kind of punishment, or to a criminal charge, the witness is not bound to answer."

It will be seen by these decisions that the protection given the witness under the Constitution has not been construed literally, and confined to an exemption from testifying in a criminal proceeding in which he himself is prosecuted, but has been extended to protect him in all cases in which his evidence would prove "a necessary and essential link in a chain of testimony, which would be sufficient to convict him of crime."

The question then arises, Does the statute afford the witness protection and immunity equal to that afforded him under the Constitution? If it does so, then section 3819 does not deprive petitioner of any constitutional right or privilege, and is valid. There can be no doubt that the language of the statute granting protection, that "the testimony which may be given by such person shall in no case be used against him," is as broad as the constitutional privilege, "that no person shall be compelled to testify against himself in a criminal cause.' It might therefore be sufficient to hold, as was done by Brown, J., in United States v. McCarthy, 18 Fed. Rep. 89: "The reason of the former rule exempting witnesses from giving compulsory testimony against themselves was that their testimony might be used to convict them. The statute above quoted, in preventing all possible use of testimony thus given, does away with the reason of the rule; and there is therefore no longer any ground for its application.'

which would be quite revolting to a mind accustomed only to the more humane system of English and American criminal law. It was not, therefore, unreasonable to guard, by constitutional sanctions against repetition of such practices in this State; and it is not at all improbable that the true intention of the provision in question corresponds with the natural construction of the language. But there is great force in the argument that constitutional provisions, devised against governmental oppressions, and especially against such as may be exercised under pretense of judicial power, ought to be construed with the utmost liberal ity, and to be extended so as to accomplish the full object which the author apparently had in view, so far as it can be done consistently with any fair interpretation of the language employed. The mandate that an accused person should not be compelled to give evidence against himself would fail to secure the whole object intended, if a prosecutor might call an accomplice or confederate in a criminal offense, and afterwards use the evidence he might give to procure a conviction on the trial of an indictment against him." The question came before this court in a very early day in Ward v. State, 2 Mo. 120, 22 Am. Dec. 449, in which McGirk, Ch. J., wrote the opinion of the court. The facts in the case were similar to those shown by this record. A witness before the grand jury was asked, "Do you know of any person or persons having bet at a faro table in this county within the last twelve months?" to which the witness answered, "I do." The witness was then asked to tell what person or persons have so bet other than himself. The witness declined answering this question, saying he could not answer without implicating himself. The question before the court was whether the witness could be required to answer. The court adopted the rule laid down by Chief Justice Marshall in Burr's Trial, 245: “That it is the province of the court to judge whether any direct answer to the question that may be proposed will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in a chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such case the witness must himself judge what his It is insisted, however, and this is the main answer will be, and, if he say on his oath he ground of contention, that facts might be discannot answer without accusing himself, he closed which would afford facilities for fastencannot be compelled to answer. It is said by ing the guilt upon the witness. Thus, it is the Supreme Court of Virginia (Kendrick v. contended, if witness should have answered Com. 78 Va. 493), in speaking of a similar pro- that he had seen A. and B. gaming, then they vision of the Constitution of that State: "It could be called as witnesses to prove that petiought to be construed with the utmost liberality tioner was at the same time engaged in gaming. consistent with the due execution of the laws It will be seen that this illustration assumes a and the safety of society. But, while it is a set-case outside the protection of the Constitution tled maxim of law that no man is bound to crimi- itself, as most liberally interpreted. The court, nate himself, it is also a rule of law and neces- in the case of People v. Kelly, supra, speaking sity of public justice that every person is compellable to bear testimony in the administration of the laws of the duly constituted courts of the country." This court, in State v. Talbott, 73 Mo. 357, cites approvingly the rule given by Greenleaf in his work on Evidence (§ 456): "Where the answer will have a tendency to expose the witness to a penal liability, or to any

But in this case what fact could have been disclosed by petitioner in his testimony which could have been used as a link in a chain of evidence, upon which he might have been convicted of a criminal offense, against the use of which, in a trial against himself, he was not given as full protection as the Constitution afforded him? He was fully protected against the use of any admissions or declarations he may have made against himself. Suppose he had answered that he had seen A. and B. gambling with cards. What fact would have been disclosed that could have "formed a link in a chain of evidence" against himself. To look on at others gaming is not a criminal offense, subjecting the observer to prosecution.

on this possibility, says: "But neither the law nor the Constitution is so sedulous to screen the guilty as the argument supposes. If a man cannot give evidence upon the trial of another person without disclosing circumstances which will make his own guilt apparent, or, at least, capable of proof, though his account of the transaction should never be used as evidence,

it is the misfortune of his condition, and not any want of humanity in the law."

