delivered the opinion of the court.

This is an appeal in chancery, from the circuit court of the United States for the eastern district of Pennsylvania.

The case involves the construction of the will of Frederick Kohne. He first settled in Charleston, South Carolina, where he engaged in active business, and accumulated a large fortune. For many years before his death, his residence was divided between Charleston and Philadelphia. At the latter place, he added much to his wealth, in the acquisition of real and personal property. He had furnished houses in both cities, and a country house in the neighborhood of Philadelphia. Until his health became infirm, he resided a part of the year in the South, and the other part in the North. In May, 1829, he died in Philadelphia, where his will was made and published, in the month of April preceding his death. In his will, he declared himself to be of the city of Philadelphia.

After giving sevéral annuities to his wife and others, and legacies to his friends in this country and in foreign countries, to charitable objects, and providing for the payment of them, he declares: “ Forasmuch as there will be a surplus income of my estate, beyond what will be necessary to pay my said wife’s annuity and the, other annuities, I do therefore direct my said executors to - invest the said surplus income, and all accumulation of interest arising from that source yearly, for and during all the term of the natural life of my said wife, in the purchase of such stocks or securities of the United States, or the State of Pennsylvania, or of any other State or States of the United States, or of the city of Philadelphia, bearing an interest, as they, in their discretion, may see fit; and from and immediately after the decease of my said wife, then all the rest, residue, ancl remainder of all my estate, including the fund which shall have arisen from the said surplus income aforesaid, after payment of the legacies hereinbefore directed to be paid, after the decease of my said wife, arid providing, for the payment of the annuities hereinbefore giveri, of those annuitants who may then be -till living, I authorize and empower my executors or the sur*383vivor of them, after the decease of my said wife, to dispose of the same for the use .of such charitable institutions in Pennsylvania and South Carolina, as they or he may deem most beneficial to mankind, and so that part of the colored population in each' of the said States of Pennsylvania and South Carolina shall partake of the benefits thereof.” His wife, Eliza Kohne, John Bohlen, and Robert Vaux, of the city of Philadelphia, and Robert Maxwell, of the city of Charleston, were appointed executors.

Mrs. Kohne survived her co-executors some years, and then died, having made her last will and testament, and appointed James L. Petigru and William -Ravenel, the defendant, executors, the latter of whom obtained letters testamentary in the county of Philadelphia. And on the 15th of October, 1852, William Fontain, the complainant, obtained letters of administration de bonis non, on the estate of Frederick Kohne, deceased, he being the nearest of kin to the deceased, and one of his heirs at law.

The bill is filed in the name of the complainant, by certain charitable societies of Pennsylvania and South ^Carolina, under the directions of the will, to recover from the defendant, as executor of Mrs. Kohne, so much of the property as came to her hands as the executrix of her husband’s will, and which she distributed, as undisposed-of property, after the death .of her co-executors. And the question in the case is, whether the residuary bequest in the will, whiph authorized his executors, or the survivor of them, after the death of his wife, to dispose of the surplus “ for the use of such charitable institutions in Pennsylvania and South Carolina, as they might deem most beneficial to mankind,” has lapsed, no such appointment having been made, or attempted to be made, during the lifetime of the executors. This part of the property is understood to have amounted to a large sum.

The domicile of the testator, at the time of his death, seems not to be a controverted question. He had so lived in the two States of Pennsylvania and South Carolina, and amassed-property in.both, that his domicile might be claimed in either. There is no evidence in which, if in either, he exercised the right of suffrage. For two years previous to his death, he resided in Pennsylvania.

The bequest under consideration was intended to be a charity. The donor, having entire confidence in his executors, substituted their judgment for his own. They, or the survivor of them, was to designate such objects of his charity in the two States, “ as would be most beneficial to mankind.’5 It was to be placed on the broadest foundations of human sympathy, not *384excluding the colored race. It is no charity to give to a friend. In the books, it is said the thing given becomes a charity where the uncertainty of the recipients begins. This is beautifully illustrated in the Jewish law, which required the sheaf to be left in the field, for the needy and passing stranger.

It may be admitted that this bequest would be executed in England. A charity rarely, if ever, fails in that country. The only question there is, whether it shall be administered by the chancellor, in the exercise of his ordinary jurisdiction, or under the sign-manual of the crown. Thus furnished with the judicial and prerogative powers, the intent of the testator, however vaguely and remotely expressed, if it be construed into a charity, effect is generally given to it. It is true, this is not always done in the spirit of the donor; for sectarian prejudices, or the arbitrary will of the king’s instruments, sometimes pay little or no regard to the expressed will of the testator.

