Beall v. Surviving Executors of Fox , 4 Ga. 404 ( 1848 )

By the Court.

"Warner, J.

delivering the opinion.

This cause has been argued with ability, by the counsel on both sides, and in a manner too, which commands the entire approbation of the Court. The various points relied on, have been distinctly made, and the authorities cited, appear to have been well considered by the counsel, before the argument, which has enabled them to present their views in a clear, and concise manner, without embarrassment to themselves, or the Court.

Without noticing all the topics discussed in the arguments, as illustrative of the main grounds of the controversy, we shall confine ourselves to the principal points, made by the record.

On the trial of the cause in the Court below, the counsel for the heirs at law, who are the plaintiffs in error, requested the Court to charge the jury. First, that the Court, in the exercise of its Equity jurisdiction, has no power to grant the prayer of the Bill, having no powers as a Court of Chancery, but such as are granted by the Judiciary Act of 1799, and subsequent Statutes.

Second, that if the Court had such powers, the Statute of 9 Geo. II. Cap. 36, is of force in this Stated and by virtue of said Statute, all said residuary legacies are void.

Third, that two of the residuary legatees, (to wit) the American Bible Society, and the Domestic Missionary Society, not being bodies corporate and politic, either at the time of the devise, or the death of the testator, were incapable of taking under said devise.

Fourth, that the Statute of 43 Eliz. Cap. 4, is not of force in this State.

Fifth, that this Court, as a Court of Chancery, has no inherent power, independent of said last mentioned Statute, by which it can carry into effect, the supposed intention of the testator, in the residuary clause of his Will; which charge, as requested, the Court refused to give, but charged the contrary, to which the counsel for the heirs at law excepted; and now assign the same for error here.

[1.] We will first consider whether the Statute of 9 Geo. II. is of force in this State.

We are of the opinion that this Statute never was of force in Georgia. It was not enacted, until after the settlement of the Colony, and was not properly adapted to the circumstances of the Colonists, at the time of their settlement in 1733 — nor on the 14th May, 1776.

The Statutes of mortmain were introduced into Great Britain during the establishment and grandeur of the Roman church, to check the ecclesiastics from absorbing in perpetuity, in hands that never die, all the lands in the kingdom and thereby withdrawing them from public, and feudal charges. 2 Kent’s Com. 2S2.— The extension of Christianity was one of the leading objects which the trustees had in view, in the settlement of our infant Colony ; and we can hardly suppose there was any danger, that the cunning of the Priesthood would exert undue influence over the minds of weak and dying persons, in the Colony of Georgia, so as to require the restraints imposed by the mortmain Acts of Great Britain. We are not aware that the early Colonists, or their descendants, were at all likely to bequeath, or devise their worldly substance, to superstitious uses ; to maintain a Priest to say mass ; to maintain him or others to pray for the souls of the dead ; to maintain perpetual obits, lamps, torches, &e., used to help save the souls of men out of Purgatory. There existed no reason, taking into view the condition of the 'Colonists, from the time of their first settlement, up to the time of our adopting the Common and Statute Laws of England, wliy the mortmain Acts of Great Britain should have been adopted. Nor are we aware, even at the present time, that our people are so much inclined to indulge in charitable donations for the advancement of Christianity, education, and other charitable objects, as to require legislative restriction for the protection of their heirs, in making their last wills and testaments. But the Act of 9 George II. has been adjudged in England, to be an Act of local policy, complicated with local establishments, intended to have a local operation ; and that it did not extend to the Colonies. The Attorney General vs. Stewart, 2 Merivale’s Rep. 143.

[2.] Although it is not necessary, in the view which we have taken of this case, to determine whether the Statute of 43 Elizabeth is of force in this State; yet, as it is our judgment that the principles of that Statute were applicable to the circumstances of the people of Georgia, at the time of the settlement of the Colony, as well as at the time of our adoption of the Common and Statute laws of England, we will express our views in relation to it.

