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Inhabitants of the Township of Montclair County of Essex v. Ramsdell/Opinion of the Court

'Sec. 3. And be it enacted that the said commissioners, authorized by this act, may, in their discretion, dispose of such bonds, or any part thereof, to such persons or corporations, and upon such terms as they shall deem most advantageous for their said townships, towns, or cities, but not for less than par, and the money that shall be raised by any loan or sale of bonds shall be invested in the bonds of the said railway company for the purpose of building the railway thereof; and said money shall be applied and used in the construction of said railway, its buildings, equipments, and necessary appurtenances, and for no other purpose. The commissioners, respectively, in the corporate name of each of their said townships, towns, or cities, shall subscribe for and purchase bonds of said railway company to the amount that they severally may have borrowed as aforesaid.'

After providing that the commissioners shall execute their official bonds, with security to be approved by the judge, (all of which was done in this case,) and that they shall be a board to act for their respective townships, towns, and cities, with power, by a majority, to do any business authorized by the act, the twelfth and fourteenth sections declare:

'Sec. 12. That all bonds issued in accordance with the provisions of this act shall be registered in the office of the county in which the township, town, or city so issuing is situated, and the words 'registered in the county clerk's office' shall be printed or written across the face of each bond, attested by the signature of the county clerk when so registered, and no bonds shall be valid unless so registered.

'Sec. 14. That in case any new township, town, or city shall have been created, or the boundaries of any township, town, or city shall have been enlarged on the routes of the said railway, or at the termini thereof, so that there is no assessment roll for the year 1867 for such township, town, or city so created or enlarged, the said commissioner for such new or enlarged township, town, or city shall cause to be prepared an assessment roll for the purposes of this act, by extracting from any assessment roll or rolls for said year all that relates to any assessment of persons or property in the territory embraced in the said new township, town, or city so enlarged or created, or in said enlargement.'

On the fifteenth day of April, 1868, the legislature of New Jersey passed another act, the provisions of which are important. It is entitled 'An act to set off from the township of Bloomfield, in the county of Essex, a new township, to be called the township of Montclair.' The first section defines the boundary of the new township, and the second constitutes its inhabitants a body politic and corporate in law by the name of The inhabitants of the township of Montclair,' with all the rights, powers, privileges, and advantages, and subject to all the regulations, government, and liabilities to which the inhabitants of the other townships in said county of Essex are or may be entitled or subject by the laws of the state.

The third section, after prescribing the time and place at which the first town-meeting of Montclair should be held, and that the voting thereat should be by ballot until otherwise determined by law, declares:

'That all the provisions and restrictions of an act entitled 'An act to authorize the inhabitants of the several townships of this state to vote by ballot at their town meetings,' approved March 22, 1860, and of the supplements thereto, shall apply to the inhabitants of the said township of Montclair, and all acts and parts of acts in force in the said township of Bloomfield at the time of the passage of this act are hereby extended to and shall be in force in the said township of Montclair; but the provisions of any act or acts from the operation of which the township of Bloomfield has, by any proviso or exception contained therein been specially excepted, shall apply to and be in force in said township of Montclair from and after the time this act shall go into effect, the same as if the township of Bloomfield had not been specially excepted therein.'

''Thos. N. McCarter and Wm. M. Evarts'', for plaintiff in error.

Rastus S. Ransom and ''Jno. F. Dillon'', for defendant in error.

HARLAN, J.

In behalf of the township of Montclair it is contended that the bonds and coupons in suit were executed and issued without legislative authority, and consequently are not enforceable. This proposition being fundamental in the case will be first considered.

It has been observed that the first section of the act of April 9, 1868-the one referred to in the bonds-expressly excepts from its operation the township of Bloomfield. The circuit court was of opinion, and so ruled, that Montclair, upon being set off from Bloomfield township and made a separate municipal corporation, with all the rights, powers, and privileges of other townships in the same county, was no longer embraced in the exception of Bloomfield township made by the act of April 9, 1868, but, as a distinct independent body politic and corporate, became entitled, in virtue of the fourteenth section of that act, (and without reference to the proviso in the third section of the act of April 15, 1868,) to take advantage of all the provisions of the original or bonding act. Some of the members of this court prefer not to rest the determination of the question of legislative authority upon that interpretation of the original act. But we are of opinion that the proviso of the third section of the act creating the township of Montclair-declaring in force, as to that township, 'the provisions of any act or acts from the operation of which the township of Bloomfield has by any proviso or exception contained therein been specially excepted'-must be construed as taking Montclair out of the exception in the first section of the act of April 9, 1868, and adding it to the class of townships which, by the act, were authorized to raise money upon bonds to be invested in bonds of the railway company. Thenceforward, the township of Bloomfield, within the meaning of the act of April 9, 1868, embraced only such territory and inhabitants as remained after Montclair township was set off as an independent municipality. The recital in the bonds that they were issued in pursuance of that act, must therefore be taken as referring to it as enlarged or extended by the act of April 15, 1868.

It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed. We should assume that the legislature was aware, when the act of April 15, 1868, was passed, that a previous statute had expressly excepted Bloomfield township from all of its provisions. When, therefore, they declared that the new township should come under the operation of any act from which Bloomfield had been specially excepted by any proviso thereof, the established canons of statutory construction require us to presume that the legislature understood the full legal effect of such a declaration. The purpose, manifestly, was to relieve the new township from the disabilities imposed by the bonding act upon the township of Bloomfield as then established. established.

This would close the discussion of the question of legislative authority, but for another proposition which counsel have pressed with great earnestness. They insist that this construction of the act of April 15, 1868, brings it, or so much thereof as constitutes its third section, in conflict with section 7 of article 4 of the New Jersey constitution, which declares that 'to avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.' The argument is not simply that the authority given by the act of April 9, 1868, to issue township bonds in aid of the Montclair Railway Company (which authority we have seen is imported into the act of April 15, 1868,) is an object, distinct and separate from others embraced by the Montclair township act, but that such object is not expressed in the title of the latter act. The purpose of this constitutional provision was deciared by the supreme court of New Jersey, in State v. Town of Union, 4 Vroom, 351, to be 'to prevent surprise upon legislators by the passage of bills, the object of which is not indicated by their titles, and also to prevent the combination of two or more distinct and unconnected matters in the same bill.' Further, said the court:

'It is not intended to prohibit the uniting in one bill of     any number of provisions having one general object fairly      indicated by its title. The unity of the object must be     sought in the end which the legislative act proposes to      accomplish. The degree of particularity which must be used in     the title of an act rests in legislative discretion, and is      not defined by the constitution. There are many cases where     the object might with great propriety be more specifically      stated, yet the generality of the title will not be fatal to      the act, if by fair intendment it can be connected with it.'

The case in which these remarks occurred involved the constitutionality of an act, entitled 'An act to amend 'An act to incorporate the town of Union, in the township of Union, in the county of Hudson,' approved March 29, 1864.' The body of the act declared valid a certain ordinance passed by the town of Union, without the formalities required by its charter, but under which a sewer had been constructed. In response to the objection that the object of the act-the construction of sewers-was not expressed in its title, the court said:

'The validity of acts with general titles has been so long     recognized by our courts that it cannot be questioned that      under the title, 'An act to incorporate the town of Union,' a      government for the town could be established, including      taxation for its support, courts for the trial of offenders,      authority for laying out streets, building sewers, and making      assessments. Under any other rule it would be impossible to     organize a city government without a large number of distinct      acts. If, under that general title, the formalities for     building a sewer and making assessments may be prescribed,      there is no reason why a dispensation from the use of the      required forms may not be granted by an act entitled 'An act      to amend an act to incorporate the town of Union." 'If this      objection,' continued the court, 'was sustained, it would      annul a large portion of the legislation of this state.'

The doctrines of that case were approved in Doyle v. City of Newark, 5 Vroom, 236. In the earlier case of Gifford v. New Jersey R. Co. 2 Stockt. 172, an act supplemental to a former act was sustained upon the ground that the objects of both acts 'were parts of the same enterprise, and cannot be said to have any improper relation to each other.'

Our attention is called by counsel for the defendant to Rader v. Township of Union, 10 Vroom, 509, and Pa. R. Co. v. ''Nat. Ry. Co.'' 8 C. E. Green, 457. But these do not in the slightest degree impinge upon the doctrines of the other cases. Referring, in the Rader Case, to the constitutional provision under examination, Chief Justice BEASLEY observed that its purpose is plainly twofold:

'First, to secure a separate consideration for every subject     presented for legislative action; second, to insure a      conspicuous declaration of such purpose. By the former of     these requirements, every subject is made to stand on its own      merits, unaffected by 'improper influences,' which might      result from connecting it with other measures having no      proper relation to it; and, by the latter, a notice is      provided, so that the public, or such part of it as may be interested, may receive a      reasonable intimation of the matters under legislative      consideration.'

In the same case he said that the constitution required 'substantial unity in the statutable object.' We do not understand these remarks of the court as announcing any different rule from that established in the cases in 4 and 5 Vroom. What was said in 8 C. E. Green, is clearly in line with other cases. And the doctrines of the New Jersey court are in harmony with decisions of the highest courts of other states when construing similar provisions in the constitutions of their respective states. See authorities cited in Cooley, Const. Lim. 146, note 1.

