
    ELIZABETH C. OULD ET AL. vs. WASHINGTON HOSPITAL FOR FOUNDLINGS.
    At Law.
    No. 11375.
    I. A will devised fourteen lots of ground in the city of Washington in trust “ for a site for the erection of a Hospital for Foundlings, to be built and erected by any association, society, or institution that may hereafter be incorporated by act of Congress, as well for such hospital, and upon such incorporation upon further trust to grant and. convey said truBt-estate to the institution so incorporated, which conveyance shall be absolute and in fee: Provided, nevertheless, that such corporation shall be approved by my said trustees, or the survivors of them, or their successors in the trust; and if not so approved, then upon further trust to hold the said lots for the same purpose until a corporation shall be so created by act of Congress, and shall meet the approval of said trustees, &e., to whom full discretion is given in this behalf; and upon such approval in trust, to convey as aforesaid,” &c. Held, that the devise was not void under the rule in regard to perpetuities, which has no application in case of a trust for charitable purposes, nor is the devise void on account of the uncertainty of its objects.
    II. The jurisdiction of the court over charitable trusts rests on ancient and well-settled grounds, independently of the statutes of 13 Elizabeth.
    HI. As the trustees are invested with absolute discretion, if even Congress should fail to create a corporation, or one acceptable to the trustees, or if the grant to the future corporation should be void, the trustees would hold the property themselves for the same purpose, and might erect the hospital.
    IV. As the taxes, charges, and assessments, are directed to be paid by the executors out of the residue of the estate, it was contemplated that the corporation should be created during their life-time, and before the final settlement of the estate. The conveyance was therefore to be made within the period prescribed by the rule of perpetuities.
    STATEMENT OF THE CASE.
    This is an action of ejectment brought to recover possession of several lots or pieces of ground in the city of Washington, which the plaintiffs claim as heirs at law of Joshua Peirce, deceased, late of the District of Columbia.
    
      The defendant claims title to said lots by virtue of a devise contained in the fourteenth item of the last will and testament of the said Peirce, set out in the statement.
    The case was heard in the first instance at the general term upon the following agreed statement of facts:
    It is admitted by the defendant, the Washington Hospital for Foundlings, in the above-entitled cause—
    1st. That Joshua Peirce, late of the District of Columbia, died on the 11th day of April, A. D. 1869.
    2d. That the said Joshua Peirce died seized of the real estate set forth and described in the plaintiffs’ declaration.
    3d. That the plaintiffs, Elizabeth C. Ould, Elizabeth C. Beardsley, Samuel Simonton, Abner P. Simonton, David S. Simonton, John E. Simonton, Hannah P. Jackson, Eliza F. Tibbets, Abner C. P. Shoemaker, and Peirce Shoemaker, are the heirs at law and the only heirs at law of the said Joshua Peirce, deceased.
    It is admitted on the part of the plaintiffs—
    1st. That Joshua Peirce, on the 15th day of October, A. D. 1867, duly executed his last will and testament, commencing as follows:
    “ I, Joshua Peirce, of the county of Washington, District of Columbia, do make this my last will and testament, in manner and form following.”
    That following this is a revocation of other wills, then provision for payment of debts, then several specific devises, and then the fourteenth item, of which the following is a copy:
    
