dissenting. — The amount of property involved in this case has elicited much industry in the preparation and great talent in the argument. The case has been several times argued, but the court have never been so fortunate as to come near unanimity; and upon its decision, the minority not being a solitary individual, it relieves me, as‘*I agree with the learned judge who has dissented, from going into the case in detail, which indeed, from the great learning which the counsel have displayed, would be quite above my ability. Yet the importance of the question, and the fear that the precedent may lead to dangerous consequences, and having left the court before the decision was pronounced,, induces me to record some of the reasons of my dissent, without pretending to discuss the whole subject. For it may happen that a judge as well as a juror may feel that it is his duty to resist the conclusion which has been ingeniously urged upon him, without having learning enough to detect all the errors in the process.
Among the points presented in writing by one of the able counsel for the societies, at the last term, were the following.
“9th. In the case of a charitable use, like other trusts, there must be a legal estate to support it.
“ 10th. The testator has vested the legal estate in these money legacies in question, subject to the charitable use, in the treasurer for the time being, viz: the time when the legacy is to vest.”
The ninth proposition, although it has not, I believe, been re*312peated by the gentleman this term, I regard as the frank admission of a good lawyer, made from a conviction that it was undeniable, and which satisfied me of its truth.
The tenth being an adverse proposition, required to be proved; and if that is made out, the generous advocate has lost nothing by the ninth. On this tenth point, in my view, hangs all the law and the equity that should govern the case; for if the property was vested in the societies, or their treasurers, it should be decreed to them, and if necessary, they should be protected in the enjoyment of it, by expending it in works of piety and charity, according to the benevolent intentions of the associations. If not, the residuary legatees are fairly entitled to it for their benefit, according to the undisputed powers of the court of chancery relating to legacies and trusts.
I am satisfied, from the arguments, and authorities cited, that no legal estate passed by will to the societies or the treasurers, nor any individuals who have been or will be treasurers; and as I understand that to be the opinion of a majority of the court, I am not a dissentient on this point, and therefore it is not my province to state the grounds of this opinion.
The arguments that are the most strongly urged at this term are, that it is within the power and is the duty of this court, as a.court of chancery, to sustain these bequests as appointments to pious and charitable uses, if they are not supported by the law; — that we are warranted in doing this by the civil law as adopted by the English courts of chancery before the statute of Elizabeth, or at all events after; — and that the spirit of the statute has descended to us, and if absolutely necessary, the statute itself.
Lord Mansfield, it has been said, would resort to the civil law when straightened. The Roman law, in its day, was wise and potent ; but when the numerous popish clergy who followed William the conqueror, and engrossed all the offices in the realm, being ignorant of the laws of England, introduced the civil law, and intermixed it with their own canon law, it was seen to be favorable only to the monkish clergy, who were delighted with it, but it was universally resisted by the nobility and laity. But the pope, with his enthroned archbishops and installed bishops, was an overmatch for the nation, and in the fourth reign from the conquest, fastened these laws upon them, together with an appeal to the court of Rome, as a part of the common law; and it is remarkable that at the reformation, in lieu of abolishing the canon law, the statute of 25 Henry VIII. established it when not repugnant to the law *313of the land or the king’s prerogative, until a new canon law should be made, which not being done’ by the 1st Elizabeth, that statute was revived arid confirmed ; and there having been no canon law of the land before the popish, and none having, been substituted since the jeformation, it seems the protestant episcopal church in England is still governed by the canons of the mother church. But the civil law, save such part as has become canon, has not been established by act of parliament, and if it had, with the same exceptions, (“ when not repugnant to the law of the land,”) would not affect the construction of wills, upon which the common law is not silent, and to the courts of which the chancellor himself often resorts for aid. The civil law, as such, has no force in England, except from usage in some particular cases, and in some particular courts, where they have adopted the civil law doctrine of charities. Roberts on Fraud, 353, in note 125, says, “ By the civil, and more particularly by the canon law, certain preferences and indulgencies were allowed to the testamenta ad pias causas. But it does not appear that our law makes any distinction in favor of a will for the benefit of a charity. Thus if a devise be made to A and his heirs, and if A die without heirs, to a charity, such devise over is void, as it would be in case of common persons; and no favorable construction will take place to give effect to such devise over, such as would be made, if it were to a' person related in blood, so as to be capable of becoming the heir at law, from an implication of intention, founded upon the impossibility that the first devisee should die without heirs, while the ulterior devisee was living, by restricting the sense of the word ‘heirs’ to heirs of the body.” He cites Cro. Car. 57, The Attorney General vs. Gill. This last case was an information by the attorney general to establish a charity, and the lord chancellor said— “ As to what is said, that the devise of the remainder ought to be supported as given to a charity, supposing it void if given to a comr mon person, so shall it be also when-given to a charityand adds, that “ heirs” shall not be construed to mean heirs of the body, where the devise over is not inheritable, and quotes many authorities ; thus making blood a greater favorite of the law than charity even.
