Exrs., 4 Wheat, at pp. 29, 30 ; et infra. 
 
 s Wright v. Trustees of Meth. Epis. Church, 1 Hoff. Ch., at p. 263 ; Atty. 
 Genl. 0. Mayor of Dublin, 1 Bligh, (N. S.), 312, 347; cf. Higgins 0. Town of 
 Southampton, Dickens, 146, where, in 22 Car. II. , the Statute of Char. Uses is 
 called an enabling act; Ould 0, Washington Hospital, 95 U. S., p. 309. 
 
 4 This Act is the starting point of all the English law of Charitable Uses. 
 Vide Mitcheson's Charity Commission Acts, p. 1 ; McCartee 0. Orphan 
 Asylum Society, 9 Cow., at p. 476. 
 
 6 3 Atk., 150. 
 
 6 Supra, pp. 25, 26 ; Infra, p. 36 ; McCartee 0. Orphan Asylum Society, 
 9 Cow., at p. 475. 
 
 7 His Essay is printed in Boyle's "Law of Charities," 465 seq., and in 
 
34 LAW OF CHARITABLE DONATIONS. 
 
 The Statute 43 Eliz., c. 4, 1 is entitled " an Act to redress 
 the mis-employment of land, goods, and stocks of money 
 heretofore given to certain charitable uses." It authorizes 
 the Lord Chancellor or the Chancellor of the Duchy of 
 Lancaster within his jurisdiction, to award commissions to 
 the Bishop of every diocese, his chancellor and two other 
 persons at least, to inquire of the abuses, breaches of trust, 
 etc., of any lands limited to the charitable or Godly 
 uses specified in the act. The mode of such inquiry 
 is carefully prescribed by the act. Thereupon the com- 
 missioners were to " set down such orders, judgments 
 and decrees, as the said lands, tenements, rents, etc., 
 may be duly and faithfully employed, to and for such 
 of the charitable uses and intents before rehearsed 
 for which they were given, limited, assigned or appointed 
 by the donors and founders thereof." Such orders were 
 to be certified into the Court of Chancery (or that of the 
 Duchy of Lancaster) and executed by the chancellor, 
 if fit and convenient. 3 The Statute contained one clause 
 of great historical importance. The commissioners were 
 authorized to inquire into all limitations, assignments and 
 appointments to charity and then to make such orders, etc., 
 " as the said lands, tenements, rents, annuities, goods, chat- 
 " tels, money and stocks of money may be duly and faith- 
 " fully employed, to and for such of the charitable uses 
 " and intents before rehearsed, respectively, for which they 
 " were given, limited, assigned, or appointed by the 
 " donors and founders thereof, which orders, etc., * * 
 " shall * * stand firm." 3 
 
 Animated probably by the general desire to restore 
 an efficient system of non-Catholic charitable foundations, 
 the judges of England made an extraordinary con- 
 
 Bridgman's Duke, c. VII.; McCartee v. Orphan Asylum Society, 9 Cow., 
 at p. 475. 
 
 1 Commonly called the Statute of Charitable Uses. 
 
 2 Spence, Eq. Jurisdiction, L, 589, gives an admirable pr/Scis. of the Stat- 
 ute. The Statute is given in extenso in " Boyle on the Law of Charities," and 
 in the Appendix I. to this Treatise. 
 
 8 The Statute is now superseded in England by legislation of this century. 
 Mitcheson, Char. Commission Acts, 3. 
 
LAW OF CHARITABLE DONATIONS. 35 
 
 struction of this statute. 1 Under the clause quoted in the 
 preceding paragraph, they tolerated without any order of 
 the commissioners several classes of charitable donations 
 as "appointments," under the statute, 2 although such dona- 
 tions would not have been valid even for charity's sake 
 before that time. Livery of seisin was no longer necessary 
 when the donation of land was for charity. 3 This was 
 clearly an innovation. Settlement by tenant in tail was good 
 as an appointment to charity without a fine or recovery* 
 and even a devise of the whole of lands by tenant in 
 tail in capite by knight service was good, 5 though the 
 Statute ol Wills allowed such tenants to devise only two- 
 thirds of their lands until the statute 12 Car II., c. 24, 
 turned them into socage lands. So a devise to a corpora- 
 tion for a charity was good as an appointment under the 
 statute, 6 though corporations were excepted out of the 
 Statute of Wills. 7 The 43 Eliz. was, however, held not to 
 operate as a repeal of the Statute of Wills in the case 
 of a charitable devise to corporations, but to authorize an 
 appointment to them by will in the instance, of a charity 
 mentioned by the Statute of Charitable Uses; 8 a devise to 
 an unincorporated association, 9 and even an inscription 
 on a tombstone might be gcod as an appointment under 
 the statute. 10 
 
 It is unnecessary for us to consider at large the con- 
 struction of 43 Eliz., c. 4 ; it will be sufficient to point out 
 that since the passage of the Statute of Charitable Uses the 
 following principles have been established in England : 
 
 1 Boyle, Law of Charities, 18. 
 
 2 Pennyman v. Jenny. Duke, 82. 
 
 8 Duke, Char. Uses, 109, no ; 1 Eq. Ca. Abr., 97. 
 4 Tay v. Slaughter, Prec. Ch., 16 ; Atty.-Gen. v. Rye, 2 Vernon, 453. 
 B Bridgman's Duke, 363 ; Hob., 136 ; Duke, 78. 
 
 6 Hob., 136 pi. 184, Hob., 183 ; Duke's Char. Uses, 80 pi. 23 ; Bridgman's 
 Duke, 363 ;cf. Tyssen, Char. Bequests, n. 
 ' Supra, p. 27. 
 
 8 Cf. Boyle Law of Charities, 19, 20 et Bridgman's Duke, note on p. 
 374. Boyle and Duke contain very full references to the authorities 
 bearing on 43 Eliz. 
 
 9 Bridgman's Duke, 358 ; Leading Cases, Amer. Law Real Prop. III., 375. 
 
 10 Duke, 33 ; Bridgman's Duke, 360. 
 
36 LAW OF CHARITABLE DONATIONS. 
 
 (i) That the intent of the act was to aid all defects 
 in charitable assurances where the donors had capacity to 
 donate. 1 (2) That the statute specified all the uses which 
 in equity were called " charitable." 2 (3) That in a case to 
 establish a charitable use the chancellor could give relief 
 by bill without first granting a commission as directed by 
 the statute. 3 (4) That a proceeding by information, in 
 behalf of the king as pater patriae to establish a charity lay 
 both before and after the statute. 4 (5) That the statute was 
 retrospective in operation as well as prospective. 5 It is 
 also said in England, that an information being found more 
 effectual than proceedings by bill, or by a commission 
 under the statute, caused the latter mode of establishing a 
 charity soon to drop out of general practice. 6 
 
 In so far as the Statute of Charitable Uses justifies trusts 
 in lands for the benefit of uncertain persons, 7 or bequests 
 to executors or trustees for the benefit of the poor, 8 it 
 should be regarded as simply declaratory, for such in- 
 definite donations were certainlv tolerated in England from 
 
 1 Adlington v. Cann, Barnardiston, 130; 2 Fonb., 211; Atty.-Gen. v. 
 Bains, Prec. Ch., 271 ; 2 Vern., 598 ; Atty.-Gen. v. Rye, 2 Vern., 453 ; 2 Bla. 
 Coram., 376; Bridgman's Edit. Duke on Char. Uses, 355; Spence, Eq. 
 Jurisdic, I., 591 ; Higgins v. Town of Southampton, Dickens, 146. 
 
 2 Morice v. Bishop of Durham, 9 Ves., 405 ; McCartee v. Orphan Asylum 
 Society, 9 Cow., at pp. 482, 483 ; Spence, .Eq. Jurisdic, I., 591 ; Wright 
 v. Trustees of Meth. Epis. Church, r Hoff. Ch., at p. 264 ; Ayres v. The 
 Meth. Church, 3 Sandf., at p. 376. 
 
 8 Spence, Eq. Jurisdic, I., 591 ; Anon., 1 Ch. Ca., 267 ; 2 Fonb. Eq., 210; 
 West v. Knight, 1 C. C, 134; People v. Ingersoll, 58 N. Y., 1, 14. 
 
 4 Eyrez/. Shaftesbury, 2Peere Wms., 103, 119 ; et vide the argument of Mr. 
 Atty.-Gen. in the case of Baptist Association v. Hart's Exrs., 4 Wheat., 
 at pp. 25, 26; Vidal v. Girard's Exrs. 2 How., at pp. 194 ; cf. Atty.-Genl. 
 v. Bowyer, 3 Ves., 726 ; Atty.-Gen. v. Mayor of Dublin, 1 Bligh. (N. S.), 312; 
 Corp. of Ludlow v. Greenhouse, 1 Bligh. (N. S.), 17 ; Owen v. Miss. So. of M. 
 E. Church, 14 N. Y., at p. 394. 
 
 6 Smith v. Stowell, Chan. Cas., 195. 
 
 6 Spence, Eq. Jurisdic, I., 592; Mitcheson, Char. Commission Acts, 
 2 ; cf. Matter of Kirkby Hospital, 15 Ves., 306 ; Corp. of Ludlow v. Green- 
 house, 1 Bligh. (N. S.), 17, 61. 
 
 7 Atty.-Genl. n. Peacock, Fin., 245. 
 
 8 Duke, 81, pi. 30; Mayor, etc., of Reading v. Lane, Toth., 94 ; Mayor of 
 Bristol V. Whitton, Toth , 95; Duke, 81, pl„ 31; Tyssen, Char. Bequests, 140; 
 Mitcheson, Char. Com. Acts, 30, 31. 
 
LAW OF CHARITABLE DONATIONS. 37 
 
 the earliest times. 1 The practice of centuries is not to be 
 dismissed as illegal because it may conflict with certain late 
 canons of the Court of Chancery touching the definite qual- 
 ity of trusts of a private or nOn- charitable character. The 
 considerations of Courts of Equity about permanent and in- 
 definite charitable donations, uses, and trusts are very 
 modern. Mr. Binney in the Girard College case showed that 
 the Statute of Charitable Uses introduced no new principle 
 in the law of charities, and he refuted the error in the con- 
 trary notion. Though the Statute of Charitable Uses was 
 said to have repealed the Statute of Enrolments, 27 Hen. 
 VIII., c. 16, 3 that statute had been held inapplicable to 
 charitable uses before 43 Elizabeth. 3 So, though devises 
 to corporations were sustained by reference to the Statute 
 of Charitable Uses as appointments, 4 it was held that 
 before that statute a devise to corporations for charity was 
 a good appointment in equity. 5 The statutes of Mortmain 
 were likewise said to have been repealed in part by the 
 Statute of Charitable Uses, 6 though before that statute 
 they were inapplicable to a charitable use. 1 
 
 The Statute of Charitable Uses contained a very com- 
 plete enumeration of such uses ; so complete as to be re- 
 garded in England as final. 8 Shelf ord classifies the char- 
 itable uses enumerated by the Statute of Charitable Uses 
 under four heads: (1) The relief of the poor; (2) The 
 advancement of learning ; (3) The advancement of re- 
 ligion ; (4) The advancement of objects of general public 
 utility. 9 In England no uses were regarded as charitable 
 
 1 Supra, pp. 18, 22 ; Fin., 245 ; Cooper's Public Records, 355. 
 
 8 Jenner®. Harper, Gilb. Eq., 44. 
 
 8 Symon's Case, Duke, 163 ; Shandor r>. Brownlow, 2 Ridg. P. C, 428 ; 
 Shep. Touchstone, 224, ch. 10. 
 
 4 Jesus College Case, Duke, 363 ; Hillam's Case, Ibid., 375 ; Mayor of 
 Bristol v. Whitton, Ibid., 377. 
 
 6 Atty.-Genl. v. Master of Brentwood School, 1 Mylne & K., 376 ; Atty.- 
 Genl. v. Bowyer, 3 Ves., 727. 
 
 6 Hobart, 136 ; Collison's Case, cited in Christ's Hospital ». Hawes, 
 Bridgman's Duke, 370. 
 
 ' Atty.-Genl. v. Master of Brentwood School, 1 Mylne & K., 376. 
 
 8 Supra, p. 36 ; cf. Justice Baldwin in Magill v. Brown, 16 Fed. Cas., pp. 429 
 and '437, note. 
 
 8 Law of Mortmain, p. 61. 
 
38 LAW OF CHARITABLE DONATIONS. 
 
 other than those falling within the four genera, divisions 
 just mentioned. 1 
 
 Thus stood the law of charities in England, prior to the 
 ninth year of the reign of King George III., when the 
 purely English law of charities was much affected by a 
 statute commonly, although it is said quite erroneously, 3 
 called the " Statute of Mortmain." 3 This statute provided 
 in substance, that after June 24th, 1736, neither lands, tene- 
 ments and hereditaments nor personal estates to purchase 
 lands should be given, granted, appointed or any ways 
 conveyed to charitable uses except by deed indented, 
 sealed and delivered in the presence of at least two credible 
 witnesses at least twelve calendar months before the 
 donor's or grantor's decease. This Act was intended to 
 restrain devises or bequests of lands, etc., by persons in 
 extremity of death, or languishing, 4 for since the reign of 
 Elizabeth new charitable foundations had flourished suffi- 
 ciently, 5 and now it was good policy that the natural claims 
 of kindred should be regarded by the legislature. The 
 preamble of the act expressly states that such was the pur- 
 pose of this statute. Hereafter lands could not in England 
 be devised on charitable uses, 6 nor could moneys be de- 
 vised in order to purchase lands to be held for charitable 
 uses. 1 It was not intended by this act, though, to prohibit 
 charitable donations, but merely to regulate them. 8 It is, 
 however, quite unnecessary to consider this act or its ap- 
 plication and construction, for it did not extend to the 
 
 1 Supra, p. 36. 
 
 8 Corbyn 9. French, 4 Ves., 418; cf. Stephenson v. Short, 92 N. Y., 433, 
 440. 
 
 8 9 Geo. II., c. 36, "An Act to restrain the Dispostions of Lands- 
 whereby the same become unalienable." 
 
 'Attorney-General v. Day, i Ves., 223 ; Owens v. The Miss. So. of M. E. 
 Church, 14 N. Y., at p. 407. 
 
 6 Levy ». Levy, 33 N. Y., at p. no. 
 
 6 Corbyn ». French, 4 Ves., 418. 
 
 7 Atty.-Genl. ■». Davies, 9 Ves., 535, 543; McCartee v. Orphan Asylum, 
 9 Cow., at p. 450 ; Matter of Will of O'Hara, 95 N. Y., pp. 420, 421. 
 
 8 Atty.-Genl. v. Lord Weymouth, Amb., 23 ; Atty.-Genl. v. Day, 1 Ves., 
 Sr., 222. The Act has no reference to donations of personalty. 1 Jarmanon 
 Wills, 216. 
 
LAW OF CHARITABLE DONATIONS. 39 
 
 colonies of England. 1 Its text is peculiarly local, and it 
 was intended to remedy a local mischief. 2 The object of 
 the real Statutes of Mortmain (generally called the Plan- 
 tagenet Statutes of Mortmain) passed in ancient times was 
 to prevent the Crown from being deprived of feudal ser- 
 vices. The object of the act now under consideration was 
 to prevent the locking up of land 3 and the disinheritance 
 of heirs by those in extremity. 4 This Georgian Statute 
 in the main affects real property only, but in some instances 
 gifts of personalty — hence called impure personalty in the 
 English books. 5 
 
 We cannot leave the history of the English law of 
 Charities without some reference to the judicial doctrines 
 applied to the construction of defective or indefinite 
 charitable donations. It is an ancient maxim of con- 
 struction "that charities are favored" 6 and as this doc- 
 trine was part of the Roman law of charities 7 we may well 
 imagine that it passed with charitable or pious uses from 
 the clerical chancellors to their lay successors. This 
 doctrine of general import led to another of like origin, 8 
 known as " cy pres," or when applied to charities as the 
 doctrine of charitable approximation. 9 As the doctrine 
 has but a modified acceptance in the State of New York, 10 it 
 
 1 Report of the Select Committee of the House of Commons on the Law of 
 Mortmain, 13 ; Atty.-Genl. 11. Stewart, 2 Meriv., 143; Whicker v. Hume, 14 
 Beav., 524 ; 1 DeG. M. & G., 506 ;Mayor of Lyons «. East India Co., 1 Moo. 
 P. C, 175 I Story, Eq. Jurisp, II., sec. 1193 ; Lewis on Law of Perpetuity, 
 691 ; cf. Levy v. Levy, 33 N.Y., 97, no ; where it is intimated that this Statute 
 was in force in New York ; et supra, p. 38. 
 
 2 LawQuar. Rev., VII., 265. 
 
 8 Bacon, Abr. Amer. Edit., II., 228. 
 
 « Supra, 38. 
 
 6 Tyssen, Char. Bequests, C. XXVI. 
 
 6 Tyssen, Char. Bequests, 243; Tudor, Char. Trusts, 28. This maxim must 
 still be part of the common law in New York. Cf. Holland v. Alcock, 108 
 N. Y., at p. 336. 
 
 7 White's Roper on Legacies, II., c. xix., sec. 5. 
 
 8 De usu et.usnfructu legatorum. D., 33, 2, 16, 17 ; Wilmot, 53, 54. 
 
 9 One of the clearest expositions of the judicial cy pres which I have seen 
 is contained in Mitcheson's Char. Com. Acts, 56, seq. Boyle is prolix in his 
 " Law of Charities." 
 
 10 Bascom v. Albertson, 34 N. Y., 584, 590 ; Holland v. Alcock, 108 N. Y., 
 312, 330 ; sed cf. infra on statutory cy pres. 
 
40 LAW OF CHARITABLE DONATIONS. 
 
 will be very lightly touched ; the more especially that the 
 text writers are very comprehensive on this doctrine, and 
 it would be idle to repeat what is so fully and ably said by 
 the masters of the law. 1 
 
 The doctrine of judicial cy pres, or approximation, is a 
 doctrine of judicial construction and not limited to char- 
 itable donations. 2 It has no application to a charitable 
 donation by deed. 3 But in the case of a devise or bequest 
 for charity where there is an indefinite donation in trust, 
 subsisting with a general purpose, the Court will give 
 effect to the general trust purpose by a construction cy 
 pres, or as nearly approximate as may be. 4 This doctrine 
 is subject to the limitation, that where the testator's object 
 is sufficiently defined, there is no room for the application 
 of cy pres, and the Court will not depart from it upon a 
 notion of more extended utility. 5 
 
 In the appplication of the doctrine of judicial cy pres 
 there are many cases where the trust purpose is so 
 ambiguous as to be incapable of resolution by the Chan- 
 cellor. 6 In such cases judicial cy pres has no application, 
 and the trust fails. 1 But where the Court takes jurisdiction 
 of a vague and indefinite charity as a trust, it will some- 
 times refer it to a master to report a suitable scheme upon 
 the suggestion of the trustee, 8 and upon the confirmation 
 
 1 Kent, Com., II., 285, 288 ; IV., 508 ; Story, Eq. Jur., II., sec. 1169, seq. 
 Pomeroy, Eq. Juris., sec. 1027 ; Perry on Truscs, II., sec. 717, seq.; Woerner, 
 Amer. Law of Administration, II., sec. 432 ; Boyle on the Law of Charities, 
 II., chaps, iii., iv. ; Spence, Eq. Jurisdic, I., 531; Jarman's Powell on Devises, 
 I., 366 ; White's Roper on Legacies, II., 1204, seq. 
 
 2 Cruise, VI., Tit. xxxviii., c. 19., s. 40; Jackson v. Brown, 13 Wend., 437. 
 
 8 Brudenel v. Elwes, 7 Ves., 382, 390 ; Lewis on Perpet., 440 ; cf. Wright 
 v. Trustees Meth. Epis. Church, 1 Hoff. Ch., at p. 256. 
 
 4 Atty.-Genl. v. Davies, 9 Ves., 399, 405 ; and see the cases cited in 
 Pomeroy, Eq. Jurisp., sec. 1027, note 2; Boyle on the Law of Charities, II., 
 169. White's Roper on Legacies, II., c. 19, sec. 5 and sec. 6. 
 
 6 Atty.-Genl. v. Whitely, 11 Ves., 241 ; Atty.-Genl. v. Bishop of Oxford, 1; 
 Bro. C. C, 444 n.; Boyle, Law of Char., II., chap, iii., sec. 2. 
 
 " Browne v. Yeall, note, 7 Ves., 50, and Lord Eldon in 10 Ves., 27 ; Morice 
 V, Bishop of Durham, 9 Ves., 399, 10 Ves., 522. 
 
 7 Vesey v. Jamson, 1 Sim. & Stu., 69 ; Boyle, Law of Charities, II., c. V. 
 
 8 Widmore v. The Governors of the Corp. of Queen Anne's Bounty. 1 Bro. 
 C. C, p. 13 n; Paice v. Archbishop of Canterbury, 14 Ves., 364, 373; Boyle, 
 Law of Charities, II., c. 4, sec, 1, p. 241. 
 
LAW OF CHARITABLE DONATIONS. 41 
 
 of the report, apply the doctrine of approximation or judi- 
 cial cy pres. A trust is not allowed to fail for want of a 
 trustee. 1 
 
 The principle of cy pres is also applied by the Crown in 
 cases of a different character from those mentioned, viz.: 
 Where no trust is created and no object specified, but 
 there is apparent a general intention of donating to 
 charity. In such cases the Crown steps in and by virtue 
 of the prerogative, 2 or as parens patriae* applies the 
 donation itself to some charitable, purpose expressed under 
 the sign manual. 4 But this administrative cy pres, or ap- 
 proximate application, never takes place when the dona- 
 tion is void for any reason other than uncertainty. 5 It is 
 apparent that the administrative cy pres is quite distinct 
 from the judicial cy pres noticed above. 6 This prerogative 
 of the Crown is almost that of general escheator ; but 
 with this essential difference, that the charitable donation 
 results to the public and not to the Crown itself. Hence, 
 the Crown is sometimes termed the general trustee of 
 charities. 1 The function which the Crown fulfils by sign 
 manual is not, however, to be confused with the superin- 
 tending authority which the Crown exercises as protector 
 of charities, 8 over partly executed charitable donations or 
 trusts. 
 
 In order to support limitations to charitable uses cy pres, 
 the great doctrine of the courts of equity, that a trust is 
 never allowed to fail for want of a trustee, was invented 
 or adopted, and from public trusts passed into the realm 
 of private trusts. 9 In this way a trust became almost a 
 
 1 Infra. 
 
 2 Chitty, Prerogatives of the Crown, 161, 162 ; Gower v. Mainwaring, 2 
 Ves., Sr., 89 ; 2 Perry on Trusts, sec. 718. 
 
 8 Bla. Com., 427, cf. Fonblanque T. Eq., II., 206 ; Cary 11. Berty, 2 Vera., 
 
 333- 
 
 4 Moggridge v. Thackwell, 7 Ves., 83, 86 ; Paice i>. Archb. of Canterbury, 14 
 Ves., 364 ; Jarman's Powell on Devises I., 366, note. 
 
 6 Rex v. Portington, 1 Salk, 162. 
 
 6 Cf. Pomeroy Eq. Jurisp., sec. 1027 ; Perry on Trusts, II., sec. 717, seq. 
 
 7 Boyle, Law of Charities, II., c. iv., sec. 1, p. 237. 
 
 8 Mitcheson, Char. Commission Acts, p. 3. 
 
 • McCartee v. Orphan Asylum Society, 9 Cow., at p. '484. 
 
42 LAW OF CHARITABLE DONATIONS. 
 
 quasi corporation existing quite apart from the legal estate 
 on the individual beneficiaries — one of the most beneficent 
 and far reaching conceptions of equity or the English Jus 
 Honorarium. 
 
 In England charities are now regulated by legislation of 
 recent date. This can have only a scientific interest for the 
 lawyer of this country. The Statute of Charitable Uses 
 has been wholly repealed in England by the Mortmain and 
 Charitable Uses Act of 1888. J 
 
 1 Tudor, " Charitable Trusts," 2; Tyssen, " Charitable Bequests," 34. 
 
CHAPTER III. 
 
 LAW OF CHARITIES IN NEW YORK. 
 
 The English law of charities in some form, in common 
 with the rest of the English law, became by prerogative 
 action of the Crown the constitutional law of the Province 
 of New York in the seventeenth century. 1 The common 
 law of England was introduced in the dependencies of the 
 Crown only provisionally, or in so far as it was suited to 
 the new political and social conditions, 2 and there was 
 much uncertainty in the seventeenth and eighteenth cen- 
 turies about the authority of particular institutes. 3 This 
 same uncertainty was also observable in the region of 
 statute law— it being doubtful what statutes of England 
 were in force in the Province of New York, 4 until the 
 Judiciary had passed on particular statutes. 5 The Privy 
 Council in England, which acted as the Court of Appeal 
 for the Province, 6 laid down certain general principles to 
 the effect that statutes of England passed anterior to the 
 settlement or the conquest of the American plantations 
 
 1 Jackson ex dem. ■». Hammond, 2 Cai Cas., 337; Yates 0. Yates, 9 Barb., 
 at p. 337. In my " History of the Law of Real Property in New York,'' and 
 also in " The Historical Introduction " to the bicentennial reprint of Brad- 
 ford's New York Laws of 1694, the mode in which the laws of England were 
 introduced in New York, is attempted to be delineated. The authorities are 
 there collated, and reference is now made to them generally. 
 
 s Williams v. Williams, 8 N. Y., at p. 548. 
 
 8 Lessees of Levy«). McCartee, 6 Peters, 102, no ; Patterson v. Winn, 5 
 Peters, at p. 241 ; Journeymen Cordwainers' Case, Yates' Select Cases, in ; 
 Bogardus 0. Trinity Church, 4 Pai., 178, 198. 
 
 4 Bogardus*. Trinity Church, 4 Pai., 178, 198 ; Smith's History N. Y., I., 
 243 ; Dane's Abr., VI., art. 7, sec. 2, p. 606. 
 
 B Smith, History N. Y., London Edit, of 1757, p. 243 ; ibid. Amer. Edit., 
 II., 47, note. 
 
 6 Appeals lay to the King in Council from the Colonies. 
 
 43 
 
44 LAW OF CHARITABLE DONATIONS. 
 
 were, if declaratory of the common law, in force there. 1 
 This was the opinion of the Chief Justice of New York in 
 the year 1700,2 and it maybe regarded as final in that 
 period. But modifications of even that rule existed ; the 
 statutes must be advantageous to the Province, or they 
 were rejected. 3 
 
 In the preceding chapter we have seen that the Statute 
 of Charitable Uses introduced no new principle in the 
 common law of charities, 4 but that it afforded a new basis 
 for judicial construction, 8 and ultimately denned all char- 
 itable uses. 8 It has been said that this statute never was 
 in force in the Province of New York. 1 But the remark" 
 is perhaps obiter} It would be difficult to show any 
 good reason for thus rejecting the authority of the Stat- 
 ute of Charitable Uses (43 Eliz., c. 4). 9 It was declaratory 
 of the common law and introduced no new principle. It 
 was a beneficent statute, 10 and even though the new Juris- 
 diction referred to in the English cases as created by it 
 was local, and commissions issued under it ran to the 
 Bishop of every several diocese (in case there was any), 
 his chancellor, and four or more other persons, it was 
 not impossible to adapt even this provision to the 
 Province. New York was part of the Diocese of London 
 in partibus exteris. 1 1 But as there were prior to the War of 
 
 1 Forsythe's Opinions, chap. I., and note ; 2 Peere Williams, 75 ; Appen- 
 dix to Burton's Compendium of the Law of Real Property. 
 
 2 Documents rel. to Col. Hist. N. Y., IV., 828. 
 
 » 3 Bin., 596 ; Magill v. Brown, 16 Fed. Cas., 408, 412. 
 
 4 Supra, p. 37. 
 
 6 Supra, p. 37. 
 
 6 Supra, p. 36. 
 
 ' Downing v. Marshall, 23 N. Y., at p. 385. The Court says, " in this 
 State," but the context shows that it meant in the " Province of New York " ; 
 Dutch Church in Garden Street v. Mott, 7 Pai., 77, 79. 
 
 8 Levy v. Levy, 33 N. Y., at p. iro ; cf. Yates v. Yates, 9 Barb., 324. 
 
 " Magill v. Brown, 16 Fed. Cas., at p. 412 ; Ayres v. Meth. Epis. Church, 
 3 Sandf., at p. 367. 
 
 10 Magill s. Brown, 16 Fed. Cas., at p. 412 ; cf. Lewis on Perpetuity, 691, 
 where it is said this statute is not generally relevant to English colonies. 
 
 11 Notes and Observations on the Laws of N. Y. in Grolier-Bradford's 
 N. Y. Laws of 1694, p. cxxix.; Doc. rel. Col. History N. Y., V., 849 ; Doc. 
 Hist, of N. Y., III., 213, 224, 307 ; cf. Williams v. Williams, 8 N. Y„ 525. 
 
LAW OF CHARITABLE DONATIONS. 45 
 
 Independence few charities established in the Province of 
 New York, the remedial procedure of the statute in ques- 
 tion could have had little relevancy here. 1 The declara- 
 tory portions only could have had a practical application. 
 
 Whether the Law of Charities in the Province of New 
 York was, or was not, dependent upon the Statute of 
 Charitable Uses, the English law in some form became a 
 part of the law of the Province. Either the common law 
 regulated charities existing here, or the Statute of Eliza- 
 beth. 8 Before Independence numerous institutions existed 
 here and required the application of some positive law : 
 Schools, 3 churches, 4 grave-yards, ^ Kings. College, 6 a 
 hospital 7 and a public library. 8 The poor of the towns 
 and cities had long been recognized as an object of charity. 9 
 Public or municipal corporations existed here from the 
 earliest period, 10 charged with relieving the poor often- 
 
 1 Williams v. Williams, 8 N. Y., 52s, 546 ; Owens v. The Miss. So. of M. 
 E. Church, 14 N. Y., at p. 387. 
 
 B Cf. Downing 0. Marshall, 23 N. Y., at p. 385 ; Levy 0. Levy, 33 N. Y., at 
 p. no ; Ayres v. The Meth. Church, 3 Sandf., 351, 367. 
 
 8 2 J. & V., 146, sec. 12; Riker's Newtown, pp. 158, 159; Doc. rel. Col. 
 Hist., N. Y. IV., 1004; VI., 118; Matter of Trustees of N. Y. Prot. Epis. 
 School, 31 N. Y., 574, 589. 
 
 4 Dutch Church v. Mott, 7 Pai., 77; Miller v. Gable, 2 Denio, 492. The 
 English Church was probably established (cf. note 31, Grolier-Bradford's N. Y. 
 Laws of 1694; Stat. 5, Anne, ... 5 ; Doc. rel. Col. Hist. N. Y., V., 321 ; VII., 
 585, 944; VIII., 573, 574; D °c- Hist. N. Y., III., 300, 337, 497, 508; Van 
 Schaack, N. Y. Laws, 60-62 ; 1 J. & V., 128). The Dutch Church stood by 
 virtue of the Articles of Capitulation of 1664 (Doc. rel. Col. Hist. N. Y., VII., 
 586; Doc. Hist. N. Y., III., 510). The Presbyterian, stood by virtue of the 
 Act of Toleration, 1 W. & M., u. 18, which was in force here, being amenda- 
 tory of the Acts of Uniformity ; cf. Smith's Hist. N. Y., L, 258, 284, 295 ; 
 Council Minutes, 26 ; Doc. rel. Col. Hist. N. Y., VII., 944. 
 
 6 Smith's Hist. N. Y., I., 257. 
 
 6 Incorporated 1754- 
 
 '"Governors of the Society of the Hospital of the City of New York,'' 
 c. 61, Laws of 1775. 
 
 8 Smith's Hist. N. Y., II., 262. 
 
 9 Note 5 to Grolier-Bradford's N. Y. Laws of 1694. 
 
 10 The New Netherland, or Dutch, corporations were recognized by the 
 Engljsh, Denton v. Jackson, 2 Johns. Ch., 320, 324 ; note 18, Grolier-Brad- 
 ford's N. Y. Laws of 1694. The first trading corporation was incorporated 
 in New York in 1676. Doc. rel. Col. Hist. N. Y., XIV., 711. It was within 
 the power of the Lord Proprietor of New York to create corporations, as he 
 had all the jura regalia of a county palatine, Grant on Corp., n. 
 
46 LAW OF CHARITABLE DONATIONS. 
 
 times 1 as well as with public functions. The Dongan 
 Charter to the City of New York in 1686 expressly recog- 
 nizes certain pious and charitable uses as then existing, and 
 not to be disturbed. 2 
 
 In the absence or omission of express judicial authority, 
 the usage or practice in the Province of New York is the 
 best indication of its law of charities. Otherwise the ques- 
 tion becomes too abstract or too academic for practical 
 purposes. There can be no doubt that the Court of 
 Chancery of the Province of New York 3 took cognizance 
 of charitable uses, or trusts. In 1707 the Attorney-General 
 of the Province filed an information in the Court of 
 Chancery against William Cullen to enforce a bequest in 
 trust to distribute to the poor people of New York and 
 Albany. The bequest was enforced as a public or charitable 
 use. 4 But as an information by the Attorney-General in 
 behalf of the Crown was not dependent on the Statute of 
 Charitable Uses 5 this case sheds no light upon the question, 
 whether that Statute was extended to New York. There 
 are numerous instances of feoffments to private persons for 
 public or charitable uses in the Province 6 and it is impos- 
 sible to suppose that these uses were not enforceable here 
 as in England. 7 The case of Attorney-General v. Cullen 
 just cited is a conclusive adjudication by the Court of 
 
 1 Note 5 to Grolier-Bradford's N. Y. Laws of 1694 ; Van Schaack's N. Y. 
 Laws, pp. 275, 343, 438 ; c. 5, Laws of 1775. 
 
 2 Section 17, N. Y. Consolidation Act, p. 887. 
 
 a In my History of the Law of Real Prop, in N. Y., Chap. VII., the juris- 
 diction of the Court of Chancery of the Province is outlined with reference to 
 the authorities. The adoption of the fundamental courts of England was 
 very potent in establishing the common law ; cf. Lord Redesdale in Atty.- 
 Genl. v. Mayor of Dublin, 1 Bligh. (N. S.), 312, 347, 348. 
 
 4 Cited in Williams v. Williams, 8 N. Y., at pp. 553, 554 ; Dwight, Charity 
 Cases, pp. 343-352. 
 
 6 McCartee v. Orphan Asylum, 9 Cow., at p. 473 ; el infra, pp. 
 
 6 Reformed Dutch Church in Garden St. v. Mott, 7 Pai., 77 ; Cottman «. 
 Grace, 112 N. Y., at p. 307. Minister, Elders, etc., of Dutch Church v. Veeder, 
 4 Wend., 494. Here Schermerhorn and others in 1716 were trustees for the 
 town of Schenectady ; Miller v. Gable, 2 Denio, 492, 494 ; and see recital in 
 the Act of April 6, 1784 (1 J. & V., 104 ; 1 Gr., 71), showing that charitable 
 estates were often vested in private trustees for charitable uses ; Smith's Hist. 
 N. Y., I., Appendix, pp. 304-6. 
 7 Supra, pp. 22, 32. 
 
LAW OF CHARITABLE DONATIONS. 47 
 
 Chancery that a bequest of personalty in trust to be dis- 
 tributed to the poor at large— personae incertae — was valid 
 as a charitable use in the Province of New York. 
 
 When independence of the Crown was declared, the State 
 of New York adopted provisionally the former law of the 
 Province of New York, but subject to a legislative right 
 and power to alter it. 1 Section XXXV. declared "that 
 such parts of the common law of England, and of the 
 Statute Law of England and Great Britain, and of the acts 
 of the Legislature of the Colony of New York, as together 
 did form the law of the said colony on the 19th day of 
 April," 1775, should continue the law of the State. This 
 provision has been thrice confirmed without material alter- 
 ations. The Constitution of 1821-3 2 omits any reference 
 to the Statute Laws of England, such statute laws having 
 been then fully revised and re-enacted, the residue being 
 repealed. 3 The Constitution of 1846 omits the reference 
 to the acts of the colonial legislature, such acts being 
 repealed in the year 1828. 4 The present Constitution 
 repeats the language of that of 1846 with an exception 
 relating to a once contemplated codification of substantive 
 law. 5 
 
 By express provision of the Constitution, the law of 
 charities established in the Province of New York passed 
 into the republican era of government ; but subject to the 
 great modification that it must be fitted to the new order 
 of things. 6 Political revolutions are conceded at first to 
 create little change in the private law, but they sow the 
 seed which bears later the fruit of change. 1 So it was with 
 
 1 Const, of 1777; the proviso relates to that part of the common law and 
 Statute Law affecting the church of England or the supremacy and prerogatives 
 of the Crown. Cf. 1 J. & V., 128, as to Trinity Church in the City of New 
 York. 
 
 2 Const, of I821-3, Art. VII., section 13. 
 
 8 C. 46, Laws of 1788 ; vide Hist, of the Law of Real Prop, in New York, 
 for the authorities on Jones & Varick's Revision, pp. 77, 103, 104. 
 
 4 C. 21, Laws of 182S-9, sec. 4 ; Hist. Law of Real Prop, in N. Y., 103. 
 
 B Const, of 1894-5, Art. ±, sec. 16. 
 
 Const, of 1777, sec. XXXV.; cf. Andrew 0. N. Y. Bible & Prayer Book 
 So., 4 Sandf., at page 181. 
 
 7 Cf. Introduction to Ortolan, Hist. Rom. Law. 
 
48 LAW OF CHARITABLE DONATIONS. 
 
 the law of charitable donations. The State judiciary soon 
 interpreted the statutes of the State in a manner hostile to 
 the continuation of permanent, indefinite charitable trusts 
 and bequests to the poor at large or uncertain persons — 
 personae incertae. 1 Their reasons will be considered at a sub- 
 sequent place in this treatise. There is no ground to sus- 
 pect that such reasons were regarded with favor until 
 subsequent to the Constitution of 1846 and the dethrone- 
 ment of the Chancellor as the great judicial officer of the 
 State. 3 
 
 Not long after the definitive treaty of peace with England, 
 the State Legislature authorized a revision of the statute 
 laws adopted by the Constitution of 1777. 3 This led to the 
 legislative consideration and redaction of the English 
 Statutes deemed to extend here 4 and to the repeal of 
 those not so revised. 5 The English statutes thus revised 
 were not new statutes, but old laws, re-enacted in a form 
 more suitable to the new republican condition and author- 
 ity. 6 Yet the old laws thus revised sometimes received 
 a new construction, and the departure in the common law 
 of charities may be said to date from this revision. 1 Thus 
 the revised law of wills, 8 which only re-enacted the Eng- 
 lish statutes 9 before in force in New York, was held at 
 law to exclude a devise to a church corporation, 10 though 
 
 1 Bascom v. Albertson, 34 N. Y., at p. 610 ; Levy v. Levy, 33 N Y., at p. 
 112, and other cases cited below. 
 
 8 Willard, Eq. Jurisp., chap. 7. This chapter states accurately the old law 
 before the case of Williams v. Williams, 8 N. Y., was overthrown by the later 
 cases in the Court of Appeals. 
 
 8 C. 35, N. Y. Laws of 1786. 
 
 4 Laws of New York by Jones and Varick, vols. I. and II. See my His- 
 tory of Law of Real Prop, in N. Y. for authorities on this revision (pp. 77-80). 
 
 8 C. 46, N. Y. Laws of 1788 ; 2 J. & V., 282. 
 
 6 Corning v. McCullough, 1 N. Y., at p. 74 ; People v. Clarke, 9 N. Y., 
 349, 362; Van Rensselaer v. Hayes, 19 N. Y., at p. 74 ; Jackson v. Schutz, 18 
 Johns., at p. 186 ; 4 Kent's Comm., 494 ; Revisers' note to Art. I., tit. I., u. I., 
 part II., R. S. 
 
 7 Levy v. Leyy, 33 N. Y., 97, no ; White v. Howard, 46 N. Y., 144, 163 ; 
 Hollands. Alcock, 108 N. Y., 312, 334. 
 
 8 2 J. & V., 93. 
 
 9 32 Hen. VIII., c. 1 ; 34 & 35 Hen. VIII., c. 5 ; 29 Car. II., c. 3 1 
 McCartee v. Orphan Asylum, 9 Cow., at p. 452. 
 
 10 Jackson ex dem. v. Hammond, 2 Cai. Cas., 337. 
 
LAW OF CHARITABLE DONATIONS. 49 
 
 a church then clearly came within the law of charities. 1 
 Nor could the devise have been supported in equity by 
 the Statute of Charitable Uses, for that statute was not 
 then in force, not being revised by Jones and Varick, and 
 having been clearly repealed by the general repealing 
 clause of the act of 1788. 2 The question whether the de- 
 vise was good in equity was not considered. The decision 
 in Jackson ex dem. etc. v. Hammond 3 was very influential 
 in this State in the subsequent consideration of the law of 
 charities, for in England a devise to a charitable corpora- 
 tion was good at law, both before and after the Statute of 
 Wills and independently of the Statute of Charitable Uses. 4 
 Consequently, the decision marked a departure, more or 
 less distinct, from the common law of charities. 5 At a 
 later day and subsequently to the adoption of the Revised 
 Statutes of 1829 it was also intimated, that the species of 
 charitable use called " pious " had no technical or jurid- 
 ical significance in N ew York after religious freedom was 
 established by the Constitution of 1777. 6 Indeed, it is 
 now the opinion, that the repeal of the English Statutes, 
 including the Statute of Charitable Uses, in 1788, abro- 
 gated the English law of charitable uses. 7 But as we shall 
 perceive it is very clear that the Chancellors and the equity 
 bar of the State did not concur in this opinion, 8 although 
 it finally triumphed and the law of charitable donations 
 was placed on the same footing as donations not charitable. 
 
 1 Supra, p. 37. 
 
 2 C. 46, Laws of 1788 ; 2 J. & V., 282 ; Levy e. McCartee, 6 Pet., 102, no ; 
 Ayres v. Meth. Epis. Church, 3 Sandf., 351, 367 ; Owens v. The Miss. So. M. 
 E. Church, 14 N. Y., at p. 387 ; Beekman v. Bonsor, 23 N. Y., at p. 307; 
 Yates v. Yates, 9 Barb., at p. 338. 
 
 8 2 Cai. Cas., 337. 
 
 4 Supra, pp. 30, 33, 37; Tyssen, Char. Bequests, n. 
 
 6 Ayres v. The Meth. Church, 3 Sandf., at p. 373. 
 
 6 Andrew v. N. Y. Bible and Prayer Book So., 4 Sandf., at p. 181 ; sed cf. 
 the Revised Act of 1813 relative to religious incorporations, 2 R. L. of 
 1813, sec. IV., ch. 60. 
 
 7 Levy v. Levy, 33 N. Y., at p. 112 ; Bascom v. Albertson, 34 N. Y., at p. 
 61 ; Ayres v. Meth. Epis. Church, 3 Sandf., 331 ; Andrew v. N. Y. Bible and 
 Common Prayer Book Society, 4 Sandf., 156 ; Holland v. Alcock, 108 N. Y.. 
 at p. 312, 323, 334, seq.; Bird v. Merklee, 144 N. Y., 546, 550. 
 
 8 Willard, Eq. Jurisp., 575. 
 
50 LAW OF CHARITABLE DONATIONS. 
 
 We have already seen that in some instances in New- 
 York charitable uses or trusts in lands were reposed in 
 private persons. 1 The estate of the trustees being joint, 
 survived the death of one, 2 or if there was only one, holding 
 in fee, it descended or devolved subject to the trust. 3 There 
 was no principle then invalidated by this species of chari- 
 table uses and trusts and no violation of a rule against per- 
 petuities ; for at common law trusts for charitable purposes 
 were sui generis, 4 ' and might be permanent without contra- 
 vening the rules against perpetuities. 5 Nor were such 
 charitable uses vested in possession by the Statute of 
 Uses. 6 But when the English Statute of Uses was included 
 in Jones and Varick's Revision, it received at the hands of 
 the Supreme Court a construction which must in itself have 
 put an end in law to most charitable uses or trusts reposed 
 in a succession of private persons, for it was held to vest a 
 charitable use in possession at least when the use was 
 purely passive. 7 Now, this decision was directly opposed 
 to the construction which charitable uses had anciently 
 received, 8 and from this time on, without regard to the 
 Revised Statutes, 9 limitations for charity when in trust to a 
 succession of private persons must have disappeared in 
 practice from the law of New York, notwithstanding that 
 the Court of Chancery evidently did not entertain the 
 same opinion as the courts of law. 10 
 . We have now arrived at a point where we may survey 
 
 1 Supra, p. 46. 
 
 8 Minister, etc., of Reformed Dutch Church v. Veeder, 4 Wend., 494; 
 Cottman v. Grace, 112 N. Y., at p. 307. 
 
 3 Ibid, et Fisher v. Fields, 10 Johns., 495 ; Welch ®. Allen, 21 Wend., 147 ; 
 Dutch Church in Garden street v. Mott, 7 Pai. , 77, 83. 
 
 4 Supra. 
 
 6 Supra, pp. 22, 29; White v. White, 7 Ves., 423; Atty.-Genl. v. Webster L. R. 
 20 Eq., 483; cf. Mitcheson, Char. Com. Acts, 59; Shotwell v. Mott, 2 Sandf., Ch. 
 46, 54 ; Owens v. The Miss. So. of M. E. Church, 14 N. Y., at pp. 406, 407. 
 
 6 Supra, p. 6; Shotwell, Exr., 0. Mott, 2 Sandf., ch. 46, 52. 
 
 7 This was just before the R. S. ; The Minister, etc., Dutch Church v. 
 Veeder, 4 Wend., 494, 497, on 1 R. L., 72, which was 2 J. & V., 68, or the 
 English Statute of Uses, 27 Hen. VIII., c. 10, with the recital left out. 
 
 8 Supra, p. 6. 
 
 9 Infra. 
 
 10 Shotwell, Exr., v. Mott, 2 Sandf. Ch., 46, 52. 
 
LAW OF CHARITABLE DONATIONS. ST 
 
 the law of the State of New York relating to charities as 
 it stood prior to the Revised Statutes, which made impor- 
 tant changes in the law relating to all uses and trusts. 1 
 The cases are not many, for the reason that charitable 
 donations were then few ; the well-being of the people at 
 large was such as to attract little attention to the few poor, 
 while fortunes for the most part were still inconsiderable. 
 The complications and suffering incidental to older com- 
 munities were almost unknown in this prosperous State. 
 The most valuable lands of the State were held by the 
 socage tenure of the abstraction called "the State," which 
 had by legislative action been substituted for the Crown 
 in all its relations to the fundamental common law tenure; 2 
 but lands patented under the great seal of the State since 
 the War of Independence were alodial, and so were the 
 lauds confiscated during the war for independence. 3 There 
 was no great difference between estates in alodial lands and 
 in the lands held by the socage tenure, 4 and for all pur- 
 poses of the present treatise charitable uses in both kinds 
 of lands may be regarded as identical. 
 
 In 1 82 1 Chancellor Kent held, that a pecuniary legacy 
 to the town of New Rochelle for the purpose of erecting a 
 town-house for transacting town business was valid as a 
 charitable bequest. It is evident that Chancellor Kent 
 regarded the common law relative to charitable donations 
 as then part of the law of this State, for here was a bequest 
 to an incorporated body supported as a charity. 5 There 
 was, however, in this case an act of the Legislature author- 
 izing particular persons to receive the legacy, but the 
 question of capacity was independent of the act. 6 
 
 1 Infra. 
 
 8 Joufn. Prov. Conv., 1, 554 ; Const, of 1777, Sec. 35 ; c. 25, Laws of 1779, 
 sec. 14 ; 1 J. & V., Sec. 14, p. 44. 
 
 8 2 J. & V., 67. 
 
 4 This subject is discussed at length with reference to the authorities in 
 Chap. IV. of my Hist, of Law of Real Prop, in New York. 
 
 6 Coggeshall v. Pelton, 7 Johns. Ch., 292 ; cf. Shotwell, Exr., v. Mott, 2 
 Sandf. Ch., 46 ; Williams ». Williams, 8 N. Y., at p. 550 ; Iseman v. Mayers, 
 26 Hun, 651, 657 ; Hornbeck's Exr. v. The American Bible Society, 2 Sandf. 
 Ch., 133 ; Matter of Trustees of N. Y. Prot. Epis. School, 31 N. Y., 574, 589. 
 
 6 Owens «. The Miss. So. of M. E. Church, 14 N. Y., at p. 384. 
 
52 LAW OF CHARITABLE DONATIONS. 
 
 In the case of McCartee v. Orphan Asylum, 1 Chancellor 
 Jones, who was admirably fitted for an exposition of the 
 subject, 2 stated the general proposition that "devises to 
 charitable uses are not prohibited by our law," and, irre- 
 spective of the particular devise to a corporation, this was 
 then regarded generally as an accurate proposition of law. 
 Charitable uses were enforceable in equity quite independ- 
 ently of the Statute of Charitable Uses, 43 Eliz., c. 4, which 
 had been then repealed in New York. 3 Having regard to 
 these cases and to the chancery cases decided before the 
 time when it was firmly established, that charitable uses 
 fell with the enactment of the Revised Statutes, 4 it is 
 impossible to escape from the conclusion that the common 
 law relating to charitable uses and donations was part of 
 the jurisprudence of the State of New York prior to the 
 year 1830. But even at that time it was somewhat modi- 
 fied by the tendency of the courts to construe the statutes 
 of England, contained in Jones and Varick's Revision of 
 1788, 5 in a manner different to that which prevailed at 
 Westminster Hall before the autonomy of New York was 
 complete. 8 
 
 The other cases pointing to the conclusion, that the 
 common law of charities (which here includes the doctrines 
 of equity relative to charitable uses 7 ) was confirmed by 
 the constitutions of 1777 and 1821, will be briefly consid- 
 ered ; although some doctrines there enunciated became 
 obsolete or without authority when the legal effect of the 
 Revised Statutes was better understood in the State. In 
 
 1 9 Cowen, 437, 451. This case in 1827, in the Court of Errors, held that a 
 devise to a corporation even for charity was prohibited by the New York 
 Statute of Wills. This case is one of the few charity cases in New York re- 
 ferred to by Chancellor Kent, Com. II., 288, IV., 508. The subject had then 
 been little considered since the erection of the State government over New 
 York. 
 
 2 Willard, Eq. Jurisp., 575. 
 
 8 Dutch Church in Garden St. v. Mott, 7 Pai., 77, 79: Shotwell, Exr., a. 
 Mott, 2 Sandf. Ch., 46. 
 4 Infra. 
 8 Supra. 
 6 Supra, p. 50. 
 ' Mannings. Manning, 1 Johns. Ch., 527, 531. 
 
LAW OF CHARITABLE DONATIONS. 53 
 
 Shotwell, Exr., v. Mott, 1 Vice-Chancellor Sandford said, 
 •"that the legal restrictions against perpetuities were 
 never directed against gifts for charitable uses or even for 
 eleemosynary purposes " ; and he distinguishes between the 
 degree of certainty required for individual or non-charit- 
 able donations and that for those of a charitable nature. 
 In consequence of this distinction a bequest in 1835 for the 
 use of the poor of the town, and one to an unincorporated 
 religious association were both adjudged valid ; the Re- 
 vised Statutes relative to uses and trusts being held 
 quite inapplicable to charitable donations. But the most 
 notable case favoring charitable uses is that of Will- 
 iams v. Williams, 2 in 1853, when the majority of the jus- 
 tices of the Court of Appeals held that a legacy to the 
 Presbyterian Church and congregation of the village of 
 Huntington, and also a legacy to the trustees of a fund for 
 the gratuitous education of poor children, were both 
 valid as charitable donations. The justice delivering 
 the opinion concluded in these words : " That the law of 
 charitable uses as it existed in England, at the time of the 
 Revolution, and the jurisdiction of the Court of Chancery 
 over these subjects became the law of this State on the 
 adoption of the Constitution of 1777 ; that the law has not 
 been repealed, and . that the existing Courts of the State 
 having equity jurisdiction are bound to administer that 
 law. * * *" There were other cases which could only 
 be supported by the same assumption. 3 But, subsequently, 
 judicial opinion upon the points indicated was precisely re- 
 versed. 4 The history of the reversal is the history of the 
 modern law of charities in New York. 
 
