27 Barb. 376 | N.Y. Sup. Ct. | 1857
This action was instituted to recover a tract of land in the village of Newburgh, in the county of Orange, of which one George McCaughal died seised in fee in 1842, on the ground that it had escheated to this state through the defect of heirs of McCaughal and the invalidity of an attempted devise of it to Bishop (now Archbishop) Hughes. McCaughal had no descendants; he was an illegitimate child, born in Ireland and naturalized under our laws, and his mother, if she is still living, and all her relations so far as are known, are aliens. He made .a will after he had been naturalized, containing the following clause: “ Fourth. I give, devise and bequeath all the rest and residue of my personal estate, and all my real estate which I shall own or be possessed of at the time of my death, unto the Bight Reverend Bishop Hughes of the city of New York, in trust, for the use and benefit of the Roman Catholic Church of the state of New York¡ which
The defendant’s counsel contended on the argument that, supposing the land to have escheated, the state could not have conveyed it before entry. The objection is founded on the English rule that the king cannot enter upon, or grant, the land until his title is found by inquisition. That was rendered necessary by the statutes of Westminster 1st, Ch. 24, and of 18th Henry 6th, ch. 6. Previous to the enactments of the first of those statutes, the escheators and sheriffs could seize the lands into the king’s hands without office found. The statutes having been repealed in this state, their requisitions are not in force here, and the common law rule must prevail. It is, undoubtedly, competent for the state to take immediate possession of lands which would otherwise be in abeyance through the death of the last tenant in fee without heirs. The revised statutes relative to escheats, (1 R. S. 282,) recognize this right, by authorizing an action of ejectment for escheated lands, without any preliminary inquisition. There is no constitutional provision restraining the legislature
In this case, if the plaintiff is authorized to prosecute his suit without any merely formal impediment, the defendant is not, and cannot be, deprived of any of his substantial rights. If his title is valid he must prevail.
The exception in the statute in favor of the creditors and purchasers in good faith of the deceased, cannot protect the defendant, if the devise to Bishop Hughes should be deemed invalid; for in that case the defendant would be neither. He may have been, and no doubt was, a .purchaser in good faith from the bishop (but certainly not from the deceased) through an ineffectual devise.
The intended devise, in this case, is in trust, and was no doubt designed for pious and charitable uses. There are no words of limitation, nor is the devisee a corporation under our statute providing for the incorporation of religious societies. The devise is to the bishop' by his name of office, and although his successors are not named, the word estate, which is used, would probably convey the legal fee. By our toleration of all religious denominations we recognize their ecclesiastical officers, and when property is donated to them by their name
The great objection urged against the devise in question, is that it purports to create an express trust (and indeed that is its entire object) which is not sanctioned, but is absolutely prohibited by the second article of the title of the revised statutes relative to “ the nature and quality of estates in real property and the alienation thereof.” It is provided in the first section of that article, being the forty-fifth section of the title, that “ uses and trusts except as authorized and modified in such article are abolished.” Four classes of purposes for which express trusts may be created are specified in the fifty-fifth section, and no others are authorized. Some others may be saved as powers, but they convey no estate, and they are confessedly inapplicable to the devise now under consideration.
The trusts which that devise contemplated are not pointed out, or at all limited to the purposes designated in and limited by the statute. They are not either to sell the land for the bene-, fit of creditors ; or to sell, mortgage or lease it for the benefit of legatees, or for the purpose of satisfying any charge thereon;
It is undoubtedly true that gifts for pious and charitable uses generally contemplate a much wider range than that specified in the revised statutes relative to uses and trusts. Indeed such donations are seldom limited to any of the purposes designated in the statute; they are not for the benefit of creditors or of any particular legatees, or of any particular person, during the life of' such person, or for accumulations for any purpose mentioned in the statute. That may be a strong reason why the statute should have exempted trusts for the promotion of piety and charity from its operations, or should have directly subjected them to separate regulations. But notwithstanding this consideration, it seems to me that a statutory prohibition unusual in its terms must be applied as it reads. There is no dispensing power as to any particular person or subjects in our courts.
