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them into juxtaposition with the sequent transactions in each case respectively,— that is to say, by the introduction of supplemental evidence,– that they are shown to be ineffective. In view of these considerations, and of the fact that the whole title involves the true construction of the trust and the power of appointment, and the further fact that Madame Jumel was in full possession of the property, using and treating it as her own absolute estate until her death, the appellees were perfectly justified in coming into a court of equity to have these conveyances declared void and without effect.
To this extent we think they are entitled to a decree, including also a decree for a perpetual injunction against the appellant, prohibiting him from prosecuting any action or suit for the recovery of the lands embraced in the appointment made in favor of Mary Jumel Bownes, by the deed of appointment executed by Eliza B. Jumel, and bearing date the 21st day of November, 1828.
As to the residue of the relief prayed for,--- namely, that the appellees should have the lands and real estate of which Madame Jumel indisputably died seized in fee-simple appropriated to them in satisfaction of the supposed frauds committed by her against the trust, and of the engagements which she is supposed to have made to settle her estate, or a portion thereof, upon Eliza Jumel Chase, in consideration of her marriage with Mr. Pery,- we are unable to perceive any valid ground for granting the prayer of the bill. If there were no other objections to the decree sought in this behalf, we cannot agree with the counsel of the appellees, that any such fraud as is supposed was practiced. or, if attempted, that the attempt was successful; and we fail to see anything in the proofs adduced with regard to the negotiations of the said marriage sufficient to sustain such a decree.
Nor do we think that the nature of the litigation created by the actions of ejectment, the character and amount of the evidence, or the number of suits, is such as to lay the foundation for the assumption of the entire controversy by a court of equity. Supposing the relationship of the appellant to Madame Jumel to be such as he pretends it is, there does not seem to be any unnecessary multiplication of actions. All the property in the city of New York is included in one suit, and the actions in Saratoga are brought against the several tenants in possession. The power of the courts of law to consolidate actions depending between the same parties, and upon the same questions in controversy, is probably sufficient to prevent any practical inconvenience not inherent in the case itself. If the evidence is merely voluminous or tedious, that circumstance is not sufficient cause for removing a case from a court of law to a court of equity.
The claim made by the appellees to recover from the appellant the sura of $2,500, procured by him by way of compromise from a grantee of Mr. Chase, is, in our opinion, utterly groundless.
Decree reversed, and cause remanded with directions to enter a decree in conformity with this opinion.
$ 133. Use, when executed. Where by will the title to land is vested in a trustee to uses, and there are no duties required at his hands, the use is executed and the legal title vests in the cestuis que use. Webster v. Cooper, 14 How., 488.
$ 134. A. and B., his wife, conveyed her estate to C. and his heirs, to the use of A. and B. during their joint lives, and to the use of the survivor in fee-simple. Held, that this deed operated as a feoffment, and the uses were well raised out of the seizin of C., and were executed by the statute of uses. Duraut v. Ritchie, 4 Mason, 45.
$ 135. Under the statute of uses of 27 Henry VIII., chapter 10, in force in South Carolina, a cestui que use takes a complete title to lands devised to another for his use, and the relation of trustee and cestui que trust does not exist. Henderson v. Griffin,* 5 Pet., 151.
$ 136. Where an estate was devised to A. and B. in trust for C. and her heirs, the estate, by the settled rules of the courts of law and equity in South Carolina, as applied to the statute of uses of 27 Henry VIII., in force in that state, passed at once to the object of the trust as soon as the will took effect by the death of the testator. The interposition of the names of A, and B. had no other legal operation than to make them the conduite through whom the estate was to pass, and they could not sustain an ejectment for the land. C., the grandchild of the testator, is a purchaser under the will, deriving all her rights from the will of the testator, and obtaining no title from A. and B., and A. and B. were as much strangers to the estate as if their names were not to be found in the will. Ibid. $ 137.
when executory- Use upon a nse.- A covenant in the marriage articles by the father of the girl, to stand seized to her use after marriage, does not operate after marriage to pass the legal estate by the statute of uses (27 Henry VIII.); the use remains executory in the trustee and his heir at law. Magpiac v. Thompson, 1 Bald., 344.