 1 2 Sandf. Ch., 53; regarded as overruled, 34 N. Y., 584, 610; 52 N. Y., 
 337 — by reason of the Revised Statutes ; for it ' had been at first approved, 
 8 N. Y., at p. 557. The case is now restored in part by the provisions of 
 c. 701, Laws of 1893. 
 
 2 8 N. Y-, 525; aff'd in Owens v. The Miss. So. of M. E. Church, 14 N. Y., 
 at p. 405; and matter of the N. Y. Prot. Epis. School, 31 N. Y., 574; but 
 subsequently repudiated by later decisions, vide infra. The Act, c. 701, Laws 
 of 1893, tends to restore the authority of Williams v. Williams. 
 
 8 Hornbeck's, Exr., v. American Bible Society, 2 Sandf. Ch., 133; Banks v. 
 Phelan, 4 Barb., 80; cf. Manice v. Manice, 43 N. Y., 303, 388, with the 
 case in 4 Barb., 80, if trust is to be executed out of the State. 
 
 4 Infra. 
 
54 LAW OF CHARITABLE DONATIONS. 
 
 If we assume that those great lawyers, the Chancellors 
 of the State of New York, determined that the common 
 law of charitable donations was part of the law of this 
 State prior to the Revised Statutes, then we may briefly 
 ex hypothesi consider the extent and the condition of such 
 law prior to 1830. The Statute of Charitable Uses had 
 been repealed in 1788. 1 Now the Statute of Charitable 
 Uses had given a legislative definition of such uses, and 
 none other was cognizable in Chancery. 2 So, with the fall 
 of that Statute in New York, other uses, cognizable before 
 the reign of Elizabeth, would here come under the denomi- 
 nation of charitable, 3 while superstitious uses ceased to be 
 such with the Constitution of 1777. 4 The domain of 
 charity was only extended by the legislative action thus 
 far taken, and there was greater room for the appli- 
 cation of an enlightened system of charitable principles, 
 easily ascertainable in the ancient law. But the ulti- 
 mate construction, following the Revised Statutes of 
 1829, stifled the discernible tendency, and after 1846 
 the law of charities had to be judicially recon- 
 structed, as it were, in New York, to the regret of 
 many public-spirited persons and the ruin of many per- 
 petual charities. 
 
 Had the modern view of the law of charities not finally 
 prevailed after the Constitution of 1846, the New York 
 Code of Trusts might have been less harmonious, but 
 many beneficent schemes of charity which have utterly 
 failed in consequence of the rigidity of the application of 
 the Revised Statutes of 1829, would have flourished for- 
 ever in this State. 5 Uses or trusts in lands, for the benefit 
 
 1 C. 46, Laws of 1788; 2 J. & V., 282; Levy v. McCartee, 6 Pet., 102, no; 
 Ayres o. Meth. Epis. Church, 3 Sandf., 351, 367; Potter v. Chapin, 6 Pai., 
 639, 650. 
 
 2 Supra, p. 36; Wright v. Trustees of Meth. Epis. Church, 1 Hoff. Ch., at 
 p. 264. 
 
 3 See Magill v. Brown, 16 Fed. Cases, at p. 429, and note on p. 437, for a 
 list of public or charitable uses. 
 
 4 Vide General Index, sub voce " Superstitious "; and Andrew v. N. Y. Bible 
 & Prayer Book Society, 4 Sandf., at p. 184; Ayres v. The Meth. Church, 
 3 Sandf., at p. 377. 
 
 6 Dammert v. Osborn, 140 N. Y. , 30, 43. 
 
LAW OF CHARITABLE DONATIONS. 55 
 
 of the public or for charitable purposes, 1 would have been 
 enforced, even if no trustee had been designated, for the 
 lands would have then descended cloaked with the trust. 3 
 The rules against perpetuities would have had no applica- 
 tion to charitable trusts, 3 while indefinite schemes of 
 charity which would have been supported in England, as 
 trusts without regard to the prerogative or administrative 
 cypres, 4 ' would have been carried out here by the courts 
 of equity upon a feasible and logical plan. 6 Only those 
 trusts which were so ambiguous or complicated as to be 
 impracticable need have failed absolutely. 6 Bequests to 
 unincorporated societies for charitable purposes would 
 have been perfectly vaiid. 7 And where a charitable trust 
 was clearly intended by the testator, but the purpose or 
 object expressed lacked precision, definiteness or complete- 
 ness, it would not, perhaps, have been altogether shocking 
 to the purest republican prejudices to apply the doctrine 
 of judicial cy pres, s and approximate the trust by decree 
 to the holy and benign wish of the dead. 
 
 Is it true that the cy pres doctrine is foreign to republican 
 institutions? Is it not as applicable to republican as to 
 other wills and testaments ? 9 Republican legislatures often 
 direct the judicial department of government to apply the 
 
 1 Williams v. Williams, 8 N. Y., at p. 549 ; cited in Owens v. Miss. So. of 
 M. E. Church, 14 N. Y., at p. 406. 
 
 2 McCartee v. Orphan Asylum Society, 9 Cow., at p. 490 ; Potter v. 
 Chapin, 6 Pai., 639. 
 
 s Shotwell, Exr., v. Mott, 2 Sandf. Ch., at p. 54 ; Adams v. Perry, 43 N. Y., 
 at p. 498 ; Cottman ». Grace, 112 N. Y. , at p. 306. 
 
 1 Supra p. 40. 
 
 6 Coggeshall v. Pelton, 7 Johns. Ch., 292 ; Shotwell, Exr., v. Mott, 2 Sandf. 
 Ch., 46 ; Williams 1). Williams, 8 N. Y., at p. 548. 
 
 6 Supra, pp. 40, 41 ; King v. Woodhull, 3 Edw. Ch. , 79, 89 ; cf. 3 Shars- 
 wood & Budd's Lead. Cas. Real Prop., p. 370. 
 
 ' Potter v. Chapin, 6 Pai., 639, 649. Wright ». Meth. Church, 1 Hoff. Ch., 
 202 ; Kings. Woodhull, 3 Edw. Ch., 79; 3 Sharswood & Budd's Lead. Cas. 
 Real Prop , 375 ; Hornbeck's Exr. v. American Bible So., 2 Sandf. Ch., 133 ; 
 Banks K. Phelan, 4 Barb., 80 ; Newcomb v. St. Peters Church, 2 Sandf. Ch., 
 636 ; sedcf. Owen v. The Miss. So. of M. E. Church, 14 N. Y., at p. 408. 
 
 8 Supra, pp. 40, 41; 3 Sharswood & Budd's Lead. Cas. Real Prop., 367, 
 sea. \ 
 
 9 Jackson v. Brown, 13 Wend., 437 ; cf. Adams ». Perry, 43 N. Y., at p. 
 498. 
 
56 LAW OF CHARITABLE DONATIONS. 
 
 principles of cy pres. x Nor were informations by the Attor- 
 ney General to enforce indefinite permanent trusts for char- 
 ity unfit for republican institutions. It was at first thought 
 that the Attorney-General should intervene in all cases of 
 charity, as the public had an interest in a trust pro bono 
 publico* It would have been quite competent for the 
 Legislature to regulate such informations, 3 and to permit 
 even a private citizen, having no particular or vested 
 interests, to act as relator upon filing proper security. 4 
 Yet by some misadventure an information in a charity 
 case seems to have been thought during the formative 
 period of our present law of charities a particularly royal 
 and obnoxious proceeding. 
 
 But to continue the hypothesis, by way of illustration 
 only. Until the passage of the Revised Statutes, trusts 
 for the benefit of charity were lawful. 5 As the Statute 
 9 Geo. II., c. 36, had never been in force in the Province 
 of New' York, 6 wherever a charitable corporation had 
 power to take by devise, non obstante the Statute of Wills, 
 there was no restraint upon the capacity or powers of 
 testator to devise to them until the year 1848. 7 
 
 It is not always easy to perceive why the royal preroga- 
 tive, or the executive function of the Crown, as parens 
 patriae, was once deemed, in cases of charity, to be in abey- 
 ance after the War of Independence. 8 A successful revolu- 
 
 1 Coster v. Lorillard, 14 Wend., at pp. 308, 309 ; and see Magill v. Brown, 
 16 Fed. Cas., at p. 438 ; and note to Kent's Comm. IV., p. 508. 
 
 2 Andrew v. The N. Y. Bible, &c, Society, 8 N. Y., 559, 563 ; Owens «. 
 The Miss. So. of M. E. Church, 14 N. Y., at p. 408. 
 
 8 People 0. Ingersoll, 58 N. Y., i, 16, c. 701, Laws of 1893 ; cf. People v. 
 Simonson, 126 N. Y., 299. 
 
 4 Infra. 
 
 5 Yates v. Yates, 9 Barb., at p. 343 ; Williams v. Williams, 8 N. Y., at p. 
 554 ; Cottmanfl. Grace, 112 N. Y., at p. 307. 
 
 6 Supra, pp. 38, 39; it is quite erroneous, therefore, to say that the Stat. 
 9 Geo. II., c. 36, was repealed by the general repealing act of 1788. Downing 
 v. Marshall, 23 N. Y.. at p. 392 ; cf. Ayres v. The Meth. Church, 3 Sandf., p. 
 370; Stebbins, Sen., in McCartee v. Orphan Asy. So., 9 Cowen, at p. 520 ; 
 Williams v. Williams, 8 N. Y., at p. 546 ; Levy v. Levy, 33 N. Y., at p. no. 
 
 7 C. 319, Laws of 1848 ; c. 360, Laws of i860 ; Hollis v. The Drew Theolog. 
 Sem., 95 N. Y., at p. 173. 
 
 8 Cf. Beekman ». Bonsor, 23 N, Y., at p. 307. 
 
LAW OF CHARITABLE DONATIONS. 57 
 
 tion subverts all former political powers and dominion and 
 presumably vests them at once in the victor. As the federal 
 sovereignty of the United States makes no inherent pre- 
 tensions to the powers of the Crown in cases of charity, 
 they must remain in tne people of a particular State, ex- 
 cept in so far as they have been delegated to the federal 
 establishment, 1 unless the prerogative is foreign to repub- 
 lican institutions. It is conceded, however, that the State 
 may vest most of the former royal powers in the appropri- 
 ate tribunals or in the executive of this country. 2 As the 
 judiciary have the judicial cy pres power either inherently 
 or by means of some statute, and its application is fre- 
 quently made mandatory upon them, 3 there seems to be 
 no valid reason why the executive or the Courts of this 
 country should not be directed by statute to prevent the 
 failure of any donation to charity or pro bono publico. In a 
 republic, of all governments, gifts to the public, or for their 
 use, ought to be highly favored by the law. 4 Certainly, 
 if the State has succeeded to all the powers of the Crown 
 over charities and to those exercised by the Crown as 
 parens patriae, as is said by the authorities, it is quite com- 
 petent for the legislature to impress property v/ith a new 
 use and to declare that in future, charitable donations shall 
 not fail, or that where such donations are so indefinite as to 
 require external aid that then the Governor of the State, 
 or any other officer, may with the advice of the Attorney- 
 General, appoint the same to a public use. 5 In the cases 
 where the beneficaries of a charitable donation are uncer- 
 tain, the Attorney-General may' represent them by virtue 
 of his common law powers, 6 and if these powers are deemed 
 
 1 Wheeler v. Smith, 9 How. , 55, 78; Fontain v. Ravenel, 17 How., 369, 
 
 384- 
 
 2 Bascom v. Albertson, 34 N. Y., 610, 61: ; Mormon Church v. United 
 States, 136 U. S., 1, 56, 57 ; People v. Ingersoll, 58 N. Y., at p. 16; but not 
 as against vested rights ; People v. Powers, 147 N. Y., at p. 109;. Losey v. 
 Stanley, 147 N. Y., at p. 571. 
 
 8 Supra, p. 55 ; 3 Sharswood & Budd's Leading Cases, Real Prop., pp. 
 367-371; cf. 2 Perry on Trusts, sec. 717. 
 
 4 Mormon Church ». United States, 136 U. S., at p. 51. 
 
 6 Mormon Church v. United States, 136 U. S., I., 1, 56, 57. 
 
 ° Andrew v. Gen. Theolog. Sem., 8 N. Y., at p. 563; Owens ». Miss. So. 
 
58 LAW OF CHARITABLE DONATIONS. 
 
 doubtful, 1 the legislature may define them as in a recent 
 instance. 2 This theory of the prerogative over charities 
 is not novel. In the year 1834, the legislature of this State 
 by an act, 3 permitted the funds of one charitable corpora- 
 tion to vest in another of a like nature. These funds were 
 held to a charitable use and the legislature simply exercised 
 a general superintendence over charities as parens patriae. 
 There is no likeness between a public and a private use, 
 and here no rights vested so that they could not be divested, 
 at least with the consent of the corporation administering 
 the estate. Nor would such a law be an interference with 
 vested rights, for no rights vest in the property of others, 
 except subject to such rules as the State prescribes. As the 
 law now stands, if a charitable use is void the property 
 limited descends to the heir or passes under some residu- 
 ary devise or bequest. 4 But that the legislature may change 
 the rule for the future so as to provide for the application 
 of the cy pres doctrine to subsequent indefinite devises and 
 bequests to charity, seems undoubted and where no 
 interest has already vested an inherent attribute of sover- 
 eignty. 5 
 
 Notwithstanding what was said in several cases about 
 the abolition of the English law of charities in 1788, 6 there 
 can be little doubt that had it not been for the Revised 
 Statutes of 1829, the common law relating to charit- 
 able donations would have ultimately been held to be a 
 part of the law of the State of New York. 7 The Revised 
 
 Meth. Epis. Church, 14 N. Y., at p. 409; 4 Kent's Comm., 508, note; Will- 
 ard, Eq. Jurisp., p. 583 ; People v. Powers, 90 Hun, 449, rev'd above on 
 another point. 
 
 1 People v. Ingersoll, 58 N. Y., at pp. 15, 16; cf. People v. Simonson 126 
 N. Y. , 299. 
 
 2 C. 701, Laws of 1893. 
 
 8 C. 148, Laws of 1834; so in 1795, the legislature passed an act in reference 
 to a legacy to a charity school (18th Sess., chap. 29), directing it to be paid 
 over to the Overseers of the Poor; cf. Dammert v. Osborn, 140 N. Y., 30. 
 
 4 Levy «. Levy, 33 N. Y., 97; Chamberlain v. Taylor, 105 N. Y., 185, 193; 
 Matter of McGraw, m N. Y., at p. 112. 
 
 5 Cf. Luhrs v. Eimer, 80 N. Y., at p. 180; Wainright v. Low, 132 N. Y., 
 at p. 318. 
 
 6 Supra, p. 49. 
 
 7 Nearly all the subsequently overruled cases were cited with approval by 
 Kent in his Commentaries, and great names in our juridical history supported 
 
LAW OF CHARITABLE DONATIONS. tJ9 
 
 Statutes devised and enacted a new scheme relating to uses 
 and trusts in lands, 1 carefully prescribing the instances 
 where express trusts in lands might be created, 3 and dis- 
 tinctly abolishing all uses and trusts not then authorized 
 in the statutes. 3 Charitable uses were nowhere mentioned, 
 and thus were neither expressly saved nor abolished by 
 this revision. Consequently one school of juridical schol- 
 ars, recollecting that charitable uses were saved out of the 
 Statute of Uses, was in favor of excepting charitable uses 
 from the operation of the Revised Statutes. This construc- 
 tion was stoutly opposed and the conflict of opinion ex- 
 tended over many years. Chancellor Kent regretted that 
 the revisers themselves had not settled the question : 4 and 
 when Mr. Lalor sent his book to press in 1855 he an- 
 nounced that the controversy had ended, 6 although, in 
 fact, it had hardly begun. In Shotwell, Executor, v. Mott. 6 
 it was most pointedly held that the Revised Statutes abolish- 
 ing the uses not expressly saved, had no reference to charit- 
 able or public uses In Tucker v. St. Clement's Church this 
 question was left open. 1 But there was a very strong and 
 highly intelligent opinion abroad, that the Revised 
 Statutes had not abolished public or charitable uses, and 
 that such uses ought to be regarded as beyond the con- 
 templation of the makers of the Revised Statutes. 8 
 
 In Ayres v. The Methodist Church, 9 Andrew v. New 
 York Bible and Prayer Book Society ; 10 Yates v. Yates, 11 
 King v. Rundle 12 and Voorhes v. Presbyterian Church, 13 the 
 
 the common law of charities, sed cf. Andrew v. N. Y. Bible, etc., Society, 
 4Sandf., 156, as to pious uses ; Bascom v. Albertson, 34 N. Y., at p. 610. 
 
 1 Art. I., Tit. 2, Chap. I., Part II., R. S. 
 
 2 1 R. S., 728, sec. 55. 
 8 1 R. S., 725, sec. 45. 
 4 4 Comm., 508, note. 
 
 B Lalor's Law of Real Property in New York, pp. 126-153, referring to 
 "Williams v. Williams, 8 N. Y., 525. 
 6 2 Sandf. Ch., 46, 49, 52. 
 
 * 3 Sandf., 242 ; 8 N. Y., 558. 
 
 8 American Law Register, I., 538. 
 
 * 3 Sandf., 351. 
 
 10 4 Sandf., 156 
 
 11 9 Barb., 324, 340. 
 18 15 Barb., 139. 
 
 18 17 Barb., 103. 
 
60 LAW OF CHARITABLE DONATIONS. 
 
 Revised Statutes were held to have destroyed charitable 
 uses, if anj' such were tolerated in the State, after the re- 
 peal of the English statutes in 1788. 1 But the case of An- 
 , drew v. N. Y. Bible and Prayer Book Society was reversed 
 on appeal 2 after these other cases had been decided ; thus 
 leaving the matter open in the year 1853. In October of 
 that year, in Williams v. Williams, the Court of Appeals 
 validated several legacies as charities, although they were 
 of a most indefinite character ; and the Court at the same 
 time took occasion to express its opinion, that charitable 
 uses were still valid in this State notwithstanding the Re- 
 vised Statutes. 3 This opinion was then thought to be 
 final, 4 but it was not. The decision did not necessarily 
 involve uses in lands ; the opinion was therefore largely 
 obiter and historical. With the case of Owens v. The 
 Missionary Society of the Methodist Episcopal Church 5 
 began a process of differentiation, which ultimately over- 
 threw the doctrines clearly enunciated in Williams v. 
 Williams ; although in the Owen's case the William's case 
 was only distinguished by the majority, but in such a way 
 as to shake its authority. In Leonard v. Burr, 6 there was 
 still an intimation that charitable uses stood on a footing 
 quite distinct from uses not charitable. But in Dodge, Ex- 
 ecutor, v. Pond, 7 it was said, "the peculiar doctrines of the 
 English Court of Chancery having never been adopted in 
 this State, trusts for such purposes cannot be sustained, un- 
 less the object of the trust is defined with clearness and pre- 
 cision." 8 In Beekman v. Bonsor, 9 the Court observed the 
 discrepancy between Williams' case and Owen's case in so 
 far as the historical question of equity jurisdiction over char- 
 itable uses was concerned, but did not think it of fundamental 
 importance. Nothing was said directly upon the subject of 
 
 1 Supra, p. 49 ; Yates v. Yates, 9 Barb., at p. 337. 
 8 8 N. Y., at p. 559 ; note. 
 8 N. Y., at pp. 554, 555, 556, 557, 558. 
 4 Lalor's Real Property in New York, p. 130. 
 6 14 N. Y., 380. 
 « 18 N. Y., 96. 
 ' 23 N. Y., 69. 
 8 Ibid., p. 77. 
 1 • 23 N. Y., at p. 309. 
 
LAW OF CHARITABLE DONATIONS. 6 1 
 
 the destruction of charitable uses by the Revised Statutes; 
 but in Downing v. Marshall, 1 it was made very clear that a 
 charitable use, if valid at all, was only valid as a power in 
 trust, and that the Revised Statutes specified all the cases 
 where express trusts in lands were permitted. In Levy v. 
 Levy, 2 it was, however, admitted that there was still a 
 diversity of opinion amongst judges, whether the article 
 of the Revised Statutes on Uses and Trusts applied to 
 charitable or public uses, and three of the judges clearly 
 were of the opinion that it did apply, while the majority 
 were silent on this point. Thus, in 1.865, the main ques- 
 tion was still open. Two years earlier the same Court, by 
 the same Justice, Wright, then delivering the opinion in 
 the Levy case, had held in Rose v. Rose, 3 that charitable do- 
 nations of a public nature formed no exception to the law 
 against perpetuities, when the donations were contingent 
 and executory. The opinion in Levy v. Levy, 4 although 
 very much the same as the opinions in Ayres v. Trustees 
 of the Methodist, etc., Church, 5 and in Andrew v. New 
 York Bible, etc., Society, 6 denoted the qualifications of 
 future charitable donations in New York. In the Levy 
 case there was no pretense of adhering to the doctrines of 
 Williams v. Williams. 7 It remained for Bascom v. Al- 
 bertson 8 to complete the overthrow of charitable uses in 
 lands : In the judgment of the Court the Revised Statutes 
 embraced charitable uses in the abolition of uses. 9 At a 
 subsequent day, or in 1871, the learned reporter was en- 
 couraged by a statement in the opinion, that it was not 
 then " proper to decide the question, whether the peculiar 
 system of charitable uses, as it existed in England has, or 
 ever had, in any of its features any foothold in this State," 
 to append a note, intimating that the question, whether the 
 
 1 23 N. Y., 366. - 
 
 s 33 N. Y., 97, 134. 
 
 8 4 Abb. Ct. of Appeal Decis., 108. 
 * 33 N. Y., 97. 
 
 6 3 Sandf., 351. 
 
 6 4 Sandf., 156 ,- reversed, 8 N. Y. 559. 
 
 7 8 N. Y., at p. 525. 
 » 34 N. Y., 584, 619. 
 
 9 34 N. Y., at p. 615. 
 
62 LAW OF CHARITABLE DONATIONS. 
 
 English system of charitable uses exists in this State must 
 be regarded as still open. 1 But in Holmes v. Mead, 2 in 
 1873, the Court disapproved of the reporter's note in 
 Burrill v. Boardman, and the announcement was made that 
 the controversy was definitely closed 3 — the Revised Stat- 
 utes had, at last, abrogated charitable uses in lands. 
 Henceforth charitable trusts must be subject to all the 
 rules of the Revised Statutes relating to express trusts, or 
 to powers in trusts, perpetuities and the limitations of 
 future estates 4 — it made no difference that the old rules con- 
 cerning perpetuities had no possible bearing on charitable 
 or public trusts, or that the old rules concerning the vesting 
 and the definite quality of private estates had little refer- 
 ence to charitable bequests or public foundations; 5 the 
 Revised Statutes had changed the ancient law, estab- 
 lished in the early ages of Christianity. 6 For the pro- 
 priety of this legislation the Courts were not responsible. 7 
 In a short time it was well understood that charitable 
 donations of personalty in trust were equally within 
 the rules of the Revised Statutes relating to perpetuities 
 and future estates. 8 But as we shall observe later on, 
 the legislature has now become restive under doctrines so 
 destructive to charitable donations, and a late law validating 
 donations for the benefit of uncertain beneficiaries has re- 
 stored in part the ancient law of charities. 9 
 
 The long contention over charitable uses in which op- 
 posing forces were marshaled by the courts and styled 
 " champions," 10 as if there had been some tournament or 
 
 1 Burrill v. Boardman, 43 N. Y., 254, 263 ; cf. Adams ®. Perry, 43 N. Y., 487. 
 
 2 52 N. Y., 332. 
 
 " Holland®. Alcock, 108 N. Y., 312, 336; Cottman v. Grace, 112 N. Y., 
 307 ; Fosdick v. Town of Hempstead, 125 N. Y., 581. 
 
 * Bascom v. Albertson, 34 N. Y., at p. 619 ; Cottman v. Grace, 112 N. Y., 
 299, 306. 
 
 6 Shotwell, Exr., v. Mott, 2 Sandf. Ch., at p. 54, seq. 
 
 6 Supra, pp. 58, 61. 
 
 ' The Legislature has now returned to one principle of the ancient law, 
 uncertainty in the beneficiaries of the use ; vide infra and c. 701, Laws of 1893. 
 
 8 Infra. 
 
 " C. 701, Laws of 1893 ; Dammert 0. Osborn, 140 N. Y., 30, 43. 
 
 10 Holmes «. Mead, 52 N. Y., at p. 337. 
 
LAW OF CHARITABLE DONATIONS. 63 
 
 pageant passing in the courts of justice, demands some 
 brief recapitulation in an elementary treatise of this char- 
 acter. It will be seen by reference to the reports that the 
 Chancellors prior to 1846, 1 and Judge Denio after that year 
 regarded the English law of charities as part of the funda- 
 mental law of New York, and that Judge Duer, Judges 
 Wright, Selden and Porter were the influential minds in 
 reaching the opposite conclusion. The points involved in 
 this notable discussion were briefly these : 
 
 (1). Did, or did not, the English law of charities and the 
 jurisdiction of the Lord Chancellor over charitable uses 
 depend on the Statute of Charitable Uses ? 
 
 (2). In the case of indefinite charities where no interest 
 vested, did, or did not, the ordinary means of enforcing 
 them by information filed by the Attorney-General depend 
 on the Statute of Charitable Uses, or the royal preroga- 
 tive ? 
 
 (3). Did the English law of charities fall in New York 
 with the repeal of all the English statutes, not re-enacted in 
 1788, or continue here independently of that statute? 
 
 (4). Were charitable uses in lands abolished by the Re- 
 vised Statutes? 
 
 (5). Were charitable bequests and donations of personalty 
 governed by the rules of the Revised Statutes relating to 
 perpetuities and future estates ? 
 
 As all the preceding pages have been devoted to a dis- 
 cussion of the questions just summarized above, it is 
 only necessary to repeat briefly what is believed to be the 
 answers finally given by the tribunals to the questions 
 themselves : 
 
 (1). It was practically conceded, in Bascom v. Albertson, 
 that the English law of charities existed antecedently, to 
 and independently of, the Statute of Charitable Uses ; and 
 that the jurisdiction of the Lord Chancellor over charitable 
 uses was independent of the Statute of Charitable Uses. 2 
 
 1 Willard, Eq. Jurisp., p. 575. 
 
 "34 N. Y., "584, 592 ; Levy v. Levy, 33 N. Y., at p. 109 ; Holland v. Al- 
 cock, 108 N. Y., at p. 328, and see note at p. 373, 3 Sandf. Super. Ct. 
 Reports. 
 
64 LAW OF CHARITABLE DONATIONS. 
 
 The same result has been reached in England, l and in the 
 Federal Supreme Court of this country. 2 
 
 (2). It is now apparently conceded that informations in 
 charity cases were filed by the Attorney-General prior to 
 the passage of the Statute of Charitable Uses, and, there- 
 fore, that such informations were independent of that 
 statute. 3 Nor did such informations depend on the royal 
 prerogative — they were filed in behalf of the public, and 
 the duty of filing them devolved on the Crown as executive 
 or parens patriae. .* At the present time in England any one 
 may act as relator in a charity 5 case. It is apparent that 
 the Court of Appeals thought at first, that the Attorney- 
 General could adequately protect the interests of the pub- 
 lic in indefinite charitable or public trusts where no interest 
 vested. 6 There would thus appear to be no royal privi- 
 lege involved in filing an information ; at least so as to pre- 
 clude the American Chancellor from exercising jurisdiction 
 over indefinite public trusts, even if an information were 
 the sole remedy. 7 The argument on this point in Baptist 
 Association v. Hart's Exrs. 8 is therefore not conclusive 
 
 1 Atty.-Genl. v. Mayor of Dublin, 1 Bligh. (N. S.), 312, 347 ; Incorporated 
 Society 0. Richards, 1 Drury & Warren, 258. 
 
 s Vidal 0. Girard's Exrs., 2 How., 127, 194; sed cf., Fontain 0. Ravenel, 
 17 How., p. 394, 396, 398.; Ould 11 Wash. Hospital, 95 U. S., 303. 
 
 8 People 0. Ingersoll, 58 N. Y., 1, 14, 15 ; cf. Williams 0. Williams,- 8 N. 
 Y., at p. 544, seq. ; Owens 0. The Miss. So. of M. E. Church, 14 N. Y., 394, 
 seq. ; Baptist Association 0. Hart's Exrs., 4 Wheat., 1, 39 ; McCartee 0. 
 Orphan Asylum, 9 Cow., at p. 473. And the same result is reached in Eng- 
 land. Atty.-Genl. 0. Mayor of Dublin, 1 Bligh., N. S., at pp. 347, 348 ; Atty.- 
 Gen'l 0. Newman, 1 Ch. Ca., 157; Eyre 0. Countess of Shaftesbury, 2 P. 
 Wms. at p. 119 ; Atty.-Genl. 0. Brereton, 2 Ves., Sr., at p. 427 ; Atty.-Genl. 
 ». Middleton, Ves. Sr., at p. 328 ; overruling Atty.-Genl. 0. Bowyer, 3 Ves. 
 Jr., at p. 726 cited in so many American cases. But see Tyssen, Char. Be- 
 quests, pp. 518, 519. 
 
 4 Atty.-Genl. 0. Mayor of Galway, 1 Moll., 95; Atty.-Genl. 0. Flood 
 Hayes, 611 ; Wellbeloved 0. Jones, 1 S. & S., at p. 43. 
 
 E Atty.-Genl. 0. Vivian, 1 Russ., 236. 
 
 8 Andrew 0. The N. Y., Bible, etc., Society, 8 N. Y., 559, 563; Owens0. 
 The Miss. So. of M. E. Church, 14 N. Y., at p. 408. 
 
 7 People 0. Ingersoll, 58 N. Y., 1, 14, 15 ; People 0. Powers, 83 Hun, 449; 
 29 N. Y. Supp., 951 ; cf. c. 701, Laws of 1893. 
 
 8 4 Wheat., 1. 
 
LAW OF CHARITABLE DONATIONS. 65 
 
 of the jurisdiction of the Chancellor of the State of New 
 York over indefinite permanent charitable trusts. * 
 
 (3). The chancellors of New York and other jurists have 
 repeatedly held that the English law of charities did not 
 fall with the repeal of the Statute of Charitable Uses 
 (43 Eliz., c. 4) in 1788, but that the jurisdiction over chari- 
 table trusts continued and was independent of that stat- 
 ute 2 But the later opinion of the courts, discussed 
 at length in these pages, is to the effect, that as it was 
 commonly thought both in England and in this country 
 until the exhumation of ancient documents in chancery that 
 the Chancellor's jurisdiction did depend upon the Statute 
 of Charitable Uses, the repeal of that statute in 1788 
 is conclusive evidence of an intention by the Legislature to 
 abrogate the entire English law of charities. 3 
 
 (4). The fourth question, formulated above, has been 
 fully answered in the affirmative. 4 
 
 (5). The fifth question will be answered at a subsequent 
 stage of this treatise. 5 
 
 We have now arrived at a point in our history where it 
 is apparent that the ancient law of charities affords little or 
 no light on the validity of charitable donations in the State 
 of New York. The early cases to the contrary disappear 
 as precedents, and henceforth counsel and conveyancers 
 must proceed in the light of the Revised Statutes ; or 
 charitable donations might fail. The adumbrations of the 
 present learning are contained in the following decisions : 
 In Ayres v. the Methodist Church, 6 Judge Duer announced 
 a theory in effect, that although he could not refer to any 
 positive evidence he had no doubt that when the Statute 
 of Charitable Uses was repealed in 1788 the former law 
 
 1 Supra, p. 9. 
 
 2 Supra, pp. 51-54. 
 
 a Yates v. Yates, 9 Barb., 324; Ayres v. Meth, Epis. Church, 3 Sandf., 
 331; Andrews. N. Y. Bible and Com. Prayer Book So., 4 Sandf., 156; 
 Levy v. Levy, 33 N. Y., at p. 112 ; Bascom v. Albertson, 34 N. Y., at p. 61 ; 
 Holland v. Alcock, 108 N. Y., at p. 334. 
 
 4 See the discussion at pp. 58-62, supra. 
 ■ B Chaps. IV., V., infra. 
 
 ' 3 Sandf., 351, 367. 
 
66 LAW OF CHARITABLE DONATIONS. 
 
 of charities was intended to be abrogated. This theory- 
 was enlarged by Wright, J., in Yates v. Yates, who said 
 " trusts are unnecessary for public charities ; direct grants 
 are much better," and the learned justice proceeded 
 to adumbrate the scheme of charities which he thought 
 the legislature of the State of New York intended. It 
 seemed to be founded on a scheme of juristic persons, 
 in the shape of eleemosynary or religious corporations, 
 subjected to the Revised Statutes and all the regula- 
 tions of business corporations. 1 By this theory, the law 
 of charities was clearly shorn of two of the most an- 
 cient characteristics of charitable donations, uncertainty 
 and permanence; or rather, it reverted to one phase of 
 the ancient law — that relating to charitable corporations, 
 and this modified by the statutes of the State. In Owens 
 v. The Missionary Society of the M. E. Church, Selden, J., 
 while saving charitable bequests where the fund was 
 given to a competent trustee, animadverted on charit- 
 able trusts. 2 In Levy v. Levy, Wright, J., was able to 
 formulate his theory in a somewhat more conclusive man- 
 ner. He said " an attentive study of the legislative 
 history of the State will lead to the conclusion, that if the 
 legislative power has not succeeded in extirpating the 
 Law of Charitable Uses as it prevailed in England in 1775, 
 and establishing a State policy and system of her own in 
 respect to indefinite uses either for charity, or religion, or 
 any other purpose, the intention has plainly existed to do 
 so." The learned judge then proceeds to review the 
 legislation, which accords with his theory. 3 In Holland 
 v . Alcock, the Court of Appeals carefully considered the 
 opinion of Wright,/., in Levy v. Levy, and sums up the 
 result in New York as follows : " The law [of charities] 
 has been simplified, and that is all. Instead of the huge 
 and complex system of England, for many generations 
 the fruitful source of litigation, we have substituted 
 a policy which offers the widest field for enlightened 
 
 1 Yates v. Yates, 9 Barb., 324 ; King v. Rundle, 15 Barb., 139. 
 
 8 14 N. Y., pp. 407, 408. 
 
 " 33 N. Y., 97, 108 ; and see Bascom v. Albertson, 34 N. Y., 584. 
 
LAW OF CHARITABLE DONATIONS. 6j 
 
 benevolence." 1 The opinion in Bascom v. Albertson 
 outlines the system of charities which superseded in New- 
 York the ancient system, and leaves nothing more to be 
 said concerning the doctrine 2 prevailing up to the year 
 1893 when the legislature restored part of the ancient law 
 laid down in the case of Williams v. Williams. 3 
 
 Accepting the judicial encomium on the substituted 
 system, it is impossible not to observe, that the theory 
 until lately dominant in regard to the law of charities in- 
 dicates an unusual continuity of legislative intention both 
 in deeds of omission and in the disjecta membra of legisla- 
 tion. 4 The theory in question wholly escaped the Chan- 
 cellors of the State of New York ; at least until one of 
 them tentatively suggested that the Revised Statutes 
 might have abolished charitable uses in lands. 5 But it 
 must be admitted by the candid enquirer, that the doc- 
 trines finally adopted are not unfounded, and if they do 
 not convince him, they ought to cause him to respect the 
 learning and force with which they are presented. 6 Many 
 great judges have differed upon the points indicated, 
 and it is impossible to dogmatize where the best intellects 
 are at variance. It is quite accurate to say that the 
 application to America of the English law of charities 
 has occasioned more difficulty than any other one de- 
 partment of the common law. Yet it is open to every- 
 one to express the preference that New York had been 
 found on the other side of the controverted question, 
 settled only after half a century of conflict. That the 
 legislative branch of government is dissatisfied with the 
 logic of the final determination, is obvious from the act 
 
 1 108 N. Y., 312, 336; Cottman v. Grace, 112 N. Y., 307; Fosdick 
 11. Town of Hempstead, 125 N. Y., 581. 
 
 2 34 N. Y., at pp. 612, 613. 
 
 3 8 N. Y., 525 ; c. 701, Laws of 1893; Dammert v. Osborn, 140 N. Y., 30, 
 43 ; et vide infra, c. IV. 
 
 4 Wright, J., in Levy v. Levy, 33 N. Y., p. 111 ; note that the general 
 Repeal of English statutes was in 1788, and the Religious Incorporation Act in 
 1784, c. 18 ; cf. c. 701, Laws of 1893. 
 
 6 Potter v. Chapin, 6 Pai., at p. 650. 
 
 6 Bascom v. Albertson, 34 N. Y., at pp. 612, 613. 
 
68 LAW OF CHARITABLE DONATIONS. 
 
 designed to restore charitable uses and trusts for indef- 
 inite beneficiaries. 1 This important act will be noticed 
 at a subsequent place. 2 
 
 1 C. 701, Laws of 1893. 
 » Chap. V. 
 
CHAPTER IV. 
 
 CHARITABLE DONATIONS NOT IN TRUST. 
 
 The indication in Yates v. Yates, 1 that direct grants for 
 public charity were the better way to establish charities 
 in New York, dictates that we should first consider dona- 
 tions to corporations, as that is now the more important, 
 or primary mode adopted in this State. Indeed, since 
 charitable donations have been subjected to the common 
 rules of the Revised Statutes against perpetuities, 2 and 
 since certainty, until 1893, was required in respect of the 
 beneficiaries of a charitable donation or trust, 3 corporate 
 donees engaged in the business of charity have been re- 
 garded as the safest conduits of benevolence or benefac- 
 tions. 4 
 
 As since the repeal of the Statute of Charitable 
 Uses we have no legislative definition of charity, 5 let us 
 consider for a moment what a charitable donation now 
 means. Sir William Grant, M. R., intimates that inde- 
 pendently of the Statute of Charitable Uses, charity de- 
 notes all the good affections men ought to bear toward 
 each other, and in its more restricted sense, relief of the 
 poor. 6 Mr. Binney's celebrated definition is more compre- 
 hensive : " Whatever is given for the love of God or for 
 the love of our neighbour — in the catholic and universal 
 
 1 9 Barb., 324, 343, approved Bascom «.' Aibertson, 34 N. Y., at p. 620. 
 8 Supra, pp. 58-62. 
 8 Infra, Chap. V. 
 
 4 Bascom v. Albertson, 34 N. Y., at p. 612. 
 
 5 Andrew C. N. Y. Bible, etc., So., 4 Sandf., at p. 181 ; Ayres ffl. The 
 Meth. Church, 3 Sandf., at p. 377 ; Levy v. Levy, 33 N. Y., at p. 115 ; cf. c. 
 701, Laws of 1893. 
 
 • Morice v. Bishop of Durham, 9 Ves., 399, 405. 
 
70 LAW OF CHARITABLE DONATIONS. 
 
 sense — given from these motives and to these ends, free 
 from the stain of everything that is personal, private or 
 selfish — is a gift for charitable uses." x Another definition 
 is given by Mr. Justice Gray in Jackson v. Phillips. 3 But 
 Lord Camden's definition is the more concise, technical 
 and relevant to present conditions : " A gift to a general 
 " use which extends to the poor as well as the rich." 8 In 
 New York at the present day, a charitable donation de- 
 notes one which is intended as a benefit to the public or 
 for the well-being of a class, and not for the use of a par- 
 ticular person. 4 In this sense it is contrasted with a pri- 
 vate donation. No more specific definition would seem 
 adapted to present conditions. 5 Mr. Shelford's classifica- 
 tion of charitable uses would, however, seem still applic- 
 able to a classification of charitable donations: 6 (i) The 
 relief of the poor ; (2) The advancement of learning ; (3) 
 The advancement of religion ; (4) The advancement of 
 objects of general public utility. 
 
 At common law charities were judicially favored, 7 and 
 there is reason to believe that this well-established maxim 
 is still highly obligatory and part of the common law of 
 the State. 8 Certainly this principle of the common law 
 has never been expressly abrogated, and it would at least 
 be difficult to point out the moment of its extinction. But 
 favor denotes an established contrast, and it would, 
 perhaps, be equally difficult to point out wherein, under 
 the Revised Statutes, charitable donations have been judi- 
 cially favored in cases where, if private donations, they 
 
 1 Vidal i>. Girard's Exrs., 2 How., 127. 
 
 2 14 Allen (Mass.), 539 ; Sharswood & Budd's Leading Cases in Amer. 
 Law of Real Prop., III., 332, 333. 
 
 * Williams on Executors, 1070, note ; Jones v. Williams, Amb., 651. The 
 word " use " at the present day in a non-technical sense is, however, confus- 
 ing. 
 
 4 Sherwood v. American Bible Society, 1 Keyes, 561. 
 
 5 Cf. Yates v. Yates, 9 Barb., at p. 334 ; Ayres 0. The Meth. Church, 3 
 Sandf., at pp. 376, 377, and 378 ; Holland v. Alcock, 108 N. Y., at p. 326. 
 
 6 Supra, p. 37. 
 
 7 Williams on Executors, 1055. 
 
 8 Bascom fl.Albertson, 34 N. Y., at p. 620; Holland v. Alcock, 108 N. Y., at 
 p. 336; Hollis v. Drew Theolog. Seminary, 95 N. Y., at p. 173; c. 701, Laws 
 of 1893. 
 
LAW OF CHARITABLE DONATIONS. 71 
 
 must have failed. J Unless charitable donations are con- 
 strued more liberally than private donations, it would be 
 futile to regard the maxim as still controlling. It is no 
 answer to say that charities are favored by the general 
 legislative policy of this State. In this sense " favored " is 
 equivalent to promoted, which is not the meaning of the 
 maxim. Nor is it a judicial application of the maxim in 
 question to apply to charitable donations that well-known 
 principle of construction — nt res magis valeat quam per eat ; 
 for it is applicable to all acts or deeds alike. The pres- 
 ent doctrine of the Courts in regard to charities seems 
 fully stated in a recent case : 2 " The argument that gifts for 
 " the promotion of charity, education and religion, should 
 " be encouraged, and should not be diminished by exac- 
 " tions of the state, presents a moral and political rather 
 " than a judicial question. It is the duty of the courts, in 
 " the interpretation of Statutes, to declare the law as it is, 
 " and the interests of society are best subserved by a close 
 " adherence by courts to what they find to be their plain 
 " meaning, neither narrowing the application on the one 
 " hand, nor extending the meaning on the other, to meet 
 " cases not specified, which may seem to be within the 
 "reason of the law." 
 
 Juristic persons, or corporate donees, have from time 
 out of mind been favorite instruments of charity. 8 Even 
 when the ordinary rules of law relative to transactions of a 
 private character were greatly relaxed in favor of public 
 or charitable donations, religious, eleemosynary and civil 
 corporations, were the prominent almoners of the pious, 
 the benevolent, and the public-spirited. 4 By this means 
 charitable donations were entrusted to a corporate succes- 
 sion of private persons in endless continuity, all animated 
 by the trust spirit and subordinate to the rules of the 
 
 1 Cf. Adams 0. Perry, 43 N. Y., 487; Holmes v. Mead, 52 N. Y., at p. 339. 
 In Booth v. Baptist Church, 126 N. Y. , at p. 243, the Court even appears to 
 condemn an appeal to the " cause of humanity,'' evidently appealed to as a 
 reason of upholding the gift. 
 
 2 Matter of Estate of Prime, 136 N. Y., at p. 362. 
 8 Supra, Chap. I. 
 
 4 Cf. Grant on Corporations, 5. 
 
72 LAW OF CHARITABLE DONATIONS. 
 
 foundation over which the Crown or the State exercised 
 a judicious, and oftentimes a vigilant supervision. Con- 
 veyance of lands to a charitable corporation always con- 
 templated a perpetuity, 1 but there was once no policy of 
 the law violated in any instance when such perpetuity was 
 charitable. 2 So while the property donated to a corpora- 
 tion is impressed in the hands of a charitable corporation, 
 with a permanent trust character, such character is im- 
 pressed by the State 3 in the instrument of incorporation, 
 and not by a private donor — a distinction of some conse- 
 quence where the State assumes to regulate charitable 
 donations on tne basis of common trusts. 4 A gift to a char- 
 itable corporation for its corporate purposes is not a trust 
 in the eye of the law. 
 
 In this State, where there is no church establishment, no 
 legal distinction is made between a religious corporation 
 and a lay eleemosynary corporation, 5 in the construction of 
 charitable donations ; but the laws of the State take notice 
 of the objects of certain incorporations and classify corpo- 
 rations accordingly. 6 
 
 In the preceding chapter we have briefly indicated that 
 the abrogation of the old law, in New York, of indefinite 
 permanent charitable trusts has been said to be evidenced 
 by the substitution of a system of religious and charitable 
 foundations or corporations. 7 The history of this policy is 
 also said to begin in the year 1784 8 with the Act to enable 
 
 1 Lewis on the Law of Perpetuity, 688, 689; cited in Williams v. Williams, 
 8 N. Y., at p. 534; Wetmorefl. Parker, 52 N. Y.,at p. 458. 
 
 2 Supra, pp. 28, 29 ; Shotwell, Exr. v. Mott, 2 Sandf. Ch., p. 54, seq. This 
 case is no longer authority upon the point involved. But its statement of this 
 point is uncontroverted and incontrovertible. 
 
 8 Supra, p. 29, as to alienability of the property of a charitable corporation. 
 
 4 Fosdickfl. Town of Hempstead, 125 N. Y., at p. 595; Bird v. Merklee, 144 
 N. Y., 544; cf. Matter of will of Ingersoll, 131 N. Y., 573. 
 
 6 Williams v. Williams, 8 N. Y., at p. 533; Stephenson v. Short et al., 92 N. 
 Y., 433,446. 
 
 6 E. g., The Act of 1784, c. 18; The General Corporation Law, c. 687, Laws 
 of 1892, sec; 2; c. 672, Laws of 1895. 
 
 ' Supra, pp. 49, 65. 
 
 8 Levy v. Levy, 33 N. Y. ( at p. no, in ; Bascom v. Albertson, 34 N. Y., 
 at pp. 612, 613 ; Holland v. Alcock, 108 N. Y., at p. 334 ; Bird v. Merklee, 
 144 N. Y., 544, 550. 
 
LAW OF CHARITABLE DONATIONS. 73 
 
 Religious Denominations to appoint trustees who shall be 
 a body corporate, etc. 1 This act, which was passed at the 
 first really constructive session of the Legislature of the 
 State, was intended to enable unincorporated religious 
 societies to become bodies corporate. Prior to Indepen- 
 dence, the Church of England and the Dutch churches 
 were the only religious corporations in the Province ; the 
 other religious bodies being unincorporated and holding 
 their property by trustees, under the general law of chari- 
 ties then in force — the English uniformity acts not extend- 
 ing here. 2 In 1801 3 and in 1813 4 the act was revised. As 
 thus revised, it continued until recently to contain the 
 general charter of new religious corporations, 5 being 
 repealed only in 1895, 6 when the acts concerning religious 
 corporations were generally remodeled. 1 The Act of 
 1784 is important to our subject, because it is commonly 
 regarded as the starting point of the new policy of this 
 State in regard to charities, and as evidential of an inten- 
 tion to abrogate the former law of charities, substituting a 
 corporate schemed 
 
 Perfect charitable donations to corporations now involve 
 a donor who is capax or capable, 9 and a donee having 
 capacity to take and hold the donation. Before the repeal 
 of the Statute of Charitable Uses, the capacity of the donee 
 in a charity case was a question of very secondary con- 
 sideration. 10 But it is not so now in New York ; the donee 
 
 1 C. 18, Laws of 1784 ; 1 J. & V., 104 ; 1 Greenleaf, 71. 
 
 2 Supra, p. 45. 
 
 3 I K. & R., 336. 
 
 4 I R. L., 212. 
 B 3 R. S., 292. 
 
 6 C. 723, Laws of 1895, constituting Chap. 42 of the General Laws. 
 
 7 C. 723, Laws of 1895, being c. 42, General Laws. 
 
 8 Ayres v. The Meth. Church, 3 Sandf., 351 ; Yates v. Yates, 9 Barb., 324 ; 
 Levy v. Levy, 33 N. Y., 97 ; Bascom v. Albertson, 34 N. Y., 584 ; Holland v. 
 Alcock, 108 N. Y. , 312 ; Bird v. Merklee, 144 N. Y., 544, 550. 
 
 9 The Statute of Charitable Uses was never held to affect the capacity of 
 the donor. The capacity of the donor is determined by rules applicable to 
 all his transactions and by several statutes noticed below, e. g., 1 R. S., 719, 
 sections 8, 10; cf. Boasberga. Cronan, 30 State Rep., 483 ; s. c. 9 N. Y. Supp., 
 664, as to what person may impress a trust on property. 
 
 10 Supra, p. 36 ; Tudor, Char. Trusts, 3d edit., 377. 
 
74 LAW OF CHARITABLE DONATIONS. 
 
 must have legal capacity to take or accept and hold the 
 donation. 1 
 
 The capacity of the donor is determined not only by the 
 common law, but by statutes of general import, relating to 
 lands, estates, trusts and the like. 2 If the donation consist 
 of lands the donor must be of sound mind and of full age, 
 or sui juris. 3 So the quality and quantity of the legal 
 estate created must conform to the provisions of the 
 Revised Statutes, as there is now but one exception to the 
 general rules of law made in favor of charities. 4 If the 
 subject matter of the limitation is personal property, and 
 the mode of transfer adopted is a last will and testament, a 
 testator of eighteen has capacity and a testatrix of sixteen. 5 
 
 The statutes which most directly affect donors in limita- 
 tations to charity are those relating to wills. By chapter 
 360 of the Laws of i860, "no person having a husband, 
 wife, child, or parent, shall, by his or her last will and 
 testament, devise or bequeath to any benevolent, charit- 
 able, literary, scientific, religious, or missionary society, 
 association or corporation, in trust or otherwise, more 
 than one-half part of his or her estate, after the pay- 
 ment of his or her debts (and such devise or bequest shall 
 be valid to the extent of one-half and no more)." 6 This 
 act repeals most other acts restricting devises or be- 
 quests to less than one-half. 1 It is peremptory and may 
 be insisted on by any one affected thereby. 8 By sec- 
 
 'iR. S., 600, sec 3 ; McCartee v. Orphan Asylum, 9 Cow., 437 ; Andrew 
 e. N. Y. Bible and Prayer Book Soc, 4 Duer, at p. 179 ; Downing®. Marshall, 
 23 N. Y., 366 ; Chamberlain «. Chamberlain, 43 N. Y., 424, 428 ; LeCouteulx 
 v. City of Buffalo, 33 N. Y., 333 ; Adams ». Perry, 43 N. Y., 487 ; Wetmore 
 0. Parker, 52 N. Y., 450, 458 ; Fosdick v. Town of Hempstead, 125 N. Y., 
 581 ; Matter of Estate of Prime, 136 N. Y., pp. 360, 361 ; Bird v. Merklee, 
 144 N. Y., 544. 
 
 2 Chap. I, part II., R. S. 
 
 8 1 R. S., 719, sec. 10. 
 
 * C. 701, Laws of 1893. 
 
 5 2 R. S., 60, sec. 21, as amended by chap. 782, Laws of 1867. 
 
 6 Chamberlain v. Chamberlain, 43 N. Y., 424 ; Stephenson v. Short and 
 The Ontario Or. Asy., 92 N. Y., 433 ; Chamberlain v. Taylor, 105 N. Y., 185. 
 
 7 Lefevre v. Lefevre, 59 N. Y., 434, 449 ; Dowd's Will, 8 Abb. N. C, 118 ; 
 3 Sharswood & Budd's Lead. Cas. Real Prop., 387. 
 
