Chambers v. City of St. Louis , 29 Mo. 543 ( 1860 )

Scott, Judge,

delivered the opinion of the court.

Bryan Mullanphy died on the 15th of June, 1851, leaving a will, of which here follows a copy:

“ I, Bryan Mullanphy, do make and declare the following to be my last will and testament: One equal undivided third of all my property, real, personal and mixed, I leave to the City of St. Louis, in the state of Missouri, in trust, to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the west. I do appoint Felix Costé and Peter G. Camden executors of this, my last will and testament, and of any other will or executory devise that I may leave. All and any such document will be found to be olograph, all in my own handwriting. In testimony whereof witness my hand and seal. Bryan Mullanphy, [seal]

This will was attested lawfully, and was admitted to probate. It will be seen it was without date. The subscribing witnesses testified that they signed it as such in August, 1849. The estate was a large one, consisting of money and lands, a large portion of which was out of the limits of the city. The testator never married, and his sisters, five in number, were his heirs at law. This suit was commenced by petition in partition by the husband of one of the sisters, who were all married, against the remainder of them, and the City of St. Louis, claiming under the will, was made a party. There was a judgment for partition, and the portion of the real estate devised in trust to St. Louis was set apart to her. Upon this judgment a writ of error was sued out from this court.

By an agreement between the parties, this cause is to be considered as though the points arising in' it had been presented in a way in which the court could properly take cognizance of them; that this court shall not only examine the only point presented by the record, whether the city could take the land by devise in trust, but also the question whether the devise is such a one as under our laws is valid, it being for the benefit of cestuis que trust who are indefinite and uncertain.

The question whether the city can take the land in trust is a compound one, and involves, first, the inquiry whether, under her charter, she can take the land; and secondly, although she may have the capacity to take it purely as a gratuity or for her own use, yet whether she can take and hold it for the object mentioned in the testator’s will, thereby making herself a trustee in respect to it. We will first consider the question whether the City of St. Louis, being a body corporate, can, under our laws, take lands by devise, leaving for future consideration the result that would follow from its being established that the city could not take the land.

By the first section of the act concerning corporations, (R. C. 1846,) the incidents of all corporations are enumerated, one of which is “ to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.” The third section of the same act provides that “ in addition to the powers enumerated in the first section of this article, and to those expressly given in its charter, or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers except such as shall be necessary to the exercise of the powers so enumerated and given.” By the charter of St. Louis, passed 3d March, 1851, section two of the first article, it is enacted that the city “ may purchase, receive and hold property, real and personal, within said city, and may sell, lease, or dispose of the same, for the benefit of the city; and may pxirchase, receive and hold property, real and personal, beyond the limits of the city, to be used for the burial of the dead of the city, also for the erection of water-works to supply the city with water, and also for the establishment of a hospital for the reception of persons infected with contagious and other diseases, also for a poor-house, work-house, or house of correction; and may sell, lease or dispose of such property for the benefit of the city.”

There is nothing in our statute concerning wills which prohibits corporations from taking by devise; so that, as to their capacity to take by devise, they stand on the same ground as natural persons. The section of the statute concerning corporations above cited, in which are enumerated the incidents which result from the creation of a body politic or corporate, must be regarded as a substitute for the incidental powers which by the common law were annexed to every corporation, A corporation can do no act which is not expressly or impliedly authorized by its charter, or by the act under which it is created. The City of St. Louis is authorized to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in her charter. This is by the general law concerning corporations. No amount being fixed by her charter, she can hold as much as shall be necessary for the purposes for which she was created a body corporate. Although it has been held, where a corporation is prohibited from taking by devise and is empowered to take by purchase, the word “ purchase” shall be construed in its vulgar and not its legal sense, which signifies an acquisition by any other mode than by inheritance, yet that principle is not applicable under our law, which does not prohibit devises to corporations.

