that the statute had affirmed a jurisdiction already exercised by chancery. In most of our States the courts have held. that the statute was not in force, but in so holding have determined that courts of equity had the jurisdiction independently of the statute. In other States the statute has been regarded as in force, as in Illinois, Indiana, Kentucky, and Rhode Island, based generally upon legislative adoption; in others it has been expressly or impliedly repealed, as in New York,1 Maryland, Virginia, New Jersey, and Michigan; and in these last-named States it is held that the beneficiaries of a charity must be designated as clearly as in the case of a private gift, in order that the gift may be sustained. But even among the States in which the spirit of the Act of 43 Elizabeth is recognized, and where the courts assume to be exercising only the judicial cy prés power to favorably construe charitable trusts, widely differing results have been reached. Thus, if a gift be made to an executor in trust, to be applied to such charitable purposes as he may in his discretion deem best, it is evident that there can be no doubt of the invalidity of such gift in the States where the statute of Elizabeth is not in any way recognized. But we also find such a gift held invalid by the courts of Connecticut, Tennessee, and certain other States, on the ground that the court has no power to determine to what charitable purpose the fund shall be devoted. On the other hand, in Massachusetts such gift is sustained under the judicial cy prés power. It is thus seen that where the Act of 43 Elizabeth is not recognized, even in spirit, a gift cannot be made to a charity, unless the beneficiaries are designated with the certainty required in the case of a private trust, which practically means that the gift must be made to a specified corporation It is also seen that in certain States, as in Connecticut, the beneficiaries need not be designated with certainty if a means is provided for their selection, but that the particular charitable purpose must be specifically designated; and that in other States, as in Massachusetts, there may even be uncer

1 Concerning New York, however, see note 1, p. 200.

tainty in the purpose so long as it is clearly intended to be a charitable gift and a means of selecting such purpose is provided. In all States, however, the public has a right to enforce a proper administration of charitable funds through the control of the corporations administering such funds, or through the intervention of the State by its attorneys to compel the execution of the trust. It might be interesting to study and discuss the cases involving the exercise of the cy prés power, and to determine as closely as possible the boundary line between the judicial and the prerogative powers, as respectively exercised or disclaimed by the American courts. Whatever may be the true theory concerning the cy prés power, our decisions and our legislation show a constant tendency to preserve for public and charitable uses. funds which have once been appropriated to such uses and to protect such funds against the attacks of disappointed heirsat-law. This tendency has gone in certain cases even to the point of granting, specifically, the prerogative cy prés power.1

1 Thus, Pennsylvania has provided (Act of 1895), that no disposition of property to or for any religious, charitable, literary, or scientific use shall be allowed to fail for want of a trustee, or by reason of the objects being indefinite, uncertain, or ceasing to exist, or depending upon the discretion of a deceased trustee, or being given in perpetuity or in excess of the annual value limited by such Act, but that such property shall be applied by the court by the appointment of a trustee; that if the objects of trust be not ascertainable or have ceased to exist, or such disposition be in excess of the annual value permitted by law or in perpetuity, such disposition, so far as it exceeds the power of the courts to determine the same by the rules of law or equity, shall be taken to have been made subject to be further regulated and disposed of by the legislature in manner as nearly in conformity with the intent of the donor or testator and the rules of law against perpetuities as practicable, or otherwise to accrue to the public treasury, for the public use.

The legislature of New York, in 1894, enacted that charitable gifts, otherwise valid under the laws of that State, should not be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries; that if no person be named as trustee, the title to such lands or property should vest in the Supreme Court, and that such court should have control over such gifts; the attorney-general to represent the beneficiaries in all such cases, and that it should be his duty to enforce such trusts by proper proceedings in court. This statute has been held in New York to have restored to the Supreme Court as a court of equity the power formerly exercised by chancery in the regulation of charitable gifts.

In the application of wills to property, there are other points in which differences exist between the American and the English decisions, and in which a peculiar development in the American decisions may be traced to differing conditions. The matter of precatory trusts, conditions in restraint of marriage and of alienation, and various other particular applications of the law of wills might be further discussed, but enough has been said for our purpose. There are also other points in which the American legislatures have altered the common law applicable to wills, such as the various modifications of the common-law rule of perpetuities, which, however, are not directly traceable to any conditions peculiar to this country. Reference should be made, however, to one other feature of the law developed in connection with the law of wills, namely: the law of donatio causa Gifts. mortis, the gift of personal property made in

anticipation of immediate death, completed by delivery but revocable in the event of the donor's recovery. This has come to us from the Roman law, but its origin and introduction into the English law and its adoption by American law are here important only as connected with the changes in the law concerning wills of personalty. The donatio causa mortis is said not to have been recognized in England before the year 1710, but since then the decisions have grown in number. It is very evident that such law was first applied when formalities were required in the execution of wills of personalty and was so applied to save from invalidity informal acts which, before such statutory enactments, were sustained as testamentary.

If the purpose of this review has been accomplished, it has shown to us these things:

The growing insistence of the law upon the formalities of execution, revocation, and proof, in order that the testator's expression of intention may be established as made.

The tendency to promote, and even to require, the proof of a will once for all, which shall be conclusive as to every kind and piece of property affected by such will.

The tendency to secure titles by making the determination of testacy or intestacy once made a judgment in rem conclusive against the world, so that the same proof may not only establish the right to all the property, but establish it as to all persons.

The protection given by American law, consistently with American institutions, to the family of the testator.

The modification of English law and precedent in its application to new conditions.

While the student, looking at the symmetry and independence of the law as applied to wills, may regret that, in such a self-governing colony as Connecticut was, our local usages and customs, as existing before the Revolution, might not have been moulded and developed in our courts without the aid of precedents originating in different conditions; yet he may, upon further reflection, realize that Connecticut not only retains to-day the fundamental principles of her independent development, which she has also given in some measure to her neighbors, but also has, in legislation and decision, a law more consistent and in better agreement with the laws of her neighbors than would have been the case if this independent development had not been in some degree arrested. The application of English precedent to the laws and customs alike of Connecticut, New York, Pennsylvania, and Virginia may have resulted in confusion, but it has certainly contributed in some measure to the assimilation of the laws of these States.

IX

MUNICIPAL CORPORATIONS

1701-1901

BY HENRY WADE ROGERS, M.A., LL.D.

THE American system of government is usually described by foreigners as "complex." Mr. Bryce calls the United States "a Commonwealth of commonwealths, a American Republic of republics," and speaks of the exist- forms of ence of "a double government, a double alle- corporations. giance, a double patriotism." But there are really three governments which possess authority over the citizen.

public

There is first of all the National Government. Its enactments are the supreme law of the land, but only upon the subjects submitted to its control by the Constitution. The sphere of its authority is limited, and the citizen is brought infrequently into direct relations with it.

There is next the State Government. It is possessed of all the powers of government except as otherwise provided in its own Constitution, or in that of the United States. The life, liberty, and property of the citizen are mainly under the protection of its laws.

There is last the Municipal Government. It is an instrumentality of the State for the more convenient administration of local government, and it has such powers as the legislature of the State has conferred upon it. The citizen is brought into most intimate relations with it.

The national government was created by the Constitution, framed in 1787 for the United States of America, so the

1 Bryce's Am. Commonwealth, vol. i. p. 12.

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