#### *James Shields, Elias Harrel, William-Collins, James Gardner, Cornelius Gardner, S. D. Kirkpatrick, John Calcut, and Henry Bailey, Attorney General, vs. Joseph A. Jolly.*

The testator bequeaihed the whole of his property, both real and personal, to his wife for life, and afte.r her death “ to the Methodist Church of which she may be a member at the time of her death, to be appropriated to the uses and purposes which the Conference may deem most advantageous for said church; more especially for the support of Sunday Schools, for the purchase of Bibles and religious tracts, and the distribution of the same among the destitute, and for the support of Missionaries.” *Held,*that the bequest to the MethodistChurch, of which the tenant for life was a member when she died, was valid, and that the uses thereof could be enforced in Chancery, (a)

The statute 43 E!iz. c. 4, in relation to charitable uses, has never been adopted in this State ; but, independently of any statute, the court of Chancery has jurisdiction to enforce all charitable uses, except, perhaps, a charity at large, the power to enforce which, probably, belongs to the Legislature.

*Before*Harper, Ch. *at Marion, January,*1843.

The case will be sufficiently understood from the decree of the Chancellor, which was as follows :

*100John Burnet, of the district of Marion, by his will, executed in 1832, devised as follows :

“ I give, devise and bequeath the whole of' my estate, both real and personal; to my wife, Elizabeth Burnet, during the term of her natural life: After her death, I give, devise and bequeath the whole of my said estate, both real and personal; to the Methodist Church of which , she may be a member at the time of her death, to be appropriated to the uses and purposes which the Conference may deem most advantageous for said church; more especially for the support of Sunday Schools, for the purchase of bibles and religious tracts, and the distribution of the same among the destitute, and for the support of missionaries:”

He appointed his Wife executrix, who qualified on the will; and kept possession of and enjoyed the property till her death, in 1837. The defendant, Joseph A. Jolly; took out administra* tion on her estate. The object of the bill is to have an account of the estate, which was given to her for life. The bill pur* ports to be filed.by certain persons; on behalf of themselves and Others; alleging themselves *to-*be members of the Methodist Church called Libertys of which it is also alleged that the said Elizabeth Burnet was a member at -the time of her death. The devise in question is claimed to be a charitable devise, under the statute 43 Eliz. c. 4, giving effect to gifts to charitable uses; which would haVe been void if they had been on any othet trusts. It is also claimed, that independently of the statute; the State, as *parens patrice,*succeeding to the prerogative of the king; has the disposition of such devise; and may make it, by the intervention of the Attorney General, through this court. The Attorney General is flamed as a party complainant to the present bill.

