Stockton, J.
The objection taken by Marshall, to the claim set up by the trustees to the land conveyed to them by McKean, is, “ that at the time the deed was ex[269]*269ecuted, there was no Congregational Church at Keokuk, in an organized or unorganized form; nor was there any associated body of persons to which the grantor referred or intended to refer.” The conveyance from McKean to Chittenden, passed a naked title; and, in terms, excluded the possibility of their having an interest or use. The use was separated from the legal title. The cestui que trust indicated in the deed, was not in existence, so that it was impossible for it to vest. It must return to the vendor Ve state the position assumed by Marshall, in the words of his counsel. It may be stated by them in different form and language, but it always comes to the same thing — there was no church in existence to take the beneficial interest in the property conveyed ; the trustees had no power to bring the church into existence; and the conveyance to Marshall, by the heirs of McKean, was a revocation of the grant.
In the first place, we have to say, that it was not contemplated by McKean, that the church was organized at the date of the deed, and the gift was not one in presentí, to take effect immediately upon its execution. It is for the use, benefit and support of the First Orthodox Congregational Church which shall be organized at Keokuk, that he gives the land. He directs the trustees what they shall do with the land, until such church is organized. He knew there was no such church then in existence, and it was to aid in its organization and support, that the donation was made. If, then, McKean’s heirs were entitled to the land, the deed was void ah initio. It conveyed no interest to the trustees, and it is immaterial whether they took possession of the land or not. It is immaterial how many Congregationalists there were in Keokuk at the time of its execution. It is immaterial whether the church has since been organized or not. There was no beneficiary in existence at the time, to take the trust estate, and therefore no interest passed. Such is the position and argument for' Marshall. It will not, perhaps, be controverted, that by an executory devise, a freehold may be made to commence in futuro, and no particular estate is necessary to support it. The future estate is to arise upon [270]*270some specific contingency, and the- fee simple is left to descend to the heir at law, until such contingency happens. 2 Blackf. 175. The number of contingencies is not material, if they are to happen within the limits allowed by law. The only question is, whether they are to happen within a reasonable time. 3 Peters, 115. In Inglis v. Trustees Sailors' Snug Harbor, the devise was to an association unincorporated, on its becoming incorporated. It was sustained by the court, on the ground that it did not purport to be a present devise to a corporation not in being, but a devise to take effect in futuro, upon the corporation being created; and the contingency was held not to be too remote. Eor the purpose of carrying into effect the intention of the testa-tor, courts will sanction any mode pointed out by him, consistent with the rules of law. They will not set aside the intent, because it cannot take effect as fully as the testator intended, but let it work as far as it can. 4 Yesey, 325; 12 Mass. 543; 3 Binney, 162. It has been held, that if the corporation for whose use the property is intended, is not in esse, and cannot come into existence, but by some future act of the crown, the gift is valid, and the court will execute it. White v. White, 1 Bro. Ch. 12. In such instances, the distinction must be observed between a devise to take effect in presentí, and the same devise to take effect in futuro. In the Baptist Association v. Hart's Exrs., 4 Wheaton, 1, the court considered the bequest gone for uncertainty as to the devisees, and because the society, not being incorporated, was incapable of taking the trust. But if the testator in that case, had bequeathed the property to the Baptist Association, on its becoming, thereafter, and in a reasonable time, incorporated, there could not have been a doubt but that the subsequent incorporation would, even in the opinion of the court deciding that case, have conferred on the association the capacity of taking and managing the fund. -3 Peters, 114. The court would have felt itself bound to carry out' the intention of the testator. It is the general rule, says Johnson, J., in Inglis v. Sailors' Snug Harbor, 3 Peters, 144, that where there is a present immediate devise, [271]*271there must exist a competent devisee, and a present capacity to take. But it is equally true, that if there exists the least circumstance from which to collect the testator’s contemplation or intention of anything else than an immediate devise, to take effect in presentí, then, if confined within legal limits, it is good as an executory devise. In McIntyre Poor School v. Zanesville Canal and Manufacturing Company, 9 Ohio, 203, it was held, that a bequest to charitable uses, may take effect as an executory devise to a corporation subsequently acquiring a capacity to take; and in the following cases it has been held, that a devise to a future incorporation is good: Porter's Case, 1 Coke Rep. 22; Coggeshall v. Pelton, 7 Johnson Ch. 292; Mylne v. Mylne 17 Louisiana Ch. 46.
