author: Duer, J.

text:
    Ayres and others, Executors, &c. of Brower v. The Trustees of the Methodist Episcopal Church in the City of New York, and Margaret Warner and others.
    A religions society incorporated under the general act of 1784, cannot, since the revised statutes of 1830, take lands by devise.

      Semb. Such a society could not take by devise at any time, under the general act of 1784.
    The power of individuals to devise their lands, is the creature of positive law, and it may be abrogated by a repeal of the law, or modified and restricted at the pleasure of the legislature, so as to exclude classes of either natural or artificial persons from deriving benefit from its exercise.
    Such an exclusion does not alter the charter of an existing corporation ; it is a change of the municipal law which incidentally affects the corporation.
    The execution, after the revised statutes, of a codicil to a will made before they took effect, renders the construction of the will subject to the provisions of those statutes. A devise to a religious corporation, which is invalid from the incapacity of the corporation to take by devise, cannot be sustained as a charitable or public use, to be executed by a court of equity ; but the lands devised descend to the heirs at law of the testator, as in a case of entire intestacy.
    Although the court of chancery in tins state may have succeeded to the jurisdiction of the English chancery, in regard to the execution and administration of chanties in general, it did not succeed to the execution of charities of which the purpose is indefinite, and not fixing itself with certainty upon any object, and which in England, therefore, belong to the king as parens patria,

    Therefore, a devise to a corporation not capable of taking by devise, in trust, to apply the rents to the support of aged persons, not designated by class, or otherwise than residents in places where there should be a house of worship, cannot be executed by chancery, and is illegal and void.
    The only law of charitable uses in force in this state, at the revolution, was the statute of Elizabeth, and was abrogated with that statute by the legislature in ,1788. Per Duer, J.

    The revised statutes, !i Of Uses and Trusts,” apply to public and charitable uses, as well as all others ; and such uses, if they existed in this state, independent of the statute of Elizabeth, were forbidden by the revised statutes. Per Duel, J.

    (Before Dulr, Mason, and Campbell, I. J.)
    Oct. 6, 8 ;
    Dec. 8, 1849.
    The bill in tills cause was filed in the supreme court in equity, by the executors of Abraham E. Brower, late of the city of Brooklyn, deceased, against The Trustees of the Corporation of the Methodist Episcopal Church in the city of New York, and against the surviving devisees, heirs, and next of kin of Brower, for a construction of his last will and testament, to settle the validity of the devises and bequests thereby made, and to discharge the executors therefrom, if the same were invalid. The testator died on the sixth day of August, 1832. By his last will and testament, dated April 18th, 1828, be devised and gave as follows, after several bequests, among which were successive limitations of the income of the bulk of his estate to his widow and to Robert Snow for life.
    “ Item — I give and bequeath to my beloved wife, Mary Brower, all the income of my estate, both real and personal, (except one hundred dollars a year,) while she shall remain my widow, for her own use and benefit, also all my household furniture, all rny plate, a silver watch, and all my books,
    “ Item — After the death of my wife Mary, and my friend Robert Snowy my executors will secure what money may belong to my estate, and together with the rents and income of my said estate, in the Savings’ bank, or otherwise as they may think proper, until a sufficient sum is collected to build a two story brick house on the north side of my lot number 100 Washington street, Brooklyn, as near the plan herewith annexed, as they may think proper.
    “ Item — When the aforesaid house shall be completed, I then give, bequeath and devise unto the trustees of the Methodist Episcopal Church in the city of New York and state of New York, and to their successors in office, all that certain house and lot of ground, situate, lying and being in the second ward of the city of New York, state of New York, and now known as 22 Maiden Lane street, which is bounded as follows, to wit,” (describing it,) “ and also all that certain house and lot of ground situate, lying and being in the village of Brooklyn, in Kings county, in the state of New York, and now known as 100 Washington street, which is bounded as follows (describing it,) “ to have and to hold the said lots of ground and houses, tenements and premises, with messuages thereon erected, to them, the said trustees, and their successors in office for ever, in trust, nevertheless, and for the express purpose hereinafter mentioned, to wit: To take and receive the rents, issues, profits and incomes of said bouses and tenements yearly, and every year, and which shall be the net amount thereof, and to apply and appropriate the same yearly and every year to the maintenance and support of one or more worthy and moral persons of the age of sixty years and upwards, every one of which aged persons shall be a resident, live in a town or village where there shall be at least one place or house of public worship, and the said income of the said houses and lots shall he regularly accounted for once in every seven years, on the first day of January in such year, either to the court of chancery, or to the mayor for the time being of the city of Hew York, it being my desire and will, that this fund shall be carefully and humanely applied, fairly and economically, so as to work the greatest benefit for the objects intended by me. To secure the same perpetually and safely, I authorize the buildings erected thereon to be constantly insured and protected against damage or losses by fire. I further authorize and direct, that bo much of the rents, profits and income of said houses and lots as is necessary from time to time to repair or rebuild said houses, shall be taken and applied to said purpose at the discretion of said trustees. And my executors, when delivering up said houses to said trustees, will please to put them in good repair, out of any money or securities they may then have, and to deliver them free of all debts.’'’
    On the 8th day of December, 1831, the testator executed with due formalities, a codicil to this will, not affecting, however, the devise, to the Methodist, Church.
    The widow survived R. Snow, and died in 1845. The testator left only a trifling amount of personal property. The income, accumulated after her death, when the bill was filed in November, 1847, was insufficient to erect the house on the "Washington street lot, but it would be sufficient by May, 1850, to which time the executors had demised the real estate.
    The heirs of Brower at his death, were two nephews and a great niece; the latter of whom died while an infant, without issue. The children of the two nephews insisted that the devises to the Methodist Church were void, and that they were entitled to the estate. One of them commenced an ejectment against the tenants of the executors, and other suits were threatened.
    The heirs put in an answer, asserting their claim ; and the defendants the Methodist Church also answered, insisting on the validity of the devises and bequests in the will.
    The cause was transferred from the supreme court, and brought to a hearing on the pleadings.
    IF. B. lawrence, for the plaintiffs,
    and the defendants the Methodist Church.
    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 ot the estate. (2 lí. S. 67, § 70; Depeyster v. Clendining, 8 Paige 304 ; Jackson v. Hammoncl, 2- Caines in Er. 337; Bogy,shall v. Pelton, 7 J. C. E. 292 ; Jackson v. Hartwell, 8 J. id. 422 ; Wright v. Trustees of Meth. Epis. Ch., 1 Iloff. Ch. IT 238 ; 3 Id. S. 627, Rev. notes ; Trustees of Philips’ Academy v. King, 12 Mass. 546; Baptist Association v. Hart, 4 Wheat. 1; Me Cartee v. Orphan Asylum, 9 Cow. 437; Vidal v. Girard's Errs, 2 How. 127 ; 4 Kent 288, note; Molt v. Shot-well, 2 Sandf. ('In Id. 46 ; Dutch Ch. in Garden street v. Mott, 7 Paige 78; Barrs Idx. v. Smith, 7 Verm. 241 ; Blacldedge r. Singleton, 8 Muuf. 597 ; Bryson v. Nichols, 2 Hill’s Ch. Idep. So. Car. 121; Mas. s v. Murgatroyd, 1 J. C. Id. 473 ; Monell v. Dickey, 1 J. C. R. 153; Ex'rs of Geitman v. Beardsley, 2 J. C. R. 274; Rogers v. Boss, 4 J. C. Id. 608 ; Warden v. Burts, 2 McCord’s C. K. 76; Eovett v. Buloid, 3 Barb. C. R. 144.)
    II. The devise in trust to the corporation of the Methodist Church is valid.
    I. 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, tbe misnomer is immaterial. (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. Ejeis. Ch., 1 Hoff. 238 ; Dwarris on St. 704; 1 E. L. 214 ; Jackson v. Ilmnmond. 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 tbe 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 bad been previously granted to them. (2 R. S. 57, § 3; 3 It. S. 627, Rev. notes; Dartmouth College v. Woodward, 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 Ecp 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 incompetencv 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 oí the testator, and such was the common law jurisdiction oí chancery ⅛ England, before the 43 Eliz. (Christ's College, 1 W. Bl. 75 ; Potter v, Chapin, 6 Paige 649 ; Eds 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 bo 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 3 R. S. 2d ed. 627, Rev. notes; Dwarris on St. 689, 694 ; Mott v. Shot-well,
      2 Sandf. Olí. E. 46; 2 E. S. 3d ed. 23, 24 ; 3 E. 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 estates of the widow and Robert Snow. This trust estate is not affected by the direction of the executors, analogous 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.

