REPORTS OF THE DECISIONS OF THE Supreme Court of the United States. FEBRUARY TERM, 1819. [CHANCERY.] THE TRUSTEES OF THE PHILADELPHIA BAPTIST ASSOCIATION ET AL. v. HART'S EXECUTORS. In the year 1790, S. H., a citizen of Virginia, made his last will, containing the following bequest: Item, what shall remain of my military certificates at the time of my decease, both principal and interest, I give and bequeath to the Baptist Association, that for ordinary meets at Philadelphia annually, which I allow to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the descendants of my father's family." In 1792 the legislature of Virginia passed an act repealing all English statutes. In 1795 the testator died. The Baptist Association in question had existed as a regularly organized body for many years before the date of his will; and in 1797 was incorporated by the legislature of Pennsylvania, by the name of "The Trustees of the Philadelphia Baptist Association." Held,that the Association, not being incorporated at the testator's decease, could not take this trust as a society. 2*] That the bequest could not be taken by the individuals who composed the association at the death of the testator. That there were no persons to whom this legacy, were it not a charity, could be decreed. And that it could not be sustained in this court, as a charity. Charitable bequests, where no legal interest is NOTE. Marshall, Ch. J., who delivered the opinion of the court in the above case, and Justice Story, who wrote out his own opinion and afterwards published it in the appendix to 3 Pet. Rep., p. 497, were both, at that time, of the opinion that it (the power of the Chancery Court of England in relation to charities) was derived from the statutes 43d Elizabeth. But in Vidal v. Girard's executors (2 How. 12), Justice Story changed his opinion, chiefly upon the authority of cases found in the old English records. Fontain v. Ravenal, 17 How. 394. It was intimated in the above case (Phil. Bapt. Ass'n v. Hart), by Chief Justice Marshall, that charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a court of equity, enforc ing the prerogative of the king, as parens patriæ, independently of the statute of 43 Elizabeth. But this doctrine was denied by Chancellor Walworth (Potter v. Chapin, 6 Paige, 649), and was shown by the Supreme Court of the United States to be wrong in a subsequent case. (Vidal v. Girard's executors, 2 How. 196.) It has been conclusively proved that the Court of Chancery exercised jurisdiction over charities anterior to the statute of Elizabeth, and upon the common law. vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot be established by a court of equity, either exercising its ordinary jurisdiction, or enforcing the prerogative of the king as parens patria, independent of the statute 43 Eliz. If, in England, the prerogative of the king, as parens patria, would, independent of the statute of Elizabeth, extend to charitable bequests of this description. Quare, How far this principle would govern in the courts of the United States. Held, that it was unnecessary to enter into this inquiry, because it could only arise where the Attorney-General is made a party. N the year 1790, Silas Hart, a citizen and in writing, which contains the following bequest: "Item, what shall remain of my military certificates at the time of my decease, both principal and interest, I give and bequeath to the Baptist Association that for ordinary meets at Philadelphia annually, which I allow to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the decendants of my father's family. In 1792 the legislature of Virginia passed an act, repealing all English statutes, including that of the 43 Eliz., c. 4. In the year 1795 the testator died. The Baptist Association, which met annually at Philadelphia, had existed as a regularly organized body for many Court of Appeals, per Denio; Porter's case, 1 Co. 26; McCartee v. The Orphan Asylum, 9 Cow. 437, 476, per Jones, Ch.; Executors of Burr v. Smith. 7 Vt. 241; Story's Eq. sec.1136 et. seq.; Kinskern v. The Lutheran Churches, 1 Saund. Ch.R. (N. Y.) 562, where most of the cases are collected. See also 2 Kent's Com. 286-288, marg. p. Subsequent incorporation will confer on the association the capacity of taking and managing the fund. Inglis v. Sailors Sung Harbor, 3 Pet. 9, 113. In New York it is provided by statute that "no devise to a corporation shall be valid, unless such corporation be expressly authorized, by its charter, or by statute, to take by devise." 2 R.S. (N. Y.) 57, 8.3. See also Wright v. Meth. Epis. Ch., 1 Hoff. Ch. R. 225; Jackson v. Hammond, 2 Caines's Cas. 337. An act enabling a corporation to take by devise, cannot have a retroactive effect, to make valid a devise by a testator who died before the act was in force. Bonard's will, 16, Abb. Pr. N. S. 129. The common law right of taking personal property by bequest was, it seems, always enjoyed by corporations as well as individuals. 