
    William Murray and Others, Plaintiffs, v. Walter T. Miller and Others, Defendants.
    (No. 1.)
    
      Will — a devise of real property to the treasurer of an unincorporated, religious association for its benefit is invalid — the title to the property vests in the testator’s heirs at law — chapter 701 of the Laws of 1893 is not retroactive.
    
    The will of James Frazer, who died June 14, 1876, gave to his wife a life estate in all of his property, real and personal, and then provided: “I give the remainder of all of my real estate and the residue of my personal estate at her (his wife’s) death, to the person who shall then be known and recognized by the unincorporated ecclesiastical body now calling itself and known by the style of ‘ The Synod of the Reformed Presbyterian Church in North America’ as its treasurer, in trust, to apply the same to the uses and for the benefit of such ecclesiastical body; and if at the time of the death of my wife, there shall be no person known and recognized as its treasurer, then to the person who was at the last preceding meeting of such ecclesiastical body known and recognized as its presiding officer, by whatever name he may have been known, upon the same trust.”
    At the time of the execution of the will, in 1863, there existed in the State of Pennsylvania an unincorporated ecclesiastical body known as “The Synod of the Reformed Presbyterian Church in North America,” which synod was the supreme ecclesiastical court and the highest governing body of the church of that name.
    In 1871, subsequent to the execution of the will and prior to the death of the testator, a corporation was formed under the name of “Trustees of the Synod of the Reformed Presbyterian Church of North America,” for the purpose of acting as the trustee and financial agent of the synod. The act of incorporation authorized the corporation to take, receive and hold all properties, “ which heretofore have been granted, bargained, sold, assigned, transferred, devised, bequeathed or otherwise acquired by the Synod of the Reformed Presbyterian Church aforesaid, or to any person or persons, to their use or in trust for them,” and such property was declared vested and established in the corporation and its successors forever according to the original intent for which such devises, gifts and grants were respectively made or intended.
    At the time of the testator’s death and of the widow’s death, which occurred April 5, 1895, both the corporation and the unincorporated association existed as separate bodies. Each of them had a treasurer and at the time of the widow’s death the treasurer of the unincorporated association was the person who was the treasurer thereof at the time of the testator’s death.
    
      Held, that the will created in the real estate a life estate in the testator’s widow, with remainder over at her death, and that the title to such remainder, upon the death of the testator, if the devise was valid, vested absolutely in the devisee, and if the devise was invalid it vested in his heirs at law;
    That the beneficiary of the trust attempted to be created in the remainder of such residuary real estate was the unincorporated association, and that the corporation could not, under any legitimate construction of the will, be deemed to be such beneficiary;
    That the validity of the trust created for the benefit of the unincorporated association was governed by the law in force at the death of the testator, and that, under the law then in force, the trust was invalid, and that the title to the remainder of the residuary real estate vested in the testator’s heirs at law at his death;
    That chapter 701 of the Laws of 1893 was inapplicable; as it was not competent for the Legislature, by that statute, to take from the testator’s heirs at law real property which had previously vested in them.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      
      Benjamin N. Cardoso, for the plaintiffs.
    
      A. C. Brown, for the defendants.
   Ingraham, J. :

The question submitted upon this controversy is as to the title of certain real estate in the city of New York; the- plaintiffs claiming to be the owners of the property, and- asking that it be adjudged that they have an estate in fee simple absolute and recover the possession thereof. The parties consent that the court grant such judgment as upon the facts agreed upon is pi'oper. It is conceded that-prior to his death, on the 14th of June, 1876-, one James Eraser was seized and possessed of the property in.question ; that he died June 14, 1876, leaving a last will and testament, dated the 3d of December, 1862, which was admitted to probate on the 11th day of January, 1877, by the surrogate of the county of New York, and that the testator left a widow, a nephew, Robert Murray, and a niece^ Elizabeth Murray, his heirs at law; that Elizabeth Murray died intestate in the city of New York in the year 1879, without issue surviving, leaving as her sole heir at law her brother, Robert Murray; that Robert Murray died in the city of New'York on the 15th day of November, 1899, intestate, leaving him surviving -a widow, the defendant Catherine Murray, and four children as his heirs at law, who are the plaintiffs in this proceeding. The plaintiffs, therefore, claim as the successors in title of the testator’s heirs at law. The will of James. Eraser gave to his wife a life estate in all of his property, real and personal, and then provided: “ I give the remainder of all of my real estate and the residue of my personal estate at her (his wife’s) death, to the person.who shall-then be known and recognized by the unincorporated ecclesiastical body now calling itself and known by the style of ‘ The Synod of the Reformed Presbyterian Church in North America ’ as its treasurer, in trust, to apply the same to the uses and for the benefit of such ecclesiastical body; and if at the time of the death, of my wife, there shall be no person known and recognized as its treasurer, then to the person who was at the last preceding meeting of such ecclesiastical body known and recognized as its presiding officer, by whatever name he may have been known, upon the same trust.” The testator’s widow died on the 5th of April, 1895.