      John Sbsson and Geo, Wood, for the defendants,
    the heirs of Brower.
    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, Ilarn-mond, Ca. Gas. Err. 337 : McCaHee v. Orph. Asyl. Soc. 9 Cowen R. 437 ; Theolog. Sem. Auburn v. Childs, 4 Paige 419.)
    II. Being a devise to the corporation direed, 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. {MeCartee v, Orph. Asyl. Soc. above cited; Potter v. Chapin, 6 Paige 649-504 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 trastees in their individual capacity. (Shelford on Mort. Am. eel. pp. 61, 63, 78, 83-86; Preston on Leg’s. 263-268 ; Morice v. Bishop Durh., 9 Yes. 399 ; 10 Yes. 522; 2 Story’s Eq. Jnrisd’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.)
    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; 2 Kent’s Com. 279, 280 ; Jackson v. Hart-well, 8 J. E. 422.)
    Y. The devise is moreover void, for the reason that it creates a trust not recognised by the statute on “ Uses and Trusts.” (1 E. S. 2d ed. p. 721, || 45, 49, 55 ; 6 Paige above cited, p. 650.)
    YI. 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, §⅜4, &e.: Shelf, on Mortal. 195; 10 Yes. 538.)
    VIL 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 Klseck r, 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 E. S. 2d ed. p. 720, §§ 37, 38 ; Vail v. Vail, 4 Paige 317.)

        а) See Shotwell v. Mott, 2 Sand. Ch. R. 46, 50, 51; Kniskern v. The Lutheran Churches, &c., 1 Ibid. 562; Vidal v. Girard's Executors, 2 Howard’s U. S. Rep. 146, 155 to 161 note, 179, 192 to 196; and Mr. Binney’s most learned and profound argument for the defendants in that case, published by the corporation of the city of Philadelphia.

       See Shotwell v. Mott, ubi supra.

   Duer, J.

We have lately decided in the case of Tucker v. St. Clement's Church , that the words “pious uses,” in the revised act of 1813, relative to the incorporation of religions 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 Lpguage, 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 ownfaith 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 wTere 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 the statute of wills, (2 R. S., § 3, p. 57,) 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 maimer 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 tbe 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, winch 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 tato, 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 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 revisers to 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 1/784-, 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 McCartee v. The Orphan Asylum, (9 Cowen, pp. 508, 509.) Indeed it was partly upon the authority of Jackson v. Hammond, that the decree in McCartee 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, upon 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 third 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 fourth section of the act, which contain, it was alleged, a distinct recognition of the capacity of the societies, meant to be incorporated, 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 fourth section, which is relied on, contains no suck declaration or admission; nor is it possible to believe, that the trainers 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 yifK grants and devises, of which they speak, were, upon legal grounds, liable to he defeated. We. therefore, give our entire assent to the observations of Mr. Wood, that the design of the legislature, in the fourth 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 fifth 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 McCartee v. The Orphan Asylum, and their decision was of necessity involved in the decree, wliicli 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, hut 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.

The devise to the Orphan Asylum Society, which the court, in opposition to the opinion of the chancellor, held to be direct, and therefore void, was not general, so as to give to the society an unlimited power of disposition or application, but the will expressly directed that the property should be applied to the charitable purposes of the institution, that is, to the support and education of orphans. The devise, therefore, plainly and unequivocally created a trust; and as this trust was for purposes which the legislature, by incorporating the society, liad expressly authorized, no doubt could be raised, or indeed was suggested, as to its validity; hence the question, whether, although the devise was void, and the legal estate had descended to the heir, it was not the duty of a court of equity to effectuate the intention of the testator, by decreeing the execution of the trust, necessarily and distinctly arose; nor'is it possible that it could have escaped the attention of counsel or the observation of the court. We have the most abundant evidence that it did not escape such observation, but was thoroughly investigated and maturely considered. Chancellor Jones, in his elaborate opinion, (an opinion which there is no exaggeration in saying, displays almost un-equalled powers of reasoning and research,) after endeavoring to sustain the validity of the devise to the society, states the next question to be, whether upon the supposition that the devise was void in law, as being in effect a devise of land to a corporate body, it was not in the power of the court, as a court of equity, to effectuate the intention of the testator," (9 Cowen 409,) evidently meaning to effectuate bis intention by sustaining the trust and decreeing its execution. lie devotes nearly twenty pages of bis opinion to the examination of this question, and after a full review and careful analysis of the authorities, arrives at the conclusion, that the use to which the testator had devoted his estate, was valid as a charitable use, and the estate chargeable with it as a subsisting trust, and that as chancellor, he had power to establish the trust, and to decree the estate to be settled and conveyed to the uses of the will, (9 Cowen 483;) and, let it be remarked, that if he were justified in these conclusions, his decree, which directed a conveyance to the society to the uses of the will, ought never to have been reversed. It is true, that, the learned judge who delivered the opinion which prevailed in the court of errors, takes no notice of these positions of the chancellor, or of the arguments and authorities upon which they were rested; but as he could not have been ignorant that these positions had been taken, it is certain that lie and the majority who concurred with him, meant deliberately to reject them; otherwise the decree of the chancellor, although it might have been modified, could not have been wholly reversed, and the property have been permitted to descend to the heirs, discharged from the trust. It is impossible to explain the actual decision upon any other ground, than that in the judgment of the court, the devise was absolutely void in relation to the trust as well as the legal estate.

Were it possible for us, however, to evade this conclusion, and escape by any means from the authority of this decision, we should still be compelled to say, that we have no ’power as a court of equity, to decree the execution of the particular trust which this will creates; we fully admit the general rule, that a trust is not to be defeated merely from the disability or failure of a trustee; but the rule is not to be applied, unless the court, in the exercise of its proper jurisdiction, may decree the execution of the trust. The trust that we are now required to execute, is a general indefinite charity, the persons to whose use and benefit the rents and profits are to be applied, not being designated with certainty in the will, but the selection being left to depend upon a future exercise of discretion. Hence, as from the illegality of the devise there is no trustee, so from the nature of the use there is no cestui que trust, and in England the rule is fully settled, that in such cases the disposition of the charity belongs to the king as fatrem patriae, and must be carried into execution under his sign manual, and not by the court of chancery, in the exercise of its ordinary and proper jurisdiction. It would be easy to cite numerous cases as proving the existence of the rale, but as all the preceding cases are reviewed and weighed by Lord Eldon in his elaborate opinion in the case of Moggridge v. Thackwell, it is needless to refer to any other authority. In that case his lordship states, as the result of a most diligent and searching examination, that the general principle most reconcilable to the cases, is, that where the purpose of the charity is general and indefinite, not fixing itself with certainty upon any object, the disposition is in the king by sign manual, and that the court will only take the administration of the trust where the execution is to be by a trustee. (7 Vesey, jr. 63 and 86; Carey v. Abbott, Ibid. 490.) Even in England, therefore, the present trust would be void in equity as well as at law, and could only be rendered effectual by the direct exercise of the royal prerogative. It is possible that the courts of equity in this state have succeeded to the powers and jurisdiction of the court of chancery in England, in regard to the execution and administration of charities, but we have yet to learn that, they have also succeeded to the prerogatives of the crown, or that there is any sovereign, whose directions, as given by his sign manual, they are bound to follow. It must also be remembered, that where the disposition of a charity belongs to the king, his majesty is not bound to follow the intentions of the testator, but that his discretion, in regard to the disposition of the property or fund, is unlimited and absolute. That courts of equity in this country have ever possessed or claimed a similar discretion, will not be pretended. Hence, even upon the supposition that we possess the same power as a court of chancery in England, to decree the execution of a charitable use, violating in its terms and in its duration, the general rules of law in relation to other trusts, we should still be bound to declare that the present trust, as well as the devise to which it is annexed, is illegal and void.

