51 Minn. 277 | Minn. | 1892
The action being in ejectment, of course the plaintiff must show itself the legal owner of the real estate. This it claims to be under a devise in the last will and testament of Joseph M. Albrecht to “those members, both brothers and sisters, of the Society of the Most Precious Blood, who are under my control, and subject to my authority, at the time of my death;” and a decree of the probate court assigning the property to “the said members, both brothers and sisters, of the Society of the Most Precious Blood, and their successors;” and articles of incorporation adopted by the three executors of the will for the incorporation of the plaintiff in the state of Oregon. At the time of executing the will and of the death and of the entry of said decree, and until the subsequent adoption <of the articles of incorporation, the Society of the Most Precious Blood appears to have been a merely voluntary association, and there is nothing in the will to indicate that the devisor contemplated its incorporation.
Of the decree of the probate court it is enough to say that, if the devisees are not sufficiently designated in the will to enable any person to take and hold under it, the same defect exists in the decree. The designation of those who are to take under the decree is just as indefinite and uncertain as the designation in the will. We do not see anything in the will showing an intention that the title should pass to the persons appointed executors, who are also called “trustees, ” or that it should vest in any one except those whom the devisor attempts to point out by the description, “the members, both
It is unnecessary to enter on a consideration of the doctrines of uses and trusts and of charitable uses, for, before a court can be called on to decide whether a trust or use is valid, there must be an effectual conveyance or devise, and to such there must be a certain grantee or devisee competent to take and hold the real estate named or described with sufficient certainty. This court has held that a conveyance to a voluntary association in the name adopted by it would pass no title, — German Land Association v. Scholler, 10 Minn. 331, (Gil. 260;) — that a conveyance to a partnership in its firm name passes to it no title, —Morrison v. Mendenhall, 18 Minn. 232, (Gil. 212;) Tidd v. Rines, 26 Minn. 201, (2 N. W. Rep. 497;) Gille v. Hunt, 35 Minn. 357, (29 N. W. Rep. 2;) — though in the last case it is suggested that, where the firm name contains the name of one of the partners, the title may vest in that partner; and it also concedes that where the person is indicated by a title or office, and there is but one such, it is sufficient. There is no such element of certainty here. The intended devisees are no way described than as those members of a certain society, who are under the control and subject to the authority of the devisor at the time of his death, without specifying who those members are, or how they are to be ascertained and identified. Title to real estate cannot be permitted to pass by an instrument in which the persons who are to take are indicated in so indefinite and uncertain a manner. The will was ineffectual to pass the property.
Order affirmed.
(Opinion published 53 N. W. Rep. 648.)
