
    Henrietta A. Lougheed, App’lt, v. The Dykman’s Baptist Church et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    Will—Devise—Society sot incobfobated at testator’s decease.
    By testator’s will lie devised certain real estate “ at the death of my wife ” to defendant, then an unincorporated organization, to he used as a parsonage, and provided that when the society ceased to use it for that purpose it should revert back to his heirs at law. Held, that the devise did not vest the estate in the devisee until the death of the wife, and if at that time the devisee was in existence and capable of taking by reason of having been incorporated, it would take the estate under the devise.
    The plaintiff appeals -from a judgment of the general term of the supreme court, second department, affirming a judgment of the special term which dismissed her complaint upon the merits. The action was brought to partition certain real estate in Putnam county among the heirs of one Amos Dykman, who died April 17, 1882. The plaintiff alleged in her complaint that she was the owner in remainder of the real estate in question, as a tenant in common with another, subject to the life estate therein of the widow of the deceased Dykman, and notwithstanding the apparent devise of such real estate by the decedent to another. This apparent devise the plaintiff alleged was void and the allegations in her complaint brought her within the provisions of §§ 1533 and 1537 of the Code of Civil Procedure.
    The testator at the time of his death left a widow, Iva Jane Dykman, also the plaintiff who was his niece, and the defendant Laura A. Ma-bie, his sister, the niece and sister being the sole heirs at law. He left a will which was duly admitted to probate, by which he gave to his wife the use of all his real estate during her natural life. The second paragraph of his will is as follows:
    “ Second. At the death of my wife I give and devise all that part of my real estate situate in the said town of South East, which lies southerly of the new road leading westerly from Dykman’s station, past the dwelling house of Coles B. Fowler to the Baptist church and society of Dykman station to be used by said church and society as a parsonage forever. And whenever said society ceases to use the same as a parsonage, the same shall revert to my heirs at law. The real estate so intended as a parsonage includes my present dwelling house and eighty acres of land, more or less.” The widow took possession of the real estate upon the death of the deceased and was still in possession at the time of the commencement of this action.
    The church organization known as the Baptist Church and Society of Dykman’s Station, was organized about 1866, and the deceased was a member of the society and contributed to its support, and it continued to exist as a church organization up to May 1889, when it became incorporated under the name of the Dykman’s Baptist Church and Society and it is the same organization as is mentioned in the second paragraph of the will of the deceased.
    
      Frederick S. Barnum, for app’lt; Abram J. Miller, for resp’ts.
    
      
       Affirming 35 St. Rep., 270.
    
   Peckham, J.

The plaintiff maintains that the devise to the Baptist church, as set forth in the second clause of the will of Dykman, deceased, is void because the testator by £he language used in the will intended to vest in the above mentioned church immediately upon his death the portion of the real estate mentioned by him and of which he died seized, subject to the life estate of his wife, and that as the church was at the time of the death of the testator an unincorporated organization and unable to take property by devise, the devise itself was void and the property descended to the heirs at law of the testator. The question is, primarily, one as to the intent of the testator. Did he, by the language he used, intend to vest the title to the portion of his, estate described by him in the church at the moment of his death, or did he intend that such vesting should not take place until the death of his wife ? If he intended that it should at once vest in the church society, the devise is void, for at that time the society was not incorporated and was unable to take under the will. What his intention was must, of course, be discovered from a perusal of the language used by him in the will itself. It is urged that if, at the death of the testator, the real estate at once vested in the heirs at law, it becomes of no importance whether thereafter or prior to the death of the widow the church should become incorporated and thereby rendered capable of taking property by devise. The property having once vested in the heirs could not, it is claimed, be thereafter divested and go to the incorporated church upon the death of the wife. Cases are cited by counsel for appellant which he says uphold this contention.

The- most that is decided in any of the cases he has called our attention to is, that when the testator intends that the devise or bequest shall vest in the devisee or legatee at once upon his own death, although to be enjoyed in possession at some future time, if at the decease of the testator the devisee or legatee is incapable of taking, the devise or bequest is void and the devisee or legatee cannot thereafter take, even though capable of taking when the period of enjoyment would otherwise have arrived.

The very question to be here decided is when does the devise vest in the devisee ? If it were intended that it should vest immediately upon the death of the testator, then we can say that on account of the inability of the devisee to take at that time the devise was void and the land would go to and vest in the heirs-at-law, unless otherwise provided in the will, and once having unconditionally vested, the subsequent capacity to take on the part of the devisee would not divest the property from the heirs.

