witness shall not be used against him in any prosecution for the same offense. On the trial of A., B. is asked as to the transaction in question. B. can not refuse to answer (6).

In case 1 it was said: "The privilege in question in its greatest scope as allowed by the common law- and no one, be he witness or accused, can pretend to claim it beyond its scope at the common law - never did contemplate that the witness might not be found guilty of the very crime about which he may be called to testify, but only that the witness should not be compelled to produce the evidence to prove himself guilty of that crime. His privilege therefore was not an exemption from the consequences of a crime that he might have committed, but only an exemption from the necessity of himself producing the evidence to establish his own crime. And it is founded upon the general sense of enlightened men, that compulsory self-accusation of crime is not only at war with the true charities of religion, but has been proven to be impolitic by the truths of history and the experience of common life. It is not possible, then, that another person can have any color of claim to exemption from the consequences of his crime, founded upon this personal privilege of the witness, which does not include any such exemption even for the witness himself. And if, from time to time, crime has been sheltered under this color either by the ignorance of the witness, his morbid fears, or his outright perjury, such has not been the legitimate result of the true privilege, but of the manner in which it has heretofore been allowed by law to be made available. And surely, the remedy for any such evils is as legitimately within legislative authority as any which may flow in upon the body politic from the abuse of any other right reserved to or designed to be secured for the citizen, So long as it might be lawful to produce in evidence against an accused party, whatever he might before have voluntarily said as a witness on a prosecution against another, there were no means by which the privilege could be made available short of a claim by the witness to be silent, and as that was the rule of the common law, this was the common-law mode of making the privilege available, and that silence was but a mode of making the privilege available, and was not of the essence of the privilege itself, is conclusively proven by all that current of enlightened authority to which we yield our fullest assent which holds that the privilege has ceased when the crime has been pardoned; when the witness has been tried and acquitted, or is adjudged guilty, or when the prosecution to which he was exposed, has been barred by lapse of time."

(E.)

1. A. is indicted for a crime. A statute permits a defendant in a criminal case to testify in his own behalf. A. offers himself as a witness to testify as to a single fact, and on cross-examination claims a

(6) State v. Quarles, 13 Ark. 308 (1853); United States v. Three Tons of Coal, 6 Biss. 879 (1875).

right to refuse to answer other questions which may criminate him. A. cannot do this (7).

2. B. being held for larceny, testifies in his own behalf. On cross-examination B. may be asked whether he has been in the house of correction for any crime (8).

In case 1 it was said: "The statute which allows a defendant in a criminal case at his own request and not otherwise to testify in his own behalf expressly provides that he shall be deemed a competent witness, that is competent not for a special purpose or to give evidence only which shall operate in his favor, but compelled to testify to any facts relevant and material to the issue. Like all other witnesses he is to tell the truth, and the whole truth concerning any matter proper to be inquired about. If he offers himself as a witness, he waives his constitutional privilege of refusing to furnish evidence against himself and may be interrogated as a general witness in the cause. In case 2 it was said: "By availing himself of the privilege he assumed the character of a witness, and subjected himself to the liabilities incident to that position. The statute does not exempt him from cross-examination, and impeachment as a witness, and there is no reason why he should be exempt from it."

"It is of course competent" said Denio, J., in People v. Hackley, (9) "for the Legislature to change any doctrine of the common law, but I think they could not compel a witness to testify on the trial of another person to facts which would prove himself guilty of a crime without indemnifying him against the consequences, because I think, as has been mentioned, that by a legal construction, the Constitution would be found to forbid it. But it is proposed by the appellant's counsel to push the construction of the Constitution a step further. A person is not only not compellable to be a witness against himself in his own cause, or to testify to the truth in a prosecution against another person when the evidence given, if used as his admission, might tend to convict himself if he should be afterward prosecuted, but he is still privileged from answering, though he is secured against his answers being repeated to his prejudice on another trial against himself. It is no doubt true that a precise account of the circumstances of a given crime would afford a prosecutor some facilities for fastening the guilt upon the actual offender, though he were not permitted to prove such account upon the trial. The possession of the circumstances might point out to him sources of evidence which he would otherwise be ignorant of, and in this way the witness might be prejudiced. But neither the law nor the Constitution is so sedulous to secure the guilty as the argument supposes. If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own guilt apparent or at least capable of proof, though his account of the transactions should never (7) Com. v. Mullen, 97 Mass. 545 (1867). (8) Com. v. Bonner, 97 Mass. 587 (1867). (9) 24 N. Y. 83 (1861).

