Stockton, D
As the argument for the appellants, is chiefly based on the alleged incapacity of the Methodist Episcopal Church to take the estate devised, we shall, in the first place, briefly examine that question. It is claimed that the devise is void, and that the estate descended to the heirs, not for the want of, or uncertainty as to the, beneficiaries ; nor because the object of the charity was unlawful; but because the church, not being incorporated, is incapable of taking the trust as a society.
The authorities maintaining this doctrine, are of high respectability. Among those, in which it has been held that such a devise is void, may be mentioned, The Baptist Association v. Hart's Exrs., 4 Wheaton, 1, and King v. Rundle, 15 Barb. 139. In the first-named case, the bequest was “ to the Baptist Association that for ordinary meets in Philadelphia, to be a perpetual fund for the education of youths of the Baptist denomination who shall appear promising for the ministry.” The bequest was held, not only to be void at law, but one that could not be sustained by virtue of those rules by which a court of chancery, exercising its ordinary powers, is governed. 'In King v. Rundle, charitable bequests were made to several religious bodies, and the remainder devised to the Protestant Episcopal Society, for certain purposes. The bequests to the religious bodies, and the remainder over, were held void. The distinction must be borne in mind, however, as to the power of the chancellor to enforce a charitable trust, which was either illegal, or void for indefiniteness, or vague generality, and such as are only void at law, but which will be protected and enforced in equity. In M'Cord v. Ochiltree, 8 Blackford, 16, the bequest was to “the Theological Seminary at South Hanover, in the state of Indiana, all the remainder of my estate, to continue a permanent fund, and the interest tó be applied [190]*190to the education of pious, indigent jrouths, who are preparing themselves for the ministry of the gospel, and those only who strictly adhere to the Westminster Confession of Eaith, in its literal meaning.” This bequest was held to be void at law, for the reason that the Theological Seminary was at the time, an unincorporated society, and could not execute a trust of that character, for want of succession; and because the objects of the testator’s benevolence were too vaguely indicated, to be enabled to take the legacy, without the interposition of a trustee. The bequest, though void at law, was enforced in equity, as a charity, both in reference to the statute of 43 Elizabeth, chapter 4, and to the law of charities, independent of that statute.
The case of Burr's Exrs. v. Smith, 7 Vermont, 241, was a bilkin Chancery by the executors of the testator, in which the different 2>arties claiming legacies under the will of Joseph Burr, were brought before the court, in order to the .determination of the question, whether legacies to certain charitable associations, to wit: The American Bible Society, the American Colonization Society, the American Tract Society, and others of like character, should be paid. The legacies were all to the treasurers for the time being, of voluntary associations unincorjjorated. The will was sustained,' and the legacies ordered to be paid. The court say: “ Societies, or bodies of men unincorporated, have ever been considered at common law, capable of receiving gifts or legacies, to be a2Dplied to charitable uses,” and “ the want of a charter of incorporation, was no impediment to a body of men, changing from time to time, from receiving and distributing, according to the intent of the donor, money or other property, given or granted, for a charitable use.” In the same case, we find a reference to the opinion of Judge Baldwin, in the case of Magill v. Brown, decided in the United States Circuit Court for Pennsylvania, upon the subject of charitable uses, arising under the will of Sarah Zane. We do not find any full re2)ort of the case, but it is referred to, and its substance stated, in so many instances, that we think we are justified in citing it, without any apprehension [191]*191of a mistake as to its purport. Certain bequests were made by the will of Sarab Zane, to the Yearly Meeting of Eriends in Philadelphia, an unincorporated association for purposes of general and indefinite charity. These, as well as other bequests of a kindred nature, were held to be good and valid. Eeligious and charitable, though voluntary associations, were shown, in accordance with the doctrines of the state courts of Pennsylvania, to be capable of holding property, for pious and charitable uses; and as to such purposes, they were to be deemed incorporated. Judge Baldwin remarks, that “ the common law requires no charter, to enable a body of men to purchase chattels, or receive donations of money, a chattel interest, or an estate for the life of the grantee in land, by their name as a body, without other words.” 