Mc'Cartee v. Orphan Asylum Society

The will of the testator declares, that if he left any child alive at the time of his death, the executors should receive the rents and profits for the benefit of süch child, until it should attain the age of 21 years or marry.

The next clause devises the rest and residue of the real and personal estate to the respondents, to take effect immediately after debts and legacies are paid, if the testator should leave ño child; and if he should leave a child, then upon the death, marriage, or attaining of 21 years of age of such child.

From this statement, it is evident that had there been no child, the devise was direct to the respondents; and in that event, it was undoubtedly intended they should take immediately. But there was a child; and consequently no és

Thus far the intent is plainbut it will be observed that the will had not yet declared in whom the legal estate should be vested from and after the.death of the testator, until the death, marriage, or lawful age of the child that might be left. As the executors were to receive the rents and profits if the contingency contemplated should happen, it was advisable to give them the legal estate during the continuance of this trust; and accordingly we find that the next clause in the will makes such a provision. It devises to the executors all the real estate subject to the trust aforesaid. This manifestly refers to such trusts as the executors were to perform. What are they 1 No other trusts were imposed on them, excepting that they should apply the rents and profits for the benefit of the child, in the manner the testator had designated. , *They did not hold the real estate in trust for the respondents, to be conveyed to them on the happening of a certain event, for this (to my mind) conclusive reason ; there was no necessity that they should hold for the respondents, because the testator had declared.that, on a certain contingency, the estate should go to the respondents. That event has happened ; and, therefore, by force of the will, (if they are capable of taking,) they took the legal estate directly. They needed not the aid of trustees to pass this estate to them. I consider their title as accruing independent of any act or thing to be done by the tras tees.

Then follows a further direction, which is somewhat at variance with the disposition made before. The testator proceeds to declare that when the child shall attain 21 years, or marry, his real estate should be sold by the

-Again; the right topurehase is-incident to-a corporation, an^ would exist if the statute had not conferred the -right, But I presume it will not be contended that this incidental right, had the act of incorporation been silent, would have authorised the corporation to take by devise. Why .then should the term purchase, when used in the act, have a more extensive signification than it -would -have’ as incidental to the power of the corporation? It-seems-to me that, in both cases the meaning of the term is the same. The act conferred no additional power in this respect. The princi

That the right to purchase in a corporation does not include the right to take by devise, appears to have been the opinion of the supreme court in the case of Jackson v. Hammond, (2 Cain. Cas. in Err. 337.) The opinion was delivered by Mr. Justice-Benson. The construction of the act of April 6th, 1784, enabling, churches to incorporate themselves, was under consideration. The act declares that the trustees appointed under it shall have good right and lawful authority to take, acquire and purchase lands, tenements and hereditaments. The expressions are as ample as in the act incorporating the Orphan Asylum Society. It is manifest, however, the court did not consider those words as conferring a right to take by devise. It was contended, that by the statute of the 6th of April, 1784, enabling churches to incorporate themselves, they are constructively, (with respect to lands possessed or held by them at the time of their incorporation,) made capable of taking by devise. The court held that the term devise in that act referred to goods and chattels, not to lands and tenements. And it may here be observed, that whether that construction was well founded or not, the term devise there used had reference only to such property as the church or congregation may have held before, and at the time of incorporation. As to future acquisitions, *the 5th section of the act regulates them in the terms I have already stated. Under that clause it was considered that a power to take by devise was not granted. It was not, it is true, the direct question before the court; but the view taken is nevertheless entitled to respect, and is of considerable weight in deciding the construction of similar words in a subsequent statute. From the scope of the opinion, I infer that the learned judge entertained no doubt on this point. He observes, “ the only manner in which, had they been incorporated, they were capable of taking, being by gift or grant, and not by deviseand again, when speaking of the construction contended for, that the word devise applied to lands which the church held before incorporation, he fur

I have thus very briefly given my views as to the construction of this statute ; and arrived at a conclusion that the exception in the statute- of wills is not affected by the grant of powers to the Orphan Asylum Society.