Upon the authority of these decisions, and upon the soundest principles of constitutional construction, we are of opinion that the objection taken to the act of April 15, 1868, as being (when construed as we have indicated) in conflict with the constitution of New Jersey, cannot be sustained. The powers which the township of Montclair is authorized to exert, however varied or extended, constitute, within the meaning of the constitution, one object, which is fairly expressed in a title showing the legislative purpose to establish a new or independent township. It is not intended, by the constitution of New Jersey, that the title to an act should embody a detailed statement, nor be an index or abstract of its contents. The one general object-the creation of an independent municipality-being expressed in the title, the act in question properly embraced all the means or instrumentalities to employed in accomplishing that object. As the state constitution has not indicated the degree of particularity necessary to express in its title the one object of an act, the courts should not embarrass legislation by technical interpretations based upon mere form or phraseology. The objections should be grave, and the conflict between the statute and the constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or if but one object, that it was not sufficiently expressed by the title.

The assignments of error, unusually large in number, raise other questions. Such of them as we deem necessary to examime relate to the rejection as well of evidence offered as of instructions asked in behalf of the township.

The main provisions of the bonding act will be found in the statement which precedes this opinion. As preliminary to an issue of township, town, or city bonds, by such commissioners as might be appointed on the petition of freeholders, the statute requires the written consent of persons owning, or representing as agent or president, at least two-thirds of the real estate of the municipality,-the bonds so issued not, however, to exceed 20 per cent. of the value of its landed property, and the consent so obtained stating the amount to be raised, and that it is to be invested in the bonds of the railway company. The statute further provided, as we have seen, that the signatures of consenting freeholders should be proved by one or more of the commissioners; that the fact that the consenting freeholders owned or represented the requisite amount of landed property should be proved by the assessor, who was required to perform such service; and that the consent and affidavit should be filed in the office of the clerk of the county in which the municipality is situated, and a certified copy thereof in the office of the clerk of the township, town, or city,-the originals, or a certified copy thereof, to be received as evidence of the facts therein contained in any court of the state or before any judge or justice thereof. The declaration in each count, whether on bond or coupon, expressly avers that in pursuance of the statute such consents were obtained; also, that the commissioner, duly appointed and sworn, as directed by the statute, issued the bonds in suit; that thereafter, and before they respectively matured, a certain named bank became, for a valuable consideration, in public market paid, the holder and bearer thereof, and that thereafter, and before the commencement of suit, the plaintiff became for a valuable consideration by him paid to said bank, and still is, the holder and bearer thereof.

The only plea in behalf of the township to the special counts on the bonds and coupons is non est factum; to the common count for interest, nil debit. At the trial the plaintiff introduced evidence tending to show that the commissioners were duly appointed in the mode prescribed by statute. If their due appointment was put in issue by the general plea of non est factum, if is sufficient to say that the question was properly submitted to the jury. The plaintiff also produced at the trial, from the county clerk's office, the original consents with the affidavits connected therewith, and also certified copies from the office of the township clerk. They show that the freeholders consented to an issue of bonds, to an amount not exceeding $200,000, under the act of April 9, 1868, to 'be exchanged for, or their proceeds invested in, the income bonds' of the railway company. Upon each is indorsed the affidavit of Van Giesen, assessor, showing that the consenting freeholders owned or represented at least two-thirds of the landed property of the township. These papers in form met all the requirements of the statute.

Numerous offers to introduce evidence in behalf of the township were denied. They were made in every form which the ingenuity of able counsel could suggest. Without incumbering this opinion with a detailed statement of them, it is enough to say that the township was denied the privilege of proving that the consents did not, in fact, represent the required amount of landed property; that Van Giesen, the assessor, made his affidavit without having extracted from any assessment roll the taxable value of the real estate to enable him to determine whether the consents represented sufficient real estate; and that the commissioners acted on that affidavit before Van Giesen had taken the oath of office. Upon the occasion of these offers, or some of them, counsel for defendants, in response to inquiries by the court, disclaimed any ability to bring home to plaintiff knowledge of these departures from the requirements of the statute. Upon the same view of the law, as we suppose, counsel asked the court to give, but the court refused, the following instructions to the jury:

'If the evidence satisfies the jury that there were     circumstances of fraud or illegality in the inception of the      bonds, or in the circumstances under which they were issued      and disposed of by the commissioners, then the plaintiff      cannot recover on the bonds without some proof that he      purchased them for value, or gave some consideration for      them.'

*    *     * 'That, by the issue presented by the pleadings in the   case, the burden of showing that he was a purchaser for   value, or claims title through such a purchaser, was on   the plaintiff.'

As to the last of these instructions, there is no ground whatever upon which it could stand. The pleadings did not, of themselves, impose upon plaintiff the necessity of showing either that he, or any prior holder of the bonds, was a purchaser for value. As holder he is presumed to have acquired them in good faith and for value. Goodman v. Simonds, 20 How. 366; Murray v. Lardner, 2 Wall. 121; Shaw v. Railroad Co. 101 U.S. 564; Swift v. Smith, 102 U.S. 444. The plea of non est factum did not put in issue the fact that he was the holder. Legislative authority for an issue of bonds being established by reference to the statute, and the bonds reciting that they were issued in pursuance of the statute, the utmost which plaintiff was bound to show to entitle him, prima facie, to judgment, was the due appointment of the commissioners and the execution by them, in fact, of the bonds. It was not necessary that he should, in the first instance, prove either that he paid value, or that the conditions preliminary to the exercise by the commissioners of the authority conferred by statute were, in fact, performed before the bonds were issued. The one was presumed from the possession of the bonds; and the other was established by the statute authorizing an issue of bonds, and by proof of the due appointment of the commissioners, and their execution of the bonds, with recitals of compliance with the statute. So we have often ruled in numerous cases with which the profession are familiar and which need not be cited.

But the contention of counsel is that it was competent, under the plea of non est factum, to prove either fraud or illegality in the inception of the bonds, in order to remove the presumption of bona fide ownership for value which arises from the mere possession of the bonds, and thus compel plaintiff to show that he paid value for them. Consequently, it is argued, the first of the foregoing instructions should have been given.

It is not necessary to extend this opinion by a review of the adjudications in the American and English courts to which our attention has been called, or to deduce therefrom a general rule to govern every case in which it may be claimed that the proof upon the part of a defendant, in a suit upon a negotiable security, requires the holder before he can recover to show that he paid value. Without entering upon a critical examination of the authorities upon this important question of commercial law, and assuming, for the purposes of this case merely, that the proof, of the exclusion of which the township complains, was competent evidence for some purposes under the plea of non est factum, we are of opinion that the instruction in question ought to have been refused. Its rejection was proper for the reason, if there were no other, that it required the jury, if they believed either fraud or illegality in the inception of the bonds to have been established, to find for the township, unless the plaintiff proved that he purchased for value or gave some consideration for them. Such is not the law; for, if any previous holder of the bonds in suit was a bona fide holder for value, the plaintiff, without showing that he had himself paid value, could avail himself of the position of such previous holder.

In Byles, Bills, 119, 124, it is correctly said that 'if any intermediate holder between the defendant and the plaintiff gave value for the bill, that intervening consideration will sustain the plaintiff's title.'

In Hunter v. Wilson, 19 L. J. (N. S.) the plea was that the bill of exchange was drawn by a named person, at the request and for the accommodation of the defendant, without any consideration or value whatever, and that it was indorsed by that person without any consideration or value given by the plaintiff for such indorsement either to the defendant of to said person, or to any other person whatsoever. It was held that the plea ought to have contained a statement equivalent to an allegation that none of the previous parties to the bill had given value for the indorsement. One of the judges remarked that 'some party to the bill may have given value for it, so as to vest a valid title in the plaintiff. We cannot tell through how many hands it may have passed.' It is not necessary in this case to hold that the plea in such a case should aver that no previous holder of a negotiable security paid value. But the case last cited is authority for the proposition that the present plaintiff may be protected by showing that some previous holder paid value.

This question was directly adjudged in Com'rs v. Bolles, 94 U.S. 109. One of the issues there was whether the plaintiff was a bona fide holder of certain municipal bonds. After stating that the legal presumption was that they were, the court, speaking by Justice STRONG, said:

'But the plaintiffs are not forced to rest upon mere     presumption to support their claim to be considered as having      the rights of purchasers without notice of any defense. They     can call to their aid the fact that their predecessors in      ownership were such purchasers. To the rights of those     predecessors they have succeeded. Certainly the railroad     company paid for the bonds and coupons by paying an equal      amount of their stock, which the county now holds; and      nothing in the special facts found show that the company knew      of any irregularity or fraud in their issue.'

'And still more: the contractor for building the railroad     received the bonds from the county in payment for his work,      either in whole or in part, after his work had been      completed. There is no pretense that he had notice of     anything that should have made him doubt their validity. Why     was he not a bona fide purchaser for value? The law is     undoubted, that every person succeeding him in the ownership      of the bonds is entitled to stand upon his rights.'

When the instruction in question was asked the proof was that the bonds had been issued by the commissioners, and exchanged with the railroad company for a like amount of the company's income bonds. That exchange was a substantial compliance with the statute. It was made under a contemporaneous agreement between the commissioners, the railway company and certain trustees, mutually selected, whereby the bonds passed, upon the exchange, under the control of those trustees, and were deposited in the Union Trust Company, to be surrendered-$10,000 at a time-only as the work of constructing the railroad progressed, to the company or the contractor on their order. The receipt of the trust company shows that it agreed to deliver them to the contractor or his agents or assigns, on the joint order of the trustees or any two of them. And it was proven that the bonds were delivered to the contractor or upon his order between May 10, 1870, and August 4, 1871. The road was constructed as contemplated and the income bonds of the company remained in the hands of the commissioners or of some of them. Whether those bonds ultimately proved to be of any value is of no consequence as between the township and the plaintiff.

