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

tates of the widow and Robert Snow. This trust estate is not affected by the direction of the executors, analagous to the provisions of the Act of 1846, to collect so much of the rents as with the personal property would be sufficient to erect the proposed building, before their application to the purposes of the charity. But if it is, that provision must be rejected as repugnant to the nature of the estate granted, and the rents from the time of the widow's death declared to belong to the Corporation of the Methodist Church in trust, and to be accounted for to it by the executors.

VI. An injunction is required not only in consequence of the multiplicity of suits threatened at law, but because charities are properly cognizable in Chancery, which is alone competent to settle the matters in controversy in the present suit.

Geo. Wood and John Slosson, for defendants.

I. The devise to the Trustees of the Methodist Episcopal Church being a devise directly to the corporation, is void, inasmuch as the devisees are not authorized by the statute under which they were incorporated, (6 April, 1784,) nor by any subsequent statute, to take lands by devise. 1 Greenleaf's Ed. Laws N. Y. p. 71, 386; 1 Webster's Ed. Laws N. Y. p. 178; 1 R. L. N. Y. p. 364; 2 R. S. 2d ed. p. 2, § 3. Jackson v. Hammond, (Ca. Cas. Err. 337;) McCartee v. Orph. Asyl. Soc. (9 Cowen R. 437 ;) Theolog. Sem. Auburn v. Childs, (4 Paige, 419.)

II. Being a devise to the corporation direct, it cannot be sustained as a devise for a charitable or pious use, even should it be conceded that it is a good devise for such use. Mc Cartee v. Orphan Asyl. Soc. above cited; Potter v. Chapin, (6 Paige, 649-50; 4 Kent's Com. 507-8.)

III. But it is not a good devise for a public, charitable or pious use; whether it be deemed to be a devise to the corporation itself, or to the trustees in their individual capacity. Shelford on Mort. Am. ed. pp. 61, 63, 78, 83-86; Preston on Leg's. 263-268; Morice v. Bishop Durh. (9 Ves. 399 ;) same case, (10 Ves. 522; 2 Story's Eq. Jurisd'n, pp. 404, 6, 10, 15, 20, 421, 23, 24; Jeremy's Eq. Jurisd❜n, p. 242; 1 Jarman on Wills, pp. 216, 217; 4 Kent, 407, and note; 2 Kent 286, 287, 288, and note to page 288.)

IV. The devise being for purposes foreign to the objects for which the trustees were incorporated, that is, not for the expressed purposes of their own incorporation, they cannot take the lands under this devise. See act of 1784. In the matter of Howe, 1 Paige, 214. Kent's Com. 279, 280; Jackson v. Hartwell, (8 J. R. 422.)

V. The devise is moreover void, for the reason that it creates a trust not recognised by the statute on "Uses and Trusts." 1 R. S. 2d ed. p. 721, §§ 45, 49, 55; 6 Paige, above cited, p. 650.

VI. The provision that the devise is not to take effect until sufficient rents shall have been accumulated to build the house, &c., and this after two lives shall have expired, makes the devise void, as against the provisions of the statute prohibiting perpetuities. 1 R. S. 719, § 14, &c. Shelf. on Mortm. 195. 10 Ves. 538.

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

VII. As the corporation itself cannot manifestly hold for its own use, it follows that the heirs at law of the testator are entitled to the estate, with all the accumulations, and to have an account as claimed in their answer. Van Kleeck v. Dutch Church, (20 Wend. 457.) Shelford on Mortmain, 83.

VIII. The direction in the will for the accumulation of the rents of the real estate, after the death of the widow, is in any event void, and the heirs at law are entitled thereto. 1 R. S. 2d ed. p. 720, 37, 38. Vail v. Vail, (4 Paige, 317.)

DUER, J.-We have lately decided in the case of Tooker v. The Rector of St. Clement's Church, that the words "pious uses," in the Revised Act of 1813, relative to the incorporation of religious societies, must be restricted to such uses as are comprehended within the general objects of a religious corporation, to such as its trustees, where no special direction is given, could lawfully dedicate its property, and as the same words are found in the original act of 1784, and in the same connection, we cannot do otherwise than give to them the same interpretation. It was justly remarked by one of the counsel for the heirs at law, that the terms of the preamble to the act of 1784, furnish an additional proof that the construction we have adopted corresponds with the intentions of the original framers of the law. The main objects of the act, are, in substance, declared to be, to enable religious societies of every denomination, to provide for the decent support of divine worship, in the form their own judgment and conscience may approve, and for this purpose to render them capable in law, of receiving and holding the pious donations of persons desirous to contribute to the support of religion, and it is a very reasonable inference from this language, that it was never contemplated by the legislature, that any society incorporated under the act should become a trustee for any purpose unconnected with the maintenance of its own faith and worship.