It is unnecessary for me to discuss the" various- other questions which have been examined by his honor the chancellor ; as my opinion upon the whole case rests on this ground; that, on the death of the child, the estate was devised directly to the respondents ; that after that event, there were no trusts remaining for the executors to execute, those imposed upon them by the testator having ceased; and that the devise being void by the statute of wills, the decree in the court below should be reversed.

Sutherland, J. concurred.

* Savage," Ch. J. being related to the appellant, gave no opinion.

Allen, Dayan, Elsworth, Hager, Hart, Lake, McCarty, McMartin, Waterman and Wilkeson, Senators, concurred.

Crary, Senator. (After stating the facts.) The respondents claim the whole residuary estate of the testator, The claim to the real estate is resisted, on the ground that the respondents, being a corporation, are disabled by the exception in the statute concerning wills to take by devise

By this act, it is provided, that any person having any estate in lands, may at his own free will and pleasure, give and devise the same to any person or persons, (except

This exception is found m “ an act to reduce the laws concerning wills into one statute,” passed 3d of March, 1787. (See 1 Greenleaf's ed. L. 387.) At that period the people of this state could not have been jealous of colórate bodies, for very few existed. We must then look for the reason of this exception to some other cause; and as we find it in the statute of Henry 8th, it is most likely it was adopted, upon the authority of the parliament of Great Britain; and no question having arisen upon it in this state, the exception has been continued in the subsequent revisions of the laws.

If the right to dispose of real estate by will is created by statute, then the legislature may qualify the right; but if it existed before the statute, then the legislature by affirming it in one part, cannot restrain the exercise of it in another.

Sir William Blackstone says, (2 Com. 373,) “it seems sufficiently clear, that before the Conquest, lands were devisable by will. But upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feudal doctrine of non-alienation without the consent of the lord.”

Paley, in his Philosophy, (ch. 13,) says, “ since the Conquest, lands in this country could not be devised by will, till within, little more than two hundred years ago, when this *privilege was restored to the subject, by an act of parliament in the latter end of the reign of Henry the Eighth.”

Robertson, in his history of Charles the Fifth, (1 Vol. note 8 of proofs and illustrations,) says, “ the victorious troops divided the conquered lands. Whatever portion of them fell to a soldier, he seized as the recompense due to his valor, as a settlement acquired by his own sword. He took possession of it as a freeman in full property. He enjoyed it during his own life, and could dispose of it at pleasure, or transmit it as an inheritance to his children. Thus property in land became fixed. It was at the same time

1 Allodium, as defined by Blackstone, is the land possessed by a man in his own right, without owing any rent or service to any superior. (2 Bl. Com. 104.)

The absolute rights of each individual are the right of personal security, the right of personal liberty, and the right of private property. (3 Bl. Com. 119.)'

It is the last, that of private property, which has been invaded by the exception in the statute concerning wills.

And I now advert again to the argument, that if the devise in question is not within the exception in the act concerning wills, it is not in the power of the legislature to restrain devises to corporate bodies. And I ask why it should be ?

The very definition of municipal law limits the power of the legislature to commanding what is right, and prohibiting what is wrong.

If the legislature can restrain us as it respects our charitable donations, they may also compel us to make them; for whatever is a subject of legislation may be commanded as well as prohibited.

And if the legislature can declare a devise to the Orphan Asylum invalid, they may, upon the same principle, make us pay tithes of all we possess.

This is a free representative government; and one of the prominent features by which it is distinguished from a despotic one is, the preservation and protection of individual right; for it can make no difference with the citizen what the form of government is that oppresses him, and deprives him of his right; whether it consists of one tyrant or one hundred and sixty, if his suffering and deprivation are the same.

*It is difficult to conceive on what principle men elected, by the people for public purposes, can limit and restrain individuals in the exercise of their legitimate rights.

