#### *Literary Fund v. Dawson’s Ex’or and Heirs.

December, 1842,

Richmond.

(Absent Stanard* J.)

Literary Fund—Devise for†—Case at Bar.—After the decision in the case of the Literary Fund v. Dawson and others, 10 Leigh 147, an act of assembly was passed the 10th of March 1841, empowering the president and directors of the literary fund to receive the estate of Martin Dawson, devised by the *295]7tii clause oí Ills will, Into tlie literary fund, and making provision for managing and administering tlie estate when so received. Whereupon the said president and directors filed a bill against the executor and heirs to recover the estate devised by the said 17th clause. And by the answer of the executor and the demurrer of the heirs, the objection was taken that th'e act of assembly was passed not on the application of the executor, but against his consent, and in other respects, as well as in this, was not such an act as the testator contemplated. The circuit court dismissed the bill. But on an appeal from the decree, the court of appeals reversed the same, and remanded the cause to the circuit court, with directions to overrule the demurrer and give the relief sought by the bill.

After the decision by this court of the case of the Literary Fund v. Dawson & others, reported in 10 Leigh 147, the general assembly, on the 10th of March 1841, passed an act entitled “an act concerning the estate of Martin Dawson deceased and for other purposes,” which is contained in the session acts of 1840-41, p. 52. Under this act the president and directors of the literary fund filed a bill in the circuit court of Albemarle county at September rules 1841, against William W. Dawson the acting executor of Martin Dawson deceased, and against the heirs of the said Martin Dawson, praying that the executor might be required to settle up his executorial accounts, and decreed to pajr over to the plaintiffs the balance in his hands embraced by the seventeenth clause of the will, and that the real estate devised *by that clause, with the rents, issues and profits thereof, might also be decreed to the said plaintiffs.

The answer of the executor stated, that the act of the 10th of March 1841 was obtained by the plaintiffs without the acquiescence, consent or interposition of the said executor, against his wishes, and in disregard of his petition. The answer contained the following views as to the position of the executor—“He is advised that by the terms of the 17th clause of the will, the trust is reposed in him, as the acting executor of his testator, and not in the president and directors of the literary fund, nor in the legislature, to ‘use’ the portion of the estate therein included, in the manner designated ; and that it is too plain for construction, that the respondent, as acting executor, is the only person in the universe authorized or capable to take the steps necessary to carry the testator’s designs into effect, that is, to obtain the act of assembly requisite for the purpose. If this can be made clearer than the testator’s language has made it, the respondent conceives it to be done by the court of appeals in the decree pronounced by it, and especially in the opinions delivered by judges Brooke and Tucker. (See 10 Leigh 151-2.) The plaintiffs owe it to this power, control and trust vested in the respondent, that the devises and bequests of the 17th section of the will were not declared void. Their whole interest therein depends on the recognition of the respondent’s power over the subject, and by both the learned judges above named it is expressly affirmed that the act of assembly, which is to infuse vitality and give effect to the testator’s munificence, must be obtained by the respondent. And judge Tucker refutes the idea that the contingency that the act would be obtained was too remote, by declaring that it must occur, if at all, within the lifetime of the executors; confirming thus indirectly what indeed he had already stated in clear and precise terms, that it was a personal trust *devolved by the testator upon his executors, and to be exercised by them according to their discretion, not by the president and directors of the literary fund, and at their pleasure.

“The respondent has said thus much of his powers, to vindicate the position which he has felt it his dutjr to take in the premises, viz. that no one besides himself can procure the act of assembly which is demanded by the clause in question of his testator’s will; and that it is neither competent to the president and directors of the literar3r fund to ask for, nor to the legislature to enact, a law unsanctioned, or even unsolicited, by the respondent.

“To the law of March 10th 1841, referred to in the bill, the respondent has never given his sanction. On the contrary, he dissented then, and ever since, and has always regarded the act as founded on an unwarrantable usurpation, on the part of the plaintiffs, of his powers and functions, and in itself as merely inoperative and void. That the legislature itself had at least a suspicion that such might be the case, is apparent from the phraseology employed in the last clause of the preamble to the act.

“The respondent has been fortified in these general views of his powers and duties, by reference to the provisions of the act obtained by the plaintiffs, particularly those of the second section thereof. By that section it is declared, that ‘all the costs of suit, fees and expenses heretofore and hereafter incurred bj- the president and directors of the literary fund, in sustaining the said devise, and in receiving, managing and administering the said fund, shall be charged to the said fund.’ The respondent is informed, believes and charges, that the fees and expenses thus charged upon the fund by the act in question would be from ten to twelve per cent, of the whole amount. If no other reason operated, as many others do, to induce the re*296spondent to repudiate *the act, he would deem himself faithless indeed if he should consent to so material an abatement of the fund created by his testator’s benevolence.”

Such of the heirs as were infants answered by guardian ad litem. The adult heirs demurred to the bill, and assigned the following causes of demurrer:

‘ ‘1st. That the plaintiffs have no interest in the estate of Martin Dawson deceased, neither as officers representing the commonwealth of Virginia as imparted to them by the laws of the state creating the literary fund, nor as trustees, under and by virtue of the act of .the general assembly passed the 10th March 1841, for the counties of Albemarle and Kelson ; and so they say that the plaintiffs cannot maintain any action at law or in equity relating to the said estate, and this court therefore cannot rightfully take jurisdiction thereof.

“2d. Because of a misjoinder of the distinct causes of suit and action, in this, that even if the plaintiffs are capacitated by the said act of the 10th March 1841 to take, sue for and recover any portion of the said estate, still, as to the real estate which is impleaded by the bill, there was and is a plain remedy by an action at law; and so they say there is á misjoinder and want of jurisdiction on that head also.

“3d. Because the act of assembly aforesaid, under which the plaintiffs seek to ground their suit, is merely void both at law and in equity, for the reasons that it attempts to take away private property for public services without making reasonable compensation to the owners thereof, and moreover was passed by the legislature not only without any application or assent of the executors of Martin Dawson deceased, and of his heirs at law and next of kin, for such purpose, but against the will of said executors, and against the wishes of these defendants, and is therefore violative of their rights of property of all the defendants.

