
    Griffin v. Graham and others.
    From Johnston.
    IN EQUITY.
    
      Moses Griffin made his will, containing the following devises and bequests — “ i appoint E. G, W. G, &c. trustees of my estate, and execu- “ tors of my will — 1 give the remainder of my estate” (after certain legacies and payment of his debts,) “ to my said trustees and execu- ' “tors, in trust, to be managed by them to the best advantage for the “ purposes hereinafter mentioned. I desire my landed properly shall « not be sold, but rented out to the best advantage. I desire that my “trustees and executors, out of the issues and profits of my estate, real “and personal, shall purchase two acres of ground in .Newborn, and ad “ soon as the funds arising from the profits of my estate be deemed «by them sufficient to make a commencement, that a brick-house “ shall be erected on said land, suitable for a school room, and finished “ in a plain manner, fit for the accommodation of indigent scholars, and “be called “ Griffin’s Free School.” Anditis my desire, that as soon « as the house is finished, and the funds arising from the profits of my “ estate will admit, a proper schoolmaster shall be employed to t( ach “ and educate therein, as many orphan children, or the children of poor “ and indigent parents, who, m the judgment of my trustees are best “ entitled to the donation, as the funds are found equal to — and it is my “ wish to clothe and maintain the indigent scholars as well as school “them: and when they shall arrive at the age of fourteen, it is my de~ “ sire that my executors bind them out to suitable occupations. And “ to prevent misconception, .my meaning is, that the amount of my “ estate, real and personal, be considered as a principal sum, and re- “ main undiminished forever; and that the issui s and profits only shall “ be appropriated to the support of the said free school. And it is my :í desire, that all interest arising' from money, shall be put out at inter- “ est again, and be deemed principal, and continue at interest until, by “ my executors, it shall be deemed sufficient to put the institution in “ operation.”
    The heirs at law and next of kin, filed this bill against the executors and trustees,.praying- to have the trusts declared void, and that the Defer.' dants might be declared the trustees for them and for an account.
    
      Held, by a majority of the Court, that the Statute of the 43d of Elizabeth, c. 4, is in force in this state, and that the Court of Equity, by virtue of it, has jurisdiction of all charities.
    
      Beld also, inat independent of that statute, and though the jurisdiction of charities in England belong to the Court of Chancery, not as a Court of Equity, but as administering the prerogative of the Crown, the Court of Equity of this state hath the like jurisdiction : for, upon the revolution, the political rights ami duties of the King devolved upon the people in their sovereign Capacity; and they, by their representatives,have placed this power in the Courts of Equity, by the acts of Assembly of irrs, c. 5, and 17SJ, c, 11.
    But if this were nos so : it is further held, that as there are trustees and a trust for a definite charity, and a specific object pointed out, the Court would, as a mere mutter of trust, take cognizance in this case, by virtue of its ordinary jurisdiction as a Court of Equity.
    
      Held abo,'vthat, if the Court of Equity had no jurisdiction of charities, as such, nor of a trust reining to them, and could not, upon a hill by the trustees or others, establish the charity by decree, yet, inasmuch as the estate of the trustees is good at law, and the condition or trust is certain and not unlawful, no tiust resubs, in this case, for the heir or next of kin: and h -reíbre the bill is dismissed.
    
      Held also, that this will doth not create a perpetuity: for the trustees have the power of alienation — and though notice to the purchaser might affect him in Equity, yet that, being a circumstance collateral to the power of selling, will not afiect the question of perpetuity: and the clauses m the bill of lsguts and constitution, were designed only to prevent dangerousa ccumulations of individual wealth, and referred to estates-tail alone: the establishment at & permanent fund for charitable -uses does not come within the mischief, and is not prohibited by either of those clauses, nor by the common law.
    Moses Griffin died in 1816, having’ made his will, in which he devised and bequeathed as follows : “ I appoint “ Edward Graham, William Gaston, and three others, “ trustees of my estate and executors of my will — I a ill “ that all my debts and funeral expenses he paid out of my personal estate and as to the remainder of my es-íí tate, both real and personal, I give the same to my said “ trustees and executors, in trust, to be managed by them “ to the best advantage for the purposes hereinafter men- ({ £¡()ne({yj — The testator then directs that his money shall be vested in Bank stock, or put out to interest, as also the debts due to him when collected. He adds, “ I desire my “ lauded property, consisting of houses and lots in the “ town of Newborn, shall not be sold, but rented out to the “ best advantage. I desire, that my slave Jane be hired “ out, and as soon as her wages amount to a sum agree- “ ably to what the law requires for setting negroes free, £i that she be set free according to law” — with similar provisions as to several other slaves. Then follows this clause, ts I desire, that my trustees and executors, out of 45 the issues and profits of my estate, real and personal, 44 shall purchase two acres of land, in some-convenient and 44 healthy place in the town of Newbern, and as soon 44 as the funds arising from the profits of my estate, 44 be deemed by them sufficient to make a commencement, 44 that a brick-house shall be erected on such part of said 44 land as my executors shall determine on, which shall 44 have a large room laid off and finished on the first floor, 44 suitable for a school-room, and the remainder of the 44 house finished in a plain manner, fit for the accommoda-44 tion of indigent scholars, and be railed 44 Griffin’s Free- “ School.” And it is my desire, that as soon as the house 44 is finished, and the funds arising from the profits of my 44 estate will admit, a proper school-master shall be em-44 ployed for the purpose of teaching and educating therein “ as many orphan children, or the children of such other 44 poor and indigent parent:! as are unable to accomplish 44 it with their own merns, and who, in the judgment of 44 my trustees, are best entitled to the benefits of the dona-44 tion, as the funds are found to be equal to : and it would 44 be my wish, should the funds, by good management, 44 prove «pial to it, to clothe and maintain the indigent 44 scholars as well as school them; and when the scholars *• shall ari-ivo at the age of fourteen years, it is my desire “ that my executors bind them out to trades, or other ie suitable occupations. And to prevent misconception, <e my meaning is, that the amount of my estate, real and “ personal, at the time of my decease, shall be considered “ as a principal sum, and is to remain undiminished for-tf ever, except the payment of my debts and legacies herein f< before bequeathed ; ami that the issues and profits only “ shall be appropriated to the support of the said free e< school; and I would have it understood, that it is my ie desire that all interest arising' from money put out at “ interest shall be again put at interest, and deemed prin- “ cipal, and continue at interest until, by my executors, “ it shall be deemed sufficient to put the institution in “ operation.”
    The Complainants are the heirs at law and next of kin of the testator, who filed this bill against the executors and trustees, praying to hare the trusts expressed in the will declared void, and that the Defendants may be held to be trustees for them and lor an account.
    There was a demurrer; and the cause was' transferred, here for a decision of this Court.
    
      Gaston, in support of the demurrer.'
    The will must be executed, unless Complainants can shew something in it which the Law so abhors, that it must be set aside. There is nothing in the devise which is forbidden by Law. On the contrary, the purposes of it are peculiarly favored.
    There is no perpetuity. “ A perpetuity is an estate *eunalienable., though all mankind join in the conveyance,” per Powell, in Scallergood v. Edge.
      
       So, Treby, Ch. J. says, “ it is such a condition of a fee, that foeirce shall not. “ be able to give absolutely to another.” And Mr. Justice Blackstonc defines it to be “ the settlement of an inte- « rest which shall go perpetually in the succession pre- “ scribed, without any power of alienation.” The duration o(‘ an estate does not constitute a perpetuity; for evei7 *1'° simple in, in contemplation of Law, to a man and his heirs forever. It is the exemption from the power of alienation which makes a perpetuity. The enquiry upon this head then is, whether the estates be so limited that the devisees cannot sell or dispose of them ? The legal estate is here given — -and it is given to al!,intents and purposes, as to the realty in fee, and as to the personalty, in absolute property. It is given to the defendants by name, and they take as individuals. Their alienation therefore would be as valid an that of any oilier devisee, or as though they tool; it beneficially. The purpose to which the profits are. to be applied can make no difference, for the Law wiil neo er prohibit the present owner of an estate from disposing of the, profits in charity. ' Perpetuities are not less favored in our Law' than that of England. Yet conveyances for such purposes as those, mentioned in this will, have always been held good there. Sanders states several instances which arose before the statutes of wills or uses. No other person, than the devisees, have an interest that can affect their power of alienation. There is no trust, that is to say, no equitable cútate, in any other persons whatsoever. No individual but the devisees themselves takes an interest, tinder the will, in the estate given. There are none who cun claim by virtue of any right in, or to the thing devised, so as to prevent, tie up, or control the alienation or use by the devisees. In other words, there is no cestui que trust 5 and therefore no technical trust, whereof the execution can be demanded by any person in particular. lienee a purchaser from the devisees bona fule, cannot be made accountable to any human being. To a trust, of which the execution can be claimed by an individual, it is indeed necessary that the estate and the trust should be limited to persons capable of taking and bolding; for, on such limitations, Equity puts the same construction, and, in enforcing them, demands the same requisites which Law does.
    Though there is no technical trust, it is admitted that there is a trust of another kind — a most sacred trust for the community; which will be upheld by this Court. The estates are devised to the intent and purpose, that out of the income a free school shall be established; and to this purpose, and this only, the devisees are, in conscience, trustees.
    This then is a charity; and is one of the most beneficial. It will be sustained, and will repel the claim of the heir at law and next of kin. It is unquestionably one of those charities recognized in st. 43, Elizabeth, and is peculiarly favored in the Law. Tims, if a devise be to a charity, the Court of Chancery will interpose trustees. Though the statute of wills permits not demises to corporations, yet a devise to a corporation for a charitable purpose, is held to be good. Devise to trustees for a charity, and they die before the testator, will be sustained in E uiity. And this principle is still more strongly exemplified in cases of execution Cy-pres. Conveyances to charity are not dependent on, or necessarily referred to, the statute of 43 Elizabeth. There were many cases before it; they were held to be valid; though it certainly is not easy now to say in what inode the performance of the trust was enforced, or the abuse of it punished. Porter’s case and Sutton’s Hospital case, which is explained in thc Attorney General v. Bowyer,
      