■ If individuals give up any part of their rights by becoming members of society, it is that they may obtain protection for' such as remain ; and on the same principle that

If courts of justice have occasion to advert to first principles the object should be the protection of individual right and not to confirm legislative usurpation. And in a government founded on principle, it is the duty of the judiciary department to decide in favor of individual right, when it is required to be done, on fundamental principles, though it should be to declare invalid an act of the legislature. The contest which ended in the separation of these United States from Great Britain, was a contest for individual right, intended to be secured by the Constitution of the United States. But of what avail is it, that no law shall be passed impairing the obligation of a contract, or that private property shall not be taken for public use, without a just compensation, if the paramount right to dispose of our property by will is denied us ?

In a government founded on principle, the application of it is the only limitation of power. The judiciary, although the weakest, is the most independent branch of the government, and the only branch that can, by the force of principle, limit and restrain the exercise of power. Can it then admit of a doubt, that it is the duty of the judiciary so to apply principle as to prevent any encroachment by the legislature upon individual right ?

Although I have taken a view of the subject somewhat different from the chancellor, I am however satisfied with the different views which he has taken. Yet I think his decree ought to be so modified as to allow the appellant his costs; inasmuch as he has acted under the advice of counsel, and I see nothing reprehensible in his conduct.

*Stebbins, Senator. The merits of this case do not appear to me to lie beneath the mass of learning which has been displayed in the investigation of the case.

As I view it, the inquiries whether a devise of lands to a corporation directly, is void or not under the statute of wills, and if void, whether such a devise can be sustained in equity

The questions presented by the case, as I view it, are first, whether the testator (Philip Jacobs) devised the real estate in question to the corporation directly,, or to his executors, subject to the trusts- mentioned in the will; second, whether the devise to trustees for the use of the respondents, is a- valid devise, under which they can take as cestuis que use; and third, whether the use is executed by the statute of uses, and-if so, the effect.

To carry into effect the intention of the testator, is a cardinal rule in the construction of wills ; and to do so, it is necessary to give effect to every part of the instrument, if possible.

The testator devises all the rest, residue and remainder of his estate real and personal, (which includes the premises in question,) to The Orphan Asylum Society, to be applied to the charitable purposes, for which the association was established; to take effect immediately after the payment of debts and legacies, if he should leave no child; but if he should leave a child, then to take effect upon the death, intermarriage, or attaining of age of such child.

This, it is contended, is a direct devise to the respondents of the real estate in question ; and, standing alone, it would undoubtedly be susceptible of no other construction ; but he proceeds to devise all his real estate to his. executors, subject to the trust aforesaidand declares his will to be,- that whenever such child should attain the age of twenty-one years, or marry, his real estate should be sold by his executors, and one half the proceeds paid to such child.-

The testator had a posthumous child, which died at about the age of two years. Had that child lived and attained to the age of twenty-one years, no doubt can be entertained of *the intention of the testator, that it should then be entitled to a moiety of the proceeds of the real estate, which was to be sold by the executors. But such a provision is in hostility to the previous devise to the respondents, to take effect upon the coming of age of the child. Upon the hap

To give effect to every part of the will, it seems to have been the obvious intention of the testator, if he should leave a child, to devise the real ,estate to, his executors in trust for the society, if such child should die under age and unmarried; if not, then upon the .maturity or marriage of the child, to be sold, and the proceeds divided between the society and such child.

The executors, then, took the estate at the death of the testator, subject to these trusts; - and the question arises whether, at the death of the child under age and unmarried, the real estate was, by the terms of the mil, to vest in the corporation.

It has been- said upon the argument, that if the executors took the estate as trustees, they can only be divested of that ' trust by their own grant, or by operation of the statute of uses; but: I can perceive-no objection (provided the terms of the will require it,) to their holding the estate in trust, until the happening of an event such as the death of this child; and then that the fee should vest in other persons, by way of executory devise. Was it then the intention of the testator, upon the happening of this contingency, that the fee should vest in the corporation, or continue in the trustees for their benefit 1 The latter appears to me to be the fair construction of:the-will.

