N. Y. Superior Court.-Florence v. Bates.

What greater potency or virtue there is in an oath denying an allegation, than in an oath confessing and avoiding it, I cannot divine. Such a doctrine has never, I believe, been held in this state. There is indeed a dictum to that effect by Chancellor Kent, in Minturn v. Seymour, (4 J. C. R. 499,) in which that eminent judge says of the answer in that case, that it endeavored to strengthen the defendant's case by the introduction of new matter, and if the defence rested on such new matter, and had admitted the equity set forth in the bill, then according to the reason of the thing, and the general rule declared in Allen v. Crobroft, (Barnadiston Ch. R. 373,) the injunction ought to have been continued to the hearing. But in this case," he added, "the equity of the bill is denied. The case from Barnadiston was cited on the argument of this motion, and fully bears out the position contended for. Chancellor Bland, in Simon v. Clagget, 3 Bland. Ch. R. 162,) remarked that he was inclined to believe that this very case had been mainly instrumental in establishing the rule in the court of chancery in Maryland. But he also remarked, that the rule was not mentioned in any English abridgment, digest, compilation or book other than that book, wherein the case referred to is reported, and referred to Lord Mansfield's celebrated condemnation of the book, as reported in Zouch v. Woolston, (2 Burrows, 1142.) The reporter says "Lord Mansfield absolutely forbid the citing that book, for it would only be misleading the students to put them upon reading it. He said it was marvellous, however, to those who knew the Serjeant, and his manner of taking notes, that he should so often stumble upon what was right; but yet that there was not one case in his book which was so throughout."

The case in Barnadiston is not only unsupported by any other English authority, but is also in opposition to the principles of the English decisions on this point.

Thus it is well settled in England, that if a plea to the whole bill be allowed, the plaintiff may move for a dissolution of the injunction, because a plea allowed is to be considered as a full answer. Drewry on Injunction, p. 411. 3 Daniels' Pr. But a plea allowed is an admission of the facts alleged by the plaintiff in his bill, and that they would be a sufficient foundation for a decree, but for the new matter set up in the plea; the defendant is not compelled, however, to' wait until he has proved his plea, he is entitled to a dissolution of the injunction, as soon as the court have decided that the plea, if true, is a good defence to the action, and by parity of reasoning, if the defendant sets up his defence by answer instead of by plea, he is equally entitled to a dissolution of the injunction, or to prevent its being issued, upon the court being satisfied that the matter set up in the answer, if true, would constitute a good defence. Since then, we find the established rule with regard to pleas, to be such as I have stated, and the English authorities, with the single exception of the case from Barnadiston, make no mention of the distinction taken in the American cases above cited, between a simple denial of the case made by the bill and matter set up in the answer by way of avoidance, I think I am

N. Y. Superior Court.-Florence v. Bates.

justified in saying, that the rule contended for by the plaintiff, is without precedent in England, and he has failed to show any precedent in this state.

I shall, therefore, for the purposes of this motion, take into consideration the matters set up by way of evidence of the complaint in the answer, and the accompanying affidavits. It will be perceived I have, in the examination of this question, considered the rule to be the same, whether the application is on the part of the plaintiff for an injunction, or on behalf of the defendant for the dissolution of one already granted. The same principles govern either mode of presenting the question.

The plaintiff's counsel next contended that he ought to be allowed to put in affidavits in reply to the defendant's answer and the affidavits acompanying it. Upon this point also we are without the guide of previous decisions in our own state, and very little is to be found in the English books on the subject.

It is stated in Barb. Ch. R., vol. 2, p. 642, that no affidavits can be received for the purpose of contradicting the answer; and Drewry on Injunctions, p. 424, is cited as supporting the position. On reference to that author, however, it will be seen that in the passage referred to, he is treating of what is called in England the "common injunction"—that is, the injunction to stay proceedings at law. But when he comes to treat of special injunctions, which can only be obtained upon application to the court, he states that a distinction was adopted at a very early period, with regard to injunctions to restrain wrongful acts of a special nature, as distinguished from the common injunction for staying proceedings at law, and he goes on to mention various cases in which affidavits are allowed to be read in opposition to the answer on a motion to dissolve. Such as cases of waste, and other cases of irreparable mischief. (Drewry, p. 428, &c.) Thus in Gibbs v. Cole, (3 P. Wms., 355,) which was a bill to restrain the pirating of a patent, affidavits were allowed to be read in order to support the injunction, on a motion to dissolve upon the coming in of the answer, on account of the great prejudice that might accrue to the party were the injunction dissolved. The same course was allowed in Barret v. Blagrave, (6 Ves. 104,) which was a case not unlike the present, and also in Strathmore v. Bowes, Dick. 673.