ciple of law. Will the law permit a man to keep offenses and offenders a secret, lest the Referring again to the opinion of McGirk, offenders should in their turn give evidence Ch. J., in case of Ward v. State, supra, his against him?" We think the protection of the concluding observations meet directly the point statute co extensive with that intended to be here urged: "But in this case it is said, if the afforded by the Constitution. We are supwitness is bound to tell who bet at the game, ported in this conclusion by the following without meaning himself, then those persons cases, and others cited in 32 Cent. L. J. 368, who are named will be examined as to the fact construing like statutes: State v. Quarles, 13 whether he bet; and, if the witness is not com- Ark. 307; Kneeland v. State, 62 Ga. 397; Wilpelled to name who did bet, then they will re-kins v. Malone, 14 Ind. 153; Re Counselman, main unknown to the grand jury, and cannot 44 Fed. Rep. 268. be examined whether the witness bet. I understand this doctrine to be grounded more on the fear of retaliation than on any sound prin

Ordered that petitioner be remanded to custody. All concur.

V.

NEW YORK COURT OF APPEALS.

Henrietta A. LOUGHEED, Appt., DYKEMAN'S BAPTIST CHURCH AND SOCIETY, Impleaded, etc., Respt.

(........N. Y....... .)

An unincorporated church to which "at the death" of testator's wife, to whom a life estate is given, property is devised for use as a parsonage only, to revert to testator's heirs if such use ceases, may take the property if it becomes incorporated before her death, as the devise does not vest until that time.

(December 1, 1891.)

upon the ground that the devise was void. Affirmed.

Statement by Peckham, J.:

The action was brought to partition certain real estate in Putnam County among the heirs of one Amos Dykeman, 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, Dykeman, 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

APPEAL by plaintiff from a judgment of her within the provisions of sections 1533 and

the General Term of the Supreme Court, Second Department, affirming a judgment of a Special Term for Putnam County in favor of defendants in an action brought to obtain partition of certain land owned by Amos C. Dykeman, deceased, and by him devised to the defendant church; the partition being claimed

NOTE.-Effect of subsequent incorporation to make valid a gift to an unincorporated association. The capacity of an unincorporated society to take a particular charitable bequest cannot be enlarged by statute after the testator's death. Green v. Allen, 5 Humph. 170; Rhodes v. Rhodes, 88 Tenn. 637.

Nor by its becoming incorporated after his death. State v. Warren, 28 Md. 338; Lutheran Reformed Church v. Mook, 4 Redf. 513; Ruth v. Oberbrunner, 40 Wis. 238; Owens v. Missionary Soc. of M. E. Church, 14 N. Y. 380, 67 Am. Dec. 160; White v. Howard, 46 N. Y. 144; Re Roman Catholic Soc. 4 Lans. 14.

As apparent exceptions to the above authorities, are American Bible Soc. v. Wetmore, 17 Conn. 181; Zimmerman v. Anders, 6 Watts & S. 218, 40 Am. Dec. 552.

Also that a gift in trust to establish a school, without providing for its incorporation, may authorize the trustees to become incorporated if that is not inconsistent with the trust. Sanderson v. White, 18 Pick. 328, 29 Am. Dec. 591.

And that a grant to trustees for the use and benefit of a church to be organized may be upheld on its subsequently coming into existence and becoming incorporated. Miller v. Chittenden, 2 Iowa, 315, aff'd on rehearing, 4 Iowa, 52.

But it is to be observed that in Pennsylvania, Massachusetts and Iowa, the decisions uphold

1537 of the Code of Civil Procedure. The testator at the time of his death left a widow, Iva Jane Dykeman; also the plaintiff, who was his niece; and the defendant Laura A. Mabie, 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

also gifts to unincorporated charitable associations which do not become at any time incorporated, and in the Connecticut case the court declares that such gifts will be upheld in equity although not good at law.

In most if not all of the above cases the gift was made without providing for or contemplating any future incorporation.

By analogy the following decisions as to corporations may be important:

The subsequent amendment of the charter of a corporation which was not authorized to take a devise at the death of the testator can impart no vitality to the devise. White v. Howard, 46 N. Y. 144.

A corporation not authorized to take real estate by devise at the death of a testator cannot take a contingent remainder under his will, although it had been given power by statute before such contingency happened to take by devise, where testator did not contemplate that any additional capacity should be conferred upon the devisee. Leslie v. Marshall, 31 Barb. 560.

But a corporation which had no power to take a legacy at the time of testator's death, but had been given authority to take it before the time of its vesting, which was at the expiration of a life estate, is entitled to it. Plymouth Soc. v. Hepburn, 57 Hun, 161. Compare Shipman v. Rollins. infra.