       shew this: as likewise do the numerous cases cited in Adams v. Lambert, 
      
       and the opinion of Chief-Justice Marshall, in the case of the “ Baptist Jlsso- “ elation v. Marl’s executors.” 
      
       The st. 23, Hen. Víí I. to avoid superstitions uses, proves that charities were eom-nion in that' day. Above all, the st. 43, Eliz. proves their existence and validity, and the benignity with which they were regarded by the Law.
    jg esC(.e,(]iiigIy probable that the remedy was not direct, certain or safe, and that the usual mode, as to lands, was by entry for the condition broken, as in Farter's case. That statute was enacted partly to declare that com cyan ces to charity were not within the mortmain acts : but chiefly to protect the charities then in existence, or which might thereafter be created, from the fraud, negligences or breaches of trust of the trustees, by giving a more easy remedy, by preventing a defeat of the charity by a fraudulent compromise between the feoffee and the heir, the latter of whom was irresponsible when he entered for a condition broken.
    There is no case, no dictum, nay, not even a suggestion, before that statute, that such conveyances or trusts were void.
    Since the statute, the jurisdiction of Chancery in England to enforce these trusts, has been established and defined beyond all doubt. That cannot be denied by any body.
    The statute is in force here. Why should it not be? There was not the slightest intimation given by this Court, in Maywood v. Craven's executors, that it had been repealed : All sides admitted it to be in force, in that case. It has since been reported, as a subsisting law to the Assembly, by the commission for the collection and revision of the British statutes, and by the Assembly been ordered to be printed, as such. It was passed before the colonization of America, and a series of adjudications bad been made on it, building up a body of law in regard to charitable uses long before the Revolution, and, indeed, before our country was settled. The Chancellor bad then a jurisdiction as definite and settled over charities, as he had of infants, ideots ami lunatics. Our forefathers, therefore, wrought this statute, and the various resolutions on it, with them. Nor did they long delay to create an appropriate tribunal for the exercise of the powers specified in it, for compelling the fulfilment of the charitable intent of donors. 4 Court of Chancery seems to have been coeval with the .first legal insiitiiiioKS of the country. By the act of 1782, Courts of Equity are to possess ail the powers and authorities that the “ Court of Chancery, which was formerly held in 1 Lis State under the late Government, used and “ exercised, and that are. properly and rightfully incident -• to such a Court, agreeably to the laws in force in this S( State and not inconsistent with our Constitution.” The Court of Chancery is referred to, as existing in the act 1720, c. C, and there can be no doubt but its model was the Court of Chancery in England. The jurisdiction, the power of compelling the execution of charitable trusts, was an acknowledged and notorious incident to the English Court of Chancery, and thus attached itself to our Courts. Hence there can be no doubt, but such a power belonged to the Court of the Province,* and as little doubt, that it ought to be exercised now.
    It is perfectly immaterial whether the power belongs to the Court, as an ordinary Court of Equity, or as a part of the jurisdiction which the Chancellor claims as keeper of the. conscience of the Sovereign, who is bound to have those trusts enforced which concern the community. Probably where there is a definite trust, or where there are. trustees, the Court takes cognizance of it, as a matter of trust, in virtue of its ordinary jurisdiction. If it belong to the extraordinary jurisdiction, it is precisely in the same right as is the custody of infants and idiots 5 of which the origin is at least as obscure as the other. We dud our Courts in possession of this latter jurisdiction, and that they daily exercise it: and why not the other ?
    
      The very obscurity, in which this question rests, and the difficulty we have in referring this jurisdiction to the appropriate department of the functions of the Chancellor, shew its antiquity, and prove its connection with the ordinary faculty of decreeing leasts upon original bill; which has been exercised in relation to charities, inoontes-tibiy, for ages past. But admit it to belong to the King as parens palriae in virtue of his prerogati. e. This part of the prerogative, at least, was not intended for the personal interest of the sovereign ; but was peculiarly designed for the good of the people $ and at the revolution, it devolved on the people. 'While in a state of pupilage, lie had it, as their parent and political guardian, and exercised it by the magistrates to whom he entrusted matters of conscience ; novv the people being of full age, and choosing to govern for themselves, take it, as the patria, and exercised it by the magistrates to whom they commit matters of conscience. There is no more, incongruity in a Republic, as a Republic having a conscience, than in a King, as a King.
    But indeed the question in this case, is not whether the Court will establish tiie charity. The devisees arc not asking any thing of the Court 5 nor has any person, claiming the benefit of the charity, prayed the Court to interfere and compel the devisees to perform their trust. It will be time enough, when a bill shall be brought for either of those purposes, to shew that this Court can enforce a charitable trust. But here the question is, will the Court prevent the execution of a charity, and declare it void ? Suppose that there are no means of compelling a conveyance, or the execution of the trust by the devisees, that this Court has no power, in any of its capacities, to superintend the pcrforformance of the testator’s will 5 yet the Complainants shall not, for that reason, have the estate. This is the true point of view — The property belonged to Grinin, and lie had a right to give it as he pleased, so that he did not violate the laws; it was his risk, whether the persons to whom he has given his estate, and in whose hands he iias deposited this trust, would perform the trust or pervert (he funds. lie had a rigid to run (lie risk, and he. Isas chosen to do it. It is not unlawful for him to direct his devisees to establish a free-srhool — it is not unlawful for them do it; and if the Court will not aid them, it will, at. least, not deprive, them of the means of doing the will of their testator by taking away the estate. Before the Complainants can succeed, they must shew that this will contains a disposition unlawful in itself, and they must shew' that very clearly; otherwise, the Court will not annul the will, and disappoint the generous purposes, which the testator has declared, and the beneibSfWt^jp^". rity which he has created in it. /7 x tv’1-" ■J
    
    
      Morilecai, for the Complainants.
    Wherever; not take effect, by reason of some defect in its institution,., or accident happening after its creation, it wiXi rlsufr'i.b the benefit of those who would have taken the est no attempt been made to create the trust.
    
    The trust here is not valid. Trusts are now what uses formerly were; and if the use before the st. 27 Hen. 8, would not be good, so neither will the trust be now. Before the statute of uses, there was a distinction between uses and trusts. Uses were of a permanent and general nature: trusts of a special or transitory nature. — Sand. 7. It was the intention of the trainers of the statute, to abolish both : for trusts are mentioned in it as well as uses. Owing, however, to a little oversight in the. Legislature, and a scrupulous adherence of the Judges to the letter of the statute, many cases arose which the statute did not execute. This called for the intei ference of Chancery, and they were entertained as trusts in Equity.' — Sand. 176. But this new trust was not the transitory trust known before tiie statute. It was of a permanent nature, and nothing but a secondary use. — Sand. 177. A use could not be limited to a parish, or any indefinite multitude. gQ^ t])erefore? a trust of the same nature is void now.
    It may, however, be conceded that there are at present some trusts in England for the benefit of indefinite objects, which are good. But it is only so in cases where the King, as parens patrien, may enforce them by virtue of the prerogative, or the Chancellor, as a partaker of the prerogative, under the st. 43 Eliz. c. 4. It is not, upon any general principle, applicable to the transmission of property, that a trust to an indefinite multitude can he supported. To constitute a valid gift, there must be a donor, a donee, and a tiling, and the donee must be capable of taking, and be designated either as a natural person or a corporation So, to constitute a valid devise, there must be a devisee capable of taking, who must be certainly designated by name or by description. And a devise to parishioners is void ; and such a devise is not only void at Law, and as an use, but also as a trust. Whether by deed, or by devise, or by way of use, such a conveyance to an indefinite multitude is therefore void at Law ; with a solitary exception, that a gift from the King to the “good men of Islington” is good; because the gift being made by the King, ut valeat, they became ipso facto a corporation.
    
