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joined with words that authorize the trustees to expend the fund
for general purposes which are not charitable. If the fund is
not apportioned Ijy the donor, the trustees may expend the whole
for one purpose or another which is not charitable, and at the
same time execute the exact power given them under the will.
In such cases, courts cannot establish and administer the fund
as charitable. For example, a gift for such cliarital)le and othei'
purposes as the executors might think fit cannot be sustained
as charitable ; for the executors have power by the will to apply
the whole to purposes other than charitable.^ So a gift to exec-
utors in trust to dispose of it at their pleasure, either for char-
itable or public purposes, or to any person or ])Crsons in such
shares as they should think fit, was not sustained for the same
reason.^ So gifts in trust for such uses as the trustees see fit,'^
or to such persons as the trustees think fit,*' have no element of
charity in them that courts can administer. A gift in trust for

' Duke V. Fuller, 9 N. H. .538; Vanden Volgon v. Yates. 3 Barb. Ch.
290 ; Thomas v. Ellmakor, 1 Par. Eq. 108; Peiifield v. Sumner, 11 Vt. 226;
Wright V. Lynn, 9 IJarr, 433; Indianapolis i'. Grand Master, 2.") Ind. 518.

* Potts V. Philadelphia Association, 1 (Pa.) Leg. Gaz. R. 3G9.
8 Att'y-Gen. v. Haberdasher's Co. 1 My. & K. 420.

* Liley v. Hey, 1 Hare, 680; Philadelphia v. Fox, 64 Ponn. St. 170.
5 Ellis I'. Selby, 1 M. & Cr. 286, 299 ; 7 Sim. 852.

* ,Vezey v. Jamson, 1 S. & S. 69.

' Fowler v. Garlike, 1 Russ. & My. 232; Nash i>. Morley, 5 Beav. 182.

* Gibbs V. Ramsey, 2 Ves. & B. 295.


the relief of domestic distress, assisting indigent but deserv-
ing individuals, or encouraging works of general utility,^ was
not sustained. So a trust for benevolent purposes was not
sustained, as benevolence may or may not be charitable in the
law.2 For the same reason where a bequest was made to the
Bishop of Durham, in trust for such objects of benevolence and
liberality as he should approve, the court held that the fund
could not be administered as a charity, and ordered it to be paid
over to the next of kin.-^ These cases all proceed upon the
maxim, that a trust to be valid must be under the control of a
court, and the trust must be of such a nature that its adminis-
tration can be reviewed. A trust for charity must therefore be
governed by some principles that are familar to the court.
These principles have grown up in relation to the words
" charity," and a " charitable use," and to descriptions that
come within them ; but there are no rules that can be applied
to mere benevolence, liberality, or generosity, or to any words
that give a discretion and power to the trustees to apply the
funds to any purposes within the whole range of human action.

§ 712. In addition to the above cases which proceed upon
clear and intelligible principles, are two cases which have given
rise to much criticism and discussion. Ommanney v. Butcher^
decided that a trust for " private charity " could not be admin-
istered in a court of equity. Williams v. Kershaw^ determined
that a trust for " benevolent, charitable, and religious purposes,"
was not a good charitable use within the letter or spirit of the
statute. The objection to the first case is, that " private charity "
refers to private alms-giving, or private relief of the poor ; that
the objects of such charity are uncertain and indefinite until

1 Kendall v. Granger, 5 Beav. 300.

" James v. Allen, 3 Mer. 17; Norris v. Thompson, 4 C. E. Green, 311.

3 Morice v. Bishop of Durham, 9 Ves. 399 ; 10 Ves. 522.

* Ommanney v. Butcher, 1 Turn. & Russ. 260.

* Williams v. Kershaw, 5 Law Jur. (n. s.) Ch. 84, cited 1 Keen, 232 ;
1 My. & Cr. 293.

§§ 711, 712.] CRITICISM UPON CASES. 317

selected by the trustees ; that the distribution of alms and relief
to the poor in such manner is no more personal than the relief
of the individual })Oor must always be ; that the trustees can be
required to account for the distribution of the funds, and that
they can be dealt with by the court for any bad faith or breach
of the trust ; in short that such a gift has all the elements of a
good charitable use. The principal objection to the other deci-
sion is, that the word " benevolent," in the connection in which
it was used, signified " charitable ; " that, upon tlie most ap-
proved rules of interpretation applied to charitable bequests,
the word should have had its meaning fixed by the context ;
and that, taking all together, a good charitable use was intended,
and not a general, liberal, or benevolent use. Mr. Boyle ex-
amines and criticises these cases at great length, and concludes
that they are not true expositions of the law.^ In Massachusetts,
a bequest was made in trust " in aid of ol)jects and purposes of
benevolence or charity, public or private." Mr. Justice Gray
examined these cases with great care, and arrived at the con-
clusion that they were at least of doubtful authority in England,
and that they certainly would not be followed in Massachusetts.^