Subsequent reincorporation may give capacity | court, to found and establish an institution for the to take a trust for a charitable use as an executory devise under a will, though at testator's death the corporation had no legal capacity to take. McIntire v. Zanesville Can. & Mfg. Co. 9 Ohio, 203, 34 Am. Dec. 436.

A bequest to an unincorporated association which does not vest until the death of testator's widow, Future incorporation provided for or contemplated. future incorporation of the association, is valid if and which shows that he had in contemplation the A devise to a charity on its subsequently becoming the incorporation takes place during the widow's incorporated is valid. Inglis v. Sailors Snug Har- life. Shipman v. Rollins, 98 N. Y. 311. (This debor, 28 U. S. 3 Pet. 99, 7 L. ed. 616; Jones v. Haber-cision, it will be seen, is very nearly like that in the sham, 107 U. S. 174, 27 L. ed. 401; Ould v. Washington main case above.) Hospital, 95 U. S. 303, 24 L. ed. 450; Field v. Drew Theolog. Sem. 41 Fed. Rep. 371.

But a bequest to trustees to be appointed by a future note.

A very clear intention must be indicated in order to postpone the vesting.

Mitchell v. Knapp, 54 Hun, 503; Re Mahan, 98 N. Y. 872; Avery v. Everett, 1 L. R. A. 264, 110 N. Y. 317; Haynes v. Sherman, 51 Hun, 585; 4 R. S. 8th ed. 2432, § 13; Black v. Williams, 51 Hun, 283; Searles v. Brace, 19 Abb. N. C. 10: American Bible Soc. v. American Col. Soc. 50 Hun, 197.

A will takes effect at the death of the testator where there is no contingency provided for in the will.

Manice v. Manice, 43 N. Y. 303.

100; Warner v. Durant, 76 N. Y. 133; Manice | the Baptist Church, as set forth in the second v. Manice, 43 N. Y. 303; Philadelphia Baptist clause of the will of Dykeman, deceased, is • A880. v. Hart, 17 U. S. 4 Wheat. 27, 4 L. ed. void, because the testator, by the language 506. See Da Costa v. Bass, 48 Hun, 32; Snell used in the will, intended to vest in the aboveV. Tuttle, 44 Hun, 331; Coit v. Rolston, 44 mentioned church, immediately upon his death, Hun, 548. the portion of the real estate mentioned by him, and of which he died seised, 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 devested, 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 bequeath shall vest in the

The mere presence of a provision that the estate shall revert to the grantor will not cause a conditional limitation to be construed as a condition.

Henderson v. Hunter, 59 Pa. 335.

If this devise over to the heirs of the testator is a conditional limitation, it is surely void as being too remote. If a limitation over is void by reason of remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted.

If incorporated at the death of the testator. the society would have taken a fee simple absolute subject to the life estate of testator's widow.

1 Jarman, Wills, 200, 783; Lewis, Perp. 657; 2 Bl. Com. 156; 4 Kent, Com. 130; Co. Litt. 206a, 206b, 223a; Brattle Square Church Proprs. v. Grant, 3 Gray, 142, 63 Am. Dec. 725; 1 Sharswood, L. C. 168; Storrs Agr. School v. Whitney, 3 New Eng. Rep. 573, 54 Conn. 345; Wells v. Heath, 10 Gray, 17; Society for Pro-devisee or legatee at once upon his own death, moting Theological Education v. Atty-Gen. 135 Mass. 285.

Mr. Abram J. Miller, for respondent: It was no doubt the intent of the testator that both parts of the estate should vest at the same time, and clearly this time was upon the death of the widow. It is equally clear that there should be no vesting of any estate until the death of the widow.

The whole instrument should be construed together to determine the intent of the testator. Goebel v. Wolf, 113 N. Y. 405; Everitt v. Ereritt, 29 N. Y. 67; Warner v. Durant, 76 N. Y. 133; Leake v. Robinson, 2 Meriv. 363; Smith v. Edwards, 88 N. Y. 92.

The bequests of the latter clause of the will do not and cannot vest until the death of the widow, when the land is to be sold.

Vincent v. Newhouse, 83 N. Y. 505; Warner v. Durant, 76 N. Y. 136; Patchen v. Patchen, 121 N. Y. 432.

The incorporation of the society previous to the death of the testator's widow enables it to take under the will.

Holmes v. Mead, 52 N. Y. 332; Burrill v. Boardman, 43 N. Y. 254, 3 Am. Rep. 694; Shipman v. Rollins, 98 N. Y. 311; Plymouth Soc. v. Hepburn, 57 Hun, 161.

Peckham, J., delivered the opinion of the

court:

The plaintiff maintains that the devise to

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 devest 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 mean while it will vest in his heirs by operation of law, subject to be devested 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 Dykeman's Baptist Church should then be a duly incorporated society, capable of taking property by devise, then, in that case, he de