This is an appeal from a decree of the Circuit Court for Baltimore City declaring that the devises and bequests in the will of James R. Partridge, of one-half of the residue of his estate to the Church Home and Infirmary of Baltimore City and to the Emmanuel Church Home of Baltimore City equally, are lawful and valid, and directing the trustees under the will to transfer and deliver the real estate and other property held by them to those institutions, together with the income accrued and collected since the death of Margaret R. Woodside, the life tenant.
After making some legacies, the testator left the residue of his estate to trustees, with direction to divide the income into two equal parts, and to pay one-half to his sister, Mrs. Baltzell, *Page 260 during her life, and the other half to his sister, Mrs. Woodside, during her life. Upon the death of either of his two sisters, he directed the trustees to divide the whole trust fund then in their hands into two equal parts — one part to remain in their hands as trustees to afford an income to the survivor of his two sisters, and the other half to be distributed, as therein directed, to certain nephews and nieces. He then directed the trustees on the death of the survivor of his sisters, to divide the half remaining in their hands into two equal parts and to distribute and pay over the same as follows:
"One-half or part to the Church Home and Infirmary of Baltimore City, to whom I give and bequeath the same to be kept by said legatee as a separate fund in remembrance of my wife and daughter, and the income thereof used in maintaining aged and infirm persons in said home or in maintaining free beds in their infirmary, in the discretion of said legatee, and to pay over the remaining part or half (of the half of the whole) to the Emmanuel Church Home in the City of Baltimore, to whom I give and bequeath the same, to be kept as a separate fund, to be called the `Annie Mary Partridge Fund,' and the income thereof used under their rules and in the discretion of said legatee in assisting or maintaining poor respectable sewing girls or apprentices, unable to pay over two dollars a week for their board, or unable to pay anything. This also in remembrance of my wife and daughters."
As there are some questions concerning the bequest to the Church Home and Infirmary which are not involved in the other, we will first consider it, although in doing so, we will refer to and discuss some cases which are applicable to both.
1. The validity of its incorporation is attacked, because it is not shown in the certificate that the seven incorporators were "free white persons, citizens of the United States and a majority of them citizens of this State." The Act of 1852, Ch. 231, under which it undertook to be incorporated, did authorize seven or more such persons to be associated for the *Page 261 purposes named in the Act, but while the proper practice was to describe the incorporators, so as to show that they were such as the statute authorized, we do not think the omission to do so made the charter invalid. The Act did not in terms require them to be so described in the certificate, but it said in reference to what shall be therein stated: "It shall and may be lawful for such persons to prepare and execute, under their hands and seals, an instrument of writing, specifying therein the objects, articles, conditions and name, style or title under which they have associated, or mean to associate, and the same to exhibit and present to the judge of the Circuit Court for the county or the Judge of the Superior Court of Baltimore City, as the case may be, in which said corporation is intended to be situated, or its principal business transacted." It then provided that the instrument of writing should be acknowledged before and certified by the Judge in the same manner as conveyances of real estate were by the laws of this State required to be. The judge was also required to direct it to be recorded in the office for the recording of deeds in the county or city. It was undoubtedly the duty of the judge to satisfy himself that those presenting the instrument to him were such persons as were authorized to be so incorporated, but the mere fact that they did not so state in the charter does not make it invalid. If the incorporators of a proposed corporation stated in such instrument of writing that they were such persons as the act prescribed, when in fact they were not, the statement would not prevent the charter from being forfeited, and it would seem to be equally clear that a charter should not be invalidated by the mere omission to state such facts. So without regard to the statutes cited, which are said to have since recognized the appellee as a corporation, we are of the opinion that the omission spoken of did not make the charter invalid.
2. A further objection is made to this bequest on the ground that the thirty-eighth section of the Declaration of Rights (requiring the sanction of the Legislature to certain gifts, sales or devises) has not been complied with. It therefore becomes *Page 262 necessary to determine whether it is such a corporation as that provision is applicable to.
