
    Dickson et als. vs. Montgomery et als.
    
    OHANCEkY» Jurisdiction* Charities, The duties and powers which, in England, belong to the prerogative of the Crown, in reference to charities, and which are vested in the Lord Chancellor by the King’s warrant under his sign manual, do not exist in oor chancery court.
    Same. Same. No powers, other than those, which in England were exercised by the Chancellor, by virtue of his extraordinary jurisdiction, exist in our chancery court.
    Same. Same, Trusts for Charitable uses. Trusts for charitable uses are favored by courts of equity, aud will be supported in the exercise of the extraordinary jurisdiction of the Chancellor, where the trust would fail for uncertainty, were it not a charity.
    Charities. When gifts for charitable uses will be held valid. If the fund be vested in a trustee, to be managed and controlled by him for a lawful, definite, charitable use, the gift will be valid though there he no person in being, capable of suing for the enforcement of the trust.
    Same. Statute of 43 Elizabeth, chap. 4. Such provisions of the Statute of 43 Elizabeth, chap. 4, as were the law before the enactment of that statute, and which are applicable to our institutions, are in force here as part of our common law, notwithstanding the statute is not in force.
    On the 16th November, 1849, Christopher Strong, made and published his last will and testament, which included this clause:
    “Item 6th. — I do hereby give and bequeath to the Treasurer of the Clarke and Erskine College, situated at due west corner, Abbeville District, South Caroliua, and to his successors in office, in trust forever, the sum of seventy-four hundred dollars. Two thousand dollars of said sum is to be held in trust by said Treasurer, and his successors in office, for the endowment of said Clarke and Erskine College, to be paid over by said Treasurer, so soon after the same may come to his hands as it may be required for the advancement of said College; and twenty-two hundred dollars of said sum is to be held in trust by said Treasurer, and his successors in office, for the benefit of Home Missions, which is to remain a perpetual fund, the interest of which is to be annually applied under the direction of the Associate Reformed Synod of the South for the benefit of Home Missions; and twenty-two hundred dollars of said fund is to be held in like manner, and the interest thereon is to be applied in like manner, by said Associate Reformed Synod of the South, for the benefit of Foreign Missions; and the remaining one thousand dollars is to be held by said Treasurer, and his successors in office, in like manner, and is to constitute a perpetual fund, and the interest arising thereon is to be annually applied under the directions of the Associate Reformed Synod of the South, for the education of indigent young men, who are preparing for the Gospel Ministry in the Associate Reformed Church. Said Synod is to have the discretion of applying said interest annually, or adding it to the principal, as they may deem best, but it is to be applied to the above and no other purpose. The above Missionary fund may be applied to Missionary labors, or for the publication, purchase or distribution of books, or in any other way that said Synod may direct for Missionary purposes. And 1 desire that the discretionary powers given to the Associate Reformed Synod of the South in applying the interest on said sums of money, shall not be so construed, either in law or equity, so to defeat my object, and that no want of form or technicality shall affect this donation of seventy-four hundred dollars, but that the same shall be applied according to my meaning and intention.”
    Subsequently to the making of this will. Strong died, and the will having been duly proved, the executors named therein were proceeding to its execution, when this bill was filed in the chancery court at Charlotte, by the complainants as heirs and legatees, for the purpose of invalidating the foregoing clause of the will, and alledging that the funds therein bequeathed should pass under the residuary clause in the will. At the December term, 1851, Chancellor Briev decreed that the legacy intended to be bequeathed by the above clause was void, from which decree John M. Young, the Treasurer of Clarke and Ersldne College, appealed.
    Shackleford, Robb and J. E. Bailey, for the complainants,
    the latter of whom argued:
    1st. That the jurisdiction exercised by the courts of England to enforce and establish bequests to charities, is derived from the prerogative rights of the King and the Statute of Elizabeth, is part of the chancellor’s ordinary and statutory jurisdiction, and is not in force here.
    2nd. That the bequest in question is not a good declaration of a trust, to be enforced by the chancellor in virtue of his general jurisdiction over trusts.
    3rd. That this case falls within the rule settled by this court in the case of Greenys. Allen, that where no trustee is appointed the bequest fails.
    The first and second points will be considered together.
    The King in England as Parens Patriae, asserted a prerogative right over the subject of charities, and can, through his officers, call upon the courts of justice to see that justice be done to those of his subjects who are incapable of taking care of themselves. L’d Redesdale 1 Bligh 312, cited by Story Justice, 2 Howard 195.
    The jurisdiction before the Statute of Elizabeth was passed, cannot be referred to the jurisdiction in cases of trusts.
    To constitute a valid trust, there must be sufficient words to raise it; a definite subject, and a certain or ascertained object. Story’s Eq. Jur. 964.
    A bequest to charity is wanting in that certainty as to the object which is required in the case of trusts. If the object be ascertained, then it is not a charity.
    Trusts are always enforced upon application of the parties interested, — charities upon application of the Attorney General or the King. As to this jurisdiction being prerogative, see Story Eq. 1148-9.
    In England the Attorney General, as representative of the King, is a necessary party to recover a legacy to a charity, unless it be to the officer of some established institution as part of its general funds; 1 Simon & Stuart, 41; and is a necessary party, unless the trusts upon which the legacy is given, are identical with those upon which the general funds of the corporation are held. 9 Simon, 610; cited Danl. Ch. Pract. 174.
    If this be a trust, who can ask that it be enforced? No person can claim an interest in the fund.
    In Morrell vs. Lawson, 4 Yiner, 500, (cited by Jones, chancellor, 9 Cowen, 482), Lord Chancellor Parker stated the rule to be, that where a bill is filed to establish a charity given by will to persons uncertain, and incapable of suing, the suit must be in the name of the Attorney General ex necessitate m, because there are no certain persons entitled, capable of suing in their own names.
    In North Carolina, where the Statute of Elizabeth is in force, it has been decided, that a legacy to foreign missions, and the poor saints, nine hundred dollars, to be applied to missions, is indefinite, uncertain and void.
    Ruffin, Judge, says: “To sustain such a gift, the trust must be valid, and to make it so, must be in favor of such persons, natural or artificial, as can legally take. 4 Iredell Eq., 29. Again, he says: “So far as the attempt goes to support this legacy on the ground, that it is to be applied to the objects which the executor might think proper, it must fail; because, if the executor were dishonest enough to keep the money in his own pocket, there is no person that can institute an action to call for any part of the sum unless it be the next of kin.'” “A bequest for religious charity must like others, be to some definite purpose, and to some body or association of persons having a legal existence with capacity to take," page 30. “Wherever the aid of the court is invoked, there must appear some right in the person who makes the application, or for whose benefit it is sought to support a gift made by will.
    