1 Boyle on Charities, pp. 286-299.

* Saltonstall v. Sanders, 11 Allen, 462. In this case, Mr. Justice Gray
says : " The decision which goes furthest to support the position of the
plaintiffs as to the meaning of the words ' private charity ' is that of Oni-
manney v. Butcher, Turn. & lluss. 200. There a testator, after legacies
to certain individuals, and to various schools, hospitals, and other religious
and charitable institutions of which he was a governor or trustee, added,
' In case there is any money remaining, I should wish it to be given in pri-
vate charity.' Sir Thomas IMumcr, M. R., held tliis last bequest too indefi-
nite to be carried out, either by the sign-manual of the crown, or by the
ordinary jurisdiction in chancery. The opinion does not show that degree
of thought and research which characterizes most of the judgments of that
learned person. His statement that there was no case in which private
charity had been acted upon by the court is inconsistent with the long line
of atithorities above quoted, not one of which is noticed in the opinion,
except Legge t>. Asgill ; and no attempt is made to distinguisii tiiat case,
although the direction there that any money left unemployed might ' be
given in charity,' as Mr. Boyle remarks in his able and discriminating
treatise, ' surely must be regarded as pointing quite as much, if not more,


Ill New Jersey, a gift in trust to be distributed " to benevolent,
religious, and charitable institutions," at the discretion of the

to private than to public charity.' Boyle on Charities, 300. Sir Thomas
Plumer's expression, that ' the charities recognized by this court are public
in their nature, they are such as the court can see to the execution of,' sug-
gests the inference that he thought it necessary to have the funds distributed
openly in the pubhc view, or the court could not supervise the distribution.
This inference is confirmed by his adding, ' assisting individuals in distress
is private charity; but how can such a charity be executed by the court? '
To which it may be answered, ' By requiring an account, as of any other
trustee who is charged with neglect or breach of trust.' And the cases
already cited show that Lord Hardwicke, Lord Eldon, Sir William Grant,
and Sir John Leach upheld and executed charities for privately assisting
indefinite numbers of individuals in distress. Sir Thomas Plumer says, ' In
all cases the general principle is, that the trust must be of such a tangible
nature as that the court can deal with it; when it is mixed up with general
moral duty, it is not the subject of the jurisdiction of a court of justice.'
But general moral duty, carried out in acts beneficial to an indefinite number
or class of persons, is of the very essence of a charity; and, in the cases in
which trusts have been set aside as too vague, it has been upon the ground that
they might be applied to the benefit of particular individuals, to benefit
whom was of no general or public advantage. If, as he says, ' private
charity is in its nature indefinite,' it has the principal requisite of a public
charity. This judgment of Sir Thomas Plumer, although countenanced by
obiter dicta of Lord Cottenham near the beginning of his 'career as chan-
cellor, in Williams v. Kershaw, 5 Law Jour. (n. s.) Ch. 86, and Ellis v. Selly,
1 Myl. & Cr. 293, cannot, in a court not bound by it as a precedent, out-
weigh all the other authorities.

" There is a species of organization, sometimes called a ' private charity,'
which is not a public or general charity in the view of the Stat, of Eliz., or
of a court of chancery ; and that is an association for the mutual benefit of
the contributors, and of no other persons. But such a case wants the essen-
tial element of indefiniteness in the immediate objects, if not that of gratuity
in the contribution. Anon. 3 Atk. 277 ; Attorney-General v. Haberdashers'
Co. 1 Myl. & K. 420; Carne v. Long, 2 De G., F. & J. 75; Attorney-
General V. Federal St. Meeting-house, 3 Gray, 44-52. Upon no reasonable
construction can a bequest to ' private charity,' still less one to ' charity
public or private,' he brought within that class.

" The decisions of Lord Langdale, to which the plaintiffs have referred,
were as follows : In one of them he held a bequest to executors to receive
the interest half-yearly, ' and divide it among poor pious persons, male or
female, old or infirm, as they see fit, not omitting large and sick families, if
of good character,' to be a valid charitable bequest for the poor. Nash v.
Morley, 6 Beav. 177. In the other, of a bequest to trustees to be applied


wife of the testator, was declared not to be a good charitable
use, and that the word '' benevolent," in the collocation in which

at their discretion, ' for the relief of domestic distress, assistin^j; indigent but
deserving individuals, or encouraging undertakings of general utility,' Lord
Langdale said that if the sentence had ended with the word ' individuals '
it would have been a good charitable purpose ; but he felt himself bound by
the decisions to hold that the words ' general utility ' (which do not occur
in the will before us) were large enough to include purposes which were not
charitable, and that the whole bequest was therefore void. Kendall v.
Granger, 5 Beav. 300.