It is clear that the Act of 1852, Ch. 231, under which this appellee was incorporated, was not intended for the incorporation of religious corporations. It authorized the association "for any moral, scientific, literary, dramatic, agricultural or charitable purpose, or for the purpose of forming any uniform volunteer company, fire engine or hose company, or beneficial, benevolent or musical society or association." Religious corporations were authorized by the Act of 1802, Ch. 111, and other Acts which might be referred to, and while such corporations are in a sense corporations for charitable purposes, all "charitable corporations" are not "religious corporations." The provisions in the Act of 1852 above referred to were continued in sections 10-17 of Art. 26 of the Code of 1860, while sections 88-101 of that Article were applicable to "religious corporations." The Code of 1904 still provided for a method of incorporating the latter different from what are known as charitable corporations, and indeed the Act of 1908, Ch. 240, which made much radical changes in our corporation laws, has left undisturbed the sections in the Code of 1904, in reference to the formation of religious corporations. We refer to those provisions to show that our corporation laws have consistently recognized the distinction between such corporations as the appellee professes to be and those known as religious corporations, although, of course, a corporation would not be permitted to evade this provision in the Declaration of Rights by calling itself something other than what it really is, or merely by having itself incorporated under one provision of the law rather than another.
The mere fact that a corporation is under the control of members of a particular church does not make it a religious corporation. In State v. Board of Trustees, 175 Mo. 52 (S.C. 74, S.W. Rep. 990), the Act there in question provided that: "An institution of learning is hereby authorized and established in or near the town of Fulton, Callaway County, to be known as `Westminster College,' and in all its interests *Page 263 to be under the care and control of the Synod of Missouri, in connection with the General Assembly of the (Old School) Presbyterian Church in the United States of America." Trustees were named in the Act, the power to appoint their successors was given to the Synod of Missouri, and the trustees were given the power to appoint the faculty, prescribe the course of study, confer academic degrees, etc. The charter was attacked as being in violation of the Constitution of Missouri of 1820, which ordained that "no religious corporation can ever be established in this State." The Court said: "The sum of the argument is that, because the Synod of the Presbyterian Church in Missouri is given the care and control of the interests of the corporation and the appointment of the trustees, it is therefore a religious corporation. A corporation established for purely academic purposes, for education in literature and in the arts and sciences, is in no sense a religious corporation, even though it be given into the care and under the management of a religious body." Again it was said: "The argument is that, if the religious society has the selection of the teachers and the management of the college affairs it is enabled to propagate its religious tenets in the youth who come within its influence. But that is an incident of which the law takes no account. It does not charter the corporation to teach religion, but to educate in literature, arts and sciences; and if while a youth is receiving such education he is brought under the influences of a particular religion, the law has no concern with that incident. A corporation, for its character, is to be judged by the objects of its creation, as expressed in its charter." It was also held in Missouri that a corporation might lawfully be formed, under its statute regarding fraternal beneficial societies, which limited its membership to members of a particular church and that such was not a religious corporation. Franta v. Bohemian RomanCatholic Cent. Union, 164 Mo. 304 (S.C. 54 L.R.A. 723). See alsoColonization Society v. Hennessy, 11 Mo. App. 555; In reFay's Estate, 76 N.Y. Supp. 62; In re Watson's Estate.171 N.Y. 256 (S.C. 63 N.E. 1109). *Page 264
But the case which is perhaps most analogous to this is that ofColbert v. Speer, 24 App. Cas. (D.C.) 187. JUDGE ALVEY delivered the opinion. The Court was considering a devise and bequests to the Georgetown College, which were objected to because it was contended they were intended to be "for the support, use and benefit of a religious sect, order and denomination, and to a public teacher of the Gospel as such." As the Maryland Declaration of Rights was in effect in the District, the decision is peculiarly applicable. The Court said: "The fact that the college is or may be under the administrative control of a religious order known as the Order of Jesus does not bring the institution within the prohibition of the Declaration of Rights. The college is not a religious institution intended for the tuition and propagation of a particular doctrine and creed of religious belief, to the exclusion of all other creeds and beliefs, but it is an institution of learning for the admission and education of students of all denominations of religious faith. The act of incorporation of the college does not limit the exercise of the corporate powers conferred to the promotion of any religious creed or denomination, but the college is open to all alike. For limitations of the powers and objects of the college we must look to the charter granted by Congress, and not elsewhere." JUDGE ALVEY quoted at length from Bradfield v.Roberts, 175 U.S. 296, which involved an appropriation