
    Jerusha C. King vs. David Parker & others.
    A., being seised of an estate in fee, by his deed, dated December 26, 1777, conveyed to B. and others, and the survivor of them, as joint tenants, but without words of limitation to their heirs or to the heirs of the survivor, in trust to and for the use of a Lodge of Freemasons, to the only proper use, benefit, and behoof of the lodge forever. A., by his last will, gave all his real and personal estate to his children and grandchildren, and, at the death of one of the sons, his share of A.’s estate descended to the plaintiff. The plaintiff brought an action ■to recover her undivided part of the estate conveyed to the lodge; but it was held, that the conveyance was in trust, and the estate did not descend to the heirs of the grantor.
    This was an action of ejectment submitted to the court on the following agreed statement of facts:—
    On the twelfth day of January, 1764, the St. Andrew’s Lodge of Freemasons, in the town of Boston, resolved, by a vote, to purchase a house for the benefit of the lodge; accordingly, Thomas Milliken, Samuel Barrett, Edward Foster, Caleb Hopldns, Moses Deshon, William Haskins, John Jenkins, Joseph Webb, were chosen a committee for that purpose.
    On the thirty-first day of March, 1764, Catherine Kerr, by her deed of that date, conveyed in fee the premises in question, known as the Green Dragon Tavern, unto the said Thomas Milliken, Samuel Barrett, Edward Foster, Caleb Hopkins, Moses Deshon, William Haskins, John Jenkins, and Joseph Webb.
    The lodge was not at that time incorporated. Its income was by its constitution devoted to the relief of its poor members and their families, and, including the rents of this estate, had always been so applied.
    On the 21st day of January, 1764, according to the date of the deed, (probably 1765,) William Haskins, by his deed of that date, released the estate to his associates.
    On the 18th of February, 1768, the lodge “ voted, that Moses Deshon, (and others,) convey the house, land, and premises which they, together with Mr. William Haskins, purchased in their own names, (but for the use of this lodge,) of Mrs. Catherine Kerr, unto the E. W. William Burbeck,. upon condition that said Burbeck pay all sums of money due from this lodge to any person or persons. Also that the said Bur-beck give good security, at the same time, to our brothers, Samuel Barrett, (and six others,) that, upon their repayment to said William Burbeck, his heirs, executors, or administrators, within ten years from the date of said deed, all such sum and sums of money as aforesaid, with the interest that shall be due thereon, he or they shall or will grant and reeonvey the said house, land, and premises, free from all incumbrances, unto William Bell, Paul Eevere, (and four others,) which shall be for the use of this lodge.
    “ Also, That Samuel Barrett, (and others,) give their obligations in writing unto William Bell, (and others,) that upon such repayment to said Burbeck, and his refusal to reconvey as aforesaid, they will sue the bonds given as aforesaid by said Burbeck, and pay all such sum and sums of money as shall be recovered and received therein, unto the treasurer of this lodge for the time being, which shall be to and for the use of the lodge.
    On the 22d of February, 1768, William Burbeck executed his bond in the penal sum of eight hundred pounds, the condition thereof being as follows: — ■
    
