Hosmer, Ch. J
The precise question to be determined, is, whether the Yearly Meeting, or Rowland Greene, in reference to the land in question, are the devisees of Sylvester Wickes. If they are not, the defendant, who founds himself on being their lessee, must fail in his defence.
Before entering on the enquiry, necessarily involved in the case, I will disembarrass it of some considerations urged by the defendant’s counsel.
It has been insisted, that if a bequest be for a charity, it matters not how uncertain the persons or objects may be ; or whether the devisee be a corporation capable in law of taking; and in support of the principle, a number of determinations in chancery have been cited.
The defendant’s counsel have referred to the 3rd section of the statute, concerning lands, (tit. Lands, sect. 3.) which provides, that real estate “ given or granted” for public and charitable uses, shall remain to such uses, and no other. But the property must be “ given or granted,” before it falls within the purview of this law ; and whether this is the fact, is the question put for our determination. The law above cited, has no bearing on the enquiry concerning the legal title ; the only en-quiry in the case.
Before attending to the questions presented, it may not be unuseful to state a few of the established rules for the construction of devises. A last will must have a favourable interpretation, and as near to the mind and intent of the testator, as may be ; but this intention must stand with the rules of law, and not be repugnant thereunto. Shep. Abr. part 10. voc. Testament, Powel on Devises, 426. It is, likewise, a settled principle, that the construction of a will must be derived from the words of it, and not from an extrinsic averment.
1. Can the members of the Yearly Meeting of the people called Quakers, take and hold the premises, as individuals ? This is the first enquiry.
In what manner the Yearly Meeting was composed, the motion does not state; but throughout the argument, it has been admitted, and without the admission it is too obvious to be ques[300]*300tioned, that the members of it assembled by delegation. The Yearly Meeting, it was said, is composed of representatives from the Quarterly Meetings, and such other members of the society within its limits, as may be present. It is very unnecessary precisely to ascertain the composition of this meeting. Two positions, in my opinion, are indisputably certain. The first is, that it was the intention of the testator to devise the estate in question, to the Yearly Meeting, and not to the individuals composing it. Hence, it is given to this assemblage, “ and to their successors.” Perhaps, this distinction is unimportant; for whether the devise was to the Yearly Meeting, or to the members constituting it, the legal result will be the same. The devise, in either event, was not to any certain individuals ; hut to the members of an assembly, meeting together annually; and to such other members of this variable body, in endless succession, as by delegation should compose it. There was no antecedent certainty, that those who were the members of the Yearly Meeting at the death of the devisor, would continue such a single year; but in all probability there would be an annual change of, at least, part of the members, and beyond all doubt, within no distant period, they would all be swept from the stage of action. And what decisively shews the devisor’s intention ; anticipating this fluctuation, he provides for the performance of the trust, by designating the successors of the Yearly Meeting, and treating that body, as if it were a corporation. It is obviously opposed to the intention of the devisor, to construe the devise as vesting an estate in the individuals of the Yearly Meeting, being members of it at his death; and then to continue the estate in them, after they had ceased to be members. The words of the devise give the property in question, to the members of the Yearly Meeting, and their successors ; unquestionably, intending, that none but members, should have any part in it; and the nature of the case speaks the same language. It was the testator’s object to execute a perpetual trust, and this he would have done, if the Yearly Meeting was a corporation capable of becoming trustees of the estate devised. But, if the individuals existing at his death, and being members of the Meeting, were invested with the land devised, in fee simple, what would become of the trust, on their ceasing to be members ? Scattered over a wide extent of country, without any necessary or conventional meeting; their duty as trustees they would be incapable of performing. This is the most favourable view of [301]*301the subject. Soon, by death, some of the individuals would leave no heirs ; others, would leave numerous minor children ; the number of the trustees would increase astonishingly ; and the difficulties, every moment, would thicken, and be more and more insuperable It is repugnant to common sense, to ascribe to the testator the absurd intention, of constituting the individuals living at his death, his trustees. There can exist no dOubt, then, that the devise in question, was to the Yearly Meeting, constituted such by delegation, or to the members of it, in endless succession.
The second position alluded to, is, that the testator’s intention is repugnant to the rules and principles of law. This point is too clear, to require discussion.