If exceptions could be made on the ground of inconvenience, inexpediency, incompatibility, or even injustice, the entire statute might be frittered away. It is possible, however, that the framers of the statute may have designed to limit the range if not the number of such donations, from an impression that the givers may with the best intentions mistake as to the appropriate means for the prosecution of true piety or the application of defective or discriminating charity, and particularly when the designed appropriations may extend far into futurity, and when there may be many changes in this our ever changing country. Whatever may have been the reasons, however, the legislature has made no exceptions; nor do I feel
It was contended on the argument that our court of appeals had decided, in Williams v. Williams, (4 Selden, 525,) that statutory regulations do not affect donations for pious and charitable uses, unless they are particularly named. As we are bound by that decision, it is proper that it should be fully considered, in order to ascertain its extent, and its applicability to the case now under consideration. In that action a bill had been filed in the court of chancery to procure a judicial declaration of the nullity of two bequests of the late Judge Potter, of.Huntington in the county of Suffolk; one, of $6000 principal to accumulate by interest to $10,000, to the trustees of the incorporated Presbyterian Church of that village, to apply half of the interest during process of accumulation, and the entire interest when completed, to the support of the minister of the church; and another of equal amount to accumulate to the same extent to three trustees and their successors, to be applied one half during the accumulation, and the entire interest afterwards, to the education of the children of the poor who should be educated at the academy in the same village. The bill alleged that these legacies were invalid, as they would suspend the absolute ownership of the property for a longer period than during the continuance of two lives in being at the death of the testator; and that the direction for accumulation was void, as such accumulation would not be certainly for minors who should be in being at the death of the testator, or who should be born within the time allowed for the suspension of the absolute ownership of personal property. Ho objection was raised, and as it was a bequest of personal property, none could be raised as to the illegality of the trusts, from their incompatibility with the character of those sanctioned by the revised statutes; nor was it objected that the direction to pay a fixed sum towards the support of the min-, ister would, if followed, interfere with the authority given to the members of the society by the eighth section of the act
Another ground upon which both legacies were sustained is that the provisions of our statutes preventive of perpetuities were inapplicable to donations for pious and charitable uses. It was inferred that such gifts were from their nature perpetual. Such may have been their character heretofore, but it is difficult to see why temporary donations for these purposes might not be made, and it is still more difficult to conjecture why their required existence should not be for a limited period.
I do .not understand the Court of Appeals as holding, in Williams v. Williams, that our statutes are wholly inapplicable to donations for charitable or pious uses. Indeed a contrary opinion is clearly inferrible. That case decided that the directions for accumulations, in Judge Potter’s will, were defeated by the statute. It is remarked, in the only opinion published, (page 538,) “ that what is said respecting accumulation is simply a direction which the testator had no right to give, and which according to the mandate of the statute is to be held void.” So, too, the learned'judge who expressed that opinion, in speaking of the decision of the court for the correction of errors, in McCartee v. The Orphan Asylum Society, (9 Cowen, 438,) says, (page 550,) “ The Orphan Asylum Society was a charitable corporation not authorized to take by devise, and corporations not so authorized, it is well known, were excepted by the statute of wills;” and certainly the court for the correction of errors did decide, in that case of the Orphan Asylum Society, that the exception in the statute of wills was applicable to a corporation for charitable purposes, and rendered an attempted devise to it null and void. The chancellor had attempted to sustain the devise of real estate to the Orphan Asylum Society, on the grounds, first, that it was in effect a devise of the use and not of the legal estate which the statute would avoid; second, that if the devise was direct to the corporation and the legal estate would therefore descend to the heir, yet he would take it with a trust in favor of the charity, which the law relative to charitable uses had fastened upon it; and third, that the act incorporating that society authorized it to take land by purchase, which technically included a devise, and exempted it from the operation of the exception in the then existing statute of wills. The court reversed the chancellor’s decree which sustained the devise, and dismissed the complaint as to
The legislature is perhaps the best expositor of its own statutes. In the act of April 15th, 1839, relative to certain trusts, it provided that all deeds of trust to the United Society
I have not deemed it necessary to review the numerous authorities which are usually cited in cases involving the consideration of this most prolific subject. I have expressed my sentiments upon some of the reasons assigned for the decision of the case of Williams v. Williams, which seemed to me to be at variance with principles sanctioned and applied to the same case. I have felt called upon to express my dissent from such as were opposed to the conclusions which I have adopted in this case. I have done so with some reluctance, and certainly with entire deference and with the greatest respect for the distinguished jurist whose very learned and able opinion has been reported, and for the judges who concurred with him.
