#### John Black, *vs.*Wm. Ligon, *the Trustees of the Wadsworth poor school, Daniel Cook*& *Daniel Beacham.*

*Testator by his will devises land to three trustees named by*him, *for the support of a charity school, never to be sold or alienated^*“ *the said school to be under the direction and government of five trustees, to be elected every two years,”*&c. *“ and if after these lands are delivered over to the trustees to be appointed,*&c.” *they shall cease to apply the funds for two years, or attempt to dispose of the lands, then he revoked the gifts Held that the power of leasing the lands was in the five trustees dected for two years.*

*Under the particular circumstances of the case, it was held that the lease of a tract of land and mill by the trustees, for the term of ninety nine years, and for a gross sum without the*rc-*servation of an annual rent, was valid, and not a violation of the testator's prohibition to alienate the lands.*

Thomas Wadsworth, deceased, by his last will and testa* hicnt made *the following*provisions: — “ I do give and bequeath to my much respected friends, D. W. .Desaussure, John Hunter and John E. Calhoen, Esquires, in trust for the use and benefit of all that part of Laurens county in 96 district, known at this time by tha bounds of Major Dunlap’s Battalion, of the Saluda Regiment, all the remaining part of my lands, of every description and kind, for the sole purpose and use of supporting and maintaining a free school for poor children, residing within those limits, forever, never to be sold or alienated, except such lands as may lay at a distance, which may be exchanged for lands of their full value, lying within the aforesaid limits, acre for acre, but not otherwise. The said school to be under the direction and. government of five trustees, to be elected every two years by the free white men residing within the aforesaid limits, so soon as my executors shall have arranged and so disposed of my personal estate, as to bring in a sure interest of eighteen hundred dollars per annum, until which time the profits arising from those lands must go to make up the deficiency, designed for the maintenance of my wife and mother, during their lives; and if *after these lands are delivered over to the trustees to be appointed*as aforesaid, *if they shall neglect at any time or cease to apply the same for the space of two years to the purposes above mentioned, or shall attempt to dispose of any**206*of the said lands,*or apply them to any other use, then and in-that case I do hereby revoke this gift.”

The trustees to whom the lands were devised by the will,, proceeded to organize the school, and delivered it and the lands into the possession and management of the trustees elected by . the free white men within the bounds of the battalion, according to the directions of the will.

A large quantity of land within the designated limits, consisting of many tracts, passed under this devise; of these, the principal in value was the tract now in dispute, on which was erected a mill. The elected trustees, after entering on the management, for some years made short leases, of one, two and three years, of the mill tract as well as the other lauds, until 1803, when after public advertisement, the lands were put up at auction for a term *of*ninety-nine years, and the defendant William Ligón bid ofFthe mill tract for the gross sum *of $2200,*payable by eight equal annual instalments, and the trustees executed to him a lease for that term. No annual rent was reserved by the lease. After putting improvements on the tract to the value of upwards of ,‘*,3000, Ligón sold and assigned his term to Daniel Cook and Daniel Beacham, who afterwards sold and assigned to the complainant John Black, with covenants for quiet enjoyment. The complainant after the purchase added improvements to the land, of the value of *.fSOOO.*

The bill of complainant «Hedged that doubts had arisen whether the elected trustees had power to lease under the will, whether that power did not pertain to the trustees to whom the lands were devised in the first instance, the powers of the elected trustees being restrained to the management of the school.

And if they had the power of leasing, whether it extended to the making of leases for more than twenty-one years, and whether the leasing for so long a term as ninety-nine years, might not be considered an evasion of the testators restriction against alienating the lands. The bill prayed, either that the complainant’s term might be sanctioned and confirmed by the decree of the Court, or that if the lease should be declared void, he might be re-imbuvsed and indemnified by the parties *207properly liable thereto, the amount which he and his intermediate lessor Ligón, had expended in improvements.