The defendant by his answer admits the fact of the devise, and his own character of administrator. He contends that the devise is void, and that a trust results to the next of kin of the testator, who have assigned their respective interests to the de* fendant, for valuable consideration. The case of the *Baptist Association vs. Llar is*executors¡ 4 Wheat. 1, is fully in point, as to several of the questions involved in this case. That was a devise “ to the Baptist Association, that, for ordinary, meets at Philadelphia annually, which I allow to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the descendants of my father’s family.” The testator was a cit*?izen of Virginia; after making the will, and before the death of the testator, the Legislature of Virginia passed an Act repealing ■all English statutes, including that of 43 Eliz. c. 4. The Baptist Association was a regularly organized body, meeting annually at Philadelphia, for many years before the making of the will. In 1797 it was incorporated by the Legislature of Pennsylvania. The court determined, first, that the bequest could not be taken by the individuals who composed the Association, at the death of the testator, on the ground that no private advantage was intended for them. Nothing was intended to pass to them but the trust, and that they are not authorized to execute as individuals. It is the Association forever, not the individuals who at the time of his death might compose the Association, and their representatives, who are to manage this *“*perpetual fund.” And, second-. ly, that the subsequent incorporation of the Association before bill filed, did not enable them to take on general principles. The legacy was, therefore, void. The Statute of Eliz. being repealed, it could not be sustained as a charitable devise under that. It was contended, however, that at common law, and independently of the statute, when there was a devise to charitable uses, which was void for vagueness or other causes, the king, as *parens patrios,*had the disposition of the fund or property, and that the disposition was to be made through the Court of Chancery, on the information of the Attorney General. The question is ably and elaborately considered by Chief Justice Marshall, who comes to the conclusion that the law of charitable devises in England depends altogether on the statutes ; and that a devise to charitable uses, which is void at law, stands, apart from the statutes, on the same footing as a void devise to any other uses. It would be superfluous to add any thing to the reasoning of Chief Justice Marshall, which is full and conclusive. A doubt is also suggested, whether, supposing such a power to exist in the king as *parens patrios*in England, it could be exercised in the court of this country. Indeed, it was conceded in argument, that this could not be enforced as a charitable use, unless under the statute. This devise being then void, and standing on the footing of any other void devise, it follows that a trust results for the next of kin, unless it can be supported under the statute. It is contended that the statute of Eliz. must be regarded as of force in this State, irom the words of our Act of the Legislature of 1721, (a) which is quoted from Trott’s Laws, 369, and of which we find a portion in 1 Brev. *Dig. 198, n. That Act*empowers the Governor of the Province for the time being, and the majority of the honorable members of his Majesty’s Council, from time to time subsisting, to hold a Court of Chancery, and to have, exercise and use the same jurisdiction, power and authority, in granting and issuing forth all original and remedial writs and other process whatever, and in hearing, adjudging and determining all causes and suits in equity, in as full and ample manner as any Chancellor, or Court or Courts of Chancery in America, may or ought to do. From the case of the *Baptist Association vs. Hart’s executors,*it appears that the stat. 43 Eliz. was in force in Virginia until 1792, and it is to be presumed was in force when our Act of 1721 was passed. The argument is, that powers as ample were granted to the Governor in council, as those possessed by any Court of Chancery *in America.*That the courts of Virginia were possessed of this jurisdiction under the statute, and that the courts of this State must be therefore vested with a similar jurisdiction. The Governor and Council constituted a Court of Chancery before the passing of the Act of 1721, and taking the clause I have quoted alone, I should not suppose that it was intended to confer any new or original jurisdiction, but to give ample powers in exercising the jurisdiction which the court already possessed. The Act of 1712, (b) making English statutes of|force, provides that the honorable the Governor and Council of the province, for the time being, shall have all the power and authority, relating to the execution of the said enumerated statutes, as by the same, or any other the laws of England, are given to the Lord Chancellor, or the Lord Keeper of the great seal of England. It would hardly be contended, that by this clause any special jurisdiction was given, created by any English statute not enumerated in the Act, although it provides that the court shall have all the power and authority given to the Chancellor by the enumerated statutes, or by any other laws of England. Construing the two Acts in *pari materia,*I should take one to be framed in reference to the other. This may be further illustrated by the tenth clause of the Act of 1721, which provides that *“*the said court shall proceed, adjudge and determine in all causes brought into the said court, as near as may be according to the known laws, customs, statutes and usages of the kingdom of Great Britain ,• and also, as near as may be, according to known and established *103rules of his Majesty’s High Court of Chancery in South Britain.” But the Act of 1721, conferring jurisdiction on the court, provides for its authority in granting all original and remedial writs, and other process whatsoever, and in hearing and adjudging and determining all causes and suits in equity. Certainly, the court has never exercised the jurisdiction of issuing original and other writs, and the proceeding under the stat, of Eliz. is not a cause or suit in equity. It belongs to the extraordinary jurisdiction of the Chancellor of England, apart from the general chancery jurisdiction. Blackstone, (3 yol. p. 48,) after enumerating the various objects of the Chancellor’s extraordinary jurisdiction, adds, “ He is the general guardian of all infants, idiots and lunatics, and has the general superintendence of all charitable uses in the kingdom. And all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the Court of Chancery.” And, as quoted by Chief Justice Marshall from Cooper, *“*the jurisdiction, however, in the three cases of infants, idiots or lunatics, and charities, does not belong to the Court of Chancery, as a court of Equity, but as administering the prerogative and duties of the crown.” He adds, that it would be a waste of time to multiply authorities to the point, because the *'principle is familiar to the profession.*By attending to the provisions of the stat. of the 43 Eliz. as I find them stated, 6 Com. Dig. 457, tit. Uses, (n. 14,) it will be apparent that the legislature could not have had in view the adoption of the statute. It provides that the Chancellor may award commissions to the Bishop of the Diocese, his Chancellor and others, (fee. or any four of them, to inquire of charitable gifts, by the oaths of twelve men, (fee. and to make decrees as to the method of administering the charities ; which decrees were to be certified into Chancery, and to stand good until altered. It is hardly necessary to say that the Legislature could not have contemplated a commission to a Bishop in a country where there were no Bishops, and consequently no officers of the Bishops. It is true, that Courts of Chancery in this State, whether with or without the warrant of express law, have exercised this extraordinary jurisdiction over infants, idiots and lunatics. But this may have arisen from the exigency of the case, as the courts have assumed the jurisdiction of granting divorces *a mensa et Thoro,*from the practice of the English courts, in the time of the Commonwealth. But however well matured, and established by practice, may be the jurisdiction of the court in these in*104stances, there has been no such practice with regard to charitable uses, and the inference necessary to be drawn is, that the court has no such jurisdiction. The devise in question, then, being altogether void, the bill must be dismissed, and it is ordered and decreed accordingly.

