The opinion of the court was delivered by
Beasley, O. J.
In this case, there are but two objections to the effectuation of that clause in this will which is contested, that seem to me to require discussion. The first of these raises the question, whether or not this religious corporation, the North Reformed Dutch Church of Newark, can legally take the testamentary donation in question, in view of the restrictions contained in the law creating it; and the second is, whether this testamentary provision creates a valid charitable use ?
With respect to the first point: The contention of the counsel of the appellants, on this branch of the case, is, that this corporation cannot take the benefit of this trust without violating a restrictive provision of its own charter. The fol[689]*689lowing are the circumstances relied on to justify this conclusion : The North Reformed Dutch Church of Newark was organized by force of the act entitled “An act to incorporate trustees of religious societies,” passed April 17th, 1846 (Nix. Dig. 802), which, in section 11, constitutes the minister, elders and deacons of every Reformed Dutch congregation trustees of the same, and a body politic and corporate in law; and, in section 13, enables such trustees to acquire, purchase, receive, have and hold any lands, tenements, hereditaments, legacies, donations, moneys, goods and chattels, in trust, for the use of the said congregation, to any amount in value not exceeding $2,000 a year &c.
At the time this will went into operation, this church, it is admitted, was possessed of its complement of property which this law authorized, for such property was in value at least $2,000 a year.
Erom these facts it is urged that, as the testamentary clause in question empowered the trustees, in their discretion, to use the fund bequeathed, to promote the religious interests of the church, it was, in substance and effect, an illegal addition to their property, so that, if the trust was effectuated, the statute would be violated. It will be observed, that the first power that the will gives over the trust fund is, that the trustees of the church “ may use the same to promote the religious interests of the said church,” and it is insisted that, by force of such provision, they may, if they see fit, apply the whole fund to the same uses to which they devote the property. they are authorized by law to hold. It is said, they may devote this fund to the support of their minister, or to any of the other ordinary expenses of the establishment, and that such an appropriation will be plainly a compliance with the limitations of the will.
In order to treat this argument with fairness and to give its full force, it should be remembered that these proprietary restrictions imposed by this law upon these religious corporations, had a meaning of their own, and were evi[690]*690dently political in their character. They are the latest manifestations of that dread of property being held in mortmain, and that jealousy of ecclesiastical encroachment and monopoly, which so perseveringly has exhibited itself in English and American legislation. At all events, it is clear that it was a part of the legislative policy of this state that this class of corporations should not be the possessors of property beyond the fixed measure. The force of the argument, therefore, that we are now considering, lies in the circumstance that, assuming these to be the only facts in the case, to permit this trust to be executed is to permit this policy to be infringed. It is certainly no answer to this view to say, that if this church has not capacity to receive and execute this trust, that the bequest, being a charity, does not fail, but, in such event, the court will appoint another trustee to support and execute it. Such an answer seems to me to be founded on a misapprehension of the point of the objection, which is not that the trustee is too feeble to hold the trust, but that the purpose of the trust is illegal. When the object of a trust is to violate the policy of the law, a court of equity, in a case proper for its action, will not permit it to be executed by any hand whatever.
Eor can I assent to the other proposition, that if, as the contention assumes, this bequest is violative of the law if carried into effect, that none but the state can intervene. I find no warrant for such a doctrine, either in the legal principles belonging to the subject or in the adjudications. There can he no doubt that there are cases in which, when a corporation has acquired rights of property to an extent or in a manner unwarranted by its charter, no one but the public can have the right to complain. A grantor making title to a corporation might bo estopped from questioning the effect of his own conveyance. So, a mere stranger could not question such a corporate title. But I have not observed any decision that asserts, when a title is created by devise which vests in a corporation, for its own use, a larger quantity of property than the laws authorize, that the heir at law has no [691]*691right to make objection. The authorities referred to do not lend countenance to such a doctrine. Thus, in the case of Bogardus v. Trinity Church, 4 Sandf. Ch. 633, a stranger attempted to attack the title of the corporation on the ground of a usurpation by such corporation; and Runyan v. Coster’s lessees was a case following the case of Leazre v Hillegas, 7 Serg. Rawle 313, in which the question was, whether a corporation taking a title in a manner repugnant to the limitations of its charter, could pass a legal title to its grantee, and it was held that it could do so, subject to the right of the state to avoid such an estate.
