
    Peter Mc’Cartee, one of the executors of the last will and testament of Philip Jacobs, deceased, appellant, against The Orphan Asylum Society of the City of New-York, respondents
    ALBANY,
    Dec. 1827.
    J. being seised óf real estáte, devised that if, át his death, he should have a child living, the rents and profits should he received by his executors, and applied for the support, &d., of the' child, the surplus to' be invested in stock to accumulate and he paid over to the child at 21, or marriage. He gave all the residue of his real and personal estate, after payment of all legacies and other bequests, to á corporate company, (the Orphan Asylum Society in the City of New Ytirk,) the bequest to take effect immediately, after debts and legacies paid, if he should leave no child; or, if he should leave a child, then, upon the child’s death, intermarriage or attaining 21. The will then, gave to his executors all his real estate, subject to the trusts aforesaid, and declared his will to he, that when such child should attain 21, of iharry, his real estate should he Sold by his executors, and one-half of the proceeds paid to the child, if it should attain 21, or mafry.- The testator died seised, and a posthumous child was born to him, which died before 21, and unmarried. Held, that the devise to the corporation whs direct on the, death of the child, and not a trust for the corporation; and So the will waS, in this respgtit, void as to the real estate Within the statute of wills, (sess. 36, ch. 23, s. 1, 1 B. L. 364.)
    ♦Otherwise, it seems, had there beéñ a trust: insisted on at large, in the dissenting opinion of Stebbins, senator, and supported by Jones, chancellor, - arguendo for his decree.
    The act incorporating thé company, (sess. 30, eh. 179,) authorised thetn to take by purchase, (j 1.) Held, that the term purchase Should be taken in its popular, and not in its broadest legal sense, so as to include a devise Dissenting view of this question. Per Crary, senator.
    Two statutes shall stand together, and both have effect if possible; for the law does not favor repeals by implication ; and all acts in pari materia should be taken together, as if théy were one law.
    An act of incorporation, authorising a company to take by purchase, means subject to the restrictions and incapacities created by other general ata» tutes.
    The right to purchase is incident to a corporation. ^The right to devise existed at common law. Per Crary, senator j Stebbins, senator, contra; and that it depends on statute.
    The words rents and profits, in the statute of wills, do not include a use. Per Stebbins, senator.
    The statute of wills is an enabling, not a prohibitory statute. Per Stebbins, senator.
    The reason why devises to corporations were excepted in the statute of wills. Per Stebbins, senator.
    Difference between an incapacity to devise, and á prohibition to take. Per Stebbins, senator.
    Incapacity to devise land will not prevent the devise of a use. Per Stebbins, senator.
    Brief historical view of uses and trusts. Per Stebbins, senator.
    It has been held that a feoffment by the husband to A. for the use of Ms wife is executed by the statute of uses, though the husband could not convey directly to Ms wife. Per Stebbins, senator.
    On failure of a trustee, a court of equity will appoint another. Per Stebbins, senator.
    The statute of úsese will not execute upon a use. Per Stebbins, senator.
    The English statute of charitable devises, of devises in mortmain or of wills or devises to corporations; and the common law, and the rules of tho English chancery on these subjects, independent of statutes, and a comparison between the English and New York statute law on these subjects, and a very full review and Mstory of the eases on the same subjects, both English and American. Per Jones, chancellor, assigning reasons for his decree,
    Though a devise directly to a corporation maybe void by the statute of wills, (1 R. L. 364.) yet a devise to a natural person, in trust for a corporation, is good. Resolved by the chancellor, and not questioned by the court of errors. Vid. Jones, chancellor’s argument in support of Ms decree; and the view of this question by Stebbins, senator.
    The wife may convey land to her husband by first .aliening, With her husband to a stranger, who may alien to the husband. Per Jones, chancellor, arguendo, in support of Ms decree. Recognized per Stebbins, senator, who says an indirect mode of conveyance is nú fcaud Upon the law, when resorted to in order to remedy a want of capacity to convey directly.
    The rule that what cannot be done directly shall not be done indirectly, applies only to an act proMbited by statute, or one wMch is morally wrong, or one which is intended as a devise to evade an express provision or rule ♦of law. It has no application to mere incapacity, when the act to obviate the incapacity contravenes no statute regulation, nor violates any principle of law. Per Jones, chancellor, arguendo in support of Ms decree.
    Goods conveyed to a trustee for the use of Ms wife, places them beyond the control of the husband. Per Jones, chancellor, arguendo in support of his decree.
    
      Jurisdiction of the court of chancery in the case of charities, considered and vindicated. Per Jones, chancellor, arguendo in support of his decree.
    A trust shall not fail for want of a trustee, and cases showing this. Per J°nes> chancellor, arguendo in support of his decree; and per Stebbins, senator.
    Extent of the word purchase. It includes devise. Per Jones, chancellor, arguendo in support of his decree and the cases oitod by him; and pel Woodworth, J.,. delivering the opinion of the court of errors ; and pel Crary, senator.
    On appeal from the court of chancery. On the 2Qth of March, 1825, the respondents filed their bill in the court below, against the executors of Philip Jacobs, deceased, to recover a devise and legacy made by his last will and testament to the respondents. The testator being seised of a large real estate, made his will, dated September 7th, 1818, by which, after directing his debts and funeral expenses to be paid, and after a number of bequests and directions, and among others, the bequest of a pecuniary legacy to the respondents, he declared that if, at the time of his decease, there should be any child of his living, all the rents and profits of his real estate should be received by his executors, or the survivors of them, and be applied to the support, maintenance and education of such child; the surplus if any, to be from time to time invested in stock, to accumulate for the child’s benefit, and to be paid over to such child at the age of 21 years or marriage. The will also declared, that the testator did thereby give, devise and bequeath all the residue of his estate real and personal, after the payment of all legacies and other bequests, to the Orphan Asylum Society of the city of New York, (.the respondents,) to be applied to the charitable purposes of the institution; the bequest to take effect immediately after debts and other legacies were paid, if the testator should leave no child at the time of his death, or, if he should leave a child, then upon the death, intermarriage, or the attaining the age of 21 years by such child. The *will then proceeded, “ Item, I do thereby devise and bequeath unto my said executors, and the survivor or survivors of them, or such of them as may act in the premises, all my real estate, of whatsoever nature or
    
      kind the same may be, subject to the trusts aforesaid. And it is my will, that whenever such child shall attain the age of 21 years, or marry, that my real estate be sold by my said executors, or the survivor or survivors of them, or such of them as may act herein, and the one half of the proceeds thereof paid- to my said child, if the child shall attain the age of 21 years, or marry.”
    The testator died, seised; as at the date of the will, on the 6th of October, 1818, without revoking his will, and leaving his wife Elizabeth surviving, of whom shortly after his death, and on or about the 23d of January, 1819, a posthumous child, a daughter of the testator,, was born, which child lived- till the 5th of April, 1821, when she died.
    July 8th, 1826, the court of chancery decreed, that upon the death of the child, the respondents became entitled, for the benefit of the charity for which they were incorporated, to the estate both real and personal, of which Jacobs died seised, subject to the rights of the widow, &c.
    The object of the appeal was to reverse the decree, so far as it respected the real estate.
    The reasons for the decree, at the time of making it, were assigned by Jones, chancellor, and were now presented to this court as follows:
    Jones,'Chancellor. This case arises upon the will of Philip Jacobs, who, by his will, after directing his debts and funeral expenses to be paid, and after a number of bequests and directions, and amongst others, the bequest of a pecuniary legacy to the complainants, declares his will to be, that, if at the time of his decease, there should be any child of his living, all the rents and profits of his real estate should be received by his executors, or the survivors of them, and be applied to the support, maintenance and education of such child; the surplus, if any, to be from time to time invested in stock, to accumulate for the child’s benefit, and to be paid over to such child at the age of twenty-one years, or marriage; and *the testator did thereby give, devise and bequeath all the residue of his estate, real and personal, after the payment of all legacies and other bequests contained therein, to the Orphan Asylum Society in the city of New York, ,to be applied to the charitable purposes of the institution > -the bequest to take effect immediately after all other debts and legacies were ■paid, if he should leave no child at the time .of his death; or if he should leave a child, then upon the death, intermarriage, or the attaining of the age of twenty-one years of such child. Item, he devised .and bequeathed unto his executors, and the survivor and survivors of .them, or such of them as might act in the premises, all his real estate, of whatever nature or kind the same might be, subject to the trusts aforesaid, and declared it to be his will, that whenever such child should attain the age of twenty-one years, or marry, his real estate should be sold by his executors, cr the survivors or survivor of them, or such of them as -might act therein; and the one half of the proceeds thereof paid to his said child, if such child should attain the age of twenty-one years, or marry; and he appointed the defendants, Peter McCartee, Richard Cunninghan and John Anthon, the executors of the will.
    The testator died on the 6th of October, 1818, without revoking his will, and leaving his wife Elizabeth him surviving. Shortly after his death, and on or about the 23d of January, 1819, a posthumous child, a daughter of the testator, was born, and which child lived until the 5th of April, 1821, when she died.
    The child having died within the age of twenty-one years, and before marriage, the complainants claim to be entitled to the benefit of the whole residuary estafe of the testator. The right to the personal property is not contested, but the claim to the benefit of the -real .estate is resisted, on the ground .that the .complainants, being a corporate body, are disabled by the statute concerning wills to take an interest "in land by devise.
    By the act concerning wills, it is provided, that ..any person having any estate of inheritance, either in severalty, in coparcenary, or in common, in any lands, tenements or hereditaments, may, at his .own ¡free ¡will and .pleasure, give and devise the sanie, or any of them, or any rents or profits out *of the same, to any person or persons, (except bodies politic and corporate,) by his last will and testament, or by any other act by him lawfully executed.
    It is contended, that the power to dispose of real estate by devise, is derived from tifia statute exclusively, and that the testator was prohibited by the exception from devising the interest intended for the complainants, either to them directly, or to his executors, for their benefit.
    The intention of the testator to bestow his bounty on the complainants, is not denied, but it is contended that this benevolent intention cannot be carried into effect by this court, because the charity is to be administered by an incorporated society; and if there be any prohibition of law that ■applies to the case, this court, however much it might lament the necessity of turning the proffered charity from the interesting objects to whose succour it was devoted, is bound to give that prohibition its legal effect. But the will of the testator, in subordination to the settled principles of law, and the positive injunction of statute regulations, is the rule for the disposition of his estate, and in a struggle between the heir or trustees, whom the testator obviously did not intend to benefit, and a charity which he confessedly designed to endow, a court of equity will lend its aid to the extent of its legitimate powers to uphold the devise, and effectuate the laudable and meritorious purpose of the testator.
    The question is, whether effect can be given to the intention of this testator, or whether his charity is forbidden by the rules of law. It is an interesting question. I have approached it with diffidence, but I have bestowed upon it the best consideration in my power to give it, and have arrived at conclusions which have satisfied my mind, and, must govern my decision.
    It is objected to the validity of the devise, that the estate, by the legal effect of the will, vests in a body corporate, and I consider the defence which grows out of that objection as resting upon these grounds : First, that this devise is to the corporation within the meaning of the statute . Secondly, that a devise to a corporate body, though foi. charitable purposes, and not for the general use of the *cor poration, is nevertheless unlawful; and Thirdly, that this corporation comes within the prohibition.
    First, then, is this a devise to a corporate body, within the meaning of the exception in the act concerning wills 1
    
    The fair construction of the will appears to me to be a devise by the testator of all his real estate to his executors as trustees upon trust, that in case he should leave a child (and which case occurred,) the rents and profits should be received, taken and applied, by his executors and trustees, for the benefit of such child, until the child should arrive at the age of twenty-one years, or marry, and the estate on the arrival at the age of twenty-one years, or marriage of the child, to be sold by the acting executors, and one half of the proceeds thereof paid to the child, and the other half to the complainants ; and in case of the death of such child within the age of twenty-one .years, and before marriage, then upon trust to hold and dispose of the whole estate, and the proceeds thereof, to and for the Orphan Asylum Society, in the city of New York, (who are the'complainants,) to be applied to the charitable purposes for'which the association was established. The testator, it is true, by the terms of one of the clauses of his will, devises and bequeaths all the residue of his real and personal estate, on the contingencies therein mentioned, to the complainants ; but by another clause of the will, he expressly devises all his real estate to his executors, subject to the trusts of the will. These two clauses must be construed together; and to give effect to both, the legal estate must be held to vest in the executors as trustees, and the beneficial interest in the complainants, and the child, according to the trusts of the will. This will, then, did not create an immediate devise of land, or of any rent or profit out of land, to the corporation. The devise is to the trustees, and the beneficial owners took an equitable interest only as cestui que trust. The testator left a child. During the life time of that child, the rents and profits of the whole real estate, so vested in the trustees, belonged exclusively to her. If she had attained the age of twenty-one years, or had married, the estate, according * to the trust, was to be sold by the trustees ; and one half of the proceeds paid to her, and the other half part thereof to the complainants. Suppose the child had lived to the age of twenty-one years, or had married, and the estate had been sold by the executors pursuant to the trust, would not the devise of a moiety of the proceeds to the corporation have been, in such case, a valid and available disposition of it to them ; if so, the trust for the corporation was valid, and effectual at the time of the death of the testator, and during the life time of the child, and upon the death of the child, the lands would remain, and thereafter be vested in the executors, to whom they are devised by the will upon trust to hold "the same, for the use and benefit of the complainants.
    But the validity of this trust for the complainants is strenuously contested. The objection to it is, that being a trust of land for a corporation, it was in effect a devise of the land to the corporate body, and it was broadly contended that the devise of land to trustees for the benefit of a corporate body is void, and the principle was pushed to the extent of insisting, that a devise of the proceeds of land directed by "the will to be sold, is equally within the prohibition of the act as the devise of the land itself. The position is, that the complainants, notwithstanding the form of the devise, are to be regarded as standing on the same ground as if they were the immediate devisees of the land. To this position I am not prepared to yield my assent; and a brief examination of the authorities adduced in support of it will best explain the grounds of my dissent from the doctrine it involves.
    For the support of the principles contended for, the authority of Fonblanque’s Treatise on Equity, (vol. 2, p. 212, book 2, ch. 1, sec. 2, note 2,) and the cases there collected and cited, were relied on. These authorities give an exposition of the statutes of mortmain now in force in England; and the doctrine advanced hy Fonblanque in his, note, and confirmed by the decisions to which he refers, is deduced chiefly from the statute of (9 Geo. 8, ch. 36,} usually denominated the statute of mortmain.
    *That statute provides that no lands, tenements, rents, &c., or money, goods, chattels, stocks in the funds, securities for'money, or personal estate to be laid out in land, shall be given, granted, aliened, limited, released, transferred, assigned or appointed, or any way conveyed or settled to or upon any person or body corporate, or otherwise, for any estate or interest whatever, or any ways charged or encumbered by any person, in trust or for the benefit of any charitable use, unless by deed, executed in the presence of two witnesses, twelve calendar months before the death of the donor or grantor, and enrolled in the court of chancery within six months next after the execution thereof; and the third section of the act makes all gifts, &c.,' not executed and enrolled according to the directions of the statute,, absolutely null and void. 
    
    A reference to the cases cited by Fonblanque in support of his positions, will show that they were all decided on the construction of that act, with the exception of that of Le Costay. De Pas, and perhaps that of Gravenor v. Hallum.
    Thus, in the case of the Attorney-General y. Ld. Weymouth, (cited from Ambler, 20,) a testator devised lands to trustees to be sold, and the residue of the proceeds, after certain bequests first satisfied thereout, to be paid in moieties to two several corporate bodies, for charitable uses. The attorney-general filed an information against the trustees, who had taken possession of the lands, to have the same sold, and the proceeds applied to the trusts directed by the will. The statute of 9 Geo. 2, cap. 36, was set up as a defence ; and the court held the wdrds of the act to import, that it should not be in the power of any person to convey the lands themselves, nor to charge or incumber them, for the benefit of a charity, unless by deed, executed and enrolled according to the directions of the statute; and that the will in question was a devise of the land itself, and a gift of money, contrary to the prohibition of the act. The chancellor considered it a devise of the land, because it was a gift of the rents and profits *until sale, and none but the charity had a right to compel the sale ; but he held it immaterial, whether it was a devise of the land or money; both were prohibited, and all charges and encumbrances for the benefit of the charity made void. .This decision, then, was clearly founded upon the special provisions of the statute against charging or encumbering lands for the benefit of a charity, on the ground that the directions to turn the whole real estate into money for the charity, must be within the prohibitions, which forbid the party even to create a charge upon it, or to direct a specific sum to be paid out of it for that purpose.
    The cause of Hogg v. Hodges, (reported in 2 Vesey, Sen. 52,) went upon the same ground. The testatrix devised her real estate to be sold, the proceeds to be applied to the uses of her will, and then directed her debts and legacies to be paid out of the personal estate, and made the executors trustees, leaving them all the residue of her personal estate, and of the money to be raised by the sale of the real estate, to be given by them in what parities they should think proper, particularly recommending to them the hospital of Bath. .The trustees agreed, that as all money arising from a real estate is to he accounted as real, the bequest was so far void by the statute of 9 Geo. 2; hut their desire was that, in compliance with the intent of the testatrix, the assets might be so marshalled, that all the other legacies should be paid out of the real estate, and so the personal go to the charity; but the chancellor said that it would be contrary to the express direction of the testatrix, who had ordered her debts and legacies to be paid out of her personal estate, and he thought himself not warranted to set up a rule of equity contrary to the common rules of the court, merely to support a bequest which was contrary to law. From this case, it appears to have been already settled, that the rule which prevails in courts of equity, that money arising from the sale of real estate continues in equity to-be real estate,, was to be applied in the construe tion of-the statute of 9 Geo. 2, for it was admitted to govern the case as bringing the devise within the provisions of the act.
    *The same principle was applied to the case, of Arnold v. Chapman, in 1 Vesey, Sen. 108. The testator in that case devised a copy-hold estate to the defendant, Chapman, he causing to be paid to the executors $1000, and then devised the residue and remainder of all his estate, after debts and legacies paid, to the governors of the Foundling Hospital and their successors forever; and it was held by.the court that the law would not allow the sum thus made payable by the defendant to the executors, to goto the charity, because it was in effect .a charge upon the copy-hold; and the chancellor said, that had the testator devised the copy-hold estate, on condition to pay $1000 to the governors of the Foundling Hospital, it would have been void by the statute; and that he had dope the same thing in substance in another mode by including it in a residuary bequest of real and personal estate; that if that was allowed, the act would easily be evaded, by directing the real estate to be sold, and the money given to a charity; but that it had been determined to amount to a devise of the land itself, because all charges, trusts and sums of money, devised out of land to a charity, are made void by the act; for whatever is taken out of real estate shall be considered as real; and this would be taking so much out of the real estate for the charity, which therefore shall not go to it.
    In the case of D.e Costa v. De Pas, (Ambler, 228,) there was a bequest of personal property for a use to which the law of England did -not permit it to be applied, and the question was, to whom it should belong, whether to the next of kin or to the crown, to be disposed of as a charity ? In that case, a Jew, by will, made after 9 Geo. 2, ch. 36, established a fund, to be so appropriated as to apply and dedicate the revenues of it towards the establishment of a Jesuba, or assembly for reading the law and instructing people in the Jewish religion. Lord Hardwicke held the devise to be in itself a charity, but that it promoting a religion contrary to that by law established, could not be supported on the particular application of it directed by the testator, and was to be applied to such charitable purposes as the crown should direct.
    In the case of the Attorney-General v. Graves, (cited from Ambler, 155,) there was a devise of a residue of real and personal '’estate to charitable uses, part of which residue consisted of a term not carved out of the inheritance by the testator, but vested to him as trustee. The question was, whether it was within the statute of. 9 Geo. 2, and void; and the chancellor declared it to be both within the intention and words of the statute. In this case the chancellor gives his construction of the statute, and shows the ground on which he went in determining the points arising under it; and in that view the case furnishes a key to other decisions.
    It was contended that the lease coming from another, was personal property, and might well be disposed of to charitable purposes: and it was urged that the words “ any estate or interest whatsoever,” made use of in the statute, were to be held to mean only that a person should not devise his own land for any estate or interest whatsoever; but the court overruled the construction, and held that the words relate back as well to lands and tenements as to personal estate, and that the annulling clause, which affords a construction of the other, annuls all estates or interests in lands and tenements, and there is no color for the distinction on the latter words.
    In the case of Gravenor v. Hallum, (Ambler, 643,) the devise was of a messuage, subject to annual payments to the amount of £10, therein after given, and by the will forever charged on the premises; which messuage, together with all the testator’s other real estate, was directed to be sold, and after directions given by the will for the disposition of the proceeds, the annual sum of £10 was also disposed of, two sums of twenty shillings each to the churchwardens of two different parishes forever, to be laid out in repairing his family vaults in each if those parishes, and the residue to charitable uses.
    The gift of the residue was admitted to be within the statute, and the question was upon the bequest of the two sums for the repair of the family vaults; but the court said that the two sums on which the doubt was made, were given to church-wardens, who are not a corporation to take, and therefore are void at law, and being so, a court of equity would not appoint new trustees to set them up. But it was *further declared, that they were not blended with the charity, but were distinct sums, directed to be applied to that particular use; and though the churchwardens could not take, yet the devise was good, and the heir at law was a trustee. '
    Attorney-General v. Meyrich, (2 Vesey, Sen. 44,) was the devise of money due on mortgage, to trustees for the charitable purpose of establishing a school for teaching poor boys. The question was, whether the devise of this debt secured by mortgage on real estate, was within the act, and the court held that it was. The chancellor declared that the design of the act was to lay a restraint on every method whereby lands might probably come to such hands, unless by,the manner therein prescribed; that money due on mortgage was a charge and encumbrance on land, and within the express words of the third clause of the act, the meaning of which was, that you shall not give to a charitable use that which is or may be a charge on land, though not so at the time of the gift; that a sum of money devised to be put out on mortgage of freehold land, would be restrained by the act, and it could not vary the case, that at the time of the gift the money was actually so vested; that he thought mortgages were prohibited by the first clause; but, if doubtful on the first, the words of the other clause take it in expressly.
    The case of the Attorney-General v. Cock, (2 Vesey, Sen. '273,) was the devise of an annuity to a Baptist minister, and his successor in office : and was held to be valid, and established on the ground that the charity and the death of the testatrix were long before the mortmain act of 9 0 Ge0- 2•
    
