John McLean

“ There is nothing to restrain the discretion of the trustees, or to guide the judgment of the court. If the trust can be administered, it must be administered at the will of the trustees, substantially free from all legal obligation.
But before we pronounce on the character of this trust, it is important to know by what law it is governed. Is the common law of England in relation to charities, as modified and enlarged by the statute of the 43d of Elizabeth, in force in Virginia? Charities have been administered, both at common law and in chancery, from an early period of English jurisprudence. ”

“ The complainant, it seems, had studied law, but it is manifest from the facts before us, that he was but little acquainted with business, was an inefficient and dependent man, easily misled, especially by those for whose abilities and characters he entertained a profound respect. From the high character of the executors, no one can impute to them any fraudulent intent in this transaction. Looking to what they considered to be the object of the testator, they felt themselves authorized, if not bound, to effectuate his purposes by making this compromise with his heir at law. ”

“ It has been shown that the testator intended to exclude the Common Council from all agency in the trust, and from all benefit. The Common Council could act only as trustees, and that office is filled by the executors.
It is a fatal objection to this trust, therefore, that there is no beneficiary capable of filing a bill against the trustees to enforce the trust. The people and traders of Alexandria were a continually fluctuating body of men, incapable, on the plainest and most elementary principles, of instituting and carrying on a suit in law or in equity. ”

“ The devise to which these doctrines are to be applied is a devise 'in trust for such purposes as my executors consider promises to be most beneficial to the town and trade of Alexandria.'
The principal classes in every seaport town are professional men, manufacturers, including handicraftsmen, navigators, and traders, or men whose business it is to buy and sell for profit. The testator was himself a trader, and the fair inference from the fact that he mentions that class only is, that he intended that they should be specially benefited. ”

“ Conceding, however, hypothetically, that the codicil was but a senseless reiteration of the devise in the will, let us proceed to inquire into the validity of that devise.
And on this point, the appellant submits, in the first place, that the devise in the will (and a multo fortiori, the devise in the codicil) creates, or attempts to create, a trust which is void for uncertainty, and one which a court of chancery will not and cannot enforce, on the general or ordinary principles of trusts. ”

“ Mr. Cooke, for the appellant, in reply and conclusion, contended, that the 'town of Alexandria' did not mean the 'Common Council of Alexandria.'
It is worthy of remark, that in this important devise, which disposes of the great bulk of the testator's property, real and personal, not a word is said about 'the Common Council of Alexandria,' the body politic created by an act of Congress to administer the affairs of the town. And yet it can scarcely be doubted, that the name, powers, and functions of that body were as familiar to the testator as household words. ”

“ If not valid as an ordinary trust between private persons for private purposes, it is valid as a gift to a charitable use.
The degrees of certainty requisite in the beneficiary vary with the object. For private purposes, generally, natural persons or corporations alone can take. For public and charitable purposes the law recognizes the general public, or definite portions of it, not incorporated, as competent to take; and the town of Alexandria is such a beneficiary, under the law of charitable uses. ”

“ The appellant, on the other hand, will insist on the counter proposition, that neither of the devises (that in the will, or that in the codicil) is a charitable devise at all, according to the law of charities as it exists in England, and in some of the American States, and therefore cannot be aided as such. ”

“ The Attorney-General, 3 Leigh, 450, the court held that 'the English statute of charitable uses, 43 Elizabeth, having been repealed in Virginia, the courts of chancery have no jurisdiction to decree charities where the objects are indefinite and uncertain.'
'If a trust be created in a party, but the terms by which it is created are so vague and indefinite that courts of equity cannot clearly ascertain either its objects or the persons who are to take, then the trust will be held entirely to fail, and the property will fall into the general funds of the author of the trust.' Story's Eq. ”

“ The prerogative of the king was invoked as parens patriae where the charity was indefinite, and a most liberal construction was given to the act of the 43d of Elizabeth; and under these influences a system has grown up in England favorable to the policy of charitable bequests. So far has this policy been carried, that where the devise has been uncertain or impracticable, it has been sustained in some instances by what was supposed to be the intent of the testator, or by approaching as near to it as practicable. ”

“ Could the court decree that a portion of the principal or accruing interest should be lent to young traders just entering into business, and another portion to embarrassed traders, who could give good security to repay the loan? ”

“ Charitable bequests, from their nature, receive almost universal commendation. But when we look into the history of charities in England, and see the gross abuses which have grown out of their administration, notwithstanding the enlarged powers of the courts, aided by the prerogative of the sovereign and the legislation of Parliament, doubts may be entertained whether they have, upon the whole, advanced the public good. ”

“ To sustain the release, then, is to decide that executors have a right to deal with a needy heir or devisee, to practise on his necessities, and to tempt him, by the present payment of a part of what is due to him, to transfer to them all the rest, for their own private and personal use and benefit. ”

“ That twenty-five thousand dollars shall be paid to the complainant. 2d. That the executors shall release to him all claims to any property, real or personal, conveyed or settled on complainant by the testator in his lifetime. 3d. That the complainant shall release to the executors 'all his claims, in law or equity, to the estate, real and personal, devised and bequeathed, or intended to be devised or bequeathed, by the said Charles Bennett by his said will, to be held and disposed of by the said executors in the manner in and by the said will prescribed. ”

“ Girard's Executors, 2 How. 127, does not touch the question before this court, which is, What was the law of Virginia on the 27th of February, 1801? That was a question as to what was the law of Pennsylvania. And it was decided that, in Pennsylvania, a corporation capable of taking and having corporate powers over the subject of education could lawfully take and apply a bequest for the erection of a great free school, the pupils to be white males, between six and ten years old, &c., &c. ”