Miller v. Chittenden

Wright, C. J. It is first objected, that the deed from McKean to the trustees, did not impart notice of its contents, — 360 — because the certificate of acknowledgment was not in due form of law. If this was true, it could not, under the testimony, aid those who purchased from the heirs. The possession of this land by the trustees, and those claiming under them, as well as the known existence of this deed, as shown by the evidence, gave actual notice of an outstanding adverse title, and the sufficiency of this acknowledgment is, therefore, an immaterial question. If they had actual notice of this deed, they are affected by it, though there was no certificate of acknowledgment indorsed thereon. Blain v. Stewart, post. . It is next urged, that this being an action for partition, the equitable rights of the parties to this land, cannot now be adjudicated, but the case must be determined alone upon the legal title; or, in other words, that in such actions, the court will alone determine who has the legal title, and that if any person claims an equity, which he insists should draw to it the legal right, he must first, in an independent action, establish that equity, and that then a court of law will take cognizance of his claim. On this point, however, we have no difficulty. The plaintiff in his petition, expressly makes these trustees parties; sets forth what he says is their pretended claim to this land; and avers that while it is invalid, it is a cloud upon his title, and asks that it may be removed. The trustees in their answer, set up their title, and call upon the plaintiff, as well as the other defendants, to answer to their claim, as to a cross bill. This they afterwards do, not objecting in any way to ’the form of the answer made by the trustees, or to their right to have this title thus adjudicated; and then, as if to remove all possibility of difficulty, the parties, by an agreement in writing, expressly agree that the case shall “ be treated to all intents and purposes as a proceeding in chancery.” Without inquiring whether there is technically a cross bill on file — whether the title under which the trustees claim is equitable, and mot legal — whether this court will, in an action to partition lands, act alone upon the legal estate — it is sufficient to say, that this objection comes too late. By all their acts and agreements, those that now object, have recog — 361 — nized. the right of those claiming under the McKean deed, to have their title adjudicated in this case, yhatever its character, and we shall therefore so determine it. It is next objected, that the property conveyed is more in amount and value, than could be held by any religious society under the statute in force when the deed was made. .In support of this position, we are referred to chapter 128, laws of 1843, 538. This, as well as the succeeding chapter, were repealed, however, by the act of February 7th, 184-1 (Laws of 1844, 4), and by the latter act must this question be judged. It provides: “That any religious society in this territory, by complying with the provisions of this act, may have perpetual succession by such name as shall be designated by such society, and by such name shall be legally capable of prosecuting and defending suits in any courts of law and equity in this territory; and shall have power and authority to contract, receive, acquire, hold, enjoy, bargain, and sell, lease, mortgage, convey, and dispose of any building or buildings, erected for public worship, with the land necessary therefor, a burying-ground and parsonage for such society, and such other property as shall be applied to the support of public worship in said society, and to such means of education and charity as may be therewith connected.” This section, most clearly, does not limit the quantity or value of the property to be held, but alone restricts the purposes for which it is to be acquired and applied. It recognizes the objects or purposes therein specified, as worthy and well deserving legislative protection and sanction, and for these purposes, the power is given to these societies to acquire and hold property, which may be either real or personal. By this deed, this land and its proceeds, were to be held for the use and benefit of “ the first Congregational Church,” without designating the particular purpose or purposes to which it was to be applied. It might, therefore, be held for and devoted to all or any of the objects designated by the statute. It, of course, could not be devoted to any other purpose. — 362 — If the church or trustees, should misapply the trust property, a different question would arise. As it stands, however, we see nothing to sustain this objection. As to the' power of ecclesiastical bodies, and other corporations, to hold lands for charitable or other purposes, see Story’s Eq. Jur. § 1187; 2 Black. Comm. 268 to 274; 4 "Wheat. Appendix, note 1; Griffin v. Graham et al., 1 Hawk. 97. And that-the objection to the grant, because of its creating a perpetuity, or tending to lock up the land, does not apply, the trustees having the power to alienate and invest the proceeds, see last case above cited. Also, Moore's Heirs v. Moore's