7 Vermont, 279, 316; 2 Howard, 197; 17 Howard, 390. An act of incorporation may be necessary to enable them to have perpetual succession, or to receive and hold goods or personal property in succession. The court say, however, in Burr v. Smith, supra, “ that a decision, that a company of individuals are incapable of receiving gifts for a public or charitable purpose, or that such a society should not be protected in the enjoyment of property 'given to them, would be at variance with all their received ideas, and the establishment of the state, and directly at war with’the principles of religious freedom. And herein they make no distinction between protecting them in the enjoyment of property actually in possession by gift, and enabling them to recover what is bequeathed to them, by will. 7 Vermont, 280. The case of the Baptist Association v. Hart's Exrs., so far as it decided that a court of chancery had no power to execute a charity void at law, independently of the statute of 43 Elizabeth, chapter 4, was overruled by the case of Vidal v. Girard's Exrs., 2 How. 127, in which it was held, that there is an inherent jurisdiction in equity, in cases of charity, and that charity is one of those objects, for which a court of equity has, at all times, interfered to make good that which, at law, was an illegal and informal gift; and that cases of charity, in courts of equity in England, were valid, [192]*192independently of, and previous to, the statute of Elizabeth. 2 Howard, 195. See also, 8 Blackford, 23; Potter v. Chapin, 6 Paige, 649; Bartlett v. Nye, &c., 4 Metcalf, 380. In Potter v. Chapin, Chancellor Walworth says : “ Although some doubt was thrown upon the question of charitable donations, for the-benefit of a community or body not incorporate, so as to be capable of taking and conveying the legal title of property, by the decision of the Supreme Court of the United States, in the case of the Baptist Association v. Hart's Exrs., I believe it is generally admitted, that the decision in that case was wrong. And it may now be considered as an established principle of American law, that the Court of Chancery will sustain and protect, such a gift, bequest, or dedication of property, to public or charitable uses, provided the same is consistent with local laws and public policy, where the object of the gift or dedication is specific, and capable of being carried into effect according to the intention of the donor.”
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Stockton, D
As the argument for the appellants, is chiefly based on the alleged incapacity of the Methodist Episcopal Church to take the estate devised, we shall, in the first place, briefly examine that question. It is claimed that the devise is void, and that the estate descended to the heirs, not for the want of, or uncertainty as to the, beneficiaries ; nor because the object of the charity was unlawful; but because the church, not being incorporated, is incapable of taking the trust as a society.
The authorities maintaining this doctrine, are of high respectability. Among those, in which it has been held that such a devise is void, may be mentioned, The Baptist Association v. Hart's Exrs., 4 Wheaton, 1, and King v. Rundle, 15 Barb. 139. In the first-named case, the bequest was “ to the Baptist Association that for ordinary meets in Philadelphia, to be a perpetual fund for the education of youths of the Baptist denomination who shall appear promising for the ministry.” The bequest was held, not only to be void at law, but one that could not be sustained by virtue of those rules by which a court of chancery, exercising its ordinary powers, is governed. 'In King v. Rundle, charitable bequests were made to several religious bodies, and the remainder devised to the Protestant Episcopal Society, for certain purposes. The bequests to the religious bodies, and the remainder over, were held void. The distinction must be borne in mind, however, as to the power of the chancellor to enforce a charitable trust, which was either illegal, or void for indefiniteness, or vague generality, and such as are only void at law, but which will be protected and enforced in equity. In M'Cord v. Ochiltree, 8 Blackford, 16, the bequest was to “the Theological Seminary at South Hanover, in the state of Indiana, all the remainder of my estate, to continue a permanent fund, and the interest tó be applied [190]*190to the education of pious, indigent jrouths, who are preparing themselves for the ministry of the gospel, and those only who strictly adhere to the Westminster Confession of Eaith, in its literal meaning.” This bequest was held to be void at law, for the reason that the Theological Seminary was at the time, an unincorporated society, and could not execute a trust of that character, for want of succession; and because the objects of the testator’s benevolence were too vaguely indicated, to be enabled to take the legacy, without the interposition of a trustee. The bequest, though void at law, was enforced in equity, as a charity, both in reference to the statute of 43 Elizabeth, chapter 4, and to the law of charities, independent of that statute.
