Brief for the Defendants in Error.

nary in the city of New York," was held too indefinite, and therefore void. Phelps' Exr. v. Phelps, 28 Barb. 121; Phelps v. Pond, 23 N. Y. 69.

This devise seems to be rather a private charity. Phelps v. Aldridge, 4 T. R. 264; Toone v. Copestake, 6 East, 328; Lapage v. McNamara, 5 Iowa, 146.

These trusts will be sustained only when their purposes are so clearly expressed that a court of chancery itself can execute them should the trustee refuse. Nash v. Morely, 5 Beav. 192; 1 Jarman on Wills, 407.

All attempts to restrain the free transfer of real estate for more than twenty-one years and nine months after the life or lives of parties then in being, are null and void. 2 Blackstone's Com. *173; Brattle Square Church v. Grant, 3 Gray, 142; 4 Kent's Com. *266, 267.

By this limitation of twenty-five years the entire devise is rendered void. Williams on Real Prop. *293-295; Irving v. DeKay, 9 Paige, 521; Matter of Thomas' estate, 1 Tuck. 367; Newman v. Newman, 10 Sim. 51.

The devise does not fall within the exception in favor of charitable uses. Fonblanque's Equity, 459, note; 1 Bacon's Abridgment, p. 364, title "Charitable Uses."

Mr. W. J. ALLEN, also, for the plaintiffs in error.

Messrs. HARTZELL & SIMPSON, for the defendants in error: The devise being for charitable purposes is not void for uncertainty. The authorities cited by plaintiffs in error upon the doctrine of perpetuities apply exclusively to uses. not charitable, and for private purposes only.

In addition to the objects named in the statute of Elizabeth, many other objects have been decided to be charitable, though not in its letter, but as falling within the spirit of the statute. Bispham's Equity, secs. 119, 122, 133; Jackson v. Phillips, 14 Allen, 556.

Opinion of the Court.

A charitable use is not subject to the ordinary rules in regard to perpetuities. Bispham's Equity, sec. 133; 2 Perry on Trusts, secs. 701, 737; Franklin v. Aunfield, 2 Sneed, 305; Perrin v. Carey, 24 How. 465; Dartmouth College v. Woodward, 4 Wheat. 641; Heuser et al. v. Harris et al. 42 Ill. 425.

Mr. H. CLAY HORNER, also, for the defendants in error:

That the uses of the devise in this case are charitable, and are expressed with sufficient certainty and definiteness, we cite Trustees v. Beatty, 28 N. J. Eq. 575; Williams v. Williams, 4 Seld. 525; Townsend v. Carnes, 3 Hare, 257; Camp v. Dobbins, 29 N. J. Eq. 36; Jackson v. Phillips, 14 Allen, 556; Attorney General v. Jolly, 2 Strobh. 379; 2 Pomeroy's Eq. Jur. sec. 1021, and note; Perry on Trusts, sec. 701, and note; Price v. Maxwell, 28 Pa. St. 33.

That the clause of the devise, "or to any other of the charitable or religious objects of said church," is not too uncertain, see Thompson v. Norris, 20 N. J. Eq. 553; Wilkinson v. Lindgren, 5 L. R. Ch. App. 570; Jemmit v. Verrill, Ambler, 585; Boyle on Charities, 225-230; Phelps v. Phelps, 25 Barb. 121; Owens v. M. Society, 14 N. Y. 380; Nash v. Morely, 5 Beav. 182.

Mr. J. PERRY JOHNSON, also, for the defendants in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The contest in this case grows out of the sixth clause of the will of Amzie Andrews, deceased. The substantial part of the clause is this:

"I do hereby give, devise and bequeath unto the First Presbyterian Church of Chester, (now in connection with the Old School General Assembly,) all of block A, in the city of Chester, county of Randolph, and State of Illinois,

Opinion of the Court.