Devisees, 4 Dana, 354; Hillyard v. Miller, 10 Barr, 326; State v. Girard, 2 Iredell Ch. 210. The only remaining question relates to the validity of the deed, dependent upon the existence of a beneficiary, capable of enjoying and holding the property conveyed. This question has been argued with zeal and ability. Counsel have manifested a commendable, and even unusual care in its preparation — a care fully commensurate with the importance of the case, and the intricate questions involved. And while many topics, bearing on the principal question, have been discussed in the argument, we shall confine ourselves alone, to such, as in our judgment, are proper for the final adjudication of this controversy. And in doing this, it is proper that we first ascertain and settle from this deed, its character, object, and purpose. Tbe evident intention of the donor was, to create a fund for the use and benefit of a church, which he desired to have organized, and built up in the city of Keokuk. The management of this fund he intrusted to five trustees by name, who at that time accepted the trust, and undertook to execute the same. The very words of the grant show, that there was no such church at that time organized in Keokuk, as could then take the land, and this is abundantly showi}, by the testimony, and not denied by the counsel for the trustees. Neither by the terms of the grant, had the trustees any power to bring the beneficiaiy or church into existence; nor is there any method therein designated, by which it may be created. The power — 363 — of the trustees only extended to the holding, leasing, and selling of the land, and the investment of the money arising from stich sales and leases, for the use and benefit of such contemplated church organization, and the appropriation thereof to such purposes, when the church .should be so organized. ■ From the testimony, outside 'of the deed itself, it appears that the trustees named, as also other persons in the city of Keokuk, were members of this particular denomination, but had no organized existence. In February, 1854, these persons, with others, first organized, or became incorporated, as a church of the character and name designated in the deed, which organization appears to have been contemplated for a number of years previous, and at no time to have been abandoned. Under these circumstances, the question presented for our determination, is this : Can a grant to trustees, for the use and benefit of a church to be afterwards organized— with no power in them to create the beneficiary, or to appropriate the land or funds arising therefrom, for any purpose, until such organization — be upheld, so as to pass the title, if such church shall afterwards (say in seven years, as in this case) be so created or brought into existence, as to acquire and hold property, or be the recipient of a charity ? This statement of the question, we think, is quite as strong, in view of the claims of the church, as can well be justified from all the facts. It is, however, as near in form and substance, that made by the counsel opposed to the church title, as we have been able to state it; and for. that reason, we shall so treat it, preferring as we always do, as far as possible to decide the very question presented. As already stated, this question has been most fully, and we may add, very fairly argued. Counsel have in their written and oral arguments, brought to our attention, all of the leading authorities in this country, and many of those in England, on the subject of grants and devises to charitable purposes. We have endeavored to give to the question, that attention its importance and intricacy demands, and the more so from the fact, 'that it is claimed that this same question has been ddter — 364 — mined by'the former judges of the court, as to this same title, ■which decision we are asked to overrule. And while we have concluded to sustain the title of the church to this property, yet it is with a hesitation, we would not have felt, but for the decision referred to, and the very great confidence manifested by counsel opposed to its validity. We may add, however, that we have less hesitation in so holding, from the fact that counsel who claim the benefit of the former decision as authority, admit that it does not consider the real question involved as fully, if as attentively, as its character demands. In considering this decision, we first remark upon the stage of the case upon which it was made, and the ability of the church to take this property, then and now. That was a bill in chancery, filed by Marshall, one of the present defendants, against the trustees, setting forth this deed — averring that they held the land as a mere naked trust; that at the time of the execution of the deed, there was “ no Congregational church in Keokuk, nor any association or corporation known by such designation, nor has there been since Such conveyance, nor is there at this time, any such church, or any body or association, claiming to be such churchthat he 'had purchased the interest of certain of the heirs of McKean ; that said conveyance by McKean to the trustees, was without any consideration ; and that as there was no church or