The title to the land in dispute not having been effectually devised, and the last proprietor having died without inheritable heirs, escheated to the people of this state and passed to the plaintiff through the act of the legislature.
The learned judge before whom this action was tried having decided it in favor of the defendants, the judgment must be reversed. There must he a new trial, with costs to abide the event of the suit, unless the parties can agree to substitute a special verdict and a judgment upon it in favor of the plaintiff, for the purpose of having it more readily reviewed.
The devise in the will of George McCaughal under which the defendant claims title is expressed in these terms: “ I give, devise and bequeath all of my real estate which I shall own or be possessed of at the time of my death unto the Eight Reverend Bishop Hughes, of the city of New York, in trust, for the use and benefit of the Roman Catholic Church of the state of New York.” I agree with the presiding-justice that this devise, if valid, would pass a fee, but I cannot agree that in that event, the fee would vest in the Bishop or Archbishop of New York, and his successors in office, in communion with the Roman see. The words here used would vest the estate in the devisee as an individual, by a certain descrip ion, but they are not apt words to convey a title to an officer as such, even if he had capacity to take lands and transmit them in succession." But I am not aware of any such corporate capacity in any ecclesiastical officer, under our institutions. It is true that our government and laws
Nor do I mean to enter the maze of antiquarian research and abstruse learning which surrounds the question 'of the origin and extent of the chancery jurisdiction over charitable uses. Nothing indeed could be added to what has been elicited and urged upon this subject, not only in the English cases, but in the courts of this country, in Oh. J. Marshall’s well reasoned opinion in The Baptist Association v. Hart’s Executors, (4 Wheat. 1;) in Chancellor Jones’ very learned discussion of the cases, in McCartee v. The Orphan Asylum Society, (9 Cowen, 437;) in Mr. Binney’s masterly argument, and
But the question whether courts of equity possessed an original and inherent jurisdiction over charities and pious uses, or were indebted for all the powers exercised by them in such cases to the statute of 43 Eliz., whatever interest it may possess for the lawyer or the antiquarian, or whatever bearing it might formerly have had upon such devises in this state, is not the practical question in the case before us. Probably that question must be considered as settled in favor of the validity of such trusts, independent of the statute of Elizabeth and of an equitable jurisdiction apart from the statute, to examine and enforce them where their creation is not restrained by positive law. The light thrown upon the subject by the researches of the English record commission led to a change of the views taken by the supreme court of the United States, as originally announced by Chief Justice Marshall in the case of The Baptist Association v. Hart's Executors, (4 Wheat. 1,) and then in the later case of Vidal v. Gerard’s Executors, (2 How. 127,) by Judge Story, who himself had taken part in the former decision. Since the latter decision, and since the case of Williams v. Williams, (4 Seld. 525,) it seems to be the better opinion that in such a case as that before us—conceding that the trust is sufficiently expressed—the trustee being a person competent to take— the devise might have been supported and administered in equity as a pious use, if it had taken effect prior to the passage of the statute of 1830, respecting uses and trusts. I shall, at all events, concede thus much for the purposes of the present judgment. The question then is, how the present statute of trusts affects the case. This has been supposed to have been decided by the Court of Appeals, in certain recent cases. I think not, but that the question is still an open one; and if it be so, I agree with my associates, and with
In his opinion in the case of Owens v. The Missionary Society of the Methodist Episcopal Church, Judge Selden says that it has been held by the Court of Appeals in Williams v. Williams, (4 Seld. 525,) that trusts for religious and charitable purposes are not within our statute of uses and trusts, or that concerning perpetuities. This remark, however, is no more than an expression of the individual opinion of the learned judge; and with great deference, I think the decisions of the Court of Appeals have not yet gone so far. Whenever that court shall deliver a judgment covering the whole of this ground we shall of course yield to its authority. But as we understand the state of the law, and the decisions, ' 0 ' we feel amply justified in treating as at least an open question the application of our statute of uses and trusts to devises of lands on pious uses.