At the time of the execution of this will there existed in the State of Pennsylvania an unincorporated ecclesiastical body known as “ The Synod of the Reformed Presbyterian Church in North America; * * "" said Synod was duly constituted in the year 1809, and has had a continuous existence since that time. The Reformed Presbyterian Church' was likewise in existence at that time, and has also had a continuous existence since then. Said Church is a definite body, having its own distinctive manuals of doctrine and discipline wherein the conditions of membership in the body are expressly exhibited; ” it has an enrolled membership and the synod is composed of ministers and lay delegates who are members of the church; all ordained ministers of the church are. members of the synod, and each congregation of the church is represented in the synod by the delegated elder who is elected to said position by the board of elders of each congregation; that synod had, at the time of making the said will of said James Eraser, and continuously since has had boards of administration appointed by it to carry on the several departments of work of the church, for which boards the synod makes annual appropriations from funds received by it for ecclesiastical uses; the said synod is the supreme ecclesiastical court and the highest governing body of said church.

By an act of the General Assembly of the State of Pennsylvania, approved on the 10th day of March, 1871, subsequent to the execution of the will, but prior to the death of the testator, the Trustees of the Synod of the Reformed Presbyterian Church of North America” was duly incorporated. Since this act of incorporation this corporation has been a valid and subsisting corporation under the laws of the State of Pennsylvania, and, by the consent of the synod of the said church, the corporation has acted with reference to the things intrusted to it as the financial agent and trustee of the synod, and such corporation is a party to this submission. The defendant John T. Morton was at the time of the death of the testator the person known as the treasurer of the body which was known as The Synod of the Reformed Presbyterian Church in North America,” and has ever since that time been and now is the person known and recognized as such treasurer, and he as such treasurer is also a party to this submission. The act of incorporation recites that: “ "Whereas, the Synod of the Reformed Presbyterian Church (Old School) of North-America ha.ve under their control, and subject to their supervision, a theological seminary, a board of education, a domestic mission, a foreign mission, and may have other and additional educational and religious- institutions. And whereas, the said Synod, by donations, bequests and otherwise, are possessed of notes, bonds, moneys and other property, to be used, for its various benevolent objects, and have reason to expect further donations and acquisitions, to secure said property and accumulations, and to encourage additions thereto, and the better to enable them to manage, invest, re-invest and dispose of such property as they have acquired or may hereafter become possessed of; therefore,” it was enacted that David Gregg and others and their successors in office, duly elected or appointed in the manner thereafter specified, were made, declared and constituted a body politic and corporate, in law and in fact, to have continuance -forever, by the name and style of the Trustees of the Synod of the Reformed Presbyterian Church of North America. By section 2 of the act the corporation was empowered to take, receive and hold all manner of lands, tenements, rents, annuities, franchises and other hereditaments, and all personal property “ which heretofore have been granted, bargained, sold, assigned, transferred, devised, bequeathed or otherwise acquired by the Synod of the Reformed Presbyterian Church aforesaid, or to any person or persons, to their use or in trust for them,” and the said lands, tenements, etc., were vested and established- in said corporation and its successors forever,.according to the original use and intent' for which such devises, gifts and grants were respec-. tively made or intended; and such corporation was also authorized to “ purchase, have, receive, take, hold and enjoy in fee simple, or of lesser estate or estates, any lands, tenements, rents, annuities, franchises and other hereditaments and personal property, by the gift, grant,, bargain, sale, alienation, enfeoffment, confirmation or devise of any person or persons, bodies politic and corporate, capable and able to make the. same.” The act further provided that the business of the said corporation should be intrusted to a board of trustees consisting of six members of the Reformed Presbyterian Church aforesaid, one-third of whom shall be elected annually by the said synod to serve for three years. The said corporation was also given power and authority to manage and dispose of all lands,, tenements, hereditaments “ and other estate whatsoever committed to their care in trust by said Synod of the Reformed Presbyterian Ohurch.” The treasurer of said corporation was to be elected by the synod of the Reformed Presbyterian Church from the members of the board of trustees, but the other officers were to be chosen by members of the board of trustees from among their own number.

