Dashiell v. Attorney General

Buchanan, J.

delivered the opinion of- the court. • This, ease ha? been ably and elaborately discussed; and on an. attentive examination of the numerous authorities referred: to, and relied upon in argument by the counsel on either’ side, we have come to this conclusion:. That the peculiar law of charities originated in the statute 43 Elizabeth, for. regulating- charitable uses, and that independent of that-statute, a court of chancery cannot,, in the exercise of its. ordinary jurisdiction, sustain and enforce a bequest to charitable uses, which, if not a charity, would- on general", principles be void; and in this we. are supported by the decision of the Supreme Court of the United States, in tlio.. case of The Bqptist Association against Hart’s Executors, 4 Wheaton, 1, in which all the principal authorities, are reviewed, and the subject very fully investigated:

It is an admitted general principle, that a vague.bequest,. the object of which is indefinite, cannot be established in a. court of equity.

Is this a bequest of that description? We think it clearly i?. The. testator, by his will, appointed the appellant, George Dashiell, and Henry Downs, trustees of his estate, apcl guardians of his only child, with instructions to his executors to pay over to them the annual income of his estate, to be by them appropriated according.to the provisions of the. will, which, after providing among other things, for the payment of Iris debts, and' the support and education of his daughter, directs the residue of the income ot his estate “to be equally divided-, one half to be applied towards feeding, clothing and educating, the poor children belonging to the congregation of Saint Peter’s Protestant Episcopal Church in the city of Baltimore, ” &c. with cer* *399 thui provisions for the eventual increase or decrease of the fund, so set apart for that purpose.

Wherever the word poor or poorest, has been used ¿s á term of description in a devise or bequest, it has been held to be insufficient, for uncertainty; as a devise to twenty of the poorest of the testator’s kindred. Powel on Devises, 419. 3 Com. Dig. 412, with many Other authorities, to which it is unnecessary to refer, in this case the bequest is quite as vague and indefinite as if it was to twenty of the testator’s poorest relations, or to his poof relations generally, or to the poor people of a particular county.

Who are “the poor children belonging to the congregation of Saint Peter’s Protestant Episcopal Church in the City of Baltimore?” No court can know, or have the means of ascertaining; and the description of the cestui que trust is so vague, that none can be found who, upon the general principles of equity, can entitle themselves to the benefit of the trust.

It seems to' be supposed, that the power of ascertaining and designating “the poor children belonging to the congregation of Saint Peter’s Uiurch,” is given by the will to the trustees, and that the beneficial interest of the cestui que trust may be sustained by reason of the intervention of trustees capable of taking the legal estate, on the principle that id cerium est quod cerium reddipotest.

If it be admitted that authority is vested by the will in the trustees to ascertain and designate who are the poor children belonging to the' congregation of Saint Peter’s Church, it cannot, abstracted from the' statute, assist the case of the defendants, for being a personal trust, without the aid of the statute, the cestui que trust can only be brought into being by the ascertainment and designation of the trustees; and there being no such ascertainment and designation, though certain selections have been made, no persons exist Iiaving in themselves a vested equitable interest which they are capable of asserting in a court of equity. The bequest therefore is too vague and indefinite to be carried into execution on general principles, there being none who can show themselves entitled to the beneficial interest, but is void, and the subject of the trust being undisposed of, the benefit of it results to the next of kin, as in the case of Morrice vs. The Bishop of Durham, *400 9 Ves. 399; where the devise was to the Bishop, in triiát “to dispose ot the ultimate residue to such objects of be-,.1 ,. .... .. . , .. nevolence and liberality as he m his own discretion should .. , , . , . most approve or,” which being held not to be-a charity,the bequest was determined to be void, and the residue decreed to the next of kin, on the ground that it was too indefinite to be executed by the court, which, as the master -of the rolls said, “had not been and could not be denied.” And if it were otherwise, the trustees, by neglecting to execute the trust, might virtually convert the trust into the ownership of the trust fund. If there was here a discretion vested in the trustees appointed by the testator, that case would precisely fit this, there being no legal distinction in this state between a bequest to charitable and other objects. But no such power is given; the trustees are directed to appropriate the fund entrusted to them, to the feeding, clothing and educating, the poor children belonging to the congregation, &c. that is, all the poor children belonging to that congregation, not such as they "might select, and’ without any right or power to discriminate; and there is no difference whether a devise or bequest be immediate to an indefinite object, or to a trustee for the use and benefit of an indefinite object. If it be immediate to an indefinite object, it is void, and if it be a trust for an indefinite object, the property that is the subject of the trust, is not disposed of, and the trust results for the benefit of thos'e to whom the law gives the property in the absence of any other disposition of.it by the testator or donor; and independent of. the statute of Elizabeth, no court in this state can by any mode carry such a devise or bequest into effect in violation of vested individual rights. It would be to make and not expound and enforce wills; an arbitrary exertion of judicial power altogether inconsistent with any principle known to the institutions of the state. And it is believed that in England, before the' Statute of Elizabeth, no charity could have been established on information in the name of the Attorney General; where the instrument creating it was defective, or the object of the donor’s or testator’s bounty was so vaguely and imperfectly described as to be incapable of taking if it was not a charity, and the thing-intended to be given would vest in the heir at law or next of kin; but that whenever' *401 ‘charities were established on such informations, they were such as were valid in law, and the enforcement of which did not interfere with vested private rights. It is also, in this case, a fatal objection to the validity of the devise, that it is not for the benefit of those poor children alone, who at the time belonged to the congregation of Saint Peter's Church, but of the poor children who should in succession belong to that congregation, and who not being a corporate body were incapable of taking in succession. A devise or bequest immediately to an object incapable or taking, or in trust for such an object, standing on no better footing than if it were to a vague and indefinite object, and “The Trustees of Saint Peter's Church," and “The Trustees of Saint Peter's School," and “The Trustees of Hills* borough School, in Caroline county," have clearly neither of them either a vested right in themselves, nor any benefi'cial interest in the trust.

