It is no objection to the authority of The New Rochelle case that it was a suit in equity; for in a case like the present, where nothing is wanting but a competent party to sue or be Upon the whole, I am of opinion that the sued whenever that party comes in esse, there Act of Incorporation was at least equivalent to can be no reason why the suit should not be at the king's sign-manual, and vested a good legal law, if courts of law are competent to give re-estate in the tenant. That although in the inlief. Had the devise been void in the case referred to, the estate must have vested in the legal representative, and could no more have been shaken in equity than at law.

terval it should have descended upon the heir, it descended subject to be devested and passed over by that exercise of prerogative power. But I perceive no necessity for admitting that But I have said that the defendant here it ever descended upon the heir; since the right of might dispense with the aid of the peculiar succession seems rather to be in the Commonprinciples of the law of charities; and my opin-wealth in the case of charities, as parens patriæ. ion distinctly is, that the devise is good upon general principles in every respect, unless it be in the time of vesting; then it is not restricted within the legal limits, since the Legislature may, by possibility, never constitute the corporation contemplated in the will.

in the cause, mainly in the order in which they were discussed by the counsel. It is not without reluctance that I deviate from my usual practice of submitting in silence to the decisions of my brethren when I dissent from them; and I trust that the deep interest of the questions and the novelty of the aspect under which some of them are presented, will furnish an apology for my occupying so much time.

But the difficulty is in arriving at the conclusion upon the terms of the will that the testator did mean any devise to them in their private capacities. It is manifest from his language that he did not devise to the then chancellor, mayor and recorder, etc., etc., in their private capacities, because his language is that it is to the chancellor, etc., etc., "for the time being, and their respective successors in The first point is, whether the devise in the the said offices forever." It is, then, a devise to will of Robert R. Randall of the lands in ques-them, as officers, during their continuance in tion is a valid devise, so as to devest the heir-office, and the estate is to go to their succes. at-law of his legal estate, or to affect the lands in his hands with a trust.

In considering this question, it appears to me that this court is to look into the terms of the 146*] will, and to construe *it according to the intention of the testator. That intention has been justly said to constitute the pole star to guide courts in the exposition of wills. When the intention is once fairly ascertained, it is wholly immaterial that it cannot be carried into effect by the principles of law; for our duty is to interpret, and not to make wills for testators.

sors in office forever; so that none of the devisees are to take any certain estate to them. selves, but only while they continue in office. It is said that the court may reject the latter words if inconsistent with the avowed intention and objects of the will. If the other language of the will required an interpretation of these words different from the ordinary meaning there might be good ground for such an argument; but that the devise will, in point of law, become ineffectual if they are not rejected, furnishes no ground for the court to exclude them. Words which are sensible in the place where In looking at the terms of the present devise, they occur, and express the testator's inten it appears to me clear that the testator's intention, are not to be rejected because the law tion was to vest in certain persons in their offi- will not carry into effect that intention. If it cial, and not in their private capacity, all the were otherwise, courts of law would make wills residue of his estate for a certain charity, and not construe them. But what ground is stated in the devise. The language is, "I give there to say that the words "for the time beand bequeath the same unto the Chancellor of the State of New York, the mayor and record-ing" and "their successors in office" ought to er of the city of New York, the president of be rejected? The former clearly designate what the Chamber of Commerce," etc., etc. Did he by chancellor, mayor and recorder, etc., etc., are these terms mean to devise to the individuals meant. How, then, can the court take one part who then occupied these offices the estate in and reject the other part of the description? question, or to the persons who might hold How can the court say that the testator meant them at the time of his death, or to the per- the then incumbents in office, when he has sons who might successively from time to time spoken of them as the incumbents for the hold them? It was certainly competent for time being? His intention clearly is that the him to devise to them personally, and in their charity shall be a perpetuity. He devises to private capacity, by their official description. the successors in *office forever. They [*148 If a testator were by his will to give an es- are to be the administrators of the charity fortate to the Bishop of New York for life, or to ever. Upon what ground can the court exhim and his heirs, without giving him his Chris- clude the successors from the administration tian or surname, there is no doubt that the de- of the charity, when the testator has so desigvise might well take effect as a devise to the nated them? Why may we not equally well then incumbent in office as a descriptio per-exclude the present incumbents as the future! sonæ. The law does not require, to make a de- Both are named in the will; both are equally vise or legacy valid, that the party should be within the view of the testator of equal re designated by his name of baptism or surname.