after the expiration of the life estates herein created, in trust, however, for the uses and purposes following, and subject to the following restrictions, that is to say: First, to sustain and maintain (old school) Presbyterian preaching in said city of Chester, Illinois; and secondly, to advance and promote, as far as practicable, the educational interests of said First Presbyterian Church of Chester, Illinois. And for the better carrying out of the objects of said trust, it is my will," etc. The testator authorizes the improvement of the block, and prohibits the sale of the same for twenty-five years from the death of the life tenants, and directs the manner of the election of a trustee after the death of the life tenants, in whom the title shall vest, and then provides for the collecting of the income, and for the management of the real estate during the twenty-five years. "And the session of the

church are hereby especially intrusted with the management and control of the income, and are empowered first, to pay

and entrusted to use the income, any balance or part of salary due the minister or pastor of said church; and secondly, if any surplus shall remain, may apply the same to such educational purposes, in connection with said church, as they may deem advisable." After the expiration of the twenty-five years a sale is authorized, the proceeds to be invested and income used for the purposes "hereinbefore mentioned," for twenty-five years additional. After the expiration of fifty years the whole of the principal and accumulations may be used "in the establishment of an educational institution under the control and patronage of the church in Chester, or they may keep the same

invested as before that time, and use the income in the objects above herein specified, or in any other of the charitable or religious objects of the church, as they may elect or deem advisable."

The testator died in 1876, and a part of his heirs at law filed this bill to have this clause of his will declared void,

Opinion of the Court.

as contravening the statutes and public policy of the State. Defendants demurred to the bill, and the demurrer was sustained, and the bill dismissed for want of equity, and complainants bring the record to this court on error.

It is urged that this clause creates an estate in the nature of a perpetuity, which the law prohibits; that the law will not permit estates in land to be tied up longer than for a life or lives in being and twenty-one years, and in case of a posthumous birth, nine months more after the termination of the life estate, and as this clause prohibits the sale of the land for twenty-five years after the death of the last surviving tenant for life, the devise falls within the prohibition of the rule. This would seem to be true, unless it falls within the exceptions in favor of conveyances and devises to charitable uses. In the case of Heuser v. Harris, 42 Ill. 425, it was held that the statute of 43d Eliz., chapter 4, is in force in this State, and it operates to exclude conveyances and devises for such uses from the operation of the rule against perpetuities. This we regard the law of this jurisdiction. And the rule conforms to the adjudged cases in England under that statute, and those of the various States of the Union where that statute is in force.

It is urged that conceding this rule to be in force, the objects of the trust are not within that statute,-that it only names the repair of churches, but does not name the support of churches, religion, or to pay for preaching any particular religious doctrine, and therefore this clause of the will is not protected by that statute. There are abundant decisions of English courts, as well as of the courts of the various States. of the Union, which hold that such purposes, although not expressed in the statute, are within its equity, and hence within its spirit. The case of Fuller v. Griffin, 3 Vt. 401, involved a gift "to the Methodist Episcopal Church, forever, the interest of which is to be appropriated for the support and payment of the constant preaching of the gospel

*

Opinion of the Court.

in Charlotte, by the ministers of the Methodist Episcopal Church, the principal to be kept whole, forever." The gift was held to be for a charitable use, and was sustained as valid and binding. In that case, as in this, the gift was to the church, and trustees were required to control the fund. To the same effect are the cases of Trustees v. Beatty, 28 N. J. 570; De Camp v. Dobbins, 29 N. J. Eq. 36; Townsend v. Carnes, 3 Hare, 257.

It is urged that the devise is not of public interest, and is local, and therefore is not a public charity, and is not good or valid. The object is no more local than was the devise in the case of Heuser v. Harris, 42 Ill. 425, and that was held to be a public charity, although the appropriation of the interest on the fund was to a school in a specified township, and the discretion vested in the trustee that he pay any balance or part of salary due the minister or pastor of the church, is specific and certain. There can be no well founded. objection to the final disposition of the property in founding an institution of learning to be under the control of the church. The founding of such an institution thus controlled is so clearly within the statute of charitable uses, that we will only refer to a few of the large number of authorities that hold such devises valid. In Taylor v. Trustees, 34 N. J. Eq. 101, referring to the act of 43d Eliz., it was held that it embraced not only free schools, but schools of learning without the instruction therein being gratuitous. In the case of Attorney General v. Lonsdale, 1 Sim. 109, it was held that although a school for the education of the sons of gentlemen, is not, in popular language, a charity, yet it is embraced in the act of 43d Eliz. It was there held that all schools were within its provisions. This case is approved by those of Franklin v. Aunfield, 2 Sneed, 305, and Price v. Maxwell, 28 Pa. St. 33. The mere term "an educational institution," manifestly implies such an organization as shall teach the usual branches of literature, or some of them, so that nothing pernicious or