The appellants endeavor to sustain this charity under the laws of Pennsylvania. This is according to the course of the court. The case of The Philadelphia Baptist Association v. Hart’s Executors, 4 Wheat. 1, was decided under the laws of Virginia, which had repealed the statute of 43 Elizabeth. In Beatty v. Kurtz, 2 Pet. 566, the pious use of a burial-ground was sustained under the bill of rights of Maryland. The case of Wheeler v. Smith, 9 How. 55, was ruled under the laws of Virginia. And in the case of Vidal v. Girard’s Executors, the laws of Pennsylvania governed.

In Wheeler v. Smith, this court said, when this country achieved its independence, the prerogatives of the crown devolved upon the people of the States. And this power still-remains with them, except so far as they have delegated a portion of it to the federal government. The sovereign will is made known to us by legislative enactment. The State, as a sovereign, is the parens patries.

There can be no doubt that decisions have been made in this country, on the subject of charities, under the influence of English decrees, without carefully discriminating whether they resulted from the ordinary exercise of chancery powers, or the prerogatives of the crown.

The courts of the United States cannot exercise any equity powers, except those conferred 'by acts of congress, and those judicial powers which the high court of chancery in England, acting under its judicial capacity as a court of equity, possessed and exercised, at the time of the formation of the constitution of the United States. Powers not judicial, exercised by the chancellor merely as the representative of the sovereign, and by virtue of the king’s prerogative as parens patriae, are not possessed by the circuit courts.

*385In 2 Story’s Eq. § 1189, it is said: “ But as the court of chancery may also proceed in many, although not in all, cases of charities by original bill, as well as by commission under the statute of Elizabeth, the jurisdiction has become mixed in practice ; that is to say, the jurisdiction of bringing informations in the name of the attorney-general, has been mixed with the jurisdiction given to the chancellor by the statute. So that it is not always easy to ascertain in what cases he acts as a judge, administering the common duties of a court of equity, and in what cases he acts as a mere delegate of the crown, administering its peculiar duties and prerogatives. And again, there Is a distinction between cases of charity, where the chancellor is to act in-the court of chancery, and cases where the charity is to be administered by the king, by Ms sign-manual. But in practice the cases have often been confounded, from similar causes.”

“ It is a principle in England, that the king, as parens patrice, enforces public charities, where no other person is intrusted with the right. Where there is no trustee, the king, by his lord chancellor, administers the trust, as the keeper of the king’s conscienceand it is not important whether the chancellor acts as the special delegate of the crown, or the Icing acts under the sign-manual, his discretion being guided by the chancellor.”

It may be well again to state the precise question before us. “ The executors, or the survivor of them, after the decease of • the testator’s wife, was authorized to dispose of the property, for the use of such charitable institutions in Pennsylvania and South Carolina, as they or he may deem most beneficial to mankind.”

No special trust is vested in the executors, by reason of this power of appointment. It is separable and distinct from their ordinary duties and trust as executors. It was to be exercised after the death of Mrs. Kohne; but the executors died before her decease, and consequently they had no power to make the appointment. The conditions annexed by the testator rendered the appointment impossible. Had the contingency of the death of Mrs. Kohne happened, as the testator from her advanced age contemplated, during the life of the executors or the survivor of them, the appointment might have been made at his or their discretion. But had they or the survivor of them failed to make it, it might have become a question whether he or they could have been coerced to do so by the exercise of' any known chancery power in this country. The will contained no provision for such a contingency, and it could not be brought under the trust of executorship. Chancery will not compel the execution of a' mere naked power. 1 Story’s Eq. § 169. ¡But it will, *386tmder equitable circumstances^ aid a defective execution of a power. A power when coupled with a trust, if not executed before the death of the trustee, at law the power is extinguished, but the trust, in chancery, is held to survive.

The testator was unwilling to give this discretion to select the objects of his bounty, except to his executors. He relied on their discrimination, their judgment, their integrity, and fitness, to carry out so delicate and important a power. He made no provision for a failure, in this respect, by his executors or the survivor of them, nor for the contingency of their deaths before Mrs. Kohne’s decease. They died before they had the power to appoint, and now what remains of this bequest, on which a court of chancery can act ?

There must be some creative energy to give embodiment to an intention which was never perfected. Nothing short of the prerogative power, it would seem, can reach this case. There is not only uncertainty in the beneficiaries of this charity, but behind that is a more formidable objection. There is no expressed will of the testator. He intended to speak through his executors or the survivor of them, but by the acts of Providence this has become impossible. It is then as though he had not spoken. Can any power now speak for him, except the parens patria? Had he declared'that the residue of his estate should be applied to certain charitable purposes, under the statute of 43 Eliz., or on principles similar to those of the statute, effect might have been given to the bequest, as a charity, in the State of Pennsylvania. The words as to the residue of his property were used in reference to the discretion to be exercised by his executors. Without their action, he did not intend to dispose of the residfie of his property.