      Baptist Association vs. Harts ex'rs, 4 Wheaton; bequest to chaiity held void. Why? Because the Statute of Elizabeth was not in force in Virginia, and the bequest could not be supported as a trust. It is a general rule, that a trust shall never fail for want of a trustee. If the gift be by will, and the testator fail to appoint a trustee, or if the trustee die in the life time of testator, the court will appoint one.
    Although much is said by Judge Marshall, in the case just cited, about the want of a trustee, yet the case could not, according to the well settled equity rule just stated, have been decided on that ground. See 5 Har. & John., 392; cited 5 Hump., 231.
    In England courts will enforce trusts in bequest to charities, when they will not to persons. Because the jurisdiction is prerogative and not equitable, and for this reason we must not be misled by declarations of English judges, who speak of trusts in connection with charities.
    In England, what is the practice? If no trustee is appointed, the King by sign manual directs how the charity shall be applied. If a trustee and no charter, or in other words no act of incorporation, the master settles the disposition of the fund upon a reference, as the English books express it — settles a plan. Story’s Eq., 1149. Now, if it was a valid trust, the court could judicially settle the rights of parties, and ascertain their interests.
    What is the language used in speaking of wills of this nature? It is a will to establish a charity.
    
    What is a charity? Bequests to charitable objects which are within the letter or spirit of the Statute of Elizabeth. Story’s Eq., 1153-58.
    The Statute of Elizabeth is not in force here. How will we define a charity? What objects shall be charitable — what superstitious?
    But it is said, that although this statute is not in force here, yet recent investigations show that the jurisdiction existed before the statute. But it .is not shown that this was part of the extraordinary jurisdiction of the Chancellor. Who can define the extent of that jurisdiction? When was it exercised and when refused? The cases produced, give but a meagre statement of facts, and do not show the extent of relief granted. Most of them were in the reign of Elizabeth, and in behalf of corporations.
    
