
    Mary McLean Ludlow, Appellant, v. The Rector, Church Wardens and Vestrymen of Saint John’s Church in the Town of Islip, Suffolk County, New York, Respondent.
    Second Department,
    April 7, 1911.
    Corporation — right of one corporation to property of another — real property — trust — declaration of trust — inference — invalid instrument — rights of corporation.
    Although a corporation is moribund and apparently dead it has a legal éxistence and the State alone can enforce ouster.
    Another corporation subsequently organized has no power to pronounce the first one extinct and vest itself with its property.
    Where a person declares that he holds real estate in trust for another there is no legal inference that he received it originally for the use of the beneficiary or, if the trust were illegal, that the title vested at once in such beneficiary.
    
      Where a person, although.reserving title in himself, attempts to create a . trust in land by a declaration of ■ trust in which there are no words of grant or .gift and which falils to ..create a. valid trust and it appears that the person named as trustee did not primarily receive title to the use of ■ the beneficiary, the instrument does not operate as a grant.
    During the last half of the eighteenth century certain land was used as a burying ground by the family of the owners and others and in 1765 a church was built thereon. j In 1806 a church corporation was organized and there was a dedication of the lot to it for religious purposes. One P., the mother of plaintiffjs husband, took title to the property by will • or descent in common with her brother and in 1846 by a partition deed full title was vested in hpr. In 1871 another church corporation was , organized;and took possession of the property of the first corporation including the land-in question. The first' corporation appears to have been at that time moribund. In the following year P. and her husband made a declaration of trust whereby they declared that they, held the property in trust' for the ¡new corporation. The instrument failed to create a valid trust. :
    
      Held, that'the second corporation, which had been pronounced extinct by the bishop, had- no interest in the land on which the church' arid ■ graveyard were; i
    That it was error to dismiss! the complaint of . the plaintiff who claimed, title to the land through a deed from her husband and others, descendants of the patentee of the' king. . ■ -
    Burr, J., 'dissented, in part; Hirschbbrg, J., dissented.
    Appeal by the plaintiff, Mary McLean Ludlow, from a judgment of the Supreme Court in favor of the défendant, entered in the office of the clerk jof the county of Suffolk on the 1st day of August, 1910, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint ■upon the merits. ; '
    
      Joseph M. Belford, foír the appellant.
    
      Joseph Wood [Timothy M. Griffing with him on the brief], for the respondent. .!
   Thomas, J.:

The. mam question is .whether the. defendant has.any interest in a certain church lot. ! To the plaintiff was granted in 1897 a large tract of land by full covenant .deed, executed by Nicoll Ludlow, her husband, and others, descendants from the patentee of the king, and ydjiich became the sole property of Nicóll Ludlow’s mother, Frances Louisa Nicoll Ludlow, by virtue' of. a partition deed executed in 1846. During the last half of the eighteenth century the church lot was appropriated for the purposes of burial of persons related to the family of the owners, and others, and in 1165 one William Nicoll built a church thereon, which was enlarged ih 1841. The burials continued at intervals, but not later than 1890, except one in 1909, and religious services were held in the church as late as 1815. The defendant has no interest in the church'lot. In 1806, “St. John’s Church, Islip,” was organized, and had such relation to the church lot that, as I will assume, there was a dedication of the same to it for religious and kindred purposes. But there is no privity between it and the defendant. The latter was organized in 1811 by certain persons, among whom was Nicoll Ludlow’s father, William, who was at the time made a warden, and Nicoll Ludlow in his absence was elected a vestryman. All but the latter are dead, and he in 1891 joined in a full covenant deed of the land to the plaintiff, although he, as he concludes after some doubts as to the capacity in which he acted, has as' sole surviving' vestryman looked after the lot and the repairs, and as such was served with the summons. The defendant’s wardens and vestrymen never met, and, so far as discoverable, no service was ever held in the church under their auspices, and in 1889. its superior, the diocesan convention, authorized the bishop to pronounce it extinct, which he did. This was not evidence of legal extinction, but it aids comprehension of the corporation that asserts a status as the successor to the earlier organization. The trial court has found that the first corporation was reincorporated under chapter 803 of the Laws of 1868, as the defendant. But I find no authority for such conclusion. The first corporation was moribund, perchance apparently dead, but. it had legal existence, and for any offense meriting it the State alone could enforce ouster. The defendant had no power to assume or to pronounce it extinct and vest itself with its property rights. (Matter of Trustees of Congregational Church, etc., 131 N. Y. 1, 4.) While the earlier corporation existed another could not be formed with ownership of the temporalities. (Trustees v. Bly, 73 N. Y. 323, 329.) I find no authority for such absorption of righjfcs by one corporation self-seeking successorship to another. But the defendant claims title to fee. in the lot by virtue of a declaration in trust executed by Frances,, Mooli Ludlow’s mother,; and her husband in 1872 to St. John’s Church, Islip. Ás I understand the defendant’s position, it. is that this declaration of trust is evidence that in 1846, when the declarant Frances took ¡title in severalty by partition between her brother and herself j, she received this church lot in trust for the defendant organized in 1871, twenty-five years thereafter, and that as the trust was passive the lot at once vested in the defendant, then j non-existent and unformulated even, •in expectation. •! The trust must be declared by a deed or conveyance in writing j (2 R. S. 134, § 6) and must have existed at the time of the grant to .the trustee. (Bates v. Ledgerwood Manufacturing Company, 130 N. Y. 200; Wright v. Douglass, 7 id. 564.). jMrs. Ludlow undoubtedly by will or descent took this property in common with her brother, and the partition deed followed." Did she in either, instance receive it for the use of this ; defendant artificially ’ brought into attempted life a quarter ¡dí a century later? ' The. declaration of trust contemplates no | such ■ retroactive relation to the act that created the declarant’s title.’ The contention is tanta-, mount to this, that if a pejrson declares that she holds real estate in trust for another, the legal inference, is that she received it originally for the use of the beneficiary and that the title vested at once. Such a contention has no foundation in logic' or authority. The declarant wished to create a trust in behalf of the church,, and was advised improvidently or, through her own erring, concluded that she could effect it by the instrument she executed. ■ She ¡did not declare that she took title for ' the use of the beneficiary. It may be that the respondent asserts that the declaration by its own vigor carries the title. But where are the words cjf grant or conveyance? She declares that she “holds,” not that she disposes. The argument, if respondent asserts it, is this: that when a person, attempts to .créate á trust in land-by a declaration of trust, and the instrument fails to create - a valid trust, it operates as a grant,, although the grantor reserves the title and never intended to alienate it, and,there are no words of grant, or gift,..and although it is impossible that she primarily received the title to the use of the beneficiary. The church lot is already in the safe hands of those most interested in its care.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Jenks, P. J., and Rich, J., concurred; Burr, J., concurred upon the first ground stated in the opinion; Hirschberg, J., dissented and voted to affirm on the opinion of Mr. Justice Crane at Special Term (68 Misc.Rep. 400).

Judgment reversed and new trial granted, costs to abide the final award of costs.  