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Saltonstall & others v. Sanders & others.

5 Law Journ. (N. S.) (Ch.) 86, and Ellis v. Selby, 1 Myl. & Cr. 293, cannot, in a court not bound by it as a precedent, outweigh all the other authorities.

There is a species of organization, sometimes called a "private charity," which is not a public or general charity in the view of the St. of Eliz. or of a court of chancery; and that is an association for the mutual benefit of the contributors and of no other persons. But such a case wants the essential element of indefiniteness in the immediate objects, if not that of gratuity in the contribution. Anon. 3 Atk. 277. Attorney General v. Haberdashers' Co. 1 Myl. & K. 420. Carne v. Long, 2 De Gex, Fisher & Jones, 75. Attorney General v. Federal Street Meeting-house, 3 Gray, 44-52. Upon no reasonable construction can a bequest to "private charity," still less one to "charity, public or private," be brought within that class.

The decisions of Lord Langdale, to which the plaintiffs have referred, were as follows: In one of them he held a bequest to executors to receive the interest half-yearly "and divide it among poor pious persons, male or female, old or infirm, as they see fit, not omitting large and sick families, if of good character," to be a valid charitable bequest for the poor. Nash v. Morley, 5 Beav. 177. In the other, of a bequest to trustees, to be applied at their discretion "for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility," Lord Langdale said that if the sentence had ended with the word "individuals," it would have been a good charitable purpose; but he felt himself bound by the decisions to hold that the words "general utility" (which do not occur in the will before us) were large enough to include purposes which were not charitable, and that the whole bequest was therefore void. Kendall v. Granger, 5 Beav. 300.

In Ellis v. Selby, 7 Sim. 352; S. C. 1 Myl. & Cr. 286, the only point decided was that a bequest in trust for "charitable or other purposes" as the trustee should think fit, was void. The correct. ness of that decision cannot be doubted; for the testator could hardly have expressed more clearly an intention to allow the fund to be applied to purposes which were not charitable, as

Saltonstall & others v. Sanders & others.

well as to those which were. The decision of Sir John Leach in Vezey v. Jamson, 1 Sim. & Stu. 69, against the validity of a gift in trust for "such charitable or public purposes as the laws of the land would admit of, or to any person or persons," and in such shares and manner as the trustees should think fit or as the laws admitted of, is to the same effect; and manifests no intention to overrule or qualify the cases in which he had upheld trusts for "public or private charities" or "to be distributed in charity to private individuals or public institutions," or for "charitable and benevolent purposes." Johnston v. Swann, and Horde v. Earl of Suffolk, supra. Jemmit v. Verril, infra. The passages quoted from Lord Lyndhurst's opinion in Mitford v. Reynolds, 1 Phillips R. 190, and from Tudor on Charitable Trusts, (2d ed.) 223, go no farther. Within the same class falls the decision of Vice Chancellor Knight Bruce, that a direction that part of the testator's property should "be given in occasional sums to deserving literary men, or to meet expenses connected with my manuscript works," part of the profits of which works he gave to members of his family, was void. Thompson v. Thompson, 1 Colly. R. 388, 392, 399. Others of the cases cited for the plaintiffs related to bequests in trust to be disposed of in the trustees' discretion, without any mention whatever of charities in the will. Such were Fowler v. Garlike, 1 Russ. & Myl. 232; and Stubbs v. Sargon, 2 Keen, 255; S. C. 3 Myl. & Cr. 507.

We are therefore of opinion that, upon principle and authority, a bequest for "objects and purposes of charity, public or private," is a valid charitable gift. The effect of the use of the word "benevolence" in connection with the word "charity" remains to be considered.

The earliest case cited for the plaintiffs upon this point is that in which Sir William Grant, and Lord Eldon on appeal, held that a bequest to the Bishop of Durham in trust to be applied "to such objects of benevolence and liberality as the Bishop of Durham in his own discretion should most approve of," was too indefinite to be executed. Morice v. Bishop of Durham, 9 Ves. 399; S. C. 10 Ves. 521. But "liberality" might include gifts 30

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Saltonstall & others v. Sanders & others.

to persons who were neither poor nor deserving, and in no sense, legal or moral, objects of charity. The word "charity" was not used; and its absence was much relied on, Sir William Grant saying, "The use of the word 'charitable' seems to have been purposely avoided in this will, in order to leave the bishop the most unrestrained discretion." 9 Ves. 404, 405; 10 Ves. 541. Sir William Grant afterwards held that a bequest to trustees "to be by them applied and disposed of for and to such benevolent purposes as they in their integrity and discretion may unanimously agree on," fell within the same class. James v. Allen, 3 Meriv. 17. But in that case again the word " "charity" was not used. Lord Brougham subsequently defined the distinction upon which those cases turned, thus: "If the intention be charity, the court will execute it, however vaguely the donor may have indicated his purpose. But mere purposes of a kind generally beneficial, as of those of benevolence or liberality, without specifying the objects who are to receive, and those objects not being the poor, the court will never attempt to execute." Attorney General v. Haberdashers' Co. 1 Myl. & K. 428

