
    WILLIAMS vs. PEARSON,
    [BILL IN EQUITY AGAINST EXECUTOR AND GUARDIAN FOR ACCOUNT AND SETTLEMENT OE ESTATE.]
    1. Jurisdiction of equity ovei' charities. — The (doctrine is settled in this State, that the chancery court has jurisdiction, by"virtue of its original, common-law powers, without claiming prerogative powers, and without the aid of the statute of 43d Elizabeth, to uphold bequests to charitable uses, where an ascertainable abject, recognised as charity, is designated by the tesoator in general or collective terms, although no trustee is appointed by him, or the trustee appointed is incapable of taking the legal interest.
    2, Bequests to charity held valid. — An executory bequest of money to “ Pilgrims’ Best Association,’’ “to be loaned out by commissioners to be appointed by said association, and the iiffcerest to be equally divided annually between the ministers having oharge of ehurches in said associationand asimilar bequest to “ Vienna mg Cochran’s Mill Beat,” to he received and loaned out by three commissioners elected by the people of the beats, the interest to be collected annually, “and applied by said commissioners to the education and tuition of all the pauper and poor children of said beats whose parents are not able to support them,” — are both valid, and will be upheld in equity.
    
      3. Bequest to daughter “and begotten heir or heirs of her body," wilk executory bequest over to charity. — W here the testator, after giving several specific legacies, by the sixth clause of his •will, bequeathed “tho residue’ of his property, which was described as consisting of a tract of land and certain slaves, td his daughter, “and the begotten heir or heirs of her body then directed “the balance” of bis estate to be Sold, and the proceeds of sale, after payment of his debts, to go to bis daughter ; and, by the seventh clause, directed that, “if she should die without a surviving heir dr heirs of her body,” “all her property” should be sold, “and all her estate be equally divided into two parts,” which he bequeathed to valid charities, — held, that the executory bequests included the corpus of all the property given to the daughter by the sixth clause, hut did not include the rents, income, and profits of the estate, remaining Undisposed of at her death, since they vested in the daughter absolutely.
    Appeal from the Chancery Court of Pickens.
    Heard before the Hon. James B. Clark.
    The bill in this case Was filed, on the 28th April, i860, by Mrs. Dicey Williams, against Joel E. Pearson, as the guardian of Sally Ann Taylor, deceased, and as the executor of Zealous Taylor, deceased, for an account and settlement of the estate which went into his hands in his double capacity of executor and guardian, Zealous Taylor died in February, 1851, having executed and published his last Will and testament, which Was dated the Sth'July, 1848, and duly admitted to probate after his death. By the first clause of his will, the testator directed his debts to be paid5 the second, third, fourth, and fifth clauses gave several specific legacies; and the sixth and seventh clauses, the construction and effect of which involve the material questions of the case, were in the following words:
    