    If this gift to “ orphans, or to the children of poor and “ indigent persons,” would be void at Law, when directly made to them, it is likewise void in Equity, though a trustee be interposed. The interposition of a trustee only-changes the forum, not the right. The trustee is viewed as a mere instrument. And a Court of Equity puts the same construction upon trusts, which a Court of Law docs upon legal estates. There cannot be so much magic in trusts, that they shall be sustained, when no person is designated who can take under them. Who can take, when ho body is pointed out to do so ? There cannot be this difference between legal and equitable estates •, for a man takes the former directly, and the latter is handed to him. Upon general principles, therefore, the claim of the Plaintiff cannot be resisted. But it is said, this is a charity, and thence is governed .by peculiar rules, and forms an exception to the general rule of Law. It is admitted, that there are cases where the English Court of Chancery has sustained charitable devises to indefinite objects, contrary to the principies which regulate their decisions in other cases. But that is not by virtue of the Equity jurisdiction. It is a branch of the royal prerogative delegated to the Chancellor by the King ; and, in some cases, the charity is even now applied under the sign manual. Who is the parens patries of North-Carolina ? Who holds the prerogative ? Who is, more especially, the keeper of the so\ercign’s conscience here? It is vested, not in the Judiciary, not in the Chancellor, but, if any where, in the Legislature. In that body resides the sovereignty of the Slate, if it hath been delegated by the people at all. The rules which govern the Court of Chancery, in its extraordinary capacity, are not applicable to our Courts.
    The cases in Chancery, whore charities to indefinite objects have been decreed, are founded upon the statute of Elizabeth : and the whole jurisdiction is traced by elementary writers and hv adjudications to that source. Abstracted from and independent of that act, the Court cannot relieve ¡ though the Chancellor personally, and as tl'e ^'legate of (he Crown, may act. No case can be shewn of relief in Equity before the statute. Por lev’s case, for instance, proves that very strongly. The devise, in that case, was made in 32d Hen. 8. the lease by the wife in 3d Ed. 6, and the entry of the heir in 34th Eliz. which is a period of 51 years. No man can believe that a Court of Equity could then decree the charity \ otherwise a resort would certainly have been made to it, instead of the roundabout way of entry for the condition broken, and then a conveyance by the heir. The object of the heir and the Queen both, was to effectuate, the charity. The conviction necessarily follows, that they would have gone to Equity, if Equity would do any thing for them. Indeed, it is extremely probable that that very case was a cause of the passage of the act of 43 Eiiz. which recites the evil to be lS the frauds, breaches of trust, “ and negligences” of the trustees, and provides the remedy. The statute does not affect to appoint “ commissioners” instead of the Chancellor, against whom no charge is brought j but it constitutes the commissioners, and, after them, the Chancellor, tribunals to redress the frauds of the trustees. Every case, therefore, and every recital and provision of the statute, contradicts the supposition that Chancery gave relief before, and proves that the jurisdiction is to be deduced from the statute. This is enlirely confirmed by the fact, that immediately after its passage, we, find a multitude of applications to Chancery: Collin son’s case, decided 15 Jac. 1; Griffith Flood’s case, in which 1he Judges certified to the Court of Wards, that the will was v old at Law, but good under the statute ; Higgins v. Town of Southampton, stated to be decided in 1671;
      Attorney-General v. St.John’s College ;
      
       a case in Chancery cases, 134, of a devise to the Parish of Great Crcaton, and Attorney-General v. Rye & Warwick, in 1703. And in all these cases, the Judges rely on ihc statute, not as to remedy only, but as to the devise also. Sanders, 61, 62, is quoted by the other side, to shew that such conveyances and such trusts had always been sustained and favored by the Courts. The authority cited for that position is Porter’s case; which certainly does not support it,' as is clearly shewn by Chief-Justice Marshall, in Baptist Association v. Hart's executors. In this latter case, too, th® dictum of Lord Keeper Henley, in 1 Win. BL Reports, is answered and overruled. It is un juestionable, at least, that the statute of Elizabeth does give validity to some charitable devises, not valid independent of it, and that the cases, where the objects were too vague to take without the aid of the statute, have proceeded upon it. If the statute be not in force here, the case of Baptist Association v. Hart's executors is expressly in point for us. That was a devise of an estate “ to be a perpetual fund lor the edu- “ cation of youth,” as this is; and the circumstance, that the legal estate devised to the Association was void because. they were not a corporation, can make no difference; for if the English rule prevail, the death of the devisee before the testator would not affect the estate to the charity, as'appears by the Attorney-General v. Hickman, and Maggridge v. Thackwell, cited for .the Defendants.
    The statute of 43 Elizabeth is not in force in this State. We have not the officers which it requires — neither the Chancellor nor the Bishop. The rules which govern the English Courts are incompatible with the rights of private property. In Baxter’s case, and in Be Costa v. Be Fas,
      
       the funds were diverted from one charity to another. So, a conveyance by a feme covert to a charity, was held good in Baums’ case : also, devise by copyholder, without a surrender, Rivell’s case ; and tenant in tail devised, without a fine or recovery, to a charity, and barred issue and remainderman. Such dispositions could never, under our laws and constitution, be supported, to the injury of third persons. Although the statute was reported to the Legislature, that was only the opinion of the Gentlemen, who collected them, and is of no authority here ; and the Assembly refused to adopt the statutes, or do more than merely to pay for the printing of them. The principle of charities is impolitic, and ought not to be adopted without express statutory provisions. They tend only to gratify vanity, and encourage, by maintaining, idleness. They come within the reason of the mortmain acts ; and those by devise became so numerous and dangerous, that, in modern times, and without any illiberal feelings towards rich monasteries or otiier superstitious or religious establishments, it was found necessary, even in England, to circumscribe them. The statute. 9 Geo. IE. c. 36, is a most beneficial law, and has been construed liberally against these donations of real estate to charities. If in England they have been obliged to retrace their steps, why should we, by a forced construction, adopt principles which true policy forbids, and which we shall find much difficulty in getting rid of, if once received. It never has been understood by the profession, that the statute of charities was in “ force or use” in this state. It is not comprised in the collection by Martin, and no case has been decided which recognises it. Every college and academy in the State have applied for acts of incorporation to confer on them capacity to receive donations, which would be wholly unnecessary, if trusts for schools at this or that particular place were good, and could be enforced by bill in this Court. The case of Haywood v. Craven’s ex’rs, proves that the statute is not the law of this State. Surely the emancipation of a slave is not merely a case analagous to one provided for in the statute, but comes within the express letter of it: “ The relief or redemption of captives,” is at the least as great a charity as “ the support of free schools,” or “ the education and preferment of orphans.” If it be said, that the Court could not execute that charity, because the slaves could not be lawfully set free, then execute Cy-pres, or sell the slaves and give the proceeds to the Colonization Society, or redeem captives in Africa, or apply it in any oilier method similar to that expressed in the will, under the sign manual, as in the case in Jhnbler. But the Court would not; and, on the contrary, declared a trust for the next of kin and heir at law.
    This is certainly a perpetuity. The power of the trustees to dispose of the legal estate, even if they have such power, cannot make it otherwise. But it is not proper to look upon the will in that light. The true point is, to en-quire the object. The object is a perpetual succession of scholars, without end, none of whom can alien the property. The estate of the trustees is of no value, no consideration — it is nothing. In Equity, we must strip it of the legal estate, for Equity regards only the interest of the cestui que trust, and then it stands, naked, a perfect perpetuity. But regarding even the estate of the trustees, how is it ? There is to be a perpetual school, which is to be supported out of the income of their estate ; the trustees must take an interest commensurate with the trust, and, therefore, their estate also is perpetual. It is ti*ue, that as to the real estate, there is only a recommendation not to sell. But when the gift and object are certain, words of desire, request or recommendation, create, a trust. It is said, however, that the alienation of the trustees would be good, and could not be impeached. That would depend upon its being bona Jide or mala fide; if the latter, it is clear the purchaser would be subject to all the claims that could have been made upon his vendor — if the former, that is to say, for a valuable consideration and without notice, then, indeed, he would hold exempt from the trust, because the privity would be destroyed. And this is the case with all trusts ; which brings the question here, according to ^'ie v*ew which has been already taken of it, to this : Whc-ther this be a good trust, to be executed by this Court in 0,.c|¡|1;u.y capacity of a Court of Equity, which, we say, is its only capacity, according to our law ?
    
