NOTE.

The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court.

ABBREVIATIONS.

F. C. appended to a citation from the regular reports of the U. S. Circuit and Distarct Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series.

Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citations of such cases is to the volume and page of Fed. Cas., not to the number of the case.

Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880.

L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon.

Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports.

Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom.

Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows:

Atl. Atlantic Reporter,

Pac. Pacific Reporter,

N. E. Northeastern Reporter,

N. W. Northwestern Reporter,

So. Southern Reporter,
S. E. Southeastern Reporter,

S. W. Southwestern Reporter,

S. Ct. Supreme Court Reporter.

We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text-books.

U. S. Notes 4 Wheat. 4 L. ed. 698-152 p.

EDITOR.

t

IV WHEATON.

4 Wheat. 1-51, 4 L. 499, TRUSTEES OF PHILADELPHIA BAP. TIST ASSOCIATION v. HART.

Charitable bequest.- An unincorporated society cannot take a charitable bequest as a society, p. 28.

This rule has been applied in the following citing cases: Greene v. Dennis, 6 Conn. 301, 16 Am. Dec. 64, holding invalid a bequest in trust to "yearly meeting of people called Quakers; " McCord

66

v. Ochiltree, 8 Blackf. 16, holding invalid devise in trust to a theological seminary for benefit of pious indigent youths;" Acklen v. Franklin. 7 La. Ann. 415, holding inoperative devise in presenti to unincorporated orphanage; so also in Succession of Hardesty, 22 La. Ann. 333, holding further that such devise is not made effectual by subsequent incorporation; State v. Warren, 28 Md. 352, 353, 354, denying validity of a bequest to an unincorporated church society; so also in Church, etc. v. Smith, 56 Md. 393, to same effect; Owens v. Missionary Society, 14 N. Y. 384, 385, 67 Am. Dec. 161, 162, under facts similar to those in principal case; Trustees v. Adams, 4 Or. 83, holding that voluntary society cannot take an estate in fee; Stonestreet v. Doyle, 75 Va. 366, 40 Am. Rep. 732, holding invalid bequest to trustees for benefit of poor children, incorporation not having been contemplated by testator. See also note, 90 Am. Dec. 106. Cited approvingly, but without particular application of the rule, in Fink v. Fink, 12 La. Ann. 321.

The rule has been criticised and denied in the following cases asserting that such a society can so take; Carter v. Balfour, 19 Ala. 825, 826, 827, 828, 829; Johnson v. Mayne, 4 Iowa, 189, 192; Sewall v. Cargill, 15 Me. 420; Bartlett v. Nye, 4 Met. 380; Missouri, etc., Society v. Academy of Sciences, 94 Mo. 467, 8 S. W. 348; Hadden v. Dandy, 51 N. J. Eq. 160, 26 Atl. 466; Pearsall v. Post, 20 Wend. 118; Baptist Church v. Witherell, 3 Paige Ch. 300, 24 Am. Dec. 225; Wright v. Trustees, 1 Hoff. Ch. 239; Williams v. Presbyterian Church, 1 Ohio St. 500; Bates v. Taylor, 28 S. C. 481, 6 S. E. 330; Dye v. Beaver Creek Church, 48 S. C. 455, 59 Am. St. Rep. 728, 26 S. E. 721; dissenting opinion, Green v. Allen, 5 Humph. 216, 222, 223, 228, 231, 237. The principal case is distinguished on this point in Magill v. Brown, 16 Fed. Cas. 413, 414, 416, under statute; Miller v. Chittenden, 4 Iowa, 270, where devise to unincorporated society indicated intention that it was to take effect upon incorporation; so also in Milne v. Milne, 17 La. 57, to same effect; Von der Volgen v. Yates, 3 Barb. Ch. 245, holding that under devise to unincorporated lodge,

such lodge may take beneficial interest; Kelley v. Bourne, 15 Or. 480, 16 Pac. 43, where devise was to partnership; Pennoyer v. Wad hams, 20 Or. 279, 25 Pac. 722, holding that unincorporated church society may take beneficial interest under specific trust; in In re John's Will, 30 Or. 517, 47 Pac. 349, to same effect; Literary Fund v. Dawson, 1 Rob. (Va.) 418, holding valid a devise made to vest upon incorporation of society; Episcopal Society v. Churchman, 80 Va. 765, 766, 767, 768, where society had become incorporated before time when devise was to take effect.

Condition precedent.- Estate may be granted subject to any condition not in itselt illegal, p. 35.

