
    Lockwood and others against Weed and others.
    THIS was an appeal from a decree of probate, ordering a distribution of two tracts of land in Stamford, part of the estate of Daniel Scofeld deceased, to his heirs at law. The appellants were the North Baptist Society in Stamford, by their agents, Lockwood and others.
    The case was as follows. On the 7th of May 1812, Daniel Scofeld made and published his last will, containing the following deviso : “ I give, grant and devise unto the church of the North, or JV%w, Baptist church, in the town of Stamford, in Fairfield county, all my land joining my house, with the buildings, to lie as a parsonage forever; (conditions more fully hereafter mentioned) hounded 6cc.; and also, another piece on the east side of the highway, bounded &ce. ; and that the use, and improvement, and interest arising on said land, to be paid to said church, for the sole purpose of supporting the gospel in the Not th Baptist meeting-house ; and when said church shall neglect or refuse to keep a regular authorized minister to preach among them, or shall be moved to any other place, or shall alter in any way, or form the church in different sentiments than what it is now, or shall offer to move the property to any other place than what it now is; then the property and land to return to my heirs at law : So long as said church shall fulfil as aforesaid, they may give a part to the poor of said church.” The testator died soon afterwards, seised of the lands in question ; and his will was duly proved and approved. There was, at the time of making the will, and long has been, a congregation of Christians in Stamford, by the name of The North Baptist Congregation, being a legal corporation, duly organized and formed; and there never has been any church or congregation in Stamford known by that name, except the appellants. There was also, at the time of making the will, before, and since, a church, composed of a part of said congregation. Upon these facts, the superior court were of opinion, that the devise was made to the communicants composing the church of said congregation, who were not a legal corporation, and were incapable of taking. The devise was, therefore, held to be void ; and the decree of probate was affirmed.
    
      thereon, the A testator devised “ to the church of the North Baptist church in the town of S.” two pieces of land, with the buildings first “ to lie as a parsonage forever,” and the rents and profits of the other K to be paid to said church for the sole purpose of supporting the gospel m tire North Baptist meeting-house and then added, that “ when said church shall neglect or refuse to keep a regular authorized minister to preach among them, or shall be moved to any other place, or shall alter in any way, or form the church in different sentiments than what it is now, or shall offer to move the property to any other place than what it how is, then the property and land to return to my heirs at law : So long as said church shall fulfil as aforesaid, they may give a part to the poor of said church.” Held, that this devise was to the church of the North Baptist congregation, and not to the congregation, nor to the church in trust for the congregation.
    
      
      Hartford,
    
    November, 1817.
    The appellants thereupon moved for a new trial, on the ground that the court, in so deciding, had mistaken the law ; w hich motion was reserved for the consideration and advice of the nine Judges.
    
      N. Smith and Chapman, in support of the motion,
    contended, 1. That admitting a devise to “ the church of Iho North Baptist church” must be taken to be a devise to the communicants of that church, yet such devisees are capable of taking the estate devised. If the persons named as devi-sees are so described that they can be ascertained, they may take, though they are not a corporation. Shep. Touch. 4⅛ A devisee may as well be constituted by description as by nomination: e. g. devisees may be constituted by the words “ child” or “ children” — “ stock,” “ family,” “ house.” Fow. Dev. 320, 337, 344, 346. All the cases applicable to this point turn on the question of reasonable certainty ; and. the certainty is made out by parol evidence. Now, the communicants of a church may be as easily and as accurately ascertained as the members of a family. Suppose a devise be to the judges of the supreme court, to the president and professors of Yak-College, orto the inhabitants of a certain district; cannot all these be ascertained by evidence aliunde ? And will any one contend, that such a devise would be void for uncertainty? The member of the devisees never forms, of itself, an objection to the devise. To substantiate the objection urged in. this case, it must appear, that by no legal evidence can it be shewn who are the communicants.
    2. That the word “ church,” as used in this devise, is sy-nonimous with “ congregation.” That the word “ church” will admit of this sense, is evident from our statute, tit. 138, where “ church” and “ congregation” are used as words of equivalent import. Then, of two meanings that which will give effect to the devise is to be preferred, on the familiar principle ut res magis valeat quam percal. In construing a devise, the whole will must be taken together. If it can be gathered from the whole will for whose benefit the devise was intended, the court■ will carry into effect such intent. Now, the congregation of Baptists in the northern part of Siam-ford, was evidently the object of the testator's bounty. One piece of land, with the buildings upon it, is given “ to lie as a parsonage forever.” A “ parsonage,” in England, appertains to a benefice ; and, in this state, must mean the property of an ecclesiastical society. 15y another clause, the rents and profits of the land are given “ for the sole purpose of supporting the gospel in the North Baptist meeting-house an object in which the whole congregation, and not the church merely, are interested. The intent of the testator to give the estate to the congregation being established, there canuot he a doubt, whether this corporation is sufficiently described. The legal and proper name of a corporation is not required in a devise : it is sufficient; if it he so designated that it may be known. Fow. Dev. 493, 4. It was determined in a very early ease which has never since been questioned, that the words “ ecclesia sancti Andrea’, de l-Iolbomwere a sufficient description of the corporation of the parson of the church of Saint Andrew in llolborn, and his successors. 21 Rich. 2. Devise 27. S. C. cited 10 Co. 57. b. Plowd. 345. a. 523, Pow. Dev. 403.
    S. That if the devise be to the communicants of the church, and they are incapable of taking the beneficial interest, yet they may take as trusteds of the congregation. “ If a mars devise goods to the parishioners of the parish of S. to the use of the church; this is a good devise, and the church-wardens may recover it.” Shep. Touch. 415. Com. Dig, tit. Devise. (K.)
    