      Seawell, on same. side.
    The Complainants insist, that they, being the heirs at law and next of kin, arc entitled to the estates, unless a higher equity can beset up in some other persons. The Defendants set up a claim in themselves, because the estates are given to them by the will, for certain purposes therein mentioned. It is immaterial by what, name we call the object of this devise3 whether we call it a trust or any thing else ; for, if the executors take the estate under a clear manifestation that no benefit was intended to them, but that they were to apply or to keep it for a particular design, they thereby become trustees. We say, that the purposes declared by the testator here, would, if carried into execution, establish a perpetuity. Lord Nottingham, in the Duke of Norfolk's case, defines a perpetuity to be, such a settlement of an estate as places it out of the power of the tenant to assign the estate ; but the settlement remains a perpetual clog. But indeed, the law is not satisfied with there being some remote period when the estate shall become imfetfeicd. An absolute perpetuity is not the only forbidden limitation. The law alike frowns on a settlement containing provisions ajiproaching or having a strong tendency tow ards it. Hence the rule seems now' settled, that the utmost limit allowed, is the period of a life or lives in being, and twenty-one years, and a few months over to take in infants en venire sa mere. The trust here is a plain perpetuity : For the testator directs that the amount of his estate shall be deemed a “ principal fund, avd remain nndhnim.shed for-i6 ever, for the purpose of establishing and supporting a " school,” C;tsos have boon abratlv cited to siiow, that tbo trustees ni'iisf tako estates (¡vrlipetl to maintain tito trust--, am] therefore that they must ho perpetual. But without, adjudged oases, rea,son would show, that when a power is conferíod or a rhdv enjoined to do a particular art, or make a rriBeul-r d spo.-Uion of property, the means renuishe ib.- tifo end art- necessary to he granted. It is obvious too, that the exmfors take, every thing in trust, from the whole wCL We say, that whenever the purpose for which an os ¡ate is devised is specially pointed out, that alone will constitute (he devisee a trustee, and that vvhencior it ¡<ppea;« Lai the testator did not intend the devisee to taí-e bnwf.t hdh , ¡¡¡cl also converts him into a trustee — for the prose; ty im gxd to ti.e leatalor and he had a eight to iim t the enp vir.out as he pleased; and, therefore, ii-.at the. caue if; not a:le.:c-.i If}' Its being a recom-inendaliun, out;, i:i,i to s’isv.si of, or aíren the lots in .Newborn ; for such ivronunemiction is e.jisal. as to this point, to a positive injunction., 1 he estate, therefore, winch the executors tuck, being in trnsL and the nature of teat trust being to look e.p tie-fund ibiever, the. devise a fide is to create a perpetuity and cannot be supported. For as it never was the intention of the testator, that the trustees should be bonefuod by the estate, so a Coia-t of Ejuby will not only exonerate, it at Lav. from being liable to toe debts; of the trustees, but control the estate as a trust fund even in the hards of a purchastr. if he has ¡milco, though he be a pm chaser under cxeca-lien.
    it is, however, said, that the purposes of this testator are such, that the Law is willing- that properly should he fojever clogged to answer them ; t>.a! here is a free school, and therefore the couinuiuily hath an e-juivalcnl. This is, by far, the most imposing- part c.f the Def. ¡.bants’ ease, ami is one upon which we ought not to tras!, oiar-fe. lings. L'pon such an occasion, we are too apt to look at the object, without a-verting to its atiidnahieness. The object outages our feelings in aid of it, and creates an influence v. iiioli imperceptibly operates in controlling' our judgments. A shade is insensibly cast over both cases and principles* w¡K.n ai.i.ayed as obstacles. These feeling’s are commendable, and shine nowhere with brighter lustre than on the Seat of Justice. We do not complain of them. But it is certain, that they are at times dangerous, and now ¡¡ere more so than on the Bench. They are there, what Mr. Justice Bailer called, “ the quicksands of the Law.” Religion and learning are at all times, and in all places, powerful. It ought not to he thought that they are never in the wrong : nor ought it to he said or thought, that 1hey will he at all limes triumphant, even in Courts, though they he in error.
    It has been, indeed, said, that the testator was well apprised of She risk he had to run, and that it was ins look-out to provide for the execution of the trusts. \Vc say, on our part, that the Defendants must.account to the heirs and next of kin for the estate they hold, unless they shew a beneficial interest in themselves, or that they hold it in trust for such others as can enforce their claim. The question is not, who;her the Defendants arc at liberty or can dispose of the fund ;n purposes of benevolence or charity, hut whether they are hound — whether they can be, compelled to do it. For, unless there be a valid trust for somebody else, one 1: at this Court can enforce at the instance of eeslm qve lnisi, the trust results to the Complainants. The c:i:v of Jlaurice v. Bishop of Durham,
      
       was upon a devise of an estate to the Bishop, “to be dis- “ posed of lo s:¡'-h vbjte.s of b&’evokvee and liberality as he “ should most appreve - ÍV’ Both the Master of the Rolls and the Loid Chancellor, declared the objects too indefinite and the trust void, because there was no person who could chillis it« execution, and. decreed for the next of kin. In that case, it is ob ious th-n i might, have been answered that it was the testator’s risk.
    
      The validity of «'very trust is 1» bo to.stod by tlie same rules that govern legal estates ; and Courts of Eight v, in ascertaining the rules of property governing trusts, follow the Law. The inte, posing <f trustees makes no diff-m-enoe, for the cestui q:;e irus; stands in the shoes of the trustees, and if no Equity would pass without a trustee, he is not better off with one.
    Unless, therefore, there be. some person to whom the estate would have passed, laid it been-a legal estate, the limitation is void, and the trust fails. Here the trust is for such poor and indigent nersvns as tue trustees, in their opinion, think worthy of the donation ; and the school is to be put into operation vhrw.er, in the opinion of the trustees, the state of the funds v. ill allow it. Who is there that can set up any claim upon the trustees to enforce such a trust? It is all to depend upon their opinion — the whole fund to be perpetually applied in this way as far as the interest, and all according to Huir discretion. Can the Court break through the v.il!, i nd say, the. Court will judge in a matter v. hich the- testator has confided to an individual? If it could, then under the pretence of executing the dying words of the ¡.eslnicr, if would, in fact, be making a new will for him.
    
      Samiers
      
       says, that a devise to the use of the inhabitants of a parish is good as a trust, though void as an use. Ha refers to the ease of .dilurnaj-Genaaí v. Hewer,
      
       which does not support him, as the only point decided there was that the inhabitants could not sue in the name of the Attorney-General. But admitting the authority of the position of Afauiim, the rase is still different from this: for the inhabitants of a parish are persona capable of designation, and id cerium eat quod cerium reddi potest. Possibly that may be properly likened to a bequest to^“ relations,” who are- held to mea:', the next of kin, and, of consequence, are capable of taking under a limitation of a legal estate. But if the o jjocís be í'>o indefinite, ellü'M* as regards per-,H’ Usings, "hen, ac-oi-d ii"-1« tiio. lisfiop of D ir'nm’s rase, the trust must b - for fióse whom the Law has ap- «+ ¡s vc;.j certain, that pm ions to the statute of uses, there was a mark'-d disunrt-oA !u „\v;*en uses and trusts; and that sinre the stmute. we find it laid down, that Equity has new modelled those trusts, pruned them of til-is- inconveniences,, and made th-m subservient to vaiuahle purpose:?, end teat they are no-.v what, uses were before the »í afeite. The plain meaning of which seems to Ik, that they possess in Equity the essential qualities of 3ee;al r-.tr.tes at Law, and will he supported or. avoided accordingly. But it is admitted, on the- other side, that tir-re in no trust here which any person can clainr — ¡bat no individual can rail upon the trustees for a participation in the donation. Tot it is sai:', ta the next minute, there is a sacred trust, which the Defeir'anl:: me-hound to perform, and which the Court will, for erntm-ies to come, enforce. By this sacred trust, 1 suppose, is meant a duty to the community at large, it being- fthe erection of a free school. On that account, if is said, this Court, as a sort of parens pat run — as a bind o£ cesíni que trust — representing all the poor and bd’-gent, will compel the execution-of it, If we look Í.) the English jurisprudence, we shall find, that, unbounded as the. pi-t-ror-!the then was, the King did not presume to exercise such a power until after the 43 Eiiz. Vorhr's ease shews very (dearly, that Chancery did not then take upon itself, as the organ of the. King, or in any other capacity, to execute a trust even for a hospital, unless a hospital was in existence capable of insisting- upon and taking-, as legal ow ners, the estate or the trust. For, in that, case, there was evidently a contrivance and juggling- between the heir end the Queen's Attorney and Solicitor-Generals, by'the entry to divest the estate, and then to convey It to the Queen, who should apply it aecor-’i-.g- to C-e will. And so .Lord Loughbo-rough looked upon Porter's case ami the general doctrine. at that tuno to be, when lie says, in the Mtorney-Generál v. Howyer,
      