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Hosmer, Ch. J
The precise question to be determined, is, whether the Yearly Meeting, or Rowland Greene, in reference to the land in question, are the devisees of Sylvester Wickes. If they are not, the defendant, who founds himself on being their lessee, must fail in his defence.
Before entering on the enquiry, necessarily involved in the case, I will disembarrass it of some considerations urged by the defendant’s counsel.
It has been insisted, that if a bequest be for a charity, it matters not how uncertain the persons or objects may be ; or whether the devisee be a corporation capable in law of taking; and in support of the principle, a number of determinations in chancery have been cited.
The defendant’s counsel have referred to the 3rd section of the statute, concerning lands, (tit. Lands, sect. 3.) which provides, that real estate “ given or granted” for public and charitable uses, shall remain to such uses, and no other. But the property must be “ given or granted,” before it falls within the purview of this law ; and whether this is the fact, is the question put for our determination. The law above cited, has no bearing on the enquiry concerning the legal title ; the only en-quiry in the case.
Before attending to the questions presented, it may not be unuseful to state a few of the established rules for the construction of devises. A last will must have a favourable interpretation, and as near to the mind and intent of the testator, as may be ; but this intention must stand with the rules of law, and not be repugnant thereunto. Shep. Abr. part 10. voc. Testament, Powel on Devises, 426. It is, likewise, a settled principle, that the construction of a will must be derived from the words of it, and not from an extrinsic averment.
1. Can the members of the Yearly Meeting of the people called Quakers, take and hold the premises, as individuals ? This is the first enquiry.
In what manner the Yearly Meeting was composed, the motion does not state; but throughout the argument, it has been admitted, and without the admission it is too obvious to be ques[300]*300tioned, that the members of it assembled by delegation. The Yearly Meeting, it was said, is composed of representatives from the Quarterly Meetings, and such other members of the society within its limits, as may be present. It is very unnecessary precisely to ascertain the composition of this meeting. Two positions, in my opinion, are indisputably certain. The first is, that it was the intention of the testator to devise the estate in question, to the Yearly Meeting, and not to the individuals composing it. Hence, it is given to this assemblage, “ and to their successors.” Perhaps, this distinction is unimportant; for whether the devise was to the Yearly Meeting, or to the members constituting it, the legal result will be the same. The devise, in either event, was not to any certain individuals ; hut to the members of an assembly, meeting together annually; and to such other members of this variable body, in endless succession, as by delegation should compose it. There was no antecedent certainty, that those who were the members of the Yearly Meeting at the death of the devisor, would continue such a single year; but in all probability there would be an annual change of, at least, part of the members, and beyond all doubt, within no distant period, they would all be swept from the stage of action. And what decisively shews the devisor’s intention ; anticipating this fluctuation, he provides for the performance of the trust, by designating the successors of the Yearly Meeting, and treating that body, as if it were a corporation. It is obviously opposed to the intention of the devisor, to construe the devise as vesting an estate in the individuals of the Yearly Meeting, being members of it at his death; and then to continue the estate in them, after they had ceased to be members. The words of the devise give the property in question, to the members of the Yearly Meeting, and their successors ; unquestionably, intending, that none but members, should have any part in it; and the nature of the case speaks the same language. It was the testator’s object to execute a perpetual trust, and this he would have done, if the Yearly Meeting was a corporation capable of becoming trustees of the estate devised. But, if the individuals existing at his death, and being members of the Meeting, were invested with the land devised, in fee simple, what would become of the trust, on their ceasing to be members ? Scattered over a wide extent of country, without any necessary or conventional meeting; their duty as trustees they would be incapable of performing. This is the most favourable view of [301]*301the subject. Soon, by death, some of the individuals would leave no heirs ; others, would leave numerous minor children ; the number of the trustees would increase astonishingly ; and the difficulties, every moment, would thicken, and be more and more insuperable It is repugnant to common sense, to ascribe to the testator the absurd intention, of constituting the individuals living at his death, his trustees. There can exist no dOubt, then, that the devise in question, was to the Yearly Meeting, constituted such by delegation, or to the members of it, in endless succession.
