Norton, 20 How., 448 [61 U. S., XV., 950]; it fol- | Act of Congress as and for such hospital, and lows that the motion to dismiss must be granted.

Cited 1 McCrary, 123.

upon such incorporation, upon further trust to grant and convey the said lots of ground and trust estate to the corporation or institution so incorporated for said purpose of the erection of a hospital, which conveyance shall be absolute and in fee: Provided, nevertheless, that such corporation shall be approved by my said trust

ELIZABETH C. OULD ET AL., Piffs. in Err., ees, or the survivor of them, or their successors

(See S. C., 5 Otto, 303-316.) Charitable endowments-devise to charitable use -conditional limitation.

1. The Statute of 43 Eliz., ch. 4, was never in force in Maryland. The validity of charitable endowments, and the jurisdiction of a court of equity in such cases, do not depend upon that statute. 2. A devise in fee, to two trustees and to the survivor of them, who were directed to convey the premises to an eleemosynary corporation for foundlings, whenever Congress should create one which the trustees approved, is a valid devise, and not void for uncertainty, nor as creating a perpetuity.

3. The provision in the will directing them to convey, is a conditional limitation of the estate vested

in the trustees; their conveyance was made neces-
sary to pass the title. The duty with which they
were charged was an executory trust.
[No. 70.]
Argued Nov. 2, 1877.

Decided Nov. 26, 1877.
IN ERROR to the Supreme Court of the Dis-

trict of Columbia.

The plaintiffs in the court below, now plaintiffs in error, brought ejectment to recover fourteen lots in the City of Washington, claiming as heirs at law of Joshua Pierce deceased. The

defendants claimed under Pierce's will.

and

The case is further stated by the court.
Messrs. O. D. Bartlett, B. F. Butler
R. T. Merrick, for plaintiffs in error.
Messrs. Walter S. Cox and Hanna &
Johnston, for defendant in error.

Mr. Justice Swayne delivered the opinion

of the court:

This case was submitted to the court below, upon an agreed statement of facts.

in the trust; and, if not so approved, then upon further trust to hold the said lots and trust estate for the same purpose, until a corporation shall be so created by Act of Congress which shall meet the approval of the said trustees or the survivor or successors of them, to whom full discretion is given in this behalf; and, upon such approval, in trust to convey as aforesaid; and I recommend to my said trustees to select an institution which shall not be under the control of any one religious sect or persuasion; and, until such conveyance, I direct the taxes, charges and assessments, and all necessary expenses of, for and upon said lots, and every one of them, to be paid by my executors, as they shall from time to time accrue and become due and payable, out of the residue of my estate."

The will was duly proved and admitted to probate in the proper court in the District of Columbia, on the 22d of June, 1864. On the 22d of April, 1870, Congress passed “An Act for Incorporating a Hospital for Foundlings in the City of Washington. 16 Stat. at L., 92. the 4th of April, 1872, Shuster and Clagett, the trustees, conveyed the property to the deFoundlings, so incorporated, pursuant to the fendant in error, the Washington Hospital for

directions of the will.

,,

On

which is still in force in the District of ColumThe Statute of Wills of Maryland of 1798, bia, provides that "No will, testament, or codicil shall be effectual to create any interest or perpetuity, or make any limitation or appoint to any uses not now permitted by the Constitution or laws of the State." 2 Kilty L. Md., ch. 101.

Our attention has been called in this connecing else in the laws of the State, as requiring tion to nothing in the Constitution, and to noth

ute like that of 9 Geo. II., ch. 36, is an element consideration. No statute of mortmain or stat

in the case.

in force in Maryland. Dashiell v. Atty-Gen., The statute of 43d Elizabeth, ch. 4, was never 5 Har. & J.. 392. It is not, therefore, oper ative in the District of Columbia.