*“4th.. Because the said act of assembly, in many of its provisions, violates the will of Martin Dawson deceased, and actually asserts the rights of dominion and control over, and interest in the whole estate, viz. First, in the second section of the bill, it is enacted that the estate shall be lessened before it reaches the literary fund, by all costs of suit theretofore and thereafter to be expended, the amount unlimited; a power of diminution not contemplated by the testator, and inconsistent with the will, and with the idea that others had or have any interest in the fund, which the. commonwealth seeks to take to and dispose of herself. Secondly, it is provided by the 3d section of the bill, that the interest of the fund, to be called the ‘Dawson fund,’ in certain portions shall be paid over to the school commissioners of Albemarle and Nelson, to be used by them for the same purposes and under the same regulations as the school quotas of the said counties were used.at the date of the said act. At the time of Martin Dawson’s death (as of which date his will in law must be construed to speak) the quotas of these counties’from the literary fund, as regulated by law, were expended wholly in primary education; but after his death and before the passage of this law, a law was passed by the legislature, authorizing the school commissioners of any county wherein there were unexpended balances of the school fund, to devote the same to the academy or academies of such county; so that Martin Dawson’s estate, designed clearly by his will for primary education, if this law prevails, is liable to be appropriated to the aid of the rich, and not of the poor and needy. Thirdly, by the 5th section of the act it is provided as follows: ‘And if the general assembly should hereafter abolish the literary fund, it will transfer the said Dawson fund to such body or bodies as it may provide, to the use and benefit of the said counties, and for the same or like purpose for which the funds given to the ^'school commissioners are given.’

- Now the legislature may, and most probably will, soon abolish the literary fund, and if they do, equity will declare the trust ended, and a resulting trust would instantly arise in favour of the next of kin; and so if the fund is appropriated contrary to the will of the testator. And in either case, where is the remedy to the next of kin to be found it. the act? There is none; no right is reserved to them to sue the literary fund to reclaim the estate; on the contrary, the law provides that they, the lawmakers, will make another will for the decedent. True, the first section gives the literary fund power to defend and maintain any suit or suits, that may be necessary to enable them fully to recover the estate; but none to be sued, or defend suits, having for the object the recovery of the estate back from them, or to provide payment if received.”

The cause coming on to be heard in the circuit court the 21st of May 1842, before judge Thompson, he delivered the follo'wing opinion:

“If I rightly comprehend the opinion and reasoning of the court of appeals, they have decided that the 17th clause contained a valid devise, because, conceding as they did that the literary' fund could not take by devise, and that had it been a devise in presentí to that fund it would have been void, it was a gift directly to the executors (of the legal title, I suppose, though they do not say so), upon an executory trust to be performed in futuro—in other words, an executory devise or limitation in favour of some devisee or legatee to be called into existence and made capable of taking by the joint instrumentality of the executors and the legislature.

“To bring it within the legal limitation as to the time of vesting, and to prove that it must vest within the time allowed by law, judge Tucker says, the act constituting the estate a part of the literary fund must be '^obtained by .the exec*297utors; and he says in another part of his opinion, ‘As this act is to be obtained by the executors, the contingency of its passage is within a life or lives in being, and therefore not too remote.’ 'The judge has not told us in express terms whether this executory trust in the executors is personal or official, though he has said it could be performed by them only.

“It seems to me very clear, that in order to sustain the most important position of the opinion, the one on which the validity of the devise mainly turns, to wit, that the limitation was not too remote, it must be conceded that the trust is personal, and therefore only limited by a life or lives in being; for if official, there is no limitation of the time of its execution. It could be executed by an administrator de bonis non with the will annexed, a century hence, as well as now.

“It seems to me equally clear that the opinion of the court concedes another proposition ; and that is, that neither the legislature nor the literary fund, nor any one else except the executors, could execute the trust, that is. could constitute the estate a part of the literary fund. If the legislature, upon its own mere motion, or upon the application of the president and directors of the literary fund, without and against the consent of the executors, could execute this trust and vest this devise, it is surely not an executory trust In the executors, to be exercised during their lives or the life of the survivor, but a limitation depending upon the power, will and pleasure of the legislature, which they might as lawfully exercise 500 years hence as in 1841.

“The president and directors of the literary fund cannot make themselves, nor can the legislature make them, the devisees of this estate. The legislature can capacitate them to take, if it be the will and pleasure of the executors to bestow. Until the trust be executed by the executors in their favour, they have no more interest *in this estate than any other citizen of the commonwealth, and until then there is no pretence for saying that they can compel the executors to execute the trust. Nor can the legislature compel the execution of the trust in their behalf. That would be to exercise a judicial and not a legislative function. If the act of the legislature in this case be allowed the force and effect ascribed to it, it is an act divesting the vested rights of Davison’s heirs and Dawson’s executors, and vesting them in the president and directors of the literary fund. Such an act is beyond the constitutional competency of the legislature; and it is due to that body to say, that it is most apparent, from the preamble and body of the act, that they never meant to claim or exercise any such power. They disclaimed any such intention, right or power. All they did was to make the literary fund capable of taking the devise, and to provide how it should take and hold, and then to provide, that if their act, passed without the applica- | tion of the executors, could vest the legacy or devise in the literary fund, it should be vested: otherwise the first five sections of the law’ became a mere nullity, a dead letter.

“It appears from the act itself, that it was passed without the application or consent of the executor; and from his answer, that it passed not only without but against his consent, and that he has not, nor does he intend to ratify or consent to said act. To say, therefore, that such an act could confer any rights on the plaintiffs, would be to say that the legislature (if they could not make a will for Martin Dawson) might by their act constitute themselves, or somebody else, his trustees to execute his will, in the lieu of those to whom he has seen cause to confide the trust.

“Upon the demurrer of the heirs at law, and the answer of the executor, the bill must be dismissed with costs.”

*The decree of the circuit court was in conformity with this opinion. It declared, that for the causes of defence relied on in the demurrer of the heirs at law, and in the answer of the defendant William W. Dawson, the bill was dismissed, and the plaintiffs were to pay to the defendants their costs.

- From this decree an appeal was allowed on the petition of the president and directors of the literary fund.