2 Atk. 37; Phillips Academy v. King, 12 Mass. 546. In re Howe, 1 Paige, 214; Angell & Ames, Corp. (3d ed.) 137: Burr v. Smith, 7 Vermont, 241; Burbank v. Whitney, 24 Pick. 151; Gibson v. McCall, 1 Richardson, 174; Willard's Eq. Jur. 570, 571, citing Vidal v. Girard's Washburn v. Sewall, 9 Met. 280; Griffin v. Graham, Ex'rs, 2 How. 196; Williams v. Williams. MS., N. Y., 1 Hawks, 96; Gass v. Wilhite, 2 Dana, 170. years before the date of this will, and was com- | subjects, are derived from, and exercised acposed of the clergy of several Baptist churches cording to the civil law. Lord Thurlow says, of different states, and of an annual deputation "the cases have proceeded upon notions adopted 3*] of laymen from the same churches. It from the Roman and civil law, which are very was not incorporated until the year 1797, when favorable to charities, that legacies given to it received a charter from the legislature of public uses, not ascertained, shall be applied to Pennsylvania, incorporating it by the name of some *proper object." By that law, be- [*5 "The Trustees of the Philadelphia Baptist As- quests for charitable purposes, ad pios usos, are sociation." The executors having refused to not void for uncertainty. But, even suppospay the legacy, this suit was instituted in the ing all the powers of the English Court of Circuit Court for the District of Virginia, by Chancery over charities to have been originally the corporation, and by those individuals who derived from the statute of Elizabeth, still it were members of the association at the death of does not follow that the courts of the United the testator. On the trial of the cause, the States have not all the powers which the judges of that court were divided in opinion on English courts of equity possessed, when this the question, whether the plaintiffs were capable country was separated from the British empire. of taking under this will. Which point was, The chancery system originated in various therefore, certified to this court. sources; in the peculiar jurisprudence of the The Attorney-General, for the plaintiffs, court, which may be denominated its common argued, that the peculiar law of charitable be- law; in statutes; and in the authority of the quests did not originate in the statute of the Chancellor, as keeper of the king's conscience. 43d Eliz., which was repealed in Virginia be- It is difficult to find any chancery decisions fore the death of the testator. If lands had wholly purified from the influence of statutory been conveyed in trust, previous to the statute, provisions. The grant of equity powers in the for such purposes as are expressed in this will, constitution, to the national judiciary, extends the devise would have been held good at law;" to all cases in equity." It is not limited to and, consequently, the Court of Chancery those cases which arise under the ordinary would have enforced the trust, in virtue of its jurisdiction of the Court of Chancery. This is general equity powers, independent of that not a question of local law, nor can the equity statute. The statute does not profess to give jurisdiction of the United States courts depend any validity to devises, or legacies, of any de- upon the enactment or repeal of local statutes. scription, not before valid; but only furnishes a This court has already determined that the new and more convenient mode for discovering remedies in the court of the United States, in and enforcing them; but the case before the equity, are to be, not according to the practice court is such as requires the interposition only of state courts, but according to the principles of the ordinary powers of a court of equity. of equity as known and practiced in that counDevises equally vague and indefinite, have been try from which we derive a knowledge of those sustained in courts of common law, before the principles. In England, this bequest would, 4*] statute of Elizabeth, *and would, a fortiori, unquestionably, be sustained. The association, have been supported in courts of equity. And which was the object of the testator's [*6 the Court of Chancery, exercising the prerog- bounty, though unincorporated at the time, was ative of the king as parens patriæ, has been certainly as definite a body as the "sixty pious constantly in the habit of establishing chari-ejected ministers," in one case, or the chartable bequests of this nature. "In like man-itable collections for poor dissenting ministers ner," says Lord Chancellor Macclesfield, "in the case of charity, the king, pro bono publico, has an original right to superintend the care thereof, so that, abstracted from the statute of Eliz., relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file informations in chancery, in the Attornry-General's name, for the establishment of charities."2 So also, Lord Keeper Henly says, "and I take the uniform rule of this court, before, at and after the statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such uses. Thus, though devises to corporations were void under statute Hen. VIII., yet they were always considered as good in equity, if given to charitable uses."3 The powers of the Court of Chancery over these 1.-Porter's case, 1 Co. Rep. 22, b; Plowd. 522. 2.-Eyre v. The Countess of Shaftsbury, 2 P. Wms. 119. 3.-Case of Christ's College, Cambridge, 1 Sir W. Bl. 91. 4.-3 Bl. Com. 476; White v. White, 1 Bro. Ch. Cas. 15; Moggridge v. Thackwell, 7 Ves. 36. 