It is argued, “ that in England the chancellor, in administering charities, acts as the delegate of the' crown, inasmuch as he discharges all his judicial, functions in that capacity.” If, by this, it is intended to assert that the chancellor, in affixing the dgn-manual of the king, or when he acts under the cy pres power, is in the discharge of his ordinary chancery powers, it does not command our assent.

The statute of 43 Eliz., though not technically in force in Pennsylvania, yet, by common usage, and constitutional recognition, the principles of the statute are acted upon in cases involving charities. Witman v. Lex, 17 Serg. and Rawle, 88.

In the argument, the case of Moggridge v. Thaekwell, 7 Ves. 86, was cited, as identical with the case before us. “ The only difference between the case and this one, it is said, is, that in the former the devise was for objects not defined, as they are in this case.” In this the counsel are somewhat mistaken, as the case of Moggridge will show.

*387The devise in the will of Ann Cam was: “ And I give all the rest and residue of my personal estate unto James Vaston, of Clapton, Middlesex, gentleman, his executors and administrators, desiring him to dispose of the same in such charities as he shall think fit, recommending poor clergymen who have large families and good characters; and I appoint the said John Maggridge and Mr. Vaston, before mentioned, executors of this my will.”

In the final decree, “ upon a motion to vary the minutes, Lord Thurlow declared, that the residue of the testatrix’s personal estate passed by her will, and ought to go and be applied to charity,” &c.

Now here was a trust created not only in Vaston, but in his executors and administrators, to whom the residue of the estate was bequeathed for the purposes of the charity. In this view, Lord Thurlow might well say, “the residue of the personal estate passed by the will.’.’ This was true, though Vaston was dead when the will took effect. This being the case, it is difficult to say that that case is identical with the one before us.

The case of Moggridge v. Thackwell was before Lord Eldon on a rehearing. He entered into a general view of the subject of charities, by the citation of authorities which showed the unreasonableness of the doctrine maintained by the courts, the inconsistencies in the decisions in such cases,'and the gross perversions of charities by the exercise of the prerogative power; but at last he says : “ Therefore I rather think the decree is right. I have conversed with many upon.it. I have great difficulty in my own mind, and have found great difficulty in the mind of every person I have consulted; but the general principle thought most reconcilable to the cases is, that where there is a general indefinite purpose, not fixing itself upon any object, as this in a degree does, the disposition is in the king by sign-manual; but where the execution is to be by a trustee, with general or some objects pointed out, there the court will take the administration of the trust. ■ But,” he observes, “ it must be recollected that I am called upon to reverse the decree of a predecessor, and of a predecessor who, all the reports inform us, had great occasion to consider this subject. I should hesitate with reference to that circumstance; but where authority meets authority, and precedent clashes with precedent, I doubt whether I could make a decree more satisfactory to my own ihind than that which has been made.”

It will be perceived that this decision was made reluctantly, and after much balancing of the law and the force of jrrecedentsj and chiefly; as it would seem, in respect to the decree of Lord Thurlow. This decision of Lord Eldon was made in 1802, and it is not known to have been recognized in this country.

*388Neither the doctrines on which this decision is. founded, nor the doubts expressed by the chancellor, are calculated very strongly to recommend it to judicial consideration. The case, however, is different from the one before us, in this : the residuary estate of Mrs. Cam passed to the trustee; that of Mr. Kohne remained as a part of his estate in the hands of the executors, and descended to his heirs at law on the death of Mrs. Kohne. ' The beneficiaries were not more definitely described in the one case than in the other. In Kohne’s case no trust was created, except that which was connected with the executorship.

Where there is nothing more than a power of appointment conferred by the testator, there is nothing on which a trust, on general principles, can be fastened. The power given is a mere agency of the will, which may or may not be exercised at the discretion of the individual. And if there be no act on his part, the property never having passed out of the testator, it necessarily remains as a part of his estate. To meet such cases, and others, the prerogative power of the Ung, in England, has been invoked, and he, through the chancellor, gives effect to the charity.