The second position alluded to, is, that the testator’s intention is repugnant to the rules and principles of law. This point is too clear, to require discussion. A corporation alone, authorized by the sovereign power, and vested with perpetual succession, is capable of fulfilling the testator’s intention.
I will cite a few only of the authorities applicable to this point, and dismiss it.
A grant to the parishioners or inhabitants of Dale ; or to the commoners of a certain waste ; and such like grants, are utterly void for uncertainty. Co. Litt. 3. a. Shep. Touch. 235. So, a devise to the inhabitants of Boxford, living within the Northwest parish. Barker v. Wood, 9 Mass. Rep. 419. So, a grant to the people of the county of Otsego. Jackson d. Cooper & al. v. Cory, 8 Johns Rep. 385. 388. So, a reservation in a deed to the inhabitants of Rochester. Hornbeck v. Westbrook, 9 Johns. Rep. 73.
The case of the Baptist Association v. Hart’s Executors, 4 Wheat. 1. is, in no essential particular, distinguishable from the case before the court. It was founded on a devise, to the Baptist Association, that for ordinary meets at Philadelphia annually, as trustees of certain military certificates, to constitute a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry. By the court, it was held, that the association not being incorporated, at the testator’s decease, could not take this trust as a society ; and that the bequest could not be taken by the individuals, who composed the association, at the death of the testator. In assigning their reasons, it was said, by the court, that it was obviously the intention of the testator, that the association should take in its character as an association ; and that, not being incorporated, it was incapable of taking this trust as a society; and the court was decidedly of opinion, that the individuals, [302]*302composing the association, at the death of the testator, could not take. "No private advantage was intended them; nothing was intended to pass to them hut the trust; and that they are not authorized to execute as individuals." "It is the association forever," said Ch. J. Marthall, "not the individuals, who, at the time of the testator's death, might compose the association, and their representatives, who are to manage this perpetual fund."
From the cited cases it is unquestionable, that the devise to the Yearl, Meeting, if it was not incorporated, was void.
2. The next question that arises, in the case, is, whether the Ytarly Meeting was a corporation, capable of holding land in trust.
By a corporation, is understood, in contradistinction from a voluntary association of individuals, a society created by the sovereign power.
At the trial of this cause, no charter of incorporation was exhibited. It, however, was contended, from a long and continued exercise of certain acts, that an incorporation ought to be presumed.
That a grant or charter is presumable, from the long continued exercise of authority, is indisputable, and has not been disputed; and all the cases cited, by the defendant's counsel, tend only to prove this unquestionable principle. The enquiry, in this case, involves no question of law, and turns entirely on a point of fact. Admitting all the acts done by the Yearly Meeting, for more than a century, to have been lawful, do they warrant the presumption, that they were incorporated? This is the precise enquiry; and in his charge to the jury, the judge, recognizing the law of presumptions, instructed them, that the acts done must have been such, as an unincorporated Yearly Meeting could not have performed. When fairly construed, the following was, virtually, theopinion expressed. If the acts done by the Yearly Meeting bear on the face of them the impress of corporate acts; such as individuals cannot, and a corporation alone is competent to, perform; you may presume the Yearly Meeting to be a corporation : But if their acts were within the competency of individuals to perform, they furnish no ground to presume, that they were other than the acts of individuals. The inference to be drawn, by the jury, was of a fact enquired after, from facts established; and their reasoning was to be from the effect to the cause. The law made no inference on the subject, nor gave [303]*303to the testimony a technical efficacy, beyond its simple and natural operation. The principle had before been recognized in Hart v. Chalker, 5 Conn. Rep. 311. “A usage,” said the court, “ supposed to be founded on a grant or agreement, determines the extent of the supposed grant or agreement. The right granted is supposed to be commensurate with the right enjoyed. They are different media, proving precisely the same fact; and it is because of this identity of proof, that the usage is supposed to evince the grant. In short, like a seal, with its correspondent impression, the grant and the usage are, in point of proof, precisely and identically the same.”
The principle declared, by the judge, was, unquestionably, correct; and the verdict of the jury necessarily implies, that the Yearly Meeting was not a corporation.
