
    The American Bible Society, and the American Board of Commissioners for Foreign Missions v. Alphonzo G. Marshall et al.
    Where the terms of the charter of a corporation, created by the legislation of another state, are sufficiently broad to confer upon it a capacity to take and hold real estate by devise, although not expressly authorized so to take, a provision of the statute of wills of that state, that “ no devise of real estate to a corporation, shall bo valid, unless such corporation be expressly authorized by its charter, or by statute, to take by devise,” is operative only to the extent of disabling the corporation to take by devise real estate situate in that state, and does not affect its power to take by devise real estate in Ohio.
    Error to the district court of Lorain county.
    The original action was brought by the plaintiffs in error, against the defendants in error, in the court of common pleas, to recover the possession of certain real estate, being parts of farm lots, Nos. 40 and 41, in Wellington township, in Lorain county, Ohio.
    All the parties claimed title through Amos Adams, deceased — the jolaintiffs in error, under his will — the defendants in error by descent from him to his widow, Electa Adams, and by devise from her.
    The right of the plaintiffs to recover, was resisted upon the grounds:
    1. That neither of the plaintiffs had the. legal capacity to take and hold lands in Ohio, by devise.
    2. That, as to lot Ho. 40, Amos Adams held it in trust for his wife, Electa Adams, and could devise no better title than he himself had.
    At the June term, 1861, of the common pleas, the cause was tried to the court.
    Erom the evidence given on the trial, it appears that the American Bible Society was incorporated by the legislature of New York, March 25, 1841. The act of incorporation, provides:
    “ Sec. 1. All such persons as now are, or may hereafter become members of the America!?., Bible Society, formed in the city of New York, in the year one thousand eight hundred and sixteen, shall be and are hereby constituted a body corporate, by the name of the American Bible Society, for the purpose of publishing and promoting a general circulation of the holy scriptures, without note or comment.
    “ Sec. 2. The net income of the said society, arising from tbe real estate, shall not exceed the sum of five thousand dollars annually.
    “ Sec. 3. The corporation shall possess the general powers, and be subject to the provisions contained in title 3rd, of chapter 18, of the first part of the Revised Statutes, so far as the same are applicable arid have not been repealed.
    “ Sec. 4. This act shall take effect immediately.
    “ Seo. 5. The legislature may at any time modify or repeal this act.”
    It further appeared in evidence, that on April 13,1852, the legislature of New York passed an amendatory act, which provides:
    
      “ Sec. 1. Power and authority are hereby granted to the American Bible Society, to purchase, take, hold, and convey the ground or real estate in the city of New York, bounded east by the Third avenue, west by the Fourth avenue, north by Ninth street, and south by Stuyvesant street and Astor Place, together with all the buildings and improvements which may be erected or made thereon, and also, from time 'to time, to lease such parts of the said premises, as may not be immediately required for the actual use and occupancy of the society, even although the net annual income of the society, arising from its real estate, should thereby exceed the amount limited in its charter.
    “Sec. 2. This act shall take effect immediately.”
    Title 3rd of chapter 18, of the first part of the Revised Statutes of New York, was also offered in evidence, and is made a part of the charter or act of incorporation by sec. 3rd of the charter above copied. Title 3rd reads as follows, to-wit:
    “ General powers of corporation:
    
    “ 1. To have succession by its corporate name, perpetually.
    “ 2. To sue or be sued, complain or defend in any court of law or equity.
    “ 3. To make and use a common seal, and alter the same at pleasure.
    “ 4. To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.
    “ 5. To appoint such subordinate officers and agents as the business of the corporation shall require, and to allow them suitable compensation.
    “6. To make by-laws not inconsistent with any law, for the management of its property, and the regulation of its officers.”
    The following, from the statute of wills of New York, was also offered in evidence, and shown to be in force long before, and at the time the American Bible Society was incorporated, to-wit:
    
      “No devise of real estate to a corporation shall he valid, unless such corporation he expressly authorized hy its charier, or hy statute, to take hy devise
    
    As to the American Board of Commissioners for Foreign Missions, it appeared.in evidence that it was duly incorporated by an act of the general assembly of the Commonwealth of Massachusetts, in the year 1812, by which the board was invested with power to “ take, receive, have and hold in fee simple, or otherwise, lands, tenements and hereditaments, by gift, grant, devise, or otherwise, not exceeding the yearly value of four thousand dollars.”
    Amos Adams executed his will June 28, 1844, by which he gives and devises the real estate in controversy, “ to the American Board of Foreign Missions and Bible Society, to be equally divided,” subject to the life estate of the testator’s wife.
    The effect of the evidence relating to the alleged trust in •which Amos Adams held lot No. 40, for the benefit of his wife, is stated in the opinion of the court.
    The trial in the common pleas resulted in a finding and judgment for the plaintiffs.
    The defendants moved for a new trial on the grounds:
    1. That the finding of the court was not sustained by sufficient evidence.
    2. That the finding and judgment are contrary to law.
    This motion was overruled and exception taken.
    