It thus appears that when the court was asked to give an instruction upon the basis that plaintiff could not recover, unless it was proven that he paid value for the bonds, it was established beyond question that the bonds had previously passed into the hands, or become pledged for the benefit, of the contractor who built the road. He acquired an interest or a lien on the bonds, to secure payment of the amount due him for his work and labor. He therefore became a holder for value in the sense that he paid real in contradistinction from apparent value, without notice of any fraud or illegality affecting the bonds. Story, Notes, § 195; Railroad Co. v. National Bank, 102 U.S. 14; Byles, Bills, 117. No evidence was introduced or offered which in any degree impeached his good faith, or proved knowledge on his part that the preliminary conditions prescribed by statute had not been fully performed. The character of the bonds as negotiable securities, free from defenses which might have been available as between the original partles, was established by their being pledged for the benefit of the contractor. So that, even if there was fraud or illegality in the inception of the bonds, (apart from such illegality as would have made the bonds absolutely void by whomsoever held,) a defense upon that ground would not have been good against the contractor, and consequently is not available against the plaintiff. The latter, in virtue of the new and independent title derived from or traced to a prior bona fide holder for value, could stand upon the rights of such holder.

In any view of the case, no error was committed to the prejudice of the township, in excluding any of the evidence offered or in refusing any of the instructions asked in its behalf.

Other questions in the case we pass by, as not necessary to be examined. We have considered all that seemed to affect the substantial rights of the parties.

The judgment is affirmed.


text: Talk:Inhabitants of the Township of Montclair County of Essex v. Ramsdell/Opinion of the Court

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Inhabitants of the Township of Montclair County of Essex v. Dana

''Thos. A. McCarter and Wm. M. Evarts'', for plaintiff in error.

Barker Gummere, for defendant in error.

HARLAN, J.


text: Talk:Inhabitants of the Township of Montclair County of Essex v. Dana


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Inhabitants of the Township of Montclair County of Essex v. Dana/Opinion of the Court

The bonds in suit are of the same issue as those involved in Township of Montclair v. Ramsdell, just decided, [ante, 391.]

The cases do not materially differ, except in the circumstances under which the respective plaintiffs became the holders of the township bonds. In this, as in the other case, the township was denied the opportunity to establish certain facts which, it claimed, tended to show fraud or illegality in the inception of the bonds, apart from any question of legislative authority. If it be conceded that the evidence offered and excluded was admissible under the plea of non est factum-which was the only plea to the special counts on the bonds and coupons-and, also, that such evidence tended to show fraud or illegality in their inception, still there was no error in the ruling of the court. For if, as counsel contend, proof of such fraud or illegality WOULD SHIFT THE BURDEN OF PROOF UPON PLAintiff to show how and upon what consideration he came by the bonds, that exigency was met by proof that plaintiff was, in every sense, a bona fide holder for value. That he purchased the bonds for value and without notice of any fraud or illegality upon the part of the commissioners in the exercise of the power conferred by the statute, was so clearly shown that the court below was justified in saying to the jury-as, in effect, it did-that the evidence left no room to dispute the fact. The action of the court, in that respect, was consistent with the rule frequently announced that the jury may be controlled in their determination of a question by a peremptory instruction, if the testimony is of such a conclusive character as would compel the court, in the exercise of a sound legal discretion, to set aside a verdict if one were returned in opposition to such testimony. ''Phoenix Mut. Life Ins. Co. v. Doster'', 1 SUP. CT. REP. 18; Hendricks v. Lindsay, etc., 93 U.S. 146.

All other questions raised by the assignments of error, and which are deemed of any moment, are concluded by the decision in the Ramsdell Case.

The judgment is affirmed.


text: Talk:Inhabitants of the Township of Montclair County of Essex v. Dana/Opinion of the Court


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Russell v. Allen

''Wm. Brown'', for appellants.

''Wm. R. Donaldson and C. H. Krum'', for appellees.

GRAY, J.

title: Russell v. Allen


text: Talk:Russell v. Allen

title: Talk:Russell v. Allen


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Russell v. Allen/Opinion of the Court

This is a bill in equity, filed on the sixteenth of April, 1878, by two of the heirs at law and next of kin of William Russell, of St. Louis, against Thomas Allen, to establish a trust in favor of Russell's heirs at law and next of kin, and for an account.

The bill alleges that on the nineteenth of July, 1855, William Russell and John S. Horner executed four indentures of trust, by each of which Russell, in consideration of one dollar paid, 'and for divers other good and valuable considerations, but chiefly for the purpose of founding an institution for the education of youth in St. Louis county, Missouri,' granted and conveyed to Horner, his executors and administrators or successors, in trust forever, certain lands and personal property in the state of Arkansas, to have and to hold the same unto him, his executors, administrators, and successors, in trust, 'to and for the following uses and purposes, to-wit, the said property is conveyed for the use and benefit of the Russell Institute of St. Louis, Missouri;' and empowered and directed him and them to sell the same as soon as conveniently might be, and to account for and pay over the proceeds yearly or oftener, deducting the reasonable expenses of executing the trust, 'to Thomas Allen, president of the board of trustees of the said Russell Institute at St. Louis, Missouri, and his receipt therefor shall be a full discharge of the said party of the second part for the amount so paid and the application thereof;' and Horner's trust to be brought to a close and the net proceeds paid over as soon as conveniently might be, and if not concluded within 10 years the property remaining undisposed of to be sold by public auction and the proceeds paid over as before required. In each of the four indentures reference was made to the three others, and it was 'declared that all of said conveyances, including this, are made to one and the same person for one and the same use and purpose, and that the same are and are to be deemed and taken and accounted for as one trust, according to the conditions of the deeds respectively, it having been intended by said deeds and this present one to convey all of the remaining property of the said William Russell in the said state of Arkansas to the said party of the second part, to and for the use and benefit of the said Russell Institute of St. Louis, Missouri.' After this clause, in one of the indentures, were added the words 'represented by their president aforesaid.' Each indenture contained a covenant by Horner 'faithfully to perform the trust hereby created.'

The bill further alleges that Horner, in the execution of his trust, has converted a large portion of the property into money, has paid over to Allen the sum of about $50,000, and has conveyed and transferred to Allen the property remaining unsold, and that Allen holds and controls the whole fund, and has never applied to any court for aid in the disposition and application thereof, and has in no way used or recognized the fund as held by him in trust for the uses declared by Russell.

The bill further alleges that there was not at the time of the execution of the indentures aforesaid, nor before or since, any such educational institution as was referred to therein; that at the time of such execution Russell was from paralysis infirm in body and weak in mind, and that, while he then manifestly proposed to found such an institution, yet in his increasing incapacity of body and mind during the short period that intervened between that time and his death he failed to accomplish his philanthropic purpose; that he died in 1856, without ever having founded such an institution, or delegated to Horner or to Allen, or to any other person or corporation, authority to organize a Russell Institute, and that no such authority has hitherto been exercised or claimed by any person or corporation, and there is and has been no donee capable of receiving, holding, and administering the trust fund created by the indentures; that the beneficiaries of the trust, so far as can be determined by the terms of the indentures, are uncertain and indefinite, and the trust is invalid, and, there being no debts outstanding against Russell's estate, the trust fund belongs to his next of kin.

To this bill Allen filed a general demurrer, which was sustained and the bill dismissed. 5 Dill. 235. The plaintiffs appealed to this court. Pending the appeal, Allen has died, and his executors have been made parties in his stead.

The deeds of gift state that they are made 'chiefly for the purpose of founding an institution for the education of youth in St. Louis county, Missouri;' they convey the property to Horner and his successors in trust 'for the use and benefit of the Russell Institute of St. Louis, Missouri;' they direct him to sell the property and account for and pay over the proceeds 'to Thomas Allen, president of the board of trustees of the said Russell Institute of St. Louis, Missouri,' whose receipt shall be a full discharge of Horner; and they end by declaring that all these conveyances shall be deemed taken and accounted for as one trust, and that it is the intention of the donor to convey the property included in all of them 'to and for the benefit of the said Russell Institute of St. Louis, Missouri,' to which one of the deeds adds, 'represented by their president as aforesaid.'

The donor thus clearly manifests his purpose to found an institution for the education of youth in St. Louis, to be called by his name; and he executes this purpose by conveying the property to Horner in trust, to hold and convert into money, and pay that money to the officers of the institute when incorporated and a board of trustees appointed. The direction to pay the money to Allen, as president of the board of trustees, and the mention, at the close of one of the deeds, of the institute as represented by its president as aforesaid, clearly show that the fund is not to be paid to Allen individually; and while they imply the donor's wish that Allen should be the first president of the board of trustees of the institute, they do not make his appointment to and acceptance of that office a condition of the validity of the gift or of the carrying out of the donor's charitable purpose. The terms of the deeds clearly show that the donor did not contemplate or intend doing any further act to perfect his gift. It is not pretended that the allegations in the bill as to his weakness of body and mind amount to an allegation of insanity, and they are irrelevant and immaterial.

The principal grounds upon which the plaintiffs seek to maintain their bill are that the deeds create a perpetuity; that the uses declared are not charitable; and that, if the uses are charitable, there are no ascertained beneficiaries, and no donee capable of assuming and administering the trust, and the uses are too indefinite to be specifically executed by a court of chancery. But these positions, as applied to the facts of the case, are inconsistent with the fundamental principles of the law of charitable uses, as established by the decisions of this and other courts exercising the ordinary jurisdiction in equity.