In one paragraph he devises, after payment of debts and legacies, “all the rest, residue, and-remainder of his estate real and personal, to the respondents, to take effect upon the death of this child; and in the next he devises his real estate to his executors, subject to the,trust aforesaid. It was a *use, therefore, or beneficial interest, which I suppose be intended to devise to the respondents, leaving the fee in the hands of the .trustees.

If, as I have endeavored to show, it was r.ot the intention

The next and more important question is, whether the x ... corporation can take the use under this will, notwithstanding the provisions of our statute of wills. This statute enacts that any person having any estate of inheritance in any lands, tenements or hereditaments, may give or devise the samé, or any rent or profit out of the same, to any person or persons, (except bodies politic and corporate,) by his last will and testament, or by any other act by him lawfully executed; and it is contended, that if a devise to a corporation directly would be void, a devise of the usé is also void.

Although in England; under the Saxons, lands were deviable by will at common law, yet at the Conquest, and upon the introduction"of the feudal system,'the common law underwent á complete change in this respect; and an estate in fee simple in lands was no longer devisable. It became inconsistent with the nature of that system, that a tenant should have an unlimited power tó devise his lands ; for' the reason that he might devisé to persons incapable of performing- feudal services. The power of alienation by devise, (except of a chattel interest,) is in England, then, to be traced to the statutes of wills of the 32 Hen. 8 , ch. 1, and 34 Hen. 8 , ch. 5.

Our statute of wills is a transcript of these, with the additional enumeration of rents and profits. It is contended that" the terms rents and profits mentioned in the statute, are intended to describe a use, and that as the lands cannot, so the use also cannot, be devised to a corporation under this" statute.

*1 apprehend, however, there is a material difference between rents and profits, and that which has long been known under the denomination of a use.

Rents and profits are incorporeal hereditaments ; but a use is not. A use is said to be neither jus in re nor ad rem,

If, then, a use is not comprehended in the terms of the statute, the argument rests upon the ground that if a devise of land to the corporation would have been invalid, the demise of the use is equally so.

It might perhaps be conceded, that if corporations were prohibited by statute from taking the fee by devise, (which by the by, is not the case,) the law would not allow them to take the use. But the history of the English law furnishes at least a plausible argument against such a proposition.

Corporations were prohibited by several statutes of mortmain from holding lands ; yet it was deemed necessary to enact the statute of 15 Rich. 2 , ch. 5, declaring uses subject to the statutes of mortmain. (Chudleigh’s case, 1 Rep. 120.)

But the statute of wills is an enabling statute, and not prohibitory. Before this statute, individuals had no capacity *to devise lands ; but this enabled them to do so, except to corporations. In conferring the capacity to devise, the legislature withheld the capacity to devise to a corporation ; and for what reason ?

Before the statute of wills, corporations were prohibited

The history of the statute, I think, fortifies this view . of it. In the first statute of wills, (32 Hen.: 8, ,ch. 1,) corporations were not excepted, and were therefore enabled to take by devise in common with other persons, contrary to the policy of the statutes of mortmain; but two years after-wards the parliament, finding the mortmain acts- so- far epealed by the statute of wills, passed a new statute, ( 34 Hen. 8 , ch. 5,) not prohibiting corporations m terms from taking under the statute of wills, but entitled, “ an act for the explanation of the statute of wills,” in which they -re-enact the provisions of the first statute of,wills, and introduce the exception as to corporations ; not, therefore, expressly prohibiting corporations from taking, but qualifying the capacity to devise. The intention seems to have been to rely upon the mortmain laws, to keep property from corporations and to qualify the statute of wills so as not to interfere with those prohibitory acts.