$ 138. A use limited upon a use is not executed or affected by the statute of uses. Tbe statute executes only the first use. In the case of a bargain and sale the whole force of the statute is exhausted in transferring the legal title in fee-simple to the bargainee. But the second use may be valid as a trust and enforced in equity according the rights of the parties, Croxall v. Shererd, 5 Wall., 268.
$ 139. Entry under statute of.- Under the statute of uses an entry was not essential to a complete title. Barr v. Galloway, 1 McL., 476.
$ 140. By the statute of uses an actual entry by the lessee is not necessary to enable him to receive a release to enlarge his estate, and the freehold estate which vests in him by enlargement is an estate at common law, and did not require the aid of the statute to execute the possession to the use. Hurst v. McNeil, 1 W 70.
$ 141. Under a conveyance, taking effect under the statute of uses, the bargainee has a complete seizin in deed without actual entry or livery of seizin. Green v. Liter, 8 Cr., 229.
$ 142. When use and when trust deemed to have been created. — Language in a conveyance which might otherwise raise an executed use in a cestui que use is controlled by an intent manifested in the instrument to have the legal estate remain in the trustees. Neilson v. Lagow,* 12 How., 98.
$ 143. There is no doubt that the words “in trust” in a will may be construed to create a use, if the intention of the testator or the nature of the devise requires it. But the ordinary sense of the term is descriptive of a fiduciary estate or technical trust; and this sense ought to be retained until the other sense is clearly established to be that intended by the testator. In the present case there are strong reasons for construing the words to be a technical trust. The devise looked to the issue of a person not then in being, and of course, if such issue should come in esse, a long minority must follow. During this period it was an object with the testator to uphold the estate in the father for the benefit of his issue; and this could be better accomplished by him as a trustee than as a guardian. If the estate to the issue were a use it would vest the legal estate in them as soon as they came in esse; and if the first-born children should be daughters, it would vest in them, subject to being divested by the subsequent birth of a son. A trust estate would far better provide for the first contingencies than a legal estate. King v. Mitchell, 8 Pet., 326.
$ 144. State statutes. — The effect of the Wisconsin statute of 1850, that “ every person who, by virtue of any grant, assignment or devise, now is or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or equity, shall be deemed to have the legal estate therein," was to abolish all passive trusts in which the trustee held a mere naked or dry trust for the use of the cestui que trust, and to vest the title in the beneficiary. McGoou v. Scales, 9 Wall, 23.
$ 145. Statute of uses has been adopted by Vermont and generally in the New England states. Society for Propagation of Gospel v. Town of Hartland, 2 Paine, 536.
V. CHARITABLE USES.
SUMMARY — Upheld, when; intention to cut off heir, $ 146.- City of Philadelphia may hold
property in trust, § 147.- Devise to establish a college for orphans, $ 148.— Statute of 43 Elizabeth, how far in force in Pennsylvania, § 149.- Excluding ecclesiastics from college, $ 150.– As to corporations; doctrines of 43 Elizabeth in force in Ohio, $ 151.- City of Cincinnati may hold property for charitable uses, $ 152.- Devises in trust for establishment of colleges are charities, § 153.- Perpetuities, $ 154.- Certainty as to beneficiaries; preference of relatives of testator, $ 155.— Devise to a bishop and his successors, $ 156. — Devise to an unincorporuted association, $ 157.
S 146. It is established in this country that where a grant or devise for charitable uses is made, and the donee is capable of executing the trust vested in him, the grant or devise sbould be upheld if the beneficiary or charitable object is stated in such a manner or with such distinctness that chancery can ascertain what it is so as to enforce the trust. If the intention of the testator or grantor is to cut off his heir, the devise or grant will be upheld if such trust can be upheld by a liberal construction. Russell v. Allen, 158.
§ 147. The corporation of the city of Philadelphia may take real and personal property by devise in trust for the establishment and support of a college for the education and maintenance of poor orphan boys. Vidal v. Girard, ss 159–166.
$ 148. A devise of property for the erection and maintenance of a college creates a charitable use, especially where it is designed for the education of orphans and poor scholars. Ibid.