Various testimony was offered. In general it appeared that at the time of the lease to Ligón, the mills, which constituted the principal value of the tract, were out of repair and going to decay, and that the trustees had no means of raising the funds necessary to put them in proper-repair; that the income from them was then very small, not exceeding *$*22 per annum; and that previous to leasing for ninety nine years, repeated attempts had been made to lease for two and for ten years. No attempt had been made to lease for any intermediate term. Most of the witnesses examined were of opinion that the lease for ninety nine years, were the most advantageous disposition that could have been made of the lands: that tenants for a shorter term could not have made such improvements or kept the premises in such repair as to secure an income from them* that it would not have been practicable to lease for twenty one years or any shorter period: that if tlie leases -had not been made for long terms, the continuance of the charity would have been put to hazard, and that the price given, $2,200, was nearly the full fee simple value at the time of the lease. Other witnesses thought that the leases for ninety-nine years were im~ povident: that the mill tract, at the time of the lease, if rented for short periods, might have produced *‡*100 per annum, and that the value of a term of 21 years from the date of the lease in 1804, was *$*1,500. It was conceded on all hands that the trustees had acted with the utmost honesty and good faith.

Chancellor *Descmssiira.*— This case has been before the court in various shapes and on various questions, and several decisions have been made onsome of those questions, all which 1 understand have been disposed of by the court of appeals, and I am not now called upon to give my judgment upon them. The point immediately before me and fully argued was, whether the trustees or commissioners had a right to make leases for ninety-nine years, of the lands devised by the late Mr. Wadsworth for certain public and benevolent purposes, *208and if they had not, what was the remedy, and the proper iin-demnifications to the parties, who might bo injured by disturbing the present state of things.

It appears by the documents and exhibits in the cause, that the late Thomas Wadsworth, formerly of Laurens district, a man equally distinguished for his public and private virtues, for his patriotism and his benevolence, in and by his last will and testament, duly executed and left of force at his death, devised to John E. Calhoun, John Hunter and D. W» Desalts-sure, in trust for the use and benefit of that part of Lauren» county known at that time by the bounds of Major Dunlap’s Battalion of the Saluda regiment, all the remaining part of his lands, of every description and kind, for the sole purpose of maintaining a free school, for poor children residing within those limits forever, never to be sold or alienated, (except in a certain specific case wherein he permits an exchange;) the said school to be under the direction and government of five trustees, to be elected every two years by the free white men residing within the said limits, and if after these lands are delivered over to the trustees to be appointed as aforesaid, if they shall neglect at any time or cease to apply the same, for the space of two years, to the purposes above mentioned, or' shall attempt to -dispose of any of the said lands or apply them to any other use, then and in that case, the testator revoked the said gift, and directed the application of the said trust estate to other charitable uses, and he requested the three aforesaid gentlemen to whom he devised the lands, to proceed to organize the said school and to fix the same upon such a footing as would best answer the purposes designed, for the benefit of the children of the poor inhabitants; who were to be educated and brought up in pure republican principles, as established constitutionally in America,