The opinion prevailed extensively in this

The court found for the defendant, and gave judgment accordingly. The plaintiffs there upon sued out this writ of error. The questions presented for our consideration are questions of law arising upon the will of Joshua Pierce, deceased. The will declares: "I give, devise and bequeath all those four-country for a considerable period that the va teen certain lots" (describing fully the premises diction of courts of equity in such cases delidity of charitable endowments and the jurisin controversy) "to my friends, William M. Shuster and William H. Clagett, of the said pended upon that statute. These views were City of Washington, and the survivor of them, assailed with very great learning and ability in and the heirs, executors, administrators, and 1833, by Mr. Justice Baldwin, in Magill v. Brown, assigns of such survivor, in trust, nevertheless, Bright.,347. An eminent counsel of New York and to andf or and upon the uses, intents and was the pioneer of the Bar in 1835 in a like atpurposes following, that is to say: In trust to tack. His argument in Burr v. Smith, 7 Vt.. hold the said fourteen lots of ground, with the 241, was elaborate and brilliant and, as the appurtenances, as and for a site for the erection authorities then were, exhaustive. He was folof a hospital for foundlings, to be built and lowed in support of the same view, in 1844, by erected by any association, society or institu- another counsel no less eminent, in Vidal v. tion that may hereafter be incorporated by an Girard, 2 How., 127. The publication, then recent, of the Reports of the British Records Commission enabled the latter gentleman to throw much additional and valuable light into the discussion. The argument was conclusive.

NOTE.-What is a charity; bequests valid for charitable purposes and those not. See note to Vidall v. Girard's Exrs., 43 U. S. (2 How.), 127.

In delivering the opinion of the court Mr. | Justice Story, referring to the doctrine thus combated, said, "Whatever doubts might, therefore, properly be entertained upon the subject when the case of the Trustees of the Philadelphia Baptist Association was before the court (1819), those doubts are entirely removed by the later and more satisfactory sources of information to which we have alluded."

The former idea was exploded, and has since nearly disappeared from the jurisprudence of the country.

payment of fifteens. (20) Setting out of soldiers; (21) and other taxes.

Upon examining the early English statutes and the early decisions of the courts of law and equity, Mr. Justice Baldwin found forty-six specifications of pious and charitable uses recognized as within the protection of the law, in which were embraced all that were enumerated in the Statute of Elizabeth. Magill v. Brown [supra]. It is deemed unnecessary to extend the enumeration beyond those already named.

A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well doing and well being of social man. Perry, Tr., sec. 687.

In the Girard Will case, the leading counsel for the will thus defined charity: Whatever is given for the love of God, or the love of your neighbor, in the catholic and universal sensegiven from these motives and to these ends, free from the stain or taint of every consideration that is personal, private, or selfish." Mr. Binney's Argument, p. 41.

Upon reading the statute carefully, one cannot but feel surprised that the doubts thus indicated ever existed. The statute is purely remedial and ancillary. It provided for a commission to examine into the abuses of charities already existing, and to correct such abuses. An appeal lay to the Lord Chancellor. The statute was silent as to the creation or inhibition of any new charity, and it neither increased nor diminished the pre-existing_jurisdiction in equity touching the subject. The object of the statute was to create a cheaper and a speedier remedy for existing abuses. Hynshaw v. Mor The objection of uncertainty in this case as peth Corp., Duke, Charitable Uses, 242. In the to the particular foundlings to be received is course of time, the new remedy fell into entire without force. The endowment of hospitals for disuse, and the control of the chancellor became the afflicted and destitute of particular classes, again practically sole and exclusive. The power or without any specification of class, is one of of the King as parens patriæ,acting through the the commonest forms of such uses. The hos chancellor, and the powers of the latter inde-pital being incorporated, nothing beyond its pendently of the king, are subjects that need not designation as the donee is necessary. Who here be considered. Fontain v. Ravenel, 17 shall be received, with all other details of manHow..379 [58 U.S., XV., 80]; 2 Story, Eq. Jur., agement, may well be committed to those to sec. 1190. whom its administration is intrusted. This point is so clear, that discussion or the citation of authorities is unnecessary. Cases illustrating the subject in this view are largely referred to in Perry, Tr., sec. 699, and in the n. to sec. 1164, Story, Eq. Jur. See also Story, Eq. Jur., sec. 1164 and 1190, and notes.

The learning developed in the three cases mentioned shows clearly that the law as to such uses, and the jurisdiction of the chancellor, and the extent to which it was exercised, before and after the enactment of the statute, were just the

same.

It is, therefore, quite immaterial in the present case whether the statute was or was not a part of the law of Maryland. The controversy must be determined upon the general principles of jurisprudence, and the presence or absence of the statute cannot affect the result.