by Congress for the erection of hospital buildings, a part of which was about to be applied to the erection of a building at Providence Hospital, which was under the auspices and control of an order of sisterhood of the Roman Catholic Church, and it was alleged that the title to the hospital's property was vested in the Sisters of Charity of Emmitsburg, Md. It was objected to on the ground that it was in violation of the Constitution of the United States that "Congress shall make no law respecting an establishment of religion." The Supreme Court in that case said: "Assuming that the hospital is a private eleemosynary corporation, the fact that its members, according to the belief of the complainant, are members of a monastic order or *Page 265 sisterhood of the Roman Catholic Church, and the further fact that the hospital is conducted under the auspices of said church are wholly immaterial, as is also the allegation regarding the title to its property. The statute provides as to its property and makes no provision for its being held by anyone other than itself. The facts above stated do not in the least change the legal character of the hospital, or make a religious corporation out of a purely secular one, as constituted by the law of its being. Whether the individuals who compose the corporation under its charter happen to be all Roman Catholics, or all Methodists, or Presbyterians, or Unitarians, or members of any other religious organization, or of no organization at all, is of not the slightest consequence with reference to the law of its incorporation; nor can the individual beliefs upon religious matters of the various incorporators be inquired into. Nor is it material that the hospital may be conducted under the auspices of the Roman Catholic Church. To be conducted under the auspices is to be conducted under the influence or patronage of that church. The meaning of the allegation is that the church exercises great and perhaps controlling influence over the management of the hospital. It must, however, be managed pursuant to the law of its being."
The case of Colbert v. Speer, was affirmed in Speer v.Colbert, 200 U.S. 130, where it was said the reasoning set forth in the opinion of the lower Court was entirely satisfactory and concurred in.
The charter of this appellee recites that at a meeting of the contributors of an institution called the Church Home for the Relief of the Poor and Destitute, it was resolved that the trustees theretofore charged with the collection of the fund be appointed to continue their work and to manage and enlarge the fund: "Resolved, That they have power to add to their number from among the clergy and laity of the Protestant Episcopal Church and that they are authorized to fill vacancies occurring in their body." It states that they were desirous of availing themselves of the provisions of the Acts of *Page 266 1852, Ch. 231, for the formation of corporations for charitable purposes.
In Art. 1 the name of the corporation is given, which was to be composed of seven persons named, "together with such clergy of the Protestant Episcopal Church, resident in the City of Baltimore and laymen of the same as contributing to its funds and having been elected thereunto shall sign this constitution." Art. 2 is as follows: "The object of this body shall be to provide and sustain a home for poor and distressed persons belonging to the Protestant Episcopal Church and others, and through the Ladies' Church Home Society or other approved agencies to minister to their temporal and spiritual wants." Art. 5 provides for "the election of a rector of the Church Home, who shall hold his office for the ensuing year, and no person shall be elected to the office unless he is a minister of the Protestant Episcopal Church in good standing in the same;" and Art. 6 provides that the bishop of the diocese shall be ex officio visitor of the Church Home.
In 1857 the charter was amended changing the name to the present one and providing "that the second article be so amended as to declare more explicitly in accordance with the design upon which the society was founded, that the object of the body shall be to provide and sustain a home for the sick as well as other distressed persons." The fifth article was amended so as to provide for the election of a rector, warden, chaplain, physicians or any other officers whom they may deem necessary, and providing that no person should be chosen to any of said offices unless he be a communicant of the Protestant Episcopal Church, and if chosen rector or chaplain shall likewise be a minister of said church.
We have thus referred to the portions of the charter most relied on by the appellants, but it would seem to be clear, under the authorities above cited, that none of those provisions, nor all together, can convert into a religious corporation what on the face of the charter is shown to be intended to be a corporation for charitable purposes, under the Act of 1852. Art. 2 of the charter perhaps gives more foundation for the claim of *Page 267 the appellants than any other part of it, but that provides: "And through the Ladies' Church Home Society or other approved agencies to minister to their temporal and spiritual wants."
By the charter itself it is shown that the charitable purposes were not to be confined to those belonging to the Protestant Episcopal Church, but to them "and others." It certainly would not make a hospital a religious corporation by having a chaplain, or a rector, and authority to call in the Ladies' Church Home Society (whatever that was), or other approved agencies, to minister to the temporal and spiritual wants of the poor, sick and other distressed persons ought not to determine this to be a religious corporation.
