where he must speak or by his silence create a contractual obligation. It will be noted that the tendency in this view is to make the situation one-sided. In practical effect, there is a contract only if the offeree chooses so to consider it. This puts one partly unfairly at the mercy of the other.

9

To remedy this injustice the common-law courts say that where the offeror is the plaintiff, silence by the offeree will constitute acceptance if there is a duty to speak, as distinguished from the mere right. But from what does this duty arise? An examination of the cases shows that the word is used, not in the sense of a legal obligation, but, morally, a duty of conscience.10 The theory seems to be something akin to estoppel. Thus, in a recent case " the offeree was held to have been under a duty to notify the offeror of his rejection of an offer which he had induced. It seems illogical and extremely unsatisfactory to consider that one can be estopped into a contract except in the general sense that the standard for the legal significance of all conduct is external. Estoppel in any other sense is the last refuge of a mind predetermined by a hard case and should have no place in the formation of contractual obligations.12

In the civil law, notwithstanding its usual subjective standard, conduct, which in the ordinary experience of life would be taken as acceptance, so is treated. Silence is acceptance when in honest and practical understanding it would be so considered.13 It is submitted that this test is more in accord with our objective standard than the test of moral duty. Further, it can be applied more easily and practicably to the individual situation. It would seem that this view is, in effect, supported by many decisions, though the principle is not clearly stated. Thus, an unbroken line of decisions 14 holds that one who with knowledge re

8 See Felthouse v. Bindley, II C. B. (N. s.) 869 (1862); In re Empire Assurance Corp., L. R. 6 Ch. 266 (1871); Prescott v. Jones, 69 N. H. 305, 41 Atl. 352 (1898).

Day v. Caton, 119 Mass. 513 (1876); Emery v. Cobbey, 27 Neb. 621, 43 N. W. 410 (1889); Robertson v. Tapley, 48 Mo. App. 239 (1891). "It is difficult to understand how a legal liability can arise out of the mere silence of the party sought to be affected unless he was subject to a duty of speech, which he neglected to the harm of the other party." Royal Ins. Co. v. Beatty, 119 Pa. St. 6, 9, 12 Atl. 607 (1888).

10 "He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to be silent." Nicholas v. Austin, 82 Va. 817, 825, 1 S. E. 132, 137 (1887). “But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak." Day v. Caton, 119 Mass. 513, 515 (1876).

"Cole-McIntyre Norfleet Co. v. Holloway, 214 S. W. (Tenn.) 817 (1919). For a statement of this case, see RECENT CASES, infra, p. 614.

1 "There is, indeed, in a case of this kind some reason for urging that the party making the revocation should be estopped to claim that his attempted withdrawal was not binding upon himself; but this could not be done without infringing upon the inexorable rule that one party to a contract cannot be bound unless the other be also, notwithstanding that the principle of mutuality thus applied may enable a party to take advantage of the invalidity of his own act." Brown, J., in Patrick v. Bowman, 149 U. S. 411, 424. For a discussion of the analogous question of estoppel in the case of rejection of an offer by mail see Ashley, "The Rejection of an Offer," 12 YALE L. J. 419, 423. 13 See I DERNBURG, PANDEKTEN, § 86 (2); POUND, READINGS IN ROMAN LAW, 2d ed., 26.

14 Phila. &c. R. Co. v. Cowell, 28 Pa. St. 329 (1857); Foster v. Rockwell, 104 Mass. 167, 171 (1870); Heyn v. O'Hagen, 60 Mich. 150, 157, 26 N. W. 861 (1886); Coffin v. Planters' Cotton Co., 124 Ark. 360, 187 S. W. 309 (1916).

mains silent when another purports to make a contract as his authorized agent is liable on such contract. This seems logical. Theoretically, acceptance is but the expression of a condition of the mind and may be evidenced by passive as well as by active conduct of the offeree. If, under the circumstances, in the ordinary experience of life, the honest and practical understanding of the silence would be that it meant acceptance, there is a contract. If the transaction would be held a contract at the suit of the offeree, the result should be the same if the offeror is the plaintiff. There is no necessity for loose theories of estoppel and moral duty. Judged by the usual objective standard of our law, silence as acceptance presents no difficulty other than that of mode of proof.

WHEN SHOULD CY-PRÈS APPLICATION OF CHARITIES BE ALLOWED?1 -When conditions have so materially changed that it is no longer possible or expedient to devote property to the particular charity for which it was given, the question arises as to the disposal to be made of the property. If a testator, dying before the adoption of the Thirteenth Amendment, had ordered that the income of a trust he created should be used in freeing American slaves, should his heirs have taken the funds on the abolition of American slavery,2 or should the property have been devoted to some other charity? We must also consider whether any circumstance, other than impossibility of following the donor's directions, is sufficient to justify a deviation from the original use.