It is not denied but that the city, under her charter, could take all the lands devised to her within her limits, if the devise had been to her own use, uncoupled with the trust to wbicli, by the terms of the devise,'it was" subjected. But it is maintained that, as to the lands oxxtside of her limits, she could only take them for the specific purposes enumerated in the section to which reference has been made ; and it is insisted that the enumeration of the particular purposes for which lands may be held beyond the limits of the city is an exclusion of all other purposes for which lands thus situated may be held. But the force of this argument is broken, when we consider that, independently of the powers conferred by the charter, the city had, under the section of the act concerning corporations above cited, a power to hold such lands, without regard to their locality, as may be necessary for the purposes of the corporation; and the third section of the same act declares that such power shall be in addition to any power that may be conferred by the charter. Statutes in pari materia are to be construed so that they may all stand. A repeal of the statutes by implication is -not favored in law. Lands held by the city beyond her limits would be held by her as by any individual proprietor, and her powers over them would only be commensurate with those enjoyed by private owners. But, by authorizing her to hold lands beyond her .limits for objects intimately connected with the purposes of the corporation and highly necessary for her prosperity and welfare, it was intended that, over such places, she should exercise such police powers as would be required in order to make them answer the purposes for which they were designed.

We have no statutes of mortmain. The apprehension of any evils resulting from the ownership of lands by corporations has not been evinced by any general legislation. The law of this state regulating banks and. banking institutions has not only omitted the imposition of any restrictions on the power of the banks to acquire real estate, but has exempted them from the provisions of the first article of the act concerning corporations, to which reference has already been made, thereby leaving their powers in regard to this matter as they stood at common law, which gave corporations an unlimited power of taking and bolding real estate. Indeed the great and still increasing assimilation of real to personal estate for all the purposes of commerce has, in a great measure, taken away the necessity for such restraints. Land at this day is not what it was in the days of feudalism. It is no longer clothed with the privileges, nor encumbered with the burdens, of that time; nor is it so far removed from the influence of commerce. It is, therefore, no matter of surprise that the statute concerning corporations, in enumerating the incidents necessarily annexed to them, placed real and personal estate in the same connection. These considerations, together with the fact that St. Louis is a municipal corporation, whose powers may be resumed at any time by the legislature, must produce the conviction that no policy is subserved in prohibiting her from taking real estate.

But although there may be no more policy, at this day, in the laws prohibiting corporations from purchasing real estate than in restraining them from diverting their capital to any other unauthorized purpose, yet, if the legislature has forbidden it, we are bound to enforce the prohibition. Availing themselves of this principle, the plaintiffs in error maintain that the city being authorized to purchase such lands as may be necessary for the purposes of the corporation, and the lands outside of her limits not being necessary for such purposes, she can not take them. Now, whatever may be the meaning of the word “necessary” — for it has different significations, meaning sometimes indispensably requisite; at others, needful, requisite, incidental, or conducive to; and it is admitted that there are cases in relation to land held by corporations in which that. word has been made to bear the first of these significations — yet the meaning of that word is not involved in this proceeding. Whether these lands are necessary for the corporation is a question that can only arise in a proceeding instituted by the state against the city for abusing her right to purchase lands. The city had a power to purchase; if that power has been exceeded, then it has been violated, and the city charter may be forfeited in a suitable proceeding; and until that is done, she will hold the land. The city may hold lands outside her limits for certain purposes. Shall she be compelled to contest, with every occupant who may get possession of them, her right to take and hold lands ? There being a right in the city to purchase, if there is a capacity in the vendor to convey, so soon as a conveyance is made there. is a complete sale ; and if the corporation, in purchasing, violates or abuses the power to do so, that is no concern of the vendor or his heirs. It is a matter between the state and the city. The law is’ only directory in relation to corporations taking lands. It imposes no penalty, nor does it in terms avoid the conveyance. Nowhere is a corporation in express terms prohibited from taking and holding lands. The city is duly incorporated, with authority to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require; and if, in holding and purchasing real estate, she passes the exact line of her power, it belongs to the government of the state to exact a forfeiture of her charter; and it is not for the courts, in a collateral way, to determine the question of misuser by declaring void conveyances made in good faith. In this view of the subject we are amply sustained by the authorities. (Baird v. Bank of Washington, 11 Serg. & R. 418; The Banks v. Poiteaux, 3 Ran. 136; Leasure v. Hillegas, 7 Serg. & R. 319; Angel on Corporations, § 152; Silver Lake Bank v. North, 4 John. Ch. 370.)