    The cases before the statute were few in number — did not embody a system — courts of law did not take notice of the equitable title, and however vague the trusts, enforced the legal title. Spence, 441. The statute was passed to settle the law, to establish charities, and give the chancellors power to enforce them, and now embodies the whole English law. The common law jurisdiction (if it existed) has been unknown since the passage of the statute, is obsolete in England, was not introduced by our ancestors into this country, and has never been enforced.
    The case of Green vs. Allen, Hump., sustains the proposition submitted.
    2nd. The bequest is to the Treasurer of Clarke and Erskine College, and his successors in office, to remain a perpetual fund, &c.
    
      The testator did not intend that the person who happened to be treasurer should take and hold in his individual capacity, but intended to give to the office, as is apparent from the language used, and any person hereafter appointed to the office, has the same right to hold the fund, that the present treasurer possesses.
    3 Peters, 246-7, Story, Judge, admits, that a devise to a person, describing him by his office, may be good. That is, that the person may take as an individual, if such be the intention of testator, but it is manifest the testator did not intend to devise to the parties in the particular case in their natural capacity, because the language is to them and their successors in office, so that none of the devisees are to take any certain estate to themselves, but only while they continue in office. Page 148, he says, upon what ground can the court exclude the successors from the administration of the charity, when the testator has designed they shall take — and he accordingly decided, and with him Judge Marshall agreed, that the bequest in that case was void, because no trustee was appointed, capable of taking.
    The facts here are similar. The Treasurer of Clarke and Erskine College is not a corporation sole. The testator designs he shall take in his official, not his individual capacity— he cannot take in the former. See Baptist Association vs. Hart.
    
    A conveyance to the officer of a corporation, held not to be the corporation. Story’s Eq. 1151.
    But it is said the Associate Reformed Synod of the South is incorporated, and can take this bequest.
    The act of the legislature only incorporates certain trustees to hold property for the use of the Synod. The distinction between the Synod and the trustees, is recognised by the very act of incorporation. The testator did not give the property to the trustees, or intend that it should be held or controlled by them. Besides the act of incorporation is subsequent in point of time to the date of the will, and the latter speaks in this case from its date, and not from the death of the testator. Jarman on Wills.
    Wm. ThompsoN, for the Treasurer of Clarke and Erskine College.
    1. The great rule in the construction of wills is, that the intention of the testator, ascertained from the particular words used, from the context and from the general scope and purpose of the instrument, is to prevail and have effect. Williams vs. Williams, 10 Yerg. 20, 29 ; 3 Peters. R. 113, Inglis vs. Trustees of the Sailors Snug Harbor.
    