The questions discussed in the case before us, arise under the deed by McKean to the trustees, and not under a devise by will. Eor Marshall, it is claimed, that this conveyance passed no estate, for the purposes of charity, because there was, at the time, no Congregational Church organized and in existence, to take the beneficial interest. In respect to conveyances between individuals, it is well settled, that every deed must have sufficient certainty as to the grantee who is to take under it. If it cannot be known who is to take, the grant is void, for the uncertainty. So, where the cestui que trust is incapable of taking the gift, the intervention of trustees does not remove the difficulty. And in general, it may be stated, that there is the same necessity for a cestui que trust, capable of taking the beneficial interest, that there is for a properly defined grantee in a deed. In this case, there must either be a cestui que trust capable of taking the use, or some overruling reason, why it should not be governed by the well settled rules of law; otherwise, the estate descended to the heirs of McKean at his death. Was the use bad to which McKean conveyed the land? The question is not whether the gift was void, because the church was not in existence. McKean knew the church was not organized. It was not a mistake on his part, in conveying to the use of a church, which was afterwards discovered to have no existence as a church organization. It [272]*272was not a conveyance to take effect in presentí. The grant is to the trustees, to appropriate the land, and all moneys arising from the sale, lease or rent thereof, to the use, benefit and support of the First Congregational Church which shall be organized at Keokuk. And until such church shall be organized, the trustees are to invest all moneys arising from the sale, lease or rent of said land, and allow them to accumulate, for the benefit of the church, until it is organized.
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Stockton, J.
The objection taken by Marshall, to the claim set up by the trustees to the land conveyed to them by McKean, is, “ that at the time the deed was ex[269]*269ecuted, there was no Congregational Church at Keokuk, in an organized or unorganized form; nor was there any associated body of persons to which the grantor referred or intended to refer.” The conveyance from McKean to Chittenden, passed a naked title; and, in terms, excluded the possibility of their having an interest or use. The use was separated from the legal title. The cestui que trust indicated in the deed, was not in existence, so that it was impossible for it to vest. It must return to the vendor Ve state the position assumed by Marshall, in the words of his counsel. It may be stated by them in different form and language, but it always comes to the same thing — there was no church in existence to take the beneficial interest in the property conveyed ; the trustees had no power to bring the church into existence; and the conveyance to Marshall, by the heirs of McKean, was a revocation of the grant.
In the first place, we have to say, that it was not contemplated by McKean, that the church was organized at the date of the deed, and the gift was not one in presentí, to take effect immediately upon its execution. It is for the use, benefit and support of the First Orthodox Congregational Church which shall be organized at Keokuk, that he gives the land. He directs the trustees what they shall do with the land, until such church is organized. He knew there was no such church then in existence, and it was to aid in its organization and support, that the donation was made. If, then, McKean’s heirs were entitled to the land, the deed was void ah initio. It conveyed no interest to the trustees, and it is immaterial whether they took possession of the land or not. It is immaterial how many Congregationalists there were in Keokuk at the time of its execution. It is immaterial whether the church has since been organized or not. There was no beneficiary in existence at the time, to take the trust estate, and therefore no interest passed. Such is the position and argument for' Marshall. It will not, perhaps, be controverted, that by an executory devise, a freehold may be made to commence in futuro, and no particular estate is necessary to support it. The future estate is to arise upon [270]*270some specific contingency, and the- fee simple is left to descend to the heir at law, until such contingency happens. 2 Blackf. 175. The number of contingencies is not material, if they are to happen within the limits allowed by law. The only question is, whether they are to happen within a reasonable time. 3 Peters, 115. In Inglis v. Trustees Sailors' Snug Harbor, the devise was to an association unincorporated, on its becoming incorporated. It was sustained by the court, on the ground that it did not purport to be a present devise to a corporation not in being, but a devise to take effect in futuro, upon the corporation being created; and the contingency was held not to be too remote. Eor the purpose of carrying into effect the intention of the testa-tor, courts will sanction any mode pointed out by him, consistent with the rules of law. They will not set aside the intent, because it cannot take effect as fully as the testator intended, but let it work as far as it can. 4 Yesey, 325; 12 Mass. 543; 3 Binney, 162. It has been held, that if the corporation for whose use the property is intended, is not in esse, and cannot come into existence, but by some future act of the crown, the gift is valid, and the court will execute it. White v. White, 1 Bro. Ch. 12. In such instances, the distinction must be observed between a devise to take effect in presentí, and the same devise to take effect in futuro. In the Baptist Association v. Hart's Exrs., 4 Wheaton, 1, the court considered the bequest gone for uncertainty as to the devisees, and because the society, not being incorporated, was incapable of taking the trust. But if the testator in that case, had bequeathed the property to the Baptist Association, on its becoming, thereafter, and in a reasonable time, incorporated, there could not have been a doubt but that the subsequent incorporation would, even in the opinion of the court deciding that case, have conferred on the association the capacity of taking and managing the fund. -3 Peters, 114. The court would have felt itself bound to carry out' the intention of the testator. It is the general rule, says Johnson, J., in Inglis v. Sailors' Snug Harbor, 3 Peters, 144, that where there is a present immediate devise, [271]*271there must exist a competent devisee, and a present capacity to take. But it is equally true, that if there exists the least circumstance from which to collect the testator’s contemplation or intention of anything else than an immediate devise, to take effect in presentí, then, if confined within legal limits, it is good as an executory devise. In McIntyre Poor School v. Zanesville Canal and Manufacturing Company, 9 Ohio, 203, it was held, that a bequest to charitable uses, may take effect as an executory devise to a corporation subsequently acquiring a capacity to take; and in the following cases it has been held, that a devise to a future incorporation is good: Porter's Case, 1 Coke Rep. 22; Coggeshall v. Pelton, 7 Johnson Ch. 292; Mylne v. Mylne 17 Louisiana Ch. 46.