    . The last case cited is that of Corbyn v. French, (4 Yesey, 418,) which was the bequest of a pecuniary legacy of £500 to the trustees of a chapel, to be applied by them towards the discharge of a mortgage on the chapel; which mortgage was paid off in the life time of the testatorand the question was, whether the bequest of the money to be applied in the redemption of the mortgage, being in its nature a charitable use, was not within the prohibition of the act of 9 Geo. 2; and if the legacy was not void under that statute, whether, as at the death of the testator, the mortgage was paid off, and that object therefore could not be obtained, the trustees were *entitled to the legacy for the general benefit of the charity. The master of the rolls declared himself in favor of the residuary legatees on both points. He determined the first point, which is the material one, upon the construction of the third clause of the act, which, he considered as declaring all gifts, grants, conveyances, &c., of any lands tenements, or other hereditaments, or of any estate or interest therein, or of any charge or encumbrance affecting or to affect the same, or of any personal property, to be laid out in the purchase of land, &c., or of any estate or interest therein, or of any charge affecting the same, to or in trust for any charitable use whatever, made in any other manner than as by the act directed, to be absolutely void; and the question was, whether the legacy was not to be applied in the purchase of an interest in land, or a charge or encumbrance affecting the same, and he held that it was a bequest of money to be applied in the purchase of an interest then affecting the premises.
    The interest in the land which was covered by the mortgage, was not vested in the trustees; they had all the estate but that mortgage interest, and the purchase was to give those trustees who had the estate, subject to that in-interest which was in other persons, a larger and more extensive interest than they had before. It was the gift of a sum of money for the purpose of purchase, first, and then conveying to the trustees that further interest in the land, and it was therefore within the statute; and he said that it had been decided that a sum of money secured on turnpike tolls, is an interest in land within the act; and he added, that the legacy given to enable the trustees to com píete the purchase of an estate contracted for by the trustees, would be within the statute and void.
    These are all the cases cited in support of the position that the devise of lands to trustees for the benefit of a body corporate is void, and to show that the devise to a corporation of the proceeds of lands devised to trustees to be sold is unlawful; and the review of them shows that they were all decided subsequently to the act of 9 Geo 2, and most of them on the construction given by the courts to that statute.
    *Now the object of that statute obviously was,8 to suppress and abolish devises of land and interests in real estate to charitable uses ; for it prohibits all devises and donations of land, and of estates and interests in land, and charges upon real estate, to charitable uses, whether to corporate bodies or to natural persons as trustees, or as cestuis que trust, unless the gift is made by deed, indented and enrolled according to the directions of the act, and which directions require the execution and delivery of the deed to be at least twelve months previous to the death of the grantor, and the enrolment within six months after its execution, and all the prohibited dispositions are ex-, pressly annulled and declared void. The preceding review of the adjudications on the subject, has shown that the court of chancery, in furtherance of the declared .purpose of the statute, have held that bequests of money directed by the will to be paid in by devisees of land, and bequests of money secured by mortgage of real estate, are within the spirit of its prohibition; and following up the policy and spirit of the act, the court has decided that the bequest to charitable uses of the proceeds of land directed by the will to be sold, is invalid and void. In short, every disposition by will of land, or of any term or other interest in land, or of money to arise out of land, or to be invested m real estate, if given for the use of a charity, has been decided to be illegal.
    
      This liberal construction of the act by the English courts, was in accordance with their views of the intention of the legislature; for the recital of the act declaring the prohibited uses to be a public mischief, it was held that the statute declaring them void was to be regarded as a remedial "act, and was therefore to be liberally construed to suppress the mischief, and to advance the remedy. If that statute, therefore, or any correspondent provision, was in force in this country, the devise now under consideration might perhaps be indefensible. But we have no such statute. Devises to charitable uses are not prohibited by our legislature. The decisions of the English courts under the statute of 9 Geo. 2, ch. 36, do not apply therefore to cases arising in this state. We must look to. earlier adjudication for the rules that are *to govern our courts in the exposition of charitable devises. What then was the law of the English court of chancery prior to the prohibitory act of 9 Geo. 2, relative to devises of land to corporate bodies for charitable uses, or to trustees for the benefit of charities ?
    Anterior to that statute, there was no restraint in that country upon the dedication of real estate to the purposes, of charity, except the ancient statutes of mortmain, which prohibited the alienation of lands to corporated bodies, and the auxiliary exception in the statute of wills. The statutes of mortmain have not been adopted by this state, but the exception in the statute of wills has been incorporated into our act, and that exception is the only impediment to the alienation of lands by the owners of the inheritance, which is known to our system of laws.
    By the statute of this state concerning wills, all persons (other than bodies politic and corporate) are permitted to take lands by devise; and may take the same to or for any lawful use or purpose whatsoever without restraint. Now, the case before me is that of a devise to the executors of the will, who are natural persons, and capable of taking by devise, subject to the trusts declared by the testator, and by which trusts the estate is to be applied by the Orphan Asylum Society to the charitable purposes for which that association was established. Can the exception in the statute of wills, which applies solely to devises to corporate bodies, disable this corporation then from taking the benefit of the trust vested in the trustees for them, as cestuis que trust of the property, to be applied ' by them to the charitable purposes of the institution they represent 1
    
    The English statutes of 32 and 34 Hen. 8, commonly called the statutes of. wills, contain the same exception as the act of our legislature. It was continued in force in that country from the time of its passage, in the reign of Hen. 8, to the time of the separation of this country from that.. As, therefore, the exception in that statute is incorporated without .variation into our o wn, and as it was for "centuries in operation in England, the judicial expositions of its meaning in the courts of that country are to be our guides in expounding it, *and if, at the time it was adopted by our legislature, it had received a judicial construction in that country, the courts of this state would, as a general rule, conform to that construction. What then was the construction of this exception at that period ’ of time at Westminster Hall ? Was it held to disable a corporate body from taking an interest as cestui que trust in lands for charitable purposes ? and was its operation to avoid a devise of land to "trustees for 'the benefit of a'body corporate, equally with a devise of the land itself directly to the corporation ?
    Kyd, (1 Kyd, 101,) in his treatise on the law of corporations) statés the rule on this point to be,'that though bodies politic and corporate are expressly excepted from the statute of wills, and aré therefore incapable of taking directly by will, yet it- has been held that they are not, by means oj that-exception, rendered totally incapable of taking the benefit of a devise -made in their favor. • He instances the case of a direction by a tegMtor in his will, that executors convey to a corporation, in support of his position; and refers for his authority to Porter’s case, (in first Coke’s Reports.)
    In Porter’s case, it is stated in argument, and agreed by the court, that if a man devised that his executors should, by the advice of learned counsel, convey his lands to any corporation, spiritual or temporal, this was not against the statutes, because it might be lawfully done by license to alienate in mortmain.
    Porter’s case, as reported by Lord Coke, (1 Coke’s Rep. 22,) arose upon a devise of land by a testator to his wife and her heirs, upon condition that she, upon advice of learned counsel, in all convenient speed after his decease, should assure, give and grant the same for the maintenance and continuance of a free school in his will men tioned, forever; and that the wife should have the issues" and profits thereof during her life, bearing the charges of the school as the same was then kept and maintained. It was contended that the condition was against law, being contrary to the statute, (23 Hen. 8, ch. 10,) for the suppression of superstitious uses ; but to this it was answered, first', that good and charitable uses were *not made void by that statute, but only superstitious uses; and secondly, that admitting that good and charitable uses were made void by the act of 23 Hen. 8, yet the condition was not void; for if the uses were prohibited by the act, yet the testator had devised that counsel should advise how the said tenements should be assured for the maintenance and continuance of the school, and that might be advised lawfully, viz. first to make a corporation of them by the king’s letters patent, and afterwards by license to assure the lands and tenements to them. To illustrate and enforce the principle thus advanced, the case cited by Kyd is put as an analogous case and as settled law; and it was insisted by counsel, and agreed by the court, that inasmuch as the condition was not against law, and because it might be lawfully advised and done, (although the use had been prohibited, as it really was not,) the wife was bound to perform it.
    A third point was made by the counsel for the queen, which was, that admitting the use to be prohibited by the act, and that the reference to counsel could not exempt the same from its operation, yet that the statute of wills had taken away the force of the act of 23 Hen. 8 ; but as to. that, says the reporter, the barons did not deliver their opinions, because they resolved upon the two first points. Here then was -a devise of real estate to a devisee, on condition to assure the same to and for the charitable purpose of maintaining and continuing a.free school, which had then recently been established, but was a voluntary association, without any charter of incorporation'; and yet the- object being a charity, the condition was held -to be valid in law, and binding upon the devisee, because the benevolent intention and design of the testator might be effectuated -by means -of an incorporation and license thereafter -to be procured. If the principle of this case is "sound, it follows that a devise of land to a devisee capable -of taking a legal estate for -the use and benefit of a charitable institution, which could -not take ‘by direct devise to itself, will be supported if the trust may by any means be lawfully vested in the charity, or executed for its benefit.
    An incorporation and a license were in that case held necessary, because the trust was to assure the -estate to a free ^school, which must have a charter -of incorporation, to enable it ¡to take by grant •; and the license was required to remove the impediment of the statutes of mortmain, which ptohibited.alienation of land to corporate bodies; but neither can -be necessary where the trust is to convey to a subsisting corporation, and no -statute of mortmain is in force.
    This -case did .not-establish the precise proposition, that a devise of land to trustees, for the benefit of an institution, incorporated for charitable purposes, is valid, for that point is not made in the-cause.; but the point it-did decide, appears to .me, to involve the same principle. That-case settled the principle, that a devise-of .real estate to trustees capable of taking by devise, for the benefit of an unincorporated association, which could not have taken the estate itself by direct devise to .themselves, is effectual "to vest the estate in the trustees, -and will be available to the beneficial ■owners, if they can afterwards qualify themselves -to take and hold the interest; and if a devise to trustees for the free school, not then possessing, hut-afterwards to acquire a corporate capacity, and ;a license to take by grant, was held to be good, how can a devise to these executors in trust for the subsisting corporation of The Orphan Asylum Society, which has power to take lands by grant, be illegal and void ? Can the incapacity of the corporation to take land by devise, disable the institution from taking the estate intended for it by a grant from the trustees 1 When Porter’s case Was decided, the statutes of 32 and 34 Hen. 8, were in force, and were noticed in argument, but neither the counsel nor the court advert to the exception in the statute, as hindering or impeding the execution of the trust by the devisee of the estate; but the settled rule of law is stated to be, that a devise to executors upon trust, to convey on advice of counsel to a corporation, is not against any act of parliament, because it may be lawfully done by license ; and if there had been no statutes of mortmain to prohibit the alienation of land to a body corporate, a charter of incorporation alone would have been requisite, and the executor would have had no occasion for a license to convey ; but the trust would have been valid and obligatory upon them by the force of the will itself.
    *So in the case of the Attorney-General v. Downing, (Ambler, 550, 571, 1 Dickens, 414,) the remainder of an estate of inheritance was devised to trustees, who all died in the testator’s life time, upon trusts with the rents and profits to establish a college, and after the founding or incorporation of such college or body corporate, the trustees and their heirs, to stand and be seised of the estate in trust for the collegiate body, and their successors forever. The question was, whether this trust should be decreed or not. No notice was taken of the exception in the statute of wills, as invalidating the devise, or excluding the college from the endowment, but the objection was, that the devise was illegal and void, by the statutes against mortmain, and the answer to this objection was, that the trust was executory, and the manner of effectuating the intent with license of the crown, was lawful. It was further insisted, that if the crown should refuse a license, of which there was no probability, the devise would yet be good as a charity, under the statute of 43 Eliz., and the court would execute the trust cypres; but in neither view of the case does the sta tute of wills appear to have been regarded as affecting the devise or the execution of trust.
    And in the case of Adlington v. Cann & Andrews, (3 Atk, 141,) where the testator had made a will before the statute of 9 Geo. 2, devising his real estate in Bristol to trustees, in trust to dispose of the rents and profits of the same, not exceeding £250 for the building of a hospital, to be under a master for instructing in reading, writing, arithmetic and the mariner’s art, as many boys as the profits of the estate given by him to the hospital would clothe ; and after the passage of the mortmain law of 9 Geo. 2, had revoked that will, and substituted another in its place, Lord Hardwiclce said, that the first will, if the testator had not revoked it, would certainly have stood. .
    If then, a corporate body, before the statute of 9 Geo. 2, was not, by the statute of wills in England, rendered totally incapable of taking the benefit of a devise, why should our act concerning wills be construed to create an entire incapacity with us ? In England the anterior statutes of mortmain, which have subsisted there in different forms from the time of magna charta, made the license of the king necessary to a *valid and effectual conveyance, from the trustees to the corporation. But we have no statute of mortmain, and corporate bodies may, therefore, receive conveyances of land from their trustees without any license or dispensation for that purpose; or if a license could be necessary, the capacity to take lands to a limited amount in value conferred upon The Orphan Asylum Society, by its act of incorporation, must surely be a súfficient warrant.
    Then what rule or principle of law, or statutory provision is there in this country, to prohibit or disable a corpo-' ration from taking and holding a beneficial interest in real estate as cestui que trust by devise ? The use or trust of land is a distinct interest from the land itself, and collateral to it. It is the right in equity to the pernancy of the profits of lands whereof another person has the legal seisin and possession, and to direct and control the conveyance of the estate, and the defence of the land by the trustee, and that fight may be transferred by assignment, or transmitted by dense or descent.
    Upon- these properties of an use, which belong equally to trusts of modern times, a system was, soon after the introduction of the doctrine of Uses, established in England for the testamentary disposition of lands; and long before the statute of wills, the general power of devising was thus indirectly acquired. One method was to convey the land to feoffees to the use of the will, and then to declare the uses of the feoffment by the will; the effect of which was to turn the legal estate into a use, and then to devise the use to the object of the testator’s bounty; and it was held that the subject of the devisenotbeingland, but an equitable interest subsisting in contract, and collateral to the land, the feudal restraints did not apply, and a corporate body Was as capable as natural persons of taking under the devise.
    Lord Coke, in his comments on .Littleton, (Co. Lit. 272, sec. 462, 463,) and in his Reports, (6 Coke, 18, Sir Edward Clare’s case,) observes, that where a man makes a feoffment to the use of his will and by his will limits estates accord-’ ing to the powers reserved to him on the feoffment, the estate shall take effect by force of the feoffment, and the use is directed *by the will, so that the will is but declaratory; and Saunders (1 Saunder’s Uses, 72,) noticing the practical operation of this system, observes, that courts of equity in allowing a devise of the use, did in effect permit the legal interest in the land to be devised; and this indirect method of disposing of lands by devise, not only appears to have been in general use, anterior to the statute of 32 Hen. 8, cap. 1, but it was recognised and sanctioned by parlia- ■ ment. For by the statutes of 7 Hen. 7, ch. 3, and 16»Hen, 8, ch. 14, persons in the king’s service in the wars were allowed to alien their lands for the performance of their wills, without license or fine for alienation. If, prior to the statute of wills, when all persons were alike incapable of devising or taking by devise, except in particular cases and by special custom, this devise of land, by the indirect method of devising the use of it, was permitted, why may not the same method be still pursued in the case of devises to corporations, who continue under the same disability now as before the statute 1 It is settled that the general power given by statute to devise, does not affect the special custom which antecedently authorised devises in particular cases; and on the same principle the indirect method of devising by means of a use, must continue as it was before; and the method of devising by copy-holders is a practical illus tration of the principle; for as the statutes of wills do not extend to copy-hold estates, a power of devising them indirectly by the agency of uses, is at this day in constant exercise, similar to that which was used for the devising of freehold lands before the statute. The copy-holder surrenders his estate to the use of his will, and then disposes of it by his will, which operates as a declaration of the uses of the surrender, and not as a devise under the statute of wills.
    It would seem to be clear then, that if the estates vested in the executors in this case had been conveyed to them by the testator in his life time, by feoffment or fine to the use of his will, and he had afterwards declared the uses of the feoffment by his will, the trusts would have been valid and effectual. Why then are not the same trusts valid, when the estate which feeds them is created by devise 1
    