      
      “ The condition of the above -written obligation is such that, whereas Moses Deshon, Edward Foster, Samuel Barrett, Thomas Milliken, John Jenkins, Caleb Hopkins, and Joseph "Webb, on the twentieth day of February, instant, for the consideration of four hundred pounds lawful money, granted and conveyed unto the said William Burbeck, and to his heirs and assigns forever, the dwelling house, land, and premises now known by the name of ‘ Masons’ Hall,’ in said Boston, bounded and described as by deed thereof to him at large appears; and whereas the said Burbeck has promised and agreed that, in case the said Barrett, Webb, Warren, Collins, Danforth, Crafts, and Proctor, or either of them, or either of their heirs, executors, "or administrators, shall, at any time within ten years from the twentieth day of February, instant, pay unto him, his heirs, executors, and administrators, the sum of four hundred pounds lawful money, with lawful interest from that time to the time of payment, that then he, the said Burbeck, or his heirs, executors, or administrators, will execute and deliver a good deed of bargain and sale of the dwelling-house, land, and premises before mentioned, unto William Bell, William Wingfield, John Symmes, John Gore, Jr., John Lowell, Thomas Chase, and Paul Revere, to hold to them, their heirs and assigns forever, free of all incumbrances, to and for the use of the Freemasons’ Lodge in said Boston, known by the name of ‘ Saint Andrew’s Lodge; ’ and will also repay all such moneys as he shall have received as rent for said dwelling-house and land for the use of said lodge. Now, if the said William Burbeck, his heirs, executors, and administrators, shall and do perform, fulfil and accomplish his promises and agreements before mentioned, then this obligation to be void, but in default thereof to remain in full force.”
    On the 10th of March, 1768, the lodge, by a series of votes approved and ratified “ the whole transactions of the committee in the affair of the house,” and appointed certain of their members to have the management of the property.
    On the 26th of December, 1777, William Burbeck executed and delivered his deed of that date, of the premises in question, which are described in the deed by metes and bounds, ‘ and all such flats, ways, passages, and privileges, and appurtenances as are thereunto belonging,” in consideration of the sum of four hundred pounds, “ to have and to hold the afore-granted premises to them the said William Bell, John Symmes, John Lowell, Thomas Chase, and Paul Revere, and to the survivors or survivor of them, in trust to and for the use of the Freemasons’ Lodge in said Boston, known by the name of the St. Andrew’s Lodge, to their only proper use, benefit, and behoof forever.”
    It is agreed that, since the last-mentioned deed, the grantees named therein, and the survivors of them, and persons claiming by deed under them, including the tenants in this action, have had actual possession of the premises, claiming to hold and own the same in fee-simple, in trust for the lodge, and that the net rents and profits of the estate have been applied, under the orders of the lodge, for charitable purposes.
    Paul Revere, the survivor in the deed of December 26,1777, died May 10, 1818.
    The demandant claims as heir of William Burbeck, who died in August, 1785, leaving several hens, of whom John Burbeck, the father of the demandant, was one.
    William Burbeck, by his last will, after giving to certain grandchildren, the children of his two deceased children, two shares in his real and personal estate, gives to his five surviving children, of whom John Burbeck was one, all the remain-ler and residue of his estate, both real and personal.
    John Burbeck died February 1,1819.
    The demandant was married to Gedney King in 1806. Gedney King died in August, 1839.
    The tenants claim to hold the premises as the trustees of St. Andrew’s Lodge, which is a voluntary association of Freemasons, holding a charter originally under the Grand Lodge of Scotland. ■
    It is further agreed, that the court may draw all inferences, and make all the presumptions from the above facts that a jury would be warranted in doing. Judgment to be entered for the demandant or tenants as the court may determine; but if for the demandant, entry thereof to be suspended to allow the tenants to file a bill in equity against the demandant, to compel a conveyance of the title.
    
      G. B. Goodrich and H. L. Hazetton, for the demandant.
    William Burbeck, by his deed of December 26,1777, conveyed a life estate to William Bell, John Symmes, John Lowell, Thomas Chase, and Paul Revere, and to the survivor of them, which estate was determined May 18,1818, by the death of Paul Revere, the survivor of the above named grantees.
    At the death of Paul Revere, the original estate, by right of entry, under the residuary clause of the will of William Burbeck, or by descent from him, vested in his son, John Burbeck, the father of the demandant, which right of entry continued until the decease of John, February 1, 1819.
    The demandant, at the decease of her father, John Burbeck, was under coverture of Gedney King, and so continued until his decease in August, 1839.
    The right of entry which first accrued at the decease of Paul Revere, May 18, 1818, to John Burbeck, continued in him some nine months, and has been available to the de-mandant since her disability of coverture was removed, to the date of the writ, some ten years; so that she had a right of entry at the institution of her suit.
    The demandant contends, that the statutes of this commonwealth, relating to the owners of land in common and undivided, in force in 1777, did not apply, and could not apply, to St. Andrew’s Lodge, or its supposed agents or trustees; and also, that a title cannot be acquired by disseisin, made or continued during the legal disability of the party in whom is the legal title or a legal right of entry.
    