It would be curious, as well as instructive, on a proper occasion, to consider the principles, if principles they can be called, which were first applied in England to charities. Their most learned chancellors express themselves, in some degree, as ignorant on this subject. Lord Eldon said, in the case of Maggridge, “ in what the doctrine originated, whether, as Lord Thurlow supposed, in the principles of the civil law, as applied to charities, or in the religious notions entertained formerly in this country, I know not; but we all know there was a period when a portion of'the residue of every man’s estate was appropriated to charity, and the ordinary thought himself obliged so to apply it, upon the ground that there was a general principle of piety in the testator.”

In the above case, Lord Eldon again says: In Clifford v. Francis, this doctrine is laid down: that when money is given to charity, without expressing what charity, there the king is the disposer of the charity; and a bill ought to be preferred in the attorney-general’s name. I cite this (he says) to show that it contains a doctrine precisely the same as the Attorney-General v. Syderfin, and the Attorney-General v. Matthews. So those three eases (he say's) seemed to have established, in the year 1679, that the doctrine of this court was, that where the property was not vested in trustees, and the gift was to charity generally, not to be ascertained by the act of individuals referred to, the charity was to be disposed of, not by a scheme before the master, but by the king, the disposer of such charities in his character of parens patriae.

*389Some late decisions in England, involving charities, evince a disposition rather to restrict than to enlarge the powers exercised on this subject. An arbitrary rule in regard to property, whether by a king or chancellor, or both, leads to uncertainty and injustice.

In a late case of Clark v. Taylor, 21 Eng. Law and Eq. 308, a gift, by will, to a particular charitable institution maintained voluntarily by private means, the particular intention having-ceased : held that the gift was not to be disposed of as a charitable gift cy pres, but failed and fell into the residue.”

In'the case of the Baptist Association, Chief Justice Marshall says, there can be no doubt that the power of the crown .to superintend and enforce charities existed in very early times; and there is much “ difficulty in marking the extent of this branch of the royal prerogative before the statute. That it is a branch of prerogative, and not a part of the ordinary powers of the chancellor, is sufficiently certain,” And in the case of the Attorney-General v. Flood, Hayne’s Hep. 630, it is said: The court of chancery has always exercised jurisdiction in matters of charity, derived from the crown as parens patria.”

In the provisions of the act of Pennsylvania defining the powers of a court of chancery, in 1836, it is declared, “ that in every case in which any court, as aforesaid, shall exercise any of the powers of a court of chancery, the same shall be exercised according to the practice in equity, prescribed or adopted by the supreme court of the United States.”

In June, 1840, an act extended the jurisdiction of the supreme court within the city and county of Philadelphia, in chancery, in cases of “ fraud, accident, mistake, or account; ” and since then an act has been passed giving the orphans’ court power where a vacancy exists in a trust to fill it, and also to dismiss trustees, executors, Ac., for abuse of their trusts, Ac. But no statutory provision is found embracing the case before us.

The chancery powers are of comparatively recent establishment in the State' of Pennsylvania, and it does not appear that the cypres power is given, and in the exercise of jurisdiction it seems to be disclaimed.

In King v. Rundle, 15 Barb. 139, “ there being a number of charitable bequests to several charitable bodies, the remainder was bequeathed or devised to the Protestant Episcopal society, for certain purposes, Ac.; the bequests to the. religious bodies were held invalid, and so of the remainder over, as not being statutory tests. In Yates v. Yates, 9 Barb. 324, the court say: “ We come to the conclusion that,' as a court of equity; we possess no original inherent jurisdiction, to enforce the execution of a charitable trust void in law, as contravening the *390statute against perpetuities, as. being authorized. In this case, where the use is a pious one, additional reasons might be urged against the exercise of such jurisdiction, were it important. Unless this trust will stand the statutory test to be applied to it, it must fall.

In the will of Sarah Zane, Mr. Justice Baldwin, sitting in Pennsylvania, and speaking of trustees, says: “ They will be considered as trustees, acting pinder the supervision of this court, as a court of chancery, with the same powers over trusts as courts of equity in England, and the courts of this State profess and exercise.” “ When the fund shall be so ascertained a's to be capable of a final distribution, it will be directed to be applied exclusively to the objects designated in the will, as they existed at the time of her death, and shall continue until a final decree; if any shall then appear to have become extinct, the portion bequeathed to such object must fall into the residuary fund as a lapsed legacy. Its appointment to other purposes or cestuis que trust than those which can, by equitable construction, be brought within the intention of the will of the donor, is an exercise of that branch of the jurisdiction of the chancellor of England which has been conferred on this court by no law, and cannot be exercised, virtute officii, under our forms of government.”