This precise question came up in Merwin v. Smith, (Green's Ch. R. 186.) A motion was made to dissolve an injunction on the coming in of the answer, which set up new matter in avoidance of the equity of the bill, the complainant's counsel offered to read in contradiction of such new matter, affidavits which had been served, six days before the hearing, on the opposte party.

The point was fully argued and numerous cases quoted, and the court held that the affidavits might be read if the defendant meant to insist on the new matter.

And such a course appears to be necessary, if the new matter is to have any bearing on the question.

The reason why matter in avoidance is not regarded in the cases

N. Y. Superior Court.-Ayres, &c., v. Trustees, &c.

to which we have referred, we presume is because the decision might be on an ex parte affidavit of the defendant; and there is some plausibility in it, if the plaintiff has no opportunity of answering the new matter. But if he is permitted to reply to the new matter of the defendant, he is then with regard to it in the same situation as the defendant is with regard to the allegations of the bill. Both parties will have had an opportunity not only of stating their own cases, but of answering the statements of their adversary, and the court is the better enabled to make a just and equitable decision.

I shall, therefore, allow the plaintiff to put in affidavits in answer to new matter setup by the defendant. They must, however, be strictly confined to such new matter, and be served within two days on the opposite party, and the motion can be heard on such new matter on the ensuing Monday.

I will only add, that § 226 of the Code, does not conflict with this decision, but in principle accords with it. If, however, this was an application to dissolve upon the answer only, it might be a question whether counter-affidavits on the part of the plaintiff could be received. It would, perhaps, in such case be proper to consider such parts of the answer as were not responsive to the bill, in the light of an affidavit merely.

Before DUER, MASON and CAMPBELL, Justices.

DANIEL AYRES and others, Executors of ABRAHAME. BROWER, deceased, V. THE TRUSTEES FOR THE CORPORATION OF THE METHODIST EPISCOPAL CHURCH, MARGARET WARNER and others.

Bill by executors, for the construction of a devise to a religious corporation for a charitable use. Held, that the act of 1784, under which the corporation was created, gave no authority to the societies incorporated under it to take by devise. Held, also, that where a devise made directly to a corporation not authorized to take by devise is accompanied with a trust, it is wholly void in relation to the trust, as well as the legal estate.

Discussion of the questions whether charitable and pious uses, when not consistent with the general rules of law, were sanctioned by the law of this state previous to the adoption of the Revised Statutes; and if so, whether they are not abolished by the statutory provisions in relation to trusts and perpetuities.

Decree, that the heirs are entitled to the property, the costs of all the parties and the counsel fees of the executors to be paid out of the fund in the hands of the executors.

ABRAHAM E. BROWER, who died in August, 1832, leaving a small amount of personal property, and a considerable real estate, by his will, made in 1828, and which has been duly admitted to probate in Kings County, besides some unimportant legacies, (one of which was to the plaintiff in the ejectment suit hereafter mentioned, and accepted by him,) devised certain real estate in New-York and Brooklyn to "The Trustees for the Corporation of the Methodist Episcopal Church in the city of New-York," styled in the will, "The Trustees of the Methodist Episcopal Church in the City of New-York, and State of New-York," in trust, to apply the rents and profits thereof to the

N. Y. Superior Court.-Ayres, &c., v. Trustees, &c.

support of the aged persons having the qualifications therein described.

The income, however, of this property, as of all his estate, real and personal, was to be appropriated, during her widowhood, to his wife, who died, without having again married, in 1845, or to Robert Snow, who died in the lifetime of the testator, in case he survived her death or marriage. On the termination of these life estates, for the erection of a building on a part of his real estate devised as above, the executors were to secure a sufficient sum in the Savings Bank or otherwise, from the money belonging to the estate, together with the rents and income thereof. The personal estate was insufficient for the building, but the executors had collected, at the time of filing this bill in November, 1847, $2131, derived principally from the rents of the real estate since the death of the widow; and the further rents estimated to accrue prior to 1st May, 1850, would be adequate to the purpose. In 1833, during the continuance of the widow's life estate, one of the heirs at law filed his bill against the other heirs and the Methodist Church for a partition of the real estate of the testator among the heirs, and a release from the Church. That bill, after the present plaintiffs were made parties to it in 1846, was dismissed or discontinued in 1847. In 1847, another of the heirs at law commenced an action of ejectment against the tenants for an undivided fourteenth part of one of the houses and lots held under the will, and similar suits were threatened by the other heirs. This bill, to which the Methodist Church, as well as the heirs at law, are made parties, was thereupon filed by the executors for a judicial construction of the will, and for an injunction against the ejectment suit now pending and those threatened.