The use to which the Trustees of the Methodist Episcopal Church are directed by the will to apply the rents and profits of the real estate which is devised to them, seems entirely foreign to the purposes of the institution as a religious society. It is a general charity, not confined to the members of the church, and it may well be doubted whether such a charity can be regarded as one of the objects to which the trustees of the corporation, in the exercise of their discretion, could lawfully apply its funds. We strongly incline to think that it is not a "pious use" within the meaning of the statute, and were it necessary, would so decide. It is not necessary, however, to place our decision upon this ground, for admitting that the words "pious uses" are to be understood in the largest sense of which they are susceptible, so as to include, not only extrinsic uses, but such as are charitable, as distinguished from those which are pious in the stricter sense of the term, we are, for other reasons, very clearly of opinion, that the devise to the trustees as a corporation, for such is not denied to be its meaning and legal effect, cannot be sustained. It is inconsistent with the prohibitory clause in

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

the Statute of Wills, (2 R. S., § 3, p. 57, original paging,) since it is made directly to a corporation, which, in the words of the statute, is "not expressly authorized by its charter, or by statute, to take by devise." The testator, by the addition of a codicil, republished his will after the Revised Statutes were in force, and thus rendered its construction subject to their provisions, in the same manner, as if it ́had then been originally made. In construing the prohibition in the statute, we cannot reject the word "expressly," as superfluous; we cannot give the same construction to the clause, as if this significant word had not been inserted, for in truth, it is only by its insertion that the prohibition in the present statute is rendered at all different from the exception in the former, and to remove existing doubts as to the construction of the exception, it appears clearly from the original note of the Revisers, was the object of its introduction, (3 R. S. 2d edition.) The evident meaning of the clause as it now stands, is, that in judging of the validity of a devise to a corporation, the intent of the legislature to enable the corporation, to take by devise, is not to be collected by probable reasoning, but that the necessary authority must be given in terms so clear and positive, as not to admit of any other construction; it must be expressed, not implied. It cannot be said that the act of 1784 contains an express authority to the societies incorporated under it to take by devise; it is certain, that if such an authority is given at all, it is given only by implication. Hence, unless we disregard entirely the prohibition in the statute, we must declare that the devise in this case is illegal and void.

It is said, however, that the corporate powers of the church to which this devise is made, cannot be affected by the prohibitory clause in the Revised Statutes, since the prohibition ought not to be construed as applying to existing corporations, so as to take from them any rights or powers which they possessed by virtue of any previous grant. This church has been a corporation more than half a century; it was incorporated under the act of 1784, and the argument is, that if by the fair interpretation of that act, it was authorized to take by devise, this authority, although given only by implication, could not be revoked or altered by any subsequent action of the legislature. The prohibition in the statute, if construed as such a revocation, would be an unconstitutional exercise of power, which we cannot presume was intended by the legislature, and which, at any rate, a court of justice will refuse to sanction. The reasoning is specious, but we are satisfied that it proceeds upon an erroneous view of the powers and intentions of the legislature. The prohibition in the statute, acts upon individuals as testators, and forbids them to make a devise to any corporation, not authorized to take by devise in the manner and terms that the statute requires. The power of individuals to devise their lands, is the creature of positive law, and, as by the repeal of the statute in which it is given, it may be abrogated in toto, it is a necessary consequence that its exercise may be modified and restricted at the pleasure of the legislature. It is true, that by the repeal or alteration of the statute of wills, the rights of a corporation, as they previously existed, may be incidentally affected, but they are affected not

N. Y. Superior Court.-Ayers, &c., v. Trusteee, &c.

by an alteration of its charter, but by the change of a general municipal law. To make such changes is the province, and frequently the duty of the legislature; its power to make them is inherent and inalienable, and the rights of all persons, artificial as well as natural, corporations as well as individuals, are of necessity subject to its exercise. As to the actual intentions of the legislature, we are satisfied that the principal object of the alteration in the statute, which the revisers proposed, was to put an end to existing doubts as to the capacity of religious corporations, incorporated under the act of 1813, and previous acts on the same subject, to take by devise, and these doubts were meant to be terminated by compelling courts of justice, so to construe these acts as to exclude the possible implication that such an authority was given. This is rendered evident by the reference made by the revisors of the act of 1813, for they certainly never meant to say, as the counsel for the executors seem to have supposed, that this act, which in its terms is substantially the same as that of 1784, contains an express authority to religious corporations to take by devise; their meaning was directly the reverse.