 8 Note to 3 Sharswood & Budd's Lead. Cas. Real Prop., 387 et seq.; Harris 
 
LAW OF CHARITABLE DONATIONS. 75 
 
 tion 6 of chapter 319 Laws of 1848: "An act for the in- 
 corporation of benevolent, charitable, scientific and mis- 
 sionary societies," it is provided among other things, " that 
 any corporation formed under the act shall be capable of 
 taking, holding or receiving any property, real and per- 
 sonal, by virtue of any devise or bequests contained in any 
 last will or testament, * * the clear annual income of 
 which shall not exceed the sum of ten thousand dollars ; 
 provided no person leaving a wife, or child, or parent, shall 
 devise or bequeath to such institution or incorporation 
 more than one-fourth of his or her estate after the payment 
 of his or her debts, 1 * * * * and no such devise or 
 bequest shall be valid in any will which shall not have been 
 made and executed at least two months before the death of the 
 testator." 2 Restrictions on the amount of property devis- 
 able or bequeathable are contained in other acts relating 
 to different classes of corporations ; clubs, 3 libraries, 4 and 
 bar associations. 5 The act of 1848 should be read in con- 
 nection with the act of i860 and the other acts just men- 
 tioned. 6 These acts affect the capacity of both the testator 
 and the devisee or legatee. 7 A provision in a charter sub- 
 jecting a domestic corporation to prior laws regulating 
 similar corporations will sometimes subject it to the dis- 
 abilities created by chapter 319, Laws of 1848. 8 The act 
 •of 1848 has no reference to bequests to foreign corpora- 
 's. The Amer. Bible So., 2 Abb. Ct. Appeal Decis., 316 ; Stephenson «. Short 
 and Ontario Orphan Asy., 92 N. Y., 433 ; cf. The Trustees of Amherst Col- 
 lege v. Ritch, 91 Hun, p. 509 ; Church of Redemption v. Grace Church, 68 
 N. Y., 570, 582 ; Rich e. Tiffany, 2 App. Div., 25 (Hun). 
 
 1 Amended by c. 360, Laws of i860. 
 
 8 Simmons v. Burrell, 8 Delehanty, 388 ; Hollis v. Drew Theological Sem., 
 95 N. Y., 166 ; et infra. 
 
 3 C. 368, Laws of 1865 ; c. 267, Laws of 1875. 
 
 4 C. 343, Laws of 1875. 
 
 5 C. 317, Laws of 1887. 
 
 6 Lefevre ». Lefevre, 59 N. Y., 434 ; Kerr s. Dougherty, 79 N. Y., 327 ; 
 Stephenson v. Short and The Ontario Orphan Asylum, 92 N. Y., 433 ; Hollis 
 v. The Drew Theological Seminary, 95 N. Y., 166 ; People's Trust Co. ®. 
 Smith, 82 Hun, 494 ; Matter of Kavanagh, 125 N. Y., 418. 
 
 7 Lefevre v. Lefevre, 59 N. Y. , 434. 
 
 8 Matter of Kavanagh, 125 N. Y., 418. 
 
>]6 LAW OF CHARITABLE DONATIONS. 
 
 tions. 1 These acts are discussed in several treatises, and 
 other authorities are there cited. 2 
 
 Concerning corporations, the general rule of the com- 
 mon law is, that the right to take and grant property, real 
 or personal, is of the essence of every domestic corpora- 
 tion ; and in the absence of any statutory prohibition, 
 they may take by all the usual modes of acquiring prop- 
 erty. 3 So at common law there were no restrictions on 
 their power to alienate their property without limitation 
 or restriction. 4 But corporations being juristic persons, 
 or existing only in contemplation of law, have their facul- 
 ties and powers prescribed by law. In England the right 
 or power of corporations or religious bodies was materi- 
 ally affected by the Statutes of Mortmain. 5 These statutes 
 are said to have been in force in the Province of New York. 6 
 But it must be observed that in view of the very few cor- 
 porations then existing here, they would seem to have 
 been irrelevant to the colonial epoch. 7 If these statutes 
 were so in force by judicial or prerogative extension, they 
 fell with the general repeal of the English statutes not 
 then revised in 1788. 8 But other prohibitions on the right 
 of corporations to take and hold lands were substituted in 
 their place, 9 and are sometimes characterized as Mortmain 
 Statutes, 10 although the construction of our statutes, unlike 
 that of the English statutes, prevents the taking, as well 
 
 1 Hollis v. Drew Theological Seminary, 95 N. Y., 166 ; Matter of Estate 
 of Prime, 136 N. Y., 347. 
 
 a Chaplin Suspens. Power Alienation, sections 461-463 ; Redfield on 
 Surrogates, 231 and notes. 
 
 3 Sherwood v. The American Bible Society, 1 Keyes, 561 ; 4 Abb. Ct. Ap- 
 peal Decis., 227 ; Matter of McGraw, in N. Y., 66, 84, 92. 
 
 4 Dutch Church in Garden Street fl. Mott, 7 Pai., 83. 
 E Supra, pp. 24-26. 
 
 e Yates c. Yates, 9 Barb., 324, 338 ; Ayres ». The Meth. Church, 3 Sandf.,, 
 351, 368 ; I Greenleaf, 72, sec. IV. ; cf. Matter of McGraw, 111 N. Y., 
 66, 95. 
 
 7 Cf. Magill 1>. Brown, 16 Fed. Decis., 408 ; Williams v. Williams, 8 N. Y., 
 at p. 546. 
 
 8 Supra, pp. 48-50. 
 
 9 Infra, p. 77 seq. 
 
 10 Downing ». Marshall, 23 N. Y., 366, 386, 387 ; Wetmore D. Parker, 52, 
 N. Y., 450, 458 ; Matter of McGraw, 111 N. Y., 66, 107. 
 
LAW OF CHARITABLE DONATIONS. TJ 
 
 as the holding, of property in cases where no express 
 authority exists. 1 
 
 The restrictions in this State upon the capacity of char- 
 itable corporations to take and hold property are claimed 
 to have been made for the benefit of the heirs of the donor, 
 and not to find their origin in any State policy similar to 
 that which animated the Plantagenet acts directed against 
 conveyances in mortmain 2 Such would seem to be the 
 opinion in Hollis v. The Drew Theological Seminary. 3 
 
 In the State of New York the charter commonly re- 
 stricts the amount of property which a corporation may 
 take and hold. 4 The history of the restriction is not ob- 
 scure. In 1783, the legislature incorporated by a special 
 act the Dutch Church of Tappan, Orange County. This 
 act contained a restriction limiting the corporate property 
 to £500 per annum. 5 So the subsequent general act to 
 enable all religious denominations to appoint trustees who 
 shall be a body corporate passed in 1 784, limited such cor- 
 porations to £1,200 per annum income. 6 The act incor- 
 porating the Regents of the University in 1787 limited the 
 revenue of any institution of learning formed under that 
 act to the value of four thousand bushels of wheat. 7 These 
 early restrictions survived the statutory revision of 181 3, 8 
 being included in some form in the Revised Statutes of 
 1829. 9 In New York no corporation may possess, or ex- 
 ercise any power except such as shall be necessary to 
 the exercise of powers expressly conferred. 10 The general 
 laws now being codified will in the future regulate 
 
 1 Matter of McGraw, 111 N. Y., 66. 
 
 8 Brief of counsel in Stephenson ». Short, 92 N. Y., 433, 434. The Plantag- 
 enet statutes are here meant and not the act 9 Geo. II., <_. 36, supra, p. 26. 
 
 " 95 N. Y., 166, 175 ; cf. Trustees v. Rich, 91 Hun, 509 ; Redfield on Sur- 
 rogate's Practice, 232 ; Rich 11. Tiffany, 2 App. Div., 25 (Hun). 
 
 4 Levy v. Levy, 33 N. Y. , at pp. 112-114 ; Wetmore v. Parker, 52 N. Y., 
 at p. 458 ; Matter of McGraw, 111 N, Y., 66 ; 2 Kent's Comm., 282; 1 R. S. f 
 460, 599. 
 
 5 C. 17, Laws of 1783; 1 J. & V., 90. 
 
 6 C. 18, Laws of 1784; 1 J. & V., 104. 
 ' C. 82 Laws of 1785; 2 J. & V., 142. 
 
 B 1 K. & R., 336; 1 R. L., 212, 260, 265. 
 
 9 I R. S., 460, 599, 600; Matter of McGraw, in N. Y., 66, 84. 
 
 10 1 R. S., 600, sec. 3. 
 
78 LAW OF CHARITABLE DONATIONS. 
 
 such charitable corporations as derive their powers from 
 those acts. 1 
 
 The charter of a corporate donee is the usual criterion 
 of its power, or capacity, to take and hold the donation, 
 whether land, or chattel interest. 2 The charter must con- 
 sist of an act, or acts, of the legislature, 8 as there are no 
 common law corporations in this State, although there are 
 some very ancient charters. In at least one instance in this 
 State, the early Dutch government, preceding the Eng- 
 lish dominion established in 1664, has been recognized as 
 a proper source of corporate power and existence. 4 Other 
 corporations were erected when New York was under the 
 authority of the Crown and both their estates and charters 
 are protected 5 by the State and Federal constitutions. 
 But the vast majority of the domestic corporations owe 
 their existence to the sovereignty of the State, being created 
 since Independence, under general laws, or special acts 
 where there are no general laws. 6 Corporate charters 
 granted since 1846 are subject to legislative alteration or 
 repeal. 7 It is unnecessary to consider here in detail the 
 great variety of acts under which charitable, religious 
 and eleemosynary corporations are formed in New York. 8 
 Nor would these complete the list, for civil or municipal 
 corporations are not infrequently employed as the instru- 
 ments of charity or private beneficence. 9 The same gen- 
 eral principles apply in New York to all corporations. 
 
 1 Chap. 378, Laws of 1892, "An act to revise and consolidate the laws re- 
 lating to the University"; c. 723, Laws of 1895, " An act in relation to re- 
 ligious corporations, constituting chap. 42 of the General Laws"; chap. 559, 
 Laws of 1895, being chap. 43 of the General Laws. 
 
 2 Betts v. Betts, 4 Abb. N. C„ 317, 397; 1 R. S., 599, sec. 1, sec. 3; Riker 
 -». Leo, 115 N. Y., at p. 102. 
 
 8 The certificate of corporation is only evidential and not conclusive on a 
 question of power. The charter in New York now usually consists of a gen- 
 eral act, e.g., C. 559, Laws of 1895. 
 
 * Denton v. Jackson, 2 Johns. Ch., 320, 324. 
 
 s N. Y. Const, of 1777, sec. xxxvi.; Const. U. S., art. I., sec. 10. 
 
 6 Const. 1846, art, viii., sec. 1; Const. 1894-5, art. viii., sec. 1. 
 
 7 Const. 1846, art. viii.; Const. 1894-5, art. viii.; c. 723, Laws of 1895. 
 
 8 There are several hand-books, or compilations, of the various laws : Cum- 
 ming & Gilbert's Religious Corporations ; Snyder's Laws relating to Benevo- 
 lent, Charitable, Scientific, etc., Societies. 
 
 9 Le Couteulx v. City of Buffalo, 33 N. Y., 333. 
 
LAW OF CHARITABLE DONATIONS. 79 
 
 Besides the act of incorporation, or the charter of the 
 corporation, we have often to look to other statutes, such 
 as the Revised Statutes, which serve as enabling, or con- 
 stating instruments, and confer additional or modified 
 powers. 1 Thus, in 1840, the legislature provided that 
 real and personal property might be granted and con- 
 veyed to any incorporated college, or other literary and 
 incorporated institution in this State, in trust, (1) to estab- 
 lish and maintain an observatory ; (2) to found and main- 
 tain professorships and scholarships; (3) to provide and keep 
 in repair places for burial of the dead ; (4) for any other 
 specific purposes, comprehended in the general objects 
 authorized by their respective charters. 2 And in 1841, 
 they provided that devises and bequests of real and per- 
 sonal property in trust for any of the purposes for which 
 such trusts were authorized under the Law of 1840, and 
 to such trustees as were therein authorized, should be 
 valid, in like manner, as if such property had been granted 
 and conveyed according to the provisions of that law. 3 In 
 some instances the charter of a particular corporation is 
 vitally affected by subsequent legislation of an enabling 
 character, such as the acts increasing the amounts of prop- 
 erty which it may take and hold. 4 In other cases the 
 legislation is of a restrictive character. 5 
 
 Donations to charitable corporations may be made by 
 any of the appropriate modes of transferring a use or the 
 dominion or ownership of property. 6 The donor may 
 convey lands directly to the corporation, in his lifetime, 
 provided it have the capacity to take and hold the same ; 7 
 or he may give and deliver goods and chattels, or other per- 
 
 1 1 R. S., 599, 600 ; Matter of McGraw, in N. Y., 66, 84 ; and see Chaplin, 
 Suspension Power Alienation, p. 256, note. 
 
 3 C. 318, Laws of 1840 ; Adams v. Perry, 43 N. Y., 487. 
 8 C. 26, Laws of 1841. 
 
 4 C. 191, Laws of 1889, fixed the amounts for non-business corporations at 
 $2,000,000, and the annual income at $100,000 ; c. 497 and c. 553, Laws of 
 1890, and c. 400, Laws of 1894, increase the amounts to $3,000,000, and the 
 income to $500,000. 
 
 6 Kerr v. Dougherty, 79 N. Y., 327. 
 
 6 Bascom v. Albertson, 34 N. Y., at p. 612. 
 
 ' I R. S., 599, Sections 1 and 3. 
 
80 LAW OF CHARITABLE DONATIONS. 
 
 sonal estate, to such corporation, subject to the like qualifi- 
 cation. But in each case there must be a delivery and some 
 act of acceptance on the part of the corporation, for one 
 can not thrust property on corporations, any more than on 
 any other persons, against their will; 1 at least when they 
 are sui juris. It would, however, hardly seem to be de- 
 sirable for the trustees of a charitable corporation to refuse 
 an unrestricted or absolute donation, if the corporation 
 clearly had capacity to take and hold the same, and the 
 purposes of such corporation would be promoted thereby. 
 And as acceptance is usually presumed where the dona- 
 tion is highly beneficial, it is probable that the burden of 
 proving a declination would rest, in such a case, upon the 
 trustees of a charitable or even a religious corporation. 
 But donors to charity usually prefer posthumous gifts, or 
 that their donations should take effect after their death, by 
 means of a last will and testament. 
 
 The power of a corporation to acquire lands by will has 
 always been affected by the Statutes relating to Wills. 2 In 
 one case, however, it is said that at common law a corpora- 
 tion may take by devise. 3 This statement must refer to 
 the very early common law, for after the perfection of the 
 feudal system in England, no person could acquire lands 
 by will until after the Statute of Wills which expressly 
 excepted corporations. 4 Nor for a long time could a cor- 
 poration be seised to a use. 5 In the first Statute of Wills, 
 enacted in New York, the proviso contained in the English 
 Statute of Wills was retained, and bodies politic and cor- 
 porate could not take by devise. 6 This exception was re- 
 tained in the Revision of 1813, 1 and thence passed into the 
 
 1 Grai- v. Barton, 55 N. Y., 68, 72 ; Brackett v. Barney, 28 N. Y., 333, 
 340; Kent's Comm., II., 438 ; Ridden v. Thrall, 125 N. Y., 572. 
 
 2 Jackson ex dem. v. Hammond, 2 Cai. Cas., 337; McCartee v. Orphan 
 Asy. So., g Cow., 437, 518 ; Yates v. Yates, 9 Barb., at p. 343. 
 
 8 In the Matter of McGraw, in N. Y., 66, 84. 
 
 4 Supra, p. 30 ; Downing v. Marshall. 23 N. Y., at p. 384. 
 
 5 Supra, p. 24. 
 
 6 C. 47, Laws of 1787 ; 2 J. & V., 93 ; MeCartee v. Orphan Asylum So., 6 
 Cow., 437, 518 ; Jackson ex dem. v. Hammond, 2 Cai. Cas., 337 ; Downing*. 
 Marshall, 23 N. Y. , 366, 384. 
 
 ' 1 R. L, 364. 
 
LAW OF CHARITABLE DONATIONS. 8 1 
 
 Revised Statutes of 1829, with a variance of phrase 
 amounting to a prohibition i 1 " but no devise to a corpo- 
 ration shall be valid, unless such corporation be expressly 
 authorized by its charter or by statute to take by de- 
 vise." 2 Thus, the power of a corporation in New York to 
 take by devise now depends wholly on its charter, or on a 
 statute, and if it thus lacks capacity the devise is void, and 
 the land goes to the heir as undevised, or to the residuary 
 devisee. 3 This is a different construction from that ac- 
 corded to the English Statutes of Mortmain which prohib- 
 ited the holding and not the taking of land. 4 In New York, 
 the restraint goes as well to the taking as to the holding 
 of lands. 5 The restraints upon the capacity of certain cor- 
 porations, imposed by the acts of 1848 and i860 and other 
 acts to take by devise or will, have been noticed above. 6 
 
 It does not now make any difference that the devise to a 
 corporation is for charity, 7 although formerly a devise to 
 a corporation, if for charity, was good, 8 contrary to the 
 general rule of law. 9 The statute prohibiting a corpora- 
 tion to take by devise includes trusts as well as legal estates 
 in lands, and prohibits their receipt of the rents during the 
 trust term 10 But a power to sell the lands and pay over 
 the proceeds to a corporation does not fall within the pro- 
 hibition of the statute. It is not a taking by devise. 11 
 
 I Downing ». Marshall, 23 N. Y., at p. 386. 
 
 " 2 R. S., 57, sec. 3; Matter of McGraw, in N. Y., 66, 84; King v. Rundle, 
 15 Barb., at p. 149 ; Yates v. Yates, 9 Barb., at p. 343. 
 
 8 Levy «. Levy, 33 N. Y., at p. 124 ; Downing ». Marshall, 23 N. Y., at p. 
 386; Chamberlain v. Chamberlain, 43 N. Y., 424; Matter of McGraw, in 
 N. Y., 66, 94, 108 ; People v. Powers, 147 N. Y., at p. 109 ; Riker v. Leo, 115 
 N. Y., at p. 102. 
 
 4 Shelford on Mortmain, 8 ; cf. as " to taking and spending,'' and not hold- 
 ing, Bettss. Betts, 4 Abb. N. C, 317, 403. 
 
 6 Matter of McGraw, in N. Y., 66, 108 ; King fl. Rundle, 15 Barb., at p. 
 150. 
 
 8 Supra, p. 75. 
 
 7 McCartee B. Orphan Asylum So., 9 Cow., 437; Downing v. Marshall, 23 
 N. Y., 366, 385; Levy v. Levy, 33 N. Y., 97; Bascom v, Albertson, 34 N. Y., 
 584; Holland v. Alcock, 108 N. Y., 312. 
 
 8 Supra, p. 37. 
 
 9 Supra, p. 21. 
 
 10 Downing v. Marshall, 23 N. Y., 366, 383 et seg. 
 
 II Downing v. Marshall, 23 N. Y., 388, 391 et seg. 
 
82 LAW OF CHARITABLE DONATIONS. 
 
 It is, however, true that at common law there was no re- 
 striction upon the power of a corporation to acquire per- 
 sonal, or movable, property by bequest under a last will 
 and testament — the disability related wholly to land. 1 The 
 same construction was accorded to the first Statute of 
 Wills in New York, and subsequently to the Revised 
 Statutes relating to Wills. 3 But, as at the present day a 
 corporation, charitable or otherwise, has expressly no 
 power to take or to hold personal or immovable property 
 in excess of the amount limited by its charter: 3 the re- 
 straint extends to the capacity of a charitable corporation 
 to take personal property by bequest or under a last will 
 and testament. 4 The restraints upon the capacity of cer- 
 tain corporations to take by bequest, contained in the acts 
 of 1848 and i860, have been mentioned. 5 
 
 In determining the capacity of a corporation of this 
 State to take and hold property, real or personal, its debts 
 must be deducted from its assets. 6 The limit is said to be 
 fixed by the statute in force at the time of vesting, 1 and 
 not by any subsequent legislation. This would seem to 
 concur with the decision in the case of Cornell University, 
 where a devise or bequest to a corporation lacking capacity 
 is distinctly said to be void, 8 although it was strenuously 
 contended there that the disability went only to the hold- 
 ing, and that the bequest was not void. This decision is 
 in conformity with those which hold that the policy of the 
 acts is to be found in the protection of the family and not 
 in that which animated the enactment of the Plantagenet 
 statutes directed against mortmain. 9 
 
 1 Grant on Corporations, 98 and supra, p. 27. 
 
 2 Sherwood 11. American Bible So., 4 Abb. Ct. Appeal Decis., 227. 
 ' iR. S., 599, sec. 1; sec. 3. 
 
 4 Betts v. Betts, 4 Abb. N. C, 317, 396; Wetmore v. Parker, 52 N. Y., 450, 
 458; Matter of McGraw, in N. Y., 66, 108; Birds. Merklee, 144 N. Y., 544, 551. 
 6 Supra. 
 
 6 Chamberlain v. Chamberlain, 43 N. Y., 424, 439; Wetmore 0. Parker, 52 
 N. Y., 450; Hollis v. The Drew Theological Sem., 95 N. Y., 166; Chaplin 
 Susp. Power Alienation, sections 461, 463. 
 
 7 Betts v. Betts, 4 Abb. N. C, 317 ; cf. Rich v. Tiffany, 2 App. Div., 25. 
 
 8 Matter of McGraw, in N. Y., 66, 94. 
 
 8 Stephenson ». Short and the Ontario Orphan Asylum, 92 N. Y., 433; 
 Hollis v. The Drew Theological Seminary, 95 N. Y., 166, 175; supra, p. 26. 
 
LAW OF CHARITABLE DONATIONS. 83 
 
 It is to be observed that the amount or value of the 
 property held by the corporation is a subject of judicial 
 inquiry when such amount is put at issue, 1 by reason of 
 the acts in question. Under the Act of i860, the bequest 
 or devise is valid to the extent of one-half of the testator's 
 estate and no more. As to the excess over this one-half 
 there is an intestacy unless there is some valid limitation 
 over in the event of any failure of such devise or bequest. 2 
 
 When it is desired to limit, devise or bequeath prop- 
 erty to a charitable or religious corporation having 
 capacity to take and hold, it is certainly best to rely 
 on the chartered purpose of the corporation and make 
 the donation absolute in terms ; s otherwise questions 
 of doubt and difficulty may arise as to the power of the 
 corporation to take in trust or concerning the cor- 
 respondence of the trust with the requirements of the Re- 
 vised Statutes relating to uses and trusts. 4 But the gift 
 may be subject to a lawful condition. 5 
 
 The new policy in this State, or rather the revival of a 
 very ancient policy, 6 does not destroy indefinite permanent 
 charitable donations, but it vests their execution or fulfill- 
 ment of the use in a corporation whose powers, duties 
 and existence are determined by the State and not by the 
 donor. The real beneficiaries of a fund held by a charit- 
 able or religious corporation remain as uncertain as ever, 
 while the implication of a trust or use which attaches to 
 all gifts to charity is not effaced because the donation is 
 absolute. The State supplies the trust features by laws 
 relating to the administration of corporate property. 
 
 'Chamberlain v. Chamberlain, 43 N. Y., 424, 439; Hollis v. The Drew 
 Theological Seminary, 95 N. Y., 166; Betts «. Betts, 4 Abb, N. C, 317; Mat- 
 ter of McGraw, in N, Y., 66; Redfield on Surrogate's Practice, 231, 232. 
 
 2 Kearney v. Miss. Society, 10 Abb. N. C, 274; cf. Matter of Moderno, 5 
 Dem., 288. 
 
 "Yates v. Yates, 9 Barb., at p. 343; Bascom ». Albertson, 34 N. 
 Y., at p. 620. 
 
 4 Wetmore v. Parker, 52 N. Y., 450, 458 ; Fosdick v. Town of Hempstead, 
 T25 N. Y., 581, 595 ; Iseman «. Myres, 26 Hun, 651. 
 
 6 Currin v. Fanning, 13 Hun., 458 ; Matter of Howe, 1 Pai., 214 ; Livings- 
 ton v. Gordon, 7 Abb. N. C, 53. 
 
 6 Supra, p. 15 et seq. 
 
84 LAW OF CHARITABLE DONATIONS. 
 
 Donations not in trust are of necessity unqualified and 
 absolute. Absolute charitable donations can be made only 
 to charitable corporations, 1 for if made to private persons 
 such donations are beneficial and not charitable. 2 A gift 
 not in trust to a charitable corporation is none the less 
 absolute because such corporation is engaged in the busi- 
 ness of charity and is bound to distribute the income of 
 the donation in perpetuity to the use, or for the benefit, of 
 the public or some portion of it. 8 Yet such donations 
 ordinarily fall under the law of charities, because the con- 
 stitution or charter of the juristic person or corporation 
 limits its functions to charitable undertakings. But the 
 trust features and the perpetuity incidental in such cases 
 are dehors the terms of the donation ; 4 they affect the hold- 
 ing and not the taking, and are raised by the donee's rela- 
 tions to the State and not by the settler or donor. While 
 the donor may contemplate both a perpetuity and a trust, 
 he does not impose them. In this State he is not the 
 visitor of the corporation and retains no control. He has 
 nothing to do with the execution of its chartered obliga- 
 tion by the corporation : his gift is none the less absolute, 
 because the corporate donee has, as it were, promised the 
 State perpetually to use all its property only in the under- 
 takings for which it was created. Nor is the donation 
 rendered the less absolute, or converted into a trust, 
 because the donor specifies that the donation shall be em- 
 ployed for one of the uses or purposes for which the cor- 
 poration was chartered. 5 
 
 It has been already pointed out that modern terminology 
 no longer confines the term " gift" {donatio) to the creation of 
 estates tail, or to gifts of chattels, and that it has acquired 
 
 1 Supra, p. 69. 
 
 2 Supra, p. 70 ; cf. Lewin on Trusts, 171 et seq. (1st edit.). 
 
 8 Tyssen, Char. Bequests, 1 ; In the Matter of the First Presbyterian 
 Society of Buffalo, 106 N. Y., 251. 
 
 4 Wetmore r>. Parker, 52 N. Y., at p. 458 ; Bird v. Merklee, 144 N. 
 Y., 544. 550 ; In the Matter of the First Presbyterian Church of Buffalo, 106 
 N. Y., at p. 254. 
 
 6 Bird v. Merklee, 144 N. Y., 544, 550 ; cf. Matter of Ingerscll, 59 Hun, 
 571 ; 131 N. Y., 573 ; infra. Chap. V. 
 
LAW OF CHARITABLE DONATIONS. 85 
 
 a larger significance in modern law. 1 The term " gift " or 
 donation is therefore used throughout this essay in its 
 modern sense, by authority, as the equivalent of a volun- 
 tary transfer made without other consideration than 
 its end, which since the abolition of charitable uses 
 creates no sanction or even presumption favorable to 
 the donee. 2 
 
 Gifts are commonly classified as gifts inter vivos and 
 gifts causa mortis. " Gifts inter vivos have no reference to 
 the future, and go into immediate and absolute effect. 
 Delivery is essential, both at law and in equity, to the 
 validity of a parol gift of a chattel or chose in action ; and 
 it is the same whether it be a gift inter vivos or causa 
 mortis. Without actual delivery, the title does not pass." 3 
 Gifts causa mortis are conditional, to take effect after death, 
 and are made in peril of death and by reason of its near 
 approach. If the donor recover, the gift is void. 4 It is 
 obvious that the principles of gifts inter vivos and causa 
 mortis must apply to donations to a corporation existing or 
 in esse. It has been said that delivery or assent is essential 
 to a perfect gift inter vivos. 5 Now, in the case of a dying 
 person, a formal assent by a charitable corporation might 
 be difficult to procure. But until procured, the donor has 
 a locus pcenitenticz, 6 and if death intervene before assent or 
 delivery, the gift fails. For this reason various devices 
 have been resorted to in many cases, but the prudent 
 adviser will always exercise great care in regard to such 
 dispositions, while the lofty one will refuse to aid in cir- 
 cumventing the express policy of the State, however much 
 he may disagree with its wisdom. 
 
 An absolute donation to a corporation — that is, a gift 
 without qualification — may be effectuated either by means 
 of a last will or testament 7 (provided the corporation has 
 
 1 Supra, p. 3. 
 
 2 Supra, sedcf. Edson 8. Bartow, N. Y. Law Journal, XIV., 811. 
 " Kent's Comm., II., 438. 
 
 4 Kent's Comm., II., 444 ; Ridden v. Thrall, 125 N. Y., 572. 
 6 Supra, p. 80. 
 
 6 Kent's Comm., II., 438. 
 
 7 I R. S., 599 ; supra, pp. 80, 81 ; The N. Y. Inst, for the Blind v. How's 
 Exrs., 10 N. Y., 84. 
 
86 LAW OF CHARITABLE DONATIONS. 
 
 capacity to take and to hold the devise, or bequest, as- 
 stated in chapter III.), 1 or if it is to take effect before the 
 donor's death, by any mode appropriate to the transfer of 
 title between the living. 3 But in any case, the corporate 
 donee must have capacity to take and hold the property, 
 as the gift is, in this State, not valid even inter sese, or as 
 against every one but the sovereign. 3 The statutory dis- 
 ability is absolute and prohibitory. 4 But the restrictions 
 imposed on donations of persons approaching death, by 
 section 6, of chapter 319, Laws of i848, B and by chapter 
 360 of the Laws of i860,' 6 apply only to wills ; and there is 
 no special restriction upon a donation effected by other 
 modes of transfer, even if such donor is in articulo mortis; 
 provided he retains his faculties, or is compos mentis and 
 under no personal restraint. 1 But under such circumstances 
 courts of justice will inquire carefully regarding the sur- 
 roundings and the capacity of the donor. 8 
 
 It is not always easy to determine when a bequest is 
 absolute or beneficial and when in trust. 9 In " Matter of 
 Ingersoll," the testatrix authorized her executor to expend 
 through the agency of the Baptist Church and its societies 
 $1,000, and, in order that he might do so without hindrance, 
 bequeathed that sum to him and his assigns forever for 
 the uses and purposes stated. The Supreme Court held 
 that the bequest was an absolute gift. 10 But the Court 
 of Appeals reversed the decision, concurring in the dis- 
 senting opinion below. 11 
 
 A corporate donee of this State must always have ca- 
 
 I Supra, pp. 48, 8i, et infra, chap. V. 
 8 Supra, pp. 76, 7q. 
 
 3 Supra, pp. 74, 75, 78, 80. 
 
 4 Supra, pp. 75, 76 
 
 5 Supra, p. 75. 
 
 6 Supra, p. 74. 
 
 ' Cf. Matter of Will of O'Hara, pp. 420, 421. 
 
 8 Ibid., supra. 
 
 9 Foose ». Whitmore, 82 N. Y., 405 ; Matter of Look, 26 State Repr., 745;. 
 Fosdick v. Town of Hempstead, 125 N. Y., at p. 595 ; Bird 11. Merklee, 
 144 N. Y., 554; infra, chap. V. 
 
 10 Matter of Ingersoll, 59 Hun, 571 ; cf. Rushmore <r>. Rushmore, 35 State 
 Repr., 845. 
 
 II 131 N. Y., 573. 
 
LAW OF CHARITABLE DONATIONS. 87 
 
 pacity to take and to hold the property or thing donated ; l 
 but having such capacity, a juristic person may take such 
 future legal estates in lands as a natural person may take by 
 the existing law and none other. 2 A donation of land to a 
 corporation aggregate, having capacity to take and hold 
 lands, carries a fee simple in New York without the word 
 "successors." 3 Such a corporation may also take a future 
 estate in lands by way of remainder, provided such re- 
 mainder vest in possession within the time prescribed by 
 the Revised Statutes fcr the vesting of estates. 4 A vested 
 remainder to a corporation may be limited on lives in being 
 at the creation of the estate. 5 A contingent remainder, as it 
 now suspends the power of alienation, must vest in posses- 
 sion in the corporation at the expiration of two lives in being 
 at the creation of the estate. 6 If a remainder to a charita- 
 ble corporation is limited upon a trust estate, the trust 
 must terminate at the expiration of two lives in being at 
 the creation of the estate and the remainder vest in pos- 
 session, or it is void. 7 
 
 A corporation having the proper capacity to take and 
 to hold personal property 8 may of course take as residu- 
 ary legatee. 9 It is also capable of taking a future legal 
 interest in personal estate, in conformity with the law 
 limiting future and contingent interests in personal prop- 
 erty. 10 The future interest may be limited to take effect 
 
 1 Supra, pp. 81, 82. 
 
 8 Chaplin, Suspens. Power Alienation, sec. 450, note 5. 
 
 8 Bla. Comm., II., 2og ; Cruise, Tit. 32, c. 21, sec. 9. 
 
 4 Leonard 0. Burr, 18 N. Y., 96; Burrell v. Boardman, 43 N. Y. , 254; Tilden 
 v. Green, 130 N. Y., 29; Rose ». Rose, 4 Abb. Ct. App. Decis., 108; Shipman 
 v. Rollins, 98 N. Y., at p. 328 ; Booth v. Baptist Church, 126 N, Y., 215, 241. 
 
 " 1 R. S., 723, sec. 17. 
 
 8 1 R. S., 723, sees. 14, 15 ; Leonardo. Burr, 18 N. Y., at p. 107 ; Booth ». 
 Baptist Church, 126 N. Y., at pp. 236, 237. 
 
 7 1 R. S., 730, sec. 64 ; Leonard v. Burr, 18 N. Y., at p. 107 ; 1 R. S., 723, 
 sec. 15 ; Adams v. Perry, 43 N. Y., 487; Cottman v. Grace, 112 N. Y., at p. 
 306 ; Booth v. Baptist Church, 126 N. Y., 215. 
 
 8 Infra, Chap. V.; Rainey v. Laing, 58 Barb., 453. 
 
 9 Burrell v. Boardman, 43 N. Y., 254; Cruikshank v. Home for the Friend- 
 less, H3N.Y..337, 35i;Tildent). Greene, 130N. Y., 29; Birdfl. Merklee, 144 
 N. Y., 544 ; Matter of Teed, 59 Hun, 63; Riker v. Cornwall, 113 N. Y., 115. 
 
 10 1 R. S., 773, sections 1, 2; Inglis v. Sailors' Snug Harbor, 3 Peters, 99. 
 
88 LAW OF CHARITABLE DONATIONS. 
 
 after a trust for two lives in being at the date of the in- 
 strument containing the limitation , or if such instrument 
 be a will after two lives in being at the death of the tes- 
 tator. 1 In this State a remainder may be limited upon a 
 bequest of personal property or money. 3 When a life 
 estate is bequeathed in money with remainder over, the 
 primary legatee is entitled to the income only, and the 
 principal subject to the life estate belongs to the remainder- 
 man. The executor may pay over the principal to the 
 life tenant upon receiving security for the repayment of 
 the principal at death, 3 or may confide the principal to the 
 life tenant or primary legatee without security, in which 
 case the recipient becomes trustee of the principal for the 
 remainderman. 4 
 
 The term " executory interest " was formerly used to 
 denote those interests which were not limited by way of 
 remainder. 5 At an early period in the development of the 
 common law, future estates in personal property were not 
 permitted ; then a distinction was raised between the gift 
 of the thing itself, and a bequest for the use only for life 
 (Plowd., 521 : Cro. Jac, 346), but this distinction was finally 
 laid in Hyde v. Parrat (1 P. Wms., 2), and for more than a 
 century and a half executory bequests of personal property 
 have been permitted by the law Of England, under the 
 same rules of limitation as apply to executory devises of 
 land. 6 It is well settled, in this State, that a limitation 
 over after a devise or bequest, in fee or where the primary 
 devisee has the absolute power of disposition is void. 7 
 But if the jus disponendi of the primary devisee is partial, 
 or qualified, then the limitation over is not void, 8 even 
 though its enjoyment in possession may be defeated 
 
 1 1 R. S., 773, sec. 1. 
 
 2 Norris v. Beyea, 13 N. Y., 272. 
 
 3 Tyson*. Blake, 22 N. Y., 558. 
 
 4 Smith «. Van Ostrand, 64 N. Y. 278. 
 
 B Smith, Comp. of Law of Real and Pers. Property, 241. 
 
 6 Van Home v. Campbell, 100 N. Y., at p. 305. 
 
 7 Jackson v. Robbins, 16 Johns., 537; Van Home v. Campbell, 100 N. Y., 
 287; Crozier v. Bray, 120, N. Y., at p. 373. 
 
 8 Matter of Cager, in N. Y., 343, 349; Crozier v. Bray, 120 N. Y., 366, 
 375- 
 
LAW OF CHARITABLE DONATIONS. 89 
 
 by the first taker. 1 In other words, the primary devise 
 and the limitation over may be inconsistent, but they 
 must not be wholly repugnant. By the Revised Statutes, 
 it will be remembered, it is provided, that no future estate, 
 otherwise valid, shall be void on the ground of the prob- 
 ability or improbability of the contingency on which it is 
 limited to take effect. 2 This rule applies to future or con- 
 tingent interests in personalty 3 
 
 A devise or bequest to a corporation to be formed or 
 created in this State, after the death of the testator, is also 
 valid, provided the estate limued, or the bequests, vest or 
 take effect in possession, within the time prescribed by the 
 Revised Statutes. 4 Lord Chief Justice Wilmbt held where 
 lands were devised to purchase a piece of ground and erect 
 a college, and the will contained a direction to obtain a 
 charter — that the devise was good on the same principle 
 as a devise for the benefit of an unborn child. 5 This prin- 
 ciple was approved in Burrill v. Boardman, 6 and there 
 would seem to be no ground to question the validity of 
 such a devise or bequest at the present day in this State ; 
 provided the estate vest in possession in the corporation, 
 or the bequest take effect within the time allowed for the 
 vesting of future estates. 7 The Revised Statutes provide 
 that no future estate otherwise valid shall be void on the 
 ground of the probability or improbability of the contin- 
 gency on which it is limited to take effect. 8 While at 
 common law a limitation of a legal estate to a corporation 
 
 1 Leggett «. Frith, 132 N. Y., 7. 
 
 » 1 R. S., 724, sec. 26. 
 
 8 1 R. S., 773; sec. 2. 
 
 * Cruikshank v. Home for the Friendless, 113 N. Y., 337, 350; Adams v. 
 Perry, 43 N. Y., 487; People v. Simonson, 126 N. Y., 299; Booth*. Baptist 
 Church, 126 N. Y., 215; Shipman v. Fanshaw, 15 Abb., N. C. , 288; Jones v. 
 M. E. Sunday-School, 4 Dem., 271; Kearney t>. Miss. So., 10 Abb. N. C, 
 274 ; Shipman v. Rollins, 9S N. Y., 311. 
 
 6 Wilmot's Opins., p. 16. 
 
 6 43 N. Y., at p. 260; Inglis v. Trustees of Sailors' Snug Harb., 3 Peters, 
 99; Shipman v. Rollins, 98 N. Y., at p. 328. 
 
 7 Tilden v. Green, 130 N. Y. , 29; Cottman v. Grace, 112 N. Y., at p. 306; 
 Shipman v. Rollins, 98 N. Y., 311, 328; Booth v. Baptist Church, 126 N. Y,, 
 215; Chaplin Suspens. Power Alienation, sees. 453, 454, 455, 456. 
 
 8 I R. S., p. 724, sec. 26. 
 
90 LAW OF CHARITABLE DONATIONS. 
 
 not. in esse, was void as potentia remota, 1 the section of the 
 Revised Statutes just quoted permits all sorts of contin- 
 gencies, provided they do not contravene our statute 
 against perpetuities. Consequently, a limitation to a cor- 
 poration to be formed is valid in this State, provided the 
 estate vest as provided in the Revised Statutes. 2 
 
 A devise or bequest to a corporation, or juristic person, 
 having capacity to take, 3 may be given in the same man- 
 ner as to a natural person, either by name or by descrip- 
 tion. If by the former, the legatee " need not be called 
 idem syllabis seu verbis. It is sufficient if it be idem re et 
 sensu." 4 A bequest to the trustees of a corporation is a 
 bequest to the corporation itself. 5 
 
 At the present day a devise to an unincorporated asso- 
 ciation of this State is void. 6 So is" a bequest to such an as- 
 sociation ; 7 at least, independently of the late " Act to 
 Regulate Gifts for Charitable Purposes," 8 which, by its 
 terms, would seem to be confined to cases where a trust or 
 charitable use is created, and, therefore, not to apply to 
 the present law of charitable bequests. At common law, 
 charitable gifts and bequests in trust and for the use of unin- 
 corporated associations were valid. Even devises or fe- 
 offments to such associations were valid, 9 and they were 
 certainly good after the Statute of Charitable Uses. 10 It 
 has been stated, at some length, that at first, in this State, 
 
 1 I Inst. 25, b, 184 a; 2 Reports, 51 a. 
 
 2 Lougheed ». The Dykeman's Baptist Church, 129 N. Y., 211, 215. 
 8 Infra, chap. V. 
 
 4 The N. Y. Inst, for the Blind v. How's Exrs., 10 N. Y., 84, 89; Kimball v. 
 Chappel, 27 Abb., N. C, 437; Matter of Wehrhane, 40 Hun., 542. 
 
 6 The N. Y. Inst, for the Blind v. How's Exrs., 10 N. Y., at p. 92; infra, 
 chap. V. 
 
 * White v. Howard, 46 N. Y., 144; Marx v. McGlynn, 88 N. Y., 357; cf. 
 note, p. 481, 20 Abb., N. C. ; Downing?). Marshall, 23 N. Y., at p. 382. 
 
 7 Owens v. The Missionary So. of the M. E. Church, 14 N. Y., 380, 385; 
 Sherwood v. Amer. Bible Society, 1 Keyes, 561, 567; Carpenter «. Historical 
 Society, 2 Dem., 574; Downing v. Marshall, 23 N. Y., at p. 382; Betts 0. 
 Betts, 4 Abb., N. C, 317, 404. 
 
 8 C. 701, Laws of 1893. 
 
 9 Supra, pp. 15, 23 ; Wright 0. Trustees of Meth. Epis. Church, 1 Hoffman, 
 at p. 249. 
 
 10 Supra, p. 36. 
 
LAW OF CHARITABLE DONATIONS. 9 1 
 
 such bequests were regarded as good by the Chancellors, 
 but that after the establishment of the Court of Appeals 
 and the abolition of the Court of Chancery, it was finally 
 established that the English law of charitable uses and 
 trusts was abrogated and a new system of charities erected 
 by legislative action. 1 While every legacy of chattels has 
 all the elements of a trust, because an executor is inter- 
 posed and charged with distribution, yet in the eye of the 
 law, no trust exists unless the executor has a discretion to 
 give or withhold. The historical and scientific jurists see 
 a common origin in uses and executorship, and, indeed, 
 trace trustees and executors to the same source, the Salman 
 of the early German law. 2 As the recent law regulating 
 " Gifts for Charitable Purposes," seems wholly confined to 
 trusts, it can hardly aid a bequest to an unincorporated 
 association, as such bequests were clearly void by the law 
 of New York when the act of 1893 was passed. 
 
 A bequest to a priest or to an ecclesiastical corporation 
 having capacity to take, if absolute in terms, ought not to 
 be invalidated by the expression of a wish that the dona- 
 tion may be expended or employed in masses for the dead, 
 or in some religious observance. 3 But the tendency in this 
 State has been to raise a trust by reason of the wish or di- 
 rection of a donor that the gift should be employed other- 
 wise than to the donee's use. 4 This would undoubtedly 
 be accurate reasoning if the request were such as to vest a 
 beneficial interest in a person or even in a class other than 
 the donee. But as a matter of fact, where the directed ex- 
 penditure is pro anima, or for the benefit of no other person 
 than the donor, it would seem academic or technical to 
 raise a trust for an indefinite third person or class, and 
 then to declare such a trust illegal. The fact is the dona- 
 
 1 Supra, p. 66. 
 
 8 Mr. Justice Holmes, Law Quar. Rev., I., 162 seq. 
 
 " Cf. Matter of Hagenmeyer's Will, 12 Abb. N. C, 432; Vandeveer «. 
 McKane, 24 Abb. N. C, 105, 107 ; Matter of Black, 1 Connoly, 477, s. c. 
 24 State Rep., 341. 
 
 * Vide infra p. in, and also Gilman v. McArdle, 99 N. Y., 451 ; Holland v. 
 Alcock, 108 N. Y., 312; O'Connor v. Gifford, 117 N. Y., 275; Peoples. Powers, 
 147 N. Y. , 104. 
 
92 LAW OF CHARITABLE DONATIONS. 
 
 tion is outside, of the entire range and scope of ordinary- 
 trusts. Yet it is not easy to combat the logic which holds 
 that a gift must be either absolute or in trust. 1 The trust 
 feature might, however, in most cases have been entirely 
 ignored in this class of donations and the bequests held 
 absolute. 2 The priest or church is not in fact agent, 
 trustee or donee ; the gift, in the donor's intention, is in 
 reality to God, and the law which meets the case is as old 
 as Christendom. 3 But as gifts of this character are now 
 clearly declared to be trusts in this State, 4 the act regulat- 
 ing charitable gifts would 5 seem to preclude their failing 
 in the future because the beneficiary is indefinite or un- 
 certain. A bequest to a member of a religious order, who 
 has taken vows of poverty and the like, is valid in this 
 State, as he is not civiliter mortuus. 6 
 
 A foreign corporation, which by the laws of its own 
 State has capacity to take, may take personal property by 
 bequest under a will probated here, there being no law of 
 this State prohibiting gifts to foreign corporations. 7 While 
 the courts of this State will not administer a foreign 
 charity, they will direct money devoted to it to be paid 
 over to the proper parties, leaving it to the courts of the 
 State where the charity is to be established to provide for 
 its due administration. 8 In such a case the courts of this 
 State will not interpose its laws to arrest the disposition 
 made by the testator ; but it seems will simply inquire : 
 first, as to whether all the forms and requisites necessary 
 to constitute a valid testamentary instrument have been 
 complied with, and second, whether the foreign trustees 
 
 1 All trusts are subject in this State to the rules of the R. S., which are 
 inflexible. 
 
 2 Matter of Hagenmeyer's Will, 12 Abb. N. C, 432. 
 8 Supra, pp. 15-17. 
 
 4 Infra, chap. V. 
 
 6 C. 701, Laws of 1893. 
 
 " Lynch®. Loretta, 4 Dem., 312; cf. Avery®. Everett, 110N. Y., 317, on 
 the general law of civil death. 
 
 7 Manice v. Manice, 43 N. Y., 303, 387, 388; Matter of Huss, 126 N. Y., 
 
 537- ' 
 
 8 Chamberlain «. Chamberlain, 43 N. Y., 424; Parsons®. Lyman, 20 N. Y., 
 103. 
 
LAW OF CHARITABLE DONATIONS. 93 
 
 are competent to take the gift for the purposes expressed, 
 and to administer the trust under the law of the country 
 where the gift is to take effect. 1 So a foreign municipality 
 may take if it has power to take by the laws 2 of the legatee's 
 domicile. 
 
 A devise to the Government of the United States for the 
 purposes of charity is void. 8 The word " person " in the 
 Statute of Wills of the State of New York, authorizing 
 devises to be made to any person capable by law of holding 
 real estate, 4 does not include a State or a Nation. The 
 testamentary capacity given by said statute extends only 
 to devises to natural persons, and to such corporations as 
 are authorized by the law of the State of New York to 
 take by devise. 
 
 Personal property is subject to the law of the owner's 
 domicile, both in respect to a disposition of it by act inter 
 vivos, and to its transmission by will or by succession upon 
 the owner dying intestate. 5 A leasehold estate of lands 
 situate here, owned by a resident of another State, will be 
 considered as personal estate and as such, as to its trans- 
 mission by last will and testament, will be governed by the 
 law which governs the person of its owner. 6 The validity 
 of a devise of lands in this State and all questions relating to 
 the title stand on another footing and are determined by 
 the laws of this State, even if the devise is for a charitable 
 use, to be executed in a foreign State ; 7 but if by the terms 
 of the will the land be equitably converted into money a 
 gift of the latter is valid. 8 
 
 It is no part of the policy of the courts of this State to 
 
 1 Hope v. Brewer, 136 N. Y., 136. 
 
 2 Matter of Huss, 126 N. Y., 537. 
 
 8 In the Matter of the Last Will of Charles Fox, deceased, 52 N. Y., 350; 
 Levy v. Levy, 33 N. Y.. at p. 97; U. S. ■». Fox, 94 U. S., 315; cf. Matter of 
 Will of Merriam, 136 N. Y., 58. 
 
 * 2 R. S., 57, sec. 3. 
 
 e Cross*. U. S. Trust Co., 131 N. Y., 330. 
 
 6 Despard v. Churchill, 53 N. Y., 192. 
 
 7 Draper v. Harvard College, 57 How. Pr., 269; White v. Howard, 46 N. 
 
 Y., 144, 159- 
 
 8 White v. Howard, 46 N. Y., 144 ; Downing v. Marshall, 23 N. Y., pp. 
 388, 391. 
 
94 LAW OF CHARITABLE DONATIONS. 
 
 interdict gifts in mortmain or perpetuities in other States. 
 Each State must determine its own policy in that regard. 1 
 So although unincorporated associations may not take a 
 charitable bequest under the laws of this State, an unin- 
 corporated association of another State may take a bequest 
 here, if the law of its domicile permit it to take and re- 
 ceive property by bequest. 2 
 
 1 Chamberlain v. Chamberlain, 43 N. Y. , 424 ; Dammert v. Osborn, 140 N. 
 Y., at p. 40. 
 8 Matter of Bullock, 6 Dem., 335. 
 
CHAPTER V. 
 
 CHARITABLE USES AND TRUSTS IN NEW YORK. 
 
 Charitable uses and trusts being finally held to be abro- 
 gated by the provisions of the Revised Statutes, and the 
 universal application of the article on uses and trusts, 1 
 it remains to enquire how far the law of this State 
 now sanctions uses and trusts of a charitable, religious, 
 benevolent, or public character. The article on uses and 
 trusts abolishes all express trusts in lands excepting those 
 categorically saved. 2 As the express trusts thus saved 
 can rarely be appropriate for charitable limitations, most 
 public or charitable trusts in lands are valid only as trust 
 powers. 3 The enumeration in the Revised Statutes of the 
 instances where express trusts may be created and the 
 legal title taken by the trustee has, however, not materially 
 abridged the jus disponendi, or deprived property owners 
 of the power of impressing upon their real property other 
 limitations having the general characteristics of a trust. 
 But such trusts survive as powers in trust, unless they 
 contravene the general policy of the law or the rule against 
 perpetuities. 4 Where the trust is valid as a power, the 
 lands to which the trust relates remain in, or descend to 
 the person otherwise entitled, subject to the execution of 
 the trust as a power. 5 
 
 1 Supra, Chapters III., IV. 
 
 "iR S., 727, sec. 45 ; ibid, 728, sec. 55 ; Willard, Real Est. andConv., 240. 
 
 8 Chaplin, Suspens. Power Alienation, Sec. 450 ; Downing v. Marshall, 23 
 N. Y., 366, 380; Adams®. Perry. 43 N. Y., 487 ; Cottman ■». Grace, 112 N. 
 Y., 299, 306, 307 ; Erwin v Hurd, 13 Abb. N. C, 91. 
 
 4 Farmers' Loan and Trust Co. v. Carroll, 5 Barb., 613, 652; Selden v. 
 Vermilyea, 3 N. Y. , 525, 536 ; Downing 0. Marshall, 23 N. Y., 366, 377; 
 Belmont v. O'Brien, 12 N. Y., 394, 403; Gilman v. Reddington, 24 N. Y., 9, 
 15 ; Delaney v. McCormack, 88 N. Y., 174, 181 ; Holly v. Hirsch, 135 N. Y., 
 590 ; Booth v, Baptist Church, 126 N. Y., at p. 239. 
 
 6 R. S., 729, sec. 59 ; Booth v. Baptist Church, 126 N. Y., 215, 239. 
 
 95 
 
g6 LAW OF CHARITABLE DONATIONS. 
 