      R. Choate and S. Bartlett, for the tenants.
    By the well settled rules of law, the estate conveyed by the deed of Burbeck to Bell and others must be commensurate, with the equitable estate of the cestui que trust. Brooks v. Jones, 11 Met. 191; Gould v. Lamb, 11 Met. 84; Stearns v. Palmer, 10 Met. 32; Newhall v. Wheeler, 7 Mass. 189 ; Bridge-water v. Bolton, 6 Mod. 108, 111 ; Lewin on Trusts, 141; Fisher v. Field, 10 Johns. 495; 1 Spence Eq. Jurisdiction, 587.
    
      The case finds that the constitution of the lodge provides that its whole income, including the rents of the premises in question, should be devoted to the relief of its poor members and their families, and that it has been uniformly so applied. This use is in its character a perpetuity, and not one that could be effected by a life-estate merely in the grantees of Burbeck. Again, the trusts or uses on which this estate was held, are settled to be charitable uses, and will be upheld and perpetuated as such. Duke v. Fuller, 9 N. H. 536; Vander Volgen v. Yates, 3 Barb. Ch. R. 242; Babb v. Reed, 5 Rawle, 151; Washburn v. Sew all, 9 Met. 280.
   Shaw, C. J.

This is an action of ejectment, brought to recover an undivided part of the estate long known as the Green Dragon Tavern estate. Mrs. King claims as one of the heirs of her grandfather, William Burbeck, who died in August, 1785, through her father, John Burbeck, who died in 1819. At the time of the decease of her father, the demand-ant was a feme covert, being the wife of Gedney King, who died in August, 1839. The ground of the demandant’s claim of title is, that her grandfather, William Burbeck, from whom both parties claim, was seised of the estate in fee, and, on the 26th December, 1777, executed a conveyance thereof to William Bell and four others, and the survivor of them, as joint tenants, but without words of limitation to their hens, or to the heirs of the survivor; that_ this vested an estate for life only in the grantees, and the last survivor; that this left a reversion in William Burbeck, which descended to his heirs, or passed to them by the residuary clause in his will. Paul Revere, the last survivor of the said grantees, died May 10, 1818. The claim is, that, at that time, a right of entry vested in John Burbeck, which, on his decease, a few months after-wards, descended to his heirs, one of whom was the demand-ant ; that she was then under the disability of coverture, and so continued until 1839, when her husband, Gedney King, died ; and within ten years from that time this action was brought.

The question depends upon a rule of strict law, and stands on grounds purely technical. It is this: that, by a rule of the common law, a deed to one or several persons, named, without limitation to heirs, or words of limitation, conveys a life-estate only; so that a reversion remains in the grantor, which may pass by descent or devise to his heirs or devisees.

How far the construction of this deed might be aided or affected by a bond previously given by the grantor, and in pursuance of which this deed was given, perhaps it is not necessary particularly to consider. The circumstances may be briefly stated. The purchase of the Green Dragon Tav ern, for the use of the masonic fraternity, seems to have originated with St. Andrew’s Lodge, by a vote in 1764. A purchase was made of the estate in question, by a deed in fee from Catherine Kerr to Thomas Milliken, Moses Deshon, and others, for the use of the lodge. In 1768, a vote passed by the lodge desired the holders of said bond to convey the same to R. W. (Right Worshipful) William Burbeck, on condition that he advance and pay all moneys due and owing from the lodge, &c., stated and fixed afterwards in the deed at ¿£400; and on further condition, that he should give a bond to William Bell and others named, with a condition, that if said Bell and others, the obligees, should repay him the ¿£400 within ten years, and all such sums of money, &c., he, the said William Burbeck, should reconvey the premises to William Bell, Paul Revere, and four others, for the use of the lodge.

The better and more effectually to secure the performance of this obligation to reconvey, for the use of the lodge, as there was then no court of equity, to enforce a specific performance, or carry into effect a trust, and as a lodge is not a corporation having capacity to sue in its own name, the vote further provided, that said Barrett and others, to whom the bond of Burbeck was to be given, should give their obligation in writing, to William Bell, Paul Revere, and others, stipulating that if, upon repayment, said Burbeck should refuse to recon-vey, according to his bond, to said Bell and others, then that they, obligees of Burbeck, would sue his bond, and pay all such sums of money as they should recover thereon, to the treasurer of said lodge for the time being, for the use of the ledge.

