#### THE STATE on the relation of the Wardens of the Poor of Beaufort County *vs.*WILLIAM B. H. GERARD.

A. devised certain lands to his wife for life, and after her death to B. S. for life, and *“*after the death of B. S. to the poor of the county of Beaufort, on the express following conditions and no other, that is to say, that they shall never be sold, but be held as a stock belonging to said poor, subject to be rented, cultivated or leased, as the wardens or managers of the .poor may deem most advisable, but never to be let for a longer term of time than seven years, and no more timber to be used than is necessary for the use of farming &e.”

*Held,*first, that this devise did not vest the *legal*title to the lands in the wardens of the poor, either as individuals or in their corporate capacity, and that therefore they had no right to recover them at law; secondly, that a devise to “ the poor of a county” is a devise to “such a charitable purpose as was allowed by law” before the passage of our statute concerning charities, Rev. Stat. c. 18, and is therefore embraced within the provisions of that statute, and that it is sufficiently definite to authorize a Court of Equity to enforce it; *thirdly,*that the *perpetuities,*forbidden by our constitution, are estates settled *fox private uses,*so as to be unalienable, and do not include public charities.

The cases of. *Haywood*v *Craven's Executors,*2 Law. Rep. 557, and *Griffin*v *Graham,*2 Hawks 06, cited and approved.

This was an appeal from the decree of his honor Judge Settle, at the Fall Term, 1841, of Beaufort Court of Equity, sustaining the defendant’s demurrer and dismissing the plaintiff’s bill.

The bill, which was filed at Fall Term, 1839, was at the instance of the Solicitor for the State in the second judicial district, by and at the relation of the wardens of the poor of Beaufort county, against William B. H. Gerard. The bill charged that Charles Gerard, late of Edgcomb county and State of North Carolina, died seized and possessed of certain tracts of land, lying in the county of Beaufort, and by his *211last will and testament, duly executed, and admitted to probate in the Court of Pleas and quarter Sessions of the said county of Edgcomb, at November Term, 1797, devised and bequeathed unto his mother, Dinah Simon, to have.and to hold for the term of her natural life, the said tracts of land, which were particularly set forth in the said last will and testament, and in the deeds and conveyances there referred to, copies of all which were appended to the said bill, and prayed to be taken as part thereof — that by the said last wilL and testament he further devised the said lands, after the death of the said Dinah, unto Benjamin Simon for the term of his natural life, and, after the death of the said Benjamin, “ to tire poor of the county of Beaufort, on the express following conditions and no other, that is to say, that they shall never be sold but be held as a stock belonging to the said poor, subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable, but never to be let for a longer term of time than seven years, and no more timber to be cut than is necessary for the use of farming &c.” — that after the death of the said Charles Gerard, which took place some time in Biarch, 1797, the said Dinah Simons remained in possession of the said lands until the period of her death sometime in 1818 — that the said Benjamin died in the lifetime of the said Dinah — that in 1819 the wardens of the poor took possession of the said lands, and rented them to divers persons for the period of seven years, for the use of the poor of the said county, according to the intent and meaning of the said will, and that their lessees entered and took possession of the said demised premises — that shortly after the expiration of these several leases, the defendant, William B. H. Gerard, entered and took possession of the said lands, claiming to be the heir at law cf the said Charles Gerard, and thereby lawfully entitled to the same, and has sinee continued and is now in possession of the same — that the relators hoped to be allowed by him to manage and lease out the said lands to the use of the poor, according to the intent pi the will of the testator, and frequently requested of him that he would allow them so to do: but that he had absolutely refused to do so,.or *212to give any account of the rents and profits of the same, so that the charitable intentions of the testator were likely to be wholly frustrated. The bill then prayed that the said charity might be'eslablished, and the defendant be declared a trustee, for the benefit of the poor of the said county of Beaufort, of the said lands, subject to the control and management of the said wardens, according to the intentions of the testator as before set forth, and that he might render an account of the rents and profits of the said lands for the time he has had possession thereof, under the direction of the court, and might pay over the sum which might be found due to the said wardens to he applied according to the said will, and for such other and further relief «fee.

To this bill the defendant put in a general demurrer, and the plaintiff joined in demurrer. Upon argument the de-mimer was sustained and the bill dismissed, from which decree the plaintiff appealed to the Supreme Court.