It is sufficient if he be pointed out by any de-ard. Suppose all the other incumbents had scription, leaving no room for doubt as to the died, or had been removed from office, is there identity and certainty of the person. A devise a word in the will that shows that they or to the eldest son of A is just as good as if their heirs could still act as trustees when they his name were given. A devise to the present ceased to possess office in exclusion of the actu If not, how can the court President of the United States could be just al incumbents? as good as if his name were written at large say that it will defeat the main intention as in the will. The maxim of law is, that the to the administrators, and yet fulfil the char. designation must be certain as to the person ity as the testator designed it should be exe to take; and id certum est, quod certum reddi cuted. potest. There is no doubt, then, that the chancellor, mayor and recorder, etc., etc., of New York might take as individuals, if such were the intention of the testator. I go farther, and say, that if the testator did intend the present 147*] devise to them in their *private char acters, they would take not merely an estate for life in the premises, but an estate in fee. My reason is that the scope and objects of the charity, being perpetual, require that construc-testator adds, "it is my intention that the intion of the will to carry into effect the inten- stitution hereby directed and created should be perpetual, and that the above-mentioned offi cers for the time being, and their successors

tion of the testator.1

1.--Cruise's Digest, Devise, ch. 11, sect. 72.

But this exposition does not rest on a single clause of the will. It pervades it in all the important clauses. In another clause of the will the testator directs, that the trustees shall administer the charity "in such manner as the said trustees or a majority of them may from time to time, or their successors in office may And, again, the from time to time direct."

Peters 3.

His

report of the same case, Attorney-General v. Downing, Amb. 550, 571, and Attorney-General v. Bowyer, 3 Ves. 714, 727, I should deduce the conclusion that the case turned upon the peculiar doctrines of the Court of Chancery in respect to charities; and that Lord Camden's opinion was founded on that. judgment is not, as far as I know, in print; and whether he thought that at law a devise in futuro to an executory corporation would be good, does not appear. In the case before him he acted upon it as a charitable trust, not as a devise of the legal estate.1

should forever continue and be the governors | Lord Chief Justice Wilmot's opinion (Wilmot's thereof, and have the superintendence of the Opinion, p. 15); it is a sufficient answer that same." Here is a most deliberate restatement such is not the present case. From the other of his intention and objects. The governors and administrators of his charity are not to be the then incumbents in office, but the officers for the time being; not the individuals when out of office, but their successors in office. What right, then, can this court have to say that the successors in office shall not be governors? Would it not be a plain departure from the express intention and solemn declarations of the will? The testator seems to have been apprehensive that, after all, there might be some impediment in carrying his intention into effect. What, then, does he provide? That his intention shall be disregarded? That provisions of his will, as to successors, etc., etc., shall be disregarded or rejected? No, so far from it that he goes on to provide for the 149*] emergency, so as to *give full effect to his intention. His words are, "that it is my will and desire that if it cannot be legally done according to my above intention by them (the trustees) without an act of the Legislature, it is my will and desire that they will as soon as possible apply for an act of the Legislature to incorporate them for the purposes above specified." So that the successors in the manner above mentioned constituted a primary, as well as a perpetual object of the devise. It seems to me so plain and clear upon the language of the will, that the testator never abandoned the intention of having the trustees take in their official and not in their private capacity, that, with great deference to the judgment of others, I am unable to perceive any ground on which to rest a different opinion.

