Whiteacre v. Rector.

examined the decisions of other States where homestead laws prevail, but can find no case in which the precise question before us has been determined. But I find that it has uniformly been held in all the States where the provision in their constitutions and laws is similar to this, exempting property from sale under execution, etc., "for any debt contracted," that the exemption does not apply to judgments and executions for torts, that the exemption applies only to executions in cases ex contractu, and not to cases ex delicto. The best reasoned cases are those of New York and Pennsylvania. See Shouton v. Kilmer, 8 How. Pr. (N. Y.) 527; Lathrop v. Singer, 39 Barb. 396; Lane v. Baker, 2 Grant's Cas. 424. See, also, Davis v. Henson, 29 Ga. 345.

It was held in all of these cases that the homestead exemptions could not be claimed against executions in actions for torts.

Now, if according to these authorities the homestead exemption cannot be claimed as against executions on judgments for torts, a fortiori it cannot be claimed as against a fine imposed for a penal offense.

I am, therefore, of opinion to reverse the decree of the Circuit Court of Fauquier, perpetuating the injunction of sale; and am of opinion that the property levied on by the sheriff is liable to be sold under the execution for fines imposed by the Commonwealth, although claimed under the exemption of homestead declared and put on record by the appellee Rector.

Decree reversed.

CASES

IN THE

SUPREME COURT OF ERRORS

ОР

CONNECTICUT.

ADYE V. SMITH.

(44 Conn. 60.)

Will — uncertainty — charitable uses.

A residuary devise and bequest to a trustee "for any and all benevolent pur. poses that he may see fit," is void for uncertainty at common law, and is not within the statute authorizing grants for charitable uses.

A

MICABLE submission for construction of a will. The plaintiffs were heirs of the testatrix, and the defendant was her executor. The opinion states the facts.

H. B. Harrison and J. O'Neil, for plaintiffs.

Any use public or charitable is

S. E. Baldwin, for defendant. The bequest is valid as a charitable trust. Vidal v. Girard's Er'rs, 2 How. 192, 196; Miller v. Rowan, 5 Clark & Finn, 99, 109; Hamden v. Rice, 24 Conn. 355; 2 Story's Eq. Jur., §§ 1155, 1164. within the Connecticut statute. Gen. Stat., p. 352, § 2; Fuller v. Plainfield Academic School, 6 Conn. 544; Hamden v. Rice, 24 id. 355; Proprietors of White School House v. Post, 31 id. 255. "Benevo lent" and "charitable" are synonymous terms. Saltonstall v. Sanders, 11 Allen, 446, 468; American Asylum v. Phoenix Bank, 4 Conn. 177, 178; Rotch v. Emerson, 105 Mass. 431, 434; Bruce v. Presby

Adye v. Smith.

tery of Deer, L. R., 1 H. L. Scotch & Div. Ap. Cas. 96, Witman v. Lex, 17 Serg. & R. 93; Whicker v. Hume, 14 Beav. 509; s. c., on appeal, 7 Clark's H. L. Cas. 124. The executor will be presumed to apply the fund to strictly charitable purposes. Lewis v. Allenby, L. R., 10 Eq. Cas. 668. Such provisions are always upheld if possible. Bull v. Bull, 8 Conn. 51; White v. Howard, 38 id. 366.

LOOMIS, J. The testatrix by her last will appointed a trustee and attempted to dispose of the remainder of her estate in trust by the use of the following language: "It is my will that said trustee shall dispose of such remainder for any and all benevolent purposes that he may see fit, and at his option."

The question is, whether this language is sufficiently certain to uphold the trust, and divert the estate from the lawful heirs.

If this disposition is tested by the common law rules it is clearly invalid. By the common law there cannot be a valid bequest to an indefinite object, or a valid use without an ascertained cestui q que trust. There must be a beneficiary, indicated in the will, capable of coming into court and claiming the benefit of the bequest. If the language be so indefinite that the court cannot ascertain who the cestui que trust is, it is the same thing as if there was none, and the property goes directly to the next of kin. And such a defect cannot be cured by any action on the part of the trustee, for the testator must for himself define the objects of his bounty and cannot delegate this power to another.

But while such are established rules of the common law, it is conceded that in England a peculiar system of jurisprudence has grown up in disregard of these rules, whereby certain indefinite charitable gifts have been upheld by the exercise of chancery powers and the royal prerogative of the crown.