      Sherman and Hatch, contra,
    remarked, that the case presented two questions ; first, to whom is this devise made] secondly, can the devisees take ? They contended,
    1. That the devise was manifestly to the church, and nor to the rongregati m. This is the import of the words used, according to their literal and ordinary acceptation. The testator says explicitly, that he gives the property to the church, it is also apparent from other parts of the will, that be intended the church should have the property. Tire rents and profits of the land are to be paid to the church, to aid them in supporting the gospel. The, conditions prescribed in the will are to be performed by the church, And the provision for the relief of the poor is confined to “ the poor of said church.’*
    
    2. That a church is a community not incorporated ; and it is a clear principle of law, that a community not incorporated- cannot take an estate in fee. 1 Swift’s Syst. 225. Bout die ⅜* al. v. Cowdin, 9 Mass. Rep. 254, 10 Co. 26. b. Com. Dig. tit. Capacity. (B. 1.) Hornbeck v. Westbrook, 9 Johns. Rep. 73, 74. Jackson d. Cooper <$* al. v. Cory, 8 Johns. Rep. 385. 388. Barker v< Wood, 9 Mass. Rep. 419.
    In reply to the claim of the appellants, that the devise was to the communicants of the church in trust for the. congregation, it was remarked, that this was a gratuiions assumption, as there is not a word in the will indicating such an intention, if the. testator intruded to make the church his devisees, in any sense,lie clearly meant to give them the beneficial interest. This is manifest, from every part of they ill; but there is one consideration which is conclusive, viz. that the devise is made forfeitable by an act of the church. Besides, if this point were conceded to the appellants, it would not help their case. The trustee must be capable of taking a legal estate, though the cestuy que trust need not be.
   Swift, Ch. J.

The expressions made use of by the devisor clearly shew an intent to devise the estate to the church, as such, and not to the congregation. The words “ to the church of the north Baptist Church,'9 exclude the idea that he intended the congregation should be the object of his bounty. Had he named the North Baptist church only, I should have presumed, that he considered church as synonimous with congregation, and intended to have devised the estate to the congregation : But the expression, “ church of the North Baptist church” must have been intended for some special purpose. If he had intended to have given the estate to the congregation, he had nothing to do but so to express it. The words of the devise can be accounted for only on the idea of excluding the congregation j and they arc appropriate and proper, if it was his intention that the church, or body of communicants, should take the estate. This only could have been the object of this peculiar phraseology ; and on any other construction it is an utter absurdity. This meaning of the expression is perfectly consistent with the subsequent directions respecting the devise.

It is equally evident, that it was the intent of the devisor that the estate should be for the use and benefit of the church: and that he did not make the church, or its members, trustees, to hold the estate in trust and for the use of the congregation. The support of the gospel ministry in the North Baptist meeting-house, was a benefit to the church : and though it might also he a benefit to the congregation, yet this was incidental, while the direct object, of the testator was a benefit, to the church. But the last direction must shew the design of the testator beyond all doubt. In a certain event, the devisees may give a part to the. poor of the church. This w as for the benefit of the church ; and it cannot be presumed, that it was the intent of the testator, that the devisees were to hold the estate in trust, partly for the use of the congregation, and partly for the use of the church. The plain import, and fair construction is, that the devise was to llic rhurch of the North Baptist congregation, for their ose and benefit.

Whether the church can take the devise or not, it is unnecessary now to decide ; for it is not a party to the record. it is sufficient to say, that the devise was not made to the congregation.

In this opinion the other Judges severally concurred, except Govtn. J. w ho gave no opinion, having been absent, by reason of indisposition, when the case was argued.

New trial not to he granted,  