association in existence, upon which the estate could be cast, the said trustees held the same in trust for him. To this bill, there was a general demurrer, which was sustained in the District Court, but overruled in this court — and the case remanded, where it is now pending. A leading element in that case, as distinguished from this, is that by the demurrer, it was admitted that up to the time of filing the bill, there was no society or organization capable of taking the property. Nor was there anything to show that the trustees had taken possession of the land, or that the grantor had recognized, if not confirmed, the conveyance by his will. Now, the church has been organized; it is shown that the trustees did take possession of and rent the land; and that the grantor did recognize the existence and validity of the deed by his — 365 — last will and testament.' The absence of all these things, evidently had much influence in the determination of the former case. Eor it is said, that “ had the contingency happened ; had the church been organized under the restrictions of the deed, and taken to itself the use and possession of the land during the lifetime of McKean, much weight should be given to the arguments of counsel for appellees; In such a case, although the deed in itself would be legally void, as having had no grantee, and void as creating an estate in futuro, still the doctrine of cy pres might be applied, for the purpose of carrying out the intention of the grantor, under circumstances which gave notice to the heirs, or subsequent purchasers, that such intention was manifest, not only before, but after, the contingency happened. But in this case at bar, the contingency did not happen; there was no subsequent circumstance, showing a continued intention on the part of the grantor, that his heirs should be divested of their rights, upon any contingency subsequent to his death.” And while we would not say, that the absence of these circumstances, controlled the determination in that case, yet we feel justified in concluding that it had much influence, as is evident from the above, as-well as other parts of the opinion. Now, we think, and hope to be able to show, that' these circumstances have a material bearing upon the question involved; as also, that this grant can, and must be upheld, without any reference to the doctrine of cy pres. If the first part of this proposition is true, then the conclusion arrived at in this casé, does not necessarily overrule the other. But before coming to this view of the case, let us examine some other positions taken in that opinion, and upon which it appears to have been mainly based. “ It is obvious (says G-reen, J., in delivering that opinion), that the trustees were not vested with a freehold estate. The grantor intended to convey a legal title to them, upon certain contingencies. As trustees, the deed vested in them a contingent, naked legal title. But the use, under our statute, could only take effect upon the contingency that the cestui ■que use should be — 366 — organized or incorporated into existence.” And again: “ It seems obvious that no estate was created by virtue of the deed, but a kind of remainder in futuro, to pass upon the remote possible contingency, that the trustees should continue a valid existence, and the cestui que use should be created, be properly christened and located, and endued with an orthodox spirit;” and again, “ this cannot be regarded even as a valid remainder, for it js not supported by any vested estate of freehold. An estate vesting upon a remote contingency, is voidand finally : “ We conclude, then, that the conveyance cannot be sustained, even as a charitable use, because the intention of the grantor cannot be carried out consistently with the deed itself, nor with the established principles of common law. Nor can it be good as a contingent use, or a contingent remainder.” Now, with all due respect, we must be allowed to say, that we are unable to see what much of the matter contained in the above; quotations, has to do with this case, or the question substantially involved. It is not denied by counsel, that this deed is sufficient, so far as the mere words of the grant are concerned, to vest in the trustees a fee simple title, nor indeed! could it well be. It is also admitted, and properly so, that, the trustees could and did take the property, if there had! been certain beneficiaries in existence capable of taking the use. How, then, can it be said that “ a kind of remainder was in futuro, to pass upon the remote possible contingency &c.” or why the dictum, that the grant could not “be regarded* even as a valid remainder, for it is not supported by any vested estate of freehold ?” What has the doctrine of contingent remainders, to do with this question ? We must confess that we are unable to see any, the remotest connection. Here the legal estate was. a unity — there was no division — - no particular'estate, for life or years, to one, and an estate to' be enjoyed in fee simple after its termination, by some other. What particular estate preceded the remainder in this case ? Or wbat remainder was there ? Take the common case of a grant to A. for life, and then to the