It, therefore, appears that at the time of the death of the testator there was an unincorporated ecclesiastical body in existence which had been in existence since 1809, known as “ The Synod of the Reformed Presbyterian Church in Yorth America,” this body being the governing body of the church of the same name, composed of the ministers or clergymen of the church and of one elder elected from each congrega- . tion, and with a treasurer. There was in existence at the death of the testator a corporation created by the law of the State of Pennsylvania, with authority to receive all such property as should be given to it, either by the synod and its treasurer or by others for use by the church, which corporation was regularly incorporated, with officers in existence and acting under the authority of the law incorporating it. By the will of the testator he gave a life estate in his real property to his wife, and devised the remainder of that real estate after the death of his widow to the person who should then be known and recognized by the unincorporated ecclesiastical association, the Synod of the Reformed Presbyterian Ohurch in Yorth America, as its treasurer, in trust, to apply the same to the uses and for the benefit of such ecclesiastical association. There can be, I think, no doubt but that this was a vested remainder1 by which the fee of the real estate of the testator, subject to the life estate of the wife, was intended to be vested in the treasurer of this unincorporated body. Whatever may be said as to the bequest of the personal property, it seems to me that as to the real estate there can be no doubt but that the title vested absolutely in the devisee upon the death of the testator. Yo authority could be.implied from the language of this will which would authorize the testator’s wife to sell or dispose of it, or to do any more than to enjoy the real property during her life. There is, pure and simple, a life estate to the wife, with a remainder over.

At the death of the testator there were two bodies in existence, one, this ecclesiastical association, the governing body of the church, having a treasurer, and the other,- a corporation organized for the purpose of acting as agent or trustee of such property as should be vested in it for the. benefit of the church. Which of these ecclesiastical bodies was the beneficiary under this will \ The devise is in "form to neither, but is to the person who shall be known and recognized by the incorporated ecclesiastical body calling itself the Synod of the Reformed Presbyterian Church in North America as its treasurer. The devise, therefore^ was to the individual who at the death of the testator should, hold the position of treasurer of the "unincorporated ecclesiastical body. Such is the express provision of the will, and we are not. justified in making a new will for •the testator, giving the property. to a corporation not in existence when- the will was executed, not named by him in the will, and to whom, so far as we know, the testator had no intention of devising Ms property. But the devise was not absolute. It was in trust,, “to apply the same to the uses and for the benefit of such ecclesiastical body.” Such ecclesiastical body could only relate to the unincorporated ecclesiastical body “ now calling itself and known by the style of (The Synod of the Reformed Presbyterian Church in North America-,’ ” and the first and crucial question is, who was the G&stui gue trust ? To that, it seems to me, there can be but one answer. It was the unincorporated ecclesiastical "body which was then and had been since 1809 in existence in -the State of Pennsylvania", known as the Synod of the Reformed Presbyterian Church. No individual church .could be considered the beneficiary. It was the synod of the church, the representative body consisting of the ministers and delegates from the various churches who met to control the policy and administer ' the affairs of the church. Who could enforce this trust if the trustee had seen fit to refuse to recognize it ? Certainly nobody, unless it be the synod of the church, which was composed each year of different persons designated by the various churches who as min- - isters and delegates compose that body. The devise was to the ' treasurer of that association in trust for the association. This, corporation certainly could not have enforced the trust, or at any time compelled the devisee to account to it for the property devised to him in trust. This corporation did not in any way stand in the place of the unincorporated ecclesiastical body known as the synod of the church. It was not the incorporation of a body which had theretofore been an unincorporated association, vesting the corporation with the powers theretofore exercised by the unincorporated body, but a distinct corporation created to act as trustee for the unincorporated ecclesiastical body, and to hold and apply as directed by that body such property as should be conveyed, devised or bequeathed to it. It was entirely distinct from the unincorporated ecclesiastical body, exercising none of its powers or functions, not in any way taking its place or doing the work that the unincorporated had done. There is, therefore, in this will no clause by which this corporation could be held to be either the devisee of this property or the cestui que trust for whose benefit the property ivas conveyed to the treasurer of the unincorporated ecclesiastical body. I can see no escape from the conclusion that this will must be read exactly as it was written; that the remainder in the property Avas devised to the treasurer of the unincorporated ecclesiastical body in trust for that unincorporated association.