      “Itent sixth. And the residue of my property, both’ real and personal, Í will and bequeath to my beloved daughter, Sally Ann Taylor, and the begotten heir or heirs of her body 5 consisting of between six and seven hundred acres of land, adjoining the tract on which I live, besides the dower in Matthew Taylor’s land, together with thirteen negroes, namely,” (specifying their names,) “together with their increase. It is my will, that the balance of my estate be sold, on a credit of twelve months, and the proceeds, after paying my just debts, to go to my daughter, Sally Ann Taylor, except my two best beds, bedsteads, and furniture, and all my made bed-covers, her mother’s saddle, all my trunks and hooks, which are to be exempt from sale, and to be well taken care of for my daughter.
    “ Item seventh. I do hereby constitute and appoint my friends and neighbors, Vincent Bunting and Joel E. Pearson, the executors of this my last will and testament; and it is my will, that they make no return of my estate until it is ready for final settlement, and that the inventory, account of sales, and the account-current of my estate, bo returned at the same time (final settlement), so that all the papers may he .found together; and it is my will, that my executors settle .my estate as soon as the nature of the case will admit of; and, on final settlement.of my estate by my executors with .the .court, my will is, that my friend Vincent Bunting take-the guardianship of my daughter, Sally Ann Taylor, and'tfie ©are of her property; and that her guardian and Joel E. Pearson, and their wives, take charge of my daughter; and my will is, that she remain at Joel E. Pearson’s, and be.sent to school with bis daughters, and he treated as his own daughters, and for him to be paid whatever is right for her hoard, clothing, and medical aids that Mrs, Pearson take one of her beds and half her bedclothes, and Mrs. Bunting take the other half,” &c. ■“ It is my will for her to have a good education as her property will admit of; and that her guardian hire out her negroes, publicly or privately, as he may see proper, and -for .them not to be hired out on the west side of the river, nor in-the prairies any where, as I want good care taken of them, and want them well clothed, shod, and good bed-clothes pro*, •cured for them, Also, J want my lands, orchards, and .grove taken good care of, as I want all the above to be beneficial to my daughter when she is in a situation to receive them. And if she should die without a surviving heir or heirs of her body, my will is, that all her property .shall be sold, on a credit of one,, two, and three years installments, and all her .estate to be equally divided into two parts; one half of said estate I loan to Pilgrim's Best Association, to be received by said association, and loaned out by commissioners to be appointed by said association, at eight per cent, per annum, and said interest to be equally divided annually between the ministers having charge of churches in said association; and the other half I loan to Vienna and Cochran's Mill Beat; and my will is, that three commissioners be elected by a general vote of the two beats, to receive the money, by their giving good and sufficient security, in double the amount which they may receive, to the judge of the county court of Pickens county; and said commissioners to loan out said money,' at eight per cent, interest, and the said interest to be collected annually, and applied by said1 commissioners to the education' and tuition of all the pauper and poor children of said beats, whose parents are not able to support themi”1
    Both of the executors named in the will qualified, and took on themselves the execution of the trust;; but, on the 30th June, 1853, Bunting- made a final settlement, resigned his office of executor, and renounced' the guardianship of Sally Ann Taylor; and at the same tittle Pearsott made a partial settlement, gave a new bond- and qualified as sole executor, and also qualified'' as guardian of Sally Ann Taylor. In October, 1857, Sally Ann Taylor died, intestate, unmarried, and under the age of twenty-one years. On the 11th January, 1858, Pearson made a final settlement of his guardianship of her estate; and on the 24th December, 1859, letters of administration on her estate were granted to the complainant. The bill sought an account and settlement of all the defendant’s acts as executor and guardian; insisted that the settlement of his guardianship was void, because no administrator of the ward’s ■estate had been appointed; and that the bequests to charitable uses, contained in the seventh clause of the testator’s will, were invalid.
    The chancellor held, on demurrer, that the executory bequests were valid, and included all the property devised and bequeathed to Sally Ann Taylor, with the rents, income, and profits thereof, remaining undisposed of at her death ; and, consequently, that the complainant had'no interest which she could assert by bill. He therefore dismissed the bill, and his decree is now assigned as error.
    E. W. Peck, for the appellant.
    Turner Reavis, contra.
    
   R. W. WALKER, J.

Tt is not denied that, according to the law of charitable uses, as administered in the English court of chancery, the executory bequests contained in the seventh item of this will would be upheld. But it is insisted, that the authority of the English court of chancery, in regard to donations to charitable uses, so far as it differs from the power exercised in other cases of trust, is either derived from the statute of 43d Elizabeth, ch. 4, known as the ‘statute of charitable uses,’ or belongs to the chancellor as a branch of the prerogative power of the king; and that apart from the prerogative power with which the chancellor is clothed, and independently of the statute of Elizabeth, the jurisdiction of the court of chancery, over bequests and trusts for charity, is precisely the same as over bequests and trusts for other lawful purposes, and must be exercised upon the same principles, and by the same rules. It is further insisted, that the statute of 43d Elizabeth is not in force here; and that this being so, and inasmuch as our chancery courts are not clothed with the prerogatives of the crown, and exercise no other than judicial power, it follows, that the English law of charitable uses, so far as it differs from the law governing bequests and trusts for other lawful purposes, cannot be recognized by our courts. If these propositions can be maintained, it results, that the validity of these bequests must depend upon the principles applicable to bequests and trusts in general, and not upon the peculiar doctrines which prevail in England in regard to charitable donations, as distinguished from gifts for other purposes; and consequently, if. the bequests would have been void, had their purposes not been, charitable, the fact that their purposes are charitable does not make them valid.