The remainder of Mr. Wadsworth’s real estate was, in pursuance of his will delivered up to the trustees, who were first elected under, and in conformity to his last will, and the lands have been constantly since in the possession of the trustees and their successors and their lessees, and they have *209Tv'ept up a school conformable to the testators intentions; It appearing to the trustee to be difficult to make advantageous leases for short terms, those who were in office in 1803 were induced to makea lease for ninety-nine years, to commence from thefirst day of January 1804, to William Ligón and his heirs and assigns, of the most valuable tract of land belonging to the trust estate, on Little river, comprehending the mill tract and the grist and saw mills, with all the apparatus belonging thereto, for and in consideration of the sum of *$2200,*to be paid by eight annual instalments of *‡275,*for eight years William Ligón the lessee in consideration of ‡6000 to him paid by Daniel Cook and Daniel Beacham, sold and conveyed all hi3 right, title and interest in the mill and tract of land, leased to him by the trustees of the Wadsworth poor school, for the remainder of the time granted to him, to the said Cook and Beacham, their heirs and assigns, with a clause for the quiet and peaceful possession and enjoyment for the remainder of the term. By another instrument of writing, executed on the 10th of February 1817, Daniel Cook, in consideration of $ 3500, in hand paid by John Black, granted, bargained and .assigned to the said John Black, his heirs, executors and assigns, all that parcel of land on which the dwelling house and store house and out-houses built by Wm. Ligou then stood, being part of a tract of land leased by the trustees of the Wadsworth poor school to Wm. Ligón for ninety-nine years, and by him sold and assigned to Daniel Cook, with a covenant for his enjoyment of the premises for the remainder of the term. There was also another bond or instrument of writing, executed by the said Daniel Cook on the 20th Feb. 1817, by which he bound himself in the penal sum of $ 10,000 to John Black, his heirs, *&ic.*with condition there under written, to perform and abide by an agreement that day entered into with John Black, by which he assigned to him the said Jolm Black, all the balance (meaning the *remainder)*of the land leased to him by Wm. Ligón, including the one half share of the big mill and tract of land annexed to it, and leased to the .said Paiiiel Cook arid Daniel Beacham, being all that remained *210*io*him of the said purchase or lease, except that part heretofore assigned by him to said John Black, and stipulating in what manner he was to be paid, by an exchange of lands at a stipulated price per acre.

In the course of the discussion which arose on several of the questions that were heretofore made before the court, a doubt arose as to the validity of the leases for ninety-nine years, made by the trustees elected biennially by the battalion, and also as to the due' 'execution *of the*power of leasing^ Whereupon the court of appeals ordered it to be referred to She commissioner, to report to the court what was the value of a lease for twenty-one years, of the. premises leased from the trustees by William Ligion, and by him transferred to John Black,, and also the value of the improvements put thereon *by*the said Black. The commissioner reported on this part of the case, that the value of a lease for twenty-one years amounted to *‡*1500,' and that the improvements put thereon by Win. Ligón amounted to *‡*3217, and that the improt ements put by John Black amounted to the sum of *‡*8046 41 — total for improvements, *$11,263*44. The apprehensions excited in the minds of the lessees on the subject of the leases of the lands of the Wadsworth poor school by the trustees, caused a full and able argument on the.question of the authority by which such long leases of these lands vrere made, and of the validity of these leases. In the. argument, it became the duty and the interest o,f the sub-lessee, to bring to the view of the court every objection and difficulty which might ultimately affect his rights under the leases, • and he is not liable to the imputation of unnecessarily seeking to disturb the rights under which he claimed.

It was submitted to the court in argument, that the trustees directed to be elected biennially by the battalion in Laurens district, had no authority to lease the lands at all, because the lands were devised to the three particular friends of the testator named in the will, and.in them the legal title was vested, and: the trustees directed to be elected to manage the school, had no other authority or duty to perform. On a careful perusal *211of the will, that is not fny opinion. now, nor was it at any time the opinion of the three friends of Mr. Wadsworth, the testator. They were and considered themselves the devisees and holders of the land, subject to the uses of the will; the legal estate was .given to them to support the trusts, *Aik.*581B and the schools were to be under the direction of five trustees, to be elected every two years by the free white men residing, within the prescribed limits. It was their duty to raise an in*' come and they were to apply that income. No slaves were left to cultivate the land; an income then could be raised by renting alone. I think then the power of leasing was necessarily.implied. The testator must be considered as having had the course in his view; for two of his selected friends and devi-sees were advancing in life, and lived far distant from the lands in question and could not have any useful agency in leasing the lands. Whereas the trustees to be biennially elected, were intended to have, and actually had the power of leasing the lands in question, in the manner best adapted to the benevolent purposes of the testator, within the restriction which forbade a sale or alienation.