       that then “fbey made out the case as well as (< they could at Law.” Now, in Porter's case, the condition was, that tiie lands should be conveyed to the hospital in convenient time, as counsel learned hi the Law should devise, and such a condition, not being inmoral, was held not to he void; and although it was contrary to the statutes of Richard and Henry, yet the Queen could' create the corporation and grant a licence to hold lands, and, therefore, it might he lawfully done.
    It lias been argued fro u tnis, that although there was no cestui que trust, yet, as the Queen could make them by charier, and the use was not immoral, and, for Ihose reasons, was upheld : so here. Cnancery is de facto to become tlte cestui que trust as parens partite. This might possibly do, had this Court not decided the case of Haywood v. Craven's executors, in which Porter's cast1 was cited and much pressed by the counsel for tiie Defendants. The testator there bequeathed to his sister the whole of his estate for life, and. after her death, to his executors, in trust, to have his slaves set free by the laws of the fitate, and then that the- lands and other property should be applied to’ their u->e. The Court there said, that such a trust could not be supported ; for. by the existing laws of the. land, no individual shall liberate a slave oat for meritorious services; and I bough the Legislature might autho-rise it, no time should be given to the executors to apply therefor, and they were decreed to-^iirreuder not only the slaves, but the whole estate, to Haywood, who was the devisee of the heir at law7, and next of Lin. Porter's case was, therefore, i think, of no avail in that ease; for surely the General Assembly of North-Carolina could as rightfully authorise the liberation, as the Queen could create the corporation and license the purchase.
    Then as to the statute of .Elizabeth : — That statute was certainly made to remedy the defects which existed in on-forcing the execution of these trusts, where those who felt interested could not “ make out at. Law.” Tiie preamble speaks as much. Where was’that act of charities, when jjayW00(i v. Craven’s executors was decided? It was cer-tainíy urged upon the Court with much force and eloquence: but it was disregarded and rejected fay the Court, and a decree was made in contradiction to it. The objects of charity mentioned in the statute are, marrying poor virgins, ransoming prisoners, support of free schools, care of poor people, and the like. It cannot, therefore, bp contended, that the liberating of a slave did not come within the very letter of the act of Parliament. It is said, however, that the law forbade emancipation, except for meritorious services. I answer, that the testator did not design to contravene the law or its policy; for he directs his executors to set his slaves free, whenever the laws of the State shall permit it-
    There is something further in that case. What was done witli the lands and oilier estate, besides the slaves? Did the Court then adopt the statute of Elizabeth, and say, as the main object was a charity, the ransoming of prisoners, we will come as nigh it as possible, and direct a scheme. ? No. The statute was laid out of the, question, and the whole estate, which might, under that statute, upon the principle of cy-pres, have he.cn given to the University, or employed in civilizing the Indians, was decreed to the Plaintiff. Besides, it is not true that the poiioy of the. law forbids the emancipation of slaves. It forbids emancipating them, and keeping them here. Why did not the Court allow the executors to send them out of the State, and to sell the lands for the purpose of defraying the. charges and providing comfortably for them abroad ? The answer is, the Court had no authority to do so, unless it might be under the statute of Elizabeth; and, that not being in force, there was no power to defeat the claim of the next of kin and heir. For, if it be said, that the- liberating a .slave consistently with law, is not a charity within the statute, words must have changed their meaning, and the nature of things altered. Charity is made to smile on learning, while she frowns on freedom!
    It lias been already shewn, that the power exercised by the Chancellor in England in supporting trusts, otherwise void, is not in virtue of Chancery powers, but is a branch of the royal prerogative, operating under the statute of Elizabeth, and that the power is personal to the Chancellor. Who would be considered the parens patria? in this State, or where the Lord Chancellor is to be found here, are questions equally perplexing to me. Mr. Tucker expresses the opinion, in 1*is Notes upon Blaekstone’s Commentaries, that, upon the change of government, every thing like prerogatho vanished.
    Old acts of Assembly have been ransacked, for the purpose of shewing that we had a Court of Chancery before the- revolution, cud thence of inferring that this power belonged to that Court, lint not a trace of the exercise of such a power, or of the operation of the statute in this State, can be found in hk.tory, or hath reached us by tradition. it is remarkable, that in the. act of Assembly,of 1749, c. l, which emcnerat.es all the English statutes which were or should he in force here, tins statute should be omitted, although several others of that reign are specified. Thai fact is conclusive upon the point. It cannot, therefore, be supposed to be embraced by the act of 1778, e. d, as havins; bren in use here: the more ('specially as at that time we had no Court, of Chancery, and did not have one until 1782; and the Court will not construe a statute as adopting another, when, by the existing law. there was no Court to execute it. * There is, however, an essential difference between the powers of the Courts in the two countries. In England, the King can alone create a corporation qualified to take any beneficial interest ; and this he does through the Chancellor, the keeper 0f bis conscience am) of too Great Seal. Any scheme, thenfore, can be reported, am! persons constituted a. c.or-poration filled In character for the object of the trust. O ir C faucet br-s are (lie keepers of their own consHer.ccs only — lliey have no («mat Seal, v.liirli is foe emblem of ¡atufe and the evi'em'" of sovereignty ; tliey have no power to create a corporation, as that belongs to the Legislature.
    
      Gaston. in reply.
    if. instead of words of desire, the testator had given a positive command not to alien, that world not hate made a perpetuity; for the. order would have been void, and the e«tate of the devisees absolute. And Lord Ken;, on, in Doe v. Carter,
      
       adverting to the rule of Law which restricts the feoffor from making such conditions, and avoids them, remarks, that such restriction is impos-d to pr vent perpetuities.
    
    Words of desire will he construed words of command, where the testator has the ri.-ht or power to command; but it is surely otberwi; e, when the law forbids such command.
    
    .Sor does the necessity, that the estate of the devisees should he eo-extensive with the trust, convert this into a perpetuity, 'i'ise purposes ran be accomplished without any such ransom» nee. The objection only goes to the •duration of the estate, anil that has been already shewn to be of no weight. The test is th<‘ power of alienation. Here the trustees take a j'/e simple. to enable them always to kcoep »p a free school. But tic.-re is no particular part— no itr.y. of the property which, if they contract debts, may not he sou! for them; or wide;) l ;e trustees th-. m.-elves may not rightfully sell. But this is not enough, it. is stdl objected, that the «state is to constitute a principal fund, wad to remain unciminisheu forever, and the rents and p,ofi;s only are fo hr «sed. The vv.il on.y re pdivs the “ ura-unt'’ of the esUúe not to be dimhushul; and that is a proper direction. It does not apply to any particular articles, of which the estate is composed. The trustees may sell; they may change from one purpose to another; they may sell one school-house' and build another ; may collect the money due on one man’s bond, and lend it to another; they may make use of every thing, as owners, for the purpose of promoting the object which the testator designates ; and they have a perfect control and ' full power over the whole estate at Law and in Equity also, excepting only that they cannot equitably diminish the “ amount” of the fund. It is conceded that the authorities cited prove the positions, that a legal estate cannot he made to an indefinite multitude, and that Courts of Equity put the same constructions on trusts which Courts of Law do on legal estates. If this were a common trust, for individuals, in such strict settlement that they might forever enjoy, but could not alien it, it would be bad. The policy of the Law forbids it. But that principle only applies to such trusts as sprang out of the statute of uses, being uses not executed by the statute : in other words, only to technical trusts. It may ne admitted, as to them, that the legal estate cannot be sold for the debt of the trustee, so as to defeat the equitable owner. But there is no sucii trust here — there is no person in particular who can claim the benefit of it — no cestui que trust. The only enquiry, therefore, is, whether there be any thing in the. kind of trust created by this will, which is forbidden by law, or is against the public policy. What is this trust ? That a free school shall be kept up perpetually. Is there any law or maxim, that such a school shall not always be kept up ? If it be a perpetuity, is there any law or maxim, that the sovereign or country should not have a perpetuity ? May not the country do with its own as it pleases ? If, while the Constitution enjoins upon the Legislature that, for the convenient instruction of youth, a school or schools shall be established, with such salaries for the masters, paid by the public,'as may enable them to instruct at low prices, can it be believed that the same Constitution will forbid an individual to establish such school, in which youth shall be forever instructed and maintained to the age of fourteen years without any charge ? Or will it be contended, that the schools mentioned in the Constitution were, to he temporary, and that our young men were only to be taught for a season ?
    Why were none of these objections made to such uses before the st. 43 Elizabeth ? Yet they were then deemed good. Why, if such uses were abhorrent to the law, and absolutely annulled the donation» to which they were attached, was the statute of Elizabeth passed avowedly to compel more easily their execution ? Why is it that not a derision, a dictum, a suggestion, that such a use was a peipefuity, has been hunted up ? Again : Why is it, that statu t. s were passed, at various times and at periods remote from each other, to declare certain of these uses to be superstitious and pernicious, if all were already so, as tending to create perpetuities, and thereby avoided the grant's of property to which they were attached ? Finally ; Why is it that Judges speak of the difference of remedy before, and since the statute, if these uses were, in themselves, 'evils which could not be tolerated, because they were against the first principles of public policy ? Why should a remedy be provided for the breach of such a trust? Yet Lord Loughborough, Chief-Justice Marshall, and all Judges, speak of the remedy before being incomplete. Remedy, for wiiat ? To support a public nuisance ! !
    