The observations that wo have made are not, however, to he construed as implying our assent to the positions that were so learnedly and ahly maintained hv the counsel tor the executors and the church, namely: that the law of charitable and pious uses as it prevailed in England anterior to the statute of Elizabeth, or independent of its provisions, (43 Eliz. c. 4,) was in force in this state, as a part of our common law, previous to the adoption of the revised staiut. s, and remains in furcia notwithstanding its entire inconsistency with the statutory provisions in relation to trusts and perpetuities. The authorities to which the counsel referred in support of his argument deserve great consideration and respect; but we cannot think them so conclusive as to preclude us from a free examination of the same questions, if hereafter it shall become our duty to consider and decide them. We shall not decide them in this case, since upon other grounds we are compelled to decide in favor of the heirs, and as a court, we decline to express or intimate any opinion in relation to them. Hence, although the form of this opinion will not be changed, the judge who delivers it is alone responsible for the observations that follow; they are to be considered as an explanation, which for special reasons it is deemed expedient to make, of the difficulties he will have to overcome before he can give his assent to a doctrine, which, in this and in a previous case, with much ability and an unusual display of learning, was pressed upon our adoption.

We strongly incline to think that the only law of charitable uses, which was in force in this state, on the 19th of April, 1775, as a part of that common law, which the constitution alone recognizes and adopts, was derived exclusively from the provisions of the statute of Elizabeth, and consequently when in 1788, that statute, together with all other English statutes, was repealed, the law was meant and understood to be wholly abrogated. Although we cannot refer to any positive evidence of the fact, we do not at all doubt that the statute of charitable uses, as the statute of Elizabeth is termed, was in force in this state when a colony, as a part of its common law, in the same manner and for the same reasons as the statute de donis, the statute of wills, the statute of frauds, the statutes of limitations, and many others, and indeed so far as the provisions of this statute were applicable to our condition as a colony, it is not merely a reasonable but a legal presumption that they were in fact adopted. (Dutton v. Howell, Show. P. C. 32; Atty. Genl. v. Stewart, 2 Mer. 159; Rex v. Vaughan, 4 Burr. 2500; Boehm v. Eagle, 1 Dallas, 15; Bogardus v. Trinity Church, 4 Paige, 193.)

Reasoning upon this fact, we find it very difficult to believe that the legislature in repealing the statute of Elizabeth, and in repealing at the same time the statutes of mortmain, (which there is certain evidence were also in force, Sec. 4, Act of 1784, Greenleaf, page 72,) meant to revive the equitable, or more properly, the clerical doctrine of pious and charitable uses, as it prevailed in England before the reformation, and during the prevalence of which, Lord Hardwicke says, (1 Vesey, 224.) the clergy and religious houses had contrived to possess themselves of nearly one-half of the whole real property of the kingdom. It is indeed difficult to believe that the legislature meant to revive and establish this doctrine, not in the modified and regulated form in which it now exists in England, but wholly freed from the numerous and salutary restrictions which the statutes of mortmain impose, and which the experience of every Christian nation, from the earliest ages of Christianity, liad shown to be demanded by imperative reasons of public policy ; yet it is to this conclusion that the arguments of counsel, and the authorities to which we have been referred, if we adopt and follow them, must of necessity lead us.

It is certain indeed, that such could not have been the intention of the legislature, if when the statute of Elizabeth was repealed, it was understood to be the true and only source of the law of charitable uses, and of the power of the court of chancery to compel their execution, and that at this time such was the actual belief of the legislature, and of its legal advisors, we think, for many reasons, it is hardly possible to doubt. All doubts upon this point, seem to be excluded when we remember that the belief which we attribute to the legislature, was until a very recent period, the general, if not universal opinion of the members of our profession, including the most eminent of our judges and jurists throughout the Union, and that this opinion was apparently justified by many decisions in the English courts, and by the positive dicta of several Lord Chancellors. (Gallego's Executors v. The Atty. Genl., 3 Leigh, 450; 2 Story Eq. Jur. 1154, 1158, 1162; 1 Ch. Ca. 134, 269; 6 Dow P. R. 136; Baptist Association v. Hart’s Executors, opinion Ch. J. Marshall 4 Wheat. 30 and 39: Baptist Association v. Smith, 3 Peters, App. 403, Mr. J. Story; Atty. Genl. v. Bowyer, 3 Vesey 744, Lord Loughborough; Mills v. Farmer, 1 Meriv. 551, Lord Eldon; 4 Kent’s Comm. 508, n.)

Upon the supposition that charitable uses, as a distinct and peculiar class of trusts, were meant to be abolished, the conduct of the legislature in repealing and not re-enacting the statutes of mortmain, is readily explained, nor, as it appears to us, can it be explained in any way. We cannot suppose that the legislature meant to condemn and reject the policy upon which the statutes of mortmain are founded, a policy which the most enlightened statesmen and jurists have constantly approved, and the observance of which, the very nature of our institutions seems to demand. This policy, so far from having been abandoned, had been strictly adhered to and followed, in retaining the prohibition to corporations to take by devise, and in limiting the amount of the property that religious corporations are permitted to hold. The object of these provisions is exactly the same as that of the statutes of mortmain, namely to prevent real property from being locked up in perpetuity, and to save persons in extremis, from being led by false notions of merit or duty, so to dispose of their estates as to impoverish, perhaps leave an actual destitution, their families or dependent relatives, (4 Kent’s Com. 507.) Nor for the attainment of these objects were any further restrictions necessary, if charitable uses when inconsistent with the general rules of law, were meant to be abolished; but if such uses were meant to be continued, the legislature could not have failed to see that the restrictions we have mentioned, were wholly insufficient to prevent the mischiefs they were designed to exclude. It could not have failed to see that in order to carry out and render effectual the policy it had adopted, devises to individual trustees for charitable uses and creating perpetuities, were just as necessary to be prohibited as devises to corporations, nor could its members and legal advisers have been ignorant that this necessary prohibition, was found in one of the statutes, (19 Geo. II. c. 36,) which they were then repealing. It is indeed evident, that the restraints laid upon corporations are practically of very little value, if every individual, by the creation of a trust, may devote bis whole estate, however large its amount, in perpetuity, to any use or purpose that lie may deem, or in the confusion and terror of a death-bed repentance, may be led to believe, is pious and charitable. A perpetual trust requires and implies a perpetual succession of trustees, and if we attend to things and not to words, we shall be forced to admit, that to create such a trust, is, in effect, to found a corporation, unlimited in its duration, and incapable of dissolution, having no power to alienate its property, yet unrestrained as to the amount it may hold. Hence it is scarcely possible to state or imagine a more strange and glaring inconsistency, than to prohibit corporations created by the legislature, from taking property by devise at ah, and to restrict, within jealous and narrow limits, the amount of the property that, by any means, they are permitted to acquire, yet, at the same time, to permit individuals in the unfettered exercise of their discretion, to devise all the property they may possess, whatever its amount, to corporations, which by the act of devising they create. Can we believe that the legislature, in repealing the statutes of mortmain, was intentionally guilty of this inconsistency ? Is it credible that it meant to counteract and defeat its own policy, and the long settled policy of our ancestors? That it meant to take away a restriction plainly necessary, which then existed, and for more than half a century, had been the law of the state, and by so doing, enlarge to a most impolitic extent, the discretionary power of individuals in the creation of charitable uses l The inference, it seems to us, is far more probable, that by the repeal of the statute ot Elizabeth, this discretionary power, when exercised in hostility to the general rules of law, was meant to be wholly abolished. The legislature could not surely have meant, by an extension of the power to create perpetuities, to increase indefinitely, the evils that are confessed to flow f|oni them ; its object, we are persuaded, was by an absolute denial of the power, to suppress those evils hi their source.

