
    APPEAL OF ST. LUKE’S CHURCH.
    A bequest of a fund, in trust, to pay the income thereof, for the repairs of property, belonging to a church, is a dry trust, and may be regarded as executed in the beneficiary.
    Where there is a devise in fee, a devise over on alienation, is void.
    Appeal from the Orphans’ Court of Philadelphia, No. 143, January Term, 1863.
    It appeared before the Auditor that Wyndam II. Stokes, Trustee, had in hand the sum of $566.31, after payment of expenses ; the proceeds of the rents, issues and profits, of the real estate, situate on Germantown Road and School Lane, which had been devised by Hannah Stokes. The Auditor’s report then continued as follows:
    “Mr. Pancoast, on behalf of St. Luke’s Church, Germantown, claimed that this balance should be awarded to the Church. He produced before the auditor a copy of the last will and testament of Mrs Hannah Stokes, deceased, and as the present claim is founded upon it, the items relating thereto are given at length, viz.: '
    Item. — I do give a: d devise to my executors hereinafter named, their heirs and assigns, the remaining part of all that my messuage and lot of ground on the Germantown road and School lane aforesaid, (exclusive of the part given to Jacob B. Bowman,) beginning at the distance.of 48 feet 8 inches from School lane, thence in depth about 156 feet 8 inches, thence south-easterly 48 feet 8 inches to School lane, thence along the same about 11 feet 8 inches to the ground devised to Jacob B. Bowman, thence along the rear thereof 24 feet 4 inches, and thence along the same 145 feet to the road, and thence along said road 24 feet 4 inches to the beginning, with the appurtenances to hold to them until the net rents and profits thereof, (after paying taxes and necessary repairs,) shall amount to the sum of five hundred dollars, and when the said sum of five hundred dollars shall be raised, then I give and divise the said messuage and lot of ground, with the appurtenances, unto St. Luke’s Church, in Germantown, and their successors, for the sole use and benefit of said church and not to be disposed of, and if at any time the same shall be directly or indirectly disposed of, then this devise shall be void, and then and immediately therefrom, I do devise the said premises together with sum of five hundred dollars, raised thereout, to James Stokes, son of said Chas. M. Stokes, and Hannah Stokes Biddle, daughter of Ann H. Biddle, deceased, their heirs and assigns forever, in equal shares.”
    “Item. — I do direct my said Executors, Charles M. Stokes and Wyndham H. Stokes, and the survivor of them, his heirs and assigns, to place out at interest the said sum of five hundred dollars, raised out of the net rents and profits of the said messuage and lot devised to St. Luke’s Church, aforesaid, on good mortgage security, or in the purchase of a good irredeemable ground rent, and to apply the interest or annual rent to the keeping in repair said messuage at all times.”
    The will is dated January 21, 1836, and it was duly proved, &c., February 24, 1838.
    As it appears by the present account that the net rents, after paying taxes and necessary repairs, now amount to the sum of five hundred dollars and upwards ; it is therefore apparent that the devise of the premises to St. Luke’s Church has already taken effect. The balance in excess of the five hundred dollars spoken of clearly belongs to St. Luke’s Church, and the sum of sixty-six dollars and thirty-one cents is hereby awarded to the same.
    Mr. Pancoast also claimed that the sum of five hundred dollars should be awarded to the church, and on the ground that the trust on which it is held is a mere naked trust, an 1 without any beneficial interest to any.but the intended Cestui que trust, and that the law will set it aside in favor of the real parties in interest. In support of this he cites Kay vs. Scates, 1 Wright, p. 36 ; Kuhn vs. Newman, 2 Casey, 227.
    In the opinion of the Auditor, these authorities decide the present case. Here the devise of the premises to St. Luke’s Church has taken effect, and they take, absolutely, the entire beneficial interest in the same, and as the owners have the entire control of any repairs done to their own property. The Trustees are not directed to make the repairs, but are only instructed to apply the interest to the keeping in repair the said messuage. This duty would be fully discharged by paying over the interest, yearly, to the owners for that purpose, and this alone would present no duty to be performed by the Trustee sufficient to keep the trust alive. There is no special trust intended to accomplish any object recognized in this State as a ground for sustaining a mere dry trust. Bush’s Appeal, 9 Casey, 85, is an authority bearing on this estate. There it was the Trustee’s duty to invest and pay the interest yearly, during the life of a daughter, and the principal, after her death, to her heirs, and it was held that no trust existed after the death of her husband. The Auditor awards the said sum of five hundred dollars to St. Luke’s Church, German-town, all of which is respectfully submitted.”
    The counsel for the Trustee excepted to the award of the $500 to the Church. On Nov. 29, 1862, the Court sustained the exceptions, and the sum of $500 was subsequently awarded to the Trustee by an amended report. St. Luke’s Church then appealed complaining of the action of the Court below.
    
