author: Oaklet, Ch. J.

text:
    Deming and Colt v. Kemp.
    Where, under a parol contract for the future delivery of a feed quantity of goods, at such times, and in such parcels, as might be required, separate deliveries are made and settled for as furnished, each delivery is to be considered as in its nature a separate and distinct contract, and in an action for the price of the parcel last furnished, the buyer cannot reeoup for his damages growing out of the inferior quality of the goods previously delivered.
    Damages cannot be recouped, unless they arise in the particular contract on which the action is founded.
    (Before Oaklet, Ch. J., and Campbell and Paine, J. J.)
    Sept. 18,19;
    Sept. 28, 1850.
    This was an action brought to recover the price of sixty barrels of “ animal carbon,” alleged to have been sold to the defendant in April, 1849, at the price of 2£ cents per pound, amounting to three hundred and eight dollars and forty-one cents, to be paid for in the defendant’s note at six months, which note he had refused to give. The answer admitted the sale and delivery, but averred that the carbon in question was delivered in pursuance of a contract made in December, 1848, by which the plaintiffs agreed to furnish the defendant with carbon of the quality of a sample exhibited at the time of making the contract. That in pursuance of the contract, two deliveries were made in the months of February and April following, previous to the one for which suit was brought, which subsequently proved to be of a greatly inferior quality t6 the sample, and that by reason thereof the defendant had sustained damages to the amount of eight hundred dollars, which he claimed to set off against the demand of the plaintiffs. The answer also set up that the plaintiffs were insolvent. The reply denied that the sale and delivery in question were in pursuance of any previous contract, but alleged that this was a distinct and separate transaction. It also denied that the article was sold by sample, or that it was inferior to what it had been represented.
    The cause was tried on the 25th of April, 1850, before Sand-FORD, J. After proof of the sale and delivery of the carbon, and the price agreed to be paid, and that the defendant had refused to comply with his agreement to give the note upon its delivery, the plaintiffs rested.
    The defendant’s counsel claimed, upon the pleadings and evi- • dence, to be entitled to a verdict for the balance of eight hundred dollars, after deducting the amount the plaintiffs were entitled to recover. The judge ruled that the defendant was not entitled to set off or have allowed his demands against the plaintiffs, on the pleadings and proceedings as they then appeared. Some testimony was then adduced on the part of the defendant which went to show that in December, 1848, a conversation was had between the plaintiffs and the defendant, in which the former agreed to supply the latter with carbon, which they guarantied should be of the best quality, and should correspond with the samples delivered. It was to be supplied during the fall and following winter, at various times, as the defendant might require, not exceeding forty tons, at 2f cents per pound, in parcels of twenty thousand pounds. It appeared in the cross-examination of the defendant’s witness, that the carbon had been delivered at separate times, and that the defendant had paid or settled for the same at the times of the several deliveries.
    The testimony here closed, and the court directed the jury to find a verdict for the plaintiffs, on the ground that the contract for the forty tons being by parol and within the statute of frauds, each delivery was an independent transaction, and the defendant could not recover damages in respect of any delivery prior to the one for which the suit was brought,

    The jury found a verdict for the plaintiffs, for the amount claimed.

      L. Hoyt, for the defendant.
    I. Upon the pleadings and the evidence as it stood when the respondents rested their case, the appellant was entitled to a verdict and judgment for eight hundred dollars, less the amount that the evidence showed the respondents entitled to recover— because, first, the facts set forth in the answer of the- appellant, and not denied by the replication of respondents, showed that the respondents were indebted, to the appellant in the sum of eight hundred dollars, arising out of a contract entered into between them. Second, if the proof on the part of respondents showed that the indebtedness for which this suit was brought arose out of a separate and distinct contract, then, upon equitable principles, the appellant was entitled to a verdict for that sum, less the amount of the respondents claim. Third, this court now possesses all the jurisdiction that the court of chancery of this state formerly possessed and exercised; and that court, upon these facts, to wit, the indebtedness of respondents, arising on contract, and their insolvency, would have afforded the appellant the remedy and relief he claims in this suit. (Reed v. The Bank of Newburgh, 1 Paige, 215 ; Lindsay v. Jackson, 2 Paige, 581.) Fourth, where the mutual indebtedness arises out of the same contract, the court of equity takes jurisdiction and gives relief, without reference to the solvency or insolvency of the plaintiff; but where it arises out of separate contracts, insolvency of the plaintiff is material to jurisdiction and relief. (See cases above cited, and especially case in 1 Paige, 215.)
    II. The contract out of which the indebtedness of respondents to appellant arose, as established by the pleadings, was not within the statute of frauds, inasmuch as there was a delivery of the goods sold under it.
    III. The contract proved by the witness on the part of the appellants was not within the statute of frauds. First, because there was a delivery of the goods under it, and second, because the goods were to be delivered as fast as manufactured — which made it in part, a contract for work and labor. The distinction, with reference to the statute of frauds, between such a contract and one for the selling of goods in existence at the time of the contract, is well settled both in England and in this state. (Crookshank v. Burrill, 18 Johns. R. 58; Sewall v. Fitch, 8 Cowen, 215; Outwater v. Dodge, 6 Wend. 397.)

      8. P. Nash, for the plaintiffs.
    The plaintiffs sued for the price of 60 bbls. of “ animal carbon,” sold on the 26th of April, 1849, to the defendant, for his note at sixty days. The plaintiffs proved their ease, and no objection was made to their claim. The defendant, however, sought to set-off against it a sum of unliquidated damages, claimed on account of an alleged breach of warranty as to two parcels of the same article previously, to wit, in February and April, sold by the plaintiffs to the defendant. This set-off was claimed, not under the statute, but on the equitable ground of the plaintiffs’ supposed insolvency.
    I. The defendant was not entitled to his set-off on the grounds taken on plaintiffs’ resting. The pleadings do not admit the alleged sale by 'sample and breach of warranty.- The reply was intended to put these matters in issue, not only as it respects the parcel sued for, but also as to the previous parcels. But the allegation in the reply, that the several sales were distinct transactions, and not a part of an entire contract, was an answer to the defendant’s motion. What is called an equitable set-off of unliquidated damages, is allowed only when the cross-claims result from breaches of the same contract, and of portions of the same contract mutual in their nature and dependent on the samé consideration.
    II. The defendant was not entitled to his equitable set-off on any evidence subsequently given or offered. The verbal bargain by which the several transactions were sought to be united was void by the statute of frauds as an entire contract. The transactions were therefore in law distinct. The delivery of the prior parcels was not the part performance contemplated by the statute. They were not deliveries of a portion of a larger bulk, but entire deliveries of distinct parcels. But though the verbal bargain were valid, the contract was nevertheless severable. The several parcels were delivered according to sundry and distinct samples, each sale having a distinct consideration, and raising a separate warranty, and being closed and settled on its own basis. The transactions were therefore in fact distinct. The theory of an equitable set-off of unliquidated damages, or recoupment, requires that the cross-claims flow from the same consideration, as well as from the same contract. See Batterman v. Pierce, 3 Hill; 171, and cases there cited; Rawson v. Samuel, 1 Craig and Ph. 161, 172; Schermerhorn v. Anderson, 2 Barb. Sup. Ct. Rep. 584. The prior transaction being closed and settled, there was no equity in the defendant’s claim.
    III. But a defendant cannot, under the code, obtain by answer the benefit of a cross-claim for unliquidated damages, either as a set-off so as to have a verdict for a balance, or by way of recoupment of the plaintiff’s demand. Set-off, as a defence to a legal claim, whether at law or in equity, rests entirely-on the statute of set-off, (2 R. S. 454; Ibid. 174, § 43,) and only a set-off within the statute can be pleaded in bar, or set up by answer in equity. (Holden v. Gilbert, 7 Paige, 208; Chapman v. Robertson, 6 Ibid. 627; Knapp v. Burnham, 11 Ibid. 330.) Cross-claims were never allowed by way of plea or answer, at law or in equity. In equity they were, made available as a set-off only by a cross-bill. (Knapp v. Burnham, 11 Paige, 330; 3 Daniell’s Ch. Prac. 1742, 1744; Cartwright v. Clarke, 4 Metc. 104.) At law, they could only be the subject of a cross-action, or. available to a limited extent, by way of reducing damages, but never as a bar. (Batterman v. Pierce, 3 Hill, 171; Nichols v. Dusenbury, 2 Comst. 283.) An answer under the code can only set up “matters constituting a defence,” not cross-claims. (The code “reported complete” of 1850, supplies this, by providing expressly for the setting up of counter claims in the answer. §§ 645, 646.) Special notices of matters in diminution of plaintiff’s claim, but not amounting to a defence, are not provided for under the code. They were creatures of the old system, and fell with the general issue. But the defendant’s claim is not set up as a recoupment. It must be sustained, if at all, as ground for a verdict in his favor.

       See Seymour v. Davis, ante yol. ii p. 289.

   By the Court.

Oaklet, Ch. J.

