4 Iowa 252 | Iowa | 1856
Lead Opinion
The objection taken by Marshall, to the claim set up by the trustees to the land conveyed to them by McKean, is, “ that at the time the deed was ex
In the first place, we have to say, that it was not contemplated by McKean, that the church was organized at the date of the deed, and the gift was not one in presentí, to take effect immediately upon its execution. It is for the use, benefit and support of the First Orthodox Congregational Church which shall be organized at Keokuk, that he gives the land. He directs the trustees what they shall do with the land, until such church is organized. He knew there was no such church then in existence, and it was to aid in its organization and support, that the donation was made. If, then, McKean’s heirs were entitled to the land, the deed was void ah initio. It conveyed no interest to the trustees, and it is immaterial whether they took possession of the land or not. It is immaterial how many Congregationalists there were in Keokuk at the time of its execution. It is immaterial whether the church has since been organized or not. There was no beneficiary in existence at the time, to take the trust estate, and therefore no interest passed. Such is the position and argument for' Marshall. It will not, perhaps, be controverted, that by an executory devise, a freehold may be made to commence in futuro, and no particular estate is necessary to support it. The future estate is to arise upon
The questions discussed in the case before us, arise under the deed by McKean to the trustees, and not under a devise by will. Eor Marshall, it is claimed, that this conveyance passed no estate, for the purposes of charity, because there was, at the time, no Congregational Church organized and in existence, to take the beneficial interest. In respect to conveyances between individuals, it is well settled, that every deed must have sufficient certainty as to the grantee who is to take under it. If it cannot be known who is to take, the grant is void, for the uncertainty. So, where the cestui que trust is incapable of taking the gift, the intervention of trustees does not remove the difficulty. And in general, it may be stated, that there is the same necessity for a cestui que trust, capable of taking the beneficial interest, that there is for a properly defined grantee in a deed. In this case, there must either be a cestui que trust capable of taking the use, or some overruling reason, why it should not be governed by the well settled rules of law; otherwise, the estate descended to the heirs of McKean at his death. Was the use bad to which McKean conveyed the land? The question is not whether the gift was void, because the church was not in existence. McKean knew the church was not organized. It was not a mistake on his part, in conveying to the use of a church, which was afterwards discovered to have no existence as a church organization. It
^Mfh conveyances have been held good in Maine, in the case of Shapleigh v. Pillsbury, 1 Greenleaf, 271; in Massachusetts, in the case of Rice v. Osgood, 9 Mass. 38; in New York, in the case of Reformed Dutch Church v. Veeder, 4 Wendell, 494; and in the Supreme Court of the United States, in the case of the Town of Powlet v. Clark, 9 Cranch, 292, (3 Curtis, 358.) In these cases, it has been held, that if the lands are granted for pious uses, to a person or corporation not in esse, the right to the custody and possession of the lands remains in the grantor, until the person or corporation intended, shall come into existence, but the donor cannot resume the grant. If, on the other hand, the grant is made to individuals for the use of the church, which at the time of the grant is not incorporated as such, the persons to whom the grant is made, stand seized to the use, and when the church receives legal capacity to take and hold the real estate, the statute executes the possession to the use, and the estate vests. 4 Wend. 497. In Powlet v. Clark, Story, J., says: “A donation by the crown to the use of a non-existing parish church, may well take effect by the common law, as a dedication to pious uses. After such a donation, it would not be competent for the crown to resume it at its own will, or alien the property, without the same consent which is necessary for the alienation of other church property.” “ Before such church were duly erected and consecrated, the fee of the glebe would remain in abeyance, or at least, be beyond the power of the crown to alien, without
This disposition to favor charity, was manifested by setting apart a portion of his estate for the support of the gospel, through the means and instrumentality of .the Congregational Church. There was no pecuniary consideration for the conveyance to the trustees. That was not necessary. Other considerations, quite as effectual and sufficient, moved him. The support of the gospel in a Christian country, is a sufficient consideration. 4 Wendell, 496. The objection that there was no beneficiary to take the use, is not sustained, either in law or fact. By direction of the grantor, and according to his intention, the estate vested in the trustees, until the beneficiaries for whom the charity was intended, were in a condition to call for the application of the fund in the hands of the trustees. Such appropriations have been held valid, upon principles other than those which ordinarily apply.between grantor and grantee, and are supported as dedications, to public and pious uses. 2 Cranch, 583.
Is the use bad, because the trustees named in the deed of McKean, had no power to organize the church, or bring it into existence ? Although the trustees ha‘d no power to organize the church, in the sense in which they might, under a power conferred by deed or will, establish a school for indigent scholars,” (1 Hawkins, 97,) or a college for the education of orphan children, (2 Howard, 127,) or an asylum for disabled seamen, (3 Peters, 99;) yet there was a duty devolved upon the trustees by the grantor, which shows that it was contemplated by him, that the fee should remain in them, subject to the capacity to be acquired by the persons of the Congregational faith in Keokuk as an organization, to require the appropriation and application of the fund. They were to sell, lease and rent the land, and invest the moneys arising therefrom, and-allow them to accumulate, until the church was organized. Although the church may not have been at this time in existence, there was still something to be done by the trustees, before the
In sustaining the grant to the trustees in the present case, we will not be supposed desirous of exercising any other than judicial powers in carrying out the intention of Mc-Kean, as manifested both in his deed and his will. In one class of cases, it has been held, that the doctrine of cy pres, as administered in England, is a judicial doctrine, in which cases a court of equity may substitute or sanction any other mode that may be lawful or suitable, and which will effectuate the declared intention of the donor. Moore's Heirs v. Moore’s Devisees, 4 Dana, 355; Attorney-General v. Wallace's Devisees, 7 B. Monroe, 611. There is no necessity, however, in this case, for a resort to any such doctrine. No inadequate, illegal or inappropriate mode has been prescribed by McKean for making his charity available. The mode, prescribed by him has not failed. The trustees are ready and willing to carry it out on his own scheme, and the objects to be effected are identified and ascertainable. There is, therefore, no occasion for the exercise of a power, in England deemed a part of the prerogative of the sovereign, as parens patriae.
It is claimed for Marshall, that he purchased the interest-of McKean’s heirs, for a valuable consideration; that the right to resume the grant was in McKean at his death, and descended to his heirs; and that by their conveyance, Marshall became possessed of a complete legal title to the land, which no subsequent organization of the church could divest. We admit that if Marshall’s title was ever good, it is-
We have to say, in conclusion, as an apology, if any
'Woodward, J., dissenting.
Dissenting Opinion
dissenting. — On a re-examination, and a more thorough investigation of this cause, under the petition for a rehearing, I am obliged to differ from the majority of the court, so far as to think that a rehearing ought to be granted. I am not satisfied with the decision as it is, and the doubt might involve some question as to that in Johnson v. The Methodist Episcopal Church, also, Ante, 180. The subject is too large to permit an examination of it at present, but I wish to hold myself at liberty upon it, if it again arises.