Miller, J.,
delivered the opinion of this Court.
This is a suit at law, upon an executor’s bond to recover a bequest of a moiety of the residue of her personal estate, made by the testatrix, Mary E. A. Reed, “ to the Methodist Episcopal Church at G-reensborough.” By the pleadings, upon which alone the case is before us, it is admitted that at the time the will took effect, this church was not incorporated, but that since the death of the testatrix it became incorporated under the provisions of the Act of 1802, ch. 111. As a general rule it is clear that a bequest or devise to an unincorporated association is void, and it is only by virtue of that peculiar jurisdiction exercised by Courts of Equity, in regard to charitable uses, that such bequests have ever been sustained. In the case of The Baptist Association *353vs. Haris Ex’rs, 4 Wheat, 1, the bequest under a will executed in Virginia which took effect in 1795, was “to the Baptist Association that for ordinary meets at Philadelphia, annually,” as a perpetual fund for the education of youths of the Baptist denomination, &c. The Baptist Association which met annually at Philadelphia, had existed as a regularly organized voluntary association for many years before the date of the will, but was not incorporated until the year 1797, when it received a charter from the Legislature of Pennsylvania, under the corporate name of “The Trustees of the Philadelphia Baptist Association,” and the Court, Chief Justice Mabrhale, delivering its unanimous opinion held that the association was sufficiently described, but not being incorporated it was not capable of taking the bequest; that it could not be taken by the individuals who composed the association, at the death of the testator, and that the subsequent incorporation of the society did not give it capacity to take. The Court said the legacy was void, and the property vests, if not otherwise disposed of by the will, in the next of kin, and “a body corporate afterwards created bad it even fitted the description of the will, cannot divest this interest and claim it for their corporation.” In the case of Meade, et al. vs. Allison, et al., in the Circuit Court of the United States, Maryland District, decided by Chief Justice Taney, in 1850, the bequest was “to the Education Society of "Virginia, for the benefit of the Theological students at the Protestant Episcopal Theological Seminary of Virginia, near Alexandria, District of Columbia.” This Education Society was not incorporated, and it was held the bequest was void. The Chief Justice said the case must be governed' by the cases of Dashiell, et al. vs. The Attorney General, 5 H. & J., 392, and 6 H. & J., 1, which decide that the Statute of 43 Elizabeth, cli. 4, concerning charitable uses, has not been adopted nor its principles recognized as a part of the common law of this State. He also said the same ruling was made by the Supreme Court in the case of The Baptist Association *354vs. Hart's Ex’rs, in reference to Virginia, and that the case of Vidal, et al. vs. Girard’s Ex’rs, 2 How., 192, was decided altogether upon .the law of Pennsylvania — upon the common law of that State as recognized there by universal usage and judicial decisions' — and whilst holding the devise valid in that case in Pennsylvania, the Court still recognized as authority the case of the Baptist Association vs. Hart's Ex’rs, which decided that a similar devise was void in Virginia. These cases, and the decisions of our own Courts therein referred to, settle the law in this State, and it is unnecessary to look to what the Courts of other States may have held in similar cases. The doctrine, however, that a bequest of this kind directly to an unincorporated body or association of individuals is void, and that a subsequent act of incorporation will jqtot enable them to take, was expressly decided by the Court of Appeals of New York in Owens vs. The Missionary Society of the Methodist Episcopal Church, 14 N. Y. Rep., 380, and recognized by the same Court in Beekman vs. Bonsor, 23 N. Y. Rep., 309. That such a bequest would be held void in a Court of law, however it might be sustained in equity, has also been decided by the Supreme Court of Connecticut in sevei’al cases. Greene vs. Dennis, 6 Conn., 293; Brewster vs.. McCall, 15 Conn., 294; and The American Bible Society vs. Wetmore, 17 Conn. 181.
• This bequest must, therefore, be held void, because there was at the time the will took effect, no legatee in being capable of taking it. Regarded as a bequest to “ any religious sect, order or denomination,” it was also void under the provisions of the 35th Article of the Declaration of Rights of 1851, then in force, “ without the leave of the Legislature.” Whether this leave could be validly given by the antecedent General Laws of 1802, ch. 111, sec. 8, and 1815, ch. 222, or whether a special antecedent law was necessary in each case, or whether the leave could be given by a subsequent Act as was attempted in this case by the Act of 1856, ch. 307, are questions which it is unnecessary to determine because we are *355clearly of opinion tlic power thus given to the Legislature, whenever or however exercised, was simply the power to remove the disability imposed by this Article of the Declaration of Eights. It had 'no power to remove that, and at the same time to declare that a body or an association incapable of taking at the time the will took effect, because unincorporated, should when incorporated, or upon being subsequently incorporated be capable of taking a bequest which by this reason had become void, and was vested in the next of kin. We are, therefore, fully satisfied that when the Legislature by the Act of 1856, ch. 307, undertook to grant leave to carry into effect this bequest in favor of the “ Trustees of the Methodist Episcopal Church at Greensborough,” incorporated subsequently to the death of the testatrix, it transcended its constitutional powers and that the antecedent laws of 1802, ch. 111, and 1815, ch. 222, for the same reason can have no such effect, even if they should otherwise be considered as applicable to the case.
The third replication presents another question, viz: that the right to this legacy had been definitively adjudicated in favor of the trustees by the Orphans’ Court of Caroline county, upon petitions filed in behalf of the next of kin and by the trustees of the church. This determination is said to be conclusive, being the decision of a Court of competent jurisdiction to adjudicate and decide finally the matter in controversy. In Craufurd’s Adm’r vs. Craufurd, et al., 22 Md. Rep., 447, this Court decided that under the provisions of our testamentary law, the Orphans’ Courts have power to determine who are next of kin, and to decide between parties claiming adversely to each other and determine which of them are next of kin entitled to distribution, but that decision does not go to the extent of holding that these Courts have jurisdiction to decide questions like the present, involving the validity or invalidity of a bequest under a will. Such questions can only be determined in the Courts of Law or Equity. The Orphans’ Courts have no jurisdiction save what is conferred by statute. They are *356forbidden under pretext of incidental power or constructive authority, to exercise any jurisdiction not expressly conferred by law. Code, Art. 93, see. 252. We find no authority expressly given them to adjudicate such questions as are presented in this case, and their jurisdiction cannot be extended by construction. The executor was, therefore, justified in refusing to pay this legacy to the plaintiffs under the order of the Orphans’ Court, and in requiring them to assert their claim to. it by a proceeding at law or in equity. It follows that all the replications to the defendants’ plea were bad, and the demurrer to them properly sustained. It is unnecessary to decide any other of the many questions of pleading presented in argument, because none of them however decided, could give the plaintiffs a right to recover. It is to' be regretted that the wishes of the testatrix should be thus defeated, but our duty is to declare the law as we find it to be, not to make .law for the purpose of carrying out what we may think in individual cases, ought to be done.
(Decided 4th March, 1868.)
Judgment affirmed.