By the law of England from before the statute of 43 Eliz. c. 4, and by the law of this country at the present day, (except in those states in which it has been restricted by statute or judicial decision, as in Virginia, Maryland, and more recently in New York,) trusts for public charitable purposes are upheld under circumstances under which private trusts would fail. Being for objects of permanent interest and benefit to the public, they may be perpetual in their duration, and are not within the rule against perpetuities; and the instruments creating them should be so construed as to give them effect if possible, and to carry out the general intention of the donor, when clearly manifested, even if the particular form or manner pointed out by him cannot be followed. They may, and indeed must, be for the benefit of an indefinite number of persons; for if all the beneficiaries are personally designated, the trust lacks the essential element of indefiniteness, which is one characteristic of a legal charity. If the founder describes the general nature of a charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery; and an omission to name trustees, or the death or declination of the trustees named, will not defeat the trust, but the court will appoint new trustees in their stead.

The previous adjudications of this court upon the subject of charitable uses go far towards determining the question presented in this case. As the extent and effect of these adjudications have hardly been appreciated, it will be convenient to state the substance of them.

The case of Baptist Association v. Hart, 4 Wheat. 1, in which a bequest by a citizen of Virginia 'to the Baptist Association that for ordinary meets at Philadelphia annually,' as 'a perpetual fund for the education of youths of the Baptist denomination who shall appear promising for the ministry,' was declared void, was decided upon an imperfect survey of the early English authorities, and upon the theory that the English law of charitable uses, which, it was admitted, would sustain the bequest, had its origin in the statute of Elizabeth, which had been repealed in Virginia. That theory has since, upon a more thorough examination of the precedents, been clearly shown to be erroneous. Vidal v. Girard, 2 How. 127; Perin v. Carey, 24 How. 465; Ould v. Washington Hospital, 95 U.S. 303. And the only cases in which this court has followed the decision in Baptist Association v. Hart have, like it, arisen in the state of Virginia, by the decisions of whose highest courts charities, except in certain cases specified by statute, are not upheld to any greater extent than other trusts. Wheeler v. Smith, 9 How. 55; Kain v. Gibboney, 101 U.S. 362.

In Beatty v. Kurtz, 2 Pet. 566, the owners of a tract of land (afterwards part of Georgetown) laid it out as a town, and made and recorded a plan of it, marking one lot as 'for the Lutheran church;' and the Lutherans of the town, a voluntary society not incorporated, erected and used a building upon this lot as a church for public worship, and fenced in and used the land as a church-yard, for the burial of others as well as of Lutherans, for 50 years. Upon these facts it was held that the bill of rights of Maryland, affirming the validity of any sale, gift, lease, or devise of land, not exceeding two acres, for a church and burying-ground, recognized, to this extent at least, the doctrine of charitable uses, under which no specific grantee or trustee was necessary; that this land had been dedicated to a charitable and pious use, beneficial to the inhabitants generally, which might at all times have been enforced through the intervention of the government as parens patrice, by its attorney general or other law officer; and that a committee of the society might maintain a bill in equity to restrain by injunction the heirs of the original owners from disturbing that use.

In Inglis v. Sailors' Snug Harbor, 3 Pet. 99, a citizen of New York devised land to the chancellor of the state, the mayor of the city, and others, designating them all by their official titles only, and to their respective successors, in trust out of the rents and profits to build a hospital for aged, decrepid, and worn-out sailors, as soon as the trustees should judge that the proceeds would support 50 such sailors, and to maintain the hospital and support sailors therein forever; and further declared it to be his will and intention that if this could not be legally done without an act of incorporation, the trustees should apply to the legislature for such an act, and that the property should at all events be forever appropriated to the above uses and purposes. An act incorporating the trustees was passed and the hospital was established. A majority of the court held that the trustees took personally and not in their official capacities, and that upon their incorporation the legal title vested by way of executory devise in the corporation as against the heirs at law; and the dissenting judges differed only as to the legal title, and not as to the validity of the charitable trust.

In McDonogh v. Murdoch, 15 How. 367, a citizen of Louisiana, declaring his chief object to be the education of the poor of the cities of New Orleans and Baltimore, made a devise and bequest to the two cities, one-half to each, the income to be applied by boards of managers, who should be appointed by either city, but whose powers and duties he defined, and who should obtain acts of incorporation, if necessary, for the education of the poor and other charitable purposes in various ways specified. And in case the two cities should combine together and knowingly and willfully violate the conditions, then he gave the whole property to the states of Louisiana and Maryland, in equal halves, 'for the purpose of educating the poor of said states under such a general system of education as their respective legislatures shall establish by law.' The court held that the devise to the cities was valid, and that the testator's directions as to the management of the income 'must be regarded as subsidiary to the general objects of his will, and whether legal and practicable, or otherwise, can exert no influence over the question of its validity;' and expressed the opinion that the failure of the devise to the cities would not have benefited the heirs at law, for in that event the limitation over to the states of Louisiana and Maryland would have been operative. 15 How. 404, 415.

In Fontain v. Ravenel, 17 How. 369, a testator, residing at the time of his death in Pennsylvania, appointed his wife and three others to be executors of his will, and authorized his executors, or the survivor of them, after the death of his wife, to dispose of the residue of his estate 'for the use of such charitable institutions in Pennsylvania or South Carolina as they or he may deem most beneficial to mankind, and so that part of the colored population in each of the said states of Pennsylvania and South Carolina shall partake of the benefits thereof.' In that case, the testator had not himself defined the nature of the charitable uses, nor authorized any one but his executors to designate them; and the point decided was that, they having all died without doing so, the circuit court of the United States for the district of Pennsylvania could not sustain a bill to establish them, filed by charitable institutions in Pennsylvania and South Carolina in the name of the administrator de bonis non and next of kin of the testator. The question there was, whether the authority of a court of chancery, under such circumstances, belonged to its ordinary jurisdiction over trusts, or to its prerogative power under the sign manual of the crown, which last has never been introduced into this country. See Boyle, Charities, 238, 239; Jackson v. Phillips, 14 Allen, 539, 576, 588. No question of the validity of the gift as against the next of kin was presented; and even Chief Justice TANEY, who, differing from the rest of the court, alone asserted that 'if the object to be benefited is so indefinite and so vaguely described that the bequest could not be supported in the case of an ordinary trust, it cannot be established in a court of the United States upon the ground that it is a charity,' distinctly admitted that a suit by an heir or representative of the testator to recover property or money bequeathed to a charity could not be maintained in a court of the United States if the bequest was valid by the law of the state. 17 How. 395, 396. Accordingly, in Lorings v. Marsh, 6 Wall. 337, the court dismissed a bill by the next of kin to set aside a bequest by a citizen of Massachusetts 'in trust for the benefit of the poor,' by means of such incorporated charitable institutions as should be designated by three persons appointed by the trustees or their successors; such a bequest being valid under the law of Massachusetts as habitually administered in her courts.

In U.S. v. Fox, 94 U.S. 315, this court, affirming the judgment of the court of appeals of New York in 52 N. Y. 530, held a devise of land in New York to the United States, for the purpose of assisting to discharge the debt contracted by the war for the suppression of the rebellion, to be invalid, solely because by the law of New York, as declared by recent decisions of the court of appeals, none but a natural person, or a corporation created by that state with authority to take by devise, could be a devisee of land in that state. Where not prohibited by statute, a devise or bequest for such a purpose is a good charitable gift. Nightingale v. Goulburn, 5 Hare, 484, and 2 Phil. 594; Dickson v. U.S. 125 Mass. 311.

In Ould v. Washington Hospital, 95 U.S. 303, a citizen of Washington devised land in the District of Columbia to two persons named, in trust to hold it 'as and for a site for the erection of a hospital for foundlings,' to be built by a corporation to be established by act of congress and approved by the trustees or their successors, and, upon such incorporation, to convey the land to the corporation in fee. It was contended for the heirs at law that the devise was void, because it was to a corporation to be established in the future, and might not take effect within the rule against perpetuities, and because of the uncertainty of the beneficiaries; and reference was made to the Maryland statute of wills of 1798, still in force in the District of Columbia, providing that no will should 'be effectual to create any interest or perpetuity, or make any limitation, or appoint any uses, not now permitted by the constitution or laws of the state,' and to a series of decisions in Maryland, holding that the statute of Elizabeth was not in force in that state, and that charitable uses were there governed by the same rules as private trusts. But those decisions having been made since the separation of the District of Columbia from the state of Maryland, the court held that the case must be determined upon general principles of jurisprudence, and that the devise was valid.

The objection to the validity of the gift before us, as tending to create a perpetuity, is fully met by the cases of Inglis v. Sailors' Sung Harbor, McDonogh v. Murdoch, and Ould v. Washington Hospital, above cited, which clearly show that a gift in trust for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain, or which is to take effect upon a contingency that may possibly not happen within a life or lives in being and 21 years afterwards, is valid, provided there is no gift of the property meanwhile to or for the benefit of any private corporation or person. Those cases are in accord with English decisions of the highest authority, of which it is sufficient to refer to the leading case of Downing College, reported under the name of Atty. Gen. v. Downing in Wilmot, 1, Dickens, 414, and Ambler, 550, 571, and under the name of Atty. Gen. v. Bowyer in 3 Ves. 714, 5 Ves. 300, and 8 Ves. 256; and to the recent case of Chamberlayne v. Brockett, L. R. 8 Ch. 206. See, also, Sanderson v. White, 18 Pick. 328, 336; Odell v. Odell, 10 Allen, 1.