The next question in order is, whether the city, even admitting that she can hold the lands outside of her limits for her own use and in her own right, can become a trustee of them for the benefit of others. We are now speaking of the abstract right of corporations to hold property in trust, disconnected with any consideration of the lawfulness of the trust. Whatever may have been thought in ancient times in relation to this question — although a defect of the requisites to create a good trustee, the want of confidence in the person, may then have been deemed sufficient to prevent a corporation from becoming a trustee — yet that quaint reason is no longer respected, and the doctrine is well established at this day that a corporation may be a trustee. Chancellor Kent says it was formerly understood that a corporation could not be seized of lands to the use of another, and that it was incapable of any use or trust, and consequently that it could not convey lands by bargain and sale. But the objection that a corporation could not convey by bargain and sale was utterly rejected in the common bench, in the case of Sir Thomas Holland v. Bonis, as a dangerous exception to the capacity to convey ; and at this day the only reasonable limitation is that a corporation can not be seized in trust for purposes foreign to its institution. Equity will now compel corporations to execute any lawful trust that may be reposed in them; and in the case of the Trustees of Phillips’ Academy v. King, 12 Mass. 546, it was held that a corporation was capable of taking and holding property as a trustee. Many corporations are made trustees for charitable purposes, and are compelled in equity to perform their trusts. Corporations appear to be deemed competent to perform the duties of trustees, and to be proper and safe depositories of trusts. (2 Kent, 280.) As corporations no more than natural persons are compelled to accept trusts, and as they can not become trustees against their will, if the trusts, with which they are clothed and < whose performance they voluntarily undertake, are not inconsistent with nor foreign to the purposes for which they were instituted, there is no reason why they should be restrained from becoming trustees. Of their fitness and capacity to manage the trust, the author of it is the sole and rightful judge ; and if he is satisfied, it is not for those who have no concern in the matter to object to the trustees he may see fit to appoint. A court of chancery is vested with the same jurisdiction over corporate trusts which it ordinarily possesses and exercises over other trust estates.

We propose now to consider the question, whether the trust created by the will is such a one as the city in her corporate capacity can accept, admitting that it is of such a character that its performance could be enforced by competent trustees. As has been observed, -there is no reason why a corporation should not have capacity to undertake the execution of a trust not repugnant to the purposes for which it was instituted, and such is now the established law. This question has been confused by mingling in the argument considerations of the illegality of the trust. The matter we are now examining is whether there is any thing in the nature of the trust with which the land devised by Mullanpky is impressed, which incapacitates the City of St. Louis, in her corporate capacity, from carrying it into effect, admitting that, if the trust had been confided to competent trustees, it would have been enforced by our courts. As it is established as law thatn, corporation has capacity to accept a trust not repugnant to the purposes for which it was created, we do not well see how any difficulty can arise in the determination of this question. Taking it for the present as admitted that this is a legal trust, what reason can' be given why the City of St. Louis should not execute it? There is no force in the argument drawn from the liability of a trust to abuse and mismanagement under the control of a coi’poration. It is exposed to the like dangers in the care of individual trustees. The choice of trustees is a matter of judgment, and the devisor of the trust has, in the exercise of that judgment, preferred an artificial to a natural person. Both, as trustees, are equally liable to animadversion and control of the courts.

By the charter, the mayor and city cotincil have the power to make such rules, regulations, by-laws and ordinances for flic purpose of maintaining the peace, good government and order of the City of St. Louis, and the trade, commerce and manufactures thereof, as the city council may deem expedient. What repugnance is there in the exercise of powers like these, and the management in trust of a fund “ to furnish relief to poor emigrants and travelers coming to St. Louis on their way, bona fide, to settle in the west ?” Commerce is intimately connected with emigration and draws it within its influence. The means of transportation employed in commerce attract emigrants, and they avail themselves of those means for the purpose of emigration. The creation of a fund for the relief of poor emigrants at a great commercial point, would cause traveling to that point even by those who flattered themselves that they would never need relief. They, mindful of the vicissitudes of a long journey, and knowing that there was an asylum on the way in the event of a misfortune, would naturally prefer going among a people who had evinced so kind a regard for strangers. A charity of this character would be a benefit to the city, as it would increase the interest that would be felt for her prosperity and welfare. Many would reach the city in distress who had benefited her commerce before their arrival. Their means may have been all exhausted in paying for their transportation, which had been increased by events untoward and unforeseen.