And again, in Wright v. Linn, 9 Barr, 433, Bell, J., says: “ Though the statute of 43 Elizabeth, ch. 4, relating to charitable uses, has not, in terms, been recognized as extending to Pennsylvania, we have adopted, not only the principles that properly emanate from it,,but, with perhaps the single exception of cy pres, those which, by an exceedingly liberal construction, the English courts have engrafted upon it.”

In the Methodist Church v. Remington, 1 Watts, 226, the court says : “ The original trust, though void; was not a superstitious one; nor if it were, would the property, as in England, revert to the State for the purpose of being appropriated in eadem genera, as no court here possesses the specific power necessary to give effect to the principle of cy pres, even were the principle itself not too grossly revolting to the public sense of justice to be tolerated in a country where there is no ecclesiastical establishment.”

In Ray v. Adams, 3 Mylne and Keen’s R. 237, it was held, “ that where a power is by will given to a trustee, which he neglects to execute, the execution of the trust devolves upon the- court; but if, in the events which happen, the intended trustee .dies before the time arrives for the exécution of the trust, and' the trust therefore fails, the testator is to be considered as. having so far died intestate.

*391In the case of Ommanney v. Butcher, 1 Turn. and Russ. R. 260, a testator concluded his will, “ in case there is any money remaining, I should wish it to be given in private charity.” Held, “ if the testator meant to create a trust, and the trust is not effectually created, or fails, the next of kin must take.”

There appears to be no law or usage in South Carolina that can materially affect the question under consideration. It seems to be conceded that if this charity cannot be administered by this court, in the State of Pennsylvania,''•it cannot be made available by the laws of South Carolina.

After the investigation we have been able to give to this important case, embracing the English chancery decisions on charities, as well as our own, and the cases decided in Pennsylvania, we are not satisfied that the fund in question ought to be withdrawn from those who are in possession of it, as the heirs of Frederick Kohne. There does not appear to us to be any safe and established principle, in Pennsylvania, which, under the circumstances, enables a court of chancery to administer the fund. It has not fallen back into the estate of the testator, because it was not separated from it. It remains unaffected by the bequest, because the means through which it was to be given and applied have failed. The decree of the circuit court is,’therefore, affirmed.

Opinion of

I concur in the judgment of the court. But I do not, for myself, desire to express an opinion upon either the law of Pennsylvania or of South Carolina, in relation to charitable bequests. For, assuming every thing to be true that is stated in the complainant’s bill, and that the bequest is valid by the laws of Pennsylvania, and would be carried into execution by the tribunals of the State, yet I think the circuit court of The United States had not jurisdiction to establish and enforce it; and was right, therefore, in dismissing the bill. I propose to show, very briefly, the grounds on which this opinion is formed.

Undoubtedly, a charitable bequest of this description would be maintained in the English eoiut of chancery. The death of the executors, in the lifetime of the widow, would make no difference. The bequest would still be good against the heirs or representatives of the testator, and The fund applied to chari-’ table purposes, according to a scheme approved by the chancellor, or authorized under the sign-manual of the kina.

*392But the power which the chancellor exercises over donations to charitable uses, so far as it differs from the power he exercises in other cases of trust, does not belong to the court of chancery as a court of equity, nor is it a part of its judicial power and jurisdiction. It is a branch of the prerogative power of the king as parens patries, which he exercises by the chancellor.

Blackstone in his Commentaries, 3d vol. 47, enumerating what he states to be the extraordinary powers of the chancellor, says: “ He is the general guardian of all infants, idiots, and lunatics, and has the general superintendence of all charitable uses in the kingdom; and all this over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery.” And in the same volume, page 437, he says: “ The king, as parens patries, has the general superintendence of all charities, which he exercises by the keeper of his conscience, the chancellor; and, therefore, whenever it is necessary, the attorney-general, at the relation of some informant, files an ex officio information in the court of chancery to have the charity properly established.”

So, too, Cooper, in his chapter on the jurisdiction of the court, says: “ The jurisdiction, however, in the three cases of infants, idiots, or lunatics and charities, does not belong to the court of chancery as a court of equity, but as administering the prerogative and duties of the crown.”

And in the case of the Baptist Association v. Hart’s Executors, 4 Wheat. 1, this court, after examining many English authorities upon the subject, affirm the same doctrine. And Chief Justice Marshall, who delivered the opinion of the. court, expresses it in the following strong and decisive language (p. 48): —

“ It would be a waste of time,” says the- chief justice, “ to multiply authorities to this point, because the principle is familiar to the profession. It is impossible to look iffio the subject without perceiving and admitting it. Its extent may be less obvious.