      “ 14th. I give, devise, and bequeath all those fourteen certain lots or pieces of ground, part of square numbered two hundred and seven, situated between R and S streets north, andl4th and 15th streets west, in the said city of Washington, in the District of Columbia; which lots are numbered from number twenty-four to number thirty-seven inclusive, on a certain plan of subdivision of the said square registered and recorded iu the surveyor’s office for the said city, in liber W. F., folio 211, and are situate on the east side of the said 15th street, at the distance of one hundred and sixty feet northward from the north side of the said R street north, containing together, in front on the said 15th street west, one hundred and thirty feet, and in depth eastward, between parallel lines, two hundred and ninety-four feet and a half inch, more or less, to Johnson avenue, (including in the said depth a twenty-feet-wide alley, laid out through the middle of the said lots,) to my friends William M. Shuster and William H. Claggett, both of the said city of Washington, and the survivor of them, and the heirs, executors, and administrators and assigns of such survivor, in' trust, nevertheless, and to, for, and upon the uses, intents, and purposes following, that is to say: In trust to hold the said fourteen lots of ground, with the appurtenances, as and for a site for the erection of a hospital for foundlings to be built and erected by any association, society, or institution that may hereafter be incorporated by an act of Congress as and for such hospital, and upon such incorporation upon further trust to grant and convey the said lots of ground and trust-estate to the corporation or institution so incorporated for the said purpose of the erection of a hospital, which conveyance shall be absolute and in fee: Provided, nevertheless, that such corporation shall be approved by my said trustees, or the survivor of them, or their successors in the trust; and if not so approved, then upon further trust to hold the said lots and trust-estate for the same purpose until a corporation shall be so created by act of Congress which shall meet the approval of the said trustees, or the survivor or successors of them, to whom full discretion is given in this behalf; and upon such approval, in trust to convey as aforesaid; and I recommend to my said trustees to select an institution which shall not be under the control of any one religious sect or persuasion; and until such conveyance, I direct the taxes, charges, and assessments, and all necessary expense of, for, and upon the said lots, and every one of them, to be paid by my executors, as they shall from time to time accrue and become due and payable, out of the residue of my estate.”
    That following this is a devise of the “ rest, residue, and remainder” of the testator’s estate, “ real and personal, including his estate called Linnasan Hill,” in trust to trustees for the use of the testator’s wife’s nephew, in tail, with a devise over.
    2d. That on the 22d day of June, 1864, the said will was fully proved aud admitted to probate in the orphans’ court of the District of Columbia.
    3d. That on the 22d day of April, A. D. 1870, Congress passed an “ act for incorporating a hospital for foundlings in the city of Washington,” for the terms of which act reference is had to 16 United States Statutes at Large, page 92, and that on the fourth day of April, A. D. 1872, said Shuster and Claggett, trustees, conveyed the property described in the declaration to the defendant, the Washington Hospital for Foundlings, so incorporated in conformity with the directions of said will, the property being the same as described in the above devise.
    It is hereby stipulated that, on the facts above admitted? this case may be certified to the supreme court of the District of Columbia, sitting in general term, for hearing in the first instance; and that if the said court shall hold that the said devise, in the said fourteenth item of the said will, is void, judgment shall be entered for the plaintiffs; but if the said court shall hold that the said devise is valid, judgment shall be entered for the defendant, and that neither party shall be considered hereby to have waived his right of appeal to the Supreme Court of the United States.
    