Again, the city has power to make ordinances for her good government. To a large and commercial city emigrants will come as to a point from which, availing themselves of her facilities for transportation, they can diverge in the direction where they contemplate selecting their new homes. Good government on the part of the city would require that she should make some provision for those of that class who are in want and distress. As this is one of the consequences of her commerce, by which she is so much enriched, she must feel herself under obligation to mitigate some of the evils resulting from it. The city is also empowered to establish hospitals and make regulations for their government. A fund for the relief of poor emigrants found in the city may be made subservient to such of them as require the aid of a hospital. The fund, however it may bo invested, would aid the hospital by relieving it from the necessity of retaining its inmates longer than without such fund charity would require them to bo provided for. It is obvious that a trust, such as is contemplated by the will of Mullanphy, and a hospital, would reciprocally aid and assist each other.

When we regard St. Louis as a great commercial clotlied with all the corporate powers deemed necessary for a wise administration of her municipal affairs, for her good government, and the promotion of her commerce, it is difficult to perceive how the execution of the trust of the will can conflict with the purposes for which she was incorporated. So far from it, the execution of such a trust is germane to the purposes of her charter, and will aid in the accomplishment of the great ends for which she received it. This view of the subject is not novel. It is amply sustained, as we think, by the case of Vidal and others v. Gerard’s Exec’rs, 2 How. 127. It also harmonizes with the act of the 12th March, 1859, passed by the general assembly of this state. The act, in its preamble, recites : “ Whereas doubts have been suggested as to the capacity of the City of St. Louis to take and hold property beyond the city limits, given for charitable purposes, and also as to the capacity of the city to execute charity trustsand it is therefore enacted “ that the City of St. Louis is hereby- declared to be capable of taking and holding property, real and personal, both within and without the city limits, given dr to be given for charitable purposes, and of executing all such charity trusts in like manner as natural persons are.” (Sess. Acts, 1859, p. 280.) Although it is not pretended that -this act can operate to divest any, rights vested before its passage, yet it may be regarded as a legislative declaration of opinion as to the law existing in this state in relation to the execution of trusts by corporations, and as such is entitled to the consideration of this court.

We now approach the question most argued at the bar, and which involves the extent of the jurisdiction of the courts of this state' over charitable trusts. ’ Charitable gifts and legacies have been presented to the courts distinguished by a great variety of attending circumstances. There have been charitable trusts in which the trustee was named and capable of taking the subject of the trusts, with the general purpose of the charity designated, while the objects to be ben-efitted by it were uncertain and unknown. There have also been charitable donations, where the trustee could not take the property intended for such purposej and where the beneficiaries of the charity were not described with certainty, leaving them to be ascertained by those who might be entrusted with its management. There have been many other charities distinguished by their peculiar circumstances, but the enumeration made will suffice, as we only propose to give an opinion as to the authority of our courts to execute the trust, the subject of this controversy, and which is embraced in one of the kinds that have been mentioned. There are courts in which it would be held that both classes just described would be enforced. But we do not deem it necessary to enter upon the consideration of that question, contenting ourselves with the determination of the only matter submitted to us. In the examination of this subject we disclaim all power to receive or reject the law of charities as we may deem most expedient for the interest of the state. For, while it may be admitted that charities are not only liable to great abuses in their creation, but also in their management, on the other hand it can not be denied that there are some which at once herald the names and fame of their founders far and wide, and dispense great blessings among those who are the objects of them. The weighing their advantages with their disadvantages is the province of the legislature ; and until that branch of the government is induced to interfere, the courts must administer the law by the aid of those lights to which they resort in all other cases of doubt and uncertainty.