brothers and sisters of A. This- latter estate, is called the estate in remainder.. — 367 — Was there any grant to the trustees in this case, and then to the church ? Did the trustees have a particular estate carved out, with the remainder to the church ? So, also, if the trustees, by the words of the grant, took an estate in fee simple, as is admitted, how would any person claim or pretend that anything could remain ? If all was granted, hoAV could there be anything left ? Sir Wm. Blaekstone, in speaking of this estate, says that both of these interests (the particular estate, and estate in remainder), are but one estate. The present term for years, and the remainder after, when added together, being equal to one estate in fee.' They are different parts, constituting one whole, being carved out of one, and the same inheritance. They are both created, and may both subsist, at the same time, the one in possession, and the other in expectancy. 2 Bl. Com. 164. But without pursuing this inquiry further, we think we are fully justified in saying, that the church does not claim this property as the remainderman claims his estate; nor are the learning or doctrines applicable to that branch of the law, in any way connected with this case. And without other comment on specific portions of the opinion, we must sajr, that it appears to have strangely misconceived, or not to have carefully considered, the prominent and material questions involved in the case. We understand that McKean not. only intended to, but did, convey a legal title to these trustees. By the terms of the grant, however, they held the legal title in trust for the church. And the real and only question in the case is, whether under the circumstances developed, there was such a want of beneficiaries, as that upon the death of McKean, these trustees held this estate for his; heirs. And so far as. the opinion in the case, of Marshall v. Chittenden et al. (above quoted from), can be considered as, maintaining the affirmative of this proposition, we feel constrained to overrule it, "In doing so, we are not unmindful of our duty to adhere to former decisions, and especially those made by this court, and more particularly such as may be regarded as settling and establishing rules for the alienation and, acquiring of property. Strong reasons, im — 368 — deed, should be presented, before we should depart from decisions carefully considered and deliberately made. Certainty in the law is fully as much to be desired, as mere abstract perfection. In this instance, the questions involved arise for the first time in this state. The former judges of this court made a decision, and remanded the case to the court below. That case is still pending. It is not one of those cases where, for a series of years, a particular rule of property has been settled in the state, and which should not be disturbed, except for the most cogent and controlling reasons. The question is a novel one in this state. It is of the utmost importance that, at this early stage of our judicial history, we should determine it properly, if possible; and not permit a rule, hastily settled, to grow up and receive the sanction of our courts — a rule, we think, that does violence to that principle, which induces courts of chancery to give all proper encouragement and favor to charitable grants and bequests. We come, then, to consider the question as though it was undecided in this state. And if this was a grant to an individual, we do not think it could be sustained. By the common law, all grants between individuals must be made to a grantee in existence, or capable of taking, otherwise there could be no such thing as livery of seizin. This rule does not apply, however, to grants or devises to charitable or benevolent purposes, and especially when the legal estate is vested in trustees, to hold for the use of the contemplated charity. In such cases, if the intent of the donor can be ascertained, and it be legal, courts of equity will carry it out. Kniskern v. Lutheran Church of St. John and St. Peters, 1 Sandf. Ch. 439; Outows v. Eslava, 9 Porter, 527; Winslow v. Cummings, 3 Cush. 358; Dickson v. Montgomery, 1 Swan, 348; Town of Pawlet v. Clark et al., 9 Cranch, 292; Burbank et al. v. Whitney, 24 Pick. 146; Zimmerman v. Anders, 6 Watts & Serg. 218; Amer. Bible Society v. Wetmore, 17 Conn. 181; Ingliss v. Sailors' S. H. 3 Peters, 99; Ex. of Burr v. Smith, 7 Vermt. 241; Bentlett v. Nye, 4 Metc. 378; Story’s Eq. Jur. §§ 1144, 1162, 1165, 1169, 1190; Witman v. Lex, — 369 — 17 Serg. & R. 93; Bridges v. Pleasants, 4 Iredell, 27; Profs. of Shapleigh v. Pillsbury, 1 Greenl. 