The attorney general for the appellants. The difficulty apprehended by the testator was, that, under the organization of the literary fund, what he devised and bequeathed might go into the general fund tor its general purposes, and not be confined to the particular counties and purposes which he had specially in view. He wished his executors to bring the subject to the notice of the legislature, so that his object might be effected. The executors were looked to as the means of effecting the object; but their agency was not regarded as a part of the contingency itself. The passage of the act of assembly was the contingency contemplated by him. If there should be difficulty in procuring the legislation, he contemplated that aid would be given by the executors as well as others. But to suppose the concurrence of the executors indispensable, would be to suppose that he had put it in the power of his executors to defeat his will; that he had put it in their power to have the use of this fund for their lives. For the president and directors of the literary fund could not interfere, they having no interest; and the heirs could not interfere, since the executors would have during their lifetime to apply for the act, and the heirs would have no right until the time for such application had passed by. If the agency of the executors be indispensable, the devise must be considered a devise to the executors. But it cannot be so considered. The testator shews his intention to be, that the property was to go at all events *to the literary fund. That no personal benefit was intended to enure to the executors in respect to this property, *298is apparent when we look at the 15th* and 21st clauses of the will, as well as the l^th and 17th. They are trustees, a breach of trust by whom was never contemplated by the testator. The gift is to an existing corporation, and the view of the court may be very different from what it would be, were the gift to a corporation to be called into existence. The existing corporation had a right to apply for such an amendment of its charter as would enable it to take for particular specified objects, and the legislature had a right to make such an amendment.. And even if the testator contemplated that this change would be made through the agency of the executors, still what had been done was proper, to prevent injury by a breach of the trust of those executors.

C. Johnson for appellees.

On the former argument, the court was referred to the cases of Gallego’s ex’ors vl The Attorney General, 3 Geigh 450, and especially to the passage at p. 466; Janey’s ex’or v. Gatane and others, 4 Geigh 327; Baptist Association v. Hart’s ex’ors, 4 Wheat. 1; Charles and others v. Hunnicutt, 5 Call 311; Overseers of poor v. Tayloe’s adm’r, Gilm. 336; William & Mary College v. Hodgson and others, 6 Munf. 163; Inglis v.' Sailor’s Snug Harbour, 3 Peters 99. We contended that the contingency must be such as must happen * within the time limited by law. Fearne p. 468, 470, $ 5, 6, 8, and p. 488, $'14. And we argued that if the executors were charged with the dutj’ of applying for the act of assembly, it was an official trust, and might be performed by an administrator with the will annexed or other representative, and so the contingencj’ would not be within the time limited. But we conceded that if the trust was personal to the executors, if it did not go to their successors, the contingency would be in time. What did the decree decide? The decision was that the devise is to the executors, who took the estate charged with the performance of the trust contained in the 17th clause. And the court must have taken the view, that application was to be made by the executors to the legislature to carry into effect that clause, and whether made by all or one, it would be within lives in being. Thus, and thus only, was the objection met, that the devise depended on an act of assembly not to be passed in a limited time.

But now it is contended the will and decree meant that the devise was to take effect on a single contingency, the passage of an act in a reasonable time. Is this the true interpretation? The decree is brief, and we must refer to the opinions. .They shew that judges Tucker and Brooke both contemplated that the application for the law was to be made by the executors; that both judges supposed no law could be passed after the death of the executors; and that judge Brooke supposed the executors did not necessarily have their whole lives,'—that the application must be in a reasonable time.

Ought not this to have been the judgment? It was intended by the testator to impose this trust on the executors, and to make them necessary agents in carrying it into effect. The will furnishes conclusive evidence that the subject was not given to the discretion of the legislature, or to the president and directors of the literary *fund without the agency of the executors, who were the selected agents. It shews that the executors were intended to have a discretion in the matter. The testator intended them to see that the fund was dedicated to the poor, and if they could not get such an act as in their opinion would conform to his intent, to let the fund go to his heirs. If the testator could have anticipated the language of the school commissioners of Albemarle, in the report wherein they say the fund is large enough, would he still have wished them to have more? There was not even a necessity for placing the fund in the charge of the president and directors of the literary fund; for the executors might have asked for an act incorporating the school commissioners. If, under the will and decree, and application by the executors is necessary, the trust is personal, and all the executors must apply; whereas here none have applied, and without their consent an act h<s been passed. This act must be void. It is said that to hold so would be giving the executors power to disappoint the will; and it may perhaps be said further, that in the meantime, before the application is made, or the time for it passed, the property might be wasted. If the supposition that the testator intended the executors to have a discretion be correct, the argument is answered. But if the estate should be wasted, the executors wo.uld be liable to the heirs or devisees. And when the condition should be broken, the heirs might enter. Porter’s case, 1 Rep. 22; Baptist Association v. Hart’s ex’ors, 4 Wheat. 33-35.

II. The act passed is not such an act as the testator intended, but such a one as would authorize the heirs to enter for breach of the condition. 1 R. C. 1819, ch. 33, p. 82; Supp. to R. C. p. 33, ch. 18; Id. p. 35, ch. 19 ; Id. p. 36, ch. 20; Id. p. 40, ch. 28; Sess. Acts of 1836-7, p. 13, ch. 12. We admit that the legislature, when properly applied to, may put the fund under such government as it sees fit, not inconsistent with the objects *of the testator; and therefore we do not *299com plain of the first section. But with respect to the second section, so far as it charges on the fund expenses which have been incurred or shall be incurred in sustaining the devise, the will is violated. The fundís to be held not only “for the uses to which the school fund of the counties of Albemarle and Nelson is applied,” but also “for the like uses in the said counties,” as is provided in subsequent sections. At the date of the will,- only the quota of 45000 dollars was paid over to the school commissioners, and that was for the education of the poor. At the date of the act concerning the estate of Martin Dawson, there was in force the act of the 22d of March 1836, Sess. Acts of 1835-6, ch. 4, p. 7-8. And hence the estate of Dawson may be applied, not to primary schools for the poor, but to colleges and academies for the rich. Whereas so much of the fund as is not necessary to educate the poor—whatever, in short, is not applied according to the trusts, belongs to the heirs, precisely as a dedication of an estate to pay debts charges so much as is necessary, and when they are satisfied, the rest belongs to the heirs. Did the testator mean, if there were no poor to be educated, to authorize the fund to be applied to like purposes ; to educate the rich, or any particular sect; or for general purposes of education or charitable objects? If our decisions have gotten us rid of any thing, they have gotten us rid of the latitudinous decisions under the statute of Elizabeth. The well considered decisions in Gallego’s ex’ors v. The Attorney General and Janey’s ex’or v. Latane and others are all foolishness, if there be such wide discretion in our chancery courts. It may be said, the expression “for like objects” is used in the 17th clause of the will. But can any one believe the testator meant any thing except the education of the poor? The like object, as understood by him, was the education of the poor not exactly in the same manner, but perhaps by applying the principal. *Whereas the natural effect of the act which has been passed is to withdraw the fund from the education of the poor, and apply it to such kindred objects as the legislature may think proper.