If, however, the opinion that we have now intimated, as to the intent and effect of the repeal of the statute of Elizabeth, shall hereafter appear to be erroneous, and we shall be ultimately persuaded that pious and charitable uses, indefinite in their nature, unlimited in their amount, locking up for ever the property which they embrace, and in other respects, wholly irreconcilable to the general rules by which other trusts are governed, were sanctioned by the law of this state, previous to the adoption of the revised statutes ; yet as such uses are most plainly and directly repugnant to the statutory provisions, in relation to trusts and perpetuities, we confess our present inability to understand or conceive, why they are not now to be considered as positively forbidden, and therefore abolished. That they are embraced within the terms of these statutory provisions, terms as explicit, as strong, and as comprehensive as the language can furnish, it is impossible to deny, and we yet remain to be convinced, that they are not just as certainly embraced within their spirit and policy. At any rate, to declare that they are not, and upon that ground to introduce an exception, which there is not the slightest evidence, was ever contemplated by the revisers or by the legislature, would seem to us, as at present advised, an unjustifiable, if not unexampled, stretch of judicial power. It is said that the revisers, in their notes, make no reference or allusion to charitable uses ; and it is assumed that they would not have been silent, had they meant to abolish them ; but it seems far more reasonable to say, that had they meant to except them from the universal terms of the enactments which they proposed, they would certainly have said so, since, had such been their intention, the necessity of a positive exception, in order to prevent misconstruction, could not possibly have escaped them ; on the other hand, if they meant not to except, but to include charitable uses, the explanation of their silence is easy and obvious. They may have deemed it unnecessary to speak; they may have thought that the provisions which they recommended spoke for themselves, in a language that neither the legislature nor judges qpuld fail to understand. The article in relation to uses and trusts commences with this declaration : “ Uses and trusts, except as authorized and modified in this article, are abolished,” (1 R. S. 727, § 45,) and the addition of a note, telling the legislature that all uses and trusts, not excepted, were meant to be included, would have been an idle repetition of a text, which, if words have a meaning, could bear no other interpretation. Not only are uses and trusts abolished, but to exclude the supposition that any, previously existing, were meant to be preserved, it is declared, that none are to be excepted but those which the article itself authorizes and modifies ; and that by any comment upon such a text, the meaning of the revisers, and the duty of judges could have been rendered more plain and evident, we exceedingly doubt. Of this we feel assured, that had. the revisers intended to revive or continue in force the ancient doctrine of pious and charitable uses, as it practically existed in England during the ages of darkness and superstition, and subject to none of the restraints that constant evasion and successive abuses had shown to be necessary, and successive statutes of mortmain had imposed, they would not have been silent. Their views would not have been concealed from the legislature; but upon tin's, as upon all other occasions of importance, if not fully vindicated, would have been fully explained. Comparing their notes with the actual provisions in their text, the just inference seems to be, that they believed that charitable uses, as they then existed, were subject to the general rules of the common law, and, consequently, would be subject to the statutory rules which they desired to substitute. Whether this inference be just or not, our conviction remains, that charitable uses may possibly have been overlooked or forgotten, but certainly were not meant to be excepted.

It was urged upon the argument as a conclusive reason for excepting charitable uses from the general provisions of the revised statutes, that in England they are held not to be embraced within the general words of an act of parliament; but however broad and unlimited tbe terms of the statute, are uniformly treated as an exception which the law implies. In proof of this assertion, we were told that the exception in the statute of wills, (34 and 35 H. VIII. c. 5,) by its terms, renders every devise to a corporation void, whatever its intent or object; and yet a devise to a corporation for a charitable use, it has been frequently decided, as not within the statute, is valid. So, also, that the terms of the statute of uses (27 Hen. VIII. c. 10) are general, comprehending all uses ; and yet it has never been held nor supposed that, under the statute, a charitable use is or can be executed. Such uses are an admitted exception. To the argument drawn from the construction of the statute of wills, Ch. J. Marshall lias replied and we shall give the reply, without the addition of a word, in his own clear and forcible language. In the case of the Baptist Association v. Hart's Executors, (4 Wheat. 1,) it was alleged by the counsel for the plaintiffs, as a proof that charitable uses were not derived from the statute of Elizabeth, that before the passage of that act, it was held that a devise to a corporation for a charitable use, notwithstanding the exception in the statute of wills, was good in equity. It was in reply to this allegation that the chief justice, in delivering the judgmen t of the court, said, “ We think we cannot be mistaken when we say that no case was decided between the statute off Hen. VIII. (the statute of wills) and the statute of Elizabeth, in which a devise to a corporation was held good in equity. Such a decision would have overturned principles uniformly acknowledged in that court. The cases of devises that have been held good, were decided since the statute of Elizabeth on the principle that the latter statute, so far as relates to chanties, repeals the former.” (4 Wheat. 40.) The language of Mr. J, Story, in the most instructive of his works, upon the same point, is just as explicit. “Devises to corporations,” he says, “which are void under the statute of Henry VIII., are made good solely by the statute of Elizabeth; for it is plain that a devise, void by statute, cannot be made good upon any principle of general law” (2 Story’s Eg. Jur. 1152); a remark which, considering the subject to which it was applied, is equivalent to saying that where the words of a statute are general, there is no principle of law that can justify a court of justice in creating an exception that is not created by the statute itself.

We cannot here forbear from an observation that seems hitherto to have escaped the attention it deserves. If devises to a corporation for charitable uses, or in trust for a corporation for a similar use, (for it is only upon the same principle that even these have been held to be good, Attorney General v. Downing, Ambl. 550; Adlington v. Andrews, 3 Atk. 141,) are rendered valid in England solely by force of the statute of Elizabeth, it inevitably follows that with ns all such devises, since the repeal of that statute, must be v5id, even upon the supposition that a charity not inconsistent with the general rules of law, may still be created. The plain, unequivocal meaning of the decisions is, that it was competent to the legislature alone to except any class of devises from the operation and effect of the general words in the statute of wills ; and as the exception thus created no longer exists, it follows that those general words must now be understood in the full extent of their meaning, that but for the statute of Elizabeth would always have been given to them, that is, as rendering void every devise to a corporation, or in trust for a corporation, whatever may be its intent and purpose.

As to the argument drawn from the statute of uses, exactly the same reply, were it necessary, might he given, that if charitable uses are an exception from the general words of the statute, they are so only by force of the statute of Elizabeth. But, in truth, no such exception exists. Charitable uses are neither within the scope nor the words of the statute of uses. The only design of that statute was to convert equitable into legal estates, by annexing the legal title to the equitable right of possession, but the persons, for whose benefit a charity is created, have no estate or interest in the lands upon which the statute could possibly operate. They are mere beneficiaries, having the right, and nothing more than the right, to compel the performance of the trust, according to its terms, and the intentions of their benefactor. A valid charitable use must always remain, and can only be enforced, as a trust, unaffected by the provisions of the statute; since, considering it simply as a use, there is not, and never can be, any person in whom it can he executed. As the rents and profits are to be applied to the benefit of a succession of persons in perpetuity, there is not, and never can be, a cestui que trust to whom the legal estate, if that of the trustees is divested, can be given, without destroying the charity and defeating for ever the intentions of its founder.

As those that have now been stated were the only instances that were cited to prove that in England, it is an established rule of construction that charitable uses are not covered by the general words of a statute, we must be permitted to doubt, until more pertinent and conclusive evidence shall have been given, whether in the English courts the supposed rule has ever been admitted, or even suspected, to exist. We have ourselves been unable to discover the faintest trace of its existence, and until otherwise convinced, must continue to think, with Ch. J. Marshall, that a decision such as the rule would require to be made, would overturn principles that courts of equity as well as of law have uniformly acknowledged.

We do not at all share the apprehensions that have been expressed as to the consequences that may ensue, if that construction of the revised statutes shall be adopted, which our remarks have' implied to be necessary. The benevolence of Christian and other philanthropists will not he unduly restrained; an ample scope will still be left for its beneficent action. Charitable and public uses are not abolished by subjecting them to the provisions of the revised statutes. For these purposes, if the. alienation of the capital is not improperly restricted, donations and bequests of money may still be made to any amount, and the proceeds of real estate, directed to be sold, may be similarly applied. Practically, the principal effect will be found to be, that lands cannot be granted or devised so as to render them thereafter for ever inalienable, without the assent of the legislature, unless they are granted or devised to a corporation, that by law is authorized to take, and bound to retain them. The necessity of an appeal to the legislature, in other cases where perpetuities are sought to be created, we cannot regard as an evil. When a new and plainly meritorious charity ⅛ meant to be founded, such as an hospital, an asylum, a library, a college, or a school, none of us can fear that the sanction of the legislature will ever be withheld ; nor will it be deemed a subject of just regret that when the aid of the legislature is required, it will have the opportunity of considering, whether the claims or fair expectations of wives, children, or relatives, have been overlooked and sacrificed. Under our present system, such as we suppose it to exist, and considering the restraints that are now laid upon corporations, their incapacity to take by devise, and the limited amount of property which they are permitted to hold, we need not the English statutes of mortmain; but revive the English doctrine of pious and charitable uses in its original extent, and the necessity of such statutes will soon be apparent. In this, as in every other country, where such uses have been suffered for a time to prevail, without restriction, there wall be an inundation of abuses, which the utmost power of the legislature will be required to stem, repel, and overcome.