This is an action brought to recover the value of sixty barrels of bone black, alleged to have .been sold by them to the defendant at a fixéd price. The answer contains a denial of the right of the plaintiffs to recover, which denial is equivalent to the old general issue. The answer further sets up that the article, if ever delivered, was delivered in pursuance of a contract made some time previously, and that, under this contract, bone black was to be delivered at different times, in different quantities, the present action being for the third delivery; that the article delivered in the first instance was of an inferior quality, and the defendant seeks to set-off in this action the damages arising from that cause. The answer does not allege that there was any defect in the article for which this action is brought. Upon the trial, the judge held the contract void under the statute of frauds, and that therefore each delivery constituted a separate contract,.and that any defect in the quality of the article delivered at the previous times, could not.be the ground of a set-off. Unliquidated damages cannot be set-off.

The only inquiry worthy of consideration is, whether the damages arising from the defect can be brought in by way of recoupment. We think they cannot. Without inquiring whether the contract was void by the statute of frauds, and assuming that it was valid, still we think that these separate deliveries are to be considered in their nature as separate contracts. The deliveries were separate and distinct acts, and the payments for the quantities delivered were made at each delivery, and the contracts arising from such delivery wefie settled . and closed.

Damages cannot be recouped, unless they arise on the particular contract on which the action is founded.

The judgment at the special term must be affirmed.


source: Caselaw Access Project

author: Oakley, Ch. J.

license: Public Domain

text:
    Gardner v. The Board of Health of the City of New York.
    The Board of Health of the city of New York is not a body corporate, and is not cap'able of being sued as such.
    If an action can be maintained against it in any manner, it -will only lie against .the individual members of the Board, describing them by their name of office.
    (Before Oakley, Oh. J., and Campbell and Paine, J. J.)
    Sept. 16, 11;
    Sept. 28, 1850.
    This action was brought to recover compensation for extra services alleged to have been rendered by plaintiff as a ward physician in the city of New York, during the prevalence of the cholera in the summer of 1849. The answer denied that the defendants were a corporate body, or capable of being sued as a board. The cause was referred by consent of parties to a sole referee. Upon the trial, in March, 1850, it appeared in evidence that on the 2d day of June, 1849, the Board of Health of the city of New York adopted a resolution, empowering the alderman and assistant alderman of each ward, to. employ two physicians to attend upon all persons attacked with the prevailing epidemic. Under this resolution, the plaintiff was appointed one of the physicians for the 8th ward. By a previous resolution of the Board, adopted May 16th, 1849, a committee of seven from the members of the Board was appointed “ to advise with the mayor and medical commissioner, and to call the Board together whenever it should be deemed necessary.” This committee was styled the “ Sanitary Committee.” They were also empowered to establish the rate of compensation of the ward physicians, which was subsequently fixed at three dollars per diem. On the 9th of June, this committee adopted an additional resolution, that the ward physicians should visit all persons whom they might be called upon to attend in their respective wards, without respect to the nature of the disease, and that such attendance, and all necessary-medicine's, should be furnished to such as were unable to pay for them. Under this resolution of the sanitary committee,-the plaintiff was called ,upon to visit, and did visit, one hundred and fifty-four patients, •between the 9th of June and the 3d of September following, and in each case there were three visits. It was admitted that one dollar was a reasonable compensation for each visit. The action was instituted to recover compensation for the services rendered in pursuance of this resolution of .the sanitary committee, it being admitted that the plaintiff had been paid in full his three dollars per diem under the original resolution of the Board of Health.
    Considerable testimony was introduced before the referee, in respect to the extent of the agency of the sanitary committee. .It was also attempted to be shown on the part of the defendants, that the committee did not regard the employment of the physicians ’ under the resolution of June 9th, as entitling them to additional compensation, and that it was not so regarded by the physicians themselves, who had subsequently united in a petition to the common council, for an appropriation for the additional services alleged to have been rendered. The motion to set aside the report of the referee was decided upon another point. The'nature and organization of the -Board are stated in the opinion of the court.
    The referee reported in favor of the plaintiff, for the sum of four hundred and sixty-two dollars, and the defendants appealed from the judgment thereupon entered.

      A. J. Willard, for the defendants.

      J. M. Martin, for the plaintiff.
   By the Court.

Oakley, Ch. J.

During the prevalence of the cholera in thé summer of 1849, the Board of Health appointed a committee denominated the Sanitary Committee. The Board being composed of numerous members, its duties devolved mainly upon this committee. The committee were authorized by the Board to employ physicians to attend in each ward at the station-houses, at a per diem allowance. The sanitary committee, in the course of their proceedings, passed certain resolutions, one of which, as the plaintiff contends, was for the employment of physicians to attend upon all the poor sick of their respective wards, without reference to the character of the-disease. The plaintiff was one of the physicians thus employed. Upon a settlement of the account of tbe plaintiff with the defendants, a dispute arose as to the charges for attendance in cases other than those of cholera. The items for attendance on cholera patients were allowed, hut the others were not. There is no dispute in this case, as to the services rendered, nor as to the correctness of the charges.

This action is brought against the Board of Health, eo nomine, treating them as a corporate body. The first question which arises is, Is this Board such a corporation? A very extended argument was gone into on both sides, as to the character, powers, and duties of the Board. It is an old institution, but it received a separate and distinct organization by the revised statutes of 1880. Under this, the common council had the power of appointing the members of the Board, and by an ordinance for that purpose, it was declared that it should be composed of the aldermen and assistant aldermen of the city. We cannot find that this Board is anywhere created a body corporate by express terms of law, nor can we perceive that it has any of the features of a corporate body. ' It has no succession, no seal, and no funds. It is organized by the city corporation under the laws of the state, and may be changed as to its members at the pleasure of the common council.

The counsel for the plaintiff has pressed upon our notice a class of cases, under which it is contended this Board may be considered as a quasi corporation, and it has been likened to the cases in which suits have been brought by and against overseers of the poor. But in all such cases, the actions are instituted against the individuals themselves, describing them by their name of office, and not against them as a corporate body. We are also referred to a section of the statute, the purport of which is, that no action brought by the Board of Health, and by overseers of the poor, shall abate by reason of the death of any one of its members, and it is said, that if the Board can sue, it is to be inferred- that the legislature clearly contemplated they could also be sued. We think that this clause of the statute is misunderstood. If it were intended to authorize the Board to sue as a corporation, in its corporate name, the provision that a suit shall not abate by the death of any of its members is entirely senseless and unmeaning. That can only apply to actions brought in the name of the individuals composing the Board, and in this respect, the Board is like the overseers of the poor, who must always sue in their individual names.

Our conclusion is, therefore, that no action can be brought against the Board as a corporate body; and this point being conclusive against the plaintiff’s right of recovery, it is not necessary to consider several other questions involved in the case.

The judgment at the special term must be reversed, and the complaint dismissed.


author: Duer, J.,

text:
    John E. Andrew and others v. The New York Bible and Common Prayer Book Society, The General Theological Seminary of the Protestant Episcopal Church in the United States, and others.
    A gift of a sum of money by will, at the death of the survivor of several annuitants, is a contingent legacy
    Where such a gift was given to a corporation of a religious nature, whose charter expired before the death of the surviving annuitant, it was held, that the legacy was lapsed.
    A corporation for religious purposes, before its charter expired, assigned all its property to trustees in trust, to transfer the same to any new society which might be formed for the same purposes. A new society was, some years after the other expired, incorporated for the same purposes, and the trustees transferred to it the property of the former corporation. A legacy had been given to the former while in being, contingent on an event which occurred after the second society was chartered. Held, that the legacy lapsed, and that the new society had no claim to it.
    A legacy, clothed with a trust, is not assignable by the trustee, whether it be vested or contingent.
    The court of chancery in this state had no power to execute trusts for pious or charitable uses, where there was no trustee, nor any designated cestuique trust.
    That power in England was exercised, not by the court of chancery, but by the chancellor as the delegated minister of the crown, in virtue of the royal prerogative. *
    The cy pres doctrine there applied to charitable us,es, has never been held in this state.
    Charitable uses, contravening the general rules of law in relation to trusts and perpetuities, were not recognized or sustained in this state before the revised statutes, except in the single instance where the property was given to a corporation, which by its charter could accept and execute the trust.
    The only law ever in force in this province or state, sanctioning such charitable uses in general, was the statute of Elizabeth on that subject, which was repealed in IMS.