The questions discussed in the case before us, arise under the deed by McKean to the trustees, and not under a devise by will. Eor Marshall, it is claimed, that this conveyance passed no estate, for the purposes of charity, because there was, at the time, no Congregational Church organized and in existence, to take the beneficial interest. In respect to conveyances between individuals, it is well settled, that every deed must have sufficient certainty as to the grantee who is to take under it. If it cannot be known who is to take, the grant is void, for the uncertainty. So, where the cestui que trust is incapable of taking the gift, the intervention of trustees does not remove the difficulty. And in general, it may be stated, that there is the same necessity for a cestui que trust, capable of taking the beneficial interest, that there is for a properly defined grantee in a deed. In this case, there must either be a cestui que trust capable of taking the use, or some overruling reason, why it should not be governed by the well settled rules of law; otherwise, the estate descended to the heirs of McKean at his death. Was the use bad to which McKean conveyed the land? The question is not whether the gift was void, because the church was not in existence. McKean knew the church was not organized. It was not a mistake on his part, in conveying to the use of a church, which was afterwards discovered to have no existence as a church organization. It [272]*272was not a conveyance to take effect in presentí. The grant is to the trustees, to appropriate the land, and all moneys arising from the sale, lease or rent thereof, to the use, benefit and support of the First Congregational Church which shall be organized at Keokuk. And until such church shall be organized, the trustees are to invest all moneys arising from the sale, lease or rent of said land, and allow them to accumulate, for the benefit of the church, until it is organized. The question then is, was the gift by McKean to the church, in contemplation of its organization, valid ? Was the use good?
^Mfh conveyances have been held good in Maine, in the case of Shapleigh v. Pillsbury, 1 Greenleaf, 271; in Massachusetts, in the case of Rice v. Osgood, 9 Mass. 38; in New York, in the case of Reformed Dutch Church v. Veeder, 4 Wendell, 494; and in the Supreme Court of the United States, in the case of the Town of Powlet v. Clark, 9 Cranch, 292, (3 Curtis, 358.) In these cases, it has been held, that if the lands are granted for pious uses, to a person or corporation not in esse, the right to the custody and possession of the lands remains in the grantor, until the person or corporation intended, shall come into existence, but the donor cannot resume the grant. If, on the other hand, the grant is made to individuals for the use of the church, which at the time of the grant is not incorporated as such, the persons to whom the grant is made, stand seized to the use, and when the church receives legal capacity to take and hold the real estate, the statute executes the possession to the use, and the estate vests. 4 Wend. 497. In Powlet v. Clark, Story, J., says: “A donation by the crown to the use of a non-existing parish church, may well take effect by the common law, as a dedication to pious uses. After such a donation, it would not be competent for the crown to resume it at its own will, or alien the property, without the same consent which is necessary for the alienation of other church property.” “ Before such church were duly erected and consecrated, the fee of the glebe would remain in abeyance, or at least, be beyond the power of the crown to alien, without [273]*273the ordinary’s consent.” 9 Curtis, 332. As to the object to which McKean was desirous of dedicating a portion of his estate, there can be no mistake. He prefaces his donation, by declaring himself “ desirous to promote the cause of true religion in the said town ” of Keokuk. He sought to provide for the organization and support of an Orthodox Congregational Church at that place, and for the" promotion of “ the cause of true Religion” there, by means of the preaching of the gospel to its people by ministers of .that order. But, can it for a moment'be supposed, that the beneficial results sought to be accomplished, were intended by him to be limited to the communicants, or members of the organized church ? That would be á very narrow view of the benefits to be conferred by the donor’s bounty, which would restrict it to the Congregational Church", whose organization was contemplated in the deed to the trustees. The 'beneficiaries were to be confined to no such narrow 'limits. The fund was, indeed, to be retained'until the particular church was organized. It wás to be' administered, if you please, and “the causé of 'true religion promoted,” by means of denominational teachers, holding the peculiar views and opinions 'in religious doctrine and church