*J. H. Bryan*in support of the demurrer.

The trust is too indefinite — the “ poor of Beaufort county” have no capacity to take. In this respect this case differs from *Griffin v Graham,*3 Hawks 96, for there the devisees had a legal capacity to take. In *Moggridge*v *Tháckwell, 7*Yes. Jun. 36, the court adopted this distinction: that when the charity bequeathed is *through the medium of trustees,*where all the trustees are dead, or, some being dead, the discretion is wholly or partially gone, or the surviving trustees refuse to act, or some are willing to act and others refuse to act; in all these cases' the court distributes the fund by means of a scheme; but when the object is charity, without a trust interposed, “ the constitution,” in the. language of Lord C. J. Wilmot,” finds a trustee in the King, as *parens pair ice,*who executes it by sign manual, exercising a discretion with reference to the intention of the testator.” Here no trustees are interposed (unless the court should regard the wardens as trustees, which would be fatal to the bill as framed)'— it would, therefore, in England, be a case for the exercise of the royal discretion by sign manual — which cannot be done

*213The courc here cannot go *to*the extreme length to which the Court of Chancery goes in England, for there, if the quest indicate a charitable purpose, but the objectis against the policy of the law, the court will lay hold of the charitable intention and apply it to some purpose, agreeable to law. 2 Story’s Eq. Com. 414. And it matters not whether it can be carried into exact execution — the court will execute it *cy*pres. *2*Story’s Eq. Com. 415, 420.' *Cy pres*execution is not admitted here. *McAuley*v Wilson, 1 Dev. Eq. 276. This jurisdiction in charities is hardly reconcileable-with sound principles or the exercise of judicial authority. Ibid. 394. Again the Court of Chancery will not-establish a trust for indefinite purposes of benevolence, although there is an existing trustee, as in *Morris*v *the Bishop of Durham, 2*Story’s Eq. Com. 406.

Our act concerning charities, Rev. Stat. e. 18, which is the only statute on the subject now in force, contemplates only the case where trustees are appointed, or persons to whom are *confided*the management &c. of the property. This is not a bill filed against trustees to enforce a trust — - the defendant is not a trustee, but claims in his own right adversely, and is in adverse possession. The bill is, therefore in the nature of an ejectment bill. Story’s Eq. Plead. 374. By the statement of the bill the defendant is a trespasser. This case is left as before the statute, or, at least, is left to the ordinary jurisdiction of the court, which well might be exercised, if there was a trustee and a definite legal trust.

The charges in the bill are too vague. It does not charge that the defendant is the heir at law, but merely alleges that he entered and took possession, *claiming*to be the heir at law. This is not a sufficient averment that he is in fact the heir at law, for the allegation is quite consistent with the defendant’s being a mere trespasser. He must be heir in fact and law, to enable the court to convert him into a trustee. Certainty to a common intent at least is required. Story’s Eq. Plead. 206, 213.

The counsel also contended that the devise attempted to create a perpetuity, and was therefore void, as being contrary *214to our constitution.

*-William B. Rodman*for the plaintiff.

Two principal objections are made to the decree prayed in this bill.

That the legal estate in the lands did not descend *to*the defendant, the heir of the testator, but was well devised away to the wardens of the poor or elsewhere.

2d, That the charitable purpose of the testator is too vague and indefinite to be effected by the court: that it is out of the statute.

In answer to the first objection, it is contended that the legal estate was not devised away, but did descend on. the defendant; because

1st, Tlie heir is not disinherited by a simple intent that he shall not have: the intent must be that some other competent person shall.

2d, The gift is not directly, or in terms to the wardens of the poor, but to “the poor of the county of Beaufort,” “ to be held as a stock belonging to said poor,” &c. But “the poor,” beiug a fluctuating and indefinite body, having no corporate existence, cannot take. 2 Thos. Coke, c. 33, p. 253; Lewin on trusts, 72; powers are given to the wardens but no estate.

