
    * Stephen Barker versus Lemuel Wood.
    A devise in fee was “to the inhabitants of the second parish in B., confining it only to the use of the inhabitants of said B.” In fact, the said parish included certain inhabitants of A. It was holden that the parish could not take, because part of its inhabitants were not inhabitants of B., and that the other inhabitants could not take, not being a corporation; nor could they take as tenants in common. The heir at law was therefore entitled to hold, until some one could make a title under the will.
    This was a real action, and was tried upon the general issue before Sewall,J., at the sittings here after November term, 1808.
    The judge reported that several questions were left to the jury, upon the testimony and other evidence before them; and their verdict thereon, being for the tenant, was taken, subject to the opinion of the Court upon the validity and effect of a certain devise in the last will of Sarah Chadwick, duly proved and allowed the 6th of May, 1806.
    The devise in question was in these words, viz.: “ I give to Joseph Parker the use and improvement of all my buildings and lands, (except, &c.,) in the town of Boxford,, to be so used and improved, &c., and to be kept, &c., during the term of his natural life; and after his decease, I give the use, improvement, and income, of the aforesaid buildings and lands, viz., the incomes and profits arising by renting, or letting the premises to the halves, which may be thought most profitable, to be expended for the use of the schools among the inhabitants living in the north-west parish (formerly called the second parish) in the town of Boxford.; confining it only to the use of the inhabitants of said Boxford, and to be distributed among the schools in the said parish, in the same way and manner as money raised by the town for the support of schools is apportioned among the several districts in the town forever; and keep the said premises, in the name of Chadwick, to the remotest period of time; the income of which to be appropriated to the aforesaid use.”
    The said last will was made on the 15th of February, 1806, and the testatrix died in the course of the same month. The said Joseph Parker having also deceased, the said Lemuel Wood, on the 29th of December, 1807, being.an inhabitant of the said parish in Boxford, entered, *for himself and the other inhabitants of the said parish, upon the said lands and buildings, including the demanded premises, claiming the same by virtue of the said devise of the remainder thereof, after the death of the said Parker, to the use of the inhabitants of the said parish.
    
      It also appeared that the said north-west parish of Boxford includes certain inhabitants within the town of Andover; and that the inhabitants of said parish, within the said town of Boxford, were, at the time when said will was made, defined and known as school districts.
    If the opinion of the Court should be that the said remainder is not legally and effectually devised, then the verdict was to be set aside, and a verdict to be entered for the demandant.
    The cause was argued upon this report, November term, 1809, by Prescott and Story for the demandant, and Dane and Putnam for the tenant.
    
      For the demandant,
    
    it was contended that there was, in truth, no devise to any person. At most, it was a mere declaration of a trust, and if the trust was created, the heir at law of the testatrix must be the trustee. It is plain, from the whole clause of the will, that the testatrix did not intend that the land itself should ever go out of her family. It was to be kept in the name “ to the remotest period of time.” Had her intention been to give the land, she would have used the common language for such a purpose. The inhabitants of Boxford, living within the north-west parish, were no corporation. They could not, therefore, take under the devise ; and no other devisee being named, the heir at law must take as such, or as devisee subject to the trust.  Neither could they take as constituting one or more school districts, which have very limited powers by statute, not including a capacity to hold land; and are, besides, subject to alteration at the will of the town.
    
      For the tenant,
    
    it was argued that devises are not to be held void, if they can be enforced at law; and a devise to * charitable uses will be decreed in chancery, though it be void in law. 
    
    The devise in this case was to the inhabitants of the parish, who are a corporation capable of purchasing and holding lands.
    If the objection, that part of those inhabitants lived in Andover, should have weight with the Court, still the persons to whom the devise is limited in words, constituted two school districts, and such districts are by statute made corporations capable of holding real estate. As to these districts being subject to alteration, it is -a sufficient answer, that when once the estate had vested, the legislature would readily interpose their aid for its continuance.
    Further, if there were, at the decease of the testatrix, no persons capable of taking the estate, it might go to the heir, until a etirporation should be created capable of taking and ho.ding, as was the case under Sir George Downing’s will.  And it may be added, in this connection, that the legislature of this commonwealth have, by statute of 1808, c. 47, incorporated certain trustees to receive and manage the tenements in question in this action, conformably to the intentions of the testatrix. Sundry acts of a like kind have been, from time to time, passed by the legislature, as that for the incorporation of the trustees of the free school in Williamstown, (1784, c. 49;) that for incorporating the Hopland school district, (1790, c. 26;) that for incorporating trustees of John Doylston’s charitable donations, (1802, c. 44;) and many similar ones, all which had a retroactive effect.
    
      
      
        Bro. C. C. 81, Sonley vs. Clockmakers’ Company. — 2 Vent. 349.
    
    
      
      
        Com. Dig. Chancery, 2 N. 2. — Ibid. Uses, N. 11,12.
    
    
      
      
        Amb. 550. — 3 Ves. Jun. 714.—5 Ves Jun. 300. — See also 1 Vern. 224. — 3 Bro C. C. 516. — Com. Dig. Uses, N. 11.
    
   Curia.

The remainder expectant on the death of Joseph Parker was appropriated, by the testatrix, “ to be expended for the use of the schools among the inhabitants living in the north-west parish in the town of Boxford, confining it only to the use of the inhabitants of said town of Boxford,” &c. The case finds that the north-west parish includes certain inhabitants of Andover. These latter being excluded from the benefit intended, the remaining * inhabitants are not a corporation, and they cannot take as tenants in common. The heir at law must hold until some one can make title under the will. We give no opinion of the right of the corporation, created by the legislature, to receive and manage the tenements in question ; it being our opinion that the said remainder is not legally devised to those under whom the tenant claims to hold. According to the agreement of the parties, the verdict must be set aside, and a verdict entered for the demandant, upon which judgment is to be rendered, 
      
      
         [See Baker & Al. vs. Fales, 16 Mass. Rep. 497.— Ed.]
     