Vice Chancellor Leach used "general benevolence" as equiv alent to charity. He held a bequest "to the widows and orphans of the Parish of Lindfield" to be a charitable gift for the poor widows and orphans of that parish, because it "could not in its nature have proceeded from motives of personal bounty to particular individuals; it must have proceeded from general benevolence towards two classes of persons who were suffering under a common circumstance of destitution or privation, and is necessarily to be confined to such of those two classes who are within the scope of general benevolence." Attorney General v. Comber, 2 Sim. & Stu. 93. And he upheld a bequest to trustees, to be applied and disposed of "for such charitable and benevolent purposes" as one of them should direct and think proper. Jemmit v. Verril, Ambl. 585, note.

By far the strongest case in favor of the plaintiffs is that of Williams v. Kershaw, which is not to be found in any of the regular reports, but is reported by Mr. Beavan in 5 Law Journ. (N. S.) (Ch.) 84, and an abstract of it printed in 5 Clark & Fin. 111

Saltonstall & others v. Sanders & others.

In that case a testator, after legacies for education, the poor, mis. sionary societies and dissenting ministers, gave the residue of his personal estate to trustees to apply the income "to and for such benevolent, charitable and religious purposes as they in their discretion shall think most advantageous and beneficial." Sir Christopher C. Pepys, M. R., considered himself bound by the cases of Morice v. Bishop of Durham, James v. Allen, and Ommanney v. Butcher, to hold that this would authorize the application of the income to benevolent purposes which were nei. ther charitable nor religious, and was therefore void; and two months afterwards, having meanwhile become Lord Chancellor Cottenham, he referred to the decision with approval. Ellis v. Selby, 1 Myl. & Cr. 298.

But that decision is directly opposed to the construction given to like words in earlier and later judgments of the house of lords upon appeal from the courts of Scotland. In Hill v. Burns, 2 Wils. & Shaw, 80, a bequest was held valid, by which a testatrix appointed the residue of her estate" to be applied by my said trustees in aid of the institutions for charitable and benevolent purposes, established or to be established in the city of Glasgow or neighborhood thereof; and that in such way and manner, and in such proportions of the principal or capital, or of the interest or annual proceeds of the sums so to be appropriated, as to my said trustees shall seem proper; declaring, as I hereby expressly provide and declare, that they shall be the judges of the appropriation of the said residue for the purposes aforesaid." That case was cited as authority by Lord Lyudburst in Crichton v. Grierson, 3 Bligh N. R. 434; S. C. 3 Wils. & Shaw, 341. In a later case, in which Williams v Kershaw was cited, the house of lords established a residuary bequest to trustees to be applied "to such benevolent and charitable purposes as they think proper," recommending them, if it should amount to £600, to hold the principal, and pay out the income annually to faithful domestic servants, settled in Glasgow or the neighborhood, who can produce testimonials of good character and morals from their masters and mistresses after ten years' service;" but if less than that amount,

Saltonstall & others v. Sanders & others.

the testator authorized his trustees "to distribute the same to such charitable or benevolent purposes as they may think proper." Miller v. Rowan, 5 Clark & Fin. 99; S. C. 2 Shaw & Macl. 866.

It was indeed said in the two cases last cited that the law of England as to charitable bequests was more strict than the law of Scotland. But the decisions of the English courts since our Revolution are of no binding authority in this court; and, upon such a question as the interpretation of the word "benevolence," as connected with "charity," of no peculiar weight, when opposed to the well settled meaning of those words in our own law.

The word "benevolent," without the addition of any synonymous or explanatory words, has been often, if not uniformly used in the statutes of the Commonwealth, as equivalent to "charitable." The St. of 1790, c. 19, incorporating and establishing the Humane Society of the Commonwealth of Massachusetts, had this preamble: "Whereas it is the duty of government at all times to countenance and support its citizens in their exertions for alleviating the distresses of their fellow-men: And whereas divers persons have petitioned this court for an act of incorporation, whereby they may more effectually carry into execution their benevolent designs." "The end and design of the institution of the said society," as declared in the fifth section of that act, "is for the recovery of persons who meet with such accidents as produce in them the appearance of death, and for promoting the cause of humanity, by pursuing such means from time to time as shall have for their object the preservation of human life, and the alleviation of its miseries." 1 Special Laws, 288, 289. The St. of 1818, c. 77, incorporating the Newburyport Howard Benevolent Society, provided that "the funds of said society shall always be improved and appropriated to the humane purposes of relieving the distresses of the poor, the sick and the aged." The St. of 1833, c. 123, incorporated the United States Naval Benevolent Association, " for the purpose of affording relief to the widows, orphans, parents or maiden sisters of the members of said association, and such other persons as said

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