be used as evidence, it is the misfortune of his condition and not any want of humanity in the law. If a witness objects to a question on the ground that an answer would criminate himself, he must allege, in substance, that his answer, if repeated as his admission on his own trial, to prove him guilty of a criminal offense. If the case is so situated that a repetition of it on a prosecution against him is impossible, as where it is forbidden by a positive statute, I have seen no authority which holds or intimates that the witness is privileged. It is not within any reasonable construction of the language of the constitutional provision. The term 'criminal case,' used in the clause, must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offense. But it must be a prosecution against him; for what is forbidden is that he should be compelled to be a witness against himself. Now if he be prosecuted criminally touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said that in such criminal case he has been made a witness against himself by force of any compulsion use toward him to procure in the other case testimony which can not possibly be used in the criminal case against

himself."

In Roddy v. Finnegan, (10) it is said: "The witness ordinarily has the privilege of declining to answer a question which might subject him to a criminal prosecution; but this he can waive. It is the privilege of the witness, not the party. Where he is both party and witness for himself, he must be held on his cross-examination as waiving the privilege, as to any matter about which he has given testimony in chief. Having testified to a part of the transaction in which he was concerned, he is bound to state

the whole."

RULE. The answer of a witness to a criminating question is admissible against him in another case if given voluntarily (a) but not if involuntarily (b).

(A.)

1. A. is sued for a penalty for concealing his property. The examination of A. in another case where A. without objecting had testified to the concealment by him, is introduced. His answers there made are admissible (11).

2. In a prosecution against W. for forgery, his answers given in an examination in bankruptcy are offered. They are admissible against him; it ap pearing that he was cautioned by the court and allowed to elect what questions he would answer (12).

In case 1 it was said: "Every one must be supposed to be cognizant of a public law. A person examined before the commissioners of bankruptcy is like any other witness called to give evidence by

(10) 43 Md. 500 (1875).

(11) Smith v. Beadnell, 1 Camp. 30 (1807). (12) R. v. Wheater, 2 Moody, 45 (1838).

virtue of a subpoena. He speaks at the peril of his examination being turned against himself. He may demur, to be sure, to all questions which would subject him to penalties. Here the defendant might have demurred, and his objection could only have been removed by the assignees to whom the action is given, delivering him a release. Thus he might have protected himself; but having unguardedly answered the questions put to him, his answers may be employed against him for all purposes to which they are legally applicable.”

(B.)

1. In an action on a bill, A. a witness was asked if he had signed it. He declined to answer, but being compelled by the judge replied that he had. A. was subsequently indicted for forging the bill. against him in the criminal case (13). The answer of A. in the civil suit is not admissible

In case 1 it was held that when a witness is com

pelled by the judge to answer a criminating question when he should not, what he says must be considered as having been obtained from him by compulsion and cannot afterward be given in evidence against him.

The refusal of a party to a suit to answer a material question, on the ground that it might criminate fusal to answer, like any other refusal to produce him raises a presumption against him. "Thus reevidence in his own power, was competent evidence against him and his partner. A party offering himself as a witness in his own behalf stands differently court to testify in a case in which he has no inin this respect from a third person brought into terest (14).

refusal of a witness not a party, to answer. No presumption arises against either party by the "The allowance of the privilege would be a mockery of justice if either party is to be affected injuriously by it. The exercise of this right by the witness is not under the control of the parties and no one can be affected by evidence which his adversary fails to produce, and which therefore cannot be met or explained by cross-examination, rebutting evidence or otherwise " (15).

ST. LOUIS, MO.

JOHN D. LAWSON.