      Porter’s case has been attacked; and it is said to exhibit a contrivance and juggle between the Crown and the heir. But it cannot be denied, that the decision was made on the strictest principles of Law. The only “juggle55 was, by legal means to uphold the end — to enforce the very purpose of the testator. It would, have been a reproach to the Law, if some means could not have been •devised to euforco. it and prevent the devisee from defrauding both the heir and the charity. The settled rules of the doctrine of conditions were found equal to. the purpose in that case, and were. adopted. But as they might not always be able to discover the heir, and might not find in him, if discovered, a disposition to yield his own interest to reverence for the memory or respect for the wisiies' of the testator, or to a sense of duty to the public, the statute, of Elizabeth was passed, shortly after that decision, to enforce the trust both against ihe devisee and the heir.
    If this objection, as to perpetuities, be well founded, it will subvert all our colleges and other public institutions.
    .'By the Bill of Rights, the Legislature can no more create a perpetuity than an individual can. What then becomes of the canal companies and of all the religious corporations ? What becomes of the'University, chartered ^-in 1789', and made “ capable in Law to receive money and- “ chattels that shall be given for the use of the University, 4e and the same to apply according to the will of the donors, “ and to take by gift, or devise lands to them and their “ successors forever, in special trust and confidence, that “ the same, or the 'profits thereof, be applied to and for ,e the use of establishing and endowing the University i” This, therefore, is not a perpetuity.
    The trust here is a valid one, and can be enforced. In all instances where a trust conferred appears to have been abused, Equity will examine into it, and protect the trust. Even in the case of a corporation, where the trustees, by the terms of the charter, have in themselves the visitorial power, Equity will not suffer an abuse of the trust. Thus, if the trustees of the University should appropriate the profits of their lands to the use of themselves individually, they would be corrected in this Court. As managers of ihe revenues, they are subject to the superintending power of the Court of Chancery, not as itself possessing the visitorial power or a right to control the charity, bHt ay possessing a general jurisdiction, in all cases of an abuse trusts, to redress grievances and suppress frauds. In what character could any particular individual bring a bill in this Court upon such a case ? No person in par-ticuiar has an interest in the estates of the University. The community has the interest, that her youth should be educated there; and Equity will not allow that interest to be defeated. The same principle will apply here, and will lead to the correction of any abuse in the trust now before the Court.
    But it is objected, upon the authority of Maurice v. the Bishop of Durham, that the trust here is too vague, as it leaves the choice of the objects to the discretion of the trustees. The ground of that decision was wholly different from that supposed. It went upon the ground, that no charity at all was created by the will, technically speaking ; because it did not come witliin the provisions of the^ statute of Elizabeth. The ideas of charity and charitable ^ uses are chiefly derived from that statute, and thence flows their legal signification. Such clearly seems to be the notion of the Master of the Rolls, when he says, “ those “ purposes are charitable which the statute enumerates, or “ which, by analogy, are deeemed within its spirit or in- “ tendment; and to such purposes every bequest to cha-<s rity generally shall be applied. But it is clear, that “ liberality and benevolence can find numberless objects not “ included in the statute in the largest construction of it. “ The word ‘ charitable'’ seems to have been purposely <e avoided in this will.” Hence it is evident, that the vagueness, which determined that case, was not, that the selection of the charitable objects was left to the discretion of the Bishop, but that no charitable object was designated) that is, none that the Law called charitable. Here it is different; for every thing is certain. The subject is the whole estate in the hands of the Defendants. The object is a free school; which is technicaliy a charity. It is well settled, that the discretion of the trustees does not make it the less a charity nor does it oppose, the right of this Court to interfere; for, in all cases of discretionary powers, if they be abused, the Court'wiil interfere, and, by virtue of its general jurisdiction over trusts, will take the trust out of impure hands, and place it in honester. And, upon a bill in the name of the Attorney-General, (and any person, however remotely concerned, may be relator,) the Court will compel the trustee to act, or to assign the trust
    
    This view of the subject is milch strengthened by the case of the Baptist Association v. Mart’s Executors. The whole stress of the argument for the Defendants was on two positions. The first, that the statute of Elizabeth had been repealed in Virginia : The, second, that Virginia, and not the United States was the parens patnoe, and had ^the disposition of all charitable donations j thus, if the statute had not been repealed, or the suit had been in the Court of Virginia, it seemed to be agreed on all sides, that the trust would have been executed. And here it may be permitted to enquire, whence the necessity of an express repeal of the statute in Virginia, if the argument bo well founded, that it was never in force in North-Carolina ? Virginia did not expressly adopt it, more than we did. The truth is, that both states being countries discovered and peopled by English subjects, the laws of England then in being, and suited to their situation, became in force immediately. There could have been no institution more necessary to infant colonists, than schools for the education of youth. Hence it is, that an express repeal and not ató express enactment was necessary in Virginia: and so it is here.
    But the argument is still offered, that we had no Court •f Chancery until 1782 ; and that there being no Court to execute the statute, it was not, therefore, in force. The fact seems to be otherwise. Besides the proofs already offered of the existence of the Court here, others are found. rj,¡ie q0(1,,| 0f Chancery is alluded to as having jurisdiction in legatory matters, in 1723, c. 10. It is ordered to sit in Newbern, and to proceed by rules of practice before that time established, in 1746, c. 2, s. 17, 18. The fees of the Governor and the Clerk in Chancery, are fixed, in 1748, c. 2. And lastly, it is recognised as having jurisdiction of orphans, in 1762, c. 4, s. l. But if we had no Court, it does not follow that the want of a remedy takes away the right. All laws remain in force until altered, though there may for a time be no appropriate tribunal. All the Courts of justice in this State were once shut; but that neither repealed nor suspended the laws. In Haywood v. Craven's Executors, the opinion of the Court expressly recognises the statute of Elizabeth ; but the case was declared not to come within its provisions, because “ the “ trust was void, not only as contrary to the general pose licy of the law, but as repugnant to positive provisions i( by statute,” It is plain that the ground of that judgment was, that subsequent statutes had prohibited that species of charity. It no more proves, therefore, that the statute of Elizabeth is not in force here, than any decision upon the st. 9, Geo. 2, in England would shew that it was not the law there.
    
      
       1 Salk. 229.
    
    
      
       12 Mod. 287.
    
    
      
       2 Com. 174.
    
    
      
       Duke of Norfolk’s case, 3, Cases in Chan. Appen. 35.
    
    
      
       Sand, on Uses, 60, 61, 62, 68.
    
    
      
       2 Inst 707 2 Fonb. Eq. 205.
    
    
      
       Maggridge v. Thackwell 1 Ves. 36.
    
    
      
       Griffith Flood’s case, Hob. 1 6. Case of Christ’s College, W. Bl. Rep. 91.
    
    
      
       Attor. General v. Hickman, 2 Eq. Ca Ab. 193. 1 Bridg. 170.
    
    
      
       1 Co. 24, and note.
    
    
      
       10 Rep. 1.
    
    
      
       3 Ves. 726.
    
    
      
       4 Rep. 104-116.
    
    
      
       Whea. 33, 37.
    
    
      
       Coop. Eq. M. 27. 2 Fonb. Eq. 205, 207. 1 Ch. Rep. 134.
    
    
      
       C. 11.
    
    
      
       4 Whea. Append. 20, and the case there cited.
    
    
      
       2 Fonbl. 224-225.
    
    
      
       3 Pr. Wins. 20, 252. 1 Bro. C. C. 508. 4 Bro. C. C. 409. Haywood v Craven’s ex’r, 2 Law Rep. 557.
    
    
      
       2 Atk. 150. Hardr. Rep. 491. 1 W. Bl. Rep. 180, 182, Shep. Touch. 507.
    
    
      
       13 Hen. VII. 9 b. cited Sand. 62, 69.
    
    
      
       Plow. 563, Co. Lit. 2 b.
    
    
      
       Plow. Dev. 314, 337.
    
    
      
       Bv Ab. Tit. Devise, 55, 77. Pow. Dev. 337.
    
    
      
       Shep. Touch. 509.
    
    
      
       Dyer, 100. 2 T. R. 672.
    
    
      
       1 Bl. Rep. 169.
    
    
      
       2 Bur. Rep. 1108. 1 P. Wms. 35, 88, 90, 109, 143. 1 Bro. C. C. 206, 222. Shop. Touch. 507, Note.
    
    
      
       3 Bl. Com. 47, 4.27. Coop. Eq. PI. 27. 2 Eonb. Eq. 206.
    
    
      
      
         2 Vern. 225. Dick. Rep. 168, 169, 258.
    
    
      
       Hob. 136.
    
    
      
       Id. ibid.
    
    
      
       2 Vern. 454.
    
    
      
       Ca. in Chan. 267.
    
    
      
       2 Vern. 453.
    
    
      
       4 Whea. 35.
    
    
      
       Idem. 31, 43.
    
    
      
       1 Vern. 248,
    
    
      
       Amb. 228.
    
    
      
       Mod. 823.
    