“We now find,” he continues, “this prerogative employed in enforcing donations to charitable uses, which would not be valid if made to other uses; in applying them to different objects than those designated by the donor, and in supplying all defects in the instrument by which the donation is conveyed, or in that by which it is administered.”

Resting my opinion upon the English authorities above referred to, and upon the emphatic language just quoted from the decision of this court, I think I may safely conclude that the power exercised by the English court of chancery “in *393enforcing donations to charitable uses, which would not be valid if made to other uses,” is not a part of its jurisdiction as a court of equity, but a prerogative power exercised by that court.

It remains to inquire whether the constitution has conferred this prerogative power on the courts of equity of the United States.

The 2d section of the 3d article of the constitution declares that the judicial power of the United States shall extend to all cases in law and equity specified in the section. These words obviously confer judicial power, and nothing more; and cannot, upon any fair construction, be held to embrace the prerogative powers, which the king, as parens patria, in England, exercised through the courts. And the chancery jurisdiction of the courts of the United States, as granted by the constitution, extends only to cases over which the court of chancery had jurisdiction, in its judicial character as a court of equity: The wide discretionary power which the chancellor of England. exercises over infants, lunatics, or idiots, or charities, has not been conferred.

These prerogative powers, which belong to the sovereign as parens patria, remain with the States. They may legalize charitable bequests within their own respective dominions, to the extent to which the law upon that subject has been carried in England.; and they may require any tribunal of the State, which they think proper to select for that purpose, to establish such charities, and to carry them into execution. But state laws will not authorize the courts of the United States to exercise any power that is not in its nature judicial; nor can they confer on them the prerogative powers over minors, idiots, and lunatics, or charities, which the English chancellor possesses. Nobody will for a moment suppose that a court of equity of the United States could, in virtue of a state law, take upon itself the guardianship over all the minors, idiots, or lunatics in the State. Yet these powers in the English chancellor stand upon the same ground, and are-derived from the same authority, as its power in cases of charitable bequests.

State laws cannot enlarge the powers of the courts of the United States beyond the limits marked out by the constitution. It is true that the courts of chancery of the United States, in administering the law of a State, may sometimes be called on to exercise powers which do not belong to courts of equity in England. And, in such cases, if the power is judicial in its character, and capable of being regulated by the established rules and principles óf a court of equity, there can be no good objection to its exercise. It falls within the just inter-' *394pretation of the grant in the constitution. But, beyond this, the. state laws can confer no jurisdiction on the courts of equity of thé United States.

In the cases in relation to charities which have ■ come before this court, there has been a good deal of discussion upon the question, whether the power of the chancery court of England was derived from 43 Elizabeth, or was- exercised by the court before that act was passed. And there has been a diversity of opinion upon this subject in England, as well as in this country! In the case of the Baptist Association v. Hart’s Executors, Chief Justice Marshall, who delivered the opinion of the court, (vide 4 Wheat. 49,) and. Mr. Justice Story, who wrote out his own opinion, and afterwards published it in the appendix to 3 Pet. Rep., (vide p. 497,) were both at that time of opinion that it was derived from the statute. But in Vidal v. Girard’s Executors, 2 How. 127, Mr. Justice Story changed his opinion, chiefly upon the authority of cases found in the old English records, which had been printed a short time before by the commissioners on public records in England. It appeared from these records that the power had been exercised in many cases long before the statute was passed.

■ But this circumstance does not affect the question I am now considering; for, whether exercised before or not, yet, whenever exercised, it was in virtue of the prerogative power, and not as a part of the jurisdiction of the court as a court of equity. The statute conferred no new prerogative on the “crown. . And Lord Redesdale, 1 Bligh. 347, while he held that the power existed in the chancellor before the statute, and had been frequently exercised, declares it to be a prerogative power, and says l “ The king, as parens patrim, has a right by his proper officer, the attorney-general, to call upon the several courts of justice, according to the nature of their several jurisdictions, to see that right is done to his subjects who are .incompetent to act for themselves, as in the case of charities and other cases.”

Besides, if it could be shown that at some remote period of’ time the-court of chancery exercised this power as a part of its. ordinary jurisdiction as a court of equity^ it would not influence the construction of the words used in the constitution. For at the time that instrument was adopted, it was universally admitted by the jurists in England and in this country, as will appear by the references above made, that this extraordinary and unregulated power in relation to charities was not judicial, and did not belong to the court as a court of equity. The constitution of the United Statés, as I have before said, grants only judicial power at law and in equity to. its courts ;• that is, the powers at that time understood and exercised as judicial, in the *395courts of common law and equity in England. And it must be construed according to the meaning which the words used conveyed at the time- of its adoption; and the grant of power cannot be enlarged by resorting to a jurisdiction which the court of chancery in England, centuries ago, 'may have claimed as a part of its ordinary judicial power, but which had been abandoned and repudiated as untenable on that ground, by the court itself, long before the constitution was adopted.