That the gift is for a charitable use cannot be doubted. All gifts for the promotion of education are charitable, in the legal sense. The Smithsonian Institution owes its existence to a bequest of James Smithson, an Englishman, 'to the United States of America, to found at Washington, under the name of the Smithsonian Institution, an establishment for the increase and diffusion of knowledge among men.' See Acts of Congress of 1st July, 1836, c. 252; 10th August, 1846, c. 178. This was held by Lord LANGDALE, master of the rolls, in U.S. v. Drummond, decided in 1838, to be a good charitable bequest. The decision on this point is not contained in the regular reports, but appears by the letters of Mr. Rush, then minister to England, (printed in the Documents relating to the Origin and History of the Smithsonian Institution, pulished by the institution in 1879,) to have been made after full argument in behalf of the United States by Mr. Pemberton (afterwards Mr. Pemberton Leigh and Lord Kingsdown) and on deliberate consideration by the master of the rolls. History of Smithsonian Institution, 15, 19, 20, 56, 58, 62. And it was cited as authoritative in Whicker v. Hume, 7 H. L. Cas. 124, 141, 155, in which the house of lords held that a bequest in trust to be applied, in the discretion of the trustees, 'for the benefit and advancement and propagation of education and learning in every part of the world, as far as circumstances will permit,' was a valid charitable bequest, and not void for uncertainty.

'Schools of learning, free schools, and scholars in universities,' are among the charities enumerated in the statute of Elizabeth; and no trusts have been more constantly and uniformly upheld as charitable than those for the establishment or support of schools and colleges. Perry, Trusts, § 700. That the gift 'for the purpose of founding an institution for the education of youth in St. Louis county, Missouri,' to be managed by a board of trustees, is sufficiently definite, is shown by the decisions of this court in Perin v. Curey, and Ould v. Washington Hospital, above cited, as well as by that of the house of lords in Dundee Magistrates v. Morris, 3 Macq. 134.

The law of Missouri, as declared by the supreme court of that state, sustains the validity of this gift. In Chambers v. St. Louis, 29 Mo. 543, a devise and bequest to the city of St. Louis, in trust 'to be and constitute a fund to furnish relief to all poor emigrants and travelers coming to St. Louis on their way bona fide to settle in the west,' which was objected to for indefiniteness in the object, as well as for want of capacity in the trustee to take, was held to be valid. And in Schmidt v. Hess, 60 Mo. 591, a grant of a parcel of land to the Lutheran church for a burial-ground was held to be a valid charitable gift, which equity would execute by compelling a conveyance to the trustees of a church which was proved to be the church intended by the testator, although it was not incorporated at the time of the gift. We have been referred to nothing having any tendency to show that the law of Arkansas, in which the lands granted lie, is different.

The money paid and the lands conveyed by Horner to Allen stand charged in the hands of Allen and his executors with the same charitable trust to which they were subject in the hands of Horner.

Steps to organize such an institution as is described in the deeds may be taken either by the attorney general, or other public officer of the state, or by individuals. Whenever an institute for the education of youth in St. Louis shall have been incorporated and shall claim the property, it will then be a matter for judicial determination in the proper tribunal whether it meets the requirements of the gift. The only question now presented is of the validity of the gift as against the donor's heirs at law and next of kin. Decree affirmed.

title: Russell v. Allen/Opinion of the Court


text: Talk:Russell v. Allen/Opinion of the Court


text:
Jones v. Habersham

W. W. Montgomery, for appellants.

W. S.C.hishom, A. R. Lawton, and Charles C. Jones, Jr., for appellees.

GRAY, J.

This a bill in equity, by the heirs at law, and next of kin of Miss Mary Telfair, of Savannah, against the executors of her will, and the devisees and legatees named therein, to have the devises and bequests adjudged void, and a resulting trust declared in favor of the plaintiffs. The will, which was executed the day before the testatrix died, and was afterwards admitted to probate in the court of appropriate jurisdiction of the state of Georgia, disposed of property amounting to more than $650,000, contained many devises and bequests to individuals and to charitable objects, and appointed the executors of the will trustees under its provisions. The defendants filed a general demurrer. The opinion delivered by Mr. Justice BRADLEY, in the circuit court, sustaining the demurrer and dismissing the bill, is reported in 3 Woods, 443.

title: Jones v. Habersham


text: Talk:Jones v. Habersham

title: Talk:Jones v. Habersham


text:
Jones v. Habersham/Opinion of the Court

The plaintiffs, in the first place, contend that by the twenty-second clause of the will all the devises and bequests, as well those to private persons as those for charitable purposes, are brought within the rule against perpetuities, by which every devise or bequest is void which may by possibility not take effect within a life or lives in being and 21 years afterwards. That clause is as follows:

'Twenty-second. It is my wish, and I hereby so direct, that     none of the legacies, bequests, and devises in any of the      clauses of this my will shall be executed or take effect      until the building and other improvements on the lot on the      corner of Gaston and Whittaker streets, and known as the      Hodgson Memorial Hall, which I have conveyed in trust to the      Georgia Historical Society, shall be completed and entirely      paid for out of my estate.'

The bill, which was filed nearly four years after the death of the testatrix, alleges, and the demurrer admits, that the building and other improvements referred to were in course of construction at the time of her death, but were not completed until many months thereafter, but whether they were yet entirely paid for the plaintiffs were not certainly informed, and that, if not paid for, it was the only debt known to them now existing against the estate.

Reading the twenty-second clause in connection with the other parts of the will, and in the light of the attending facts, it is quite clear that the words 'take effect' are used by the testatrix as synonymous with or equivalent to the word 'executed,' with which they are coupled, and not as signifying that the devises and bequests shall not vest immediately, but only that they shall not be paid or carried out until the debt contracted by the testatrix for the construction of the Hodgson Memorial Hall shall have been paid out of her estate. Each devise and bequest is present and immediate in form, introduced by the words 'I give, devise, and bequeath.' The bill shows that the building and improvements referred to were, at the time of the death of the testatrix, in the course of construction, and so far advanced that they were actually completed within some months afterwards, so that the probable cost must have been capable of estimation at the time of the making of the will. The twenty-second clause is but a declaration of what the law would require, that the debt of the testatrix for the construction of the memorial hall must be first paid out of her estate before her devisees and legatees receive any benefit therefrom.

The next objection, which touches all the devises to charitable purposes, is based on the following provision of the Code of Georgia of 1873:

'Sec. 2419. No person leaving a wife or child, or descendants     of child, shall by will devise more than one-third of his      estate to any charitable, religious, educational, or civil      institution, to the exclusion of such wife or child; and in      all cases the will containing such devise shall be executed      at least 90 days before the death of the testator, or such      devise shall be void.'

The plaintiffs contend that the latter part of this section applies to every will containing a charitable devise, whether the testator does or does not leave a wife or child or the descendants of a child; and that, therefore, although this testatrix left no issue and had never been married, yet the will having been executed less than 90 days before her death, the charitable devises contained therein are void.

In support of this position reference is made to cases in the courts of New York and Pennsylvania. Harris v. Slaght, 46 Barb. 470; S.C.. ''nom. Harris v. American Bible Society'', 2 Abb. (N. Y.) App. 316; Lefevre v. Lefevre, 59 N. Y. 434; Price v. Maxwell, 28 Pa. St. 23; McLean v. Wade, 41 Pa. St. 266; Miller v. Porter, 53 Pa. St. 292; Rhymer's Appeal, 93 Pa. St. 142. But the statutes under which those cases were decided were quite different from that of Georgia.

The enactment in New York formed part of an act for the incorporation of charitable societies, and is as follows:

'Any corporation formed under this act shall be capable of     taking, holding, or receiving any property, real or personal,      by virtue of any devise or bequest contained in any last will      or testament of any person whatsoever, the clear annual      income of which devise or bequest shall not exceed the sum of      $10,000: provided, no person leaving a wife, or child, or      parent, shall devise or bequeath to such institution or      corporation more than one-fourth of his or her estate, after      the payment of his or her debts, and such devise or bequest      shall be valid to the extent of such one-fourth; and no such      devise or bequest shall be valid in any will which shall not      have been made and executed at least two months before the      death of the testator.' St. N. Y. (1848,) c. 319, § 6; 2 N.      Y. Rev. St. (Ed. 1859,) c. 18, tit. 7, § 6. The leading     clause of that section, to which the last clause of the same      section was held to relate, and which is wholly omitted in      the Georgia statute, spoke of devises and bequests to      charitable corporations 'contained in any last will or      testament of any person whatsoever.'

The provision of the corresponding, statute of Pennsylvania was still plainer, for it did not mention wife or child at all, but enacted in the most positive words that—

'No estate, real or personal, shall hereafter be bequeathed,     devised, or conveyed to any body politic, or to any person,      in trust for religious or charitable uses, except the same be      done by deed or will, attested by two credible, and, at the      time, disinterested witnesses, at least one calendar month      before the decease of the testator or alienor; and all      dispositions of property contrary hereto shall be void, and      go to the residuary legatee or devisee, next of kin, or      heirs, according to law: provided, that every disposition of      property within said period, bona fide made for a fair      valuable consideration, shall not be hereby avoided.' St. Pa. (1855,) c. 347, § 11; Purdon, Dig. (10th Ed.) 208.

But in the provision on which the appellants rely, which is inserted in the chapter on wills of the Code of Georgia, and is the only provision as to charitable devises contained in that chapter, the leading clause is limited to the will of a person, leaving a wife or child or descendents of a child, containing a devise to a charitable institution to the exclusion of such wife or child; and the words in the subsequent clause, 'in all cases the will containing such devise,' naturally, if not necessarily, refer to a will containing a devise to such an institution by a person leaving a wife or issue. The provision has been so construed by the supreme court of Georgia in a case decided in 1867, and again in 1878 in the case of this very will. Reynolds v. Bristow, 37 Ga. 283; Wetter v. Habersham, 60 Ga. 193, 194, 203. It is suggested by the learned counsel for the appellants that what was said upon this point in each of those cases was obiter dictum, because the question at issue was not of the construction or effect of the will, but only whether it should be admitted to probate. But the reports clearly show that the court considered that the question whether the will was illegal and void, so far as regarded the charitable devises, because in contravention of this statute, was presented for adjudication upon the offer of the whole will for probate.