As there are some states in which the statute of 43 Elizabeth, respecting charitable uses, has been repealed, we do not consider that the opinions of the courts of those states, nor of other courts on the subject of the law of charities prevailing in them, should have any great influence in our judgment in relation to this matter. The case of the Trustees of the Philadelphia Baptist Association v. Smith & Robertson, 4 Whea. 1, decided in the Supreme Court of the United States, and Gallego’s Exec’r v. Attorney Gen’l, 3 Leigh, 450, are cases which arose under the laws of Virginia; and in that state the statute 43 Elizabeth had been repealed. The case of Dashiell v. Attorney Gen’l, 5 Har. & John. 392, arose in Maryland, where the statute of Elizabeth was reported at an early day as not being in force, which report was acquiesced in as the law. If the statute of the 43 Elizabeth had been repealed in this state, wo must confess we would have been embarrassed in endeavoring to uphold a charity which differed in any material respect from any other lawful trust. Although it might be- argued that the repeal of the statute would not affect the commón law, yet the two subjects were so closely joined, giving and receiving aid from each other, that such a measure óould not fail to influence the judgment, and be regarded as evidence of the indifference if not the hostility with which the subject was viewed by the legislature. In declining to be governed'by opinions formed from such considerations, we do not disparage the courts by which they were delivered, nor diminish in anywise the respect to which they are deservedly entitled'.

The subject of charities is one of some importance ; but as it is a matter entirely within the control of the legislature, we are relieved from the anxiety which might be felt were we conscious that our opinion was beyond the correction of the legislative power. If any evils/should be apprehended from the existence of the law of charities as it is riow understood, they can easily be corrected, or the cause of them be entirely removed, for the future. Our judgment can only affect the charities that have been already created, and their increase at any time may be prohibited.

Charities were not unknown to the ancient common law; and when it is observed that the common law has never prevailed where the Christian religion did not exist, it is not remarkable that we should find that law a patron of charities. Hence from an early age in the history of our jurisprudence we see them, in some form or shape, so recognized in the courts that we can not be easily reconciled to- the doctrine that a trust for a charity is, like all other trusts, only to be enforced by the courts when all those circumstances concur which would authorize the execution of a trust between individuals, having no relation to any charitable use. This is doing nothing for charities, and leaves them standing as all other trusts. Swinburne says, “ another privilege is, that the testament ad pías causas is not void for uncertainty (as other testaments are) ; and, therefore, if the testator say, I make the poor my executors, or, I will that my goods be distributed among the poor, such manner of appointing executors or legacies is not void.”

In maintaining the proposition that the charity created by the will of Mullanphy can be enforced in our courts, we meet with no difficulty in finding cases in support of it. Our embarrassment grows out of the labor of arranging them. We are not of opinion that charities derived their existence from the statute of 48 Elizabeth. That statute was passed to provide remedies for abuses in the management of charities, and not for the purpose of giving validity to them by its own' force.' It referred to them as existing things, and gave an additional remedy to prevent them from being diverted from the objects for which they were created. The preamble to the act, after reciting a number of charities, declares that “ they have not been employed according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver and employ the same.” Such language is not very consistent with the idea that charities had no existence previous to its passage. Frauds and breaches of trust are terms that could not be applied to things whose existence was not recognized by law. In the case of the Incorporated Society v. Richards, Drury & Warren, 301, Edw. Sugden, Lord Chancellor of Ireland, and afterwards Lord Chancellor of England, said that the statute did no doubt give an extended power of alienation by a forced construction; but whilst it did so, one can scarcely avoid coming to the conclusion that its great object was to create a new jurisdiction, which, it was hoped, would be more efficient in enforcing the due administration of charitable uses. He continues:'“There is not a word in this act to render valid that which was invalid, or that legal which theretofore had been illegal, but much to enforce against those guilty of breaches of trust, that which was treated as perfectly legal and binding at the time the act of Parliament passed. If, then, I had to decide upon the law of England at that time, I could-not hold that gifts to charities were illegal. It seems to-me that this act of 4.8 Elizabeth proves that such gifts were binding, legal dispositions at the time it was passed, although it was necessary to employ more searching remedies and a new machinery to protect' and enforce them against breaches of trust, fraud and negligence.” In the case of the Attorney General v. The Mayor of Dublin, 1 Bligh, N. S. 347, Lord Redesdale (Sir John Mitford) said, “ we are referred td the statute of Elizabeth in respect to charitable uses as creating a new law upon that subject. That statute only created a new jurisdiction ; it created no new law ; it created a new and ancillary jurisdiction, a jurisdiction borrowed from the elements which I have mentioned; a jurisdiction created by a commission to be issued out of a court of chancery to inquire whether funds given for charitable purposes 'had or had not been misapplied, and to see to their propeí application.”