Cited and applied in Atwood v. Beck, 21 Ala. 623, where testator had bequeathed to slaves certain sums, to be delivered to them upon their removal to free State and court refused to enjoin executor from so removing them; Ross v. Duncan, 1 Freem. Ch. 603, holding valid as trust direction in will for liberation and transportation of slaves to Liberia. See also Wade v. American, etc., Society, 7 Smedes & M. 695, 45 Am. Dec. 328, where rule is approved in discussion of general subject.

Trust for charitable uses, where no legal interest is vested and which is too vague to be claimed by those for whom the beneficial interest is intended, cannot be established by a court of equity independent of the statute 43 Eliz., p. 39.

This rule has been applied in the following citing cases: Wheeler v. Smith, 9 How. 79, 13 L. 54, holding void, bequest to trustees for "such purposes as they consider will be most beneficial to city," etc.; Fountain v. Ravenel, 17 How. 384, 389, 15 L. 86, 88, refusing to give effect to charity, object of which was not designated during the lifetime of executors as directed by testator (but see dissenting opinion, pp. 392, 394, 395, 15 L. 90, 91); Kain v. Gibboney, 101 U. S. 366, 367, 25 L. 814, ruling similarly as to bequest to bishop "for use and benefit of community;" Barnes v. Barnes, 3 Cr. C. C. 275, F. C. 1,014, where devise was in trust for "poor and necessitous widows within corporation of Georgetown;" Meade v. Beall, Taney, 359, 362, F. C. 9,371, under facts similar to those in principal case; Board of Foreign Missions v. McMaster, 3 Fed. Cas. 783, holding void for uncertainty bequest with directions to executor to apply it to support of "foreign missions in India;" White v. Fisk, 22 Conn. 55, holding void a devise in trust for "indigent pious young men of Hartford;" Starkweather v. American Bible Society, 72 Ill. 57, 22 Am. Rep. 138, holding that where corporation is prohibited in State where organized from holding real estate equity will not, in another State, convert devise of lands into money by application of cy pres; Le Page v. McNamara, 5 Iowa, 146, holding invalid bequest in trust to bishop for education and maintenance of poor children; Dashiell v. Attorney-General, 5 Harr. & J. 398, 9 Am. Dec. 573, ruling simi

larly as to devise to trustees for benefit of " poor of St. Peter's parish;" Bascom v. Albertson, 34 N. Y. 603, 604, 606, 607, applying principle in holding that bequest for purpose of founding charity to such persons as court of another State may appoint to receive it, is invalid for any purpose if unlawful in State of domicile; Gallego's Heirs v. Attorney-General, 3 Leigh, 462, 468, 24 Am. Dec. 655, 660, and Seaburn v. Seaburn, 15 Gratt. 426, under facts similar to those in principal case; Wilson v. Perry, 29 W. Va. 188, 194, 195, 196, 1 S. E. 316, 320, 321, 322, holding invalid devise in trust for “Presbyterian church in the United States;" Pack v. Shanklin, 43 W. Va. 314, 318, 27 S. E. 393, 395, where devise was to "Trustees of Home and Foreign Missions of the Southern Presbyterian Church." See also notes, 9 Am. Dec. 578, 580, and 64 Am. St. Rep. 768, on general subject. The rule is cited approvingly but without particular application to the point at issue in White v. Keller, 68 Fed. 803; Beckwith v. Rector, 69 Ga. 574; Grimes v. Harmon, 35 Ind. 230, 231, 232, 237, 9 Am. Rep. 714, 715, 716, 719; McCartee v. Orphan Asylum, 9 Cow. 487; Williams v. Williams, 8 N. Y. 541; Levy v. Levy, 33 N. Y. 109; Pell v. Mercer, 14 R. I. 436; Commonwealth v. Levy, 23 Gratt. 40; Knox v. Knox, 9 W. Va. 144.