These cases rest on the obvious principle that the capacity of the corporate body to become the grantee in the given case, cannot be challenged by a party who does not stand in a position to raise the question. In such a position, it would be true that the state alone could object to such corporate act. But such instances are to be discriminated from that other class, where the corporation claims to take and hold by devise, in contravention of law, and the heir of the ■devisor is the party complaining. In this latter situation, the doctrine enforced in the cases cited does not apply. In this connection, the case of Miller v.. Lerch, 1 Wall. Jr. 210, is apposite. The facts of that case were essentially similar ■to those now under judgment, so far as relates to this particular point; there was a devise of an estate of over ^300,000 to two church corporations which had been created under a statute giving to each the right to receive and hold property, provided it did not exceed the eleár yearly value or income of $2,000; the heir at law brought ejectment, and was .defeated, on the ground that, by force of •certain statutes of that state, the title at law passed to the corporations, but, so far was Mr. Justice Grier (who presided) from asserting that the heir at law had not the right to draw the title in question, that he said : “ The remedy, therefore, of the plaintiff should be by a bill in equity, and not by ejectment. If, on the hearing of the cause in equity, the court should be of opinion that the trusts limited in this [692]
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The opinion of the court was delivered by
Beasley, O. J.
In this case, there are but two objections to the effectuation of that clause in this will which is contested, that seem to me to require discussion. The first of these raises the question, whether or not this religious corporation, the North Reformed Dutch Church of Newark, can legally take the testamentary donation in question, in view of the restrictions contained in the law creating it; and the second is, whether this testamentary provision creates a valid charitable use ?
With respect to the first point: The contention of the counsel of the appellants, on this branch of the case, is, that this corporation cannot take the benefit of this trust without violating a restrictive provision of its own charter. The fol[689]*689lowing are the circumstances relied on to justify this conclusion : The North Reformed Dutch Church of Newark was organized by force of the act entitled “An act to incorporate trustees of religious societies,” passed April 17th, 1846 (Nix. Dig. 802), which, in section 11, constitutes the minister, elders and deacons of every Reformed Dutch congregation trustees of the same, and a body politic and corporate in law; and, in section 13, enables such trustees to acquire, purchase, receive, have and hold any lands, tenements, hereditaments, legacies, donations, moneys, goods and chattels, in trust, for the use of the said congregation, to any amount in value not exceeding $2,000 a year &c.
At the time this will went into operation, this church, it is admitted, was possessed of its complement of property which this law authorized, for such property was in value at least $2,000 a year.
Erom these facts it is urged that, as the testamentary clause in question empowered the trustees, in their discretion, to use the fund bequeathed, to promote the religious interests of the church, it was, in substance and effect, an illegal addition to their property, so that, if the trust was effectuated, the statute would be violated. It will be observed, that the first power that the will gives over the trust fund is, that the trustees of the church “ may use the same to promote the religious interests of the said church,” and it is insisted that, by force of such provision, they may, if they see fit, apply the whole fund to the same uses to which they devote the property. they are authorized by law to hold. It is said, they may devote this fund to the support of their minister, or to any of the other ordinary expenses of the establishment, and that such an appropriation will be plainly a compliance with the limitations of the will.
In order to treat this argument with fairness and to give its full force, it should be remembered that these proprietary restrictions imposed by this law upon these religious corporations, had a meaning of their own, and were evi[690]*690dently political in their character. They are the latest manifestations of that dread of property being held in mortmain, and that jealousy of ecclesiastical encroachment and monopoly, which so perseveringly has exhibited itself in English and American legislation. At all events, it is clear that it was a part of the legislative policy of this state that this class of corporations should not be the possessors of property beyond the fixed measure. The force of the argument, therefore, that we are now considering, lies in the circumstance that, assuming these to be the only facts in the case, to permit this trust to be executed is to permit this policy to be infringed. It is certainly no answer to this view to say, that if this church has not capacity to receive and execute this trust, that the bequest, being a charity, does not fail, but, in such event, the court will appoint another trustee to support and execute it. Such an answer seems to me to be founded on a misapprehension of the point of the objection, which is not that the trustee is too feeble to hold the trust, but that the purpose of the trust is illegal. When the object of a trust is to violate the policy of the law, a court of equity, in a case proper for its action, will not permit it to be executed by any hand whatever.
Eor can I assent to the other proposition, that if, as the contention assumes, this bequest is violative of the law if carried into effect, that none but the state can intervene. I find no warrant for such a doctrine, either in the legal principles belonging to the subject or in the adjudications. There can he no doubt that there are cases in which, when a corporation has acquired rights of property to an extent or in a manner unwarranted by its charter, no one but the public can have the right to complain. A grantor making title to a corporation might bo estopped from questioning the effect of his own conveyance. So, a mere stranger could not question such a corporate title. But I have not observed any decision that asserts, when a title is created by devise which vests in a corporation, for its own use, a larger quantity of property than the laws authorize, that the heir at law has no [691]*691right to make objection. The authorities referred to do not lend countenance to such a doctrine. Thus, in the case of Bogardus v. Trinity Church, 4 Sandf. Ch. 633, a stranger attempted to attack the title of the corporation on the ground of a usurpation by such corporation; and Runyan v. Coster’s lessees was a case following the case of Leazre v Hillegas, 7 Serg. Rawle 313, in which the question was, whether a corporation taking a title in a manner repugnant to the limitations of its charter, could pass a legal title to its grantee, and it was held that it could do so, subject to the right of the state to avoid such an estate.