The next and remaining question is, whether such a trust is valid tinder the laws of the State of Hew York? To that question, it seems to me, there can be but one answer. That a devise or bequest directly to the unincorporated ecclesiastical body would be void is settled by a long line of decisions which are not now disputed (White v. Howard, 46 N. Y. 144; Owens v. Missionary Society of M. E. Church, 14 id. 380; Downing v. Marshall, 23 id. 366; Fairchild v. Edson, 154 id. 199); and it was also settled by controlling authorities that a bequest to a trustee in trust for such an¡ unincorporated body is equally void. (Levy v. Levy, 33 N. Y. 107; Cottman v. Grace, 112 id. 299; Tilden v. Green, 130 id. 29; Fair-child v. Edson, sufra; Adams v. Perry, 43 N. Y. 487.) It is quite unnecessary for us to consider the reasons for this rule of law, which had become settled by a long line of adjudications. It is sufficient to say that such is the universal rule that has been applied in this State for many years, and, except as modified by statute passed after this devise in question took effect, is of universal application. (Allen v. Stevens, 161 N. Y. 122.)

It is contended by the learned counsel for the defendants that this devise was a future gift Avliicli did not vest or take effect until the intermediate life estate of the widow was extinguished by her death; that meantime, by operation of law, the legal title to Eraser’s estate vested in his heirs, subject to the widow’s life estate, and subject to being divested on her death and vested in the individual who should then, as the will provided, be the treasurer of the synod or its last presiding officer. We think that this construction of the will cannot be sustained; that the devise of the remainder vested immediately upon the death of the testator, and its validity must be judged by the power of the devisee to take at that time. But, if this construction was possible, it would-not validate the title of the defendants. In the first place, there is no power of sale, either express or implied, given to the devisee in trust. The real estate is devised to him in trust to apply the same to- the uses and for the benefit of such ecclesiastical body.” There was no direction to sell the property, and no provision from which a power of sale could be implied, and, consequently, no equitable conversion. The trust was not a valid trust under section 55 of the Statute of Uses and Trusts (1 R. S. 728, § 55, as amd. by Laws of 1830, chap. 320, § 10). Nor was the duration of the trust in any way limited upon lives in being at the death of the testator. The trust was created by the will, and its validity must be determined by the law in force at the death of the testator. Whether the estate then vested in the devisee or not is entirely immaterial in determining the validity of the trust. Nor is the provision upon which the title of the defendants rests a simple direction to executors or trustees to pay or divide, at a future time, the trust estate in their hands. The devise is, “ I give the remainder of all of my real estate and the residue of my personal estate, at her death, to the person,” etc. Here is a present gift of the remainder of the real estate, and the devisee is to take it in trust for the benefit of an unincorporated ecclesiastical body. The cases of Warner v. Durant (76 N. Y. 133) and Clark v. Cammann (160 id. 315) are not applicable. It was not the proceeds of the property that were to be applied to the uses of the ecclesiastical body, but the property itself. Nor is there any contingency upon which the devise was to take effect. The devise was absolute, the possession of the property devised being postponed only rintil the death of the- testator’s wife. Nor was there any clause which indicated an intention of the testator that the property should be held by the trustees for the use of any person or corporation thereafter to come into being, as in Burrill v. Boardman (43 N. Y. 254) and other cases which have followed that case. Nor do we think that chapter 701 of the Laws of 1893 is at all applicable.

The testator died long, before the passage of that act. The devise was either valid or invalid at the death of the testator. If valid, the remainder vested in the devisee; if invalid, it vested in the heirs at law of the testator, and subsequent acts of the Legislature could not take from the testator’s heirs at law the real property that had vested in them and vest it in another, nor does the act in terms affect a devise which had gone into effect before its passage. In Dammert v. Osborn (140 N. Y. 30) it Was held that the act would not affect property that had vested prior to its passage, and that remainder vested either in the devisee or in the heir at law of the testator upon the death of the testator.

It follows, therefore, that there must be judgment for the plaintiffs as prayed for, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.

Hatch, J.:

I concur with Mr. Justice Ingraham in his opinion in this case so far as it relates to the existence of the unincorporated association and its incapacity to take under the terms of the will. It still continued in existence and the corporation" defendant represented it only as trustee of its property; but the will in the present case did not make the gift to such trustee for it or to it as a corporation. In no view, therefore, can the corporation be treated as taking anything by the terms of the will. This view renders it unnecessary to express any opinion as to whether the gift under the terms of the will was present or future, as in either event the devise and bequest to the trustee for the unincorporated association is void.

The judgment, should, therefore, pass for the plaintiffs.

Judgment ordered for plaintiffs, with costs.  