Cases may arise in a circuit court of the United States, in which it would be necessary to decide whether the English doctrine, as to charities, was founded on the statute, or was a part of the law of England before the statute was passed. And in a suit by an heir or representative of the testator, (authorized from his place of residence to sue in a court of the United States,) to recover property or money bequeathed to' a charity, the court must of .necessity examine whether the bequest was valid or not by the laws of the State, and barred the claim of the heir or representative. And if in such a ease it appeared that the State had not adopted the statute, it would be necessary to inquire whether the law in relation to these bequests was a part of the common law before the statute, and administered as such by the English court of chancery, and whether it had been adopted by the State as a part of its common law. For the prerogative powers of the English crown in relation to minors, idiots, or lunatics, and charities, are a part of the common law of England ; and the people of any State, who deemed it proper to do so, might vest these powers in the courts of the State.

Such an inquiry was necessary in the case of Vidal v. Girard’s Executors, and of Wheeler v. Smith. But the question of jurisdiction is a very different one when a court of the United States is called upon to execute the duties of the sovereignty of the State, and to taire upon itself the discretionary powers which, if they exist at all by its common law or statutes, belong to the official 'representatives of the parens patria, -that is, the state sovereignty. And in the case of the Baptist Association v. Hart, although the court did not expressly deny its jurisdiction to establish the charity, if it had been, valid by the laws of Virginia, yet it expressed its doubts upon the subject, saying that the question could only arise where the attorney-general was a party.

For these reasons a court of chancery of the. United States must, in my opinion, deal with bequests and trusts for charity as they deal with bequests and trusts for other lawful purposes; and decide them upon the same principles and by the same *396rules. And if the object to be benefited is so indefinite and. so vaguely described; that the bequest could not be supported in the case of an ordinary trust, it cannot be established in a court of the United States upon the ground that it is a charity. And if, from any cause, the cestui que trust, in an ordinary case of trust, would be incapable of maintaining a suit in equity to establish his claim, the same rule must be applied where charity is the object, and the complainant claims to be recognized as one of its beneficiaries.

I'concur, therefore, in affirming the judgment of the circuit court, dismissing the bill; but I concur upon the ground that the court had no jurisdiction of the case stated by the complainant, and express no opinion as to the validity or invalidity of this bequest, whether in this respect it be governed by the laws, of Pennsylvania or of South Carolina.

Whilst I concur in the decision of this court, in affirming the decree of the circuit court dismissing the bill of the appellants, in portions of the argument by which this court have come to their conclusion, I cannot concur. In expressing my dissent, I shall not follow the protracted argument throughout its entire length; my purpose is, chiefly, to free myself on any future occasion from the trammels of an assent, either expressed or implied, to what are deemed by me the untenable, and, in this case, the irrelevant positions, which,that argument propounds.

I readily .admit that the courts of chancery of the United States are vested with no prerogative power, cán exercise no power or function similar to those derived to the lord chancellor in England, either by commission under the sign-manual of the king, as parens patria, or in the application of the often-abused and oppressive doctrine of cy pres, or in virtue of the provisions of the statute of 43 Elizabeth. But this concession, taken in its broadest extent, by no means establishes the inference that the court of chancery in England, as a court of equity, by virtue of its inherent, and, if I may so speak, constitutional powers, apart from the prerogative and apart from the statute of Elizabeth, could not take jurisdiction of trusts, either iii the establishment or maintenance of those trusts, because they expressed or implied a charitable end or purpose, or because the charitable objects were not defined with perfect precision. And if such a powder inhered and existed constitutionally in the court of chancery in England as a court of equity., does it not follow, ex consequenti, that, the constitution and laws of the United States, constituting the courts of equity of the United States with express reference to the character and *397functions of the court of chancery as a court of equity in England, have conferred upon the former the regular inherent powers of the latter ?