    *It is laid down in the Touchstone, (Shepherd’s Touchstone, tit. Devise,) on the authority of Coke, that a man may by act executed in his life time, or by his last will and testament, at his decease, give his lands, tenements or here ditaments, to any person or persons not corporate, and their heirs for any religious, charitable or civil use, as well as for any private use, and that these are not such- uses as are executed by the statute of uses ; and the rule is general, that any grantor who is capable of an estate directly to himself, is capable of the same estate by way of use ; but with this qualification, that if the use be limited, to a corporation, there must be a license had; otherwise it will be an alienation in mortmain The necessity of a license to corporations, to take the use of land vested in- trustees for them as cestuis que use, was created by the provisions of the statute of 15 Richard 2, ch. 5; and the power to dispense with the statute prohibition, and authorise or legalise the alienation to- the corporation by license, was vested in the crown by statute. As the restraints imposed by the statutes of mortmain in England, upon alienations to corporate bodies do not exist with us, no license can be necessary here to secure to a corporation the enjoyment of a trust vested in a trustee for its benefit.
    What then is there in our laws- to invalidate a trust created by a devise of land to trustees, for the use and benefit of a corporation, if the trustees are persons competent to take land by devise under the statute of wills ? It is the beneficial interest and equitable ownership, and not the legal estate that vests in the corporation by the will; and if the use may exist as a distinct interest from the land, there seems to be no reason- why corporate bodies, equally with natural persons, where the disability to take land is the only impediment that affects them, should not be capable of taking the use, though disabled to take the land.
    Suppose the testator to be himself the cestui que trust of the estate, and the legal title to be vested in others upon subsisting trusts for his benefit, and with power to him to dispose of them by will; would his devise of his beneficial interest to a corporate body be invalidor would not the corporation be entitled to enforce the performance of the trust 1 Such a *devise was, prior to- the statute of 9 Geo. 3, effectual under the English law, and until the statute of 15 Rich. 2, ch. 5, which declared that uses should thereafter be subject to the statutes of mortmain, and forfeitable like the lands themselves, would not have come within the operation of the statutes of mortmain, nor have required a license to give it efficacy; and1 under the modern doctrine of trusts, to which the statute of uses gave rise-, the beneficial interest in- the land! continued to be devisable to corporate bodies, without any other legal restraints than those which the old statutes of mortmain and the act of 9 Geo. 2 interposed.
    If then the- use is ancient, and the trust of land in modem times, was a- devisable interest in England, both before and after the statute of wills was passed, and the ancient statutes of mortmain, and the more recent act of 9 Geo. 2, were the only obstacles - in that country to a valid devise of them to corporate bodies, on what principle is it that a testator may not in this country, where no mortmain act exists, devise the lands he holds to trustees, subject to a trust for the benefit of a corporation ? He effectually separates the use from the land by the will, and at the same time disposes of the legal estate to one, and the beneficial interest to another devisee. How does the operation of the devise differ from the effect of the previous feoffment, to the use of the will, and the subsequent declaration of the uses by the will ? The corporation takes the trust or beneficial interest equally in both cases, and takes nothing more in either; must not the same principle then equally govern both? Can it be that a trust which is valid, if fed by an estate created by a previous feoffment, to the use of the will, becomes invalid because it is fed by a legal estate created by the will itself? How is the exception in the statute of wills to produce that effect ? That statute created no new disability. It left corporations as it found them. They were under no prohibition by any statute of the state restraining them from taking the beneficial interest in real estate as cestuis que trust. The only disability which affected them was, the incapacity to take land by devise. The origin and brief history of that disability, will best show the light in which it is now to be viewed.
    *The restraint of the power of alienation of lands of inheritance, or to speak more correctly, the want of capacity to transfer or receive the freehold, of which that disability is the remnant, was not deduced from the principles of the ancient common law of England; but was, by feudal policy, engrafted upon the system of jurisprudence prevailing in that country at the time of the Conquest. It was an incident to feudal tenures ; and as long as the relations between •lord and tenant retained the spirit of their original establishment, the alienation of the feud was inconsistent with the obligations of the tenant to his lord. But when the yeomanry of the country began to emancipate themselves from the vessalage of the feudal law, the power of alienation was gradually assumed, and it was ultimately established by law.
    The right of alienation inter vivos, was an early acquisition of the tenants of the freehold; but the disability of aliening by devise, was not removed until long after the power of alienation by deed had been fully established, nor until long after the doctrine of uses had been introduced. The disposition of estates by will had indeed been preserved in particular districts, and by special custom, from the times of the Saxons; and we may collect from the recitals and provisions of the ancient acts of parliament, and the language of the early reports, that devises of land had grown into use anterior to the statute of wills; but until the time of the 8th Henry, no trace is discovered of any statute authority for the practice. In that reign the general right, which would seem to be incident to the ownership of the soil in civilized countries, but which had been so long suspended in subserviency to the policy of a military system of tenures as to be almost forgotten as a right, was revived and restored. One exception was however made in the English statutes of wills, in deference to the statutes of mortmain ; not because a devise to a corporation was contrary to the principles of the ancient common law, but from an apprehension that a statutory provision, giving a general unqualified power to devise might be construed to authorise the devise of land to corporations in mortmain. In England, that exception had its use as an auxiliary measure in the system of mortmain, which ^prevailed in that country. The legislature, by excepting bodies politic and corporate from the capacity of taking by devise, which was conferred on all natural persons in their private capacity, effectually guarded the statutes of mortmain from evasion, by the operation of the new power of disposition by devise; for a corporation could not take under a devise directly to itself, for want of capacity, and a devise to a trustee for its use would be within the prohibitions of the statutes of mortmain. The exception was continued in our act concerning wills, but with us is an insulated provision, merely leaving corporations under the same disability after the passage of the act as they were under before, and as I appiehend, without producing any other effect upon them; and whatever may be the reason for continuing it in the statute, I am not prepared to say that either the terms of the exception, or its policy and utility, under the laws or institutions of this country, are such as to justify this court in applying it to a devise#to competent trustees for charitable purposes, merely because a corporate body is to, administer the charity.
    The right to purchase and hold real estate is incident to every corporation, and the corporators are entitled to acquire lands by every means permitted bylaw; and conceding that the disability which was engrafted by feudal policy into the common law, w'as transplanted with it into the free soil of these states, and that it continued in full force at the time of the passage of our statute of wills in 1786, it still was no more than a disability to take lands in the particular mode prescribed by that act; and it would be against an elementary principle to extend a disability or a restraint, if it can be so considered, which is in derogation of one of the rights of property, and a common incident to a corporate capacity, beyond the letter of the law or the necessary construction of its provisions. The act, it is true, does not enable corporate bodies to take lands by devise, but it does not prohibit them from taking the use or trust of lands as cestuis que trust, nor does it restrain those whom it enables to take by devise, from taking or holding for the use or benefit of corporations, or from subsequently conveying to them. The direct devise of land to the corporation is inoperative, not because it is ^prohibited bylaw, but because the corporation, from the continuance of a positive rule of feudal policy, once imperative, as an incident to the tenure of the land, but the reason of which has long since ceased, is without the capacity to take. But that incapacity does not preclude another who has capacity, from taking for their benefit, nor does it disable the corporation from acquiring indirectly by a devise to a trustee, and a conveyance from that trustee to the corporation, what the want of capa city to take by devise disables them from taking directly by the will itself. Nor is this devise of the trust of land to the corporation, instead of the land itself, to be regarded in the odious light of a fraudulent evasion of the act concerning wills. The rule that a party shall not do indirectly what the law does not permit him to do directly, does not apply ; for that rule was made for cases where the act is prohibited by statute, or is in itself illegal or morally wrong, and where the circuity is a device to evade an express provision or rule of law. It has no application to the case of mere incapacity, when the indirect means employed to obviate the impediment contravene no statute regulation, nor violate any principle of law. The transfer by a married woman of her estate to her husband, is an example to illustrate the distinction ; for the coverture disabled her from conveying, and him from talcing the estate, by a direct conveyance from her to him; but yet, by the joint deed of the husband and wife to a third person, and the grant of that third person to the husband, a valid and effectual transfer of the estate from her to him will be effected. So the wife is incapable of acquiring personal property for her separate use, by a direct transfer of it to herself, for eo instanti, that it is conveyed to her, the marital right vests it absolutely in him; yet a settlement of it upon her, by vesting it in trustees for her separate use, may effectually secure it for her benefit, and against his dominion or control. So, too, a tenant in tail was restrained by the statute de donis from aliening the entailed estate, by a direct conveyance to a purchaser, and yet the law allowed him to effect the object by the indirect and circuitous means of a common recovery.
    *Is the legal incapacity of a corporate body to take by devise, or of a testator to devise real estate to corporate bodies, more absolute than that of a feme covert, to convey to her husband, or to acquire personalty for herself 1 Besides, we have seen that anciently, when the disability to take by devise was general, the agency of uses was employed in the indirect disposition of the beneficial interest in lands to corporate bodies by will, and the continuance by the exception in the statute of wills, of the pre-existing disability of devising lands to bodies corporate, and of corporations to take by devise, does not disable the testator from exercising the same power by means of trusts, which he before exercised by the agency of uses in obviating the disability, any more than the omission of the statute to authorize the devise of land by copy-holders, took from them the right they possessed before, of disposing of the copy-hold estates by will through the instrumentality of a surrender. If in this state, as in England, public policy shall ever require the exercise of the owner’s dominion over his property to be further abridged, and devises of interests in real estate to charitable uses shall be suppressed or prohibited by the legislature, this court will be as ready to enforce the provisions of the prohibitory act, as the English court of chancery was to carry into effect the mortmain law of Geo. 2; for when the charitable use shall be declared unlawful and void, any mode of creating it will be illegal. But as yet, the power to devise to the purposes of charity continues to be unrestrained; reliance is placed on the intelligence and discretion of the citizen for security against the abuse of the power he possesses over his estate; and a further precaution and safeguard against the undue amortising of land by corporate bodies, is found in the policy of the legislature in limiting the amount in value of the land the corporation is entitled to hold, by the act of incorporation, or by general laws. On what ground, then, is this court to hold devises of land to trustees for the benefit of corporate bodies, to be unlawful or invalid, or adjudge them fraudulent and void, as evasions of the exception in the statute of wills ? I cannot surely deny to an incorporated institution for charitable purposes, the right to the bounty of a testator, who, in *his endowment of the charity, has had recourse to the intervention of trustees to obviate the consequences of the disability of the institution which has the administration of the charity, to take lands by devise ; and I must therefore hold the trust vested in these executors by the will for the complainants in this case, to be valid.
    But it is contended that the trust, if valid, was executed by the statute of uses, and that the legal estate which jy that operation would have passed to the complainants, if they had been capable of taking it, became, by their disability to take, wholly inoperative and void. The reasons I have already given in favor of the validity of the devise to the executors under the will, inclines me to the opinion that the devise is a subsisting trust, and has not been executed by the statute. The trust of the estate is, that it shall be applied by the Orphan Asylum Society for the charitable purposes for which that association was established. It is to the charity that the testator has devoted his bounty, and the corporation is merely the almoner to dispense it. The complainants are cestuis que trust, not for general purposes, and to deal with the estate as their own, but for the purposes of the charity alone. It is in the nature of a public charity, and not a mere private use or trust, which it was the policy and intention of the statute to execute. It is a devise to competent trustees for charitable uses, to be administered by the complainants; and do not such uses partake too much of the character of modern trusts, to be executed by the statute of uses ?
    It is admitted that the trusts of the will subsisted, and were vested in the executors at the death of the testator’s child. If the child had lived to the age of twenty-one years, or had married, and the estate had been sold by the executors in pursuance of the trust, the complainants would have been entitled to a moiety of the money arising from the sale ; and as they have become by the death of the child entitled to the benefit of the whole of the trust estates, if the trust to sell continues to subsist, they would now be entitled, in case of a sale, to the whole of the proceeds. But if this trust or power to sell was extinguished by the death of the child, which however I am not to be understood as admitting to be the *case, still the complainants as the cestuis que trust of the estate, are entitled to the rents and profits for the benefit of the charity, and the trustees are bound to convey the trust estate as they may direct. Then, is this a trust within the statute of uses ? An express trust to convey, would indisputably have given the interest of the complainants the character of an equitable estate ; but the trustee is bound by the obligations of the trust, without any express direction, to convey as the ■ cestui que trust shall direct. Can it be then, that the estate of the cestui qtte 'trust is to he legal or equitable, according as the duty of the trustee to convey is expressly enjoined by the will, or results from 'the trust; or must not that question turn upon the character and purposes of the trust 'and the intention of the testator ? The intention of the testator obviously was to endow the -charity, but to vest the legal title to the real estate intended for that purpose in the trustees. That such was his intention is manifest, not only from -the appointment of trustees, but from the distinction he has made between Ms real and personal estate; for though he dedicates both to the purposes of thf charity, yet he vests the real estate alone in trustees bequeathing the personal directly to the complainants themselves. Could there be a stronger proof of a special intent ? And when the general and special intention of the testator concur, and the rules of law do not hinder, such intention ought surely to govern the construction of the will.
    If, therefore, the complainants were disqualified from taking the estate from the trustees, by the operation of the statute of uses, that statute could not execute the use; and the trust must remain in the trustees to the uses of the will, or the intention of the testator must be frustrated) and if the legal estate might be legally and securely transferred to the complainants, yet, under the circumstances of the base, and upon the intention of the testator, and as the estáte was vested by the will in the trustees for the complainants, to be applied to the purposes of the charity, and not for private, uses, and as the complainants might he advised or might desire to take the conveyance of it under the direction of the court, and upon, special trusts for the application of it to the purposes *of the charity as directed by the will, I think I conform to the principles of equity, and impugn no rule of law, by holding the devise to create an equitable .interest and not a legal estate.
    But supposing the statute of uses to execute the trust, and the legal estate, on the death of the child, to vest by the operation of that statute in the corporation as cestui que trust, to whom the nse was devise ; does it follow that the rights of the society were lost by the operation ? It is conceded that the legal estate vested in the executors on the death of the testator, subject to the uses of the will, and continued so vested in them until the death of the child. Then, if that estate was by that event transferred to the cestui que use, it was so transferred, not by the will, but by the operation of the statute of uses ; and the corporation took not as devisees, by virtue of the devise, but as cestuis que trust, by operation of law. The testator gave the legal estate to the executors, and devised the use of the whole, or a moiety of it, on certain contingencies, to the corporation; the statute of uses did not avoid that devise, nor prevent its taking effect; but permitted the estate to vest, and then executed the use. The statute of wills was merely passive; it conferred no capacity in the corporation to take, which was not possessed before, but it created no restraint, disability or interdiction to the right of acquisition of property which a corporate body was not subject to before; and if the corporation may take by deed from the trustees, they may surely take by virtue of the statute of uses, which operates as a statute conveyance, transferring the possession to the use ; and this, the legislature, in the statute itself, would seem to concede; for they enact that when any person then stood, or was seised, or thereafter should stand or be seised of lands to the use, confidence or trust of any other person or any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, such person or body politic that should have any such use, &c. should from thenceforth stand and be seised of the lands of the like estates as they had in the use : a provision which, in terms, admits that real estate may be devised to a person to the use of *or in trust for a body corporate ; or, in the words of the statute, that aman may stand or be seised of an estate of inheritance to the use, trust or confidence of a body politic, by reason of a will, and that the body politic that has such use, confidence or trust, shall stand and be seised of the land of and in the like estates as they had in the use. ' To apply that principle to • the present case; the testator having devised his estate to his executors, in trust for the Orphan Asylum Society, the executors were, by reason of the will, seised of the estate to the use of the society, and by force of the statute, the corporation that had the use, became seised of the land of the like estate as it had in the use; and can' an estate thus transferred to the corporation and vested in it by law, be invalid or void 1
    