3d, If considered as a devise to the wardens it is still void. The wardens are what has been called a *quasi*corporation,, and if this gift is to them it is obviously in their corporate capacity — as officers, not as individuals; 3 Peters, *153.*They cannot take as individuals, because contrary to the intent — not as a corporation, because, 1st, Corporations are out of the Stat. of Wills. 2d, The powers of a corporation are limited to those granted in its charter. *Bank of Augusta*v *Earle,*13 Peters 587: and'a power to hold lands is no where given to the wardens of the poor. *They do*not even own the poor-house which they superintend. 1st Rev. Stat. c. 89, s'. 12. Churchwardens in England cannot hold lands. 2 Thos., Coke, c. 33, p. 253. 3d, Corporations cannot take upon a trust foreign to the objects of their institution. *Jackson v Hartwell,*8 Johns. Rep. 425. The wardens are the channels fixed by law to conduct the *public*bounty to prescribed objects: in that capacity they are responsible, ac*215countable, and within control. As the distributors of individual donations, they would be unaccountable, and have no guide but their caprice. That was not the intent of the law. Could they, for instance, contract with laborers, or purchase slaves to cultivate this farm? In *Inglis*v *Trustees of Sailors Snug Harbor,*3 Peters 99, the gift was to the Chancellor of the State of New York, the Recorder of the City and other.officers and their successors: it was admitted they could not take in their corporate capacities.

4ih, The devise is not to the wardens by their corporate name, but to the “ wardens or managers of the poor,” and is . void in law for misnomer.

In answer to the second objection, it is contended that the charitable purpose is sufficiently defined to be “within the control of the court” — the test in several of the cases cited below:— *Qmnany*v *Butcher,*1 Turn. & Russ; 31 G'ond. En. Chan. Rep.; and in the language of the Stat. 1 Rev. St. c. 18, is “such as is allowed by law.” The Stat. 43 Eliz., was in force in this State at the time of making’ this will, *Griffin*v *Graham,*1 Hawks 96; and is found in 1 Rev. Stat. c. 18, with such alterations only as conform it to the actually existing state of the English law; 2 Story, Eq. Ju. — Courts of Equity, in this State, possess the same powers over the subject as the English Courts of Chancery; and, also, the powers of the Lord Chancellor as administrator of the prerogative of the King. *Griffin*v *Graham, ut. sup.)*and this case must be decided as it would be in England. The preamble to the 43 Eliz. enumerates as charitable purposes “the relief of aged, impotent, and poor people;” but “poverty itself is sufficient;” Com. Dig. Uses. N. 1. To show that devises infinitely more indefinite and vague than this have been upheld, and what is conceived to be the true rule on this point, the court is referred to Com. Dig. Uses, N. 1, N. 11; and particularly to *Moggridge v Thackwell,*7 Ves. 87; *Farmer*v *Mills,*1 Mer. 94, which were cited and approved in *Griffin*v Graham; *Ellis*v *Selby,*1 Mylne & Craig 286, 298; *Baker*v *Sutton,*1 Keen, 224, 233; *Legge*v *Askill,*1 Turn. & Russ. 260; *Omnany v Butcher,*Id.; 2 Story, Eq. Jur. §1156, 57, 69, 70, SI; 1 Yern. 225; *Attor-**216*fíep Gen.*v Comber, 2 Sim. & Stor. 93; 1 E. C. 0. R. 363; the gift was “to the widows and orphans of the parish of I/.” established in favor of the poor widows and orphans of l_ jn *gen¡*v *Matthews, 2*Lev. 167, Henry Frier by will appoints trustees to pay an annuity “ to three parishes of L. for the poor of the parishes.” The residue he declares they shall be seized of “ for the use of the poor in general forever:” held good. In *At. Gen. v Clarke,*Amb. 422, the legacy was to “the poor inhabitants ot L.” In *At. Gen.*v Ranee, Id.,, to “ the poor.” In *At. Gen.*v *Herrick,*Id. 712: to “ pious and charitable uses.” *Inglis*v *Trustees of Sailors Snug Harbor,*3 Peters 119; and opinion of Story, J., 153; opinion of Story, J., 3 Peters, App. 484. *Waldo*v *Casey*16; Yes. 206.