271, approved in Sewall v. Cagill, 15 Maine, 414. The exercise of jurisdiction in such cases is not dependent upon the statute of 43 Elizabeth, commonly known as the statute of charitable uses. A different opinion at one time ■obtained in this country, but since the decision in the celebrated case of Vidal et al. v. The Executors of Girard, 2 How. 127, it is generally conceded, that the statute of Elizabeth did not create a new law, but only regulated the jurisdiction — a jurisdiction that was before that time inherent in the court over such subjects. This question was very critically examined in that case, all the leading authorities being discussed, and the common law jurisdiction our charitable trusts ■antecedent to this statute, fully recognized — the unanimous opinion of the court, being delivered by Stoky, J., who at one time entertained a contrary view. Story’s Eq. Jur. 1154. Numerous authorities might be adduced in support of this proposition, but the above are regarded as sufficient, especially as it is at this time, seldom if ever seriously controverted. In this country, also, this jurisdiction must be exercised judicially, and not as a prerogative power. If the intention of the donor can be legally executed, whether the gift is to a general charity, or specific object, it will be done; but if this cannot be accomplished, the claim of the heir will not be defeated, by appropriating the property to another and different object. The chancellor will see that the intention of the grantor is carried out, but he will not give a different direction to the property. Though the deed may clearly manifest a benevolent or charitable disposition, it will only be executed or upheld, for the benefit of the object designed, and will not be, in favor of some other similar object. Courts in this country, in such cases, will execute the will of the benevolent donor, but cannot create an object or person, or class of persons, on whom to confer the gift. We need not add, therefore, that the doctrine of cy pres, at least in its original form, as administered in the English courts,, has no applica — 370 — tion here. Carter et al. v. Balfour's Admr., 19 Ala. 821; Moore's Heirs v. Moore's Devisees, 4 Dana, 354; 4 Wheat. Appendix, note 1; Curling's Administrators v. Curling's Heirs, 8 Dana, 38. But, say counsel, this grant must be sustained on the doctrine cy pres, or must fail. We do not think that doctrine has anything to do with this case, and are clear that the property descended to the heir, if the deed is to be upheld' by that doctrine. In the first place, this is not one of those cases, which have frequently arisen, where courts have had difficulty in administering the trust or charity, because of uncertainty as to the object or beneficiary, or for want of trustees to take and hold the property. The deed is specific as to the name and location of the church — the trustees are named — they accept the trust, and undertake its execution — an'd a mode is concisely pointed out, in which the succession is to be kept up, in case of death or vacancy from any cause in said board. In this latter respect, the case is clearly different from that of Stone v. Fuller's Exe., 3 Vermt. 400. Since the organization, therefore, of the church, there can be no difficulty in carrying out the intention of the grantor, so far as any objection on the ground of uncertainty in object, is concerned. Neither are we asked, to devote the grant to an object other or different from that designed by the donor, and clearly stated in the deed thereof. We therefore run no hazard in violating his will, if the property can be given to this object. But in carrying out this will, the integrity of the law must be preserved, whatever the consequences. While courts of equity favor such grants, and will not permit the same to fail for the want of trustees, but will supply their jjlaces, and guard the execution of the trust, yet legal principles must be preserved, and the rights of parties protected. Shall the will of the donor then, be executed or carried out ? If not, why? The answer is, because no beneficiary was in esse, at the time of the grant, capable of taking. We have already shown, by reference to a number of authorities (which might be multiplied), that this is not necessary in grants of this character. But it is said, that in all these cases, as well as other similar — 371 — ones, the trustees had the power to create the beneficiary— to proceed with the execution of the trust; or that if the beneficiary did not exist in an incorporated form, so as to have power as such, to acquire and hold the grant, there was at least an association or class of persons, who had- an existence ;• and further, that no case can be found similar to this, where the grant was upheld. In view of these objections, let us examine some of the cases, to ascertain how far the courts of this country have gone in upholding such donations, where these and similar objections have been urged. In the case of the Town of Shapleigh v. Pillsbury, 1 Greenl. 271, the view taken of this question, will be sufficiently indicated by the following extract from the opinion by Mellen, C. J.: “ On these facts, it is contended by the counsel for the demandants, in the first place, that the grant by the proprietors in 1780, of the demanded premises, is void, because there was at that time, no person or persons, or corporation, capable in law of taking the estate grantedand he then proceeds to say: “We are not aware that such grants or donations were ever considered void and inoperative, either before or since the revolution, on the principle, that no person or corporation capable of taking, existed at the time of the grant.