government understood to bé entertained by Orthodox Congregátionalists. . But we think we can clearly see that it was within "the contemplation of the donor,’that évery inhabitant of Keokuk, of whatever order, faith, or'persuasion, was to 'receive "the benefits of his bounty, and share in its 'effects:' They were all the beneficiaries, and the gift was á charity in its largest and most comprehensive sense, as understood either in morals or in law, and a trust-'in the narrow and "more restricted sense, as applied to conveyances between individuals,, which courts of equity have always recognized and enforced, “ It is'now too late,” says Stout, J.,' 3 Peters, 482, “to contend that a disposition to favor chaiity, "can Be construed according to the rules which are applicable to individuals.” Mc-Kean desired’ this church to be’ organized’"and supported 'in Kéó'kuk,' not alone that’it might be the means of furnishing rélfgibüs privileges and' instruction to those who,' from' time'"'" [274]*274to time, might become its members, but as the best means presented to him, of conferring a benefit upon the whole community in which it should be established.
This disposition to favor charity, was manifested by setting apart a portion of his estate for the support of the gospel, through the means and instrumentality of .the Congregational Church. There was no pecuniary consideration for the conveyance to the trustees. That was not necessary. Other considerations, quite as effectual and sufficient, moved him. The support of the gospel in a Christian country, is a sufficient consideration. 4 Wendell, 496. The objection that there was no beneficiary to take the use, is not sustained, either in law or fact. By direction of the grantor, and according to his intention, the estate vested in the trustees, until the beneficiaries for whom the charity was intended, were in a condition to call for the application of the fund in the hands of the trustees. Such appropriations have been held valid, upon principles other than those which ordinarily apply.between grantor and grantee, and are supported as dedications, to public and pious uses. 2 Cranch, 583.
Is the use bad, because the trustees named in the deed of McKean, had no power to organize the church, or bring it into existence ? Although the trustees ha‘d no power to organize the church, in the sense in which they might, under a power conferred by deed or will, establish a school for indigent scholars,” (1 Hawkins, 97,) or a college for the education of orphan children, (2 Howard, 127,) or an asylum for disabled seamen, (3 Peters, 99;) yet there was a duty devolved upon the trustees by the grantor, which shows that it was contemplated by him, that the fee should remain in them, subject to the capacity to be acquired by the persons of the Congregational faith in Keokuk as an organization, to require the appropriation and application of the fund. They were to sell, lease and rent the land, and invest the moneys arising therefrom, and-allow them to accumulate, until the church was organized. Although the church may not have been at this time in existence, there was still something to be done by the trustees, before the [275]*275use was to vest. In what respect does the principle on which such a grant may be sustained, differ from that established in Shapleigh v. Pillsbury, The Reformed Dutch Church v. Veeder, and Powlet v. Clark ? Wherein does it differ from from that which Judge Story says was established by Porter’s Case, 1 Coke Rep. 22, “ that if a feoffment is made to a general legal use, not superstitious, though indefinite,though no person is in esse who could be the cestui que use, yet the feoffment is good ?” 3 Peters, 487. Courts are acting judicially, as long as they effectuate the intention of the donor. 4 Dana, 366.
In sustaining the grant to the trustees in the present case, we will not be supposed desirous of exercising any other than judicial powers in carrying out the intention of Mc-Kean, as manifested both in his deed and his will. In one class of cases, it has been held, that the doctrine of cy pres, as administered in England, is a judicial doctrine, in which cases a court of equity may substitute or sanction any other mode that may be lawful or suitable, and which will effectuate the declared intention of the donor. Moore's Heirs v. Moore’s Devisees, 4 Dana, 355; Attorney-General v. Wallace's Devisees, 7 B. Monroe, 611. There is no necessity, however, in this case, for a resort to any such doctrine. No inadequate, illegal or inappropriate mode has been prescribed by McKean for making his charity available. The mode, prescribed by him has not failed. The trustees are ready and willing to carry it out on his own scheme, and the objects to be effected are identified and ascertainable. There is, therefore, no occasion for the exercise of a power, in England deemed a part of the prerogative of the sovereign, as parens patriae.