The next question which arises is, whether the trustees have exercised that power within legal and reasonable bounds. It will be remembered that the lease actually made, was for ninety-nine years, at the price of *$2200,*payable in eight years, without interest and without any reservation of an annual ¡rent, and there is no stipulation for delivering up the land and mill seat and the improvements in good order at the end of the term. It should also be remembered that by the commissioner’s report, the valué of the lease for twenty-one years was *$*1500, and that improvements have been put upon the land and mills to the amount of *‡*11,263 44. Upon this summary of facts, it was argued for the complainant that the trustees have no authority to make leases of such an extreme length nor on such terms, and that they were wholly void or subject to the control and regulation of the court, which would reduce theni to a reasonable term or give some other relief. On the other hand, it .Was contended for the defendants, that 'there was no. law *212•restraining the trustees from leasing to any extent which in their judgments would be best for the institution — nor was there any restraint by the will of the testator, consequently that they had as unlimited powers over the subject as the testator himself whom they represented, and in fact the power had been wisely and beneficially exercised for the institution; and that if this is doubtful, these leases ought not to be disturbed or controuled or limited, which would work a prejudice to the lessees and sub-lessees, who had laid out a great deal of money in improvements, and were not to blame in accepting the leases given by trustees professing to have authority; and that at all events, if the leases should be disturbed, the lessees ought to be reimburse ed for their advances and improvements made on the faith of these leases. It is certainly true that there is no statute in our code which limits the term of years beyond which trustees and others exercising delegated powers may not grant leases of real estate over which they have controul. But it does not follow as a consequence that there is no limit to their power and abuse of it. It is not correct as was contended at the bar, that trustees stand in the place of the donor who created the trust, and with as absolute power over the land as he had himself; their power exists only for the benefit of the cestui que use. The absolute owner is irresponsible for the use or abuse of his right of property. The trustees are responsible for their conduct to the statute and common law of the country, to the rules prescribed by the deed or will which created the trust and gave them cxisten.ee, and finally to the general rules and principles of justice as administered in courts of justice. In applying this responsibility to the case before us, we are led to enquire how the leases given by them for ninety-nine years conformed to the powers and directions given by the will of the testator and with the course of business in such cases, and whether such leases were beneficial to the certui que use. The will of the testator does not give the power to lease directly to the trustees; we have however agreed that though the legal estate was not devised to them, the power of leasing was necessarily implied fypm the duties to be performed by themj but the power is *213oontrouled by the twice repeated injunction of the testator, that no sale or alienation or attempt to dispose of any of the lands devised, cr to apply them to any other use, should be made or done, under the penalty of a revocation of the gift, if sued for. A lease for ninety nine years seems to be an unreasonable exercise of the power to lease, in this country. It is an attempt to dispose of the land far beyond the usual time of leases. It amounts substantially to a sale or alienation, and therefore Comes within the prohibition of the testator. It also diminishes, if it docs tact wholly take away, the certainty of getting back the land at the expiration of the ninety-nine years. The 'population of our country is extremely migratory', and events and rights more easily lost sight of than in other countries:besides, a gross sum is contracted for, and no annual rent is reserved, to keep alive the right and the memory of it; this gives it the character of a .sale rather than a lease. Besides, such a lease is exposed to other serious objections on various grounds. In a country like this, of a continually increasing population, and increase of the value and price of land in favorable situations (such as the present) a lease for ninety-nine years deprives- the *cestui*que use of the advantage of the enlarged rent arising from the increasing value of land. Already this is felt, for the lease in 1803 for ninety-nine years, was made for a gross sain payable in eight years of *$2200.*The commissioner now reports that the lease for the past twenty-one years was worth $1500; now allowing no further increased value (and that is an *error)*the lease for ninety-nine years ought to have brought $‘7065 instead of *‡*2200: but in reality there is every reason to believe that from the growing prosperity of the country reach succeeding term of twenty-one years would have produced a larger rent. Against these very strong objections to these leases, it was argued that no leases could have been made for shorter terms, as no person would have taken them at all and erected expensive mill works, as has been done by Wm. Ligón, and by Mr. Black the sub-lessee, under the long lease. Mr. Burnsides and other gentlemen have proved this to be tlicit- opinion, and they believe the k-ar.es for ninety'*214nine years were proper and reasonable. There is ao doubt, that these were respectable and intelligent witnesses, who real» ]y believed what they stated; but it should be remembered that many of these witnesses had been trustees, and had early and ■prematurely formed that opinion, and had acted upon' it by joining in leases for ninety-nine years; this weakens the authority of their opinions. Other witnesses differ in opinion fron* these, and think that better prices might have been obtained for shorter terms, and testify to facts which go far to prove that the-lease for ninety-nine years, at *$2200*for the whoje term, was very disproportionate to the value, being only *$22 22*per an-num, Besides, where is this to end? If they were at liberty to lease for ninety-nine years, they might for nine hundred and ninety-nine, which surely would be selling the fee simple. On a long deliberate and anxious- consideration of this subject, I have come to the conclusion that the trustees in making leases for ninety-nine years, exceeded the power given them or violated the restriction imposed on them; such a lease for a gross sum, without reservation of an annual rent, approaching nearer to a sale which was prohibited than a lease, and putting the ultimate right to the property, and even the memory of it, in danger.