      To reverse this judgment the defendants filed a petition in error in the district court.
    The district court held that the common pleas.erred in rendering judgment in favor of the plaintiffs belovr for' the part of said land in lot No. 40, and in not confirming the title of the defendants below to the same, and to that extent reversed the judgment of the common pleas, but affirmed it as to the other part of the real estate. The district court further found in favor of the defendants below as to lot No. 40, and for the plaintiffs below as to the residue of the land, and rendered judgment accordingly, and perpetually enjoined the plaintiffs below from interfering with the defendants below in regard to said premises on said lot No. 40, and ordered each party to pay half the costs.
    To reverse the judgment of the district court, the plaintiffs filed their petition in error in this court, insisting that the district court errd:
    1. In refusing to affirm the judgment of the common pleas.
    2. In holding the defendants entitled to the part of the land in lot No. 40.
    3. In holding that any part of the land was held by Amos Adams in trust for his wife.
    4. In not rendering judgment in favor of the plaintiffs for all the land.
    
      Mason ^ Bstep, and S. J. Andrews, for plaintiffs in error.
    
      Burke Poppleton, for defendants in error.
   Brinkerhoee, C.J.

The claim that the land in lot 40 in controversy was held by Amos Adams in trust for his wife, is not sustained by the evidence; which shows, that when Amos Adams and his wife, then a young married couple, were about to settle in Ohio, he was the owner of a tract of unimproved land in the southwest part of the same township of Wellington, which portion of the township was then wild and unsettled. Mrs. Adams was the owner in equity of th.e parcel of lot 40- here in dispute. She proposed to him that if he would settle upon her forty acre tract, she would have the conveyance of the title made to him; as she did not wish to settle in the wild neighborhood where his land lay; but if he would not no this, she would have the deed made to herself. He assented to her proposal; settled upon her tract in lot 40 ; received a conveyance thereof to himself in fee simple, improved, and ever afterward, until the close of a long life, resided upon it. And there is no evidence that, during his life, the title to this tract was ever treated as, or claimed to be, a trust estate in him. The parties clearly intended the conveyance to him to be an absolute estate in fee simple; and w-e know of no principle of law which, under the circumstances, would imply the existence of a trust in him.

The corporate capacity of the American Board of Commissioners for Foreign Missions to take by devise being expressly conferred by its charter; counsel make no question in respect to that ; nor is it claimed that these devises, if sustained, would have the effect to exceed the limit fixed by the terms of their respective charters to the capacity of either corporation to hold real estate. So that, the claim of a trust being out of the way, the case is narrowed down to the single question as to the corporate capacity of the American Bible Society to take, by devise, its moiety of the parcel of lot 40 referred to.

That society, by the law creating it, is empowered generally, “ to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter;” and it is clear that, in the absence of any other restriction upon its powers, the word purchase is, in law, sufficiently comprehensive to include an acquisition by devise.

It is insisted, however, by counsel for defendants in error, that the New York statute of wills, which provides, that, “no devise of real estate to a corporation shall be valid unless such corporation be expressly authorized by its charter, or by statute, to take by devise,” operates to limit the effect of the word “purchase,” so as to exclude the capacity of the Bible Society to take real estate by devise in any case. And in support of this position the case of McCarter v. Orphan Asylum Society, 9 Cowen, 437, is cited and urged.

We have no disposition, nor have we any occasion, to question the authority of that decision. That case was one in which a testator had attempted to devise real estate situate in New York, to a corporation not “ expressly authorized by its charter, or by statute, to take by devise,” though, like the Bible Society, it was authorized to take by purchase. And it was held that, the provision of the statute of wills had the effect to exclude the capacity of the corporation to take by devise the land in that case attempted to be devised. But there is nothing in the case, fairly considered, to show that the court intended to go further than this. Indeed, it seems to us, it can not, in reason, be claimed that the New York statute of wills can operate beyond the extent to which it was applied upon the facts of that case. It is a statute of wills. Its primary intent is to limit the capacity of testators to devise; and it is only incidentally that it affects the capacity of corporations to take by devise. Its operation and effect upon the capacity of corporations is measured and limited by the extent of its repugnancy to the claims of power and capacity which, but for its provisions, corporations might well make. And that repugnancy ceases just where the statute creating the repugnancy ceases to operate. Now, the New York statute of wills operates on property situate in, and controlled by the laws of, that state. Beyond the limits of that state it can have no effect. It is not to be presumed that the legislature of that state intended to go further; and if it did so intend, the assumption would be nugatory. The New-York statute of wills, therefore, is not inconsistent, either in intention or in effect, with a claim of capacity by the Bible Society, under, the general provisions of its charter, to take by devise lands situate elsewhere than in New York. And this view of the question is directly and fully sustained by the supreme court of Pennsylvania, in Thompson v. Swoope, 24 Penna. St. Rep. 474.

There is nothing in the legislation' of this state to limit the general capacity of the Bible Society to take, by devise, real estate in Ohio. There are no statutes of mortmain in this State. Eor myself, I heartily wish there were. But we must declare the law as we believe it to be.

The judgment of the district court is reversed, and that of the common pleas affirmed.

Scott, Day, White and Welch, JJ., concurred.  