Page:Harvard Law Review Volume 8.djvu/107

91 ILLUSTRATIONS OF THE ORIGIN OF CY PRFIS. 91 From this general sketch of the sources and early characteristics of cy prks^ so tersely summarized in the phrase of C. J. Wilmot, with which we began this article and which had become a tradition in his day, the grounds of his succinct statement may perhaps be more clearly apparent. As, in those earlier ages, pious donations were the price paid to heaven or to its more exacting broker, the Church, for its favor; "one kind of charity" would indeed have "embalmed the testator's memory, as well as another;" for his intent was not the application of the purchase-money, but the delivery of the goods purchased. We have in fact done little more than illustrate in detail the views concisely given in the rest of C. J. Wilmot's judgment: — " The right of the heir at law," he says, " seems to arise as naturally in this case as in any other. But instead of favoring him as in all other cases, the testator is made to disinherit him for a charity he never thought of, — perhaps for a charity repugnant to the testator's intention, and which directly opposes and encounters the charity he meant to establish. But this doctrine is now so fully settled that it cannot be departed from, and the reason upon which it seems founded is this : The donation was con- sidered as proceeding from a general principle of piety in the testator. Charity was an expiation of sin and to be rewarded in another state ; and therefore if political reasons negatived the particular charity given, this court thought the merits of the charity ought not to be lost to the testa- tor nor to the public, and that they were carrying out his general pious intention ; and they proceeded upon a presumption that the principle which produced one charity would have been equally active in producing another, in case the testator had been told that the particular charity he meditated could not take place. The court thought one kind of charity would embalm his memory as well as another, and being equally meri- torious would entitle him to the same reward." While it certainly cannot be denied that this conclusion derives logically from the origin of cy prh, and that the testator's para- mount object being salvation, the means were immaterial, yet that such a doctrine should not only have survived the state of society and of belief in which it originated, but also have been developed into an integral part of the jurisprudence of a social order and faith radically diverse, may occasion surprise. And a doubt may arise whether in administering it, the peculiar circum- stances of its beginning and development — we might indeed say the necessary conditions of its existence — are borne in mind; or whether it is considered that the modern testator, not intending