James Moore Wayne

“ Neither is there any positive objection, in point of law, to a corporation taking property upon trust not strictly within the scope of the direct purposes of its institutions, but collateral to them, as for the benefit of a stranger or another corporation. ”

“ It is said by the counsel for the plaintiff that a dedication is founded on an estoppel against claiming property which has been dedicated, while a charity presumes a grant. But whether it be called an estoppel or a preumed grant is quite immaterial; the result is the same, and the principle of favor to the object is the same, and the trust in both cases is preserved without a legal grantee on precisely the same ground of favor in equity. ”

“ The chancellor, in Attorney General v. Lord Lansdale, says: 'The institution of a school for gentlemen's sons is not, in popular language, a charity; but in view of the statute of Elizabeth, all schools for learning are to be so considered.' We speak the popular language, and colleges are not written down in any of our statutes as charities. ”

“ All forms of religion, all the wild vagaries of the human mind, which relate to the being or non-being of God, and the origin, the spiritual condition, and final destiny of man, if embodied and taught, must be regarded alike by our laws; and if donations forever to our leading religious sects, their colleges, or universities, be favored beyond the ordinary rules of law, so must the most absurd and most objectionable, if they be not absolutely immoral. ”

“ It is well known that Ohio was the first of the new States formed out of the great Northwestern territory to experience that most liberal policy, on the part of the Federal Government, which not only enjoined upon the Territorial Legislature the encouragement of learning, but made munificent grants of land for the uses of education. ”

“ It seems to us, now, that the objection relative to the condition of the beneficiaries is at variance with the established primary rule in respect to a charity, not only with reference to the statute of 43 Elizabeth, c. 4, but to a charity under the common law. The answer is, that a charity is a gift to a general public use, which extends to the rich, as well as to the poor. ”

“ The Legislature has succeeded in giving to corporations, for the promotion of education, what the learned gentlemen who brought this bill said were the requisites of a corporation: lawful existence; artificial capacity and perpetuity of existence; and, we add, the unquestioned enjoyment of all these privileges, which courts of equity have said for more than two hundred years they were entitled to, in the construction of devises and gifts for charity, and for the administration of them. ”

“ McMicken's charity, many specimens can be produced like the first graduate of the 'Ohio University;' it is nevertheless to be hoped that many young men, sharing in his spirit, may grow up under the influence of these institutions to do honor to their age and country-men who will have character, and can afford to give calm counsel even amid the strife of parties and the fury of local jealousies. ”

“ Generally, devises and bequests having for their object establishments of learning are considered as given to charitable uses, under the statute of Elizabeth, Attorney General v. Earl of Lansdale; but that does not make a devise good to a college for purposes not of a collegiate character, intended chiefly to gratify the vanity of the testator. And we cannot be mistaken, that a devise to a corporation in trust for any person is good, and will be effectuated in equity. ”

“ Under these conditions, it would not greatly subserve the public good to set up special laws for the protection and perpetuation of religious or collegiate educational charities. The decisive objection to it, however, is, that our law contemplates no such thing, but has, in effect, forbidden it, and provided for the incorporation of religious societies and colleges by a statute always subject to repeal; and it has provided for their endowment in property, real and personal, and made it all subject to alienation. ”

“ Alienation in mortmain, in its primary signification, is an alienation of aldns or tenements to any corporation, aggregate, ecclesiastical, or temporal, the consequence of which in former times was, that by allowing lands to become vested in objects endued with perpetuity of duration, the lords were deprived of escheats and other feudal profits, and the general policy of the common law, which favored the free circulation of property, was frustrated, although it is true that at the common law the power of purchasing lands was incident to every corporation. ”

“ After a close examination of all the legislation of Ohio relating to corporations, and its system of education, we have not been able to detect any sentence or word going to show any intent to alter the law as it stood before the adoption of the Constitution of 1851, in respect to a corporation receiving and taking, either by testament or donation, property for a charity, or to prevent them from having trustees for the execution of it according to the intention of the donor. ”

“ If our Western institutions have failed hitherto to rank with the oldest and best-endowed universities of the East, it has been because they have lacked the accumulation of endowments to stimulate and encourage them. But if we follow out the original and oft-repeated injunction of the old Congress to the Territory, not only by applying these national charities strictly to their objects, but also by availing ourselves of the charities of benevolent individuals devoted to the same great purposes, we shall not long want the merit, though we may want the fame, of these ancient seats of learning. ”

“ Corporations may be formed under general laws, but all such may from time to time be altered or repealed-that is, though they may be formed under general laws, that the Legislature may alter or repeal them. That by the provision they meant to retain their legislative powers to give larger powers than a corporation might have had, to reform them in any particular that might become necessary, that of the violation of a contract excepted. ”

“ Nothing could more strongly show that the doctrine by which chancery aids charities is fully recognised in Ohio as an existing, unquestioned judicial principle, to enforce which the Legislature may prescribe different remedies at different times, without in any manner leaving the right itself doubtful. ”

“ The language of the 1st section is, that any number of persons, not less than five, desiring to establish a college, university, or other institution for the purpose of promoting education, religion or morality, agriculture and the fine arts, may, by complying with the provisions of the act, become a body corporate and politic, with perpetual succession, and may assume a corporate name, by which they may sue and be sued, plead and be impleaded, in all courts of law and equity ”