In order to appreciate the force of these opinions, it must be observed that they arose in Ireland, where the common law prevailed, but where the statute of 43 Elizabeth was never introduced. So they are entitled to great weight in the consideration of the question before us, not only as being the judgments of two of the most eminent of the English judges, but from the great similarity of the circumstances under which the question is presented here and in those cases. In England this question can not directly arise since the passage of the act of Elizabeth, though it has sometimes been discussed when it was incidentally involved in determining whether a charity should be controlled by the inherent powers of a court of chancery or under a sign manual of the king. Our statute of tlie 19th of January, 1816, introduced “ the common law of England, which is of a general nature, and all statutes made by the British Parliament in aid of, or to supply the defects of, the said common law, made prior to the 4th year of James the I, and of a general nature and not local to that kingdom.” If the common law was aided by statutes not of a general nature but local to that kingdom, we see no reason why that law, as it existed there unaided by such statutes, should not be in force among us, as we have the means to execute it which were provided by the common law. The statute will certainly bear this construction. There is nothing in it which intimates that, where the common law was aided by a local statute that it should not be enforced here, although it can be done without the aid of the local statute.

Of late years the subject of charities has undergone a great deal of investigation, both in England and the United States; and the result of that investigation has strengthened the opinion that the law of charities did not derive its existence from the statute of 43 Elizabeth, and that there was an inherent jurisdiction in the court of chancery over the subject of charities before the enactment of that statute. The opinion of the Supreme Court of the United States, in the case of the Philadelphia Baptist Association, in which a contrary doctrine was intimated, has not' given satisfaction; and in subsequent cases, occurring in the state courts, it has not been followed. Judge Story, speaking of that case in the subsequent one of Vidal and others v. Girard’s Exec’rs, 2 How. 196, says: “ Very strong additional light has been thrown upon this subject by the recent publications of the commissioners on the public records in England, which contain a curious and very interesting collection of the chancery records in the reign of Queen Elizabeth and in the earlier reigns. Among these are found many cases in which the court of chancery entertained jurisdiction over charities long before the statute of 43 Elizabeth; and some fifty of these cases, extracted from the printed calendars, have been laid before us. They establish in the most satisfactory and conclusive manner that cases of charities, where there were trustees appointed for indefinite and general charities as well as for specific charities, were familiarly known to, acted upon, and enforced in the court of chancery.” Whatever doubt, therefore, might be properly entertained on 'the subject when the case of the Trustees of the Philadelphia Baptist Association v. the Exec’rs of Hart, 4 Whea. 1, was before the court, (1819,) these doubts are entirely removed by the late and more satisfactory sources of information to which we have alluded.

In the case of Zimmerman v. Anders, 6 Watts & Serg. 219, in the supreme court of Pennsylvania, it was said: “Although the statute of 43 Elizabeth is not in force in this state, it would seem that it is so considered rather on account of the inapplicability of its regulations as to the modes of proceeding than in reference to its- conservative provisions. These, I conceive, have been in force here by common usage and constitutional recognition; and not only these, but the more extensive range of charitable uses, which chancery supported before that statute and beyond it. Of such recognition of parts of a statute, though the statute itself be not in force, we are not without other examples.” In the case of Burr’s Exec’rs v. Smith and others, 7 Verm. 291, Chancellor Williams, in an opinion in which the law of charities is ably reviewed, observed that, from the examination he had been enabled to bestow on the subject, it appeared to him “ that the law of charitable uses is -not founded on any statute, but tliat it existed at common law, the elements of which were derived from the civil law, and the principles of it may be found both in the statutes and in the adjudicated cases long before the reign of Elizabeth.” Chancellor Kent (2 Kent, 287) thus expresses himself in relation to this subject: “ The elements of the doctrine of the English chancery in relation to charitable uses are to be found in the civil law, and it is questionable whether the English system of charities is do be.referred exclusively to the statute of Elizabeth. The statute has been, resorted to as a guide, because it furnished the largest enumei’ation of just and meritorious charitable uses; and it may perhaps be rather considered as a declaratory law, or specification of previously recognized charities, than as creating, as some cases have intimated, the objects of chancery jurisdiction over charities. If the whole jurisdiction of equity over charitable uses and devises was grounded on the statute of Elizabeth, then we are driven to the conclusion that as the statute has never been reenacted, our courts' of equity in this country are cut off from a large field of jurisdiction over some of the most interesting and meritorious trusts that can possibly be created and confided to the integrity of men. It would appear from the preamble to the statute of Elizabeth that it did not intend to give any new validity to charitable donations, but rather to provide a new and more effectual remedy for the breaches of those trusts.”