There are some other considerations to which, as suggesting topics of useful reflection, it may be expedient to advert. If charitable and pious uses, without limitation or restraint, notwithstanding the repeal of the statute of Elizabeth, and notwithstanding the express provisions of the revised statutes, now constitute a part of our unwritten law, where shall we find, who shall declare to us, the rules by which they are to be governed ? How are they to be classed, limited, and defined ? What is a charitable ? what a pious use'? In England, charitable uses are enumerated and defined in the statute of Elizabeth, and it is settled, that none can be sustained as such, that the provisions of the statute may not be construed to embrace. (Brown v. Yeates, 7 Vesey 50 n; Morrice v. Bishop of Durham, 9 Vesey 30, S. C. 10 Ves. 523; Ommany v. Butcher, 1 Turn. & Russ. 260; Vesey v. Sampson, 1 Sim. & S. 69; 2 Story Eq. Jur. § 1155, 56, 57.) Hence, when the question arises, whether a particular use is valid as charitable, it is readily solved by a reference to the statute, and the decisions under it. But to us, as the statute is repealed, neither its terms, nor the decisions under it, can any longer furnish a guide, and either the whole subject must be committed to the uncontrolled and arbitrary discretion of judges, or every trust, that assumes the name and wears the form and face of charity, without discrimination, must be sustained. Benevolence is the most amiable of virtues, and more than any other commands our sympathy and applause; but more than any other it needs the aid of enlightened reflection, and the direction and control of a sound judgment; and, if the execution of every trust that a mistaken philanthropy may create, must be decreed, courts of equity will frequently discover, that instead of relieving distress, promoting industry, or assisting virtue, they are efficient agents in supporting the idle, encouraging the dissolute, and protecting the criminal.

As to pious uses, if any are to be sanctioned other than those which are included within the general object of religions corporations, the difficulties are still greater. In England, while pious uses are retained, those which have been branded as superstitious have been abolished, and none are deemed pious but such as are strictly consistent with the orthodox faith of Protestant Christians. But with us, it is plain, that no such distinction can be admitted. With us, as all religions are tolerated, and none is established, each has an equal right to the protection of the law; and, consequently, all uses directed to a religious object must be equally proscribed, or all must be upheld as pious, which are consecrated by the faitli of any description or class, not merely of Christians, but believers. Hence, if the Presbyterian and the Baptist, the Methodist and the Protestant Episcopalian, must each be allowed to devote the entire income of his real and personal estate, for ever, to the support of missions, or the spreading of the Bible, so must the Roman Catholic his, to the endowment of a monastery, or the founding of a perpetual mass for the safety of his soul; the Jew his, to the translation and publication of the Mishna or the Talmud, and the Mahommedan, (if in that colluvies gentium to which this city, like ancient Eonie, seems to be doomed, such shall be among us,) the Mahommedan his, to the assistance or relief of the annual pilgrims to Mecca.

Upon the whole, we are certainly inclined to think that it is better that judges shall say, as it seems to us the legislature has said, that no use or trust can be valid that the revised statutes have not authorized, and that the absolute power of alienation, in respect both to real and personal estate, shall not be suspended for a longer period than the statutes allow, “ by any limitation or condition whatever.” (1 R. S. § 15, p. 723 ; § 1, p. 773.) These rules, as general, we believe are safe and salutary, and when in special cases they need to be relaxed, the legislature has the power to relax them. That power has already, in many eases, been wisely and beneficially exercised. (Laws 1840, ch. 318, § 1, 2, 3, 4; Laws 1841, ch. 261; Laws 1839, ch. 174, § 1, 2, 3; Laws 1839, ch. 184, 2 R. S. 3d ed. pp. 23, 24, 25.)

And let it be remembered, that by its exercise, the legislature lias virtually adopted that construction of the statutes which we have supposed that their terms necessarily import. And that the revisers, by incorporating the provisions of the acts to which we refer, in a separate article, in the title relative to the nature and qualities of estates in real property, have clearly shown that they regarded them as exceptions to the general rules which that title was meant to establish. (2 R. S. 3d ed. p. 23.)

We shall not pursue remarks which, although they are far from having exhausted a subject of wide extent and deep interest, have led us further than we intended, but shall proceed to state briefly the result of our opinion. As we have declared that the devise to the trustees of the Methodist church, and the trust annexed to it, are illegal and void, it is a necessary consequence that the direction to the executors to accumulate the residue of the personal, and the rents and profits of the real estate, for the purpose of building a house upon the lot in Brooklyn, cannot be supported. That direction could only have been sustained as ancillary to the principal trust, and therefore a constituent part of a valid charitable use. Separated from the trust, it is clearly void, not only from the failure of its object, but as directing an accumulation for a purpose not authorized by law, and as involving an indefinite suspense of the power of alienation.

A decree must be entered in conformity to the views we have expressed, declaring that the devise of the lots in New York and Brooklyn, is absolutely void, and that the property devised has descended to the heirs at law as in a case of entire intestacy; also that the next of kin and heirs at law are entitled to the accumulated fund in the hands of the executors, directing a reference to a suitable person to take the accounts and to ascertain and report who are entitled to take as next of kin and heirs at law, and in what proportions, and reserving all further directions until the coming in of the report. The taxable costs of all the parties, and the reasonable counsel fees of the executors, are to be paid out of the funds in their hands, and as they have acted in good faith, they are also to be allowed the usual commissions upon the sums received and expended by them, including those arising from the real estate.

        Ante, page 242.

         It is, however, made perfectly certain by the publications of the English Record Commission, since the decision in 4 Wheaton 1, that the learned and venerable chief justice was wrong in this statement. This is conceded by Story, J., delivering tho opinion of the court in the Girard will case, 2 Howard’s U. S. Rep. 192 to 196, and is abundantly shown in Mr. Binney’s argument in that case, at pages 146, 155 to 161, note. See a contrary view of the points at page 179, note to the argument of Mr. Cadwallader, for the plaintiff. Mr. Justice Story, in 2 Howard 192, mentions that the Baptist Association — the plaintiffs in 4 Wheaton, was not a corporation. See further on the subject of charitable uses in England, gifts to corporations for such uses, and the jurisdiction of the court of chancery over charitable uses, before the statute 43d Elizabeth; Attorney General v. Mayor of Dublin, 1 Bligh’s R. 312, 347; Incorporated Society v. Richards, 1 Drury & Warren, 258; 2 Mylne & K. 581; 2 Sand. Ch. 46, 50.


source: Caselaw Access Project

author: Vanderpoel, J.

