Yard's Appeal , 64 Pa. 95 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— It is no valid objection to a grant or devise to a charitable use that it creates a perpetuity, or renders the estate granted or devised for the purpose inalienable. “ This, it is observed,” says Mr. Lewis, “is the characteristic of alienations to charitable uses; it is in the very nature of such dispositions, to withdraw the subject of them from every kind of circulation, since a contrary course defeats their manifest object, viz.: sustentation of the charitable or religious institutions, or the carrying out in continuity of the benevolent purposes and designs, in favor of which they are made. Any disposition incompatible with this chief end is a breach of duty on the part of the person or body intrusted with the office of giving it effect. Land thus dedicated to the service of charity and religion, is therefore practically inalienable :” Lewis on Perpetuities 689. Nothing, indeed, is denounced by the law as a perpetuity, unless it restrain the vesting of an estate or interest beyond the period of a life or lives in being, and twenty-one years and nine months thereafter: City of Philadelphia v. Girard’s Heirs, 9 Wright 9. An estate cannot, indeed, be created with a condition repugnant to the nature of it, as that tenant in fee shall not alien or tenant in tail suffer a common recovery. But if the estate be vested it is not in the view of the law a perpetuity, although the purpose for which it is granted be such that it cannot be devoted to any other use. Grants to corporations accomplished this result, and were, therefore, prohibited by the Statutes of Mortmain, and they were excepted from the Statute of Wills. Nevertheless, such devises when made in favor of charities were upheld, and in such cases land has been decreed by courts of equity to be practically inalienable: Perin v. Casey, 24 How. 495, and authorities there cited. ■ Nor is the case varied in this respect by the fact that the subject-matter of the devise is a ground-rent or rent-charge, subject to redemption or extinguishment by the owner of the land. The trustee of the charity takes the rent necessarily subject to the right of the owner of the land to redeem or extinguish it. The Act of Assembly of February 5th 1821, Pamph. L. 25, has made express provision to meet the difficulty here suggested; that where the owner of such rent dies, and it becomes vested in minors, trustees or other persons not authorized to redeem or extinguish such rents, proceedings may be instituted in the Court of Common Pleas, who shall make an order authorizing and requiring the executors or administrators, the guardians of minors or trustees, or other person or persons authorized for the time being to receive such rents, to execute a sufficient release or discharge.

The devises contained in the will of Dr. George S. Hamill, were beyond all question valid charities. He seems to have been actuated by no narrow and sectarian views, but in the spirit of the Good Samaritan to have been desirous of disposing of a portion of his worldly goods to the needy and suffering of every name. Though the objects were vague and indefinite, there were, in every instance, competent trustees named to exercise the discretion necessary in the distribution of his bounty. Those given to the poor of different churches were evidently in ease of the churches themselves, and it is well settled, that whenever a charity is given to a subordinate object in connection with a church, or other charitable or religious institution, the trust vests in the society itself in ease of which it is granted. In McGirr v. Aaron, 1 Penna. 49, a devise for the maintenance of a Roman Catholic priest, who should succeed the testator in a particular church, and to his successors for ever, though it would have been void by itself, as a devise to a sole corporation unknown to the law, was held to be good, because in ease of the congregation and for its benefit, and that the congregation was entitled to take the profits in the first instance, but subject to the right of the incumbent for the time being to have them applied to his support. This principle was reaffirmed by this court in The Domestic and Foreign Missionary Society’s Appeal, 6 Casey 425. “ Similar adjudications,” said Mr. Justice Strong, “ have often been made, where the object literally designated has been incapable of taking directly and the legacy has been in relief of a superior,” and several authorities are there cited. But the testator in this instance has precluded even this question from arising, by providing expressly: “As regards the churches their interest of the principal is to be given to the poor of the respective churches during the winter, say the month of January in each year, at the discretion of the pastor or trustees,” that is, as no doubt was intended, to the poor of the Roman Catholic churches at the discretion of the pastor, and of the Protestant churches at the discretion of the trustees. As to the devises to the House of the Good Shepherd, to St. Ann’s Roman Catholic Widows’ Asylum, to St. Joseph’s Roman Catholic Hospital, to the Temporary Home (Protestant, on Twenty-third street near' Parrish), and to the Protestant Episcopal Hospital, these were direct gifts to charitable institutions competent to take as trustees, whether incorporated or not. Though the purposes are not expressed, yet they must necessarily be intended to be applied to the benevolent objects for which these institutions were created, and they are all of them good charities: The Evangelical Association’s Appeal, 11 Casey 316.

Decree affirmed and appeal dismissed, the costs of the case and reasonable counsel fees to be paid out of the arrears in the hands of the appellant, as provided by the agreement of the parties in the court below.