" In Ellis V. Selly, 7 Sim. 352 ; S. C. 1 Myl. & Cr. 286, the only point
decided was, that a becjuest in trust for ' charitable or other purposes,' as
the trustee should think fit, was void. The correctness of that decision can-
not be doubted ; for the testator could hardly have expressed more clearly
an intention to allow the fund to be applied to purposes which were not
charitable, as well as to those which were. The decision of Sir John Leach,
in Vezey v. Jamson, 1 Sim. & Stu. 69, against the validity of a gift in trust
for ' such charitable or public purposes as the laws of the land would admit
of, or to any person or persons,' and in such shares and manner as the trus-
tees should think fit or as the laws admitted of, is to the same effect ; and
manifests no intention to overrule or qualify the cases in which he had upheld
trusts for ' i)ublic or private charities,' or ' to be distributed in charity to
private individuals or public institutions,' or for ' charitable and benevolent
purposes.' Johnston v. Svvann and Horde v. Earl of Suffolk, u( supra ;
Jemmit v. Verril, infra, and the passages quoted from Lord Lyndhurst's
opinion in Mitford v. Reynolds, 1 Phil. 190, and from Tudor on Charitable
Trusts (2d ed.), 223, go no further. Within the same class falls the decision
of Vice-Chancellor Knight Bruce, that a direction that part of the testator's
property should ' be given in occasional sums to deserving literary men, or
to meet ex[)enses connected with my manuscript works,' part of the profits
of which works he gave to members of his family, was void. Thompson v.
Thompson, 1 Colly. II. 388, 392, 399. Others of the cases cited for the
plaintiffs related to bequests in trust to be disposed of in the trustees' dis-
cretion, without any mention whatever of charities in the will. Such were
Fowler v. Garlike, 1 Russ. & Myl. 232, and Stubbs v. Sargon, 2 Keen, 255 ;
S. C. 3 Myl. & Cr. 507.

" We are therefore of opinion, tliat, upon principle and authority, a
bequest for ' objects and purposes of charity, public or private,' is a valid
charitable gift. The effect of the use of the word ' benevolence ' in con-
nection with the word ' charity ' remains to be considered.

" The earliest case cited for the plaintiffs upon this point is that in which
Sir William Grant and Lord Eldon, on appeal, held that a bequest to the
Bishop of Durham in trust to be applied 'to such objects of benevolence
and liberality as the Bishop of Durham, in his own discretion, should most


it was found in that will, did not mean " charitable." ^ The
word " benevolent " has often been construed l)y the court to

approve of,' was too indefinite to be executed. Morice v. Bishop of Dur-
ham, 9 Ves. 399; S. C. 10 Ves. 521. But ' liberality' might include gifts
to persons who were neither poor or deserving, and in no sense legal or
moral objects of charity. The word ' charity' was not used ; and its absence
was much relied on, Sir William Grant saying, ' The use of the word " char-
itable" seems to have been purposely avoided in this will, in order to leave
the bishop the most unrestrained discretion.' 9 Ves. 404, 405; 10 Ves. 541.
Sir William Grant afterwards held, that a bequest to trustees ' to be by them
applied and disposed of for and to such benevolent purposes as they in their
integrity and discretion may unanimously agree on,' fell within the same
class. James v. Allen, 3 Mer. 17. But in that case again, the word
' charity ' was not used. Lord Brougham subsequently defined the distinc-
tion upon which those cases turned, thus : ' If the intention be charity, the
court Avill execute it, however vaguely the donor may have indicated his
purpose. But mere purposes of a kind generally beneficial, as of those of
benevolence or liberality, without specifying the objects who are to receive,
and those objects not being the poor, the court will never attempt to execute.'
Attorney-General v. Haberdashers' Co. 1 Myl. & K. 428.

"Vice-Chancellor Leach used ' general benevolence' as equivalent to
charity. He held a bequest ' to the Avidows and orphans of the parish of
Lindfield ' to be a charitable gift for the poor widows and orphans of that
parish, because it ' could not in its nature have proceeded from motives of
personal bounty to particular individuals ; it must have proceeded from
general benevolence towards two classes of persons who were suffering
under a common circumstance of destitution or privation, and is necessarily
to be confined to such of those two classes who are within the scope of gen-
ei-al benevolence.' Attorney-General v. Comber, 2 Sim. & Stu. 93. And
he upheld a bequest to trustees to be applied and disposed of ' for such
charitable and benevolent purposes ' as one of them should direct and think
proper. Jemmit v. Verril, Amb. 585, note.