    To this rule all others, except those founded upon public policy, are not only subordinate, but auxiliary. Henry vs. Hagan, 4 Hum. 210; Thompson vs. McKissick, 3 Hum. 631, 536.
    Under the authority of the above rule, the court will carry the will into effect if they can see a general intention consistent with the rules of law, even if the particular mode and manner pointed out by the testator should be impracticable. 3 Peters 117, 118. Bartlett vs. King, 12 Mass. Rep. 543. And again, a devise is never construed absolutely void except from necessity. Powell on Devises, 421. Finly vs. Riddle, 3 Binn Rep. 162.
    2. The bequest of the seventy four hundred dollars is a trust so knit into the residuary fund, that the complainants, who are the residuary legatees, will not be allowed to gainsay it. 3 Peters. Rep. 119,152; 2 Ves. Jun. 335. Vidal et al. vs. Girard’s Executors, 2 Howard’s Rep. 188. Sanly vs. The Clock Makers’ Company, 1 Bro. Ch. Rep. 81.
    3. The devise to “ the treasurer of Clarke and Erskine College ” is valid, though it is contended by complainants that the Treasurer was not a corporation sole, nor was there any suck corporation as the “ Treasurer of Clarke and Erskine College.”
    In 7th Vermont Rep. 241, Executors of Burr vs. Smith and others, the bequest was to the “ Treasurer” for the time being of the American Bible Society; the Chancellor sustained the bequest, see this case noticed 5 Humph. Rep. 227.
    In 4 Dana 354, a devise to the “ county court of Harrison county,” was held good.
    A devise to the Chancellor of the State of New York, and to the Recorder of the City of New York, &c., (naming several other persons by their official description,) was held good. 3 Peters. Rep. 99. .
    4. There is not such vagueness, nor uncertainty, as to the trustee or the cestui que trust, as will invalidate the bequest. On the first part of the proposition, see authorities above cited ; on the second part, it may be remarked, that if the bequests were more definite in relation to the beneficiaries, it would cease to be properly a charity, and become a specific legacy.
    5. Will our law, the American law, look upon such bequests with a propitious, or with a jealous eye ?
    Mr. Currin, whose great fame, it is true, was that of an orator, and not of a judge, but who, whether on the bench or at the bar, ever gave utterance to sentiments liberal and elevated, when master of the rolls in delivering his judgment in Merry vs. Power, where an effort was made to invalidate the bequest in the will of Mary Power to the Rev. John Power, a Roman Catholic Bishop, and others, in trust for chai’itable uses, said, “ But I am called on to interfere, it being a foolish bequest to superstitious and these Popish uses ! I have looked into these bequests. I find the object of them is to provide shelter and comfortable support for poor, helpless families, and clothes and food and instruction for poor orphan children. Would to God I could see more frequent instances of such bequests! Beautiful in the sight of God must it be— beautiful in the sight of men ought it to be — to see the dying Christian so employed.”
    6. In the United States, where by the constitution and laws, entire freedom in religion, in politics and^in the disposaUof property by will, is guaranteed to the citizen, the evils growing out of devises in mortmain and to superstitious uses, need not be apprehended. Those imaginary or real evils Were attempted in England, to be remedied by a multiplicity of statutes, which, however, we believe it is acknowledged had no application out of the kingdom, at least, have no force in this country.
    7. In answer to the position assumed by counsel for complainants, that this bequest is for vague and indefinite purposes, and to an irresponsible body, we reply, that at this enlightened day, when by the arts and sciences, the whole civilized world is brought as it were together, and the acts and doings of each is made to pass under the review of every other portion; when in all religions and missionary enterprises, whether for ameliorating the condition of our own country or disseminating the light of the gospel in foreign lands; every be-stower of alms or charity, whether it be of his poverty, the two mites of the widow, or of his abundance, the liberal donation now before the court, feels perfectly assured that his bounty will be faithfully appropriated to the purposes of the trust, so plainly pointed out as here, by the depositaries to whom he shall have confided it.
    8. The decree below goes on the ground that the bequest to the Treasurer is void because of his incompetency to take the same — because of the vague and indefinite purposes of the gift, and because of the uncertainty of the cestui que trust.
    
    $2,000 is given for endowment of the college.
    $2,200 for Foreign Missions.
    $2,200 for Domestic Missions.
    