$ 149. Although the statute of 43 Elizabeth, chapter 4, is not operative in Pennsylvania, yet the conservative provisions are there enforced by common usage and constitutional recogoition, and because it appears that its provisions are declarative of the common law as theretofore existing. Ibid.
$ 150. A devise of property in trust for the establishment of a college for the education and maintenance of poor orphan boys is a valid charitable bequest, though, by the terms of the devise, all ecclesiastics, missionaries and ministers of all sects are excluded from bolding or exercising any station or duty in said college, or from being admitted into it for any purpose or as a visitor. Ibid.
s 151. The doctrines founded upon the statute of 43 Elizabeth, chapter 4, in relation to charitable uses to corporations, either municipal or private, have been adopted by the courts of Ohio, but not by express legislation; that not being necessary, as courts of equity have that jurisdiction at common law. Perrin v. Carey, $$ 167–175.
§ 152. The city of Cincinnati as a corporation is capable of taking in trust devises to charitable uses. Ibid.
$ 153. Devises in trust for the establishment and maintenance of colleges are charities in a. legal sense, and may be enforced by a court of equity, in Ohio, without legislative intervention. Ibid.
$ 154. A devise of real estate for a charitable use, with a provision that it shall never be alienated, does not create a perpetuity forbidden by law. Ibid.
$ 155. A devise of property for the establishment and maintenance of two colleges for white boys and girls, respectively, provided that in the matter of application preference should be given to relatives and descendants of the testator, and that if, after the establishment and maintenance of the colleges, there should be a sufficient surplus, the same should be applied to the erection of additional buildings and the support of poor white male and female orphans, is not uncertain as to beneficiaries, and the preference to relatives and descendants is valid. Ibid.
$ 156. A devise was to a bishop and to his successors in that dignity, in trust for the bene. fit of that community attached to the Roman Catholic church of which the testator should die a member. Held, that unless as a gift to charitable uses the devise would not be sustained, and that as the statute of charitable uses of 43 Elizabeth, chapter 4, was not in force in Virginia, the devise was void in that state. Kain v. Gibboney, SS 176–178.
$ 157. Under the law of Pennsylvania as it stood in 1795, after the repeal of 43 Elizabeth, chapter 4, a devise to an unincorporated associationofor charitable use was void. The inembers would not take nor would the subsequent incorporation of the association enable it to take. Trustees of the Philadelphia Baptist Association v. Hart, SS 179–181. [NOTES.— See SS 182-216.)
RUSSELL V. ALLEN:
(Circuit Court for Missouri: 5 Dillon, 235-240. 1879.)
STATEMENT OF Facts.— Bill in equity, by.the heirs of William Russell, to subject to their demands certain funds in defendant's hands, received from grants made by said decedent. In 1855 the decedent executed to Horner certain conveyances of realty and other property in trust, "for the purpose of founding an institution for the education of youth in St. Louis county," and expressed that the conveyances were "for the use of the Russell Institution of St. Louis, Mo.," and directed the proceeds to be paid over at least once a year to Thomas Allen, president of said institute, and his receipt shall be a full discharge of the said trustee. There were several deeds executed by the grantor for property in different counties of Arkansas, and the one before the court, dated July 19, 1855, recites that the grantor, by this and three other deeds of same date, has conveyed all his property in Arkansas to the same party for same purposes, and that they are to be taken and accounted as one trust. The bill alleges that Horner has paid to Allen certain sums of money ; that no such institute existed at the date of said grant or has been created; that the purposes of said charity are too vague to be enforced, etc., and asks that Allen account and pay over the funds, etc., received by him to said heirs. Defendant demurs.
Opinion by TREAT, J.