- Should such a principle be considered sufficient to defeat such grants, it would, in numberless instances, frustrate the benevolent intentions of the legislature, or of generous individuals, in the bestowment of their bounty.” In Rice v. Osgood et al., 9 Mass. 38, the part material to this question, will be found in the following extracts from the opinion by Sewall, J., commencing on page 43: “ When the patentee, according to the condition of the grant to him, makes a grant or assignment, the estate vests, where the appropriation is to a person or corporation in esse, and is accepted by him, or them; and where contingent, and to a person or corporation not in-esse, the estate remains in the patentee, until the contingency happens, and then vests, if accepted.” In this case, the grant is to trustees, who accepted at the time, and the beneficiary is now'claiming the benefit of that acceptance — 372 — In Curling's Administrator v. Curling's Heirs, 8 Dana, 38, the will of James Curling contained the following provision: “And at the decease of my wife, it is my will and desire, that my negro boy Harvey shall cease from slavery, and be emancipated and set free; and that the remaining part of my estate shall be left for the use, privilege, and benefit of a public seminary; that said property shall not be sold, but rented and hired for the purpose aforesaid.” The trustees of’ the Trigg county seminary (where part of the testator’s estate was situated), established and organized after the date of the will, were made defendants to the original bill, filed by the heirs, to have this clause in the will declared void. The devise was upheld, and this seminary, so organized, was declared to be the recipient of the testator’s bounty. The-case of McGirr v. Aaron, 1 Penr. & Watts, 49, was of this character: The Bev. T. Bowers, by his will, gave certain real estate to a Boman Catholic priest, who shall succeed me in this said place, to be entailed to him and his successors, in trust, and so left by him to his successors, and so on in trust, for the use therein mentioned, in succession forever. In the course of the opinion, by Gibson, C. J., it is said, that a devise to an officiating priest and his successors, not being a corporation sole, is against the policy of the law and void, as tending to perpetuity; and' that, therefore, if this devise was to be interpreted strictly, according to the meaning of the words, it would be impossible to carry it into effect. The devise was upheld, however, and not allowed to fail for want of trustees, by holding that the devise was for the maintenance of the priest, but in care of the congregation, and consequently for its benefit alone. “Now (says the court), although the congregation was not incorporated at the death of Mr. Bowers, yet, by the decisions of the court, a gift to a charity shall not fail for want of a trustee; but vest as soon as the charity acquired a capacity to take.” The Town of Powlet v. D. Clark et al., 9 Cranch, 292, very fully and ably reviews the doctrine of charitable trusts, as also the rights of corporated and unincorporated ecclesiastical bodies. We can do nothing more than give a mere — 373 — abstract of so much of tbe case as bears upon tbe question now before us. The case involved the construction of, and the rights of parties under, the royal charter of 1761, granted to the township of Pawlet, which gave certain lands, “ one share for a glebe for the church of England, as by law established; one share for the first settled minister of the gospel.” There was not any church consecrated and established in Pawlet, at the time of the charter, and the inquiry arose, whether, at common law, a grant so made, was wholly void, for want of a corporation having capacity to take. Stoky, J., in delivering the opinion, says: “ That the land must have passed out of the donors, if at all, without a grantee, by way of public appropriation or dedication to pious uses. In this respect it would form an exception to the generality of the rule, that to make a grant valid, there must be a person in esse capable of taking it;” and he concludes that, under such circumstances, until a parson could be inducted into such new church, the fee of its lands would remain in abeyance, or be like the hereditas pacens of the Eoman Colie, in expectation of an heir. This would conform exactly to the doctrine of the civil law, which as to pious donations, Bracton has not scrupled to affirm, to be the law of England. “ Nor (says the learned judge), is this a novel doctrine of the common law.” The case of Beatty & Richie v. Kurtz et al., 2 Pet. 556, was briefly this. In 1769, Beatty and Hawkins laid out an addition to the town of Georgetown. On the recorded plan of the town, one lot was marked out, and inscribed with these words, “for the Lutheran Church.” Shortly after the appropriation, the Lutherans of Georgetown proceeded to erect on this lot a log house, which was used by them as a place for public worship, and in various other ways exercised ownership over the said lot. They, however, were never incorporated as a religious society, but consisted of a mere voluntary association or society, without any formal records of their proceedings. The question arose, whether the plaintiffs, a committee chosen by this