The distinction is a wide one between an incapacity to devise and a prohibition against taking; for although there may be an incapacity to devise directly to a corporation,' yet such incapacity will not prevent the corporation from taking by. grant from the devisee in trust, if there is no prohibition against their taking. So, too, there be an incapa city to devise lands to a corporation, and yet the corporation may-*take a use. But in either case, if prohibited from taking, the law would not probably allow that to be indirectly done which was directly prohibited.

If, then, there is no other reason arising from the, statute of wills why corporations may not take land by devise, except the want of capacity in the devisor to convey, there

And if corporations cannot take by devise, merely for want of capacity to take in that particular way, the cases of a conveyance from a wife to her husband through the intervention of a trustee, and of a tenant in tail to a purchaser by means of a common recovery, seem to be conclusive to show that an indirect mode of conveyance is no fraud upon the law when resorted to only to remedy a want of capacity to convey directly.

But it is contended, that inasmuch as our legislature saw fit to repeal the English mortmain acts, including the statute of 9 Geo. 2, ch. 36, which prohibited all charitable bequests unless made and enrolled one year previous to the death of the donor, the policy of retaining the exception in the statute of wills, was to prevent impositions upon persons in extremis who might easily be persuaded to dispose of property to ecclesiastical incorporations for charitable uses, after it should no longer be of use to themselves.

Such an object, however, would not seem to comport with the policy of the legislature, who neither saw fit to prohibit corporations from holding lands, nor to impose the restraints of the statute of 9 Geo. 2.

If the policy was to prevent impositions, why was not the exception in the statute aimed at devises for religious or charitable purposes, instead of devises to corporations gen-rally ? There surely is no danger of persons making improvident devises to monied or manufacturing corporations.

*The English statutes, which the legislature were reenacting, furnished every variety of prohibition against improvident devises, much better calculated to effect the object than any general prohibition of devises to corporations. They guarded against improvident devises, whether io individuals or corporations, for religious, superstitious or charitable uses.

Corporations, 'since the statute of wills, stand in the same situation as to taking lands by devise, as all natural persons stood in before that statute. If, therefore, a use was devisable before the statute, a corporation may take a use by devise since the statute, especially if it be such as is not executed by the statute of uses.

It is said by Cruise that uses were devisable, though lands were not; and persons, by that means, acquired a disposition of property for the benefit of their families, which they had not otherwise. They were the invention of ecclesiastics to evade the statutes of mortmain. And after the 15th Rich. 2, ch. 5, which subjected them to the statutes of mortmain, the practice of conveying to uses was continued, as the most effectual mode of evading the hardships of the feudal tenures, and of securing estates from forfeiture for treason. They became general, and were applied to purposes inconsistent with the policy of the government. Feoffments were made secretly; so that persons who had to sue, found it difficult to ascertain the right tenant against whom to bring their pracipe. Widows were deprived of their dower, husbands of their curtesy, purchasers and creditors were defrauded, the * king and other lords lost their profits, fines, &c., and obscurity and confusion of titles prevailed.

During the long and bitter contest between the houses of York and Lancaster, most of the lands in England are said to have been conveyed to uses. As these evils came

The object of the crown was to re-assert its rights of Wardship, and other feudal profits out of the lands of the nobility; and the intention of parliament was to abolish Uses by changing them into legal estates, and subjecting them to the rules of common law tenures.

The construction of this act, however, in a great measure defeated the intention of the legislature. Transferring the possession to the use by this statute gave rise to a mode of conveyance, by this means, which, on account of its convenience, by dispensing with the ceremony of livery, Soon came into general use; so that uses, instead of being suppressed, were resorted to as the common and most simple mode of conveyance. And it being determined that all uses were not executed by that statute, its operation was circumscribed; and a large class of uses were left untouched, and have continued to this day under the denomination of trusts, constituting one of the principal branches of equity jurisdiction.

It Was said by Lord Hardwicke, (1 Atk. 591,) that this statute, made upon great consideration, introduced in a solemn and pompous manner, by its strict construction has had no other effect than to add at most three words to a conveyance.

*Before the statute of uses, we have seen they were devisable to natural persons, although there was then no statute of wills nor any common law capacity to devise.