These cases rest on the obvious principle that the capacity of the corporate body to become the grantee in the given case, cannot be challenged by a party who does not stand in a position to raise the question. In such a position, it would be true that the state alone could object to such corporate act. But such instances are to be discriminated from that other class, where the corporation claims to take and hold by devise, in contravention of law, and the heir of the ■devisor is the party complaining. In this latter situation, the doctrine enforced in the cases cited does not apply. In this connection, the case of Miller v.. Lerch, 1 Wall. Jr. 210, is apposite. The facts of that case were essentially similar ■to those now under judgment, so far as relates to this particular point; there was a devise of an estate of over ^300,000 to two church corporations which had been created under a statute giving to each the right to receive and hold property, provided it did not exceed the eleár yearly value or income of $2,000; the heir at law brought ejectment, and was .defeated, on the ground that, by force of •certain statutes of that state, the title at law passed to the corporations, but, so far was Mr. Justice Grier (who presided) from asserting that the heir at law had not the right to draw the title in question, that he said : “ The remedy, therefore, of the plaintiff should be by a bill in equity, and not by ejectment. If, on the hearing of the cause in equity, the court should be of opinion that the trusts limited in this [692]*692devise are such as the chancellor could not execute, it will treat the devisees as trustees of the heirs at law or next of kin, and decree a conveyance of the legal estate to them.” The distinction is, that when the trust itself is unexceptionable, the legal incapacity of the designated trustee to hold and execute the trust, will afford no ground for declaring the limitation void ,but will lead merely to the substitution of a proper trustee, by the court having the apjoropriate jurisdiction. But when the complaint is made by the heir at law, before the proper tribunal, that the devise is illegal in its nature, and cannot be lawfully executed by any trustee, I think no well-considered case can be found denying his right to raise up the dispute touching such devise. Indeed, this was, in truth, the attitude of the heirs at law in the great controversy relating to the Girard will; thei r position being, that the testamentory dispositions then drawn in question, were opposed to certain essential principles of state policy, and, on that account, were void; and no one questioned their right to intervene, or pretended that, on such an issue, the public alone could challenge the title of the city. Mr. Perry, in his well-digested work on Trusts (Yol. 1 § 160), correctly lays down the legal principle on this subject. lie says, that where a gift is made upon trusts that are void, in whole or in part, for illegality, a trust will result to the donor, his heirs or legal representatives, and, as illustrations from adjudged cases, he instances the example of a trust which is void by statute, as a disposition in favor of persons or objects prohibited from taking, or where the gift contravenes some policy of the law, as tending to a perpetuity. The recent case of Luckraft v. Pridham, L. R. (6 Ch. Div.) 205, is illustrative of the same principle, and Bridges v. Pleasants, 4 Ired. Eq. 26, may be specially referred to in this connection.
I have already said that, in the present case, the gist of the objection is, not that this corporation cannot take and hold against the objections of any one but the state, even if, in so doing, it transcends its legal capacity, but that this [693]*693testamentary disposition itself is illegal, and can not be executed lawfully by any trustee whatever, being opposed to a principle of civil policy established by legislation. I have no doubt that the heir at law has a standing in court to raise such a contention, and that, in a court of equity, he would be entitled to prevail if he could succeed in establishing the proposition on which such defence rests.
But I have concluded that there is another element in this case, that strips the foregoing contention of all its legal force, and that is, that by the act of 1872 {Rev. p. 959, § 8), the capacity of this corporation to acquire property is greatly enlarged, and, in one direction, is made unlimited. The act referred to, and which was in force when the testatrix died, declares that “ it shall be lawful for any religious society in this state, however incorporated, to purchase and hold, and also to convey and dispose of, any real estate which they may deem necessary and expedient; provided that the same shall not be used by the religious corporation acquiring the same, for any other purpose than the rendering and maintaining, in any building now or hereafter erected upon such real estate, the worship of Almighty God, and the furtherance of religion according to the tenets and forms of worship of the religious denomination to which such religious society belongs, or for the education or the administration of charity to the bodies or souls of men.”