5.-White v. White, 1 Bro. Ch. Cas. 15. 6. Swinb. part 1, sec. 16; part 7, sec. 8. living in any county in England," in another." Nor was it necessary that they should be incorporated in order to take. A devise by an impropriator, directly to one who served the cure, and all who should serve it after him," &c., has been carried into effect. 10 So, if the devise be to a charitable use, though the object be not in esse, and though it depend on the will of the crown, whether it shall ever be called into existence, equity will establish it."1 Mr. Leigh, contra, contended, that the associacould not take the bequest, neither in their individual nor in their collective capacity. Not as individuals; because the persons composing the association continually fluctuating and were not designated, were not indeed known, at the time of the bequest. No personal benefit was intended to them. The testator's intent was to constitute the association, in its col 17.-Campbell v. Robinson, 3 Wheat. 212. 8. The Attorney-General v. Baxter, 1 Vern. 248; Attorney-General v. Hughes, 2 Vern. 105. 9.-Walker v. Childs, Amb. 524. 10.-Anon, 2 Vent. 349. 11.-Lady Downing's Case, Amb. 592, Ayliff v. Dodd, 2 Atk. 328; The Attorney-General v. Oglander, 3 Bro. Ch. Cas. 166: The Attorney-General v. Bowyer, 3 Ves., Jun., 725. lective capacity, trustee of the fund for this, that statute. In the case last cited, Sir W. charitable purpose; and whether the trust can Grant said: "In this court, the signification of be carried into effect or not, they cannot take charity is derived principally from the statute 7*] individually *to their own use. Nor can of Elizabeth. Those purposes are considered they so take in their collective capacity, charitable which that statute enumerates, or because not incorporated at the time; and the which by analogies are deemed within its spirit subsequent incorporation does not help their and intendment." Lord Eldon, in rehearing case.? Therefore, this is to be regarded as a the same case, confirms the doctrine. "I say, bequest to charitable uses, without the interven- with the master of the rolls, a case has not yet tion of trustees to take the legal estate and ful- been decided in which the court has executed fill the uses. According to the law of Virginia, a charitable purpose, unless the will contains a which must govern in this case, such a trust description of that which the law acknowledges cannot be carried into effect by any court in to be a charitable purpose, or devotes the propany mode. Had such a case occurred in Eng-erty to purposes of charity in general."s In a land, it is admitted that the Court of Chancery previous case, Lord Loughborough had said: would carry the trust into effect by supplying "It does not appear that the court, before that legal and capable trustees to take and hold the period (the 43d of Eliz.), had cognizance of infund of the objects of the testator's charity; or, formations for the establishment of charities. if those objects were not designated in the tes- Prior to the time of Lord Ellesmere, as far as tator's will with sufficient certainty, would ex- tradition in times immediately following goes, ecute it, upon the doctrine of cy pres, for ob- there were no such informations, but they made jects ejusdem generis, according to a scheme di- out the case as well as they could at law." The gested by the master. But the Court of Chan- repeal of the English statute of charitable uses cery in England exercises such powers solely in by the legislature of Virginia, must be considvirtue of the statute of the 43d Eliz. All ancient ered as almost, if not entirely, repealing that precedents of the exercise of such powers, to whole head of equity. The effect of this repeal effect such charitable uses, are expressly stated may be estimated by recurring to the history of to be founded on that statute. As all the early the system of equitable jurisprudence. Every decisions are founded on the statute, so the part of that system has been built up since the more modern cases are founded on the authority 43d year of Elizabeth, and there is not a single of the ancient; with this only extension of their chancery case, touching charitable bequests, principle, and although the statute merely pro- prior to the statute of that year. The [*10 8*] vides that *charitable donations shall be court is then driven to ascertain either the comapplied to such of the charitable uses therein mon law method of effecting charitable uses, expressed, for which they were appointed by or the jurisdiction of the English Chancery, inthe donors or founders, the Court of Chancery dependent of the statute. Lord Longhborough has gone a step farther, and held upon the says, that it had no jurisdiction whatever, of equity of the statute, that where objects of char- the matter before the statute, and that they made ity are in any way pointed out, however vague-out the case as well as they could at law; and ly and indefinitely, the court will apply the he instances certain cases. 