The rule has been criticised and denied in the following cases, asserting the doctrine of cy pres: Estate of Hinckley, 58 Cal: 490, 492, 495, 498, 506; Tappan v. Deblois, 45 Me. 130, 131; Jackson v. Phillips, 14 Allen, 588, 589; Chambers v. St. Louis, 29 Mo. 587; Hutchins v. George, 44 N. J. Eq. 126; Derby v. Derby, 4 R. I. 435; Shields v. Jolly, 1 Rich Eq. 105, 108, 42 Am. Dec. 350, 352, 353; dissenting opinion, 5 Humph. 216, 222, 223, 228, 231, 237; Bell County v. Alexander, 22 Tex. 360, 362, 73 Am. Dec. 272, 273; Paschal v. Acklin, 27 Tex. 200; Burr v. Smith, 7 Vt. 302, 29 Am. Dec. 184; Ould v. Washington Hospital, 1 McAr. 541, 29 Am. Rep. 610. See also note, 24 Am. Dec. 679, where principal case is referred to as having been overruled. The principal case is distinguished upon this point in the following cases, holding the rule inapplicable where the devise or bequest is to certain designated trustees for the benefit of persons to be ascertained by them: Inglis v. Trustees, 3 Pet. 114, 7 L. 623 (but see dissenting opinion, p. 149, 7 L. 635); Vidal v. Girard's Executors, 2 How. 192, 194, 196, 11 L. 232, 233; Prim v. Carey, 24 How. 501, 16 L. 710; Russell v. Allen, 107 U. S. 167, 168, 27 L. 399, 2 S. Ct. 330, 331; Bull v. Bull, 8 Conn. 50, 20 Am. Dec. 88; Woodruff v. Marsh, 63 Conn. 137, 38 Am. St. Rep. 356, 26 Atl. 851; State v. Griffith, 2 Del. Ch. 414, 416, 419, 465; Wade v. American, etc., Society, 7 Smedes & M. 695, 45 Am. Dec. 328; Hasketh v. Murphy, 36 N. J. Eq. 311; Potter v. Chapin, 6 Paige, 649; San Antonio v. Odin, 15 Tex. 545; Roy v. Rowzie, 25 Gratt. 607; Trustees v. Guthrie, 86 Va. 145, 146, 148, 151, 10 S. E. 324, 325, 326. Distinguished also in the following cases under statutes re-enacting the statute 43 Eliz.: American Bible Society v. Wetmore, 17 Conn. 188; Gass v. Wilhite, 2 Dana, 182, 26 Am. Dec.

456 (but see dissenting opinion, 2 Dana, 185); Moore v. Moore, 4 Dana, 357, 360, 29 Am. Dec. 420, 423; Going v. Emery, 16 Pick. 114, 117, 26 Am. Dec. 648, 651; American Academy v. Howard College, 12 Gray, 593; Griffin v. Graham, 1 Hawks, 128, 129, 9 Am. Dec. 623, 624. Limited in Kurtz v. Beatty, 2 Cr. C. C. 700, F. C. 7,950, holding where land thus imperfectly devised has been long occupied for uses contemplated, heirs of devisor will be enjoined from disturbing possession; Carter v. Balfour, 19 Ala. 825, 826, 827, 828, 829, holding where beneficiaries are sufficiently described, so as to be ascertainable, devise will be sustained; so also in Williams v. Pearson, 38 Ala. 304; State v. Griffith, 2 Del. Ch. 414, 416, 419, 465, holding where trustees are determinable by Probate Court devise is valid, although beneficiaries uncertain.

Miscellaneous citations.- Cited in Bandel v. Church, 82 Fed. 262, on point that equity jurisdiction extends to action to recover legacy; Christian Church v. Scholte, 2 Iowa, 30, but application doubtful; O'Connor v. Gifford, 117 N. Y. 281, 22 N. E. 1,038, on point that property given to trustees under void trust is to be held by them as trustees for those persons to whom the law or provisions of will give property which is not disposed of. Cited also in Loring v. Marsh, 2 Cliff. 492, F. C. 8,515, on point that where question involves construction of State statute concerning lands Federal courts will adopt the construction made by State courts.

4 Wheat. 52-73, 4 L. 512, THE DIVINA PASTORA.

Recognition of foreign States is a political function, p. 63.

Cited and rule applied in Cherokee Nation v. Georgia, 5 Pet. 47, 8 L. 41, holding Cherokee Nation not to be foreign State for purpose of suing in United States courts, congress not having recognized them as such in treaty; Scott v. Jones, 5 How. 374, 12 L. 196, denying jurisdiction of courts to inquire into validity of organization of State governments under act of congress; dissenting opinion, Luther v. Borden, 7 How. 57, 12 L. 605, concurring with majority on point that as between conflicting governments in State, recognition of rightful one is function of congress; Jones v. United States, 137 U. S. 212, 34 L. 696, 11 S. Ct. 83, holding that courts are bound to take cognizance of proclamation by president of sovereignty over guano island and that Federal courts have jurisdiction of crime committed on such island; The Hornet, 2 Abb. (U. S.) 39, F. C. 6,705, denying right of United States courts to recognize insurgents as parties in judicial proceedings until their recognition as rightful government by executive; The Ambrose Light, 25 Fed. 429, as to recognition of belligerency; The James G. Swan, 50 Fed. 111, holding that congress having assumed jurisdiction and sovereignty over Behring Sea, Federal courts are bound to exercise jurisdiction over seizures made in such waters; United States v.