      $1,000 for education of poor young men for the gospel ministry in the Associate Reformed Church, of which testator was a member and an elder. All this is to be administered annually under the direction of the synod of the Associate Reformed Church, except that portion to the college, which is to be paid over forthwith.
    We contend, that here is certainty as to the sum for each object, a certain and well defined object for each sum. And a responsible incorporated body to direct the administration of all the items of the charity, except the first, which is directed to be paid over to the college (an incorporated body,) as soon as it might be handed to their Treasurer.
    9. It is contended that the court of chancery in England, by means of its extaordinary jurisdiction, exercised time immemorially, executed trusts like those of this will, and that it is immaterial whether the statute of 43 Elizabeth be considered as in force in this country or not. In Green et als. vs. Allen el al., 5 Humph. Rep. 170, Judges Turley and White differed in opinion on this point. The former denying it ever was in force in this State, the latter contending that it is to be regarded as of obligatory force with us. We refer to the reasoning (and authorities cited,) of those able judges, and submit the point of difference to the court; merely reiterating the remark that we deem it unimportant for a correct and satisfactory decision in this cause, whether that statute be considered as in force in Tennessee or not. We have thought, however, with the Court of Appeals of Kentucky, as given in 4 Dana 354, that the statute of Elizabeth at least, in spirit, was in force in the States and gave tone to the decisions in case of charities. Lord Redesdalc said that the statute of 43 Elizabeth created no new law, it only created a new jurisdiction. See 2 How. Rep. page 195, (the opinion of Judge Story, in which ho refers to Lord Redesdalc opinion.)
    10. We rely upon the opinion in the case of Vidal cl. al. vs. 
      Girard’s Executors, 2 vol. How. Rep. 127, as establishing that the court of chancery in England by means of its extraordinary jurisdiction exercised its power in enforcing trusts for charitable purposes, long before the 43 Elizabeth; and that the exercise of such jurisdiction was of frequent occurrence, and, moreover, we rely upon it for settling beyond controversy, if the decision in that case is to be regarded as containing sound doctrine, that the bequest called in question by the bill of complainants, is valid and will be enforced.
    It is the unanimous decision of the supreme court of the United States, the opinion delivered by Judge Story; from the immense amount involved the most eminent counsel were retained, and the great research and ability of the bench and the bar seem to have been equally conspicuous. As uniformity of decision on charities throughout the Union is desirable from international, as well as other considerations, to the above decision, great regard it is presumed will be had.
    We also rely upon the very able and learned opinion of both Judges Turley and White in Green et als. vs. Allen et als., 5 Humph. Rep. 170, to show that though they differed in regard to that particular case, and the law governing it, and though a majority of the court decided, against the opinion of Judge White, the bequest to be void; yet that Judge Turley in elaborating his opinion, concurred with Judge White so far as to satisfy the mind, that whilst he vacated that bequest, he would not have hesitated to establish this.
    11. The institution of learning called in the will “ Clarke and Erskine College,” and described as “ situated at due west corner Abbeville District, South Carolina,” was incorporated on 20th December, 1837, by the Legislature of South Carolina, under the name and style of “Clarke and Erskine Seminary.” The proofis, thatit, soon after its creation, assumed the name by which it is designated in the will, and that ever since 1844, it has had a collegiate form, and has ever since beenknown and called by the name of “Clarke and Erskine College.” In Williams on-Executors, 2 vol. page 736, it is said, “ The general rule upon this subject (speaking of mistakes in names,) is that where the name or description of a legatee is erroneous, and where there is no reasonable doubt as to the person who was intended to be named or described, the mistake will not disappoint the bequest. The error may be rectified and the true intention of the testator ascertained in two ways : 1. By the context of the will. 2. In certain cases, by parol proof.” Here the context and the parol, as also the second proof, point unmistakeably to the true object of the testator’s bounty.
    12. The “Associate Reformed Synod of the South,” to which the testator confided the administration of his charity, was incorporated on the 19th of December, 1849, which was before the death of the testator, when the will took effect. The proof is, that he died in the latter part of the year 1850.
    13. And lastly, it has been argued that a bequest for “ missions ” is too vague and indefinite, it not appearing what kind of missions was meant, whether diplomatic, religious, or what.
    From the facts and circumstances surrounding the aged and venerable Christian, who made this donation, for pious purposes, which it is in proof he had long cherished, and in relation to which, he to the last evinced a deep solicitude that his charity should not fail; we rest assured the objection cannot prevail.
   Green, J.,

delivered the opinion of the court.

The facts disclosed in this record, raise the question, to what extent gifts for charitable uses can be supported in this State. And in order to a clear conception of the grounds of our judgment, it may not be amiss to state, in the outset, the principles which we consider to be settled by this court, as applicable to this subject.

The argument for the complainants assumes, that this court has held, that the court of chancery in this State, has no jurisdiction for trusts for charitable uses, unless the gift be to a party in esse, capable of sueing for the enforcement of the trust. We do not understand the case of Green vs. Allen, 5 Humph. Rep., 170, to hold this doctrine.

In that case the court maintains, that the court of chancery, in this State can exercise no other jurisdiction than that which was exercised by the Lord Chancellor in England, as an equity Judge, denominated his extraordinary jurisdiction. The common law jurisdiction, the statutory jurisdiction, and the specially delegated jurisdiction, of the Lord Chancellor, do not belong to our Chancellors. This proposition, is also maintained by this court, in the case of Oakley vs. Long, 10 Humph. R., 254. As a necessary consequence of this limitation of the jurisdiction of our court of chancery, it follows, that in all cases, where in England the jurisdiction of the Chancellor is exercised as the delegate of the crown, our court of chancery can afford no relief, but that our court of chancery has jurisdiction, in all cases, where in England, the Lord Chancellor in the exercise of his extraordinary jurisdiction, could have afforded relief.

This proposition is distinctly stated by Turley, Judge, in the case of Green vs. Allen, before referred to. In that case, at page 204, (5 Humph. R.,) after reviewing the state of the law on this subject in England, the Judge says, “If the charity be created either by devise or deed, it must be in favor of a. person having sufficient capacity to take, as devisee or donee, or if it be not to such person, it must be definite in its object, .and lawful in its creation, and to be executed and regulated by trustees, before a court of chancery can, by virtue of its extraordinary jurisdiction, interfere in its execution.”