With respect to the general power of trustees to alien, even absolutely, and to the prejudice of the cestui que use, *(see .Maddox,*456) that can only be where the legal estate is absolutely vested in the trustees. Now there is no dirGct devise to them of the estate; the estate is devised to Mr. Wads-worth’s three confidential friends, whom he names in his will, and it is only incidentally that a provision is made for the estate to be put into the hands of the biennially elected trustees, to be managed by them; and Mr. Haddock states that the power of the trustee oyer the legal estate vested in him, exists only for the benefit of the cestui que trust, and that such alienations as would injure them can rarely happen; for the legal estate, the possession of the trust estate and the title deeds must all be in •the trustee. It would be great injustice to the trust estate to permit such leases, made,for such an un.pmvijdent. length-of *215time and at so small a gross sum, to stand; more especially, as the commissioner’s report shews tháí the first term of twenty-■ one years was worth *$*1500 (nearly equal to the sum paid for ninety-nine years) and each succeeding term would have become more valuable, from the encreasing population of the country and other causes.

The conclusion to which I have come involves me in great' difficulties. What can now be done for the benefit of the cestui que use, with the least injury to the lessees? for as there is no reason to impute to them, or to the trustees who have-made the Jong and improvident leases in question, any corruption or intentional misconduct, 1 feel great reluctance that they should be sufferers. The strict and regular conclusion would be, that the leases for ninety-nine years should be set aside fon the excess of the time which should appear to have been the reasonable term that they ought to have been made, as having-been made without authority and in contradiction to the restriction of the testators will, and improvidently and injuriously to the interest of the cestui que use. Thai is the course which I must pursue, unless a moderate compromise and new agreement can be made by the parties, under the direction of the commissioner and to be reported to and approved by the court, The parties majr therefore if they please, compromise, *by*entering into a new agreement that the lease shall be extended as-was originally intended to ninety-nine years from the original date in 1803, on the conditions that the lessees and their, assigns pay a very moderate annual rent in addition to the sum heretofore paid, and that the lessees and their representatives do stipulate to deliver up the land and premises at the expira» lion of the lease in reasonable order, the ordinary ware, tear, ■ fire and other accidents excepted. Or the parties may agree • upon a gross sum, corresponding in some moderate and diminished degree with the above stated calculations and principles, but reserving at all events a small annual rent of a few dollars, the regular payment of which will *keep*alive the in- ■ Serests of the trust estate and the memory of them by ail the *216parties. í must however make a definite decree, which must bg carried into effect in case no such compromise be made.

It is therefore ordered and decreed, that unless a compromise or new arrangement be made in writing bj the parties* and reported by the commissioner to the court at its next sitting, ■and approved thereby and confirmed, the leases of the pre-'-miscs in question, made by the trustees of the Wadsworth Poor School, to Win. Ligón and Wm- Cook, and by them to John Black, for ninety-nine years, be set aside, and declared null and void, for so much thereof as exceeds the term of thirty-one years, and that at the expiration of thirty-one years from the first of Janiiary, 1804, the lessees or persons holding under them do deliver up to the trustees or their successors full and peaceable possession of the premises, buildings, mills, &c. iit reasonable order and condition, fire and other accidents and the ordinary wear and tear excepted; and further that the commissioner do examine and report what moderate deduction or allowances or compensations John Black is entitled to, by reason of shorting the leases, and from whom, whether William Ligón, Wm. Cook, or the trustees who made the illegal leases aforesaid. All parties to pay their own costs.