In the case of Williams v. Williams, a bill was filed in the. court of chancery to set aside certain provisions of the will of Nathaniel Potter of Long Island. The cause was heard before Judge Buggies, then vice chancellor of the second circuit. He sustained the legatees, and dismissed the bill. From his decree, an appeal was taken, which came to the general term of this court, where it was heard by Justices Barculo, McCoun, Brown and Morse, who unanimously held the bequests invalid, and reversed the decree. From this judgment an appeal was taken to thé Court of Appeals. In that court the prevailing opinion was delivered with great learning and power by Judge Denio, in favor of reversing the judgment of this court, and sustaining the trusts of the will. With him concurred Judge Buggies, who heard the cause originally as vice chancellor, Judge Morse, who had 'concurred in the opposite conclusion in the court below, and Judges Willard and Mason. On the other hand, Judges Gardiner, Johnson and Taggart dissented. Under these circumstances, I think we are justified in restrict
The case of Andrews v. The Gen. Theol. Sem. of the Prot. Epis. Church, (4 Seld. 559, n.) which was decided at the same time, and apparently upon the authority of Williams v. Williams, was also a case involving personal property only, and in which no opinion was delivered. The subsequent case of Owens v. The Missionary Soc’y of the Meth. Epis. Church, which has been already referred to, was a case where a testator made a bequest to an unincorporated association whose name implied a religious' or charitable object, but without expressing any trust, or otherwise distinctly declaring the design of his bounty. It was held that this bequest was void, because there was not a competent trustee, the society to which the bequest Was made not being incorporated at the time of the testator’s death, and that its subsequent incorporation did not cure this defect. I do not understand Judge Selden as giving a distinct opinion that a sufficiently definite trust could be implied from the name and declared objects of the legatee, to sustain the bequest; even if there were a competent legatee or devisee to the use; although he assumes this to be so, for the purposes of his argument. It is obvious that this judgment of the Court of Appeals will afford little, if any, assistance in deciding the present question. In noticing this case, I cannot refrain from adding my hearty concurrence in the forcible remarks of Judge Selden in his opinion, as to the impolicy of attempting, either by legislation or strained judicial construction, to create or uphold a partial or exclusive system applicable to these particular interests which are styled pious or charitable uses, or the persons of bodies by whom they are to be administered, in violation of oiir settled rules of general law and public policy as to the creation and tenure of estates. If a departure from this policy be accomplished by a course of judicial decisions, it must ultimately be terminated, as Judge Selden remarks, by stringent legislation, and it seems to me that this will be not only a remedy for the
The case of Tucker v. St. Clement’s Church, (4 Seld. 558, n.) was decided at the same time with Williams v. Williams, and the judgment of the superior court affirmed. That was a case of a conveyance of real estate, and at first consideration might seem to be in point, upon the question now before us. «But in truth it presented a totally different question. No opinion is given in the Court of Appeals, but the case is reported in the superior court, in 3 Sandf. S. C. Rep. 242. That court expressly declined to express any opinion upon the questions whether the English law of charitable us'es was in force in this state, prior to the revised statutes, and if so, whether it was abrogated by the provisions concerning uses and trusts and perpetuities, contained in those statutes. It was not necessary to decide either question; and we cannot suppose that the Court of Appeals, in affirming the judgment rendered in the court below, meant to do what was not needful to that judgment, and was intentionally omitted by the court that gave it.