The separate objections taken to the several charitable devises and bequests remain to be considered.

According to the uniform course of the decisions of this court, the validity of these devises, as against the heirs at law, depends upon the law of the state in which the lands lie, and the validity of the bequests, as against the next of kin, upon the law of the state in which the testatrix had her domicile. Vidal v. Girard, 2 How. 127; Wheeler v. Smith, 9 How. 55; McDonogh v. Murdoch, 15 How. 367; Fontain v. Ravenel, 17 How. 369, 384, 394; Perin v. Carey, 24 How. 465; Lorings v. Marsh, 6 Wall. 337; U.S. v. Fox, 94 U.S. 315; Kain v. Gibboney, 101 U.S. 362; Russell v. Allen, ante, 327.

The Code of Georgia of 1873 contains the following provisions on the subject of charitable uses:

'Sec. 2468. A devise or bequest to a charitable use will be     sustained and carried out in this state; and in all cases      where there is a general intention manifested by the testator      to effect a certain purpose, and the particular mode in which he directs it to be      done fails from any cause, a court of chancery may, by      approximation, effectuate the purpose in a manner most      similar to that indicated by the testator.'

'Sec. 3155. Equity has jurisdiction to carry into effect the     charitable bequest of a testator, or founder, or donor, where      the same are definite and specific in their objects, and      capable of being executed.

'Sec. 3156. If the specific mode of execution be for any     cause impossible, and the charitable intent be still manifest      and definite, the court may, by approximation, give effect in      a manner next most consonant with the specific mode      prescribed.

'Sec. 3157. The following subjects are proper matters of     charity for the jurisdiction of equity: (1) The relief of      aged, impotent, diseased, or poor people; (2) every      educational purpose; (3) provisions for religious instruction      of worship; (4) for the construction or repair of public      works, or highways, or other public conveniences; (5) the      promotion of any craft or persons engaging therein; (6) for      the redemption or relief of prisoners or captives; (7) for      the improvement or repair of burying-grounds or tombstones;      (8) other similar subjects, having for their object the      relief of human suffering, or the promotion of human      civilization.

'Sec. 3158. A charity once inaugurated is always subject to     the supervision and direction of a court of equity, to render      effectual its purpose and object.'

These provisions were evidently enacted to clear up the doubts created by previous conflicting decisions and opinions of the supreme court of Georgia. Beall v. Fox, 4 Ga. 404; ''Am. Col. Soc. v. Gartrell, 23 Ga. 448; Walker v. Walker, 25 Ga. 420; Beall v. Drane'', 25 Ga. 430. They show, as was well observed by Mr. Justice BRADLEY in the circuit court, 'that the law of charities is fully adopted in Georgia, as far as is compatible with a free government where no royal prerogative is exercised.' 3 Woods, 469. And such had been the construction given to the corresponding sections of the Code of 1865 by the supreme court of the state in a well-considered judgment, in which it was held that charitable bequests, the general objects of which the testator had pointed out, or fixed any means for pointing out, were sufficiently 'definite and specific in their objects, and capable of being executed,' under the provisions of the Code and the ordinary jurisdiction of courts of chancery; and therefore that a bequest to a county court of a sum of money to be placed in the hands of four men, who were to give security, and lend out the principal, and pay over the interest annually to that court, 'to pay for the education of poor children belonging to the county,' was a good charitable bequest. Newson v. Starke, 46 Ga. 88.

In the will before us, the first of the devises to charitable uses is as follows:

'Tenth. I hereby give, devise, and bequeath to the trustees     of the Independent Presbyterian Church of the city of      Savannah all that full lot of land in the city of Savannah on      the south-west corner of Broughton and Bull streets, with the      buildings and improvements thereon, to have and to hold the      same on the following terms and conditions, and not      otherwise, to-wit: First. That the trustees of the said     Independent Church shall appropriate annually, out of the      rents and profits of said lot and improvements, the sum of      $1,000 to one or more Presbyterian or Congregational churches      in the state of Georgia, in such destitute and needy      localities as the proper officers of said Independent      Presbyterian Church may select, so as to promote the cause of      religion among the poor and feeble churches of the state. Second. This gift and devise is made on the further     condition that neither the trustees nor any other officer of      said Independent Presbyterian Church will have or authorize      any material alteration or change made in the pulpit or      galleries of the present church edifice on the corner of Bull      and South Broad streets, but will permit the same to remain      substantially as they are, subject only to proper repairs and      improvements; nor shall they sell or alien the lot on which      the Sabbath school room of said church now stands, but shall      hold the same to be improved in such manner as the trustees      or pew-holders may direct. Third. Upon the further condition     that the trustees of said Independent Presbyterian Church      will keep in good order, and have thoroughly cleaned up every      spring and autumn, my lot in the cemetery of Bonaventure, and      that no interment or burial of any person shall ever take      place either in the vault or within the inclosure of said      lot; and for the purpose of having the same protected and      cared for, I hereby give, devise, and bequeath my said lot in      the Bonaventure cemetery to the trustees of the Independent      Presbyterian Church and their successors.' The act of the legislature of Georgia, of the eighth of December, 1806, incorporating the trustees of the Presbyterian Church of the City of Savannah, (whose name, by a subsequent act of the sixteenth of May, 1821, has been changed to that by which they are called in the will,) provides, in section 2, that they 'and their successors in office shall be invested with all manner of property, real and personal, all moneys due and to grow due, donations, gifts, grants, privileges, and immunities whatsoever, which shall or may belong to said Presbyterian church at the time of the passing of this act, or which shall or may at any time or times hereafter be granted, given, conveyed. or transferred to them, or their successors in office, to have and to hold the same to the said trustees, and their successors in office, to the only proper use, benefit, and behoof of the said church forever;' in section 4, that 'nothing herein contained shall be construed to vest in the said trustees any right or title to any estate or property whatsoever, real or personal, other than such as doth, or may rightfully and lawfully, belong to the said Presbyterian church, or congregation, hereby made a body corporate;' and in section 5, that 'it shall not be lawful for said trustees, or their successors in office, at any time or times hereafter, to grant, bargain, sell, alien, or convey any real estate whatsoever, belonging to the said church, to any person or persons, under any pretense or upon any consideration whatsoever, so as to dispose of the fee-simple thereof.'

It is objected that this corporation is not empowered under its charter to accept and administer this charity. But it is a novel proposition, as inconsistent with the rules of law as it is with the dictates of religion, that a Christian church or religious society cannot receive and distribute money to poor churches of its own denomination so as to promote that cause of religion in the state in which it is established. To hold this gift to be too indefinite and uncertain would be to disregard the elementary principles of the law of charitable uses. The appropriation of a certain sum annually to one or more churches of a certain denomination in such destitute and needy localities as the trustees may select, so as to promote the cause of religion among the poor and feeble churches of the state, describes the general nature of the charitable purpose, while leaving the selection of the particular objects to the trustees, and is a good charitable use, sufficiently defined. Bartlett v. King, 12 Mass. 537; Going v. Emery, 16 Pick. 107; North Adams Universalist Society v. Fitch, 8 Gray, 421.

The other objections to the validity of this devise are equally unavailing. The condition that no material alteration or change, but only proper repairs and improvements, shall be made in the pulpit or galleries of the present church, (even if illegal, which we see no reason for supposing,) is a condition subsequent, relating to the care and use of the property after the gift shall have vested in the devisee, and cannot, therefore, affect the original validity of the gift.

The condition that the trustee shall not alienate the land on which the school-room stands is also a condition subsequent, and is in accordance with the fifth section of their charter and with the general law upon the subject. It will not prevent a court of chancery from permitting, in case of necessity arising from unforeseen change of circumstances, the sale of the land and the application of the proceeds to the purposes of the trust. Tudor, Char. Trusts, (2d Ed.) 298; Stanley v. Colt, 5 Wall. 119, 169.

The conditions as to the care and keeping of the tomb or burial-place of the testatrix is likewise a condition subsequent, and, even if invalid, would not defeat the charitable gift. Giles v. Boston Fatherless & Widows' Society, 10 Allen, 355. In England there has been a difference of opinion upon the question whether the maintenance and repair of the tomb or monument of the donor is a good charitable use. Down to the time of the American revolution, as by the civil law, it appears to have been held that it was. 3 Inst. 202; Masters v. Masters, 1 P. Wms. 421, 423, and note; Durour v. Motteux, 1 Ves. Sr. 320; Gravenor v. Hallum, Amb. 643; Boyle, Char. 45-51; Just. Inst. lib. 2, tit. 1, §§ 8, 9; Dig. 11, 7, 2, 5; 47, 12, 3, 2. According to the later English cases it is not. Doe v. Pitcher, 3 Maule & S. 407; Same v. Same, 6 Taunt. 359; S.C.. 2 Marsh. 61; Willis v. Brown, 2 Jur. 987; Hoare v. Osborne, L. R. 1 Eq. 585; Fiske v. Atty. Gen. L. R. 4 Eq. 521; In re Birkett, 9 Ch. Div. 576. See, also, Dexter v. Gardner, 7 Allen, 243, 247. But it is unnecessary to examine and weight these conflicting authorities, or to determine whether the devise of the burial-place of the testatrix and the direction to keep it in good order could be upheld in the absence of local statute, because they are clearly valid under the Code of Georgia, which enumerates among charitable uses 'the improvement or repair of burying-grounds or tombstones.' Code Ga. 1873, § 3157, cl. 7.