4

A trust for charitable purposes when once created, like any private trust, is clearly irrevocable. Nor does it appear that the creators of trusts or their representatives have any right, by agreement with the trustees or otherwise, to compel a different use of the trust funds or property, the right to alter differing only in degree from the right to revoke. Neither can those persons who happen to be beneficiaries at a particular time give a valid assent to an alteration of the charitable use, since those beneficiaries, from the very nature of a charitable trust, do not represent all those who are likely to be benefited in the future." Further, the attorney-general, though he be the general representative of the beneficiaries, does not seem to be the proper person to change the

6

1 The doctrine of cy-près discussed here is to be distinguished from the doctrine of cy-près with respect to the construction of limitations of future estates. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., §§ 643 et seq.

2 Jackson v. Phillips, 14 All. (Mass.) 539 (1867).

3 St. Joseph's Orphan Society v. Wolpert, 80 Ky. 86, 89 (1882); Mott v. Morris, 249 Mo. 137, 155 S. W. 434 (1913); Maxcy v. City of Oshkosh, 144 Wis. 238, 256, 128 N. W. 899, 907 (1910).

4 Christ Church v. Trustees, 67 Conn. 554, 35 Atl. 552 (1896); St. Paul's Church ». Attorney-General, 164 Mass. 188, 41 N. E. 231 (1895). The courts readily infer an intent that the trust should be perpetual. See GRAY, RULE AGAINST PERPETUITIES, 3 ed., § 60. See also College of St. Mary Magdalen v. Attorney-General, 6 H. L. 189, 205 (1857); Perin v. Carey, 24 How. (Ŭ. S.) 465, 507 (1860); Odell v. Odell, 10 All, (Mass.) 1, 6 (1865).

5 The beneficiaries of a charity trust, as a whole, are indefinite. See Re Lavelle, [1914] 1 I. R. 194; Dexter v. Harvard College, 176 Mass. 192, 57 N. E. 371 (1900); Re MacDowell's Will, 217 N. Y. 454, 112 N. E. 177 (1916).

See Re Foraker, [1912] 2 Ch. 488, 492.

uses of a charitable trust. As to the trustees, mere administrators of the trust, it is clear that they are given no such right.

8

Whatever power the British parliament may have to change the uses of a charitable trust, the Dartmouth College case 10 seems to have settled in the United States that any attempt by the legislature solely on its own volition to change the use of a charitable trust would constitute a violation of the contract clause of the Constitution." In that case the trustees were averse to the plan proposed by the legislature, but the same result has been reached in some cases even when the trustees assented to the legislative amendments.12 Other cases, however, have upheld the right of the legislature, when fortified by the sanction of the trustees, to effect a change.13 It is submitted that these latter decisions represent the better view, for all parties whose interests may be affected by the change are represented when the trustees and the legislature act together, since the legislature represents the whole people, which includes the beneficiaries and the donors, and the trustees act for themselves. Granting, however, that the legislature should have this power, is it wise to confine this power solely to its will? Legislative action is always delayed and cumbersome, particularly when an exigency demands quick action. Again, the power to change is not granted as a matter of right, but rests purely within the discretion of the law-making body.

We may then inquire whether there rests any basis upon which the

7 No decisions have been found that the attorney-general may waive the rights of all subsequent beneficiaries. He is a proper party to file an information for the enforcement of a charity. See Ironmongers Co. v. Attorney-General, 2 Beav. 313, 328-332 (1840); Attorney-General v. Magdalen College, 18 Beav. 223, 241 (1854). And he is a necessary party to all suits in equity to carry out the provisions of a charitable trust. Strickland v. Weldon, 28 Ch. Div. 426 (1883); Harvard College v. Society for Promoting Theological Education, 3 Gray (Mass.), 280 (1855).

8 Langdon v. Plymouth Congregational Society, 12 Conn. 137 (1837); Winthrop v. Attorney-General, 128 Mass. 258 (1880); Lakatong Lodge v. Franklin Board of Education, 84 N. J. Eq. 112, 116, 92 Atl. 870, 871 (1915). See also Re Campden Charities, 18 Ch. Div. 310, 329-330 (1881).

9 For a discussion on the powers of the Charity Commissioners and Board of Education (educational charities) see: Re Campden Charities, supra, 331; The King v. Board of Education, [1910] 2 K. B. 165, 179.

10 4 Wheat. (U. S.) 518 (1819).