    
      
       Id. 890.
    
    
      
       Attor. Gen. v. Eye and Warwick, 2 Vein. 453,
    
    
      
       Com, Dig. lit. “ Devise,” N. 4. 1 Ca. L. & E. 382.
    
    
      
       1 Atk. 469. 2 Bro. C. C. 38, 226.
    
    
      
       Ch. Gas. Append. 28.
    
    
      
       2 Bl. Com. 174. Duke of Norfolk’s case.
    
    
      
       2 Ves. jr. 333, Ó29.
    
    
      
       2 Br. C. C. 38, 226.
    
    
      
       9 Ves. 399. 10 Ves. 522.
    
    
      
       1 tiro. C. C. 223. 2 Ves. J. 655. 1 Bl. Rep. 160.
    
    
      
       60, 69.
    
    
      
       2 Vern. 337.
      
    
    
      
       3 Ves. 726.
    
    
      
       Attorney-General v. Boultbee, 2 Ves. Jr. 380, 387, 389.
    
    
      
       Swann’s Rev. 293.
    
    
      
      
         hH. Sec. 360.
      
    
    
      
       8 T. 1£. 61.
    
    
      
       Malim v. Keighley, 2 Ves. J. 332.
      
    
    
      
       Const. Nor. Ca. s. 41.
    
    
      
       Porter’s case, 1 Co. 24, 3 Ves. 726. 4 Whea. 33, 35, 37.
    
    
      
       Sec. 28.
    
    
      
      
        Per Story, J. iu Dartmouth College v, 'Woodward, 4 Whea* 676.
    
    
      
       Swan’s Rev, 58.
    
    
      
       Id. 228,
    
    
      
      
         Id. 350.
    
    
      
       Ired, Rev. 202.
    
    
      
       2 Atk. 87.
    
    
      
       2 Fonb. Eq. 206. 4 Whea. 672, 676.
    
    
      
       Com. Dig. Tit. “ Chancery,” sec. “Charitable Uses,” 2 N. 1. Ai-terney-Genl. n. Gove^ners ef Harrow School. 2 Yes. Sen, 152.
    
    
      
       4 Wh«íu 1,
    
   Tatxojr, Chief-Justice,

delivered the opinion of Him-sexf and Murphey, Judge, who sat for Judge Henderson.

It is impossible to read this will without wishing the objects of it may be lawfully accomplished, since their nature is so purely benevolent, and they promise to afford such extensive benefits to the part of the state where the trust is to be carried into execution. But this very circumstance admonishes a judge to be cautious in every step lie tabes — to recollect that his office is to administer the law as he finds it, am! not as lie wishes it to be, and to arm himself with new resolution in á case, so peculiarly calculated to enlist the judgment on the side of the affections.

The subject too, is in a great measure rrew in our Courts, and is acknowledged to be entangled with difficulties even in the country whence we derive our legal notions ; so that it is not easy from the multitude of conflicting decisions, to extract the true principle on which the case- ought to be placed.

The bill is filed to attain an account and division of the real and personal estate of Moses Griffin, and to have his executors declared trustees for the Complainants, who are the heirs at law and next of kin of the testator. The bill is demurred to $ and the argument has involved many in* foresting and important topics, towards the illustration of which,' numerous authorities have been adduced and commented on.

The principal objections to the will are, that it tends to produce a perpetuity$ that the objects of the trust are vague and indefinite j and that as it is discretionary with the executors whether they will fulfil the trusts or not, there is no one to call them to account. Hence it is alleged, that the property ought to be given to the next of kin and the heirs.

It is deemed material to remark, in the first place, that the executors do not seek the aid of the Court, at present, to establish the charity, whatever they may do in future : but this application is made by the heirs and next of kin to defeat the will — so that, if the trust be valid at law, and the objects of it sufficiently certain, it seems superfluous to enquire into the powers of the Court, in relation to charitable devises and bequestsj for if it were conceded that a Court of Chancery in this State is invested with no such jurisdiction over such subjects, yet if the disposition of the will is valid at law, the demurrer must be sustained, and the executors left to manage the fund in such way as the ]aw prescribes and under such protection as it affords. If the trust were unlawful, the Court would decree the property to the Complainants, as in the case of Craven’s will: jf j|. j)(J ]axvf„i an(] sufficiently definite to be carried into execution, it cannot be subverted in this Court.

There is no principle of Law which forbids the appropriation of property to charitable uses, since the power of alienation was introduced. A devise to individual trustees, by name, for any pus-pose, not made unlawful by the .statutes of Mortmain, has ever been deemed valid since the statute of wills, independent of the 43d Eliz.. The Civil Law was distinguished for the protection it afftmled to such bequests$ and the first decisions under the statute of wills were probably influenced by a like disposition in the Courts. To maintain a charity expressly declared by the testator, seems to follow naturally from the former power of the Ordinary to apply a part of every man’s personal estate to charity. In Porter’s case, the devise was to the wife, on condition that she should grant the lands for the maintenance forever of a free school, w'hich the testator had erected, and of alms-men and alms-women attached to it. By those who argued in support of the devise, one reason given was, that the statute of Hen. VIII. avoids superstitious and not charitable uses. Another was, that if it extended to this, it made the use, and not the conveyance, void. And the devise was sustained by the Court. The condition was held to be a lawful one, and such as the trustee ¡night execute. It was because the condition was not performed, that the heir was permitted to enter. This case is commented on by the Chief-Justice of the United States in the Baptist Association V. Hart’s executors, and it is taken for granted, that the trust was a lawful one, and might have been performed.

In enumerating the trusts not executed by the statute of uses, Sanders puts this case — If a man .enfeoff two or three persons and their heirs in trust, and to the intent that the inhabitants of such a place should hiive a free school, or in trust to maintain poor children, this trust is not executed by the statute of 27 Hen. VIII, for the land must remain in the trustees to answer the purposes of the trust, and, therefore, not a use executed by the statute. One reason for this construction is, because a use cannot be limited to a parish or any indefinite multitude, by a general name, it being'no corporation, and without any public allowance. But this limitation of ttie use is good as a trust. Another reason, because it is a rule in Chancery, that where lands are given to trustees in trust to pay the profits over, the lands must continue in the trustee, in order to perform the trust.

These two instances of valid trusts at law, where the objects of the trusts arc not more certain, and in the last case, less so, than in that before us, shew that the will is sustainable at Law.

In the case before cited from Wheaton’s Reports, the bequest was to the Baptist Association that for ordinary meets at Philadelphia annually, for the education of youths of the Baptist denomination ; and it was held that the association, not being incorporated at the testator’s death, could not take the trust as a society. The Chief-Justice observes, The cestui que trust can be brought into being “ only by the selection of those who are named in the will “ to take the legacy in trust; and those who are named are incapable- of taking it.” In the case before us, on the contrary, the executors are capable of taking the estate in trust, and are therefore capable of selecting those who are to be benefited by it. If then the widow in Porter’s case might lawfully grant the land for the maintenance forever of the free school and of alms-meh and alms-women i and the feoffees in the case from Sanders might lawfully provide a-free school or maintain poor children, I cannot perceive any reason why the executors in this cas# may not purchase land, erect a school, and select the poor children to be educated and bound out. The trust may be carried into completé execution by an act of incorporation, as was suggested in Porter’s case; and by the same means also the objection may be obviated that there is no person to call the executors to account. This inconvenience, however, arises from the act of the testator himself, who may fairly be presumed to have known where he might safely confide so large a trust; and, as he might have given the property absolutely to the executors, no reason is perceived why he might not invest them with discretionary powers for so beneficent an end.

It is true, that a Court of Equity assumes a control over trusts in general, and if the objects be uncertain, will consider the property undisposed of for the benefit of the heirs and next of kin. But here the objects are distinct, viz. the education of poor children and the binding them out as apprentices. As all the poor children in that part of the country could not receive the benefit of the fund, a discretion was necessarily confided to the executors to select such as stood most in need of that aid. Without so much discretion as this, no charitable institution could ever have been established ; for though it might be possible for a testator to designate existing objects, how could he point out those hereafter to be admitted.