    The legal operation of the statute is to displace and destroy the intermediate or trust estate of the trustee, and convert the interest of the cestui que use into a legal ownership of the land. This principle has been long settled and is well established; it is the principle upon which the modern system of conveyancing is founded. In England the restraints of the statutes of mortmain, and of 9 Geo. 2, render it in a great degree unavailable to corporations; but in this country, those restraints do not exist, a.nd there would seem to be no legal impediment to. the transfer of the possession by the statute of uses to a corporate body to whom the use may be appointed by the will.
    If then the legal estate was devised by the will in question, to the executors in fee, for the use, in the event that has happened, of the complainants, for the purpose of their charitable establishment, and if the operation of the statute of uses upon it,'was to transfer" the legal estate of the trustees to the cestui que trust; and if that statute does apply to this case, the complainants, notwithstanding their incapacity to take by devise, must, on the principles I have deduced from the statutes and the adjudications, take the legal 'title thus cast upon them by law, and be entitled- to hold it.: It is a well established rule, that the" statute cannot execute the Use, unless there is a lawful cestui que use in esse, capable of taking the *land, to whom the possession may be lawfully transferred, and who is to become vested with the same estate in possession as he had in the use. The terms of the statute on this point, are clear and explicit: that upon the execution of every use, the cestui que use shall have the legal estate after such quality, manner, form and condition as he had before, in or to the use, confidence or trust that was in him; and it would seem to follow, that in the present case, the complainants must become vested with a valid and effectual estate in possession in the land, for the purposes of the charity, or there could be no execution of the trust by the statute.
    In either view of the subject, therefore, whether the trust originally vested in executors by the will, remains in them as trustees, or has been transferred to the society as cestuis que trust, the title of the complainants as trustees at law, or as cestuis que trust in equity, to the estate for the use of the charity to which it is devoted by the testator, would seem to be valid.
    But suppose the devise for the use and benefit of the complainants to be void in law, as being in effect a devise of land to a corporate body, or as enuring to the benefit of a corporation, the question would then be, whether the testator’s intention may not be effectuated in a court of equity.
    It is conceded that the court of chancery has had the acknowledged jurisdiction of uses and trusts, ever since the first introduction of them from the civil law into the English system of jurisprudence; and as charitable uses are a branch of the same system, the cognizance would seem naturally to belong to the same jurisdiction ; and whatever difference of opinion may exist, as to the jurisdiction exercised by the English court of chancery, in times of high antiquity, it must be admitted, that it has long been the course of that court, to take cognizance of trusts for charitable purposes.  It is the established doctrine of the court at the present day, that (with the exception of the charities prohibited by the mortmain act of George the Second,) when the donor has the power to dispose of the estate he devotes to charity, the cgurt will aid a defective *conveyance to charitable uses ; and, on'this principle, devises- to bodies-, corporate, which, are- void at law for want of capacity to take; were antecedently to the act of Geo.- 2, held to- be, notwithstanding- the old statute, of mortmain, good in equity, if given to- charitable- uses.
    But; the jurisdiction of the English court of chancery, in cases of charitable uses, is ascribed to the- statute of 43 Eliz. ch, 4, usually termed the statute of charitable uses.; and it is said that devises to corporations, and to trustees for their benefit,, where, the: devise was for a charitable: use, owed their exemption from the operation of the ancient statutes of mortmain,, and the'exception in. the statute, of will to: the. enabling statute, of Elizabeth..
    , The. statute of Elizabeth was confessedly a. remedial law; and it, introduced a system-for the: redress of grievances by the abuses and frauds of trustees, to charitable uses, which was;at,once simple,, summary and, efiicaeious. But it was not; the purpose- or design of that statute to create the. charitable, uses- to which its provisions; were to: apply; nor does it profess to authorize-or establish, any charity that did not. exist: before, or to provide-the- first: and1 only remedy- known: to, the- laws,, for the- vindication- of the rights of donees, to- charitable uses.. On the. contrary, it,recognises the-charities it enumerates-as antecedent, and subsisting interests,, andl its. purpose is to- provide- A speedy and more efficient remedy than that then existing for the abuses t.o which those interests were exposed. That, such, was the character and.design of the law, is shown by the act. itself; it refers in-its recital to, a, long list, of charities,, to.- which lands: and goods had theretofore been dedicated by the queen- and her progenitors, and sundry-well disposed persons; and which, donations- had not been employed according t© the charitable intent of the givers- and founders,, by reason of frauds, breaches-of trust and negligence in those to. whom the employment, was entrusted;; and for redress and remedy of the. grievance, it 'authorises and directs a srnnmafv enquiry into the matter,'by commissioners and a jury, under the supervision of the court of chancery ; and the establishment and due application to the ^purposes of the dedication of all such estates, and of all estates and premises thereafter to be given, limited, appointed or assigned to or for any such charitable uses.
    Charities then were in general use before the statutes of Elizabeth ; and were regarded by parliament as meritorious, and worthy of the peculiar care and patronage of the legislature. They were exposed to abuses, and embarrassed with difficulties, by the infidelity of the agents entrusted with the estates conferred upon them by the benevolent donors who had founded or endowed them; and they stood in need of legislative aid for their further security and protection. The existing remedies, as they were then applied, must have been found to be inadequate to the protection of those widely extended charities in the full enjoyment of their rights, or the legislature would not have interposed.
    But it cannot be supposed that those rights, in themselves so important and interesting, as they obviously were, to the whole community, should have been suffered by the queen and her progenitors, to languish so long under the grievances recited in the statute, without any remedy for the redress of the wrong. It could not have been tolerated, that trustees of charities should betray their trusts, and abuse, neglect or misapply the estates committed to their charge, at pleasure and with impunity. There must have been some jurisdiction to take cognizance of the complaints of the cestuis que trust of charities, who Were aggrieved by the frauds or negligence of the trustees ; and that jurisdiction must have belonged to the court of chancery, where trusts have always been cognizable, either in the exercise of its ordinary jurisdiction, or in the administration of the prerogative of the crown, as parens gatrice. In the time of Queen Elizabeth, when the principles of equity jurisdiction were imperfectly understood, the limited ideas of redress which were entertained by the courts of equity, may have induced them to refrain from the exercise of powers which they legitimately possessed; and it may well be, that in those early times, frauds, abuses, and misapplications of trusts to charitable uses, which *would now be subject to equitable cognizance, were then supposed to be remediles s *>7 ordinary powers of courts of equity, and to require the interposition of the legislature to repress them.
    It was not until the time of Sir Heneage Finch, after-wards Ld. Nottingham, who succeeded to the seals in 1673, that, the principles and powers of the court were fully developed and matured. “ His genius,” in the language of Sir William Blackstone, the learned commentator on the
    laws of England, “ enabled him to discern and pursue the true spirit of justice,” and “ to build a system of jurisprudence and jurisdiction upon wide and, rational foundations, which have also been extended and improved by many great men who have since presided in chancery.” (3 Black. Com. 56.) In the time of Ld. Ellesmere, who presided in the court Lf chancery very shortly after the statute of Elizabeth concerning charitable uses went into operation, the great and salutary principles, that a trust fastens itself upon the land, and binds the heir or devisee upon whom the legal title may devolve, and that the court has the power to supply the failure or defect of trustees for the establishment of the trust, had been but partially called into exercise, and
    were too illy understood for any beneficial results or useful rules to be deduced from them for practical purposes ; and we find that in Collinson’s case, where the devise wasrto trustees before the statute of wills, and in Doctor Floyd’s case, where the devise was to a corporation and the devises being void in law, the lands descended to the heir clothed with the trust, the court of chancery to which the jurisdiction of trusts belonged, took no cognizance of the cases; but the heirs were suffered to misemploy the estates, though devoted to charitable uses, with impunity, until the. statute of Elizabeth provided an efficacious remedy for the abuse, by enabling the commissioners to decree the performance of the'trusts.
    The occurrence of such cases, with the failure of trusts from other causes, (some of which may have been beyond the powers of a court of equity, if called fully into exercise ®to obviate or remove,) may have given rise to the tradition mentioned by Lord Loughborough, in the case of the Attorney-General v. Bowyer, (3 Yesey, 714,) and may have led that chancellor to the opinion he seems to have formed, “ that the court, at the period to which he referred, (being a time prior to the statute of wills,) had no cognizance upon informations for the establishment of charities$ and that prior to the time of Lord Ellesmere, there was no such information in the court in which he was then sitting; but they made out the case as well as they could by law.” But the tradition upon which Lord Loughborough founds his opinion, cannot have transmitted the ancient course of the English court of chancery with fidelity ; and is not to be implicitly trusted. We have the testimony of some of the most intelligent and best informed jurists and equity judges of that country, that the court, from times of very high antiquity, and long before the statute of Elizabeth, had cognizance of informations by the attorney-general for the establishment of. charities, and that the equity powers of the court were applied, though not so beneficially and extensively as in after times, to cases of charitable uses.
    Thus in the case of Eyre v. The Countess of Shaftsbury, (2 Peer Wms. 103,) Sir Joseph Jekyll the master of the rolls, sitting as a commissioner, held, that in case of a charity, the king pro. bono publico, has an original jurisdiction to superintend the care thereof; so that abstracted from the statute of Elizabeth, relating to charities, and antecedent to it as well as since, it has been every day’s practice to file informations in chancery in the attorney-general’s name, for the establishment of charities.
    So in Lord Falkland v. Bertie, (2 Vernon, 333,) Lord Somers takes notice that several things are under the care and superintendence of the king as parens patriae, and he •mentions charities, infants and lunatics; thus classing these cases as belonging all to the same jurisdiction.
    And in the case of Christ’s College, Cambridge, (1 Wm. Bl. 90,) Henley, keeper, afterwards Lord Chancellor Northington, is decisive and strong in his opinion on the point; “ I take the uniform rule of this court, before, at and after the statute of Elizabeth, to have been, that where the uses are *charitable, and the person has in himself full power to convey, the court will aid a defective conveyance to such usesand he illustrates his meaning by the very example of a devise to a body corporate to charitable uses: thus, he observes, “ though devises to corporations were void under the statutes of Hen. 8, yet they were always considered as good in equity, if given to charitable uses.” This case is more fully reported in Eden, who was a descendant of Lord Northington, and had the benefit of his notes. There can be no doubt that the opinion attributed to him in these reports "was the expression of his deliberate judgment; and his high character as an equity jurist, gives a sanction of no ordinary import to the doctrine, that the court of chancery had a jurisdiction anterior to the statutes of Eliz. in the cases of devises to charitable uses ; and when we consider that he was opposed to the tide of liberality of courts to charities, and took the lead in that opposition, the weight of his authority is still greater.
    But it is said that these are to be regarded as the dicta of chancellors not entitled to the consideration of judicial decisions ; and it is added, that no adjudication can be produced between the statute of wills and the statute of charities, in support of the jurisdiction. The interval between the statutes of 34 Hen. 8, and the 43 Eliz. was so short, and the reports of cases in equity at that period so limited in number, that it would be rather a matter of surprise that any adjudication should be found, than that the cases are so few. But there are some adjudications during that interval of time, which appear to me to hive a bearing on the point.
    In the case of Weleden v. Elkinton, (Plowden, 523,) do cided 20 Eliz., a case was put of a devise to a church, which was "held to vest in the parson. And in Duke on Charitable Uses, several cases are found, which occurred before the statute of Eliz. where devises for charitable pur poses, which courts of law could not sustain, were supported by the court of chancery. In one case, a devise of land to be let out to young tradesmen, was decreed in the 40th year of Queen Eliz.; and still earlier, in the 24th year of the same reign, the want of an enrolment was supplied by the ordinary powers of the court in favor of a charity. And the author collects *and arranges under a distinct head of his Work, a class of cases as not falling within the statute, in which examples are given of defective devises to charities, which, it is said, do not require the aid of the statute, but may be cured by the court. To this work is added the readings of Sir Francis Moore on the statute of Eliz. printed from his own original manuscript. Sir Francis Moore was a member of the parliament by which that statute was passed, and is said to have penned it himself. His readings upon it come down to us, therefore, with peculiar claims to our attention and respect. In these readings, instances are given of gifts and bequests to charitable purposes, which are not within the statute, but which the court of chancery has jurisdiction to decree. Thus a bequest of £300 to three parishes equally, to be let out by the church-wardens of each, is instanced as a legacy not within the statute, but to which the chancellor may give remedy by his equity powers in chancery; and the case (Duke, 154,) of a gift made in the 11th year of Hen. 6, to the intent to find a chaplain until the feoffor or his heirs should procure a foundation, &c. was said to be neither within the letter nor the spirit of the statute, and yet the chancellor, by his chancery powers, might, and he did decree the land to the use. In that case, the commissioners had acted under the supposition that they had jurisdiction of it; but the decree was reversed by the chancellor, because the use limited to find a chaplain ad divina celebrando, was no use within the statute inquirable ; but the chancellor, by Ms chancery authority, might and did decree the land to the first use. These cases were decided antecedently to the statute of charitable uses, and the decisions must therefore have been founded on the general equity powers of the court.
    But the statute of Eliz. introduced a new system for the administration of charities. It was calculated and intended for a general system, and embraced all charitable devises, whether to corporations or to natural persons, and however indefinite and uncertain the designation or description of the objects or purposes of the charity might be. The enumeration of the charities it was to relieve was so comprehensive, and the relief and protection it afforded them were so ample, that when that statute went into operation, it would in a great * degree supersede the provisions and remedies that preceded it. When, therefore, the' court of chancery afterwards decreed upon principles peculiar to charities, that court would naturally refer to the statute of Elizabeth, and not to the general powers of the court, or to the civil law for its authority; because the statute, to the extent of its provisions, superseded all other laws, and formed the general system for the administration of charities.
    Whether the statute conferred any new jurisdiction on the court of chancery, or did no more than bring into activity the powers which as a court of equity it possessed, but which had therefore been inactive ; whether there were charitable uses which did not attach to the land, but derived their validity as trusts from the act; or whether the intention and effect of the act was to give a summary, simple and efficacious remedy for the Abuses of subsisting trusts, which, from the forms of proceeding and the imperfect ideas of redress then prevailing in the courts of equity, could not be applied by the court of chancery; are points upon which the counsel disagree, and which may be involved in some obscurity and doubt.
    I do not, however, deem it material to ascertain with accuracy the powers which were acknowledged to belong to the English court of chancery, or were in the habitual exercise of that court, at the time of the passage of the statute of charitable uses. It will be sufficient for the decision of this cause, to show that the charity which now engages the attention of the court, though enumerated in the statute of charitable uses, had not its origin in that statute, but existed antecedently to it, and that a devise of land to trustees, for the benefit of that charity; notwith standing that the Orphan Asylum Society, under whose auspices the charity is to be dispensed, is a corporate body, and may be incapable of taking land by devise, is valid in equity, and may be supported by the ordinary powers of the court, as the same are now understood and are in constant exercise.'
    It must be conceded that charities did exist before the statute of Elizabeth. Some of the uses enumerated in that statute, may not perhaps be strictly charities in their own nature, and it is possible that they may have been introduced by that’ * statute into the system. But the greater probability is, that they had already acquired the character of charities, and were considered as entitled to the same favor and protection as other charitable uses; but however that may be, it will not be denied that the use which the complainants seek to establish, is a charity in its own nature. It would be a reproach to the Christian character, to say that such a charity had its origin at so late a period as the reign of Queen Elizabeth, or that there ever was a time when the spirit of charity was a stranger in a Christian land. But the statute itself disclaims the intention of being the, parent of the charities it protects; its recital recognises them as of long standing, and of general prevalence in the community; the declared purpose of the legislature is to rescue them from the difficulties and embarrassments in which the abuses, misapplications and frauds of those intrusted with their dispensation, had involved them, and to raise them from the depression to which they were reduced, and establish them upon secure and solid foundations, and all the provisions of the act conduce to that benevolent purpose.
    This concession in the fact of the previous existence of charitable uses, is fully confirmed by the history of the times and by the reports of the early adjudications under the statute; and the cases cited on the argument show that such was the fact. In Doctor Floyd’s case, reported in Hobart, (Hob. 136,) by the name of Griffith Flood’s case, the devise was in 1571, 25 Eliz., eighteen years before the statute of charitable devises was passed; and in Collinson’s ease, the will was executed in the 15th year of the reign of Hen. 8, upwards of fifteen years before the statute of wills was made, yet in both these cases, limitations to charitable uses were supported against the title and opposing claim of the heir at law. In Floyd’s casé, the testator being seised in fee of land in the county of Cardigan, devised the same to his wife for life, and after her death to, his daughter for her life, and after those lives ended, to the principal fellows and scholars of Jesus College in Oxford, and their successors, to find a scholar of his blood, from time to time, and died. After the death •of the devisees for life, Bridget Floyd, the testator’s heir, (being the king’s ward,) entered, and upon a case made, Hobart and the chief baron to whom it was referred by the court of wards, agreed that the devise was void in law, because the statute of wills did not allow devises of land
    to corporations; but they held it clearly within the relief of the statute of charitable uses, under the words “ limited and appointed,” and so it was decreed that the college should enjoy the estate against the heir. So in Collinson’s case, the testator being seised in fee of a tenement not devisable by custom, nor estated to any in use, devised the same-to his wife for life, and after her decease, to trustees, to see the same kept in repair, and to bestow the residue of the profits upon the reparation of certain highways in the will mentioned. The testator and his wife being both deceased, and the tenement descending to one Oliver Rolf, an infant, the commissioners under the statute of charitable uses, on the 13th of July, in the 13 James 1, made a decree for the employment of the land upon the repair of the highways; from which decree there was an appeal, and the question was, whether, as this will was made before the statute of 32 Henry 8, and the. land was not in use, it should be held to be a limitation, appointment or assignment, within the 43 Elizabeth, to warrant the decree. The question was referred by the court to the two chief justices, who1'certified that the intended devise, though it was void at law, was a limitation or appointmer t to a charitable use, and relievable under the statute, and the chancellor therefore confirmed the commissioners’ decree.
    