The case of Burr's Exrs. v. Smith, 7 Vermont, 241, was a bilkin Chancery by the executors of the testator, in which the different 2>arties claiming legacies under the will of Joseph Burr, were brought before the court, in order to the .determination of the question, whether legacies to certain charitable associations, to wit: The American Bible Society, the American Colonization Society, the American Tract Society, and others of like character, should be paid. The legacies were all to the treasurers for the time being, of voluntary associations unincorjjorated. The will was sustained,' and the legacies ordered to be paid. The court say: “ Societies, or bodies of men unincorporated, have ever been considered at common law, capable of receiving gifts or legacies, to be a2Dplied to charitable uses,” and “ the want of a charter of incorporation, was no impediment to a body of men, changing from time to time, from receiving and distributing, according to the intent of the donor, money or other property, given or granted, for a charitable use.” In the same case, we find a reference to the opinion of Judge Baldwin, in the case of Magill v. Brown, decided in the United States Circuit Court for Pennsylvania, upon the subject of charitable uses, arising under the will of Sarah Zane. We do not find any full re2)ort of the case, but it is referred to, and its substance stated, in so many instances, that we think we are justified in citing it, without any apprehension [191]*191of a mistake as to its purport. Certain bequests were made by the will of Sarab Zane, to the Yearly Meeting of Eriends in Philadelphia, an unincorporated association for purposes of general and indefinite charity. These, as well as other bequests of a kindred nature, were held to be good and valid. Eeligious and charitable, though voluntary associations, were shown, in accordance with the doctrines of the state courts of Pennsylvania, to be capable of holding property, for pious and charitable uses; and as to such purposes, they were to be deemed incorporated. Judge Baldwin remarks, that “ the common law requires no charter, to enable a body of men to purchase chattels, or receive donations of money, a chattel interest, or an estate for the life of the grantee in land, by their name as a body, without other words.” 7 Vermont, 279, 316; 2 Howard, 197; 17 Howard, 390. An act of incorporation may be necessary to enable them to have perpetual succession, or to receive and hold goods or personal property in succession. The court say, however, in Burr v. Smith, supra, “ that a decision, that a company of individuals are incapable of receiving gifts for a public or charitable purpose, or that such a society should not be protected in the enjoyment of property 'given to them, would be at variance with all their received ideas, and the establishment of the state, and directly at war with’the principles of religious freedom. And herein they make no distinction between protecting them in the enjoyment of property actually in possession by gift, and enabling them to recover what is bequeathed to them, by will. 7 Vermont, 280. The case of the Baptist Association v. Hart's Exrs., so far as it decided that a court of chancery had no power to execute a charity void at law, independently of the statute of 43 Elizabeth, chapter 4, was overruled by the case of Vidal v. Girard's Exrs., 2 How. 127, in which it was held, that there is an inherent jurisdiction in equity, in cases of charity, and that charity is one of those objects, for which a court of equity has, at all times, interfered to make good that which, at law, was an illegal and informal gift; and that cases of charity, in courts of equity in England, were valid, [192]*192independently of, and previous to, the statute of Elizabeth. 2 Howard, 195. See also, 8 Blackford, 23; Potter v. Chapin, 6 Paige, 649; Bartlett v. Nye, &c., 4 Metcalf, 380. In Potter v. Chapin, Chancellor Walworth says : “ Although some doubt was thrown upon the question of charitable donations, for the-benefit of a community or body not incorporate, so as to be capable of taking and conveying the legal title of property, by the decision of the Supreme Court of the United States, in the case of the Baptist Association v. Hart's Exrs., I believe it is generally admitted, that the decision in that case was wrong. And it may now be considered as an established principle of American law, that the Court of Chancery will sustain and protect, such a gift, bequest, or dedication of property, to public or charitable uses, provided the same is consistent with local laws and public policy, where the object of the gift or dedication is specific, and capable of being carried into effect according to the intention of the donor.”