The action was brought to set aside a conveyance of lands, made directly to St. Clement’s Church, for the support of its minister for the time being. The conveyance was sustained by the superior court, on the ground that the church, as a corporation, was authorized by the statute under which it was organized, to take and hold lands within a certain limit, which was not exceeded in this instance, for the use of such church &c., or for certain other pious uses, and that the support of its minister was a pious use contemplated and permitted by the statute. The case was therefore relieved of all difficulty by this statute as an enabling act, which authorized the corporation to hold lands to the extent of those conveyed in that instance and for the object specified; a statute which was not repealed or affected by the general statutes of trusts or perpetuities. Obviously that case was upon different grounds from the present, and is not an authority to sustain such a
I think it is obvious from the examination of these cases in the court of last resort that no adjudication of the question now before us has been made by that tribunal. I will consider presently, and very briefly, whether the reasoning of the opinions delivered in that court, with which we are furnished, leads necessarily to the conclusion that devises of lands to pious and charitable uses are-not affected by the revised statutes. Before doing so, I will advert to the cases in which this question has been considered, and in some of them decided, in the court of chancery and in this court. Perhaps, to use the language of Judge Denio in delivering the opinion in Williams v. Williams, these cases “being in courts of original juris* diction may not be availed of as precedents” even in this court.- To my mind indeed their weight would seem to be lessened, not so much because they are decisions of courts of original jurisdiction, as because from the present subdivision of this court, into numerous co-ordinate tribunals and the consequent conflict in its decisions, even in their most authoritative form, it is no longer possible to say what shall be considered a precedent, except a judgment from which there can be no appeal. It would, however, be incorrect to say that upon the question we are now considering there is any conflict among the decisions, however the opinions of judges, incidentally expressed, may disagree. In every case where the point has been presented for distinct adjudication, in the
In Yates v. Yates, (9 Barb. 324,) the supreme courts sitting in the third district, held that a devise of real estate for a pious or charitable use was now invalid; that no trust could be created, under the revised statutes, for these, any more than for other objects, except those expressly authorized. Judge Wright, in giving the opinion of the court in that case, said all that can probably be said to much purpose upon the construction and application of the terms of the statute, and his associates, Judges Parker and Watson, concurred in his views. In the subsequent case of King v. Rundle, the same court, in the same district, again had the question before them, and adhered to their opinion. Judges Harris and Parker, who heard this case, with Judge Wright, assenting. I have been unable to find any other adjudication in our courts upon a devise of lands to what is styled a “ pious use,” since the statute. I have already referred to the cases in the superior court. I may add, that I think the case of Tucker v. St. Clements Church, has been somewhat misunderstood in subsequent cases. It is evident, as I have already shown, that this case is not in conflict with the views expressed by Judge Duer in the subsequent case of Ayres v. The Meth. Episcopal Church, and that the former opinion does not countenance the doctrine that the statute has no application to charities, as was supposed by Judge Paige in Voorhees v. The Presbyterian Church of Amsterdam, (8 Barb. 135.) This latter case is not an authority for such a proposition, since it was not necessarily involved in the decision. It is true that Judge Paige declares that to be his opinion, hut that opinion was disapproved, when the case came up on appeal, by Judge Hand, and no dissent was expressed from his views by his associates, Judges Cady and Allen. (See 17 Barb. 103.) It must be admitted, I think, that these cases in this court and in the superior court present at least an array of individual opinions which are env
On the other hand, the late Vice Chancellor Sandford very strenuously supported the opposite view, although in the only case in which his opinion is expressed the point in question was not involved, and his remarks were therefore obiter dicta. The case is Shotwell v. Mott, (2 Sand. Ch. Rep. 46.) There also the gift was not of land, but of the proceeds of land, absolutely directed to be converted into money. The bequests therefore were, as Judge Sandford says, (page 53,) mere legacies of personal property. The learned vice chancellor, however, urges several reasons why charitable uses should not be considered within the statute, and these deserve notice, because they have some real and more apparent force; especially when backed by so high an authority. It is said that charitable uses cannot be held to be cut off by our statute of uses and trusts, any more than they were in England by the statute of 27 Henry 8, chapter 10. But I think the learned judge overlooked the manifest difference, not only in the phraseology but in the scope and import of the two statutes. The statute of Henry 8 enacts, that “ when any person shall be seised of lands, &c. to the use of any other person or body politic, the person or corporation entitled to the use &c., shall be seised of the land &c., of the like estates as they have in the use, and that the estate of the person so seised to uses shall be deemed to be in them that have the use in such quality, &c. as they before had in the use.” The statute therefore executed the use, making cestui que use complete owner of the lands both at law and in equity. .