      O. D. Barrett, for plaintiff, maintained—
    That the said devise is void, as tending to create a perpetuity.
    That it is void for uncertainty. That being void, the said lots vest in the plaintiffs as the heirs at law of the testator.
    It is an executory devise. Greenleaf’s Cruise on Real Property, vol. 3, title 38, chap. 17, sec. 1, and part of sec. 2; 2 Redfield on Wills, chap. 2, sec. 17, par. 7; Williams on Real Property, 290, 291; Powell on Devises, 250, 287; Nightingale vs. Burrell, 15 Pick., 104.
    The devise is void, if by any possibility it might create a perpetuity. 1 Jar., 233; 2 Redfield, 571; Williams on Real Property, 294; Greenleaf’s Cruise on Real Property, tit. 38, c. 17, sec. 23; Everitt vs. Everitt, 29 Barber, 118; Stephens et al. vs. Evans, administratrix, 30 Ind., 51; Sears vs. Russell, 6 Gray, p. 98; Phelps vs. Pond, 23 N. Y., 69; Rose vs. 
      Rose, decided in 1863, in the N. Y. court of appeals, 4 Kent, 272, n.; 1 Drury and Warren, 245 — (4 Kent, 272, n.;) Barnes vs. Barnes, 3 Cranch, C. C. 269; Brattle Square Church vs. Grant, 3 Gray, 142; 4 Kent., 267; 1 Jarman on Wills, 221; 4 Cruise Dig., tit. 32, c. 24, sec. 18; Nightingale vs. Burrell, 15 Pickering, 111; Cadel vs. Palmer, 1 Clark and Finley, 372; 2 Atkinson on Conveyancing, (2d ed.,) 264; Bacon vs. Proctor, Turner & Russell, 31; Mackworth vs. Hingman, 2 Kean, 659; Ker vs. Lord Dungannon, 1 Drury and Warren, 509; Commissioners of Charitable Donations vs. Baroness de Clifford, 1 Drury and Warren, 245 to 253; Lewis on Perpetuities, 169; Duke of Norfolk vs. Howard, 1 Vern., 164; Welch vs. Poster, 12 Mass., 97.
    The limit of time beyond which an executory devise cannot arise, counting from the death of the testator, is a life or lives in existence, and twenty-one years and nine months. But in case no lives are mentioned by the testator, then the time is fixed at twenty-one years. Williams on Eeal Estate, 301; 1 Jarman on Wills, 230.
    We thus find that the devise in question is void, if, at the death of the testator, a possibility existed that it might not vest in the prescribed corporation within twenty-one years, or, at farthest, a life or lives in being, and twenty-one years.
    Was there at that time such a possibility ?
    The devise is to trustees in fee defeasible on approval, which the said trustees, their survivor or his successors, might possibly make of a corporation which Congress might possibly create.
    There is no limit to the time within which the corporation must be created by Congress; there is no limit to the time within which the corporation shall be approved after its creation by Congress, if ever created; and, finally, there is no limit to the time within which the possibly-approved possible corporation shall make provisions so that any foundling child could by possibility receive any of the benefits of the trust.
    The devise is void for uncertainty.
    The law of this District is that no devise which cannot be maintained on general principles of equity can be maintained by reason of its being a charity. A long and unbroken series of decisions in Maryland and the District of Columbia show this to be the law. Lingan et al. vs. Carroll, 3 Harris and Johnson, 333. decided in 1793; Dashiell et al. vs. The Attorney-General, 5 Harris and Johnson, 398; Dashiell vs. The Attorney-General ex rel. the trustees of Hillsborough School, 6 Harris and Johnson, 1; Wilderman vs. Baltimore, 8 Maryland, 551; Board of Missions of the Presbyterian Church vs. White's Administrators, tried in the Circuit Court of the United States for Maryland, 4 American Law Register, p. 531; Meade and others vs. Beale and Latimer, Campbell, 359.
    These decisions, all uniform, extending through seventy-five years, determine what the law of Maryland and the District of Columbia is, if courts and time can determine anything; and, although a totally different construction of the common law applicable to this case may prevail in every other State, we cannot, under the decisions of the United States Supreme Court, go to the courts of other States for an interpretation of the law of real estate upon a point which for generations has been fixed and established by our own courts.
    It has become a maxim in that court, in cases involving the law of real estate, always to follow the decisions of the courts of the State in which the cases arise, whenever those decisions for a long series of years have been uniform. Polk’s Lessee vs. Wendall et al., 9 Cranch, 98; Shipp vs. Miller's Heirs, 2 Wheat., 325; Thatcher vs. Powell, 6 Wheat., 127; Gardner vs. Collins, 2 Pet., 85; Jackson vs. Chew, 12 Wh., 153; Blight’s Lessee vs. Rochester, 7 Wheat., 550; Daly vs. James, 8 Wheat., 535; Suydam vs. Williamson, 24 How., 427; Beauregard vs. City of New Orleans, 18 How., 497.
    The devise being void, the lots in question vest in the plaintiffs, as heirs at law of the testator, and not in the residuary devisee. 1 Jar., 588; Gravenor vs. Hallum, Ambler, 643; Baker vs. Hall, 12 Ves., 496; Gibbs vs. Rumsey, 2 Ves. and Beames, 294; Jones vs. Mitchell, 1 Simons and Stuart, 290; Collins vs. Wakeman, 2 Ves., jr., 683; Arnold vs. Chapman, 1 Vesey’s Cas., 108; Tregonwell vs. Sydenham, 3 Dow., 194; Lingan vs. Carroll, 3 Harris and McHenry, 333; Barnes vs. Barnes, 3 Cranch, C. C., 269; Van Kleeck vs. Dutch Church of New York, 20 Wendall, 457.
    
