
    COURT ÓF APPEALS, JUNÉ TERM, 1822.
    Dashiell et al. vs. The Attorney General.
    iw or chanties riffinotmi, i.i the? statute of chanta-, Me mes oi-43 mix. ch. 4, and Hide pomifnt of that ciinritabáeviSt?se°, ¿I ™'d |n'msiples Tho peculiar law of charities
    directs !te income paid'sovei^by°iiis taiítiwoM, ami veno áppTOpmtl«f'farihcf directs equally divided^ one half to heap-l>uccUowardsfind-for niff, &c. the poor «hiidven beion*?ing: to the congrcsation of St. pcter s Protestant Ei>iscop^cii«reb tooTORuL?ond Sd'into0 ^d.andtSt'tue tra«crcwítf fmSexto?'wn of ule
    of, an indefinite immediate devise to s«ch an
    The statute of 43 euz. ch 4, is not miorce in this
    „ —•’nííanthorUyit is entitled to
    Appeal from Baltimore county coiirt sitting ás a court of .. - . . , > j , . . equity. Tliis was an uilormation and bill of complaint tiled , i , „ 1 m the name of the Attorney General, at and by the rela- , * ’J * f tJon 0f the trustees of Hillsborough school in Caroline and the vestry of Saint Peter*s churcli in the °f Baltimore, and the trustees of Saint Peter’s school the said city, oh the behalf of themselves and of Peter Éumué, &c. poor children belonging to the congtogatioii Protestant Episcopal Church in the city of Saint Peter of Baltimore, and of the rest of the poof children belonging to the said congregation, against the Reverend George Dashiell, George TP. Dashiell and Mary his wife, to eatablish certain charitable devises in favour of the relators and complainants, and to enforce the ■ execution of a trust 1 ; , . - _ _ ~ . that purpose in the will or James Come, dated the A L - lath of March 1805. The will referred to, after appoint-1 1 ¡ug George and John Yates executors, and the appellant, o o 7 ri 7 George Dashiell, and Henry Downes, trustees of the testaestate, and guardians of his daughter and only child* directing the mode in which his estate should be administered, and the proceeds (after payment of his debts,) invested in certain banks by his executors, and be by them paid over to his trustees, contains the following clauses—will that my daughter Mary shall have a woman to nurse and attend her; and all the necessary expenses at-my daughter Mary, and the expenses of a woman ° J , , . ,. L _ . . to attend her until she attains the age ot eighteen years. , ° ° v . J shall be paid out of the income of my ‘estate, received by « ° , « my trustees from my executors, and the residue of .the in-come> after deducting my daughter Maryy and her servant’s expenses, shall be appropriated, until she attains the above age of eighteen years, as follows: It shall be equally divided, one half to be applied towards feeding, clothing and educating, the poor children belonging to the congregation of Saint Peter’s protestant episcopal church in the city of Baltimore; the other half to be applied towards feeding, 
      