license: Public Domain

text:
    Sharp v. Edgar.
    A contract was entered into by G., with the proprietors of a pier, for the performance of certain work thereon, to be paid for in instalments as the work progressed. Before the completion of the work, G. assigned to the plaintiff all the payments then clue, and thereafter to become due, upon the contract, authorizing him to receive and collect the same, when duo, and to acquit, receipt, and discharge the same. Notice of this assignment was given to the owners of the pier. Held, that the assignment was valid and effectual to vest in the plaintiff the right of the assignor to the payments ; and that on the completion of the work, he might maintain an action in his own name, (under the code of procedure,) for an instalment which had become due.
    (Before Oakley, Ch. J., and Vahderpoel and Samdfokd, J.J.)
    Nov. 13, 14;
    Dec. 15, 1849.
    This was an action brought after the code took effect, for the recovery of a payment due upon a contract, entered into by the defendant and others, with one Lewis B. Griffin, and assigned to the plaintiff by Griffin.
    The complaint alleged, that in August, 1848, the defendant and several others, owners of Pier No. 11, ¾ ortlx River, made a contract with Griffin, by which Griffin agreed to perform certain work in sheathing and extending the pier, and furnishing the necessary materials, in accordance with certain plans and specifications, for the sum of $8670. The contract provided, that payment should be made from time to time, upon the production of the superintendent's certificates, each of the parties to be liable only for the payment of his proportion of the sum agreed to be paid, according to his interest in the pier. That, on the 4th September, 1848, Griffin duly assigned to the plaintiff, by an instrument under his hand and seal, all payments due, or to become due, upon the contract, and that notice of the assignment was thereupon given to the defendant. That Griffin proceeded, and complied with the contract on his part, and performed the work stipulated. The complaint further alleged, that the superintendent’s certificate was given December 12, 1848, by which the second payment became due, and that the proportion due fn>m the defendant, in respect of his interest in the pier, wm Abb» 7o; which had been demanded and refused.
    The answer admitted the making of the contract, and that a paper, purporting to be an assignment by Griffin, was shown to the defendant; but whether it was a valid assignment or not, or whether an assignment of the whole or part of the payment, he was ignorant; but he did not recognize the paper as a notice binding on him. That when the first payment upon the contract became due, the defendant deposited his proportion in the hands of tlie superintendent, to be paid when called for. That the same was paid upon the order of Griffin, the order being made payable to plaintiff. That the second payment was paid by the superintendent, to Griffin in person, upon his request, and on the production of the proper certificate, which payment, it was insisted, was valid and legal, and a bar to the claim of the plaintiff.
    The cause came on for trial June 25th, 1849, before YaNdeb-poel, J. After proof of the contract, the plaintiff read in evidence the assignment from Griffin to the plaintiff, duly acknowledged and recorded, December 28, 1848. It appeared, that notice of the assignment to plaintiff was given to the defendant, September 25th, 1848, and that he was notified not to make any more payments to Griffin. That the defendant read the assignment, and told the party giving the notice, that he had better see the superintendent. That accordingly, two or three days afterwards, notice in like maimer was given to the superintendent. It appeared, on the part of the defendant, by the testimony of the superintendent, that he was called on by the plaintiff for the first payment. That the plaintiff demanded payment as assignee. That the witness declined paying him without a written order from Griffin, which was subsequently furnished, dated November 1, 184-8, made payable to the plaintiff, and that the first payment was made upon this order. It was also proved, that the third payment ivas made in like manner, by Griffin’s order, dated January 12th, 1849; and that in all cases the certificate ivas made out in Griffin’s name, and given to hi m.
    The court charged the jury, that the contract was assignable, and that a compliance with the request for an order, ivas not a waiver of the notice given to the defendant.
    The jury found for the plaintiff for the amount claimed, on which a judgment ivas entered, and the defendant appealed.

      Gerard W. Morris, for the defendant.
    I. This contract ivas not assignable. First, there are no assignable words in the contract. Second, it assigns no debt due or to become clue, but a possibility merely, which is bad. (Bacon’s Abr. Title, Assignment, and cases there cited.) Third, it is a personal contract, depending upon the skill, honesty, and integrity of the one party, and the responsibility of the other, and cannot be assigned without fall assent of both parties. When made, there was no assignable interest as between Griffin and Sharp. (Clinton v. Fly, Fairfield’s R. 292; Ernmerson v. Fisher, 6 Greenleaf’s R. 200; Hall v. Gardner, 1 Mass. 172; Hams v. Coburn, 8 Mass. 299 ; Eyer v. Chase, 19 Pick. 556 ; Carpenter
      v. Providence Ins. Co. 18 Peters 498 ; Etna Ins. Co. v. Tyler, 16 Wend. 397; Wilson v. Hill, 8 Metcalf, 68; Pobson v. Drum-mond2 Barn. & Adol. 303.) Fourth, if this assignment be valid, it would destroy the statutes in favor of mechanics’ liens. (Laws of 1844, page 339.)
    II. The contract is indivisible, and if assignable in part may be assigned for whole. You cannot assign over the payment, leaving assignor to do the work. Nor so that assignee shall do it; one on whom the party never relied or intended.
    III. The production of an order from Griffin, after notice of assignment given, and the certificate of the superintendent in his name, is a waiver of the original notice.

      I). I). Field, for the plaintiff.
    1. The issue made by the pleadings, is, whether the money due on the contract between the defendant and Griffin, was assigned to the plaintiff.

      2. The assignment ivas duly proved, and there is no valid objection to its validity, or the obligation it imposed upon the, defendant to make the payments to the plaintiff. (2d Story’s Equity Jur. 1040, et seq.; 4 Sim. 524, Douglass v. Bussell,/ 2d Story’s Rep. 630, Mitchell v. Winslow) The assignment was in effect, the substitution of another person to receive the money when due.
    III. The plaintiff’s compliance with Oruiksliauk’s request to procure an order from Griffin, in two instances, was not a waiver of plaintiff’s rights under the assignment.
   By the Court.

Vanderpoel, J.

The defendant resists the plaintiff’s right to recover, on the ground that the contract was not assignable. Section 111 of the code of procedure provides, that every action must be prosecuted in the name of the real party in interest, and if the cause of action here was assignable, it was competent for the plaintiff to maintain the action. It is a general rule, that all dioses in action may be assigned in equity, and the assignee has an equitable right, which he may enforce in the name of the assignor. (Bac. Abr. Title “ Assignment” A; Wheeler v. Wheeler, 9 Cow. 34; Eastman v. Wright, 6 Pick. 316.) The provision of the code renders the intervention of a court of equity now unnecessary, as the assignee, who is the party in interest, may bring a suit, directly in his own name.

The defendant contends, that this is a personal contract, depending upon the skill, honesty, and integrity of the one party, and the responsibility of the other, and therefore cannot be assigned.

If there be any force in this position as an abstract proposition, an abundant answer to it here is, that nothing is assigned but the payments on the contract. These payments, of course, must be earned by Griffin, before any right of action can accrue in his favor, or in favor of the plaintiff. Griffin is not, by virtue of the assignment, exonerated and discharged from the burthen imposed upon him by the contract. lie must perform the work, according to the contract, before any liability can be raised from the defendants to any one. The defendants maintain unimpaired all their right to the skill, honesty, and integrity of the assignor, notwithstanding the assignment. The want of skill of Sharp, the plaintiff, is not substituted for the skill of Griffin, which the defendants contend may, with them, have been the principal inducement to this contract.

There are contracts imposing a mere personal trust upon a party, which are not assignable. The case of Hall v. Gardiner, 1 Mass. 172, and Davis v. Coburn, 8 Mass. 299, exemplify this principle. In both these cases, it was held that ail indenture of apprenticeship is not assignable by the master, because he has a mere personal trust. So where a party by assigning does an act, which is tantamount to saying, that he will not perform Ms part of a contract, not yet executed, he cannot, by-assigning, impose upon the other party the obligation of performing to his assignee. (Robson v. Drummond, 2 Barn. & Adol. 303.) was a case of this description, where, A. a coach-maker entered into an agreement to furnish B. with a carriage, for the term of five years, at seventy-five guineas a year. Before the expiration of the first three years, A. assigned all his interest in the business and in the contract in question to G. and the business was afterwards carried on by C, alone. The assig-nee brought an action for the two payments, which, according to the terms of the contract, would become due during the last two years of its continuance. It was held that the action was not maintainable; that A. by transferring all his interest in the establishment to C., had become incapable of performing his part of the contract. The party with whom the defendant originally contracted, having placed himself in a position where he could not perform Ms part of the contract, the defendant was justly held to be discharged. That is not like the present case. Here, Griffin, by assigning the payments, did not disable himself from performing the service, which was a condition precedent to the de leudan t’s 1 i ab i 1 i ty,

There is another class of cases, in which assignments will not be upheld, either in equity or at law, as being against the principles of public policy. (1 Story Eq. Jur. § 1040, d. p. 395.) An officer in the army will not be allowed to pledge or assign Ids commission by way of mortgage, for his commission is an honorary personal trust. In like manner, the profits of a public office would seem, upon a similar ground of public policy, not to be assignable. (Palmer v. Bate, 2 Brod. & Bing. 673; Davis v. Duke of Marlborough, 1 Swanst. 79.) It has been questioned by some jurists, whether pensions from government are assignable. (1 Story Eq. Jur. p. 397.) But in England they are, under certain circumstances, held now to be assignable. ( Wills v. Foster, 8 Mees. & Welsb. 149. Ex parte Battine, 4 Barn. & Adolp. 690.) We do not consider this case as coming within the principles of any of the cases in which contracts or dioses in action have been held not to be assignable; and that the plaintiff here is entitled to recover. Motion for new trial denied.