Here, it will be perceived, is a plain grant of authority given to these corporations to purchase and hold all such land as they may deem expedient, as the sites of buildings, to be devoted to the specified uses. There is no restriction on the quantity or value of lands that may be so purchased and held, and the consequence is, that the receptivity of the corporation, with respect to property, is practically unrestricted, provided, in the limitation of such property to such corporation, it is not specially appropriated to purposes other than those designated in the statute. Thus, therefore, if a gift should be made to one of these corporations having its complement of property to the annual value of [694]*694$2,000, of the further sum of $5,000 to be employed for the support of the minister, such a gift would be in contravention of the laws above referred to, because this addition to the corporate funds could be used only for the purpose specified, and such purpose is not one of the uses designated in the act of 1872. But if such gift should be bestowed in general terms for the uses of such corporation, then it is plain such gift is not inconsistent wdth any of the provisions of these statutes, inasmuch as such gift may be devoted to a use sanctioned by them.
The rule I consider quite unquestionable, that whenever there is a corporate capacity to receive donations for particular uses, a donation in general terms to such corporation will be valid, as the law will infer that the purpose of the donor was lawful, and that it was his intention that his gift should be appropriated to some of the legitimate uses. In the present case, these trustees can, by force of the legislation just recited, lawfully apply this whole fund in the purchase of a site of a church school-house, and such use of the trust moneys would be within both the statutory and the testamentary limitations. Such being the ease, it is plain that such gift cannot be said to be in violation of such statute. I can, therefore, perceive nothing illegal in the first clause of this trust that authorizes these trustees to use this fund, if they see fit so to do, “ to promote the religious interests of the said church.”
It remains to consider the second objection : It will be remembered that the limitation is to use the fund “ to promote the religious interests of the said church, and to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing,” and it is urged, that this entire trust cannot be said to be charitable, within the legal signification of that term, inasmuch as the word “ benevolent,” by its natural force, takes in objects and purposes that are not charities. That this term has this latitudinarian meaning, was,-upon full consideration, decided by this court in the case of Norris v. Thomson’s ex’rs, 5 C. E. [695]*695Gr. 489. That exposition went on the ground of the intrinsic meaning, and the unchecked form, of the term, for on that occasion it was considered that there was nothing present tending to hem in or narrow its import. As the word “ benevolent ” is admittedly broader in its meaning than the word “ charitable ” in its technical sense, I am unable to ■comprehend how the decision in question could have been ■other than it is, unless upon the inadmissible assumption that, when there is no guide to the testator’s intention but his language, the court is possessed of the arbitrary power of altering such language. It will be found, I think, in ■almost all the decisions, that when these expressions have been taken in any sense but the technical or popular sense ■respectively, there has been something in the context justifying the particular interpretation.
I do not think much of precedents in such a matter, for in the multitude of cases that, in a general way, illustrate ■the subject, scarcely two can be found that are identical in ■circumstance and expression, and unless two cases are identical in such particulars, the one can have but little bearing •on the other in point of authority. The general rules of -construction appear to me to be the best criteria on these ■occasions, and one of the most important of such rules is that, when the terms of such a limitation as this, in view of the whole instrument, have a clear meaning, judicial astuteness, employed either to uphold or suppress the instrument, •is quite out of place. In the absence of any criterion but the naked signification of the terms themselves, a court, in my opinion, can no more say that benevolence has the import of charity, and nothing more, because in some of their senses the two words assimilate, than it would be legitimate to adjudge that the number five means four because the two numbers are but a single remove from each-other. Nor can I go with that process of reasoning that concludes that when the word “benevolent” is conjoined to the word “charitable,” the two words become identical in meaning, as that implies that one of the terms is to be dispensed with, or [696]*696that the lesser term swallows up the larger one. The fact is,, in such connection, there is nothing incongruous, nor is-there even a shade of uncertainty in the meaning of the words; and, in such a naked case as I have supposed, for the court to strike out the broader of the descriptive terms, may indeed uphold, now and then, a testamentary limitation,, but at the same time one of the most important canons that the law has established for the construction of written instruments, is impaired. But, as I regard this point as-entirely settled by the decision of this court in the case just-noticed, I shall not further pursue the subject.
But accepting in its full force, as I do, this principle of' construction, I have altogether failed to see how it is to be applied so as to make it of much importance in the present case. In this will, the words in question do not depend on their intrinsic qualities alone for their signification. The facts shown, clearly demonstrate the sense in which the testatrix used these terms. It does not seem to me that the-matter has been left in the least uncertainty. It appears in the case, by the proofs, that this church has been in the habit of making donations to certain enterprises and objects,, .such as the foreign and domestic missions, the bible society &c., all of which enterprises are charities in the legal sense of the term. When, therefore, this will declares the trust, and directs the property to be used “to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing,” the will itself provides a standard by which the word “benevolent” is to be measured. The fund is not to be used to aid any benevolent enterprise, but only benevolent enterprises of a certain defined character, and they are charities. The word “benevolent” is thus, by the context and the subject matter, cut down into legal dimensions. From the first, I have seen no difficulty on this point.
I shall vote to affirm the decree.
Decree unanimously affirmed.