The foregoing citation of authorities, as to the views of the English and American judges in regard to the state of the law of charities before the statute of 43 Elizabeth, must suffice. The, list might be greatly increased. In most of the states of the Union where the subject of charities has been discussed, they have been sustained, with some modifications of the law as it was administered in England, and that, too, since the case of the Philadelphia Baptist Association, in which it was thought that, independently of the statute of Elizabeth, trusts for charities were subject to the rules which govern all other trusts.

It is objected to this charity that it is contrary to sound policy; that it would be the means of attracting from abroad those who had no purpose of emigrating, merely for the sake of obtaining the relief to be furnished by the fund; and thus would fill the city with paupers and vagabonds. It will hot be denied that the will creates a charity. It would be an act of charity this day to furnish relief to poor emigrants and travelers in St. Louis on their way, bona fide, to settle in the west. If the charity is carried out according to the will of its founder, no injury to tlie community in this respect can result from its establishment. The objection seems to have its support in the idea that -there will be a want of capacity in the trustees to ascertain who will be entitled to the benefit of the charity. If the first proclamation of the fact that there is a fund to furnish relief to all poor emigrants and travelers coming to St. Louis, bona fide, to settle in the west should induce those 'not intended to be beneficiaries of the trust to apply for relief, their refusal would prevent such applications for the future; and, moreover the class of persons intended to be benefited might be made known with such publicity that all motives to the' unworthy to come to St. Louis merely for the sake of charity, without any ulterior design of settling in the west, would be removed. We can not be persuaded that it is a valid objection to a charity, that from a possible abuse in its administration an injury might result to the interests of the society in.which it is located. Such an objection would prove fatal to the existence of most charities. Moreover, the trustees in the management of the trust would be subject to the control of the courts, and for a wilful violation of their duty they might, like all other trustees, be displaced.

The only remaining question to be considered is whether the trust of this will can be enforced on account of. the uncertainty of those who are to be benefited-by it. The case, as we view it', 'shows that there is a valid devise to a trustee capable of taking the subject of the devise an'd competent to undertake and execute the trust with which the devise is clothed. As the general object of the charity was specific and certain, and not contrary to any positive rule of law, with a competent trustee to execute the charity designated, we do not see on what ground this objection can rest. If, under such circumstances, the uncertainty of the persons to be relieved by a charitable fund could be available to destroy it, few charities could be sustained. If all the recipients of a charity could be designated with certainty at the time of its creation, there would be no necessity for a law for charitable uses different from that which governs all other trusts. The only difficulty in the way would be the law against per-petuities, and that would not exist where the donation in trust was made to a corporation. From the very nature of the subject, charitable gifts must be objects vague and uncertain. The subjects of the charity may be numerous, and they are to be sought for and ascertained by those to whose discretion and judgment the dispensation of the relief is entrusted. The founder of a charity, by placing his fund in the hand of a competent trustee, designating the general object of the trust, with power to carry that object into effect, makes the trustee his substitute or delegate. Can not any individual, who has the means, employ them for the relief of “ poor emigrants and travelers coming to St. Louis on their way to settle in the west ?” If he can carry out this charity himself, may he not appoint another to do it for him ? Could it be objected to such a course that the trastee would not know how to act ? As the donor of the bounty is willing to confide its management to the discretion of his agent, so long as that agent acts in good faith his acts are the acts of his principal, and there is no one but the principal to complain. If the agent abuses his trust, he, like all other fiduciary agents, is subject to the control of the courts.