      Now, upon what principle were these two .cases decided? Assuredly, upon the principle that the limitations of these estates, though they were void in law for the want of capacity in the corporation, after the statute of wills, and of the trustees before it, to take lands by devise, yet being limitations to charitable uses, by the owners of the estates having power to dispose of them, they were good subsisting limitations, and prevented the déscent of the estates to the heirs at law ; for unless the limitation to the charitable use did subsist, and was an operative disposition of the estate, the beneficial interest, as well as the legal title, must have descended to the heir at law, and have vested in him; and if the interest had once vested, it could not have been afterwards divested, or the use revived for the benefit of the charity, either by the operation of the statute, or by the prerogative of the crown, as parens patries. Jt follows that the charitable use attached itself to the land; and that the legal title descended to the heir, clothed with the trust; and it was consequently, a misemployment in him to retain the profits to his own use ; qnd the commissioners under the statute of charitable uses rightfully reformed, the abuse. On the same principle, the charitable use for the free school in Porter’s case, was held to subsist and be obligatory upon the devisee; and though a release to the king was obtained from the heir, yet the plaintiff succeeded upon the validity of the trust for ' the charity, and not upon the right of the heir.
    The same principle must have pervaded and governed every case of a charitable use, anterior to the statute of Elizabeth, where the use was held to be valid in equity, when the devise or deed was void at law, from the failure or incapacity of the donee to take, or the want of sufficient certainty in the description of the persons or designation of the objects or purposes of the charity; and indeed it is manifest from other provisions of the statute itself, that the charitable uses which the commissioners were authorised to establish, were understood to be subsisting uses at the time: for the titles of purchasers of the estates affected by them, who had purchased or obtained the same for valuable consideration, and without notice of the trust or charge, were not to be impeached by the decrees or orders of the commissioners ; but the commissioners were nevertheless to direct recompense to be made by those who, being constituted trustees, or having notice of the charitable use, had violated the trust, or defrauded the use, by the sale or other disposition of the estate; provisions wholly inconsistent with the supposition of a right in the heir at law, but weli adapted at the same time, to the protection of bona fide purchasers, and to the relief of cestuis que trust, whose interests were betrayed by faithless trustees, or usurped by disappointed heirs.
    *But the hypothesis that the statute of charitable uses was intended or could be made to retrospect, so as to resuscitate or revive an interest in the land which had become extinct, and divest the heir of an estate which had vested in him by descent, is in direct hostility with the clearest and best established principles of law. It cannot be that an estate which had become absolutely and beneficially vested in the heir, could be divested and transferred by the operation of the statute of Elizabeth, or any of the provisions it contains, to the trustees of a charity. The intention of the legislature was to restore to their proper destination the estates which had been devoted to charity, but were improperly diverted to other uses. It did not intend to unsettle private rights, or to disturb vested interests; and acting up to this principle, the courts, in the earliest exposition of the statute, held, that if a person who has not capacity to dispose of an estate as a feme covert, or an infant, for example, devises or grants to a charitable use, the defect is not supplied by the statute; but devises to corpora tions for charitable uses, subsequent to the statute of wills, and both before and after the statute of Elizabeth, though void in law, for want of capacity in the corporation to take, were held good as uses, which bound the lands in the hands of the heirs to whom it descended, and which therefore might be established and enforced without prejudice to any beneficial interests in the depository of the legal title. The case of Jesus College, already cited, is an example of such a devise, and in Hallum’s case, (Duke on Ch. Uses. 80, 375,) where there was a devise of land to the company of Leather sellers in London, to maintain a charitable use, the exception was taken that the company was a corporation, and that the statute of wills did except devises of land to a corporation; but the commissioners’ decree to settle the land upon the company was confirmed by the court, and it is said that there were many precedents for it. These adjudications, in connection with the language and provisions of the statute itself, appear to me to show, that devises of real estate to corporations for charitable uses, anterior to the statute of 43 Eliz. ch. 4, though void in law, by reason of the disability of the corporation to take land by devise, were nevertheless *valid as uses and subsisting charges upon the estate against the heir or devisee upon whom the legal estate might devolve ; and if a direct devise to a corporate body itself, when it is for a charitable use, is effectual in equity to charge the land with the trust, the validity of a devise to trustees for the use of a corporation for charitable purposes, cannot surely be invalid, and the devise therefore of the testator in the case now before me, to the executors of his will, in trust for The Orphan Asylum Society, for the charitable purposes of the institution, even if invalid or void at law by reason of the disability of the society as a corporate body, to take lands by devise under our statute of wills, must be held good in equity; and may be supported as a charitable use attached to the land, and binding upon those who are vested with the fee. The question then will be, whether this court has jurisdiction to establish and enforce the use ; and in determining that point, the general jurisdiction of the court, and the powers which the chancellor is rightfully authorised to exercise, are to be consulted, for this state has no statutory provisions in force corresponding to those of the English statute of charitable uses; and the relief I give must be upon the general jurisdiction of the court.
    It is admitted that there did exist a general jurisdiction over charities in England anterior to the statute of Elizabeth, which was exercised by the chancellor; but that jurisdiction, it is said, was a branch of the prerogative of the crown, and did not belong’to the ordinary powers of the court of chancery. And elementary writers of acknowledged authority are cited, to show.that the superintendence of charities, in common with the charge of infants and lunatics, belongs to the king as parens patries; and that the jurisdiction of chancery iii those cases does not appertain to it as a court of equity, but as administering the prerogative and duties of the crown. If this were so, the court of chancery in this state might perhaps claim the jurisdiction for the very reason that in England it did belong to the crowm us parens patries. Charities are classed with infants, as belonging to the same’jurisdiction; and as the entire cognizance of the cases of infants, though nominally in the crown, has long been delegated *to the chancellor by whom it is exercised, and the chancellor, as administering the same prerogative of the crown, has also the general superintendence of all the charitable uses in the kingdom, it would seem to follow that as the general jurisdiction of the cases of infants in this state is vested exclusively in this court, charities, if they belong to the same jurisdiction, should also be of equitable cognizance; and if so, all the remedy which the English court of chancery, by its ordinary powers, or as administering the prerogative and duties of the crown, could apply, may be administered by this court; and the only question would be, whether the mode of administering the relief must be by information by the attorney-general, or may be by the original bill" of a party aggrieved-. Anciently the course in most cases probably was to proceed by information in the name of the attorney-general ; but that rule has been modified, and in many cases the party aggrieved is now permitted to sue in his own name, and the information has been superseded by the original bill. In the case of Morrill v. Lawson, (4 Yiner, 500,) decided in 5 Geo. First, Lord Chancellor Parker stated the rule to be, that when a 1 ill is brought to establish a charity given by a will to persons uncertain and incapable of suing or being sued, the suit must be in the name of the attorney-general ex-necessitate rei, because there are no certain persons entitled to it who can sue in their own names. And the inference is, that where the cestuis que trust are ascertained and certain, those cestuis que trust may sustain an original bill in their own names, to establish and enforce the charity; and that the agency of the attorney-general, or the use of his name as plaintiff in a bill or information, is never indispensably requisite, unless in behalf of a charity in cases where no other person is capable of suing.
    But whatever may be the use or necessity of an information by a party in the name of the attorney-general, where the objects of the bounty are so circumstanced as to make it impracticable or inconvenient to sue in their own names, I am not prepared to say that it would in any case be incompetent to cestuis que trust of a charity to sustain a bill, or that the form of an information by the attorney-general must be used, merely because the jurisdiction of the court over the ^charity to be established and enforced may, in its origin, have belonged to the prerogative of the king as parens patries. The theory of that branch of the English system of jurisprudence may be, that the administration of charitable uses belongs to that jurisdiction; but the power has, from a very remote period, been constantly exercised by the chancellor in the court of chancery, and practically has become, I apprehend, as much a branch of his jurisdiction as the care and charge of infants ; and perhaps as much so as the 'administration of other trusts to which the equity powers of the court are applied. The uniform course of the court of chancery in England, in its administration of charities, has been to proceed by bill in all cases of trusts for charitable purposes in common with other trusts, whenever the parties beneficially interested in the charity are competent to sue, and the ordinary powers of the court are adequate to the relief they seek. On that point, therefore, the only material question will be whether the complainants are competent to sue for the establishment of this charity, and whether this court has the power to establish and enforce it 1
    
    The capacity of the complainants to sue is not denied; for they are an incorporated association; nor can the equi table title to the estate they claim be denied* if the devise under which they claim it shall be established; for though the estate, if vested in them, is to be held by them as trustees for the charitable purposes of the institution, and not in their own right for general corporate uses, yet the trust being for the purposes expressly authorized by the act of incorporation, no question can, on that ground, be made of its validity. If then the use to which this testator has devoted his estate be valid as a charitable use, and the estate is chargeable with it as a subsisting.trust, and if the complainants are entitled. either as trustees or cestuis que trust to the benefit of the use, why is it that' this court has not the power to establish the trust, and to decree the estate to be settled and conveyed to them to the uses of the will 1 Why may not equity uphold the trust vested by the will in the executors, and decree it to be executed for the benefit of the charity 1
    
