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1. That the bequest of the college fund is to this amount void, by reason of the uncertainty of the designation of the beneficiaries on cestui [**37] que trusts of the legacy.
2.That the corporation of the city of Philadelphia is not authorized by its charter to administer the trusts of this legacy, and that the intentions of the testator would be defeated by the substitution of any other trustee.
3. That if otherwise capable of taking effect, the trust would be void, because the plan of education proposed is anti-christian, and therefore repugnant to the law of Pennsylvania, and is also opposed to the provision of Art. IX. sect. iii. of the Constitution of Pennsylvania, that "no human authority can in any case whatever control or interfere with the rights of conscience."
If the first point should be established and the second not, the corporation would become trustees for the complainants. 8 Peters, 326; King v. Mitchell, 1 Merivale, 336; 2 North Carolina Rep. 557; 2 Devereux, 309; 10 Vesey, 535.
The city of Philadelphia claims as a residuary legatee, even if the trust should be declared void, but there are two answers to this, first, that a trust bars the residuary interest, and, second, that the residuum is divided into parts. Ambler, 580; 1 Johnson, 571.
In real estate, the residuary devisee never had a lapsed devise. [**38]
The bequest of the college fund is void by reason of the uncertainty of the cestui que trusts.
AT common law and prior to the statute 43 Elizabeth, such devises were void, and that statute is not in force in Pennsylvania. Duke, 125; Delford on Mortmain, 43.
The statute 5 Elizabeth, reviving a statute of Henry 8, says, henceforth it shall be lawful, &c., implying that it was not lawful before.
In England formerly all charities were under the care of the ecclesiastical courts. At the Reformation they were withdrawn from the church, and paupers thrown upon the public. Henry 8 was glad to find some other way of supporting them, and Elizabeth encouraged private persons to found charities with the same view. But since her day, the source of the power which chancery had exercised over charities in England has been the prerogative of the crown, and this prerogative law never could have been introduced into the colonies. Jurisdiction over the three subjects of lunatics, infants, and charities has always gone together, and been claimed because the king is said to be parens patriae. 1 Bla. Com. 303; 3 Bla. Com. 47.
The king, in his judicial capacity, through the chancellor, and exercising [**39] an extraordinary jurisdiction, takes control of these things. 3 Bla. Com. 427; 1 fonblanque, 57, note; 2 Fonblanque, 207, 235; Shepherd on Wills, 208; Chitty's Prerogative Law, 155, 161; 2 Atkyns, 553, where Lord Hardwicke says it is a personal authority of the chancellor.
The jurisdiction over charities is not within the ordinary powers of equity, but falls back upon the king's prerogative. Sir Francis More, 188; Hobart, 138; 13 Vesey, 248.
It must be an extra-judicial function to set aside a will. How could this power have passed over to a revolutionized and republican state? In England, if the chancellor could not entertain jurisdiction, he referred to case to the king, who acted under his sign manual, but to whom can an American chancellor refer it? In an elective republic it is impossible to have such a person. These vague charities cannot be sustained unless by virtue of some peculiar law, and it is an alarming event that two millions of property are put into perpetual mortmain for the benefit of persons not even incorporated, not even a religious or mechanical society.
The municipal law of Pennsylvania consists of the law of nations, the common law of England, and some [**40] of the British statutes. The report of the judges made to the legislature in 1808, (3 Binney, 620,) says that parts of the statutes 7 Edward 1; 13 Edward 1; 15 Richard 2; and 23 Henry 8, commonly called statutes of mortmain, are in force in the state. 1 Dallas, 67, 70, 444, 114.
The old remedy of assize was revived because the statute of Edward was considered to be in force in consequence of the report. 17 Serg. and Rawle, 174. The preface to the report says it was necessary to examine the whole code. But the statute of Elizabeth is not included amongst those in force. How then can it get in, unless by some act of the legislature, which is not contended?
If the statute was in affirmance of the common law, the judges would have reported it as being in operation, because the common law was itself in force. 9 Serg. and Rawle, 348, 349.
The first constitution of Pennsylvania, art. 7; art. 3, sect. 3, and 24 sect. (1 Dallas's Laws, appendix,) show that there is no power provided to carry out the king's prerogative.
[Mr. Jones then went into a minute and critical examination of the colonial records of Pennsylvania, to show that from the proceedings of the governor and assembly [**41] it was not believed that a power existed to sustain these religious charities, referring amongst other matters to the charter of the Presbyterian church in 1772.]
After the Revolution, the first case that occurred to test these principles was 17 Serg. and Rawle, 88, Witman v. Lex; but the bequests in this case were good by the common law without the aid of the statute of Elizabeth, which was decided not to be in force.
2. As to the capacity of the trustee to take.
The power of the corporation are limited, and a trust beyond those powers cannot be executed. 4 Wheat. 636; 9 Watts, 551; 6 Connecticut Reports, 304; 1 Vesey, sen. 534.
If the city of Philadelphia is the trustee, the estate is in one body and the execution of the trust in another, for all the people are a part of the corporation. The head of the corporation cannot be separated from the body.
In ordinary cases, where there is no trustee, the court may appoint one; but this cannot be done here, because the trustee, being a corporation, has perpetuity, and a similar one must be selected. 4 Wheat. 28; 1 Vesey, sen. 534; Duke, 245.
A part of this devise would make it a curse to any civilized land; it is a cruel experiment [**42] upon poor orphan boys to shut them up and make them the victims of a philosophical speculation. By the laws of Pennsylvania it is blasphemy to attack the Christian religion, but in this case nothing is to be taught but the doctrines of a pure morality, and all the advantages of early impressions upon the youthful mind are entirely abrogated.