MERRILL, Justice.
This appeal is from a decree vesting title in Equality United Methodist Church, a corporation, to 2% acres of land near the church.
The trustees' of Equality Methodist Church and Equality United Methodist Church, a corporation, filed a declaratory judgment proceeding to establish the owner of the land in question.
Fred Raht Whitaker died testate on August 1, 1953. Under Paragraph 2 of his will, Whitaker provided that:
“All of the real estate which I shall own at my death, I give' and devise to my beloved wife, Dorma Jewell Whitaker, if she shall survive me, for her natural life time; and if she shall not survive me, then I give and devise the same to Josie L. Yates, my wife’s aunt and step-mother, for the term of her natural life time. And if both my wife and the said Josie L. Yates shall survive me, and if then my said wife shall die, leaving the said Josie L. Yates surviving, then in that event I give and devise the same to the said Josie L. Yates for her life time. If neither of them shall survive me, or on the death of the survivor of them, I give and devise the same to the Equality Methodist Church, in fee simple, the same to be used by said church for such purposes as it shall see fit.”
At the time of the death of Whitaker, the church was an unincorporated association. It was incorporated more than ten months prior to the trial.
The question presented to the trial court and here, on appeal, is whether the devise to the church is valid, inasmuch as the church was not incorporated when the testator died but was incorporated before the trial.
The pertinent part of the trial court’s decree follows:
“That the Equality Methodist Church was at the time of the termination of the life estate an unincorporated religious body with a board of trustees cortsisting of Herbert Traylor, Charles Selman, R. W. Granger, Thomas W. Barkely, Bobby Granger, William C. Wilson and Morris Wilbanks.
“The Court having understood and considered the evidence in this cause, it is the opinion of the Court that the Equality Methodist Church was without legal capacity to receive and hold real property at the time of the termination of the life estate created by Fred Raht Whitaker. The Court is also of the opinion that such incapacity could be abrogated by a subsequent legal incorporation of the church under appropriate provisions of law, and that this incorporation was in fact accomplished by the church prior to the Court hearing this cause.
“It is the further opinion of the Court that when the life estate was terminated by the death of Dorma J. Whitaker the fee simple title to this real property vest[80]*80ed in the hereinabove named trustees of the Equality Methodist Church in trust until such time as the church acquired legal capacity to receive and hold real property in its own name as an incorporated body.”
The appellant argues that an unincorporated religious society is without capacity to acquire or hold title to realty and cites McLean v. Church of God, 254 Ala. 134, 47 So.2d 257, and other cases which so hold. In McLean, this court stated in part:
“We have no statute nor have we recognized charitable or religious societies as having a quasi corporate existence with power to hold land, as has been done in some jurisdictions. 10 Am.Jur. section 33, page 609. On the contrary, our cases have reiterated that such societies are incapable of acquiring and holding title to land. Authorities supra.”
But this rule is not absolute. While this court has held that an unincorporated religious society cannot maintain an action in the nature of ejectment in the name of the society, Enterprise Lodge No. 352 v. First Baptist Church (Col.) of Evergreen, 288 Ala. 592, 264 So.2d 153, it has also held that an unincorporated religious society can maintain a bill for injunction to require respondents to remove a fence on its property and from further trespassing on church property, Vaughn v. Pansey Friendship Primitive Baptist Church, 252 Ala. 439, 41 So.2d 403; and that an incorporated church, by and through its trustees and deacons, can maintain a bill to quiet title to their church property, Hamner v. Carroll’s Creek Baptist Church, 255 Ala. 277, 51 So.2d 164, Ford v. Washington, 288 Ala. 194, 259 So.2d 226. This court has also held that equity has power to compel specific performance of an agreement to convey land made to trustees of a religious society before it was incorporated, upon application of the church after it became incorporated. Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947.