" By far the strongest case in fiivor of the plaintiffs is that of Williams v.
Kershaw, which is not to be found in any of the regular reports, but is
reported by Mr. Beavan in 5 Law Jour. (n. s.) Qh. 84, and an abstract of
it printed in 5 Clark & Fin. 111. In that case, a testator, after legacies for
education, the poor, missionary societies, and dissenting ministers, gave the
residue of his personal estate to trustees, to apply the income ' to and for
such benevolent, charitable, and religious purposes as they in their discretion
shall think most advantageous and beneficial.' Sir Christopher C. Pepys,
M. R., considered himself bound by the cases of Morice v. Bishop of Dur-

' Norris v. Thompson, 4 C. E. Green, 308.

§ 712.] BENEVOLENCE. 321

mean the same thing as " charitable " in the la\y, and trusts for
benevolent or charitable purposes have been carried into effect.^
In Massachusetts, tlie word " benevolence " has been so often
used in the constitution of the State, and in so many general
and private statutes as equivalent to, and synonymous with,

ham, James v. Allen, and Ommanney v. Butcher, to hold that this would
authorize the application of the income to benevolent purposes which were
neither charitable nor religious, and was therefore void ; and two months
afterwards, having meanwhile become Lord Chancellor Cottenham, he
referred to the decision with approval. Ellis v. Selby, 1 Myl. & Cr. 298.

" But that decision is directly opposed to the construction given to like
words in earlier and later judgments of the House of Lords upon appeals
from the courts of Scotland. In Hill v. Burns, 2 Wil.s. & Shaw, 80, a
bequest was held valid by which a testatrix appointed the residue of her
estate ' to be applied by my said trustees in aid of the institutions for char-
itable and benevolent purposes, established or to be established in the city
of Glasgow or neighborhood thereof; and that in such way and manner,
and in such proportions of the principal or capital, or of the interest or
annual proceeds of the sums so to be appropriated, as to my .said trustees
shall seem proper; declaring, as I hereby expressly provide and declare,
that they shall be the judges of the appropriation of the said residue for
the purposes aforesaid.' That case was cited as authority by Lord Lynd-
hurst in Critchton v. Grierson, 3 Bligh, N. R. 434 ; S. C. 3 Wils. & Shaw,
341. In a later case, in which Williams v. Kershaw was cited, the House
of Lords established a residuary bequest to trustees to be applied ' to such
benevolent and charitable purposes as they think proper,' recommending
them, if it should amount to £600, to hold the principal, and pay out the
income annually ' to faithful domestic servants, settled in Glasgow or the
neighborhood, who can produce testimonials of good character and morals
from their masters and mistresses after ten years' service ; ' but if less than
that amount the testator authorized his trustees ' to distribute the same to
such charitable or benevolent purposes as they may think proper.' Miller
V. Rowan, 5 Clark & Fin. 99; S. C. 2 Shaw & Macl. 866.

" It was indeed said, in the two cases last cited, that the law of England
as to charitable bequests was more strict than the law of Scotland. But the
decisions of the English courts since our revolution are of no binding author-
ity in this court; and, upon such a question as the interpretation of the
word 'benevolence,' as connected with 'charity,' of no peculiar weight,
when opposed to the well-settled meaning of those words in our own

^ Miller v. Rowan, 5 CI. & Fin. 99; Jemmit r. Verril, Ainb. 585, n. ;
Hill V. Burns, 2 Wils. & Shaw, 8(J; Saltonstall v. Sanders, 11 Allen, 465;
Johnson v. Swan, 3 Mad. 457.

VOL. II. 21


the word " charity," that it has come to have that meaning in
the law.i

§ 713. There is another class of trusts for charities that
courts decline to sustain and administer, on the ground that
they are too general, vague, and indefinite to be applied to any
certain charitable use. This class is larger in America than
in England, as the Lord Chancellor in the English chancery
can exercise the prerogative of the crown in administering an
indefinite trust ; but American courts can exercise only the
ordinary judicial powers of courts of equity. Even in England,
Lord Chancellor Thurlow declined to sustain a trust to buy and
distribute such books as might have a tendency to promote the
interest of virtue and religion and the happiness of mankind.^
Where a testator directed his executors to pay over certain
property for the benefit of the Methodist Episcopal Church in
America, to be disposed of by the conference, or the different
members composing the same, as they, in their godly wisdom,
shall judge will be most expedient or beneficial for the increase
or prosperity of the gospel, it was held that the bequest was
void for uncertainty.^ A devise to the annual conference of
the Methodist Episcopal Church for the benefit of institutions
of learning under the superintendence of said conference, and
the missionary society of said church, and to be otherwise dis-
posed of as the Tennessee annual conference may deem best
in their wisdom, Avas held void ; and an act of the legislature
appointing trustees to receive the fund was held unconstitutional
and void.'* A bequest to be applied to home or foreign mis-
sions and poor saints was held void ; ^ and so a direction to the