“ The policy of the State is thus shown by its fundamental law to have been, and still be, to foster alike the common schools, the academies, and the universities, and to cherish and protect every dollar which had been or might be donated for any of these purposes.
The legislation of the State in behalf of schools, academies, high schools, and colleges, has been voluminous, and institutions of learning of every grade are encouraged, and all funds donated or appropriated by law to these purposes are looked after with extraordinary care. ”

“ It is clear that the Legislature of Ohio intended by the 'act to prescribe the duties of attorney general,' passed 1852, to provide for the preservation of 'proceeds of property given in any way for the support of education,' which was protected by the act of March 7, 1838, 'for the support and better regulation of common schools, and to create permanently the office of superintendent,' above recited, as well as for other charities. Trusts for charitable and educational purposes are terms which have a judicial meaning, which the Legislature undoubtedly had in view. ”

“ Another consideration would lead to the same expectation. Ohio, though the oldest of the Northwestern States, is young, and comparatively destitute of those public benefactions which come from the growth, in wealth and civilization, of a prosperous country. ”

“ The statute of April 9, 1852, in strict conformity with the Constitution, provides that colleges may be founded by individuals, and incorporated under its provisions. A city cannot found a college. One man, however rich, may not found a college and be the autocrat and controller of education and mind forever; but five or three, all citizens resident, may found and incorporate a college, (Swan, 193, 195, 196,) but they cannot give it perpetuity. The directors may sell and dispose of the real estate with which it is endowed ”

“ The act to restrict the entailment of real estates obviously applies to individuals exclusively, and not at all to corporations, and especially to such of them as may take and hold charitable gifts in perpetuity.
The first act passed under the Constitution of 1851, relating to corporations, was to enable the trustees of colleges, academies, universities, and other institutions for promoting education, to become bodies corporate. ”

“ And a fortiori, a devise to a charitable corporation, in trust for any other charitable use, would be good. All property held for public purposes is held as a charitable use, in the legal sense of the term charity. ”

“ The court held that the corporation thus empowered took the estate as a contingent remainder, and this is all that was decided in that case.
Chief Justice Lane, in the written opinion of the court, says: If there had been no competent trustee, the estate would descend to the heir charged with the trust. This was obiter, as the court held the trustee competent, and the estate did not descend. But the dictum was right if the trust was not discretionary, and wrong if it was. It does not seem to have been discretionary; there was no selection of beneficiaries-not on the tax list. ”

“ It may, therefore, be considered as settled, that chancery has an original and necessary jurisdiction in respect to devises and bequests in trust to persons competent to take for charitable purposes, when the general object is specific and certain, and not contrary to any positive rule of law. ”

“ And here we must be allowed to claim, as the first fruit of the first university founded on that early national charity, a lawyer and a statesman whose fame and influence have not been confined to his own State of Ohio or the West ”

“ IV. The devises and bequests are for the benefit of whole denominations of persons, and to endow colleges and asylums particularly described; they are valid, in equity, therefore, without any trustee, and independently of the statute of Elizabeth. ”

“ This devise, then, cannot be made to conform to any law, common or statute, in Ohio, without disregarding the intent of the testator. It would require the extreme application of the cy pres doctrine to apply it in any known legal form. The city authorities, which the will requires should found the colleges, cannot found them; required to select the beneficiaries, they cannot select them; they cannot manage the funds nor govern the colleges; nor can the institutions come into being stamped with the immortality and immunity from change which the testator makes a condition of their creation ”

“ There is nothing in either of them in any way interfering with the power of before existing corporations, to become the trustees of charitable devises and bequests for education, and to hold them in perpetuity. There is rather a disposition manifested to enlarge and confirm their power to do so, and to give to other corporations under the act certainty and security in the administration of such trusts. ”

“ Those devises and bequests are charities, in a legal sense, and are valid in equity, and may be enforced in equity by its jurisdiction in such matters without the intervention of legislation by the State of Ohio.
5. McMicken's direction, in section 32 of his will, that the real estate devised should not be alienated, makes no perpetuity in the sense forbidden by the law, but only a perpetuity allowed by law and equity in the cases of charitable trusts. ”

“ If that event or period be within the bounds prescribed by law, it is not a perpetuity.' It is then a limitation upon the jus disponendi of property, upon the common-law right of every man to dispose of his land 'to any other private man at his own discretion.' And one class of those limitations is technically termed alienation in mortmain, and to charitable uses. ”

“ That act provides also for the management of charities when the founders have not given directions; and another act, Swan, 193, 1856, provides how colleges may be incorporated by their own act, and how trustees of an endowment may also become a corporation by their own act. These acts have been cited to show that Ohio, in her legislation, has made municipal corporations trustees for charity devises and bequests, and that the management of them is a duty. They also prove that the privilege to take them is one given and imposed by law. ”

“ As to the first, white boys and girls make as distinctive a status of a class who are to be the first beneficiaries of the trust, and the words in the 36th section, that 'if any surplus shall remain, &c., it shall be applied to the support of poor white male and female orphans, neither of whose parents are living, and who are without any means of support,' make as certain a description as could have been expressed. ”

“ Further, by the 68th section of the State School Law, Swan, 852, passed in January, 1856, power is given to township boards of education, and their successors in office, to take and hold in trust for the use of central or high schools, or subdistrict schools, in the township, any grant or donation, or bequests of money, or other personal property, to be applied to the support of such public schools. ”