The eleventh clause of the will contains a devise to the Union So. ciety of Savannah of a parcel of land in that city, with the buildings and improvements thereon, 'but on the express condition that said society shall not sell or alienate said lot, but shall use and appropriate the rents and profits of the same for the support of the school and charities of said institution, without said lot being at any time liable for the debts or contracts of said society.' The Union Society was incorporated by a statute of the fourteenth of August, 1786, 'for the relief of distressed widows, and the schooling and maintaining of poor children.'

The twelfth clause devises to the Widows' Society of Savannah another parcel of land in that city, 'on which the improvements now consist of four brick tenement buildings, the rents and profits of the same to be appropriated to the benevolent purposes of said society, but this devise is made on condition the said Savannah Widows' Society shall not sell or alienate said lot or improvements, nor hold the same subject to the debts, contracts, or liabilities of said society.' The widows' society was incorporated, as stated in the title and repeated in the body of its charter granted in 1837, 'for the relief of indigent widows and orphans in the city of Savannah.'

'The relief of aged, impotent, and poor persons' is within the very words of the statute of 43 Eliz. c. 4, § 1, and of the Code of Georgia of 1873, § 3157; and all educational purposes are within the terms of that Code, and within the scope and principle of the statute of Elizabeth. Russell v. Allen, supra. The fact that the gift to the widows' society is directed 'to be appropriated to the benevolent purposes of said society' does not affect its validity, because the charter of the society shows that all its purposes are charitable, in the legal sense. It is only when a gift might be applied to benevolent purposes which are not charitable in that sense, that the gift fails. Saltonstall v. Sanders, 11 Allen, 446; Suter v. Hilliard, 132 Mass. 412; De Camp v. Dobbins, 2 Stew. (N. J.) 36; Adye v. Smith, 44 Conn. 60; In re Jarman's Estate, 8 Ch. Div. 584. The conditions subsequent have no greater effect than the corresponding conditions in the tenth clause, already considered.

The next clause of the will contains a provision applicable to the tenth, eleventh, and twelfth clauses, and is as follows:

'Thirteenth. Should either one or more of the corporate     bodies or institutions named in the preceding items of my      will attempt to sell, alienate, or otherwise dispose of the      property and estate therein devised, contrary to the terms      and conditions therein set forth, or should there be any levy      on the same to satisfy the debts of said corporation, then I      hereby direct my executors or legal representatives to      repossess and enter upon said property or estate as to which      the conditions may be so broken or violated, and in that      event I do hereby give and devise the said property so      entered upon and repossessed unto the Savannah Female Orphan      Asylum.'

There is nothing in this clause by which the heirs at law or next of kin can be benefited in any possible view. If the conditions against voluntary alienation and levy of execution are invalid, the previous devises stand good. If those conditions are valid, the devise over to the Savannah Female Orphan Asylum, an undoubted charity, will take effect; for as the estate is no more perpetual in two successive charities than in one charity, and as the rule against perpetuities does not apply to charities, it follows that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may or may not take place within the limit of that rule, the limitation over to the second charity is good. Christ's Hospital v. Grainger, 16 Sim. 84, 100; 1 Macn. & G. 460; 1 Hall & T. 533; McDonogh v. Murdoch, 15 How. 367, 412, 415; Russell v. Allen, supra.

The fourteenth clause of the will contains a devise and bequest to the Georgia Historical Society to establish a public library and museum, and is as follows:

'Fourteenth. I hereby give, devise, and bequeath to the     Georgia Historical Society and its successors all that lot or      parcel of land, with the buildings and improvements thereon,      fronting on St. James square, in the city of Savannah, and      running back to Jefferson street, known in the plan of said      city as lot letter N, Heathcote ward, the same having been      for many years past the residence of my family, together with      all my books, papers, documents, pictures, statuary, and      works of art, or having relation to art or science, and all      the furniture of every description in the dwelling-house and      on the premises, (except bedding and table service, such as      china, crockery, glass, cutlery, silver, plate, and linen,)      and all fixtures and attachments to the same; to have and to      hold the said lot and improvements, books, pictures,      statutory, furniture, and fixtures to the said Georgia      Historical Society and its successors, in special trust, to      keep and preserve the same as a public edifice for a library      and academy of arts and sciences, in which the books,      pictures, and works of art herein bequeathed, and such others      as may be purchased out of the income, rents, and profits of      the bequest hereinafter made for that purpose, shall be      permanently kept and cared for, to be open for the use of the      public on such terms and under such reasonable regulations as      the said Georgia Historical Society may from time to time      prescribe; but this devise and bequest is made upon condition      that the Georgia Historical Society shall cause to be placed      and kept, over and against the front porch or entrance of the      main building on said lot, a marble slab or tablet, on which      shall be cut or engraved the following words, to-wit,      'TELFAIR ACADEMY OF ARTS AND SCIENCES,' the word 'Telfair'      being in larger letters and occupying a separate line above      the other words; and on the further condition that no part of      the buildings shall ever be occupied as a private residence      or rented out for money, and none but a janitor and such      other persons as may be employed to manage and take care of      the premises shall occupy or reside in or upon the same, and      that no part of the same shall be used for public meetings or      exhibitions, or for eating, drinking, or smoking, and that no      part of the lot or improvements shall ever be sold,      alienated, or incumbered, but the same shall be preserved for      the purposes herein set forth. And it is my wish that     whenever the walls of the building shall require renovating      by paint or otherwise, the present color and design shall be      adhered to as far as practicable. For the purpose of providing more effectually     for the accomplishment of the objects contemplated in this      item or clause of my will, I hereby give, devise, and      bequeath to the Georgia Historical Society and its successors      one thousand shares of the capital stock of the Augusta &      Savannah Railroad of the state of Georgia, in special trust,      to apply the dividends, income, rents, and profits, arising      from the same, to the repairs and maintenance of said      buildings and premises, and the payment of all expenses      attendant upon the management and care of the institution      herein provided for, and then to apply the remaining income,      rents, and profits in adding to the library, and such works      of art and science as the proper officers of the Georgia      Historical Society may select, and in the preservation and      proper use of the same, so as to carry into effect in good      faith the objects of this devise and bequest.'

The Georgia Historical Society was incorporated by a statute of the nineteenth of December, 1839, the preamble of which recites that 'the members of a society instituted in the city of Savannah for the purpose of collecting, preserving, and diffusing information relating to the history of the state of Georgia in particular, and of American history generally, have applied for an act of incorporation.' The first section makes them a corporation with the usual powers, and especially 'to purchase, take, receive, hold, and enjoy, to them and their successors, any goods and chattels, lands and tenements, and to sell, lease, or otherwise dispose of the same, or any part thereof, at their will and pleasure: provided, that the clear annual income of such real and personal estate shall not exceed the sum of $5,000; and provided, also, that the funds of the said corporation shall be used and appropriated to the purposes stated in the preamble of this act, and those only.' And the fourth section declares that the act of incorporation shall be a public act, 'and shall be construed benignly and favorably for every beneficial purpose therein intended.'

It is stated in the bill, and admitted by the demurrer, that the net income of the Georgia Historical Society, from property held by it at the time of the death of the testatrix, was between three and four thousand dollars, and that the income of the property now bequeathed to it will add $7,000 to that income. It is argued for the appellants that because the effect of the gift will be to increase the property of the corporation to double the amount which the corporation is allowed by the proviso in the first section in the charter to hold, the whole gift is void.

But there are two conclusive answers to this argument: (1) Restrictions imposed by the charter of a corporation upon the amount of property that it may hold cannot be taken advantage of collaterally by private persons, but only in a direct proceeding by the state which created it. Runyan v. Coster, 14 Pet. 122, 131; Smith v. Sheeley, 12 Wall. 358, 361; Bogardus v. Trinity Church, 4 Sandf. Ch. 633, 758; De Camp v. Dobbins, 2 Stew. (N. J.) 36; Davis v. Old Colony R. Co. 131 Mass. 258, 273. (2) By an act of amendment of the twenty-eighth of October, 1870, the provisos in the first section of the original charter are repealed. It is contended that the act of 1870 is unconstitutional and void, as being a grant by the legislature of corporative powers and privileges, in contravention of this provision in the constitution of the state: 'The general assembly shall have no power to grant corporate powers and privileges to private companies, except to banking, insurance, railroad, canal, navigation, mining, express, lumber, manufacturing, and telegraph companies; nor to make or change election precincts; nor to establish bridges or ferries; nor to change names of legitimate children; but it shall prescribe by law the manner in which such powers shall be exercised by the courts.' Const. Ga. (1868,) art. 3, sec. 6, § 5; Code 1873, § 5068. But the words 'corporate powers and privileges,' as here used, signify the corporate franchise,-the aggregate powers and privileges which constitute a corporation,-not every separate power and privilege which may be conferred upon a corporate body. The object is to take away from the legislature and to vest in the courts, under its direction for the future, the creation of private corporations for literary, religious, charitable or other purposes, except those specially excepted; but not to prevent the legislature from amending the charters of corporations already existing, and modifying or enlarging their powers, either by repealing former restrictions or otherwise. The act of 1870 is therefore constitutional and valid.