      lioihihg and educating the poor children o¿ Caroline comty, in the state of Maryland, which attends the poor or chaHty school established at Hillsborough, in said county, the trustees of which school are to receive from my trustees the aforesaid appropriation, in payments at every six or twelve months, ánd appropriate the same in the manner I have now willed; and should my daughter Mary die before she becomes eighteen years of age, in such case I will and bequeath the whole income of my estate to be equally ■divided, one half to be applied towards feedings clothing and educating, of the poor children belonging to the congregation of Saint Peter's Protestant Episcopal Church in the city of Baltiihorc; the other half to' be applied as afore'said for feeding, clothing and educating, the poor children of Caroline county, in the state of' Maryland, which attends the poor ór charity school established at Hillsborough in said countyi I will that should my daughter Mary, on her-becoming marriageable, connect herself by matrimony to a man of good moral character, and have the consent of one or both of her guardians, or one or both of my executors, to the connexion she forms, that'she shalL be entitled to receive from my trustees, and they shall pay to her -for ■ever, the one half of the net annual income of my estate; the other remaining one half of the.annual income will then be equally divided by my trustees, the One part of which to be applied towards feeding, clothing and educating, of the poor children belonging to the congregation of Saint Peter's Protestant Episcopal Church in the city of Baltimore, anti the olher part to the feeding, clothing and educating, the poor children of Caroline county, in the state of Maryland-, which attends the poor or charity school established at Hillsborough in said county. But should my daughter Mary, on the contrary, marry any man in a clandestine manner-, without obtaining the consent of one or both of her guardians, or one or both of my extecutors, they shall, in such case, withhold from her any benefit from my funds, until they ascertain how far the man she may so tnarry is worthy of receiving any benefit from my funds arising through hor. And should my daughter Mary not form any connexion in matrimony after attaining the age of eighteen years, she will be entitled to have the same support, with a servant woman to attend her, as she had until she attained the age of eighteen years, with a further alIowahcé of what money her guardians or my executors may consider necessary for her to defray all decent expenses.” “I will, that if at any future period any of my relations should require assistance; to he supported, clothed and educated, that my trustees; in virtue of this will, shall give "the preference to them, either iii the county of Caroline, in the state of Maryland, Or the eity of Baltimore, in said state, or in any other place; tliey shall attend to their wants as aforesaid in preference to all others.” The will was proved on the 18th of May 1805. On the 25th of January 1806; the trustees of Saint Peter's school Were legally incorporated. The answers of the defendants insisted,that the relators were not entitled to relief, and that the devise conferred no interest which could be established in their favour, blit that the same was void, and a trust only for the next of kin, the testator’s daughter Mary, one of the defendants. The county court decreed proforma, that the charitable bequests and'uses made and created by the will of James Come, ought to be established, and the trusts thereof performed and carried into execution. That one moiety of the whole estate, &c. should remain vested-in the' defendant George Bashiell,- to be by him held and applied for ever thereafter for the benefit of the daughter ©f the said Corrie, now Mary Bashiell, wife of the defendant, George B. Bashiell, and her legal representatives, as directed by the' provisions of the said will-. That the other moiety of the' whole estate, &c. be divided into two-equal moieties, whereof one moiety was to'be assigned; &c. by the defendant, George Bashiell, surviving trustee under the said will, to 'The Trustees of Saint Peter's School in fhe city of Baltimore,- in: the manner thereinafter mentioned and directed.- And as between the relators’and the defendant, George Bashiell, it was decreed, &c. that the said George Bashiell be removed and discharged from' the trust under the said will,- so far as it related to'the said relators, and that The Trustees of Saint Peter's School,’ and their Successors, should be substituted and appointed trusteesdo execute the trusts under and created by the said will, safar as concerned “the poor children belonging to the congregation of Saint Peter's Protestant Episcopal Church in? the city of Baltimore," and that the said George Bashiell, surviving trustee as aforesaid, should assign, &c. one moiety of the charity estate, that is to say, one fourth part of the whole estate, &c. no\y in his hands as surviving trustee as aforesaid, or to which he had any right or title, as such trustee, unto “The Trustees of Saint Peieris School,” and their successors, for ever,, ip, severalty, and not subject to the control of any person or body politic whatever, to and Upon the cljaritable uses declared by the testator, James Carrie, in favour of “the poor children, belonging to the congregation of Saint Peter’s Protestant Episcopal Church in the city of Baltimore,” and to be by the said.trustees of Saint Peter’s school for ever thereafter held an<j¡ applied to the charitable use aforesaid,, and none other,. From which decree the defendants appealed to this court.
    The cause was argued bpfore Buchanan, Earle, Mar-, tin, and Stephen, J,
    