On thé 22d, four days after this vote, said Burbeck did execute a bond to Barrett and others, in the penalty of ¿6800, with a condition reciting the conveyance of the premises to him in fee, by a deed of Moses Deshon and others, dated the 20th, and reciting his promise and stipulation, on receiving such conveyance, to execute a bond to reconvey to William Bell and others, to hold to them and their heirs, to the use of the lodge called St. Andrew’s Lodge, and to account for the rents and profits thereof; it then provides, that if said Burbeck, his heirs, &c., shall fulfil and perform said promise and agreement, his bond should be void, otherwise, in force. Within a few weeks after, votes were passed by the lodge, expressing their satisfaction with these transactions, their thanks to Moses Deshon and others, for their good services, and appointing Burbeck, Barrett and others to transact the whole of the affairs of the house, and giving directions and advice in regard to their management.

Thus the matter stood during nearly the term of ten years, contemplated by the bond, viz: until December, 1777, when the deed was executed, upon the construction of which this question depends. This deed is set forth at large in the agreed statement of facts. It recites the payment of ¿6400 lawful money, by William Bell and the others named in his bond, and in consideration thereof, conveys to them the estate (described) with the buildings and flats, passages, privileges, and appurtenances, to hold to them and the survivors and survivor of them, “ in trust to and for the use of the Freemasons’ Lodge in said Boston, known by the name of St. Andrew’s Lodge, to their only proper use, benefit, and behoof forever.” Did this deed pass a fee, or a life-estate only, to the grantees ?

It is , argued by the tenants, that Burbeck never had an absolute title to the estate; that, simultaneously with the deed of Deshon and others to him, he gave a bond to recon-vey and account, &c., on payment of a sum of money and interest. It is obvious that the conveyance to him had a twofold object, the first to secure to him the reimbursement of his advances for the lodge, and then to hold for them, because they had not caoacitv to take and hold real estate. Had the transaction been in legal effect what it purports to be in words, a conveyance to him, with a simultaneous bond, both to reeonvey to the same persons on payment of a sum of money, it would have been a defeasance, a grant defeasible upon a condition subsequent; so that, upon a performance of the condition, all the estate granted to him, be it a life-estate or a fee, would be devested, and again vested in the grantors. But it was not a bond to re-convey, that is, to convey to the same persons, but to other persons, to the beneficial uses of the same body from whose trustees it came to him, to wit, the lodge. But though this conveyance to other persons than the grantors cannot in law operate as a defeasance, it must have been intended to have the same effect.

It certainly seems, that when both the purposes for which it was conveyed to him had been accomplished, when he had been reimbursed his whole advances, and held the estate for the unincorporated body, to supply their want of capacity to hold real estate, and when, pursuant to his obligation, he was conveying the estate to other trustees, to hold the estate for the same cestuis que trust, it was to be expected that he would transfer all the title he had taken. Indeed, it is strongly argued on the part of the tenants, that, as Burbeck was under obligation, legal as well as equitable, on receiving the fuL amount of his dues, to convey the whole estate to the use of the real beneficiaries, that it was his intention to do so. But it is answered, on the other hand, that, even if it were admitted that he intended to do so, if he has not executed such an instrument as will be sufficient in law to pass an estate in fee, his intention is unexecuted and cannot avail. This question we have not found it necessary to decide, and therefore we give no opinion upon it; there is another ground which we think decisive.

Assuming, then, as the rule of the common law, that a conveyance of an estate to one or more, without words of Limitation to heirs, by deed, creates a life estate only, though very much relaxed in its application to devises by will, this rule is to be taken in connection with other well established rules of law. It is a general rule, that a deed of conveyance, like other instruments, is to be construed according to the intention of the makers, subject only to certain rules necessary to the uniformity and certainty of the law; which are, that such intention is to be a legal, not an arbitrary intention, — such an intention as may be inferred from the use of terms which have acquired a legal signification; and further, that the intention can be carried into effect without a violation of the rules of law. Subject to these restrictions, the intention to be derived from the whole deed, construing every part and clause with reference to every other part, will govern.