The same note adds, “ and on a deficiency of assets, legacies to a charity will abate in proportion of others,” and cites two cases 1 P. Wms. and adds, “But nevertheless, our courts of law of equity will not enjoin the spiritual court from proceeding in lega-*314tory matters according to the civil law.—Fielding vs. Bond, 1 Vern. 230.” In Masters vs. Masters, 1 P. Wms. 422, the master 0f ti16 ro]is saySj «that the charities, though preferred by the civil law, ought to abate in proportion, for they were but legacies.” In Attorney General vs. Hudson, the lord chancellor said that all the legacies, as well to charities as others, should abate in proportion, for though the Roman law preferred a pious or charitable legacy to others, ours does not; and in a note it is said, “ But the spiritual court give a preference to charity legacies, and lord North would not enjoin them.” This shows that there is yet a conflict of laws in the different courts as to charitable uses; and this single note is some evidence to my mind, that the general understanding of the profession there is, that the common law will not violate its own settled principles in favor of a charity which may not always be just; for what a charity gains, some one or more must lose ; and it is not because our ancestors thought less of piety and charity, but because they respected more the certain and sure tenure of property and the tranquil succession of the offspring to that of their ancestors, that .they guarded more against the caprice of testators.
Much creditable research and acumen have been shown in endeavoring to make out that the courts of chancery, by their common and ordinary jurisdiction, independent of the statute of Elizabeth and of the prerogative, have sustained defective', and at law, void bequests to charities, &c. Duke on Charitable Uses, with the readings of Sir Francis Moore upon the statute of charitable uses, which it is said to be suspected bad escaped the attention of the supreme court of the United States and of lord Loughborough, and which is so rare in America that its only fellow is in the library of some (I suppose inaccessible) antiquarian society, has been imported for the occasion. As great judges and chancellors have differed on this topic, it was a fit subject of forensic criticism, but to me it appears, that if there has been some few such decisions, they were • made by ¡confounding the civil and canon law, the previous statutes, and the prerogative together, with the superstitions of the times, and has become as obsolete as the book which contains them, and which, it seems, is not known at the capital and scarcely at Westminster Hall, and should now be regarded rather as buoys to deter than beacons to invite. Many of the cases in Duke show that wretched work was made with charitable uses, some, if not all, under the statute. A few will be transcribed as a specimen. Page 386 — “ A wife having power to dispose of her personal estate, which only comprehended what she had before *315marriage, got afterwards into the possession of a large personal estate, in a private manner, upon the death of her father, and concealing the same from her husband, disposed thereof to charities. Held that what was so concealed from the husband shall not be made good to him, so as to disappoint the charities.” Page 390 — ■ “ A devise to trustees for the benefit of a charity, the trustees died in the life-time of the testator, though it be a lapsed legacy in law, it is subsisting in equity.” Page 401 — Lord Hardwick says, “ This is a different kind of charity from those pretended ones in the times of popery and monkery.” Page 360' — “An inscription on the donor’s tomb-stone, declaring -the donor’s gift to a charitable use, was found in Ticec verba, and a decree thereupon accordingly, and is a very good precedent.” This inscription was the posthumous offspring by another father. Sir Francis Moore’s readings, Duke, p. 128 — “ It was decided, that, in case of will by a popish recu-sant to students in divinity did not mean poor priests, for that was no charity, but superstition.” Page 124' — “ Religion being variable, according to the pleasure of succeeding princes, that which at one time is held for orthodoxy, may at another be accounted superstitious, and then such lands are confiscated. Therefore, a gift of lands to maintain a chaplain or minister, to celebrate divine service, is neither within the letter nor spirit of the statute Elizabeth.” Page 125 — “ To find bows and arrows for poor children of a poor man is good, because it is an ease to the fathers who are bound to find them.” And to complete the list of unjust and ridiculous decisions, it was gravely adjudged. It is said, though it is not in Duke, that where an Israelite left money to build a synagogue, that was superstitious; but as the Jew evidently had a charitable intent, the money should be laid out to build a lying-in hospital. Shall we now assume the power that was there exercised, whether it was ordinary or extraordinary — whether it was the. spirit of the statute of charitable uses, or the domination of the clergy, who had acquired much of the landed property of the kingdom, and the bishop being the orphan’s court, denied their right to personal property, and gave it to strangers in charity at pleasure, until the statute of distributions, or any other cause which occasioned these odious decisions ? I think not, so far as I know, until this case arose, no one in this state ever dreamed of such a chancery power.