Some institutions of a like character, admittedly of a purely secular nature, have chaplains and even chapels in which to hold religious services for the benefit of the inmates, but simply because the spiritual wants of the sick and other distressed persons are also ministered to cannot convert the institution into a religious corporation. If, as was said by JUDGE ALVEY: "The fact that the college is or may be under the administrative control of a religious order known as the Order of Jesus does not bring the institution within the prohibition of the Declaration of Rights," or if, as was said by the Supreme Court, the fact that the members of the corporation (Providence Hospital) "are members of a monastic order or sisterhood of the Roman Catholic Church and the further fact that the hospital is conducted under the auspices of said church are wholly immaterial," surely it cannot be logically said that because the officers of this corporation are by its charter required to be either ministers or laymen of the Protestant Episcopal Church, it is converted into a religious corporation, although it would not have been if those provisions had been omitted from the charter, notwithstanding such qualifications were in fact required.
It would be a manifest evasion of the provisions of the Declaration of Rights to permit a corporation to be formed for such purposes as this was and avoid the application of that *Page 268 provision simply by leaving out of the charter such provisions as we have referred to, if it would be applicable, if they were inserted.
This is not a gift to a religious sect, order or denomination, but it is to a corporation organized for charitable purposes, although controlled by the members of a particular sect. The corporation can be required to carry out the objects and purposes of its incorporation as expressed in its charter. The charitable work for which it is organized is not limited to members of the Episcopal Church, but is distinctly declared to be for them and others. The object of the corporation, as expressed in its charter, is to provide and sustain a home for the sick and other distressed persons, which purposes are clearly those of a charitable, as distinguished from a religious corporation under our corporation laws. As well might it be said that a relief association organized for the relief of the employees of a railroad company was a railroad corporation if the membership and officers were limited to such employees, or that an insurance company limited to insuring officers and employees of banks was for that reason a banking corporation, as to hold this to be a religious corporation by reason of the provisions of the charter above referred to. We can see a possible reason why the membership of a charitable organization such as this cannot be confined to the clergy and laity of a particular church, and, if so confined, why it must necessarily be said that a gift to it would be a gift to a religious sect, order or denomination. The provision in the Declaration of Rights cannot and ought not to be ignored when applicable, but it ought not to be unnecessarily extended beyond its object and language. We are of the opinion that it is not applicable to this appellee.
3. It is contended by the appellant that the provision in the will for this corporation created a trust; that the class of beneficiaries is too indefinite and that the trust is obnoxious to the Rule Against Perpetuities. In the first place, the testator gave and bequeathed the one-half of the property in controversy to the Church Home and Infirmary itself, and not to it *Page 269 as trustee for others. The fact that it is directed to be kept as a separate fund, and the income to be used for the purposes named, can make no difference, provided those purposes, or some of them, be within the object of the appellee's incorporation. The latest case on the subject involved a gift to this same corporation and answers the contention of the appellants as to its being kept as a separate fund, as well as some other objections to this bequest. In Ege v. Hering, 108 Md. 391, the will of Miss Sallie Longwell was under consideration. There the gift was to this appellee "to endow a bed according to the custom and purpose of that institution," and it was held to be valid. To "endow a bed" unquestionably contemplated the fund being held separate and the income applied to maintaining that bed, and JUDGE SCHMUCKER, in delivering the opinion of the Court, said: "The mere fact that it was, by the terms of the will, to be applied to a particular, clear and well-defined object plainly within the sphere and function of the institution, has been several times held by us not to avoid a gift which could have been made to the same institution for its general corporate purposes" — citing Eutaw Baptist Church v. Shively,67 Md. 494; Halsey v. Convention of P.E. Church, 75 Md. 275;Hanson v. Little Sisters of the Poor, 79 Md. 434, andWoman's For. Miss. Soc. v. Mitchell, 93 Md. 199. See alsoEngland v. Vestry, 53 Md. 466; Erhardt v. Balto. MonthlyMeeting of Friends, 93 Md. 669.
It is difficult to understand how it can be said that "maintaining aged and infirm persons in said home or in maintaining free beds in their infirmary in the discretion of said legatee" is not in accord with the spirit, if not the very letter, of this charter.