      Taney, Winder, and Murray, for the appellants,
    contended, 1.That the devise in Corrie’s will, intended for the-benefit of the relators, was void for uncertainty, and was. not cured by the statute of 4.3 Elizabeth, ch. 4, for regulating charitable uses,
    2. That if such devise was within the remedy of that statute, the statute was not in force in this state.
    3, That said devise was void under the 34th artiple of.' the declaration of rights of this state,.
    On. the first point they argued, that, the relators, the persons, intended to.be benefited by the devise, were not, independent; of the statute, by the general principles of the-law of devises,, designated with sufficient legal certainty. They cited Peno, on Dev. 276, 277,. ('diS.-J-S Com. Big.. tit. Bevise, (K.) 412. Taylor vs. Sayer, Cro. Eliz. 742. Anon. 1 P. Wms. 327. 4 Bae. Ab,.tit. Legacies, 329, 330. The Baptist Association vs. Hart’s Ex’rs, 4 Wheat. 29. The acts of 1.802,. ch. 105, and 1803, ch. 45, establishing and incorporating St. Peter’s Church and school. 3 Com. Big. tit. Devise, 410. That the general principle of the law of charity was, that' all the- defects in the form of assurance were cured by the statute of charitable uses, and were to be enforced by the court. That the object of- the statute of 43 Elizabeth, ch. 4, was to supply all defects in the assurance, and to give effect to every devise or gift to charity which would before have been void, and that the doctrine of charitable uses originated from that statute. They cited 2 Fonbt. tit. Charities, s. 2, p. 209,211. Duke’s 
      
      Charitable Uses, 371. The Baptist Association, vs. Hqrt> 4 Wheat. 1,29. The Attorney-General vs. IIowner, S Ves, 726. Morice vs. The Bishop of Durham, 10 Ves. 540» ■* •> ' 9 Ves. 405, S. C. Mills vs. Farmer,, 1 Merivale, 87. 4 Wheat, (appendix,) 5. Duke, 355, 356,359, 360, 362, 366, 368, 370, 379, 385. 2 Fonbl. 206. Dartmouth College vs. Woodipard, 4 Wheat. 677, That the chancellor iji the province, had not the same powers as the Lord Chancellor had in England, Snow vs. Gerrard in the upper house in 1663, That tlie case of charities did not belong to the court of chancery, exclusively as a court,of equity. Cooper’s Plead. 27, 101,102. % Fonbl. 29. The Baptist Association vs* Marl, 4 Wheat. 37. Unless it was a charity within the, statute of Elizabeth, there was no power to’ sue in the name of the Attorney-General, and there could be no relief by information. The Attorney-General vs. Ilewer, 2 Vern. 387. The Attorney-General vs. Ncwcombe, 14 Ves. 7, Where the obje'et of the donor is definite, but cannot be effected, the court will not look to another object, but let the property go to the next of kin or the heir at law. 1 Bac. Ah. tit. Charitable Uses, (l),) 587, (notes.) The Attorney-General vs. The Bishop of Oxford, 1 Bro, Chan, Rep. 444. So where the testator discovered no general intention beyond that specified in his will, and that was disappointed. The Attorney-General vs. Goulding, 2 Bro. Chan. Rep. 428. The Attorney-General vs. The Earl of Winehelsea, 3 Bro. Chan. Rep. 379* So a bequest to the testators 'most necessitous relations would go according to the statute of distributions.’ Widmore vs. Woodr 'ojfeAmbl. 640. Jones vs. Beall, $ Vern. 381. That where there is a general intention as to the charily, it ■plight be appropriated to particular charities, but not where there was a particular bequest to a particular object. Be Cosia vs, De Pas, Ambl. 228. Moggbridge vs. Thackwell, 7 Ves. 80. Mills vs. Farmer,! Mer. 55.
    
    On the second point, they referred to the Declaration of Rights, art. 3. , The Slate vs,. Buchanan, et al. (ante 317.) Killy’s Rep. of the Stat. 87. Resal, of 1794, No. 10; 1809, No. 22; 1810, No. 21, and 1816, No. 69. Whittington vs. Folk, 1 Harr, Johns. 250. Rep. of the Stat. in Pennsylv. 5 Binny’s Rep. 595, The acts of 1704, ch. 38; 1722, ch. 4, and 1723, ¿h. 19. Jackson vs. Hammond, 2 Caine’s Cases337. Colonists may adopt or reject the laws of the another country'. GrosiusB 2, s. 10. Swift’s, 
      
      Laws of Con. 40. The doctrine of charity, whether, under the statute, or common law, was not a legal, but a prerogative one, and such as could not be authorised under our form of government. Moggbridgevs.rPhackwdl,\ Ves. fr. 464, and 7 Ves. 35. 5 Bye, Ab. tit. Prerogative, (D. 5.) 534. Cooper’s Plead. 21?. 3 Blk. Com. 427. Highmore on Lunacy, $8. No appeal lay from the chancellor on a decree for charitable uses under the statute.. Saul vs. THU son, %Vern. 118. The statutes of mortmain were expressly introduced as to all the landed- property in the province, by the conditions of plantations in 1£4?- Ifilty’s Land Hold. Ass. 42.
    