 It is not to be presumed that the recent act of 1893 1 
 relative to gifts for charitable purposes has revived all 
 charitable uses, although the language employed in 
 that statute would be susceptible of the construction, 
 that charitable uses were thitherto as completely valid 
 as at common law, excepting in the single respect reme- 
 died by the statute. In fact, " charitable uses" were abol- 
 ished by the Revised Statutes, 3 and such charitable trusts 
 as thereafter remained enforceable were ordinarily valid 
 only as powers. 3 Yet, in one sense, wherever there is 
 still a trust for the benefit of any charity there is a char- 
 itable use 4 within the meaning of the ancient law, which,, 
 after the Statute of Uses, refers to all uses not executed by 
 the statute, either as charitable uses or, if private, as trusts. 5 
 Therefore, whenever the term " charitable use " is now em- 
 ployed it still designates an unexecuted use, or a trust or 
 confidence for charity, as contradistinguished from a char- 
 itable gift not in trust. 6 
 
 There is one marked difference, at the present day in 
 New York, between express trusts in real property and 
 express trusts in personal property. Express trusts in 
 real estate are by the Article of the Revised Statutes 1 
 regulating uses and trusts in lands limited to four trust 
 purposes: (1) To sell lands for the benefit of creditors; 
 (2) To sell, mortgage or lease lands, for the benefit of 
 legatees, or for the purpose of satisfying any charge 
 thereon : (3) 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. 8 (4) To receive 
 
 1 C. 701, Laws of 1893, discussed infra. 
 s Supra, pp. 61, 62. 
 8 Infra, p. 97. 
 
 4 Owens ». The Miss. So. of M. E. Church, 14 N. Y., at p. 385 ; Ayres v. 
 The Meth. Church, 3 Sandf., at p. 375 ; People v. Powers, 83 Hun, at p. 458. 
 
 5 Supra, p. 6. 
 
 6 Owens «. The Miss. So. of M. E. Church, 14 N. Y., at p. 385 ; Bird e. 
 Merklee, 144 N. Y., 544, 550, 551 ; People v. Powers, 83 Hun, at p. 458. 
 
 7 Article second, Tit. II., Chap. I., Part II., R. S.; particularly sec. 55, 
 1 R. S., 728 ; Chaplin, Suspens. Power Alienation, sec. 450. 
 
 8 Title II. 
 
LAW OF CHARITABLE DONATIONS. 97 
 
 the rents and profits of lands, and to accumulate the same, 
 for the purposes and within the limits prescribed in the 
 first Article of this title. 1 But the enumeration of these 
 trust purposes has not abridged the rights of owners to 
 make other limitations of real property, which shall possess 
 all the general characteristics of a trust. But in all instances 
 other than the four express trust purposes specified above, 
 the trust is a power in trust, 2 provided it does not contra- 
 vene any principle of public policy, 3 create a perpetuity, 4 
 or violate equity or good morals. 5 On the other hand 
 express trusts 6 in personal property may be created for 
 any purpose which was lawful at common law or before 
 the Revised Statutes, except charity. 7 
 
 The fact that trusts in personalty may be created for 
 any equitable purpose must not mislead the conveyancer. 
 Charitable and public trusts of personalty are subject in 
 New York to all the restrictions and rules applicable to 
 non-charitable trusts of personal estate. 8 It was after the 
 Revised Statutes at first believed that charitable trusts of 
 personal estate were to some extent an exception to the 
 ordinary rules governing trusts of personal estates. 9 But 
 this conception was finally negatived and charitable trusts 
 of personal property were held to be subject to all the 
 appropriate rules of the Revised Statutes relating to 
 
 1 Title II. 
 
 * Farmers' Loan and Trust Co. «. Carroll, 5 Barb., 613, 652; Selden v. 
 Vermilyea, 3 N. Y., 525, 536 ; Downing *. Marshall, 23 N. Y., 366, 377 ; Bel- 
 mont v. O'Brien, 12 N. Y., 394, 403 ; Gilman v. Reddington, 24 N. Y., 9, 15 ; 
 Delaney v. McCormack, 88 N. Y., 174, 181. 
 
 3 Belmont ». O'Brien, 12 N. Y., p. 403 ; Tilden v. Green, 130 N. Y., 29, 54. 
 
 4 Belmont v. O'Brien, 12 N. Y., 394, 403 ; Everett v. Everett, 29 N. Y., 
 39, 78 ; Booth «. Baptist Church, 126 N. Y.. at p. 239. 
 
 5 Read «. Williams, 125 N. Y., 560, 569; Sweeney v. Warren, 127 N. Y., 426. 
 
 6 By an " express trust " is meant here one in express terms as contra- 
 distinguished from an "implied" trust ; it may be created by parol in person- 
 alty. 
 
 ' Gott v. Cook, 7 Pai., '521, 534; De Peyster v. Clendining, 8 Pai., 295, 
 305 ; Leggett v. Perkins, 2 N. Y., 297, 313 ; Everitt v. Everi.t, 29 N. Y., 39, 
 71 ; Gilman 0. McArdle, 99 N. Y., 451 ; Cochrane «. Schell, 140 N. Y., 
 
 51°, 534- 
 
 8 Williams®. Williams, 8 N. Y., 525 ; Owens ». The Miss. So. cf M. E. 
 Church, 14 N. Y., 380 ; Chaplin, Suspens. Power Alienation, sec. 450. 
 
 9 Willard, Eq. Jurisp., 586 ; et infra. 
 
98 LAW OF CHARITABLE DONATIONS. 
 
 trusts of personalty, 1 and to future or contingent inter- 
 ests in lands. 2 
 
 In respect of such trusts, the Revised Statutes provide 
 that " the absolute ownership -of personal property shall 
 not be suspended by any limitation or conditions whatever 
 for a longer period than during the continuance and until 
 the termination of not more than two lives in being at the 
 date of the instrument containing such limitation or condi- 
 tion ; or if such instrument be a will, for not more than two 
 lives in being at the death of the testator." 3 Charitable 
 trusts are within the purview of this section and such 
 trusts must not contravene this rule, or they fall. 4 How it 
 ever happens that trusts in personalty may offend against 
 the rule against perpetuities depends in New York wholly 
 on the Revised Statutes and the construction accorded to 
 them by the Judiciary. 5 
 
 Originally in the jurisprudence of this State, property 
 held in trust was not inalienable. 6 Indeed the analogies 
 between legal and equitable estates were complete, ex- 
 cepting that the wife had no dower in a husband's trust 
 estate, although 7 he had curtesy in hers. The Revised 
 Statutes first made certain trusts in lands inalienable, 8 and 
 thereby suspended the power of alienation. 9 In the instances 
 where the trust estate is by statute thus rendered inalien- 
 able, the trust must terminate at the expiration of two lives 
 in being at the creation of the estate, or it is void. 10 It was 
 
 1 Levy v. Levy, 33 N. Y., 971 ; Bascom ». Albertson, 34 N. Y., 584 ; Hoi 
 land v. Alcock, 108 N. Y., 312. 
 
 2 1 R. S., 773, sections 1, 2. 
 8 I R. S., 773, sec. 1. 
 
 4 Bascom ». Albertson, 34 N. Y., 584, 619, 620 ; Chaplin, Suspens. of Power 
 of Alienation, sec. 450. 
 
 6 See next paragraph. 
 
 B Everitt v. Everitt, 29 N. Y., at p. 90 ; cf. Ram on Wills, 6, 16 ; Lewin. 
 on Trusts, 138. 
 
 7 Before the Statute of Uses there was, however, neither curtesy, nor dower, 
 in a use. Cornish on Uses, 20, 30. 
 
 ■ 1 R. S., 730, sec. 64 ; Hillen v. Iselin, 144 N. Y. , at p. 379; cf. Losey v. 
 Stanley, 147 N. Y., at p. 571. 
 
 8 1 R. S., 723, sec. 15 ; if the settler restrained alienation by beneficiary 
 before this Statute, the trust was bad. Lewin on Trusts, 138. 
 
 10 I RS., 723. sec. 15, 16. 
 
LAW OF CHARITABLE DONATIONS. 99 
 
 for a long time after the Revised Statutes took effect very 
 questionable whether any trust in personalty was also sub- 
 ject to these restraints and inalienable, 1 thus becoming sub- 
 ject to the section against perpetuities quoted in the preced- 
 ing paragraph. Chancellor Walworth held that the Revised 
 Statutes clearly made trusts of personalty created by a third 
 person and designed to secure a support for the beneficiary 
 inalienable, 2 and such is now the established law of this 
 State. 3 Therefore every such trust in personal estate must 
 terminate at the end of two lives in being as stated in the 
 preceding paragraph, or it is void under the Revised 
 Statutes. Trusts in personalty for the benefit of charity or 
 a charitable corporation can form no exception to this rule. 4 
 We must, however, remember that the mere creation of 
 a trust in real estate does not ipso facto suspend the power 
 of alienation ; it is only suspended where a sale by the 
 trustee during the trust term would be in contravention of 
 the trusts. 5 The analogy which now exists, under the 
 Revised Statutes, between trusts of real and trusts of 
 personal estate makes the same principle applicable to 
 trusts of personalty. Consequently if the power of alien- 
 ation is not suspended during a trust term, the length of 
 the term is inconsequential. It has been shown that most 
 trusts in lands for the benefit of charity are not express 
 trusts, but are powers in trust under the Revised 
 Statutes. 6 It has been claimed that a power cannot sus- 
 pend the power of alienation. But this argument was 
 shown to be fallacious in the Vassar will case. 7 A trust 
 power is as clearly subject to the rules relating to perpetui- 
 ties as an express trust, and whenever a limitation in trust, 
 although operative as a power, suspends the power of 
 
 1 Cowen, /., in Kane v. Gott, 24 Wend., 641, 661 ; Denio,/., in Graff v. 
 Bonnett, 31 N. Y., 9, 15. 
 
 8 Hallett v. Thompson, 5 Pai., 583 ; Degraw v. Clason, 11 Pai., 136. 
 
 " Graffs. Bonnett, 3: N. Y., 9 ; Campbell v. Foster, 35 N. Y., 361, 371 ; 
 Williams v. Thorn, 70 N. Y., 270, 278. 
 
 * Fosdick v. Town of Hempstead, 125 N. Y., 581, 595. 
 
 6 Robert v. Corning, 89 N. Y., 225 ; Williams v. Montgomery, 148 N. Y., 
 519. 526. 
 
 6 Supra, pp. 95, 97. 
 
 7 Booth v. Baptist Church, 126 N. Y., 21s. 
 
100 LAW OF CHARITABLE DONATIONS. 
 
 alienation be) 7 ond the lawful term, the power in trust is 
 bad and the trust void. 1 
 
 The conveyancer will readily observe the difference 
 between a condition and a trust. Anciently or before the 
 rise of trusts, trusts were usually conditions, but now the 
 distinction is at once obvious. A deed of lands habendum 
 to trustees of a religious society in trust to keep erected a 
 "church dedicated to the worship of Almighty God" to be 
 used in a manner prescribed, but on the express condition 
 that if at any time said land shall be left vacant for two 
 successive years then the same to revert to the grantor, is a 
 grant in fee upon a condition subsequent and not a trust. 2 
 
 The Revised Statutes relating to uses and trusts are 
 occasionally modified by the legislature in favor of partic- 
 ular charitable institutions so as to tolerate trusts quite 
 at variance with the general rules stated above. 3 Thus 
 chapter 174 of the Laws of 1839 4 i* 1 relation to the people 
 called " Shakers ", tolerated permanent, indefinite trusts at 
 variance with all the rules stated as prevailing since the 
 Revised Statutes in respect of charities ; 5 thus constituting 
 this denomination a sort of stated exception. There are 
 other exceptions, which will be noticed at a subsequent 
 place. 
 
 The characteristics of a charitable use before the Re- 
 vised Statutes were indefiniteness 6 and permanence : 7 in- 
 definiteness in that the trust was for the benefit of a class 
 or the public and not for a particular person ; permanence 
 in that the rules relating to perpetuities had no relation to 
 charity, unless the execution of the charity was postponed. 
 By subjecting charitable uses to the ordinary rules relating 
 
 1 Booth v. Baptist Church, Hid. supra. 
 
 8 Erwin v. Hurd, 13 Abb. N. C, 91 ; cf. Livingston v. Gordon, 7 Abb. N. 
 
 C, 53- 
 
 8 Chaplin, Susp. Power Alienation, sec. 450, note 8 ; Rector, etc. , Church 01 
 Redemption v. Grace Church, 68 N. Y., 570. 
 
 4 Amended c. 373, Laws of 1849. 
 
 8 Whiter. Miller, 71 N. Y., 118. 
 
 6 Supra, pp. 1, 6, 15, 16 ; 2 Perry on Trusts, sec. 710; Williams on Ex- 
 ecutors, 1055, note 6th Amer. Edition. 
 
 ' Supra, pp. 27, 28; Williams on Executors, 1055, note to 6th Amer. Edition. 
 
 8 Supra, p. 29. 
 
LAW OF CHARITABLE DONATIONS. 101 
 
 to private or non-charitable uses, the two characteristics 
 mentioned were taken away by the Revised Statutes. The 
 Courts held that the legislature had instituted an entirely 
 new scheme of charities, based upon franchises to corpora- 
 tions of a non-business character, and in substance that the 
 execution of all indefinite uses was intended to be vested 
 in such corporations by systematic acts of the State and 
 not to be created at the will of donors. ' Consequently all 
 charitable uses were abolished by the Revised Statutes and 
 charitable trusts were regulated by the provisions of the 
 Revised Statutes. Hence, the most ancient characteristics 
 of charitable uses — indefiniteness and permanence — dis- 
 appeared with that Revision if not before ; all statutes 
 sanctioning such anomalies having been finally abrogated 
 and repealed. 2 Precisely the same degree of certainty 
 required in an express trust, under the Revised Statutes, 
 was, prior to the act of 1893, 3 required in respect of those 
 charitable trusts which survived the Revised Statutes as 
 powers in trust. 4 At an early day it was attempted to 
 make a distinction between charitable uses in lands which 
 were clearly abolished by the Revised Statutes and char- 
 itable trusts of personal estate. 5 But the distinction was 
 negatived in the cases holding that the ancient law of 
 charities was intended to be wholly superseded by the 
 legislative policy of creating charitable corporations, 6 and 
 by the subjection of all charitable trusts to the general 
 rules relating to future estates and perpetuities. 1 There- 
 after there was no distinction between the rules touching 
 a charitable trust in lands and those concerning trusts in 
 personalty. Equal certainty must prevail in both and 
 
 1 Supra, pp. 49, 61 ; Levy v. Levy, 33 N. Y., at p. 114; Bascom v. Albert- 
 son, 34 N. Y., 584; Holland®. Alcock, 108 N. Y., 312; Willard, Real Estate 
 & Conv. , 240. 
 
 8 Levy v. Levy, 33 N. Y., at p. 117. 
 
 8 C. 701, Laws of 1893. 
 
 4 Tilden v. Green, 130 N. Y., 29. 
 
 6 Williams®. Williams, 8 N. Y., 545; Beekman v. Bonsor, 23 N. Y., at p. 
 310 ; McCaughal v. Ryan, 27 Barb., 376 ; supra, pp. 60, 97. 
 
 • Supra, p. 98. 
 
 7 Levy v. Levy, 33 N. Y., at p. 124; Bascom v. Albertson, 34 N. Y., 584, 
 609; Wetmore v. Parker, 52 N. Y., 450; Cottman®. Grace, 112 N. Y., 299, 306. 
 
102 LAW OF CHARITABLE DONATIONS. 
 
 neither may contravene the statutory rules against per- 
 petuities. Yet trusts in personalty may be raised by parol; 
 but not so in realty. 1 
 
 Before the legislature finally repudiated the doctrine of 
 the courts, that all charitable trusts must be for definite 
 beneficiaries, 2 sixty -three years elapsed since the adoption 
 of the Revised Statutes, and in this period the judiciary 
 had about perfected the following doctrines : (i) To consti- 
 tute a valid trust, charitable or non-charitable, public 
 or private, in either real or personal estate, there must be 
 a definite and certain beneficiary in whom the equitable 
 title or interest must vest, 3 and who must be entitled to en- 
 force the trust, 4 having capacity to take and hold some 
 interest therein and not resting under a disability. 5 But in 
 determining who were such beneficiaries common certainty 
 was sufficient and a misnomer did not vitiate the bequest 
 or devise. 6 (2) There must be a use or trust clearly de- 
 fined and worked out by the settler and not by the 
 Courts of Equity ; 7 for in this State the cy pres power 
 
 1 Infra. 
 
 3 C. 701, Laws of 1893, discussed below. 
 
 3 Phelps v. Pond, 23 N. Y., at p. 77 ; Downing 0. Marshall, 23 N. Y., 366, 
 382 ; Holmes v. Mead, 52 N. Y., 332 ; Sherwood v. Amer. Bible Society, it- 
 Abb. Ct. Appeal Decis., 227, 233; O'Hara v. Dudley, 95 N. Y., 403^ 
 Simmons v. Burrell, 8 Delehanty, 388 ; Read 0. Williams, 125 N. Y., 
 560, 569; Riker«. Leo, 115 N. Y., 93; Matter of Jackson, 20 N. Y. Supp., 
 380 ; cf. Matter of Boardman, 20 N. Y. Supp., 60. 
 
 4 Holland v. Alcock, 108 N. Y., 312 ; Tilden 0. Green, 130 N. Y., 29 ; 
 Fosdick v. Town of Hempstead, 125 N. Y., 581 ; Power e. Cassidy, 79 
 N. Y., 602 ; Prichard®. Thompson, 95 N. Y., 76, 82 ; Matter of Will of 
 O'Hara, 95 N. Y., at p. 418; Read v. Williams, 125 N. Y., 560 ; Hope 
 0. Brewer, 136 N. Y., 126, 136 ; Matter of Estate of Prime, 136 N. Y., at pp. 
 360, 361 ; People 0. Powers, 147 N. Y., 104; Butler 0. Trustees, 92 Hun, 
 96 ; Matter of Foley, 10 N. Y .Supp., 12. 
 
 5 Downing v. Marshall, 23 N. Y., 366, 386, 387, 388 ; Adams 0. Perry, 43 
 N. Y., 487, 498 ; cf. Booth v. Baptist Church, 126 N. Y., 215, 245. 
 
 6 Holmes r>. Mead, 52 N. Y , 332 ; Lefevre 0. Lefevre, 59 N. Y., 434 ; Power 
 0. Cassidy, 79 N. Y., 602 ; cf. Fosdick 0. Town of Hempstead, 125 N. Y., at 
 p. 5y2 ; 126 N. Y., 651 ; Kimball 0. Chappel, 27 Abb N. C, 437 ; Matter of 
 Wehrhane, 40 Hun, 542 ; N. Y. Institution for Blind 0. How's Exrs , 
 10 N. Y., 84. 
 
 7 Owens 0. Miss. So. Meth. E. Church, 14 N. Y., 380, 406 ; Bascomb 
 0. Albertson, 34 N. Y., 584, 592; Phelps v. Pond, 23 N. Y., 69, 77; 
 Sherwood®. Amer. Bible So., 4 Abb. Ct. Appeal Decis., 227, 233 ; Prichard. 
 
LAW OF CHARITABLE DONATIONS. 103 
 
 was long since repudiated, or attributed wholly to a royal 
 prerogative, which had not been vested in the Courts of 
 Justice. 1 (3) Where a well defined use, tolerated by the 
 Revised Statutes, and a definite beneficiary co-exist, the 
 designation or the non-designation of a trustee of the 
 legal estate is immaterial, as the Court follows the legal 
 estate and fastens the trust upon it. 2 At an early stage in 
 the notable discussion relating to the law of charities in 
 New York the notion gained ground that where there was 
 an indefinite charitable use, the trustee must be designated 
 by the settler. 3 This notion arose, in all probability, from 
 a correlated conception that the cy pres doctrine had no 
 place in our jurisprudence, and therefore that an in- 
 definite trust rested essentially in the discretion of a 
 trustee designated by the settler. 4 But the doctrine itself 
 was wholly repudiated when indefinite uses ceased to be 
 tolerated, 5 and the designation of a trustee is not now 
 material to any valid trust 6 This doctrine has been lately 
 affirmed by a statute of great significance in the law of 
 charities. 1 (4) It was also determined that any limitation 
 of lands situated in this State for a charitable use or pur- 
 pose was governed by all the provisions of the Revised 
 
 v. Thompson, 95 N. Y., 76, 81 ; Adams ». Perry, 43 N. Y., at p. 498 ; 
 Wheaton ». Byrne, before J. Barnard, anno 1896 ; Ramsay v. De Remer, 
 65 Hun, 212 ; Pell ». Folger, 23 N*. Y., 42. 
 
 1 Supra, pp. 12, 41, 55 ; Owens v. Miss. So. M. E. Church, 14 N. Y.,380 ; 
 Beekman v. Bonsor, 23 N. Y. , 298 ; Adams v. Perry, 43 N. Y., at p. 498 ; 
 Holland v. Alcock, 108 N. Y., 312, 330; Cottman v. Grace, 112 N. Y., 
 299, 306 ; Tilden ». Green, 130 N. Y., 29. 
 
 2 Downing v. Marshall, 23 N. Y., at p. 382 ; Levy v. Levy, 33 N. 
 Y., at p. 102; Holland «. Alcock, 108 N. Y., at p. 330; Kirk v. Kirk, 
 137 N. Y., 510, 514 ; Phelps «. Pond, 23 N. Y., 69, 77 ; Greene v. Greene, 
 125 N. Y., 506; Rose v. Hatch, 125 N. Y., 427 ; Cross ». U. S. Trust 
 Co., 131 N. Y., 330, 350; Woodward v. James, 115 N. Y., 346, 357 ; c. 555, 
 Laws of 1864 ; c. 701, Laws of 1893. 
 
 3 Williams v. Williams, 8 N. Y., 525 ; Owens v. Miss. So. M. E. Church, 
 14 N. Y., 380 ; Beekman ». Bonsor, 23 N. Y., 298 ; Downing v. Marshall, 23 
 N. Y., at p. 382 ; cf. Willard, Eq. Jurisp., p. 580. 
 
 * Beekman v. Bonsor, 23 N. Y., 298, 310, 311. 
 
 5 Levy ». Levy, 33 N. Y., at pp. 120, 121 ; Holland v. Alcock, 
 108 N. Y., 312. 
 
 6 Supra, p. 41. 
 
 7 C. 701. Laws of 1893 ; cf. c. 555, Laws of 1864, Art. II., sec. 16. 
 
104 LAW OF CHARITABLE DONATIONS. 
 
 Statutes in relation to legal estates and uses and trusts i 1 
 that trusts in personality were now inalienable, 3 and by ex- 
 press provision of the Revised Statutes, that future or con- 
 tingent interests in personalty were subject to the rule in 
 relation to future estates in lands. 8 Even the article on 
 powers was held applicable to personal estates. 4 The main 
 distinction, therefore, is that trusts in personalty may 
 be raised by parol. 5 But our peculiar doctrines of trusts 
 have no reference to testamentary disposition of personal 
 property in trust by persons domiciled in other States 
 and valid by the law of the testator's domicile. 6 
 
 It is a curious fact that one doctrine which the courts 
 have decided with so much elaboration to be the tradi- 
 tional policy of the legislative branch of government — 
 certainty in the beneficiaries of charitable trusts — has been 
 lately renounced by the legislature itself. 7 In 1893, the 
 legislature enacted the following law, Chap. 701 : " An 
 Act to regulate gifts for charitable purposes. 
 
 "Sec. 1. No gift, grant, bequest or devise to religious, 
 educational, charitable, or benevolent uses, which shall, in 
 other respects be valid under the laws of this State, shall 
 or be deemed invalid by reason of the indefiniteness or 
 uncertainty of the persons designated as the beneficiaries 
 thereunder in the instrument creating the same. If in the 
 
 1 Levy B. Levy, 33 N. Y., at p. 124 ; Bascom v. Albertson, 34 N. Y., 584 ; 
 Cottman v Grace, 112 N. Y., 299, 306, 307; Cruikshank v. Home for the 
 Friendless, 113 N. Y., 337, 350 ; People v. Simonson, 126 N. Y., 299, 307; 
 Willard, Real Est. and Conv., 240. 
 
 2 Graff 0. Bonnett, 31 N. Y., 1, 13; cf. Everitt v. Everitt, 29 N. Y., 
 39, 71, 90 ; Williams v. Thorn, 70 N. Y., 270, 278 ; Booth v. Baptist 
 Church, 126 N. Y., at p. 237. 
 
 8 1 R. S., 773 ; Gilman v. Reddington, 24 N. Y., 9, 13 ; Norris v. Beyea, 
 13 N. Y., 273,280; Adams v. Perry, 43 N. Y., 487; Wetmore v. Par- 
 ker, 52 N. Y., 450; Cottman v. Grace, 112 N. Y., 299, 306; Booth ». 
 Baptist Church, 126 N. Y., 215. 
 
 4 Cutting v. Cutting, 86 N. Y., 522 ; Hutton v. Benkard, 92 N. Y., 295 ; 
 Matter of Will of O'Hara, 95 N. Y., 403, 417 ; Booth v. Baptist Church, 126 
 N. Y., 215. 
 
 6 Gilman 0. McArdle, 99 N. Y., 451 ; Cochrane v. Schell, 140 N. Y., 516 ; 
 Hirsh v. Auer, 146 N. Y., 13 ; et vide infra this chapter. 
 
 6 Cross v. U. S. Trust Co., 131 N. Y., 330 ; Hope v. Brewer, 136 N. 
 Y., 126 ; Dammert v. Osborn, 140 N. Y., 30, 41. 
 
 ' Dammert 0. Osborn, 140 N. Y., 30, 43. 
 
LAW OF CHARITABLE DONATIONS. 105 
 
 instrument creating such a gift, grant, bequest, or devise, 
 there is a trustee named to execute the same, the legal 
 title to the lands or property given, granted, devised or 
 bequeathed for such purposes shall vest in such trustee. 
 If no person be named as trustee then the title to such 
 lands or property shall vest in the Supreme Court. 
 
 " § 2. The Supreme Court shall have control over gifts, 
 grants, bequests and devises in all cases provided for by 
 section one of this act. The attorney-general shall repre- 
 sent the beneficiaries in all such cases and it shall be his 
 duty to enforce such trusts by proper proceedings in the 
 Court. 
 " § 3. This act shall take effect immediately." 
 It must be very obvious that the " Act to regulate gifts 
 for charitable purposes," mentioned in the preceding para- 
 graph, has seriously affected those decisions of the courts 
 of New York whicn require great certainty or a vested in- 
 terest in the beneficiaries of a charitable trust. The act in 
 this respect only is designed to restore the ancient law 
 touching charitable uses for uncertain persons — personae 
 incertae, and to this extent to relieve charitable trusts from 
 the narrow boundaries prescribed by the Revised Stat- 
 utes for private uses in lands. 1 Had the legislature gone 
 a step farther and relieved charitable or public uses from 
 the previous application of the rules relating to perpetu- 
 ities which have no reference to public trusts, 8 and also 
 directed the application of the maxim " that charities are 
 favored," the ancient law would have been almost revived 
 by the legislature, as the Attorney-General by this act is 
 now, in all cases where the beneficiaries are uncertain, 
 charged with the duty of representing them pro bono publico? 
 The only cases not then provided for would have been 
 those which in England are supplied by the executive 
 cy pres, under the sign manual. 4 Even this omission, it is 
 said, the legislature has the power to supply. 5 But such an 
 
 1 Dammertfl. Osborn, 140 N. Y., 30, 43. 
 8 Supra, pp. 28, 29. 
 8 C. 701, Laws of 1893. 
 4 Supra, pp. 40, 41. 
 6 Supra, pp. 56, 57. 
 
106 LAW OF CHARITABLE DONATIONS. 
 
 extensive restoration of the ancient law as that suggested 
 is not effected by the recent act of 1893. Indeed, it is clear 
 from the reservation of that act, that the law of charities, 
 as it stood in 1893, is rather confirmed in all respects save 
 one only — that which required certainty in respect of the 
 beneficiaries of a charitable use. It cannot be said, there- 
 fore, that this act of 1893 restores the ancient law in its 
 entirety ; but it does restore one feature of it, that which 
 permitted a charitable use for uncertain persons — personae 
 incertae. 1 The effect of this act must be to set aside those 
 decisions of the courts which, after the Owen's case in 
 1856,2 hold that a charitable use or trust cannot be created 
 for uncertain persons. 3 In all other respects the law of 
 charities, so painfully erected since the Revised Statutes, 
 stands- by the terms of the act itself. 
 
 The act of 1893, to regulate gifts for charitable purposes, 
 refers to gifts to religious, educational, charitable and be- 
 nevolent uses. As we have no statute defining what are 
 religious, educational and charitable uses, 4 and this statute 
 refers to none other than such as may be so classed, the 
 courts must now determine what gifts are within the stat- 
 ute. The statute in question seems to recognize a class of 
 preexisting charitable uses, notwithstanding all such have 
 been held to be abolished by the Revised Statutes. 5 The 
 uses referred to are, therefore, those which existed before 
 the Revised Statutes and independently of the Statute of 
 Charitable Uses. 6 This act does not expressly revive 
 charitable uses and, therefore, cannot be held to modify the 
 article of the Revised Statutes relating to uses and trusts. 
 It can, in view of the state of the law of charities when it 
 was passed, refer only to those charitable trusts which are 
 operative as powers in trust. 1 
 
 1 Supra, pp. 2, 6, 22. 
 " 14 N. Y., 380. 
 " Supra, p. 60 et sea. 
 * Supra, pp. 3, 44, 45> &9- 
 
 6 1 R. S., 727, sec. 45 ; 1 R. S., 728, section 55, asamended by c. 320, Laws 
 of 1830 ; supra, pp. 61, 62. 
 
 6 Supra, p. 70. 
 
 7 Supra, p. 97. 
 
LAW OF CHARITABLE DONATIONS. 107 
 
 The act of 1893 1 relates to gifts, grants, bequests or de- 
 vises to certain specified uses. This language seems to 
 cover all modes by which trusts may be raised. The term 
 " grant " refers only to conveyances of land inter vivos, 2 or 
 of a power ; 3 but the word " power " is not employed in the 
 statute. How far this statute justifies conveyances, de- 
 vises and bequests to private persons in trust for uncertain 
 persons, the poor, or incertae personae, during two lives 
 and a remainder over to a charitable corporation, or to a 
 private person, in fee, has not yet been resolved ; but there 
 would seem to be no principle violated by the restoration 
 of a trust conforming to our statute of perpetuities. But 
 as every such trust would render the trust property 
 inalienable 4 and thus suspend the power of alienation, the 
 trust can be created for not more than two lives in being 
 or it would be void. 5 
 
 The uses specified in the " Act to regulate gifts for 
 charitable purposes" 6 are " religious, educational, charit- 
 able or benevolent." In the prior pages of this Essay we 
 have seen that there is no precise definition of a charitable 
 use since the repeal of the Statute of Charitable Uses. 7 The 
 whole subject is therefore relegated to the judiciary to de- 
 termine according to the best light attainable. 8 All the 
 uses mentioned in the act of 1893 may be contrasted with 
 private uses or uses for private persons, and therefore may 
 be classed as species of public or non-private uses. " Re- 
 ligious uses " in the larger sense are a species of charitable 
 use. 9 A " religious use " may be everything in our sys- 
 tem but an irreligious use. But of religion we have no 
 standard. 10 The uses known in England since the Reforma- 
 
 1 C. 701, "An act to regulate gifts for charitable purposes;" supra, p. 104. 
 
 2 1 R. S., 729, sec. 142. 
 " 1 R. S., 735, sec. 106. 
 
 4 1 R. S., 730, sec. 64; Leonards. Burr, 18 N. Y., at p. 107. 
 6 1 R. S.. 723, sec. 15. 
 
 6 C. 701, Laws of 1893. 
 
 7 Supra, pp. 4, 69, 70. 
 
 8 Ayres v. The Meth. Church, 3 Sandf., at p. 377; Holland v. Alcock, 108 
 N. Y., at p. 329. 
 
 * 2 Perry on Trusts, sec. 701. 
 
 10 Ayres v. The Meth. Church, ibid. sup. Holland v. Alcock, 108 N. Y., at 
 
108 LAW OF CHARITABLE DONATIONS. 
 
 tion as " superstitious uses," therefore, are clearly embraced 
 in the class of religious uses mentioned in the statute of 
 1893. 1 In countries where the English church-establish- 
 ment had no privileged existence such uses were denomi- 
 nated " pious," and not superstitious, uses ; a and such would 
 be the case here after the disestablishment of the English 
 Church and the constitutional declaration of religious 
 toleration and freedom. 3 
 
 Whether such uses \vould have been " superstitious " 
 uses, before the War of Independence, in New York, de- 
 pends partly on that very doubtful question, the status of 
 the English church in this Province. 4 As a rule, the Eng- 
 lish statutes relating to superstitious uses were not ex- 
 tended to the trans-marine empire of Great Britain. 5 If 
 they did extend to the Province of New York, they were 
 repealed in 1788, with the residue of the English statutes 
 not then re-enacted. 6 The term " educational use " is not 
 one known to the common law ; it evidently includes all 
 charitable uses which have education or instruction for the 
 end, purpose or object of the trust. 7 " A benevolent use " 
 would formerly have included a larger scheme than a 
 charitable use; 8 but since then the term "charitable use" 
 has acquired a more extended meaning than formerly given 
 it. 9 What uses are religious, educational, charitable or 
 
 p. 329; Sharswood & Bund's Lead. Cas. Real Prop., 325; note 12, Abb. 
 N. C, 427 ; Rainey ». Laing, 58 Barb., 453, 488. 
 
 1 Ayres ». The Meth. Church, 3 Sandf. , at p. 378; Holland 0. Alcock, 10S 
 N. Y., at p. 329; Matter of Hagenmeyer's Will, 12 Abb. N. C, 432. 
 
 2 The Comm'rs of Charitable Donations v. Walsh, 7 Ir. Eq. Rep., 24 ».,- 
 Read v. Hodgens, id., 17; sed vide, Exparte Felan v. Russell, 4 Ir. Eq,, Rep., 
 701; Dillon*. Reilley, 10 I. R. Eq., 152; Boyle v. Boyle, 11 I. R. Eq., 433. 
 
 3 Ayres v. The Meth. Church, 3 Sandf., pp. 377, 378; Gilman v. McArdle 
 99 N. Y., at pp. 459, 460; Holland v. Alcock, 108 N. Y., 312. 
 
 4 See my note 31 to the Grolier reprint of Bradford's Edition of the New 
 York Laws of 1694. 
 
 B Yeap Cheah Neo 0. Ong Cheng Neo, L. R., 6 P. C, 381. 
 
 6 Supra, pp. 44, 49. 
 
 7 2 Perry on Trusts, sec. 700. 
 
 8 Thomson's Exr. v. Norris, 20 N. J. Eq., 489; Chamberlain®. Stearns, ill 
 Mass., 267; People «. Powers, 147 N. Y., 104, no. 
 
 9 Supra, pp. 3, 22, 37, 70; Sharswood & Budd's Leading Cas. Real Prop., 
 372, sea.; 2 Perry on Trusts, sec. 705, People v. Powers, 147 N. Y., 104, no. 
 
LAW OF CHARITABLE DONATIONS. IO9 
 
 benevolent must now be determined by the courts for this 
 statute aids no other uses. 1 
 
 The second section of the act to regulate gifts for 
 charitable purposes, 2 providing that the Supreme Court 
 shall have control over gifts, grants, etc., in all cases pro- 
 vided for in section one, is no doubt declaratory in so far 
 as the original jurisdiction of the Court is concerned ; for it 
 is hot competent for the legislature to disturb the juris- 
 diction' of a court whose jurisdiction is fixed by the Consti- 
 tution of the State. 3 But it certainly is competent for the 
 legislature to regulate charitable uses and donations. 4 As 
 the Court is expressly made trustee of those charitable 
 trusts where no trustee is nominated by the settler, this 
 section is probably designed to justify the court's manage- 
 ment of the trust fund during the time that it necessarily 
 remains actually in its custody. It is in this respect a 
 „ vesting act. 
 
 The Act of 1893 affects the procedure in cases involving 
 charitable uses where no interest vests, and directs that 
 the Attorney-General shall represent the beneficiaries in 
 such cases. This is the revival of a very ancient practice; 5 
 but it may be questionable oftentimes whether the State 
 or the Attorney-General is the real party in interest under 
 this act. In one respect the act sets at rest a doubt which 
 arose in People v. Ingersoll, 6 for it makes it the duty of 
 the Attorney-General to enforce all such uses as are vali- 
 dated by the act.' 
 
 The future effect of the Act of 1893, and it is not retro- 
 active in operation, 8 depends wholly on the construction 
 accorded it. If it is so construed as to effectuate charitable 
 donations, and as the Statute of Charitable Uses was con- 
 
 1 Cf. Levy v. Levy, 33 N. Y., at foot of page 115; 2 Perry on Trusts, sec. 
 706. 
 
 8 C. 701. Laws of 1893. 
 
 8 Alexander v. Bennett, 60 N. Y., 204. 
 
 4 Supra, pp. 55, 57- 
 
 6 Supra, pp. 11, 36, 57. 
 
 6 People v. Ingersoll, 58 N. Y., 1, 16. 
 
 'Sec. 2; cf. Willard, Eq. Jurisp., 583 ; et ut supra, pp. 46, 105. 
 
 8 Simmons v. Burrell, 8 Delehanty, 388; Dammert v. Osborn, 140 N. Y., 31; 
 People v. Powers, 147 N. Y., 104 ; Butler v. Trustees, 92 Hun, 96. 
 
IIO LAW OF CHARITABLE DONATIONS. 
 
 strued, it will validate a large class of donations hitherto 
 regarded as invalid, at least since 1846. Not being in dero- 
 gation of the common law, for the common law permitted 
 the gilts referred to in the statute, it ought not to be con- 
 strued strictly but so as to remedy the mischief and des- 
 truction 1 resulting from the application of the Revised 
 Statutes to charitable uses. But in view of the state of 
 the law of charities in New York when this act was passed, 
 it restores by its terms no more than a single feature of 
 the ancient law of charities, that which tolerated gifts and 
 trusts to uncertain persons, personae incertae." The other 
 principles of the late law of charities, already pointed out, 
 would seem to be unaffected by this act. 3 
 
 As charitable gifts in trust for indefinite, or uncertain 
 persons, are made valid by the Act to Regulate Gifts for 
 Charitable Purposes, 4 there would seem to be no reason 
 why a gift in trust for an unincorporated charitable asso- 
 ciation should not be considered now also valid, 5 within 
 the limits prescribed by the Revised Statutes for the 
 duration of all trusts, even though the association might 
 not be competent to take the legal estate at the termina- 
 tion of such trust. 6 Before this act it is very clear that 
 after 1846 in this State an unincorporated charitable asso- 
 ciation could not be the beneficiary of a trust. 7 But the 
 reason such associations were then declared incapable of 
 taking as beneficiaries of a trust seems wholly referable to 
 the uncertain character of their constituents. This ob- 
 jection would seem to be removed by the Act of 1893, 
 regulating charitable gifts. 8 When a corporation of this 
 State may be a beneficiary of a charitable use or trust, is 
 
 1 Dammert v. Osborn, 140 N. Y., at p. 43. 
 
 2 Supra, pp. 2, 15, 22. 
 s Supra, Chap. IV. 
 
 4 C. 701, Laws of 1893. 
 
 C/. Church of Redemption ». Grace Church, 68 N. Y., 570; Vander 
 Volgen v. Yates, 3 Barb. Ch., 242; 9 N. Y. 219; Willard, Eq. Jurisp., 582. 
 • Infra. 
 
 7 Downing v. Marshall, 23 N. Y., 366 ; Shipman 0. Rollins, 98 N. Y., 311, 
 326, 327. 
 
 8 C. 701, Laws of 1893 ; cf. Vander Volgen v. Yates, 3 Barb. Ch., 242 ; 9 
 N. Y., 219, and Willard Eq. Jurisp., 582. , 
 
LAW OF CHARITABLE DONATIONS. Ill 
 
 discussed below in this chapter while treating of the 
 capacity of charitable corporations both as trustee and 
 as cestui que trust. 
 
 A donation in trust for a charitable corporation to be 
 formed is good, within the limits pointed out in respect of 
 absolute gifts to a corporation not in esse? But as limita- 
 tions in trust for charity cannot violate the statute against 
 perpetuities, the gift must vest within the time fixed by 
 the rule, or the trust for a corporation not in esse is void. 2 
 
 Prior to the Act of 1893 relative to charitable gifts 3 in 
 trust, donations for masses or prayers for the repose of the 
 souls of deceased persons were in this State void as trusts, 
 not because they were superstitious uses, as in England 
 (where every use which has for its object the propagation 
 of a religion not tolerated by the law is void 4 ), but because 
 they contravened the statute against perpetuities or con- 
 flicted with the now obsolete judicial canon against indefi- 
 niteness and uncertainty. 5 The Act of 1893 has not vali- 
 dated those trusts which conflict with the rules directed 
 against perpetuities. But when a use or trust does not con- 
 flict with those rules, it is by statute now no longer void 
 because the beneficiaries are- indefinite or uncertain. 6 A 
 member of a religous order who has taken vows of pov- 
 erty and the like is not civiliter mortuus or a person incapax 
 in this State and may now take as beneficiary of a trust. 7 
 
 Before leaving the question — who may be the benefici- 
 aries of a charitable use or trust? — we should consider a 
 class of cases where a power of selection is conferred on 
 executors or the donees of a power in trust. 8 In Power v. 
 
 1 Supra, p. 89. 
 
 8 Chaplin, Suspens. Power Alienation, sections 453-457, and cases cited 
 there. 
 
 8 C. 701, Laws of 1893. 
 
 4 Boyle on the Law of Charities, 242. 
 
 6 Gilman v. McArdle, 99 N. Y., 451 ; Holland v. Alcock, 108 N. Y. 312 ; 
 O'Connor v. Gifford, 117 N. Y., 275; People v. Powers, 147 N. Y., 104; 
 Matter of Wright, N. Y. Law Journal, Jan. 10, 1893. 
 
 8 C. 701, Laws of 1893. 
 
 * Lynch®. Loretta, 4Dem., 312; cf. 2 Bla. Comm., 122, as to estates for 
 natural life determining by civil death. 
 
 8 1 R. S., 734, sections 96, 97. 
 
112 LAW OF CHARITABLE DONATIONS. 
 
 Cassidy 1 the testator gave and devised certain property, 
 real and personal, to his "executors, to be divided by them 
 among such Roman Catholic charities, institutions, 
 schools or churches in the City of New York as a major- 
 ity of my executrix and executors shall decide, and in such 
 proportion as they may think proper." The disposition 
 was adjudged to be valid. But in Pritchard v. Smith 2 the 
 Court limited the right of testators to dispose of their es- 
 tate by the grant of a power authorizing the selection of 
 institutions embracing the whole civilized world or even 
 within the limits of the United States ; intimating that 
 there must be sufficient finiteness in the beneficiaries as a 
 class to enable some one of them to enforce the trust. The 
 trust therefore failed for uncertainty , and probably be- 
 cause it could not be said that any equitable interest 
 vested. This power, the Court say, is "not to be construed 
 as a power of attorney," 3 but rather as a limitation to a 
 definite class existing within a small area and easily as- 
 certainable by the Court. 4 Since the decision in Power v. 
 Cassidy the Court has declined to extend the instances 
 where the beneficiaries may be a class and has tended to 
 revert to the doctrine that a certain and definite bene- 
 ficiary is necessary to a valid trust or power in trust. 5 But 
 now the " Act to regulate gifts for charitable purposes " 
 has provided that no charitable use in other respects valid,, 
 shall be deemed invalid by reason of the indefiniteness 
 or uncertainty of the beneficiaries ; the Attorney General 
 being authorized and directed to enforce such trusts. 6 As 
 every trust power, unless its execution or non-execution is 
 made expressly to depend on the will of the grantee is im- 
 perative, and imposes a duty on the grantee, the perform- 
 ance of which may be compelled in equity, for the bene- 
 
 1 79 N. Y., 602. 
 
 2 95 N. Y., 76. 
 
 8 Matter of Will of O'Hara, 95 N. Y., at p. 418. 
 
 4 Holland®. Alcock, 108 N. Y. at p. 321, etseq. ; Read v. Williams, 125 N. 
 Y., 560 ; People v. Powers, 147 N. Y., 104 ; Willets v. Willets, 20 Abb. N. 
 C, 471 ; Livingston v. Gordon, 7 Abb. N. C, 53. 
 
 B Fosdick v. Town of Hempstead, 125 N. Y., at p. 592 ; Tilden v. Green, 
 130 N. Y., 29 ; People v. Powers, 147 N. Y., 104. 
 
 6 C. 701, Laws of 1893, supra, p. 
 
LAW OF CHARITABLE DONATIONS. 1 1 3 
 
 fit of the parties interested, 1 even where the grantee has 
 the right to select any and exclude others of the persons 
 designated as the objects of the trust, 2 it would seem that 
 the Attorney-General might now enforce the execution of 
 the power in all cases where a class was designated and a 
 definite use or trust purpose is created in other respects in 
 conformity to the law of the State. 3 
 
 Having outlined the law relating to those who may be 
 beneficiaries of a charitable use or trust, we should con- 
 sider next for a moment, what trust purposes are sanctioned 
 by the courts. It is said " that a charitable use, where 
 neither law nor public policy forbids, may be applied to 
 almost anything that tends to promote the well-doing and 
 well-being of social man." 4 So trusts of personalty may 
 be created for any purpose not forbidden by law. 5 But the 
 courts of justice in this State require a well-defined use, or 
 trust purpose, worked out by the settler and not by the 
 courts possessing equitable powers, as they are held not 
 now to possess the cy pres power of supplementing defective 
 charitable trust purposes by approximation. 6 We have al- 
 ready seen that most charitable trust purposes are now, 
 under the Revised Statutes of Uses and Trusts, operative 
 only as powers in trust 7 Powers in trust are as imperative 
 as active trusts, 8 and under the " act to regulate gifts for 
 charitable purposes," charitable uses or trusts may now be 
 enforced by the Attorney-General in cases where the bene- 
 ficiaries are indefinite and uncertain. 9 But no trust purpose 
 is good as a trust power, if such purpose conflict with pub- 
 
 1 1 R. S., 734, sec. 96. 
 
 8 1 R., S. 734, sec. 97. 
 
 ■ Cf . People 9. Powers, 147 N. Y., 104, 109, 114. 
 
 4 Quoted with approval in Tilden v Green, 130 N. Y., at p. 46, from sec. 
 637, Perry on Trusts. 
 
 6 Powers. Cassidy, 79 N. Y., 602 ; Gilman v. McArdle, 99 N. Y., 451 ; 
 Gilman v. Reddington, 24 N. Y., 9, 12 ; Cochrane v. Schell, 140 N. Y., 516, 
 534 ; Holmes ». Mead, 52 N. Y., at p. 343. 
 
 6 Supra, p. 12. 
 
 ' Supra, p. 97. 
 
 8 1 R. S., 734, sec. 96; Smith v. Floyd, 140 N. Y., 337, 342 ; Delaney «. 
 McCormack, 88 N. Y., 174, 181. 
 
 8 C. 701, Laws of 1893 ; supra, p. 104. 
 
114 LA W OF CHARITABLE DONATIONS. 
 
 lie policy, tends to disloyalty, irreligion or is violative of 
 good morals. In short, the ends of every trust power 
 must be such as equity sanctions and not wholly inofficious, 
 or it will be nugatory. No perpetuity can be created by 
 means of a trust power, 1 and for the same reasons equity 
 can not interpose when the trust purpose is such as is con- 
 trary to justice, fair dealing or the plain policy of the State. 
 This principle lies at the basis of equity jurisdiction and 
 may be detected in cases where the Crown disposed of the 
 estate by sign manual because the charity intended was in 
 conflict with public policy or some statute. 2 
 
 What language raises a charitable use or trust is a ques- 
 tion oftentimes of very nice construction under the Re- 
 vised Statutes, 3 where so many lawful trust purposes take 
 effect as powers. 4 Even the words " in trust " are not con- 
 clusive of an intention to create an express trust. Nor 
 is their omission conclusive of an intention not to 
 create a trust. 5 No particular language is required to 
 create a trust or power in trust. 6 It is sufficient if the in- 
 tention may be inferred, 1 or that the exigencies of the 
 directions are such as to require the court to presume 
 
 1 Belmont ». O'Brien, 12 N. Y., 395, 403 ; Everitt 1). Everitt, 29 N. Y., 39, 
 78 ; Read v. Williams, 125 N. Y., 560, 569 ; Sweeney v. Warren, 127 N. Y., 
 426, 433 ; Tilden v. Green, 130 N. Y., 29, 54 ; Booth v. Baptist Church, 126 
 N. Y., 215 ; supra, p. 97. 
 
 2 Cf De Costa v. De Pas, Ambler, 228. 
 
 3 Holly v. Hirsch, 135 N. Y., 590 ; cf. Foose 8. Whitmore, 82 N. Y., 405. 
 
 4 Belmont e. O'Brien, 12 N. Y., 394, 404 ; Downing v. Marshall, 23 N. Y., 
 3*06, 377, 379 ; Gilman v. Reddington, 24 N. Y. , 9, 15 ; Heermans v. Robert- 
 son, 64 N. Y., 332 ; Hendersons. Henderson, 113 N. Y., 1, 10; Tilden 0. 
 Green, 130 N. Y., 29. 
 
 8 Freeborn ». Wagner, 2 Abb. Ct. App. Decis., 175, 179 ; cf. Toronto, etc., 
 Trust Co. v. C. B. & Q. R. R. Co., 123 N. Y., 37 ; Matter of Fisher and 
 Mead, 27 State Rep., 36 ; s. c. 8 N. Y. Supp., 10 ; Bacon 0. Bacon, 4 Dem., 
 5 ; Matter of Hawley, 104 N. Y., 250. 
 
 6 2 R. S., 134, sections 6, 7 ; Leggett v. Perkins, 2 N. Y., 297 ; Wright *. 
 Douglass, 7 N. Y., 564 ; Dillaye v. Greenough, 45 N. Y., 438, 445 ; Vernon 
 v. Vernon, 53 N. Y., 351 ; Heermans v. Robertson. 64 N. Y., 332 ; Moore v. 
 Hegeman, 72 N. Y., 376, 384 ; Donovan ». Van De Mark, 78 N. Y., 244 ; 
 Morse «. Morse, 85 N. Y., 53. 
 
 7 But an intention to create an express trust will not be inferred where the 
 purpose may be accomplished as a power. Heermans ». Robertson, 64 N. Y., 
 332 ; Henderson v. Henderson, 113 N. Y., 1, 11. 
 
LAW OF CHARITABLE DONATIONS. 115 
 
 that a trust was intended. 1 Charitable gifts form no ex- 
 ception to the rules indicated, 2 and the difficulties of deter- 
 mining when a gift to a corporation is absolute, and when 
 in trust are quite as great as m the cases of private or non- 
 charitable trusts. 3 When a charitable corporation has power 
 by its charter to take and hold property to various uses, a 
 gift to one of such uses will not create a trust, 4 notwith- 
 standing the query in the case of Fosdick v. Town of 
 Hempstead. In Wetmore v. Parker, the court distinctly 
 said, " a corporation created for charity may take and hold 
 personal property, limited by the donor to any of the cor- 
 porate uses of the donee ; and a direction of the donor that 
 the principal shall be kept inviolate and the income only 
 expended will not invalidate the gift ; provided, of course, 
 that the same is immediate and vested ;" 5 and such is now 
 the better opinion. 6 If charitable donations are ever 
 worthy of favor, the maxims " valeat quantum, valere potest" 
 and " ut res magis valeat quampereat," ought at least to be 
 applied to posthumous dispositions capable of two con- 
 structions, one validating them ; the other invalidating 
 them. 
 
 It is beyond the purposes of this Essay to discuss the 
 rules and principles governing a perfect jus disponendi, 
 which attaches to all complete dominion over property. 
 It can only be stated generally that the complete owner- 
 ship of property by a person sui juris involves the right to 
 create a trust. We have already stated that charitable uses 
 and trusts in lands are subject to all the rules and regulations 
 
 1 Toronto, etc., Trust Co. v. C. B. & Q. R. R. Co., 123 N. Y., 37 ; cf. 
 Booth v. Baptist Church, 126 N. Y., 215, 238. 
 
 2 Fosdick®. Town of Hempstead, 125 N. Y., at p. 595 ; Bird v. Merklee, 
 144 N. Y , 544 ; Erwin v, Hurd, 13 Abb. N. C, 91. 
 
 8 Matter of Ingersoll, 59 Hun, 571 ; reversed on dissenting opinion below, 
 131 N. Y., 573 ; Wetmore v. Parker, 43 N. Y., at p. 458 ; Robert «. Corning, 
 89 N. Y., at p. 241 ; Williams v. Williams, 8 N. Y., 525 ; 26 Hun, 651. 
 
