[Speed v. May.]

below, that it did not purport to convey the separate property of the assignors; and the cases of Hennessy v. The Western Bank, 6 W. & Ser. 300, and In Re Wilson's account, 4 Pa. S. R. 430, were cited to sustain the objection.

But it is submitted, whether either of those cases sustains the position, because the assignment which gave rise to both those cases, stipulated for a release in full, and this court put it on that ground exclusively: see 6 W. & Ser. 311.

But even when the assignment stipulated for a release, and the separate property not assigned was encumbered to an amount more than it was worth, the assignment was held good: Fassit v. Phillips, 4 Whar. 399; 5 Rawle 221.

Merrill and Woods, for defendants.-It was contended that a voluntary assignment for the benefit of creditors made in one. state, will not transfer personal property in another state against a foreign attachment issued by citizens of the latter: 13 Mass. Rep. 146, Ingraham v. Guyer; 6 Bin. 353, Milne v. Moreton; Story on Conflict of Laws 683; 23 Wendell 87; 14 Martin's Rep. 97 to 103; 17 Mass. 110; Story on Conflict of Laws 650–656; 6 Pick. 307.

The law of the actual situs not only protects the ownership of movable property, but prescribes the mode of its transfer: Lowry v. Hall, 2 W. & Ser. 132. The assignment is not in accordance with the laws of Pennsylvania. No schedule was filed. Bond was not given as required by the Act of 14th June, 1836, relative to assignments. The assignment is void in Pennsylvania, because it stipulates for the payment to the assignors of the balance remaining after paying their partnership debts, and does not give it to their separate or individual creditors: M'Clurg v. Lecky, 3 Penn. R. 91-2; 7 W. & Ser. 219-227; 6 Barr 121-123; 6 W. & Ser. 311; 5 Cowen, 549; 9 Ib. 73–86.

The opinion of the court, filed August 23, was delivered by GIBSON, C. J.-The principles of this case were discussed in Milne v. Moreton, 6 Bin. 360; in Mullikin v. Aughinbaugh, 1 Penn. R. 117; and in Lowry v. Hall, 2 W. & Ser. 131; to which it is sufficient to refer for them. It will there be seen, that an involuntary transfer of movable property abroad by process at home, does not divest the title in prejudice of creditors domiciled at the place of the actual situs; but that a voluntary transfer by the act of the owner divests it everywhere. The legal situs follows the domicile of the owner, and the law of the actual situs protects the claims of domiciled creditors there only against transfer by operation of law. It is by a rule founded on this distinction, that letters of administration vest no title to property abroad; and that probate of a will at the place of the actual situs, enables the exe

[Speed v. May.]

cutor to recover it, the will being a testamentary assignment by the voluntary act of the testator. Granting, for the sake of argument, that the actual situs of the debt in question was in Pennsylvania, the voluntary assignment of it in Maryland, by the owners of it, vested it in the trustees there against their creditors here. The assignment was as operative to transfer the property in the first instance as it would have been had it been executed by a citizen of Pennsylvania. It is argued, however, that the contract of assignment is void for want of conformity to the laws of our own state. The legal presumption is, that it was intended to be performed at the place where it was made; and, as there is nothing to rebut it, the law of the contract is the law at the place of its origin. In Allshouse v. Ramsey, 6 Whart. 331, a promise made in Jersey to pay the debt of another, was held by this court to be void by the statute of frauds of that state, though the particular section was not in force in our own. It is not to be doubted, that this assignment was in its origin and purpose a Maryland contract. It was sealed there, and the trusts created by it were to be executed there. The lex loci contractus determines the validity of the contract; the lex fori controls the remedy. True, it was said in Lowry v. Hall, 2 W. & Ser. 132, that the law of the actual situs not only protects the ownership of movable property, but prescribes the mode of its transfer; but that was predicated of the distinction between transfer by act of the party and transfer by act of the law. In other respects, the law of the situs regulates the transfer of real property alone. There is nothing in the case stated, therefore, to bar a recovery.

Judgment below reversed and judgment here for the plaintiff.

CASES

IN

THE SUPREME COURT

OF

PENNSYLVANIA.

EASTERN DISTRICT-DECEMBER TERM, 1851.

PHILADELPHIA.

Griffitts et al. versus Cope et al.

Devise of land to be conveyed to certain persons, or such others as the monthly meeting of the Quakers in Philadelphia should nominate, in fee, "there to build a meeting-house upon, if the members of that meeting shall agree to build a meeting-house there, but not else." The land was conveyed, and the meeting-house erected and used for more than a century. A new meetinghouse was then erected on other ground, and the old one disused under a vote of the meeting, and sold, but the sale was never consummated. Held, 1. The devise was of a fee simple, and not of a qualified estate. 2. That the trustees, &c., may sell and convey, applying the proceeds to the same uses as those on which the land was devised.

CERTIFICATE from the Nisi Prius.