      
      Walter S. Cox and J. M. Johnson, for defendants, contra.
   Mr. Justice Wylie

delivered the opiuion of the court :

This is an action of ejectment, brought by the plaintiffs, as heirs at law of Joshua Pierce, deceased, to recover certain lots of land in the city of Washington, now in the possession of the defendant, and claimed by it under the will of Mr. Pierce, and certified hither from the circuit court to be heard in the first instance.

The testator died on the 11th of April, 1S69, having made his will, the 14th section of which is in the following terms, (See statement for same.)

The heirs of the testator claim that the devise of these fourteen lots is void, because, first, it attempts to create a perpetuity; and, second, that the objects of the devise are uncertain.

At the date of testator’s death the “Washington Hospital for Foundlings” was not in existence, but has been incorporated since that event, by act of Congress, and received a deed for the property in controversy from the trustees named in the devise. But it is claimed by the plaintiffs that, no time having been limited by the will within which the act of incorporation should be passed by Congress, there was a possibility that Congress might never pass the required act; or, if it should do so, the passage of the law might be deferred to so remote a future as to be beyond the limit of any life or lives in being and twenty-one years afterward.

But the rule in regard to perpetuities, we think, has no application where the immediate gift is a trust for charitable purposes, although the time for its application may be indefinite.

In Sinnett vs. Herbert, L. R., 7 Ch., 240, the lord chancellor said: “As to the difficulty from the possible remoteness of the time when her intention can be carried into effect, I think the case of the Attorney-General vs. Bishop of Chester, 1 Bro. Ch., 444, is a complete answer. There was a sum of £1,000 left for a good charitable purpose, namely, for the purpose of establishing a bishop in the King’s dominions in America. There was no bishop in America. The sum, being only £1,000, was not very likely in itself to be sufficient to establish a bishop. Nothing could be more remote or less likely to happen within a reasonable period than the appropriation of that fund to that particular object. But the court did not direct any application of the fund according to the cy pres doctrine. It would not allow the fund to be dealt with immediately, but directed the fund to remain in hand for a time, with liberty to apply, because it was not known whether any bishop would be established.”

A case in its principal features much like the present was that of Chamberlain vs. Broshett, L. R., 8 Ch., 206. The testatrix, after stating that she did not .confidently feel that her family would not spend her money on the vanities of the world, Sc., gave personal estate to trustees, to make certain annual payments for charitable purposes, and then directed that, when and so soon as land should be given by any other person for that purpose, two alms-houses should be built, and the surplus appropriated in making allowances to the inmates ; and the.gift was held to be valid, as it was an immediate gift for charitable purposes, although the time of its application was indefinite.

In this case the rule was laid down by the lord chancellor in the following language: “If there was an immediate gift of the whole residue for charitable uses, the authorities mentioned during the argument — Attorney-General vs. Bishop of Chester, 1 Bro. Ch., 444; Hensharo vs. Atkinson, 3 Madd, 306, and Sinnett vs. Herbert, L. R., 7 Ch., 232, to which may be added Attorney-General vs. Craven, 21 Beav., 392 — prove that such gift was valid, and that there was no resulting trust for the next kin of the testatrix, although the particular application of the fund directed by the will would not of necessity take effect within any assignable limit of time, and could never take effect at all except on the occurrence of events in their nature contingent and uncertain. On the other hand, if the gift in trust for charity is itself conditional upon a future and uncertain event, it is subject, in our judgment, to the same rules and principles as any other estate depending for its coming into existence upon a condition precedent. If the condition is never fulfilled the estate never arises. If it is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetuities, the gift fails ab inUio.,,

