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    Civil Law Concerning Charitable Bequests

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    The word charity, as employed by the courts and used as descriptive of uses and trusts which will he upheld as charitable, has been the subject of a number of definitions. In the famous Girard will case (Vidal v. Girard, 2 How. U. S. 127), Horace Binney defines a charitable gift: "Whatever is given for the love of God or for the love of your neighbor, in the catholic and universal sense — given from these motives, and to these ends — free from the stain or taint of every consideration that is personal, private, or selfish." And he further says:" Uncertainty of individual object would seem to be a characteristic of charity, for personal or individual certainty has often been held fatal to it."

    The following comprehensive definition is given by a leading authority: "A charity, in the legal sense of the term, may be defined as a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting and maintaining public buildings or works or otherwise lessening the burdens of the government" (Amer. & Engl. Ency. of Law, V, 894).

    By a statute passed in the reign of Elizabeth (43 Eliz., c. 4) certain uses were defined as charitable which would be upheld by the court in contradistinction to those which were held to be superstitious after the Reformation in England. The objects enumerated in the statute were: "Relief of aged, impotent and poor people; maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars in universities; repairs of bridges, ports, havens, causeways, churches, seabanks and highways; education and preferment of orphans; relief, stock or maintenance for houses of correction; marriage of poor maids; supportation, aid and help of young tradesmen, handicraftsmen and persons decayed; relief or redemption of prisoners or captives; aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers, and other taxes.

    Under this statute the Court of Chancery was authorized to appoint commissioners to superintend the application and enforcement of charities, and if from any cause the charity could not be applied precisely as the testator had declared, the court had the power in some cases to appropriate it according to the principles indicated in the devise as nearly as possible to the purposes expressed therein. This was called an application of cy pres, from the French words meaning "as near as", the words of a will being interpreted so as to give effect to the testator's general intention. The application of this doctrine depends chiefly upon judicial expression in each particular case. In many of the United States it has been repudiated, in others sustained. The statute of Elizabeth did not create a new law upon the subject of charitable uses, though it did create a new jurisdiction, and as it has not been enacted in many of the American States, the better opinion seems to be that the enumeration of charities in the statute had for its aim to show by familiar examples what class or kind of uses were considered charitable, rather than to enumerate all of the purposes which would fall within the scope and intent of the statute.

    The Supreme Court of the United States has held, following ancient authority, that there is an inherent jurisdiction in equity in cases of charity, and that they were valid in such courts independent of and previous to the statute of Elizabeth. "The character of the object sought to be attained — the purpose to which the gift is to be applied — not the motive of the donor, is the best test of a legal, public charity" (Pepper and Lewis, Dig. Pa., p. 2753). The following have been held to be charities: the erection and repair of churches, the support of ecclesiastical denominations; of missions; the education of theological students, and kindred objects. In England, bequests for Masses for the dead are void in law, as being for superstitious uses; on the other hand, bequests for Masses have been sustained as charitable bequests in Ireland and in Canada (cf. Lilly and Wallis, "A Manual of the Law Specially Affecting Catholics", London, 1893, p. 144, and Desmond, "The Church and the Law", Chicago, 1898, p. 49). In the United States, some jurisdictions have sustained such trusts, while others have held them void (cf. Dillon, Bequests for Masses, Chicago, 1897). The support of education in its various forms is sustained, also the relief of the poor, the maintenance of hospitals and institutions, works of public utility, the abolition of slavery, and the benefit of freedmen. Trusts subversive of morality and religion will not be sustained. Trusts for the encouragement of sport and trusts for the care of private tombs or graveyards have not been sustained. Technically speaking, a bequest is a gift of personal property by will; a devise, a gift of real property by will; but these terms are frequently used interchangeably in popular language, and wills are always interpreted in accordance with the intention of the testator so far as the same can be gathered from the language of the instrument; therefore any language which will serve to express a desire to vest either personal or real property in a charity will be effective.

    According to Sir William Blackstone, the power of bequeathing "is coeval with the first rudiments of the law", but this power was not originally extended to all a man's personal estate. By the common law, he tells us, one-third of the goods went to the heirs, one-third to the wife, and the remaining one-third was at the testator's own disposal. By imperceptible degrees the law was changed in different parts of England, until, in order to favour the power of bequeathing and to reduce the whole kingdom to the same standard, statutes were passed in the reign of William and Mary, of William III, of Anne, and of George II, giving the right to testators within certain parts of the Kingdom of England to dispose of their entire personal estates, notwithstanding existing customs restricting this power to one-third only, and the claims of widows and children were utterly barred. By an act passed in the first year of the reign of Victoria (1 Vict., c. 26), it was enacted that all real and personal estate may be disposed of by will executed as required by that act. The right of testamentary disposition either of real or of personal estate exists, with certain limitations in some of them, in all of the United States.

    Lands were originally devisable, it would seem, to a qualified extent with the Anglo-Saxons. The development of the feudal system, after the Norman Conquest of England, laid upon the holders of land certain obligations to their paramount lords, which made it necessary that these lands should not pass into the hands of charitable corporations and be thus withdrawn from the feudal obligation, because such corporations were of necessity unable to render the services usually due to the overlord, e. g. military duties, which are not compatible with religious life. This was the moving cause of the passage of certain statutes called Statutes of Mortmain, which it is necessary to consider further in order to understand the law governing gifts to charitable corporations.