The complainants appealed, on the following grounds.

1. Because the will of the testatator indicates, with sufficient certainty, the trustees to whom he has devised and bequeathed his estate, and the trusts which are to be executed; and the intention of the testator should, therefore, be executed.

2. Because the uses intended by the testator being distinctly declared by the will, became charged upon the property in the hands of the tenant for life, and rebut any presumption of a trust for the next of kin : and that the representative of the tenant for life, or any other person taking the property, holds the same subject to the said uses, and the circuit decree ought to have declared accordingly.

3. Because the Methodist Church, to whom the bequest is made, is averred to have had legal existence as a corporate body for more than twenty years before the period at which they were to take, and to have exercised corporate franchises; and, by presumption of law, must be held duly entitled to take and hold the property.

4. Because the said Methodist Chuch was a religious society of Protestant Christians, duly existing before the Constitution of 1789; that the Constitution of 1778 duly constituted the same a church, and entitled it to assume and exercise corporate power, upon complying with certain forms. That the complainants aver that these forms were pursued, and that ever since that period the said church has had legal existence. That the Constitution of 1789 expressly protected the rights thus acquired, and that thereby the said Methodist Church hath acquired legal existence, and is entitled to hold and enjoy the benefits given by the testator’s will.

5. Because the Court of Chancery of South Carolina is invested, by the Act of 1712, with all the powers granted by any law of England to the Lord Chancellor of England; and, again, by the Act of 1721, with every power exercised by any Court of Chancery in America; that the jurisdiction over charitable uses was exercised, not only by the Lord Chancellor of England, but also by various Courts in the United States, at the date of the said Acts, and long subsequent thereto, and must, therefore, of *105right, now belong to the Court of Chancery of South Carolina.

6. Because the Governer and Council of the province of South Carolina, as a Court of Chancery, administered the prerogative of the crown of England, whether as *parens patries,*or as acting through the extraordinary jurisdiction of the Court of Chancery; that by this means the Court of Chancery of South Carolina acquired jurisdiction over infants, idiots, and lunatics, and exercised the same, and that in the same manner the same court acquired jurisdiction over charitable uses, and can, of right, exercise the same whenever occasion calls for that exercise.

*Memminger and Moses,*for the appellants.

*Dargan,*contra.

(a)

7 Stat. 163; *ride*also Act of 1746, 7 Stat. 192.

(b)

2 Stat. 413.

*Curia, per*Harper, Ch.

This is case in which I take great pleasure in reversing my own judgment, and it is perhaps fortunate that the decision has been delayed until the subject has undergone so thorough an investigation as it has done in the cases of *Sarah Tayne’s will,*determined in the Circuit Court of the United States for Pennsylvania, by Mr. Justice Baldwyn, and in that of *Vidal vs. Gerard's Executors,*in the Supreme Court of the United States, 2 Howard, 127. The extent of learning and laborious research with which those cases were examined would make it matter of affectation to go over the same ground and comment on the same authorities. It will be sufficient to state briefly their results.