The doctrine declared by these authorities is this, as we understand it, that where there is a gift for charity it will be carried into effect by the courts unless upon its face, and certainly, it is opposed to some rule of law. If the gift be upon condition precedent and that condition have not taken place, the bequest is void. If it plainly and in terms is in violation of the rule against perpetuities, it is also void. But if, at the testator’s death, there only be a possibility of the happening of a contingency by which the gift may be postponed beyond the period prescribed in the rule against perpetuities, but that contingency in fact has not happeued, and from events which have already taken ifface cannot happen, the gift will be supported. Indeed, one branch of the rule against perpetuities has never had application to bequests in trust for charitable objects. Blackstone says “ by perpetuities (or the settlement of an interest which shall go in the succession prescribed, without any power of alienation) estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established.” Book 2,p. 173. And yet for purposes of charity trusts may be created which may forever retire the given property from the power of alienation and the uses of commerce. That was the case with Girard’s will, 2 How., 127, and with McMicken’s will, 24 How., 465. In this last case the devise was to the city of Cincinnati in trust forever for the purpose of building, establishing, and maintaining, as far as practicable, two colleges for the education of boys and girls. None of the property devised or which the city might at any time purchase for the benefit of the colleges could at any time be sold. Such a trust in other cases would have been in violation of the rule against perpetuities, but as to the charity it was valid. In 2 Story’s Eq., sec. 1167, the author says: “ Again, although in carrying into execution a bequest to an individual, the mode in which the legacy is to take effect must be of the substance of the legacy; yet where the legacy is to a charity, the court will consider charity as the substance, and in such case, and in such cases only, if the mode pointed out fail, it will provide another mode by which the charity may take effect, but by which no other than charitable legacies can take. A still stronger case is that if the testator has expressed an absolute intention to give a legacy to charitable purposes, but has left uncertain or to some future act the mode by which it is to be carried into effect, there the court of chancery, if no mode is pointed out, will, of itself, supply the defect and enforce the charity.”

In respect to gifts for charity, therefore, there is no place in a court of equity for the application of the rule as to perpetuities unless it appear on the face of the will itself that under no circumstances was it the intention of the testator that his bequest should operate till after the expiration of the time prescribed by the rule.

But it may be said that these doctrines are those only of the English chancery; that they depend upon the statute of the 43d Eliz., which has never been in force in this District, or in the State of Maryland, of which this District was at one time a part.

It is quite true that the doctiue of cy pres, which was greatly enlarged and developed in England under that statute, has never been followed here, except to the extent of carrying into effect the intent of the testator. That doctrine, however, so far as it depends upon the statute of Elizabeth alone, is confined to cases in which no trust is interposed, or where there is no person in esse capable of taking, or where the charity is of an indefinite nature. In such cases, the doctrine is the offspring of the statute of Elizabeth, and is not a doctrine to be applied in our courts. But where there is a trust, and the charity is defined, there is no need for any aid from the statute of Elizabeth; for the jurisdiction of the court vests on ancient and well-settled grounds independently of the statute. (See 2 Story Eq., section 1162.)