The legal and equitable propositions involved have been discussed at great length in inany English and American decisions, a review of which would require more time and labor than are at our command. Many of those decisions pertain to the force and effect of the statute of Elizabeth, the doctrine of cy pres, and the power“ parens patriæ.” In this country, after long doubt and disputation, the doctrine has been established that where a grant or devise for charitable uses is made, and the donee is capable of executing the trust vested in him, the grant or devise should be upheld if the beneficiary or charitable object is stated in such a manner or with such distinctness that chancery can ascertain what it is, so as to enforce the trust. In construing such instruments equity adopts, not the old rule favoring the heir, as in England, but the juster rule of effecting the intent of the grantor or devisor. In England the doctrines of cy pres and of "parens patriæ" were resorted to mainly to overcome the general rule which, under British institutions, favored the heir and perpetuation of estates. Under American institutions no such policy, and, consequently, no such general rule erer obtained. The just rule worked ut in English courts, through the doctrines or powers named, although such powers do not exist in this country, is, as to charitable uses, made, though not technically, yet to a large extent, practically applicable in this country. By this it is not meant that the cy pree doctrine has any force here, but merely that, for the purpose of upholding conveyances for charitable uses, American courts of equity will, wherever by a liberal construction it can be done, ascertain the designated or designed charity and enforce the intention of the grantor.
$ 158. The intention of a grantor or devisor must prevail; and if the trust can be upheld by a liberal construction, the heir will be cut off
The various decisions of the United States supreme court, and of other courts, particularly within the past decade, are based on the sound and just doctrine that the intention of the grantor or devisor shall prevail. Hence, when, by the terms of the grant, it is clear that the heir was to be cut off, he
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will be held to be cut off if the trust can be, under even a liberal construction, upheld for its designed charitable purpose.
Of course, if the grant is too vague and indefinite to enable the chancellor to detect to what charity the grant referred or was applicable, then, as the estate was not conveyed away, it (the estate) would necessarily follow the prescribed course of descent. In other words, if the decedent had not disposed of his property otherwise, the law of descents and distributions would govern. In the light of these doctrines, now fully recognized, this court must look to the conveyances in question. The purpose of the grantor was to found the Russell Institute — to have the avails of the property conveyed vested ultimately in a board of trustees for said institute, and, in the meantime to have yearly and other payments of said avails or proceeds paid over to Allen, president, and, what is very significant, to him as representing said trustees.
It is obvious that the grantor knew that no such institute existed at the date of the grant, for the grant was to found such an institute in the future. In that condition of affairs, he expressed, with sufficient clearness, that as the fund should be created from time to time by Horner, the trustee, it was to be paid over to Allen as president, whose "receipt therefor was to be a full discharge;" and that, at the expiration of the ten years named, Horner's trust was, as soon as practicable thereafter, to cease, and all funds then in his hands to be paid in the same manner as prior payments had been made to said Allen, who, as president, was to represent said board of trustees.
It is obvious that the intention of the grantor was to have the proceeds of the property lodged in the hands of Allen, not for his individual benefit, but for the purpose of founding thereafter the designated institute of which Allen was to be president. In the discharge of his trust, then, it is for Mr. Allen, at the proper time, to cause such an institute to be organized, whose trustees will shape the institute and determine the persons to whom and the manner in which endowment shall be applied.
It is obvious that the grantor placed the largest measure of confidence in Mr. Allen with respect to the manner of founding such institute or calling it into corporate existence. Until sufficient funds were received therefor, such an institute could not be beneficially founded. Of course Mr. Allen could not unreasonably delay action nor postpone the time indefinitely. In other words, the confidence reposed, if abused by unnecessary delay or otherwise, could be controlled by the supervision of the proper court of equity, when thereto duly called upon to act. It seems that the purpose of Mr. Russell, in creating or providing for the needed endowment, did not contemplate that the result could be achieved before the lapse of ten years; for the annual payments to Allen from the date of the conveyances, it is obvious, would not furnish funds sufficient for founding such an institute at the expiration of the first or of any succeeding year prior to the expiration of the tenth year, when Horner's trust was to cease by forced sales of the property, with the exceptions named. In the meantime, Allen, receiving the annual payments and giving to Horner acquittances, was to retain the accumulating funds, until, at the expiration of the ten years, he should be able to ascertain the aggregate amount applicable to the charitable use. He could not ascertain the amount before that time, and hence any previous attempt to call such an institute into corporate existence would have been premature. It appears that the controlling intent of the grant is that the accumulating funds should be placed in Allen's bands, so that at the expiration of ten years he could cause such an institute to be