Let it, however, be admitted that the validity of the devise in this case is not to be determined by a reference to the prohibition in the revised statutes, but that the sole inquiry is, whether the corporation, to which the devise is made, was authorized to take by devise, by the terms of the statute under which it was incorporated. Our opinion, then, is, that the question to which this inquiry leads can no longer be regarded as open. It is the settled construction of the act of 1784, that the societies incorporated under it have no capacity to take by devise. Nearly half a century has elapsed since this construction was given to the act by the Supreme Court, in the case of Jackson v. Hammond, (2 Caines' Cases in Error, 337,) and the authority of this decision, and the propriety of the construction which it sanctions, were most distinctly admitted by the Court of Errors, in Mc Cartee v. The Orphan Asylum, (9 Cowen, pp. 508, 509.) Indeed, it was partly upon the authority of Jackson v Hammond, that the decree in Mc Cartee v. The Orphan Asylum, appears to have been founded.

Nor shall we rest our opinion as to the true construction of the act of 1784, before the mere authority of the cases to which we have referred, for, although the reasoning of the learned judge who delivered the opinion of the court in Jackson v. Hammond, is not quite satisfactory, of the correctness of the decision itself, we entertain no doubt. It was admitted upon the argument that the general words in the 3d section of the act of 1784, by which religious societies, when incorporated, are empowered to have, take, receive, purchase and acquire, real estate, if construed without reference to other parts of the law, convey no authority to take by devise, so as to repeal, in regard to these corporations, the old exception in the statute of wills, but it was contended that the intention of the legislature, that these general words should be thus construed, is rendered apparent by the expressions used in the 4th section of the act, which contain, it was alleged, a distinct recognition of the capacity of the societies, meant to be in

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

corporated, to take by devise, by declaring or admitting the validity of devises that had been previously made to them. It is, however, very clear to our minds, that the language in the 4th section, which is relied on, contains no such declaration or admission; nor is it possible to believe, that the framers of the law had any faith in the validity of devises which as made to unincorporated religious societies, or to their use, were clearly void, both by the rules of the common law, and by the operation of the statutes of mortmain. Indeed, the very terms of the law reveal the conviction of its authors, that the previous gifts, grants and devises, of which they speak, were, upon legal grounds, liable to be defeated. We, therefore, give our entire assent to the observations of Mr. Wood, that the design of the legislature, in the 4th section, was only to confirm the societies that might become incorporated under the act in the possession and enjoyment of the lands and other property which they then held, without any regard to the nature or source of the title under which their possession was acquired. The legislature meant to remedy, so far as its power extended, existing defects of title, but did not mean, as the omission of the word "devise," in the 5th section clearly shows, to relieve religious societies, when incorporated, from the exception of the statute of wills, by clothing them with a privilege and authority, which, for centuries past, the policy of the law had denied to all corporations.

As the devise to the trustees, &c., of the Methodist Church must be declared illegal and void, we are next to consider what are the consequences of its invalidity. Has the real estate, which it embraces, descended to the heirs at law as in cases of intestacy? or must the trust which is annexed to the devise, be sustained as valid, and be carried into execution under such directions as the court may give? The counsel for the executors contend, that the trust is valid as a charitable use, and that according to the established doctrine of equity, the disability of the trustee forms no impediment to its execution by the court, while on the other hand, the counsel for the heirs at law, not only deny that the trust is valid as a charitable or public use, but insist that the illegality of the devise, draws after it, as a necessary consequence, the invalidity of the trust, even were it true that if created in a different mode, its execution might be decreed. In our judgment, exactly the same questions arose in the case of Mc Cartee v. The Orphan Asylum, and their decision was of necessity involved in the decree, which the Court of Errors then pronounced. It may be thought very difficult to reconcile that decree, not only with the English cases, but with prior decisions in this State; but till an opposite doctrine shall have been established by the Court of Appeals, we are bound to say that it has settled the law, that a devise to a corporation, not authorized by law to take by devise, if directly made, although clothed with a trust, is absolutely void, so that the property descends to the heir, not charged with the trust, but as in a case of entire intestacy. The testator is judged to have died intestate as to all the property that the devise embraces. That such is the necessary effect of the decision of the Court of Errors, a few observations will render apparent.