10 The jurisdiction of fund to charitable uses of the same kind with the Court of Chancery in England, abstracted those intended by the donor, according to a from, and independent of, the statute of the 43d scheme digested by the master. All the ele- Eliz., may be inferred from the course of the mentary writers and compilers concur in deduc- court in cases where the donors of charities, ing the jurisdiction of the English Court of failing to point out any object of charity, or Chancery over charitable bequests from the stat- | designating improper, impolitic, or illegal obute of Eliz.; tracing all the powers of the court, jects, the statute gives the court no authority to as a court of equity, over this subject, to that direct the charity to any definite purpose. In source; its liberality and favor toward charitable all such cases, the disposition of the funds bedonations; its practice of supplying all the de- longs to the king, as parens patria, and is made fects of conveyances to charitable uses; of sub- by him under his sign manual. In Moggridge v. stituting trustees where those named by the Thackwell," Lord Elden, after reviewing all the donor fail before the vesting of the legal estate; cases (acknowledging that they conflicted with and of taking on itself the execution of the each other, and that his own mind was perplextrust, where incapable, or no trustees are ap-ed with doubts), came to this general conclupointed by the donors. Indeed, no donation is considered in England as a donation to charitable uses, unless for such uses as are enumerated in the statute of Eliz.; or such as are analo9*] gous. The very signification of the words charity and charitable use are derived from 5 sion, which he deemed the most reconcilable to authorities; that when the execution of the trust for a charity is to be by a trustee with general, or some objects pointed out, there the court will take upon itself the execution of the trust; but where there is a general indefinite 1.-Morris v. The Bishop of Durham, 9 Ves. 399;, Wills, 213, 214; 1 Bac., Abr. tit. Ch. Uses; 5 Vin. S. C. 10 Ves. 522. 2.-8 Vin. Abr. tit. Devise, H. pl. 1; Woodmore v. Woodroffe, Amb. 696. 3.-The Attorney-General v. Rye, 2 Vern. 453; Rivett's case, Moor, 890; Pigott v. Penrice, 2 Eq. Cas. Abr. 191, pl.6; The Attorney-General v. Hickman, Ib. 193,.pl. 14. 4.-Barlis v. The Attorney-General, 2 Atk. 239; White v. White, 1 Bro. Ch. Cas. 12; Moggridge v. Thackwell, 3 Bro. Ch. Cas. 517; S. C. 1, Ves., Jun., 464: S. C. 7 Ves. 36. 5.-2 Bl. Com. 376; 2 Fonbl. Eq. 213; Roberts on Abr. same tit; 1 Burns's Eccl. Law, same tit. 6. The Attorney-General v. Hewer, 2 Vern. 387; Brown v. Yeale, 7 Ves, 50, note c: Morrice v. The Bishop of Durham, 9 Ves. 399, S. C. 10 Ves. 540. 7.- Morris v. The Bishop of Durham, 9 Ves. 399. 8.-S. C. 10 Ves. 540. 9.-The Attorney-General v. Bowyer, 3 Ves., Jun., 726. 10.- Porter's Case, 1 Co. Rep. 23; Sutton's Hospital Case, 10 Co. Rep. 1. 11.-7 Ves. 36. 1 10 purpose, not fixing itself on any object, the | sition belongs to the King, as parens patria, disposition is to be made by the king's sign and the Court of Chancery is only resorted to 11*] manual. A due attention to the cases in order to enforce his disposition. That statute there collected by Lord Eldon, will show that being repealed in Virginia, and no similar one the first class of cases are those over which the enacted in that state, the disposition of all charstatute of the 43d Eliz. gives the court a juris-itable donations is in the parchs patriæ, of Virdiction, and which it will consequently exer- ginia. The courts of the United States cannot cise; and that the second class consists of those direct this charity, or carry it into effect. It is which belong to its jurisdiction, abstracted and the government of Virginia which is the parens independent of the statute, and in which the patria of that state. At the revolution, all the disposition belongs to the king. So, if the do- rights of the crown devolved on the commonnation be to a charitable use, but one which is wealth; and still remain in the commonwealth, deemed unlawful or impolitic, the disposition except such as are delegated to the United belongs to the king. And were it not for States by the national constitution. But none the statute, all charitable donations whatever of the rights that appertain to the state governwould be subject to the disposition of the king, ment, as parens patriæ, are delegated to the as parens patria. It is true, there are some United States. Can this, or any other court of dicta, which at first sight seemed to support a the United States, pretend to the care or guarddifferent doctrine. Such is that of Lord Keeper ianship of infants, lunatics, and idiots? If not, Henly, in the case of Christ's College. But neither can they undertake the direction of a this dictum is directly contradicted by Lord charity, which stands on the same footing as beLoughborough, in the Attorney-General v. Bow-longing to that government which is parens payer. Lord Keeper Henly cites no authority for this dictum; but Lord Chief Justice Wilmot having, in the case of Downing College, said something of the same kind, cites the authority which, doubtless, Lord Keeper Henly had in his mind; which is what fell from Lord Macclesfield in Eyre v. The Countess of