This system found its embodiment, if not its origin, in the statute of the 43d of Elizabeth, which specifically mentioned certain trusts to be upheld and executed by the Lord Chancellor, which trusts in the latter part of the act were referred to and characterized as "charitable and godly uses."

Ever since the enactment of this statute the word "charitable," when used in a will conveying property, has had a technical meaning, not only in England, but in this country as well, even in those States where the statute has never been re-enacted, or adopted by usage. And it may be remarked that in general the decisions of VOL. XXVI - 54

Adye v. Smith

the English chancery upon trusts for charity have furnished the general rules of adjudication in the courts of the United States.

It will not, therefore, be amiss to inquire whether the trust now in question could stand if tested by the statute of Elizabeth and the decisions of the English courts.

Sir WILLIAM GRANT, the Master of the Rolls, in his opinion in Morice v. The Bishop of Durham, 9 Ves. 399, said: "I am not aware of any case in which a bequest has been held charitable, where the testator has not used that word to denote his general purpose or specified some particular purpose which this court has determined to be charitable." In that case the testatrix by her will directed that the residue of her estate "should be applied to such objects of benevolence and liberality as the Bishop of Durham in his own discretion should most approve." It was held that this language was too indefinite to uphold the trust, upon the ground that benevolence and liberality could find numberless objects not included among the charities mentioned in the statute. This decision was affirmed by the Lord Chancellor on appeal, and is again reported in 10 Ves. 521.

In Vezey v. Jamson, 1 Sim. & Stu. 69, where the estate was given to the executors in trust to dispose of at their discretion, either for charitable or public purposes, the trust was held too general and indefinite to be executed.

To the same effect was the decision in Ellis v. Selby, 1 Myl. & Craig, 286, where the fund was applied to and for such charitable. or other purposes as his trustee should think fit."

In Williams v. Kershaw, 5 Cl. & Finn. 111, a direction by a testator to his trustees to apply the estate "to and for such benevolent, charitable and religious purposes as they in their discretion should think most advantageous and beneficial," was held void for uncertainty.

In James v. Allen, 3 Mer. 15, it was held that a bequest in trust "for such benevolent purposes as the trustees may unanimously agree upon," could not be sustained, on the ground that there were benevolent purposes which the court could not construe to be charitable, and the trustees being directed to apply the property to benevolent purposes might select objects not charitable within the

statute.

To the same effect is the reasoning in Kenall v. Granger, 5 Beav. 300, and in other cases that might be cited, but the above will suf

Adye v. Smith.

fice to show that the trust in question must be held void in the light of the English decisions.

If now we pass to the decisions of the courts of last resort in the United States we shall find that such indefinite trusts as the testatrix here attempted to create have repeatedly been held void for uncertainty. An examination of the numerous cases cited in the brief for the plaintiff will abundantly sustain this position. We will only refer particularly to one of these cases, which is from an adjoining State whose system of jurisprudence relative to trusts for charity is similar to our own, and in which case the testator in attempting to create a trust used words almost literally identical with the language now under consideration. It is the recent case

of Chamberlain and others v. Searns and others, 111 Mass. 267. GRAY, C. J., in delivering the opinion, said: "The question presented by this case is, whether a devise in trust to be applied solely for benevolent purposes in the discretion of the trustees creates a public charity. And we are all of opinion that it does not. The word benevolent' of itself, without any thing in the context to qualify or restrict its ordinary meaning, clearly includes not only purposes which are deemed charitable by a court of equity, but also any acts dictated by kindness, good will, or a disposition to do good, the objects of which have no relation to the promotion of education, learning or religion, the relief of the needy, the sick or the afflicted, the support of public works, or the relief of public burdens, and cannot be deemed charitable in the technical and legal sense. The only difference of opinion in the adjudged cases on this subject has been upon the question how far the word benevolent,' when used to describe the purposes of a trust, could be deemed limited in its meaning by being associated with other words more clearly pointing to a strictly charitable disposition of the fund."

Having shown that the trust in question would be held void upon the principles adopted in England and in our sister States, we will next inquire whether there is any thing peculiar to our own system relative to trusts for charity that can save and enforce the bequest we are considering.

This State has never adopted the statute of Elizabeth. But we have a substitute statute of our own, first passed in 1684, but which did not appear in the printed statutes until 1702, and hence it has been generally called the "statute of 1702." The language of the