Opinion.

possession for ten years would raise this presumption, is erroneous, and for that reason the judgment will be reversed.

It is not necessary to notice other errors growing out of the instructions given, as the foregoing disposes of the case here. But in view of the language used in the third instruction of the defendants, given by the court, that "they (the jury) are warranted in presuming such authority in the circumstances of this case, and from the great length of time since the dam was erected," &c., it may not be altogether useless to remark that this court has said, in McDowell v. Crawford, 11 Gratt. on page 402, that "it is a fundamental maxim that the court responds to questions of law, and the jury to questions of fact; the court must decide on the admissibility of evidence, that being a question of law: but not as to its weight after it is admitted, that being a question of fact." Citing, with approval, Mr. Conway Robinson (1 Rob. Prac. 338) as saying, the decided causes "evince a jealous care to watch over and protect the legitimate powers of a jury. They show that the court must be very careful not to overstep the line which separates law from fact. They establish the doctrine, that when the evidence is parol, any opinion. as to the reight, effect, or sufficiency of the evidence submitted to the jury, any assumption of a fact as prored, will be an invasion of the province of the jury." See, also, Mr. Barton's Law Practice, 214, citing Barring v. Reeder, 1 H. & M. 174; Moore v. Chapman, 3 H. & M. 266; Fisher's ex. v. Duncan & Turnbull, 1 H. & M. 366; Whiteacre v. Melhaney, 4 Munf. 310; Me Crac v. Scott & Saunders, 4 Rand. 463. Mr. Barton observes, from these authorities, that "For making observations or instructions to the jury as to the weight to be given by them to any particular part of the testimony, or to the whole evidence, the cause may be reversed and a new trial awarded." See, also, Davis v. Miller, 14 Gratt. 1; Hopkins v. Richardson, 2 Gratt. 486.

The great length of time, or what length of time had elapsed since the dam was erected, was a question of fact for the jury to determine from the evidence adduced in the case.

Opinion.

The judgment was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid, is of opinion, for reasons stated in writing and filed with the record, that the circuit court of Grayson erred in refusing to give the plaintiff's third instruction, and in giving the fourth and fifth instructions asked for by the defendant. It is therefore considered by the court that the said judgment be reversed and annulled, and the case be remanded to the said circuit court of Grayson, for a new trial to be had therein, in accordance with the foregoing opinion of this court and the views herein; and it is further considered, that the plaintiff in error recover against the defendant in error his costs by him expended in the prosecution of his writ of error aforesaid in this court. Which is ordered to be certified, with the foregoing opinion, to the said circuit court of Grayson.

JUDGMENT REversed.

Syllabus.

Staunton.

P. EPISCOPAL E. SOCIETY V. CHURCHMAN's Reps.

SEPTEMBER 25TH, 1885.

1. CHARITABLE BEQUESTS-Case at bar.-Testator, in 1880, bequeathed money to be invested by a fiduciary, giving ample security, in safe interest-bearing funds, the interest only to be applied to the use of his legatee during her life, and at her death, "the principal and any unexpended interest to be paid to the trustees of the Protestant Episcopal Education Society of Virginia" (incorporated in 1875), "said bequest to be used exclusively for educating poor young men for the Episcopal ministry, upon the basis of evangelical principles as now established.”

HELD:

1. The bequest to the legatee corporation is not null and void, be cause not absolute for its own use as a corporate body, but in trust to be exclusively used for the trusts therein named, and because those trusts are religious in their character, and too vague and indefinite to be upheld under the law of this State, or to be administered by a court of chancery, even if merely educational as contemplated by Code 1873, chap. 77, sec. 2.

2. The bequest is not contrary to public policy, but is valid both at common law and under Code 1873, chap. 77, and is enforceable by the chancery courts of this State.

2. CORPORATIONS-Trustees.-Corporations may take and hold estates for the use of another, if not for purposes foreign to the objects of their creation; and a devise or bequest to a corporation in trust, if otherwise valid, is not for that reason, void.

3. TRUSTS-Express-Implied.-Where in the nature of things, a trust is created, it is immaterial that it is not expressly declared in terms.