From the evidence exhibited, and spread on the motion before us, my mind is led to the same results. Every act of the Yearly Meeting is entirely reconcileable with the belief, that it was done by persons, not by virtue of corporate authority, but as a voluntary association of individuals. Let it be supposed, that the members of the Yearly Meeting were a delegation, to whom was confided the supervision of the spiritual concerns of the people called Quakers ; that by voluntary contribution of their constituents, and others, they were invested with funds to this end ; and that they directed the general concerns and the application of their funds, by joint agreement, and with no more of compulsion, than is implied, in the voluntary and cheerful acquiescence of those, whose interests they were pursuing. Superadd to this, that they kept records of their proceedings ; that they appointed a clerk and treasurer; that they held lands, as individuals, for the general advantage ; that they advised the payment of money, and sent to the respective quarterly meetings for their proportion ; that in fact, they celebrated marriages ; had burying places; and admitted members of their Meeting, or discarded them. Every one of these acts might be done by them as individuals, without corporate authority, and without coercion, except over their own funds. Their organization for the transaction of business and disposing of their property, with a president at their head, (which, I believe, did not exist;) with their clerk, and treasurer, and minutes of their proceeding, were nothing more than is usually done, by an unincorporated library company or bible society, or other voluntary assemblies. It does not appear, that land or proper[304]*304ty of any kind, was held by the Yearly Meeting, unless as tenants in common ; or that a tax was laid by them, other than an appointment for a voluntary contribution ; nor is there exhibited, in their constitution, organization, or proceedings, one mark or indicium of a corporation. Nothing was done by them, beyond the competency of individuals.
So far as the testimony adduced may be relied on, the members of the Yearly Meeting have never exercised one of those incidents, which necessarily and inseparably are annexed to every corporation. They have no perpetual succession, the primary object of corporate authority ; there has been no suing or being sued, no granting and receiving, no holding of lands or estate for their own use, or that of others, as a corporation ; no common seal, by which the intention of a corporate body is manifested; and no by-laws, for the better government of themselves. They appear to have had the capacity of agreeing, of advising, and of disposing of their own, as individuals; and beyond this, no capacity of theirs is discerned.
The inference from such premises, that the Yearly Meeting was incorporated, would be as groundless, as the supposition, that an individual, by virtue of his personal acts, gives proof of his being a corporation.
It is not sufficient for the defendant to shew, that the Yearly Meeting was a corporation ; but he must proceed further, and prove, that it is authorized, by virtue of its corporate powers, to hold property in trust for others. Such confidence is not incidental to every corporation, but in general, it is foreign to the end of its institution. Hence, a corporation cannot be seised of land to the use of another, (Bro.Abr tit. Feoffment. D. Cruise on Uses 22.) unless it has explicit authority for this purpose. Now, what act was ever exercised, by the Yearly Meeting, from which this power may be presumed ? No such act appears ; and hence the presumption of the corporate power in question, cannot be made.
I conclude, then, that the Yearly Meeting never was a corporation ; and if it were, that it never had the capacity of becoming a trustee for others.
3. It remains for consideration, the devise in question to the Yearly Meeting being void, whether the land demanded, descended to the heirs at law of the devisor, or were transferred to the residuary devisee.
In relation to real estate, it is an established principle, that in [305]*305case of a lapsed devise, the estate does not vest in the residuary devisee, but descends to the heir at law of the testator. Wills must be construed by the intent of the devisor, at the lime of making them. Of consequence, when property is given to a person incapable of taking, and there is a general devise of the residue; so far as respects the estate specifically devised, at the time of the will’s being made, there is an intentional disposition ; and it never was designed, that it should fall into the residuum. The law respecting the bequest of personal estate, is different; but as to the realty, the decisions have been uniform and unquestioned. Wright v. Hall, Fortes. 82. Ro v. Fludd, Fortes. 182. Doe d. Morris & al. v. Underdown, Willes 293. Watson & al. v. Earl of Lincoln & al. Amb. 338, 9. Attorney-General v. Johnstone, Amb. 580. Gravenor v. Hallum, Amb. 643. 645. 2 Madd. Ch. 81, The case of Crane v. Crane, 2 Root 487. scarcely requires being mentioned, by way of exception, as it was little discussed, and without the citation of any authority.
The other Judges were of the same opinion.
New trial not to be granted.
) See the cases cited in 4 Wheat. Rep. Appendix, 11. & seq.