The attorney general in reply. The literary fund is a corporation, but an act was necessary for authorizing it to take and hold this property. Suppose a man by his will gives an estate to A. if £100. be paid by B., and A. himself pays the £100. ; would not that be a sufficient performance of the condition? Marks v. Marks, 1 Str. 129. So here, as the literary fund may take and hold when the act is passed, it may itself *procure*the passage of the act.

The executors were to carry into effect the 16th clause of the will. But if they could not, if they failed to carry that into effect, then the estate was to be used as directed in the 17th clause. The language is mandatory, followed by an earnest injunction to the executors. And it is not discretionary with them to execute the clause or not. The testator looked to the perpetual use of the fund, and the power which was to regulate and control the fund was to be in the legislature, not in the executors. The legislature is, from time to time, to act in regard to it. The testator, having devised his own scheme, and given the legislature power to execute it, never intended to clothe the executors with the power of interfering on the ground of deviation from his intent, or with the power of otherwise controlling the legislative action. When, in the 21st section, he has declared the powers of the executors, it cannot be inferred that he intended to clothe them with higher powers. He never contemplated that the power should exist in them to decide whether or no the estate should go to the literary fund.

The objection to the act on the ground of provision for costs and charges, comes with a bad grace from *those whose conduct leads to those charges. The testator never intended the charges to come out of the general treasury: he must have meant them to be met out of this fund. What is meant by the testator in the expression “is used?” He is giving the fund for a perpetual object of charity: is it his intention that no change shall be made in the mode of using it? The meaning is, that it is to be used in the same manner that the ordinary fund of the school commissioners is used, at the time of using the same. Moreover, the act of February 24, 1821 appropriated the surplus income of the literary fund to the endowment of such colleges, academies and intermediate schools as the general assembly might thereafter designate. Sess. Acts of 1820-21, ¶ p. 16, ch. 11, *$*5. And an instance of such designation is furnished by the act of February 27, 1833. Sess. Acts of 1832-3, p. 13, ch. 11. These acts shew that there was an intention to modify the fund; that an improvement was going on in its application. And there is nothing in the will which shews an intention to provide for the poor, except that part of the 16th clause relating to the overplus, which contains the expression “such as is not able.” In providing for seminaries of learning, as the testator has done by that clause, he has shewn his intention rather to be to make provision for the middle classes.

*

He had been counsel for some of the parties interested.

†

Charitable Devises—Beneficiary—Corporation to Be Created by Statute.—The principal case is cited in. Kinnaird v. Miller, 25 Gratt. 121, for the proposition that, wherever a devise or bequest is made to a corporation, to he afterwards, within a period not too-remote, created by law for the purpose of carrying *295into effect a charitable intention of the testator, expressed in his will, the same may be good and valid as an executory devise or bequest, and will become absolute and executed. If, and when, such a corporation shall be created accordingly.

See, in accord, Literary Fund y. Dawson, 10 Leigh 147. The principal case is cited with approval In Kinnaird v. Miller, 25 Gratt. 122, 123 *et seq.*

See monographic *note*on “Charities'’ appended to Kelly v. Love, 20 Gratt. 124.

*

The 15th clause Is as follows : “15th. I give to my relation and friend William W. Dawson my wearing apparel, hooks, watch, horse and saddle, also the goods I may have In the hands of William W. Dawson *& Co.*unsold at my death, also my part of the profits in the mercantile concern of William W. Dawson & Co., he paying for my stock and the sums allowed him for his services with interest, in which concern I became a partner for no other object but to promote the said William’s interest, and therefore I relinquish my right to the profits.” The 16th, 17th and 21st clauses may be seen in 10 Leigh 148, 9.—Note in Original Edition.

BALDWIN, J.

In the case of The Literary Ifund v. Dawsons, 10 Leigh 147, it was held by this court, that the devise contained in the 17th clause of the testator’s will was a valid executory devise, to take effect on the happening of the contingency therein contemplated ; and the question now presented in the present suit is whether that contingency has happened? The counsel for the appellees have supposed that some light on this subject may be obtained by recurring to the difficulties which the court thought, when it decided the former *cause, were removed by the construction it gave to the devise in question. Let us therefore briefly advert to the nature of those difficulties.

The testator was desirous of promoting *300■the cause of education, by establishing three seminaries of learning in the counties of Albemarle and Nelson ; and to this object he devoted the greater part of his estate, real and personal, by the 16th clause of his will. But it appears he was apprehensive that this scheme of benevolence might fail, from the want of corporate powers for the preservation and administration of the fund thus created. In the event of such failure, he contemplated effectuating his general charitable design, the education of youth, by another plan, which would give him the agency of a then existing corporation, the president and directors of the literary fund. That plan was to constitute the estate devised a part of the literary fund, in such manner as to be used by the school commissioners for the counties of Albemarle and Nelson, in aid of the school fund allotted under the general law to those counties. But it seems he was aware that the laws constituting and regulating the literary fund, only contemplated its general resources, and would not be adequate to the administration of the specific charity he had in view. This obstacle,, however, he believed could be removed by the power of the legislature, and he invoked its exercise in the following brief and comprehensive terms: “An act of assembly for said object supposed can be obtained.”