' Saltonstall v. Sanders, 11 Allen, 468, 470. In a late case not yet re-
ported it has been decided that a gift for benevolent purposes, with no words
in the context to give a construction to the meaning, cannot be sustained
as a charity.

^ Brown v. Yeall, 7 Ves. 50, n. 76; 9 Ves. 406; 10 Ves. 27, cited.

3 Holland v. Peck, 2 Ired. Ch. 255.

* Green v. Allen, 5 Humph. 170.

* Bridges v. Pleasants, 4 Ired. Ch. 26.

§§ 712-714.] TRUSTS NOT SUSTAINED. 323

trustees to expend any surplus income for the support of in-
digent pious young men preparing for the ministry in New-
Haven, was hekl void.^ A bequest to be expended in the educa-
tion of colored children, both male and female, in such manner
as may be deemed best, the object being to promote the moral
and religious improvement of the colored race, was held to be
too indefinite, and therefore void, there being no trustees with
the power of selecting the objects of the charity .^ If there were
trustees in these cases ready and willing to receive the funds,
and to execute the powers conferred by the testaments, and to
select the objects of the trust and thus make them certain, and
apply the funds to such objects, it is difficult to see why the
courts could not have carried these trusts into effect without
invoking any extraordinary powers.

§ 714. If the sum to be given to a charitable use be left blank
or uncertain, the trust will fail ; as where X6,000 was given for

a hospital to increase till it amounted to for supporting

boys,s it was held to have failed. So if the original sum

to be given is not specified ; * and if a gross sum is given for
charital)le uses, and for other purposes which fail for illegality
or indefiniteness, or for want of certainty in the sum to be
applied to the charity,^ the trust will fail. But where a sum
certain was given to a testator's relations, and to a cliarity, but
the proportions were not named, the court applied the maxim
that equality is equity^ and divided the fund equally between
the family and the charity.*^ Mr. Boyle contends, that, as the

' White t;. Fisk, 2-1 Conn. 31.

' Grimes v. Ilariuond, 35 Ind. 198.

^ Ewen y. Baniiciinan, 2 Dow. & CI. 74.

* Flint V. Warren, 15 Sim. 626; Second Cong. Soc. v. First Cong. Soc.
14 N. II. 315; Russell v. Jackson, 10 Hare, 204; Cox v. Bassett, 3 Ves.
155; Hartshorne v. Nichols, 26 Beav. 58.

* 1 Jarman on Wills, pp. 195, 196 (ed. 1861).

« Att'y-Gen. v. Doyley, 2 Eq. Ca. Ab. 194; 4 Vin. 485; 7 Yes. 78, n. ;
Moggridge v. Thackwell, 3 Bro. Ch. 517; 1 Ves. Jr. 464; 7 Ves. 38;
Mills V. Farmer, 1 i\Ier. 55; 19 Ves. 483; Att'y-Gen. v. Bradley, 1 Eden,
482 ; Saulsbury v. Denton, 3 K. & J. 529 ; Longman v. Brown, 7 Ves. 124 ;
Penny v. Turner, 2 Phil. 493; Tothill, 92, 95, 96.


words ill Williams v. Kershaw ^ were '' for benevolent, chari-
table, and religious purposes," the fund should have been
divided into three parts, as two of the purposes were good at
any rate, even if " benevolent " did not mean " charitable,"
and two parts of the fund should have been applied to the valid
objects, and the other part returned to the next of kin.^ Where
a bequest of £1,000 was made- to the Jews, Poor Mile End, and
there were two charitable institutions for Jews at that place,
as it was uncertain to which the bequest was intended, the
court divided it equally.^ Where a testator bequeathed a fund
to trustees for erecting such monument to his memory as they
saw fit, and in building an organ gallery to the church, and the
trustees expended the whole sum upon the monument, the
court held it to be a breach of the trusts In all these cases,

Online LibraryJairus Ware PerryA treatise on the law of trusts and trustees (Volume 2) → online text (page 32 of 64)