voluntary association, could, for the church, maintain its title to the lot, upon this dedication, as — 374 — one made to pious uses. In reference to this question, it is said, that there was no doubt that the proprietor of the town intended that this lot should be appropriated for the use of a “Lutheran Church,” in the town laid off by him. “ But as there was not, at that time, any church, either corporated or unincorporated of that denomination, in that town, there was no grantee capable of taking the same by the grant. If, therefore, it were necessary that there should be a grantee legally capable of taking, in order to support the donation in this case, it would be utterly void at law, and the land might be resumed at pleasure. If the appropriation, therefore, is to be deemed valid at all, it must be upon other principles than those which ordinarily apply between grantor and grantee; and we think, it may be supported as a dedication of a lot to a public and pious use.” In Ohio, it is the settled and received law, that a dedication for public, pious, or charitable uses, requires no donee to give it effect (6 Ohio, 308; 7 Ib. 221); and to be equally well settled, that a trust shall never fail for want of a trustee, but that the necessary appointment may be made by the court. Thornhill and others v. McCandliss, 6-7 Ohio, 472. The case of Winslow v. Cummings et al., 3 Cushing, 358, we think, goes further than we are called upon to go in this case. Among the legacies contained in the will of T. S. Winslow, was the following, and expressed in the following words: “ To the Marine Bible Society, I give one thousand dollars.” There was no society of that name in existence, but at, or shortly before the time of making the will, there was a voluntary association known by the name of “The Boston Young Men’s Marine Bible Society,” but which, at the time of the testator’s death, had been dissolved, or become extinct. The members of this society having afterwards held meetings, and claimed the legacy, their right thereto was the .question which arose for adjudication. It was held, that this society was the one intended by the testator, and that as such, it could take the legacy. ■ It was objected that no such society existed at the time of making the will. “ As to the want of capacity to take the legacy — 375 — (says the court), by reason of having no legal existence as a corporation, that can be readily supplied by the appointment of a trustee, if the object of the legacy, and the particular use to which the testator appropriated it, can-be ascertained. It seems to us that these may be ascertained, and that although this society had ceased to continue its regular organization, yet its previous existence, its well-defined objects of charity,'and mode of distribution of its funds, may be resorted to, in order to determine the purpose of this legacy, and what disposition of it will effectuate the intention of the testator.” 6 Peters, 431. In The City of Cincinnati v. White, it is said, that “dedications of land for public purposes, have frequently come under the consideration of this court, and the objections which have been raised against their validity, have been the want of a grantee competent to take the title, applying to them the same rule which prevails in private grants, that there must be a grkntee as well as a grantor. But that is not the light in which this court has considered such dedications for public use. The law applies to them rules adapted to the nature and circumstances of the case, and to carry into execution the intention and object of the grantor, and to secure to the public the benefit held out and expected to be derived from, and enjoyed by, the dedication;” and again, that “in this class of cases, there may be instances where, contrary to the general rule, a fee may remain in abeyance, until there is a grantee capablé of taking, when the object and purpose of the appropriation look to a future grantee, in which the fee is to vest.” This case also affirms, that there is no well-founded distinction, so far as this question is concerned,- between dedications for charitable and religious uses, and those of land for the use of a city; but that all alike, form exceptions to the rule applicable to private grants, and grow out of the necessity of the case. In 2 Kent’s Com. (7 ed.) p. 329, in the note, we have a reference to tbe case of Milne v. Milne, 17 Louis. Ch. R. 46, where, according to the note, it was decided under the will of Alexander Milne, in which legacies were left to two pub376 lie charitable asylums, to be, after the death of the testator, incorporated and established at Milneburgh, that the courts were bound to aid in carrying out the intention of the wilh See also, Executors of Burr v. Smith, 7 Vermont, 241; Ingliss v. Sailors’ Snug Harbor, 3 Peters, 99. This last case is very much in point, but the length of this opinion forbids that we should refer to it, as its importance would otherwise demand. American Bible Society v. Wetmore, 17 Conn. 181; Zimmerman v. Anders, 6 Watts & S. 218. In note 2, to section 1190, Story’s Eq. Juris., it is said that, “ if the object of the gift be certain, but not at present in existence, yet if its existence may be expected hereafter, the court will neither consider the gift lapsed, nor apply it to a different use,” citing Aylet v. Dodd, 2 Atk. 283; Attorney-General v. Oglander, 3 Bro. Ch. 166. Without referring to further cases in detail, we direct attention to the following, as throwing light upon this question : Andrew v. New York Bible Society, 4 Sandf. 