Two objections were urged upon our attention in the argument at bar:

1. That there is no specification of the foundlings to be provided for, and that, therefore, the devise is void for uncertainty.

In this connection, it was suggested by one of the learned counsel for the plaintiffs in error that a hospital for foundlings tends to evil, and ought not to be supported.

2. That the devise is void because it creates a perpetuity.

Hospitals for foundlings existed in the Roman Empire. They increased when Christianity triumphed. They exist in all countries of Europe, and they exist in this country. There are no beneficiaries more needing protection, care and kindness, none more blameless, and there are none who have stronger claims than these waifs, helpless and abandoned upon the sea of life.

A perpetuity is a limitation of property which renders it inalienable beyond the period allowed by law. That period is a life or lives in being and twenty-one years more, with a fraction of a year added for the term of gestation, in cases of posthumous birth.

In this case, the devise was in fee to two trustees and to the survivor of them. They were The Statute of Elizabeth, before referred to, directed to convey the premises to an eleemosynames twenty-one distinct charities. They are: nary corporation for foundlings, whenever Con(1) For relief of aged, impotent and poor gress should create one which the trustees appeople. (2) For maintenance of sick and maimed proved. If the will had been so drawn as itself soldiers. (3) Schools of learning. (4) Free schools. to work the devolution of the title upon the (5) Scholars in universities. (6) Houses of cor- happening of the event named, the clause would rection. (7) For repair of bridges; (8) of ports have been an executory devise. If the same and havens; (9) of causeways; (10) of churches; thing had been provided for in a deed inter (11) of sea banks; (12) of highways. (13) For vivos, a springing use would have been involved; education and preferment of orphans. (14) For and such use would have been exécuted by the marriage of poor maids. (15) For support and transfer of the legal title, whenever that ochelp of young tradesmen; (16) of handicrafts- curred. The testator chose to reach the end men; (17) of persons decayed. (18) For redemp-in view by the intervention of trustees, and tion or relief of prisoners or captives. (19) For directing them to convey at the proper time. ease and aid of poor inhabitants concerning This provision in the will was, therefore, a

conditional limitation of the estate vested in the A testator devised his real estate to trustees, trustees, and nothing more. Their conveyance in trust, with the rents and profits to purchase was made necessary to pass the title. The duty ground in Cambridge, proper for a college, with which they were charged was an execu- and to build all such structures as should be tory trust. Amb., 552. The same rules gen- necessary for that purpose (the college to be erally apply to legal and to equitable estates. called Downing College), and to obtain a royal They are alike descendible, devisable and alien charter for founding such college and incorable. Croxall v. Shererd, 5 Wall., 268 [72 U. porating it by that name, in the University of S., XVIII., 572. When such uses are consum Cambridge. The trustees were to hold the mated and no longer in fieri, the law of perpe- premises devised to them "in trust for the tuity has no application. Franklin v. Armfield, said collegiate body and their successors for 2 Sneed (Tenn.), 305; Dart. Coll. v. Woodward, ever." The devise was held to be valid. 4 Wheat., 518; Perin v. Carey, 24 How., 465 Atty-Gen. v. Downing, Amb., 550. [65 U. S., XVI., 701]. It is intended that what is given shall be perpetually devoted to the purpose of the giver.

In the case last named, the will expressly for bade for ever the sale of any part of the devised property. This court held the inhibition valid. Of course, the Legislature, or a court of equity under proper circumstances, could authorize or require a sale to be made. Stanley v. Colt, 5 Wall., 119 [72 U. S., XVIII., 502].

A sum of money was bequeathed to erect a blue coat school and establish a blind asylum, with direction that land should not be purchased, and the expression of an expectation that lands would be given for the charities. In answer to the suggestion at the Bar, that the application of the fund might be indefinitely postponed, it was said, on the other side, that the court would fix a time within which the gift must take effect; and Atty. Gen. v. Bowles, Ves., 547, and Atty-Gen. v. Bowles, 3 Atk., 806, were cited in support of the proposition. The Vice-Chancellor said the cases of Downing College and the Atty-Gen. v. Bishop of Chester seemed to be authorities against the objection, but that the point did not arise in the case before him. It was obviated by a codicil to the will, which appears to have been overlooked by the counsel on both sides. Henshaw v. Atkinson, 3 Madd., 306. See, also, Philpot v. St. Geo. Hospital, 6 H. of L., Cas. 359. In this case, as in the one we are considering, the trustee was required to approve the designated charity before paying over the money.