Much of the learned and elaborate opinion of this court, delivered by the late Justice Story, in the case of Vidal et al. v. Girard’s Executors, 2 How. 127, nay, the great end and stress of that opinion, as correctly apprehended, consisted in the maintenance of the position that, apart from the prerogative power with which the lord chancellor was clothed, and independently of the statute of Elizabeth, and long anterior to the enactment of that statute, wherever there was a devise or bequest to a person, natural or artificial, capable of taking, and a beneficiary under the devise or bequest sufficiently certain and defined to be made the recipient of such a gift, the court of chancery, in the exercise of its regular and inherent jurisdiction, as a court of equity in relation to trusts, (one of the great heads of equity jurisdiction,) would establish and protect such devise or bequest, even in cases where the objects thereof were somewhat vague in their character, and although such devise contained a charity. To this express point, too, are the numerous decisions produced by the industry of the learned and able and distinguished counsel for the devisee, as the result of the researches made in the records of the chancery court, by a commission created under the authority of the British parliament. Indeed, the decision of this-court in the case of Vidal v. Girard’s Executors, would seem to be incomprehensible and without purpose^ unless interpreted as asserting and maintaining, both upon reason and authority, the regular jurisdiction of equity over devises, wherever the devisee was capable of taking, and the beneficiaries were sufficiently defined to render the directions of the testator practicable, although these directions declared or implied a charity.

It is somewhat curious to observe, that the opinion of Lord Redesdale, in the case of the Attorney-General v. The Mayor of Dublin, 1 Bligh, 312, is appealed to in support of the doctrine now promulged, when that same case is avouched and relied on in the case of Vidal v. Girard’s Executors, in support of the legitimate and regular powers of the courts of equity. This application of the language of Lord Redesdale would seem to grow out of the simple fact, that, in the case before him, the attorney-general was a party. But what is the declaration of his lordship, in reference to the powers of a court of equity over subjects like the one under his'consideration? After ■ denying that the statute of Elizabeth created any new law, and asserting that it only created a jurisdiction merely ancillary to that previously existing in the chancery court, he observes that *398the proceedings under that commission were still subject to appeal to the lord chancellor, and he might reverse or affirm what had been done, or make such order as he might think fit, reserving the controlling jurisdiction of the court of chancery as it existed before the statute. He then continues, as pointing out a different mode of effecting the same objects, and from a different source of power, to declare, that the same thing might be done by the attorney-general, by information, in virtue of the prerogative.

So, too, it is affirmed by this court, nemine contradicente, in the case of Vidal v. Girard’s Executors, that Lord Chancellor Sugden, in the case of the Incorporated Society v. Richards, 1 Drury and Warren, 258, upon a full.survey of all the authorities'where the point was directly before him, held the same doctrine as Lord Redesdale; and expressly decided that there was an inherent jurisdiction in equity in cases of charity, anterior to and independently of the-statute of Elizabeth.

Upon a just understanding of the opinion of the court in the case of Vidal v. Girard’s Executors, and of the interpretation given, in that opinion, to the English authorities relied on, it seems impossible to escape from the conclusions, that devises to persons .capable of taking, in trust for beneficiaries sufficiently defined, and for purposes neither illegal nor immoral, and where there exist no objections to parties such as would exclude the jurisdiction of the court's in other cases, the courts of the United States as courts of equity, in the exercise of regular, inherent, equity powers in relation to trusts, will sustain and enforce such devises. These conclusions seem to follow inevitably from the ruling of this court in the case of Vidal v. Girard’s Executors. Indeed, they seem to be comprised within the literal terms of that decision ; and the decision now made seems to me incomprehensible, unless understood as designed to overrule that case, and every authority from the English chancery cited and commented upon in its support. For such an assault upon the previous decision of this court, 'wielding a blow so trenchant and fatal at one great, and acknowledged head of equity jurisprudence, the head of trusts, my mind is not prepared.

There is a principle, and, in my opinion, the correet principle, on which the decision of this court may be placed, without the innovation which is objected to. It is that on which my concurrence in the decree of this- court is founded, and one, too, which steers entirely clear of what is by me deemed exceptionable. That principle is this: That, by the will of Frederick Kohne, the devisees in trust were clothed with a merely naked power, to be exercised by them as the special and exclu*399sive depositories of the testator’s .confidence, and that power to be dependent on conditions upon which, and on which alone, they should have authority to act. In the progress of events to which the devise was necessarily incident, the powers created and to be executed by the devisees intrust, have become impracticable and void. These depositories of the testator’s confidence are all dead. The conditions on which their powers were made dependent, never did occur, and can by no possi bility ever, occur. It follows, therefore, that, in conformity with the will, there is no person who can act, and no subject to be acted upon, and no beneficiaries of the contemplated action. My opinion, therefore, is, that the devise has lapsed, or, rather, that no right ever came into existence under it; that nothing was ever passed by it from the estate, which descends, of course, to the testator’s heirs.

Order.

This cause came on to be heard on the transcript of the record from the circuit court of the .United States for the eastern district of Pennsylvania, and was argued by counsel. ' On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs.