Inglis v. Trustees of the Sailor's Snug Harbour in the City of New York/Concurrence Johnson

Mr Justice JOHNSON.

I concur in the opinion in favour of this devise; but this is one of those cases in which I wish my opinion to appear in my own words.

This case comes up on a certified difference of opinion on five points. I take them in their order on the record, not that in which they were argued. The first, which is a technical question, and of minor importance, I shall pass over.

The second, which depends upon the civil or political relation in which the demandant Inglis stands to the state of New York, has been exhibited under four aspects. The first contemplating him as born in the city of New York before the the 4th of July 1776. The second, as born after that period, but before the British obtained possession of the place of his birth. The third, as born in New York while a British garrison. The fourth, as born an American citizen, before the treaty of peace, but having elected to adhere to his allegiance to Great Britain. In the argument there was a fifth aspect of the question presented, which depended upon the act of confiscation and banishment by the state against the father of the demandant. On the subject of descent, in Shanks's case, which having been argued first in order, I had prepared first to examine; I have had occasion to remark, that the right being claimed under the laws of the particular state in which the land lies, the doctrines of allegiance, as applicable to the demandant, must be looked for in the law of the state that has jurisdiction of the soil.

In this respect the laws of New York vary in nothing material from those of South Carolina. By the twenty-fifth article of the constitution of New York of 1777, the common law of England is adopted into the jurisprudence of the state. By the principles of that law, the demandant owed allegiance to the king of Great Britain, as of his province of New York. By the revolution that allegiance was transferred to the state, and the common law declares that the individual cannot put off his allegiance by any act of his own. There was no legislative act passed to modify the common law in that respect; and as to the effect of the act of confiscation and banishment, the constitution of the state has in it two provisions which effectually protect the demandant against any defence that can be set up under the effect of that act. The thirteenth article declares that 'no member of the state shall be disfranchised or deprived of any of the rights of privileges secured to the subjects of the state by that constitution, unless by the laws of the land or the judgment of his peers.' And the forty-first declares, 'that no act of attainder shall be passed by the legislature of the state for crimes other than those committed before the termination of the present war, and that such acts (which I construe to mean acts of attainder generally) shall not work a corruption of blood.'

I shall therefore answer the second question in the affirmative; that is, that he was entitled to inherit as a citizen, born of the state of New York.

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. The words of their statute of wills are broad enough to carry any right or interest in lands, and such practically seems to have been the uniform understanding in that state.

On the second point, under this question, the facts seem to furnish a very obvious answer. Whatever be the rule in other cases, and I do not feel myself called upon to say what the rule is, it certainly can have no application here, since it is through Mrs Brewerton that the demandant has to trace his title. Certainly then it must be a good defence, if the tenant can establish that it could not pass through Mrs Brewerton, if she had prevented its descending by an act of her own, valid to that purpose. That question also I should answer in the affirmative.

On the fourth question, I feel it difficult to give a precise answer. An attachment, and conveyance under it, are equivalent to an execution executed. But then there is reason to believe, that the situation in which we find this attachment is analogous to that of an execution, satisfied without the sale of this particular property levied upon. Then could such an execution interfere with the rights of the heir?

It does not appear to me that this question can be answered until the fact of satisfaction can be affirmed or repelled. It is for or against the demandant, according to that alternative.

The fifth is the material question, and since it has been acknowledged in argument, that this suit was instituted on the authority of the case of the Baptist Association, it is necessary first to determine the doctrine which that case establishes.

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.

At the hearing, the court decided upon the single question, 'whether the plaintiffs were capable of taking under that will,' and accordingly this court certify an opinion to no other point. Its language is, 'that the plaintiffs are incapable of taking the legacy for which this suit was instituted.' And, notwithstanding the marginal notes of the reporter to the contrary, that I consider as the only point decided in the cause. What the law of the case would have been, had the attorney general of Virginia been made a party to the suit, and (I presume also as a necessary inference,) had the society been incorporated by Virginia, in order to enable them to take the legacy, this court expressly declines deciding (p. 50); and certainly it would have been deciding between parties not before it, had it undertaken in that suit to pass upon the interest in, or power over the subject existing in the state of Virginia. The statute of 43 Eliz. had been expressly repealed in Virginia, previous to the death of Hart, the testator; and although the learned judge who delivered the opinion of the court, goes so much at large into the origin, construction and effect of that statute, it could only have been to prove all that the case required to have established, to wit, that it is under that statute alone that, even in England, a court of equity could extend to the complainants the relief which they craved. That statute being repealed in Virginia, it followed that the equity powers of the state courts, and of consequence that of the circuit court of the United States, could no longer be exercised over the subject of the charities embraced in that statute; that the state of Virginia, where the land lay, and not the state of Pennsylvania, stood in the relation of parens patriae, and therefore, that those powers and those rights which the crown exercises over charities in England, in order to sustain and give effect to them, could only be exercised in that case by Virginia.