    If there ever were jurisdiction here to execute a pious use, in the court of chancery, it was abrogated by our first constitution, which extended its protection to every form and sect of religion.
    Christianity is a part and parcel of the common law in this state, in the sense only that the law will not permit the essential truths of revealed religion to be ridiculed and reviled; in other words, that blasphemy is an indictable offence at common law.
    Where a legacy for a pious use was given to a corporation having for its general object, as shown by its name, the same purposes as the legacy proposed, but there was no corresponding authority given, nor any specific use or object for which the corporation was authorized to take and hold property, held, that it had no power to take it in trust for the object defined in the legacy, and that the legacy was void.
    Where a legacy is given to a corporation, in trust, for an authorized pious use, and also for a use foreign and extrinsic to those which the corporation can execute by law, the trust, being entire and indivisible, is totally void.
    (Before Duer, Mason, and Campbeix, J. J.)
    June 8, 13 ;
    Sept. 28, 1850.
    The complainants, on behalf of themselves and the other children of the nephews and nieces of Henry Pope, and of Lucinda Benton, who should come in and contribute, &c., who claim as legatees under the will and codicils of Henry Pope, filed the bill in this cause in the court of chancery, on the 4th of September, 1845, against sundry of such nephews and nieces, together with Henry Andrew, The General Theological Seminary of the Protestant Episcopal Church in the United States, and The New. York Bible and Common Prayer Book Society, for a final account and distribution of the estate of Henry Pope, setting aside and avoiding two legacies claimed by the two corporations last named.
    Henry Pope, the testator, died without issue, in April, 1827, ancl the last -surviving annuitant provided for in his will, Emanuel Pope, died December 28th, 1844. Neither of the executors named in the will accepted its trusts, and administration with the will annexed was granted, August 7th, 1827, to the defendant-, Henry Andrew. The testator was a resident of Brooklyn, Kings county. By his will, dated December 14th, 1821, after various devises and bequests, he gave annuities for life, to be paid by his executors and trustees, to his wife, to his brother Emanuel, to .his brother William, and to his sister Philippa Yibert. After which his will proceeded as follows:

      “Item. I give and bequeath to the trustees of the Protestant Episcopal Theological Education Society in the state of New York, and to their successors, in trust, for ever, all my coins and medals which are in England or America.

      “Item. After the death of the last annuitant, hereinbefore named and mentioned, I give and bequeath to the aforesaid trustees of the Protestant Episcopal Theological Education Society in the state of New York, and to their successors in trust, for ever, the sum of two thousand dollars, for the purpose of founding a scholarship, to be designated and known by the name of the ‘Kindred Scholarship,’ permanent and conformable to the by-laws and regulations of the said society, the interest of which is for the sole purpose of educating and fitting for the ministry of the gospel, agreeable to the principles of worship and canons of the Protestant Episcopal Church in the United States of America, one or more of my kindred for ever; and I furthermore order and appoint, that the first youth so to be educated shall be Portentos'Pope Benton, my godson above named, unless the said Portentas should prove to be of vicious and immoral habits, of which my trustees hereinafter named, in this and all future cases, are to be the sole judges;. and after him, my trustees hereinafter named are always to select such of my kindred (under which term are comprehended the descendants of the above-mentioned Lucinda Benton) as may appear to have the most promising talents and genius for learning and literary acquirements, and suitable, pious, and moral dispositions and habits. But it is always to be expected, if they have it in their power so to do, that the parents of such youth of my kindred so to be educated under the directions of the trustees of the above-mentioned Protestant Episcopal Theological Education Society, will qualify him in the common rudiments of learning, and otherwise assist in his education, unless the trustees of the said society should think proper to take the whole care of fitting him for the ministry, as I have above directed; and in case of surplus in the interest of the aforesaid sum, after defraying the expenses aforesaid, the said surplus shall be added to the principal, and the trustees of the said society shall have the power to appropriate the interest to the education, as above directed, of one or more of my kindred. But if it should so happen, in the process of time, that none of my kindred are to be found, after due and diligent inquiry made, who are intended to have the benefit of this bequest, then and in that case my will is, (until such kindred is found,) that the annual interest of the said sum of two thousand dollars, above granted and bequeathed, shall be given to a person to be appointed by the Bishop of the diocese of New York, who shall deliver a lecture in Trinity church, in the city of New York, upon the evidences and truths of the Christian religion,- on the day of the opening of the convention of the Episcopal Church in the state of New York, and cause the same to be published.”
    After a residuary gift to the children of all his nephews and nieces, both in England and America, and also to the children of Lucinda Benton before named, the will proceeded: — “ And I do order and direct my said trustees hereinafter named, to convert all my estates and effects then remaining into cash, if they, my said trustees, should consider this best, for the purpose of an equal and just distribution, according to the true intent and meaning thereof; and that they shall make such distribution, after the death of the last surviving annuitant aforesaid, among the aforesaid children in this clause of my will mentioned and intended, or to guardians duly appointed of such of them who may then be under age as aforesaid, as soon as they, my said trustees, may find it advantageous and convenient, without injury to my estates, and without necessary sacrifice in the disposition thereof.