As to the statute of Elizabeth being in force here, that has latterly, with great discussion, been abandoned in the argument. The 41st section of the constitution of Vermont, has been urged as authorizing the court to extend the protection claimed to these socie*316ties. But the latter clause, which says, “ under such regulation as the general assembly of this state shall direct,” evidently gives this power to that body. They can enact a statute of charitable uses, ¡n addition to what they have done for them. Granting the power to them, is not granting it to us; but is virtually saying, if it means this protection, that we have it not, and is in favor of the other side, who have also quoted it. If it means other protection and -encouragement, it has nothing to do with this case. It is also contended that the statute of Elizabeth, or the spirit of it, has been introduced into most of the states : In some of the old states, it has been so considered, it seems.
The Pennsylvania case, reported in the pamphlet produced, in which Judge Baldwin displays so much learning, was decided on the ground that the Quaker societies “ must be considered as a body politic or corporate by presumption — as possessing and enjoying the right of succession, with the same rights of property, as natural persons do by inheritance.” That aided the cause. The balance of the opinion is what has been called sloping over.
In New-York, Chancellor Kent says, it was unsettled when he wrote; notwithstanding Chancellor Jones’ opinion, I do not understand that the glebe rights in Vermont are held upon any chancery or charitable use principle, but upon the common principles of grants — the fee to vest in the Parson, when inducted like one. And the New-Hampshire grants to the first settled minister, like a .devise to the future children of A.” But if it were so, the decision of the supreme court of the United States, in which this state, by granting away these lands to common schools, had made itself a party, would hardly be adopted as the local common law. But after all, suppose it were granted that all the English courts of chancery have and do consider that the system of churches is established, and that by these ordinary powers, they can support bequests defective at law, is it applicable to our government and community ? Is it called for by the wants of religion, virtue, or lifc. erature? For upon the question of making a precedent, and not following one already made, these are proper enquiries.
In England, for many centuries, bequests to corporations and to pious and charitable uses, by various acts of parliament and decisions of the courts, have been alternately encouraged and discouraged, as different notions prevailed, until the laws and usages bad become very much involved : ^when, by the 9th of Geo. II., the final mortmain act was passed, which did not, like Henry VIII., seize upon the property of the church, or the charities; but éffec-*317tually guarded against all death-bed importunities, as to worldly matters, and perhaps was intended among other things to remind opulent persons that deeds of charity, like the work of repentance, should not be put off to the last. This act has now existed for an hundred years, save one. Some part of it, at least, of enlightened jurisprudence and of vital piety, has been commended by many wise men, and condemned by none, so far as I know. And the present century, so far as Christian benevolence can be shown by not withholding the sinews of its warfare, has been a time of unparalleled generosity. For the Protestants of that realm have poured out their money for pious uses, as freely as the martyrs of old did their blood; and to their example we are probably indebted for much of the same spirit, which. has been manifested in this country. And shall we now introduce a system here, which has been exploded there without any apparent injury, and which probably has produced great benefits ? I do not mean to intimate that a mortmain act is required in this state. Our early marriages, and the love of progeny, of which most men have sufficient, and the general prudence and discretion of ministers and other pious men, during last sicknesses, have prevented, and is sufficient to prevent the danger of improper influences. And on the other hand, the simplicity and ease of making valid bequests to charity, which is generally less difficult than disposing legally, as is intended, of an estate, among a large family, requires no special indulgence for carelessness or mistakes. But let it remain as it has remained; and let him who deems it duty to leave his property to the public in lieu of his relatives, take the trouble to see that he does it according to law: For if he has well considered the subject, he has time and opportunity to do so : And if it is a sudden thought that suggests itself, or that is suggested to him. at too late a period to do this, its propriety may be dubious, and let his property take the course of nature, which generally will do very well. But a strong objection in my mind against assuming the power, is the great difficulty in deciding what shall be a charitable use. In many cases like the present, there could be no doubt; but in others less clear, there would be many doubts. In the list collected by Judge Baldwin, in Sarah Zane’s case, of statute and adjudged cases, to be valid on as pious and charitable,^before the statute of 43d Elizabeth, is forty-six; and those embraced by the statute, twenty-one.