Shaftsbury. "And in like manner, in case of charity, 12*] the king, pro bono publico, has an *original right to superintend the care thereof; so that, abstracted from the statute of Elizabeth relating to charitable uses, and antecedent to it, as well as since, it has been every day's practice to file an information in chancery in the name of the Attorney-General for the establishment of charities. "6 Whence, it appears, that the information which might be filed in the Attorney-General's name, for the establishment of charities, abstracted from, and independent of, the statute, related to such as depended on the disposition of the king as parens patriæ. This explanation is corroborated by what is said by Lord Somers, in the case of Lord Falkland v. Bertie, Lord Thurlow's dictum, in White v. White, that "the cases had proceeded on motions derived from the Roman and civil law," cannot be construed to extend to the entire adoption of the civil law on charities. By the civil law, if a man makes a will containing a charitable bequest and afterwards cancel the will, the bequest to charity is not thereby revoked. It is otherwise by the law of England. So, in case of a deficiency of assets, the civil law gave a preference to charitable legacies; but in the English Court of Chancery they abate in proportion." The conclusion, then, is, that in every case of charity, wherein the English Court of Chancery has not jurisdiction to direct the applica13*] tion of the *charity, either by the words or the equity of the statute 43 Eliz., the dispo 1.-The Attorney-General v. Siderfin, 1 Vern 224; Fiser v. Peacock, there cited; The Attorney-General v. Herrick, Ambl. 712. 2.-The Attorney-General v. Baxter, 1 Vern. 248 ; De Costa v. De Pas, Amb. 228; Cary v. Abbott, 7 Ves. 490. 3.-W. Bl. 91. 4.-3 Ves., Jun., 726. 5.-Wilm. Rep. 1. tria. Even, therefore, if it were admitted that the Court of Chancery of Virginia could carry this bequest to charitable uses into effect, the courts of the United States cannot. Another objection to the jurisdiction of those courts is, that the Attorney-General (that is, of Virginia) representing the parens patriæ, must be made a party. But to make the Attorney-General of [*14 Virginia, that is, the state of Virginia, a party defendant, would be contrary to the constitution of the United States. There is a further, and an insurmountable objection to the jurisdiction of the United States courts in cases of charity, where there is no trustee appointed, or (which is the same thing) unascertainable and incapable trustees are appointed. If not the whole jurisdiction of the English Court of Chancery, at least so much of it as is abstracted from, and independent of, the statute 43 Eliz., belongs neither to its ordinary nor extraordinary jurisdiction, but to the Lord Chancellor personally, as delegate to the King. But by the constitution and laws of the United States, the only branch of the English chancery jurisdiction which is vested in the courts of the United States, is the ordinary or equity jurisdiction of the Court of Chancery in England. Finally, it is impossible to give effect to this charity in any mode. Not only are the trustees uncertain and unascertainable, but the objects of the charity are also uncertain, and not ascertainable by this court. The very idea of the court attempting to execute the trust,cy pres, and referring it to the master to digest a scheme for that purpose, is absurd and impracticable. The Attorney-General, in reply, insisted, that if it were necessary to show the capacity of the plaintiffs as trustees, it could be done. Id certum est quod certum reddi potest; and the court might direct the money to be paid to those who constituted the association at the time of [*15 6.-2 P. Wms. 118, 119. 8.-1 Bro. Ch. Cas. 15. 9.-The Attorney-General v. Hudson, 1 Coxe's P. Wms. 675, and note. 10.-Mitf. Plead. 7, 93; Cooper's Plead. 219; Anon, 3 Atk. 277; 2 Atk. 87; Monell v. Lawson, 5 Vin. Abr. tit. Char. Uses, Ib., pl. 11; The Attorney-General v. Hewett, 9 Ves. 432. frauds which had been practiced; authorizing the commissioners, conformably to the title of the act, to make orders to carry the intention of the donor into effect; and allowing the party injured by such orders to complain to the chancellor for an alteration or reversal of such orders. Even supposing the statute did profess to confer on the Court of Chancery a new jurisdiction, it is merely an appellate jurisdiction from the decrees of the commissioners; and this appeal is given to one party only he who is charged with the fraud. So that it is neither an original jurisdiction, nor is it a jurisdiction to enforce a charitable trust. the bequest. But this association was incorpo- | powers to institute an inquisition to detect the rated shortly after the death of the testator; and it is sufficient to support the charity, that its objects may be in esse. The first of the two cases, cited to show that the devise must take effect at the time, or not at all, was a devise of lands to the priests of a chantry or college in the church of A; and there were none such, neither chantry, college, nor priests.1 But suppose there had been, as in the case