author: Sandford, J.

text:
    Fowler v. Griffin and others.
    Upon the assignment of dower to a widow, the seizin in fact of the heirs, intervening between the death of her husband and the assignment, is displaced, and the dowress is in, by relation, from the time of the death of her husband.
    Consequently, it is not competent for the heirs to make partition, during the intermediate period, of the land so assigned,
    A void assignment of dower, made by commissioners appointed by the court in a partition suit, may become valid and obligatory upon the heirs, by the widow’s entry upon the lands assigned, and by the heirs' subsequent adoption and ratification of the eornmisrioners’ proceedings.
    ft an assignment of dower become operative simultaneously with a judgment for the partition of the lands of the dowress* husband, it cannot, have the effect to defeat the latter.
    In such, a case, although the seizin of the heirs, in the lands allotted for dower, becomes divested at the instant of the judgment, yet during that instant they are seized ; and that is sufficient to support the partition.
    The fact that, in a partition suit, under the act of April, 1813, for the partition of lands, one of the parties is an infant, and appears by attorney, instead of a guardian, renders the proceedings irregular and voidable ; but will not make them void.
    in suits for partition, under that act, infants were to be notified and served, in the first* instance, like adult-, and jurisdiction being acquired by such notice and service, irrespective of infancy, the. omission, subsequently, to appoint a guardian for an infant, did not affect the jurisdiction of the court to pronounce a judgment in the suit.
    Although the owner of a reversion in lands, subject to a life estate therein, ⅛ not seized in fact during the pendency of the life estate, and therefore is not a stock of descent, in respect to the lands, yet bis right and title are alienable. They arc a vested estate in the land itself, which he can convey absolutely.
    (Before Oakley, Ch. J., and Vanderpoel and Sandford, J.J.)
    Nov. 23, and Dec. 15 ;
    Dec. 22, 1849.
    This was a case agreed upon by the parties, and submitted to the judgment and decision of the court, under the code of procedure.
    The facts stated were as follows: — On the fourth day of November, 1806, Janies Walker died in the city of New York intestate, seized among other property of the lot now known as number sixty-two Walker street, and leaving him surviving his widow and six children, viz. James 11. R., Rachel Ann, Isaac. Washington, Mary, and Jane.
    Ann, (the widow of James Walker,) married Thomas Dema-rest in 1812. Rachel Ann Walker, the plaintiff, was born January 2d, 1794, and was married to Gilbert Ogden Fowler, Dec. 21, 1813. Isaac Walker was drowned at sea, unmarried and without issue, in 1813.
    On the eighteenth day of July, 1814, James M. R. Walker presented a petition in the Hew York Mayor’s court, setting forth that he, together with his three sisters and his brother Washington, were each entitled to one fifth of the lands, of which his father died seized; that his mother Ann, wife of Thomas Demarest, was entitled to an estate of dower in the same real estate, and asking for a partition of the same.
    Isaac Yanderbeck was appointed by the court, in May, 1814, guardian of the minors, Washington, Mary, and Jane Walker, and appeared for them in the suit. Gilbert Ogden Fowler appeared as attorney of record for himself and wife. Demarest and wife appeared by attorney.
    In July, 1814, the court adjudged the rights of the parties in the real estate to be as set forth in the petition, and appointed «three commissioners to make partition. On the 25th of October, 1814, the commissioners reported that they had made partition of such real estate, in the manner following, viz. That, they had allotted and assigned one third of the real estate to Mrs. Dema-rest, (formerly Ann Walker, widow of James Walker, deceased,) for and during her natural life, consisting of certain lots and parcels of land described in their report by metes and bounds ; among which was lot number four, on the northerly side of Walker street. And that they had allotted and assigned to each of the five children of James Walker, subject to the life estate of Mrs. Demarest therein, one fifth part of the lands so allotted to Mrs. Demarest for her dower; the portion set off' to each child being particularly described in the report. Among the parcels allotted and assigned to James M. R. Walker, was lot No. four on the northerly side of Walker street, which had previously been assigned to Mrs. Demarest for life. The commissioners then divided the remaining two thirds of the estate, among the five children, share and share alike.
    This report was filed and confirmed, and judgment was entered upon it, November 23d, 1814.
    All the parties held the several parcels of land thereby allotted to them respectively, and the validity of the partition was never questioned by any of the parties, prior to the twenty-seventh of December, 1843.
    The premises in question are tlie lot described as Number four Walker street, in the report of the commissioners in partition, which was allotted to James M. R. Walker.
    February 20, 1815, Isaac Vanderbeck was appointed, by the chancellor, committee of the person and estate of James M. R, Walker, a lunatic ; and on the first of May, 1815, an order was made, authorizing the committee, with James Lynch, a master in chancery, to sell all the real estate of the lunatic, except that part set apart for his mother’s dower.
    On the third of October, 1817, another order was made, allowing the sale of the property of the lunatic in which his mother had an estate of dower, on his mother releasing to the purchaser, &c.
    Thomas Demarest and Ann his wife, bydeed dated November 3d, 1823, conveyed to Isaac Vanderbeck, in trust, all the estate in which she had any interest, which deed was acknowledged and recorded.
    Mary Walker was married to Azel S. Roe in 1819, and died in 1824, leaving one child, Ann Olivia Roe.
    Jane Walker was married to Azel S, Roe in Sept. 1825, and died January 22d, 1826, without issue.
    Isaac Vanderbeck, committee, &c., of James M. E. Walker, a lunatic, Thomas Bolton, master in chancery, and Isaac Yarn derbeck, as trustee, (fee., of Ann Demarest, by deed dated March 27th, 1827, conveyed to James Bailey, the premises in question. This deed was acknowledged and recorded. The premises, through several mesne conveyances, became vested in the defendants, under this deed.
    Mrs. Ann Demarest, (widow of James Walker, deceased,) died May 20, 1835.

      James M. R. Walker died a lunatic, May 21, 1843, leaving as his heirs at law, his sister, the plaintiff; his brother, Washington Walker; and his niece, Ann Olivia Roe. Gilbert Ogden Fowler died, Dec. 27, 184-3.
    The plaintiff claimed to be seized in law of the one equal undivided third part of the lot and premises No. sixty-two Walker street, and to be entitled to recover judgment therefor, together with one third of the income of the same for six years.
    The defendants insisted that the plaintiff had no interest whatever in the premises, and that James M. R. Walker, from whom they derive their title, was seized in fee simple of the same.

      E. Sandford, for the plaintiff.
    I. Ann Demarest had an estate for her life in the premises in question as tenant in dower. She took this estate in dower as an emanation from the estate of her then late husband J ames Walker, and not as a freehold created by his heirs. Upon the assignment of her dower, the seizin of the heirs intervening between the death of her husband and the assignment, was displaced, (Coke Litt. 15 a,) and the law supposes her to be in, by relation, from the dqafh of her husband on the fourth of November, 1800. Therefore it was not competent for the heirs to make partition. (Park on Dower, 339, 343 ; Watkins on Descents, 2d ed. 65, 68.)
    II. On the death of Ann Demarest, on the twentieth May, 1835, the estate descended to those who could make themselves heirs to the person last actually seized. The estate in dower suspended the descent. While the intervening estate continued, the person seized was not a new stock of descent. (3 Johns. Gas. 214, Jackson v. Gomer; 13 J. R. 260, 262, Bates v. Schroeder ; 16 ibid. 96, 99, Jackson v. Hilton; 4 Kent’s Com. 387, 205.)
    III. James Walker, the elder, -was the ancestor or person last seized, and-the case shows that the plaintiff deduces her title to the premises in question immediately from him as one of his heirs at law; and that she is entitled to one equal undivided third part of the premises in question.

      IV. Aim Demurest having been the tenant of the freehold, under an assignment of her dower, from the death of her husband James Walker, in 1806, until her decease in 1835, there was no lawful authority in the mayor’s court of the city of New York to make a partition of the lands assigned to her for her dower, during the continuance of her estate in dower therein, among the heirs at law of James Walker, deceased. The proceedings for that purpose were wholly inoperative against the plaintiff, and those to whose rights she has since succeeded, and did not change nor extinguish the rights which she and they had respectively in the premises in question, as the heirs at law of James Walker, the elder, deceased. The plaintiff' is entitled to recover her proportion of the premises in question in tliis suit. (Co. Litt. 147, a, sect. 247; do. 169, sect. 250 ; 1 E. L. of 1813, 507, sec. 1.)
    V. Judgment should be given for the plaintiff for an equal undivided third part of the premises.