Compared with many, if not all of the above cases, the purpose here is precise and certain. It is for tho relief of the poor of Beaufort county, to be administered by the wardens of the poor — the public almoners of the country— which shows that the *legal*poor are its peculiar, if not exclusive, objects — in a manner definitely fixed by the will of the testator. As to the cases where trusts have been held void for indefiniteness: In *Morrice*v *Bishop of*Durham, 9 Yes. 399; *James*v Allen, 3 Mer. 17, the purpose was “ benevolence” and not charity, at all. In *Yesey*v *Janson,*1 Sim. and Stu. 69;- 1 C. E. C. *R. 36,*the discretion of the executors was left totally uncontrolled. In *Omnavy*v *Butcher, ut sup.,*the objection was made that the gift being to “ private charity,” forbade its being administered by public authority.

5th, There is a class of cases where the trust to be performed was unlawful, and therefore held void. *Haywood*v *Craven's Bx'rs, 2*C. L. Rep. 557; *Huckaby etux. v Jones,*,2 Hawks 120; but that cannot be the case here. If it be objected that the devise creates a perpetuity, the answer is found in the argument of the Counsel for the defendant in *Griffin*v *Graham,*and the opinion of the court in that case. Finally, it is submitted that the defendant, even if the legal estate has been devised away from him, being in possession, is yet a necessary and proper party to this bill, and *217on that ground, even, will be decreed to answer.

6. Í conclude that the legal estate still remains in the defendant, the heir of Chas. Gerard — that the general purpose of the testator is charity — that it is not too indefinite — that it is-not unlawful — that the court will, therefore, establish the charity and effectuate it by declaring the defendant a trustee and assuming its administration. Com. Dig. Chancery 2, N. 2; 2, N. 4. , In *At. Gen.*v *Downing,*Amb. 550, 571, devisees to use of a charity, died in the life of the testator, and the heir was declared á trustee. In *At. Gen.*v *Tethered,*Id. 351, the devisees were incapable of taking in succession. *Baptist Association*v *Mart's Ex'rs,*4 Wheat.; 3 Peters 119, 153. And this is done, not only on the special doctrine of charities, but on the maxim of equity that no trust shall fail lor want of a trustee.

I cannot conclude without calling the attention of the court to the special favor which has always been shown to informations to establish charities, and invoking its aid, if it be necessary, in this case. 2 Story, Eq. Jur. §1144, 1163,- and athorities cited. And, sensible that this argument is imperfect, I invoke to its aid the benignant maxim, which has been long acted upon by the courts. *“ Optima, ratio quae pro religione facit.*The court, therefore, will not dismiss this bill unless there be some clear and decisive objection to *any*relief — unless it be beyond the just powers of the court to effectuate in *any*manner, the charitable intention of the testator.

Gaston, J.

We are of opinion that none of the grounds taken in support of the demurrer in this case can be sustained.

It has been insisted, that if the lands, which are the subject of this controversy, have teen devised to the wardens, either as individuals designated by that description, or as a corporate body in our law, the case is one purely legal, and furnishes no matter for the cognizance of a Court of Equity; and,'on the other hand, if the devise be one to the poor of the county, it is utterly w>:d, because of its indefinitencss. We hold it to’ be clear, that the devise was not *218made to individuals, characterized by the description of war-' ^ens Poor) nor can we construe the devise as one made to the wardens in their corporate or quasi,corporate capacity To give the devise the first of these contractions, would be not only to depart from the language of the will, but to violate the obvious intent of the testator, that the subject matter of the devise “ should be under the direction of the persons who should from time to time be the trustees or managers of the poor.” Nor will the language of the will warrant the exposition, that the lands are given to the wardens in their political capacity. As has been well remarked in the argument in behalf of the information, the gift is not to the wardens of the poor, but “to the poor, oi the county of Beaufort,” and it is of lands of' which the testator declares “that they shall never be sold" but be held as a stock belonging to.the poor of the county of Beaufort,” and “subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable.” In his contemplation, the gift is to the poor — the property is to be the property of the poor, subject to a power in “the wardens or managers” to make the property beneficent to the poor. Besides, had the devise been directly made to the wardens in their political capacity, it must have failed, because in that capacity they had not the ability to take by devise. There is no ground, therefore, for the objection that *here*was a plain remedy at law. It is true, as insisted by the counsel for the defendant, that as a direct devise to the poor of the county of Beaufort, the devise cannot have effect. “ The poor of a county,” as defined by our laws making provision for their care, maintenance and support, are a fluctuating body, consisting of those, who, from time to time, because of age, infirmity or calamity, are unable to subsist of themselves, and are therefore declared the subjects of a public charge. It is to this fluctuating body the testator would fain give these lands; but as the law has not conferred on it an artificial character, which renders it able to take donations, the gift, as a direct gift, cannot have effect.