Our conclusion from these authorities is, that as a portion of the property devised in this instance, was intended by the testator, to be a perpetual fund, for raising the sums directed to be applied annually to the support of the missions of said church, and for the payment of the minister on said Winchester Circuit, so much thereof as may be sufficient for these purposes, must be administered by trustees ; and the church, as a society unincorporated, could not execute the trust. But what is given for immediate expenditure, in erecting and finishing the church building, contemplated by the testator, would be a good devise to, and might be taken by, the church, in its own name. And, if no other direction were given by the will, there could be no valid objections, to decreeing the money to be paid to the one who ordinarily receives and keeps the funds of the church, or to its treasurer for the time being. Burr v. Smith, 7 Vermont, 311; Walker v. Childs, Ambler, 524.
We next advert to the will of the decedent, in order to ascertain in whom the legal title of the estate devised, is vested by that instrument. In arriving at a true construe[193]*193tion, the intention of the testator is the first consideration, and the whole context of the will is to he taken together. Erom the language, “ I give and bequeath to the Methodist Episcopal Church, all the residue of my real estate not above disposed of, or the proceeds thereof,” separated from any other portion of the will, it might readily be inferred, that the testator intended to devise the real estate, so that the church should take the fee. But the inquiry is immediately suggested: Why, if such was his intention, should he direct that the defendants, Mayne and others, take charge of the devise, and invest the same in the safest and most productive manner, and apply the proceeds as by him further directed ? Does this not look, as if it was his intention to vest the legal title in the trustee ? There is an evident conflict, if we suppose it to have been his intention to vest the title to the estate in the church, in directing another body to take charge of it, and invest and disburse the proceeds. We have not been able to arrive at the conclusion that it was the intention of the testator, to give a fee simple estate in the lands to the Methodist Episcopal Church. On the contrary, we think it is clearly to be gathered from the language of the will, that such was not his intention. He speaks of having already conveyed one and a half acres of land to the board of trustees, the defendants in this suit, upon which a house of worship, for the use of the Methodist Episcopal Church was to be erected; and in the language of the will, “ for the purpose of further assisting in carrying out the design aforesaid,” he devises the residue of his real estate to the church, to be used and disposed of, as follows: “ The trustees above referred to, and their successors in office,” [giving the names of defendants,] “ to take charge of the said devise, bequest, or legacy, and to invest the same in such manner as will appear to them the most productive and safe, and the proceeds, dividends, and interest thereof, to be applied by them and their successors in office, &c.” We think it may fairly be inferred from this language, that the testator devised, and intended to vest, the legal title in the trustees named in his will, for the use of the church, and for further [194]*194assisting in carrying out the design of erecting the house of worship referred to, on the land before conveyed by him to the same trustees. Such, in our opinion, being his intention, it is to be respected by us, and as far as possible, and consisten!; with right, it is to govern.
If the language used by the testator in the several clauses of his will, is such as to give to the M. E. Church, and to the trustees, the defendants, respectively the fee simple title to the land, so far as the claims are irreconcilable, the latter must prevail — the first deed, and the last will, being always entitled to take place. 2 Boper on Legacies, 328 ; Preston on Legacies, 236; Sims v. Doughty, 5 Ves. 248; Doe v. Leicester, 2 Saunton, 109. In Boyd v. Talbott, 12 Ohio, 212, the will of Boyd gave all his estate, real and personal, and all moneys and proceeds arising from the same, and all moneys remaining after the payment of debts, to his wife, for the support of herself and family. He directed what remained of his property, after his wife’s death, to be divided among his children by his executors. He further directs his executors to lease the premises, and after paying the ground rents and taxes, to pay the proceeds to his wife. The court say, in reference to the legal title: “ The first clause standing alone, would invest the wife with the title. But the power to lease, in the clause last cited, coupled with the burden of paying taxes and ground rents, implies a larger interest than a mere naked power. The intention of the testator was, not to limit an estate to the wife, but an interest in the proceeds. The title of the land, then, is found in the executors of Boyd.” To the same purport, is the case of How v. Fuller, &c., 19 Ohio, 51. We are of opinion, therefore, that the trustees named in the will, took the legal title to the real estate devised, to the use of the Methodist Episcopal Church.