New questions have been the subject of more laborious investigation, or given rise to greater conflict of opinion, than that which relates to the origin of the peculiar jurisdiction of equity in respect to charities. Many eminent jurists sustain the view which has been pressed upon us with so much ability by the counsel for the appellant, and trace the English law of charitable uses, so far as it differs from the law of trusts in general, either to the statute of, the 43d Elizabeth, or to the prerogative power of the king, which the chancellor exercises as the personal representa» tive. of the crown, Such seems to'have been the opinion of Lord Loughborough, — Attorney-General v. Bowyer, 3 Vesey, Jr. 714, 726, Chief-Justice Marshal held substantially the same doctrine, in the ease of the Baptist Association v. Hart’s Ex’rs, 4 Wheat. 1. So, likewise, has Chief-Justice Taney, in the case of Fontain v. Ravenel, 17 How. (U. S.) 391, et seq.; and in a repent case, in an opinion marked by great ability .and research,,a majority of the court of appeals of New York came -to the-same conclusion, and held that, in New York, where the court of chancery is not endowed with any portion -of the prerogative power, and where the statute of Elizabeth is not in force, the jurisdiction possessed by the chancery courts over charitable trusts is limited to that which is exercised by the court of chancery dn Englaud-over trusts in general. — Owens v. Missionary Society, 4 Kernan, pp. 380, 388, 403, 405, See, also, Gallego v. Attorney-General, 3 Leigh, 450 ; Literary Fund v. Dawson, 10 Leigh, 147; Janey v. Lalane, 4 ib. 327; Dashiel v. Attorney-General, 5 H. &. G.; Green v. Allen, 6 Hump. 170; Moore v. Moore, 4 Dana, 357.

On ¡the other hand, another class of jurists maintain, thatfthe English law of charitable uses does not derive its origin -from the statute of the 43d Elizabeth, nor depend upon it; but that at a remote period in English judicial history it was engrafted upon the common law, its general majdms being derived from the civil law; that the statute of Elizabeth introduced no new principle, but was designed to afford a new and. less dilatory mode of establishing charitable donations, which were understood to be valid by the laws antecedently in force; and that, independently of the statute of Elizabeth, and apart from the royal prerogative, there is an inherent j urisdiction in equity to establish and enforce devises and grants to charities, which, but for the charitable feature, would be .void.

Thus, in the case of the Attorney-General v. Skinners' Company, 2 Russ. Ch. 407 (420), Lord Eldon intimated, that, independent of, and antecedent .to the statute of Elizabeth, there was in the court of .chancery a jurisdiction “to render effective an imperfect conveyance for charitable purposes.” Lord Eedesdale, in a case in the house of lords, declared, that the statute of Elizabeth “only created a new jurisdiction — .it created no new law.” — Attorney-General v. Mayor, &c., 1 Bligh, N. S., 312, 347-8. And Lord-Chancellor Sugden, after a thorough review and analysis of the cases, came to the conclusion, that there was an .inherent jurisdiction in chancery, existing before, at, and .after the time of the statute of Elizabeth, to sustain devises to .charitable uses, which were void at law. — Incorporated Society v. Richards, 1 Dr. & W. 258. Chancellor Kent says: “The fact, I think, may be considered indisputable, that charitable uses are lawful uses by the common law, and that the statute of Elizabeth was only an ancillary remedy, now supplied by chancery as the rightful original tribunal for such trusts.” — 2 Kent’s Comm., note (b), p. 288.