The Colony of Georgia was founded in charity ; and hence the necessity of invoking the aid and protection of the Statute, so far as its principles were applicable. We do not desire to be understood, that the legislature intended to adopt all the forms of proceeding required by that Statute; but, as it had long been the standard of charity, in England, and clearly distinguished between what should be considered charitable and superstitious donations, it is reasonable to suppose, that the Colonists brought with them, the same distinction made by the Statute of Elizabeth, and adopted it as a rule of their conduct, in their new home.

That such objects of charity as are specified in that Statute, as well as such objects as had, by the judicial construction of the Courts of Great Britain, been held to be within its provisions, would have been considered by our ancestors, as lawful and proper objects of charity ; and hence it is, we say, that in our judgment, the principles of the Statute of 43 Elizabeth, have been adopted in this State.

The first, third, and fifth grounds of error, will be considered together; involving as they do, the jurisdiction of the Court, and the capacity of two of the residuary legatees to take, under the will of the testator.

[3.] It is urged on behalf of the plaintiffs in error, that the Superior Courts in Georgia, have only a limitad,, and not a general jurisdiction, over Equity causes.

The 53 Section of the Judiciary Act of 1799, declares “ that the Superior Courts in the. several counties, shall exercise the powers of a Court of Equity, in all cases where a Common Law remedy is not adequate to compel parties in any cause to discover on oath all requisite points necessary to the investigation of truth and justice; to discover transactions between Copartners, and Co-Executors; to compel distribution of intestates’ estates, and payment of legacies; and to discover fraudulent transactions for the benefit of creditors, and the proceedings in all such cases shall be by Bill, &c. Marbury and Crawford’s Dig. 307. The complainant’s bill having been filed, for the direction of the Court as to the payment of the. legacies under the testator’s will, we think, there can be no doubt as to the jurisdiction of the Court, in this case, even should it be limited to the particular cases enumerated in the Act, as insisted on by the counsel for the plaintiffs in error; but we are not willing to place our judgment on such narrow grounds.

It was evidently the intention of the Legislature, to confer upon the Superior Courts Equity jurisdiction; and we think the words of the Act are broad enough to confer general Equity jurisdiction in all cases where a Common Law remedy is not adequate.

The words of the Act are — “ the Superior Courts in the several counties, shall exercise the powers of a Couz't of Equity, in all cases where a Common Law remedy is not adequate.” The argument for the plaintiffs in error is, that the Equity jurisdiction of the Superior Courts, is to be confined to the particular cases enumerated in the Act of 1799, and subsequent Statutes; that our adopting Statute of 1784, did not embrace the system of Equity jurisprudence as it existed in Great Britain on the 14th May, 1776, as a part of the Common Law; that the Equity jurisdiction of that Kingdom was derived from the Civil Law, and formed no part of the Common Law, which was recognized and adopted as the law of this State. If the words of the Judiciary Act of 1799, would render the exercise of general Equity jurisdiction a doubtful question, independent of any judicial construction heretofore given to that Act; yet, when we take into consideration the contemporaneous construction which has been given to it, in favor of the exercise of such general Equity jurisdiction, in all cases where a Common Law remedy was not adequate by our Courts, for a period of nearly fifty years, without any aftempt, on the part of the Legislature, to restrict its exercise, we cannot now consider it as an open question. That the equitable jurisdiction of the Court of Chancery in Great Britain, is founded upon and follows the Civil Law, in many of its leading doctrines, is unquestionably true; although the eminent jurists of that Kingdom have not always been willing to make such an admission. It is not so easy, says Mr. Justice Story, to ascertain the origin of the equitable or extraordinary jurisdiction of the Court of Chancery. By some persons, it has been held to be as ancient as the Kingdom itself; others are of a different opinion. In a note to the original text, the learned Commentator calls our attention to the vindication of the judgment given by King James in the case of the Court of Chancery, 1 Collectance Jurídica, where it is said, “ It cannot be denied but that the Chancery, as it judgetli in Equity, is a part of the law of the land, and of the ancient Common Law, for Equity is, and always hath been, a fart of the law of the land. 1 Story’s Com. on 'Equity, 41, 42. Whatever may have been the origin of the equitable jurisdiction of the Courts of Equity in Great Britain, it is quite certain that the principles of Equity jurisprudence were incorporated into, and constituted an important part of the judicial system of that country, long anterior to the American Revolution. Elachstone says : General customs, or the Common Law, properly so called, is that law by which proceedings and determinations, in the King’s ordinary Courts of justice, are guided and directed, which are the four Superior Courts of Record, the Chancery, the King’s Bench, the Common Pleas and the Exchequer. But how, inquires the learned Commentator,are these customs or maxims of the Common Law to be known, and by whom is their validity to be determined ? The answer is, by the Judges in the several Courts of justice. They are the depositaries of the laws; the living oracles who must decide in all cases of doubt, and who are bound to decide according to the law of the land. And indeed, these judicial decisions are the principal and most authoritative evidence, that can be given of the existence of such a custom as shall form a part of the Common Law. 1 Blackstone's Com. 68, 69. The principles of equity, as administered in Great Britain, were never intended to create a new lato, but were introduced for the purpose of assisting and giving effect to the general laws of the realm. Equity follows the law, but does not control it. The office of Equity is to protect and support the Common Law, and carry it into practical effect, to secure its protecting influence for the benefit of the subject, where by reason of its universality it would fail to accomplish that object. Equity, says Blackstone, in its true and genuine meaning, is the soul and spirit of all law. Here, by equity, we mean nothing but the sound interpretation of the law. 3 Blackstone’s Com. 429, 431. When we adopted the Common Law of England, we adopted it as an entire system, so far as it was properly adapted to the circumstances of our people ; and the principles of Equity, as there administered, for the purpose of giving a practical effect to those laws, constituted a part thereof.