    *It is the settled decree of the court, in the construction of wills and the administration of trusts, that a trust shall never be permitted to fail, through the failure or disability of the trustee to execute the trust, but shall be supported upon the intention of the testator ; that the trust is attached and fastened to the land, and that the' land remains chargeable with it in the hands of the heir or devisee; and the court is in the habitual exercise of establishing and enforcing such trusts, whenever a competent party sues for its aid, and shows a case entitling him to relief. (4 Ves. 708. 5 id.'495. 6 id. 656.)
    This principle was always held to be applicable to cases of charitable uses, under the statute of Elizabeth, and it has long been established as applicable to private trusts as well as charities. It certainly partakes largely of the true spirit of equity; and may be justly said to rank with the fairest features of the system.
    In the cases in the English court of chancery, where, that principle has been recognised, though many of them arose upon charitable uses, the principle is laid down as a general rule and not in reference to the statute of Eliz., or as applicable to charitable uses solely. The reasoning in sup port of it is general, being founded mainly upon the intention of the testator, and applicable to other cases in common with charities.
    In the case of Brown i). Higgs, (4 Ves. 708, 5 id. 495,) which was not the case of a charity, the point was treated as settled. In .that case, an estate was devised by the testator to his nephew John Brown, in trust to receive the rents and to employ and appropriate the residue thereof, after retaining and paying thereout, the sums or portions authorized to be retained and paid thereout, to such children of his nephew Samuel Brown, as the trustees should think most deserving, and that would make the best use of it, or to -the children of his nephew William, if there should be any. The trustees died in the life time of the testator; the bill was filed by the children of the nephew, Samuel Brown, to establish the will, and for an account, &c., against the residuary legatees, and the next of kin; the question was, whether the *discretionary power of selection, vested in the trustee, could devolve on the court; and if not, whether this devise could be construed as a trust for the children of the nephew. On the argument, the complainants insisted that the devise was a trust, and that it was an established rule in equity, that a trust shall not fail by the death or disability of the trustee. On the other side, the devise was denied to be a trust, and a question was raised by one of the counsel, how far the rule contended for, relative to trusts, admitting it to exist, was of general application, or confined to charitable bequests ; but the master of the rolls assuming the rule to exist, and to be applicable to all cases? of trusts, and acting upon it, held the devise in that particular case to be a trust, and declared the estate to belong to all the children of the nephew equally ; holding that the power of selection did not devolve upon the court.
    In the case of Sonley v. The Clock-Makers’ Company, (1 Br. Ch. Cas. 81,) freehold estates were devised by the testator to his wife, for life, the remainder to his brother Charles, in tail male, remainder to the Clock-Makers’ Company, in trust, that they should, as soon as conveniently might be after the decease of his wife and brother Charles, without issue male, or after the death of such issue under the age of 21 years, sell the premises, and that the money to arise from such sale and the rents and profits until the sale, should he divided among -the -testator’s nephews and nieces, and their child or children.' The testator’s wife and brother "both died in his life time ; and the question was whether, the devise -to the corporation being void, the heir at law took beneficially, or subject to the trust; and Mr. Baron Eyre ruled, .that although ■the devise-to the corporation was void at'law, yet the trust was sufficiently created to fasten itself upon any estate the law might raise; and .he stated that -to be the ground upon which courts of equity had decreed, in cases where no trustee was named. The.decree Was, that the heir at law was a trustee to the uses of the will.
    Thus it is.seen that a devise of land to a corporation, for the .benefit of individuals, and not for charitable uses, was held to create a trust, which the heir at .law, tp whom the *land descended, was; decreed to perform. The corporation was disabled by the exception in the statute of wills, from taking the legal estate; and the trust -being .not for a charity, but for the Use of private cestuis.que .trust; the company was, on that ground, also incapable,of acting as trustees, and the estate from necessity descended to the heir, but nevertheless vested in him, not beneficially for his own use, but clothed with a trust in equity, for the declared objects of the testator’s bounty, and which trust this court, in the exercise of its ordinary powers, was competent to enforce.
    The principles fairly to be deduced from these cases, appear to me to be, that equity will regard the substance of:the trust ; and if the estate devised be described with sufficient certainty, and the objects of-the testator’s bounty designated or defined, the death, disability, or refusal to act, or other.failure of the trustees, will not'be suffered to disappoint the' intention of the testator; but the trustees themselves, if the estate is vested.in them, or the heir,, or executor, where the title devolves upon him, shall be charged with trusts, and the performance of them enforced by the court, for the benefit of those to whom the benefi- ' , . . . , , • cial interest is given by the will. If then the court has the jurisdiction to establish and enforce a trust on equitable principles against the" heir or devisee, in favor of the cestui que trust, which by the strict rules of the common law, would otherwise fail, these complainants must surely be entitled to the benefit and the application of the principle, in sustaining the trust in their favor for the charitable purposes of the institution they represent.
    But the case of Jackson v. Hammond, decided by the supreme court of this state, (2 Caines’ Ca. in Error, 337,) was relied on as a controlling authority against the validity of the complainant’s title under the devise. In that case, Israel Smith by will, dated in 1764, devised an estate in fee, to the trustees of Brookhaven, and their successors, in trust, to pay the rents and profits, after the determination of the interest of his wife therein for her dower and lawful maintenance, into the hands of the regular minister, and other ruling officers for the time being, of a baptist church. The testator died *in 1780, and his widow about ten years after. The trustees of the town of Brookhaven were, at the time of making the will, and at the death of the testator, a corporation capable to take and hold lands; -but the baptist church or its officers were not a corporate body, at either of these times, nor until after the 6th of April, 1784; and were incorporated under the provisions of the act of that date. An action of ejectment was brought by the heir at law of the testator, to recover the estate ; and it was held by the court that the devise was void, and that the heir was ■ entitled to recover. This then was the case of a devise of land to a body corporate, in trust for the officers for the time being, of an unincorporated religious society, and the devise was clearly void in law. In an action at law therefore, where the legal title must prevail, the heir would of course recover, unless his claim was successfully repelled by some legal defence. The defence in that case was, that the act of 6th April, 1784, concerning religious congregations, under which the baptist church had incorporated themselves, entitled them to hold the lands devised to them by the will. The court decided against the defence ; but the decision did not involve the principles of this case; for it is admitted, that the devise of the legal estate in this case, if it had been to the corporation instead of being to the executors, would have been void in law; and the question would then have arisen, whether the trust would not be valid in equity; and if the baptist church in the case of Jackson v. Hammond, had filed their bill in a court of equity against the heir, to establish the trust and enforce the performance of it, the case Would have borne some resemblance to this. But the decision of the court in that case, and the opinion of the judge who pronounced it, must be taken in reference to the question then before the court, and as applicable to the question of title in a court of law; and are not to be regarded as settling the equitable principles which are to be applied to trusts, in a court of equity.
    The case of Baptist’s Association v. Hart’s Executors, (reported in 4 Wheaton, 1,) which was a decision in equity, is also cited as adverse to the complainants’ claim ; but the questions in this case did not necessarily arise in that case, for *the point there was, whether a charitable bequest where no legal interest was vested, and no person designated, to take1 beneficially, could be supported; and it was held that such a bequest was void ; and the court had no jurisdiction to sustain it as a charity. In the course of the argument, which took a wide range, the counsel discussed the question of jurisdiction at large, and the chief justice expressed an opinion upon it. But my views of the principles advanced in that case, in all their material bearings upon this, have already been given; it cannot be necessary to repeat them here, and I shall forbear further comment on the case.
    But the decision of Chancellor Kent, in the case of Coggleshall v. Felton, (7 John. Ch. 202,) has a more direct application to the question before me That learned jurist held in that case that a pecuniary legacy to the town of New Rochelle, for the purpose of erecting a town house for the transacting town business, is valid as a charitable bequest. It was conceeded that as this town was not a corporation, a legacy bequeathed to it for private purposes, would have been inoperative and void, and the legacy was supported on the ground that the object of it was a general public use, as convenient for the poor as the rich; and the chancellor referred to the cases of the Attorney-General v. Clarke, and Jones v. Williams, in Ambler’s Reports, as showing that bequests, with descriptions and purposes as general as that, have been held good as charities.
    The principle of that case rests upon the jurisdiction of cnancery over charities ; and shows that in the exercise of that jurisdiction, trusts will be supported and enforced, which, under other circumstances, would be inoperative and void. The same principle applies to the trusts of real estate legally vested in a competent devisee; and though no case calling for a decision on the point may as yet have occurred in this country, the authority of that case may perhaps be considered as establishing the rule in this court.
    How far the jurisdiction of the court over charitable uses does extend ; whether it has the power to carry into effect a mere general charitable intent or purpose, where no particular person or specific object is designated to take the bounty; *or whether the purposes intended to be promoted by the charity may be too vague or indefinite, or the persons to be benefitted too uncertain, or too imperfectly described, to be brought before the court in the ordinary forms, for adjudication, and whether an information in the name of the attorney-general would in such cases become necessary, and would be available, or whether the charity must entirely fail, are questions which I am not called upon to decide. This charity is not exposed to those objections ; for in this case the legal estate is vested by the devise in the executors as trustees for the corporation, who are themselves trustees or agents for the application of the charity to the objects of the testator’s bounty. Now, if the trust in the executors is valid, and is not affected by the statute of uses, these complainants are clearly entitled to have it established and enforced; and if by the legal effect of the will, or the operation of the statute of uses, the legal estate has become void in law, yet if the trust for the orphans, who are the objects of the testator’s bounty, is a charge in equity upon the land, and if that land descends or results to the heir, or vests in the executors, why do they not take it, clothed with the trust 1 How does it differ in principle from any other case of failure of trustees 1 and why may not the' court interpose and preserve the estate for the charity on which the testator has bestowed it ?
    If the corporation cannot take the estate, it must either remain in the executors or result to the heir at law. But, can either the trustee or the heir be permitted to retain it to his own use 1 Must the benevolent intention of the testator be frustrated, merely because the agents he has chosen to dispense his bounty are incapable of acting in the trust 1 Such a lamentable defect of justice would be a reproach to our system of jurisprudence ; and if the power of this court can reach the case, some remedy ihust be provided for so flagrant a violation of an acknowledged right. It is the cardinal rule of this court that the intention of the testator plainly expressed, and not repugnant to the principles of law, shall, if practicable, be carried into effect. Now, the intention of this testator was to bestow his bounty upon the charity which the Orphan Asylum Society has for the objects of *its operations. It was the charity, and not the organ of its administration, which the benevolent donor meant to endow. His liberal donation was destined by him to the humane, charitable and laudable purposes of protecting, relieving and instructing the orphan children whom the Asylum might shelter under its parental wing. He has expressed his intentions with such precision, as to leave no question as to the extent or the object of his bounty. The purposes of his benevolence are acknowledged to be laudable ; and if they are to be disappointed, it must be for the want of a competent trustee to perform the office of almoner. If that objection prevails, this court, contrary to its general policy will, in this case, permit a trust to fail for want of a trustee to execute it; and is this a case in which the court is to apply its narrowest rules of equity, or ought not the powers of chancery jurisdiction to be called into exercise to the full extent, if necessary, of their legitimate limits, for the support and protection of such an interesting charity ? If, then, the estate clearly intended for the purpose of a specific charity, from the failure, or through the incapacity of the party to whom the testator has entrusted it, devolves upon the heir, or vests in the executor ot trustee, it will effectuate the intention of the testator, and do no wrong to him on whom the estate has thus casually fallen, to decree’ him to take it charged with the trust, and to hold it for the benefit of the charity to which it is dedicated by the testator.
    But if the devise in this will is to be regarded by this court as a direct devise to the complainants, or if the trust is to be considered as executed, and the premises vested in them as immediate devisees under the will, the question would still remain, whether, in either case, the legal estate has failed by reason of the disability of the eorporation to take by devise ? and the answer to this question will depend mainly upon the act for incorporating the Orphan Asylum Society.
    By that act, (5 vol. W. 236, 30th session, cap. 179,) the society is made capable in law of purchasing, holding and conveying any estate, real or personal, to the use of the corporation, not to exceed $100,000, nor to be applied to any other purposes than those for which the incorporation is *formed : and the question is, what is intended by the term “ purchase ?”
    This term, in its general signification, and which is the legal sense of it, includes all modes of acquiring property, except by descent, and of course it embraces a devise. Then is not this corporation, which is made capable in law of purchasing, necessarily made capable to take by devise? If so, it so far dispenses with the exception in the statute of wills, and there would seem to be no doubt of the validity of the devise. But it is said that the word “ purchase” has another meaning, and is understood in its popular sense to be the acquisition of property by one person from another for a valuable consideration ; and it is contended that the term is to be taken in that limited sense as being the common acceptation of it. One answer to this may be, that the legislature has not indicated any intention to confine the signification of the word to such narrow . _ . . . 1 _ . _ _ limits; and being used without explanation, the rule is, that it is to be understood in the sense the law attaches to it. Besides, what reason is there for limiting it to purchases for value ? The intention was to give a general power to hold lands, and the legislature has fixed the limit of amount, and has put no other restriction on them. Why then is the capacity to purchase to be restricted by construction to purchases for value ?
    It was suggested that the provisions of the act were not intended as a grant of power, but as a restraint and limitation of the general right which the corporation would otherwise acquire by the act of incorporation, as incident to the corporate capacity. But I see no ground for such an intendment. On the contrary, the act confers a general and unqualified capacity to purchase in express and affirmative terms; and then subjoins the limitation of the power in a proviso restraining the amount of the estate in value which the corporation is to hold, and the purposes to which it is to be applied. Now can such a legislative grant of capacity to purchase be construed as a restraint of the power which would otherwise be incident to the corporation ? Was it intended to limit the capacity of purchasing to purchases for value and *to prohibit the corporation from accepting donations of either real or personal estate ? Such would seem to be the consequence of the limited construction of the act; for if the corporation is restrained in the acquisition of real estate to purchases for value, the same restriction equally applies to personal property ; the clause of the act conferring the capacity to purchase expressly applying to, both real and personal estate. But it could not have been the intention of the legislature to restrict the corporation in the acquisition of personal property to purchases for valuable consideration, nor to prohibit them from accepting donations of money or chattels. The defendants themselves disclaim a construction so palpably absurd, and have admitted the right of the complainants to the pecuniary legacies bequeathed to them by the will. And is it not fair to conclude that the legisla- / . „ . , . ° ture, m thus including real and personal m the same pro- ' vision and license to purchase, intended to use the word “purchase” in its more comprehensive sense, and to enable the corporation to acquire either real or personal estate by any mode or purchase 1
    But it is said that devises of land to corporations are prohibited by the statute of wills, and that the special act of incorporation under which the fcomplainants derived their powers, could not intend to give them a capacity to take real estate against the provisions of a general statute; but that the enabling clause of the act of incorporation must be held to mean to enable them to acquire it by any other means than devise. If my construction of the' exception in the statute of wills is correct, that interposes no obstacle of the capacity of the corporation to take by devise under the powers conferred upon them by their charter ; for the effect of the exception in the statute of wills being merely to leave corporate bodies under the disability to take by devise, that disability was removed from this corporation by the capacity imparted to it by the act of incorporation. Nor do I perceive any greater" difficulty, from the construction of the statute of wills contented for by the defendants ; for, assuming that the statute of wills did prohibit devises to bodies corporate, it was surely competent to the, legislature to relax or repeal that prohibition; and *when a particular corporation is authorised by the legislature to take by devise, the prohibition of the general act must necessarily be repealed or dispensed with by the legislature, as regards the corporation upon which such capacity is conferred.
    If, therefore, the complainants, by being made capable of purchasing lands, are made capable of taking by devise, the restraint or prohibition of the statute of wills, if that statute does prohibit or restrain the devise of real estate to corporate bodies, was removed from the complainants by the charter of incorporation. The question, then, turns upon" the act of incorporation, and not upon the general statute of wills; and if, by the terms or just construction of the act of incorporation, the complainants have the capacity to take by devise, the exception in the statute of wills cannot disable them from taking. But it is said that the prohibition or .disability arising from the exception in the statute of wills attaches to the devisor, and that he has no capacity to devise to a corporate body. The exception acts upon, both the devisor and devisee, and equally disables the one from devising and the other from taking under the devise. There is no solidity, therefore, in the objection that the incapacity to devise attaches to the devisor; for the cause of the incapacity of devisors, under the statute of wills, to devise to corporate bodies, is the incapacity of the corporation to take by devise; and the legislature, by conferring a capacity on the corporation to take, by necessary implication gives to devisors the power to devise to the corporation thus made capable of taking by devise. And if, therefore, the legal operation of the exception in the statute of wills, was to disable the testator from devising to a corporate body, the operation of the act of incorporation was to enable him to devise to these complainants, if that act gave them a capacity to take by devise. The question consequently must be upon the construction of the act of incorporation, whether the complainants, by being made capable of purchasing lands, are made capable of *taking by devise 1 And the solution of that question must depend upon the construction to be given to the word “purchase.”
    In the case of Radcliffe v. Roper, (10 Mod. 89,) first decided in the court of chancery, and afterwards in the house of lords, and which is reported in 10 Modern Reports, in Equity Cases Abridged, and in Brown’s Parliamentary Cases, the construction of the word “ purchase ” underwent much discussion, and was finally settled in favor of the legal and comprehensive sense of the term.
    The case was, that a papist devised his lands to four trustees, two papists and two protestants, to be sold for payment of debts and legacies ; and by a codicil, amongst other legacies, he devised the remainder, whether in lands or personal estate, to two papists and their heirs; and the question was, whether this was a good devise, so as to disinherit the heir at law, who was a protestant; or whether it was void by the statute of 11 & 12 W. 3, c. 4, for preventing the growth of popery ?
    By the act of 11 & 12 Will. 3, it was provided, first, that from and after the 29th of September, 1700, persons educated in the popish religion, or professing the same, who should not, within six months after attaining the age of eighteen years, conform to the requisitions of the statute, should personally be disabled, and made incapable to inherit or take by descent, devise or limitation, in possession, reversion of remainder, any lands, tenements or hereditaments ; and that during his life, and until he should conform, his next of kin, being a protestant, should have and enjoy the estate without being accountable for the profits, but punishable in treble damages for wilful waste. And Secondly, that frem and after the 2d of April, 1700, every papist or person making profession of the popish religion, should be disabled, and was thereby made incapable to purchase, either in his own name or in the'name of any other person, to his use or in trust for him, any lands, profits out of lands, tenements, rents, terms or hereditaments ; and it was declared that all estates, terms, *and any other interests or profits whatsoever out of lands, to be made, suffered or done, to or for the use of any such person, or upon any trust or confidence mediately or immediately to or for his benefit or relief, should be utterly void and of none effect, to all intents, purposes and constructions whatsoever.
    For the protestant heir, it was contended that the devise of the residuary interest described in the will was a devise of land, and that the word “purchase” in its legal sense includes devise; and that the devise, therefore, of this interest for the benefit of the two papists, was void. But on the other side, it was insisted that the devise in question did not come within the prohibitions of the statute ; as well because it was the bequest of the residue of the proceeds of the sale of the land, and not of the land itself, as because the statute did not, by disabling the papist to purchase, necessarily disable him from taking by devise; and it was insisted that the word “ purchase” was not to be taken in its technical legal sense as opposed to descent, but was te be understood in the vulgar acceptation of the term, as meaning an acquisition oí an estate by the party’s own act ■ and to illustrate and enforce the argument, reference was had by the counsel to the prior clause of the section respecting infants, where the statute makes use of the words “ devise, limitation and descentand it was urged that the legislature, if they understood the word “ purchase” in its legal acceptance, might have used that word to supply the place of both “ limitation” and “ devise,” but that, by using both the words “ devise” and “ limitation” in the first provision, and omitting the word “ devise” and substituting the word “ purchase” for limitation in the second provision, an intention was clearly manifested to use the word in its limited sense; and it was observed that the words immediately following the term “ purchase,” viz. “ in his name or to his use,” seemed to restrain and confine the word “ purchase” to some act to be done by the party to whom the estate moves. The court expressed no opinion as to, the meaning of the term “ purchase,” but decided the cause upon the other point *of the case; and the chancellor, with the consent of all the judges, except Parker, chief justice, resolved that the devise of the surplus money after debts and legacies paid to the papists, was a good devise, notwithstanding the statute disabling papists from purchasing lands, the surplus money being a personal interest, and therefore not made void by either the words or intention of the act. But from this decree there was an appeal to the house of lords, and three questions were made upon the argument of the appeal, the third of which was whether a papist was disabled by the act of parliament from taking land by devise ? It was insisted on the part of the appellant that he was; and it was said that there was no one word in the law of a more determined fixed signification than “ purchase that it stood by law opposed to descent, and whoever does not come to land by descent, is, in the language of the law, said to take by purchase; and that acts of parliament are to be understood in a legal sense, unless the subject matter of the act apparently hinders it. On the other side, for the respondents, it was contended that the word “ purchase,” in the vulgar and common acceptation of it, does not import “ devise,” but is to be defined to be the possession of land that a man comes to by his own act; and a train of reasoning is given to show that the word “purchase” could not be so construed as to include devise, without making the act contradict itself. The decree was reversed by a great majority; and the decision necessarily included the determination of the point, that the disability to purchase disables from taking by devise. (10 Mod. 230.)
    On the argument in the court of chancery, the third clause of the act, declaring that all estates to be made, suffered or done for the use or benefit of such persons as were disabled by the act to purchase, should be void, was relied upon by the counsel for the protestant heir in support of the construction of the word “purchase” contended for by them, and as showing that devises were intended to be embraced in the term; but the answer was that the clause thus relied on could not make a devisee a purchaser, because it is not an independent clause, but explanatory *of that which pre-' cedes it, the word “ such,’’plainly coupling the two together; the former incapacitating a papist to purchase, and the latter providing that if he did so, the purchase should be void. But the main point; both in the court of chancery and the house of lords, upon that part of the case, was the general question whether the word “ purchase” included “ devise; and in the house of lords the stress was upon the legal construction of the word “ purchase,” and it was forcibly urged that legislators are presumed to speak the language of the law, and to know what the legal import of words is, and therefore acts of parliament are to be understood in a legal sense, unless the subject matter of the act apparently hinders it; and these I apprehend were the grounds of the decision of the court. This case was decided in the thirteenth year of the reign of Queen Anne.
    Not long afterwards, in the sixth year of the reign of George the First, the case of Mr. RatclifFe occurred, (1 Str. 267,) in which the point was again agitated, and judicial opinions expressed upon it. The case was that James earl of Dtrwentwater, who w.as a papist, being seised of the premises in question, in fee tail, under a settlement which had been made of the same by Francis Ratcliffe, his grandfather, for the purpose of docking the entail, conveyed the estate to two persons who were protestants, in order to make them tenants of the freehold, till a common recovery was suffered ; and the same being situated in the county palatine of Durham, two several recoveries were had and suffered of the estate, both of which were declared to be to the use of the earl in fee ; and earl James being thus seised of the fee on his marriage, settled the same upon himself for life,, then to his lady for life, with remainder to the first and every other son of the marriage in tail made, with several remainders over, and proper limitations to trustees to preserve contingent remainders. The marriage took effect, and Mr. Ratcliffe was the eldest son; earl James was at-tainted of high treason and executed, and all estates tail of persons attainted of treason, being Vested by statute in the crown in fee, the commissioners seized this estate as forfeited by the attainder of the earl James, upon which Mr. Ratcliffe put in his claim, insisting that his father was only tenant for life, and that he, upon the death of his father, became entitled, and then had the right to the remainder in tail. The claim was disallowed; the commissioners being of opinion that earl James was disabled by 11 & 12 W. 3, to suffer the recovery, and consequently remained tenant in tail under the settlement of Sir Francis, his grandfather, and so the crown was entitled to the fee. The claimant appealed to the delegates, consisting of five of the judges, and the cause was argued several times at the bar. The great question was, whether a papist tenant in tail, could, since the statute of 11 & 12 W. 3, ch. 4, suffer a recovery to the use of himself in fee. Mr. Justice Fortescue was of opinion that the recovery was a purchase within the meaning of the act, and that the claim was properly disallowed, and the decree ought to be affirmed. The other four judges held that the recovery not being the acquisition of any new estate or interest, but merely a modification of the estate he had before, operating as a bar or extinguishment of a limitation, and changing the course of descent, but not conferring any new interest upon the owner of the inheritance, was not a purchase within the meaning of the act. And the claim was held valid, and the decree which disallowed it was reversed. But all the judges who mentioned the point, concurred in the opinion that a devise is a purchase within the act. Three of the judges refer to the case of Roper v. Radcliffe, as establishing the principle that a devise is a purchase; and all the judges express their decided approbation of that principle, except baron Montague, whose opinion turning upon another point of the case, he declined entering upon this. The arguments urged by the judges who spoke to the point, illustrate and confirm the doctrine of the case of Roper v. Radcliffe. One of them observes that the word purchase has a known signification, in which it has constantly been used *by professional men, without any variation ; and the court cannot depart from it without an express direction in the body of the act. If the legislature had intended to confine the disability to purchasers for valuable consideration they would have used some expression or have introduced some provision to indicate that intention; but the word, as employed in the statute, being unrestrained, and without qualification, and neither the object of the legislature nor the general intent, as collected from, the whole statute taken together, requiring it to be understood in a more limited sense, the legal meaning of the word must prevail.
    If it be objected that this case of Ratcliffe, in determining that the conveyance by common recovery was not a purchase within the meaning of the act, has overruled or qualified the principle of the prior decision, the answer is, that the ground of the case of Ratcliffe was, that the destruction of the estate tail by the recovery and the substitution of an estate in fee in the same owner, and for the same lands, was not a purchase; that it was not the acquisition of a new estate, but a change only in the tenure of the old estate. Mr. Justice Tracy, in his argument, defines a purchase to be an acquisition rei alterius, either by free" gift of the former owner, or for a valuable consideration; and he relied on 1 Ins. 18, b. as an authority in support of his definition.
    Why does not the principle of these decisions apply to this case of the Orphan Asylum Society ? If the terca purchase, unqualified by other words, when used in a disabling statute, comprehends an acquisition by devise, why must not its meaning be the same in an enabling act ? If a party who is disabled by statute to purchase, cannot take by will, because a devise is a purchase, why is it that a party who is made capable in law of purchasing, shall not have a capacity to take by devise, when a devise is held to-be purchase 1 My understanding is unable to discern a solid distinction ; and I refer to the cases already cited to show, that the rule applied to devises of land to papists, prevails in other cases of disability *by statute-to take by purchase,■ and that the same rule is equally applied to enabling statutes. The chief justice in thé court of K. B. in his second argument in the case of Roper v. Radcliffe, refers to the statute of 15 Rich, 2, c. 5, which in extending the statute de religiosis to certain civil corporations., uses these terms : “ From thenceforth they shall not purchase to them and their commonalties,” &c., and he says that it was never doubted but that it would extend to what should be given to them as well as to what they should buy; and commenting upon the word “■ purchase,” and repelling the suggestion of a difference between the words “ to purchase” and “ to take by purchase,” he says it is clear they are all one, and the verb “ to purchase” is evidently used in the same sense as !‘to take by purchase,” and that in 1 Ins, 2, a. b. it is used so near a dozen times; and he adds, that the licenses to abbeys after the statute of Merton,'are generally only leave to purchase, (so are charters to corporations,) but that no one ever doubted but that thereby they might take what was given them, as well as what they should buy and pay for.
    In the case of the Attorney-General v. Bowyer, (3 Ves. 727, 728,) where the devise was of the rents and profits of lands in trust for the purpose of purchasing grounds and building a college thereon, and the further trust to obtain a charter and license, the chancellor observes, that the ease would have been exactly the same, supposing the devise had been to an existing college, which had exhausted its license, to hold in mortmain; for until that license had been extended on the part of the crown, the college having no power to hold in mortmain, could not have taken any legal interest in the land; thus distinctly intimating that a body corporate, authorised by license to hold real estate, may take lands by devise; andWooddeson, in his lectures on the laws of England, (2 vol. 355,) states, that corporations in general are incapable of being devises of land, Unless they haVe a license to purchase by mortmain. That commentator must therefore have understood the law to be, that an authority or license to purchase lands, Was sufficient to enable a corporate body to take them by devise.
    . *The full force of these authorities and this reasoning, applies to the case I am now considering. The terms used by the legislature in the act to incorporate the Orphan Asylum Society are large and comprehensive. The society is made capable in law of purchasing, holding and conveying any estate real or personal, for the use of the corporation ; and by the last section of the act, it is declared that the same shall be construed benighJy and favorably, for every humane, charitable and laudable purpose therein contained. The only limits to this extensive grant df power, are that such estate shall never exceed in value. $100,000, nor be applied to any other purposes than those for which the corporation is established. No expression is found-in the act qualifying the word “purchase,” or showing any intention to limit it to purchases for consideration. Why then is it not to be understood in its legal sense 1 The rule of construction established by the .cases, requires it to be interpreted according to the comprehensive meaning the law attaches to it; and if the word admits of two constructions, and there is room to doubt which was intended, it was by the express direction of the legislature to be construed favorably for the purposes of the institution; and that direction cannot be satisfied by any construction that narrows the capacity of the corporation to take bene ficial interests for the furtherance of those purposes.
    An act of the legislature with us must surely have as much efficacy as the license of the crown in England, and ought to receive a construction as liberal and beneficial for the corporation it creates. Upon the whole matter, therefore, my conclusion is, that the Orphan Asylum Society, are enabled by their charter tó take lands by devise, and may therefore lawfully enjoy the bounty of the testator, and dispense it in the charity they administer, without hindrance from the exception in the statute of wills, even if the lands should be held to be vested immediately in the corporation itself.
    These are my views of the merits of this cause; and if. I am correct in them, the objection taken by the defendant’s counsel to the bill for want of parties, cannot be sustained. The grouiid of that exception is, that the legal estate, in the ^events that have happened, has resulted to the heir, and become vested in him by descent. Is that ground tenable ? Where the legal estate never vests in the devisee, as a general rule, it descends or results to the heir; and on the same principle, if the devisee takes a partial interest in the estate, or a surplus of interest remains after fully satisfying all the trusts or purposes of the will, the heir may be entitled to the residue. But where the whole legal estate is ■devised to a trustee upon trusts which are perpetual and definite, and exhaust the whole interest of the testator, how can that legal estate result or descend to the heir at law ? This testator, by devising his estate to persons capable of taking lands by devise, prevented that estate from descending to his heirs; and whatever may become of the trust for the complainants, the legal estate is in the executors as devisee.
    In the case of Doe ex dem. Toone v. Copestalce, (6 East, 328,) it was said by the chief justice, “ that the legal estate being given to trustees, must rest with them; and they must be entitled to recover at law upon the legal title, in whatever manner the court of chancery may afterwards deal With the application of it.” In that case, the testator devised a messuage and premises to the plaintiffs upon trust, after payment of debts and legacies, to apply the overplus or reversion of the devised premises in such manner as the trustees, and the officiating minister of a Methodist congregation in the will mentioned, should from time to time think fit to apply the same. This was contended on the part of the defendant, to be a devise to charitable uses, and void by the statute of 9 Geo. 2, c. 36. But the plaintiffs denied it to be a devise to charitable uses, and insisted, that if it was so, the legal estate having passed to them as trustees, they were entitled to recover at law. The court held it not to be a devise to charitable uses, and so not within the statute, and gave judgment for the plaintiffs.
    The principle of that case appears to me to apply to this. In this case, tlfe devise to the executors took effect, and the estate vested in them as trustees to the use of the will, and continued in them during the life time of the testator’s child, and it must still rest with them.
    