So far I consider the decision as authority, and so far it would require more than ordinary ingenuity to excite a reasonable doubt of its correctness. I consider it as too plain to be questioned, that the powers which the court of chancery in Great Britain exercises over bequests of charities, in cases where the interest cannot vest under the rigid rules of law, as applied to other bequests, is vested in that court by, or rather usurped under the statute of Elizabeth. I am not now speaking, it must be noted, of the power of the crown in such cases, but of the portion of the prerogative power over charities now exercised by the court of chancery in that kingdom.

I consider it as conclusive to prove the peculiar origin of this power, that there lies no appeal from the decision of the chancellor in charity cases. Cro. Cha. 40, 351. 4 Viner's Abridg. 496. And when cases occur not enumerated in the statute of Elizabeth, or not strictly analogous thereto, the crown still exercises the power of disposing of them by sign manual. See the cases collected in Viner, Charit. Uses, G. 3, and note; also, 7 Ves. 490. So that were the statute of Elizabeth repealed in England to-morrow, I see not by what authority this power could be exercised even there in the chancery courts. The history of this branch of the chancellor's jurisdiction proves that it could not be.

The plain object of the act of 43 Eliz. is to place in commission a troublesome branch of the royal prerogative, and to vest the commissioners with power to institute inquests of office, or by other means to discover charities, or the abuse or misapplication of charities, and to authorise the board to exercise the same reach of discretion over such charities as the crown possessed; subject, however, to a revising and controlling power in the lord chancellor; not a mere judicial power, but a ministerial legislation and absolute power; a power, however, secondary or appellative in its nature, not original. This controlling power being absolute and final, soon swallowed up its parent, and became original and absolute. One judge admitted the precedent of an original bill in a charity case, a second judge satisfied his scruples upon that precedent, and other judges following, regarded it as a settled practice. But in whatever way the power is exercised, whether as original or appellate, no other authority for its exercise has ever been claimed by the chancellor but the 43d Elizabeth.

The correctness of the decision of this court therefore in the Baptist Association case cannot, I think, be disputed. And yet it does in no wise affect the case now before us. But, it is argued that, if the statute 43 Elizabeth be in force in New York, and its courts can exercise an original power under it, or if they can pursue the intermediate steps necessary to the exercise of an appellate or revising power, (six in number, I think, lord Coke makes them, 2 Inst.) still it can only be a suit in chancery, in the name of the people, or of their attorney general, or of the corporation constituted by them, although vested with all their interest in, or power over the subject.

To me it appears demonstrable, that the 43 Elizabeth introduces no new law of charities, makes none valid not valid before it passed, but simply places the right and power of the court over charities in other hands. If this were not the case, why should bequests to the universities and great schools, bequests in all cases constituting private visitors, and bequests to towns corporate, (section 2 and 3) hospitals, &c. be excepted from its operation? 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; it is the organization of a machine for carrying that interest into effect, without introducing any new rule of law on the subject of construing, applying, or effectuating that intention.

What then was the law of that day, of the time when the 43 Elizabeth was passed, on the subject of charitable donations? It was a system peculiar to the subject, and governed by rules which were applicable to no other; a system borrowed from the civil law, almost copied verbatim into the common law writers. This will distinctly appear by comparing Domat with Godolphin, in the Orphan's Legacy.

It has been said that there are neither adjudged cases nor dicta of elementary writers on the subject of the law as it stood previous to the 43 Elizabeth; but this I think is not quite correct. In Swinburn on Wills, as well as Godolphin's Orphan's Legacy, both books of great antiquity and of high authority, we find all the rules for construing, enforcing and effectuating charities which have been maintained and acted upon in the chancery since the 43 Elizabeth, laid down as the existing laws of charitable devises; and yet the statute of Elizabeth is not quoted by either as the authority for their doctrines; but their margins are filled with quotations from books which treat of the civil and common law. God. Orph. Leg. Sec. Ed. 1676, P. 1, ch. 5, sec. 4, p. 17. Swinb. on Wills, P. 1, sect. 16. And in so modern a book as Maddock's Cha. Vol. 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.

Nor are these authors without adjudications to sustain the position, that the law was such before as well as after the statute 43 Eliz. Rolt's Case in Moore, p. 855, was the case of a will which occurred long before the statute of Eliz. passed. The devise was of land not in use, and not devisable by law or custom; so that had it been to an individual, it had been clearly void. Accordingly, the heir at law entered; yet, after the statute of Elizabeth, it was hunted up and returned upon inquest, under the statute; and the lord chancellor on an appeal, having called in the aid of the two common law chief justices, they all held it a good limitation or appointment. Now there never has been a time when a subsequent statute, general in its provisions, as was that of charitable uses, could divest a right legally descended upon an heir at law. It follows, that the devise must have been good without the aid of that statute; this decision took place in court twenty years after the date of the statute.