      “Item. And to enable my trustees hereinafter named to fulfil my last will and testament, and to carry the same into effect, according to the true intent and meaning thereof, I give, devise, and bequeath to them, my said trustees, all. my estate, both real and personal, in law and equity not heretofore specifi-. cally given, devised, and bequeathed, and the reversion and reversions, remainder and remainders thereof, to have and to hold the same in trust, with full power and lawful authority to sell," transfer, dispose of the same, and every part and parcel thereof, to the best advantage, according to their judgment, as fully and as absolutely as I, myself, can or might do, to all intents and purposes, within the true import and meaning of this my last will and testament. And I furthermore order and direct, that my said trustees hereinafter named, shall regularly; from time to time, and at all times, after paying all my just debts and the legacies and annuities before mentioned, put the surplus income and proceeds of my estates out at interest, upon good and sufficient security, in order to increase the capital fund, until the death of the last surviving annuitant, before named and mentioned.”
    And the will further contained as follows: — “ And lastly, I order, constitute, and appoint the right reverend John Henry Hobart, Doctor in Divinity, Bishop of the Protestant Episcopal Church in the diocese of New York, and his successors in the said diocese, for ever; the reverend Thomas Lyell, rector of Christ church, in the city of New York, or his successor as rector of that cburcb, for ever; tbe Rev. Henry U. Onderdonk,. rector of St. Ann’s church, in. tbe town of Brooklyn, in tbe county of Kings, or. bis successor as rector of that cburcb, for ever; and my'esteemed friend, Jeremiah Lott, Esq., of tbe town of Flatbush; in-the-said county of Kings, bis’executors and administrators, to be my executors and trustees to see this my last will and testament duly executed.”
    On the 3d of February, 1822, tbe testator, Henry Pope; made a codicil to bis will, in wbicb were contained tbe provisions and clauses following, namely: “ I do hereby, in addition to tbe legacies contained in my said will, give and bequeath to tbe Auxiliary Bible- and Common Prayer Book Society, at tbe death of tbe last annuitant named in, my said will and testament, tbe sum of fifteen hundred dollars; wbicb said sum is to be invested in public securities bearing interest, or placed out upon good real security by tbe said society,-and tbe interest thereof to be added to tbe principal for twenty-one years from said death, or until tbe said sum, by compound interest, shall amount to five thous- and dollars,-whichever shall first happen, and then and thereafter tbe interest upon the said sum of five thousand dollars shall be laid out yearly, and every year, in tbe purchase-of Common Prayer Books, to be - given to such -person or persons as tbe said society may deem fit and proper, but in particular to any new cburcb- in tbe country, that may in -their judgment stand in need of them.
    “And whereas, in and by my said-last will and testament, I have made a certain bequest of my coins and medals wbicb are in England and America as is therein expressed and contained; and also have given and bequeathed tbe sum of - two thousand dollars, after tbe death of'the last surviving annuitant in my said will named, to certain persons therein designated, for certain purposes, and upon certain trusts expressed therein. And whereas it is -my intention to alter and modify tbe bequests and gifts aforesaid, in tbe manner - hereinafter mentioned; now, therefore, I do hereby give and bequeath all tbe said coins and medals upon my decease,-and tbe said-sum of two thousand dollars, at and immediately after tbe death of tbe last surviving annuitant in my said will named, to the trustees and executors in my said will named, and the survivor and survivors of them, and his executors and administrators, to the intent and upon trust, that if upon the death of the said surviving annuitant, there shall be in existence any theological school, seminary, or college, within the state of New York, formed or established by or under the authority, ‘or with the approbation or consent of the general convention of the Protestant Episcopal Church of the United States of America, for the education 'or instruction of young men intended for the ministry in the said Church, in theological learning, that then my said trustees, or the survivor or survivors of them, or the executors or administrators of such survivor, shall deliver the said coins and medals, and pay the said sum of money to the guardians, managers, trustees, rulers, or governors of such school, seminary, or college, or such person or persons as they, or a majority of them, shall direct; to the intent that the said coins and medals may be preserved for the use of the said school, seminary, or college. And that the said sum of money may be invested in public stock bearing interest, or lent at interest upon good real security. And the interest thereof, or so much thereof as may be necessary to be applied from time to time, for and towards the support of scholarship in said institution, to be named as is appointed in and by my said will, and filled by one of my family or kindred, as in the said will described, if any such shall offer himself, or be found of proper age and qualifications for, and willing to accept the same; and in case of .any surplus beyond what shall be a reasonable allowance for such support and the instruction of such scholar, the same shall be disposed of and accumulate as in my said will directed; and whenever it shall or may happen that none of my kindred shall offer, or be found after diligent inquiry, qualified and willing to fill such scholarship, then, and in such case, the yearly interest of the said fund, or so much thereof as shall be competent for that purpose, shall be given to such person in priests’ orders in said Church, as the bishop thereof, for the diocese of New York, for the time being, shall or may appoint, who shall preach in Trinity church, at such time or times during the sitting of the convention of the Protestant Episcopal Church, in the said state, as the said bishop shall or may think proper and appoint, one or more lectures of his own composition, upon the subject in my said will mentioned, and afterwards print and publish the same. And such last-mentioned disposition of the said interest shall continue yearly, until one of my kindred shall be found willing and qualified to take the said scholarship, and shall then cease; but the dike disposition of the said interest shall be made for ever thereafter, in every the like case of the vacancy, of the scholarship. But if no such school, seminary, or college, shall be in existence at the time of the death of the said surviving annuitant, then my- said trustees, and the survivors and survivor of them, and his executors and administrators, shall keep the said coins and medals, and invest the said sum of money or let it out at interest as aforesaid, so as to accumulate until such school, seminary, or college, shall be formed or established as aforesaid; and thereupon they shall act in all respects as is above directed in case such a school, or seminary, or college, had been in existence at the time of the death of the last surviving annuitant, provided always, that if no such institution shall take place within twenty-one years after the death of such surviving annuitant, the said coins; medals, and accumulated fund shall then revert and fall into the residue of my estate.”
    The personal estate and the accumulations therefrom and from the rents of the real estate, in the hands of the administrator when the bill was filed, were about $68,000; and there was a large residuary real estate.
    The New York Bible and Common Prayer Book Society, by their answer, stated that “ The Auxiliary New York Bible and Common Prayer Book Society ” were incorporated under that name by the act of the legislature of the state of New York, passed March 28th, 1817, for the purpose of the gratuitous distribution of the Holy Scriptures and the Book of Common Prayer, and that by the act of incorporation, the society, and their successors, were declared in law capable of purchasing, holding, and conveying real and personal estate for the nse of the society; and were empowered to be and endure for twenty years; at the end of which time its corporate capacity terminated: That these defendants were incorporated under the corporate name of “The New York Bible and Common Prayer Book Society,” for the distribution of the Bible and Book of Common Prayer, by an act of the legislature of the state of New York, passed April 21st, 1841, and that by the act of incorporation, they were empowered for the distribution of the Bible and the Book of Common Prayer, or for any purpose connected with that object, to hold real and personal estate, and to sell, lease, and otherwise dispose of the same, provided the clear aggregate annual value of such estate should not exceed ten thousand dollars: That they claim, as stated in the bill, to be entitled as successors, and also as assigns of “ The Auxiliary New York Bible and Common Prayer Book Society,” to all the property and effects of that society; and they deny that by the expiration of the term of the incorporation of the latter, the legacy is defeated: That, at a special meeting of The Auxiliary New York Bible and Common Prayer Book Society, duly convened and held on the 8th of March, 1837, a resolution was adopted, in effect — that inasmuch as the act of incorporation of said society would expire on the twenty-eighth day of the then present month, (March, 1837,) it was resolved, for the purpose of closing the concerns of the society, and with a view to its dissolution — that all its property, funds, and effects be assigned to Frederick De Peyster, Grarret Gr. Yan Wagenen, and Thomas Browning, Esquires, of the city of New York, in trust, to transfer, pay over, and deliver the same to such society, association, or committee, as they should select, as should be organized or appointed in the diocese of New York, for the promotion of the laudable purposes of that society, to wit, the gratuitous distribution óf the Holy Scriptures and Book of Common Prayer, as organized for those and other purposes; the same to be appropriated by such society, association, or committee, to the laudable purposes of this society as aforesaid: That at a special meeting of the last-named society, held on the 22d of March, 1837, the assignment of its funds and property so directed, was read to the board, and the same being first duly executed, was then delivered..
    The answer then set forth the assignment pursuant to the resolution, to the persons above named and John W. Mitchell: That the said trustees, named in the assignment last stated, did, by a certain deed or assignment, bearing date the first day of July, 1837, transfer, pay over, and deliver to these defendants, The New York Bible and Common Prayer Book Society, all the property and effects of The Auxiliary New York Bible and Common Prayer-Book Society, upon the trusts and. conditions specified in the indenture of assignment to them: That The New York Bible and Common Prayer Book Spciety, was established in the city and within the diocese of. New York, in the year 1809, for the gratuitous distribution of the Holy Scriptures and the Book of Common Prayer, and continued from thence until its incorporation by the legislature, on the ,21st of April, 1811, and since then to the. present time, and now is in existence, and carrying on its operations for the same purposes —the gratuitous distribution of the Holy Scriptures and the Book of Common Prayer: That The Auxiliary New .York Bible and Common Prayer Book Society was formed on or about the 26th day of January, 1816, and that by its constitution it was declared, that it should be known and distinguished by that name, and its object should be to aid The New York Bible and Common Prayer Book Society, established -in the city of New York, in the year 1809, in the distribution of the Bible and Book of Common Prayer; and further, that the board of managers of The Auxiliary New York Bible and Common Prayer Book Society should cause a statement of its receipts and expenditures of money, and of its proceedings generally, to be transmitted to The New York Bible and Common Prayer Book. Society, annually; and it always acted as such auxiliary to the last-named society, and for the objects’and purposes of the distribution of the Bible and the Book of Common Prayer; and that, at the time 6f the making of the testator’s will, it was in operation as such auxiliary to. these defendants, The New York Bible and Common Prayer Book Society, for those purposes, and continued to act as such auxiliary until the expiration of its charter of incorporation, when, by the transfer and assignment of its property and effects to these defendants, the two societies became virtually united, as the defendants respectfully submitted. The defendants insisted that they were entitled, as successors and as assigns of The Auxiliary New York Bible and Common Prayer Book Society, to hold, receive, and take the legacy, for the like purposes as such last-named society took or held, or might have taken and held, the same, if its charter of incorporation were now in full force and effect.
    ■ The General Theological Seminary of the Protestant Episcopal Church in the United States answered, setting forth that there was, as stated in the bill, on the 28th day of December, 1844, a theological school, seminary, or college, formed within the state of New York, under the authority, and with the approbation and consent, of the General Convention of the Protestant Episcopal Church of the United States, for the education of young men intended for the ministry of that Church in theological learning; and that these defendants constitute the cor.poration referred to in the bill, as incorporated by an act of the legislature of the state of New York, passed April 5th, 1822, under the corporate name of The General Theological Seminary of the Protestant Episcopal Church in the United States, and as such, areVithin the description of the will, and the object of the legacy thereto.
    “ And these defendants have been informed and believe, and therefore aver, that the codicil of the 8d of February, 1822, set forth in such bill, whereby the trustees of his will were directed to pay the legacy or sum of money therein given, to the directors or trustees of any theological school or seminary established under the authority of the General Convention of the Protestant Episcopal Church, which might be in existence at the death of the last annuitant, was executed by the testator, for the purpose of avoiding any doubt or question on his said will, in anticipation of the act of incorporation of these defendants, passed the 5th of April, in the same year, 1822, and with a knowledge of the intention to apply, or of the actual application for such an act of incorporation.”
    . The cause came on to be heard on the bill and the answers of these two corporations, (the other defendants having made no defence,) before Assistant Yice-Chancellor Eobertson, who, in June, 1847, decreed, among other things, that the legacy of two thousand dollars, in the will bequeathed to the trustees of the Protestant Episcopal Theological Education Society in the state of New York, and also mentioned in the first codicil, dated the third day of February, 1822, and claimed by the General Theological Seminary, was and is void, as not being given on the trusts for which the seminary is entitled to take and hold the same, and as not being given on such lawful charitable uses as are carried into effect in this state by law. And that the amount and the increase of said legacy is, and ought to fall into the residuary personal estate of the testator, and to be distributed as was thereinafter ordered; but as to the coins and medals in the will and codicil mentioned, the bequest thereof is valid, and the same ought to go to the defendants, The General Theological Seminary.
    And as to the legacy in the codicil, bequeathed to The Auxiliary New York Bible and Common Prayer Book Society, of fifteen hundred dollars, he decreed that the same was void, as involving an unlawful accumulation and tending to a perpetuity; and that the amount of that legacy and its increase is, and ought also to form a part of the , residuary personal estate of the testator, and to be distributed as part thereof.
    Both defendants'appealed from so much of the decree as was adverse to them. The cause, having been transferred from the supreme court, was argued here on the appeals.