now before the court, would their want of a corporate character have defeated the devise? But this case is entirely inapplicable. The objects designated did not exist even under the description which the testator used. Nor did they exist at the time of the decision, so as to present the question as to the efficacy of the devise in that respect; and all that the court said upon this subject must be regarded as extrajudicial. The whole question was on a devise of lands on the rigid rules of the common law. The case of Widmore v. Woodroffe," was a bequest of money to the corporation of Queen Anne's County to augment poor vicarages, which was held to be void by the statute of Mortmain, as the corporation were bound by their rules to lay out their donations in lands. It does not touch the question, whether a devise of a charity must take effect at the death of the testator, or not at all. But if the court should think that the Baptist Association were incapable of taking, as trustees, at the death of the testator, and that there must be some person then in esse, to hold 16*] the legal estate, the *executors will be considered, by a court of equity, as trustees, whether so named or not. So, also, the court will regard the heir as a trustee for the same purpose. The case of the Attorney-General v. Bowyer was decided on this very principle. The law had thrown the legal title on the heir, but he was held responsible for the intermediate profits in the imputed character of a trustee. The position, that the English Court of Chancery derives the jurisdiction now in question from the statute of Eliz., is denied. The title of the act is, "commissioners, authorized to inquire of misemployment of lands or goods, given to hospitals, &c., which, by their orders, shall be reformed." The preamble recites, that whereas lands, &c., had been theretofore given, limited, appointed, and assigned, to various objects which are specified, which lands, &c., had not been employed "according to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negli gence in those that should pay, deliver, and employ the same." It is clear, from this preamble, that no new validity was intended to be given to these donations. Their previous validity is admitted; and the mischief was, that they had been defeated by the frauds, breaches of trust, and negligence of those who should have paid them. Frauds and breaches of trust were, at this time, known heads of the equitable jurisdiction of the Court of Chancery; but the statute proceeds to provide a new remedy for 17*]*the mischief announced in the preamble. This is the appointment of commissioners, with 1.-8 Vin. Abr. Tit. Devise, H. pl. 2.-Amb. 636. 3.-1 Bridg. Index, 761. 4.-2 Bridg. Index, 607. The eighth and ninth sections of the act direct the commissioners to certify their decrees into the High Court of Chancery of England, and the Chancery of the Palitinate of Lancaster, and direct the chancellors to take such order for the due execution of the decrees (of the commissioners) as to them shall seem fit and convenient. This is not a power to make a decree, but to execute the decrees made by the commissioners. The 10th section reiterates the appellate power of the chancellor, recognized by the 1st section. The only principles the 10th section prescribes for the regulation of the chancellor on these appeals, are so far from being new to the court, that they have existed ever since its equitable jurisdiction commenced. If, then, the jurisdiction of the Court of Chancery over charitable bequests cannot be derived from the letter of the statute of Eliz., can it be supported *from ancient ad- [*18 judged cases, interpretative of that statute? Even if it could, this would be but a frail support; because the Court of Chancery was then in the infancy of its existence, and grasping at everything to enlarge that jurisdiction which time and usage have since consecrated; and because if its jurisdiction to enforce a charity by original bill, is to depend upon the statute, it has been shown from the statute itself that it cannot be sustained. But the adjudged cases do not support the position that the jurisdiction of the court over charities is derived from the statute. It is necessary, however, to distinguish between the two questions, whether a particular charity is within the statute; and, whether the original jurisdiction of the Court of Chancery is derived from the statute. The first question properly arises, where the commissioners have acted, and the court is reviewing their decree in its appellate character. As the commissioners derive their whole authority from the statute, and are therefore confined to the cases enumerated in it, the first question upon the threshold of the appeal is, whether the case on which they have acted be within the statute. Of this description are the cases cited on the other side, as being the ancient cases, upon the authority of which the modern cases have been decided. The cases of The Attorney-General v. Rye and Rivett's case, are expressly stated by the reporters to have come before the chancellor on exceptions to the orders of the *commissioners. Piggot [*19 5.-3 Ves., Jun., 726. 7 |