In the same case, page 206, the court in defining what part of the law of England on this subject is in force in Tennessee, say, “We are, therefore, of opinion, that an attempt by a court of chancery, in this State, to exercise jurisdiction over the subject of charities, beyond what would have been warranted by the extraordinary power of the Chancellor in England, is not justified by any of our statutes creating them, nor by the practice, nor by usage.”

These paragraphs show, that the court in the case of Green vs. Allen, did not intend to restrict the exercise of jurisdiction by our chancery court, except, so far, as the want of “machinery,” for a more enlarged exercise of it, might necessarily have that effect.

Charities have been peculiarly favored by the courts, from the earliest period of the history of our law. Donations of this sort are usually made, for the advancement of education, morality and religion, and for the relief of the indigent, helpless and disabled; objects which must meet with favor in every civilized and Christian community. Hence, devises and gifts to charitable uses, have been sustained, in cases, where, if the trusts had been for other objeets, they would have been void for uncertainty.

In Story’s Eq. Jurisp., § 1187, it is said, “It is clear, upon principle, that the court of chancery, merely in virtue of its general jurisdiction over trusls, independently of the special jurisdiction conferred by the statute of 43d Elizabeth, chap. 4, must in many cases, have a right to enforce the due performance of charitable bequests; for (as has been well observed,) the jurisdiction of courts of equity, with respect to charitable bequests, is derived from the general authority to carry into execution the trusts of a will or other instrum ent, according to the intention expressed in that will or instrument. We shall presently see, that this is strictly true in all cases, where the charity is definite in its objects, is lawful, and is to be executed and regulated by trustees, who are specially appointed for the purpose.” Lord Eldon said, after a full review of the cases, that where there is a general indefinite purpose of charity, not fixing itself upon any particular object, the disposition and administration of it are in the King, by his sign manual. But where the gift is to trustees, with general objects, or with some particular objects pointed out, then the court of chancery will take upon itself the administration of the charity. Story’s Eq. Jur., § 1190; Moggridge vs. Thackwell, 7 Vesey, 36, 75, 85, 86.

And in Story’s Eq. Jurisp., § 1191, it is said, “Where a charity is definite in its objects, and lawful in its creation, and it is to be executed and regulated by trustees, whether they are private individuals or corporations, there the administration properly belongs to such trustees; and the King as parens patrim, has no general authority to regulate or control the administration of the funds. In all such cases, however, if there be any abuse, or misuse of the funds by such trustees, the court of chancery will interpose, at the instance of the Attorney General, or the parties in interest, to correct such abuse, or misuse of the funds. But in such cases, the interposition of the court is properly referable to its general jurisdiction, as a court of equity, to prevent abuses of trust, and not to any original right to direct the management of a charity, or the conduct of the trustees. Indeed, if the trustees of the charity should grossly abuse their trust, a court of equity may go the length of taking it away from them, and commit the administration of the charity to other hands. But this is no more than the court will do, in proper cases, for any gross abuse of other trusts.”

The foregoing quotations may suffice to show, that the settled rule in England, is, that if trustees are interposed to execute and regulate the charity, and the objects are definite, and its creation lawful, the administration of the charity properly belongs to the trustees, and not to the King; and that the court of chancery, in virtue of the extraordinary jurisdiction, will interpose to correct any abuse of the trust. And it will also appear that in the case of Green vs. Allen, Judge Turley distinctly recognises the existence of this jurisdiction in our courts of chancery, to the full extent that it existed in the court of chancery in England, as a court of equity.

But it is argued for the complainants, that as in England nothing can be a charity which is not made such by the statute, 43d Elizabeth, chap., 4, and as that statute is not in force in this State, we cannot determine what gifts are, and what are no.t charities, and that the law of charities existing before that statute, was merged in its provisions, or became obsolete, and that there can be no charity independently of the statute, therefore, there can be no charity in this State, because the statute is not in full force here.