The testator’s apprehensions in regard to his primary scheme were realized. It did fail at the moment of his death, from the want of corporate powers to carry it into effect. The seminaries of learning which he sought to endow by the provisions of the 16th clause were not in existence, and could only be created by an act of incorporation. A devise to or for them was therefore inoperative and void, upon the principles decided *by the supreme court of the United States in the case of The Baptist Association v. Hart’s ex’ors, 4 Wheat. 1, and by this court in the case of Gallego’s ex’ors v. The Attorney General, 3 Heigh 4S0. And the expedient had not occurred to the testator of providing that an act of incorporation should be obtained, and that when obtained the seminaries so incorporated, or other persons in trust for them, should be the devisees of his estate. That such a devise, at least in the latter form, by way of trust, would be good according to the law of executory devises, there is no reason to doubt. It would be a devise to or for a person (whether natural or artificial is immaterial) not in esse at the time of the testator’s death, but to come into existence in a reasonable time, so as not to violate the rules of policy inhibiting perpetuities. A limitation of that kind, engrafted by way of condition on a common law conveyance, was held-to be valid in Porter’s case, 1 Rep. 24, and in the case of Inglis'v. The Trustees of the Sailor’s Snug Harbour, 3 Pet. 99, the supreme court of the United States sustained a devise to certain official persons in the state of New York (whom by their official titles the testator appointed his executors) and their successors, upon trust to erect, manage and govern an asylum or marine hospital to be called The Sailor’s Snug Harbour, for the support of age, decrepit and worn out sailors, and that if it could not be legally done according to his intention by them without an act of the legislature, they should apply as soon as possible for an act to incorporate them for that purpose: and the contingency1 of procuring an act of incorporation was held not to be too remote, inasmuch as by the intent of the testator it was to happen within a reasonable time.

When the former cause between the present parties was before this court, it would seem that the counsel for the then plaintiffs, the testator’s heirs at law, based their argument against the validity of the devise in ^question mainly upon the ground that it was a devise to the literary fund, a corporation then incapable of taking, and upon a contingency too remote. But the court held that the devise was not to the literary fund, but to the executors in trust, and that the contingency upon which the testator’s bounty was to take effect was not too remote. The devise to the executors, and the time for its effectual operation, were matters of construction; and the difficulties removed by the construction adopted by the court were not inherent in the cause, but suggested by the ability of counsel, upon an erroneous construction of the devise insisted on by them, but repudiated by the court. The difficulties therefore were not in the mind of the court, but in the mind of the counsel, and can throw no light upon the present question

The question now before the court is simply and exclusively whether the contingency has occurred upon which the trust for the literary fund, created byr the will and engrafted upon the devise to the executors, was to take effect. To determine this, we must of course look to the nature of the contingency; and that must depend altogether upon the intent of the testator. He had resolved to establish a charity, to be administered by the president and directors of the literary fund, through the *agency*of the school commissioners; and that resolution was fixed and final, so far as he and his representatives were concerned. But it required for its accomplishment the concurrence of another will, that of the legislature ; and it required nothing more. It was wholly immaterial whether such concurrence was granted with or without solicitation, whether upon or without the application of the trustee or cestui que trust, whether at the suggestion of a member of the legislature or a stranger, whether as an act of grace and favour oil the part of the government, or of public duty as the representative of a great public interest.

*There is nothing formal or technical in the devise in question. Important parts of it are not expressed in precise words, but to be inferred from the testator’s *301general intent. Thus, that the devise is to the executors has been inferred from the direction that the estate is to be used bjr them in constituting it a part of the literary fund; which can only be done (in the appropriate mode of a surrender and conveyance of the property) by regarding the executors as clothed with the possession and title. So, that the devise is contingent upon the action of the legislature, we infer, because such action was contemplated by the testator, and indispensable to the success of his bounty. But we are not at liberty to infer a condition which is to defeat the whole purpose of the devise. The testator has not made his charity dependent upon the volition, or discretion, or fidelity of his executors. They had a plain and simple duty to perform, to wit, the tradition and conveyance of the property to the literary fund, so soon as that corporation should be authorized by the legislature to receive and appropriate it for the intended purpose. It was moreover the duty of the executors (not made so expressly, but by strong implication) to obtain, if they could, the concurrence of the legislature in the proposed endowment; a concurrence, not with the will of the executors, but with the will of the testator. But to obtain if practicable, imports nothing more than the use of the lawful and proper means: and of what significancy are the means when the end has been accomplished?

The desired act of assembly has been passed, and why should we now enquire whether it was passed with or without the consent of the acting executor? I readily admit that if it appeared clearly from the will, that the testator intended the establishment and endowment of his proposed charity should depend upon the consent of his executors, then we ought to treat such consent *as an indispensable condition: but to m3' mind the manifest intent was directly contrary: and so the case is nothing more than the ordinary one of a refusal on the part of the trustee to execute the trust. In the language of the master of the rolls in Malim v. Keighley, 2 Ves. jun. 335, “ wherever any person gives property, and points out the object, the property, and the way in which it shall go, that does create a trust, unless he shews clearly that his desire expressed is to be controlled b3' the party, and that he shall have an option to defeat it.” In that view of the subject, I consider the cause free from all difficulty. If we could conceive that the consent of the acting executor was necessary to the passage of the act of the legislature, that consent being a matter of duty and not of discretion, a court of equity would have compelled him to give it previously. And now that the act has been passed, equity will compel his assent, by requiring him to surrender and convey the property.