The devises and bequests are next objected to on the ground that they tend to a perpetuity. The meaning which the Law annexes to this term, is that of an estate tail so settled that it cannot be undone or made void. As when, if all the parties who have interest, join, they cannot bar or pass the estate ; but if by the concurrence of all having the estate tail, it may be barred, it is not a perpetuity. It is in reference to estates tail, that the word is used in the Bill of Rights • for there was no other estate that had a tendency that way. A condition not to alien. annexed to a fee simple, is void j and the rules relative to executory devises, by which their duration is limited, had' effectually checked their tendency to a perpetuity. In obedience to the declaration of the Bill of Rights, and to the injunction in the Constitution, the Legislature of 1784 abolished entails — giving as a reason that they tended to raise the wealth and importance of particular families, and to give them an undue influence in a republic. This shews plainly that they designed to prevent the accumulation of individual wealth, and did not contemplate the possibility of any evil likely to arise, from the establishment of a permanent fund for charitable uses. The probable effect of this was the reverse of what they meant to guard against, as it promised to increase the equality of the republic. It would afford the means of instruction to those who could not otherwise procure them ; it would diffuse knowledge and morality amongst that class of society which stands most in need of them, and, by rendering them useful and efficient members, add to the strength and happiness of community. Assuredly, then, property applied to these ends never entered into the Common Law notion of a perpetuity : otherwise the objection would have been taken in Porter’s case, and the many others to be found in the books where similar dispositions have been made. The Common Law has always been adverse to perpetuities, and it is acknowledged on all hands that exe-cutory devises, on account of their tendency that way, are not the legitimate offspring of it, but a privilege gradually insinuated into its system. The opposition to mortmain did not arise from the mischiefs likely to ensue from the stagnation of property, but from the loss occasioned to the Barons, of the profits of their tenure. It is true, that one of the. last mortmain acts in England recites this as an evil; but that proves that it was not an inherent objection to such dispositions in point of Law, otherwise they would not ha\ e subsisted for so long a period. I am thus led to conclude, that a perpetuity which the Law would deem void, must be an estate so settled for private uses that by the very terms of its creation there is no pot estas aliena,nili in the owner. There is no such restraint imposed upon ^lese execut0rs. They, like other trustees, may sell for a valuable consideration ; but whether the purchaser can acquire such a title as will prevail against the cestui que trust, will depend upon his having notice — an incidental circumstance wholly independent of the right of selling.

• The next enquiry is, whether a Court of Equity in this State lias jurisdiction of the subject. At the period of the first settlement of this State, then a Colony, the Chancery in England was in tiie regular exercise of jurisdiction over charities, under tiie 43d Elizabeth. A similar Court wfts established here by tiie Lords'Proprietors, under the general powers given them by the Charter, it was held by the Governor and Council, and continued until the year 1777, when tiie separation from tiie mother country took place. The foi¡owing year, the Legislature declared all sucii parts of tiie Common Law to be in force, as were heretofore in force and use within this territory, or so much as is not inconsistent with the independence of the State. Under a similar provision in the laws of New-Tork, Chancellor Kent thought the Equity system was of course included. From the Revolution to the year 1782, there, was a suspension of equitable remedies, and sometimes of legal ones, from the Courts of Justice being shut up. Equitable rights continued to subsist notwithstanding ; and in 1782, Courts of Equity were established, with all the powers and authorities that the former Court of Chancery used and exercised, and that are properly and rightfully incident to such a Court, agreeably to the laws in force in the State, and not inconsistent with the Consti-stution. That the cognizance of charitable devises and bequests was taken by the Chancery in England, and that it was a power “ rightfully incident” to such a Court at the date of the Charter, is shewn by the adjudged cases— ■whether the Court of Chancery in this State actually ex-crcised a similar jurisdiction* there are now no means of ascertaining.

The objection in tills case is founded on the peculiar nature Of the subject as it is viewed by the laws of England. It is laid down in the books, that the King, as parens patriae, has the general superintendence of all charities not regulated by charter, which ho exercises by the keeper of his conscience, the Chancellor; and, therefore, the Attorney-General, at the relation of some informant, Where it is necessary, files ex officio, an information in the Court of Chancery to have the charity properly established and applied. It is also said, that the jurisdiction thus established, does not belong to the Court of Chancery as a Court of Equity, but as administering the prerogative and duties of the Crown; and that the duties vested in the Chancellor by the statute of Elizabeth are personal, and not in his ordinary or extraordinary jurisdiction in Chancery — the same, in fact, which he exercises with respect t.o idiots and lunatics. Admitting this to be so in the broadest terms, it does not, to my mind, present any real difficulty to the like power being exercised here. It opens a wide field of investigation, which I have reflected upon, but which I do not think it essential to enter into. The short ground upon which I should place it is, that, upon the revolution, the political rights and duties of the King devolved upon the people of this State in their sovereign capacity. That they, by their representatives, had a right to deposit the exercise of this power where tiiey pleased, and that they have placed it in tiie hands of the Courts of Equity. Whether this be a correct view or not, does not affect the principle of my opinion in this case; because, I think, that where there is a trust and a trustee, with some general or specific objects pointed out, or trustees for general or indefinite charity, a Court of Equity may, as a matter of trust, take cognizance of it in virtue 0f its ordinary jurisdiction. This position is maintained *he authorities quoted in a learned note to the Appendix of the 4th volume of Wheaton’s Reports; which cases j jjave examine,d as faP as I have had. access to them— some in the Reports, and others in abridgments. The cases further shew, that in indefinite trusts, or trusts where some general objects are pointed out, the distinction most acted upon, is, that in a general indefinite purpose, not fixing itself upon any object, the disposition is in the King by sign manual. But where the execution is to be by a trustee, with general or some objects pointed out, the administration of the trust will be taken by the Court of Chancery, either as delegate of the Crown, or as a Court of Equity, and managed under a scheme reported by a Master and approved by the Court.

I am consequently of opinion, that the demurrer be sustained, and the bill be dismissed.

Hah, Judge,

dissented. He said, that writers on the English Court of Chancery divide its jurisdiction into four parts: the Common Law jurisdiction; the Equity jurisdiction; the Statutory 'jurisdiction; and, lastly, the specially delegated jurisdiction.

The subject matter of this bill cannot fall within the first. If it fali under the second, it must be under that division of it which we call trusts. In that light, it must he regarded merely as a trust, and unconnected with the statute of the 43d Elizabeth. In order that it may be supported on that ground, there must be trustees, and a trust to some person or persons, or to some particular definite object, marked out so that the trustees can be compelled to carry the trust into effect by those who are the objects of it. Here there, are trustees; but it depends upon their will and discretion to point out and select persons as objects of the testator’s bounty. There is no ces- iui que trust, who can call for the execution of the trust. The charity cannot therefore be carried into effect and established independent of tfie statute of Elizabeth, for want of an equitable devisee. Another objection to this devise is, that it cannot be sustained at Law. Our Bill of Rights declares, tiiat perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed. And the 43d section of the Constitution declares, that the future Legislature of the State Rostid regulate entails in such manner as to prevent perpetuities. At that time, perpetuities appeared most prominent in estates tail, and the clause in the Constitution just recited was inserted with a view to them. But the clause in the Bill of Rights was inserted to prevent perpetuities generally. To make the present devise sustainable, it must harmonise with that high authority. If the trustees die, the legal estate given' to them will pass into other hands, and, in contemplation of Law, will last forever. And the trust, which cannot exist without it, and is wholly dependent upon it, will have a co-equal existence. Thus a portion of property would, by a decree of this Court, be locked up forever, and withdrawn from any ownership by which it might be aliened. It cannot be disposed of without a breach of trust, except such disposition be for the benefit of the charity. It cannot go in debt. It is doomed to its course, and will admit of no deviation. It is not a good executory devise, which may last for a life or lives in being and twenty-one years afterwards; but it is a devise that may last forever, and must not be interrupted. The devise may be laudable ; but the end cannot sanctify the means. Were these trustees a corporation, these objections might vanish. But this Court, in the exercise of its ordinary powers as a Court, of Equity, does not possess the power of creating corporations.

I will now enquire for a moment, whether this case falls within either the third or fourth division of the Chancellor’s jurisdiction; and this enquiry I will make as to both at the same tima.

The King, as parens patrien, lias the general superintendence of all charities, which he exercises by his Chancellor, the keeper of his conscience. The Chancellor possesses and exercises this power by virtue only of such delegation ; and such power thus delegated, is the foundation, of which the statute 43 Eliz. c. 4, is the superstructure. To that power of superintending charities which the Chancellor, as the keeper of the King’s conscience, possesses, the statute addf the power of enquiring into all abuses of charitable donations, and rectifying the same by decree. Thus, then, the power which the King possesses of creating corporations, the power which he delegates to the Chancellor, of enquiring into abuses of charitable trusts, and correcting the same, are powers, when united, sufficient to determine all questions relative to charities ; and sufficient to establish corporations, and then vest in them all donations agreeably to the will of the testator or donor. In the case before us, the trustees could be converted into a corporation, and the property vested in it, to be applied as the testator has directed. In that case, there could be no objection to it as a perpetuity. Our Court of Equity, clothed with all the power which the statute of Elizabeth could give, cannot create a corporation» 
      
       White v. White, 1 Bro. C. C. 12. Maggridge v. Thackwell, 7 Ves. 36, 69.
     
      
       1 Rep. 22.
     
      
       P. 62.
     
      
       Manning v. Manning, 1 Johns. Ch. Rep, 535.
      
     
      
      
        3 Bl. Com. 427. 2 Fonb. Eq. b. 3, c. 1.
     
      
       7 Ves. 36, 86. 1 Merir. 55. 14 Ves. 364. 15 Ves. 231. 17 Ves. 371. 16 Ves. 206.
     