In thus ascertaining the intention, in order to the construction of a deed, the object and purpose apparently intended to be accomplished by it will be taken into consideration, as well as the general and technical terms of it. Thus, after the St. 1785, c. 62, § 4, directing that grants or devises to two or more shall be deemed to be estates in common, and not in joint-tenancy, unless it shall therein be said that the grantees are to hold as joint-tenants, or to the survivor or survivors, or unless other words are therein used, showing it to be the intention of such grants or devises that the land should ves1 as joint estates, and not estates in common. Since the passing of the statute, it has been frequently held, that when words are used which, in their ordinary import and by force of the statute, would create a tenancy in common, they shall yet be held to create a joint estate, if such construction will best subserve and carry into effect the obvious purpose of the deed, manifested on its face, by express words or necessary implication. The terms which manifest such an intention are “ other words,” within the meaning of the statute, manifesting an intention that the same shall vest as a joint estate. Therefore, where the words of conveyance in a mortgage would create a tenancy in common, it would be held to be a joint tenancy, if apparent on the face of it that it was made to secure a joint debt. Inasmuch as the debt would survive, it would best subserve the intention of the parties to hold the collateral security on real estate to be a joint tenancy, because the security would then survive and follow the debt to be secured. Appleton v. Boyd, 7 Mass. 131; Goodwin v. Richardson, 11 Mass. 469

Another rule, quite analogous in principle, but more directly applicable to the present case, is, that where an estate is granted to two or more persons, in trust, and the trusts expressed in the same deed are of such a nature that an estate in fee in the trustee is necessary to support them, it shall be held that an estate in fee was intended, though the words of conveyance, independent of such trust, would pass an estate for life only. The reasoning from which this conclusion is drawn is simple and satisfactory. The grantor has an estate in fee, and, of course, a general power of disposing; the leading object of creating the legal estate is, to uphold the trust and carry it into effect; this is manifested in the conveyance itself, and therefore the law infers that the grantor, by the execution of the deed, intended to effect and did effect a conveyance in fee.

This point has been so recently decided in this court, and the authorities, both English and American, cited in support of it, that it seems unnecessary to do more than add, that, upon a revision, we are satisfied that it is correct. Cleveland v. Hallett, 6 Cush. 403.

The conveyance in question, of William Burbeck to William Bell and others, as joint tenants, but without words of inheritance, was made to hold in trust for the use of the free-masons’ lodge in Boston, known by the name of St. Andrew’s Lodge, to their own proper use, forever.

It is no objection that, at that time, there was no court of equity in Massachusetts, to enforce a trust specifically. It is a question, not of remedy, but of construction; what did the grantor intend ? If he intended it to support a trust in its nature perpetual, then he intended to give a legal estate in perpetuity to sustain it. Such a trust would be equally binding upon the consciences of the grantees, whether any court of justice could afford a remedy or not; and the grantor could have no reason to suppose that a trust would not be faithfully executed, without regard to legal compulsion.

Then the remaining question is, whether the trust thus declared is in its nature perpetual. This lodge, as appears by the evidence, was constituted under what is called a'charter from the grand lodge of Scotland. It appears by evidence, as well as by general notoriety, that a masonic lodge is a voluntary association of persons, closely united by rules, usages, and ceremonies, maintaining a perpetual succession, by the admission of new members; and, whatever other objects they may have, one leading one is that of charity, supporting the poor and indigent members, then widows, and orphans. This object is essentially perpetual, for “ the poor ye have always with you.”

Nor is it an objection, that the association who are designated ás the beneficiaries, to manage its funds and administer its charities, is not incorporated. To take and hold legal estate directly, to maintain actions as an aggregate body and in a name of association, incorporation is necessary. But a voluntary association, meeting and acting under a common name, for a common object, especially a charitable one, duly organized by choosing officers, keeping written minutes of their votes and acts in nature of a record, and thus being capable of being designated and identified by proof, is a body capable of being the beneficiaries of such a trust, though not incorporated. Tucker v. The Seaman’s Aid Society, 7 Met. 188, 200; Washburn v. Sewall, 9 Met. 280.

The court are of opinion, that the body called St. Andrew’s Lodge was such a voluntary association, capable of being designated, identified,, and ascertained by legal proof, so as to satisfy the above conditions, and a trust for their use was in its nature perpetual; and, therefore, that the grant upon such trust was a conveyance in fee to the trustees.

Judgment for the tenmts.  