There may be such an interval of time possi-2 ble between the gift and the consummation of the use as will be fatal to the former. The rule of perpetuity applies as well to trust as to legal estates. The objection is as effectual in one case as in the other. If the fatal period may elapse before what is to be done can be done, the consequence is the same as if such must inevitably be the result. Possibility and certainty have the same effect. Such is the law upon the subject. A devise to a corporation to be created by the Legislature is good as an executory devise. A distinction is taken between a devise in præsenti to one incapable, and a devise in futuro to an artificial being, to be created and enabled to take. Ang. & A., Corp., sec. 184; Porter's case, 1 Co., 24; Atty Gen. v. Bowyer, 3 Ves., 714; Inglis v. Sailors' Snug Harbor Tr., 3 Pet., 99; Sanderson v. White, 18 Pick., 328.

At common law, lands may be granted to pious uses before there is a grantee competent to take. In the meantime, the fee will lie in abeyance. It will vest when the grantee exists. Town of Pawlet v. Clark, 9 Cranch, 292. See, also, Beatty v. Kurtz, 2 Pet., 566, and Vincennes University v. Indiana, 14 How., 268.

Charitable uses are favorites with courts of equity. The construction of all instruments where they are concerned is liberal in their behalf. Mills v. Farmer, 19 Ves., 487; Magill v. Brown, Bright., 357; Perry, Tr., sec. 709. Even the stern rule against perpetuities is relaxed for their benefit.

A testator left a sum of money to build and endow a future church. The question was raised, but not decided, whether the court would hold the fund for an indefinite time. The Lord Chancellor said: A gift to a charitable purpose, if lawful, is good, although no object may be in existence at the time. This was expressly decided in Atty-Gen. v. Bishop of Chester, where the gift was for establishing a bishop in His Majesty's dominions in America," etc. Sinnet v. Herbert, L. R., 7 Ch. App., 237.

A testatrix, by her will, directed, among other things, that when and as soon as land should be given for the purpose as thereinafter mentioned, almshouses should be built in three specified places. She further directed that the surplus remaining, after building the almshouses, should be appropriated for making allowances to the inmates. It was held that the fund was well given, for that the gift to char

'But a gift may be made to a charity not in esse at the time, to come into existence at some uncertain time in the future, provided there is no gift of the property in the first inity was not conditional and contingent, but stance, or perpetuity in a prior taker." Perry, Tr., sec. 736.

that there was an absolute immediate gift to charity, the mode of execution only being made Archbishop Secker, by his will, gave £1,000 dependent on future events. Chamberlayne v. to trustees for the purpose of establishing a Brockett, 8 L. R. Ch., 1872-73, p. 206. The Bishop in the British Possessions in America. bearing of this authority upon the case in hand Mansfield, of counsel, insisted that, "There needs no remark. See, also, McIntyre Poor being no Bishop in America, or the least like-School v. Zanesville Can. Co.., 9 Ohio, 203, and lihood of there ever being one," the legacy was void, and must fall into the residue. Lord Chancellor Thurlow said: "The money must remain in court till it shall be seen whether any such appointment shall take place." Atty Gen. v. Bishop of Chester, 1 Bro. Ch., 444.

Miller v. Chittenden, 2 Iowa, 315; S. C., 4 Iowa, 252. These were controversies relating to real estate. The same point as here was involved. Both gifts were sustained. The judgments are learned and able.

The last of this series of cases to which we

shall refer is an adjudication by this court. The testator gave the residue of his estate, embracing a large amount of real property, to the Chancellor of the State of New York, the Mayor and Recorder of the City of New York, and others, designating them only by their official titles, and to their respective successors in office forever, in trust to establish and maintain an asylum for aged, decrepit and worn out sailors, the asylum to be called "The

Sailors' Snug Harbor.' If the trustees so des

ignated could not execute the will, they were to procure from the Legislature an Act of incorporation, giving them the requisite authority. Such an Act was passed, and the institution was established. The heir at law sued for the property. This court held that the official designations were descriptio personarum, and that the trustees took personally. See Bac. Abr., Grant, C; Owen v. Bean, Duke, Char.. 486; Wellbeloved v. Jones, 1 Sim. & St., 40. Nothing was said as to the capacity of the successors to take. A special Act of incorpo ration was deemed necessary. There being no particular estate to support the final disposition, the latter was held to be an executory devise. This court decided that the gift was valid. That, upon the creation of the corporation, the title to the property became vested in it, or that the naked legal title was held by the heir at law in trust for the corporation.