The defendant appealed on the grounds,

1st. That as the circuit decree admits the power of the trustees to lease, the consequence of the abuse of that p wer ought to be, not to render the leases void, but to make the trustees personally liable; that the power to lease is expressly given by the will, and the trustees have not violated its letter or spirit:

2d. That there was no misuse of the power given to the trustees, the contract having been proved to be an advantageous one; that instead of *‡*22 per annum, stated by the decree to be the income derived from the lease, the trustees receive *‡*176, •the interest of the gross sum for which the term was sold:

3d. That the leasing for a gross sum, which is regarded by the decree as objectionable, shews the advantage of the disposition made *by*the trustees; as thereby a distinct capital is created, from the interest of which an income is derived:

*2174th.'That the most importan^ point in the case, in what manner,, and by whom, the sub-lesses were to be indemnified for their improvements, should not have been referred to the commissioner, and was not a matter within the scope of his duties or powers.

*TV. Thompson*and *Simpson,*for appellants.

it seems •hardly to be doubted that the lease made by the trustees was the best arrangement in their power at the time it was made; and indeed the only practicable one by which they could have derived an income from the property. It is not doubted that they had the power to lease, and that they acted with perfect good faith. Their successors, now in office, are satisfied and unwilling to disturb the contract; the original lessee is satisfied; no complaint has been heard from any individual interested in the charity; no one seeks to set aside this lease but the ccyn-plainant, the sub-lessee; who would avoid his own contract; finding it perhaps less advantageous than he expected, and believing that if he may be refunded what he has laid out in his purchase and improvements, he may invest his capital to more •profit.

Our positions are, that the trustees had power to lease; .and ■if so, that their acts are binding-, unless fraudulent. The cir-* cuit decree establishes that the trustees elected by the freeman, of the battalion, *had*the power of leasing, and we are to seek for the limits of their power. What is the term beyond which, they are incapable of leasing? Twenty-one years has been mentioned; with reference, we suppose, to the English statutes, ■on the subject of ecclesiastical leases. But those statutes are not of force here, nor have any application to this case. Their .policy is to .prevent ecclesiastical persons from impoverishing their successors. If the trustees acted within their powers, this court has no authority to avoid their acts; this can only he restrained by law or the will of the testator. It is plain that there was no violation of the letter of the will: was there a violation of its spirit? It is said to have been an evasion of the testator’s prohibition to sell or alienate. The act does not come within the terms of the prohibition: k was neither a sale *218nor an alienation. If its effect was not to defeat, but to prer* mote the objects of the testator, it cannot have been a viola* tion of his intentions or the spirit of his will. His objects were to perpetuate his name, and the benefits of the institution to the country, and if those objects arc not promoted, we consent to give up the case.

The highest rent fixed for the property in its present improved state is, *‡ 200.*But the trustees derive an income of *$*154 from the interest ofthe purchase money. They have an additional capital of *‡*2,200, which a former decree of the court has secured from being iucroached on, together with the reversion of the property sold There is a fallacy in relying on the commissioner’s report, that a term of twenty-one years was worth *$*1,500. He calculates the aggregate of the annual rents for every year of the term, which would have been disbursed as they accrued. The interest on *$*2,200 for twenty-one years amounts to more than $ 8,000.

But the question is not respecting the comparative advantages of long and short leases. This was the only pracicable method. The principal value of the tract of land consisted in the mill seat. Apart from this, there is no doubt but that the *$*2,200 was more than the *fee*simple value of the land.