      D. Lord, for defendants.
    I. Upon the death of James Walker, one equal, undivided sixth part of his estate, including the premises in question, descended to each of his six children, subject to the dower estate of their mother, Aim Walker, afterwards the wife of Thomas Demurest.
    II. The descent was not suspended by the intervention of this dower estate, but the heirs immediately acquired a seizin in law of the estate descending. The only effect of the dower estate preventing the heirs from acquiring actual possession was, that had James M. E. Walker, or any of bis brothers or sisters, died before they acquired such possession, or the title of the tenant in dower was released, and not having conveyed away their estate or interests in the property, the estate would then have descended to the heirs of James Walker, the original ancestor then living, and not to the heirs of James M. R. Walker, or his brother or sister so dying. In other words, actual possession or a release from the tenant in dower, was necessary to constitute the heir the new stock of descent, but was not necessary to vest the estate in him. (Chitty on Descents, 55, title “ SeizinIbid, c. 4, § 2, “ Seizin of Ancestor Stringer v. New, 9 Mod. 363 ; Co. Lite. 15 a., 53 b., 191 b., 266 b.; Littleton’s Tenures, § .447, 448, 3 Wooddeson, 45; Step. Touchstone, 329; Bao. Ab., Descent, C.; Cook v. Hammond, 4 Mason, 467 ; Vanderheyden v. Crandall, 2 Denio 9, and cases cited ; Com. Dig. Waste, c. 2.)
    When the partition was commenced, the heirs were in actual possession. Their including the assignment of dower in the same proceeding, did not affect the jurisdiction of the court. The effect was the same as if made after partition.
    III. The conveyance by the committee of the estate of James M. Ii. 'Walker, a lunatic, and the master in chancery under the chancellor’s order in lunacy, to James Bailey, in March, 1827, passed to Bailey, the grantee, the vested remainder in fee of James M. R. Walker in the property, subject to the life estate of Mrs. Demurest, the widow, for her dower; and the widow by her trustee uniting in the conveyance and releasing her dower, perfected the estate, which Bayley, the grantee, acquired as an estate in possession, and made it a fee simple absolute. (See eases cited above.)
    IV. The appearance of Rachel Ann Fowler, who, at the time of the commencement of the partition suit in the mayor’s court, was a minor of about twenty years of age and a married woman, by her husband, who was an attorney of the court and appeared as attorney of record for Inmself and wife, was, if any thing, error merely, for which the judgment might have been reversed on writ of error, and not a jurisdictional defect malting the judgment void. The judgment is therefore conclusive against the claim of Mrs. Fowler; never having been reversed. (1.) The mayor’s court was a court of record of general jurisdiction, and although the proceedings in partition were regulated by statute, this was not a case of summary or statutory jurisdiction merely, but the proceedings were according to the course of the common lawn (2 Revised Laws of 1813, p. 503, § 5 ; Ibid. p. 141, § 3 ; 1 E. Laws of 1813, p. 509 ; Foote v. Stevens, 17 Wend. 483, and cases cited; Griejnon v. Astern, 2 Howard’s Rep.) (2.) The judgment is void, only when the court has failed to acquire jurisdiction of the person by the service of process or notice of appearance in any shape. Wherever there has been an actual appearance, however erroneous, it must be corrected by writ of error, and the judgment is good until reversed. (Foote v. Stevens, 17 Wend. 483, and cases cited; Bloom v. Burdick, 1 Hill 142 ; 11art v. Seims, 21 Wend. 40; Thompson v. Talmie, 2 Peters 157 ; 2 Hill 333 ; 16 Wend. 48 ; 2 Hill 391; 2 Saund. If. 203; 8 Cow. 361.)
    V. If the judgment in partition were void, it would not help the plaintiff, as in that case the conveyances by the committee of James M. R. Walker and the trustee of Mrs. Demarest to Janies Bailey, passed all James M. R. Walker’s interest in the property.
   By the Court.

Sandford, J.

The plaintiff’s first point is undoubtedly correct, that upon the assignment of dower to the widow of J ames Walker in the premises in question, the seizin in fact of James M. R. Walker, (or of the heirs of James W., if the partition were to be laid out of view,) was displaced, and the dowress was in, by relation, from the time of the death of her husband. But we think the conclusions which the plaintiff derives from this proposition are entirely erroneous.

1. As to its effect on the partition. The assignment of dower was made by the commissioners in partition, as a part of their supposed duty under the order of the court in the partition suit. As a judicial act, the whole thing was nugatory, because it was not authorized by the statute of partition then in force. The assignment derived its vitality, not from the order of the court directing the commissioners to make it, nor from the commissioners signing their report in which lands were allotted for dower, nor from the judgment of the court confirming the report and directing the partition to be made and the dower to be allotted accordingly. But the assignment of dower, thus made by the commissioners without authority, became valid and obligatory upon tbe heirs, by the widow’s entry upon the lands assigned, and by the heirs’ subsequent adoption and ratification of the commissioners’ proceedings. We cannot infer from the interlocutory judgment of the court, which appointed the commissioners and directed both the partition and the assignment of dower, an authority from the heirs, who were parties to the suit, to the commissioners to make as their agents, a parol assignment of dower, which of itself would defeat the principal object of the partition suit. The court, acting, it is true, for all the parties, made an erroneous order respecting the dower. On holding that order to be of no effect, we have no right to imply from it an authority for the officers of the court to do by parol and in pais, what the parties never intended should be thus accomplished.

Their subsequent adoption of the partition and assignment of dower, doubtless, precluded them from disturbing the latter; but this is on a very different ground from that of a previous authority to make the assignment. The result of our reasoning is, that when the judgment of partition was made, there had been no assignment of dower effected ; the heirs were still seized in fact, and the partition between them became effectual, unless the proceedings were defective, because of the infancy of the plaintiff. Before proceeding to that subject, we ought to add, that if the assignment of dower were held to have become operative simultaneously with the judgment of partition, it could not have the effect to defeat the latter. Although the seizin of the heirs in the lands allotted for dower became divested at the instant of the judgment, yet during that instant they were seized, and that was sufficient to support the partition.

2. The fact, that Mrs. Fowler was an infant, and appeared in the suit by an attorney, instead of a guardian, rendered the proceedings irregular and voidable, but it did not make them void. Without reference to the question as to the general or limited jurisdiction of the mayor’s court, or to the point that the proceeding was wholly of a statutory creation, and not a branch of the common law jurisdiction of the court; it is sufficient to say, that the act for the partition of lands then in force, did not make the appointment of a guardian for infants a preliminary to •the court’s entertaining the suit against them. Infants were to be notified and served in the first instance. (1 Rev. Laws 507, 511, § 2, 8.) Jurisdiction was thus acquired, irrespective of infancy, and an omission subsequently to appoint a guardian for an infant, did not affect tbe jurisdiction of the court to pronounce a judgment in the suit. On a writ of error, such an omission might have been fatal to the judgment, but never in any collateral suit or proceeding.

3. It was contended that James M. R. Walker, who became entitled to the premises in question in severalty, by the judgment in partition, subject to the widow’s life estate in the whole premises, never had any actual seizin of the same, and on his death without issue, the same descended to the heirs of his father, as the person last seized, of whom the plaintiff is one. And further, that the conveyance made by the committee of the estate of James M. R. Walker, did not transmit the estate to his grantee.

Although according to the common law, James M. R. W. was not seized in fact, from 1814 until his death, and therefore was not a stock of descent in respect of the lands in question, his right and title were alienable. They were a vested estate in the land itself, which he could convey absolutely. He had the freehold in law, although not in deed, (Litt. Ten. § 447, 448;) and such freehold would pass by his deed. (Co. Litt. 266 b, and 53 b; Shep. Touch. 222, 238.) The plaintiff’s error on this point consists in assuming, that because the descent was suspended duiing the pendency of the life estate, therefore, the power of alienation was suspended also. The latter consequence never ensued, when the reversion was vested in interest, although the feudal rules of descent, from time immemorial, established the former doctrine.

The plaintiff has failed to show any existing title to the premises, and there must be judgment for the defendants.