The former case seems to be precisely in point. Among various bequests which were in question, it will be sufficient to mention several made to different *yearly or monthly meetings of friends,*unincorporated societies; to vest funds and pay the proceeds, in one instance, “as an annual subscription into yearly meeting stock,” and in another, “towards the relief of the poor members belonging thereunto.” These bequests were held to be good, and the fund directed to be paid to the individuals who respectively composed the several societies. In the case of *Vidal vs. Gerard’s executors,*the devise was to the Mayor, Aldermen and Citizens of the city of Philadelphia, in trust to erect a College and make various improvements in the City. This may seem not precisely in point, as the devise was to a corporation, capable of taking in succession. But the whole subject was considered, and the opinion of the court was plainly intended to overrule the case of the *Baptist Association vs. Hart’s executors.*The very able argument of Mr. Binney,, and the *?lucid opinion of the court, delivered by Mr. Justice Story, embrace every point which could be made in the case before us. It was held, that the statute of wills, disabling corporations to take by devise, was not of force in Pennsylvania ; that the City might take property in trust, in the same way as natural persons ; that if the trust be repugnant to or incompatible with the purposes for which the. corporation was created, the devise is not void, but the court will substitute a proper trustee; and that there is no positive objection to the corporation’s taking property upon a trust not strictly within the scope of the direct purposes of its institution, but collateral to them. It adds to the authority of the decision, that Mr. Webster in his argument does not controvert the principles which were contended for and established as applicable to charitable uses, but insists that the use in question cduld not be regarded as a *charitable*one, in consequence of the prohibition of any clergyman’s entering the College and of any particular religious opinions being taught.

I understand these principles to be settled by the decisions refered to. If there be a bequest to a society, by that name, the individuals composing it, who may be identified by evidence, take as natural persons, in the same manner as if each had been particularly named; and that if it be upon a lawful, trust, they will be compelled to execute it. There was some difficulty in England, from the circumstance that a gift of land, made in such terms, gave only a life estate, for want of words of inheritance, But with us, where no words of inheritance are necessary, I do not perceive why a society by that name should not take the fee. I suppose that such an estate would not come within our Act of 1791, (a) providing for the distribution of intestates’s estates, bu1- that the descent must be according to the course of the common law. Justice Baldwyn observes that incorpora-tions were originally established to enable religious societies, the individuals composing which were regarded as men dead in law and incapable of taking as natural persons, to take in succession. There was never need of a charter to enable societies to purchase chattels.

It is decided that devises to *charitable uses*will be established and enforced, when similar devises for other purposes would be void for yagueness or uncertainty. By Very elaborate research it is shown that such charitable uses were familiar to the law *107from its earliest records, and the subject of chancery jurisdiction before the statute 43 Eliz. and independently of it. In a note to *Tidal vs, Gerard’s*executors, more than 50 cases are refered to, selected from a calender of chancery decisions, made up by a commission, from records in the Tower of London, which were decided previously to the statute 43 Eliz. of bills to enforce charitable uses. Mr. Justice Story observes, in relation to these cases, that “they establish in the most satisfactory and conclusive manner, that cases of charities, where there were trustees appointed, for general and indefinite charities, as well as for specific charities, were familiarly known to and acted upon and enforced in the Court of Chancery, In some of these cases the charities were not only of an uncertain and indefinite nature, but as far as we can gather from the imperfect statements in the printed records, there were also cases where either no trustees were appointed, or the trustees were not competent to take.” They shew very conclusively, also, that persons having only a general and indefinite interest, such as the complainants have as members of the religious society, may sustain the bill and enforce the use.

It appears very satisfactorily that, supposing the jurisdiction not to have existed before the statute 43 Eliz. it has grown up since, and become so firmly established as to be authoritative with us, and this not by virtue of the Chancellor’s authority in administering the King’s prerogative, but 'of his own proper chancery jurisdiction. The statute only authorized a proceeding by commission directed to the ordinary and his officers, and gives the chancellor only appellate jurisdiction. But many cases are found of an original proceeding by bill, and where the Chancellor set aside the judgment of the commissioners, as being beyond their jurisdiction, or gave relief by virtue of his proper and original jurisdiction. That the jurisdiction is not depend-ant on the statute is very variously illustrated. The statute provides only for twenty one sorts of charitable uses, while forty six are recognized by the cases as capable of being enforced. Many uses, as in favor of towns, colleges, <fec., are expressly excepted out of the statute, but the jurisdiction of chancery to administer them has never been doubted. There were various English statutes prior to the 43 Eliz. providing for the execution of charitable uses, when the societies which administered them had become extinct. Mr. Justice Story refers to the opinions and decisions of Sir John Leach, Sir Joseph *108Jekyll, Lord Northington, Lord C. J. Wilmot, Lord Redesdale, and of Lord Chancellor Sugden, in opposition to the *dictum*of Lord Loughborough, on which the case of the *Baptist Association vs. Harfs executors*was principally decided. Mr. Justice Story quotes the opinion of Lord Redesdale that the statute “only created a new jurisdiction. It created no new law. It created a new and ancillary jurisdiction,” (fee.