The points of analogy between that case and this are obvious. There, as here, a future corporation was necessary to give the devise effect. There, as here, there was a possibility that such a corporation might never be created. In both cases the corporation was created, and the intention of the testator was carried into full effect. It is a cardinal rule in the law of wills that courts shall do this whenever it can be done. Here we find no impediment in the way. The gift was immediate and absolute, and it is clear, beyond doubt, that the testator meant that no part of the property so given should ever go to his heirs at law, or be applied to any other object than that to which he had devoted it by the devise here in question. There are numerous other authorities to the same effect with those last cited. The latter are abundantly sufficient to dispose of this case. It is, therefore, unnecessary to extend this opinion by pursuing the subject further.

The judgment of the Supreme Court of the District of Columbia is affirmed.

3. A tender of them to such agent had no effect to keep the policy in life.

4. Where the legal effect of the policy itself was, that payment should be made to the company at its domicil, the indorsement on the margin that be signed by the president or actuary," is not an "All receipts for premiums paid at agencies are to agreement on the part of the company to make any particular agency the legal place of payment. [No. 44.]

Argued Nov. 14. 1877. Decided Nov. 26, 1877.

IN States for the Eastern District of Virginia.

ERROR to the Circuit Court of the United

This action was commenced in the Hustings Court of the City of Petersburg, Virginia, by the defendant in error, upon a policy of life insurance. The case was removed to the court below, where judgment was rendered for the plaintiff.

The case is stated by the court.

Messrs. M. H. Carpenter & Jas. Coleman and Fullerton, Knox & Crosby, for plaintiff in error.

Messrs. Samuel B. Paul and Samuel D. Davies, for defendant in error.

Mr. Justice Bradley delivered the opinion of the court:

This was an action on a policy of life insurance issued by a New York Corporation, before the war, upon the life of Sloman Davis, a citi zen and resident of the State of Virginia. The policy contained the usual condition: to be void if the renewal premiums were not promptly paid. They were regularly paid until the beginning of the war. The last payment was made December 28, 1860. The Company, previous to the war, had an agent, A. B. Garland, residing in Petersburg, Virginia, where the assured also resided; and premiums on this policy were paid to him in the usual way, he giving receipts therefor, signed by the president and actuary, as provided on the margin of the policy, which were usually sent to the agent about thirty days in advance of the maturity of the premium. About a year after the war broke out, the agent entered the Confederate service as a major, and remained in that service until the close of the war.

Offer of payment of the premium next due was made to the agent in December, 1861, NOTE.-Effect of war, on agency.

During the existence of war between governments or States, no agent can be appointed by a

citizen of one government or State to act in the territory of the other. U. S. v. Grossmayer, 76 U.

Cited-107 U. S., 167, 171, 173, 191; 3 Wood., 480; 46 S., XIX., 627; Hubbard v. Matthews, 54 N. Y., 43; S. Wis., 96, 103, 116.

C., 13 Am. Rep., 562.

An agent appointed before the war is not within the rule so as to prevent him from collecting money for his principal. Robinson v. International L. A. Soc., 42 Ñ. Y., 54; S. C., 1 Am. Rep., 490; Manhattan L. Ins. Co. v. Warwick, 20 Gratt., 614: S. C., 3 Am. Rep., 218; Ward v. Smith, 74 U. S., XIX., 207. War revokes an agent's authority. Howell v. Gordon, 40 Ga., 302; Conley v. Burson, 1 Heisk., 145. A power of attorney to collect a debt or to receive money continues valid, although the principal resides in an enemy's country. Clark v. Morey, 10 Johns., 73: Griswold v. Waddington, 15 Johns., 64; Buchanan v. Curry, 19 Johns., 137; Conn y.

Penn, Pet. C. C., 496; Dennistoun v. Imbrie, 3

Wash., 396.