      Harper, and R. Johnson, for the appellees,
    contended, 1. That the bequest was good under the statute of Elizabeth; and that th$t statute was in force in this state. 2. That a devise similar to the presepf, independent of the statute, might be enforced in chancery. They argued that a devise to charity in general was valid by the statute. So was a devise to the poor generally; and if so, that a devise to the-poor of a particular congregation was of course good. If it did not come under the statute, it was because the remedy afforded by the statute was. not necessary. The statute of Elizabeth, which is set out ip Duke, 127, repealed the statute of mortmain, and was intended' to remedy devises of this kind. That it was in force in this state, they referred to the Decl. of Rights, art. 3. 1 Blk. Com. 107, 2 P.TVms.75. Blankardvs. Galdy, 2 Salk.411. Smith vs. (Jould, Ibid 66(>. The State vs. Buchanan, et al. (ante S17.) King vs. Bond, 4 Burr. 2500. 1 Tucker’s Blk, (Appen-. (Ka;,/).412,443, Acts of 1704, ch. 38, 1723, ch. 19. An appeal would lie from a decision under the statute for charitable uses. 3 Blk. Com. 437.
    2. That the bequest could be supported at common law, independent of the statute oí Elizabeth. They cited Poto, on Dev. 428, 421, 422. Isaac vs. Befriez, Arnbl. 595. Brundsden vs. Woolredge, Ibid 507. 4 Bac. Ab. tit. Legacies fy Devises, 329, (notes.) Duke, 360, 361. 4 Coke, 109, 111,115, 116. 1 Coke, 22,b. The Attorney-Gen eral vs. Bowyer, 3 Ves. 725. The statute of Elizabeth gave effect to some devises which before were invalid; but the greater part of those it embraced could be enforced before, and informations for charitable uses did not grow up under it. Porter’s case, 1 Coke, 22. Eyre vs. The Countess■■ 
      
      of Shaftsbury, 2 P. Writs. 103, 110. Falkland vs. Ber* tie, 2 Fern. 342. Christ’s College, Cambridge, 1 I?7. Blk, Jlep. 91. 3 Blk. Com, 427. Buhe, 108, lfiS. Dig. of Chan, Rep. 40, pi. 2, 12, 3 3. 2. Cas. in Chan. 18. Where the person? to take were capable of being identified, the court of chancery would supply the place of trustees; but here, there were trustees sufficiently designated, as were also the cestui que trusts. Brundsden vs. Woolr.cdge, Jhnbl. 507. Widmor.e vs. Woodroffe, Ibid 63G. That the right might be enforced in this state under our constitution,_ they referred to 3 Blk. Com. 47, and the Const’, art. 3G._
   Buchanan, J.

delivered the opinion of- the court. • This, ease ha? been ably and elaborately discussed; and on an. attentive examination of the numerous authorities referred: to, and relied upon in argument by the counsel on either’ side, we have come to this conclusion:. That the peculiar law of charities originated in the statute 43 Elizabeth, for. regulating- charitable uses, and that independent of that-statute, a court of chancery cannot,, in the exercise of its. ordinary jurisdiction, sustain and enforce a bequest to charitable uses, which, if not a charity, would- on general", principles be void; and in this we. are supported by the decision of the Supreme Court of the United States, in tlio.. case of The Bqptist Association against Hart’s Executors, 4 Wheaton, 1, in which all the principal authorities, are reviewed, and the subject very fully investigated:

It is an admitted general principle, that a vague.bequest,. the object of which is indefinite, cannot be established in a. court of equity.

