Page:Catholic Encyclopedia, volume 3.djvu/653

 CHARITABLE

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CHARITABLE

groanings of the Spirit, asking for us, and causing us to cry, "Abba. Father" (Rom., viii, 15, 26). (See Tongues, Gift of.)

/ Cor., xii-xiv, with commentaries; St. Thomas, II-II. QQ. clxxvi-chncviii; Enc.i.manv. Dir Chariamen (Ratisbon, 1848 — beat book on the subject); Schram, Theol. mt/stica, 435: Seisf.nberger in Kirchrnler.. s. v.; Id. in Bcchbf.rger, Kirchl. Handlezikon; YVeizsacker, Apost. Age, II, 254-75. J. WlLHELM.

Charitable Bequests, Civil Law Concerning. — The word charity, as employed by the courts and used as descriptive of uses and trusts which will be upheld as charitable, has been the subject of a number of def- initions. In the famous Girard will case (Vidal v. Girard. 2 How. U. S. 127). Horace Binney defines a charitable gift : " Whatever is given for the love of God or for the love of your neighbor, in the catholic and universal sense — given from these motives, and to these ends — free from the stain or taint of every considera- tion that is personal, private, or selfish." And he further says: " Uncertainty of individual object would seem to be a characteristic of charity, for personal or individual certainty has often been held fatal to it."

The following comprehensive definition is given by a leading authority: "A charity, in the legal sense of the term, may be defined as a gift to be applied con- sistently with existing laws, for the benefit of an in- definite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffer- ing, or constraint, by assisting them to establish themselves in life, or by erecting and maintaining public buildings or works or otherwise lessening the burdens of the government" (Amer. & Engl. Ency. of Law, V, 894).

By a statute passed in the reign of Elizabeth (43 Eliz.. c. 4) certain uses were defined as charitable which would be upheld by the court in contradistinc- tion to those which were held to be superstitious after the Reformation in England. The objects enumer- ated in the statute were: "Relief of aged, impotent and poor people: maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars in universities; repairs of bridges, ports, havens, causeways, churches, seabanks and highways; education and preferment of orphans; relief, stock or maintenance for houses of correction; marriage of poor maids; supportation, aid and help of young tradesmen, handicraftsmen and persons decayed; relief or redemption of prisoners or captives; aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers, and other taxes".

Under this statute the Court of Chancery was authorized to appoint commissioners to superintend the application and enforcement of charities, and if from any cause the charity could not be applied pre- cisely as the testator had declared, the court had the power in some cases to appropriate it according to the principles indicated in the devise as nearly as pos- sible to the purposes expressed therein. This was called an application of cv pres, from the French words meaning " as near as ", the words of a will being interpreted so as to give effect to the testator's general intention. The application of this doctrine depends chiefly upon judicial expression in each particular case. In many of the United States it has been repudiated, in others sustained. The statute of Eliza- beth diil not create a new law upon the subject of charitable uses, though it did create a new jurisdic- tion, and as it has not been enacted in many of the American States, tie' better opinion seems t<> be thai tie' enumeration of charities in the statute had for its aim to show by familiar examples what class or kind of uses wen- considered charitable, rather than to enumerate all of tie' purposes whirl, would fall within the scope and intent of tie- statute. The Supreme Court of the United States has held,

following ancient authority, that there is an inherent jurisdiction in equity in cases of charity, and that they were valid in such courts independent of and previous to the statute of Elizabeth. " The character of the ob- ject sought to be attained — the purpose to which the gift is to be applied — not the motive of the donor, is the best test of a legal, public charity" (Pepper and Lewis, Dig. Pa., p. 2753). The following have been held to be charities: the erection and repair of churches, the support of ecclesiastical denomina- tions; of missions; the education of theological stu- dents, and kindred objects. In England, bequests for Masses for the dead are void in law, as being for superstitious uses; on the other hand, bequests for Masses have been sustained as charitable bequests in Ireland and in Canada icf. Lilly and Wallis. " \ Manual of the Law Specially Affecting Catholics", London, 1803, p. 144, and Desmond. " The Church and the Law". Chicago, 1898, p. 49). In the United States, some jurisdictions have sustained such trusts, while others have held them void (cf. Dillon, Bequests for Masses, Chicago, 1897). The support of education in its various forms is sustained, also the relief of the poor, the maintenance of hospitals and institutions, works of public utility, the abolition of slavery, and the benefit of freedmen. Trusts subversive of morality and religion will not be sustained. Trusts for the encouragement of sport and trusts for the care of private tombs or graveyards have not been sustained. Technically speaking, a bequest is a gift of personal property by will; a devise, a gift of real property by will; but these terms are frequently used inter- changeably in popular language, and wills are always interpreted in accordance with the intention of the testator so far as the same can be gathered from the language of the instrument; therefore any language which will serve to express a desire to vest either personal or real property in a charity will be effective.

According to Sir William Blackstone, the power of bequeathing " is coeval with the first rudiments of the law", but this power was not originally extended to all a man's personal estate. By the common law, he tells us, one-third of the goods went to the heirs, one- third to the wife, and the remaining one-third was at the testator's own disposal. By imperceptible de- grees the law was changed in different parts of Eng- land, until, in order to favour the power of bequeath- ing and to reduce the whole kingdom to the same standard, statutes wen' passed in the reign of William and Man -, of William III, of Anne, and of George II, giving the right to testators within certain parts of the Kingdom of England to dispose of their entire personal estates, notwithstanding existing customs restricting this power to one-third only, and the claim- of widows and children were utterly barred. By an act passed in the first year of the reign of Victoria ( 1 Vict., c. 26), it was enact ed t hat all real and personal estate may be disposed of by will executed as required by that act. The right of testamentary disposition either of real or of personal estate exists, with certain limitations in some of them, in all of the United States.

Lands were originally devisable, it would seem, to a qualified extent with the Anglo-Saxons. The de- velopment of the feudal system, after the Norman Conquest of England, laid upon the holders of land certain obligations to their paramount lords, which made it necessary thai these lands should not pass into the hand- oi charitable corporations and be thus withdrawn from the feudal obligation, because such corporations were of necessity unable to render the services usually due t<> the overlord, e. g. military duties, which are ncit compatible with religious life. This was the moving cause of tic passage nf certain statute- called Statutes nf Mortmain, which it is necessary to consider further in order to understand the law governing gifts to charitable corporations.