In Hundley v. Collins, 131 Ala. 234, 32 So. 575, this court said:
“ * * * A church or religious society may exist for all the purposes for which it was organized independently of any incorporation of the body under the statutes of the state; and, it is a matter of common knowledge that many do exist and are never incorporated. For the promotion of religion and charity, they may subserve all the purposes of their organization, and, generally, need no incorporation except incidentally to further these objects. They do not place themselves beyond the pale of the protection of the law as to properties, for the lack of incorporation. It is the province of a court of equity to protect such organizations in what they hold, in order to sustain trusts, because of their charitable uses, which would otherwise be held void. * * * ”
This court has dealt with deeds to unincorporated religious societies several times. The author of McLean, 254 Ala. 134, 47 So.2d 257 (1950), also authored Johnson v. Sweeney’s Lane Church of God, 270 Ala. 260, 116 So.2d 899 (1959). In the latter case, Delia V. Bowen deeded property to an unincorporated religious society, but which, as here, subsequently became incorporated, and this court quoted from Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947:
“ ‘The unincorporated society was without capacity to acquire or hold title. Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211. Nor did the conveyance to trustees — or, rather, the agreement to convey — for the unincorporated society in strictness create a charitable use. Nevertheless, the jurisdiction of the chancery court over such voluntary associations and their property is maintained in this state, independently of the English statute of charitable uses and of any prerogative power of the court, on the ground of the trust nature of the property, the charitable uses for which it is designed, and the inadequacy of legal [81]*81remedies. — Burke v. Roper, 79 Ala. 138; Williams v. Pearson, 38 Ala. 299; Carter v. Balfour [’s Adm’r], 19 Ala. 814. Equity must therefore have power to compel a conveyance to the incorporated church. This will not involve the court in the impossible function of making a contract for the parties, nor require the performance of a contract differently from its agreed terms. An organization, under the statute, by the majority of a society, operates ipso facto as a transfer of the rights and interests of individual members to the corporation thereby created. — Happy v. Morton, 33 Ill. 398. The incorporated church has succeeded to all the rights of the unincorporated church. * *
This court also quoted from Hope of Alabama Lodge of Odd Fellows v. Chambless, 212 Ala. 444, 103 So. 54:
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MERRILL, Justice.
This appeal is from a decree vesting title in Equality United Methodist Church, a corporation, to 2% acres of land near the church.
The trustees' of Equality Methodist Church and Equality United Methodist Church, a corporation, filed a declaratory judgment proceeding to establish the owner of the land in question.
Fred Raht Whitaker died testate on August 1, 1953. Under Paragraph 2 of his will, Whitaker provided that:
“All of the real estate which I shall own at my death, I give' and devise to my beloved wife, Dorma Jewell Whitaker, if she shall survive me, for her natural life time; and if she shall not survive me, then I give and devise the same to Josie L. Yates, my wife’s aunt and step-mother, for the term of her natural life time. And if both my wife and the said Josie L. Yates shall survive me, and if then my said wife shall die, leaving the said Josie L. Yates surviving, then in that event I give and devise the same to the said Josie L. Yates for her life time. If neither of them shall survive me, or on the death of the survivor of them, I give and devise the same to the Equality Methodist Church, in fee simple, the same to be used by said church for such purposes as it shall see fit.”
At the time of the death of Whitaker, the church was an unincorporated association. It was incorporated more than ten months prior to the trial.
The question presented to the trial court and here, on appeal, is whether the devise to the church is valid, inasmuch as the church was not incorporated when the testator died but was incorporated before the trial.
The pertinent part of the trial court’s decree follows:
“That the Equality Methodist Church was at the time of the termination of the life estate an unincorporated religious body with a board of trustees cortsisting of Herbert Traylor, Charles Selman, R. W. Granger, Thomas W. Barkely, Bobby Granger, William C. Wilson and Morris Wilbanks.
“The Court having understood and considered the evidence in this cause, it is the opinion of the Court that the Equality Methodist Church was without legal capacity to receive and hold real property at the time of the termination of the life estate created by Fred Raht Whitaker. The Court is also of the opinion that such incapacity could be abrogated by a subsequent legal incorporation of the church under appropriate provisions of law, and that this incorporation was in fact accomplished by the church prior to the Court hearing this cause.
“It is the further opinion of the Court that when the life estate was terminated by the death of Dorma J. Whitaker the fee simple title to this real property vest[80]*80ed in the hereinabove named trustees of the Equality Methodist Church in trust until such time as the church acquired legal capacity to receive and hold real property in its own name as an incorporated body.”
The appellant argues that an unincorporated religious society is without capacity to acquire or hold title to realty and cites McLean v. Church of God, 254 Ala. 134, 47 So.2d 257, and other cases which so hold. In McLean, this court stated in part:
“We have no statute nor have we recognized charitable or religious societies as having a quasi corporate existence with power to hold land, as has been done in some jurisdictions. 10 Am.Jur. section 33, page 609. On the contrary, our cases have reiterated that such societies are incapable of acquiring and holding title to land. Authorities supra.”
