191; Runyan v. Coster, 14 Pet. 122; National Bank v. Matthews, 98 U. S. 621; Cowell v. Springs Co., 100 U. S. 55, 60; Jones v. Guaranty & Indemnity Co., 101 U. S. 622; National Bank v. Whitney, 103 U. S. 99; Fritts v. Palmer, 132 U. S. 282; Leazure v. Hillegas, 7 S. & R. 313; Chambers v. St. Louis, 29 Mo. 543; Bank v. Poitiaux, 3 Rand. (Va.) 136; Fayette Land Co. v. Louisville & Nashville Railroad, 93 Va. 274; Mallett v. Simpson, 94 N. C. 37; Gilbert v. Hole, 2 So. Dak. 164; Barrow v. Nashville & Charlotte Turnpike Co., 9 Humph. 304; Hough v. Cook County Land Co., 73 Ill. 23; Alexander v. Tolleston Club, 110 Ill. 65; Barnes v. Suddard, 117 Ill. 237; Hamsher v. Hamsher, 132 Ill. 273; Baker v. Neff, 73 Ind. 68, 70. This is a fair deduction from the decisions in this Commonwealth. Heard v. Talbot, 7 Gray, 113; Commonwealth v. Wilder, 127 Mass. 1, 6; Davis v. Old Colony Railroad, 131 Mass. 258, 273; West Springfield v. West Springfield Aqueduct Co., 167 Mass. 128; Slater Woollen Co. v. Lamb, 143 Mass. 420; Prescott National Bank v. Butler, 157 Mass. 548; Nantasket Beach Steamboat Co. v. Shea, 182 Mass. 147; National Pemberton Bank v. Porter, 125 Mass. 333; Atlas National Bank v. Savery, 127 Mass. 75; Bowditch v. New England Ins. Co., 141 Mass. 292; Chaffee v. Middlesex Railroad, 146 Mass. 224.

The counsel for one of the petitioners says in his brief, "It is fully conceded at the outset that where a corporation takes and holds property by conveyance, or by executed gift inter vivos, contrary to its charter rights, no one but the State can complain. This is settled by a practically unbroken line of decisions in all the states," etc.

But if the statute were a prohibition that renders the holding utterly void, and the taking also void, as is argued in the opinion in In re McGraw's estate, 111 N. Y. 66, anybody interested could take advantage of the violation of law, unless he was precluded by estoppel. Most of the cases which we have cited do not put their decision on the ground of estoppel. The ground on which most of the cases go is that the implication is not an absolute prohibition, but only a condition affecting the rights of the corporation as between it and the State. If the holding were an illegality which was utterly void, the condition would be the same whether the taking was by grant or devise, and a variety of unfortunate consequences might follow. The property might greatly increase in value after its acquisition, as was the case in Evangelical Baptist Society v. Boston, 192 Mass. 412. In that case, although the property of the corporation largely exceeded in value the amount authorized by the statute, there was no intimation that the holding was illegal, so long as the State did not interfere. See also Humbert v. Trinity Church, 24 Wend. 587, 605. As to all interests of private per

sons, in the absence of interference by the State, the cases generally treat titles to property held by corporations in excess of the specially authorized amounts as good. They allow the corporations to give good titles to purchasers of such property.

Some judges, in holding that such titles cannot be taken under wills, endeavor to found a distinction upon the executed character of a title by grant, and suggest that a devise or bequest is executory. It seems to us that there is no good reason for the distinction. When a will is proved and allowed, it takes effect immediately to pass all property affected by it. The provision in the law against large holdings by corporations has no relation to the probate of the will. The act of the testator in executing the will is confirmed and given effect as a complete and executed disposition of the property, by the allowance of the will. In this respect a recorded will does not materially differ from a delivered deed. The heirs at law are bound by one as well as by the other.