 4 Matter of Look, 26 State Repr., 745; s. c. 7 N. Y. Supp., 298 ; cf. Fosdick, 
 v. Town of Hempstead, 125 N. Y., at p. 595 ; cf. Robertson B. Bullions, 11 
 N .Y., at p. 255 ; Matter of Isbell, 93 Hun, 158. 
 
 6 Wetmore v. Parker, 52 N. Y. , at p. 458 ; Iseman v. Myres, 26 Hun, 651. 
 
 * Bird v. Merklee, 144 N. Y. 544; Matter of How., 1 Pai., 214; Holmes v. 
 Mead, 52 N. Y., 332 ; Matter of Bailey, 24 Abb. N. C, 206; 3 Sharswood & 
 Budd's Lead. Cas. Real Prop., 376; Williams?). Williams, 8 N. Y., 525. 
 
Il6 LAW OF CHARITABLE DONATIONS. 
 
 of the Revised Statutes touching uses and trusts in lands ;' 
 and that limitations of future or contingent interests in per- 
 sonal property are subject to the rules prescribed in the Re- 
 vised Statutes in relation to future estates in lands. 2 But 
 the absolute ownership of personal property can not be 
 suspended for a longer period than during the continuance 
 and until the termination of, not more than two lives in 
 being at the date of the instrument creating the trust, or if 
 the instrument be a will for not more than two lives in being 
 at the date of the death of the testator. 3 It will, therefore, 
 suffice to point out at this place that the impress of a trust 
 upon the disposition of property necessarily presupposes 
 a property right and interest upon which the trust may 
 fasten ; where that fails, the whole is nugatory. 4 
 
 What persons may be trustees of a charitable use should 
 be next considered. A charitable corporation in this State 
 has no power to take and hold as trustee of a charitable 
 trust, unless such power is expressly given by its charter, 
 or by some constating act affecting its chartered powers. 5 
 But where the corporation has power to take and hold the 
 property under its charter, a direction of the donor that 
 the principal shall be kept inviolate and the income only ex- 
 pended will not invalidate the gift if the same is immediate 
 and vested. 6 So it is said that where property is granted 
 or deyised to a corporation, partly for its own use and 
 partly for the use of others, the power of the corporation 
 to take and hold for its own use, carries with it, as a neces- 
 sary incident, the power to execute that part of the trust 
 
 "' Supra, pp. 102, 103. 
 
 "' 1 R. S., 773, sec. 2, supra, p. 97. 
 
 5 I R. S., 773, sec. 1, supra, p. 98. 
 
 4 Boasberg 0. Cronan, 30 State Rep. ; s. c. 9 N. Y., Supp. 664. 
 
 6 Farmers' Loan and Trust Co. v. Carroll, 5 Barb., 613, 649; re Howe, 1 
 Pai., 214; Jackson ex dem.,v. Hartwell, 8 Johns., 422; Levy v. Levy, 33 N. Y., 
 at p. 124; Adams v. Perry, 43 N. Y., 487, 498; Wetmore «. Parker, 53 N. Y., 
 at p. 458; Fosdicks. The Town of Hempstead, 125 N. Y., 581; Sherwood «. 
 Amer. Bible So., 4 Abb. Ct. App. Decis., 227, 233; at common law a corpora- 
 tion could not be seized to a use. Cruise, D., Tit. XL, Chap. II., s. 15; supra, 
 p. 24 ; cf. Chaplin, Suspens. Power Alienation, sec. 451. 
 
 6 Wetmore v. Parker, 52 N. Y., at p. 458; cf. 3 Sharswood & Budd's Lead. 
 Cas. Real Prop., 376, as to law of other States; Rainey v. Laing, 58 Barb., 453. 
 
LAW OF CHARITABLE DONATIONS. 1 17 
 
 which relates to others. 1 Where a corporation has power 
 to hold to various uses and one only is specified by the terms 
 of the gift, which is to be applied to such use only, the 
 gift, it is said, may be in trust and not absolute. 3 But such 
 a construction certainly would not be in favor of charities 
 or according to that fundamental maxim of the common law 
 favoring charities. 8 A corporation can not be trustee for 
 itself 4 any more than a private or natural person can be his 
 own trustee ; the equitable interest and the legal estate 
 merge in the one case as in the other. 5 
 
 The legislature has, however, authorized certain charit- 
 able corporations to take and hold property in trust for 
 certain purposes, cognate to the objects for which they 
 were organized or chartered. Trust companies are often 
 given special powers in this regard. 6 By an act of 1840, 
 real and personal property may be granted and conveyed 7 
 (1) to any college or literary corporation in trust to establish 
 and maintain an observatory. (2) To found and maintain 
 professorships and scholarships. (3) To repair and keep in 
 repair places for burial of the dead. (4) For any other 
 specific purpose, comprehended in the general objects, 
 authorized by their respective charters. So, also, real 
 estate and personal property may be granted to municipal 
 corporations in trust for any purpose of education, or the 
 diffusion of knowledge, or the relief of distress, or for"parks, 
 gardens or other ornamental grounds, or grounds for the 
 purposes of military parade and exercise, or health and 
 recreation, within or near such incorporated city or village; 
 the trusts to continue for such time as may be necessary to 
 
 1 In the Matter of Howe, 1 Pai., 214; Sheldon v. Chappell, 47 Hun, 59; 
 Currin v. Fanning, 13 Hun, 458. 
 
 * Fosdick v. Town of Hempstead, 125 N. Y., at p. 595; cf. Wetmore «. 
 Parker, 52 N. Y., at p. 458 ; Adams v. Perry, 43 N. Y., 487, 500; Bird 0. 
 Merklee, 144 N. Y., 544; Matter of Look, 26 State Rep., 745 ; Rainey v. 
 Laing, 58 Barb., 453. 
 
 Cruise D., Tit. XII., >;. I., s. 84; supra, p. 39. 
 
 * Wetmore v. Parker, 52 N. Y., at p. 459. 
 
 6 Woodward*. James, 115 N. Y., 346, 357; Greene r>. Greene, 125 N. Y., 
 506; Rose 1>. Hatch, 125 N. Y., 427 ; Steinway v. Steinway, 10 Misc., 563. 
 
 6 C. 546, Laws of 1887. 
 
 7 C. 318; amended so as to include devise; c. 261, Laws of 1841, amended, 
 c. 74, Laws of 1846; c. 432, Laws of 1855. 
 
Il8 LAW OF CHARITABLE DONATIONS. 
 
 accomplish the purposes for- which they are created. So by 
 the same act, real and personal property may be granted 
 to commissioners of common schools of any town, and to 
 trustees of any school district, in trust for the benefit of the 
 common schools of such district. 1 By chapter 555, Laws of 
 1864, real and personal estate might be granted, conveyed, 
 devised and bequeathed and given in trust and in perpetu- 
 ity or otherwise to the State, or to the Superintendent of 
 public schools, or to any county, city or any board of offi- 
 cers thereof, or to any school commissioner, district or its 
 commissioners, or to any town or supervisor, school dis- 
 trict or its trustee or trustees, for the support or benefit of 
 the common schools of the State or any particular school * 
 The acts mentioned expressly authorize species of charit- 
 able uses, excepting them from the ordinary laws or rules 
 relating to perpetuities. So the act, chapter 337, Laws of 
 1880, relating to trusts for the benefit of the meetings of 
 the religious Society of Friends, seems to contemplate an 
 endless succession of private persons holding in trust. As 
 these corporations can not, on the principle stated, be trus- 
 tee for themselves, it is apparent that such laws expressly 
 sanction certain charitable uses for indefinite and uncertain 
 beneficiaries in whom no interest vests. 3 Thus in these 
 particular instances, the general policy of the legislature, 
 as indicated in some decisions, is interrupted, or can not 
 be said to be either harmonious or single. 
 
 The incapacity of a corporation of this State to take and 
 hold as trustee does not vitiate the trust. The proper 
 court will not allow the trust to fail because the trustee is 
 under a disability, but will appoint a new one. 4 
 
 An unincorporated association can not take as trustee. 5 
 
 1 C. 318, Laws of 1840; Fosdick 11. Town of Hempstead, 125 N. Y., 593; 
 Iseman v. Myres, 26 Hun, 651; cf. Will of Underhill, 6 Dem., 466. 
 
 8 C. 555, Laws of 1864, Act II., sec. 15; cf. c. 160, Laws of 1890; c. 25, 
 Laws of 1892, as to public parks. 
 
 8 Cf. Chaplin, Suspension of the Power of Alienation, p. 256, note 8; Willard 
 Real Estate and Conveyance, 240. 
 
 4 Perry on Trnsts, 4 Edit., sec. 38 ; Cross 0. U. S. Trust Co., 131 N. Y., 
 330, 350 ; Sheldon fl. Chappell, 47 Hun, 59 ; McCartee v. Orphan Asylum, 
 9 Cowen, p. 484. 
 
 5 Hart v. Hamburger, 1 State Rep., 293. 
 
LAW OF CHARITABLE DONATIONS. II9 
 
 Only citizens are capable of holding lands within this 
 State. 1 But by special acts passed after the War of 
 Independence aliens were in particular cases authorized to 
 take and hold lands ; and in such instances they might take 
 and hold in trust as well as for their own use. 2 If an alien 
 be made trustee of lands, and they escheat, the State now 
 takes them subject to all trusts, incumbrances and charges. 3 
 
 As all charitable uses are abolished by the Revised 
 Statutes, 4 and as charitable corporations in New York have 
 no power or capacity except those expressly conferred, 5 an 
 express trust in lands for the benefit of a charitable cor- 
 poration can be valid only under the Article of the Revised 
 Statutes relating to Uses and Trusts, 6 or as a trust power ; 
 and then when the corporation has capacity to take and 
 hold the property so limited in trust. 1 It is well under- 
 stood that no principle of public policy may be subverted 
 by means of a trust or a power in trust. 8 
 
 Nor can a trust of personal estate, even though limited 
 for the benefit of a corporation having power to take and 
 hold the property, violate the rules laid down against 
 perpetuities because it is a charitable use. 9 The rules 
 relating to powers, and to future uses and trusts in lands 
 and to powers and future trusts in personalty are now 
 generally uniform, 10 with, one exception. 11 In some instances, 
 
 1 1 R. S., 719, sec. 8. 
 
 2 Duke of Cumberland v. Graves, 7 N. Y., 305 ; 9 Barb., 595. 
 'iR.S,, 718, sec. 2. 
 
 4 Supra, p. 61. 
 
 6 Supra, p. 77. 
 
 6 Art. II., Chap. I, Part II., R. S. ; 1 R. S., 727; Chaplin, Susp. Pow. 
 Alienation, sec. 450. 
 
 ' Ut supra, pp. 78, 80 ; Downing «. Marshall, 23 N. Y., 366 ; Sherwood v. 
 Amer. Bible Co., 4 Abb. Ct. App. Decis., at p. 233. 
 
 Supra, pp. 95, 97. 
 
 9 Yates v. Yates, 9 Barb., 324, 343; Phelps v. Pond, 23 N. Y., 69, 77, 80; 
 Adams v. Perry, 43 N. Y., 487, 498 ; Bascom v. Albertson, 34 N. Y., 584, 
 619 ; Cottman 0. Grace, 112 N. Y., 299, 306 ; Matter of Will of O'Hara, 95 
 N. Y., 403, 422 ; Read v. Williams, 125 N. Y., 560; Chaplin, Suspens. Power 
 Alienation, sec. 450 ; Iseman v. Myres, 26 Hun, 651. 
 
 10 Cottman v. Grace, 112 N. Y., at p. 306 ; Hutton v. Benkard, 92 N. Y., 
 295; Cutting v. Cutting, 86 N. Y., 522, 546; sed cf. Wadhams v. Amer. 
 Home Miss. So., 12 N. Y., at p. 423. 
 
 11 Supra, p. 96 ; Norris v. Beyea, 13 N. Y., p. 280 ; 1 R. S., 773, sec. 1. 
 
120 LAW OF CHARITABLE DONATIONS. 
 
 trusts for charitable associations have been authorized by 
 special laws. 1 A bequest in trust for a corporation need 
 not name the corporation, or be certain to every intent. 2 
 A bequest to the officers of the Protestant Episcopal 
 Church into the fund to support the episcopacy of the 
 church, has been held sufficient to carry the bequest to the 
 trustees for the management and care of the fund for the 
 support of the Episcopate of the Diocese of Central New- 
 York, the testator residing within the diocese and knowing 
 the existence of the corporation. 3 
 
 When a corporation has the power to take and hold the 
 property, a gift to the trustees of the corporation is a gift 
 to the corporation, 4 and if there is no active or statutory 
 express trust, the use is vested in possession in the cor- 
 poration, by virtue of the Statute of Uses as revised and 
 embodied in the Revised Statutes of New York. 5 
 
 A trust in lands for the benefit of any charity can only 
 be created in writing, whether it is intended to take effect 
 as an express trust or as a power. 6 As most charitable 
 trusts in lands now take effect as powers in trusts, 7 they 
 must be contained in some conveyance of an estate, or in a 
 last will and testament. 8 A trust in personalty may be 
 raised by parol ; 9 but if the trust is intended for charity 
 the same rules are applicable, as in the case of private 
 trusts in personalty ; at least until the year 1893, when the 
 
 1 E. g. trusts for Society of Friends, c. 184, Laws of 1839 » *• 20 9> Laws of 
 1878 ; c. 337, Laws of 1880 ; supra, pp. 117, 118. 
 
 2 Supra, p, 90. 
 
 B Trustees for Episcopate v, Colgrove, 4 Hun, 362 ; s. c. 6 Sup. Ct. 
 (T. & C), 614 ; Erwin ». Hurd, 13 Abb. N. C., 91. 
 
 4 Chamberlain v. Chamberlain, 43 N. Y., 424, 437; The N. Y. Inst, for 
 the Blind v. How's Exrs., 10 N. Y., 84 ; Erwin a. Hurd, 13 Abb. N. C, 91 ; 
 Manice v. Manice, 43 N. Y., 303, 314, 387 ; Van Deuzen <o. Trustees, etc., 
 4 Abb. Ct. App. Decis., 465. 
 
 6 Adams «. Perry, 43 N. Y., 487 ; Erwin ». Hurd, 13 Abb. N. C, 91. 
 
 6 2 R. S., 134, sec. 6 ; Hutchins«. Van Vechten, 140 N. Y., 155. 
 
 7 Supra, pp. 95, 97. 
 
 8 1 R. S., 735, sec. 106. 
 
 8 Day v. Roth, 18 N. Y., 448 ; Barry v. Lambert, 98 N. Y., 300 ; Gilman 
 v. McArdle, 99 N. Y., 451; Cochrane®. Schell, 140 N. Y., 516; Hirsh v. 
 Auer, 146 N. Y., 13. 
 
LAW OF CHARITABLE DONATIONS. 121 
 
 Act considered above was passed. l In other respects there 
 is no difference between public or charitable trusts in per- 
 sonal property and trusts not charitable and not public. 2 
 The absolute ownership of personal property may in no 
 case " be suspended by any limitation or condition what- 
 ever, for a longer period than during the continuance and 
 until the determination of not more than two lives in being 
 at the date of the instrument containing such limitation or 
 condition ; or if such instrument be a will for not more than 
 two lives in being at the death of the testator." 3 In all 
 other respects, limitations of future or contingent interests 
 in persona] property are subject to the rules prescribed in 
 the Revised Statutes in relation to future estates in lands. 4 
 The difficulty attending the creation of charitable devises 
 and bequests in New York has led to a class of donations 
 which ought to be classed with precatory trusts. The 
 donor on the face of the will gives the property absolutely 
 to persons in whom confidence is reposed ; but with direc- 
 tions, written or verbal, appealing to the conscience of 
 those who so take. In foro conscientiae such directions are, 
 when assented to, as binding and as effectual to create a 
 trust or confidence as if contained in the limitation, or deed 
 of gift itself, 5 and under most circumstances of the kind 
 indicated equity presumes an assent when the donee oc- 
 cupies a situation which inspires confidence in the donor. 
 In a late case 6 the will contained this clause : " If for any 
 " reason any legacy or legacies left by my will or by any 
 " codicil either pecuniary or residuary shall lapse or fail, 
 " or for any cause not take effect in whole or in part, I 
 " give and bequeath the amount which shall lapse, fail or 
 " not take effect, absolutely to the persons named as my 
 " executors. In the use of the same I am satisfied that 
 
 * C. 701, Laws of 1893 ; supra p. 104. 
 
 8 Supra, p. 101 ; Power v. Cassidy, 79 N. Y., 602, 613. 
 
 3 1 R. S., 773, sec. 1. 
 
 4 1 R. S., 773, sec. 2. 
 
 6 Matter of O'Hara, 95 N. Y., 403 ; The Trustees of Amherst College v. 
 Ritch, 91 Hun, 509 ; Inglis v. Trustees of Sailors' Snug Harbor, 3 Peters, 99, 
 119. 
 
 6 Will of Mary A. Edson, N. Y. Law Journal, XIV., p. 811 ; 15 Misc., 179 ; 
 Edson*. Bartow et at.; cf. Booth v. Baptist Church, 126 N. Y., 215. 
 
122 LAW OF CHARITABLE DONATIONS. 
 
 " they will follow what they believe to be my wishes. I 
 " impose upon them, however, no conditions, leaving the 
 " same to them personally and absolutely, and without 
 " limitation and restriction." Under this clause the execu- 
 tors took and conveyed to certain charitable institutions. 
 In an action brought to have the arrangement declared in- 
 valid and the testatrix declared intestate as to the property 
 passing under the clause quoted, the learned Justice who 
 heard the cause sustained the will. The case is so recent as 
 to preclude any discussion. 1 A like arrangement was in- 
 volved in the litigation attending the will of Fayerweather, 
 a merchant of the City of New York, who died in No- 
 vember, 1890, leaving a large estate to charitable institutions 
 or involved in a trust not wholly expressed on the face of 
 the will. 2 
 
 It is beyond our present purpose to discuss the remedy 
 of a donee where charitable uses or trusts are misapplied. 
 The question is discussed from one point of view in several 
 treatises of authority. 8 The Court of Errors first laid it 
 down as a general principle, that in case of a clear violation 
 of a well-defined trust of this character, the Court of 
 Chancery would be bound to interfere. 4 Whether such 
 interference may be at the suit of a private person, or only 
 by the State, is a question perhaps depending on particular 
 circumstances of a given case. 5 The new constitution has 
 made the State Board of Charities visitor of certain charit- 
 able foundations, and thus has possibly introduced a new 
 element in the former law. 6 By the "Executive Law" 
 the Attorney- General is now required to prosecute all ac- 
 tions and proceedings in which the State is interested. 1 
 
 1 Cf. Inglis v. The Trustees of Sailors' Sung Harbor, 3 Peters, at p. 119. 
 
 8 The Trustees of Amherst College v. Ritch, 91 Hun, 509. 
 
 8 E. g. Willard, Eq. Jurisp., p. 589, et siq. The residue of that writer's 
 chapter on charities is superseded by many decisions changing the law. Supra. 
 
 4 Millers. Gable, 2 Denio, 492; cf. Bowden v. M'Leod, 1 Edw., 588; Bap- 
 tist Church v. Witherell, 3 Pai. , 296. 
 
 6 Church of Redemption v. Grace Church, 68 N. Y., 570, 582; People v. 
 Powers, 83 Hun, 449, 457 ; rev'd above on another point, 147 N. Y., 104. 
 
 ' Art. VIII.; cf. c. 319, Laws of 1848, sec. 8. 
 
 7 Chap. 683, Laws of 1892; c. 821, Laws of 1895; Code Civ. Pro., sections 
 1797-1804. 
 
LAW OF CHARITABLE DONATIONS. 1 23 
 
 This duty is made more clear by the act of 1893, in respect 
 of charities. 1 
 
 As most permanent and indefinite charitable donations 
 are by the past policy of the State now required to be made 
 to charitable corporations, 2 the remedies for a breach of 
 the terms of the founders' or donors' gifts are generally to 
 be sought in the laws of the State regulating charitable 
 corporations, or in the law relating to a breach of common 
 law conditions. The terms of the gifts ordinarily merge, as 
 it were, in the charter of the donee corporation. If the true 
 intent and purpose of the franchise of such a corporation is 
 violated the State has an interest in suppressing the corpora- 
 tion, and may take away its charter. 3 The legislature may, 
 by a special act or otherwise, direct that proceedings be 
 instituted to annul the charter of any corporation created 
 by the State where general laws are inadequate. 4 Other- 
 wise the creature would be above the sovereign. But such 
 action is subject to constitutional restrictions touching 
 vested rights, even where the power to revoke the charter 
 was reserved to the State at the time when such corpora- 
 tion was chartered or incorporated. 5 These principles are 
 beyond the plane of this discussion. 
 
 By exceptions contained in the acts regulating succes- 
 sion taxes, property devised or bequeathed to any person 
 who is a bishop, or to any religious corporation, is exempt 
 from the tax. 6 
 
 1 C. 701, Laws of 1893 ; supra, p. 104. 
 
 8 Supra, p. 69. 
 
 * People v. Dispensary and Hospital Society. 7 Lansing, 304; People v. 
 North River Sugar Ref'g Co., 121 N. Y., 582. 
 
 4 Sec. 1798, Code Civ. Pro. (subject to sec. 1804, ibid.), cf. Code of Pro., sec- 
 tions 429, 430; note 22 Abb., N. C, 210; Matter of Amer. Dramat. Fund 
 Assoc'n, 22 Abb., N. C, 231 ; People v. Powers, 83 Hun, 449. 
 
 s People v. O'Brien, 111 N. Y., 1. 
 
 6 C. 398, Laws of 1890; c. 399, Laws of 1892. 
 
CHAPTER VI. 
 
 FORMS AND COMMENTARY. 
 
 The following forms are either in common use or are 
 so drawn as to afford an opportunity for the discussion of 
 certain points involved in a series of litigations over char- 
 itable donations. A concrete example affords the best 
 basis for a practical discussion of a doubtful branch of the 
 law. The forms do not purport to be complete ; they 
 may be readily amplified by the practical lawyer with 
 good results. Few set forms are adapted to the exigen- 
 cies of practice, for they do not always meet the testator's 
 wishes or circumstances. 
 
 [FORM OF BEQUEST TO A CHARITABLE OR A LITERARY 
 ASSOCIATION] 
 
 I give and bequeath to " The New York Historical 
 Society," founded in the year 1804, an d incorporated by 
 the Legislature of New York, in the year 1809, the sum 
 of dollars. 1 
 
 [OR THIS] 
 
 I give and bequeath to the Hospital, a body 
 
 corporate, maintaining a hospital in the City of New 
 York, 2 its successors and assigns for its or their own use, 
 
 1 This form is often used in practice. It is very precise in its de- 
 scription of the corporation intended to be made legatee \vid. pp. 
 90, 102, supra]. A body corporate should always be mentioned by 
 its proper corporate name, if possible \vid. next note]. 
 
 8 It is not always possible to obtain in a short space of time the 
 requisite data concerning the incorporation of a particular body cor- 
 
 134 
 
LAW OF CHARITABLE DONATIONS. 125 
 
 benefit and advantage forever, the sum of 
 
 thousand dollars. 
 
 [FORM OF BEQUEST OF A " REMAINDER," IN PERSONAL 
 ESTATE, TO A CHARITABLE CORPORATION.] 
 
 Item: I give and bequeath the sum of thousand 
 
 dollars to A and B (hereinafter nominated and appointed 
 executors of this my will 1 ), to hold the same in trust, to 
 keep the same invested during the life of my daughter, 
 C, 2 and to collect and receive the income thereof, and the 
 same to apply to the use of said C during the term of her 
 natural life ; and on the death of the said C, forthwith to 
 
 pay over the principal of said thousand dollars, 
 
 unto the New York Historical Society, a body corporate 
 [etc., etc. 3 ]. 
 
 And for the better effectuating of this bequest, I hereby 
 now give and bequeath the remainder 4 in said sum of 
 
 porate. In the absence of precise instructions, the draftsman of a. 
 will may then add matter of description which tends to identify the 
 corporation : such as the street on which its building is located \yid. 
 supra, pp. 90, 102, and form of description adopted in Wetmore 
 v. Parker, 52 N. Y„ at p. 452 , and in Booth v. Baptist Church, 126 N, 
 Y., at p. 217 ; cf. Shipman v. Rollins, 98 N. Y., at p. 328]. 
 
 1 This clause in brackets is optional. The trustees need not be 
 made executors of the will. 
 
 8 At common law, a bequest of the remainder or residue of per- 
 sonal estate could not be limited on a gift of personalty for life 
 [supra, p. 88; Van Home v. Campbell, 100 N. Y., at p. 305]; but 
 wherever there is now a clear bequest for life, at least without words 
 indicating that the life tenant is to have the absolute power of 
 spending the money, a " remainder " may be limited after the interest 
 for life [ibid., supra, et Tyson v. Blake, 22 N. Y., 558 ; Norris v. Beyea, 
 . 13 N. Y., 273 ; Matter of Cager, in N. Y., at p. 349 ; Crozier v. Bray, 
 120 N. Y„ 366, 380; Leggett v. Firth, 132 N. Y., 7, 11]. The courts 
 will, however, if possible, construe a life tenant's power to dispose 
 of the property as a power under the R. S., and not jus disponendi 
 [Leggett v. Firth, 132 N. Y., 7, 11]; and thus save the remainder 
 from being repugnant to the prior interest, 
 
 8 See the first form [supra, p. 124]. 
 
 4 As under the R. S. all expectant interests in personal property 
 are subjected to the rules prescribed in Chapter I., Part II. of the 
 
126 LAW OF CHARITABLE DONATIONS. 
 
 thousand dollars, so limited as aforesaid, in 
 
 trust, for the life of my daughter C, unto the said New- 
 York Historical Society, for its own use, benefit and ad- 
 vantage forever. 
 
 [DEVISE OF REMAINDER TO CHARITABLE CORPORATION.] 
 
 Item. — I devise the dwelling-house, in which I now re- 
 side, situate in the town of , together with the 
 
 garden and all actual and reputed appurtenances [or say 
 
 simply, the.house and lot known as street-number 
 
 West street, in the City of New York, being 
 
 the same premises derived by me by purchase from 
 ; or inherited from my father^, to my wife Eliza- 
 beth, for her life 'without impeachment of waste, 3 with re- 
 mainder to the Sheltering Arms of the City of Brooklyn, 
 
 a body corporate under Chapter of the laws of 
 
 New York, for the sole use, benefit and advantage of such 
 body corporate forever. 3 
 
 R. S., in relation to future estates in lands [supra, pp. 62, 96, 97, 98, 90, 
 100], an interest limited after a life estate in personalty, may be ac- 
 curately termed a "remainder'' and may now be created and transferred 
 by that name [1 R. S., 723, sec. 11 ; Crozier vs. Bray, 120 N. Y., at 
 p. 380]. 
 
 1 Either of these clauses in the brackets, according to the fact, 
 tends much to certainty in devises. 
 
 2 This may well be added to prevent contentions with those en- 
 titled to the remainder [1 R. S., 750, sec. 8 ; Code Civ. Pro., sec. 1651]. 
 
 8 An estate by way of remainder where a conversion is directed 
 vests only at the death of the wife [Shipmanz/. Rollins, 98 N. Y., 311]. 
 But the'devise of the remainder in the above form vests at the death 
 of the testator, and the capacity of the body corporate to take in pos- 
 session by devise must then exist under the law of New York [supra, 
 PP- 73. 79] '. ° r the devise of the remainder is void, and the estate 
 goes to the heirs of the testator [supra, pp. 58, 83]; unless there is a 
 devise over [supra, pp. 58, 83] ; or it falls into the residuary under the 
 present law [infra, p. 146]. The subject of devises and bequests 
 to corporations not in being at the testator's death is considered at 
 length in the text [supra, pp. 89, m], and in the notes on the subse- 
 quent forms [infra, pp. 134, 149]. 
 
 The converse of this form, a remainder on an estate for a corpor- 
 ate life is not good in New York. The reader will note that a gift 
 
LAW OF CHARITABLE DONATIONS. 1 27 
 
 [FORM OF BEQUEST TO RELIGIOUS CORPORATION, WITH 
 ALTERNATIVE BEQUEST OVER ON A CONTINGENCY.] 
 
 I give and bequeath to the Rector, Church Wardens 
 
 and Vestrymen of St Episcopal Church, 1 a 
 
 body corporate, in communion with the Protestant Epis- 
 copal Church, in the United States of America, and now 
 maintaining a church for Divine worship, in the city of 
 
 [or at the corner of and 
 
 streets in city 2 ] the sum of dollars. 3 
 
 And if it happen that the said corporation of St. 
 
 Episcopal Church may not, at the time of my decease, be 
 
 over after an estate to a charitable corporation in fee has been held 
 good in England, no matter on how remote an event it may be limited, 
 as its effect is to render property alienable again and thus take land 
 out of mortmain. [Christ's Hospital v. Grainger, 1 Mac. & G., 460 ; 
 see also re Randall, 38 Ch. D., 213]. But a future estate, limited after 
 a fee simple absolute to a body corporate, would not be so consonant 
 with the New York Revised Statutes. A lease of urban lands to a 
 body corporate on a nominal rent for a long term of years, would be 
 a settlement better adapted to the law of New York. The inherit- 
 ance could then be dealt with independently of the demise. 
 
 1 The Rector of a Church of England in the Colonies had the right to 
 the temporalities of the church after his institution and induction. 
 In the Province of New York, the institution and induction were at 
 first in the Latin tongue, but afterwards in English. These in- 
 struments are usually recorded in the older counties of New York. 
 After independence of the Crown, the rector, churchwardens and 
 vestrymen of the parish, as such, were usually incorporated under the 
 Act of 1784 [1 J. & V., 104; 1 K. & R., 336), revised in the Laws of 
 1813, Chap. 60 [cf. The Rector, Church Wardens, etc., of The Church 
 of the Redemption v. The Rector, Churchwardens, etc., of Grace 
 Church, 68 N. Y., 570]. The new incorporation law '[Chapter 
 723, laws of 1 895, sec. 3 1 ] permits this custom to continue or any other 
 designation which may be selected for the body corporate. The 
 name in the form is the usual corporate name under the old laws, but 
 tinder the new law "St. James' Church'' or "St. James' Episcopal 
 Church " would be a sufficient designation for a church body cor- 
 porate. 
 
 " The description must be such as to identify the corporation 
 [supra, pp. 124, 125 notes]. 
 
 8 Under the law of New York a corporation must have the power 
 to take and hold by bequest as well as by devise [supra, pp. 74-79, 82 ; 
 both rights are given by Ch. 687, sec. 11, Laws 1892]. 
 
128 LAW OF CHARITABLE DONATIONS. 
 
 empowered by law, or, for any other reason, entitled to 
 take and hold the sum so bequeathed to it, or any part 
 thereof, then and in that event, 1 I give and bequeath such 
 sum, or such part as such corporation shall not be entitled 
 to take and hold, to " the Cathedral Church of Saint John 
 the Diviiie," in the City of New York, a body corporate 
 pursuant to Chapter 222, New York Laws of 1873. 
 
 [FORM OF BEQUEST TO CHARITY SUBJECT TO ANNUITIES.] 
 
 Item : I give to Vassar Brothers' Home for Aged Men, 
 seven thousand dollars ; but upon the express condition 
 that the said Home pay the following annuities, viz. : one 
 hundred and fifty dollars, annually, in half-yearly payments, 
 to the Rev. Edward Van Kleeck, for and during the term 
 of his life ; and two hundred dollars, annually, in half- 
 yearly payments, to James Van Kleeck, for and during the 
 term of his natural life. 2 
 
 [BEQUEST OF MONEY TO CHARITABLE CORPORATION FOR 
 SPECIFIC PURPOSES, OR A SINGLE CORPORATE USE.J 
 
 Item: I give and bequeath the sum of $25,000 to the 
 Utica Orphan. Asylum (now having its buildings on the 
 road from Utica to New Hartford), 3 to be perpetually in- 
 vested by the trustees or managers thereof in the public 
 stocks of the United States, or of the State of New York, 
 
 1 A contingent limitation over to take effect in the event that the 
 primary bequest is defeated, is valid provided that it vest in interest 
 within the time prescribed by the R. S. against perpetuities [supra, 
 pp. 87, 88, 89] ; Van Home v. Campbell, 100 N. Y., at p. 306, seq. 
 
 ' A bequest, in this form, to a charitable corporation, subject to 
 three annuities, was sustained in Booth v. Baptist Church, 126 N. Y., 
 215. The power of a charitable corporation to take subject to an 
 annuity was there discussed and decided affirmatively. 
 
 B This is to identify the corporation [supra, pp. 124, 125 notes]. The 
 form itself is taken from the will sub judice'm the leading case of Wet- 
 more v. Parker, 52 N. Y., at p. 452. The court sustained the will in 
 that case. 
 
LAW OF CHARITABLE DONATIONS. 1 29 
 
 or in bonds and mortgages upon real estate, the fair value 
 of which shall in all cases be at least double the amount 
 secured by the mortgages, exclusive of the value of the 
 buildings ; and the interest and the income of which sum 
 (and only the interest and income) 1 shall be expended by 
 the trustees or managers, in their discretion, for the sup- 
 port and maintenance of said asylum, having special refer- 
 ence to the suitable and comfortable care of and provision 
 for the orphans in their charge ; it being my will, however, 
 that a sufficient portion of the interest and income first de- 
 rived from said investment [shall be expended] in procur- 
 ing, affixing and finishing suitable outside blinds for the 
 windows of the asylum buildings, provided that such blinds 
 shall not have been furnished before this bequest shall take 
 effect. 2 
 
 1 The question was made on this bequest whether such a restriction 
 upon the use of a donation to a body corporate constituted a trust or 
 a donation absolute, unaccompanied by a trust. If it was on trust, 
 the trust clearly violated the Revised Statute against perpetuities. 
 But the Court of Appeals held that a" corporation created for charity, 
 etc., may take and hold personal property to any of the corporate 
 uses of the donee ; and a direction of the donor that the principal 
 shall be kept inviolate, and the income only expended, will not in- 
 validate the gift : provided, of course, that the same is immediate and 
 vested " (Wetmore v. Parker, 52 N Y., at p. 458). Much more is 
 stated by the court on p. 459 to the same effect. The principle of 
 this case has been frequently cited with approval [supra, pp. 83, 84, 
 115, 116: but compare the briefs of counsel in Rainey -v. Laing, 58 
 Barb.. 453, 481, as to effect of testator's restrictions upon corporate 
 use of a donation, and see Matter of Isbell, 1 App., Div. 158]. 
 
 a On reading this form doubts will at once occur to the minds of 
 most professional men whether or not this bequest is in trust, or 
 simply a donation on condition subsequent ; and in either case what 
 the remedy is, if the legacy shall be accepted, and then the condition, 
 or intended use of the money, afterwards broken, ignored or violated 
 by the donee. It will be observed that the language of the Court of 
 Appeals in Wetmore v. Parker is such as to lead to the inference, 
 that the bequest in this form is absolute, and that the corporate user 
 of the fund is subject only to the restrictions prescribed by the cor- 
 porate franchises or charter. In so far as the donor's direction about 
 the investment of the fund is concerned it is to be disregarded if in- 
 convenient [p. 459]. The decision to a like effect in Williams v. 
 Williams, 8 N. Y., 525, is approved. The gift, then, in Wetmore v. 
 
130 LAW OF CHARITABLE DONATIONS. 
 
 [FORM OF BEQUEST TO CHARITABLE CORPORATION ON CON- 
 DITION.] 
 
 Item : I give and bequeath to the Baptist Church (situ- 
 ate in Mill street) in the City of Poughkeepsie, the sum of 
 ten thousand dollars, upon the express condition that the 
 same shall be employed only in the maintenance of the ex- 
 isting church edifice. 1 
 
 Parker was absolute to the corporation, and any violation of the 
 terms of such gift by the corporation was entirely inconsequential [vid. 
 Bird v. Merklee 144 N. Y., at p. 549] as long as the use of the fund 
 conformed to the charter of the corporation {supra, pp. 79, 86, 100, 
 114, 116, 117, 118]. If a charitable corporation has not the power to 
 hold on trusts, it is very clear in this State that it can not take 
 [supra, pp. 114, 115, 116], and it is equally clear that if the gift in this 
 case to the Utica Orphan Asylum had been on trust for poor orphans, 
 it would have been void for indefiniteness as well as because in con- 
 flict with the statute against perpetuities [supra, pp. 101, 102]. But it 
 was held not to be a gift to a trustee on trusts in the principal case. 
 Was it then a legacy subject to a condition subsequent, and if so, 
 what is the remedy for a breach of such a condition ? This con- 
 sideration we may reserve for the notes on the next form. 
 
 Ordinarily a conveyance in fee, for a specified use without any 
 words of condition or covenant against any other use, is ineffectual 
 to restrict the use [see note to Erwin v. Hurd, 13 Abb. N. C, at p. 
 106, and cases cited]. 
 
 1 In Booth v. Baptist Church, 126 N. Y., 215, 241, a legacy subject 
 to a condition precedent, was held void because it did not vest in in- 
 terest within the time prescribed by the Revised Statutes [1 R. S., 
 723, sec. 15]. But the above form presents an example of a condition 
 subsequent. No precise form of words is necessary to create condi- 
 tions in wills ; any expressions disclosing the intention will have 
 that effect. Thus a devise "to A, he paying " or " he to pay ^500 
 within one month after my decease '' would be a condition, for ireach 
 of which the heir might enter unless the property were given over 
 by way of executory devise [2 Powell on Devises, 251]. Such was 
 the common law. 
 
 Is there any essential change made in the law touching common 
 law conditions by the R. S. or any subsequent legislation ? It is 
 thought not. 
 
 Conditions are still either subsequent or precedent. In New York 
 a future estate or a future interest must vest within, or at the expira- 
 tion of, two lives in being [with one single exception relative to 
 the vesting of a remainder. 1 R. S., 723, sec. 16]. Consequently a 
 
LAW OF CHARITABLE DONATIONS. 131 
 
 [FORM OF DEVISE TO CHARITABLE CORPORATION ON CONDI- 
 TION.] 
 
 Item : I hereby give and devise my dwelling house, gar- 
 den, and lands appurtenant and heretofore used by me in 
 
 connection therewith (said premises being situate on 
 
 street in the town of ..) unto St. James' Episcopal 
 
 Church, 1 a body corporate, now maintaining an institution 
 
 for Divine worship in said town of ; for the use, 
 
 benefit and advantage ot said St. James' Church forever ; 
 provided that the premises hereby devised shall vest at my 
 death in the said body corporate in fee, subject to the 
 following express conditions ■? that is to say, the said St. 
 
 future interest limited to take effect upon a condition precedent must 
 vest within the rule, or it is void [Booth c/. Baptist Church, 126 N. Y., 
 215, 241]. Conditions subsequent operate to defeat estates or inter- 
 ests vested and existing [Shep. Touchstone, 117; Towle v. Remsen, 70 
 N. Y., at p. 309]. The distinction between conditions precedent and 
 conditions subsequent is not always clear [Nicoll v. N. Y. and Erie 
 Railway, 12 N. Y., 130 ; Bennett v. Culver, 97 N. Y., 250.] Conditions- 
 subsequent as they defeat estates are construed strictly [Woodworth 
 v. Paine, 74 N. Y., 196; Graves v. Deterling, 120 N. Y., 447] and 
 are often relieved against in equity [2 Story, Eq. Jurisp. sec. 1319 
 et scg.] Conditions subsequent may, at common law, be reserved 
 only for the benefit of the grantor and his heirs, and no others may 
 take the benefit of a breach [Nicoll v. N. Y. & Erie R. R., 12 N. Y., at 
 p. 131 ; Hoyt v. Dillon, 19 Barb., 644, 651 ; Towlez/. Remsen, 70 N. Y., 
 at p. 312 ; Countryman v. Deck., 13 Abb. N. C, 112]. If a condition 
 subsequent be rendered impossible to be performed by some ex- 
 trinsic circumstance, the gift is discharged from the condition and 
 becomes absolute [Thomas v. Howell, 1 Salk, 170]. Unless there is 
 a limitation over on breach of a condition, it may be held in certain 
 cases by the courts to be in terrorem only [2 Powell on Devises, 254 
 seql\. But it will be observed that a limitation over, under the R. S., 
 will be the creation of a future or contingent interest, and such new 
 interest so to arise must vest within or at the expiration of not 
 more than two lives in being or it will be void [1 R. S., 723, sec. 15 ; 
 Booth v. Baptist Church, 126 N. Y., 215]. While the present rule 
 against perpetuities does not refer to conditions [infra, pp. 133, 139.] 
 it certainly does refer to conditional limitations, or to limitations 
 over, on a determinable fee. 
 
 1 See note supra, p. 127, as to designation of corporation. 
 
 * Similar language in a deed was held in Erwin v. Hurd, 13 Abb. 
 N. C, 91, to create a condition subsequent. 
 
132 LAW OF CHARITABLE DONATIONS. 
 
 James' Church shall erect with the fund hereinafter be- 
 queathed to it on the lot aforesaid a good, sufficient and 
 convenient edifice, dedicated to the worship of Almighty 
 God, which edifice shall at all times be maintained as a 
 church or chapel according to the rites and ceremonies of 
 the Protestant Episcopal Church in the United States of 
 America. Provided always, and the said devise is subject 
 to the further condition, that if at any time after the erec- 
 tion of said edifice the said lot, piece or parcel of land 
 hereby devised in fee, shall be left vacant for the space of 
 two successive years, without any religious ministrations, 
 Divine service, or other Divine office being held thereon, 
 by some person duly inducted or admitted for such pur- 
 pose by the Bishop of the Diocese of New York, then and 
 in that event the estate of St. James' Episcopal Church, in 
 the premises hereby devised, and bequeathed, shall abso- 
 lutely cease and determine and my heirs may re-enter upon 
 said premises, and the same have again, hold, repossess 
 and enjoy. 1 
 
 1 Such a limitation in a devise creates a determinable fee [Challis, 
 44]. A determinable limitation of a fee is one expressed to be 
 made until the happening of some future event which never may 
 happen, for it is an essential characteristic of all fees that they 
 may endure forever [Challis, 197 ; Preston, Estates, I., 479]. A de- 
 terminable limitation is ordinarily self-executing. The fee determines 
 on the event [Challis, 206 ; Plowden, 242]. There are few examples 
 of a determinable fee in the later New York books. In Leonard v. 
 Burr, 18 N. Y., 96, the devise was " to the use of ' A ' until Glovers- 
 ville shall be incorporated as a village,'' and then a devise over in the 
 nature at the present day of a conditional limitation. Had the devise 
 in this case been to " A " and his heirs, until, etc., etc. with no 
 devise over, the case would by the common law have presented an 
 excellent example of a determinable fee. On principle the decision 
 in Leonard v. Burr, as it is since the R. S., is not very satisfactory 
 and the case need not be pursued in connection with this subject. A 
 determinable fee is classed with common law fees [Challis, 43 ; Pres- 
 ton's Shep. Touch., 203], and on principle must still exist in this 
 State [Chaplin, Suspens. Power of Alienation, sec. 131]. Abase, im- 
 pure or determinable fee may be created also by a grant or devise in 
 fee subject to a condition subsequent ; at least, when such condition 
 is made quite irrespective of any limitation over. Indeed, any limi- 
 tation over upon the happening of the event, expressed in the condi- 
 
LAW OF CHARITABLE DONATIONS. 1 33 
 
 Item : I hereby give and bequeath unto said Saint James' 
 Episcopal Church, a body corporate as aforesaid, the sum 
 of twenty thousand dollars wherewith to erect the edifice 
 mentioned in the next preceding clause of my will. 
 
 Item : I hereby give and bequeath unto said Saint James' 
 Episcopal Church the further sum of five thousand dollars, 
 to be kept well invested at interest, in such security or in- 
 vestments as may be approved by the Church Wardens of 
 said Church, and the Bishop of the Diocese, and my will 
 is and 1 so direct and declare that the clear net annual in- 
 come derived from such investment and security, shall be 
 expended only in the repair and adornment of the build- 
 ing or its appurtenances so to be erected with the fund 
 bequeathed by the next preceding clause of this my will. 1 
 
 tion may be destructive of the grant or devise, as creating a 
 perpetuity. But this reasoning will not be pursued here. A de- 
 terminable fee leaves always a possibility of reverter in a grantor or 
 devisor. This is sometimes called a bare possibility. At common 
 law such a possibility was descendible, but not devisable or assign- 
 able [Challis, 58, 63 ; sed cf. Judge Hare's note to Dumpor's case, 1 
 Smith Lead. Cas.]. Under the R. S. a possibility of reverter is not an 
 estate in lands, and until the contingency happen the whole title is 
 in the grantee or devisee [Nicoll v. N. Y. and E. Railway Co., 12 
 N. Y., 121, 133 ; Vail v. L. I. R. R. Co., 106 N. Y„ 283 ; cf. Van Rens- 
 selaer v. Read, 26 N. Y., 558, 563, as to possibility of reverter on 
 limitation of a fee reserving a perpetual rent ;Butler's note a, Fearne, 
 Conting. Rem., 382]. The rule against perpetuities has no reference 
 to conditions [infra, p. 139]. The possibility is a vested interest 
 susceptible of being released [Kent, Comm., IV., 9 ; and see Proprie- 
 tors of the Church in Brattle Square v. Grant, 3 Gray (Mass.), 142], or 
 of being merged in the inheritance. In New York the possibility 
 and the fee are both vested and marketable or assignable [Code Civ. 
 Pro., sec. 1910], although not so at common law [Preston's Shep. 
 Touch., 120; Challis, 153]. 
 
 1 It is assumed that these last two bequests work a conversion and 
 are not trusts of personalty, stricti juris, but donations on con- 
 dition. {Supra, pp. 129, 130.] But they may be validated beyond 
 question as trusts of personalty by a direction that the expenditure 
 be in the lifetime of A and B, and that dying A and B, the corpus vest 
 in the church corporation absolutely. 
 
134 LAW OF CHARITABLE DONATIONS. 
 
 [FORM OF BEQUEST AND DEVISE OF RESIDUARY ESTATE, REAL 
 AND PERSONAL, TO TRUSTEES OF AN EXPRESS TRUST FOR 
 TWO LIVES (OR THE SHORTEST POSSIBLE PERIOD WITHIN 
 SUCH LIVES), FOR THE ULTIMATE BENEFIT OF A HOS- 
 PITAL CORPORATION, DIRECTED TO BE FORMED AFTER 
 THE TESTATOR'S DEATH.] 
 
 FIRST. — Allspecific devises and bequests, and directions for 
 payment of debts, etc., out of property. 
 
 Second. 1 — I hereby give, devise and bequeath to my ex- 
 ecutors and trustees (hereinafter nominated and appointed) 
 
 1 This note should be read in conjunction with those below, on the 
 succeeding forms. These forms are intended as outlines only for 
 the practitioner's consideration in connection with the notes. The 
 skilful counsel will readily improve on any forms and, indeed, iit 
 practice, can rarely adapt set forms to the circumstances of a testator. 
 A charitable corporation to be formed may unquestionably take, by 
 means of a trust, an executory devise or a remainder [Booth i>. Bap- 
 tist Church, 126 N. Y., at p. 237 ; and cases cited supra, pp. 89, m ; 
 cf. Hayes v. Pratt, 147 U. S., 557, 567]. The leading cases involving 
 devises or benefactions to corporations to be formed after a testator's 
 death, may be said to be Inglis v. Sailors' Snug Harbour, 3 Peters, 99; 
 Burrill v. Boardman, 43 N. Y., 254; Shipman v. Rollins, 98 N. Y., 311 ; 
 Tilden v. Green, 130 N. Y., 29 ; and Ould v. Washington Hospital for 
 Foundlings, 95 U. S., 303. The devise in Inglis v. The Trustees of 
 the Sailors' Snug Harbour, was, under the old law, before the Re- 
 vised Statutes of New York, held to be a valid executory devise, not 
 violating the rule then directed against perpetuities (lives in being 
 and a term of twenty-one years in gross). It cannot be doubted that 
 by the common law a present devise to a corporation not in esse at 
 the time the will became operative was wholly void. The reason was 
 that the law did not contemplate a possibility upon a possibility, 
 called a double possibility (Cholmley's Case, 2 Rep., 50; Challis, 91). 
 But the Court in the case of the Sailors' Snug Harbour', held that the 
 devise was not a present devise to a corporation not in being, but a 
 devise to take effect in futuro upon the corporation being created 
 (Ould v. Washington Hospital, 95 U. S., 313). The Revised Statutes, 
 as it will be remembered, took away the feudal rules of the common 
 law, prohibiting any abeyance of the seizin, and a legal limitation 
 upon a double possibility (1 R. S., 724, sec. 24; 1 R. S., 725, sec. 34). 
 But in Burrill v. Boardman, 43 N. Y„ 258, the Court still adheres to 
 the reasoning in the Sailors' Snug Harbour case, holding the bequest 
 there to be valid, not as a present bequest, but as one taking effect 
 in futuro (citing Fearne, Conting. Rem., 536). At the present day, it 
 
LAW OF CHARITABLE DONATIONS. 1 35 
 
 and to their successors in the trusts hereby created, and 
 to the survivor or survivors of them, all the rest, residue 
 and remainder of my estate, real, personal and mixed, of 
 whatever name or nature, and wheresoever situated, of 
 which I may die seised or possessed, or to which I may be 
 entitled at the time of my decease, in trust nevertheless for 
 the uses and purposes following, that is to say : Upon 
 trust 1 to invest and keep invested the personal estate, and 
 in case of the sale of any real estate (under the power 
 herein contained), to invest the proceeds thereof so that it 
 may be be productive of interest ; to let or lease the said 
 real estate, or any part thereof, from year to year ; to sell, 
 dispose of and convey any or all of my real estate not 
 hereinbefore specifically devised, at such time or times as 
 the trustees hereunder may deem advantageous to my 
 estate ; and to collect and receive the rents, issues, divi- 
 dends and profits of said residuary estate, and after de- 
 ducting all taxes, assessments, water rates, liens and 
 charges, including all the lawful expenses of management 
 of the estates hereby devised and bequeathed, to apply the 
 
 cannot be doubted, although executory devises are wholly abolished 
 by the Revised Statutes (130 N. Y., p. 47), that a present devise to a 
 corporation to be formed, if it must vest within the time prescribed 
 by the Revised Statutes, is good in New York (Tilden v. Green, 130 
 N. Y., at p. 47 ; Shipman v. Rollins, 98 N. Y., 31 1 ; supra, pp. 89, 1 1 1). 
 As the existing restrictions upon the form of devises are never re- 
 ferable to the old rules touching the feudal seisin, but emanate 
 from the Revised Statutes against perpetuity, the rule thus an- 
 nounced, in Tilden v. Green, must meet the approval of the profes- 
 sion, especially after the decision in Shipman v. Rollins, 98 N. Y., 311. 
 The former rules of law about vesting of estates had, first, a relation to 
 the common law rule forbidding abeyance of the the seisin, and next 
 to the rule subsequently directed against perpetuities. Under the 
 R. S. the former rule has disappeared and it ought to be quite suffi- 
 cient now for most purposes, if the estate must actually vest within 
 the lawful time \cf. p. 351, Cruikshank v. Home for Friendless, 113 
 N. Y., about present immateriality of where the fee meantime lodges]. 
 1 This form of devise of an estate to executors and trustees with 
 ordinary powers of sale has been before the Court of Appeals, and is 
 in common use in this State, in connection with an estate to support 
 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, etc., etc. 
 