Ejectment. In 1747, Samuel Powell, the younger, by his will, "authorized and directed his executors to grant unto such persons as the monthly meeting of the people called Quakers, in Philadelphia, shall nominate, their heirs and assigns for ever, and in trust for the same people for ever, sixty feet of ground on the south side of Pine street, and as near the middle between Front and Second streets, as conveniently may be, and the whole depth of my ground, there to build a meeting-house upon, if the members of that meeting shall agree to build a meeting-house there, but not else." The residue of his estate he devised to his children in fee simple. Pur

(96)

[Griffitts v. Cope.]

suant to these directions, a conveyance was made by the executors upon the trusts set forth in the will.

Samuel Powell, the father of Samuel Powell the younger, by his will, dated in 1752, after reciting the devise by his son as above stated, and that the monthly meeting had concluded to erect a meeting-house, covering the entire sixty feet devised to them, "whereby the same building or meeting-house, it is thought, will be much confined, and deprived of necessary air and light;" and that he would, if in his power, have remedied the evil by adding two side lots, each twenty feet in width. He therefore enjoined upon his grand children, the devisees of Samuel Powell the younger, to convey these lots; and annexed a condition to the provision made for them in his will, that they should, within thirty days after they respectively came of age, convey these adjoining lots to certain persons "and their heirs, in trust for the aforesaid people called Quakers, at Philadelphia, for ever, for such use and service as the members of the monthly meeting aforesaid shall order or direct, or unto such other persons and their heirs as the monthly meeting aforesaid shall nominate, in trust and for such use and service as aforesaid for ever, and to no other use, intent, or purpose whatsoever."

Pursuant to these directions, the children of Samuel Powell the younger conveyed the two side lots to the nominees of the monthly meeting and their heirs, "to the use of them, &c., or to such other use or uses, intents or purposes, as the said monthly meeting shall direct and appoint."

Prior to this conveyance the monthly meeting had accepted the devise and erected the meeting-house, which was completed in 1753.

The plaintiffs in this action were the heirs of the children and devisees of Samuel Powell the younger, and claimed to recover because the trust or charity had been abandoned by the donees.

It was proved that in 1832 another meeting-house had been erected in Orange street, by the monthly meeting, at which place the meetings were subsequently held, with the exception of a weekly meeting held in Pine street, during a part of the year. This was discontinued in 1835, under a resolution of the monthly meeting, since which time the meeting-house had not been used for any purpose. The cellars were rented out for storage, and the windows of the building had been boarded up.

In 1836, the meeting-house and lot were offered for sale and sold by the monthly meeting. The contract not having been perfected, it was again sold in 1841, but the purchaser refused to take because of a defect in the title.

His honor, ROGERS, J., directed a verdict for the plaintiffs, reserving the right to the court in banc to modify the judgment or VOL. V.-13

I

[Griffitts v. Cope.]

to enter a judgment for plaintiffs or defendants, for the whole or part of the premises in dispute.

The case was argued at December Term, 1850, by Tyson and Williams, for the appellants, and by McMurtrie, with whom was Ellis Lewis, for the plaintiffs below; and at this term by the same counsel for the appellants, and by McMurtrie and Gerhard, with whom was Lewis, for the plaintiffs below.-The devise was not of a conditional estate; it merely imposed a condition precedent to the conveyance by the executors, which, when executed, made the devisees purchasers for value. As to the side lots, no question can arise; for the grantors, whether they were or were not bound to do so, have conveyed a fee simple untrammelled by any condition or trust. The main lot is held as a charitable use: 2 S. & St. 67; Duke 374; or if not so, as a trust not on condition: Cro. Eliz. 288; Duke on Ch. Uses 80; Poph. 6; Moore 594; Com. Dig. Condition, A. 4; Vin. Ab. Devise, F. E. As the one or the other, neither the misuser of the property nor any abuse by the trustees can work a forfeiture. But this is a case merely of nonFor there has been no destruction of the property nor

user.

sale of the building.

For the plaintiffs below it was argued :-That the question is what quantity of estate was given by the founder of the charity. A gift for a particular purpose implies that no greater estate is given than is necessary for the purpose. Thus a devise in fee, if intended only for payment of debts becomes a base fee ceasing on payment of debts: 1 Bla. 645. So of a grant to a corporation: 6 Ser. & R. 234; and similar instances in Vin. Ab. Esch. A. 3, n. C. 8; Cro. Eliz. 669; Vin. Ab. Estate I. 7, 7; T. 5, 2; Estate b. a. 9; Escheat F. 2. Reservation for a dwelling; a sale by the beneficiary destroys his estate: 9 Barr 52. For the use and service of a mill is a base fee: 5 Ib. 126. Such would have been the rule in England but from the disregard of the doctrine of resulting uses in cases of charities: Amb. 190; 2 J. & Walk. 307. The present is clearly a resulting use: 1 V. & B. 272. In this country the same construction is given to instruments creating charities as other estates: 10 Pick. 185; 11 Zb. 495; 16 Mass. 496. To say the testator did not intend the property to be continued in the use for which it was given, would be dangerous doctrine to charitable uses. The legal intent is clear if we suppose a contest in the meeting as to the continuance or diversion from the trust, referred to this court. That the beneficiaries may abandon such a charity cannot be doubted. For the persons entitled are those only who can claim lawfully through this organization. For all purposes the individuals as beneficiaries are represented by the monthly meeting. If the court would carry on the trust at the instance of individuals against the will of the meeting. a schiem