It was, as I conceive, in no wise necessary that the testator should have contemplated the consent of his executors to the passage of the law, in order to relieve the contingenc3T from the imputation of being too remote. Whether an executory devise tends to establish a perpetuity or not, depends upon the testator’s intention as to the time within which the contingency shall happen. It was never held that executory devises are to be governed by the rules of the common law as to common law conveyances : the only question is whether the contingency is to happen within a reasonable time or not, (Thellnsson v. Woodford, 4 Ves. 327, 329,) and that is to be determined by the testator’s intent, upon a fair and liberal interpretation of the whole will. Inglis v. The Trustees of the Sailor’s Snug Harbour, 3 Pet. 117; Chapman v. Brown, 3 Burr. 1634. Now I think it clear that it was the testator’s intention the legislature should act upon the subject in a reasonable time. If, when he *said “an act of assembly for said object supposed can be obtained,” he had added the words “in a reasonable time,” could any one doubt that the devise would have been defeated by an unreasonable delay in the passage of a law? And yet how can it be supposed that his meaning was otherwise? and “'to attain the intent,” shall not “implication supply verbal omissions?” (Dori Mansfield in 3 Burr. 1634.) Do not the nature of the endowment, the investment of his estate in the literary fund, and the application of its accruing profits, exclude the idea that it might be locked up indefinitely in the hands of his executors, the very persons who were directed to invest it, and whose duty it was to solicit and endeavour to obtain the passage of the law? It is evident that he contemplated the prompt action of the legislature; and if so, can it be said that he did not intend it should occur within a reasonable time? The acts to be performed b3r his executors were, it is true, official acts, but the performance of them was a personal duty, which could not,without malfeasance, be indefinitely delayed; which the testator must-have expected them to perform forthwith, or as soon as practicable, and the performance of which necessarily involved the action of the legislature, or its refusal to act, within a reasonable time. What would be the precise limits of that reasonable time, it has never yet been, and never can be, necessary to enquire: it is enough that they could not transcend the period prescribed by the rules of executory limitations.

The views above stated are, it seems to me, in perfect accordance with the decree of this court, and the opinions of the judges, in the former cause between the same parties. All objections to the validity of the devise were then overruled : that founded on the supposed remoteness of the contingency was especially noticed and condemned, not because the contingency depended on the will of the executors, but on their duty; for there *is not the slightest intimation of any discretion on their part to defeat the devise. Judge Brooke’s opinion evidently rests upon the pro*302curement or passage of the law within a reasonable time, and not upon the consent of the executors to its passage. Judge Tucker thought the case very much the same as that of Inglis v. The Trustees of the Sailor’s Snug Harbour, in which it will be seen that the executors were directed to apply to the legislature as soon as possible, and no one supposed for a moment that they had any discretion.

In a word, it would to my mind be very remarkable, if the testator had defeated his manifest and lawful purpose, by the lawful means which he adopted for its accomplishment : if he could be regarded as attempting a perpetuity, not in the legal sense of a corporate charity, but in the illegal sense of unreasonable delay in its creation : if his measures for the sure and swift execution of his scheme should have the effect of protracting it indefinitely ; and if he had confided to his executors the discretion of thwarting his unequivocal, decided, and clearly expressed intention.

As to the objections made to the details of the statute for the administration of the charity, they are matters which go not to the abrogation but the modification of the law, and should be addressed to the legislature. The provisions of the act are, however, in my opinion, strictly in conformity with those of the devise, for reasons which will be assigned by judge Allen in presenting his views of the case; which reasons, to my apprehension, are entirely satisfactory.

I think the decree ought to be reversed, and the cause remanded, with directions to compel the prompt and complete execution of the trust.

ALLEN, J. The validity óf the devise contained in the 17th clause of Martin Dawson’s will was considered by this court in the case reported in 10 Leigh 147. *Th'e inferior court had declared that devise void. That decree was reversed, upon the ground that the devise was not to a corporation at that time incapable of taking and administering the estate in the mode prescribed by the will, but to the executors, in trust for the purpose of procuring the necessary act of assembly to constitute the estate a part of the literary fund. Holding the devise valid on this ground, the trust must be viewed as personal, confided to the persons named as executors, and not as an official trust. If an official trust had been intended, the contingency would ha-tfe been too remote: the executors named, or their successors administering with the will annexed, would have been embraced, and there would have been no limit to the time within which the contingency might have happened. This the law forbids. To constitute a good executory devise, the contingency must happen within a reasonable time; and that has always been held to be a life or lives in being and 21 years afterwards. An act of the legislature has since been passed, on the application of the president and directors of the literary fund, empowering them to receive and hold the estate dedicated by the 17th clause of the will. This application was not concurred in by the executors. They had petitioned for an act to carry into effect the intention of the testator as expressed in the 16th clause of the will; which petition, the preamble of the act recites, was rejected because of the decision that the said clause was void. In enacting the law which was actually passed, the legislature declared that the same was not to affect the rights of the heirs of the testator, in the event it should be decided that an application or petition from the executors was necessary to give effect to the claim of the president and directors of the literary fund. That question is now presented for decision: and in considering it, the will must be looked into for the purpose of ascertaining the intent of the testator.

*By the first clause of the will, an intension is manifested to dispose of his whole estate. Then follow many special bequests in favour of his relations and others, among which is included a provision for Willim W. Dawson one of the executors. Having made these particular dispositions, the testator by the 16th clause gives and devises the residue of his estate, real and personal, to be used *by*his executors in erecting three seminaries of learning. The 17th clause is as follows: ‘ ‘ Should my executors fail to carry into effect said 16th devise for seminaries of learning, (which I hope and trust they will not,) then the real and personal estate devised for said objects, to be used , by my executors in constituting a part of the literary fund of the state of Virginia, and two thirds of the interest on it to be used by the school commissioners for the county of Albemarle, in the same way the school fund allotted fot the said county is used. The other one third of the interest on it to be appropriated and used by the school commissioners for the county of Nelson in the same way. And from time to time, as the legislature may think advisable, the principal may be used for like objects for the benefit of the said counties, in same proportions as the interest is directed to be used. An act of assembly for said object, supposed can be obtained.”