4. CHARITIES-Definition.—In a legal sense, a charity is a gift to be applied, consistently with the laws, for the purpose of benefiting an indefinite number of persons in any respect whatever, and it is not material that the purpose should be expressly designated as charitable.

Syllabus-Statement.

5. RELIGIOUS USES-Public policy.-As exhibited by the legislation of this State, there has never been any hostility here to bequests for religious uses. See Code 1873, chapters 75 and 77.

6. IDEM-Idem.—This court has never decided that bequests for religious uses were void, for that reason alone. See Gallego v. Attorney-General, 3 Leigh, 450.

7. EQUITABLE JURISDICTION AND RELIEF-Charitable uses-Common law— 43 Elizabeth-Act of 1839.-At common law chancery courts had jurisdiction to enforce bequests for charitable uses. Statute of 43 Elizabeth did not confer such jurisdiction, but only created an auxiliary remedy by commission, &c. Said statute was local, and never in force here. But if it was general in its operation in some respects, it was not repealed by the Act of 1792, but in those respects was preserved by the saving clause of that act. In any event, the Act of 1839, (Code 1873, chap. 77,) clearly validates and makes enforceable all gifts for such purposes, subject to certain restrictions therein contained.

8. CASES REVIEWED.-Baptist Association v. Hart, 4 Wheaton, 1; and Gallego v. Attorney-General, 3 Leigh, 450-disapproved. Vidal v. Girard, 2 Howard, 127-approved.

Appeal from decree of circuit court of Augusta county, rendered 18th June, 1883, in the cause of William T. Rush, administrator, with the will annexed, of Henry Jewett Churchman, dec'd, plaintiffs, against John S. Churchman and others, heirs at law, legatees and distributees of the said decedent, and The Protestant Episcopal Education Society of Virginia, defendants.

The object of the suit was to expound the said will, and especially to construe and declare null and void the 4th clause thereof, which is as follows:

"At the death of said Alice Clark Churchman, whenever that may be, the principal sum of $4,000, and any unexpended interest, shall be paid to The Trustees of the Protestant Episcopal Education Society of Virginia-the said bequest to be used exclusively for educating poor young men for the Episcopal ministry, upon the basis of evangelical principles as now established."

The cause having been fully matured, upon the bill, the sev

Statement-Argument.

eral answers and the exhibits, the circuit court decided the bequest to the said society to be void, because the same is to the corporation, not absolute for its own use as a corporate body, but in trust to be exclusively used for the purpose therein named, and because the uses and trusts declared by the said testator are null and void, being religious in their nature, and too vague and indefinite to be upheld under the law of this State, or to be administered by a court of chancery, even if said trusts were merely educational, as contemplated by section 2, chapter 77, Code 1873. From this decision the said society obtained an appeal to this court.

Opinion fully states the case.

Hugh W. Sheffey and E. C. Burks, for the appellant.

NOTE OF ARGUMENT filed by Judge E. C. Burks:

CHARITIES.

I. Cases decided by the Virginia court of appeals:

1, Gallego's Ex'ors v. Attorney General, 3 Leigh, 450, decided 1832; 2, Janney v. Latane, 4 Leigh, 327, decided 1833; 3, Literary Fund v. Darsons, 10 Leigh, 147, decided March, 1839; 4, Same v. Same, 1 Rob. 402, decided 1842; 5, Brooke v. Shacklett, 13 Gratt. 301, decided 1856; 6, Seaburn's er'ors v. Seaburn, 15 Gratt. 423, decided 1859; 7, Kelly v. Love's adm'r, 20 Gratt. 124, decided 1870: 8, Virginia v. Lery, 23 Gratt. 21, decided 1873; 9, Kinniard v. Miller's er'or, 25 Gratt. 107, decided 1874; 10, Roy's er'or v. Rouzie, 25 Gratt. 599, decided 1874; 11, Hoskinson v. Pusey, 32 Gratt. 428, decided 1879; 12, Missionary Society v. Calvert's adm'r, 32 Gratt. 357, decided 1879; 13, Cozart v. Manderille's er'or, cited 32 Gratt. p. 365, decided 1879; 14, Stonestreet v. Doyle, 75 Va. 356, decided 1881.

II. Cases decided by supreme court of United States:

1, Baptist Association v. Hart's crors, 4 Wheat. 1, decided