"The court in that case was of the opinion that the New Hampshire legislature by the proposed changes would violate the contract comprised in the grant of the charter by the British Crown to the trustees, and also, it would seem, the contract between the donors of the property and the trustees. But the case has been of great influence in discussions of the question of the right of the legislature to change charitable trusts. See the cases cited in notes 13 and 14, infra.

12 State ex rel. Pittman v. Adams, 44 Mo. 570 (1869). See also Cary Library v. Bliss, 151 Mass. 364, 25 N. E. 92 (1890); Crawford v. Nies, 220 Mass. 61, 65, 107 N. E. 382, 383 (1914). In State ex rel. Pittman v. Adams, supra, 582, the court said: "One may do what he will with his own, and if his benevolent instincts lead him to expend his fortune for the good of others, public policy certainly requires that he should be made to feel quite secure in his benevolence. This security he can never feel, if his gift shall be subject to the changing opinions of its future administrators with the frail check only of legislative consent.'

13 Visitors and Governors of St. John's College & Comptroller and Treasurer, 23 Md. 629 (1865). And see Re St. Mary's Church, 7 S. & R. (Pa.) 517 (1821). For the opinions of a committee, relative to a project to apply to the Rhode Island legislature for amendments of the charter of Brown University, see FINAL Report of the COMMITTEE TO CONSIDER POSSIBLE CHANGES IN THE CHARTER OF BROWN UNIVERSITY, June 16, 1910, pages 36 et seq.

judicial power may exercise the right in question. Donors may entirely fail to specify the particular charitable use, and in such case the English chancellor appoints a particular charity to take the gift.14 Or if a trustee to whose discretion the expenditure for charity has been entrusted dies without indicating the particular use, the chancellor in England and some American courts frame schemes whereby the property may be devoted to charity.15 In England the chancellor, in the exercise of royal prerogative as representative of the sovereign, under the sign-manual power, did take it upon himself to devote to a valid charity property given for one against public policy. For example, in an early case where a Jew made a testamentary gift for the advancement of the Jewish faith, which was at that time considered against public policy, the chancellor ordered the gift to be devoted to a charity under the patronage of the Church of England.16 Although the result reached might be far from what a reasonable person could infer to have been desired by the donor, the chancellor felt justified in changing the use, for a gift to charity, it was held, tended to reconcile the soul of the donor with God, and if the gift could not take effect one way, for the sake of the donor's soul it should be made effective in another.17 No American court has gone so far in attempts to reconcile sinners with Heaven.18

In the cases given above the chancellor and the courts of equity are not exercising a judicial function. While this power of devoting property to charity merely because the donor has indicated a general desire for such an application is often called the cy-près power, it must be distinguished from the true rule of cy-près, which is a rule of construction.19 In construing the instrument whereby the gift is made, the courts often

14 Mills v. Farmer, 1 Meriv. 55 (1815); Anon., Freem. Ch. 261 (1702); AttorneyGeneral v. Syderfen, 1 Vern. 224 (1683). And see Re Pyne, [1903] 1 Ch. 83.

15 Attorney-General v. Berryman, Dick. 168 (1755); Minot v. Baker, 147 Mass. 348, 17 N. E. 839 (1889). Contra, Fontain v. Ravenel, 17 How. (U. S.) 359 (1854). And no scheme will be framed if discretion of the particular trustee was to have been an essential element of the charity. Rogers v. Rea, 98 Ohio 315, 120 N. E. 828 (1918). 16 Da Costa v. De Pas, 1 Amb. 228 (1754); Cary v. Abbot, 7 Ves. 490 (1802). Cf. West v. Shuttleworth, 2 Mylne & K. 684 (1835). See also 8 HARV. L. Rev. 69. 17 Attorney-General v. Downing, Wilm. 1, 32 (1767).

18 Robbins v. Hoover, 50 Colo. 610, 115 Pac. 526 (1911); Erskine v. Whitehead, 84 Ind. 357, 364 (1882); Bridges v. Pleasants, 39 N. C. 26 (1845). But the legislature may exercise the sign-manual prerogative or authorize the courts to do so. Mormon Church v. United States, 136 U. S. 1 (1890).