The general and leading intention to dedicate this estate to the purposes of education within the counties of Albemarle and Nelson is clearly manifested. As regarded his relations, he had made such provision for them before as he thought proper. His first and favourite scheme is developed in the 16th section. But he seems to have apprehended that difficulties might obstruct its execution. He looked to the possibility of its failure: and to provide for that contingency, and ensure an application of this estate to the leading intention of his will, he made the devise contained in the 17th clause. Is there anything which indicates an intention *to confide this matter to the discretion of his execu*303tors; to leave it to their judgment, whether this leading intention should or should not be carried into eftect? He contemplated no benefit to them individually; for his relations he had provided; and he manifest a determination, in the first clause of the will, to dispose of the whole estate. No motive to be gathered from the will itself seems to have existed for permitting the disposition of the principal part of his estate to depend upon the discretion of his executors. To give to his will such a construction, would convert that which he intended to be a complete and final disposition of his estate, into a mere request to his executors so to dispose of it if their judgment corresponded with his; thus substituting the will of his executors in the place of his own. The terms of the devise itself shew no intention to place the administration or control of the fund in the hands of the executors. They were to use it in constituting a part of the literary fund of the state. When constituted a part of that fund, their power over it ceased forever. For its future preservation and application to the purposes of his will, he trusted to the legislature. Whilst it remained unimpaired, the interest was to be applied by the school commissioners in the same way the quota allotted by law to the two counties was used. With this application of the interest, the executors could not interfere. The testators knew that the duties of the school commissioners were prescribed by law, and that they were at all times, in respect to the administration of the school fund, subject to the control of the legislature. When therefore he directed that they should administer the interest of the found created by his will in the same way the school fund was used, he clearly intended that it should be used by them in* the mode prescribed by law, subject to such modifications as the legislature should from time to time adopt. The executors could not interfere *with the school commissioners in the administration of the public school fund ; and if not, neither could they exercise any supervision over this particular fund, for both were to be used in the same way. And so with respect to the principal: the testator, foreseen that in the progress of time it might be expedient to apply the principal to the purposes of his will, confides that in express terms to the discretion of the legislature; thus making a complete and final disposition of the whole estate. With that disposition the executors could not interfere.

But it is said, the testator also contemplated an application to the legislature by his executors, to enable the president and directors of the literary fund to take and hold the estate for the purposes of his will. That he so intended must be conceded, for that intention was necessary (according to my interpretation of the decision of this court) to give validity to the devise. But was that the leading, governing intention of the testator? To hold that it was, would be to bring us back to the question already discussed, and to say that the discretion of his executors was to be substituted in the place of his will. The testator no doubt had confidence in the good faith of his executors, and did not contemplate any failure on their part to perform the trust confided to them. He intended that they should apply for the act. An act was necessary to effectuate the end he had in view, and an application by his executors the means of obtaining it. But if they refuse to appB’, and the end is attained in another mode, is the whole will to be defeated because this particular intent fails? The mode by which it was his intention to dedicate his propert3r to the purposes named, is not departed from. The act, no matter by whose application.obtained, is the mode pointed out by him ; and when it is passed, his intention is carried into effect. In Inglis v. The Trustees of the Sailor’s Snug Harbour, 3 Peters 116, it is *said, that “for the purpose of carrying into effect the intention of the testator, any mode pointed out by him will be sanctioned, if consistent with the rules of law, although some may fail;” and (p. 117), that “where the court can see a general intent consistent with the rules of law, it is to be carried into effect though the particular intent shall fail.” And see the authorities referred to in the last cited page. The respect due to a decision of that tribunal is in this instance somewhat impaired, as to the case itself, by the dissent of justice Story, with whom the chief justice concurred. But justice Story in his opinion does not deny the rule of law. Commenting on this part of the case, he observes, “It is said that in a will, a particular may be made to yield to a more general intent. Certainly it may: but then the difficulty in the application of this rule to the present case is,, that the argument insists upon a construction, which I cannot but deem an overthrow of the general, to subserve an intent not indicated. Because a testator has expressed an intent to be carried into effect one way, which cannot consistent^' by law be so, and the court can see another way by which he might have carried it into effect if he had thought of it, it does not follow that the court can do that which the testator might have done, and newmodel the provisions of the will.” And again, in the same passage, he remarks—“The general intention here appears to me to be, to create a perpetual trust, in certain trustees in succession, for charity. And I can perceive no particular intent as distinguishable from that general intent. The perpetuity, the succession, and trusteeship are in his view equally substantial ingredients.”

In the case under consideration, the testator has not expressed an intent to be carried into effect one way, which cannot consistently by law be so. The mode designated to carr3' his intent into effect conflicts with no rule of law; and by holding the act valid which has *been *304passed, the general intent is executed, and not defeated. It is effected, not to subserve an intent which the testator never indicated, but substantially in the mode which he pointed out. He intended to create a perpetuity, but not in these trustees. No succession or supervision in them was contemplated. When the act should be obtained, and the executors should have constituted the estate a part of the literary fund, their powers were to terminate; and the preservation and administration of the fund, so as to effectuate the testator’s leading intent, was entrusted to others. According to the argument of judge Story, this would be a case where the particular should yield to a more general intent.

It is supposed that the decision of this court in 10 Leigh 147, conflicts with this construction. The determination of the court is embodied in the decree. The only question before the court was as to the validity of the devise in the 17th clause. They held that the devise was not void. To that extent the decision, whether a correct construction of the will or not, (as to which I give no opinion,) furnishes the law of the case, and is binding on this court. The point now under consideration was not then before the court for adjudication. At that time the executors expressed their willingness to carry into effect the intention of their testator, if it could be done consistently with the rules of law. The idea of a refusal by them was not entertained, nor its effect upon the devise considered. In this condition of the case, and with reference to the question then presented (the validity of the devise), judge Tucker observed, that the law is clearly to be obtained by those to whom the trust is confided of constituting the estate a part of the literary fund. The opinions of a judge are always to be received in connexion with the point for decision. So treating this remark, it is perfectly correct, and yet does not bear upon the subject now under consideration. To give to the devise a construction *which would relieve it from the objection that the contingency might not happen within the reasonable time prescribed by law, and was therefore too remote, it was necessary to shew that the testator intended it to be performed within a reasonable time.

That he did so intend, the judge argued, was clear, for he intended his executors to apply for the law: so intending, the contingency must happen in their lifetime; and therefore the devise was valid. But though such an intent was necessary to give validity to the devise, it is nowhere said or intimated by the judge, that if the executors should refuse to give effect to that intent, their refusal should defeat a valid devise. That depended on distinct considerations; upon a view of the whole will, to ascertain the general, leading intent of the testator; the mode designated to effectuate it; and whether, though there should be a failure in one particular, that of an application by the executors for the necessary act, the general intent could not be still carried into effect, and substantially by the mode designated, notwithstanding the refusal of the executors to make such application.

It seems to me that, in the event which has happened, it was competent for the president and directors of the literary fund to apply for the act, and that upon the passage of a law empowering them to take, hold and administer the estate in conformity with the terms of the will, the contingency has happened which gives effect to the devise, and the estate vests in the president and directors of the literary fund. The estate is to constitute a part of the literary fund: a perpetuity in the corporate body, if the legislature should think it advisable, is contemplated; and neither the heirs nor the executors have any beneficial interest. The legal title vested in the executors must be transferred to the corporation, charged with the execution of _ the trust; for this is essential to such an administration of the *fund as the testator clearly intended. The property cannot return to the heirs; for where lands are given to a corporation for charitable uses which the testator contemplates may last forever, the heir cannot have the lands back. 2 Story’s Equity 420; High, on Mortmain 336, 353.

It is said that the legislature has not so acted as to carry into effect the intentions of the testator; and several objections are made to the details of the act.

The 2d section charges the fund with all costs of suit, fees and expenses heretofore incurred or hereafter to be incurred by the president and directors of the literary fund, in sustaining said devise or managing the ■fund. The testator could not have supposed that these expenses were to be paid out of the public fund. By legal intendment, all expenses incurred in relation to this fund are properly chargeable on it. A decision of the court as to the validity of the devises contained in the 16th and 17th clauses of the will necessarily preceded the application for or the passage of the act. The costs incurred in the prosecution of the suit to determine this question grew out of the will itself, and are chargeable on the fund created by it.

The 3d section directs the payment of the interest to the school commissioners of the counties of Albemarle and Nelson, in the proportions designated by the testator, to be used by the school commissioners for the same objects and purposes, and under the same regulations, that the school fund for those counties from the public treasury may be used. At the date of the will, the quota allotted to each county was applied to the education of poor children; but when the act passed, the surplus income of the literary fund had been appropriated, and the school commissioners were empowered to apply their proportions of this surplus for the benefit of colleges or academies within their respective counties. It is said *305that the testator looked to the mode in which the fund was then used, and intended to devote *his estate to the exclusive education of the poor: whereas under this law the school commissioners may, either directly or indirectly, appropriate it to colleges or academies. According to my construction of this clause of the will, though the testator adopts the phrase “is used,” he is not to be understood as speaking of the time at which he prepared his will. The fund was to be paid to the school commissioners, to be used bjT them as they used the fund paid by the state. As they used the money received from the state according to the regulations prescribed by law; such use as they were authorized to make of the public fund would be a proper use of this fund: the testator confiding in the good faith of the legislature to use it according to his expressed intentions. But however this *may*be, the law does not justify the application of the interest to any other purpose than that to which the money allotted to the school commissioners was applied at the date of the will. The act of assembly passed March 22, 1836, (Acts of 183S-6, ch. 4, p. 7,) gives authority to the school commissioners of the respective counties to apply the quota of the surplus then distributed, to colleges and academies. Their discretion is limited to that surplus. But the interest from this fund is to be adminisLered in the same way the general school fund is used.

The 4th section provides for the preservation of the fund, and directs that any unexpended balance for one year shall be converted into principal, so as to enlarge the fund. To this provision there would seem to be no valid objection. Surely, when the testator entrusted the whole administration of the fund to the agents selected, he must have intended to confer upon them the authority to preserve it from waste, if any portion was not required for the use of a particular year. It is argued, that if the fund is not required for any particular year, it should be transferred to the heir or next of kin. But if I am right in supposing that upon the happening *of the contingency the whole estate vests in the literary fund in perpetuity, the heirs and next of kin have no interest in the subject.

The 3th section provides, in the' words of the will, that the principal may, if the legislature think it advisable, be appropriated to the uses of the school commissioners, or for like purposes. It is contended that under this provision and almost unlimited latitude is allowed to the legislature, and that in virtue of it they might apply this fund to any object they deemed analogous to the one to which the will had dedicated it. The answer to this is, that the law as passed directs the application in strict accordance with the intentions of the testator, and the power reserved is precisely that which the will conferred. We are not called upon to determine the extent of this authority. If a power over this estate is vested in the legislature as extensive as that which is exercised by the english chancery court under the statute of 43d Elizabeth of charitable uses, that would not render the act void. The power of the legislature to pass a general law similar to the 43d Elizabeth has never been questioned. No more can it be doubted, that whatever power is conferred by the words-of the will in regard to this estate, may be exercised by the legislature, if by a special act they have sanctioned and legalized the devise.

Upon the whole, it seems to me that upon the passage of the act the contingencj7 has happened which enables the president and directors of the literary fund to take, hold and administer the fund, and that the act is in strict conformity with the terms, provisions and conditions of the will; and consequently that the court below erred in dismissing the bill upon the demurrer of the heirs at law and the answer of the executor.

BROOKE, J.

I concur in the view taken by judge Baldwin, and also in the view taken by judge Allen, of *lhe act authorizing the literary fund to take the devise under Martin Dawson’s will: and I shall add nothing but a few remarks in reply to what has been said in respect to my opinion in the case of The Literary Fund v. Dawson and others, 10 Leigh 147. When that case was before the court, the act of assembly now before us had not passed; and it is r:ot to be inferred, from my using in that case the expression—“If then the executors in a reasonable time can procure such a law” &c. that in my opinion it depended entirely on the executors to procure the law, and the will otherwise could not be executed. The executors in their answers had expressed a willingness to apply for the law. I had no idea then that the testator intended they should have the whole of their lives to make the application. I thought a reasonable time should be allowed them, and that in the event they did not procure an act, the literary fund might procure it, and execute the trust first confided to the executors by the testator. I did not concur with the president in thinking that the contingency of its passing was to be within a life or lives in being: to my mind the obvious intention of the testator was, that if the act were found necessary, it should be procured in a reasonable time.—I could elaborate this opinion ; but I shall not.

CABELL, P.,

expressed his concurrence in the opinion delivered by judge Allen.

The decree of the court of appeals declared the decree of the circuit court to be erroneous in dismissing the bill of the appellants, intead of overruling the *demurrer*thereto and giving the relief sought by said bill: Therefore the said decree was reversed with costs, and the cause remanded to the circuit court, for further proceedings to be had therein pursuant to the foregoing opinion and decree.