Is this a bequest of that description? We think it clearly i?. The. testator, by his will, appointed the appellant, George Dashiell, and Henry Downs, trustees of his estate, apcl guardians of his only child, with instructions to his executors to pay over to them the annual income of his estate, to be by them appropriated according.to the provisions of the. will, which, after providing among other things, for the payment of Iris debts, and' the support and education of his daughter, directs the residue of the income ot his estate “to be equally divided-, one half to be applied towards feeding, clothing and educating, the poor children belonging to the congregation of Saint Peter’s Protestant Episcopal Church in the city of Baltimore, ” &c. with cer* thui provisions for the eventual increase or decrease of the fund, so set apart for that purpose.

Wherever the word poor or poorest, has been used ¿s á term of description in a devise or bequest, it has been held to be insufficient, for uncertainty; as a devise to twenty of the poorest of the testator’s kindred. Powel on Devises, 419. 3 Com. Dig. 412, with many Other authorities, to which it is unnecessary to refer, in this case the bequest is quite as vague and indefinite as if it was to twenty of the testator’s poorest relations, or to his poof relations generally, or to the poor people of a particular county.

Who are “the poor children belonging to the congregation of Saint Peter’s Protestant Episcopal Church in the City of Baltimore?” No court can know, or have the means of ascertaining; and the description of the cestui que trust is so vague, that none can be found who, upon the general principles of equity, can entitle themselves to the benefit of the trust.

It seems to' be supposed, that the power of ascertaining and designating “the poor children belonging to the congregation of Saint Peter’s Uiurch,” is given by the will to the trustees, and that the beneficial interest of the cestui que trust may be sustained by reason of the intervention of trustees capable of taking the legal estate, on the principle that id cerium est quod cerium reddipotest.

If it be admitted that authority is vested by the will in the trustees to ascertain and designate who are the poor children belonging to the' congregation of Saint Peter’s Church, it cannot, abstracted from the' statute, assist the case of the defendants, for being a personal trust, without the aid of the statute, the cestui que trust can only be brought into being by the ascertainment and designation of the trustees; and there being no such ascertainment and designation, though certain selections have been made, no persons exist Iiaving in themselves a vested equitable interest which they are capable of asserting in a court of equity. The bequest therefore is too vague and indefinite to be carried into execution on general principles, there being none who can show themselves entitled to the beneficial interest, but is void, and the subject of the trust being undisposed of, the benefit of it results to the next of kin, as in the case of Morrice vs. The Bishop of Durham, 9 Ves. 399; where the devise was to the Bishop, in triiát “to dispose ot the ultimate residue to such objects of be-,.1 ,. .... .. . , .. nevolence and liberality as he m his own discretion should .. , , . , . most approve or,” which being held not to be-a charity,the bequest was determined to be void, and the residue decreed to the next of kin, on the ground that it was too indefinite to be executed by the court, which, as the master -of the rolls said, “had not been and could not be denied.” And if it were otherwise, the trustees, by neglecting to execute the trust, might virtually convert the trust into the ownership of the trust fund. If there was here a discretion vested in the trustees appointed by the testator, that case would precisely fit this, there being no legal distinction in this state between a bequest to charitable and other objects. But no such power is given; the trustees are directed to appropriate the fund entrusted to them, to the feeding, clothing and educating, the poor children belonging to the congregation, &c. that is, all the poor children belonging to that congregation, not such as they "might select, and’ without any right or power to discriminate; and there is no difference whether a devise or bequest be immediate to an indefinite object, or to a trustee for the use and benefit of an indefinite object. If it be immediate to an indefinite object, it is void, and if it be a trust for an indefinite object, the property that is the subject of the trust, is not disposed of, and the trust results for the benefit of thos'e to whom the law gives the property in the absence of any other disposition of.it by the testator or donor; and independent of. the statute of Elizabeth, no court in this state can by any mode carry such a devise or bequest into effect in violation of vested individual rights. It would be to make and not expound and enforce wills; an arbitrary exertion of judicial power altogether inconsistent with any principle known to the institutions of the state. And it is believed that in England, before the' Statute of Elizabeth, no charity could have been established on information in the name of the Attorney General; where the instrument creating it was defective, or the object of the donor’s or testator’s bounty was so vaguely and imperfectly described as to be incapable of taking if it was not a charity, and the thing-intended to be given would vest in the heir at law or next of kin; but that whenever' ‘charities were established on such informations, they were such as were valid in law, and the enforcement of which did not interfere with vested private rights. It is also, in this case, a fatal objection to the validity of the devise, that it is not for the benefit of those poor children alone, who at the time belonged to the congregation of Saint Peter's Church, but of the poor children who should in succession belong to that congregation, and who not being a corporate body were incapable of taking in succession. A devise or bequest immediately to an object incapable or taking, or in trust for such an object, standing on no better footing than if it were to a vague and indefinite object, and “The Trustees of Saint Peter's Church," and “The Trustees of Saint Peter's School," and “The Trustees of Hills* borough School, in Caroline county," have clearly neither of them either a vested right in themselves, nor any benefi'cial interest in the trust.