The decisions upon the precise point at issue are conflicting. In Jones v. Habersham, 107 U. S. 174, a case similar to that now before us, it was held by the court, in an opinion by Mr. Justice Gray, that "restrictions imposed by the charter of a corporation upon the amount of property that it may hold, cannot be taken advantage of collaterally by private persons." In the same case in the Circuit Court the question had been considered previously, and the same result was reached, in an opinion by Mr. Justice Bradley of the Supreme Court of the United States, which is found in 3 Woods, 443, 475. The same rule is established in Maryland. Hanson v. Little Sisters of the Poor, 79 Md. 434; In re Stickney's will, 85 Md. 79, 104. DeCamp v. Dobbins, 2 Stew. (N. J.) 36, 40, was decided by the Chancellor on this ground. The decree was affirmed on another ground in the Court of Errors and Appeals, 4 Stew, (N. J.) 671, 690, in an opinion by Beasley, C.J., which contains a dictum disapproving of the view of the Chancellor. In Farrington v. Putnam, 90 Maine, 405, the court, in a very elaborate opinion, in a case identical in its leading features with that now before us, held that the gift was good. The same doctrine is stated in Brigham v. Peter Bent Brigham Hospital, 126 Fed. Rep. 796, 801; s. c., 134 Fed. Rep. 513, 527. It is also stated in text books. Beach, Corp. (Purdy's ed.) 825; Thompson, Corp. # 5795, 5797.

The leading case which presents the opposite view is In re McGraw's estate, 111 N. Y. 66. Although the decision necessarily puts a construction upon a statute of that State, this construction seems to be materially affected by the policy of New York in reference to charities. Said Judge Peckham, who delivered the opinion, "We have a decided mortmain policy. It is found in our statute in relation to wills, pro

hibiting a devise to a corporation unless specially permitted by its charter or by some statute to take property by devise." In Chamberlain v. Chamberlain, 43 N. Y. 424, the court refers to the prohibition of devises, and to the N. Y. St. 1860, c. 360, still in force, which makes void all bequests or devises to charity in excess of one half of testator's property, where he leaves relatives. Other statutes have been passed, limiting the amount that can be devised to certain corporations by one testator, forbidding a devise or bequest to charities, by a person leaving relatives, of more than one fourth of his estate, and making void such gifts where the will was executed within two months before the death of the testator. Gen. Laws. of N. Y. 1901 (Heyd. ed.), 4885, 4891, 4892. The policy of that State in regard to charities has been very unfavorable. See Allen v. Stevens, 161 N. Y. 122, 139, 140; People v. Powers, 147 N. Y. 104; Fosdick v. Hempstead, 125 N. Y. 581.

The doctrine of the New York court is stated as the law in Davidson College v. Chambers, 3 Jones Eq. 253, and adopted in Wood v. Hammond, 16 R. I. 98, 115, and House of Mercy v. Davidson, 90 Tex. 529. In the case in North Carolina the decision was by two of the three judges of the court, the Chief Justice giving an able dissenting opinion. The courts in Kentucky and Tennessee have expressed approval of the McGraw case in New York, but in terms that do not leave the grounds of their decisions entirely clear. Cromie v. Louisville Orphans' Home Society, 3 Bush, 365, 383; Heiskell v. Chickasaw Lodge, 87 Tenn. 668, 686. In reference to supposed errors in the opinion in the last case, see Pritchard on Wills, 153, note, and Farrington v. Putnam, 90 Maine, 405, 433.

In the construction of our statute, when the question arises whether a different rule shall be established in regard to the taking and holding by a corporation under a will from that which is universally laid down in regard to a holding under a deed, we are much influenced by the Policy of our law as to devises and bequests for charitable purposes. We are of opinion that, under the R. L. c. 125, 8, a gift to a corporation under a will, to an amount in excess of the sum specially authorized, should be held no less valid than a similar acquisition of title under a deed. It is good as against every one but the Commonwealth. It follows that the St. 1906, c. 312, operated as a waiver of the Commonwealth's right to terminate the holding, and a legislative declaration of the entire validity of the provision in the will.

