
    Tucker and others v. The Rector, Churchwardens, and Vestrymen of St. Clement’s Church, and E. N. Mead.
    The power “ to purchase and hold real estate, and to demise, lease, and improve the same for the ose of such church, congregation, or society, or other pious uses," conferred by the fourth section of the general act, “ To provide for the incorporation of religions societies,” must be restricted as to the pious uses for which lands may be held, to such uses as are comprehended within the general objects for which the society is incorporated.
    The support of a rector or minister oí a church, is such a pious use, and a deed to an incorporated church, in trust to apply the rents and profits to the maintenance and support of the rector of the church for the time being, is valid.
    The provisions in the revised statutes, relative to trusts and perpetuities, do not affect the povvers of religious corporations under the general act; or apply to conveyances made to such corporations which arc within the authority conferred upon them by that act.
    (Before Doer, Mason, and Campbell, J. J.)
    Sept. 24 ;
    Oct. 20, 1849.
    The hill in this cause was filed by the complainants as heirs at law of Ami Hamilton, who died intestate, praying a discovery by the defendants, in relation to an alleged gift claimed to have been made by her to the defendants, The Rector, &c. of St. Clement’s Church, of a lot of ground, formerly belonging to her, and known as No. 824, on Broadway, in the city of New York, and in relation to certain deeds and instruments in writing, purporting to convey the lot to the church, in fulfilment of such gift; and seeking to have those gifts and the deeds and instruments declared void as against the complainants, upon the ground that they were obtained by undue influence, and that the intent and object, or effect thereof, is, to create a trust not authorized by the laws of this state, and for a longer period than is authorized by such laws; and the bill alleged, that such deeds and instruments, and the estate supposed to be thereby created, are under the statutes and laws of the state of New York illegal and void. And it also sought to obtain a release of the lot of ground to the complainants from the defendants, unincumbered by any acts of theirs, or that the defendants should account to the plaintiffs for the value of the lot and the rents and income thereof. Mr. Mead was made defendant as the rector of the church.
    The answers of the defendants having fully denied the allegations in the bill, charging undue influence ; it was agreed by the parties, that the argument of the cause should proceed upon, and be confined to, the validity and construction of the deeds or instruments in writing, in relation to the lot of ground, which are mentioned in the pleadings, and the effect thereof, without reference to any question of undue influence, in obtaining the same, and upon the other facts herein stated.
    It was admitted by the parties, that the deed made by Ann Hamilton to Francis Many, and the lease made by Francis Many to Ann Hamilton, and the deed made by Francis Many to The Tector, <&c., of St. Clement’s Church, all bearing date December 6, 1843, and recorded together, (at the same time with the deed from John N. Taylor and his wife to Ann Hamilton,) were all executed and delivered at the same time, and for the sole purpose of conveying the lot of ground from Ann Hamilton, (then being the owner thereof,) to The Rector, &c., of St. Clement’s Church, as a gift, upon the terms and for the purposes expressed in the deeds or instruments; and that no part of the money consideration mentioned therein veas paid, or agreed to be paid, for either of the deeds or instruments, or for such gift, and that Ann Hamilton always continued in the actual possession of the lot of ground under the above mentioned lease until her death, without paying any rent therefor to Francis Many; and that the plaintiffs were her heirs at law; that she died intestate ; and that St. Clement’s Church had no other right or title to the lot except that derived from such deeds and instruments.
    It appeared that St. Clement’s Church was incorporated under the act for the incorporation of religious societies, on the 26th day of July, and the certificate of incorporation was recorded July 28th, 1830.
    The deeds, &c., given in evidence were as follows :■—
    A deed in fee from Ann Hamilton to L. P. Bayard and J. A. Taylor, as joint tenants, dated April 22, 1840 ; and a lease from them to Aim Hamilton for life, of the same date, reserving a nominal rent.
    A release and quit-claim in fee by John N. Taylor, survivor of Lewis !’. Bayard, deceased, and Ann, his wife, to Ann Hamilton, dated November 13,1843, reciting the conveyance of the above mentioned lot, made by Ann Hamilton to Taylor and Bayard, and that the same was intended to be for the use of a society then expected to be incorporated; that the society had not been formed, and the undertaking had been abandoned, and that Bayard had died since the making of the conveyance to them; and it then releases the lot to Ann Hamilton at her request.
    A deed of bargain and sale, executed by Ann Hamilton to Francis Many, dated December 6, 1843, acknowledged and recorded the same day.
    A lease by Francis Many to Ann Hamilton, during her natural life, dated December 6,1843, acknowledged and recorded at the same time with the last mentioned deed to him.
    A deed of conveyance by Francis Many to The Rector, Church Wardens, and Vestrymen of St. Clement’s Church, dated December 6,1843, and acknowledged and recorded in the same book and at the same time with the last mentioned deed and lease, the habendum clause of which conveyance is as follows: “To have and to hold all and singular the above mentioned and described premises, together with the appurtenances, unto the said parties of the second part, and their successors and assigns for ever, upon condition, that the rents, issues, and profits of the premises hereby granted and conveyed, and in case the same shall be sold, the interest, income, or dividends of the money for which the same shall be sold, shall be applied, bv the said parties of the second part, to the maintenance and support of the rector or minister, for the time being, of the said church, and for no other purpose whatsoever.”
    An agreement between The Rector, &c. of St. Clement’s Church and Ann Hamilton, dated .December 15, 1843, not acknowledged, proved or recorded, reciting that Ann Hamilton was seized of and entitled during the term of her natural life to the lot of ground in question, and that St. Clement’s Church were seized of the reversion expectant upon the termination of her estate for life in the premises, and that she might thereafter desire to have the premises sold, and receive during her natural life the interest, income, or dividends of the money for which the same might be sold, instead of the rents, issues, and profits of the premises; and St. Clement’s Church thereby agreed with her, that they would unite with her, at her request, in making a good and valid conveyance, in fee simple, of the premises, to any person or persons who may desire to purchase the same, provided the premises should he sold for a full and fair price, and the whole of such price should be securely invested on mortgage of improved real estate in the city of New York, in such manner that The Rector, &c. of St. Clement’s Church should, at her death, become entitled to the principal of the money so to be invested.
    The cause was transferred from the supreme court to this court under the act of 1849.
    