The principles of Equity, as enforced by the Court of Chancery in Great Britain, were as necessary to give complete efficacy to the laws, in the Colony of Georgia, as in that country from whence the laws were derived. The first Provincial Governor of the Colony, was therefore invested with the custody of the Great Seal, and as Chancellor within the province, had the same powers as the Lord High Chancellor of England. Stevens’ History of Georgia, Yol. 1, 387. A Court of Chancery was ordered, for hearing and determining all matters of Equity, as early as 1754, to be held before the Governor as Chancellor; and a Master, Register, and Examiner, were appointed as officers of the Court. Ibid, 391. The Ecclesiastical or Canon laws of England, were derived from the Civil law, yet, they constitute a part of the unwritten, or Common Law of that kingdom. They owe their validity, says Blackstone, because they have been admitted, and received by immemorial usage and custom. 1 Black. Com. 79. The same remark might with propriety have been made, with regard to the principles of Equity, derived from the Civil Law. The Law Merchant, however different from the general rules of the Common Law in its origin, has been ingrafted into it, and made a part of it. The Law Merchant, says Mr. Justice Buller, in Masten vs. Miller, (4 Term Rep. 342,) “is a system of Equity, founded on the rules of Equity, and governed in all its parts, by plain justice and good faith.” A great proportion of the rules and maxims which constitute the immense code of the Common Law, grew into use by gradual adoption, and received from time to time, the sanction of the Courts of justice, without any legislative act or interference. It was the application of the dictates of natural justice and of cultivated reason, to particular cases. In the just language of Sir Matthew Hale, the Common Law of England is “not the product of the wisdom of some one man, or society of men, in any one age; hut of the wisdom, counsel, experience and Qbservation of many ages of wise and observing men.” 1 Kent’s Com. 471. We have endeavored to show, that the principles of Equity were introduced into the Jurisprudence of Great Britain, at a very early period, not for the purpose of creating any new law, but to give a more perfect and practical effect to the general laws of that country, and thereby became a necessary fart of that judicial system of laws, which we adopted in this country, so far as the same were suited to our circumstances and condition; that when the Legislature of 1799 declared the Superior Courts shall exercise the powers of a Court of Equity, in all cases where a Common Law remedy is not adequate, they intended the Superior Courts should exercise and adopt as a rule for their government, the same principles of Equity which had been recognized and settled by the Court of Chancery in England, prior to the American Revolution, so far as the same were not contrary to the constitution, laws, and form of government of this State. The Act of 1784 adopted the laws of England, adapted to our circumstances. The Act of 1799 confered Equity powers on the Superior Courts, necessary to give to those laws a complete and practical application, for the benefit of the citizens of this State, in as full and ample manner, as the same existed in Great Britain, for the benefit of the subjects of that kingdom. We have not only adopted the laws of England suited to our circumstances, but we have created the necessary judicial machinery, to give to those laws a practical and beneficial effect, and such we understand to be the office and duty of a Court of Equity, and such we understand to have been the object of the Legislature, in 1799, in conferring Equity powers on the Superior Courts.