    *The testator in this will, has made the provision for his heir at law, which he intended for him, and has expressly devised all the residue of his estate to the defendants, subject to the trusts of his will; and if the legal estate cannot unite with the use, it remains in the trustees, and it is for this court to determine upon the equitable principles applicable to the case, whether they do not still hold it clothed with the trusts of the will for the benefit of the charity. The heir at law then was not a necessary party to the suit; but the bill is properly filed against the trustees. And even if the legal title should be held to be vested in the complainants, the trustees, who continue in the possession of the estate, and the receipt of the rents and profits, will be accountable to them for the same, and the complainants are consequently entitled, whether held to be the legal or the equitable owners, to an account, and to be let into the enjoyment of the estate.
    Being satisfied, therefore, that the trust vested by this will in these executors for the complainants, was, in its rigin, a legal and valid trust, and that it stiff subsists and remains in full force; or that if it has been executed by the statute of uses, and the legal estate has passed to the complainants, or that estate is otherwise vested in them, they are well entitled to hold it for the charitable purposes to which it was devoted by the testator \ my opinion is, that the complainants are entitled to have the lands conveyed to and settled upon them; to be applied by them to the chari table purposes of the society, and that they are to be let into the possession and enjoyment of the estate, and to have an account of the same, and of the rents and profits thereof from the trustees, and I shall decree accordingly,
    
      J. Platt & J. V. Henry, for the appellant,
    S. Boyd & D. B. Ogden, for the respondents.
    The points and authorities are so fully considered in the opinions of his honor, the chancellor, in assigning the reasons for his decree, and the judges of this court, that it is deemed unnecessary to give the arguments of counsel; and *the more especially as it will be perceived that the cause turned here upon a point of construction on the will, and a clause in the act incorporating the respondents.
    
      
       By the Revised Statutes (see 4 ed. 241, § 3,) a devise of real property, in trust for a corporation, is void, unless expressly authorised by its charter, or by statute, to take by devise. Theological Seminary of Auburn v. Childs, 4 Page, 419. See also Wright v. Methodist Episcopal Church, 1 Hoff. Ch R. 225.
    
    
      
       Vidal v. Girard’s ex’rs, 2 How. 127. Dutch Church in Gardin st. v. Mott, 7 Page, 77. Kinskern v. Lutheran churches of St. John and St. Peters, 1 Sanf. Ch. 440. Spotwell ex’rs &c. v. Mott, 2 id. 46.kWhiteman v. Lex, 17 Serg’t & R. 88.
    
    
      
       See Attorney General v. Mayor of Dublin, 1 Bligh, 347, 2 Kent, † 287.
    
    
      
       Lord. Eldon in Attorney-General v. The Skinners Co., 2 Russ. 407, 420. Sir. John Leach in Attorney-General v. The Master of Brentwood School, Mylne & K. 100.
    
   Woodworth, J.

The will of the testator declares, that if he left any child alive at the time of his death, the executors should receive the rents and profits for the benefit of süch child, until it should attain the age of 21 years or marry.

The next clause devises the rest and residue of the real and personal estate to the respondents, to take effect immediately after debts and legacies are paid, if the testator should leave ño child; and if he should leave a child, then upon the death, marriage, or attaining of 21 years of age of such child.

From this statement, it is evident that had there been no child, the devise was direct to the respondents; and in that event, it was undoubtedly intended they should take immediately. But there was a child; and consequently no éstate passed to the respondents at the death of the testator. The latter part of the preceding clause is to be taken in connection with that giving the rents and profits, to the child if any was left, inasmuch as the executors were to apply the rents and profits, until marriage or 21 years of age. The testator suspended the vesting of the estate in the respondents until the happening of e.ither of those events. Upon the contingency taking place, the devise is direct to the respondents.

Thus far the intent is plainbut it will be observed that the will had not yet declared in whom the legal estate should be vested from and after the.death of the testator, until the death, marriage, or lawful age of the child that might be left. As the executors were to receive the rents and profits if the contingency contemplated should happen, it was advisable to give them the legal estate during the continuance of this trust; and accordingly we find that the next clause in the will makes such a provision. It devises to the executors all the real estate subject to the trust aforesaid. This manifestly refers to such trusts as the executors were to perform. What are they 1 No other trusts were imposed on them, excepting that they should apply the rents and profits for the benefit of the child, in the manner the testator had designated. , *They did not hold the real estate in trust for the respondents, to be conveyed to them on the happening of a certain event, for this (to my mind) conclusive reason ; there was no necessity that they should hold for the respondents, because the testator had declared.that, on a certain contingency, the estate should go to the respondents. That event has happened ; and, therefore, by force of the will, (if they are capable of taking,) they took the legal estate directly. They needed not the aid of trustees to pass this estate to them. I consider their title as accruing independent of any act or thing to be done by the tras tees.

Then follows a further direction, which is somewhat at variance with the disposition made before. The testator proceeds to declare that when the child shall attain 21 years, or marry, his real estate should be sold by the executors, and one half of the proceeds to be paid to such child. Now upon the established principle of collecting the intent from the whole will taken together, and reconciling discordant parts with each other, the question arises, what is the effect of this clause ? In the first place, I think it must be conceded that it clothes the executors with an additional trust. In a certain event they are to sell, and pay half the proceeds to the child. How is this clause to operate upon the preceding devise, which declares that on the death, marriage, or attainment of 21 years by the child, the respondents are to take all the real and personal estate ? They cannot stand together. I think the effect of the last clause is, to qualify and diminish the quantum of interest which had before been given to the respondents, provided the child married, or attained 21 years. Instead of the whole, which the words of the preceding ,part give, the testator has, in the conclusion, declared that his child shall receive half. This, then, operates as a diminution of the respondent’s interest pro tanto. It also changes the manner of conferring on them the testator’s bounty. Under the first clause, the estate, such as it was, would pass to them. Under the latter, they are restricted to one half; and as the executors were to sell the estate, had the contingency happened, then and in that case their claim would be for half of the money, not-half of the land. Upon the *supposition that the child had lived to 21 or married, I admit that the legal estate would have remained in the executors, until they had performed the trusts before specified ; and had they refused to pay one half of the proceeds of the sale, the respondents would be entitled to relief. Such are my views as to the construction of this will. If they are correct, then it follows that, as the testator left a child, the estate did not vest in the respondents at his death ; but it vested in the executors subject to the trusts I have mentioned; and such estate so vested in the executors, ceased on the death of the child. The objects for which it was created then ceased. There were no rents or profits to receive for the benefit of the child, nor could there be a sale of the estate. The death of the child was an event which deprived the executors of all further power or control over the real estate, and vested it in the respondents. If so, the estate was devised to them directly.

If the construction given is not erroneous it is a conceded point that the devise is void by reason of the exception in the statute of wills, unless the authority to purchase, given by the act incorporating respondents, includes the right to take by devise ; which forms the remaining point in this cause.

It is a well settled rule, that where there is a discrepancy or disagreement between two statutes, such exposition should be made as that both may stand together. In the present case, there is no express authority in the act of incorporation to take by devise ; but it is contended that the term purchase includes devise, as well as an actual purchase for valuable consideration. If it be admitted that such is the legal import of the term, it appears to me that does not decide the question. The inquiry is, ought the term to be construed in its most comprehensive sense, when, by so doing, the effect is to repeal the express words of a prior statute ? or in a more limited sense, according to the popular acceptation; thus leaving the former act unimpaired ?

It is laid down in 19 Vin. Abr, 525, pl, 132, that repeals by implication are things disfavored by the law, and never allowed of but where inconsistency and repugnancy are plain *and unavoidable; “for these repeals carry along with them a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another; and such repeals have been ever interpreted so as to repeal as little of the preceding law as possible.”

It is also a rule of law, that all acts in pari materia, are to be taken together as if they were one law. The statute of wills prohibits a devise to a corporation; the act incorporating the Orphan Asylum Society declares that they may - Purchase ■ real estate. ¡In the-most extensive.signification ^e- word, purchase,- it • includes. a devise, and therefore relates to the subj ect which hy' the- statute of wills-, is excepted. These statutes, I apprehend-, ought to be construed - together; and-in as much as the right claimed is,-, by the'for mer statute, expressly denied, it' would-seem to .be.more congenial-to the spirit- of both -acts, to 'understand the word purchase- in a restricted sense, and as so intended by.the legislature. The-consequence of-such a construction is, that the statute of wills has full operation, and- the term purchase is confined to-such- other- modes-of'-acquiring real estate as do not--include- a devise. The legislature- may- be - considered as-granting to'this corporation the right to purchase-subject-to other existing- statutes, and not-as conferring a-right to purchase without restraint. It. cannot’be that such a clause was intended to overleap positive restrictions found in other statutes. On this principle, I do not perceive why the- statute of.frauds, or that against maintenance, may not be passed over as in effect repealed,-so far as the right claimed by this corporation is concerned. -And yet it will not be pretended that the term purchase is to be carried to that extent. If not,- what are -the grounds -upon which-the restriction rests? Manifestly these : You may purchase and hold real estate it is true ; but in making the acquisition, it must be remembered that the laws of- the • state have declared certain requisites" essentially necessary to perfects title; and in certain cases have denied.the right altogether. Whatever-*can be purchased consistently with 1 these laws, is granted; what can not is denied.

-Again; the right topurehase is-incident to-a corporation, an^ would exist if the statute had not conferred the -right, But I presume it will not be contended that this incidental right, had the act of incorporation been silent, would have authorised the corporation to take by devise. Why .then should the term purchase, when used in the act, have a more extensive signification than it -would -have’ as incidental to the power of the corporation? It-seems-to me that, in both cases the meaning of the term is the same. The act conferred no additional power in this respect. The principal object of this clause was, to limit the amount of property the corporation was authorised to hold.

That the right to purchase in a corporation does not include the right to take by devise, appears to have been the opinion of the supreme court in the case of Jackson v. Hammond, (2 Cain. Cas. in Err. 337.) The opinion was delivered by Mr. Justice-Benson. The construction of the act of April 6th, 1784, enabling, churches to incorporate themselves, was under consideration. The act declares that the trustees appointed under it shall have good right and lawful authority to take, acquire and purchase lands, tenements and hereditaments. The expressions are as ample as in the act incorporating the Orphan Asylum Society. It is manifest, however, the court did not consider those words as conferring a right to take by devise. It was contended, that by the statute of the 6th of April, 1784, enabling churches to incorporate themselves, they are constructively, (with respect to lands possessed or held by them at the time of their incorporation,) made capable of taking by devise. The court held that the term devise in that act referred to goods and chattels, not to lands and tenements. And it may here be observed, that whether that construction was well founded or not, the term devise there used had reference only to such property as the church or congregation may have held before, and at the time of incorporation. As to future acquisitions, *the 5th section of the act regulates them in the terms I have already stated. Under that clause it was considered that a power to take by devise was not granted. It was not, it is true, the direct question before the court; but the view taken is nevertheless entitled to respect, and is of considerable weight in deciding the construction of similar words in a subsequent statute. From the scope of the opinion, I infer that the learned judge entertained no doubt on this point. He observes, the only manner in which, had they been incorporated, they were capable of taking, being by gift or grant, and not by deviseand again, when speaking of the construction contended for, that the word devise applied to lands which the church held before incorporation, he further observes, “ if this' construction is to obtain, then this consequence will follow: that the legislature must be supposed to have intended to give to a church" a capacity to hold lands' as it were before their incorporation, and refuse to them a capacity to take, and consequently to hold lands acquired after their incorporation ; and without a reason for the discrimination." It was therefore considered that, after incorporation, the corporate body could not take by devise.

I have thus very briefly given my views as to the construction of this statute ; and arrived at a conclusion that the exception in the statute- of wills is not affected by the grant of powers to the Orphan Asylum Society.

It is unnecessary for me to discuss the" various- other questions which have been examined by his honor the chancellor ; as my opinion upon the whole case rests on this ground; that, on the death of the child, the estate was devised directly to the respondents ; that after that event, there were no trusts remaining for the executors to execute, those imposed upon them by the testator having ceased; and that the devise being void by the statute of wills, the decree in the court below should be reversed.

Sutherland, J. concurred.

* Savage," Ch. J. being related to the appellant, gave no opinion.

Allen, Dayan, Elsworth, Hager, Hart, Lake, McCarty, McMartin, Waterman and Wilkeson, Senators, concurred.

Crary, Senator. (After stating the facts.) The respondents claim the whole residuary estate of the testator, The claim to the real estate is resisted, on the ground that the respondents, being a corporation, are disabled by the exception in the statute concerning wills to take by devise

By this act, it is provided, that any person having any estate in lands, may at his own free will and pleasure, give and devise the same to any person or persons, (except bodies politic andcorporate,) by his last will and testament.

This exception is found m “ an act to reduce the laws concerning wills into one statute,” passed 3d of March, 1787. (See 1 Greenleaf's ed. L. 387.) At that period the people of this state could not have been jealous of colórate bodies, for very few existed. We must then look for the reason of this exception to some other cause; and as we find it in the statute of Henry 8th, it is most likely it was adopted, upon the authority of the parliament of Great Britain; and no question having arisen upon it in this state, the exception has been continued in the subsequent revisions of the laws.

If the right to dispose of real estate by will is created by statute, then the legislature may qualify the right; but if it existed before the statute, then the legislature by affirming it in one part, cannot restrain the exercise of it in another.

Sir William Blackstone says, (2 Com. 373,) “it seems sufficiently clear, that before the Conquest, lands were devisable by will. But upon the introduction of the military tenures, the restraint of devising lands naturally took place, as a branch of the feudal doctrine of non-alienation without the consent of the lord.”

Paley, in his Philosophy, (ch. 13,) says, “ since the Conquest, lands in this country could not be devised by will, till within, little more than two hundred years ago, when this *privilege was restored to the subject, by an act of parliament in the latter end of the reign of Henry the Eighth.”

Robertson, in his history of Charles the Fifth, (1 Vol. note 8 of proofs and illustrations,) says, “ the victorious troops divided the conquered lands. Whatever portion of them fell to a soldier, he seized as the recompense due to his valor, as a settlement acquired by his own sword. He took possession of it as a freeman in full property. He enjoyed it during his own life, and could dispose of it at pleasure, or transmit it as an inheritance to his children. Thus property in land became fixed. It was at the same time allodial, that is, the possessor had the entire' right oi property and dominion.”

These references clearly show the right to disposé of real estate, hy will in England, previous to the statute of Henry the Eighth. And it is worthy of remark, that while this right continued, the tenure by which lands were held in England was allodial ; the precise tenure hy1 which they are held here,

Thus, it would seem that the devise of the real estate for the benefit of the respondents, is not void from the testator’s incapacity to make it;' but valid at common law. 1

The next qiiestioti is, as to the ability of the respondents to take and hold real estate. That is settled by the act incorporating them, (30th sess/ p. 508/§ l,)‘tiy which" it is enacted that “ The Orphan Asylum Society in’the city of New York, by that iiamé shall he capable inlaw of" purchasing, holding and conveying, any estate, real or personal/ for the use of the said' corporation: Provided, such estate shall not exceed in valué" óñé hundred tíi&iiéand dollars.”

The value of the estate belonging to the" respondents no where áppears, and it is not to be presumed that it exceeds the amount allowed to be held by their charter.

*This act of incorporation appears to have been passed on the 7th of April/1807 ; and may be referred to for another purpose : It is the sense of the legislature, after1 the experience, under the" statute concerning wills for twenty years, that the policy of the exception in that statute was wrong", at least so far as it respected the Orphan Asylum hi the city of New York, and it1 may be questionable whether the exception is riot thus far abrogated.

It was assumed in argument, that if the testator was not disabled by the exception, from devising to the Orphan Asylum, it was not in the power of the legislature to prevent devises to any corporate body, ahd to any extent; but it was not pretended that the legislature might not repeal the exception.'

The Orphan Asylum have the capacity to take and hold real estate to the amount of one hundred thousand dollars ; and are not disabled to take by devise. On what principle then can it be said they shall not take ?

Suppose the statute had provided, that the Orphan'Asylum might take by devisé; can it bé pretended that a' devise in that case would not be valid?

If the statute had enacted that the Orphan Asylum nriight take by devisé, it would have beén a limitation upon the right tó take generally; and might possibly bé considered as excluding the right to take in any other way for the right, to take and hold generally includes all the Ways and means by which propérty can- be acquired.

Which of these statutes then shall we give effect tó ? It is a familiar principle, that a new statute repeals an old one, if inconsistent with' it. In the present case, the statute concerning wills prohibits a devise to a corporate bodyand twenty years afterwards the legislature incorporate The Orphan Asylum Society in the city of New York ; and declare the society, by that name, capable in law of purchasing, holding and conveying any estate,- &c. I need- not mention that title by purchase includes that by devise.

Thus it will be séén that both statutes'may stand together and that is desirable, Whether inadvertently ór advisedlypassed.

*But there is another view of the subject, which would induce me to be in favor of affirming the decision of the chancellor.

All tenures of land granted by the péople of this state, &c., shall be and remain allodial and not feodal. (1 Rv L. 71.)

This act was passed before the act concerning wills.

1 Allodium, as defined by Blackstone, is the land possessed by a man in his own right, without owing any rent or service to any superior. (2 Bl. Com. 104.)

The absolute rights of each individual are the right of personal security, the right of personal liberty, and the right of private property. (3 Bl. Com. 119.)'

It is the last, that of private property, which has been invaded by the exception in the statute concerning wills.

And I now advert again to the argument, that if the devise in question is not within the exception in the act concerning wills, it is not in the power of the legislature to restrain devises to corporate bodies. And I ask why it should be ?

The very definition of municipal law limits the power of the legislature to commanding what is right, and prohibiting what is wrong.

If the legislature can restrain us as it respects our charitable donations, they may also compel us to make them; for whatever is a subject of legislation may be commanded as well as prohibited.

And if the legislature can declare a devise to the Orphan Asylum invalid, they may, upon the same principle, make us pay tithes of all we possess.

This is a free representative government; and one of the prominent features by which it is distinguished from a despotic one is, the preservation and protection of individual right; for it can make no difference with the citizen what the form of government is that oppresses him, and deprives him of his right; whether it consists of one tyrant or one hundred and sixty, if his suffering and deprivation are the same.

*It is difficult to conceive on what principle men elected, by the people for public purposes, can limit and restrain individuals in the exercise of their legitimate rights.

■ If individuals give up any part of their rights by becoming members of society, it is that they may obtain protection for' such as remain ; and on the same principle that allegiance is demanded by the government, protection is claimed by the citizen; and if not granted, the original compact is broken.

If courts of justice have occasion to advert to first principles the object should be the protection of individual right and not to confirm legislative usurpation. And in a government founded on principle, it is the duty of the judiciary department to decide in favor of individual right, when it is required to be done, on fundamental principles, though it should be to declare invalid an act of the legislature. The contest which ended in the separation of these United States from Great Britain, was a contest for individual right, intended to be secured by the Constitution of the United States. But of what avail is it, that no law shall be passed impairing the obligation of a contract, or that private property shall not be taken for public use, without a just compensation, if the paramount right to dispose of our property by will is denied us ?

In a government founded on principle, the application of it is the only limitation of power. The judiciary, although the weakest, is the most independent branch of the government, and the only branch that can, by the force of principle, limit and restrain the exercise of power. Can it then admit of a doubt, that it is the duty of the judiciary so to apply principle as to prevent any encroachment by the legislature upon individual right ?