      W. Lowerre, for the plaintiffs,
    made and argued the following points:
    I. Aim Hamilton was the owner in fee of the lot of land in question prior to the making of the deed to Francis Many, and the plaintiffs, as her heirs at law, upon her subsequent decease, intestate, became entitled to and owners of the lot, unless the gift supposed to have been made by her to St. Clement’s Church, and the instruments executed for effecting such gift, were valid and effectual to pass the title. The church claims no title except tinder those instruments.
    II. Under the act to provide for the incorporation of religious societies, St. Clement’s Church is incorporated and empowered to hold real and personal property to a limited amount of income; hut this simply constitutes the church a person, (or body corporate,) with capacity to hold real estate. Within the prescribed limits, the church is placed on the same footing with individuals, and all conveyances to the church must be governed by the same laws, and are subject to the same restrictions as conveyances to natural persons. (2 Id. L. of 1813, eh. 60, p. 213; not revised in 1(S30.)
    III. Where several instruments relating to the slime subject matter are made at the same time, they must be taken and considered as one instrument, and construed together. {Jackson r. McKinney, 3 Wend. 236; Hayes v, Kershaw, 1 Sand. Ch. Ji. 26-3.)
    IV. Every instrument must be construed according to the intent of the parties; and in the construction of an instrument creating or conveying any estate, it is the duty of the court to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is not inconsistent with the rules of law. (1 R. S. 748, title 5, § 2.)
    V. A trust is where the legal title to property is vested in one person, and the right to receive the rents and profits belongs to another. And no particular set of words or form of expression is necessary for creating a trust. (4 Kent’s Com. 2d ed. 304-5 ; Fisher v. Fields, 10 J. Id. 495; Sanders on Uses, 215-16 ; Steam v. Steeve, 5 J. Ch. R. 1.)
    ■ VI. By the revised statutes of 1830, uses and trusts, except as therein authorized and modified, are abolished. (1 R. S, 727, § 45 & 55.) And every future estate in lands is declared void in its creation, which shall, by any limitation or condition whatever, suspend the absolute power of alienation for a longer period than during the continuance of two lives in being at the creation of the trust. (1 K. S. 723, §14 & 15.)
    It is also enacted, that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the date of the instrument containing the limitation or condition, or in case of a will, two lives in being at the death of the testator. (1 R. S. 773, title 4, § 1.) All deeds and instruments, made in contravention of these statutory provisions, are void. {Coster v. lorillard, 14 Wendell 265; Hawley v. James, 16 Wendell 61; Hone’s Hx’rs v. Van Sehaich 20 Wendell 564 ; Home v. Gott, 24 Wendell 641.)
    YII. The interest of Ann Hamilton, Francis Many, and St. Clement's Church, was, by the instruments in evidence, dated 6th December, 1843, (which must be construed together,) conveyed, and the effect of those instruments, (if valid.) is to convey the lot of land in question to the church in fee; in trust to hold the same, or the proceeds thereof, for ever, and to apply the rents or income to the maintenance and support of the rector or minister, for the trine being, of the church. This is an attempt to create an estate and trust not allowed by law, and the instruments in question are consequently void.
    y*IIL This is not the case of an absolute conveyance of lands to St. Clement’s Church, subject to a condition subsequent, which being illegal, may be declared void, leaving the property in the absolute ownership and possession of the church, discharged of the condition. The intent of the donor, (which must govern,) was not to give the property for the benefit, in any event,, of St. Clement’s Church, but, to vest the legal title only in the church, for the use of the rector or minister, for the time being. This is a trust which is sufficiently expressed, and being contrary to law, the instrument by which it is attempted to be created is void.
    IX. The plaintiffs, as heirs of Ann Hamilton, have inherited and are entitled to the premises in question, and to have the alleged gift to St. Clement’s Church declared void, and the premises released to tliem, so as to remove the cloud which now rests upon their title.
    