WILL-PUBLIC CHARITY - CONDITION SUBSEQUENT-PERPETUITIES.

SUPREME COURT OF ERROR OF CONNECTICUT, OCTOBER TERM, 1884.

TAPPAN'S APPEAL.

A gift by will of a permanent fund, "which shall be used for the charitable assistance and benefit of indigent unmarried Protestant females over the age of eighteen years, residents of the city of Bridgeport," creates a public charity, and nothing more.

(13) R. v. Garbett. 2 C. & K., 474 (1847); Stockfleth v. De Tastet, 4 Camp. 10 (1814).

(14) Andrews v. Frye, 104 Mass. 234 (1870)

(15) Phelin v. Kenderdine, 20 Penn. St. 362 (1853).

P. by her will devised certain real and personal estate to an ecclesiastical society upon condition, that "within three years after my decease the said society shall erect, or cause to be erected, on the grounds of said society, near its church edifice, a chapel which shall cost not less than $30,000, and which shall be named and known as 'The Burroughs Memorial Chapel;' and on the failure or neglect so to do by said society, I give and devise the said real and personal estate to my residuary legatees and devisees, to be theirs forever."

Held, that the condition was subsequent, that the property vested in the society on the death of the testatrix, but the estate was liable to become extinguished unless the condition was complied with.

Held also, that the tying up of the property for three years was not obnoxious to the statute against perpetuities.

APPEAL from Probate Court. The opinion states

the case.

Oswald Prentiss Backus and Simon E. Baldwin, for appellant.

Morris W. Seymour and Curtis Thompson, for appellees.

PARK, C. J. The questions controverted in this case grow out of the twelfth and residuary clauses of the will of Catharine A. Pettingill, late of the city of Bridgeport, deceased. The residuary clause is as follows:

66 After paying and satisfying all of the above provisions of this, my last will and testament, out of my estate, all of which is charged therewith, and my executors are hereby fully empowered to sell and convey any real estate or personal estate not specifically devised for the purpose of paying any of the above legacies, if necessary so to do, which shall be determined by the judge of probate. Then all the rest and residue of my estate, real and personal, of every nature and description, and all that shall belong to my estate and be undisposed of, by reason of the lapsing or failure to take effect of any of said legacies or devises, for any cause whatsoever (for I intend hereby that no part of my estate shall become intestate estate), I give, bequeath and devise to the persons respectively who shall for the time being be the rector of the society of St. John's parish aforesaid; the pastor of the First Congregational church in said Bridgeport, aud the mayor of the said city of Bridgeport, and their successors in office; and to Nathaniel Wheeler, Edward Sterling, Samuel W. Baldwin and John Hurd, all of said Bridgeport, to have and to hold the same in trust for the following purposes, and subject to the following directions, to wit:

"1. The object sought by this gift is the establishment of a permanent fund of real and personal estate, which shall be used for the charitable assistance and benefit of indigent, unmarried Protestant females over the age of eighteen years, resident of said city of Bridgeport; and it is my wish that this fund shall be held and managed by the managers or directors of the Bridgeport Prostestant Widows' Society of said Bridgeport, and their successors in office forever as they, from their knowledge and experience in a similar department of humane work, would probably be better acquainted with the class of women this fund is intended to help and benefit; and if the same can be made practicable and legal, then I authorize and em. power my said trustees, on such terms as they may fix upon, to transfer and convey the property embraced in said fund to said managers and their successors in office forever, to be held by them forever, for the charitable uses and purposes indicated above, and subject to the directions hereinafter given.

"2. If for any reason the above wish and power caunot legally be carried into effect, then I direct and empower said trustees to obtain from the proper authori

ties in this State an act of incorporation for a charitable institution, to be located in said Bridgeport, under the name of 'The Burroughs Home,' the object of which shall be to help and assist indigent, unmarried Protestant females under eighteen years of age residing in said city of Bridgeport; and upon the legal organization of such incorporation I direct aud empower said trustees to transfer and convey to the said 'Burroughs Home,' said fund of real and personal estate to be held by them and their successors forever for the charitable uses and purposes indicated above, and subject to the directions hereinafter given.