So also in Revett's Case in the same book, p. 890, when the will was made and the death of the devisor took place in 1586, about seven years before the statute of 43 Elizabeth, and there had been no surrender, the land being copyhold, so that the devise to the charity was clearly void if made to an individual, and accordingly the younger son entered; the charity was enforced against a purchaser from the heirs, under the idea that it was good as an appointment; clearly in pursuance of the rule, that wherever the donor has power to convey, and manifestly intends to convey, the law will make good every deficiency in favour of charities.

And in the case of sir Thomas Middleton, which also happened before the statute, and where the legal defect lay in the legal insufficiency of the party in interest, and which was not a case of devise, yet it was held good.

It is true Perkins gives an instance of a very early date (40 Edw. 3; see Perkins, sec. 510), of a devise to a society not incorporated with power to purchase, in which the devise was held void; but on that case it may be remarked, that as the clergy had an exclusive possession of the court of chancery for many years after, (to 26 Henry 8), it is easy to perceive how the law of charities came to be improved to what it appears to have been at the date of the cases quoted from Moore. And there are two other remarks applicable to the cases in Perkins. 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. 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.

And secondly, there is this difference between the case in Perkins and the present case, that the former is expressed in words which contemplate vesting presently; the latter, in words which contemplate a future vesting: which I consider an all important feature in the present case, and one which may give validity to the present devise, without resorting to the aid of those principles which appear peculiar to charitable bequests.

But as a charity, to be governed by the law of the state of New York, it appears to me almost idle to view this case with reference to any other rule of decision than their own adjudications. The case of the Trustees of New Rochelle, 8 Johns. Ch. Rep. p. 292, was a case of greater difficulties than the present; for there the devise is immediate in presenti, to a devisee having no capacity to take at the time. The legislature afterwards gave that capacity, and the court held the devise valid; nor is it unimportant in that case to observe, that the case in Ambler, 422, of the devise to 'the poor inhabitants of St Leonard's Shore-Ditch,' is recognised as authority; as well as that of the Attorney General vs. Clarke, in the same book, 651.

Now this decision seems full to these points: 1. That the legislature of that state can, ex post facto, give a capacity to take a charity, where there was no such capacity existing at the time of devise over, is a case where the future existence of that capacity was not contemplated by the testator. 2. That an act of incorporation, with capacity to take, dispenses with the presence of the representative of the state, in a suit to recover such a charity.

What more can be required in the present case, especially where the devisee is the party demandant.

It is no objection to the authority of the New Rochelle case, that it was a suit in equity; for in a case like the present, where nothing is wanting but a competent party to sue or be sued, whenever that party comes in esse, there can be no reason why the suit should not be at law, if courts of law are competent to give relief. Had the devise been void in the case referred to, the estate must have vested in the legal representative, and could no more have been shaken in equity than at law.

But I have said, that the defendant here might dispense with the aid of the peculiar principles of the law of charities; and my opinion distinctly is, that the devise is good upon general principles, in every respect, unless it be in the time of vesting; then it is not restricted within the legal limits, since the legislature may, by possibility, never constitute the corporation contemplated in the will.

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.

This is the case of a devise to an infant in ventre sa mere; and this the ground of the distinction in Hobart 33, of a present devise to a corporation where it is or is not in progress towards positive existence.

Now the present case is one clearly of an alternative devise to such and such official characters, if by virtue of that devise they can take in perpetuity and succession; and if not, then to them when constituted a body politic by positive statute. Here is clearly contemplated a future vesting, to depend on a capacity to take, to be created by a legislative act; and if the passing of that legislative act had been restricted by the will, in point of time, to the lives of the individuals filling those offices at the time of the death of the testator, on what possible ground could the devise have been impeached?

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; a case in which the plaintiffs might as well have waited for ever upon the legislative will, as in the present case.

There may be a reason for this distinction, since it depends upon the sovereign will to prevent the perpetuity at once; and the presumption is, that the legislature will not delay to do that which it ought to do. And whence at last arises this rule against perpetuities? It is altogether an act of judicial legislation, operating as a proviso to the statute of wills; a restriction upon the testamentary power. The authority from which the exception emanated could certainly limit it so as to prevent its extension to an object under the care of the sovereign power.

Upon the whole, I am of opinion that the act of incorporation was at least equivalent to the king's sign manual, and vested a good legal estate in the tenant. That although in the interval it should have descended upon the heir, it desended subject to be divested and passed over by that exercise of prerogative power. But I perceive no necessity for admitting that it ever descended upon the heir; since the right of succession seems rather to be in the commonwealth in the case of charities, as parens patriae.