It is claimed for Marshall, that he purchased the interest-of McKean’s heirs, for a valuable consideration; that the right to resume the grant was in McKean at his death, and descended to his heirs; and that by their conveyance, Marshall became possessed of a complete legal title to the land, which no subsequent organization of the church could divest. We admit that if Marshall’s title was ever good, it is-[276]*276good still. But it will readily be perceived that his title may be adjudged good and sufficient on one statement of facts made to the court, when it would not be so deemed when the whole or additional facts were made to appear. It might well be deemed sufficient, on demurrer to the bill in Chancery filed by him, to set aside the deed to the trustees, when it would be considered wholly insufficient when tested by all the facts shown in tbe record now before us. What right had the heirs of McKean to this land ? and what right had they to convey it to Marshall? McKean himself had manifested no disposition to resume the grant, up to the time of his death. By his will, made a short time before his decease, so far from intimating any such desire or intention, he confirms the grant, rather, and so far, such confirmation may be inferred from its express recognition. If the donation had been, and the land conveyed, for the benefit of a Congregational Church, which the donor erroneously supposed was in existence at Keokuk; if, at the time of McKean’s death, and for a reasonable time thereafter, there had been no persons of the Congregational persuasion in Keokuk; if no attempt had been made to organize and establish a Congregational Church there; if the trustees had not accepted the trust, and taken possession of the land; and if there had been no recognition and confirmation of the grant by the testament and last will of the donor, the case might have presented such a state of facts, and there might have been such a failure of the cestui que trust, as that the heirs of McKean would have been entitled to resume the grant. But there is an entire lack of every essential element towards making out the: state of case on the part of Marshall, the claimant under the heirs. In the first place, the gift to the church was not to take. effect in presentí, but only at such future and reasonable time as the church should be organized — the fee, in the meantime, remaining in the trustees, with power to sell, lease and rent the land, and accumulate the proceeds until the period of such organiza-' tion. In the second place, it is shown, that at the time of McKean’s death, and since, there were persons of the Con-' [277]*277gregational faith and persuasion residing at Keokuk, who being few in numbers, did not deem it advisable to establish a church in that place, until the funds arising from the charity of McKean, should be sufficient to furnish the means of supporting it, without too heavy a pecuniary burden upon themselves. Many of these persons were united temporarily with the Presbyterian Church of Keokuk, which, being identical in doctrine, so modified its discipline and church government as to render it substantially a Congregational Church. In the third place, it is shown, that at no time had the intention been abandoned of organizing such a church, so soon as the number and means of its friends became sufficient to sustain it; and that in the year 1854, an Orthodox Congregational Church was organized in Keokuk, for which the trustees, under the deed of McKean, are- now claiming the land in controversy, as dedicated by him, to its use. In the fourth place, it is shown, that immediately after the death of McKean, the trustees took possession of the land, leased a portion of the same, and that their possession has continued ever since; that this litigation respecting the title, commenced in 1849, shortly after the purchase by Marshall from the heirs; that the church would long since have been organized, and the benevolent intention of McKean carried into complete effect, but for the obstacles thrown in the way of such a consummation, by the.-very litigation which the claimants under the heirs have caused; and but for the cloud they have thereby- cast upon the title of the land, whereby, for all practical and useful purposes, it has been rendered unavailable; and finally, it is shown, that by the will of John McKean, executed in February, 1847, he recognized the conveyance made by him to the trustees, and the purposes for which it was made, and provided that other lands, by him devised to certain of his heirs, upon condition, should, on the failure of such condition, be vested in the same trustees appointed by his deed, for the same use and purposes therein mentioned.
We have to say, in conclusion, as an apology, if any [278]*278should be deemed necessary, for this second opinion in this cause, after the full and able opinion of the chief justice, delivered at the June term, that after that opinion was delivered, a petition for a rehearing was filed by Marshall, the claimant under the heirs of McKean, and the cause was, in effect, re-argued by the counsel on both sides. The court have reconsidered the cause, both with reference to the new authorities cited, and others which have come under their notice. We have not been disposed to deny to the party, against whom, we have felt obliged to give our decision, the fullest opportunity of being heard, consistent with our other duties. This was due alike to the magnitude of the questions adjudicated, and to the ability and earnestness with which views, the opposite of our own, have been urged by the counsel. It is necessary, however, that the discussion should cease at some time, and the litigation be brought to an end. Having seen no good reason to change the views heretofore announced, the petition for a rehearing is overruled.
'Woodward, J., dissenting.