"3. If neither of the above provisions can legally be carried into effect, I then direct said trustees and their successors forever to hold said fund of real and personal estate, for the charitable uses and purposes indicated above, and subject to the directions hereinafter given; and if so held the same shall be known as the 'Burroughs fund,' and the said rector, pastor and mayor shall, ex officio, be members of the board of trustees, and if any vacancy occur in the other members of the board, such vacancies shall be filled by the appointment of the Court of Probate; and I direct that no bond be required of such trustees by the Court of Probate.

"4. I direct that the old homestead of my father, now owned by me, on John street, shall be used for the home of such females, if it be practicable; but if it should not be best, then some other portion of my laud or real estate belonging to such fund may be used to establish a home thereon; but the value thereof shall not exceed, for both land and buildings, onequarter of the value of such fund, and the remaining three-quarters or more of said fund shall be kept securely invested; but if deemed best to accomplish the humane purposes of this gift not to have land and buildings of one-quarter of the value of the fund as aforesaid invested in a home for such females, then all of said fund shall be securely invested; and I further direct that full power of sale, conveyance, exchange and reinvestment be had and exercised as circumstances may require and the execution of all necessary instruments.

"5. I direct that the income shall be applied annually, or at other times during the year, in such manner as may be thought best to accomplish the greatest good to the class I have hereby undertaken to help and benefit.

"6. I direct that the term 'unmarried' shall not exclude widows, divorced women, nor any woman who in fact has no husband, from the benefit of these provisions, providing she otherwise comes within said class.

7. It may be better to organize and establish a corporation under the general laws of this State to carry out the charitable uses and purposes of this trust; and if so, in the judgment of said board of trustees, I direct them so to do, but I am very solicitous that this gift shall not fail to be carried into effect; and I ask said trustees to act wisely in this matter."

The testatrix declares that the object sought to be accomplished by this gift is the establishment of a permanent fund, "which shall be used for the charitable assistance and benefit of indigent unmarried Protestant females over the age of eighteen years, residents of the city of Bridgeport.

It is said by the appellant that the word "benefit." as used in the phrase "charitable assistance and benefit" in this devise and bequest, does not confine the trustees to charitable benefits in the administration of the trust, but leaves them at liberty to assist the objects of the testatrix's bounty in any manner beneficial to them, although the benefit may not be charitable, as that word has been legally construed to mean

in our statute of uses.

But we think the word char itable qualifies the word benefit in the phrase as well as the work assistance; and the phrase means, as though it read, charitable assistance and charitable benefit. The words assistance and benefit are used in the phrase as synonymous. They are applied to au indigent class of unmarried females, and it is impossible to see how they could be assisted by a bequest without being benefited, or benefited without being assisted. It is conceded that the word "charitable" qualifies one of the words; it must therefore qualify the other, which has the same meaning. We think therefore that this devise and bequest creates a public charity, and nothing more.

The testatrix suggests four different modes for the administration and dispensation of this public charity, and declares her mind and will to be in favor of the first mode uamed, "if the same can be made practicable and legal" for the purpose; but "if for any reason "the first-named mode cannot be legally carried into effect, then she declares her mind and will to be in favor of the second mode suggested; and in like manner the third and fourth modes in their order.

Hence the appellant is in error when she claims that the trustees have the discretionary power to select either of the modes prescribed for the administration of the trust. They have no discretion in the matter. They must take the first, if that mode shall be found to be practicable and legal; but if not, then they must resort to the second, and that must be the mode, if legal for the purpose. And so in like manner the third and fourth modes stated.

In regard to the first made, that the managers or directors of the Bridgeport Protestaut Widows' Society of Bridgeport shall hold and manage the fund, we think the object of the testatrix cannot be carried out by this mode, because, the corporation is not authorized by its charter to receive and administer charitable donations of this description as a trustee; and we must therefore consider the second mode prescribed by the testatrix. This mode for the administration of the public charity is like that provided by the testator in the case of Coit v. Comstock, 51 Conu. 352. In all essential particulars the modes are the sanie. There, as here, the trustees were invested with the property till an act of incorporation could be procured from the Legislature, and then the trustees were required to transfer the same to the corporation.