      Murray Hoffman,

    in support of the appeal of The New York Bible and Common Prayer Book Society, made and argued the following points:
    I. The assistant vice-chancellor decides against the validity of tbe bequest, on tbe. ground that a term of twenty-one years after tbe expiration of a life or lives in being, is never allowed as a term in gross, but only where dependent upon minority. The case is to be governed by the law existing before, the revised statutes; the will and death being prior thereto.
    The assistant vice-chancellor has overlooked the case of Bengough v. Edridge, (1 Simons, 173; affirmed in the House of. Lords, 7 Bligh, N. S., under the title of Cadell v. Palmer, also 10 Bingham, 149.) By the unanimous opinion of the judges and Lord Chancellor, it was settled, “ that the limit is a life, or lives in being, and twenty-one years. afterwards, without reference to the infancy of any person whatever.” (Lewin on Perpetuities, Law Library, vol. 36:)
    II. —1. The legacy vested in the Auxiliary New. York Bible and Common Prayer Book Society, before, the expiration of its charter. (Thing v. Ring, 1 Watts. & S. 205; Packman v. Gregory, 4 Hare, 396; Bech v. Burn, 7 Beavan, 492; Hammond v. Maul, 1 Collyer, Ch. Rep. 281; Goulbourn v. Brooks, 2 Y. & Col. 592.)
    2. If the legacy was vested, then it was transmissible and assignable. (Lewis v. Smith, 1 Iredell’s N. C. Rep. 145.)
    3. And then it is the naked case of a failure of a trustee, which this court will supply. (Gibson v. McCall, 1 Richardson’s Rep. 174; Attorney General v. Jolly, 1. Ibid. Eq. Rep. 99.) So the defendants may take either by transfer, or by appointment of the court as a proper trustee in the room of the former society.
    III. A guarded modification of the English doctrine of cypres, is not condemned or forbidden by pur authorities;. is equitable in itself; is requisite to carry out a testator’s intention; and is, important to carry out and perfect ¿the growing doctrine as to charities in our country.
    The English cases are of two classes: .1. Where the bounty has been diverted from the intended purposes of the giver, to those different from or repugnant to his principles.
    2. When the bounty has been applied to the same purposes ais the testator intended, identically, or substantially; but a different, body or agent to administer it has been appointed. Of the first class are such cases as Baxter’s case, 1 Vernon, 248, noticed in Modgridge v. Thackwell, (7 Vesey, 73.) Under the second head may be classed the following cases: Attorney General v. Bouyer, (3 Vesey, 714;) Attorney General v. Wamsay, (15 Vesey, 231;) Modgridge v. Thackwell, (7 Vesey, 69, and 13 Vesey, 116.) See also Haybets v. Trego, (5 Russell, 113;) Story’s Eq. § 1176.
    3. The doctrine thus modified is not opposed by any authority in the United States, and is supported by some. The argument of President Tucker, in Gallego v. Attorney General, 3 Leigh, 473, does not affect it. See argument of Mr. Sergeant in Vidal v. Girard's Ex., 2 Howard, 162 ; Gay v. Wilkite, 2 Dana, 170.
    4. If a legacy is given to trustees to distribute ip charity, and they die in the testator’s lifetime, although the legacy is lapsed at law, (and if they had taken it to their own use it would have been gone for ever,) yet it will be enforced in equity. (Story’s Eq. Jur., § 1166; Attorney General v. Hickman, 2 Eq. Ca. Ab. 193; Mills v. Farmer, 1 Merivale, 55, 100; White v. White, 1 Br. C. C. 12 ; Walsh v. Gladstone, 13. Simons, and 1 Phillips, 290, on appeal; Modgridge v. Thackwell, 7 Vesey, 69.)
    The learned counsel, in support of the appeal of -the. General Theological Seminary, made and argued the following points:
    I. The testator intended that any society or incorporation substantially answering the description of. a theological school, seminary, or college, within the state of New York, formed or established under the authority, or with the approbation and consent of the General Convention of the Protestant Episcopal Church of the United States of America, for the instruction or education of young men intended for the ministry in the said Church, which might be in existence at the death of -the last annuitant, should take the sum of $2000 therein bequeathed.
    II. The defendants in this suit were at the death of the testator, and- on the 28th day of. December, 1844, the day of the death of such last annuitant, an incorporated body, for such purposes, and formed with such authority and consent..

      III. The bequest is a mere personal legacy, payable out of any funds in hand at the death of the last annuitant, whether personal estate, rents or profits, or proceeds of real estate. The decision of the assistant vice-chancellor treats it as a devise of land, which it is nót.
    IY. If the legacy in question could not be paid out of the proceeds of real estate, then an account of the personal estate should be taken separate and apart, and if a surplus appears after payment of debts and funeral charges and expenses, such surplus should be applied in whole or in part to the payment of the pecuniary legacies.
    And in taking such account, any debt of the testator secured by mortgage of real estate, should be treated as payable out of such real estate, and the proceeds thereof. (Ram on Assets, 342, and cases; Attorney General v. Winchelsea, 3 Brown C. R. 381; Williams v. Kenshaw, cited 1 Keen, 244, n.; Rogers v. Rogers, 1 Paige, 188.) The bill admits that the personal estate was inventoried at $56,921.82.
    Y. The most unfavorable view which can be taken of the question is, to suppose the legacy payable out of the proceeds of real estate, directed or authorized to be sold by the trustees. It would then be a valid gift, even under the revised statutes; certainly before them. (Orphan Asylum v. McCartee, 9 Cowen, 438 ; Methodist Church v. Wright, 1 Hoffman’s Rep. 202 ; Shotwell’s Exec. v. Mott, 2 Sandford’s Rep. 53.)
    YI. The real estate was converted, under the provisions of' the will, into personalty, so that all questions respecting the legality of the bequest are to be determined upon the basis of the whole fund being personalty. (Methodist Ep. Church, 1 Hoffman’s Rep.)
    YII. The legacy, it is clear, is perfectly well given, and the defendants, The Theological Seminary, are entitled to it, unless the clause respecting the power of the trustees under the will defeat the gift because those trustees refuse to act. The legacy is absolute, to a party competent to take for an object recognized as lawful. (Solier’s Ex. v. St. Gaul, 12 Metcalf, 250.) The trustees under the will were to be trustees for every purpose, this included. Their other duties would necessarily cease at some period after the last annuitant came of age. Their duties in this respect would last for an indefinite period. But their office, viz., the participation in the selection of students under this part of the will, was in their capacity of trustees — as trustees, they were the donees of the power, to select. Therefore a legal change of trustees of the will makes a legal change of persons to exercise the power — créates new donees of the power, so to speak. Manifestly, if the court had been applied to to appoint new trustees on the resignation of the old, the new ones would succeed to these powers under this clause, as well as to any other under the will. . This is the very thing now sought for by the present bill: It is to change or substitute new trustees to execute the will. The law is laid down in the matter of Fitzgerald, and in other cases, 1 Lloyd & Groold, 20, 23, by Lord Sugden. Lord Sugden was the framer of the English act respecting trustees. The law as explained by him is this: Before his statute new trustees could only be appointed upon the resignation, death, or removal, of former ones, by a bill filed in the court, making all interested parties. By his act a. petition was allowed for the purpose in certain cases. (See also Lewin on Trusts, 473.) The case of Gibson v. McCall, (1 Rich. Law Rep. 174,) and the Attorney General v. Jolly, (1 Rich. Eq. Rep. 99,) are very strong to this effect. They were decided in 1844. One great point settled is, that where the object of the trust is legal, the court will never let it fail if for a charity, for want of a trustee. (See also Shotwell v. Mott, 2 Sand. Ch. R. 53; Kniskern v. Lutheran Churches, 1 Ibid. Rep. 439.)
    Now it is, I submit, not only the right but the duty of the court, where trustees are made necessary by a party to effect a legal object, and those selected fail, to appoint new ones. It must be remembered in this case, that the trust or office is not purely personal as if given to A, but is placed in certain official persons and their official successors.
    The court might, therefore, appoint for this particular purpose some of the individuals now holding the situations specified in the will, and their successors in such situations.

      Daniel Lord, for tbe respondents, made and argued tbe following points:
    1. —1. The legacy to tbe Auxiliary New York Bible Society was a gift, at the death of tbe last annuitant, until which time this legacy was not vested but contingent. Before the death of tbe last annuitant, tbe society expired. Tbe legacy, therefore, if valid, lapsed.
    2. The legacy, if for a charitable purpose, was yet to be administered in tbe discretion of tbe corporate body made trustee; it could not be executed by a mere assignee after mesne assignments ; tbe New York Bible Society is not within tbe trusts of tbe assignment of July 1, 1837.
    3. The New York Bible and Common Prayer Book Society was in existence at tbe date of tbe will, codicil, and death of the testator, and was not made bis legatee; to give the legacy to it would be a gift tbe testator neither made nor intended.
    II. —1. The legacy, to tbe Auxiliary New York Society was for an accumulation for twenty-one .years; tbe legacy was only given upon tbe condition of such accumulation. This accumulation this society bad no power by its charter to make, and therefore tbe legacy is void.
    2. It is also void as a perpetuity at.common law; tbe legacy is fettered for four lives before vesting, and then for a term of twenty-one years, not depending on a life or a minority; and is therefore void.
    III. —1. Tbe legacy to tbe Theological Seminary is void, because it is not given to the chartered corporation for its chartered purposes, to be managed according to its charter, but upon special trusts.; tbe corporation bad no fower to take and execute such trusts.
    2. Tbe trust was for tbe education of one of tbe testator’s kindred; and-for an accumulation until such kindred should be fit to be a clergyman or should terminate.
    3. Tbe trust was then for tbe preaching of an annual, sermon. These were not trusts within tbe charter.

         See ante voL iii. p. 351, and notes at pp. 352, 3*73, Ayres v. The Methodist Church, <fec.

   Duer, J.,

delivered the opinion of the court.

Without adopting the reasons of the vice-chancellor, we are constrained to affirm his decree upon grounds to which he has not adverted in his opinion, and which we shall proceed to state, with as much brevity as may be consistent with their distinct exposition. We entirely agree with the learned counsel for the appellants, that the bequests which are the subject in litigation, must be treated as pecuniary legacies, notwithstanding it might become the duty of the executors in the event of a deficiency of the personalty to sell the lands in order to satisfy them; nor was this position, as we understood the learned counsel for the respondents, meant to be denied by him; and as it is not probable that it will be hereafter disputed, it is needless to cite authorities in its support.