The position assumed by the complainants, that if an estate is devised to a church or society incapable of taking the legal title, the devise is void, and the estate so devised descends to the heirs, unincumbered, cannot receive our sanction. The property, in this instance, is given to a [195]*195charitable use, in every respect consistent with our laws and public policy. The object is specific and capable of being carried into effect, according to the intention of the donor. Such being the case, even though no trustees were interposed, and the church were incapable of taking the legal estate, the terms of the will create a trust in the property in the hands of the heirs of Miller, the testator. In McCartee v. Orphan Asylum Society, 9 Cowen, 484, Jones, Chancellor, says: “It is the settled doctrine of the court, in the construction of wills, and the administration of trusts, that a trust shall never be permitted to fail, through the failure or disability of the trustee to execute the trust; but shall be supported upon the intention of the testator; that the trust is attached and fastened to the land; and that the land remains chargeable with it, in, the hands of the heirs or devisee. Burr v. Smith, 7 Vermont, 307; Willard’s Eq. 580. So in Ohio. If the bequest sufficiently defines the trust, though it may be inefficacious to pass the legal title, the heir is charged with its performance. McIntyre's Poor School v. Zanesville Canal and Manufacturing Company, 9 Ohio, 287.
In Bartlett v. Nye, 4 Metcalf, 378, the testator had devised real estate to the American Bible Society. The heirs claimed the estate, on the ground that the devise was void, the society being unincorporated. It was held by the court, that a valid trust having been created by the will, the heir will become the trustee of those for whose use the donation is intended, and may be compelled by a court of equity, to execute the trust. Wherever a person, by will, gives property, and points out the object, the property, and the way in which it shall go, a trust is created, unless he shows clearly that his devise as expressed, is to be controlled by the trustee, and that he shall have an option to defeat it. Inglis v. Trustees of the Sailors’ Snug Harbor, 3 Peters, 112; 2 Vesey, Jr. 335. And the court might, upon well established principles of equity, have added, that when such a trust is created, a court of equity will support and enforce it, ev§n if the donor had appointed no trustee, and had let the prop[196]*196erty go to his heirs; for it is well 'settled, that where there is a beneficial trust, a court of equity will act as trustee, or appoint one, if necessary, for effectuating the objects of the grantor. Moore's Heirs v. Moore's Devisees, 4 Dana, 38. In the same lucid and able opinion, Robertson, C. J., says: “ Whenever the only objection to a devise or legacy is, that it is for the benefit of a class of private individuals, described collectively by some characteristic trait, by which they may be identified, if the donation be a charity within the statute of 43 Eliz., and is therefore valid, it is as a matter of course, as good and available as it would have been at common law, had it been to a competent person, in trust for another similar person identified in the will by his proper name; and consequently, whoever may hold the legal title, if it did not pass by the will, will hold it in trust for the collective body, to whose use it was dedicated by the testator. 4 Dana, 368.
