William Johnson

“ It is obvious that property, devised to charities under such circumstances as prevent its vesting by the rules of the common law, is placed in a situation analogous to that of escheat, and afterwards disposed of under the king's sign manual, according to his conscience, actual or constitutional; so that in a trial at common law, such devise would be held void, unless aided by prerogative power. ”

“ I. 47, we find the law laid down in these words: 'it has been an uniform rule in equity, before as well as after the statute of 43 Elizabeth, ch. 4, that where uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses; and then goes on to enumerate all that variety of cases to which the English courts have applied the latitudinous principle, that the statute of charitable uses supplies all the defects of an assurance which the donor was capable of making, even to a devise by a lunatic. ”

“ Why should a more liberal rule be introduced with regard to the enumerated indefinite charities and the excepted cases remain subject to a more rigid system? Certainly the enumerated exceptions in that statute can lose nothing in point of merit or claim to public protection and indulgence, by comparison with those acted upon by the statute. Indeed, the preamble explicitly confines the views of the legislature to enforcing the application of the charities according to the charitable interest of the donor ”

“ On the third question, there were two points made. 1. That Mrs Brewerton having never entered, could not devise. 2. That the issue being joined upon the mere right, it was not competent for the tenant to introduce testimony to prove the interest out of the demandant, unless (I presume it was meant) the right be proved to be in the tenant. On the first of these points I am satisfied, that the state of New York has not suffered the exercise of the testamentary power to be embarrassed with the subtleties of the English law respecting entries and adverse possessions. ”

“ It is in general true, that where there is a present immediate devise, there must exist a competent devisee, and a present capacity to take. But it is equally true, that if there exists the least circumstance from which to collect the testator's contemplation or intention of any thing else than an immediate devise to take effect in presenti, then, if confined within the legal limits, it is good as an executory devise. ”

“ Does then the law invalidate the devise for want of such restriction, or some other equivalent to it? It is perfectly clear that the law of England does not, and never did, as relates to charities; at least where there has been no previous disposition. In this respect it seems to constitute an exception to the law of executory devises; as is implied in the general reference to the prerogative of the crown to give it legal efficiency, by his sign manual, and as is distinctly recognised in the case of the Trustees of New Rochelle, in the courts of New York ”

“ The devise there was of lands lying in Virginia; the intended devisee was an unincorporated society, described in the will as meeting at Philadelphia; that society became incorporate under a law of Pennsylvania, not of Virginia, and then brought suit in equity in Virginia, to recover the property devised. ”

“ In a modified sense those devises are held to be void even at this day, and to need the aid of a royal prerogative still existing in the court, to relieve the devisees against the rules of the common law. ”