But it by no means follows, that the *purpose*of the testator’s disposition shall therefore be frustrated. The lands, in*219deed, for want of capacity in “ the poor of the County” to take, descended to the heirs at law of 'the testator; but the declaration of the testator that‘they shall be held for the poor of the county of Beaufort, to ’be rented, leased or cultivated for them, raises a charitable use or trust, which the law recognizes as good, and which will be established and enforced by the competent authority. It is unnecessary to enquire in this case, whether the "jurisdiction exercised by the Courts of Chancery in England in establishing a definite charity, where the conveyance or devise was defective, because of the want of proper persons to take in succession, had its rise after the Statute of Elizabeth, or was settled before that statute, upon principles introduced into the English jurisprudence. from the civil law. There can be no doubt but that it was the constant practice of that court, before the colonization of America, and so continued down to the Revolution, to enforce such charitable dispositions. They were hot permitted to fail because of the want of a trustee, and, in analogy to the rule of Equity in other cases, the person, on whom the legal estate devolved, was declared in Equity a trustee *pro hac vice.*There can be no reason to doubt but that the jurisdiction of the Court of Chancery in this State, while yet a colony, was modelled after, and regu. lated by, the rules of the Court of Chancery in the mother country; and by the act of 1782, establishing Courts of Equity in this State, it was declared, that they should possess all the powers and authorities that “the Court of Chancery, which was formerly held in this State under the late govern ment, used and exercised, and that are properly and rightfully incident to such a court, agreeably to the laws in force in this State, and not inconsistent with our constitution.” The Statute of Elizabeth was avowedly passed to redress the misemployment of lands, goods and stocks of money *theretofore*given to certain charitable uses, though the mode of redress directed was, by its enactments, made to apply to subsequent dispositions for such uses. This statute was in force in this State (see *Haywood*v *Craven's*Ex'rs, 2 Law Rep. 557, and *Griffin*v *Graham,*2 Hawks 96) and so remained until it was superseded by our act concerning charities (Re*220vised Stat. ch. 18) which was passed expressly for the same purpose, viz. to secpre the faithful management of all property, real or personal, which had been or thereafter should be granted by deed, will or otherwise, for such charitable purposes as were allowed by law. The English Statute in its recital enumerated many different sorts of gifts theretofore made, where the things so given had 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;” and this enumeration in the statute was afterward often resorted to by the courts, to aid them in ascertaining, whether the intent, to which subsequent dispositions of property were made, should be regarded as equally *charitable*with that recognised as charitable by their statute. Our act, considering that what was a charitable intent or purpose, had then been well ascertained, instead of an enumeration of charitable purposes, used the comprehensive term “such charitable purposes as are allowed by law.” There can b.e no question but that a gift to or for “.the poor of a county’’ is such. The statute and-the act are important, as regards the present enquiry, *only*because they declare the public will, that such purposes are good purposes and ought to be protected and upheld. We confine our decision to the case of a charity, where the objects thereof are definite, ns they are in the case before us, “the poor of (he county of Beaufort.” In such a case we cannot doubt that a Court of Equity, in the exercise of a plain jurisdiction, will establish the charity and make the necessary decrees for causing it to be executed. Where the gift is to charity merely — or to unde* fined purposes of charity — whether a Court of Equity has then a power to interfere and to select the charity, opens a field of enquiry info which we shall not enter until the occasion may demand it. The charge in the information, that the defendant entered upon these lands, claiming them as the heir at law of the testator, is sufficiently explicit, and the demurrer admits it for the present. If he have any other claim, or if he be not the heir at law, it is competent for ,h,im to allege such a matter in his answer. The objection *221that the declared trust would establish a perpetuity, and is therefore forbidden by our constitution, is untenable. The perpetuities thereby contemplated are estates settled for *-private uses,*so as to be unalienable. *Griffin*v *Graham, ut supra.*This is a public charity.

The decree below must be reversed with costs, the demurrer overruled, and the cause remanded for further proceedings.

Per CuRiam, Ordered accordingly.