That a devise and bequest 'to keep and preserve as a public edifice' a house containing a library and an academy or museum of works of art and science, 'to be open for the use of the public' on such terms and under such reasonable regulations as the trustees may from time to time prescribe, is a valid charity, cannot be doubted. British Museum v. White, 2 Sim. & S. 594; Drury v. Natick, 10 Allen, 169; Donohugh's Appeal, 86 Pa. St. 306. The directions tending to perpetuate the memory of the founder do not impair its public character or its legal validity. In the cases of Thomson v. Shakespeare, H. R. V. Johns. 612, and 1 De Gex, F. & J. 399, and of Carne v. Long, 2 De Gex, F. & J. 75, on which the appellants rely, the gifts failed because not exclusively devoted to a public charitable use, the definition in the one case including purposes that might not be charitable, and the bequest in the other being to a private library established for the benefit of the subscribers alone. See Beaumont v. Oliveira, L. R. 4 Ch. 309, 314, 315.

A corporation may hold and execute a trust for charitable objects in accord with or tending to promote the purposes of its creation, although such as it might not, by its charter or by general laws, have authority itself to establish or to spend its corporate funds for. A city, for instance, may take a devise in trust to maintain a college, an orphan school, or an asylum. Vidal v. Girard, 2 How. 127; McDonogh v. Murdoch, 15 How. 367; Parin v. Carey, 24 How. 465. There is some ground for holding that the objects of a historical society would be promoted by administering a devise and bequest to maintain for the public instruction and benefit a house containing a collection of books, documents, and works of art, with other such books and works to be selected by the officers of the society and purchased out of the surplus income, and that the purposes of the trust are, in the words of Mr. Justice STORY in Vidal v. Girard, 2 How. 189, 'germane to the objects of the incorporation,' and 'relate to matters which will promote and aid and perfect those objects.'

But if any doubt remains of the capacity of the Georgia Historical Society to assume and execute those charitable trusts, it would be within the ordinary jurisdiction of a court of equity to appoint other trustees in its stead, according to the maxim, expressly affirmed in the Code of Georgia, that a trust shall never fail for the want of a trustee. Reeve v. Atty. Gen. 3 Hare, 191; Winslow v. Cummings, 3 Cush. 358; Code Ga. 1873, § 3195.

The residuary clause of the will disposes of real and personal estate to the amount of $300,000, and is as follows:

'Twenty-first. All the residue of my estate, of whatever the     same may consist, real, personal, and mixed, and wherever      situated, I hereby give, devise, and bequeath to my executors      hereinafter named, and to the survivor of them, and to the      successors in this trust of said survivor in trust, to use      and appropriate the proceeds arising from the same to the      building and erection and endowment of a hospital for females      within the city of Savannah, on a permanent basis, into which      sick and indigent females are to be admitted and cared for in      such manner and on such terms as may be defined and      prescribed by the trustees or directresses provided for in      this item or clause in my will. The income, rents, and     profits of such portion of the residuum of my estate as may      not be expended in the building, erection, and furnishing      said hospital shall be annually appropriated to the support      and maintenance of the same. My desire and request is that a     thoroughly convenient hospital of moderate dimensions, suited      to the wants of the city of Savannah, and capable of      enlargement if necessity should require, may be built and      erected, with no unnecessary display connected with it. And I     do hereby nominate, as the first trustees, managers, or      directresses of said hospital, Mrs. Louisa F. Gilmer, Sarah      Owens, Mary Elliott, (formerly Habersham,) Susan Mann,      Florence Bourquin, Eva West, and Eliza Chisholm,-all of      Savannah, Georgia,-and do request and instruct my executors      to advise and consult with the ladies named as to the      construction, arrangement, and furnishing of said hospital. It is further my wish and desire, and I do hereby request,     that a suitable and proper act of incorporation for said      hospital shall be obtained from such tribunal in the state of      Georgia as may have jurisdiction in the premises, to be      called and known as the 'Telfair Hospital for Females,' with      the ladies above named, or such of them as may consent to      serve, and such others as they may apply for to be associated      with them, as the first trustees, managers, or directresses      under said act of incorporation, with power to fill any      vacancies that occur in their number. And for the purposes of     accomplishing the objects contemplated in this item or clause      of my will, I do hereby authorize and empower my executors, or the      survivor of them, to sell and convey all or any portion of      the real estate, or any interest in the same, which I may      have or be entitled to, and not given or devised in any of      the previous items or clauses of this my will, using their      discretion as to private or public sales, and as to whether      and at what time such sales shall be made.'

That this devise and bequest to establish a hospital for sick and indigent females in the city of Savannah is sufficiently definite, and that its validity is not impaired by the provision of the will requiring an act of incorporation to be obtained, are clearly settled by the cases of Inglis v. Sailors' Snug Harbor, 3 Pet. 99; Ould v. Washington Hospital, 95 U.S. 303; and Russell v. Allen, supra.

The bequest in the twenty-third clause of the will, of $1,000 'to the first Christian church erected or to be erected in the village of Telfairville, in Burke county, or to such persons as may become trustees of the same,' is supported by the same authorities, and is directly within the decisions of Lord THURLOW in Atty. Gen. v. Bishop of Chester, 1 Bro. Ch. 444; of Sir John COPLEY, master of the rolls, (afterwards Lord LYNDHURST,) in Society for Propagation of the Gospel v. Atty. Gen. 3 Russ. 142; and of Lord HATHERLEY in Sinnett v. Herbert, L. R. 7 Ch. 232. See, also, Cumming v. Reid Memorial Church, 64 Ga. 105.

The result is that all the devises and bequests contained in Miss Telfair's will are valid as against her heirs at law and next of kin.

Decree affirmed.

title: Jones v. Habersham/Opinion of the Court


text: Talk:Jones v. Habersham/Opinion of the Court


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Page:Dictionary of National Biography volume 60.djvu/135

 the same year, and died on 13 Feb. 1653. By his wife, who died between 1641 and 1647, he had two children—Rodolph, born in 1617, who obtained an estate in Kent and died in 1667; and Elizabeth, born in 1618, who married William Trumbull of Easthampstead, and became the mother of Sir [q. v.], the friend of Pope.

Weckherlin was a voluminous writer in verse, and rendered considerable service to the literature of his fatherland by contributing to introduce the sonnet, the sestine, and other exotic forms. He attested his versatility by writing with equal facility in German, French, and English. His principal English poems are the Triumphal Shows set forth lately at Stutgart,' 1616; and a 'Panegyricke to Lord Hay, Viscount of Doncaster,' 1619, one copy of which, recorded to have been sold at an auction in 1845, is at present missing. A large proportion of his vernacular poems, chiefly published in 1641 and 1648, are imitated from the French or the English of Samuel Daniel, Sir Henry Wotton, and other writers personally known to him in England, or are translated from the Psalms. A considerable number, however, of his lyrics and epigrams are original, and on the strength of these he is pronounced by his German editor and biographer, Fischer, the most important national poet of his period prior to Opitz. The same authority considers that he would have gained a yet higher reputation but for his besetting incorrectness—'he wrote too much as a gentleman and too little as a scholar.' As a public servant he seems to have been efficient, though he did not escape charges of 'malicious barbarousness.' His poems have been published in two volumes by Hermann Fischer, Stuttgart, 1894–5. His portrait, painted when he was fifty by Mytens, was engraved by Faithorne after his death.

 WEDDELL, JAMES (1787–1834), navigator, son of a working upholsterer, a native of Lanarkshire, who had settled in London and there married, was born at Ostend on 24 Aug. 1787. The father was at the time in bad health, and seems to have died shortly afterwards, leaving the widow with two boys unprovided for. The elder son went to sea, eventually settled in the West Indies, made a little money there, and died about 1818. At a very early age the younger son, James, with no education beyond the little that his mother had herself been able to give him, was bound to the master of a coasting vessel, apparently a Newcastle collier. About 1805 he shipped on board a merchantman trading to the West Indies, made several voyages, and about 1808 was handed over to the Rainbow frigate, as a prisoner guilty of insubordination and mutiny; charged, in fact, with having knocked down his captain. Weddell's later conduct renders it very probable that the blow was given under extreme provocation. His opportunities for educating himself had, up to this time, been extremely small; such as they were, he had made the most of them; he was fond of reading; and, on board the Rainbow, so far improved himself that he was rated a midshipman, then quite as often a responsible petty officer as a youngster learning his profession. As a midshipman Weddell had more opportunities for reading and study; he rendered himself a capable navigator, and in December 1810 was appointed acting master of the Firefly. Twelve months later he was moved to the Thalia, and on her return to England and being paid off, he was on 21 Oct. 1812 promoted to be master of the Hope. A few months later he was moved to the Avon brig, with Commander (afterwards Admiral-of-the-fleet Sir George Rose) Sartorius [q. v.], who, in 1839, wrote of him as 'one of the most efficient and trustworthy officers I have met with in the course of my professional life. On taking command of the Portuguese liberating squadron (1831), I immediately wrote to Weddell to join me, but he unfortunately happened to be out of England, and when I received his answer accepting with pleasure my proposal, I had already given up the command.' The Avon was paid off in March 1814, and Weddell was appointed to the Espoir sloop, from which he was promoted to the Cydnus frigate and later on to the Pactolus, from which he was superseded in February 1816.

The reduction following the peace rendered it impossible for him to get further employment in the navy, and after three years on a scanty half-pay he accepted the command of the Jane of Leith, a brig of 160 tons, belonging to a Mr. Strachan, intended for a sealing voyage in the southern seas, for which the newly discovered South Shetland Islands seemed to offer great facilities. Of this first voyage, made in the years 1819–1820–21, no record is extant. Though


text:
Atlantio Works v. Brady Brady

Asst. Atty. Gen. Maury, for Atlantic Works.

Albert A. Abbott, for Brady.

BRADLEY, J.

title: Atlantio Works v. Brady Brady


text: Talk:Atlantio Works v. Brady Brady

title: Talk:Atlantio Works v. Brady Brady