      Charles S. Pancoast, Esq., for appellant argued:
    that the devise to the Church of the real estate was a fee, and the condition in restraint of alienation was void; Reifsnyder vs. Hunter, 7 Harris 41; Walker vs. Vincent, 7 Harris 369; 1 Jarman on Wills, 810.
    The bequest over of the $500 upon the breach of the condition by the church is also void for the same reason. It is also void as an executory devise because it is not limited to take effect within a life in being and twenty-one years afterwards; Fearne on Remainders, 402, note e, 4 Kent 283; Taylor vs. Gould, 10 Barb 388; 1 Jarman on Wills 283. The gift of the Church impresses a religious use upon the property, and an attempt to divert the property to other uses would be restrained ; Ruiskern vs. Lutheran Church, 1 Sand Ch. 439. The Church has the right to say what repairs are necessary. The trustees under the will, have not the right to intermeddle with the properly and make repairs. If for any reason the income exceeds the amount necessary for repairs, or can not be applied thereto, the income would still belong to to the Church under the doctrine of Cypres; 2 Domat, b. 4 tit 2 s 6; Hill on Trustees, 128. And would be expended under the direction of the Church; Pickering vs. Shortwell, 10 Barr 28.
    The-only duty upon the trustees in this case is to receive and pay over the income and this is insufficient to sustain the trust; Kuhn vs. Newman, 2 Casey 227; Kay vs. Scates, 1 Wright 37.
    
      J. D. Rodney, Esq., contra,
    
    argued that the intention of the Testatrix was to secure a fund tor the repair of the property, “A “ benefactor may certainly provide for a friend (a fortiori for “ a charitable use,) without exposing his bounty to the improvi- “ dence of the beneficiary. He has an individual right of prop- “ erty in the execution of the trust, and to deprive him of it “ would he a fraud on his generosity. To appropriate a gift to a “ purpose or a person not intended, would be an invasion oí the “ donor’s private dominion ;” Holdship vs. Patterson, 7 Watts 551; Ashhurst vs. Given, 5 W. & S. 330. ‘‘A man may undoubtedly “ so dispose of his land as to secure to the object of his bounty, “ and to him exclusively, the annual profit. The mode in which “ he accomplishes such a purpose is by creating a trust, explicitly “ designating the uses and defining the powers of the trustees ;” Fisher vs. Taylor, 2 Rawle 37.
    In the present case, the very reason for creating the trust is to to fulfil the object of the Testatrix. The Church will receive the income from the fund which was all that was ever intended it should receive.
   The Supreme Court reversed the decision of the Court below on May 6, 1863, in the following opinion by

Thompson, J.

The real estate to which the income from the trust fund in controversy is to be applied, was devised by Mrs. Hannah Stokes, deceased, to St. Luke’s Church of Germantown. The devise is as follows:

“I give and devise the said messuage and lot of ground with the appurtenances unto St. Luke’s Church, of Germantown, and their successors, for the sole use and benefit of said church, and not to be disposed of; and if at any time the same shall be directly or indirectly disposed of, then this devise shall become void, and then and immediately therefrom, I do devise the said premises together with the sum of $500 raised thereout to James Stokes, son of Charles M. Stokes, and Hannah Stokes Biddle, daughter of Anna H. Biddle, deceased, and their heirs and assigns forever, in equal shares.”

Following this is the bequest of the fund in controversy in trust to “apply the interest or annual rent (if invested in ground rents) to the keeping in repair the said messuage'at all times.”

Is this such an active trust as it is necessary to keep on foot, or is it such a mere nominal dry trust as may be regarded as executed in the beneficiary, the church ? This is the sole question in the case, and the Court below decided to sustain the first propsition, and held it to be a continuing trust. Wherefore, let us inquire.

We think it not necessary for the purpose of transmission to the contingent devisees for the reason that a fee simple in the lot of ground and messuage was devised to the church. The provision against alienation is simply void, Walker vs. Vincent, 7 Har. 369; Jarman on Wills, Sec. 810. As a restriction on the fee granted, it is also void on the principle of Reifsnyder vs. Hunter, 7 Harris 41.

The devise over on the contingency of alienation, is not a contingent remainder, nor is it a contingent remainder by way of ex-ecutory devise. It is too remote and uncertain. It does not appear that it must take place if it takes place at all within a life or lives in being, and twenty-one years and nine months after-wards. The rule that it may exceed this period of time is fatal to it. 6 Cruise Dig. 320. Thus the devise to the church was a fee, and after the sum of $500 was realized it became the property of the church by a unity of title and possession. The do minion over it was complete in the devisees. The trust was not necessary therefore to pass the money to the person named when the real property should pass, for that could not take place.

Is it necessary to be sustained for investment and payment over of the annual income ? The fund is equitably the property of the cestui que trust. It can go nowhere else. Now, why cannot the trustees of the church handle it for the benefit and in care of the church as well as the testamentary trustees ? The latter are invested with no discretion of the investment, which is made. They cannot withhold payment of the annual income, and they have no power to lay it out in repairs for they have no right to meddle with the property to be repaired. They have no duties to perform, but to receive the interest on the money and hand it over, and in neither of these acts, have they a particle of discretion. I therefore think that the use and trust should have been considered executed in the cestui que trust, and it being but a dry trust the testamentary trustees are thus dispensed with. Bush’s Appeal, 9 Casey 85. The authorities under the church corporation were trustees for the church and were authorized and required to repair. There was no necessity therefore to maintain the trust for this purpose. We think the Auditor was right in his first report, and that the decree of the Orphans’ Court must be set aside.

And now to wit: May 6, 1863, this case having been argued by counsel and considered by the Court, it is hereby ordered and decreed that the decree of the Orphans’ Court of Philadelphia confirming the report of the Auditor in this case be reversed and set aside.; and it is further ordered and decreed that the sum of $566.31 remaining in the hands of Wyndham H. Stokes, surviving trustee under will of Hannah Stokes, after paying costs and expenses of the audit by him, be by him paid-to the proper officer of St. Luke’s Church of Germantown, and that the costs of this Appeal be paid out of the trust fund.  