The bequest to the Auxiliary New York Bible and Common, Prayer Book Society, and which is now claimed, as its assignee, by the New York Bible and Common Prayer Book Society, we are satisfied was a contingent, not as the learned counsel for the appellants was forced to contend, a vested legacy. It could not' vest, even in interest, until the death of the last annuitant,' since the gift itself, from the terms in which it is- expressed, is made to depend upon the contingency of the corporate existence of the society at that time.

The distinction between'a bequest of a'sum of-money at a particular specified time, and a similar bequest; payable or to be paid at the same time, is somewhat refined, and it is probable seldom exists in the mind of a testator; but it is established by so long a series of decisions, that it must now be regarded as a constituent part of the law which it is our province and duty to administer. In the second case, the gift is immediate,'and only its payment postponed. • In the first; the gift itself is postponed; in the language of the books, the time in the second case is annexed to the payment, in the first to the substance of the gift. The first is a contingent, the second a vested legacy: A vested legacy, where the legatee dies before the times fixed for its payment, passes to his personal representatives, or if it has been previously assigned by him, to his assignee. A contingent, upon the happening of the same event, is wholly extinguished and sinks into the residuum for the benefit of the residuary legatees or next of kin, and a previous assignment is necessarily defeated; since, every such assignment, if otherwise valid, is subject to the same contingency as the gift itself. (Stapleton and Cheales, Prec. in Chancery, 317; Jackson v. Jackson, 2 Brown Par. Cases, 254; Bolger v. Mackell, 5 Ves. 509; Smell v. Dee, 2 Salk, 485; Cruse v. Barley, 3 P. Wm. 20; Onslow v. South, 1 Eq. Cases Ab. 595, pl. 6; Hanson v. Graham, 6 Ves. 241; Butcher v. Leach, 5 Beav. 391; 2 Williams’ Executors 1051 a 1060 ; 1 Roper on Legacies by White, pp. 566, & seq.)

There is, however, an exception from the general rule that a gift to take effect at the death of a particular person, is contingent during his life. If, during his life, a beneficial interest is given to him or to any other person, in the capital of the sum bequeathed, the legacy is construed as a vested remainder, and is not defeated by the antecedent death of the legatee. (2 Will. Exec. pp. 1066-7, and cases cited.) But it is manifest that' this exception is not applicable to the present case, since under the provisions of the will, neither the annuitants, nor any other person during their lifetime, had any beneficial interest, either in the capital sum bequeathed or in its income. The sum of the annuities payable to the three annuitants who survived the testator, was only three hundred dollars, which was far less than the whole income of the testator’s estate, and the surplus income the executors and trustees were directed not to pay over to any person, but to accumulate until the death of the last of the annuitants. Hence, had the bequest been an absolute gift to a natural person, to take effect at the death of the last of the annuitants, it is impossible to doubt upon the authorities that it would have lapsed by the antecedent death of the legatee, and we know no reason, nor was any attempted to be given, why the same rule must not be applied where the gift is to a corporate body, and is accompanied with a trust. The continued existence of the corporate body, until the period when the gift is to take effect, is just as certainly a condition precedent to the vesting of the legacy as that of the individual. In this case the Auxiliary New York Bible and Common Prayer Book Society, at the death of the last annuitant, by the prior expiration of its charter, had ceased to exist, and the necessary consequences are, that the legacy has lapsed and that the title set up by the appellants, The New York Bible and Common Prayer Book Society, wholly fails.

Had it been possible for us to say that the legacy was vested, we should still have been compelled to hold that its payment should not be decreed to the appellants, as its assignees. The assignment under which they claim was void in its origin. The gift to the Auxiliary Society was not absolute, but was clothed with a trust from which it could not be separated, and which from its nature was incapable of being assigned. The assignment of a trust is a delegation of the office of trustee; it is the institution of a new trustee, and the power of delegation and substitution never exists unless it is expressly given by the instrument creating the trust. In all other cases, the trust implies a personal confidence, which may be renounced but cannot be transferred. (Attorney General v. Scott, 1 Ves. Sen. 413 ; Alexander v. Alexander, 2 Ves. Sen. 643; Adams v. Clifton, 1 Russ. 297; Lewin on Trusts, 262.)

It is however alleged, that although, either from the lapse of the bequest or the invalidity of the assignment, there may be no trustee before the court entitled to claim the payment of the legacy, it is our duty as a court of equity to enforce the execution of the trust with which it is clothed, and for that purpose to appoint a new trustee to whom its payment may be decreed; and certainly if we have this power and are bound to exercise it, we could have no hesitation in selecting the appellants as trustees, and in making the required decree in their favor. If the trust existed, it is to them that its execution ought to be entrusted.

The present existence of the trust is therefore the question next to be considered, whether from the nature of the use to which the income of the legacy is directed to be forever applied, namely, the purchase and distribution of Books of Common Prayer, there is a valid and subsisting trust, the execution of which has devolved upon the court, is in our judgment the only question in the cause that can create and justify a serious' doubt. It is certainly a question, which, from the extensive application of the principles which it involves, is of far more than ordinary importance, and we admit that its determination has been rendered somewhat embarrassing and difficult by prior decisions. The inquiry upon which it compels us to enter is, whether pious or charitable uses, wholly inconsistent with the rules of law in relation to all other trusts, were in force in this state prior to the adoption of the revised statutes. The will of the testator took effect some years before the revised statutes were adopted, and consequently it is not by their provisions, but by the law of the state as it then existed, that our determination must be governed.

Before we proceed to this inquiry, however, it will be proper to consider a preliminary objection which has been raised -on the part of the respondents, and upon which the vice-chancellor seems tó have rested his decision iü their favor; If this objection is -well founded, it supersedes the necessity of any further discussion. The gift to the Auxiliary New York-Bible and Common Prayer Book Society, is in its nature an executory bequest, and the objection is, that as such, it- exceeds the limits allowed by law, and as too remote, is -void in its creation. It is true,-that the principal sum of $1500 is to be paid to the society at the death of the last annuitant, but the society is directed to accumulate this sum for the period - of twenty-one- years, or until it shall amount to $5000, and it is therefore certain that during the term of accumulation, the full vesting of the gift is suspended. The gift is a limitation to take effect at the end of the term. The vice-chancellor thought this objéction to be fatal, and upon the single ground, that an absolute term, or term in gross, having no reference to an actual minority, cannot be added to lives in being, so as to enlarge the period of suspense, held the legacy to be void. In the opinion,' however, that such an addition to lives'in being is prohibited-by'law, the learned vice-chancellor certainly erred. He was misled by his reliañce on the case of Beard v. Westcott, (5 B. and Ald. 801,) and was greatly-mistaken in 'supposing that the case, as understood by him, is consistent with all the prior decisions, and has not been overruled by any that are subsequent.

It is exceedingly doubtful whether the court of King’s Bench, by its certificate in Beard v. Westcott, meant to affirm the doctrine which the vice-chancellor adopts, but which the court of common pleas, by its previous certificate on the same case, had distinctly rejected. (Beard v. Westcott, 5 Taunt. 413. Yide opinion Bayley, B., 7 Bligh’s New. R. p. 238.) But admitting that the judges of the King’s Bench meant to decide the question as the vice-chancellor interprets their certificate, their decision has been expressly overruled by.the very deliberate judgment in the House of Lords, in the subsequent case of Cadell v. Palmer, (7 Bligh. 203.) By this judgment, which was founded upon the unanimous opinion of the attendant judges, and which affirmed the concurrent decrees of the vice-chancellor and chancellor, Bengough v. Edridge, 1 Sim. 173, it was definitely settled, that where an absolute term having no reference to a minority, and not exceeding twenty-one years, is added to lives in being, a limitation, to take effect only at the end of the term, is not too remote, but if otherwise valid, will.be sustained; and the same rule is plainly deducible from several prior decisions, (Lloyd v. Carew, 1 Shower’s P. C. 137; Goodmany. Goodright, 2 Burr. 873 ; Goodtitle v. Woods, Willes, 211,) and long before, had been laid down in the broadest terms by text-writers of the highest authority, by Blackstone, (2 Black. Com. 174,) by Wooddeson, (2 Wood. 229,) and above all, by the profound Pearne and his deeply learned commentator, Bugler. (Pearne on Ex. Dev. 7th ed. pp. 117, 399, 470; Contg’t. Rem. 429, 438.) It may not be improper'to add, that this rule was plainly understood by the revisers to be the settled law, several years before the decision of the House of Lords, in Cadell v. Palmer, since in their notes to the chapter Of Real Property, they state as one of the alterations in the law which they proposed and the legislature adopted, the “ period of twenty-one years after a life or lives in being, is no longer allowed as an absolute term, but tbe rule is restored to its original object by being confined to the case of actual infancy.” (Rev. notes, 3 R. S. 2d ed. p. 572.)