The next and principal question is, whether the statute 43 Elizabeth is in force in this state? which we think depends entirely on the construction to be given to the third section of the bill of rights, and the evidence furnished by ■Chancellor Kilty's Report of the Statutes. The third section of the bill of rights is in these words: “The inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes as existed at the time of their first emigration, and which fey experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used, and practised by the courts of law or equity.” The provisions of this article vary according to the different subjects to which they relate.

The inhabitants of the state are declared to be entitled to the common law, without any restrictive words being used, and thus the common law is adopted in mass, so far at least as it is not inconsistent with the principles of that instrument, and the nature of our political institutions.

They are declared to be entitled to the benefit of such of the English statutes as existed at the time of their first emigration, and which, by experience had, at the time of the declaration of rights, been found to be applicable to their local and other circumstances, and also to the benefit *402 of stick other British statutes, made after the emigration’, as had been introduced, used, and practised by the courts' . ^ J law or equity—a distinction being made between the statutes which existed before the; emigration, and those which were afterwards passed, and between both and the' common law. We do not think that this section' of the bill of rights is to be expounded according to the rule of construction applicable to declaratory laws,’ but that it must be understood as adopting the different classes of the' statutes' to which it relates stíb modo only, and rejecting all others; and as laying down rules by which to ascertain what statutes were so adopted—a different rule applying to each class. In relation to those1 which existed at the time of the emigration, their having been' found by experience to be applicable to our local and other circumstances, being the rule for the government of courts of jus-' tice in determining which are in force; and their having been introduced, used, ami practised by the courts of law or equity; the rule in relation to those passed since the? emigration; As to the latter class, it doe's not seem to be denied that none are in force but such as had, at the time of the declaration of rights, been introduced, used, and practised by the courts of law or equity; and if that rule-was intended to be restrictive,' it is difficult to ascribe to1 the convention a different intention in relation to the other, nor can a different intention be raised by theargument that our ancestors brought with them all the laws of the mother country at the' time of their emigration; For if it had' been intended that all the statutes, then existing, should’ be and continue in force,' which might by courts be deemed applicable to our' local and other circumstances,- it was exceedingly idle to declare such of them to! be in force as had by experience been found applicable.- And why was a different language adopted in relation to them from that Which was used in relation to the common' law? for they were'both equally brought with them by our ancestors.

The circumstance of a different provision being -made shows that the convention entertained different views with respect to them'.

It could not have been intended as- a mere’ declaratory provision for the purpose only of removing doubts that existed at the time, for if there were any statutes about the' extension of which no doubts were entertained, it must *403 have been those which, by experience, had been found applicable, and there was no necessity for declaring the inhabitants of the state to be entitled to their benefit, unless it was the intention to prohibit the use of all such as had not by experience been found applicable.

This view of the third section of the bill of rights raises the question, Which of the statutes existing at the time of. the first emigration had by experience been found applicable? The only evidence to be found on that subject is furnished by Killy’s Report of the Statutes, in which thé 43 of Elizabeth is classed among those which are said not to have been found applicable. That book was compiled, printed, and distributed, under, the sanction, of the state, for the use of its officers, and is. a safe guide in exploring an otherwise very dubious path.

It is therefore our opinion, that the statute 43. Elizabeth, is not in force in this state, and that the decree, ought to be reversed,

DECREE REVERSED*