If we are wrong in this conclusion, the petition must be dismissed on an independent ground. The gift was to a public charity. The purposes of the Worcester Art Museum, as set forth in the agreement for its organization from which we have quoted, show the charitable

uses to which all property held by it must be put. It is all held "solely in trust, for the benefit of all the people of the city of Worcester." We have no doubt that the property was given under the testator's will with a general charitable intent, with which the Worcester Art Museum, as a corporation, had no other connection than as an instrument to carry out the general purpose of the testator. In other words, the gift was not to the Worcester Art Museum as a corporation, apart from the charitable work in which it was engaged, nor on account of anything essential or peculiar in its performance of the charitable work described in its instrument of organization. The general charitable purpose was predominant in the mind of the testator, and not a desire to give to a particular corporation. The charitable purpose may be implied in the name or object of the devisee. Winslow v. Cummings, 3 Cush, 358; Bliss v. American Bible Society, 2 Allen, 334; Incorporated Society v. Richards, 1 Dr. & War. 258, 331. The object of the devisee, as a legally established public charity may arise "from the character of the body to which the gift is made, or from publicly avowed purposes of its organization and action." Old South Society v. Crocker, 119 Mass. 1, 24; Stratton v. Physio-Medical College, 149 Mass. 505, 508. In such a case, if for any reason the donee named is incapable of executing the trust, the court will not allow the gift to fail for want of a donee. Fellows v. Mainer, 119 Mass, 541; Codman v. Brigham, 187 Mass. 309; Osgood v. Rogers, 186 Mass. 238; Bliss v. American Bible Society, 2 Allen, 334; Sherman v. Congregational Home Missionary Society, 176 Mass. 349; Winslow v. Cummings, 3 Cush, 358; Attorney-General v. Stephens, 3 Myl. & K. 347; Hayter v. Trego, 5 Russ. 113; Loscombe v. Wintringham, 13 Beav. 87; Swasey v. American Bible Society, 57 Maine, 523; Almy v. Jones, 17 R. I. 265.

If the corporation, at the time of the probate of the will, was incapable of taking the property and carrying out the general charitable intent of the testator, the court, applying the doctrine of cy pres, would appoint a trustee to act in its place. Inasmuch as the Legislature, by the St. 1906, c. 312, has removed the only ground of its disability, a direction to turn over the property to the corporation would accomplish perfectly the purpose of the testator. Baker v. Clarke Institution for Deaf Mutes, 110 Mass. 88.

In no view of the case have the petitioners any private right or interest which has been injured by the respondent, such as brings them within the provisions of R. L. c. 192,

#6.

Petition dismissed.

SPECIAL ACT-ACCEPTANCE OF CHARTER

STATE V. DAWSON

16 Ind. 40 (1861)

PERKINS, J. Information against the defendants, charging that they are pretending to be a corporation, and to act as such, when they are not a corporation. It charges that in January, 1849, the legislature of the State of Indiana enacted a special charter of incorporation (which is set out at length) for a railroad from Fort Wayne, Indiana, to Jeffersonville, to be called the Fort Wayne and Southern Railroad; that the persons named in the charter as directors did not accept said charter till June 2, 1852, when they did meet and accept the same and organize under it. It is alleged that the defendants are assuming to act under said charter, never having organized under any other. The court below sustained a demurrer to the information; thus holding the defendants to be a legal corporation.

The present constitution of Indiana took effect on November 1, 1851. It contains these provisions;

"All laws now in force and not inconsistent with this Constitution shall remain in force until they shall expire or be repealed." Sched. (1 subsec.) of Const.

"Corporations, other than banking, shall not be created by special act, but may be formed under general laws." Art. 11, paragraph 13.

"All acts of incorporation for municipal purposes shall continue in force under this Constitution, until such time as the General Assembly shall, in its discretion, modify or repeal the same." Sched. supra, subsec. 4.

The charter for the Fort Wayne and Southern Railroad was not a charter for municipal purposes, and hence was not specially continued in existence. Art. 11, paragraph 13, above quoted, prohibits the creation of a corporation by special act or charter, that is, as we construe the prohibition, through or by virtue of, such special act or charter, after November 1, 1851. The policy that induced the prohibition, as well as its literal import, demands this construction. It is necessary for us to ascertain, then, when the defendants, if ever, were created a corporation. The simple enactment of the charter for the corporation, by the legislature, did not create the corporation. It required one act on the part of the persons named in the charter to do that, viz.: acceptance of the charter enacted.

Says Grant, in his work on Corporations, vide p. 13, "Nor can a charter be forced on any body of persons who do not choose to accept