There, as here, it was made the duty of the trustees to apply for the act as soon as it could reasonably be done, and a reasonable time only for procuring the same was contemplated by the testator.

It is said by the appellant that in that case the testator expressly provided that the act of incorporation should confer all the powers necessary and proper to carry into full effect the purposes and objects of the bequest; but in the present case the will is silent on the subject. But we think the same is clearly implied. The testatrix fully expresses the object she wishes to accomplish by the donation. The accomplishment of the object she commits to a corporation, to be chartered by the Legislature. Surely she intended that the corporation should possess all the powers necessary and proper to accomplish the object. This is too manifest for controversy.

We think the charitable donation made in the residuary clause of this will comes within the principles established by this court in the case referred to, and the considerations of the court applied to the will in that case apply with equal force to the residuary clause in this.

Similar claims were made in that case against the legality of the donation that are made in this, and they were all fully considered by the court, and decided adversely to the claimants.

It was said in that case that the description of the beneficiaries was not sufficiently definite to enable a Court of Chancery to carry the donation into execution.

The same claim is made here; but it is manifest that the description of the class from which the beneficiaries are to be selected is as definite in this case as it is in that, and in other cases there referred to. The word "Protestant," which appears in the description in this case, is the only word entitled to consideration; but it is obvious in what sense this word was used by the testatrix. The word includes all those who believe in the Christian religion, and do not acknowledge the supremacy of the pope of Rome. We think the public charity established in the residuary clause of this will is valid.

Is the devise and bequest contained in the twelfth article of the will valid? The article is as follows:

"Article 12. I give, bequeath and devise to the society of St. John's parish, an ecclesiastical society and body corporate, organized and existing under the laws of the State of Connecticut and located near my residence in said Bridgeport, my said residence, comprising the land with the buildings thereon, bounded south ou Fairfield avenue, east on laud of said society of St. John's parish, north on land of said society, and west on land of Peter Norman, now or formerly; and I give also to said society ten thousand dollars ($10,000) in cash, to their own use and benefit forever; but upon this express condition: that within three years after my decease the said society shall erect or cause to be erected on the grounds of said society, near its church edifice, a chapel which shall cost not less than $30,000, and which shall be named and known as "The Burroughs Memorial Chapel;" and on the failure or neglect so to do by said society, I give and devise the said real aud personal estate to my residuary legatees and devisees, to be theirs forever.

"In case there should be any good reason for extending said time beyond said three years, the judge of Probate can extend the time by his order in writing, limiting however said society to some definite time within which it shall erect said chapel."

The first question to be considered is whether the condition attached to this donation is a condition precedent to the vesting of the property in the society or a condition subsequent there to? If it is a condition subsequent, then the property vested in the society on the death of the testatrix, but the estate was liable to become extinguished unless the condition is complied with. We think the condition is a condition subsequent. The language of the testatrix indicates this. The grant is in the present tense I give, not I will give when the society shall have erected a chapel, etc.

The $10,000 which she gives seems to have been given to assist the society to build the chapel if they shall elect so to do. Jarman on Wills (vol. 2, p. 517), in summing up all the cases on the subject, says: "If the condition is capable of being performed instanter, it is a condition precedent; if time is required for the performauce it is a condition subsequent. If a definite time is appointed for the performance of the condition, but none for the vesting of the estate, it is a condition subsequent. Wigram on Wills, 272, says: “If the condition is at all capable of being construed as subsequent, it will be deemed to be such."

Washburn, in his work on Real Estate, vol. 1, pp. 468, 472, quotes approvingly of the rule laid down by Webster in Finlay v. King, 3 Pet. 362, which was: "If the act may as well be done after as before the vesting of the estate, the condition is subsequent." See also Hayden v. Inhab. of Stoughton, 5 Pick. 528; Tilden v. Tilden, 13 Gray, 110; Merrill v. Emery, 10 Pick. 507; Parker v. Parker, 123 Mass. 584. These authorities