But it is said that there are cases in which it has been held that a devise to persons in their official capacity is good to the party in his natural capacity; and that it is not true that because the devisees cannot take in succession they cannot take at all: a case from Brook's Abridgement, title, Corporation, pl. 34, is relied on. There the principal point was of a different nature: whether a corporation composed of a master and fraternity could present the master to a benefice. And Pollard, J., on that occasion said: "If J. S. is dean of P., I may give land to him by the name of dean, etc., and his successors, and to J. S. and his heirs, and there he shall take as dean, and also as a private man; and he is tenant in common with himself." Now, the plain meaning of this is, that because he took one moiety in his official capacity to him and his successors, that did not disable him to take the other moiety to him and his heirs, but he held the latter in his private capacity. Another case is from Co. If this is so, then it is next to be considered Lit. 46 b., where it is said, if a lease for years whether such devise is void at law. I am be made to a bishop and his successors, yet spared the necessity of going at large into that his executors and administrators shall have it question by the decision of this court in the in autre droit; for regularly no chattel can go case of The Trustees of the Philadelphia Bap- in succession in case of a sole corporation, no tist Association v. Hart's Executors, 4 Wheat. more than *if a lease be made to a man [*151 Rep. 1, where the subject was very amply dis- and his heirs it can go to his heirs. Now, in cussed; and for reasons, in my judgment unan- the case of a sole corporation, it is manifest swerable, it was there decided that such a de- that the intention is to give the chattel to the vise was void at law. Upon that occasion I had actual incumbent in office for his life, and he prepared a separate opinion; but that of the is entitled to hold it beneficially. But no Chief Justice was so satisfactory to me that I chattel can pass in succession; and then the did not deem it necessary to deliver my own. question arises whether the court will declare If the devise was void at law at the time the gift void as to the residue of the term, or when it was to have effect, viz., at the death of consider the gift absolute. The construction the testator, the subsequent Act of the Legisla- adopted has been to consider the intent to be ture of New York could not have any effect to executed cy pres; and, as the testator intended devest the vested legal title of the heirs of the to give the whole, to vest the term absolutely testator. The devise was not a devise to a cor- in the bishop, and then by operation of law it poration not in esse, and to be created in futuro. would go to his assigns. But this is a case It was a devise in presenti, to persons who of a sole corporation, where the party is cashould be officers at the death of the testator, pable to take in his corporate, as well as in his and to their successors in office. The vesting natural capacity for life. The present is a case of the devise was not to be postponed to a fu- of aggregate persons not capable of taking in a ture time, until a corporation could be created. corporate capacity. To give the estate to them It was to take immediate effect; and if the in their natural capacity, and for life only, trustees could not exercise their powers in the would defeat the testator's intention; for he manner prescribed by the testator, they were meant a perpetuity of trust, and to persons in to apply to the Legislature for an act of in- office, however often the incumbents might corporation. Assuming, then, that a devise per-change: to give them in their natural capaci verba de futuro to a corporation not in esse 150*] which is to take effect when the corporation should be created, would be good and vest, by way of executory devise, in the corporation when created, as seems to have been

ties an estate for life when not officers would defeat the primary object which he had in

1. See also, 1 Roll. Ab. Devise, H. sec. 1; Com. Dig. Devise, K.

2. See Co. Litt. 9 a.

view. He meant no beneficial interest to any | Rep.
incumbent, but a charitable trust to a succes-
sion of official trustees.1

V.