But the answer to the objection of uncertainty is, that by the law, as it stood unaffected by the statute, courts of equity, by virtue of their inherent powers, would execute such trusts and carry them into effect. In the case of Mogridge v. Thackwell, 7 Ves. 86, it was held by Lord Eldon that where there is a general indefinite purpose, not fixing itself upon any object, the disposition is in the king by sign manual; but where the execution is to be by a trustee, with general or some objects pointed out, there the court will take the administration of the trust. This language Story adopts in relation to this subject both in his Equity Jurisprudence, (§ 1190,) and in his Appendix on Trusts to 4 Wheat. 20. It is somewhat vague; and unless the facts of the case in which it was employed are known it may mislead. Certainly that case carried the doctrine of charities to a great extent; and well may the chancellor have doubted and showed reluctance in acquiescing in it. These are the material facts: A testth-trix gave “ all the rest and residue of her personal estate unto James Vaston, his executors and administrators, desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters.” The. residue of the personal estate amounted to ¿650,000. Vaston died before the testatrix, and the question was whether the disposition of the residue devolved on the crown as the general guardian of all charities; or whether, in the event that had happened, there was a lapse for the next of kin. The case was decided on a rehearing of the original decree of Lord Thurlow, who held that the residue of the personal estate passed by the will and ought to be applied in charity, regard being had to poor clergymen with large families and good characters, according to the recommendation of the will. The trust was executed by the court through a scheme approved by the Mas* ter, who had authority to receive proposals from the parties for that purpose. The decree of- Lord Thurlow was confirmed by Lord Eldon. The facts of this case explain the language used by the chancellor and show how far the doctrine of'the powers of the court as a court of chancery was carried. It shows what is meant by 'the phrase “ with general or some objects pointed out.” The objects pointed out were the poor clergy, but the will did not contemplate that the poor clergy should have all the' residue, and as the legatee of the charity had died before the testatrix there was no person to designate the charities to which the residue should be applied. It was not supposed that if Vaston had lived the execution of the trust would not have devolved on him. His death produced all the difficulty in the case. We have been thus particular in stating the facts' because they serve to explain the obscure language used by the books in speaking of the inherent jurisdiction of courts of chancery on the subject of charities, and also show that the charity with which we are dealing, in its circumstances, falls within the class of those where there is a trustee appointed and “ the general object of the charity was specific and certain,” according to some, (2 Kent, 287,) or where “ a charity is definite in its objects and is to be executed and regulated by trustees,” according to others. (Story, § 1191.) Of this latter class, Story says: “ "Whether the trustees are private individuals or a corporation, the administration properly belongs to such trustees ; and the king, as parens patrias, lias no general authority to regulate or control the administration of the funds. In all such cases, however, if there be any misuse or abuse of the funds by the trustees, the.court of chancery will interpose at the instance of the attorney general, or the parties in interest, to correct such misuse or abuse of the funds. But, in such cases, the interposition of the court is properly referable to its general jurisdiction as a court of equity to prevent abuse of a trust, and not to any original right to direct the management of a charity, or the conduct of the trustees. Indeed, if the trustees of a charity should grossly abuse their trust, a court of equity may go the length of taking it away from them, and commit the administration of the charity to other hands. But this is more than the court will do, in proper cases, for any gross abuse of other trusts.”

In coming to the conclusion that this charity should be carried into execution by our courts, we are sustained by the case of Vidal et al. v. Girard’s Exec’rs 2 How.-; and we can not but incline to the opinion that, as this case is viewed by us, there is a great similarity between them.

It can not have escaped the attention of one who has looked into the cases involving the law of charities as it has been administered both here and in England, that a great diversity of opinion exists in relation to it. Whilst most of the American courts maintain that charities existed at common law independently of the statute of Elizabeth, they have expressed their unwillingness to carry it to the length to which the court of chancery in England has done in order to uphold charitable donations. This is the first case that has occurred in our courts, and we shall not attempt to define the extent of their jurisdiction in this branch of the law, or to point out the particulars in, which it varies from the law as it is administered in England. This can not be done at once. But the subject must- ba left to be gradually developed as cases may arise.

After a long and laborious examination of this case, we feel ourselves constrained to carry into effect the will of the founder of this charity. To turn from the beaten track on this subject and follow cases decided under influences which do not exist here, would be to depart from the course pursued in the administration of the law in other cases. Because the subject is new to us, and never before has undergone an examination in our courts, we are not the less bound to ascertain and declare the law as we find it, discarding all pretensions to a discretionary power to '-admit or reject the law of charities .by reason of any diversity of opinion that may be entertained in regard to the existence of such a law, or any portions of it.

Judgment affirmed;

the other judges concur. ,