The testimony is, that attempts were made, without effect to lease the lands for two and for ten years, and tiie witnessed think it would have been equally impracticable to lease for twenty-one years. And if we had no testimony, we must infer the same thing from the circumstances. Independently of paying rent, no tenant could have found it his interst to put expensive repairs and improvements on the property for a term of ten or twenty-one years. The trustees had no means of repairing or improving, as they could not change the investment of their capital; and their income was hardly sufficient to keep their institution in operation. Soon after the lease, the mills were burnt What should have been done if tbe property had remained in the hands of the trustees? A tenant for a short term would not have repaired; the trustees could not have repaired. Must the institution have ceased? Would it have been pursuing *219file testator’s intention, to defeat his objects altogether. Admitting that it would he in the power of the trustees to make a better bargain if the property were in their hands now, can this be an argument for avoiding the contract, when it was the best in their power at the time it was made, and the only pracable mode of effecting the testator’s object?

It is said that the evidence of title mav be lost before the end of the term. But other means may be found of guarding against this danger, than declaring the lease void. The court may direct, by its decree, that there shall be a periodical acknow-ledgement of title by the lessees.

If the intentions of the testator were clearly expressed, it would be the duty of the court to effect them, without regard to consequences; but. if they are doubtful, it may have some weight to consider the consequences of declaring these leases void. The complainant seeks to be reimbursed what he has expended in making his purchase and improvements. But on whom shall the loss fall? Shall the individual trustees, who made the contract, be rendered personally liable? This would be *unjust and*oppressive, as it is admitted they acted honestly and to the best of their judgment. Besides, they are not parties to this suit, and cannot be bound by the decree. Shall the in-stitivion refund? The property, it appears, would not now sell for near the amount which has been expended in improvements, and to decree this, would be to *defeat the*charity altogether. The testator too expressly, directs that none of the land shall be sold; and it would be impossible to refund without selling. If the institution does not refund, it gains an unfair advantage. Shall the loss fall on Ligón, the original lessee? He seems to have been equally innocent with the trustees, and there appears no more reason why he should bear it than the complainant. This part of the case was referred to the commissioner; but it was not a matter proper for his determination, and it is certain the court must ultimately decide it.

*Johnson,*for respondents.

Whatever may be the views or interests of the complainant, if the trustees exceeded their powers ia making the lease, the court will declare it void. He *220however is indifferent and content to abide by his contract, if *it*is sa xtioned by the court.

We contend first that the trustees elected by the freemen of the battalion, had no power to lease at all. The lands aré given to other trustees, named by the testator, and the office of the e'i’.-tcd trustees is pointed out by the provision of the will, that the school shall be “under their direction and management.” The will is rendered consistent and intelligible by the construction, that the trustees named shall manage and lease the lands, and pay over the proceeds to the elected trustees, who shall manage the school.

But we contend further, that the lease for ninety-nine years is an alienation, it is according to the shewing of the defendants, a substitution of a monied capital for the landed capital on which thetestor intended the institution to be founded. Why were the trustees forbidden to alienate the lands? We may suppose because the testator supposed a landed capital to be more permanent and secure, and not subject to the casualties-which would attend it if otherwise vested. But are not greater hazards incurred by the trustees putting the property out of their controul for a century? Does it not strike every one as an alienation? It is said that the gross sum paid for the term, was equal to the fee simple of the land. If this be true, it is an additional circumstance to shew that it was regarded by all. parties as an alienation.

Chancellor *Thompson*

The opinion of the circuit judge, that the power of leasing the Wadsworth lands is vested in the five trustees elected biennially, I think fully sustained by the reasons assigned for it in his decree. The question to be considered relates to the exercise of that power. The object of Wad worth’s bounty was the supporting and maintaining of a free school, for poor children residing within certain limits in Laurens district. It was to he under the direction and government of the trustees, and if .they should neglect at any time or cease to apply for two years the funds destined for this purpose, the.gift is revoked.. There is also a restriction that the lands *221from which the funds are to arise, should never be sold or aliened.