Our investigation of the cases has satisfied us, that the current of American authorities is in favor of the doctrine, that trusts for charitable uses are favored by courts of equity, and that, independent of the statute of Elizabeth, and of the prerogative power, there is an original and inherent jurisdiction in those courts to sustain, on account of their charitable purposes, trusts -which, but for the charitable feature, would be held void. — Executors of Burr v. Smith, 7 Vermont R. 241; Vidal v. Girard's Ex'rs, 2 How. (U. S.) 127; Magill v. Brown, Brightly’s R. 350; Kursken v. Lu theran Churches, 1 Saudf. Ch. 439; Shotwell v. Mott, 2 Sandf. Ch. 46; Wright v. Trustees, &c., 1 Hoffm. Ch. 202; Potter v. Chapin, 6 Paige, 639; Dutch Church v. Mott, 7 Paige, 79-80; Orphans' Asylum v. McCartee, 9 Cowen, 437, 470, 476-7; Williams v. Williams, 4 Selden, 525; Whitman v. Lex, 17 S. & R. 88; Mayor v. Elliott, 3 Rawle, 170; Zimmerman v. Anders, 6 W. & S. 218; McCord v. Ochiltree, 8 Blackf. 21; Dixon v. Montgomery, 1 Swan, 348, 366; Attorney-General v. Jolly, 1 Rich. Eq. 99; Gibson v. McCall, 1 Rich. L. 174; Beall v. Ex'r of Fox, 4 Geo. 404, 427; Going v. Emery, 16 Pick. 107; Urmey's Ex'rs v. Wooden, 1 Ohio St. R. 160.

In Carter v. Balfour, (9 Ala. 814,) this court, after a careful examination of the subject, gave its sanction to the doctrine just stated. In that case, the bequests, which were to certain unincorporated charitable societies, were plainly void," upon the principles applicable to ordinary bequests and trusts. — Appendix, 3 Peters, 488 ; Williams v. Williams, 4 Selden, 540 ; McCord v. Ochiltree, 8 Blackf. 16; State v. Gerard, 2 Ired. Eq. 218; Hill on Trustees, 131. But it was:.held, that, being charitable bequests, a court of equity could give them effect by virtue of its common-law and j udicial powers, without claim to any prerogative power, and without invoking the aid of the statute of 43d Elizabeth. A decision, thus deliberately made, upon a question involved in so much doubt and obscurity, and upon-which so much may be said on both sides, we are not disposed to disturb. Without intimating, therefore, what our opinion would be if uncontrolled by any former adjudication, we content ourselves with saying, that it must be regarded as the settled law of this State, that charitable donations are so far exempted from the rules applicable to other trusts, that it is not necessary to their validity that there should be a grantee or devisee capable of taking or bolding by law, or that there should be a cestui que trust so definitely described as to enable a court of equity to execute the trust upon its ordinary principles. Such we understand to be the doctrine to be deduced from the case of Carter v. Balfour, supra, and the other authorities above cited.

It will b'e perceived, that we do not recognize the whole of the English doctrine of charities as in force here. A considerable portion of it is not adapted to our political condition, and has been rejected by our courts. In England, whenever anything is -given to charity, and no charity appointed,- — that is to say, where the testator declares his intention in favor of eharity indefinitely, without any specification of objects.; or wh-ere the'charity which is appointed is superstitious, the power of appointment vests in the king as pater patriae, and is exercised by him through the chancellor. — Willard’s Eq. Jur. 580. So, likewise, when a definite object of charity is specified, which fails, or becomes impracticable, so that the fund cannot be applied-to'the charity intended by the testator, the court will, under the doctrine of cypres, apply it to some kindred or analogous object of charity. The power exercised by the English court of chancery, in the two classes oí cases just mentioned, is not judicial power, and does not belong to our courts. — Carter v. Balfour, 19 Ala. 814; Moore v. Moore, 4 Dana, 366-7; Williams v. Williams, 4 Selden, 548 ; Hill on Trustees, m. p. 128, note, But, the cypres doctrine and the prerogative power to carry out indefinite charities being excepted, the law of charities, as administered in the English court of chancery, is substantially our law.