If it is meant that during this period a cestui que use, under a feoffment or other conveyance, was, by force .of the statute of uses, to be regarded as the owner of the land so far as to incapacitate him to devise such use, he having no capacity to devise land, I perceive no objection to the proposition.

But to render the doctrine applicable to this case, it must go farther, and be held to mean that a use created by will is converted into land by the statute, and therefore was not devisable.

One of the things necessary to the execution of a use by the statute is “ a use in esseand it seems to be difficult to conceive how the statute can operate upon a use until it shall be raised, and in existence ; and if a use was raised in this case, it can only be in virtue of a capacity to devise such an interest. There being, then, a capacity to devise the use, the .operation of the statute upon it, if it is such a use as could be executed by the statute, it appears to me could be no other than by annexing the possession to the use, to vest the estate in the devisee, who would take, not as devisee, but under the statute of uses. And there would seem to be no objection to the execution of the use in this case, if the position is correct that the corporation are not prohibited from taking, whatever may be the objection as to the capacity of the testator to devise to it directly; foi it has been held in the case of a feoffment by the husband to A, for the use of his wife, that such a use *is executed by the statute, notwithstanding the husband had no capacity to convey .directly to his wife. .(Cruis. Dig. tit. 11, ch. 3, s. 28.)

The question then arises, whether the use'in this cáée is within the statute'; and the' examination of it necessarily casts us back Upon the will, id seek for the intention’ of the testator. He devises the estate to trustees, in trust for the Orphan Asylumt Society, to be applied to the charitable purposes for which thé association was established. His object was not to benefit the society; but through it, to apply the estate to the charitable purposes for which the society was organized. The society itself is a trustee; and has- a trust to perform,- which a court of equity Would undoubtedly enforce. It is a devise to trustees for the' use of the society, as trustees for certain charitable pttrposes.

Suppose the corporation to be- dissolved by the expiration of its charter ;■ it hever could have been the intention of the testator that these funds should be diverted from the charitable purposes to which he devoted them ;J and a court of equity he’véf Would permit it. If the corporation should, by dissolution or otherwise, become incompetent to execute the trust, I see. nothing to' distinguish the case from that of the ordinary one of a failure of th'é' írüsteé, in which the court Would act by the appointment of another.

Again, suppose the' powers of the corporation to be enlarged by a statute authorizing it to' do banking or insurance business, in addition to the charitable operations for which it was first incorporated; will it be contended that it was the intention of the testator; that these funds should be used, or that the" laW Would permit them to be used in such banking or insurance operations, instead of being applied to the charitable purposes designated in the will ? I apprehend not.

If it is granted, then, that the corporation itself had a trust to execute under this will, it is a case not within the statute of uses ; for that statute can only execute the first use, which, *in this case, would vest the estate in the cor

A trust is a use not executed by the statute; and the author of the Touchstone remarks, (p. 507, n. (1),) that “ one of the modes of creating a trust, is said to be where lands are limited to the use of A. in trust to permit B. to receive the rents and profits ; for the statute can only execute the first use.

The conclusions which follow my view of the case are, that the devise of the real estate in question, was not to the corporation directly, but to the executors for the use of the corporation upon the contingency which has happened, to be appropriated to certain charitable purposes :

That under the statute of wills, there is a mere incapacity in corporations to take lands by devise, and not a prohibition against their taking:

That a use was devisable at common law before the statute of wills; and therefore that this corporation may take a use by devise, not being prohibited by statute from taking either a use or the land itself:

That the use in this case is not such as could be executed by the statute of uses; or if it is, that the operation of the statute would not invalidate the devise, but vest the estate in the corporation.

If these propositions are established, it follows that the respondents are entitled to the estate in question; and that the decree of the court of chancery is, at least, substantially correct.

Burrows, Gardiner, Haight McCall and Smith, senators, concurred, that the decree should be affirmed.

Decree of reversal as to the real estate