178; The Zanesville Canal and Man. Co. v. McIntyre's Ex., 9 Ohio, 203; The Reformed Dutch Church v. Mott, 7 Paige, 77; Zanesville Canal and Man. Co. v. City of Zanesville, 20 Ohio, 483; Dickson v. Montgomery, 1 Swan, 348; Burbank v. Whitney, 24 Pick. 146; Porter's Case, 1 Coke, 22; Moggridge v. Thackwell, 7 Vesey, 36; Bacon’s Abrig. title Charitable Uses, E; Willard’s Eq. ch. 7, § 15. We1 think these cases fully sustain and uphold the following, among other propositions: That a court of equity will not permit a trust to fail for want of a trustee. That grants, devises, or dedications to public, pious, or religious uses, from the necessity of the case, form exceptions to the rule, applicable to private grants, requiring a grantee as well as a grantor. That it is not necessary, in such cases, that the beneficiary should, at the time of the grant, be clothed with the power or capacity of taking the benefit of the donor’s bounty; but the intention of the donor will be executed, if this capacity arises within a reasonable time thereafter. That, in the meantime, where the property is in the hands of a trustee, and the object and purpose of the grant, look to a future grantee, it will be held in abey — 377 — anee. That it is not necessary that the trustee áhall have the power to create the beneficiary, or proceed with the execution of the trust, before such creation, in order to sustain and uphold such a grant or devise; and upon .these principles, this grant may most clearly be upheld, and the intention of the grantor carried out. A brief reference to some other points, made by counsel, and we close this opinion. We are asked, if this grant is sustained, how this court could have ordered.its execution, if the church was not now organized? We answer, that in such a case, the grant would not have been upheld. In other words, we could not have given it to a beneficiary, that at the time of the decree, had no capacity to take. But there is a uniform current of authorities, to which there is, perhaps, but little, if any, exception, that if the church, asylum, school, or other object of the charity, shall exist'at the time of the grant in an unorganized or unincorporated form, having no capacity as such, to take or hold the property granted, yet the subsequent incorporation will prevent the legacy or grant from lapsing, and enable the court to execute the same; and yet, in such cases, there would be no more power in the court to provide for the execution of the donor’s intention, before incorporating, than though the church or school did not previously exist in an unincorporated form. Again, and finally, was this church endowed with the capacity to take, within such reasonable time, as to enable it to claim the benefit of McKean’s bounty ? The answer to this inquiry, must always depend upon the circumstances of each case. In this instance, it is a part of the history of the times, that when the deed was made, Keokuk was, like many, if not most, of the towns of this state, just struggling into active existence. It had few inhabitants, and those belonging to the different religious denominations, were in the same proportion, few. As such, their want of ability, immediately to organize, build up, and sustain a separate church, cannot well be doubted. This grant expressly contemplates such want of means, and is designed to assist this — 378 — known and appreciated poverty. It is true, the church might possibly have sooner organized, but this would have given it no greater- means, aside from the more immediate use of this grant, to have built a house of worship, or sustained a minister. The testimony shows, that there was, 'at that time, and for some years thereafter, but few members of this denomination. They attached themselves temporarily with the Presbyterians, and so continued, until having members and strength sufficient, they organized in the manner required by law, and under the peculiar government known to their own church. Under such circumstances, we should be unwilling to treat the delay as unreasonable. To so hold, would be to defeat the intentions of many benevolent individuals, designed to aid in the building up of poor and weak churches and schools, at a time in the history of all new countries, when their aid would be most needed, and accomplish the-most good. We conclude, therefore, that this case must be reversed. From the intricacy of the questions involved, we may have misapprehended the law, to the prejudice of the parties, who justly feel so great an interest in this litigation. We have endeavored to view the case in its legal aspect, influenced by- a stern sense of duty. If we h'ave erred, we have at least the reflection, that in holding as we have, we have carried out the intention of the deceased, as expressed in his deed, and re-affirmed in his will. Decree reversed.