As we cannot agree with the vice-chancellor that the bequest to the society is rendered void by the postponement of its vesting, we must proceed to the inquiry whether we are bound to execute the trust that accompanies the gift, by the appointment and through the medium of a new trustee. It is familiar law that equity will never suffer a trust to be defeated, by the mere circumstance that there is no trustee in whom the legal title is then vested, but the rule in general, can only be applied where the trust is valid, and there is a cestui que trust before the court, who claims its execution. As a general rule, chancery has no power to compel the performance or decree the execution of' a trust where there is neither a trustee nor a cestui que trust. The trust is then wholly void in equity as well as at law, and this is emphatically true when the trust involves a perpetuity; when, as in the present case, it locks up forever the capital of the property or fund which it embraces, and calls for a perpetual succession of trustees to administer the income.

Let it be admitted that pious and charitable uses are an exception from these general rules, it by no means follows that we are bound or have the power to execute the present trust. We have recently held, in the case of Ayres v. The Methodist Episcopal Church, that where a charitable use is general and indefinite, no persons being certainly designated as objects of the intended bounty, the administration of the trust, if there is no trustee,' belongs in England, not to the court of chancery but to the crown, so that the chancellor in decreeing the execution of the trust, is acting not in the exercise of the rightful and proper jurisdiction of his court, but. as the delegated minister of a royal prerogative. No reasons have been given, nor authorities cited to induce us to change or modify the opinion which we then expressed, that discretionary powers similar to those which are exercised by the Lord Chancellor, as the delegate of the crown, have never been exercised or claimed by the courts.of equity in this state, and cannot be assumed without an entire disregard of the principles upon which pur government is founded. The English cy pres doctrine, in its application to charitable uses, and in both the branches into which it is divided by the learned counsel for the appellants, is the fruit and result, not of a judicial but of an arbitrary discretion, contemning and disregarding the rules by which the court of chancery, in the exercise of it? own proper jurisdiction over trusts, has invariably been governed. We rejected the doctrine in the case to which we have referred, and we must reject it now, since it cannot be denied that the use which is attached to the present bequest, is just as vague and indeterminate as to the persons to be benefited; as those which in that case we refused to execute

Such would be our decision even if vie assented to the doctrine that charitable uses, contravening, the general rules of law in relation to trusts and perpetuities, were in this state recognized and sustained by law, prior to the adoption of the revised statutes. But as we cannot assent to this doctrine, it is not necessary, nor do we deem it expedient, to place our decision upon the narrow ground that has been stated. We hold that the use which in this case is attached to the legacy, became illegal as soon as the legacy itself had lapsed; it became illegal when there ceased to be a corporate body entitled to take under the will, and enabled by its. charter to accept the trust. We place our decision upon the broad ground that when the will took effect, the court of chancery in this state could not rightfully compel the performance, or in any mode decree the execution of a charitable use, creating or involving a perpetuity, unless where the property was given to a corporation, which by the terms of its charter was enabled to accept and execute the trust. The same question was before us, and very fully argued in the case of Ayres v. The Methodist Episcopal Church, and we now adopt, as a court, the views which were then explained as those of the individual who delivered our judgment, namely, that the only law giving a sanction to charitable uses, violating the general rules of law in relation to trusts and perpetuities, which was in force in this state at any one time prior to the adoption of the revised statutes, was derived exclusively from the provisions of the English statute of charitable uses, the famous statute of Elizabeth. And, consequently, when that statute, together with all other English statutes was repealed, it was intentionally and wholly abrogated.

The reasons that have led us to this conclusion are fully stated in the opinion to which we have referred, and it is needless now to repeat them. It is sufficient to say that it appears to us quite incredible that an enlightened legislature, when it repealed the statute of Elizabeth and the statutes of mortmain, meant to disregard and overrule the soundest measures of public policy, and established a system which the wisdom and experience of ages have condemned and rejected. It is therefore incredible that it meant to give to every individual the power of rendering his whole estate, real and personal, forever inalienable, by devoting its income forever to any use or purpose that he might deem, or others persuade him to believe, was pious or charitable. In other words, it is incredible that the legislature meant to enable every individual, under the form of a trust, “ To found a corporation unlimited in its duration and incapable of dissolution, having no power to dispose of .its property, yet unrestricted as to the amount it may hold.”

In the present case, we go still further and shall refer our denial of the power of our chancellor to sustain and execute a trust similar to that which the legacy creates, to a much earlier period than the repeal of the statute of Elizabeth. The use attached to this legacy is not a charitable use, in the usual and legal sense of the term. It is strictly a pious use. not otherwise charitable than as the noblest office of charity is the dissemination of religious truth, but it is impossible for a court of justice to sustain a use upon this ground, unless in a country where the truths of religion have been settled and defined by law, or judges have a discretionary power to determine and declare them. If, at any period in the juridical history of this state, it has been within the power of our court of chancery to decree the execution of a pious use violating the general rules of law, this branch of its jurisdiction was in our judgment wholly abolished long before the statute of Elizabeth was repealed. It was wholly abolished when the constitution of 1777 was adopted. Under a constitution which extends the same protection to every religion and to every form and sect of religion, which establishes none and gives no preference to any, there is no possible standard by which the validity of a use as pious can be determined; there are no possible means' by which judges can be enabled to discriminate, between such uses as tend to promote the best interests of society by spreading the knowledge and inculcating the practice of true religion, and those which can have no other effect than to foster the growth of pernicious errors, to give a dangerous permanence to the reveries of a wild fanaticism, or encourage and perpetuate the observances of a corrupt and degrading superstition. Hence, unless all uses that may be denom: inated pious shall be subjected to the same rule as other trusts, we shall find no escape from this alternative: either all uses for a religious purpose, whether the religion which they are intended to aid be true or false, rational or absurd, must be upheld and enforced; or the uses connected with a particular form of religion must be selected as the special and exclusive objects of favor and encouragement. If we adopt the first course, we renounce the principle upon which pious uses were first introduced, and upon which alone their defence can be rested, namely, their tendency to benefit society by diffusing the knowledge and practice of true religion. We disregard and practically deny the eternal distinctions between truth and falsehood, and give the sanction of law to the pernicious absurdity, that all religions, however contradictory in their tenets and in their precepts, have a just and equal claim, not merely to the protection, but to the favor of government; and are not simply to be tolerated but encouraged. If we adopt the second alternative, we violate that equality between different religions and' different forms and sects of religion, which the principles of our government and the provisions of our constitution are designed to secure; we create an odious distinction in the power to dispose of their own property between different classes of onr citizens; and by declaring that the religion which we favor is alone true, we establish it, in a restricted, it is true, but in a definite sense, as the religion of the state.

We are quite aware of the answer that has sometimes been given to this objection. Christianity, it has been asserted, is now, in a modified sense, the religion of the state. It is so, as a part of that common law which our ancestors introduced and we have retained. Christianity therefore furnishes the test that is desired, so that in judging of the validity of a use as pious, we have only to inquire whether it is in harmony with the doctrines that Christianity teaches. The maxim that Christianity is part and parcel of the common law has been frequently repeated by judges and text writers, but few have chosen to examine its truth or attempt to explain its meaning. We have, however, the high authority of Lord Mansfield and of his successor, the present chief justice of the Queen’s Bench, Lord Campbell, (Campbell’s Lives of Chief Justices, Vol. 2, p. 518,) for stating as its true and only sense, that the law will not permit the essential truths of revealed religion to be ridiculed and reviled. In other words, that blasphemy is an indictable offence at common law. The truth of the maxim in this very partial and limited sense may be admitted. But if we attempt to extend its application, we shall find ourselves obliged to confess that it is unmeaning or untrue. If Christianity is a municipal law, in the proper sense of the term, as it must be if a part of the common law, every person is liable to be punished by the civil power who refuses to embrace its doctrines and follow its precepts ; and if it must-be conceded that in thiá sense the maxim is untrue, it ceases to be intelligible, since a law without a sanction is an absurdity in logic and a. nullity in fact.

Let it be admitted, however, that Christianity is a part of the common law, in any sense of the maxim which those who assert its truth may choose to attribute to it. The only effect of the admission is to create new difficulties, quite as impossible to overcome as those. that have already been stated. How, we would then ask, in judging of the validity of a use as pious, are we to apply the test which Christianity is said to furnish ? It will not be pretended that the common law has supplied us with any definition of Christianity, yet without a judicial knowledge of what Christianity is, how is it possible to determine whether a particular use, alleged to be pious, is or is not consistent with the truth which Christianity reveals? No religious use has been or can be created, that does not imply the existence and truth of some particular religious doctrine, and hence when we affirm the validity of a use as pious, we necessarily affirm the truth of the doctrine upon which it is founded. In a country where a definite form of Christianity is the religion established by, law, the difficulty to which we refer is not felt, since the doctrines of the established Church then supply the criterion which is sought-; but with us it can readily be shown that the difficulty is not merely real and serious, but insurmountable.

