The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1844-02-15


The next question = b considered is tina. surprising
stricon in the trust renders i trust not fit to be exc
cued it be reformed?" That Is the question Can
be altered IN such way nn can is DC c"nd;t;%n
at ALL An heir might enter on his possession OF the de
wise the trust fails 1t Is Fart Of the rule BY
so that the object Of the trust could DO changed lc
galy, that would not exclude the Court from taking
action in the matter and transferring the object Of the
trust that be the nature of the condition But this
mode Of executing the trust laid down the devise Is
ton Of the trust itself and il Il were condition as part
of the trust which not why condition subsequent
Here then nTIss Two questions Ss;. may not man 80
day. indicate his intention that his donation shall
take effect independently oft And secondly could Mr.
use in his will produce such result But there
other grounds which 10 impossible to get rid of that
part Of his plan as he intended the never car
~ out the doctrine Of ey pres as i called to such extra
laid down and insisted ION in his will and insert another
system in lieu thereof This mode Of the execution of
will by substituting object Of trust for another Is
called the doctrine Of cy pres.+
But who so strike this restriction in the WILL and
supply something else The courts of can't
exercise that for thew have not and had the
power either by legislative enacments by common
law and the statutes of Elizabeth were force
there. The Trustees can't execute that power. 1.-THE
change to be made 1t can only be changed by court
of equity This scheme mode Of education your no.
nors viii perceive is Of the provisions Of tie viii in
exacts implicit obedience whilst with compliance with
other parts he leaves uncertain to this point precise
peremptory positive part of the constitution of
the trust Whilst he does not persist that Greek or La
tin either should should not be taught he does insist
that ministers Of h Or religious os shall not be
ing of Greek and Latin. he does not recommend it
he leaves much to the discretion Of the trustees
But in these points have mentioned and on which
have argued in relation to religion, he leaves
nothing discretionary = he gives them no discro-
creon at all And only So he calls them restric-
tons ere he read the clause in the will) This then
is not condition which forms parts Of the trust but in
No one can regret more than do the exravagant lengths
to which the Courts of Equity in England have carried
the doctrine Of y prsSt j. in the taking devise from
and giving it to trust of different religious creed
And will read to your honors cases in connection
Appleton In this Sir VIM. Grant gave his opinion
and comments with much on the mode in which
the Court in carrying the doctrine of cy pres The
decision here was, that the deed bang void, is no
gift and the property Of course must revert 10 tho
but that the authorities ,hom n'mbsr are TO the con-
rary The Court declare that il there be no doubt
of the testator's charitable intention that there.
FORE 1--WE to make him charitable in our own way;'
and that it is the settled law that charitable heluess
another Chief Justice wo in tho case Of the Attor
ney General against Lady Downiug puts even more
strongly where the property given no 10 accon
the intention Of the devsorcessae cansG cessaet
.6tcus. Twill not describe it uIherthc case is well
chariyprocceds the general principle pcty in the
tesa.or with view to his future state; ond the Court
thought here that kind Of charity would ennbal his
memory as well nno.ber and entitled the testator to
the same rewards in Heaven and. therefore made him
the cause, and taking it in the Important connection in
which IT has with these decisions, would refer
vour. honors TO the case q Mcckridgie against
shackwell Lord Eldon, in giving his opinion here,
goes through all these decisions struggling with them,
cndeavorng to get rid Of them; md with all his known
for the settled law Of the land and the repeated
decisions of the courts he yet aer vany trying 10 get
rid of these lameus their ahsurSiy and concludes by
saying that they must be left for redress higher power
Now have no hesitation in SAYING that for all the pur-
poses Of Equity and Justice, this Court is hat higher
It proper for us to revise the decisions Of the
English Courts this question Decisions which o! Ia
mentwhich all hope to remedicd And thrust there
FORE that those absurd decisions will be revised and will
be reversed by this higher power.
repeat therefore. that If you take away that which
evidently his principal and only inducement to make
of the devise 81 m % and
can't go without it, II all must aas all ought to
FAIL It's provisions being contrary both to the law and
the public policy of Pennsy lvauia it is imperative This
Court can't protect it charity And the whole trust
must fail With these remarks leave the whole of this
now come to that part the case which relates to tho
law Of Pennsylvania the subject of charities And
make this distinct proposition at the outset Was there
tho time of the to sators death any thing ia the law Of
pennsy ana which would prevent this bspusst fros
descending TO the heirs and constitute it charity.
Mr. Webster then referred the Court to tho great Irish
by the title Of the incorporated society ngsnst Rich
ards with the opinion and remarks of Sir Edward Sug
connection tnereWih
power oihppealng to the Court Of Chancery in
of charitable before the statute of 4h Eliza
beth. He quoted from LIST Drury Warren, p 26s That
there and inherent power in the Courts OF Equ
ty in England by s9th and AID Elizabeth to deal with
charities.
shall now put in your honors in reply to the remarks
If counsel the other side made in answer to General
Ioness argument-the decisions in the PenDsy vania
Courts favor view of the On this head let me
that deny, however in those decisions (Which
Ill favor vew) only single dctum, which Is this
The dicum which says that the Pennsylvania law not
statute 4sd Elizabeth yet establishes principles
ensve than those laws and goes farther than that statute
We tcke therefore those decisions excepting only to this
| iictnm.
There is another dctum to be excepted to--in the
Of Morris against the Bishop Of Durham-that it
would not be good law in Pennsylvania-the decision did
not come within the 43d Elizabeth, and yet that the
courts could establish il as charity The learned coun
are wholly independent of chancery law So in the
Methodist Society against Rvngton that religious
society is confined to the State law and within the statute
| Of 1881.
Mr. Webster then took up the point that the Pennsylva
MIA law does not stand the statutes Of 1891 And also
stood the statutes of Elizabeth they not being in force
Pennsylvania He then referred TO the notes made by
following references-a wheaton p. s7-ll wheaton p
s6l Of Shelby against Guys ID Peters, So case oil
agsns Sars chew S0 ana u "hsa'0n
Mr. wEnsrER-Thus in fonr cases which gave the
Pennsylvania Law this subject. take the whole OF
hem with the exception of single dctum. Whereas,
the other SIDE they object entirely to two Of them and
Ienounce all the reasons assigned for those decisions
So the great body and Of decisions this head
in favor Of this case the view take Of IT, In the
arguments the other side it contonded in regard
70 the of Charities it existed before the seth
I'D of Elizabeth that great many charitable requests
made and enforced before those statutes pass
cd But ask is there any case, and if any how many
in which the Court of Charcery has proceeded 20 esta
hsh indefinite charity in perpetuyl Is there in those
whole voumnous OF that have been produced
single instance that indefinite charity of perpetual
,uraton shall be made asuect for the consideration
especial favor Of courts OF equity? This excludes those
where Corporations are trusts. The Tempars the Hos
pitalers that have been citedwere corporate But III,
point contended for IL that Indefinite and uncertain chart
ties exist without the aid IF corporations refer
70 the of Edwards against Pjnckney. And what
contend for is TINT of all these could be
tended 70 perpetnity And that hy the comnon law o.
| England none Of these trusts could be maintained.
Another important point 10 which wish to call the A.
cntion of your honor Is TINT the rights OF the PARTIES in
issue before the Court became fixed Ut the time Of the
death Of the Testator That Is If at the time the death
o Mr. rard the property descended to these heirs at law
aud of kin smhse1uen law nnssed hy the State