American Bible Society v. Wetmore

Church, J. The superior court has found, that the testatrix, by the language employed in this devise, intended, that these appellants should severally take under her will as devi-sees and legatees. This intention ought to be made effectual* if it can be consistently with legal principles. The devise to The American Board, of Commissioners for Foreign Missions, is good, under the appellation of “ The Foreign Mission Society,” because it is proved, that the in* tendon of the testatrix was, that the American Board &c., which was incorporated in 1812, should take by this description. A corporation which has capacity to take lands. &c, by devise, as well as a natural person, may take as well by description, as by name. Brewster v. McCall's devisees, 15 Conn. R. 274. Ayres v. Weed, 16 Conn. R. 291. The same principle is applicable to the other appellants, devisees under this will. But as to them, the heirs at law interpose another objection. It is, that when this will was executed, these societies. The American Bible Society and The American Tract Society, were unincorporated, and with* [187] out legal existence — mere voluntary associations. The will 0 J , was executed on -the 7th of June, 1839; The Bible Society was incorporated on the 25th of March, 1841; and The American Tract Society, on the 26th of May, 1841. ■7 , , By the principles of the common law, no title can be created, either by deed or devise, so as to vest a present legal interest in any person, natural or artificial, which has no legal existence. We are not now upon the question what would be the effect, legal or equitable, of a devise to a mere monied or business association — a joint stock company, a manufacturing company, and the like ; but whether a court of equity will re-cognise and protect the interests of public charitable associations ? Our courts of probate and superior courts, acting on appeals from probate, recognise the principles of equity jurisprudence, so far as they are necessary to protect and secure the rights of persons interested, and prevent the necessity of a direct resort to a court of chancery. The principles, therefore, which ought to govern a court of equity, should have been the rule of the court of probate in acting upon this distribution. The technical rules of the common law, statutes of mort-main, and other restraining English statutes, operated very effectually to defeat the benevolent intentions of testators', and of grantors to public and private charities. To remedy what was supposed to be some of the evils of the former laws on this subject, the slat. 43 Eliz.. ch. 4. was enacted. By this statute, and by the agency of the court of chancery under its provisions, many devises to charitable uses were rendered good and effectual. The spirit of this statute has not only been extending itself in the English courts, but into the legislation and courts of this country. By a provision of the statute law, enacted as early as 1702, it was declared, <s that all gifts and grants, whether made by the legislature, towns or individuals, for the maintenance of the ministry of the gospel, or schools of learning, or for the relief of the poor, or for any other public and charitable uses, should-forever remain and be continued to the uses &e. according to the t,rue intent and meaning of the grantor.” We think the obvious. effect of this enactment would protect the devises, ia [188] question, without resort to the additional authority of adjudged cases. But we believe it is a doctrine now universally admitted, by ^ie ecIudy courts of this country, that a devise for a public charitable purpose, shall not fail of efleet, for want of a de-visee then capable of taking the legal estate ; and that to protect and perpetuate such charity, the legal estate will be considered, either as remaining in abeyance, or vesting in the heirs of the testator, as trustees for the persons beneficially interested, 2 Sto. Eq. 391. 412. 413. 415. 422. Chatham v. Brainard, 11 Conn. R. 60. Pawlet v. Clarke, 9 Cranch 292. Beatty & al. v. Kurtz & al. 2 Pet. 566. City of Cincinnati v. White’s lessee, 6 Pet 4.32. Potter v. Chapin, 6 Paige 639. Coggeshall v. Pelton, 7 Johns. Ch. R. 292. McGirr v. Aaron, 1 Penns. R. 49. Burbank v. Whitney, 24 Pick. 146. Burr’s exrs. v. Smith, 7 Verm. R. 241. Bartlett v. Nye, 4 Metc. 378. Witman v. Lex, 17 Serg. & Raw. 88. Ang. & Ames, 100. Upon the principle now recognised, it is quite immaterial, whether The American Tract Society was incorporated before or after the death of the testatrix. We are aware, that there are some cases comparatively modern, which seem to oppose or restrict the doctrine which we here sanction. The case of Lockwood v. Weed, 2 Conn. R. 287., though relied upon by the heirs at law, is not opposed to the claims of the appellants in this case. It was not holden there, that a devise to a church for the support of the gospel, was ineffectual ; but only, that the devise, in that case, was to the church, and not to the congregation or society, which was the party claiming. The case of Green v. Dennis, 6 Conn. R. 293. was an action at law, in which the only question was. where was the legal title 1 A remark of Stores, J. in Brewster v. McCall’s devisees, 15 Conn. R. 294. was made only in reference to the same question. The case of The Philidelphia Baptist Association v. Hart’s exr., 4 Wheat. 1. seems to have been decided upon what was supposed to be the peculiar state of the law of Virginia on this subject. The entire argument of the chief justice is based upon the idea, that the stat. of 43 Eliz. alone, gave to the courts a power to sustain these charitable devises, in opposition to the [189] mortmain and other subsequent restraining acts ; and because that statute had been expressly repealed in , , , , ,, , ~ , • i as late as 1792, it was supposed that all the power which ¡eight before have been exercised under it, was expressly taken away. Whether this was so or not, we shall not en-quire. No such reasons exist here, where we have, by our statute of 1702, virtually reenacted the statute of Elizabeth; nor in other states to whose decisions we have referred, and where these charities have been sustained. To carry out these charitable testamentary grants, when they are promotive of important public and benevolent purposes, is in accordance with the enlightened and philanthropic spirit of the age. With such a spirit the jurisprudence of the country should keep pace. If there be any well grounded fear, that the patrons of these charities may be made the dupes of designers; or, that deserving heirs may be made to suffer, to gratify a bigoted or an ostentatious pietism; it will be for the legislature, and not for the courts, to foresee and prevent the evil. We advise, that the decree of the court of probate accepting the distribution of the estate of Lois Ackley, be reversed and annulled. In this opinion the other Judges concurred, except Stores, J. who was absent. Judgment for appellants.