I have, however, been unable to find any case which holds that a testator may not SO' provide for the future vesting of the title to real estate in his devisee that in the meanwhile it will vest in his heirs by operation of law, subject to be divested upon the happening of a contingency subsequent to his death, and provided for in the will. If the testator had in so many words devised his real estate to his wife for life and remainder in fee to his heirs at law, but if at the death of his wife the Dykman’s Baptist Church should then be a duly incorporated society capable of taking property by devise, then in that case he devised the real estate to it to use the same as a parsonage, etc., can there be any doubt that the church, although unincorporated at the death of the testator, yet if incorporated at the time of the death of the wife, would take the property devised ? The principle decided in Burrill v. Boardman, 43 N. Y., 254, and Shipman v. Rollins, 98 id., 311, upholds such a devise. A fee may be divested upon the happening of a certain event provided for by the testator. Leonard v. Burr, 18 N. Y., 96.

Although such words are not made use of, if from the whole language of the will and the implications which naturally arise therefrom the intention of the testator appears to have been to vest the estate in the devisee at his wife’s death and not before, and if the devisee at that time shall be able to take, we think the devise is valid and the judgment must be affirmed.

This would leave the title to the remainder of the estate from the time of the death of the testator to that of his wife in the heirs of the testator, subject to be divested if at her death the devisee were an existing corporation.

The question then recurs, when does the estate vest ? As was well said by the learned judge in delivering the opinion of the court below in this case, the devise herein is of such a nature that the devisee could not alien or dispose of it; certainly not in the lifetime of the tenant for life. The property was devised provided it should be used as a parsonage by the church society, and if the society ceased to use it as such, the property was to revert to the testator’s heirs at law, and thus it is clear the testator never intended the devisee should have any possible benefit from the devise until his wife’s death. The right of property and the right of enjoyment were to come into being together, and there could be no right of property separated from the right of enjoyment.

It seems to me that as the testator only contemplated that the society should have the right to use this property after the death of his wife, and then only as a parsonage, and that when it ceased to be used as such the land should revert to the heirs of the testator, he meant that the estate should not vest until the death of the wife. If at that time the society could take, it was all that was necessary.

It may be the testator did not contemplate the necessity of an incorporation of his devisee. He intended, as we must assume, to make a valid devise, and to that end he intended and supposed that his devisee should and would be capable of taking the devise when the time came, and if anything were necessary to be done before that time arrived in order to render itself capable of taking, it must be presumed the testator intended it should be done. Hence, if the formation of a corporation were a condition precedent to the possibility of the vesting of the estate under the devise, it would follow that the formation of such corporation was not outside of or counter to the intention of the testator. Construing his intention from the language used in the will to be that the estate should not vest in the devisee until the death of his wife, it would in the meantime vest in the heirs, and if upon the death of the wife there is a devisee capable of taking, the estate is divested from the heirs and passes to the devisee. The law provides for this to exactly the same extent as if the testator had conveyed the fee in so many words to the heirs upon the conditions mentioned.

The learned counsel for the appellant has cited some cases where the language used as to the time of enjoyment of the devise was much the same as that used here, and where it had been held that the testator meant that the devise or bequest should vest in the devisee or legatee at once, and simply the actual enjoyment in possession be postponed to a future time. But the limitations as to the future enjoyment and possession of this real estate by the church are of such a nature as to clearly distinguish this case from all the others cited by counsel. Generally it may be said that the language as to the time of enjoyment as used here would be regarded by the courts as causing a vesting of the estate immediately upon the death of the testator.

The counsel for the appellant also claims the condition upon which the devise was made was void, and that therefore no argument can be drawn as to the intended postponement of the vesting until the death of the wife, founded upon the inability of the devisee to deal with the estate as a vested one. If we were to assume the invalidity of the condition, still the time when the devise would vest would not be thereby affected. It would still be a question of intention on the part of the testator, and upon that question even a void provision in a will may be looked to for light. It would still appear the testator intended the devisee to take no interest in the land excepting upon the condition and for the purpose, and at the time expressed by him, and that intention would still be entitled to the same weight as if the condition were legal.

We are of the opinion that the devise does not vest the estate in the devisee until the death of the wife of the testator, and if at that time the devisee shall be in existence, and capable of taking, it will take the estate under the devise.

The devise is, therefore, not void, and the judgments of the special and general terms must be affirmed, with costs.

All concur.  