      Murray Hoffman, for the defendants.
    I.The trust created by the various instruments would have been before the revised statutes a perfectly valid trust, with a trustee competent to fate, and a cestui-qui trust clearly designated.
    1. A corporate body may be a trustee. (Attorney Gen. v. Whorewood, 1 Yesey Sen. 586; Green v. Ihitherfurth, Ibid. 462; Hummer v. Corporation of Chippenham, 14 Yesey 251; In the matter of Howe, 1 Paige 214.)
    2. The cestui-qui Gust was designated, viz. the minister, for the time being, of St Clement’s Church.
    3. Such a conveyance for such a trust would have been valid prior to 1830. {Montraple v. Martin, Croke Eliz. 288; the Mortmain Acts, Shelford on Mortmain; Statute of Edward 6, concerning Charities, cited 1 Hoffman Oh. Eep. 249, and cases Ibid. 254; Lyon awl Wife v. Herne, Ed. 6, cited Ibid, page 255 ; Vidal v. Girard's E-x. 2 Howard IT. S. Eep. 190.)
    II. The statute of trusts of the revised statutes of 1830, made no change in this law. It does not apply to trusts for a religious or charitable nature. (The State a. Gerard, 2 North Cari Eep 210; The State v. McGowan, Ibid. 9; Griffin v. Graham, 1 Hawks, 96; Shotwell v. Mott, 2 Sand. Oh. Eep. 54.)
   Duer, J.

We shall not <leci.de, in this case, the important questions that were so learnedly discussed upon the hearing, namely, whether the English doctrine relative to pious and charitable uses was in force in this state, as a part of its common law, prior to the adoption of the revised statutes; and if so, whether the doctrine has not been wholly abrogated by the new statutory provisions in relation to trusts and perpetuities. In giving our judgment in another cause, which has been heard by us during the present term, it will probably be necessary to state our deliberate views in relation to these grave and difficult questions : but the grounds upon which we shall rest our decision, in the present case, render it unnecessary now to consider them.

When the powers of a corporation are not defined and restricted by its charter, or by any general law, its capacity to take, hold, and dispose of real estate is precisely the same as that of a natural person, and that such a corporation may hold lands, as a trustee, can no longer be considered a doubtful question. But when the purposes for which a corporation may take and bold real estate are expressed and enumerated in its charter, the maxim, “ expressio un-ius est exclusio altering,” is invariably applied, and the enumeration is construed as a prohibition of all that it does not embrace. Such a corporation can hold lands for the purposes specified, and none other, and hence every question that can arise as to its legal capacity must be determined solely by a reference to the words of its charter. This principle of construction was adopted by our supreme court, in the early case of Jackson v. Hartwell, 18 John. 422, has since been followed in cases too numerous to be quoted, and is now placed beyond the reach of judicial discretion by an express provision in the revised statutes. (1 R. S. 602, § 1 and 4.)