Especially is this so when the Act under which it was granted authorized such a corporation to hold any kind of property and to employ, use and dispose of it "according to its articles, objects and conditions of its charter, or according to its articles and by-laws, or in case of a devise or bequest, according to the will and intention of the donor, if the same be *Page 270 lawful and within the proper objects and powers of the said corporation." We have no doubt that maintaining aged and infirm persons is within the objects and powers of the corporation, but if that could be disputed certainly maintaining free beds in the infirmary is. We do not suppose it will be questioned that if a bequest is made to a legatee for either of two purposes, in the discretion of the legatee, and one of them is lawful, and the other not, that the bequest is valid for the lawful one. A number of cases are cited to that effect in the brief of the appellee, but we will not here refer to them.
It would serve no good purpose to compare the decisions elsewhere with those made by our predecessors in Dashiell v.Attorney-General, 5 H. J. 392, and 6 H. J. 1. Those cases have been too frequently, and too recently, recognized by us to permit us to disturb them, if we were inclined to do so, but there must be a trust which is uncertain as to the beneficiaries, or which creates a perpetuity, in order to justify the Court in striking down a devise or bequest, unless, of course, there be other reason for doing so. The cases in this State fully establish the doctrine, that when property is left to a corporation for such uses as are within the scope of its corporate purposes, or the objects to which the gift is to be applied are such as the corporation was organized for, then such gift cannot be declared invalid on the ground that it was in trust for indefinite objects, or in conflict with the rule against perpetuities, unless the intention to create a trust be clear. If this were not so, it would be useless to organize charitable corporations of the character of these appellees, for what we are now considering applies to both.
In Eutaw Place Baptist Church v. Shively, supra, it was contended that, as the Sunday school was an unincorporated body, the bequest to the church "to be applied to the Sunday school belonging to or attached to said church" was in trust for an undefined and uncertain body of individuals, who changed from time to time, and consequently the bequest was void because of that uncertainty and want of legal identification of the objects to be benefited. But the Court declined to concur *Page 271 in that contention and said that the Sunday school was an integral part of the church organization, "and therefore embraced within the scope of the corporate functions and work of the church," and the bequest was capable of being enforced.
In Halsey v. Convention of the P.E. Church, supra, the Court said: "The statute of 43 Elizabeth in regard to charities is not, it is true, in force here, but it is well settled that a Court of chancery has jurisdiction, independent, altogether of the statute, to enforce a trust for charitable and religious purposes, provided the devise or bequest be made to a person or body corporate capable of taking and holding the property so devised and bequeathed, and provided, further, the object and character of the trust be definite and certain." The two cases last cited are quoted and affirmed in Hanson v. Little Sistersof the Poor, supra. See also Peter v. Carter, 70 Md. 139. The "Trust" referred to in those cases is of the character that requires all such corporations to hold their properties for the purposes for which they are authorized to use them under their charters.
In Bennett v. Humane Imp. Soc., 91 Md. 10, where property was given to two charitable corporations "provided the trustees and managers of said homes admit and receive into said homes during the existence or continuance of said homes one aged man or one aged woman each and every year for each and every four hundred dollars of the income * * *, and provided also that such aged person so to be admitted shall have always through life maintained a good moral character and that his or her penury shall not have been the result of his or her vicious or immoral conduct," it was held not to create a trust as to the use of the property when it appeared from the whole will the testator did not intend to create a trust, and when if a trust should be established the entire gift would be defeated, and that such a society takes the property to be given for its general corporate purposes, subject to what was decided to be a condition subsequent. It was held that that will did not create a trust and that consequently *Page 272 the devise was not void, either for uncertainty as to the beneficiaries or in creating a perpetuity.
In Trinity M.E. Church v. Baker, 91 Md. 539, a number of devises and legacies were considered, some of which were held to be trusts and void for uncertainty, but we will refer to two which were sustained. The testatrix gave to the trustees of the Randolph-Macon College, a corporation, a bequest of $4,200 "to be applied to aid deserving and promising young women, especially such as expect to enter upon mission work, to attend the Randolph-Macon Woman's College, at Lynchburg, as students, such aid to be either by loans or free scholarships, as said trustees may deem best," and also $800 to the same corporation, "for the education of one or more worthy girls." The Court held those two bequests to be valid, because the legatee was an incorporated body having for its object the education of the young, and the evidence showed that a part of its work was carried on through the agency of the Randolph-Macon Woman's College, at Lynchburg. It was said of the first mentioned bequest: "It is not given as a trust, as has been contended, but it is dedicated by the testatrix to an object entirely within the general scope of the objects and purposes of the corporation. That the testatrix indicated the particular use to which the fund is to be applied does not invalidate the gift," and the Court declared that the other was valid for the same reason.