    "Upon the development of the feudal system at the Norman Conquest", says Chancellor Kent (4 Kent, 504), "lands held in tenure ceased to be divisible in consequence of the feudal doctrine of non-alienation without the consent of the lord.... The restraint upon the power of devising did not give way to the demands of the family and public convenience, so early as the restraint upon alienation in the lifetime of the owner. The power was covertly conferred by means of the application of uses; for a devise of the use was not considered a devise of the land. The mode of doing this was by a feoffment to the use of the feoffor's last will, and the feoffee being considered as seized of the use, not of the land, could devise it. The devise of the use was supported by the courts of equity, as a disposition binding in conscience; and that equitable jurisdiction continued until the use became by statute the legal estate. The Statute of Uses of 27 Henry VIII, like the introduction of feuds, again destroyed the privilege of devising, but the disability was removed within five years thereafter by the Statute of Wills of 32 Henry VIII."

    In the beginning of the reign of Charles II, military tenures were abolished so as to render the disposition of real property by will absolute. While the power of disposition of real property, as well as personal property either by the common law or by virtue of the statute above referred to, has been made thus free, there still remain certain restrictions upon individuals which must be considered.

    All persons of sound mind are competent to bequeath and devise real and personal estate, excepting infants and married women. In England a married woman may now by statute make her will as freely as if unmarried. In some of the United States, if not in most of them, the power of married women over their separate estates, saving to the husband certain proportions in case he should elect to take against the will, is as great as that of unmarried women; that is, married women are for the most part put on the same plane as men; they have certain rights in a proportion of the real and personal estate of their husbands, which he cannot void by will. There are, however, certain restraints upon alienation either by deed or by will, the first of which has already been mentioned, viz: alienation in "mortmain", a word coined to represent the condition where land has come into the possession of a dead hand, or in Latin mortua manus. An alienation of lands and tenements to any corporation, sole or aggregate, ecclesiastical or temporal, is such an alienation.

    After the introduction of the feudal system it was always, and is still, necessary in England to have a licence in mortmain from the Crown to enable a corporation to purchase lands, because the king is the ultimate lord of every fee, and save by his own consent he cannot lose his privilege of escheats and other feudal profits by the vesting of lands in tenants that can never be attainted or die. "In strictness, however, the license to hold in mortmain was only a waiver of the right of the Crown to enter on the lands alienated; for as no royal charter can per se take away the property or prejudice the interest of the subject, such license did not abrogate the right of the mesne lords to enter, and therefore with respect to them, the corporation was not secure until the lapse of the periods respectively limited for the assertion of their rights" (Grant on Corp., 101, quoted in Farrington v. Putnam, 90 M. 418).

    Originally the prohibition extended only to religious houses, bishops, and other sole corporations, excluding the parsons of parishes, who were in effect sole corporations and not included therein, but by the Statute "de Religiosis" (7 Edward I, c. 2) it was provided that no person, whether religious or otherwise, should sell, buy, or receive under pretence of a gift, or term of years or any other title whatsoever, any lands or tenements in mortmain under penalty of a forfeiture. Various attempts to evade this statute were met by subsequent statutes. In the reign of George II (9 George II, c. 36) a statute was passed that no lands or tenements or money to be laid out thereon should be given or charged with any charitable uses whatsoever, excepting by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor and enrolled in the Court of Chancery within six months after its execution. This act and its amendments were repealed in 1888, but new legislation codified the law on the subject, practically re-enacting the provisions of the existing law.

    As the object of the statutes of mortmain was solely political, they were held not to apply to the alienation of land in the West India colonies or in Scotland. These statutes were not re-enacted in the United States, and therefore we must look to the special restrictions contained in the Statutes of the several States, whether general or special, whence corporations derive their existence, for the limitations upon their power to purchase and hold real estate, and also to the force to be given to the exception of corporations out of the English Statute of Wills, which declares that all persons other than bodies politic and corporations may be devisees of real estate.

    At common law every corporation has the capacity to purchase and alienate lands and chattels, but in England corporations, both ecclesiastical and lay, under the statutes above referred to have lost this capacity. In the United States, as has been said, the statutes of mortmain are for the most part not recognized, but conveyances by deed or will of lands and tenements made to bodies corporate are void unless sanctioned by charter or act of legislature, and the inference from the statutes creating corporations and allowing them to hold real estate to a limited extent is that statutory corporations cannot hold real estate for purposes foreign to their institution.

    The object of the exception of corporations from the English Wills Act was to prevent the locking up of property in perpetuity and also to prevent the imposition upon dying persons, who might thus be persuaded to give their estates from their families to charitable objects. The English statute of charitable uses has not been re-enacted probably in any of the United States, and it would seem that a devise not directly to a charitable corporation but in trust for such corporation would be good, on the principle that a court of equity has jurisdiction over bequests and devises to charitable uses independent of the statute. It is no valid objection to a grant or devise to a charitable use that it creates a perpetuity or renders the estate granted or devised for the purposes inalienable. (See TRUSTS AND BEQUESTS.)

    LILLY AND WALLIS, A Manual of the Law Specially Affecting Catholics (London, 1893), under Trusts and Bequests, 135-67; DESMOND, The Church and the Law (Chicago, 1898), under Bequests to Charity, 44 to 56.

    WALTER GEORGE SMITH.

    Transcribed by Douglas J. Potter Dedicated to the Sacred Heart of Jesus Christ