There are several satisfactory answers at hand, to this argument. In the first place, although the statute of 43d Eliz., chap. 4, is not in force here, it is not rendered inoperative by any repealing statute of our own, (as is the case in Virginia,) so that no aid can be derived from its provisions, but to use the language of Judge Turley, in Green vs. Allen, “it is notin 1 orce because we have not the machinery necessary to carry it into execution.” Or in the language of the Supreme Court of Pennsylvania, “It is so considered, rather on account of the inapplicability of its regulations as to the modes of proceeding, than in reference to its conservative provisions.” Witman vs Lex, 17 Serg. & Rawle, 88; Zimmerman vs. Andres, (January term, 1844.)

Lord Rcdesdale, a great Judge in equity said, “We are re-fered to the statute of Elizabeth with respect to. charitable uses, as creating a new law upon the subject of charitable uses. That statute only created a new jurisdiction; iterated n ^ new law.” Attorney General vs. Mayor Dublin, 1 Bligh R., 312, 347.

If the statute of Elizabeth created no new law, but only a new jurisdiction, its conservative provisions having been the law before the enactment of the statute, the consequence is, they became a part of the common law of this State. When, therefore, we disregard the statute as being inoperative here, we do so, only because we have "not the machinery by which it was carried into execution. The regulations in reference to the new jurisdiction created by the statute, were inapplicable here, and hence, those regulations were not in force, but its provisions, that were law before its enactment, continue to be law, not because of the statute, but being unre-pealed, they do not cease to be law because they were embodied in a statute, which we cannot carry into effect, for want of the necessary machinery.

Again, if the provisions of this statute were law before its enactment, and were of equitable cognizance, the creation of a new jurisdiction, could not oust the jurisdiction of the court of chancery, as it existed before the statute, there being no provision in the statute, taking away that jurisdiction. Such new jurisdiction would be concurrent with the jurisdiction of the chancery court.

In suggesting, on the authority of Lord Redesdale, that the provisions of this statute, are law in this State, because they were law before the statute, it is not intended to intimate that the extravagant construction, which has been put upon its provisions in England, is to be regarded as law here; nor is it intended to weaken the case of Green vs. Allen, or to indicate that our courts of chancery can take cognizance of any trust for charitable uses, unless it be of such character as the court of chancery in England, in the exercise of its extraordinary jurisdiction, would have interposed to protect. But the object has been to show, that the law of charities, where a trust is created, for lawful objects, definite in its character, and vested in trustees, so that it is properly cognizable in our own courts of chancery, has continued in existence from the earliest period in the history of our law, and is still in force.

It is said, we will be involved in inextricable difficulties, if we attempt to uphold gifts to charitable uses. That we have no rule to determine what would be a superstitious use, and what a valid charity.

It is certainly true, that gifts which in England are held to be invalid, as being made to superstitious uses, would not be such in this country, but it does not follow that all gifts professing to be for charity would be valid. If the object were illegal or in opposition to the policy of the State, of course the courts would refuse to lead their aid for such object; and it will be no more difficult to determine in such caso, whether the act be against law or public policy, than in many other cases, where the validity of the contract comes into question, as being illegal, or in opposition to public policy.

Having premised thus much, the following propositions may be stated, as being established.

1st. The duties and powers which in England belong to the prerogatives of the crown, in reference to idiots, lunatics and charities, and which are vested in the Lord Chancellor, by the King’s warrant, under his sign manual, do not exist in our chancery courts.

2d. No powers other than those, which in England, were exercised by the Chancellor, by virtue of his extraordinary jurisdiction, exist in our chancery court.

3d. Trusts for charitable uses, are favored by courts of equity, and will be supported in the exercise of the extraordinary jurisdiction of the chancellor in cases, where the trust would fail for uncertainty, were it not a charity.

4th. If the fund be vested in a trustee, to be managed and controlled by him, for a lawful, definite, charitable use, the gift will be valid, though there be no person in being capable of sueing for the enforcement of the trust.

5th. Such provisions of the statute of 43d Elizabeth, chap. 4, as were the law before the enactment of that statute, and which are applicable to our institutions, are in force here, as part of our common law, notwithstanding the statute is not in force.

It remains only to apply these principles to the legacies of this will. The bequest is, of seventy-four hundred dollars to the Treasurer of Clarke and Erskine College, and his successors in office in trust.

1st. Two thousand dollars, for the endowment of the College.

2d. Twenty-two hundred, for the benefit of Home Missions.

3d. Twenty-two hundred dollars, for the benefit of Foreign Missions, and

4th. One thousand dollars, for the education of indigent young men, who are preparing for the gospel ministry, in the Associate Reformed Church.