[4.] But with regard to the jurisdiction of Courts of Equity over charitable bequests and devises, although originally derived from the Civil Law, we have high authority for saying, the principles by which those Courts are governed in relation thereto, have been for ages incorporated into the laws of England. 2 Story’s Equity Jurisprudence, 393, section 1141. Philadelphia Baptist Association vs. Smith and Robertson, 3 Peter’s Rep. 481, 2. 4 Kent’s Com. 508. Vidall, et al. vs. Girard’s Ex’rs. 2 Howard’s Rep. 196.

The next question is, as to the validity of the bequsts, to the American Bible Society, and the Domestic Missionary Society. These two societies, were not incorporated at the death of the testator.

The bequests are to the Treasurer of each Society, and his successors in office; for the sole use, benefit, and behoof thereof. The record discloses, that ¥m. Whitlock, Jun., is the Treasurer of the American Bible Society; and Elizur Newton, the Treasurer of the Domestic Missionary Society; and that the American Bible Society was established for the purpose of encouraging a wider circulation of the Holy Scriptures, in the common version, without note or comment. The object of the Domestic Missionary Society was, to send ministers wherever they might think it expedient, within the State of Georgia, and to assist in building up feeble churches.

> These charitable trusts created by the testator, are not only lawful, but highly commendable; intended to enlighten and improve both the social and moral condition of his fellow men.

It is a cardinal rule in the construction of wills, to give effect to the intention of the testator, when the same can be done without violating any settled principle of the law. The authorities cited at the bar, in our judgment, establish the following propositions : that in the construction of charitable bequests, the Court will be liberal, so as to carry into effect the intention of the testator; that where the charitable intent can be discovered from the will, a Court of Equity will carry such intent into execution, and support the charitable purpose ; that the Court will not suffer an equitable interest to fail for want of a trustee to support it; that it never has been considered as an objection to a charitable use, because it was general, and in some respects indefinite; unless there was an uncertainty as to the amount intended to be given, or the general object of the use was of so uncertain and indefinite a character, that it could not be executed; that a Court of Equity has an inherent jurisdiction in cases of charitable bequests and devises, and that cases of charity in the Courts of Equity in England, were held valid, and executed independently of) and previous to the Statute of 43 Elizabeth. 2 Kent’s Com. 287. 2 Roper on Legacies, 140. Executors of Burr vs. Smith, et al. 7 Verment Rep. 241. Vidal, et al. vs. Girard’s Executors, 2 Howard’s Ref. 127. Attorney General, vs. Jolly, 1 Richardson’s Eq. Rep. 99. Coggeshall vs Pelton, 7 John Ch. Rep. 292. Griffin vs. Graham, 1 Hawks’ Rep. 96. The charitable bequests in the will of the testator, John Fox, to the Treasurer of the American Bible Society, and to the Treasurer of the Domestic Missionary Society, for the sole me, benefit, and behoof of said Societies, are definite, andjjthe specificVbjects of the trusts pointed out. The Treasurers of the respective Societies, and their successors in office, are constituted trustees for the sole use, benefit, and behoof thereof. But if there had not been any trustee named in the will, or the one named should refuse, or be incapable of acting, the Court would, by virtue of its inherent jurisdiction over charitable uses and trusts, lay hold of the trust fund, and carry into effect the charitable intention of the testator, by appointing a trustee for that purpose, if necessary. Let the judgment of the Court below be affirmed.