But this rule is not absolute. While this court has held that an unincorporated religious society cannot maintain an action in the nature of ejectment in the name of the society, Enterprise Lodge No. 352 v. First Baptist Church (Col.) of Evergreen, 288 Ala. 592, 264 So.2d 153, it has also held that an unincorporated religious society can maintain a bill for injunction to require respondents to remove a fence on its property and from further trespassing on church property, Vaughn v. Pansey Friendship Primitive Baptist Church, 252 Ala. 439, 41 So.2d 403; and that an incorporated church, by and through its trustees and deacons, can maintain a bill to quiet title to their church property, Hamner v. Carroll’s Creek Baptist Church, 255 Ala. 277, 51 So.2d 164, Ford v. Washington, 288 Ala. 194, 259 So.2d 226. This court has also held that equity has power to compel specific performance of an agreement to convey land made to trustees of a religious society before it was incorporated, upon application of the church after it became incorporated. Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947.
In Hundley v. Collins, 131 Ala. 234, 32 So. 575, this court said:
“ * * * A church or religious society may exist for all the purposes for which it was organized independently of any incorporation of the body under the statutes of the state; and, it is a matter of common knowledge that many do exist and are never incorporated. For the promotion of religion and charity, they may subserve all the purposes of their organization, and, generally, need no incorporation except incidentally to further these objects. They do not place themselves beyond the pale of the protection of the law as to properties, for the lack of incorporation. It is the province of a court of equity to protect such organizations in what they hold, in order to sustain trusts, because of their charitable uses, which would otherwise be held void. * * * ”
This court has dealt with deeds to unincorporated religious societies several times. The author of McLean, 254 Ala. 134, 47 So.2d 257 (1950), also authored Johnson v. Sweeney’s Lane Church of God, 270 Ala. 260, 116 So.2d 899 (1959). In the latter case, Delia V. Bowen deeded property to an unincorporated religious society, but which, as here, subsequently became incorporated, and this court quoted from Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947:
“ ‘The unincorporated society was without capacity to acquire or hold title. Stewart v. White, 128 Ala. 202, 30 So. 526, 55 L.R.A. 211. Nor did the conveyance to trustees — or, rather, the agreement to convey — for the unincorporated society in strictness create a charitable use. Nevertheless, the jurisdiction of the chancery court over such voluntary associations and their property is maintained in this state, independently of the English statute of charitable uses and of any prerogative power of the court, on the ground of the trust nature of the property, the charitable uses for which it is designed, and the inadequacy of legal [81]*81remedies. — Burke v. Roper, 79 Ala. 138; Williams v. Pearson, 38 Ala. 299; Carter v. Balfour [’s Adm’r], 19 Ala. 814. Equity must therefore have power to compel a conveyance to the incorporated church. This will not involve the court in the impossible function of making a contract for the parties, nor require the performance of a contract differently from its agreed terms. An organization, under the statute, by the majority of a society, operates ipso facto as a transfer of the rights and interests of individual members to the corporation thereby created. — Happy v. Morton, 33 Ill. 398. The incorporated church has succeeded to all the rights of the unincorporated church. * *
This court also quoted from Hope of Alabama Lodge of Odd Fellows v. Chambless, 212 Ala. 444, 103 So. 54:
“ ‘A court of equity treats the active members of a voluntary nonbusiness association as the owners of its properties in trust for the community interest of the unincorporated society or association. This was in effect, the result of First Nat. Bank [of Gadsden] v. Winchester, 119 Ala. 168, 172, 24 So. 351, 72 Am.St. Rep. 904, as dealing with corporate property and the stockholders’ interest therein, where the corporation was in abeyance. When there is an incorporation of such society or association, participated in and authorized by a majority of its membership, the legal title passes to the corporation (Robertson v. Business Boosters’ Country Club, 210 Ala. 460, 98 So. 272); such is the result as to the legal title to the community property, if incorporated by a majority of the association’s members. If incorporation is participated in and authorized by less than a majority of the lodge membership, the title to said properties would not vest in the corporation, but remain in trust for the majority membership, or in abeyance for the association unincorporated. This is the theory of our unincorporated church cases. Gewin v. Mt. [Pilgrim Baptist] Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Walker v. McPherson, 199 Ala. 486, 74 So. 449; Blount v. Sixteenth Street Baptist Church, 206 Ala. 423, 90 So. 602. * * * t >’
Then this court wrote:
“ * * * Nevertheless, equity has jurisdiction over voluntary unincorporated associations and their property in this state. If the legal title never passed out of Delia V. Bowen, in equity she held such title as trustee for The Church of God of Prichard, and when that church was incorporated, the legal title passed to the incorporated church regardless of whether it was in Delia V. Bowen or the individual members of the unincorporated church. * * * ”
All the justices concurred in the opinion in Johnson, and three of them had participated in the McLean decision. So, it appears that in equity this court does allow a conveyance to an unincorporated religious society to stand where the society is later incorporated in order to secure title to the property.