136 LAW OF CHARITABLE DONATIONS. 
 
 sum remaining out of the rents, issues, dividends and 
 profits of the said residuary estate to the use of A and B, 
 as joint tenants, 1 and not tenants in common, until 3 the 
 body corporate hereinafter mentioned shall be incorpo- 
 rated under the laws of the State of New York relating 
 to Hospital Corporations ; which incorporation I direct 
 shall be in the life time of the said A and B, or either of 
 them, and as speedily as may be possible after my decease, 
 without any regard to the detriment or loss occasioned to 
 said A and B by reason of such speedy cessation of the 
 trusts for their benefit. 3 And I further direct and declare 
 
 1 Such a limitation is common even intrusts of personalty, 1 Powell 
 on Devises, 673. Where a trust is now made for the life of any person, 
 the income of the estate may be given to as many persons as the 
 testator chooses (Schermerhorn v. Cotting, 131 N. Y., 48). But this 
 is undesirable in the. case of an ultimate limitation to a corporation 
 not in esse, in derogation of the prior limitation. 
 ' s A and B may be any two persons not trustees under the will. 
 The R. S. does not tolerate an express trust in lands excepting in one 
 of the four instances enumerated in the 55th Section (1 R. S., 728, as 
 amended in 1830). A trust in lands for the ultimate benefit of a cor- 
 poration not in esse is therefore valid only as a power {supra, pp. 95, 
 97), and the lands descend to the heirs or devisees subject to the 
 power (1 R. S., 729, sections 56, 59). As there can be no accumula- 
 tion of the rents and profits of lands and personal estate, except for 
 minors (1 R. S., 726, sec. 37 ; 1 R. S., 773, sec. 3), there can be no direc- 
 tion to accumulate them for the benefit of a corporation not in esse. 
 It may not be desirable that that they should pass as undevised to 
 the heirs-at-law or next of kin, even for a brief space. Nor is it de- 
 sirable that the lands should descend subject to the execution of the 
 power, for the rents follow the fee unless otherwise disposed of. The 
 whole residuary estate should, therefore, be vested in the trustees if 
 possible ; but subject to being divested as soon as the body corporate 
 comes into being. The plan of the form above, while tentative, 
 seems to be open to less objection than those adopted in some nota- 
 ble cases where the devises have wholly failed. 
 
 8 This provision seems necessary in order to rebut any presump- 
 tion that the active trusts for their benefit are to endure for any ap- 
 preciable space of time ; the real intention of the testator being that 
 the trusts shall cease as soon as a hospital corporation can be formed 
 under the general laws of New York, living A and B or the survivor. 
 The form above outlined is intended for use only in cases where no 
 general conversion of the real estate is contemplated. Where an im- 
 
LAW OF CHARITABLE DONATIONS. 1 37 
 
 that immediately upon the incorporation of the said body 
 corporate, the trusts for A and B heretofore created and 
 limited shall cease and determine, and that the trustees 
 under this, my will, shall stand seised and possessed of 
 of the said residuary estate only to and for the sole use 
 and benefit and advantage of such body corporate, and to 
 and for no other use, trust and purpose whatsoever ; x and 
 the said residuary estates shall then be the estate of the 
 said body corporate forever, free and discharged of the 
 said trusts for A and B and of any trusts , whatever. 2 The 
 better to effectuate the said estates in the possession of 
 said body corporate, I do hereby direct and empower the 
 trustees under this will, to convey, assign, transfer and set 
 over the said residuary estate unto said body corporate, in 
 due form of law by such proper assignments, transfers, 
 assurances, deeds and conveyances as counsel learned in 
 the law may advise are necessary or expedient. 3 
 
 Third. — I hereby request and direct my executors and 
 trustees, hereinafter named, and their successor and succes- 
 sors in the trusts created by this will, to forthwith, after 
 my decease, or as soon as conveniently may be, living A 
 and B, or either of them, to cause to be incorporated a 
 
 mediate conversion is contemplated a limitation for the benefit of a 
 corporation to be formed would be much simpler. 
 
 1 The trust estate ceases when the trust purposes cease (1 R. S., 
 730, sec. 67), and our Statute of Uses as revised (1 R. S., 727, sec. 47), 
 vests the use in the persons next entitled to possession (Selden v. 
 Vermilyea, 3 N. Y., 525 ; Wright v. Douglass, 7 N. Y., 564, 570 ; Ring 
 v. McCown, 10 N. Y., 268, 271 ; Kip v. Hirsch, 103 N. Y., 565, 570; 
 Helk v. Reinheimer, 105 N. Y., at p. 475 ; Matter of Livingston, 34 
 N. Y., 555, 567; Watkins v. Reynolds, 123 N. Y., 211). 
 
 2 In a will a devise of an "estate " to one, is equivalent to a devise 
 of a fee simple [Jarman's Powell on Devises, II., pp. 411, 412]; but 
 these words do not constitute a present devise. 
 
 Notwithstanding the Statute of Uses, as contained in the Revised 
 Statutes, vests the use in possession of the hospital immediately 
 upon the cessation of the trusts for A and B, yet it is often' desirable 
 that there shall be a formal conveyance of an outstanding title, and 
 the Court has the power to compel such conveyance [Anderson v. 
 Mather, 44 N. Y., 249]. In respect of the trusts of personalty, stocks, 
 etc., this direction is especially expedient for many purposes. 
 
138 LAW OF CHARITABLE DONATIONS. 
 
 body corporate under the laws of the State of New York, 1 
 for the purpose of founding, conducting and maintaining 
 
 a hospital in the city of for the care of the needy 
 
 sick or maimed of such city, and for the purpose of forth- 
 with taking over and receiving in possession and holding 
 in perpetuity 2 my said residuary estate, real, personal and 
 mixed : wherewith to found, conduct and maintain such 
 hospital, as aforesaid. 
 
 And I hereby request and direct that the executors and 
 trustees under this will, and such other persons as they in 
 their discretion shall nominate and appoint, shall act as 
 founders, incorporators and the first board of managers or 
 trustees of the said body corporate, with the usual powers 
 and duties prescribed by the laws of the State of New 
 York in respect of Hospital Corporations, and subject to 
 such by-laws and regulations as may be legally imposed and 
 adopted by the said incorporators and their successors. 3 I 
 request that the said Hospital shall be maintained especi- 
 ally for the sick and the maimed of said city without regard 
 to the religious belief or nationality of any applicant for 
 relief ; subject, however, to the by-laws of said body cor- 
 porate regulating the admission and the occupancy of 
 those who may become, or at any time be, the inmates of 
 such Hospital. 
 
 I earnestly request that the trustees under this Will may 
 see to it, that the body corporate so to be formed for the 
 purpose of taking over the said residuary estate shall be 
 
 known by the name of Hospital; or 
 
 by some kindred appellation permitted by the laws of the 
 State of New York. I request also that the by-laws of 
 
 1 See the importance of providing that the incorporation may be 
 under general laws, Cruikshank v. Home for the Friendless, 113 
 N. Y., at p. 352; Booths. Baptist Church, 126 N. Y., 215. 
 
 " The rule against perpetuity has no reference to the duration of 
 any donations absolute to bodies corporate. [Supra, pp. 55, 72, 100.] 
 
 8 In the absence of any statutory provision, the persons first form- 
 ing the body corporate, have the power of electing their successors 
 [Angell & Ames on Corp., 70]. Under the Membership Corp. Law of 
 New York [Chap. 559, Laws of 1895, sections 8, 9], a like power is 
 conferred on Hospital Corporations. 
 
LAW OF CHARITABLE DONATIONS. 1 39 
 
 such corporation shall, as far as may be consistent with the 
 laws in such cases made and provided, conform to my 
 desire in the following respects : l {Here insert thejn.) 
 
 Fourth. — If it shall transpire for any cause unforeseen, 
 that both the said A and B shall die before the said Hosp- 
 ital Corporation, so intended to be formed, shall be em- 
 powered by law to take said residuary estate ; or if it hap- 
 pen that when, five years 2 after my decease shall have 
 elapsed, living A or B, the Hospital Corporation to be 
 formed pursuant to the preceding clause of my will, shall 
 not be vested and possessed of the said residuary estate, 
 or have capacity to receive the same, in whole or in part, 
 in possession, then and in either of those events, whichever 
 first happen, I give, devise and bequeath all the said 
 
 1 Here may follow such other precatory directions concerning the 
 future management of the corporation as the testator may desire. 
 Stephen Girard's will was in this regard most precise ; the will of 
 Captain Randall, founder of the Sailors' Snug Harbor, less so. In 
 both cases the directions of the founders have been most carefully 
 followed. But as in this State the founder's heirs have no visi- 
 torial power, the corporation endowed by his will is usually quite in- 
 dependent of any such directions, unless they may be embodied as 
 conditions subsequent in a conveyance executed under a power con- 
 tained in a will. It is, therefore, needless to disguise that directions 
 in a will, in regard to a corporation to be formed, are generally de- 
 void of authority, as the law stands at present. A present devise on 
 condition to a corporation in esse stands on quite a different footing. 
 Conditions are made great use of in conveyances since the aboli- 
 tion, in this State, .of tenure and most uses and trusts [Van Rensse- 
 laer v. Dennison, 35 N. Y., 393, 400 ; see legacies on condition, 
 Booth v. Baptist Church, 126 N. Y., p. 217]. 
 
 As the statute now directed against perpetuities can have no refer- 
 ence to common law conditions [Challis, 152,207; Gray, Restraints on 
 Alienation, 30, cf. dictum Gibert v. Peteler, 38 N. Y., at p. 169; and 
 see as to condition precedent, Booth v. Baptist Church, 126 N. Y., 
 p. 241], this species of limitation offers a large field for convey- 
 ancers, when drafting benefactions to charity. 
 
 8 " A limitation of a trust estate for an arbitrary period of time, 
 such as fifty years, is valid, provided a termination at an earlier 
 period is called for by the expiration of two lives in being at the 
 creation of the trust." Schermerhorn v. Cotting, 131 N. Y., at p. 58 ; 
 Deegan v. Wade, 144 N. Y., 573, 576 ; Montignani v. Blade, 145 N. Y., 
 in. 
 
I40 LAW OF CHARITABLE DONATIONS. 
 
 residuary estate heretofore devised and bequeathed, or in- 
 tended so to be, for the benefit of such Hospital Corpora- 
 tion to be formed, unto the Hospital, a body 
 
 corporate, maintaining and conducting a hospital in the 
 
 said city of for the sole corporate use, benefit 
 
 and advantage of said Hospital forever. 1 
 
 Fifth. — I do hereby nominate and appoint 
 
 and executors 
 
 and trustees of this my will ; hereby revoking and annull- 
 ing all former and other wills by me made, and declaring 
 this to be my last Will and Testament. 2 
 
 x An alternative devise and bequest over was attempted and sus- 
 tained in Cruikshank v. Home for the Friendless, 113 N. Y., 337, 353; 
 but in Booth v. Baptist Church, 126 N. Y., 215, another form of 
 alternative devise over was held bad, and so conceded to be. In 
 Tilden v. Green, 130 N. Y., 29, the alternative devise failed. But 
 even if an alternative devise be now limited upon a trust estate for 
 two lives, by way of remainder it must be good. "At common law 
 several fees might be limited in the alternative by way of remainder 
 upon the same particular estate, upon such contingencies that not 
 more than one of them could by possibility happen. Loddington v. 
 Kime, 1 Salk, 224; 1 Ld. Raym., 203; Fearne, Conting. Rem., 373; 
 Doe v. Burnsall, 6 T. R., 30; re White and Hindle's Contract, 7 Ch. 
 D., 201 ; " Challis, 61. The R. S. (1 R. S., 723, sec. 16) have not 
 affected this rule. 
 
 2 The selection and appointment of executors and trustees under a 
 will intended to establish a charitable foundation is of the first im- 
 portance. Heirs presumptive and next of kin may be adverse to the 
 charity. The duties of executors and of trustees are not always 
 identical ; but where they are authorized to do some act falling 
 under the express trust purposes [1 R. S., 728], executors may be 
 regarded as trustees of an express trust [Wood v. Brown, 34 N. Y., 
 337, 340]. The will of Captain Randall, the munificent founder of "The 
 Sailors' Snug Harbour," selected a number of public officials and was 
 in this form : "And, Lastly, I do nominate and appoint the Chancellor 
 " of the State of New York for the time being at the time of my de- 
 " cease, the Mayor of the City of New York for the time being, the 
 " President of the Chamber of Commerce for the time being, the 
 " President and the vice-President of the Marine Society of the City 
 "of New York for the time being, the Senior Minister of the Episco- 
 " pal Church in the City of New York, and the Senior Minister of 
 " the Presbyterian Church in the said city, for the time being, and 
 " their successors in office after them, to be the Executors of this 
 
LAW OF CHARITABLE DONATIONS. 141 
 
 In witness whereof, I, the said , have 
 
 to this my last Will and Testament (consisting of.. 
 
 pages, written on both sides ; each written page being 
 signed by me 1 ), subscribed my name and set my seal this 
 
 day of ..-,189 . 
 
 Signature, [L. S.J 
 
 [Attest the will in the presence of at least two wit- 
 nesses. 2 ] 
 
 " my last Will and Testament, hereby revoking, etc." Stephen 
 Cirard nominated five prominent citizens as executors. In both 
 cases the trusts were carried out. An executor may be appointed by 
 the name of dignity, office and the like, e.g., "The Episcopal Bishop 
 of the Diocese of New York,'' would be a good description of a de- 
 visee and a fortiori of an executor [Co. on Litt, 3 a ; Hob., 32 ; 1 
 Powell on Devises, 265 ; cf. Hartnett v. Wandell, 60 N. Y., 346]. 
 
 It may be well, in a will devoting property of great magnitude to 
 charity, to provide for a failure of a set of executors to qualify as well 
 as for their failure to form the body corporate, designed by the testa- 
 tor to be his residuary legatee and devisee. A testator may even 
 delegate the power of naming an executor of his will. [Hartnett v. 
 Wandell, 60 N. Y., 346.] 
 
 1 This in brackets may be omitted, but as in one case a will failed 
 where new pages were inserted by the testator after the original will 
 had been executed according to the statute, it is regarded as always 
 desirable to provide for proof or identification of all the pages of a 
 will, as well as for its subsequent custody. 
 
 2 The usual form under the R. S. is thus : 
 
 " Subscribed by the testator in the presence of each of us [or ac- 
 knowledged by the testator to each of us to have been subscribed by 
 him] and at the same time declared by him to us, to be his last Will 
 and Testament ; and thereupon we, at the request of the testator, do 
 sign our names .hereto as witnesses, in his presence and in the 
 presence of each other, this day of , 189 . 
 
 Signatures and addresses of witnesses : " 
 
 While an executor is not now an incompetent witness [The Chil- 
 dren's Aid Society v. Loveridge, 70 N. Y., 387], it is highly desirable, 
 for obvious reasons, to have no person witness the execution of a 
 will whose name is mentioned in the will itself. 
 
142 LAW OF CHARITABLE DONATIONS. 
 
 [FORM OF BEQUEST AND DEVISE OF RESIDUARY REAL AND 
 PERSONAL ESTATE (WITHOUT ANY EXPRESS TRUST) FOR 
 THE BENEFIT OF A HOSPITAL CORPORATION TO BE 
 
 FORMED. 1 ] 
 
 FIRST : Specific bequests and devises. 
 
 Second : I hereby give, devise and bequeath to my ex- 
 
 1 The scheme of this form is substantially that adopted in the will 
 in Tilden v. Green, 130 N. Y., 29; but in that case the court de- 
 clined to decide [p. 53] whether the executors took the legal estate to 
 the lands, or a power in trust under the R. S. The intention in this 
 form was to draft a devise which does not depend on an ex- 
 press trust. At the threshold of such an undertaking, counsel will, 
 perhaps, be confronted with the following doubt : Is it possible to 
 devise an estate to a corporation not in esse [but to be formed within 
 two specified lives] without limiting also some intermediate or par- 
 ticular estate ? There is something said in Booth v. Baptist Church, 
 126 N. Y., at p. 237, which tends to hold that a devise to a body cor- 
 porate not in existence, can be effected only by means of a trust, or 
 by creating a future estate by way of executory devise or contingent 
 remainder. Before the R. S. a devise to a corporation not in. esse 
 could be effected by an executory devise [Inglis v. Sailors' Snug 
 Harbour, 3 Peters, 99], or by a springing use. Such limitations were 
 valid, although contrary to the well-known rule of legal limitations, 
 that an estate of freehold could not take effect in futuro, except by 
 way of remainder. If before the R. S. a limitation took the form of 
 an executory devise and there was no disposition of the freehold be- 
 fore the executory limitation was to be executed as an estate, the 
 estate descended until the executory devise took effect [Cruise, D., 
 Tit. xxxviii., c. 18, s. 1 ; 2 Bla. Comm., 173]. So before the R. S. if a 
 limitation took the form of a conveyance to uses [and even in a will, 
 the limitation might take this form, for the better opinion is that the 
 Statute of Uses operated on uses created by will, although the 
 Statutes of Wills were enacted after the Statute of Uses, 1 Sand. Uses, 
 195; 2 Fonbl. Treat. Eq., 24; 1 Sugden on Powers, 238; 1 Jarman's 
 Powell on Devises, 214, note 2 ; ibid. 217, note 3 ; Ram on Wills, 254], 
 and there was no disposition of the intermediate use, or of the use 
 prior to the use limited to the corporation to be formed ; in that case 
 a use must have resulted until the springing use arose [Cornish on 
 Uses, 68 et seg.]. It is not possible that the R. S. which declared feudal 
 tenures abolished and entirely abrogated the fundamental principles 
 applicable to common law conveyancing, intended to prevent a limi- 
 tation to a corporation not in esse [if such estate is made to vest 
 within the period of two lives in being], unless some intermediate 
 
LAW OF CHARITABLE DONATIONS. 1 43 
 
 ecutors and trustees and to their successors in the trusts 
 hereby created, and to the survivor and survivors of them, 
 all the rest, residue and remainder of all the property, 
 
 estate is also limited byj the same instrument. Such a result would 
 not be consistent with the reform intended by the R. S. The R. S. 
 say, that a freehold estate may be created to commence at a future 
 day [1 R. S., 724, sec. 24] and that no remainder valid in its creation 
 shall be defeated by the determination of the precedent estate before 
 the happening of the contingency on which the remainder is limited 
 to take effect [1 R. S., 725, sec. 34]. There is, moreover, no provision 
 of the R. S. which invalidates a limitation which would formerly 
 have been good as a springing use, provided it now take effect 
 as an estate within the time prescribed by the new rule 
 against perpetuities. The intention of the R. S. was to con- 
 solidate all the rules relating to uses, executory devises and 
 legal limitations and subject them to one uniform principle 
 [see Revisers' Notes to Article 1, Chap, i, Part II. R. S.], free from 
 feudal reasons and dependent only upon the reasoning applicable to 
 all property, personal as well as real [ibid, supra}. It is therefore 
 clear that on principle a devise at the present day to a corporation 
 not in esse, or to one to be formed, is now valid, if the estate is made to 
 vest in possession of such corporation within or at the expiration of 
 two lives in being when the will takes effect [1 R. S., 723, sec. 15 ; 1 
 R. S., 726, sec. 41] ; even though the testator wholly fails to dispose 
 of the estate for the period prior to the time prescribea for the 
 ultimate vesting of such estate in the new corporation. 
 
 To hold the contrary would be to restore the feudal rule of the 
 common law, exacting that a seisin must be continuous [vid. Challis, 
 Rule 1, p. 80 ; and ibid., Rule 4, p. 88]. It would be counter to the ex- 
 press provision of the R. S., that a freehold estate may be created to 
 ■commence at a future day [subject only to the rule against per- 
 petuities] [1 R S., 724, sec. 24], and to the other rule taking away the 
 common law necessity of a particular estate to support a remainder 
 [1 R. S., 725, sec. 34]. Now when a valid expectant estate is limited 
 and the ownership is in abeyance and there is no valid direction for 
 accumulation, the rents go to the persons presumptively entitled to 
 the next eventual estate [1 R. S., 726, sec. 40]. 
 
 It is very clear that by the Article of the Revised Statutes (Art. 
 II. of Tit. II., Part II., R. S.) relating to trusts, it is intended, that 
 a trustee of real property shall take the legal title only in one of 
 the four instances prescribed by the statute {supra, pp. 95, 97 ; 1 
 R. S„ 728, sec. 55 ; 1 R. S., 729, sec. 58). In every other case, where 
 the trust is valid only as a power, the lands to which the trust re- 
 lates remain in, or descend to the persons otherwise entitled, sub- 
 ject to the execution of the trust as a power (1 R. S., 729, sec. 59). 
 
144 LAW OF CHARITABLE DONATIONS. 
 
 real and personal, of whatever name or nature, and where- 
 soever situated, of which I may be seised or possessed, or 
 to which I may be entitled at the time of my decease, 
 
 These provisions, separating the trust from the legal title, in all but 
 four instances, have not, however, deprived owners of property of 
 the power of imposing upon their estates most other limitations 
 having the general characteristics of a former trust (supra, p. 97 ; 
 Downing v. Marshall, 23 N. Y., at p. 377). It matters little, therefore, 
 whether executors take the legal title to lands as trustees, or a 
 power in trust, under the Revised Statutes, without the legal estate 
 (Brandow v. Brandow, 66 N. Y., 401, 406'; Cruikshank v. Home for 
 the Friendless, 113 N. Y., at p. 351). We should remember that a 
 trust at common law, excepting one to accumulate . did not create a 
 perpetuity ; there was nothing in a trust estate which made it in- 
 alienable per se (Hillen v. Iselin, 144 N. Y., at p. 379). Indeed, any 
 restraint upon the power of alienation might vitiate the trust (Lewin 
 on Trusts, Last Edit., 98; ibid, (ist Edit.), 138), before the Revised 
 Statutes ; excepting in the case of a trust for a married woman 
 (Lewin on Trusts, p. 693, and chap, xxvii., sec. 6, Estate of a feme 
 covert cestui que trust ; Mr. Sandford's brief, 6 N. Y., at p. 574 et seq.). 
 Trust estates in New York were in two cases first made inalienable 
 by force of the Revised Statutes (1 R. S., 730, sec. 66 ; Leonard v. 
 Burr, 18 N. Y., at p. 107 ; Hillen v. Iselin, 144 N. Y., at p. 379 ; Robert 
 v. Corning, 89 N. Y., 225). Where the trust estate is now made in- 
 alienable beyond two lives in being, it offends the present statute 
 against perpetuities. A trust to receive the rents and profits of 
 lands and apply them to the use of a person generally, or a trust to 
 accumulate for the benefit of one or more minors, renders the estate 
 inalienable (Radley v. Kuhn, 97 N. Y., 26, 31). In the cases of other 
 trusts of lands, the trust estate is not inalienable, and therefore does 
 not offend the statute against perpetuities {ibid., supra ; 1 R. S., 728, 
 sec. 55). 
 
 It has been strenuously contended that an express trust under the 
 3d subdivision of the 55th Section (1 R. S., 728), " 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," authorized only a 
 trust term based upon the lives of the designated beneficiaries, not 
 exceeding two (1 R. S., 723, sec. 15), and that a trust to apply rents of 
 lands to other than two persons designated as beneficiaries, for the 
 lives of such beneficiaries or any shorter term, necessarily contra- 
 vened the section of the statute directed against perpetuities and was 
 void (1 R. S., 723, sec. 15). But the contention is now at rest, and it is 
 held that this trust purpose does not require the estate to be limited as 
 to its duration upon the lives of beneficiaries alone. A devise, there- 
 fore, in trust, to receive the rents and profits of lands, terminable 
 
LAW OF CHARITABLE DONATIONS. 145 
 
 which may remain after making provision for the spe- 
 cific legacies and bequests hereinbefore devised and be- 
 queathed, to have and to hold the same unto my said exec- 
 
 during or at the expiration of two lives in being, is valid even if the 
 rents are payable to any number of cestuis que trustent during the 
 trust term (Crooke v. County of Kings, 97 N. Y., 421 ; Bailey v. Bai- 
 ley, 97 N. Y., 460 ; Schermerhorn v. Cotting, 131 N. Y., 48). And it 
 is also held that the two lives measuring the trust term need not be 
 connected with the estate (Crooke v. County of Kings, 97 N. Y., 421). 
 These decisions on the R. S. seem to place the law of trusts upon 
 less arbitrary foundations than was formerly thought by many to be 
 consistent with the text of the Revised Statutes. Such decisions 
 certainly reconcile the new law to the essential principles of the 
 common law, which regulated trusts in England after the Statute of 
 Uses (27 Hen. VIII.), and in New York until 1830. 
 
 It is very obvious that in all the cases last cited the trustees took 
 the legal estate, and so now wherever there is in"fact a trust to re- 
 ceive the rents and profits of lands and apply them to the use of any 
 person, the trustee takes the legal estate. Where no trust purpose 
 specified in the 55th section is limited by a will, the trustees nomi- 
 nated in the will have a power in trust only [supra, pp. 95, 97 ; 1 
 R. S., 729, sec. 56]. In this form no express trust purpose is declared. 
 
 But although trustees nominated in the will take the inheritance, 
 or estate, only in the instances provided for in the 55th section of 
 the Article on Trusts, executors qua executors may still take the 
 legal estate by devise in some cases (1 R. S., 728, sec. 55 ; ibid., sec. 
 56). At common law a devise to executors to receive the rents com- 
 monly carried the inheritance to them [see 1st Edit, of Mr. Jarman's 
 Powell on Devises, I., 221, note, and cases there cited]. So a devise 
 in trust to sell, or a devise "to executors to sell lands," but not a 
 devise " that executors shall sell the lands," carried the fee to them 
 [1 Sugden on Powers, 129 et seq.]. The real question then was : Had 
 the testator intended to cut a power only out of a fee and let that 
 only pass by his. devise ? Now, since the Revised Statutes, a trust 
 to executors as trustees carries a fee only in the instances declared 
 in the Article on Trusts [sec. 55]. 
 
 By the following section of the Article on Trusts (sec. 56), it is 
 provided that "a devise of lands to executors or other trustees, to be 
 " sold or mortgaged, where the trustees are not also empowered to 
 " receive the rents and profits, shall vest no estate in the trustees; 
 " but the trust shall be valid as a power, and the lands shall descend 
 " to the heirs, or pass to the devisees subject to the execution of the 
 " power." This last section expressly excludes another class of 
 cases where executors might formerly have taken a fee by implica- 
 tion. Before its enactment the cases were pretty liberal in extend- 
 
146 LAW OF CHARITABLE DONATIONS. 
 
 utors and trustees, and to their successors in the trusts 
 hereby created, and the survivors or survivor of them, 1 in 
 trust, to possess, hold, manage, and take care of the same 
 during a period not exceeding two lives in being, that is 
 to say, the lives of my niece A and my grand niece B, 
 
 ing fees to executors by implication [Tucker v. Tucker, 6 N. Y., 416]. 
 Yet it has been said that this section hardly altered the pre-existing 
 law [Moncrief v. Ross, 50 N. Y., at p. 435] in this respect, although 
 the instances where executors take a fee by devise, or by implica- 
 tion, independently of limitations of express trusts, will be found 
 now very rare [Kinnier v. Rogers, 42 N. Y., 531, 534 ; Manice v. Man- 
 ice, 43 N. Y., 303, 363 ; Cooke v. Piatt, 98 N. Y., 35 ; Chamberlain v. 
 Taylor, 105 N. Y., 185 ; Booth v. Baptist Church, 126 N. Y., 215, 237, 
 238] ; notwithstanding that it may often be more convenient that the 
 executors with a power of sale should have the legal estate [Robert 
 v. Corning, 89 N. Y"., 225, 236, 237]. In case they do not take the es- 
 tate, the title to lands descends to the heirs, who take the rents 
 and profits until the power of sale is executed [Lent v. Howard, 89 
 N. Y„ 169; Sweeney v. Warren, 127 N. Y., 426], unless there is some 
 limitation disposing of them otherwise. 
 
 - It is always most important that the entire residuary estate 
 should be clearly disposed of by a will, or embarrassing questions 
 arise. The former rule of law was, that the heir took that part of 
 the residuary realty not specifically disposed of, without regard to a 
 general residuary clause, which was presumed to operate only on 
 personalty [2 Powell on Devises, with Jarman's notes, p. 102 ; Bur- 
 ton, Real Prop., 98, 99]. This rule is not wholly abrogated [Vernon 
 v. Vernon, 53 N. Y., 351 ; Lent v. Howard, 89 N. Y., 169], although 
 much changed by the R. S., which make a will of land take effect 
 from the death of testator and not as formerly from the execution of 
 the will [2 R. S., 57, sec. 5]. The heir now may be excluded from the 
 residuary realty, even by implication [1 R. S., 727, sec. 40; Lent v. 
 Howard, 89 N. Y., 169 ; Cruikshank v. Home for the Friendless, 113 
 N. Y., at p. 355]. Yet a case may be imagined where it would be un- 
 just to a tenant by the curtesy, to make realty pass by implication 
 under a general residuary clause. Formerly a residuary devise was 
 a specific devise, and it was required to be a perfect devise, or the 
 land went to the heir [2 Powell on Devises, 102]. Lapsed devises 
 did not then fall into the residuary realty, but went to the heir 
 as undisposed of ; but this rule has been changed by the R. S., and 
 lapsed devises now fall into the residuary devise [2 R. S., 57, sec. 
 5 ; Cruikshank v. Home for the Friendless, 113 N. Y., 337 ; note that 
 the last edition of Gerard's Titles, anno 1896, p. 398, Tit. viii., fails to 
 state the rule accurately]. 
 
LAW OF CHARITABLE DONATIONS. 1 47 
 
 and until the decease of the survivor of said two persons, 1 
 and after deducting all necessary and proper expenses, to 
 
 1 The draftsman of Mr. Tilden's Will evidently intended at this 
 point to provide against a perpetuity, having due regard to the fol- 
 lowing rule of the R. S. [I., p. 723, sec. 15] : "The absolute power of 
 " alienation, shall not be suspended by any limitation or condition 
 " whatever, for a longer period than during the continuance of not 
 " more than two lives in being at the creation of the estate, except 
 " in the single case mentioned in the next section." [The next sec- 
 tion of the statute refers to the vesting of a contingent remainder 
 limited upon a prior remainder which fails]. We have already stated 
 in what manner the creation of a trust term came to suspend the. 
 power of alienation, and was thus rendered obnoxious to the fore- 
 going section [supra, pp. 144, 145]. The new rule against perpetuities, 
 now in force in New York, is only a modification of the former rule, 
 which was formulated in England subsequently to the Statute of Uses 
 [27 Hen. VIII.], and was in reality especially directed against what 
 were then new modes of conveyance, uses and executory devises. 
 It had no reference to the older legal limitations by remainders [vide 
 Challis, 158,159]. Remainders had a set of principles of their own de- 
 signed to prevent a perpetuity. [See Mr. Butler's note to Fearne, Con- 
 ting. Rem., 562.] Nor had the rule against perpetuities any real relation 
 to those trust estates, which were freely alienable [supra, pp. 98, 144]. 
 The creation of trust estates was, however, subjected to all the rules. 
 then relating to legal estates. The legal estate of the trustee and his 
 heirs was alienable ; provided that if the purchaser had notice of the 
 trusts, they followed the legal estate. 
 
 With this reference to the leading principles [and of course each 
 was subject to rules applicable to exceptional instances] of the 
 former law, let us pass next to the statement of the general rule 
 regulating perpetuities in New York before the Revised Statutes : 
 " Property could not be rendered inalienable beyond a live or lives in 
 being and twenty-one years afterwards, without reference to the infancy 
 of any person whatever ; " a person en ventre sa mere was for the pur- 
 poses of the rule considered as in existence [Armitage v. Coates, 35 
 Beav., i ; Cadell v. Palmer, 1 Clark & Finnelly, 372 ; Inglis v. The 
 Sailors' Snug Harbor, 3 Peters, 99, 114]. The last fact stated has 
 given rise to to the erroneous impression that the period of gesta- 
 tation might be added to the term in gross [21 years] ; but this was 
 not the case. [See note to Cadell v. Palmer, Tudor, Lead. Cas. Real 
 Prop, and Conv., 464.] We, however, find this period of gestation 
 added to the term in gross, both in early and late cases in New York 
 [Coster v. Lorillard, 14 Wend., 265, 295 ; Chwatal v. Schreiner, 148 N. 
 Y., 683, 690], and it may be, therefore, that the common law rule in 
 this respect stood quite differently in England and in New York. It 
 
148 LAW OF CHARITABLE DONATIONS. 
 
 apply the same and the proceeds thereof, 1 to the objects 
 and purposes hereinafter mentioned, that is to say, for the 
 advantage and use of the corporation to be formed during 
 
 was certainly open to the Courts here to decide the period of sus- 
 pension for themselves, as the English rule received its final modi- 
 fication only subsequently to the War of American Independence. 
 But it seems doubtful whether the Courts intended to prescribe a 
 period for this State longer than that allowed in England. However 
 this may be, the Revised Statutes reduced this period from any 
 number of lives in being to two, and the twenty-one years in gross 
 to the period of actual minority. This reform prevented the selec- 
 tion of a great number of lives in being in order to attain the longest 
 possible span of human existence as a lawful measure of suspend- 
 ing the power of alienation [See Thelluson's Will, based on 28 
 lives, 4 Ves., 227, 342 ; 11 Ves., 112, 149 ; and Mr. Hargrave's Treatise 
 on The Thelluson Act, 39 and 40 Geo. III., c. 98]. 
 
 The effect of the existing rule of the R. S. must be to shorten 
 materially the period formerly allowed for suspending the power of 
 alienation, for even the average duration of groups of two lives must 
 be less than the average duration of greater groups of lives, while the 
 term in gross is now completely cut off. But the law as to what consti- 
 tutes a perpetuity [1 R. S., 723, sec. 14], is not now different from the 
 former law on the same subject: "A perpetuity exists only where 
 " there are no persons in being, by whom an absolute fee in pos- 
 " session can be conveyed " [1 R. S., 723, sec. 14]. The old law 
 raised no objection to estates granted in perpetuity, provided there 
 was a power to bar them or destroy them, so as to renderthem alien- 
 able [Sir Edward Sugden in Cadell v. Palmer] ; the same principle 
 prevails now under the R. S. [Williams -v. Montgomery, 148 N. Y., 
 519, 526]. Where there are living parties who have unitedly the entire 
 right of ownership, the statute has no application [tforris v. Beyea, 
 13 N. Y., 273, 289]. But lives alone are now the standard of any valid 
 limitation suspending the power of alienation [Yates v. Yates, 9 
 Barb., at p. 346; Beekman v. Bonsor, 23 N. Y., at p. 316; Cruikshaiik 
 v. Home for the Friendless, 113 N. Y., at p. 351] ; the term in gross 
 has been cut off, and a trust term where the power of alienation is 
 suspended by the R. S., must end at the expiration of two lives in 
 being at the time of the creation of the estate [Booth v. The Bap- 
 tist Church, 126 N. Y., 215, 238]. 
 
 1 Up to this point of this draft there is no purpose specified which, 
 under the R. S., carries a fee to the executors; calling the executors 
 "trustees " will not now in itself carry a fee, nor indicate an inten- 
 tion to create an express trust under the 55th Section of the Statute 
 on Trusts [Freeborn v. Wagner, 2 Abb. Ct. App. Decis., 175, 179]. 
 On the other hand, an estate will sometimes go to the executor as 
 
LAW OF CHARITABLE DONATIONS. 149 
 
 the two lives aforesaid, 1 as hereinafter more precisely pro- 
 vided. 
 
 And for the better effectuating of said residuary devise 
 and bequest to said corporation, I do now request and 
 direct the executors and trustees of this my will to obtain 
 as speedily as possible after my decease the incorporation 
 
 of a body corporate to be known as the 
 
 Hospital, or by some kindred appellation permissible by 
 law, with power to found, maintain and conduct a hospital 
 
 in the city of ; such corporation to have the 
 
 usual powers and duties of hospital corporations in the 
 State of New York, including the power to take and hold 
 the residuary estate herein devised and bequeathed or in- 
 tended so to be. 2 And when and as soon as the said body 
 corporate shall be incorporated I empower and direct my 
 executors and trustees to convey and apply all the said re- 
 trustee of an express trust, without any express limitation of an 
 estate to him, for no particular words are now necessary to consti- 
 tute an express trust. [Leggett v. Perkins, 2 N. Y.. 297 ; Wright v. 
 Douglass, 7 N. Y., 564; Dillaye v. Greenough, 45 N. Y., 438, 445; 
 Vernon v. Vernon, 53 N. Y., 351 ; Heermans v. Robertson, 64 N. Y., 
 332 ; Moore v. Hegeman, 72 N. Y., 376, 384 ; Donovan v. Van De Mark, 
 78 N. Y., 244 ; Morse v. Morse, 85 N. Y., 53 ; Ward v. Ward, 105 N. 
 Y., 68. The general principles are perspicuously stated in Toronto 
 General Trust Co. v. The Chicago, 6. & Q. R. R., 123 N. Y., 37, and 
 in Foose v. Whitmore, 82 N. Y ., 404.J The distinction between exe- 
 cutors and trustees is well pointed out in Wood v. Brown, 34 N. Y., 
 337. In some cases where the same person is appointed both exe- 
 cutor and trustee, he may qualify as executor without accepting the 
 trust. Cocks v. Barlow, 5 Redf., 406. 
 
 1 Burrill v. Boardman, 43 N. Y., 254; Cruikshank v. Home for the 
 Friendless, 113 N. Y., at p. 352 ; cf. Shipman v. Rollins, 98 N. Y., 311, 
 as to remainder to corporation not in esse at the testator's decease 
 limited on a single life estate. The vice in many of the devises to 
 corporations to be formed is the failure to provide, that they shall take 
 effect absolutely in possession within orat the expiration of two lives 
 in being at the creation of the estate. [1 R. S., 723, sec. 15, Booth 
 v. Baptist Church, 126 N. Y., 215, 236, Cruikshank v. Home for the 
 Friendless, 113 N. Y., 337, 350, 352 ; Tilden v. Green 130 N. Y., 29]. 
 The incorporation should be directed to be formed under general 
 laws, and not by a special act [Cruikshank v. Home for the Friend- 
 less, 113 N. Y., at pp. 350, 351, 352 , Booth v. The Baptist Church, etc., 
 126N. Y.. 215]. 
 
l$0 LAW OF CHARITABLE DONATIONS. 
 
 siduary estate to the absolute uses and purposes of the said 
 corporation forever, in order that such corporation may 
 devote the same, under the laws of the state of New York, 
 to the charitable uses and purposes hereinbefore specified. 1 
 
 Third. 2 — If there shall be any appreciable time consumed 
 
 1 Although at least one of the objections to the will of Mr. Tilden 
 [130 N. Y., pp. 43, 44], has been obviated by the recent act, Chapter 
 701, Laws of 1893, it is not now lawful to leave it discretionary with 
 executors to apply the residuary to the use of the corporation to be 
 formed [cf.$ Harvard Law Rev., pp. 389, 402]. Every trust or power 
 in trust presupposes a definite use worked out by the settler himself 
 and not by the courts [supra, pp. 102, 103]. The administration of 
 charitable uses, permanent and indefinite in nature, now belongs to 
 the State by means of charitable corporations organized under 
 general laws [supra, pp. 66, 72, 81]. A mere discretion not obligatory 
 might carry the estate to the executors in fee. Lewin on Trusts, 171 
 et seq. 
 
 2 Such a provision may be necessary to prevent a partial intestacy 
 [supra, pp. 142, 146]. There may now be no valid objection to a 
 limitation in a will, which provides that " such accrued rents, income 
 " and profits shall follow the trust devises and bequests hereinbefore 
 " limited to a hospital corporation to be formed" [1 R. S., 726, sec- 
 40J. But as the R. S. provides that there shall be no accumulation 
 directed except for the benefit of one or more minors [1 R. S., 773,, 
 sections 3, 4 ; 1 R. S., 726, sections 37, 38] there may be some question 
 made about a bequest of income to a corporation which may possibly 
 not be in esse during the whole of two designated lives. Yet such a 
 bequest of income is entirely without the reason of the statute against 
 accumulations. Two lives, presumably at their longest, do not equal the 
 whole period of minority, which in the old statutes was assumed ta 
 always equal three lives [" 21 years or three lives," vid. Statute, 32 Hen 
 VIII., c. 28]. Yet, as there clearly cannot now be in this State an accumu- 
 lation for even two lives, this argument about the normal length of two 
 lives goes for little. But a direction in a will that " the income, profits, 
 etc., before incorporation shall follow the devise and bequest to the 
 hospital corporation to be formed," may be supported on other 
 grounds. In the first place, the incorporation under general laws con- 
 sumes no appreciable space of time, as it should be presumed to be 
 done at the moment of testator's death. Such a presumption 
 often supports devises prima facie in conflict with the sections of the 
 R. S. now directed against perpetuities [cf. Manice v. Manice (Mr. 
 O'Conor), 43 N. Y., at p. 332 , Deegan v. Wade, 144 N. Y., 573, 576;. 
 Matter of Nesmith, 140 N. Y., 609]. In the next place, a devise to a cor- 
 poration " non in esse," but to be called into being by executors is in 
 reality, if not in legal contemplation, a devise to executors as a quasi. 
 
LAW OF CHARITABLE DONATIONS. 151 
 
 in the formation of the body corporate, mentioned in the 
 preceding clause of my will, or any delay attending the 
 same (which delay I deprecate and do not intend shall take 
 place), then in that event only, I give, devise and bequeath 
 the income, rents and profits which may accrue on said 
 residuary estate between the time of my decease and such 
 incorporation to {better to specify an existing b >dy corporate) 
 the same, payable as a sum in gross, but not to be ac- 
 cumulated for this purpose. 
 
 1 FOURTH. — Here may follow such other directions as the 
 testator may wish to prescribe touching the corporation to be 
 formed, but they should not be made a sine qua non. Testators 
 cannot contravene the laws of the State in regard to the forma- 
 tion, powers or duties of corporations, and an impossible require- 
 ment as a condition precedent to vesting may vitiate the devise 
 and bequest (see the preceding form and the Girard Will, 
 2 How., 127). 
 
 corporation [see the modus operandi under Captain Randall's will. Inglis 
 v. Sailors' Snug Harbour, 3 Peters, 99, and the printed pamphlet in re, 
 published by Robert Carter, at New York, in 1848]. And lastly, there 
 is no direction for an accumulation for the benefit of persona non in 
 esse, but a direction that the income shall follow an estate which may 
 now in some form lawfully be limited, devised and bequeathed (cf. 
 Mr. O'Conor's 3d subdiv. of Fourth Point, Manice v. Manice, 43 N. Y., 
 at P- 335] ; J^> as such an estate cannot be vested in a corporation 
 not in esse, it may be unwise to give at present to such a corporation 
 the income arising on the residuary estate before incorporation ; al- 
 though as a corporation not in esse may now take an expectant estate 
 [supra, pp. 87, 88, 89, m.], it would seem that the accruing rents and 
 profits not disposed of ought to belong to it as the person pre- 
 sumptively entitled to the next eventual estate [1 R. S., 726, sec. 40]. 
 1 Formerly it was best to provide for trusts of real and personal 
 estates by two different sets of limitations ; it being deemed impossi- 
 ble to combine such limitations, by reason of the diverse nature 
 of real and personal property ; but this course is not usual or 
 necessary now in this State. It is true that the executors may 
 hold the personal property as trustees, while they do not hold 
 the lands at all, but only a power in trust. This distinction is 
 now firmly rooted in the law of New York. But is the dis- 
 tinction between an express trust and a power in trust in a case 
 where the rents are disposed of by the will now very important ? It 
 is thought not (Brandow v. Brandow, 66 N. Y„ 401, 406 ; cf. the words 
 
152 LAW OF CHARITABLE DONATIONS. 
 
 FIFTH. — It may be well to provide here for the contingency 
 
 used in Cruikshank v. Home for the Friendless, 113 N. Y., at p. 351). 
 The above form contains no provision which gives the executors 
 the legal estate in the lands under the R. S. of New York; There is 
 no trust under the 55th Section (1 R. S., 728), and no devise to exec- 
 utors to receive the rents and profits of lands, no power of sale and 
 no direction for an immediate conversion. There may, however, be a 
 trust power to the executors (Booth v. Baptist Church, 126 N. Y., 215). 
 Now a trust power is as imperative as an express trust (1 R. S., 796 
 sec. 96 ; Smith v. Floyd, 140 N. Y., 337 ; Farmers' L. & T. Co. v. Car- 
 roll, 5 Barb., at p. 653 ; Downing v. Marshall, 23 N. Y., at p. 380), ex- 
 cepting where it is made to depend wholly on the will of the grantee 
 (1 R. S., 796, sec. 96). Then its resemblance to a trust ceases. On 
 the death of the grantee of a trust power it is not extinguished (1 R. 
 S., 734, sections 100, 101, 102; Greenland v. Waddell, 116 N. Y., 234, 
 242; Delaney v. McCormack, 88 N. Y., 174, 182). No perpetuity may 
 be accomplished by means of a power, and any attempt so to do will 
 contravene the statute against perpetuities as completely as if at- 
 tempted by the medium of an express trust (Belmont v. O'Brien, 
 12 N. Y., 394, 403; Everitt v. Everitt, 29 N. Y., 39, 78; 1 R. S., 737, 
 sections 128, 129; and such was the common law rule: Duke of 
 Marlborough v. Earl Godolphin, 1 Eden, 404). 
 
 It is not the case under the R. S. that where there is only a trust 
 power there is no perpetuity, because lands descend subject to 
 be divested by the execution of the power. The power of aliena- 
 tion is thereby suspended (Booth v. Baptist Church, 126 N. Y., 
 215, 238, 239). Such a power is designed to bring a future estate 
 into existence, and therefore the creation of such estate by means 
 of the power limited in trust relates back and must have regard 
 to the present statute against perpetuities (ibid., p. 240). It was 
 formerly doubted whether a power of this character created by 
 a will ever operated by way of use, or under the Statute of Uses 
 (see Mr. Booth in Hargrave's Collect. Jurid., I., 427; 1 Sugden on 
 Powers, 1 ; and cf. Powell on Devises, I., 214, note by Mr. Jarman). 
 Under the R. S. a power now clearly takes effect by virtue of the 
 articles on Powers and Wills. The entire law of real property has 
 been remodeled by the R. S. on different foundations, and in re- 
 spect of the present law of powers, even the old analogies have 
 ceased to be verisimilitudes (Root v. Stuyvesant, 18 Wend., at p. 271 ; 
 Jennings v. Conboy, 73 N. Y., 230, 233; Cutting v. Cutting, 86 N. Y., 
 522, 530, 537 ; Delaney v. McCormack, 88 N. Y., 174, 180). The statute 
 against perpetuities may be set a-running by means of a trust power 
 in a will (Booth v. Baptist Church, 126 N. Y., at p. 238), whenever the 
 ownership of land is thereby " left swinging in abeyance " until a 
 contingency arise (Cruikshank v. Home for the Friendless, 113 N. 
 Y., at p. 352). 
 
LAW OF CHARITABLE DONATIONS. 1 53 
 
 that a corporation to be formed may not be able to take, living 
 A and B [See the preceding form, p. 139]. 
 
 SIXTH. — Here may follow some provision designed to provide 
 for a contingency where executors refuse to take any steps 
 towards the formation of the corporation intended to take the 
 benefit of the residuary devises and bequests. 
 
 SEVENTH — Nomination and appointment of executors as in 
 the preceding form. 
 
 [FORM OF DEVISE TO TRUSTEES IN TRUST FOR TESTATOR'S 
 SON, WITH POWER TO LATTER TO APPOINT TO CHARITY 
 ON FAILURE OF ISSUE.] 
 
 Item ; I hereby give and devise all that certain piece or 
 parcel of buildingMand, lying on the northerly side of the 
 Western Turnpike between the City of New Burgh and the 
 Town of Walden [being the same freehold property which 
 I purchased in 1863 from Captain James Stebbins], together 
 with the improvements and appurtenances thereunto be- 
 longing or appertaining, to A and B, as trustees of the uses 
 and trusts now herein expressly declared by me, that is to 
 say : First : To receive the rents and profits thereof and 
 apply them to the use of my second son John, during his 
 life.* Second : To lease the said parcel of land for terms 
 of years not exceeding twenty-one years in possession ; and 
 to that end I hereby empower the said trustees or the sur- 
 vivor of them, and their successors or successor in the said 
 trusts, to make and grant leases of the said hereditaments 
 for any term of years, not exceeding twenty-one in pos- 
 session, 3 in such parcels and on such terms as to them may 
 seem best calculated to produce the largest permanent in- 
 
 1 See power to demise for terms of twenty-one years [note 3 infra], 
 
 2 This trust purpose creates an express trust [1 R. S., 728, sec. 55], 
 and carries the fee to the trustees for the life of the son. 
 
 " Leases of urban or building-lands [supra] may be made in New 
 York State for terms of indefinite duration ; but bv the Constitution 
 leases of agricultural lands cannot exceed twelve years [Art. 1, sec. 13]. 
 
154 LAW 0F CHARITABLE DONATIONS. 
 
 come, during the life of my said son John, 1 with remainder 
 to such uses, 8 for the life of any present or future wife of 
 my said son John, as he may appoint by any last will and 
 testament ; and subject thereto remainder in fee to the issue 
 of the body of my said son John. And in the event that my 
 said son John shall not leave issue of his body, I empower 3 
 him by last will and testament to appoint the said heredita- 
 ments 4 for the benefit in fee simple of all, or any one or 
 more, of the following bodies corporate in the City of New 
 York: (i) the Sheltering Arms; (2) The New York Ju- 
 venile Asylum ; (3) The Hebrew Orphan Asylum ; hereby 
 directing that such appointment shall be operative only in 
 the event that my said son John shall die without issue him 
 surviving. And in default of appointment or partial ap- 
 pointment, remainder to the said bodies corporate in fee, 
 for the equal use, benefit and advantage of said bodies 
 corporate forever. 5 
 
 1 The real object of the trust term is the testator's son. The estate 
 of the trustees ceases when the son dies, and then the use for the 
 benefit of the widow becomes operative by virtue of the exercise of 
 the power of appointment. This use for her involves the second life 
 permissible by the R. S. A contingent remainder in this State tends 
 to a perpetuity since the abolition of the necessity of a particular 
 estate and the common law rules respecting legal limitations [supra, 
 pp. 87, 143]. 
 
 8 In view of the adoption and revision of the Statute of Uses in 
 the R. S. [1 R. S., 727, 728], the former language conveying and deal- 
 ing with the use as a definite thing is not only convenient, but 
 accurate, and the only one consistent with the decisions. 
 
 8 A power now takes its effect from the R. S. and the Article on 
 Powers. 
 
 4 " Hereditaments " is still the most comprehensive term of descrip- 
 tion in the law of New York, involving lands, appurtenances, and in 
 short everything heritable [Canfield v. Ford, 28 Barb., 336]. 
 
 6 The Revised Statutes [1 R. S., 723, sec. 16] tolerates the limitation 
 of a contingent remainder in fee after a lawful trust term for two 
 lives ; such remainder to take effect in the event that the person to 
 whom the first remainder is limited shall die under the age of twenty- 
 one years, or upon any other contingency by which the estate of 
 such persons may be determined before they attain their full age. 
 
ERR A TUM. 
 
 P. 154, 2d line from top. The words "who may be living at my 
 decease," omitted after 'future wife' — 
 
APPENDICES, NOTES AND COMMENTS. 
 
 A great number of adjudged cases in New York make 
 persistent reference to the Statute of Charitable Uses, 43 
 Elizabeth, c. 4. Yet how few lawyers are familiar with the 
 text of this celebrated act ! There is good reason for this 
 oversight in the fact that few private law libraries con- 
 tain the English Statutes at large. A republication of the 
 leading English Statutes with notes, in one volume, is a 
 great disideratum for the science of law. 1 In the absence of 
 any such publication the text of this law is given in 
 Appendix No. 1, to this Essay. A perusal of the statute for 
 the first time often excites amazement that the act itself 
 could ever have been deemed so influential upon the ques- 
 tion of equity jurisdiction. 3 The surprise is not lessened 
 by a study of the rise and growth of the law of charities 
 in England. The law of charities has, however, alway 
 been more or less within the influence of statute law. 
 The ancient Roman Law needed very great modification 
 before gifts to incertae personae were tolerated. 3 The 
 clerical lawyers of England applied the Roman Law only 
 after it had been thus ameliorated. But the influential 
 form of charity in feudal and mediaeval England was by 
 gifts to bodies of friars, churches and other ecclesiastical 
 foundations. 4 The English schism or secession from Rome 
 destroyed these revered and most kindly almoners and 
 guardians of the poor, and then the ancient law of charity 
 was reconstructed and a new jurisdiction created, without 
 affecting sensibly the ancient jurisdiction of the Chan- 
 
 1 Many of those acts were incorporated verbatim in Jones & Varick's Revision 
 of 1787-S8 ; and in some form are contained in the Revised Statutes of New 
 York. 
 
 "Ould v. Washington Hospital, 95 U. S., at p. 309. 
 