Accordingly, when an ascertainable object, recognized as charity, is designated by the donor, in general or collective terms, — as the poor of a given county or parish, or the clergymen of a particular denomination having charge of churches within a specified district, the gift or legacy will foe'upheld by a court of equity. Nor is it any objection to the validity of such a gift, that the donor has appointed no trustee, or that the trustee appointed is incapable of taking the legal interest. If the object of a charitable donation can be ascertained, the want of a trustee will be supplied by appointment by a court of equity.— Washburn v. Sewell, 9 Metc. 280 ; Winslow v. Cumming, 3 Cushing, 365 ; Moore v. Moore, 4 Dana, 358-9 ; Attorney General v. Jolly, 1 Rich. Eq. 109; 2 Story’s Eq. §§ 976, 1059 ; Willard’s Eq. 424, 580.

In both of the bequests under consideration, the objects of the testator’s bounty are so designated that they may be readily found. -It is plainly to be inferred from the language used, that “ Pilgrim's Best Association" is a society which extends over a particular section of country; and the fund is “to be equally divided annually between the ministers having charge of churches in said association In the other bequest, the beneficiaries named are “all the pauper and poor children” of two designated beats, “whose parents are not able to support them”. When this will was executed, a beat in this State was a well-known legal subdivision of a county, corresponding to the townships or towns in some other States. It is clear, upon the principles above laid down, and also according to the adjudged cases, that, in both instances, tbe testator’s designation of tbe objects of bis bounty is sufficiently specific, and that the bequests are valid. — Whitman v. Lex, 17 S. & R. 88 ; Pickering v. Shotwell, 10 Barr, 23; Zimmerman v. Anders, 6 W. & S. 208 ; State, v. Gerard, 2 Ired. Eq, 210 ; McCord v. Ochiltree, 8 Blackf. 15; Shotwell v. Mott, 2 Sandf. Ch. 46; Williams v. Williams, 4 Selden; Dickson v. Montgomery, 1 Swan, 348 ; Urmey v. Wooden, 1 Ohio St. R. 160 ; Attorney-General v. Clark, 1 Ambler, 422; West v. Shuttleworth, 2 M. & K. 684; Attorney-General v. Gladstone, 13 Sim. 7; Attorney- General v. Comber, 2 Sim. & Stu. 93.

Whether they could have been sustained upon the general doctrine of trusts, had tbe objects not been charitable, is a question we need not consider. See, however, authorities cited supra as to the invalidity of the bequests in Garter v. Balfour, considered apart from the rules peculiar to charities.

These bequests being ascertained tobe valid, tbe next question is, what do they include. And here we concur with the chancellor, ip holding that they embrace all the property which, by the 6th item of the will, is given to the daughter — not only the land and negroes, but that which the testator designates as “the balance of his estate”, and directs to be sold, the proceeds, after the payment of his debts, to go to his daughter. But the chancellor held, that these chai’itable bequests embraced not only the corf us of the property devised to the daughter, but also all the rents, profits, and income thereof, left undisposed of by her at her death. In this we think there was error. The estate which the daughter took under the 6th item of the will, was a fee, determinable on her dying without a surviving heir or heirs of her body. — Chrystee v. Phyfe, 19 N. Y. 345 (357-9). In any event, therefore, her «estate would endure for her life, and she had at least all the rights of a tenant for life. Hence, she was entitled to the rents, income, and profits of the estate, in absolute right, with full power to use and dispose of them as she might see fit. — 2 Bla. Com., m. p. 122; 4 Kent, 73.

As the daughter had the absolute right to the rents, income, and profits, and could use and dispose of them to any extent she might desire, without liability to account therefor, there could be no limitation over of them by way of executory bequest, — Allen v. White, 16 Ala. 186 ; Flinn v. Davis, 18 Ala. 162; Weathers v. Patterson, 30 Ala. 404; McRee v. Means, 34 Ala. 368. If, therefore, we can suppose that it was the intention of the testator to include in the executory bequests the rents, income, and profits of his daughter’s estate, remaining undisposed of at her death, these bequests over must, to that extent, be held void, and the rents and profits left undisposed of by the daughter belong to her estate, and go to her personal representative.

Decree reversed, and cause remanded.

Stone, J., not sitting.  