The case of Stone v. Griffin, 3 Vermont, 400, was an action of ejectment for lands, and in its chief features bears a strong resemblance to the present case. The testator devised to the Methodist Episcopal Church, in Charlotte: “A fourth part of his real estate, the interest of which is to be appropriated for the support and payment of the constant preaching of the gospel in Charlotte, by the ministers of the Methodist Episcopal Church or Society, the principal or original stock to be kept whole, and unexpended, and the interest thereof only, annually appropriated and expended as aforesaid.” He further provided for the expenditure of the surplus, if any, in erecting a meeting-house, and purchasing books for the society; and in case of the extinction of the said Church or Society, the interest was to be placed at the disposal of the Annual Conference within whose bounds the said town of Charlotte might be comprised. He appointed seven persons agents and trustees, who were to receive, possess, improve, and take charge of said real estate, for the use and benefit of said Church in Charlotte, subject to the rules and discipline of the Methodist Church. The one-fourth of the real estate was set off according to the will, by the Court of Probate,' to the trustees for the church, and they took [197]*197possession. This action of ejectment was brought by the executor, for the heirs of the testator, claiming that the devise to the church was void. The court held, 1. That the church in Charlotte, having no legal perpetuity, could not take the fee; 2. That nothing but the use was given to it by the will; 8. That if the church should become extinct at Charlotte, and there should cease to be an Annual Conference of the Methodist Episcopal Church, there would then be no cestui que trust, and the estate would revert to the heirs at law; 4. That it was the intention of the testator that the trustees named, and their successors, should take an estate in fee; yet, as neither the church nor the trustees, possessed sufficient perpetuity to support a fee, the estate descended to the heirs at law, charged with the trust, and they must hold it for the church. On their failure or refusal, the cestioi que trust shall not lose the use,-for want of a trustee. The court, on application, will appoint others to execute the trust.
"We therefore think, that in no event, except upon the entire failure of the cestui que trust, would the complainants in this case, the heirs at law of the testator, be entitled to claim the estate devised by him for the charitable purposes mentioned in his will; and especially can they not come into a court of chancery, to have the devise declared void, and their claim to the estate made good. It belongs peculiarly to a court of equity to enforce a trust, recognized by the law of the land. And where the trust is for a definite object, and is sustained in point of law, there is no reason why the court, instead of declaring it void, and setting it aside, should not carry it into effect according to the benevolent intentions of the testator. The answer of the defendants, in order to show the nature of the charitable use intended to be established by the testator, and its consistency with the laws and public policy, as well as the capacity of the church to take the estate devised to it, sets forth fully and at length, the constitution and organization of the Methodist Episcopal Church, its nature, objects, and purposes. "We are satisfied, from the exposition given, that it should receive !the protection of the court, in securing it in the en[198]*198joyment of tbe estate bequeathed to it. We think we run no hazard in deciding, that the property may be safely committed to the care of the church and its officers. The objection raised by the demurrer is, that the devise was to the church, and that as the church was not an incorporated body, it could not take the estate; and that consequently the devise is void. We have endeavored to show, that this objection is answered by the fact, that the legal title of the property was vested in the trustees named in the will, and not in the church as a body or society. Such being our opinion, it is not necessary to inquire, whether it is to be considered as a gift of real or personal estate. That question may be determined by the church or those entitled to the beneficial interest. If land is devised, to be turned into money, it is presumed in equity to assume the very character of money-The party entitled may, however, prevent any conversion of the property from its present state, and hold it as it is-Story Eq. § 798. Nor do we see, that it is material for us to determine, whether the defendants take the estate in their corporate capacity, acquired since the death of the testator, or as trustees named in his will, and appointed to that office by the authorities of the church. The record shows, that it is the same persons who are to receive it, in whatever capacity they act. As they are shown to be all members of the Methodist Church, and of the particular class or society to which the decedent belonged, and for whose use the house of worship was designed to be erected, we see nothing to negative the propriety of defendants’ transferring the title and possession of the property they hold as trustees under the will, to the incorporation they represent, by appointment of the authorities of the church. Dutch Church v. Mott, 7 Paige, 81. The important point is, that the will of the testator be carried out, according to his intention, and that the charitable trusts established by it have their full and proper effect.. To this purpose it will be necessary that the trustees invest an amount of the proceeds of the estate in their hands,, sufficient to enable them to pay annually to the authorities of the church, the sum of five dollars for the [199]*199support of missions under its care; and a like sum for tbe minister or ministers whose plaee of labor shall embrace tbe class or society worshiping at the meeting-house erected on the land conveyed to said trustees. The remainder of the estate, or so much thereof as may. be requisite, is to be applied by them in ereeting and finishing the said house of worship, or in repairing the same, if already built and finished. If there is any residue remaining after providing for these objects, it is to be invested, and its annual proceeds added to the amount before directed to be applied towards the payment of the minister or ministers on the circuit.-
The judgment of the District Court on the demurrer, is affirmed.