Let us suppose that a Roman Catholic had devised his whole estate, real and personal, to trustees and their heirs in trust, to apply the income forever, one half to the purchase of indulgences for the benefit of such as might seek them, and the other moiety to the payment of,daily masses for the safety of his soul, and that the validity of this devise were the question now to be determined. In England, such uses are held to be void as superstitious, but the statute by which they are declared so we have repealed, and some other rule or principle must be found to govern our decision. The uses, it is manifest, imply the existence and trnth of certain important doctrines. They imply that our Saviour has delegated to the Pope; as his vicar upon earth, the absolute and unconditional power of pardoning sin. They imply the existence of a purgatory, and the duty and efficacy of prayers for the dead. Such is the necessary import of the uses, upon the validity of which, guided by the light of Christianity, we are required to pronounce. Shall we, by sustaining them as pious, declare that the doctrines which they imply belong to the class of truths which the New Testament reveals; or shall we, by rejecting them as superstitious, condemn as false and corrupt the ancient faith which so large a class of our citizens avow and follow? Are these questions over which we, as judges, whatever we may privately think, have Any jurisdiction ? Are they-questions which any .court of justice in this state, at any time since the formation of our present government, could rightfully entertain and decide? Such are the questions that must be considered and decided, if uses inconsistent with the general rule of law are to be sustained as pious, and .the proper test of their legality, as such, is. their correspondence with the true doctrines of Christianity.

For ourselves, if the case that we have supposed were now before us, we should not hesitate in pronouncing our judgment, abstaining from any remarks upon the nature and'tendency of the uses, neither admitting them to be pious nor condemning them as superstitious; we should hold the devise to be entirely void, as repugnant -to those wise and salutary rules of law which forbid the citizen to withdraw his property, beyond a limited period, from that free circulation which the interests of commerce and the healthful action and permanence of our.republican institutions alike demand: and if this would be a proper decision in the case supposed, it is manifest that the same judgment ought to be pronounced in every case where a trust, which involves a perpetuity, is sought to be maintained upon the sole ground of its piety. We may be disposed to regret that a perpetual trust .for the distribution of that sublime manual of true devotion, perhaps the noblest of human compositions, the Book of Common Prayer, cannot be sustained; but the regret.must cease when we reflect that it can only be; sustained upon a prin-. ciple that-would render just as valid a-similar trust for the circulation of the monstrous fables of the Talmud or the-gross impostures of the Koran.

Had the New York Auxiliary Bible and Common Prayer Book Society, been a living corporation at the death of the last annuitant, we strongly -incline to think that -the case would be free from difficulty, since the use to which the income of the legacy is directed to be applied is one of the purposes for which the society was incorporated. We incline to think that the use creates a trust which the society by the fair interpretation of its charter was-empowered .to accept, but as the legacy never vested and could not be assigned, tbe appellants, the New York Bible and Common Prayer Book Society, have no title or interest upon which a claim for relief can be founded. It has not a locus standi injudicio ; nor, for the reasons that have been stated, can we secure the performance of the trust by appointing a new trustee, to whom the payment of the legacy may be decreed. As a lapsed legacy, it has sunk into the residuum.

We pass to the second legacy, the bequest to the General Theological Seminary, and a few observations will here suffice to explain the grounds of our decision. It is not denied that the seminary fully answers the description in the codicil, of a seminary established under the authority of the General Convention of the Protestant Episcopal Ohurch, for the instruction in theological learning of young men intended for the ministry in that church; and hence, had the gift been absolute, we see no reason to doubt that it would have been our duty to decree its payment. But the legacy in this, as in the preceding case, is clothed with a trust, and the objections are, 1st. That the, seminary is not empowered by its charter to accept and execute a trust of any description. 2d. That in this case the trusts, or a portion of them, are entirely foreign to the purposes for which the seminary was established or incorporated. And lastly, that as the seminary is incompetent to take, this court has no power to compel the performance of the trusts, as there is no cestui qjue trust, and they involve a perpetuity. This last objection, if either of the two first are valid, it will be unnecessary to consider; it is covered by the decision we have already made, that unless there is a trustee authorized by law to perform the trusts, a pious use, if inconsistent with the general rules of law, is wholly void. It is only upon the ground that the uses which are attached to this legacy are pious, that they are asse'rtei to be valid, and it is not denied that they involve a perpetuity. The first question is, then, whether the seminary is competent to take or hold any property, real or personal, as a trustee.

Let it be admitted that a corporation, merely by virtue of its incorporation, without any express authority given by its charter, has the same capacity to take property upon trust as a natural person. It is manifest that it can only be authorized so to take, when the trust itself is lawful. 'When the trust, as creating a perp'etuity, or for other reasons, is contrary to the general rules of laifr, it is immaterial whether the legal title be given to a corporation or to any individual. In either case the limitation is Avholly void, unless the corporation by the true interpretation of its charter is authorized to accept and exeeute the trust; and we think that this authority, when not given in terms, may be justly implied whenever the object of the'trust, the end which it seeks to accomplish, is the purpose, or one of the purposes, for which the corporation was created.

It is certain that the uses which in' this case are attached to the legacy, had it' been given to an individual, would have rendered it illegal and void, and the only inquiry that remains is, whether they are legalized by the charter of the seminary. In other words, is the object of the trust which these uses create, one of the purposes for which the seminary was incorporated ? It is somewhat remarkable that the act of 1822, (Sess. Laws, 1822, p. 140,) by which the Theological Seminary was incorporated, contains no specification whatever of the objects or purposes of the incorporation'. It gives to the seminary the power of taking and holding, by devise or purchase, real or personal estate, of which the annual income shall not exceed a certain limited amount, but without specifying the uses to which either capital or income shall be applied. It declares that the corporation shall have power to dispose of all its real and personal estate, at its own will and pleasure. As this absolute power of disposition is co-extensive with the property which the seminary is authorized to hold, it seems necessary to exclude the presumption that it was intended by the legislature, that any portion of that property might be rendered inalienable by the operation of a trust. At any rate, the terms of the charter are not such as to enable us to say that the uses of the trust in the present case correspond with any object or purpose for which the institution was incorporated. It is true that the very name or title of the institution suggests, and must have suggested to the legislature its general object, viz., the education of youth for the ministry of the Episcopal Church, and this general object, the legislature, by granting the charter, may be said to have sanctioned; but as the foundation of a perpetual scholarship is plainly not a necessary means of accomplishing the object, we have no right to say that it was meant to be sanctioned by the legislature, especially as the very words of the charter, in their natural construction, exclude the supposition. We regret to find that the charter of this noble institution is so. exceedingly defective. 'Looking to the objects which the institution seeks to accomplish, and to the most expedient means of their accomplishment, we cannot doubt that its charter ought to contain express provisions relative to the foundation of professorships and scholarships, and ah express authority to receive donations in trust for these purposes; but we have no power to amend the charter. We must construe its provisions as they are, and would violate our duty should we attempt, by a strained and violent construction, to make' them correspond with our personal wishes.

Were it possible to overcome or evade the objections, that the seminary has no power to hold property in trust at all, and certainly not when the trust as a perpetuity is illegal, another objection remains, which, even had the charter expressly authorized the foundation of perpetual scholarships,'would have compelled us to say, that the trust annexed to the legacy renders the gift inoperative and void. The trust is not limited to the application of the income of the capital, which it locks up forever, to the maintenance of a scholar to be selected and nominated in the manner that the will provides, but the testator, foreseeing that a vacancy in the scholarship might occur that could not be immediately supplied, provided for the contingency by declaring that during the continuance of every such vacancy, the annual interest of the capital sum bequeathed shall be given to a person, to be appointed by the bishop of the diocese of New York, who shall deliver a lecture in Trinity church, in the city of New York, upon the evidence and truths of the Christian religion on the day of the opening of the convention of the Episcopal Church. It cannot be pretended that this use, the application of the interest to the payment of an annual religious lecture in Trinity church, not to the students-of the seminary, but to the convention of the church, had any relation to .the objects for which the seminary was incorporated. It is a foreign and extrinsic use, creating a trust which, upon no construction of its charter, was the seminary authorized to accept and execute. It is therefore a general pious use, without a trustee or a cestui que trust, and involving a perpetuity. As such, it is absolutely void, and the necessary effect of its invalidity is to avoid the entire limitation, of which it is a constituent and essential part. It is no answer to say that the contingency of a vacancy in the scholarship may not occur. It is Settled law, that to render a limitation void, which, if sustained, would create a perpetuity, it is sufficient that the event upon which it depends may happen, and here the event is not merely probable, but almost certain to happen.

Nor can we get over the difficulty and sustain the trust, by holding that this particular use alone is void. The trust as created by the testator is entire and indivisible, and cannot be separated without defeating its main intent. Should we direct 'that during a vacancy in the scholarship, the interest of the legacy shall be paid to the representatives of the testator, as the vacancy might never be filled, and during its continuance the capital is locked up, the objection of a perpetuity retains all its force. And should we direct the capital to be paid over, the perpetual scholarship is gone and the principal intent of the testator defeated. The retaining of this capital by the seminary is of the essence of the trust, a necessary condition of its fulfilment, and as this condition is illegal, the entire limitation must be void.

There are other weighty objections to the validity of the trust which we forbear to notice, since those that have been stated, we cannot but think, are demonstratively fatal.

The decree of the vice-chanceller must therefore be affirmed as to both legacies, but without costs upon this appeal. In the actual state of the decisions, the appeal was eminently proper, and we trust that the proceedings will not stop here. It is desirable that the vexed and highly interesting questions which tbe case involves shall be finally settled, and we earnestly hope that they will be settled by an appeal from our decision to the court of ultimate resort.

         Now reported, ante vol. iii p. 351.