 Supra, pp. 15, 16. 
 
 4 Supra, pp. 16-19. 
 
 155 
 
156 COMMENTS. 
 
 cellor. 1 The great monument of this reform is the Statute 
 of 43d Elizabeth contained in the Appendix No. i. a 
 
 In the Province and State of New York history has only 
 repeated itself. There can be no doubt that until the 
 dethronement of the Chancellor of New York as the great 
 judicial officer, the common law of charities flourished 
 here. 3 Subsequently the new appellate tribunal built an 
 elaborate theory of charitable dispensation based on the 
 statutes of the State, or those laws enacted after our inde- 
 pendence of the Crown had been achieved. The theory 
 depended wholly on a system of charitable corporations 
 which began in New York only in 1784. It may be a ques- 
 tion, whether such a creation of corporate persons, justified 
 the triumphant judicial inference, that all forms of private 
 or non-corporate charity were thereby intended to be 
 destroyed. 4 Upon this question we need have no opinion ; 
 the matter is laid at rest by final authority. 
 
 The statute law of this State, after these decisions, 
 became at once paramount in the realm of permanent and 
 indefinite forms' of charity, for in order to avoid the statute 
 against perpetuities, which was applied by the courts to 
 charitable donations in trust, corporate agencies were nec- 
 essarily invoked. The intention in the course of the text 
 of this Essay has been to trace the fluctuations of the 
 judicial doctrines in New York, as well as the rise of the 
 new law of charities, and the ruling motive. This attempt 
 need hardly be repeated at this place. 
 
 The Appendices II. and III. are subjoined in order 
 to show in a tabular form the growth of statutory in- 
 fluences on the law of charities in New York. It has 
 been stated in the preceding pages that the Courts of 
 this State have attributed to the legislature a policy 
 of substituting a great system of corporate charities, 
 instead of the former indefinite and permanent charit-, 
 able uses and trusts. 5 The legislature has now consoli- 
 
 1 Supra, pp. 32-33. 
 s Infra, p. 160. 
 s Supra, pp. 43-54- 
 
 4 Supra, pp. 66-67. 
 
 5 Supra, pp. 66, 67. 
 
COMMENTS. 157 
 
 dated and revised most of the acts relating to non-business 
 corporations generally, including Cemeteries, Christian As- 
 sociations and Societies for the Prevention of Cruelty, Hos- 
 pital Corporations, Bar Associations, Veteran Soldiers' and 
 Sailors' Associations, and Soldiers' Monument Corporations, 
 in " The Membership Corporations Law," constituting 
 chapter forty-three of the General Laws [Chap. 559, Laws 
 of 1895]. The same act repeals a great number of old 
 laws on the same subjects. See schedule of laws repealed 
 at the end of c. 559, Laws of 1895. 
 
 " The Religious Corporations Law," chapter 723, Laws 
 of 1 89S, constituting chapter forty-two of the General 
 Laws, is intended to be a substitute for all existing general 
 laws for the creation and temporal administration of reli- 
 gious corporations. All the provisions of the laws re- 
 pealed thereby are now contained either in " The General 
 Corporation Law," being chapter thirty-five of the Gen- 
 eral Laws [Chapter 687, Laws of 1892], or in " The Reli- 
 gious Corporations Law," except Chapter 323, Laws of 
 1853, and section 9 of chapter 90, Laws of 1835, relating to 
 a change of name of religious corporations. 1 
 
 The revisers of " The Religious Corporations Law," in 
 their report to the legislature gave a somewhat extended 
 account of the early laws of the State relating to religious 
 corporations, which may be useful to the practitioner. 2 
 
 By section 27 of the University Law [c. 378, Laws of 
 1892], the Regents of the University of the State of New 
 York may incorporate any university, college, academy, 
 library, museum, or other educational institution, un- 
 der such name, with such number of trustees, or other 
 managers, and with such powers, privileges and duties, 
 and subject to such limitations and restrictions in all re- 
 spects as the regents may prescribe in conformity to law. 
 
 Chapter 43, Laws of 1786, c. 395, Laws of 1853, and c. 
 333, Laws of 1875, authorizing the creation of library cor- 
 porations, are repealed by " The Membership Corpora- 
 
 1 Vid. Report of the Revisers to the Legislature with draft of ' ' The Reli- 
 gious Corporations Law." 
 
 a Vid. Cumming & Gilbert's Annotated Acts, p. 261, et seg. 
 
158 COMMENTS. 
 
 tions Law" [c. 559, Laws of 1895], and are not re-enacted. 
 Corporations, therefore, incorporated under such laws, 
 will be subject to " The Membership Corporations Law." 
 Library corporations can hereafter be incorporated only 
 under the University Law [c. 378, Laws of 1892]. 
 
 "The Membership Corporations Law" is intended to ap- 
 ply to the large class of corporations which are organized 
 for non-business purposes, excepting religious corporations, 
 which are governed by The " Religious Corporations 
 Law," educational corporations, which are regulated by 
 the University Law (chap. 378, Laws of 1892), and medical, 
 dental and veterinary corporations, the laws relating to 
 which, in the scheme of the revision, are to be inserted in 
 the Public Health Law. 
 
 In the future, the formation of charitable corporations 
 may be largely referred, then, to the General Laws and the 
 practitioner will need to consult " The Statutory Construc- 
 tion Law," constituting chapter one of the General Laws 
 [chap. 677, Laws of 1892], The General Corporation Law 
 (chap. 687, Laws of 1892), besides those laws named above. 
 In seeking the powers and duties of a Membership Corpo- 
 ration, for example, he will refer, first, to " The General 
 Corporation Law," which is applicable to all corporations; 
 second, to Article I. of " The Membership Corporations 
 Law," which is applicable to all membership corporations, 
 and thirdly, to the special provisions contained in the 
 article of " The Membership Corporations Law," relating 
 to the class of corporations under investigation. If there 
 is no such Article, a reference to " The General Corpora- 
 tion Law " and to Article I. of " The Membership Corpo- 
 rations Law " will be sufficient. Article II. of the latter 
 law provides for the incorporation of all non-business cor- 
 porations not provided for in Articles III. to XII., or in 
 any other law. Articles III. to XII. provide for the incor- 
 poration of various classes of corporations, concerning 
 which there are special provisions which could not properly 
 be applied to all Membership Corporations. J 
 
 Corporations heretofore incorporated under laws re- 
 
 1 Notes of the Commissioners of Statutory Revision. 
 
COMMENTS. 159 
 
 pealed by " The Membership Corporations Law," will be 
 subject to the provisions of the new law, which is in effect 
 a modification, or an amendment of the law repealed (see 
 The General Corporation Law, Sec. 36; The Statutory 
 Construction Law, Sec. 32). 
 
APPENDIX No. I. 
 
 STATUTE OF CHARITABLE USES. 
 43 Eliz., c. 4. 
 
 An Act to redress the mis-employment of Lands, Goods, 
 and Stocks of Money heretofore given to certain Char- 
 itable Uses. 
 
 Whereas divers lands, tenements, rents, annuities, 
 profits, hereditaments, goods, chattels, money and stocks 
 of money, have been heretofore given, limited, appointed 
 and assigned, as well by the Queen's most excellent Maj- 
 esty, and her most noble progenitors, as by sundry other 
 well-disposed persons ; some for relief of aged, impotent 
 and poor people, some for maintenance of sick and maimed 
 soldiers and mariners, schools of learning, free schools, 
 and scholars in universities, some for repair of bridges, 
 ports, havens, causeways, churches, sea-banks and high- 
 ways, some for education and preferment of orphans,%some 
 for or towards relief, stock, or maintenance for houses of 
 correction, some for marriages of poor maids, some for 
 supportation, aid, and help of young tradesmen, handi- 
 craftsmen, and persons decayed, and other for relief or re 
 demption of prisoners or captives, and for aid or ease of 
 any poor inhabitants concerning payments of fifteens, set- 
 ting out of soldiers and other taxes ; which lands, tenements, 
 rents, annuity, profits, hereditaments, goods, chattels, 
 money, and stocks of money nevertheless have not been 
 employed according to the charitable intent of the givers 
 and founders thereof, by reason of frauds, breaches of 
 trust, and negligence in those that should pay, deliver and 
 employ the same ; (2) for redress and remedy whereof, be 
 it enacted by authority of this present parliament, that it 
 shall and may be lawful to and for the Lord Chancellor, or 
 
 160 
 
APPENDIX. l6l 
 
 keeper of the great seal of England, for the time being, and 
 for the chancellor of the duchy of Lancaster, for the time 
 being, for lands within the county palatine of Lancaster, 
 from time to time to award commissions under the great 
 seal of England, or the seal of the county palatine, as the 
 case shall require, into all or any part or parts of this 
 realm respectively, according to their several jurisdictions, 
 as aforesaid, to the bishop of every several diocese and his 
 chancellor (in case there shall be any bishop of that dio- 
 cese at the time of awarding the same commissions), and 
 other persons of good and sound behaviour, (3) authorizing 
 them thereby, or any four or more of them, to inquire as 
 well by the oaths of twelve lawful men or more of the 
 county, as by all other good and lawful ways and means, 
 of all and singular such gifts, limitations, assignments, and 
 appointments aforesaid, and of the abuses, breaches of 
 trusts, negligenceSj mis-employments, not employing, con- 
 cealing, defrauding, mis-converting or mis-government of 
 any lands, tenements, rents, annuities, profits, heredita- 
 ments, goods, chattels, money or stocks of money, hereto- 
 fore given, limited, appointed or assigned, or which here- 
 after shall be given, limited, appointed or assigned, to or 
 for any the charitable and godly uses before rehearsed : (4) 
 and after the said commissioners, or any four or more of 
 them (upon calling the parties interested in any such lands, 
 tenements, rents, annuities, profits, hereditaments, goods, 
 chattels, money and stocks of money) shall make inquiry 
 by the oaths of twelve men or more of the said county 
 (whereunto the said parties interested shall and may have, 
 and take their lawful challenge and challenges) (5) and 
 upon such inquiry, hearing and examining thereof, set 
 down such orders, judgments and decrees as the said lands, 
 tenements, rents, annuities, profits, goods, chattels, money 
 and stocks of money, may be duly and faithfully employed, 
 to and for such of the charitable uses and intents before re- 
 hearsed, respectively, for which they were given, limited, 
 assigned or appointed by the donors and founders thereof : 
 (6) which orders, judgments and decrees, not being con- 
 trary or repugnant to the orders, statutes or decrees of the 
 donors or founders, shall by the authority of this present 
 
1 62 APPENDIX. 
 
 parliament stand firm and good, according to the tenor 
 and purport thereof, and shall be executed accordingly, 
 until the same shall be undone or altered by the Lord 
 Chancellor of England, or lord keeper of the great seal of 
 England, or the chancellor of the county palatine of Lan- 
 caster, respectively, within their several jurisdictions, upon 
 complaint by any party grieved to be made to them. 
 
 II. Provided always, That neither this act, nor any thing 
 therein contained, shall in any wise extend to any lands, 
 tenements, rents, annuities, profits, goods, chattels, money 
 or stocks of money, given, limited, appointed or assigned, 
 or which shall be given, limited, appointed or assigned to 
 any college, hall or house of learning within the universi- 
 ties of Oxford or Cambridge, or to the colleges of West- 
 minster, Eton or Winchester, or to any of them, or to any 
 cathedral or collegiate church within this realm. 
 
 III. And provided also, That neither this act, nor any 
 thing therein, shall extend to any city, or town corporate, 
 or to any the lands or tenements given to the uses afore- 
 said, within any such city or town corporate, where there 
 is a special governor or governors appointed to govern or 
 direct such lands, tenements or things disposed to any the 
 uses aforesaid, neither to any college, hospital or free 
 school, which have special visitors or governors, or over- 
 seers appointed them by their founders. 
 
 IV. Provided also, and be it enacted by the authority 
 aforesaid, That neither this act, nor any thing therein con- 
 tained, shall be in any way prejudicial or hurtful to the 
 jurisdiction, or power of the ordinary, but that he may 
 lawfully in every cause execute and perform the same, as 
 though this act had never been had or made. 
 
 V. Provided also, and be it enacted, That no person of 
 persons that hath or shall have any of the said lands, tene- 
 ments, rents, annuities, profits, hereditaments, goods, chat- 
 tels, money, or stocks of money in his hands or possession, 
 or doth or shall pretend title thereunto, shall be named a 
 commissioner or a juror for any the causes. aforesaid, or 
 being named, shall execute or serve in the same. 
 
 VI. And provided also, That no person or persons which 
 hath purchased or obtained, or shall purchase or obtain 
 
APPENDIX. 163 
 
 upon valuable consideration of money or land, any estate 
 or interest of, in, to, or out of any lands, tenements, rents, 
 annuities, hereditaments, goods or chattels that have been,, 
 or shall be given, limited or appointed to any the charit- 
 able uses above-mentioned, without fraud or covin, having 
 no notice of the same charitable use, shall not be impeached 
 by any decrees or orders of the commissioners above-men- 
 tioned, for or concerning the same, his estate or interest : 
 (2) and yet nevertheless, be it enacted, that the said com- 
 missioners, or any four or more of them, shall and may 
 make decrees and orders for recompence to be made by 
 any person or persons who being put in trust, or having 
 notice of the charitable uses above-mentioned, hath or shall 
 break the same trust, or defraud the same uses by any con- 
 veyance, gift, grant, lease, demise, release or conversion 
 whatsoever, and against the heirs, executors and adminis- 
 trators of him, them, or any of them having assets in law 
 or equity, so far as the same assets will extend. 
 
 VII. Provided always, That this act shall not extend to 
 give power or authority to any commissioners before-men- 
 tioned, to make any orders, judgments or decrees, for or 
 concerning any manors, lands, tenements, or other heredit- 
 aments assured, conveyed, granted, or come unto the 
 queen's Majesty, to the late king Henry the Eighth, king 
 Edward the Sixth, or queen Mary, by act of parliament, 
 surrender, exchange, relinquishment, escheat, attainder, 
 conveyance, or otherwise : (2) and yet nevertheless, be it 
 enacted, that if any such manors, lands, tenements, or her- 
 editaments, or any of them, or any estate, rent, or profit 
 thereof, or out of the same, or any part thereof, have or 
 hath been given, granted, limited, appointed or assigned to 
 or for any the charitable uses before expressed, at any time 
 since the beginning of her Majesty's reign, that then the 
 said commissioners, or any four or more of them, shall and 
 may, as concerning the same lands, tenements, heredita- 
 ments, estate, rent or profit so given, limited, appointed or 
 assigned, proceed to inquire, and to make orders, judg- 
 ments and decrees, according to the purport and meaning 
 of this act, as before is mentioned ; the said last mentioned 
 proviso notwithstanding. 
 
164 APPENDIX. 
 
 VIII. And be it further enacted, That all orders, judg- 
 ments and decrees of the said commissioners, or of any four 
 or more of them, shall be certified under the seals of the 
 said commissioners, or any four or more of them, either 
 into the Court of Chancery of England, or into the Court 
 of the Chancery within the county palatine of Lancaster, 
 as the case shall require respectively, according to their 
 several jurisdictions, within such convenient time as shall 
 be limited in the said commission. 
 
 IX. And that the said Lord Chancellor or lord keeper, 
 and the said chancellor of the duchy, shall and may within 
 their said several jurisdictions, take such order for the due 
 execution of all or any of the said judgments, decrees and 
 orders, as to either of them shall seem fit and convenient. 
 
 X. And that if after any such certificate or certificates 
 made, any person or persons shall find themselves grieved 
 with any of the said orders, judgments or decrees, that then 
 it shall and may be lawful to and for them, or any of them to 
 complain in that behalf unto the said Lord Chanpellor or 
 lord keeper, or to the chancellor of the said duchy of Lan- 
 caster, according to their several jurisdictions, for redress 
 therein : (2) and that upon such complaint, the said Lord 
 Chancellor or lord keeper, or the said chancellor of the 
 duchy, may according to their said several jurisdictions, by 
 such course as to their wisdoms shall seem meetest, the 
 circumstances of the case considered, proceed to the ex- 
 amination, hearing and determining thereof ; (3) and upon 
 hearing thereof, shall and may annul, diminish, alter or en- 
 large the said orders, judgments and decrees of the said 
 commissioners, or any four or more of them, as to either 
 of them in their said several jurisdictions shall be thought 
 to stand with equity and good conscience, according to 
 the true intent and meaning of the donors and founders 
 thereof ; (4) and shall and may tax and award good costs 
 of suit by their discretions, against such persons as they 
 shall find to complain unto them without just and sufficient 
 cause, of the orders, judgments and decrees before-men- 
 tioned. 
 
APPENDIX No. II. 
 
 TITLES OF THE PRINCIPAL STATUTES RELATING TO BE- 
 NEVOLENT, CHARITABLE, SCIENTIFIC ' AND MISSIONARY 
 CORPORATIONS. 1 
 
 Enacted. Repealed. 
 
 1848. CHAP. 319. An Act for the incor- c. 559, Laws 
 
 poration of benevolent, charitable, all but secfe^ S 
 scientific and missionary societies. 
 Passed April 12, 1848. 
 
 1849. CHAP- 273. An Act to amend " An t c - 559. Laws 
 
 . . of 1895. 
 
 act for the incorporation of benev- 
 olent, charitable, scientific and mis- 
 sionary societies. Passed April 7, 
 1849. 
 
 1853. CHAP. 487. An Act to amend chap- c. 559, Laws 
 
 ter three hundred and nineteen of ° ! ''"•'"'' 
 the laws of eighteen hundred and 
 forty-eight, entitled " An act for 
 the incorporation of benevolent, 
 charitable, scientific and mission- 
 ary societies." Passed April 12, 
 1848. 
 
 1854. CHAP. 50. An Act to authorize the c. 559, Laws 
 
 mortgaging of real estate of bene- 95 ' 
 volent, charitable, scientific and 
 missionary societies. Passed March 
 8, 1854. 
 
 1 Although most of the Acts mentioned in this Appendix are now superseded 
 by the provisions of the recent Act entitled " The Membership Corporations 
 Law " (Chapter 559, Laws of 1895), a reference to the early laws, bearing 
 on these auxiliaries of charity, may be found still useful, in connection with the 
 text of this treatise. 
 
 165 
 
1 66 APPENDIX. 
 
 Enacted. Repealed. 
 
 1860. CHAP. 242. An Act for the incor- c. 559, Laws 
 
 poration of fine art associations and ° * 
 to amend " An act for the incor- 
 poration of benevolent, charitable, 
 scientific and missionary societies," 
 passed April twelfth, eighteen hun- 
 dred and forty-eight. Passed April 
 10, i860. 
 
 1861. CHAP. $8. An Act to authorize the c - 559, Laws 
 
 leasing or sale and conveyance of 
 the real estate of benevolent, chari- 
 table, scientific, missionary societies 
 and orphan asylums. Passed March 
 19, 1861. 
 
 1861. CHAP. 239. An Act to amend an oi C lSq f 9 ' Laws 
 act entitled " An act to amend an 
 act for the incorporation of benev- 
 olent, charitable, scientific and 
 missionary societies, passed April 
 twelfth, eighteen hundred and 
 forty-eight ; passed April seventh, 
 eighteen hundred and forty-nine ; 
 passed April seventh, eighteen hun- 
 dred and fifty seven. Passed April 
 15, 1861. 
 
 1866. CHAP. 136. An Act to amend the 
 fourth subdivision of fourth sec- 
 tion of first part of chapter thirteen, 
 part first of the Revised Statutes 
 in relation to exemption from taxa- 
 tion upon real and personal proper- 
 ty of religious and benevolent insti- 
 tutions. Passed March 9, 1866. 
 
 1870. CHAP- 51. An Act to amend the c. 559, Laws 
 "Act for the incorporation of benev- of l895 ' 
 olent, charitable, scientific and mis- 
 sionary societies," passed April 
 twelfth, eighteen hundred and forty- 
 eight. Passed March 8, 1870. 
 
APPENDIX. 167 
 
 Enacted. Repealed. 
 
 1872. CHAP. 104. An Act in relation to c. 559. Laws 
 trustees and directors of charitable 
 and benevolent institutions. Passed 
 March 12, 1872. 
 
 CHAP. 649. An Act further to amend c. 559, Laws 
 
 chapter three hundred and nineteen l8gs- 
 of the laws of eighteen hundred and 
 forty-eight, entitled " An Act for 
 the incorporation of benevolent, 
 charitable, scientific and missionary 
 societies," and the several acts 
 amendatory thereof. Passed May 
 11, 1872. 
 
 1875. CHAP. 452. An Act further to amend c. 559, Laws 
 
 chapter three hundred and nineteen of l895- 
 of the laws of eighteen hundred and 
 forty-eight, entitled " An act for 
 the incorporation of benevolent, 
 charitable, scientific and missionary 
 societies" and the several acts amen- 
 datory thereof Passed May 28,1875. 
 
 1876. CHAP. 190. An Act further to amend c. 559, Laws 
 
 chapter three hundred and nineteen oi l8 95- 
 of the laws of eighteen hundred and 
 forty-eight, entitled " An act for the 
 incorporation of benevolent, charit- 
 able, scientific and missionary socie- 
 ties. Passed April 28, 1876. 
 
 1879. CHAP. 252. An Act to amend chapter c 55 ~ La ws 
 three hundred and nineteen of the oi l8 95- 
 laws of eighteen hundred and forty- 
 eight, entitLd " An act for the 
 incorporation of benevolent, char- 
 itable, scientific and missionary 
 societies." Passed May 5, 1879. 
 
 1882. CHAP. 139. An Act to incorporate 
 The Charity Organization Society 
 of the City of New York. Passed 
 May 10, 1882. 
 
1 68 APPENDIX. 
 
 Enacted. Repealed. 
 
 1882. CHAP. 367. An Act to restrict the 
 
 formation of corporations under 
 chapter three hundred and nineteen 
 of the laws of eighteen hundred and 
 forty-eight, entitled "An act to pro- 
 vide for the incorporation of benev- 
 olent, charitable, scientific and mis- 
 sionary societies " and the acts 
 amendatory thereof, and to legalize 
 the incorporation of certain societies 
 organized thereunder, and to regu- 
 late the same. Passed June 29, 
 •1882. 
 
 1883. CHAP. 446. An Act to amend chap- c. 559, Laws 
 
 ter three hundred and nineteen of ° r 
 the laws of eighteen hundred and 
 forty-eight, entitled " An act for 
 the incorporation of benevolent, 
 charitable, scientific and missionary 
 societies" and the several acts 
 amendatory thereof. Passed May 
 18, 1883. 
 
 1884. CHAP. 415. An Act to regulate the 
 
 deposit of funds received by char- 
 itable and benevolent institutions 
 supported in whole or in part by 
 public moneys. Passed May 31, 
 1884. , 
 
 1886. CHAP. 88. An Act to amend chapter c. 559, Laws 
 three hundred and nineteen of the of l8 95- 
 laws of eighteen hundred and forty- 
 eight, entitled " An act for the in- 
 corporation of benevolent, char- 
 itable, scientific and missionary 
 societies. Passed March 28, 1885. 
 
 1886. CHAP. 547. An Act to protect cor- c . 6g2> Laws 
 porations duly incorporated under of l8< "- 
 chapter three hundred and nineteen 
 of the laws of the State of New York, 
 
APPENDIX. 169 
 
 Enacted. Repealed. 
 
 passed April twelfth, eighteen hun- 
 dred and forty-eight, entitled " An 
 act for the incorporation of benev- 
 olent, charitable, scientific and mis- 
 sionary societies " and the acts 
 amendatory thereof and supple- 
 mentary thereto, and to punish 
 offenders. Passed June 2, 1886. 
 
 1889. CHAP. 191. " An Act to limit the 
 
 amount of property to be held by 
 corporations organized for other 
 than business purposes." 
 
 1890. CHAP.,425. An Act to authorize cor- C. 559, Laws 
 
 porations organized under Chap. ° r 95 " 
 319 of the laws of 1848, or its 
 amendments, to extend their busi- 
 ness and objects 
 1890. CHAP 497. An Act to amend chap- c. 687, Laws 
 ter one hundred and ninety-one of of l8 9 2 - 
 the laws of eighteen hundred and 
 eighty-nine, entitled " An act to 
 limit the amount of property to be 
 held by corporations, organized for 
 other than business purposes." 
 
 CHAP. 518. " An Act to amend chap- 
 
 ter fifty-one of the laws of eighteen 
 hundred and seventy," etc. 
 
 CHAP. 553. An Act to amend chap- 
 
 ter one hundred and ninety-one of 
 the laws of eighteen hundred and 
 eighty-nine, entitled " An act to 
 limit the amount of property to be 
 held by corporations for other than 
 business purposes," and relating to 
 such corporations. 
 1892. CHAP. 197. An Act to authorize the c. 559, Laws 
 increase or reduction of the number of l8 95- 
 of directors of benevolent, char- 
 itable or hospital corporations. 
 
17° APPENDIX. 
 
 Enacted. Repealed. 
 
 1892. CHAP. 333. An Act to facilitate the c. 559. Laws 
 
 filling of vacancies in the office of 
 trustees of corporations organized 
 for charitable and benevolent pur- 
 poses. 
 
 1893. CHAP. 180. An Act to amend chap- c - 559. Laws of 
 
 r 1895. 
 ter one hundred and ninety-seven 
 
 of the laws of eighteen hundred and 
 ninety-two, entitled " An Act to 
 authorize the increase or reduction 
 of the numbers of directors of benev- 
 olent, charitable or hospital cor- 
 porations." 
 
 1894. CHAP. 325. An Act to amend chap- C. 559, Laws 
 
 ter three hundred and nineteen of 
 the laws of eighteen hundred and 
 forty-eight, entitled " An Act for 
 the incorporation of benevolent, 
 charitable, scientific, and mission- 
 ary societies," and the acts amend- 
 atory thereof, relating to trustees. 
 
 CHAP. 709. " An Act to authorize c. 550, Laws 
 
 the appointment of incorporators of ° '"•'-' 
 charitable or benevolent corpora- 
 tions." 
 
 1895. CHAP. 125. An Act to incorporate 
 
 the Missionary Society of the Cal- 
 vinistic Methodist Church in the 
 United States of America. 
 
 CHAP. 559. AN ACT RELATING 
 
 TO MEM3ERSHIP CORPO- 
 RATIONS, CONSTITUTING 
 CHAPTER FORTY-THREE OF 
 THE GENERAL LAWS. 
 
 RECENT LAWS. 
 
 1896. CHAP. 53. AN ACT to amend 
 
 chapter one hundred and sixty of 
 
APPENDIX. 171 
 
 Enacted, Repealed. 
 
 the laws of eighteen hundred and 
 ninety (as amended by chapter 
 twenty-five of the laws of eighteen 
 hundred and ninety-two) entitled 
 " An Act to authorize gifts, devises 
 and bequests of real and personal 
 property to trustees and their suc- 
 cessors in perpetuity as a corpora- 
 tion in trust for the purposes of 
 creating and maintaining public 
 parks." 
 1896. CHAP. 148. "An Act to amend 
 chapter forty-eight of the laws of 
 eighteen hundred and twenty, en- 
 titled ' An Act to incorporate the 
 Bible and Common Prayer Book 
 Society of Albany and vicinity," as 
 amended by chapter three hundred 
 and nineteen of the laws of eighteen 
 hundred and ninety-five. 
 
APPENDIX No. III. 
 
 TITLES OF THE PRINCIPAL STATUTES RELATIVE TO 
 RELIGIOUS CORPORATIONS AND TO INCORPORATED 
 CEMETERIES, BURIAL PLACES OR GRAVEYARDS. 1 
 
 Enacted. Repealed. 
 
 1693. CHAP. 36. An Act for settling a C. 21, Laws of 
 Ministry, and raising a maintenance c. 677,' Laws of 
 for them in the City of New York, l8 ° 2 - 
 County of Richmond, Westchester, 
 and Queens County. Passed the 
 24th of March, 1693. 
 
 1704. CHAP. 141. An Act for granting c 21, Laws of 
 sundry privileges and powers to £ 82 f~ 9 ' l ec ' 4 i 
 the Rector and Inhabitants of the 1892. 
 City of New York, of the Com- 
 munion of the Church of England, 
 as by law established. Passed 27th 
 of June, 1704. 
 
 1784. CHAP. 18. An Act to enable all the cf. c. 189. 
 Religious Denominations in this Laws of l801 ' 
 State to appoint Trustees, who 
 ' shall be a Body Corporate, for the 
 Purpose of taking care of the Tem- 
 poralities of their respective Con- 
 gregations, and for other Purposes 
 
 1 Although " The Religious Corporations Law " (chapter 723. Laws of 1895) 
 is a substitute for all existing general laws for the creation and temporal ad- 
 ministration of religious corporations, it is thought that the professional reader 
 may desire to glance over the titles of the more significant of the earlier acts 
 on the same subject, 'as it enables him the more easily to follow a particular 
 line of investigation. 
 
 Article III. of " The Membership Corporations Law " (chapter 559, Laws of 
 1895) has superseded many of the earlier laws relating to burial places. 
 
 172 
 
APPENDIX. 173 
 
 Enacted. Repealed. 
 
 therein mentioned. Passed April 
 the 6th, 1784.* 
 1801. CHAP. 79. An Act to provide for c - 262 . Laws 
 
 A , ■ • r ,- • .of 1813. 
 
 the incorporation 01 religious socie- 
 ties. Passed 27th March, 1801. 
 
 1813. CHAP. 60. (R. L.) An Act to pro- c. 723, Laws of 
 
 vide for the Incorporation of Reli- J 95 ' 
 gious Societies. Passed April 5, 
 1813. 
 
 1814. CHAP. 1. An Act to alter the name Sec. 6 repealed 
 
 of the corporation of Trinity U ^J? 3 ' Laws 
 Church in New York, and for 
 other purposes. Passed January 
 25, 1814. 
 
 1819. CHAP. 33. An Act to amend the c. 723, Laws 
 act entitled " An act to provide for of l8g5 - 
 the incorporation of religious socie- 
 ties." Passed March 5, 18 19. 
 
 1819. CHAP. no. An Act to incorporate 
 the General Synod of the Re- 
 formed Protestant Dutch" Church. 
 Passed April 17, 1819. [Amended, 
 C. 171, Laws of 1869, which see.] 
 
 1822. CHAP- 187. An Act supplementary c. 723, Laws 
 to the act entitled " An act to pro- of l895 - 
 vide for the incorporation of reli- 
 gious societies," passed April 5, 
 1813. Passed April 12, 1822. 
 
 1825. CHAP. 303. An Act to amend an C. 723, Laws 
 act passed April 5, 181 3, entitled ° * 95 " 
 
 * The Act of 1784 contains the following preamble : "And whereas many of 
 the churches, congregations and religious societies in this State (while it was 
 a colony) have been put to great difficulties to support the public worship of 
 God by reason of the illiberal and partial distribution of charters of incorpora- 
 tion to religious societies, whereby many charitable and well-disposed per- 
 sons have been prevented from contributing to the support of religion, for 
 want of proper persons authorized by law, to take charge of their pious dona- 
 tions, and many estates purchased and given for the support of religious socie- 
 ties, now vest in private hands, to the great insecurity of the society, for 
 whose benefit they were purchased or given, and to the no less disquiet of 
 many of the good people of this State:" etc., etc. 
 
174 APPENDIX. 
 
 Enacted. Repealed. 
 
 " An act to provide for the incor- 
 poration of religious societies." 
 Passed April 21, 1825. 
 1826. CHAP. 47. An Act to amend an act c. 723, Laws 
 entitled " An act to provide for the of l895> 
 incorporation of religious socie- 
 ties," passed April 5, 1813. Passed 
 February 15, 1826. 
 
 1834. CHAP. 78. An Act to amend article 
 
 seventh, title eighth, chapter twen- 
 tieth, part first of the Revised 
 Statutes, entitled " Of the disturb- 
 ance of religious meetings." Passed 
 April 8, 1834. 
 
 1835. CHAP. 90. An Act to amend the c. 723, Laws 
 
 charter of the minister, elders and o£ * 895 ' Secs " 8 ' 
 
 ' g, 10, II. 
 
 deacons of the Second Protestant 
 Reformed Dutch Church of the 
 city of Albany. Passed April 15, 
 
 183S- 
 1839. CHAP. 174. An Act in relation to c. 723, Laws 
 certain trusts. Passed April 15, of 1895, Sees. 8, 
 
 r -" g, 10, II. 
 
 1839- 
 
 CHAP. 184. An Act in relation to C. 723, Laws 
 
 trusts for the benefit of the meet- J j 8 ,? 5 !! Secs ' 8 ' 
 ings of the religious society of 
 Friends. Passed April 17, 1839. 
 1842. CHAP. 153. An Act concerning the c. 723, Laws 
 acquisition of burial places by of l895 ' Secs- 8 ' 
 religious corporations in the city 
 of New York. Passed April 11, 
 1842, by a two-thirds vote. 
 
 CHAP. 215. An Act in relation to c. 723, Laws 
 
 burying grounds. Passed April of 1895, Sees. 8, 
 
 11, 1842. 9 ' 10 ' "' 
 
 1844 CHAP. 158. An Act to amend an c. 723, Laws 
 
 act entitled " An act to provide for of l88 5- Secs - 8 > 
 
 r 9, io, 11. 
 
 the incorporation of religious so- 
 cieties," passed April 5, 1813. 
 
APPENDIX. 175 
 
 Enacted. Repealed. 
 
 Passed April 16, 1844, by a two- 
 thirds vote. 
 1845. CHAP. 195. An Act in relation to , c - 402, Laws 
 
 . . , . of 1882. 
 
 stocks in moneyed corporations 
 held by the State or by literary 
 or charitable institutions. Passed 
 May 13, 1845 
 1847. CHAP. 133. An Act authorizing the c.55 9 ,Lawsof 
 incorporation of rural cemetery as- sec 5 'io except 
 sociations. Passed April 27, 1847. 
 
 CHAP. 209. An Act in relation to 
 
 cemeteries in incorporated villages. 
 Passed May 7, 1847. 
 
 CHAP. 464. An Act to authorize 
 
 persons to change their names. 
 Passed December 14, 1847. 
 
 1849. CHAP. 373. An Act to amend " An C. 723, Laws 
 
 act in relation to certain trusts," ° l 95 ' 
 passed April 15, 1839. Passed April 
 11, 1849 
 
 1850. CHAP. 122. An Act to amend the c. 723, Laws 
 
 act entitled " An act to provide for ° J y:> ' 
 the incorporation of religious socie- 
 ties," passed April 5, 18 13, and the 
 several acts amendatory thereof. 
 Passed March 30, 1850. 
 
 1851. CHAP. 544. An Act to incorporate c. 378, Laws 
 
 academies and high schools in this of l892 - 
 State. Passed July 11, 185 1. 
 
 1852. CHAP. 203. An Act to amend an c. 723, Laws 
 
 , Act entitled, An Act in relation to of 'As- 
 certain Trusts, passed April 15, 
 1839, Passed April 10, 1852. 
 
 CHAP. 280. An Act further to Sec . Ij2 , c . 559> 
 
 amend the act entitled " An act au- Laws of 1895. 
 thorizing the incorporation of rural 
 cemetery associations, "passed April 
 27, 1847. Passed April 14, 1852. 
 
 CHAP. 282. An Act defining the ex- 
 
176 APPENDIX. 
 
 Enacted. Repealed. 
 
 emptions from taxation on public 
 building in the City of New York. 
 Passed April 14, 1852. 
 
 1853. CHAP. 323. An Act to authorize c. 723, Laws 
 
 religious corporations to change 
 their names. Passed June 4, 1853. 
 
 1854. CHAP. 112. An Act for the incor- C. 559, Laws 
 
 . , , of 1895, all ex- 
 
 poration of private and family cem- cept sec. 11. 
 
 eteries. Passed April 1, 1854. 
 
 CHAP. 218. An Act for the incor- 
 
 poration of societies to establish 
 free churches. Passed April 13, 
 
 1854. 
 
 CHAP. 238. An Act to amend an act 
 
 passed April 14, 1852, entitled " An 
 act further to amend the act enti- 
 tled ' An act authorizing the incor- 
 poration of rural cemetery associa- 
 tions,' " passed April 27, 1874. 
 Passed April 15, 1854. 
 1860. CHAP. 80. An Act to amend chap- C 245, Laws 
 ter four hundred and sixty-four of ^ £ 3® 80 ' sec> '' 
 the laws of eighteen hundred and 
 forty-seven. Passed March 17, i860; 
 three-fifths being present. 
 
 CHAP. 163. An Act to amend the ^c.^ 559, Laws 
 
 act entitled " An act authorizing 
 the incorporation of rural cemetery 
 associations," passed April twenty- 
 seventh, eighteen hundred and 
 forty-seven. Passed April 5, i860. 
 
 CHAP. 360. An Act relating to wills. 
 
 Passed April 13, i860. 
 1863. CHAP. 45. An Act supplementary c. 723, Laws 
 to the act entitled " An act to pro- of l8g5 - 
 vide for the incorporation of reli- 
 gious societies," passed April fifth, 
 eighteen hundred and thirteen. 
 Passed March 25, 1863. 
 
 of i860. 
 
APPENDIX. 177 
 
 Enacted. Repealed. 
 
 1863. CHAP. 287. An Act relative to cer- 
 tain religious societies in the City 
 of New York. Passed April 29, 
 1863. 
 
 1865. CHAP. 393. An Act to amend the 
 
 charter of the Sisters of Charity of 
 St. Vincent de Paul. Passed April 
 13, 1865. 
 
 1866. CHAP. 136. An Act to amend the 
 
 fourth subdivision of fourth section 
 of first part of chapter thirteen, 
 part first of the Revised Statutes, 
 in relation to exemption from taxa- 
 tion upon real and personal property 
 of religious and benevolent institu- 
 tions. Passed March 9, 1866. 
 
 CHAP. 414. An Act to amend an act C. 723, Laws 
 
 entitled " An act to provide for the 
 incorporation of religious societies," 
 passed April 5, 18 13. Passed April 
 6, 1866. 
 
 CHAP. 447. An Act relating to Re- c. 723, Laws 
 
 formed Presbyterian Churches and ° ' 95 ' 
 Congregations. Passed April 7, 
 1866. 
 
 1867. CHAP- 206. An Act to incorporate 
 
 " The Trustees of the Presbytery of 
 New York." Passed March 30, 1867. 
 
 CHAP. 265. An Act to authorize the c, 723, Laws 
 
 formation of corporations to secure of l8 95- 
 parsonages and other property for 
 the use of presiding elders of the 
 Methodist Episcopal Church. 
 Passed April 5, 1867. 
 
 CHAP. 656. An Act to amend " An c. 723, Law. 
 
 act to provide for the incorporation ° 95 ' 
 of religious societies," passed April 
 fifth, eighteen hundred and thir- 
 teen. Passed April 23, 1867. 
 
178 APPENDIX. 
 
 Enacted. Repealed. 
 
 1867. CHAP. 657. An Act to authorize the ^ 723, Laws 
 
 erection of free churches or chapels 
 in certain cases. Passed April 23, 
 1867. 
 
 1868. CHAP. 273. An Act to incorporate 
 
 "The Trustees of the Synod of 
 Albany." Passed April 21, 1868. 
 
 CHAP. 402. An Act to authorize the c. 559. Laws 
 
 trustees of incorporated rural cerae- ° l 9 ' 
 teries to impose a tax upon the lot 
 owners in said cemeteries. Passed 
 April 27, 1868. 
 
 CHAP. 461. An Act to incorporate 
 
 the Evangelical Lutheran Synod of 
 the State of New York. Passed 
 April 29, 1868. 
 
 CHAP. 471. An Act for the relief of 
 
 certain religious societies in the 
 city and county of New York, and 
 in the counties of Kings and West- 
 chester. Passed April 29, 1868. 
 
 CHAP. 784. An Act to amend an c. 723, Laws 
 
 act entitled " An Act to authorize of l895 - 
 the formation of corporations to 
 secure parsonages and other prop- 
 erty for the use of presiding elders 
 of the Methodist EpiscopalChurch," 
 passed April fifth, eighteen hundred 
 sixty-seven. Passed May 9, 1868. 
 
 CHAP. 803. An Act to amend the c. 723, Laws 
 
 acts to provide for the incorpora- ofl8 95- 
 tion of religious societies, so far as 
 the same relate to churches in con- 
 nection with the Protestant Episco- 
 pal Church. Passed May 9, 1868. 
 
 1869. CHAP. 171. An Act to amend " An c. 723, Laws 
 
 Act to incorporate the General of l8 95- 
 Synod of the Reformed Dutch 
 Church," passed April seventh, 
 
APPENDIX. 179 
 
 Enacted. Repealed. 
 
 eighteen hundred and nineteen, and 
 to enable said synod to hold prop- 
 erty to a greater amount. Passed 
 April 14, 1869. 
 
 1869. CHAP- 197. An Act to change the 
 
 corporate title of the General Synod 
 of the Reformed Protestant Dutch 
 Church, to that of the General 
 Synod of the Reformed Church in 
 America. Passed April 15, 1869. 
 
 CHAP. 727. An Act authorizing 
 
 cities and villages to acquire title 
 to property for burial purposes, 
 and to levy taxes for the pay- 
 ment of the same. Passed May 8, 
 1869. 
 
 1870. CHAP. 527. An Act to authorize rural c. 559. Laws 
 
 • • of 1805. 
 
 cemetery associations to accept con- 
 veyances from religious societies 
 and trustees of any grounds held 
 by such societies or trustees for 
 burial purposes. Passed May 2, 
 1870. 
 
 CHAP. 760. An Act to amend chap- 
 
 ter seven hundred and twenty-seven 
 of the laws of eighteen hundred and 
 sixty-nine, entitled " An Act authoi - 
 izing cities and villages to acquire 
 title to property for burial purposes, 
 and to levy taxes for the payment 
 of the same," passed May eighth, 
 eighteen hundred and sixty-nine. 
 Passed May 9, 1870. 
 
 1871. CHAP- 12. An Act supplementary c. 723, Laws 
 
 to the act entitled "An Act to pro- ° I 95 ' 
 vide for the incorporation of reli- 
 gious societies," passed April fifth, 
 eighteen hundred and thirteen. 
 Passed January 31, 1871. 
 
I m APPENDIX. 
 
 Repealed. 
 
 1871. CHAP. 68. An Act to amend " An C. 559. Laws 
 
 .... , OI I895. 
 
 Act for the incorporation 01 private 
 and family cemeteries," passed April 
 first, eighteen hundred and fifty- 
 four. Passed March 6, 1871. 
 
 CHAP. 164. An Act to amend an act 
 
 passed April fourteenth, eighteen 
 hundred and fifty-two, entitled " An 
 Act further to amend an act entitled 
 ' An Act authorizing the incorpor- 
 ation of rural cemetery associations,' 
 passed April twenty-seventh, eigh- 
 teen hundred and forty-seven." 
 Passed March 24, 1871. 
 
 CHAP. 378. An Act to amend an c. 559, L ws 
 
 act entitled "An Act authorizing 9 ' 
 
 the incorporation of rural cemetery 
 associations," passed April twenty- 
 seventh, eighteen hundred and forty- 
 seven, and all supplementary acts 
 appertaining thereto. Passed April 
 8, 1871. 
 
 CHAP. 401. An Act to incorporate 
 
 the Synod of Western New York. 
 Passed April 11, 1871. 
 
 CHAP. 419. An Act to authorize the 
 
 sale of unoccupied lands for burial 
 grounds and rural cemetery associ- 
 ations. Passed April 12, 1871. 
 
 CHAP. 696. An Act to amend an act 
 
 entitled " An Act to amend chapter 
 seven hundred and twenty-seven of 
 the laws of eighteen hundred and 
 sixty-nine, entitled " An Act author- 
 izing cities and villages to acquire 
 title to property for burial pur- 
 poses, and to levy taxes for the 
 payment of the same,' passed May 
 eighth, eighteen hundred and sixty- 
 
of 1895. 
 
 APPENDIX. l8l 
 
 Enacted. Repealed. 
 
 nine," passed May ninth, eighteen 
 hundred and seventy. Passed April 
 25, 1871. 
 
 1871. CHAP. 750. An Act to incorporate 
 
 " The Trustees of the Estate belong- 
 ing to the Diocese of Long Island," 
 and to authorize said corporation 
 to acquire and hold land for reli- 
 gious, charitable and benevolent 
 purposes Passed April 26, 1871. 
 
 CHAP. 776. An Act to authorize C- a 723, Laws 
 
 religious corporations, created by 
 special charter, to exercise the same 
 powers as are given to religious 
 societies incorporated under the 
 general act to provide for the in- 
 corporation of religious societies, 
 passed April fifth, eighteen hun- 
 dred and thirteen, and the acts 
 amendatory thereof or supplemen- 
 tary thereto. Passed April 27, 1871. 
 
 1872. CHAP. 104. An Act in relation to 
 
 trustees and directors of charit- 
 able and benevolent institutions. 
 Passed March 12, 1872. 
 
 CHAP: 424. An Act to provide for 
 
 the dissolution of religious societies, 
 except in the City and County of 
 New York, and for the sale and dis- 
 position of the proceeds of the 
 property of such societies. Passed 
 April 27, 1872. 
 
 CHAP. 534. An Act for the relief of 
 
 certain religious societies in the 
 County of Kings. Passed May 6, 
 1872. 
 
 CHAP. 644. An Act to incorporate 
 
 the Trustees of the Presbytery of 
 Westchester. Passed May 1 1 , 1 872. 
 
182 APPENDIX. 
 
 Enacted. Repealed. 
 
 1872. CHAP. 696. An Act to amend chap- 
 
 ter two hundred and nine of the 
 laws of eighteen hundred and forty- 
 seven, entitled ' An act in relation 
 to cemeteries in incorporated vil- 
 lages." Passed May 14, 1872. 
 
 CHAP. 762. An Act to incorporate 
 
 the German United Evangelical 
 Synod of the East. Passed May 
 17, 1872. 
 
 1873. CHAP. 46. An Act to provide for c. 569, Laws 
 
 the laying out, improvement and of l89 ° - 
 preservation of burial grounds in 
 the several towns of the State. 
 Passed March 5, 1873. 
 
 — '■ — CHAP. 197. An Act incorporating 
 the Trustees of the Northern New 
 York Conference of the Methodist 
 Episcopal Church. Passed April 
 10, 1873. 
 
 CHAP. 346. An Act to incorporate 
 
 the Free Methodist General Con- 
 ference of North America. Passed 
 April 30, 1873. 
 
 CHAP. 361. An Act to amend an act c. ssq, Law 
 
 entitled " An act authorizing the of l8 95- 
 incorporation of rural cemetery 
 associations," passed April twenty- 
 seventh, eighteen hundred and 
 forty-seven. Passed April 30, 1873. 
 
 CHAP. 452. An Act to amend sec- 
 
 tion one of chapter seven hundred 
 and sixty of the laws of eighteen 
 hundred and seventy, in reference 
 to acquiring title to real estate for 
 burial purposes. Passed May 8, 
 
 1873- 
 
 1874. CHAP- 26. An Act authorizing the c. 723, Laws 
 
 formation of corporations to secure of l8 95- 
 
APPENDIX. 183 
 
 Enacted. Repealed. 
 
 camp-grounds and other property 
 connected therewith for the use of 
 the Methodist Episcopal Church. 
 Passed February 20, 1874. 
 
 1874. CHAP. 37. An Act Supplementary c. 723, Laws 
 
 to an act entitled " An act to pro- ° * 95- 
 vide for the incorporation of re- 
 ligious societies," passed April fifth, 
 eighteen hundred and thirteen, and 
 • the several acts amendatory thereof. 
 Passed February 27, 1874. 
 
 CHAP. 121. An Act to incorporate 
 
 the Western New York Conference 
 of the Methodist Episcopal Church. 
 Passed April 3, 1874. 
 
 CHAP. 245. An Act to amend an act C. 559, Laws 
 
 entitled " An act authorizing the ° x 95 ' 
 incorporation of rural cemetery as- 
 sociations," passed April twenty- 
 seventh, eighteen hundred and 
 forty-seven, and the acts amenda- 
 tory thereof. Passed April 24, 1874. 
 
 1875. CHAP 79. An Act supplementary c. 723, Laws 
 
 to chapter sixty of the laws of of l8g5 ' 
 eighteen hundred and thirteen en- 
 titled " An act to provide for the 
 incorporation of religious societies," 
 Passed March 29, 1875. 
 
 CHAP. 206. An Act to amend chap- 
 
 ter four hundred and fifty-two of 
 the laws of eighteen hundred and 
 seventy-three, entitled " An act to 
 amend section one of chapter seven 
 hundred and sixty of the laws of 
 eighteen hundred and seventy in 
 reference to acquiring title to real 
 estate for burial purposes." Passed 
 April 20, 1875 ; three-fifths being 
 present. 
 
1 84 APPENDIX. 
 
 Enacted. Repealed. 
 
 1875. CHAP. 209. An Act supplementary c. 723, Laws 
 to chapter sixty of the laws of ° * 95 ' 
 eighteen hundred and thirteen, en- 
 titled " An act to provide for the 
 incorporation of religious societies." 
 Passed April 29, 1875. 
 
 CHAP. 307. An Act to amend an 
 
 act entitled "An act to incorporate 
 the Evangelical Lutheran Synod of 
 the State of New York," passed 
 April twenty-nine, eighteen hun- 
 dred and sixty-eight." Passed May 
 14, 1875. 
 
 CHAP. 325. An Act to amend c - 723, Laws 
 
 1 r , r of l8 95- 
 
 chapter twenty-six of the laws of 
 . eighteen hundred and seventy-four 
 entitled " An act authorizing the 
 formation of corporations to secure 
 camp-grounds and other prop- 
 erty connected therewith, for the 
 use of the Methodist Episcopal 
 Church." Passed May 14, 1875. 
 
 CHAP. 354. An Act to amend chap- c - 7^3, Laws 
 
 ter forty-seven of the laws of 
 eighteen hundred and twenty-six, 
 entitled " An act to amend an act 
 entitled ' An act to provide for the 
 incorporation of religious socie- 
 ties.' " Passed May 15, 1875. 
 
 CHAP. 381. An Act supplemental to c. 723, Laws 
 
 an act entitled " An act to provide ° J 95 ' 
 for the incorporation of religious 
 societies," passed April fifth, one 
 thousand eight hundred and thir- 
 teen, and of the several acts amend- 
 atory thereof. Passed May 17, 1875. 
 
 CHAP. 408. An Act in relation to 
 
 parsonages in certain cases. Passed C. 723, Laws 
 May 21, 1875. of l895> 
 
of 1895. 
 
 APPENDIX. 185 
 
 Enacted. Repealed. 
 
 1875. CHAP. 443. An Act to amend an act c. 723, Laws 
 
 entitled " An act to amend an act ° l 95- 
 entitled ' An act to provide for the 
 incorporation of religious socie- 
 ties,' passed April fifth, eighteen 
 hundred and thirteen, and supple- 
 mentary thereto," passed March 
 twenty -ninth, eighteen hundred and 
 seventy-five. Passed May 28, 1875. 
 
 CHAP. 597. An Act to amend an act C 723, Laws 
 
 of 1895. 
 
 entitled " An act to provide for the 
 incorporation of religious societies," 
 passed April fifth, one thousand 
 eight hundred and thirteen. Passed 
 June 18, 1875. 
 
 1876. CHAP. no. An Act supplemental to ^C 723, Laws 
 
 chapter sixty of the laws of eighteen 
 hundred and thirteen, entitled " An 
 act to provide for the incorporation 
 of religious societies," and of the 
 several acts amendatory thereof. 
 Passed April 11, 1876. 
 
 CHAP. 176. An Act supplementary c. 723, Laws 
 
 to chapter sixty of the laws of ° i8q5 ; 
 eighteen hundred and thirteen, en- 
 titled " An act to provide for the 
 incorporation of religious societies, 
 and the acts supplementary there- 
 to." Passed April 26, 1876. 
 
 CHAP. 329. An Act securing to f C. g 723, Laws 
 
 Baptist churches of the State of 
 New York the benefits of incorpor- 
 ation, and repealing chapter six 
 hundred and thirty-three of the laws 
 of eighteen hundred and seventy- 
 three, entitled " An act to author- 
 ize the incorporation of Baptist 
 churches in the State of New York, 
 and supplementary to an act en- 
 
 of 1895. 
 