The next and principal question is, whether the statute 43 Elizabeth is in force in this state? which we think depends entirely on the construction to be given to the third section of the bill of rights, and the evidence furnished by ■Chancellor Kilty's Report of the Statutes. The third section of the bill of rights is in these words: “The inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes as existed at the time of their first emigration, and which fey experience have been found applicable to their local and other circumstances, and of such others as have been since made in England or Great Britain, and have been introduced, used, and practised by the courts of law or equity.” The provisions of this article vary according to the different subjects to which they relate.

The inhabitants of the state are declared to be entitled to the common law, without any restrictive words being used, and thus the common law is adopted in mass, so far at least as it is not inconsistent with the principles of that instrument, and the nature of our political institutions.

They are declared to be entitled to the benefit of such of the English statutes as existed at the time of their first emigration, and which, by experience had, at the time of the declaration of rights, been found to be applicable to their local and other circumstances, and also to the benefit of stick other British statutes, made after the emigration’, as had been introduced, used, and practised by the courts' . ^ J law or equity—a distinction being made between the statutes which existed before the; emigration, and those which were afterwards passed, and between both and the' common law. We do not think that this section' of the bill of rights is to be expounded according to the rule of construction applicable to declaratory laws,’ but that it must be understood as adopting the different classes of the' statutes' to which it relates stíb modo only, and rejecting all others; and as laying down rules by which to ascertain what statutes were so adopted—a different rule applying to each class. In relation to those1 which existed at the time of the emigration, their having been' found by experience to be applicable to our local and other circumstances, being the rule for the government of courts of jus-' tice in determining which are in force; and their having been introduced, used, ami practised by the courts of law or equity; the rule in relation to those passed since the? emigration; As to the latter class, it doe's not seem to be denied that none are in force but such as had, at the time of the declaration of rights, been introduced, used, and practised by the courts of law or equity; and if that rule-was intended to be restrictive,' it is difficult to ascribe to1 the convention a different intention in relation to the other, nor can a different intention be raised by theargument that our ancestors brought with them all the laws of the mother country at the' time of their emigration; For if it had' been intended that all the statutes, then existing, should’ be and continue in force,' which might by courts be deemed applicable to our' local and other circumstances,- it was exceedingly idle to declare such of them to! be in force as had by experience been found applicable.- And why was a different language adopted in relation to them from that Which was used in relation to the common' law? for they were'both equally brought with them by our ancestors.

The circumstance of a different provision being -made shows that the convention entertained different views with respect to them'.

It could not have been intended as- a mere’ declaratory provision for the purpose only of removing doubts that existed at the time, for if there were any statutes about the' extension of which no doubts were entertained, it must have been those which, by experience, had been found applicable, and there was no necessity for declaring the inhabitants of the state to be entitled to their benefit, unless it was the intention to prohibit the use of all such as had not by experience been found applicable.

This view of the third section of the bill of rights raises the question, Which of the statutes existing at the time of. the first emigration had by experience been found applicable? The only evidence to be found on that subject is furnished by Killy’s Report of the Statutes, in which thé 43 of Elizabeth is classed among those which are said not to have been found applicable. That book was compiled, printed, and distributed, under, the sanction, of the state, for the use of its officers, and is. a safe guide in exploring an otherwise very dubious path.

It is therefore our opinion, that the statute 43. Elizabeth, is not in force in this state, and that the decree, ought to be reversed,

DECREE REVERSED*  