But charities were a class of trusts in which the cestuis que use were altogether indefinite. They were not only too uncertain to take a legal estate, but the courts of equity were compelled to administer this class of trusts by special rules and upon a system founded on the determinate character of the beneficiaries. In effect there is no cestwi que use in such cases, and it is manifestly impossible for the statute to execute
Judge Sandford also urges that the frame of the statute of 1830, and the notes and reports of its authors, show that it ought to foe confined in its operation to private or individual trusts. I shall recur to this argument presently, but it may not be amiss to notice, here, the classification which the revisers made of trusts as they found- them. They say there are three classes of trusts; first, formal trusts, where the trustee has the mere naked legal title, and the beneficiary has the entire right to possess and enjoy the profits. Trusts of this description they intended to abolish, converting such as existed into legal estates, and forbidding them in future. Then there were implied trusts, and these they admitted to be unavoidable in administering the law for the prevention of fraud. The other class of trusts was active trusts, in which the trustee needs and holds the legal estate with the power and subject to the duty of management, and control of the profits. These trusts are both useful and necessary, but they are proper subjects of regulation and restriction; and provision is made accordingly. blow do not all charities fall within the first or the last of these classes, and are they not liable to some at least of the objections, and to most if not all the mischiefs, pointed out by the authors of the statute in question, as well as to greater evils which would result from the retention in this country of the system of landed estates which is embedded in the framework of society and government in our mother
Here is a devise of lands to what is claimed to be a pious use, and the question is whether when the statute of uses and trusts declares that “ all uses and trusts, except such as are authorized in that article, are abolished," (1 R. S. 727, § 45,) this trust estate in lands, which is not one of those authorized
It is said that the statute of uses and trusts applies only to trusts for the benefit of designated individuals, springing from interested motives—to what are styled private trusts—and not to trusts for the benefit of classes of persons, dictated by piety or charity, and which it is said can be distinguished as public trusts. I cannot discover any evidence of such an intention on the part of the framers of the statute in its broad and sweeping phraseology, and I think such a construction of the legislative.will is contradicted by the exceptions which were thought necessary, and were incorporated with the revised statutes, or have been subsequently made in favor of certain particular cases of trusts for ¡imposes of education, religion and charity. Some of these enabling acts are cited by my associate, and others will readily be found, upon examination of the statute books. They certainly afford the strongest confirmation to the opinion that the plain and literal interpretation of the statute is the true one, and that if the interests of religion, learning or charity demand exceptions, they must be made by the legislature. Uses and trusts, that is, all uses and trusts except as modified and authorized in the statute, are abolished, and every estate or interest in lands is to be
I have used the words public and private trusts as I find them in the arguments and opinions by which charities are sustained under the present statute, as they existed before its passage. It seems to me, however, that in this country it will be difficult to establish and uphold any classification of trusts into public and private, which will answer the purpose of an exception in terms in the statute, or by which such a trust as that before us would logically and necessarily be in-r
I will add one or two other considerations which seem to me to be entitled to some weight. It was plainly and avowedly the design of the statute of uses and trusts, in the revision of 1830, to sweep away all that kind of trusts which in the classification of Mr. Humphreys to which the revisers referred, are described as “passive” trusts. (Humphrey on Real Property 16, 17. Revisers’ Notes to 1 R. S. 727, §§ 45 to 50.) Wherever a trustee or grantee was interposed as a mere holder of the title, with no powers to exercise and no duties to discharge, it is the policy of the law and the design of the statute to unite the legal and equitable estates, to vest the title immediately in the cestui que trust, and to do away with the phantom of an owner who held such a mere nominal title. If the trust created or attempted to be created by the will before us is not in strictness a merely passive or formal trust, it is on account of the indefiniteness and uncertainty of the beneficiary. There are, obviously, no duties