The sums given for home missions; for foreign missions; and for the education of indigent young men for the ministry; are to be held, and the interest applied to these objects under the direction of the Associate Reformed Synod of the South.

In relation to the gift for the endowment of Clarke and Ers-kine College, no serious objection is interposed by the counsel who have argued the case. And we think this bequest is unquestionably good.

There can bé no doubt as to the institution for the benefit of which this endowment is intended. The words are, “Clarke and Erskine College, situated at due west corner, Abbeville District, South Carolina.”

It has been seen that the institution of learning at that place, was incorporated in 1837, in the name and style of “Clarke and Erskine Seminary.” This institution was established by and has been under the patronage and control of the Associate Reformed Synod of the South, of which church the testator was a member. The institution grew in importance and was organised as a college, and for some years before the date of the will had been called and known, as “Clarke and Erskine College.” Now the testator uses the name by which the institution was familiarly known, and his description of the institution to which the bequest is made, and the fact as shown by the proof, that “Clarke and Erskine College” and “Clarke and Erskine Seminary,” are one and the same, leave no doubt as to the identity of the two in his mind.

The rule is so familiar, and so consonant with reason, that it needs no authority to support it, that where the name or description of a legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named or described, the mistake will not disappoint the bequest. The true intention of the testator may be ascertained, and the error corrected. 2 Williams on Executors, 736.

This bequest is, therefore, to an incorporated institution of learning for the endowment thereof, and is good and valid as if it had been a gift to a natural person.

As to the other three bequests, there is no doubt of their validity, upon the principles heretofore stated,

In 1849, and before the death of the testator, the Legislature of South Carolina granted a charter of incorporation, providing, “That the Associate Reformed Synod of the South, be and they are hereby authorized to nominate and appoint Doct. E. E. Pressly, Doct. James P. Pressly, Rev. R. C. Grier, James Lindsay, James Fare and Archibald Kennedy, trustees to serve during the pleasure of said Synod, who, with their successors similarly appointed from time to time, are hereby declared to be a body corporate and politic, by the name and style of ‘Trustees for the Associate Reformed Synod of the South,’ to hold and manage property, real, personal or mixed, or choses in action, of the value, at the time of acquisition, of three hundred thousand dollars,in trust for, and subject to the control and direction of said Synod; all or any of said trustees to be removed and others appointed in their place by said Synod at its pleasure.”

We regard this charter, as a virtual incorporation of the “Associate Reformed Synod of the South.” Its terms authorize the said Synod to appoint certain persons trustees, who are incorporated under the name of “Trustees for the Associate Reformed Synod of the South,” and the Synod is empowered to remove any or all said trustees at its pleasure, and to appoint others, and that the funds are to be held in trust for and subject to the control of the Synod. The bequest, therefore, of this charity to the “Associate Reformed Synod of the South,” vests in the trustees, thus incorporated, a right to sue for and recover this fund, to be held by them, as their other funds are held, subject to the control of the Synod.

At any rate, the slight misnomer in the bequest, merely omitting the word “trustees,” could not vitiate the gift, the intention of the testator being clear and unquestionable, but the bequest would be regarded as having been made to the “Trustees of the Associate Reformed Synod of the South.”

But it is objected that the bequests for the benefit of “Home Missions,” and of “Foreign Missions,” are too vague and uncertain, and are therefore void.

It is certainly true that the individuals who may receive any part of this fund as compensation for labor as missionaries, are not designated or known; nor are the persons designated who may be benefitted by the ministry of these missionaries; but if this objection were allowed to prevail, it would defeat all charities, for it is of the very nature of a charity, that the individual beneficiaries of the charity are unknown. The gift for such purpose, is of the nature of a power of appointment, and being controlled and administered by trustees, and the objects definite, it is valid. If a gift were made to trustees, for the benefit of the Protestant Orphan Asylum of Nashville, no one would doubt of its validity, and yet what orphan could claim that he was a beneficiary, until his introduction into the Asylum.

The religious denominations of Christian countries, we know, are engaged by means of funds contributed by their communities, in the propagation of the gospel, among the heathen in foreign countries, and this is termed a “Foreign Mission,” and they are engaged in like manner, in supplying the destitute in their own country with the gospel, and this is termed a “Home Mission.” These terms are as well understood, and have as definite a meaning as any other terms in the language.

The bequests of this will are, therefore, in our opinion, valid, and we so decree.  