W. B. Lawrence, for the plaintiffs.

I. Whatever may be ultimately determined as to the validity of the devise in trust to the Corporation of the Methodist Church, the questions growing out of the will being intricate, and the decisions respecting them contradictory, the executors who have received and are receiving moneys under it, which they can neither safely pay over to either of the conflicting claimants, nor apply according to the terms of the will, are entitled to ask a judicial construction of it, and the aid of the court to perform their fiduciary duties. They are also, in any event, entitled to their costs, and to the reasonable counsel fees paid by them, out of the estate. (2 R. S. 67, § 70 ;) Depeyster v. Clendining, (8 Paige, 304;) Jackson v. Hammond, (2 Caines in Er. 337;) Coggeshall v. Pelton, (7 J. C. R. 292 ;) Jackson v. Hartwell, (8 J. R. 422;) Wright v. Trustees of Meth. Epis. Ch., (1 Hoff. 238; 3 R. S. 627, Rev. notes ;) Trustees of Philips Academy v. King, (12 Mass. 546;) Baptist Association v. Hart, (4 Wheat. 1;) Mc Cartee v. Orphan Asylum, (9 Cow. 437;) Vidal v. Girard's ex'rs, (2 How. 127; 4 Kent, 288, note;) Mott v. Shotwell, (2 Sandf. 46;) Dutch Ch. in Garden-st. v. Mott, (7 Paige, 78;) Burr's ex. v. Smith, (7 Verm. 241 ;) Blackledge v. Singleton, (3 Mumf. 597;) Bryson v. Nickols, (2 Hill's

N. Y. Superior Court.-Ayres, &c., v. Trustees, &c.

[S. C.] Ch. Rep. 121;) Moses v. Murgatroyd, (1 J. C. R. 473 ;) Monell v. Dickey, (1 J. C. R. 153;) Ex'rs of Geitman v. Beardsley, (2 J. C. R. 274 ;) Rogers v. Ross, (4 J. C. R. 608;) Warden v. Burts, (2 McCord's C. R. 76;) Lovett v. Buloid, (3 Barb. C. R. 144.)

II. The devise in trust to the Corporation of the Methodist Church is valid.

1. The corporation intended by the will is confessedly the one. whose legal title is "The Trustees for the Corporation of the Methodist Episcopal Church in the City of New-York," and at all events, the misnomer is immaterial. Čase, 26, 27. Angel & Ames, 78. 10 Co. 57 b.

2. The above corporation having been formed under the Act of 1784, is, whatever may be the construction of the former or present Statute of Wills, authorized to hold lands devised to it, in trust for pious uses. 1 Laws of N. Y. Greenl. ed. 72; Wright v. Meth. Epis. Ch., (1 Hoff. 238;) Dwarris on St. 704; 1 R. L. 214; Jackson v. Hammond, (2 Caines, 337;) 2 Wheat. 224.

3. Corporations authorized by charter or statute to take by devise are expressly excepted from the general prohibitory clause of the present Statute of Wills in relation to corporations, and which exception was introduced with special reference to religious corporations. But were it otherwise, that clause could not take from existing corporations any powers or rights which had been previously granted to them. 2 R. S. 57, § 3; 3 R. S. 627, Rev. notes; Dartmouth Colledge v. Woodworth, (4 Wheat. 636.)

4. The devise in the will is for a pious use, which may relate to spiritual or temporal concerns, and which is sufficiently definite. 2 Story Eq. J., § 1137, § 1160; 2 Domat C. L. Book 4, tit. 2, § 6; Swinb. 909.

III. But, if the devise to the Methodist Church be not valid, in consequence of the incompetency of the trustee, or for any other cause, the estate will not go to the heirs at law, but equity will carry out the trust, according to the presumed intention of the testator, and such was the common law jurisdiction of Chancery in England, before the 43 Eliz. Christ's College, 1 W. Bl. 75. Potter v. Chapin, (6 Paige, 649 ;) Ex'rs Burr v. Smith, (7 Verm. 241;) Vidal v. Girard's ex'rs, (2 How. 148; 2 Story's Eq. J. § 1170.)

IV. The Law of Charities has not been altered by the Revised Statutes and the special laws subsequently passed, in relation to particular charities, and for the accumulation of income till the amount of the trust fund is adequate to its object, are only to be deemed in affirmance of the existing law, nor are charitable uses, within the mischief intended to be guarded against by the New-York statute of uses and trusts. See R. S. 2d ed. 627. Rev. notes; Dwarris on St. 689, 694; Mott v. Shotwell, (2 Sandf. 46 ;) 2 R. S. 3d ed. 23, 24. 3 R. S. 3d ed. 662; Act of 1846.

V. The obvious intention of the testator, to be deduced from the whole will, was to give to the Methodist Church a remainder in fee, which vested in them at the time of his death, subject to the life es