— These include various public matters that would not at this day and in this.country be called pious or charitable, but rather strict legal duties, if any, as “ cleaning the streets,” “ the maintenance of *318pier-walls and sea-banks,” “ maintaining the poor in houses of correction,” “ for repairing roads and bridges,” “ fitting eut soldiers’ and other taxes.” In applying these statutes or decisions, or the spirit of them, as we are urged to do, it would be necessary either to consider charitable uses to extend to every use that is not private, or it will devolve on the court to decide what objects should be considered as pious or charitable ; for it is evident that the courts of England have not considered, like Domat, that “since legacies for works of piety and charity have a double favor, both that of their motive for holy and pious purposes, and that of their utility for the public good, they are considered as being privileged in the intentions of the law.” For the public objects which I have quoted, stand upon the same footing as those that are public and pious, such as “ the endowment of a vicar to inform the people;” and it would not be contended, it is supposed, that a bequest to a railroad or steamboat, would be to a pious or charitable use, so as to entitle it to more favor than a legacy to a child, or other relation. Of course the court of chancery here must without the aid of the statute of Elizabeth, as to designating the objects, beyond the letter or spirit of which, the English, chancellors, since its passage, have never extended their charitable construction, and to that extent, with regret, decided what are objects of piety and charity, that ought to be favored and treated with more benignity in equity, than they are viewed in the austere courts of the law.
And Sir Francis Moore has said, that religion is variable according to the pleasure of succeeding princes. It might happen, that piety and charity, about the modes and forms of which good men disagree, would vary with succeeding chancellors, hnd with the excitement and fluctuations of the times and topics that engage the attention of the public. The difficulties are not the common ones which all courts have to encounter, of distinguishing cases, and applying some known rule nr principle to the one in hand; or if the case is new, the best analogous principle, and which there is sometimes perplexity in doing, but can generally be effected with tolerable correctness; because most honest men are agreed, in the main, about what is just. But the difficulty in the cases in question is intrinsic; for all things that are lawful, are not commendable ; and what is commendable at one time, is not at another, from mere change of public sentiment. Only twenty years ago, a distiller was deemed a useful citizen; — he promoted home manufactures, which tended to make us independent of other nations.— Now he is a man-slayer, because he makes liquid poison. Yet *319the business is as lawful now as then ; and upon a question of right, would be as well protected; but upon a question of favor, it would be otherwise. There has been no such change of opinion as to fraud, accidents and trusts, always the proper subjects of chancery.
But suppose we were now to make a list of uses that are to be especially protected, and therefore encouraged as bequests to pious and charitable uses, or which may be the same test, suppose any or all the societies of this and the neighboring states should claim to have a defective bequest, supported under favor — to say nothing of masonic societies, as that question has become political — how would it be with colonization and anti-slavery societies, which regard themselves as the antipodes to each other ? are they both commendable ? and if not, are we to say which, if either is ? Or suppose an endowment of a free school for blacks in the state should, or should not be favored; or the establishment of a Shaking Quaker station, or to the Mormons, or to establish a Jesuit College, or a Nunnery, or a Synagogue : These are all lawful, and equally protected, with other religious and charitable societies, by the constitution and the laws, and would receive equal justice at our hands. But in the matter of favor, as being pious and charitable uses, to say “ no” to any of them, would be invidious — to say “ yes” to them all, would be a tremendous stretch to the conscience .of an orthodox chancellor. Nothing but the express warrant of the legislature would induce me to handle these exciting questions, some of which there is already danger may affect the tranquility of the nation. And to assume orto use the undefined an'd undefinable judicial discretion, which has been urged upon us, will compel us or our successors to entertain these and other similar questions whenever they arise.
Finally, although I most cordially approve of the objects of all these societies, having been for a long time an unworthy member of some of them, or their branches, and happen to be of the same faith with the testator, and of the religious societies that he intended so liberally to patronize. Yet I cannot but believe, with due submission, that the cause should have been decided the other way.