10; and of Attorney-General *Bowyer, 3 Ves. 714, 717, would alone [*153 be decisive; but there are many others to the It is also said that in a will a particular may same effect.2 Whether the statute of 43 Elizabe made to yield to a more general intent. beth is in force in the State of New York, or Certainly it may; but then the difficulty in the whether, independent of any enactment, a application of this rule to the present case is, court of equity could enforce this as a charitthat the argument insists upon a construction able trust in the exercise of its general juriswhich I cannot but deem an overthrow of the diction, or as the delegate, for this purpose, of general, to subserve an intent not indicated. the parental prerogative of the State; or Because the testator has expressed an intent to whether such court could hold it utterly void; be carried into effect one way, which cannot it is unnecessary for us to consider; that point consistently by law be so; and the court can see may well enough be left to the decision of the another way by which he might have carried proper State tribunal, when the case shall come it into effect, if he had thought of it; it does before it. At present I do not think it necesnot follow that the court can do that which sary to say more than that if the trust be utthe testator might have done, and new-model terly void, then the heirs would by operation of the provisions of the will. If a testator should law take the legal estate stripped of the trust. per verba de presenti devise an estate to a cor- If the trust be good, then it is knit to the es152*] poration not in esse, and he knew tate, and the heirs take it subject to the trust. the fact, or mistook the law, the court could But it is said that if the trust be valid, the not construe the words as de futuro, and de-Legislature had a perfect right to enforce it, clare it a good devise to a corporation to be and their Act of Incorporation amounts to a created in futuro. The case in 1 Roll. Abridg. legal execution of the trusts, and vests the esDevise, H. 1, 50, is decisive of that. The gen- tate in the corporation. Now, whatever may eral intention here appears to me to be to cre- be the rights of the State as parens patriæ to ate a perpetual trust in certain trustees in suc- enforce this charity, it can enforce it only as a cession, for charity; and I can perceive no par- trust. If the legal estate is vested in the heirs ticular intent, as distinguishable from that gen- subject to the trust, the Legislature cannot by eral intent. The perpetuity, the succession any act, ipso facto, devest that legal title, and and the trusteeship are in his view equally sub-transfer it to the corporation. It is one thing stantial ingredients. So far from allowing any to enforce a charitable trust, and quite another other than the official trustees to administer it, thing to destroy the legal rights of the parties he even points out that if the trust cannot be to which it is attached. If the devise had been executed by them, the estate, if it descends to to certain trustees by name, upon trust for the his heirs, shall descend clothed with a trust. charity, could the Legislature have a right to And he even appoints the same trustees and devest the legal title? The case of The Trustheir successors in office executors of his will. tees of Dartmouth College v. Woodward, 4 I come now to the other part of the question, Wheat. Rep. 518, in its principles, bears against whether, if the devise be void at law, the es- such a doctrine. The right to enforce the trust tate in the hands of the heirs is affected with and operate upon the legal estate is a right to the trust in favor of the charity. It appears to be exercised by judicial tribunals, and not by me most manifest that it is affected by the legislative decrees. The doctrine of the Sutrust, if we consult either the intention of the preme Court of New York is that the Legislatestator or the express terms of the will. The ture thereof has no authority to devest vested closing paragraph of the will is, in my view of legal right.3 it, decisive, as creating an express trust in the *But I cannot admit that the Act of [*154 heirs. "It is," says the testator, "my desire, Incorporation was intended to have such an efall courts of law and equity will so construe fect; it has no terms which devest the legal this my said will, as to have the estate appro- title of the heirs; it merely incorporates the priated to the above uses; and that the same trustees and their successors, and clothes them should in no case, for want of form or other-with the usual powers to carry the trust into wise, be construed as that my relations or any other persons, should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified."

effect. It presupposes that the estate was already vested in them by the will. They are made "capable in law of holding and disposing of the estate" devised by the will. It is true If no trustees had been named in the will to that the uses are added, "and the same (esexecute the charity, it seems to me very clear tate) is hereby declared to be vested in them that these terms would have created a trust in and their successors in office for the purposes the heirs. There cannot, as I think, be a doubt, therein (in the will) expressed." But this was that independent of the statute of mortmain, not, as I think, intended to vest the estate in (9 Geo. II. ch. 26), the present devise would be them as a legislative investiture; but to deheld a good charitable devise, and would be clare that the estate was vested in them for enforced in equity, at least since the statute of the purpose of the charity and not other43d of Elizabeth of charitable uses. The case wise. The preamble of the act, too, shows of White v. White; of Attorney-General v. that the trustees did not ask to have the Downing, Amb. Rep. 550, 571; of Attorney-estate vested in them, but that inconveniences General v. Tancred, Amb. 351; S .C. 1 Eden's had arisen in the management of the es1. See 2 Preston on Estates, 5, 6, 7, 46, 47, 48, | Duke Charitable Uses, by Bridgman, pp. 361, 374, Common Dig. Estates, a, 2. 375, 390.

2. See note on Charitable Uses, 4 Wheat. Rep. Appendix, 1, 11, 12: Coggeshall v. Felton, 7 Johns. Ch. Rep. 292; Kirkbank v. Hudson, 7 Price, 212.

3. Dash v. Van Cleek, 7 Johns. Rep. 477; Bradshaw v. Rogers, 20 Johns. Rep. 103; Catlin v. Jackson, 8 Johns. 520; Terrett v. Taylor, 9 Cranch, 93; Wilkinson v. Leland, 2 Pet., 627, 657.