186 APPENDIX. 
 
 Enacted. Repealed. 
 
 titled ' An act to provide for the in- 
 corporation of religious societies,' 
 passed April fifth, eighteen hundred 
 and thirteen " Passed May 15, 1876. 
 1877. CHAP. 31. An Act to amend chap- 
 ter one hundred and thirty-three of 
 the laws of eighteen hundred and 
 forty-seven, entitled " An act au- 
 thorizing the incorporation of rural 
 cemetery associations." Passed 
 March 3, 1877. 
 
 CHAP. 177. An Act to amend chap- c. 723, Laws 
 
 ter three hundred and eighty-one ° T 95- 
 of the laws of eighteen hundred and 
 seventy-five, entitled " An act sup- 
 plemental to an act entitled ' An act 
 to provide for the incorporation of 
 religious societies,' passed April 
 fifth, eighteen hundred and thirteen, 
 and of the several acts amendatory 
 thereof. Passed April 25, 1877. 
 
 CHAP. 426. An Act to amend chap- C 559, Laws 
 
 ter four hundred and two of the of l8 95- 
 laws of eighteen hundred and sixt) 7 - 
 eight, entitled " An act to authorize 
 the trustees of incorporated rural 
 cemeteries to impose a tax upon 
 the lot owners in said cemeteries." 
 Passed June 6, 1877. 
 
 CHAP. 451. An Act for the more c'593, Laws 
 
 effectual prevention of wanton and o^sse, Sec. 
 malicious mischief, and to prevent 
 the defacement of natural scenery. 
 Passed June 15, 1877. 
 
 CHAP. 472. An Act to authorize the 
 
 trustees of incorporated rural ceme- 
 teries to register the lots thereof, 
 and to impose a tax upon the lot 
 owners in said cemeteries, in the 
 
APPENDIX. 187 
 
 Enacted. Repealed. 
 
 counties of Kings and Queens. 
 Passed June 16, 1877. 
 
 1878. CHAP. 189. An Act for the protec- c Laws 
 
 tion of graves in cemeteries. Passed of 1886, Sec 
 April 27, 1878. l ' T 53 ' 
 
 CHAP. 209. An Act to amend chap- c „ Laws 
 
 ter one hundred and eighty-four of of l8 95- 
 the laws of eighteen hundred and 
 thirty-nine, entitled " An act in re- 
 lation to trusts for the benefit of the 
 meetings of the religious society of 
 Friends, passed April seventeen, 
 eighteen hundred and thirty-nine." 
 Passed May 2, 1878. 
 
 CHAP. 349. An Act to facilitate the r c 723, Laws 
 
 1 f u s of 1895. 
 
 removal of human remains from 
 
 burying grounds within the limits 
 
 of cities. Passed May 23, 1878. 
 
 1879. CHAP. 24. An Act to amend section 
 
 thirteen of article three of title five 
 of part four of the Revised Statutes, 
 entitled " Of offenses against public 
 decency." Passed February 14, 
 1879; three-fifths being present. 
 
 CHAP. 107. An Act relating to c. 559, Laws 
 
 rural cemetery associations. Passed of l8g5 " 
 March 22, 1879. 
 
 CHAP. 108. An Act to amend chap- c. 559. Laws 
 
 ter one hundred and thirty-three 
 of the laws of eighteen hundred and 
 forty-seven, entitled 'An act author- 
 izing the incorporation of rural 
 cemetery associations." Passed 
 March. 22, 1879. 
 
 CHAP. 117 An Act to amend chap- c. 723, Laws 
 
 ter one hundred and twenty-two of ° I 
 the laws of eighteen hundred and 
 fifty, entitled " An act to amend 
 the act entitled ' An act to provide 
 
1 88 APPENDIX. 
 
 Enacted. Repealed. 
 
 for the incorporation of religious 
 societies, 'passed April five, eighteen 
 hundred and thirteen," and the 
 several acts amendatory thereof. 
 Passed March 27, 1879. 
 
 1879. CHAP- 136. An Act to amend chap- ol c ^ 3 ' Laws 
 ter three hundred and twenty-nine 
 of the laws of eighteen hundred and 
 seventy-six, entitled " An act secur- 
 ing the Baptist churches of the State 
 of New York the benefits of incor- 
 poration, and repealing chapter six 
 hundred and thirty-three of the 
 laws of eighteen hundred and 
 seventy-three, entitled 'An act to 
 authorize the incorporation of Bap- 
 tist churches in the State of New 
 York, and supplementary to an act, 
 entitled An act to provide for the 
 incoporation of religious societies, 
 passed April fifth, eighteen hundred 
 and thirteen.' " Passed April 2, 
 1879. 
 
 1879. CHAP. 310. An Act to prevent the 
 sale of land used for cemetery pur- 
 poses. Passed May 17, 1879. 
 
 CHAP. 411. An Act to further amend c. 559 Laws 
 
 chapter four hundred and two of of l8g5- 
 the laws of eighteen hundred and 
 sixty-eight, entitled " An Act to 
 authorize the trustees of incorpo- 
 rated rural cemeteries to impose a 
 tax upon the lot owners in said 
 cemeteries." Passed May 29, 1879. 
 
 CHAP. 463. An Act to amend an c. 723, Laws 
 
 act entitled " An Act supplement- of l8 95- 
 ary to chapter sixty of the laws of 
 eighteen hundred and thirteen, en- 
 titled " An Act to provide for the 
 
APPENDIX. 189 
 
 Enacted. Repealed. 
 
 incorporation of religious socie- 
 ties,' " passed March twenty-ninth, 
 eighteen hundred and seventy-five. 
 Passed June 3, 1875. 
 
 1880. CHAP. 55. An Act to amend section C. 723, Laws 
 
 three of chapter one hundred and ° l895 " 
 ten of the laws of eighteen hundred 
 and seventy-six, entitled " An Act 
 supplemental to chapter sixty of 
 the laws of eighteen hundred and 
 thirteen," entitled " An Act to pro- 
 vide for the incorporation of religi- 
 ous societies, and of the several 
 acts amendatory thereof." Passed 
 March 10, 1880. 
 
 CHAP. 337. An Act to amend chap- c. 723, Laws 
 
 ter one hundred and eighty-lour ° * 95 ' 
 of the laws of eighteen hundred and 
 thirty nine, entitled " An Act in 
 relation to trusts for the benefit of 
 the meetings of the religious soc- 
 iety of Friends." Passed May 20, 
 1880. 
 
 CHAP. 566. An Act to amend chap- c. 559, Laws 
 
 ter one hundred and thirty-three of of l8g5 " 
 the laws of eighteen hundred and 
 forty-seven entitled " An Act au- 
 thorizing the incorporation of rural 
 cemetery associations," and the acts 
 amendatory thereof. Passed June 
 16, 1880. 
 
 1881. CHAP. 22. Ah Act requiring all. c - ^87, Laws 
 
 certificates of incorporations, here- 
 after filed pursuant to law, either in 
 the office of the Secretary of State, 
 or in the office of any county clerk 
 to be recorded therein, and regulat- 
 ing the fees therefor. Passed March 
 2, 1 88 1 ; three-fifths being present. 
 
I90 APPENDIX. 
 
 Enacted. Repealed. 
 
 1881. CHAP. 139. An Act to give certain C 559. Laws 
 
 -ill- °f 1895. 
 
 powers to corporations holding 
 cemeteries. Passed April 22, 188 1. 
 
 CHAP. 327. An Act supplementary o{ <~ 723, Laws 
 
 to chapter sixty of the laws of eigh- 
 teen hundred and thirteen, entitled 
 " An Act to provide for the incor- 
 poration of religious societies." 
 Passed May 20, 1881. 
 
 CHAP. 501. An Act to authorize C. 723, Laws 
 
 religious corporations holding lands 
 for the purposes of a cemetery to 
 sell and convey lots and plots. 
 •Passed June 13, 1881 ; three-fifths 
 being present. 
 
 1882. CHAP. 23. An Act to amend section c. 723, Laws 
 
 one of chapter fifty-five of the laws of i8q5 " 
 of eighteen hundred and eighty, en- 
 titled " An Act to amend section 
 three of chapter one hundred and 
 ten of the laws of eighteen hundred 
 and seventy-six, entitled, 'An Act 
 supplemental to chapter sixty of the 
 laws of eighteen hundred and thir- 
 teen, entitled ' An Act to provide 
 for the incorporation of religious 
 societies, and of the several Acts 
 amendatory thereof.' " Passed 
 March 21, 1882; three- fifths being 
 present. 
 
 CHAP. 290. An Act in relation to Laws of 1890, 
 
 sales and purchases of lands by cor- ^ ^^c ^86- 
 porations. Passed June 5, 1882. 687. 
 
 1883. CHAP. 257. An Act to establish a 
 
 board of trustees in the city of New 
 York for parishes in foreign coun- 
 tries of the Protestant Episcopal 
 Church in the United States of 
 America. Passed April 19,' 1883. 
 
APPENDIX. 
 
 I 9 I 
 
 Enacted. Repealed. 
 
 1883. CHAP. 501. An Act to amend an Act c. 723, Laws 
 
 entitled "An Act to amend the ° fl895 ' 
 charter of the Minister, Elders and 
 Deacons of the Second Protestant 
 Reformed Dutch Church in the 
 city of Albany," passed April fif- 
 teen, eighteen hundred and thirty- 
 five. Passed June 2, 1883; three- 
 fifths being present. 
 
 1884. CHAP. 198. An Act to authorize reli- c - 723, Laws 
 
 gious corporations to take and hold ° ' ' 
 title to burial plots in trust for the 
 owners or proprietors thereof, and 
 to care for the same, and for 
 other purposes. Passed April 23, 
 1884. 
 
 CHAP. 340. An Act to incorporate 
 
 the Synod of New York. Passed 
 May 23, 1884. 
 
 CHAP. 406. An Act to amend the 
 
 Code of Civil Procedure. Passed 
 May 29, 1884; three-fifths being 
 present. 
 
 CHAP. 433. An Act to amend an act c. 559, Laws 
 
 entitled " An Act to amend the of l895- 
 act entitled ' An act authorizing the 
 incorporation of rural cemetery as- 
 sociations,' " passed April twenty- 
 seventh, eighteen hundred and 
 forty-seven, being chapter one hun- 
 dred and sixty-three of the laws of 
 eighteen hundred and sixty. Passed 
 May 31, 1884. 
 
 1885. CHAP. 19. An Act to amend chap- 
 
 ter one hundred and eighty-two of 
 the laws of eighteen hundred and 
 sixty-nine, entitled " An act to es- 
 tablish and incorporate the board 
 of education of the Methodist Epis- 
 
I9 2 APPENDIX. 
 
 Enacted. Repealed, 
 
 copal Church." Passed February 
 17, 1885. 
 
 1885. CHAP. 171. An Act to authorize 
 
 rural cemetery associations to re- 
 duce or increase the number of 
 their trustees. Passed April 27, 
 1885 ; three-fifths being present. 
 
 CHAP. 197. An Act to amend chap- 
 
 ter two hundred and thirty-five of 
 the laws of eighteen hundred and 
 forty-two, entitled " An act to 
 amend the act entitled ' An Act to 
 incorporate the Baptist Education 
 Society of the State of New York,' " 
 passed March five, eighteen hun- 
 dred and nineteen. Passed May 1, 
 1885 ; three-fifths being present. 
 
 CHAP. 208. An Act to amend chap- 
 
 ter six hundred and thirty-three of 
 the laws of eighteen hundred and 
 seventy-three, entitled " An act to 
 authorize the incorporation of Bap- 
 tist Churches in the State of New 
 York, and supplementary to an act 
 entitled ' An act to provide for the 
 incorpofation of religious socie- 
 ties,' " passed April fifth, eighteen 
 hundred and thirteen, and to amend 
 the title of the same. Passed May 
 1, 1885. 
 
 CHAP. 251. An Act for the relief of 
 
 certain religious societies in the 
 County of Kings. Passed May 9, 
 1885. ' 
 
 1886. CHAP. 16. An Act to allow any c. 723, Laws 
 
 Evangelical Lutheran Church or of l8 95- 
 Congregation in this State, now or 
 hereafter incorporated, to incorpor- 
 ate itself under the provisions of 
 
APPENDIX. 193 
 
 Enacted. Repealed. 
 
 section two of chapter sixty, of the 
 laws of eighteen hundred and thir- 
 teen, entitled " An jet to provide 
 for the incorporation of religious 
 societies." Passed February 15, 
 1886; three-fifths being present. 
 1886. CHAP. 98 An Act to amend chapter C. 723, Laws 
 sixty of the laws of eighteen hun- 
 dred and thirteen, entitled " An act 
 to provide for the incorporation of 
 religious societies," as amended by 
 chapter eight hundred and three of 
 the laws of eighteen hundred and 
 sixty-eight. Passed April 5, 1886; 
 three-fifths being present. 
 
 CHAP. 209. An Act to amend chap- C. 723, Laws 
 
 ter one hundred and ten of the laws 
 of eighteen hundred and seventy- 
 six, entitled " An act supplemental 
 to chapter sixty of the laws of 
 eighteen hundred and thirteen, en- 
 titled ' An act to provide for the 
 incorporation of religious societies 
 and of the several acts amenda- 
 tory thereof.' " Passed April 24, 
 1886. 
 
 CHAP. 305. An Act further to amend 
 
 chapter one hundred and thirty-one 
 of the laws of eighteen hundred and 
 fifty-five, entitled " An act to incor- 
 porate the trustees of the church 
 erection fund of the general assem- 
 bly of the Presbyterian Church in 
 the United States of America." 
 1 Passed May 10, 1886; three-fifths 
 being present. 
 
 CHAP. 358. An Act to amend section 
 
 two thousand seven hundred and 
 forty -six of the Code of Civil Pro- 
 
194 APPENDIX. 
 
 Enacted. Repealed. 
 
 cedure. Passed May 13, 1886; 
 three-fifths being present. 
 
 1886. CHAP. 547. An Act to protect cor- C. 692, Laws 
 
 , . 1 , • A j j °f 1893. 
 
 porations duly incorporated under 
 
 chapter three hundred and nine- 
 teen of the laws of the State of 
 New York, passed April twelfth, 
 eighteen hundred and forty-eight, 
 entitled " An act for the incorpora- 
 tion of benevolent, charitable, scien- 
 tific and missionary societies," and 
 the acts amendatory thereof and 
 supplementary thereto, and to pun- 
 ish offenders. Passed June 2, 1886; 
 three-fifths being present. 
 
 1887. CHAP. 81. An Act in relation to the 
 
 corporation called the Baptist Mis- 
 sionary Convention of the State of 
 New York. 
 
 CHAP. 236. An Act to amend chap- 
 
 ter two hundred and thirty five of 
 the laws of eighteen hundred and 
 forty-two, entitled " An act to in- 
 corporate the Baptist Education 
 Society of the State of New York." 
 Passed March fifth, eighteen hun- 
 dred and nineteen. 
 
 CHAP. 239. An Act to amend an act 
 
 entitled " An act to incorporate the 
 Western New York Conference of 
 the Methodist Episcopal Church. 
 
 1888. CHAP. 46. An Act to amend an act 
 
 entitled " An act to incorporate the 
 Missionary Society of the Most Holy 
 Redeemer in the City of New York. 
 
 CHAP. 61. An Act in relation to the 
 
 amount of property to be held by 
 the Baptist Home Society of the 
 State of New York. 
 
APPENDIX. 195 
 
 Enacted. • Repealed. 
 
 1888. CHAP. 105. An Act to amend chap- 
 
 ter three hundred and sixty of the 
 laws of eighteen hundred and sev- 
 enty-two, entitled •' An act to amend 
 the charter of the American Bible 
 Society." 
 
 CHAP. 308. An Act in relation to 
 
 the trustees of the parochial funds 
 of the Protestant Episcopal Church 
 in the diocese of Western New 
 York. 
 
 1889. CHAP. 395. An Act to amend an 
 
 act entitled " An act to incorporate 
 the American Missionary Associa- 
 tion." 
 
 CHAP. 460. An Act to incorporate 
 
 the American Baptist Education 
 Society. 
 
 CHAP. 559. An Act to amend chap- 
 
 ter three hundred and ninety-two 
 of the laws of eighteen hundred 
 and seventy one, entitled " An act 
 to incorporate the Southern New 
 York Baptist Association." 
 
 1890. CHAP. 53. An Act to amend an act 
 
 entitled " An act to incorporate 
 the American Home Missionary 
 Society." 
 
 CHAP. 113. An Act to incorporate 
 
 the General Conference of Free 
 Baptists. 
 
 1892. CHAP. 135. An Act in relation to 
 
 the Board of Home Missions of 
 the Presbyterian Church. 
 
 1893. CHAP. 410. An Act to incorporate 
 
 the New York City Baptist Asso- 
 ciation and the American Baptist 
 Home Mission Society. 
 
 CHAP. 557. An Act in relation to 
 
196 APPENDIX. 
 
 Enacted. Repealed. 
 
 the American Baptist Publication 
 Society. 
 
 1894. CHAP. 326. An Act to amend an act 
 
 entitled " An act to incorporate the 
 Board of Foreign Missions of the 
 Presbyterian Church of the United 
 States of America." 
 
 CHAP. 634. An Act to incorporate 
 
 the Home Church Extension Board 
 of Onondaga Conference, Method- 
 ist Protestant Church. 
 
 CHAP. 635. An Act to enable the 
 
 Board of Church Extension of the 
 Methodist Protestant Church to 
 take, hold and convey property in 
 the State of New York. 
 
 CHAP. 649. An Act to incorporate 
 
 the American Baptist Missionary 
 Union. 
 
 1895. CHAP. 559. An Act relating to 
 
 MEMBERSHIP CORPORATIONS, CON- 
 STITUTING CHAPTER FORTY-THREE 
 OF THE GENERAL LAWS. 
 
 [Art. 3 of this Act consolidates 
 the laws relating to cemetery asso- 
 ciations.] 
 
 CHAP. 607. An Act authorizing re- 
 
 ligious corporations to establish 
 and maintain a home for the aged 
 poor of their membership or con- 
 gregation, and to take and hold 
 property therefor. 
 
 CHAP. 723. THE RELIGIOUS 
 
 CORPORATIONS LAW" (Chap. 
 42 of the General Laws). 
 
 1896. CHAP- 16. An Act making an ap- 
 
 propriation for the purchase of 
 grounds for burial purposes for 
 the use of the Syracuse State 
 
APPENDIX. 
 Enacted. Repealed. 
 
 Institution for Feeble- Minded Chil- 
 dren. 
 1896. CHAP. 35. An Act to amend sections 
 sixty-one and eighty of chapter 
 seven hundred and twenty-three of 
 the laws of eighteen hundred and 
 ninety-five, entitled " An act in re- 
 lation to religious corporations." 
 
 CHAP. 56. An Act to amend chap- 
 
 ter seven hundred and twenty-three 
 of the laws of eighteen hundred and 
 ninety-five, known as the religious 
 corporations law, in relation to 
 the consolidation of incorporated 
 churches. 
 
 CHAP. 190. An Act to amend chap- 
 
 ter seven hundred and twenty-three 
 of the laws of eighteen hundred and 
 ninety-five, entitled " An act in re- 
 lation to religious corporations con- 
 stituting chapter forty-two of the 
 general laws " in relation to Pres- 
 byterian churches. 
 . CHAP. 324. An Act to amend chap- 
 ter seven hundred and twenty-three, 
 laws of eighteen hundred and ninety- 
 five (became a law April 18, 1896). 
 
 CHAP. 325. An Act to amend " The 
 
 Membership Corporations Law " in 
 relation to cemetery corporations 
 (became a law April 18, 1896). 
 
 CHAP. 327. An Act to amend chap- 
 
 ter six hundred and eighteen of laws 
 of eighteen hundred and ninety-four 
 (became a law April 18, 1896). 
 
 CHAP. 336. An Act to amend chap- 
 
 ter seven hundred and twenty-three 
 of the laws of eighteen hundred and 
 
 197 
 
I98 APPENDIX. 
 
 Enacted. Repealed. 
 
 ninety-five (became a law April 21, 
 1896). 
 CHAP. 337. An Act to amend chap- 
 ter seven hundred and twenty-three, 
 laws of eighteen hundred and ninety- 
 five. 
 
GENERAL INDEX. 
 
 [Refers Jo pages.) 
 
 ACCUMULATION, 
 
 only for the benefit of minors under the R. S., 136. 
 cannot be made for corporation to be formed, 136, 150, 151. 
 when no provision for, belongs to the persons entitled to next 
 eventual estate, 143. 
 
 ALIENS, 
 
 may be trustees of land when, 119. 
 
 ALTERNATIVE DEVISE, 
 when good, 140. 
 
 AMBIGUOUS TRUST, 
 
 bad, even if for charity, 2 note, 40, 55. 
 
 ANNUITY, 
 
 gift to charitable corporation subject to, valid, 128. 
 
 APPENDICES, 
 
 No. I. Statute of Charitable Uses, 160. 
 
 No. II. Titles of the principal Statutes relating to Benevolent, Char- 
 itable, Scientific and Missionary Corporations, 165. 
 
 No. III. Titles of the principal Statutes relative to Religious Corpora- 
 tions and to incorporated Cemeteries, Burial Places or Graveyards, 
 172. 
 
 ASSOCIATIONS, 
 
 unincorporated, might once take lands by purchase, 19,23, 35, 90, no 
 
 bequest to unincorporated, formerly good in New York, 53, 55, 90. 
 
 bequest or devise to domestic unincorporated, now void, go, no. 
 
 gift to, under Act of 1893, 91, no. 
 
 bequest to foreign, good when, 94. 
 
 cannot be trustees, 1 1 8. 
 
 some charitable, may take by special laws, 100, 120. 
 
 199 
 
200 GENERAL INDEX. 
 
 ATTORNEY-GENERAL, 
 
 common law powers of, 57, 58. 
 
 of Province of New York, brought information to enforce charity in 
 
 1707, 46. 
 formerly intervened in cases of charity when, 56, 57, 64. 
 prevented failure of charities, 57, 58, 64. 
 when must now represent beneficiaries in charity cases, 104, 105, 109, 
 
 113, 122, 123. 
 
 BENEVOLENT USE, 
 what formerly a, 108. 
 Act concerning, 106, 107, 108, 109, 117. 
 See Appendices. 
 
 BEQUEST FOR CHARITY, 
 
 although indefinite, formerly generally good, 29, 33, 46, 68. 
 
 affected how by Statutes, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 104, 105. 
 
 to corporation to be formed, 89, 120, 134, 142. 
 
 to foreign corporations, 92, 93. 
 
 corporation in esse\iom described in, 120, 124, 125.. 
 
 See Corporations. 
 
 BURIAL PLACES. See Graveyards and Appendices. 
 
 CALENDARS IN CHANCERY, 
 publication of, 9. 
 effect of publication of, 21. 
 
 CAPACITY, 
 
 charitable donor must have, 73, 74. 
 
 of donee, formerly immaterial under Statute of Charitable Uses, 36. 
 of donee, now indispensable in New York, 73, 74, 75, 76, 77, 78, 79, 
 80, 81, 82, 126, 135. 
 
 CEMETERIES. See Graveyards and Appendicfs, 
 
 CHANCERY, COURT OF, IN ENGLAND, 
 
 jurisdiction of, over charitable uses, 5, 6, 7, 8, 9, 10, 11, 12, 23, 33, 34, 
 
 35. 36, 37, 65. 
 jurisdiction of, settled when, 9. 
 a regular court in time of Hen. V., 8. 
 clerical chancellors in, 13. 
 reports of cases in, 8. 
 
 CHANCERY, COURT OF, IN NEW YORK, 
 took cognizance of charitable uses in 1707, 46. 
 
 opinion of, on the fundamental law of charity, 50, 51, 52, 53, 59, 63, 
 64, 67, 156. 
 
GENERAL INDEX. 201 
 
 CHARITABLE DONATIONS, 
 characteristics of, I, 2, 19. 
 when on condition, 15, 16. 
 
 law of, little changed at the Norman conquest, 18. 
 gifts absolute to charitable corporations are, 24, 72. 
 of personal estates, 31, 32. 
 absolute to corporations, 69, 71, 72, 156. 
 classified how, 70. 
 
 involve a donor who is capax, 73, 74, 75. 
 involve a donee who is capax, 73, 74, 75, 76, 77, 78, 79. 
 how made, 79. 
 See Appendices. 
 
 CHARITABLE TRUSTS, 
 
 of lands, still called "charitable uses," 6. 
 
 are determined by law relating to uses, 30. 
 
 to corporations, 2 note, 72, 79, 81, 82, 83, 84, 86, 129. 
 
 of lands, determined only by Revised Statutes, in New York, 95, 96, 
 
 97. 119- 
 now valid as powers, 95, 97, 136, 143. 
 of personal property, 98. 
 present characteristics of, 102, 103. 
 in New York, now form no exception to ordinary rules, 115, 116, 
 
 119. 
 remedy for misapplication of, 122, 123. 
 
 CHARITABLE USE, 
 
 ancient meaning of the term, 3, 6. 
 
 present meaning of the term, 4, 54, 69, 70, 96, 106, 107, 113. 
 
 jurisdiction over a, 5, 7, 8, 9, 10, 11, 12, 33, 35, 36, 37, 54, 63, 64. 
 
 not vested by Statute of Uses, 6, 7. 
 
 jurisdiction over, before the Statute of Charitable Uses, 23, 32, 33, 35, 
 
 37- 
 enforced at the suit of whom, 23, 104, 105. 
 effect of Statute of Charitable Uses on a, 33, 35, 36, 37. 
 classification of, 37. 
 
 private persons might be seised to a, 27, 32, 46, 50, 52. 
 abrogated in New York by R. S., 52, 56, 58, 59, 95, 96, 106. 
 contention over destruction of, in New York, 59, 60, 61, 62, 65. 
 question about destruction of, settled only in 1873, 62, 63. 
 what is a charitable use under recent act, 104, 105, 106, 107, 108, 109, 
 
 no, in, 113. 
 of lands must be in writing, 120. 
 
 CHARITY, 
 
 characteristics of gift to, 1, note 2. 
 
 history of the law of, 14, 15, 16, 17, 18, 155. 
 
202 GENERAL INDEX. 
 
 CHARITY— continued. 
 
 gifts to charitable corporations now part of the law of, 24, 27, 71, 156. 
 conveyances to natural persons for, 27. 
 new system of, in England, at the Reformation, 32. 
 in the Province of New York, 45, 47. 
 in the State of New York, 49, 50, 51, 52, 54, 72, 101, 115. 
 domain of, only extended by repeal of Statute of Charitable Uses, 54, 
 70. 
 
 CHATTELS. See Personal Property. 
 
 CHURCHES, 
 
 object of charity at common law, 49. 
 
 under Statute of Charitable Uses, in Province of New York, 45. 
 
 how established in Province of New York, 45, note. 
 
 devise to, held bad in New York, 49. 
 
 statutory restrictions on devises, or bequests to, 74, 75, 76, 77, 78, 79, 
 
 80, 81, 82, 92. 
 See Appendices. 
 
 CIVIL DEATH, 
 
 member of religious order not civiliter mortuus, 92, in. 
 
 COMMON LAW OF ENGLAND, 
 
 adopted in New York, 1, 43, 47, 52, 74. 
 
 CONDITIONAL LIMITATIONS, 
 
 rule relating to perpetuity relates to, 131, 132, 133. 
 
 CONDITIONS, 
 
 boc land could be settled on any, 15, 16. 
 
 the predecessors of trusts, 16, 100. 
 
 charitable gift may be subject to, 83, 189. 
 
 subsequent, 100, 130, 131. 
 
 subsequent, may be reserved for whom, 131. 
 
 precedent, 130, 131. 
 
 gift subject to conditions precedent must vest when, 130 
 
 common law, 1 30. 
 
 relieved against in equity sometimes, 131. 
 
 rules concerning perpetuity do not relate to, 131, 133, 139. 
 
 breach of, 129. 
 
 CONVEYANCING, 
 
 principles of,' under the Revised Statutes, 135, 136, 142, 143. 
 
 CORPORATIONS, 
 
 a vehicle of charity, 2 note, 27, 71, 156. 
 
 made competent as heir, in the Roman law, 1 5. 
 
GENERAL INDEX. 203 
 
 CORPORATIONS— continued. 
 
 property of charitable, inalienable, 17, 18. 
 
 early instances of juristic personality of, 18, 19, 25. 
 
 early donations to, 24. 
 
 could not be seised to a use, 24. 
 
 can now take as trustee, when, 24. 
 
 rise of, in England, 25. 
 
 ecclesiastical, 25. 
 
 how constituted, 25, note. 
 
 statutes forbidding alienations to, 25, 26, 74, 75, 76, 77, 78, 79, 80, 81, 
 
 82. 
 effect of Statutes of Mortmain on, 25, 26. 
 conveyance to, creates a perpetuity, 28, 29. 
 
 devise to charitable, good under Statute of Charitable Uses, 35, 49. 
 devise to charitable corporation, good before Statute of Charitable 
 
 Uses, 37, 49. 
 early, in Province of New York, 45, note, 78. 
 Lord Proprietor of New York, could incorporate, 45, note. 
 Dutch, in New York, 45, note, 
 municipal, in New York, 45, 51. 
 devise to, bad in New York, when, 52, 73, 74, 75, 76, 77, 78, 81, 85, 
 
 86, 127. 
 new scheme of charities now involve, 66, 71, 72, 156, 157. 
 right of, to take and grant property at common law, 76. 
 right of, to take property in New York restricted, 74, 75, 76, 77, 78, 
 
 79,80,81,82, 83, 117, 118, 127. 
 right of, to take property as trustee, 24, 72, 79, 81, 82, 83, 84, 86, 129. 
 gifts to, how made, 79. 
 
 amount of property, may hold, 79, note, 81, 82, 83. 
 debts of, deducted when, 82. 
 when they take as trustees and when absolutely, 83, 84, 100, 115, 116, 
 
 117, 118. 
 remainder to, 87, 88. 
 residuary legacy to, 87. 
 devise or bequest to corporations to be formed, 89, in, 120, 134, 138, 
 
 139, 142, 149, 150, 151. 
 gift to one of many corporate uses, 115, 116, 129, 130. 
 how to be described in a will, 90, 120. 
 designation of body corporate in a devise or bequest, 124. 
 successors to trustees of, 138. 
 management of, 139. 
 
 CY PRES, 
 
 effect of, on jurisdiction in charity cases, 12. 
 
 power, does not appertain to judicial tribunals of New York, 12, 39, 
 
 102, 103. 
 the doctrine of charitable approximation, 39. 
 
204 GENERAL INDEX. 
 
 CY PRES — continued. 
 Judicial, 
 
 what, 40, 55. 
 
 no application to a deed, 40. 
 when applied in England, 40. 
 Royal, or administrative, 
 what, 41. 
 
 this doctrine not hostile to republican institutions, 55, 57. 
 legislature often directs application of doctrine of, 55, 57. 
 
 DEVISES, 
 
 history of, 6, 7, 14. 
 
 to corporations, 35, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 124-154. 
 
 to church corporation bad in New York, when, 48, 49. 
 
 statutes affecting, to charity, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83. 
 
 to corporations to be formed, 89. 
 
 to unincorporated associations, 90, 119, 120. 
 
 to the government of the United States, 93. 
 
 governed by the lex loci rei sitae, 93. 
 
 to sell lands and pay proceeds to corporation not nrohibited, 181. 
 
 designation of corporation in, 124, 125. 
 
 See Forms ; Residuary. 
 
 DONEE, 
 
 capacity of, to receive charitable donations formerly immaterial, 35, 36. 
 capacity of donee to receive charitable donation, now indispensable, 
 73. 74- 75- 76, 77, 78. 79. 80, 81, 82, 83. 
 
 DONOR, 
 
 must have capacity to make donations, 73. 
 
 capacity of, determined both by common law and by statutes, 74. 
 statutes in regard to wills of a charitable, 74, 75, 76, 77, 78, 79, 80, 81, 
 82, 83. 
 
 EDUCATION, 
 
 one object of charity, 37 . 
 
 in the Province of New York, 45. 
 
 legacy for the benefit of, in New York, formerly held good in this 
 
 State, 53. 
 acts concerning, 104, 105, 118. 
 
 EDUCATIONAL USE, 
 
 anciently a charitable use, 37. 
 
 act concerning, 104, 105, 106, 107, 108. 
 
 what is an, 106, 108. 
 
 former acts concerning, 117. 
 
GENERAL INDEX. 205 
 
 ENGLISH STATUTES 
 adopted in New York. 
 
 those extending here revised by Jones & Varick, 48. 
 See. Table of Statutes. 
 
 EQUITY. See Chancery. 
 
 ESTATE, 
 
 use of the term, in a devise passes a fee, 137. 
 
 EXECUTOR, 
 
 importance of selecting, in wills to charity, 140. 
 
 failure of, to qualify, 141. 
 
 competent witness to will, 141. 
 
 takes a fee, when, 144, 145, 146, 148, 149, 151, 152. 
 
 take personal estate as trustee, when, 151. 
 
 EXECUTORY DEVISE, 
 
 to charitable corporation to be formed after testator's death, 134, 142, 
 
 143- 
 abolished by Revised Statutes, 135. 
 
 FEE DETERMINABLE, 
 what is a, 132. 
 survives in this State, 132. 
 
 FEE SIMPLE, 
 
 to corporation, 87. 
 alternative, 140. 
 
 FOREIGN CHARITY, 
 
 when and how administered, 92. 
 
 FOREIGN CORPORATION, 
 bequests to, valid when, 92, 93. 
 
 FORMS, 
 
 bequest to a charitable, or a literary association, 1 24. 
 
 bequest of a "remainder" in personal estate to a charitable corpora- 
 tion, 125. 
 
 devise of remainder to charitable corporation, 126. 
 
 bequest to religious corporation, with alternative b'equest over on a 
 contingency, 127. 
 
 bequest to charity, subject to annuities, 128. 
 
 bequest of money to charitable corporation for specific purpose, or a 
 single corporate use, 128. 
 
 bequest to charitable corporation on condition, 130. 
 
 devise to charitable corporation on condition, 131. 
 
206 GENERAL INDEX. 
 
 FORMS— continued. 
 
 bequest and devise of residuary estate, real and personal, to trustees 
 of an express trust for two lives (or the shortest possible period 
 within such lives) for the ultimate benefit of a hospital corporation, 
 directed to be formed after the testator's death, 134. 
 form of bequest and devise of residuary, real and personal, estate 
 (without any express trust) for the benefit of a hospital corporation 
 to be formed, 142. 
 
 devise to trustees in trust for testator's son, with power to latter to ap- 
 point to charity on failure of issue, 1 53. 
 
 FREE ALMS. 
 
 gifts to charity were, 16, 17, 18. 
 
 FUTURE ESTATES AND INTERESTS, 
 
 'limitation of, to corporations valid, when, 87, 88, 89. 
 
 present improbability of a contingency does not avoid limitations of, 
 
 89, 90. 
 in personal property, 104, 116, 121. 
 in lands, 121. 
 
 GRAVE YARDS, 
 
 come under law of charities, 37. 
 in Province of New York, 45. 
 acts concerning, 117. 
 See Appendices. 
 
 GIFTS, 
 
 at first referred to creation of estates tail, 3, 84. 
 
 how the term is used now, 3, 84. 
 
 absolute to corporations, 2, 1 23, 1 56. 
 
 how effected, to corporations, 79, 80. 
 
 causa mortis, 85. 
 
 inter vivos, 85. 
 
 to unincorporated associations, 90, 119, 120 ; See ASSOCIATIONS. 
 
 to one of several corporate uses, 115, 129, 130. 
 
 to corporations, See CORPORATIONS. 
 
 HEREDITAMENTS, 
 what are, 1 54. 
 
 HOSPITAL, 
 
 a charitable foundation, 37, 70. 
 in the Province of New York, 45. 
 See Forms and Appendices. 
 
GENERAL INDEX. 207 
 
 INDEFINITENESS, 
 
 a characteristic of charity, 2 note, 15, 16, 18, 20, 21, 29, 36, 40, 53, 100, 
 
 101. 
 sanctioned by Statute of Charitable Uses, 33. 
 restored as a characteristic of charity by Act of 1893, 62, note, 67, 104, 
 
 105, 106, 107. 
 ancient rule regarding, restored as to charitable trusts, by Legislature, 
 
 104, 
 
 INFORMATION, 
 
 to establish charity lay before and after Statute of Charitable Uses, 36, 
 
 46, 64. 
 proceeding in nature of, competent in charity cases, 56. 
 
 LAND, 
 
 some account of, in England, 15, 18. 
 
 donations of, to charity, 15, 17, note. 
 
 chronicles of, 16. 
 
 devisable, 20. 
 
 effect of Statute 9 Geo. II., c. 36) on /gifts of, 38. 
 
 trusts in, 95, 96, 119. 
 
 governed by Revised Statutes in New York, 103, 104, 119, 120. 
 
 trusts in, must be in writing, 120. 
 
 LEASEHOLD ESTATE, 
 
 of lands in New York, personalty, 93. 
 
 LEASES, 
 
 of urban or building lands, 1 53. 
 of agricultural lands, 153. 
 
 LIBRARY, PUBLIC, 
 a charity, 37. 
 
 in the Province of New York, 45. 
 how incorporated, 157. 
 See Appendices for particular Statutes. 
 
 LORD CHANCELLOR, 
 
 See Chancery. 
 
 MASSES, 
 
 a bequest to have said, 91. 
 
 gift for, a trust in this State, 92, 1 11. 
 
 a religious use, 107, 113. 
 
 not now void for indefiniteness, 1 11. 
 
 See Superstitious Use. : 
 
208 GENERAL INDEX. 
 
 MAXIM, 
 
 " charities are favored," 3, 39, 57, 70, 71, 81, 117. 
 
 cy fires, or charitable approximation, 39, 40, 41, 42. 
 
 a trust is not allowed to fail for a want of a trustee, 41, 55, 103, 118. 
 
 ut res mag is valeat quampereat, 71, 115. 
 
 valeat quantum valere potest, 115. 
 
 MISSIONARY SOCIETIES, 
 See Appendices. 
 
 MORTMAIN, 
 
 some ancient uses declared within Statutes of, 22. 
 
 object of Statutes of, 24, 25, 26, 39. 
 
 account of Statutes of, 26, note. 
 
 dispensing power in regard to laws of, 26. 
 
 Statutes of, did not make alienations void, but voidable, 26. 
 
 policy of, in Statute of Wills, 27. 
 
 Plantagenet Statutes of, 27 . 
 
 effect of Statute of Charitable Uses on Statutes of, 33, 37. 
 
 Act of 9 Geo. III., c. 36, erroneously called the Statute of, 38. 
 
 effect of 9 Geo. III., c. 36, 38, 39. 
 
 9 Geo. III. did not extend to colonies, 39, 56. 
 
 Statutes of, extended to New York, 76. 
 
 Statutes of, repealed in New York in 1788, 76. 
 
 other Statutes of, substituted in New York, 76. 
 
 policy of, in New York, 77. 
 
 no application to gifts of lands in other States, 93, 94. 
 
 MUNICIPAL CORPORATION, 
 
 bequest to, in 1821, held good, 51. 
 Act concerning trusts to, 117. 
 
 PARENS PA TRIJS, 
 King is, 64. 
 legislature is now, 57, 58. 
 
 PARKS AND PARADE GROUNDS, 
 trusts for, Charitable Uses, 37. 
 acts concerning, 117. 
 See Appendices. 
 
 PERMANENCE, 
 
 a characteristic of charitable donations, 2, 28, 100, 101. 
 rule regarding, changed in New York, 48, 66, 101, 102. 
 
 PERPETUITY, 
 
 charitable use contemplates a, 28. 
 rules against are modern, 6, 28. 
 
GENERAL INDEX. 209 
 
 PERPETUITY— continued. 
 
 gifts to charity must vest within time prescribed by rules against a, 
 
 29, 89. 
 gifts to corporations tend to a, 28, 29. 
 some account of rules against, 28, 29, 147, 148. 
 rules against,' not directed against charitable or public uses, 28, 33, 52, 
 
 S3, 55, 67, 100, 105, 138. 
 rules against now applicable to charity cases in New York, 66, 87, 89, 
 
 92, note, 97, 98, 100, 107, no, in, 119, 144, 147. 
 rules concerning, in New York, 97, 99, 139, 147, 148. 
 power in trust may create a, 99, 1 52. . 
 rule of, in regard to limitations of personal property, 98, 101, 102, 
 
 104, 116, 119. 
 in lands, created by a trust when, 98, 99, 119, 144. 
 not created by conditions, 131, 133, 139. 
 conditional limitation, subject to rules against, 132, 133. 
 not created by legal limitations at common law, note, 29. 
 
 PERSONAL PROPERTY, 
 
 ancient rules governing charitable donations of, 31. 
 charitable trusts of, now governed by general rules in State of New- 
 York, 62, 96, 97, 98, 99, 100, 101, 120, 126. 
 gift of, to foreign corporation, 92, 93. 
 subject to law of owner's domicile, 93, 104. 
 trusts of, 96, 97, 100, 101, 120, 121. 
 trusts in, need not be in writing, 120. 
 trusts of, inalienable when, 99. 
 article of Revised Statutes on Powers applicable to, 104, 120 
 
 PIOUS USES, 
 
 statutes destroying ancient, 13. 
 
 donations to, 15. 
 
 indefinite, enforced in Chancery, 21. 
 
 some became " superstitious " uses at the Reformation, 22, 23. 
 
 prevalence of conveyances to, 23. 
 
 ordinary gave third part of intestate's goods to, 31. 
 
 statute changing course of ordinary in regard to, 31. 
 
 wills of chattels to, good even after Statute of Uses, 32. 
 
 recognized in the Province of New York in 1686, 46. 
 
 no such thing in the law of the State of New York, 49. 
 
 POOR, 
 
 gifts for the, charitable, 22. 
 
 gifts to the, anciently allowed, 15, 271, 291, 30, 32, 53. 
 
 gifts to the, after Statute of Charitable Uses, 36, 37. 
 
 main object of charity, 37. 
 
 in Province of New York, protected, 45, 47. 
 
2IO GENERAL INDEX. 
 
 POOR — continued. 
 
 in State of New York, at first few, 51. 
 bequest for the, good at first in New York State, 53. 
 gifts for the, subsequently void in New York, because too indefinite, 72, 
 100, ioi, 102. 
 
 POSSIBILITY OF REVERTER, 
 characteristics of a, 133. 
 
 POWER OF SALE, 
 
 common form of, 135. 
 
 POWERS IN TRUST, 
 
 most charitable trusts are valid as, 95, 97, 99, 106, 119, 136, 143, 
 
 144, 145. 
 must not create a perpetuity, 97, 114. 
 are imperative, 113. 
 
 must not violate principles of equity, 97, 114, 119. 
 suspend power of alienation, when, 99. 
 of selecting beneficiaries of a trust, 111,112, 113. 
 when unaffected by restrictions on devise to corporation, 81. 
 no particular language necessary to create, 114. 
 must be in writing, when, 120. 
 distinction between trust and, 151, 152, 
 devolution of, 152. 
 are imperative, 152. 
 
 POWER OF ALIENATION, 
 anciently suspended, when, 18. 
 may be suspended, when, 98, 99. 
 may be suspended, for how long, 98, 144, 145. 
 
 See Perpetuity. 
 
 » 
 
 PRECATORY TRUSTS, 
 instance of, 121. 
 
 PREROGATIVES OF THE CROWN, 
 over charity, 10, 11, 12, 41, 55. 
 by sign manual, 41. 
 
 over charity, deemed in abeyance after Independence, 56. 
 vested in people by successful revolution, 57. 
 state may vest subverted, where it pleases, 57. 
 
 PRIEST, 
 
 a bequest to a, 91, 92. 
 
 PUBLIC USES, 
 
 meaning of, 3, 4, 70, 107. 
 
 retained old characteristics of charitable donations, 22. 
 
 synonymous with charitable uses, 22, note. 
 
GENERAL INDEX. 211 
 
 RECORD COMMISSIONERS, 
 of England, 8. 
 effect of their publications, 9. 
 
 RECTOR, 
 
 of an Episcopal Church, 127. 
 
 REFORMATION, THE, 
 
 its effect on the law of charities, 3, 13, 32, 155, 
 
 RELIGIOUS CORPORATIONS OR BODIES, 
 gifts to, 2. 
 
 early examples of, 15, 16. 
 certain tenures confined to, 18. 
 early notions of, 18, 19. 
 conveyances to, 24. 
 none before reign of Richard II., 25'. 
 public almoners, 25. 
 gifts to, tended to a perpetuity, 28, 29. 
 destruction of ancient, in England, 32. 
 
 no difference now between, and lay eleemosynary corporations, 72, 127. 
 history of, in New York, note, 45, 47, 72, 73. 
 restrictions on devises, or bequests, to, 74, 75, 76, 77, 78, 79, 80, 81, 82, 
 
 83, 84, 120, 127. 
 exempt from succession tax, 123. 
 Episcopalian, 127. 
 See Appendices for particular acts. 
 
 RELIGIOUS ORDER, 
 
 bequest to a member of, 92. 
 
 RELIGIOUS USE, 
 
 formerly a charitable use, 37. 
 
 what is now a, 107, 108. 
 
 Act concerning a, 104, 106, 107. 
 
 is now a charitable use, 107. 
 
 of Quakers, 118. 
 
 of Friends, 118, 120. 
 
 REMAINDER, 
 
 limitation of a, to corporation valid, 87, 126, 134, 135, 142, 143, 149.. 
 
 of personalty, rules concerning, 88, note, 125, 126. 
 
 time of vesting of a, 126. 
 
 limited on an estate in fee to a body corporate, 126, 127. 
 
 contingent, 154. 
 
 never created a perpetuity at common law, 29 note. 
 
212 GENERAL INDEX. 
 
 RESIDUARY, 
 
 devise to corporation, 87. 
 devise of, should be clear and complete, 146. 
 formerly lapsed devises went to heir, 146. 
 now pass under residuary devise, 146. 
 See Forms. 
 
 REVERTER. See Possibility of Reverter. 
 
 ROMAN LAW, 
 
 the foundation of the modern law of charities, 14. 
 of charities, how modified in Christian times, 15, 155. 
 of charities, complete in the sixth century, 1 5. 
 how applied in England, 16. 
 
 SCHOOLS, 
 
 object of charity at common law, 37. 
 founded in the Province of New York, 45. 
 Acts concerning trusts for, 118. 
 
 SCIENTIFIC USES. See Appendices. 
 
 STATUTES. 
 
 See Table of Statutes and Appendices Nos. II and III. 
 
 STATUTE OF CHARITABLE USES, 
 See Table of Statutes. 
 text of, 160. 
 
 denotes all charitable uses, 3. 
 effect of abrogating, 4. 
 
 how far it enlarged jurisdiction of Lord Chancellor, 7, 8, 9, 10, 11, 12. 
 afforded only a new basis for jurisdiction, 13, 21, 22, 23, 29, 33, 36, 37, 
 
 44, 155- 
 convenient source of jurisdiction for lay chancellors, 33. 
 held to validate all appointments to charity, 35. 
 judicial construction of, 36. 
 
 said not to have been extended to the Province of New York, 44. 
 no conclusive reason for this ruling, 44. 
 not relevant to colonies, 44, note. 
 
 immateriality of this Statute to law of charities in N. Y., 45. 
 repealed in New York, 49, 54. 
 
 STATUTES OF ENGLAND, 
 
 what, in force in the Province of New York, 43. 
 adopted by State, 47. 
 repealed in New York, 48. 
 See Table of Statutes. 
 
GENERAL INDEX. 213 
 
 SUPERSTITIOUS USES, 
 
 at the Reformation old pious uses became, 22, 23. 
 
 statute of, 22, 23. 
 
 statute of, repealed, 108. ' 
 
 bequest to priests, etc., not, 91, 92. 
 
 what are not, 107, 108. 
 
 in the Province of New York, 108. 
 
 See Religious Use. 
 
 TENURE BY DIVINE SERVICE, 
 
 confined to spiritual persons, 1 8. 
 
 * 
 
 TENURE IN FRANKALMOIGNE, 
 account of, 17, 18, 19. 
 called ancient Saxon tenure, 17, note. 
 
 TRUST, 
 - a secondary use a, 6. 
 
 for the public called charitable, 6. 
 
 established by side of legal seisin, 21. 
 
 breaches of, remediable at first in spiritual courts, 23. 
 
 not on a good footing until long after the Statute of Charitable 
 
 Uses, 30. 
 governed by the law relating to uses, 30, 32. 
 
 of lands to be in writing, 30, 120. 
 
 for permanent charity formerly reposed in a succession of private 
 persons, 27, 32, 46, 50, 52. 
 
 charitable trust in corporate body created by the State, 72, 79. 
 
 a trust in lands for corporation bad when, 81. 
 
 for unincorporated association, 90, 91, 94, no. 
 
 for masses, 92, in. 
 
 every legacy has elements of a, 91. 
 
 Revised Statutes determines what is a trust in lands, 95. 
 
 trusts in personalty, 32, 96, 97, 104. 
 
 trust property made inalienable, when, 98, 99, 103, 144. 
 
 express trust, 96, 97, 1 14. 
 
 trust for charity, 102, 119. 
 
 requisites of a valid charitable trust under the Revised Statutes, 102, 
 103, 104, 120. 
 
 no particular language necessary to raise a, 114, 120. 
 
 when a gift to a body corporate is in, 115. 
 
 who may create, 115, 116. 
 
 when body corporate may be beneficiary of a, 119, 120. 
 
 precatory, 121, 122. 
 
 for arbitrary period such as fifty years, when valid, 139. 
 
 who may be beneficiaries of a, 144. 
 
 rules concerning a, 144, 145. 
 
214 GENERAL INDEX. 
 
 TRUSTEES, 
 
 anciently private persons might be trustees of a permanent non-cor- 
 porate charity, 27, 32, 46, 50. 
 trust does not fail for want of, 41, 55, 103. 
 anciently corporation could not be seised to a use, 24. 
 corporation may now be trustees when, 79, 116, 117. 
 when corporations take as trustees and when absolutely, 83, 84, 86, 
 
 100. 
 court made, when, 104, 105, 109. 
 who may be, 116, 148. 
 effect of gift to corporate, 120. 
 estate of, ceases when trust purpose ceases, 137. 
 conveyance by, compelled when, 137. 
 nomination of successors of outgoing, 138. 
 
 UNCERTAINTY, 
 
 a characteristic of a charitable donation, 1, 2, 12, 15, 17, 18, 21, 22, 
 
 3°. 3°- 
 indispensable to all charities, note 4, p. 1. 
 this feature of charitable trusts restored by legislature, 104, 105, io6„ 
 
 107, 108, 109, no. 
 
 UNINCORPORATED ASSOCIATION. See Associations. 
 
 UNITED STATES OF AMERICA, 
 devise to, bad, 93. 
 
 USE, 
 
 history of a, 4, 19, 21. 
 
 the origin of the term, 4. 
 
 Lord Chancellor's jurisdiction over a, 5, 7, 8. 
 
 definite and indefinite, 5. 
 
 effect of the Statute of Uses on a, 6, 32, 98. 
 
 wills of the, 6, 7, 30. 
 
 rise of a, in English jurisprudence, 19, 20. 
 
 a secondary, is a trust, 6. 
 
 effect of the Statute of Wills on a, 7, 14, 21, 31, 142. 
 
 corporation formerly could not be seised to a use, 24. 
 
 definite quality of a, n 3. 
 
 resulting, 142. 
 
 springing, 143. 
 
 VISITOR, 
 
 donor or founder, not a, 84. 
 State Board of Charities, 122. 
 
GENERAL INDEX. 21 J 
 
 WILLS, 
 
 right of making, very ancient, 6. 
 
 history of, in England, 6, 7, 14, 20, 21, 30. 
 
 by custom of particular places, 27. 
 
 of a use, 30. 
 
 to corporations, 35, 73, 74, 75, 76, 77, 78,- 79, 80, 81, 82, 83, 84, 85. 
 
 effect of Statute of Uses on, 6, 7, 142, 152. 
 
 terms of years and chattel interests disposable of before Statute of 
 
 Wills, 7. 
 executors of, 140, 141.. 
 witness to, 141. 
 See Forms. 
 
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