Again; the legislature has provided for the devolution of the trust estate upon the death of the trustee of “ an express trust;” that is, of all express trusts. (1 R. S. 730, § 68.) Neither the heirs nor the personal representatives of the trustee are to meddle with the trust estate, but the court are
The provisions to which I am now adverting seem to me to be part of an uniform and coherent system, of a well considered general law of trusts. I see no reason why they are not as well applicable td trusts for objects of religion and charity as to any other. But I can discover no principle upon which these "provisions can be applied# and the residue of the chapter withheld from such trusts. If these regulations are imposed by the statute upon all trusts, then all trusts are subject to its prohibitions and restrictions, and not only all passive but all'active trusts except those specified, are forbidden. If the latter are to be construed not to relate to charities# then these wise regulations must also necessarily be inapplicable, and then the considerations to which I have just adverted may, perhaps, aid us to see how wide is the exception to the public law and policy of the state which we are thus tacitly to introduce.
• But the legislature have not only made the language of the Statute óf Uses .and trusts as strong and comprehensive as possiblethey have also interposed a barrier to the accumulation of landed property in the hands of. corporations, who are, in many, if not most, and may be in all cases, the subjects and recipients of these charitable benefactions, by the exception in the statute of wills. (2 R. S. 57, § 3.) ¡No corporation is permitted to take lands by devise, unless expressly authorized by its charter The amoünt ór extent to which
In short, if I do not misconstrue the doctrine which is now earnestly contended for, to sustain such devises as that before us, and which recent cases of high authority are supposed to favor, it would be a marked step backward, leading to the overturn of the settled policy of the state upon these questions. I think such a course must eventually bring after it a retribution and a corrective, in statutes of mortmain and similar stringent remedies. The evils at which these are aimed are no less evils than they always have been. They are not less palpable to reflecting men, because the supposed tendency of the general opinion of the world is in an opposite direction, and to what are supposed to be opposite errors. All this, and all the increase, and diffusion of intelligence and social science of which we boast, have been found insufficient to prevent these mischiefs in our mother country. Within a little more than a hundred years it has been found necessary to enforce the policy of the realm in this regard, and to protect the interests of its subjects by the present statute of mortmain. (9 Geo. 2, ch. 32.) In truth the motives to which these pious and charitable donations, or those who ask them, appeal, are the most powerful in the human heart, and the time when they are often demanded is the moment of greatest sensibility to religious hopes and fears and to the assumed or admitted power of those who wield them, accompanied, we may often apprehend, by an unjust indifference to other claims of at least equal merit and at least equally pressing necessity. If the state is to exercise any control over the tenure and dis
It is impossible not to be reminded by the controversy to exempt charities from our law of trusts, how uses were originally borrowed from the civil law by ecclesiastics, to evade the restrictions in the English law upon their acquisitions, and of the long struggle and continued exhibitions of clerical ingenuity, of judicial astuteness, and of legislative resolution in English legal history, in Which this contrivance made so prominent a feature. The introduction or the restoration of charitable uses as an exception to our explicit and criminal statutory rules, limiting trusts in lands, would be, it seems to me, just as plain an evasion not only of that statute but in .effect of others to which I have referred, and as manifest a departure from the true interests as well as the settled policy of our communities^ as can be found contrived by ecclesiastics or lawyers in all that history. I think it would be an unnecessary, as .well as an unhappy, departure from both the spirit and the letter of our laws. There is no charity which cannot obtain the benefits of a charter to promote its objects; and religious, literary and benevolent societies are permitted to become incorporate, simply by the observance of certain forms. The right to hold lands and receive their income is thus conferred and at the same time regulated and restricted, and it is enough for all purposes of private bounty, as well as for the higher object of the public good, that gifts should be made directly to these bodies, under the control of the law and Within its wise limitations.