In Woman's For. Mis. Soc. v. Mitchell, 93 Md. 199, the testatrix directed certain property to be sold "and the proceeds thereof, together with whatever monies I may die possessed, be held in trust by the Board of Managers of the Foreign Missionary Society of the Methodist Episcopal Church of the United States of America for the following purposes: After all my debts, bequests and provision for my burial, etc., be paid, that sufficient be used to educate as Bible readers in India six girls * * *; the money remaining after that set aside for education of the aforesaid Bible readers to be applied to the purchase of a building to be used for the education of girls in India to be called the `M. Adelaide *Page 273 Sherman Home,' and the location of said building to be left to the decision of Bishop Thoburn or his successors." The late CHIEF JUDGE McSHERRY said: "Now, perhaps, had the precise phraseology, which is found in the will before us, been used in making a like devise and bequest to a natural person, it might be said that the design was to create a trust, because the purposes indicated are not those ordinarily performed by an individual; but when it is remembered that the very end which the corporation here made the beneficary was organized to effect is the education of Bible readers and the instruction of girls in foreign lands, it becomes evident that the property was given to the corporation not in trust for indefinite objects, but that it was given to it to be used for its recognized and clearly defined corporate purposes. The specific design of the gift is that the proceeds of the property shall be used, that is spent, by the beneficiary forits chartered ends and not for someone else's benefit. The corporation is not to hold the fund for the use of others, but it is to spend that fund in the prosecution of its missionary work. * * * The whole scheme of the testamentary disposition contemplates imposing upon the beneficiary in declaratory language precisely the duty which its charter would have required it to perform with respect to this property had such declaratory language been omitted; save as to the number and names of the girls to be educated. These exceptions constitute, we think, not evidence of an intention to establish a trust, but they denote simply a condition which has been annexed to the gift."
JUDGE McSHERRY also said: "What has been said in relation to the six Indian girls is also applicable to the remaining portion of the clause respecting the purchase of a building to be used for the education of girls in India. This is a gift to the society, the property given to be used in the line of that Society's mission work. The use is a corporate use within the limits of its charter powers." See also Erhardt v. Balto.Monthly Meeting, supra, and Ege v. Hering, supra. *Page 274
Without further prolonging this poinion by discussing the cases relied on by the appellants, it is only necessary to say that they are distinguishable from those that we have quoted above. Most of them were to individual trustees, and were cases in which trusts were held to exist, but unless we overrule many decisions of this Court the contention of the appellants cannot be sustained.
When a testator designates the use of property left by him to a corporation of a character of these two, and those uses are just such as the corporation would make of it in carrying out the objects and purposes of its incorporation, it is like making a person a trustee for himself to declare such uses a trust. It would be equivalent to saying the corporation took the propertyin trust for such purposes as its charter authorized. That may be true in the sense indicated above, as all corporations hold their property in trust to use it as its charter and the law requires, but that is not the kind of trust which the appellants would have to establish the existence of in order to sustain their contention.
4. We will only add that what we have just said as to the Church Home and Infirmary is for the most part applicable to the bequest to the Emmanuel Church Home. The very purpose of that corporation, as expressed in its charter was, "the aiding of deserving poor women and children," and the bequest to it provides that the income thereof is to be used "under their rules and in the discretion of said legatee in assisting or maintaining poor respectable sewing girls or apprentices, unable to pay over two dollars a week for their board or unable to pay any thing." It would seem to be clear that the bequest is for a purpose within the scope of its charter, and hence what we have said along that line in reference to the Church Home and Infirmary is applicable. *Page 275
We therefore hold that there was no such trust impressed on either of these bequests as made them subject to the objections urged against them, and that both are valid. Having reached that conclusion it is unnecessary to consider other questions argued.
Decree affirmed, the costs to be paid out of the funds in thehands of the trustees