The rector, wardens, and vestry of St. Clement’s Church are a religious society, incorporated under the general act providing for the incorporation of religious societies, (Laws of 1813, ch. 60; 3 R. S., 1st ed. page 292;) and the provisions of that act, so far as they are applicable to societies of the same denomination, that is, Protestant Episcopal Churches, constitute its charter. The provisions in the fourth section of the act are general, and apply to every religious society, incorporated under the law, and they confer upon each the power “ to purchase and hold real estate, and to demise, lease, and improve the same for the use of such church, congregation, or society, or other pious uses We do not doubt that the words “ for the use of such church or other pious uses,” are to be read in connexion with each of the preceding members of the sentence, and it is equally clear that they must be understood in the same sense as applied to each. Consequently, every religious society may take lands by purchase to the same uses, for which, when no special use is expressed in the conveyance, it may demise or lease them, but it also follows that it is to such uses that its capacity to hold lands in trust must be restricted. The general words, “ pious uses,” are not to be understood in their broadest sense, so as to authorize a religions society to hold lands to any use, however foreign to the purposes of its incorporation, that religion and charity may sanction. When lands are conveyed to such a corporation, without restriction, it may dedicate them, by virtue of its power of demising and leasing, to any specific use comprehended in the general objects of its incorporation ; but should its trustees apply the rents and profits, by the terms of the lease, to any use or purpose foreign to the objects of the society, and from which its members, as such, would derive no benefit, they would abuse their power and violate their trust, and a court of equity would undoubtedly grant relief by avoiding their act. Hence the power of the corporation to hold lands by purchase, as a trustee, must be subject to the same limitation. The use, specified in the conveyance, must be one of the purposes for which the society was incorporated, and to which its trustees, in the exercise of their discretion, might lawfully apply the property, if generally conveyed. It is a further proof that the words “ pious uses” were meant by the legislature to be understood in the restricted sense, that all the lands conveyed to a religious corporation, whether for the use generally of the society, or for some other pious use, are considered as a part of its whole estate, of which the income cannot exceed a limited amount; but, had the legislature intended that such a corporation might hold lands in trust for purposes entirely foreign to the objects of the society, as the land so held could not justly be considered as a part of its estate, it is reasonable to believe that the rents and profits would have been excepted from the limitation of its income.

Understanding, however, the words of the statute in the limited sense that we adopt, they still leave no room for questioning the validity of the conveyance, which has given rise to the present controversy, whether that conveyance be considered as the act of the original owner, Mrs. Hamilton, or of her immediate grantee, Francis Many. The use or trust expressed in the deed is the application of the rents and profits of the land conveyed to the maintenance and support of the rector or the minister, for the time being, of St. Clement’s Church, a purpose to which, had none been expressed in the deed, the same rents and profits might lawfully have been applied by the trustees of the church. The support of its minister, is a duty that devolves upon every religious society, and to afford him that support, may justly be regarded as one of the objects of its incorporation. It is, therefore, a pious use, within the meaning of the statute.

The only question that remains to be considered is, whether the power of a religious corporation to hold lands, upon a trust of this description, has been taken away by the revised statutes, and we have no difficulty in saying that, in our judgment, the trust is just as valid as if the new provisions in the revised statutes, which are relied upon by the plaintiffs’ counsel, had never been adopted. We cannot believe that these provisions were designed to change or affect the powers of religious corporations ; for, should they be thus construed, no grant of lands made to religious corporations, since the revised statutes have been in force, can be valid. Every such conveyance creates a perpetuity, and necessarily implies a trust, although none may be expressed, and hence those to whom the care and management of the temporalities of a religious corporation are entrusted, are, with strict propriety, denominated its trustees. The trust, however, upon which they hold its property, it is certain, cannot bo referred to any class of those cases which alone are authorized by the revised statutes. The general repealing act, which was adopted by the legislature at the close of the revision, enumerates all the acts and parts of acts that were meant to be superseded and repealed by the revised statutes. No mention of the act to provide for the incorporation of religious societies is there to be found ; and we are satisfied that there -would have been no such omission, had the repeal'of that act, or of any of its provisions, been intended. It is an historical fact, that a revision of the act was reported by the revisers, and was not adopted by the legislature, from the conviction that it was expedient, for many reasons, to retain the law exactly in its present, form. So far, therefore, from being repealed, it was virtually reenacted.

Hence we rest in the conclusion that, under the existing law, real estate may be granted to any religions corporation, in trust, for any specific use or purpose comprehended in the general objects of its incorporation. It is a necessary consequence that the bill of the heirs at law, the plaintiffs in this suit, must be dismissed with costs.  