The trust in this case being void, the devise failed, and the plaintiff should have had judgment. The judgment of the court below must be reversed, and a new trial ordered.
Although I fully concur in the general views of this case so well expressed by the presiding justice, and in the conclusions to which he has arrived, I am reluctantly con
I agree that the terms of the devise to Bishop Hughes show a clear design in the testator to give him the fee of the land in question; and that, if the devise is valid, the fee passed to the devisee. But I cannot admit that, because the devisee is described as an ecclesiastical officer, and the donation is made to him in his name of’ office, the fee vests in him and passes to his successors in office. It would descend, in such a case, in my judgment, to the heirs at law of the devisee. The title prefixed to the name of the devisee is as much a descriptio personae, as his place of residence which is subjoined. If a devise to one who holds an ecclesiastical office, describing him by his name of office, would give a fee to him and to his successors in the office, it must be because they would constitute an ecclesiastical corporation sole, such as is described in 1 Black. Com. 496,7. The English law, as there stated, did make a parson or vicar a corporation, for the reasons and purposes there indicated.
But neither that rule of law, nor the reasons on which it is founded, ever existed in this state, so far as my knowledge extends. There has never been any established church; nor any endowment of parish or other churches, of any denomination. The freehold of the church, church yard, parsonage or glebe, were never vested in any ecclesiastical officer as a temporal recompense to him for his spiritual care of the inhabitants, and with the intent that the same emoluments should ever after continue as a recompense for the same care. To avoid the difficulties which would have resulted, if the freehold had vested in the parson in his natural capacity, so as to descend to his heirs or be liable to his debts, the law of England ordained that the parson, quaienus parson, should never die, any more than the king; by making him and his successors a corporation. But we have no more ordained that rule in this state, in reference to the officers of our churches pr religious societies, than we have in regard to the governor.
S. B. Strong, Emott and Birdseye, Justices.]
But even in England, such a devise as the one in question would not have conveyed the fee of the land to the devisee and his successors, as a corporation sole. To do that it was indispensable to make use of the word successors. (Co. Litt. 8 b, 9 a.) “ For,” says Coke, “ if lands be given to a sole body politique or corporate, (as to a bishop, parson, vicar, master of an hospital, &c.) there to give him an estate of -inheritance in his politique or corporate capacitie, he must have these words, To have and to hold to him and his successors : for without these words successors, in those cases there passeth no inheritance.”
The rule is different as to a corporation aggregate. (Co. Litt. 94 b.) For that body never dies. But in the case of a sole corporation, as a bishop, parson, &c. the decease of the incumbent creates a vacancy or hiatus in the office, and the succession does not take place, till an independent body has appointed the successor.
While, therefore, it seems clear, that the will under examination shows an intention to pass the whole interest of the testator, and so, if valid, carried an estate of inheritance, (4 Kent’s Com. 602, 8th ed.,) I think that estate would vest in Bishop Hughes and his heirs at law, and not in him and his successors in office.
Judgment reversed, and new trial granted.