There probably never would have been any difficulty in the courts of this country in regard to questions of this character but for the decision of the Supreme Court of the United States in the case of the Baptist Association vs. Hart’s Executors, 4 Wheat, 1. The correctness of that decision very soon began to be doubted. It was commented upon, without approval, though not with any distinct dissent, by the same court in the case of Inglis vs. Trustees of Sailors’ Snug Harbor, 3 Peters, 113. In this case the bequest was sustained, though to an unincorporated society, and for purposes of a general character. In Porter vs. Chapin, 6 Paige’s Ch., 619, Ch. Walworth says: “Although some doubt was thrown upon the question of charitable donations for the benefit of a community or body not incorporated, so as to be capable of taking and conveying the legal title to the property in that case, I believe it is generally admitted that the decision was wrong.” This opinion of Chancellor Walworth is quoted with approbation by the supreme court of Massachusetts, in Bartlett vs. Nye, 4 Met., 879. The decision was evidently contrary also to the opinion of Chancellor Kent, as may be seen in the second volume of his Commentaries, 285. Since then, the doctrines of that case have been distinctly called in question by the Supreme Court of the United States, in Vidal vs. Girard’s Executors, 2 How., 127, and in Perin vs. Carey, 24 How., 465, and the conclusion reached that charitable uses may be enforced in chancery under its general jurisdiction, independently of the statute of Elizabeth. The first of these two cases was from Pennsylvania, and the other from Ohio. In neither of these States was the statute of Elizabeth in force, although in both its principles are substantially administered as derived from the common law.

We have been referred to the case of Bashiell vs. The Attorney-General, 5 H. and J., 398, as authority showing that the statute of Elizabeth was never in force in Maryland, and consequently not in this District. That proposition may be admitted, and yet leave the jurisdiction of this court over the subject of charitable uses as complete and ample as that reported by the Supreme Court in the cases already referred to. The decision in that case was doubtless correct. It could not have been otherwise except under the cy pres jurisdiction which no one pretends to exist in this court, except so far as allowed by the common law. The trust in that case was, that the trustees should appropriate the fund to the feeding, clothing, and educating the poor children belonging to a named congregation, not such as the trustees might themselves select, and without any power or right given the trustees to discriminate in the objects of the charity. It is distinctly suggestecl by the court that the decision would have been differ • ent had that right and power been vested in the trustees, for then the subjects of the bounty would have been ascertained and certain.

It is the only case on the subject which we have found in the Maryland reports, and having been decided since this District became independent of that State, and in regard to-a question as to the general jurisdiction of chancery and not upon the construction of a local statute, is entitled to no greater respect in this District than the decision of that court upon any other subject; that is, it is entitled to respectful consideration, but is not obligatory.

We conclude, therefore, that the devise in question in the present case is void neither on the ground of perpetuity nor for the uncertainty of its object.

But another aspect of the case is presented on the construction to be given to the language of the devise. The trustees are, in the first place, to hold the property as and for a site for the erection of a hospital for foundlings, to be built and erected by any association, society, or institution that may hereafter be incorporated by an act of Congress as and for such hospital, and upon such incorporation upon further trust to grant and convey the said lots of ground and trust-estate to the corporation or institution so incorporated, &c. But there is a proviso to this devise which it is important to examine. The. testator foresaw that the society so incorporated might not be acceptable to the trustees. In that event he declares his wish to be that the trustees should themselves hold the property for the same purpose, that is, as a site for a foundling hospital, until a corporation was created by Congress which should meet their approval; and he gives the trustees absolute discretion on this subject. If, therefore, Congress should fail to create a corporation for the purpose, or one acceptable to the trustees, or if the grant to the future corporation should be void on the ground that no time was specified within which it was to take effect, the only consequence would be that the trustees themselves would hold the property for the same purpose, and might proceed to erect the hospital. In no event was- there to be - a resulting trust for the heirs.

The proviso contains this farther direction, that the taxes,. charges, and assessments which might be levied upon the property previous to the making of the conveyance to the future corporation, should all be paid by his executors out of the residue of the estate. The corporation contemplated was,, therefore, to be created during the life-time of those executors, and before the final settlement of the estate. It was not in the testator’s power to incumber the residue of his estate with these charges beyond the period prescribed by the rule of perpetuities. The conveyance was to be made, therefore, within that limit, and it could be made only after the corporation was created.

Hence, it is seen from an exact interpretation of this devise that it was made in favor of a corporation which should be created by Congress within the period permitted by the law for the vesting of an executory devise in the ordinary case of an individual.

We are of opinion, therefore, that the devise in question is valid, and that judgment be for the defendant under the-stipulation filed in the case.  