We fail to see any material distinction in a grant by deed and a devise by will in an attempt to convey property to an unincorporated religious society that is later incorporated. A deed is effective upon delivery and a will speaks as of the death of the testator. But if the grantor in a deed has named an improper grantee, he can redraft his deed, but the testator cannot redraft his will. And there are numerous instances where courts have upheld devises to people not then in esse. Here, the unincorporated church was in existence, the congregation occupies a building; it owns the church property, a parsonage and a cemetery, and it is the same church, incorporated, as it was unincorporated, and still a part of the North Alabama Conference, and the pastor is appointed by the bishop. Also, it was the unquestioned intention of the testator to convey the property to his church.
[82]*82In MacGregor v. Commissioner of Corporations and Taxation, 327 Mass. 484, 99 N.E.2d 468, it was said:
“Voluntary associations were not regarded at common law as legal entities and so could not as such take title to real or personal property either for their own benefit or in trust for others. Scott, Trust, § 97. The gifts, however, would not fail for want of a trustee, and any technical difficulty that might exist as to the legal title might easily be removed by the appointment of a trustee. * * * ”
In Frazier v. St. Luke’s Church, 147 Pa. 256, 23 A. 442, the court said:
“ * * * A devise to an unincorporated association is a devise to nobody. But the devise in this instance did not fail, and why? Because it was for a charitable or religious use, and the beneficiaries were the real owners. A gift to the lame, the halt, and the blind, is not to fail in the nineteenth century because the legal title is given to a person or corporation incapable of taking it, or even forbidden by law to take it. Chancery here steps in to enforce the charity, and commits it to some one who may lawfully administer it. * * * ”
In Restatement, Second, Trust, § 397, Comment f, the rule as to a devise to an unincorporated charitable association is stated as follows:
“If the owner of property devises or bequeaths it to an unincorporated charitable association, a charitable trust may be created although the purposes of the trust are not mentioned in the will. If the association is incapable of taking title to the property and administering the trust, the court will appoint a trustee to take the title and administer the trust for the purposes of the association. * * * ”
In Schneider v. Kloepple, 270 Mo. 389, 193 S.W. 834, several Missouri cases are cited for the rule “since the corporate character of the devisee is not necessary to the validity of a charitable devise” made to an unincorporated religious society..
The dissenting opinion cites Trustees of the Philadelphia Baptist Association v. Hart’s Executors, 4 Wheat. (U.S.) 1, 4 L. Ed. 499 (1819). That case is cited in Carter v. Balfour, 19 Ala. 814 (1851), wherein this court cited cases where land was devised to unincorporated societies, and quoted a New York case, Potter v. Chapin (6 Paige 639), where the chancellor said of 4 Wheat. 1, “I believe that it is generally admitted that the decision in that case was wrong.” Later in the opinion, Coleman, J., speaking for all the court except Chilton, J., who did not participate, stated: “I consider the above case from 4 Wheat, as partially, if not altogether overruled by the same court”; and he cites cases of the U.S. Supreme Court to support that statement. In 1882, in Russell v. Allen, 107 U.S. 163, 2 S.Ct. 327, 27 L.Ed. 397, the U.S. Supreme Court stated that the case of Baptist Association v. Hart, 4 Wheat. 1, “was decided upon an imperfect survey of the early English authorities, and upon the theory that the English law of charitable uses, which, it was admitted, would sustain the bequest, had its origin in the statute of Elizabeth, which had been repealed in Virginia. That theory has since, upon a more thorough examination of the precedents, been clearly shown to be erroneous." (Emphasis Supplied.)
We think it appropriate to note that it is general knowledge that in the organization of the United Methodist Church, title to real property is not in the local churches but in the respective Annual Conferences. In 1 Page on Wills, § 17.14, at 835, the author says:
“A devise to an unincorporated association, which is an agency of an incorporated church, is treated as a devise to the church in trust for such agency. * 5ft Mi ff
The cases cited in support of the rule so hold. Had proof been maue that the An[83]*83nual Conference was incorporated or that it held title to the property of the local church, this would have been an additional reason for affirming the decree of the trial court.
Applying the rule of our cases heretofore cited, we hold (paraphrasing the language of Johnson, 270 Ala. 260, 116 So.2d 899, and authorities cited therein), that the legal title to the property passed under the will to the incorporated church regardless of whether it was held in trust by the trustees of the church, individual members of the unincorporated church, or the next of kin of the testator, and passed to the church when it was incorporated.
Affirmed.
BLOODWORTH, MADDOX, McCALL and JONES, JJ., concur.
HEFLIN, C. J., concurs specially.
COLEMAN, HARWOOD and FAULKNER, JJ., dissent.