There can be no doubt that a trust for the support of religion is a charitable use ; and with us, where all sects of the Christian religion stand upon an equal footing, there can be no question with respect to a superstitious use.

In the argument of the present case, decisions were quoted, from nine of the States of the Union, establishing such charitable uses. Contrary decisions have been made in Virginia and Maryland, and they are supposed to have been made in conformity to the decision in the *Baptist Association vs. Hards executors.*As the State of Virginia had actually repealed the statute 43 Eliz. on which charitable uses were supposed to depend, it might seem to have repudiated such uses.

There seem to be several distinct kinds of charitable uses, requiring a different method of proceeding. First, there is what is called a charity at large, where there is a gift simply to purposes of charity, without the appointment of any trustee. This sort of use I do not understand to have ever appertained to the jurisdiction of the Ghancellor as a Court of Equity, but to have been enforced by him under the authority of the King’s sign manual and by virtue of the prerogative. I do not think that it would be within the jurisdiction of this court to set up such a charity as this, and devise a scheme for carrying it out. It would probably appertain to the Legislature, on which most of the royal prerogative has devolved, such as the granting of charters and franchises, (fee. Another instance is, where trustees are appointed, but the objects are so vague and indefinite, that if the gift were to any other purpose than charity, the court must declare the trust void for uncertainty; as in the instance of *Morice vs. The Bishop of*Durham, 9 Ves. 399, where the trust was to such objects of *benevolance*and *liberality*as the Bishop of Durham should approve. To a bill for setting up a charitable use of this sort, I think the Attorney General ought to be a party, to aid the court in devising the specific scheme for carrying it out. The third class comes under the general rules applicable to all trusts whatever, whether for charitable or any other purposes. *109It is the well known and universal rule of the court, that if the object of the trust be lawful, and sufficiently specific and definite to enable the court to execute it, it shall never fail for the want of a trustee. To a bill of this sort the Attorney General is not a necessary party, and the present seems to me to be a case of this sort. The devise is not merely to such purposes as the Conference may direct, but specifically to support *Sunday Schools, buy and distribute*bibles, &c. These trusts the court can execute.

Admitting the individuals composing the congregation of the Liberty Methodist Church to be capable of taking in trust, yet it is manifest that they are entirely unsuitable for exercising it. Our courts have, I believe, gone further than most courts of chancery elsewhere, in changing trustees as the exigency of cases may require. An individual, or a limited number of individuals, are better adapted to carry out the views of the testator. I think the congregation, however, ought to be permitted to select their own trustees, and I believe it is competent for us to give such direction.

It is therefore ordered and decreed, that the circuit decree be reversed, that the congregation of Liberty Methodist Church in Marion district be at liberty to elect a trustee or trustees (not exceeding three in number) at any time before the next sitting of the Court of Chancery for the said district, and that, upon such election being made and certified to the satisfaction of the commissioner, he report upon the fitness of such appointment, or that if the said congregation shall fail to elect, he report upon a suitable person to be appointed trustee, and whether such trustee or trustees ought to give security for the faithful discharge of his or their trusts; that if any vacancy of the office of trustee shall hereafter occur, it may in like manner be filled by election, subject to the confirmation of the court. And it is further ordered, that upon the appointment of such trustee or trustees the defendant, Joseph A. Jolly, account before the commissioner, and pay and deliver over to the said trustee or trustees all the estate, real and personal, and the issues and profits thereof, which was of the testator John Burnet deceased, and which came into the hands of the said defendant, to be held by him or them in trust to appropriate the issues and profits of the estate paid and delivered over, to the uses and purposes which the Methodist Conference to which the said Liberty Church is attached, maja-deen! most advantageous for said Church, more especially for *?the support of Sunday Schools, for the purchase of bibles and religious tracts, and the distribution of the same among the destitute, and for the support of Missionaries; and that such trustee or trustees account annually before the commissioner. As the defendant states that the next of kin of the testator have assigned their claims on the estate to him, and he has litigated for his own benefit, he must pay the costs, and it is ordered accordingly.

(a) Vide *Gibson vs*McCall, 1 Richardson’s Rep. 174- R-

The whole court concurred.

(a)

 5 Sta't. 162.