Although I have taken a view of the subject somewhat different from the chancellor, I am however satisfied with the different views which he has taken. Yet I think his decree ought to be so modified as to allow the appellant his costs; inasmuch as he has acted under the advice of counsel, and I see nothing reprehensible in his conduct.

*Stebbins, Senator. The merits of this case do not appear to me to lie beneath the mass of learning which has been displayed in the investigation of the case.

As I view it, the inquiries whether a devise of lands to a corporation directly, is void or not under the statute of wills, and if void, whether such a devise can be sustained in equity in virtue of the genera, powers and jurisdiction of the court of chancery in cases of trust, do not become material.

The questions presented by the case, as I view it, are first, whether the testator (Philip Jacobs) devised the real estate in question to the corporation directly,, or to his executors, subject to the trusts- mentioned in the will; second, whether the devise to trustees for the use of the respondents, is a- valid devise, under which they can take as cestuis que use; and third, whether the use is executed by the statute of uses, and-if so, the effect.

To carry into effect the intention of the testator, is a cardinal rule in the construction of wills ; and to do so, it is necessary to give effect to every part of the instrument, if possible.

The testator devises all the rest, residue and remainder of his estate real and personal, (which includes the premises in question,) to The Orphan Asylum Society, to be applied to the charitable purposes, for which the association was established; to take effect immediately after the payment of debts and legacies, if he should leave no child; but if he should leave a child, then to take effect upon the death, intermarriage, or attaining of age of such child.

This, it is contended, is a direct devise to the respondents of the real estate in question ; and, standing alone, it would undoubtedly be susceptible of no other construction ; but he proceeds to devise all his real estate to his. executors, subject to the trust aforesaidand declares his will to be,- that whenever such child should attain the age of twenty-one years, or marry, his real estate should be sold by his executors, and one half the proceeds paid to such child.-

The testator had a posthumous child, which died at about the age of two years. Had that child lived and attained to the age of twenty-one years, no doubt can be entertained of *the intention of the testator, that it should then be entitled to a moiety of the proceeds of the real estate, which was to be sold by the executors. But such a provision is in hostility to the previous devise to the respondents, to take effect upon the coming of age of the child. Upon the happening of that event by the first clause,,the.estate was to vest in the corporation, and by the subsequent, one,.to be -sold by the executors, and one half the proceeds paid to the child. If, therefore, the-'first devise is to be carried :into effect according to its terms, the latter provision is entirely without effect.

To give effect to every part of the will, it seems to have been the obvious intention of the testator, if he should leave a child, to devise the real ,estate to, his executors in trust for the society, if such child should die under age and unmarried; if not, then upon the .maturity or marriage of the child, to be sold, and the proceeds divided between the society and such child.

The executors, then, took the estate at the death of the testator, subject to these trusts; - and the question arises whether, at the death of the child under age and unmarried, the real estate was, by the terms of the mil, to vest in the corporation.

It has been- said upon the argument, that if the executors took the estate as trustees, they can only be divested of that ' trust by their own grant, or by operation of the statute of uses; but: I can perceive-no objection (provided the terms of the will require it,) to their holding the estate in trust, until the happening of an event such as the death of this child; and then that the fee should vest in other persons, by way of executory devise. Was it then the intention of the testator, upon the happening of this contingency, that the fee should vest in the corporation, or continue in the trustees for their benefit 1 The latter appears to me to be the fair construction of:the-will.

In one paragraph he devises, after payment of debts and legacies, “all the rest, residue, and-remainder of his estate real and personal, to the respondents, to take effect upon the death of this child; and in the next he devises his real estate to his executors, subject to the,trust aforesaid. It was a *use, therefore, or beneficial interest, which I suppose be intended to devise to the respondents, leaving the fee in the hands of the .trustees.

If, as I have endeavored to show, it was r.ot the intention of the testator to dévise the estate diréctly to the respon» * bents upon the coming of age ox his child, it is a strong argument to prove that such was not his intention in cáse of the death of such child; for both contingencies are coupled in the same paragraph, and there is no limitation to the trust created in either case,

The next and more important question is, whether the x ... corporation can take the use under this will, notwithstanding the provisions of our statute of wills. This statute enacts that any person having any estate of inheritance in any lands, tenements or hereditaments, may give or devise the samé, or any rent or profit out of the same, to any person or persons, (except bodies politic and corporate,) by his last will and testament, or by any other act by him lawfully executed; and it is contended, that if a devise to a corporation directly would be void, a devise of the usé is also void.

Although in England; under the Saxons, lands were deviable by will at common law, yet at the Conquest, and upon the introduction"of the feudal system,'the common law underwent á complete change in this respect; and an estate in fee simple in lands was no longer devisable. It became inconsistent with the nature of that system, that a tenant should have an unlimited power tó devise his lands ; for' the reason that he might devisé to persons incapable of performing- feudal services. The power of alienation by devise, (except of a chattel interest,) is in England, then, to be traced to the statutes of wills of the 32 Hen. 8, ch. 1, and 34 Hen. 8, ch. 5.

Our statute of wills is a transcript of these, with the additional enumeration of rents and profits. It is contended that" the terms rents and profits mentioned in the statute, are intended to describe a use, and that as the lands cannot, so the use also cannot, be devised to a corporation under this" statute.

*1 apprehend, however, there is a material difference between rents and profits, and that which has long been known under the denomination of a use.

Rents and profits are incorporeal hereditaments ; but a use is not. A use is said to be neither jus in re nor ad rem, neither right, title nor interest in law, but a species of property unknown to the common law, and owing its existence to the equitable jurisdiction of chancery, resting upon confidence in the person and privity of estate : a thing collateral to the land, and only annexed to a particular estate in it, not to the mere possession; so that when the estate to which the use is annexed is destroyed, the use itself is destroyed, as by disseisin, or the entry of tenant by the curtesy or in dower. It was rather a hold upon the conscience of the feoffee to uses, than a lien upon, or interest in the land; and the principle upon which it was founded was, that the feoffee was bound in conscience to follow the direction of the feoffor. (See Cruis. Dig. tit. 11, ch. 2.) A thing so subtle, and cognizable only in courts of equity, which act upon the conscience, differs essentially from an incorporeal hereditament, which is of legal cognizance. Indeed, incorporeal hereditaments, such as rents, advowsons, &c., were the subject of conveyance to uses.

If, then, a use is not comprehended in the terms of the statute, the argument rests upon the ground that if a devise of land to the corporation would have been invalid, the demise of the use is equally so.

It might perhaps be conceded, that if corporations were prohibited by statute from taking the fee by devise, (which by the by, is not the case,) the law would not allow them to take the use. But the history of the English law furnishes at least a plausible argument against such a proposition.

Corporations were prohibited by several statutes of mortmain from holding lands ; yet it was deemed necessary to enact the statute of 15 Rich. 2, ch. 5, declaring uses subject to the statutes of mortmain. (Chudleigh’s case, 1 Rep. 120.)

But the statute of wills is an enabling statute, and not prohibitory. Before this statute, individuals had no capacity *to devise lands ; but this enabled them to do so, except to corporations. In conferring the capacity to devise, the legislature withheld the capacity to devise to a corporation ; and for what reason ?

Before the statute of wills, corporations were prohibited by the mortmain acts from taking or holding lands, or uses ■ arising from them. The exception therefore, in the statute of-wills, could not-have been introduced for the purpose of prohibiting, corporations from taking by .devise, for .they were already prohibited from taking in any mode ; but was to guard- against enabling them to take by devise. Without the exception in the statute of .wills in - England they .would have been enabled to take by devise, when the mortmain acts would have prohibited their taking .in any othei ,way.

The history of the statute, I think, fortifies this view . of it. In the first statute of wills, (32 Hen.: 8, ,ch. 1,) corporations were not excepted, and were therefore enabled to take by devise in common with other persons, contrary to the policy of the statutes of mortmain; but two years after-wards the parliament, finding the mortmain acts- so- far epealed by the statute of wills, passed a new statute, (34 Hen. 8, ch. 5,) not prohibiting corporations m terms from taking under the statute of wills, but entitled, “ an act for the explanation of the statute of wills,” in which they -re-enact the provisions of the first statute of,wills, and introduce the exception as to corporations ; not, therefore, expressly prohibiting corporations from taking, but qualifying the capacity to devise. The intention seems to have been to rely upon the mortmain laws, to keep property from corporations and to qualify the statute of wills so as not to interfere with those prohibitory acts.

The distinction is a wide one between an incapacity to devise and a prohibition against taking; for although there may be an incapacity to devise directly to a corporation,' yet such incapacity will not prevent the corporation from taking by. grant from the devisee in trust, if there is no prohibition against their taking. So, too, there be an incapa city to devise lands to a corporation, and yet the corporation may-*take a use. But in either case, if prohibited from taking, the law would not probably allow that to be indirectly done which was directly prohibited.

If, then, there is no other reason arising from the, statute of wills why corporations may not take land by devise, except the want of capacity in the devisor to convey, there Would seem to be no objection in this case against the corporation’s taking as cestui que use; for a devisor has capacity to devise a use; and this corporation is not prohibited from taking and holding either land itself or a use. All the English mortmain acts, including the 15th Rich. 2, are repealed by our statutes.

And if corporations cannot take by devise, merely for want of capacity to take in that particular way, the cases of a conveyance from a wife to her husband through the intervention of a trustee, and of a tenant in tail to a purchaser by means of a common recovery, seem to be conclusive to show that an indirect mode of conveyance is no fraud upon the law when resorted to only to remedy a want of capacity to convey directly.

But it is contended, that inasmuch as our legislature saw fit to repeal the English mortmain acts, including the statute of 9 Geo. 2, ch. 36, which prohibited all charitable bequests unless made and enrolled one year previous to the death of the donor, the policy of retaining the exception in the statute of wills, was to prevent impositions upon persons in extremis who might easily be persuaded to dispose of property to ecclesiastical incorporations for charitable uses, after it should no longer be of use to themselves.

Such an object, however, would not seem to comport with the policy of the legislature, who neither saw fit to prohibit corporations from holding lands, nor to impose the restraints of the statute of 9 Geo. 2.

If the policy was to prevent impositions, why was not the exception in the statute aimed at devises for religious or charitable purposes, instead of devises to corporations gen-rally ? There surely is no danger of persons making improvident devises to monied or manufacturing corporations.

*The English statutes, which the legislature were reenacting, furnished every variety of prohibition against improvident devises, much better calculated to effect the object than any general prohibition of devises to corporations. They guarded against improvident devises, whether io individuals or corporations, for religious, superstitious or charitable uses.

If it is shown that the exception in the statute of wills is to be regarded not as a prohibition against the taking oi lands by a corporation, but as a qualification of the capacity to devise, created by that statute, the opinion pro nounced in the court of chancery in this cause, contains another view of the subject which appears to my mind perfectly conclusive. It is, that before the statute of wills, when persons were not capacitated to take lands by devise, they might nevertheless take the use in that way; and, therefore, that since the statute of wills, although corporations cannot take lands by devise, yet they may take the use, there being no prohibition.

Corporations, 'since the statute of wills, stand in the same situation as to taking lands by devise, as all natural persons stood in before that statute. If, therefore, a use was devisable before the statute, a corporation may take a use by devise since the statute, especially if it be such as is not executed by the statute of uses.

It is said by Cruise that uses were devisable, though lands were not; and persons, by that means, acquired a disposition of property for the benefit of their families, which they had not otherwise. They were the invention of ecclesiastics to evade the statutes of mortmain. And after the 15th Rich. 2, ch. 5, which subjected them to the statutes of mortmain, the practice of conveying to uses was continued, as the most effectual mode of evading the hardships of the feudal tenures, and of securing estates from forfeiture for treason. They became general, and were applied to purposes inconsistent with the policy of the government. Feoffments were made secretly; so that persons who had to sue, found it difficult to ascertain the right tenant against whom to bring their pracipe. Widows were deprived of their dower, husbands of their curtesy, purchasers and creditors were defrauded, the * king and other lords lost their profits, fines, &c., and obscurity and confusion of titles prevailed.

During the long and bitter contest between the houses of York and Lancaster, most of the lands in England are said to have been conveyed to uses. As these evils came t'O-be felt, the parliament attempted, from time to time, to apply a remedy. By the 50th Ed. 3, feoffments to the use of the feoffor were made liable to execution creditors; by the 1st Rich. 3, ch. 1, all conveyances by cestui que use Were made valid; by the 1st Hen. 7, ch. 1, a formedon Was given against cestui que use; by the 4th Hen. 7, ch. 17, lords were entitled to wardship of the cestui que use; by the 19th Hen. 7> ch. 15, further relief Was extended to creditors ; by the 23d Hen. 8, superstitious uses were suppressed; and, finally, by the statute of uses, 27 Hen. 8, ch. 10, after reciting all these mischiefs, the legislature declared that possession shall be annexed to the use.

The object of the crown was to re-assert its rights of Wardship, and other feudal profits out of the lands of the nobility; and the intention of parliament was to abolish Uses by changing them into legal estates, and subjecting them to the rules of common law tenures.

The construction of this act, however, in a great measure defeated the intention of the legislature. Transferring the possession to the use by this statute gave rise to a mode of conveyance, by this means, which, on account of its convenience, by dispensing with the ceremony of livery, Soon came into general use; so that uses, instead of being suppressed, were resorted to as the common and most simple mode of conveyance. And it being determined that all uses were not executed by that statute, its operation was circumscribed; and a large class of uses were left untouched, and have continued to this day under the denomination of trusts, constituting one of the principal branches of equity jurisdiction.

It Was said by Lord Hardwicke, (1 Atk. 591,) that this statute, made upon great consideration, introduced in a solemn and pompous manner, by its strict construction has had no other effect than to add at most three words to a conveyance.

*Before the statute of uses, we have seen they were devisable to natural persons, although there was then no statute of wills nor any common law capacity to devise.

The operation of the statute upon uses, js said to hart been by turning the use into land, to render it not devisable in the same manner as the land itself. (2 Black. Com. 375.) This is the language of the elementary writers ; and during ]the short period of time between the statute of uses and the subsequent statute of wills, (a period of only five years,) I have not been able to fipd ¿any case, and few, if any, could have arisen, going to sustain, impeach, or explain the proposition.

If it is meant that during this period a cestui que use, under a feoffment or other conveyance, was, by force .of the statute of uses, to be regarded as the owner of the land so far as to incapacitate him to devise such use, he having no capacity to devise land, I perceive no objection to the proposition.

But to render the doctrine applicable to this case, it must go farther, and be held to mean that a use created by will is converted into land by the statute, and therefore was not devisable.

One of the things necessary to the execution of a use by the statute is “ a use in esseand it seems to be difficult to conceive how the statute can operate upon a use until it shall be raised, and in existence ; and if a use was raised in this case, it can only be in virtue of a capacity to devise such an interest. There being, then, a capacity to devise the use, the .operation of the statute upon it, if it is such a use as could be executed by the statute, it appears to me could be no other than by annexing the possession to the use, to vest the estate in the devisee, who would take, not as devisee, but under the statute of uses. And there would seem to be no objection to the execution of the use in this case, if the position is correct that the corporation are not prohibited from taking, whatever may be the objection as to the capacity of the testator to devise to it directly; foi it has been held in the case of a feoffment by the husband to A, for the use of his wife, that such a use *is executed by the statute, notwithstanding the husband had no capacity to convey .directly to his wife. .(Cruis. Dig. tit. 11, ch. 3, s. 28.)

Btit all the' reasoning arising from the statute of Uses, is answered, if the use in this case is such as- could Hot- be executed by that statute'; for clearly, in such case,- it could have no' operation to destroy the capacity to devise'.

The question then arises, whether the use'in this cáée is within the statute'; and the' examination of it necessarily casts us back Upon the will, id seek for the intention’ of the testator. He devises the estate to trustees, in trust for the Orphan Asylumt Society, to be applied to the charitable purposes for which thé association was established. His object was not to benefit the society; but through it, to apply the estate to the charitable purposes for which the society was organized. The society itself is a trustee; and has- a trust to perform,- which a court of equity Would undoubtedly enforce. It is a devise to trustees for the' use of the society, as trustees for certain charitable pttrposes.

Suppose the corporation to be- dissolved by the expiration of its charter ;■ it hever could have been the intention of the testator that these funds should be diverted from the charitable purposes to which he devoted them ;J and a court of equity he’véf Would permit it. If the corporation should, by dissolution or otherwise, become incompetent to execute the trust, I see. nothing to' distinguish the case from that of the ordinary one of a failure of th'é' írüsteé, in which the court Would act by the appointment of another.

Again, suppose the' powers of the corporation to be enlarged by a statute authorizing it to' do banking or insurance business, in addition to the charitable operations for which it was first incorporated; will it be contended that it was the intention of the testator; that these funds should be used, or that the" laW Would permit them to be used in such banking or insurance operations, instead of being applied to the charitable purposes designated in the will ? I apprehend not.

If it is granted, then, that the corporation itself had a trust to execute under this will, it is a case not within the statute of uses ; for that statute can only execute the first use, which, *in this case, would vest the estate in the corporation, unincumbered by any trust for charitable purposes, and contrary to the plain intention of the testator.

A trust is a use not executed by the statute; and the author of the Touchstone remarks, (p. 507, n. (1),) that “ one of the modes of creating a trust, is said to be where lands are limited to the use of A. in trust to permit B. to receive the rents and profits ; for the statute can only execute the first use.

The conclusions which follow my view of the case are, that the devise of the real estate in question, was not to the corporation directly, but to the executors for the use of the corporation upon the contingency which has happened, to be appropriated to certain charitable purposes :

That under the statute of wills, there is a mere incapacity in corporations to take lands by devise, and not a prohibition against their taking:

That a use was devisable at common law before the statute of wills; and therefore that this corporation may take a use by devise, not being prohibited by statute from taking either a use or the land itself:

That the use in this case is not such as could be executed by the statute of uses; or if it is, that the operation of the statute would not invalidate the devise, but vest the estate in the corporation.

If these propositions are established, it follows that the respondents are entitled to the estate in question; and that the decree of the court of chancery is, at least, substantially correct.

Burrows, Gardiner, Haight McCall and Smith, senators, concurred, that the decree should be affirmed.

Decree of reversal as to the real estate 
      
       Bowen v. Lease, 5 Hill, 221.
     
      
      «) The remark of the learned senator would seem to apply to such lands only as were granted by the people of this state before or since 1776 j not to grants before that time by any other authority. (Vid. u act concerning tenures,sess. 10, c. 36, s. 3 and 6, 1 R. L. 7I.) The premises hi question, situate in the city of New York, probably come within the 3d section; and are therefore holdeu in free and common socage having been granted by the king or colonial government, before 1776 j not by the people, whose granta alono are allodial»
      
     
      
       But see note (a) ante, 511.
     