19 In Ironmongers Co. v. Attorney-General, supra, 924, the court said: "We may look at his disposition in the will to see what his charitable inclinations were, and, having ascertained them, then we must provide something corresponding without opinion of these charitable inclinations. You cannot talk of his intention with respect to something he never contemplated. The true mode is to consider what he did and from what he did to collect what were his intentions." In Jackson v. Phillips, 14 All. (Mass.) 539, 580, 591 (1867), the court said: "It is . . . well settled . . . that when a gift is made to trustees for a charitable purpose, the general nature of which is pointed out, and which is lawful and valid at the time of the death of the testator, and no intention is expressed to limit it to a particular institution or mode of application, and afterwards, either by change of circumstances the scheme of the testator becomes impracticable, or by change of law becomes illegal, the fund, having once vested in the charity, does not go to the heirs at law as a resulting trust, but is to be applied by the Court of Chancery, in the exercise of its jurisdiction in equity, as near the testator's particular directions as possible to carry out his general charitable intent. . . . The intention of the testator is the guide."

find that the donor had two intentions, a general charitable intent and a particular intent to have his gift take effect in a particular mode. If the latter becomes impossible of execution, the courts conclude that the donor intended to have his general intent accomplished even if changes were necessary as to the manner specifically directed. The courts frame a scheme for the execution of this general intent which conforms as closely as possible to the mode prescribed by the donor.20 A more troublesome question is whether the courts should ever allow a departure from the particular mode of disposal on the ground of expediency. The authorities agree that the expediency of an alteration must be so pressing that unless a change is made the general charitable intent will be less efficiently executed than a reasonable donor would have wished. The fact, however, that the court can devise a better plan is not sufficient to warrant an alteration.21 In the recent Massachusetts case of Eliot v. Attwill 22 the charitable trust had been created for the erection near Trinity Church and the care of a statue by St. Gaudens of the late Bishop Brooks. The administrators of the trust sought permission of the court to substitute a statue by Bela Pratt in place of that made by St. Gaudens on the ground that the former piece of sculpture was artistically the superior. The court rightly decided that the better satisfaction of the artistic sense did not warrant a deviation from the original trust. If the inexpediency of the specific manner of disposal must have been apparent to the donor, it seems clear that his directions should be strictly followed.23 If, however, the inexpediency is due to a change of circumstances after

20 Re Queen's School, Chester, [1910] 1 Ch. 796; Biscoe v. Johnson, 35 Ch. Div. 460 (1887); Ironmongers Co. v. Attorney-General, 10 Cl. & F. 908 (1844); Lewis v. Gaillard, 61 Fla. 819, 56 So. 281 (1911); Mason v. Bloomington Library Ass'n, 237 Ill. 442, 86 N. E. 1044 (1909); Kemmerer v. Kemmerer, 233 Ill. 327, 84 N. E. 256 (1908); Nichols v. Newark Hospital, 71 N. J. E. 130, 63 Atl. 621 (1906); Jackson v. Phillips, 14 All. (Mass.) 539 (1867); Read v. Willard Hospital, 215 Mass. 132, 102 N. E. 95 (1913); Richardson v. Mullery, 200 Mass. 247, 86 N. E. 319 (1908); Amory v. Attorney-General, 179 Mass. 89, 60 N. E. 391 (1901); Lynch, Trustee, v. So. Congregational Parish, 109 Me. 32, 82 Atl. 432 (1912); Women's Christian Association v. Kansas City, 147 Mo. 103, 48 S. W. 960 (1898).

It should be noted that formerly the doctrine of cy-près did not exist in New York. See Tilden v. Brown, 130 N. Y. 29, 45, 28 N. E. 880, 882 (1891). But by the Laws of 1901, p. 751, c. 291, it was provided that if the use becomes impracticable, the trustees may, at least twenty-five years after the gift has been given, apply to the court for instructions. For cases arising in New York since this statute, see: Sherman v. Richmond Hose Co. No. 2, 186 App. Div. 417, 175 N. Y. Supp. 8 (1919); Camp v. Presbyterian Soc., 105 Misc. 139, 173 N. Y. Supp. 581 (1918); Trustees v. Carmody, 158 App. Div. 738 (1913); Loch v. Meyer, 100 N. Y. Supp. 837 (1906).

In Wisconsin the existence of the cy-près doctrine seems uncertain. Cf. McHugh v. McCole, 97 Wis. 166, 72 N. W. 631 (1897), with Harrington v. Pier, 105 Wis. 485, 82 N. W. 345 (1900). And obviously the doctrine has no application in jurisdictions which do not allow or accept the doctrine of charitable uses. Tilden v. Brown, supra.

21 Re Weir Hospital, [1910] 2 Ch. 124, 140. "But neither the Court of Chancery, nor Board of Charity Commissioners, which has been entrusted by statute, in regard to application of charitable funds is entitled to substitute a different scheme for the scheme which the donor has prescribed in the instrument which creates the charity, merely because a coldly wise intelligence, impervious to the special predilection which inspired his liberality, and untrammelled by his directions, would have dictated a different use of his money." See also Winthrop v. Attorney-General, supra.

22

122 N. E. 648 (Mass.). For a statement of the facts, see RECENT CASES, 607 infra. 23 Re Weir Hospital, supra, Harvard College v. Attorney-General, 228 Mass. 396, 117 N. E. 903 (1917).