It is objected to the leases by the trustees, that they were made for ninety-nine years, for the inadequate sum of $2,200, payable in eight years, without a reservation of an annual rent, or stipulation to deliver up the land and mill seat with the improvements, in in good order at the end of the time. The test iator does not prescribe any mode of raising the funds necessary *io*carry the object of his bounty into effect. The trustees are left to act on this point, subject only to the restriction that the jands should not be sold or aliened. They were under no obligation to reserve an annual rent, or to require any stipulation respecting the delivery of the premises at the expiration of the leases. The restriction on selling or aliening would have been violated, if as was put in the argument, the trustees had made leases for nine hundred and ninety-nine years; such leases would obviously have violated the intention of the testator, and it must be admitted that these leases for ninety-nine years could uot be supported, but for very strong and special circumstances under which they were disposed of. The trustees acted with the utmost fairness and to the best of their judgment for the benefit of the institution. They tried to dispose of leases for two and ten years and failed, and Col. Baily says, even made several attempts to lease at ninety-nine years, before they succeeded; and several witnesses declare that the lauds brought as much as the fee simple of them was worth. Col. Burnsides says, that the price of the mill seat was the greatest fund, and if that had ceased, the fund would have been too small to have gone on. The sale of these leases put the institution out of the reach of casualties which might have been ruinous. . It ap*. pears that the mill got burnt soon after the lease to Ligón for ninety-nine years, and Major Dunlap says, that after the mill had been burnt, if it had been on a short lease, the scheme and plan of the testator could not have been carried on for want of funds, as no one would have rebuilt on a short lease. It is therefore fortunate for the institution that these long leases Were made. But we must judge of the conduct of the trustees *222by the state of things as they existed when the leases were made, and not by subsequent events. The property has appreciated greatly since, but as Col. Baily observes, it owes its chief value to Ligon’s skill and expenditures. The mills and improvements are estimated at *‡*11,000, a sum far exceeding the value of the lands in fee simple when the leases were made, the benefit arising from the application of which, cannot in my opinion be justly taken from fair and bona fide purchasers and given to the institution; and it is a consideration entitled to weight, that the setting aside of the leases would disturb many titles of which -the holders had no reason to doubt the validity, and which •were fairly acquired, give rise to much litigation, and involve a number of persons confessedly innocent, in expensive and ruinous law suits. The danger, that in a lapse of so long a time as ninety-nine years the tenants of the lands might set up and acquire a right by possession, can be efficiently guarded against by requiring a recognition of tbe title of tbe trustees at tbe expiration of every four years, and it is the duty of tbe ■trustees to see that this recognition is made.

It is ordered and adjudged that the decree of the circuit court be reversed; tire leases of the lands for ninety-nine years made by the trustees be confirmed, and that the present and future tenants of the leased lands, be required from time to time to make such a recognition of the title of the trustees as they may think proper to demand, in order to protect the said leased lands against any claim of right which might be set up or acquired by possession or otherwise; the parties to pay their own costs.

Chancellors *Guillará*and *James,*concurred.

Chancellor *Desaussure*

I concur,- for the reasons stated in a separate paper.

Chancellor, *Desaussure*— I have reconsidered this case with great attention, and remain of the same opinion that I was at the hearing of the cause, with respect to the authority of the trustees to make leases for ninety nine years. I am still of opinion that the restriction in the will of the testator, Mr. Wads-worth, ought *to*have prevented their making leases of- such *223tmrcasonable duration. I. 'also think, that looking to the future, it was improvident to'make such long leases and thus deprive the institution oF the benefits of the continued rise in the value of property. It was also improvident to sell For a gross sum, without some reserve of annual rent, however small, which might have kept alive the rights of the trustees and the poor 'school, and preserved the memory of them coextensively with the leases.

’ As however, it is acknowledged on all hands, that the trustees acted bona fide and for die best, according to their judgment; as they obtained the full price, at the then rate lands were selling and leasing; as great and extensive improvements have been made on the lands, and it would be a great hardship on lessees and sub lessees who are not in fault, to set aside the leases, and as the court places the question on the ground of a confirmation of the leases on the special circumstances, and also provides for the recognition by the lessees, of the rights of •the lessors every four years, I shall, on these considerations, concur in the decree.