Downing agt. Marshall. be tolerated in a purely representative government, where a degree of equality in social condition is indispensable. And he thinks those provisions were not designed to, and do not at all affect conveyances or testamentary gifts to religious or charitable corporations. It is seen that this is but the opinion of the learned judge, and not that of the court. And to whatever authority it is entitled, as coming from so distinguished a source, (and no one holds it in higher estimation than myself,) it is but the opinion of the learned judge himself, and not that of the court. We are at liberty, therefore, to hold that it is not a binding authority upon us; and if the reasons given for the views expressed fail to convince our judgments, we are not embarrassed by their expression. I quite concur that these provisions of the statutes were devised for the purpose of restraining the evils so truthfully depicted, but great as they were, they are of far less magnitude than the adoption of a system which will inevitably withdraw from commerce, and render inalienable, a large portion of the real estate of the state. If the courts in this state will adhere with the same fidelity to the provisions of the statute abolishing uses and trusts, and to the prohibition upon corporations taking lands by devise, that the English judges have in supporting parliament in the adoption of the mortmain act and enforcing its provisions, we shall not see here the state of things once prevailing there. I think the reasons given by Justices STRONG and EMOTT, in McCaughal agt. Ryan, (27 Barb., 285-292,) show conclusively that Williams agt. Williams did not decide that trusts of real estate could be created for purposes other than those authorized by the statutes. At the same term at which Williams agt. Williams was decided, the case of Tucker agt. St. Clement's Church was also decided, and it is claimed that that case is an authority for the appellants' position. That case is our authority for holding that a conveyance of real estate to a religious corporation, authorized Downing agt. Marshall. by its charter to take and hold real estate for the purposes of its organization, was valid and could be sustained. The estate was conveyed to the church upon the trust that the rents, issues and profits thereof were to be appropriated for the support of the rector. No opinion was given in this court on the affirmance of the judgment of the superior court of New York. The case in that court is reported in 3 Sand. S. C. R., (242,) and that court held that the real estate was granted to the corporation in trust for a use or purpose comprehended in the general object of its incorporation, and which, by its charter, it was authorized to take, and therefore it was a legal and valid grant. It is therefore believed with great confidence, that neither of these cases assumed to decide, or did in fact decide, that a devise of lands to trustees in trust for a purpose or object not defined or authorized by the Revised Statutes, could legally be made since the adoption of the Revised Code. Uses and trusts, except as authorized by that article, as we have seen, were abolished. They were thereafter inhibited, and rendered incapable of creation. If the statute had read, all uses and trusts, it could not have been more emphatic; and applying the rules of construction to this statute which have received the sanction of this court, and have already been adverted to, there would seem to be no reasonable doubt on the subject, or any tenable ground upon which an opposite argument can be reared. In the case of Shotwell agt. Mott, (2 Sand. Ch. R., 46,) vice-chancellor SANDFORD advances the opinion that the Revised Statutes have no application to charitable uses and trusts. He says: "That it was not the intention that they should affect those trusts, clearly appears by the notes of the revisers accompanying this article, when it was submitted to the legislature. They proposed sweeping and radical changes in the existing law of uses and trusts, and state their reasons and objects fully and elaborately. But there is not one word upon the subject of charitable uses. They Downing agt. Marshall. were treating wholly of private uses and trusts; of those intricacies and refinements in the dealings of individuals with real property, which have perplexed conveyancers and filled the courts with litigation. They proposed to cut up this class of estates by the roots, and the legislature adopted their suggestions and destroyed it most effectually." He says, however, that the gift in that case was not of land but of money-that it was literally a bequest of personal property. The remarks of the learned vicechancellor in reference to the trusts authorized by the sta tutes in lands, had no application whatever to the case then under consideration, and were therefore mere obiter dicta. I have quoted them thus fully, as they are the views of the only judge in this state, with one exception hereafter noticed, that has fallen under my observation, who maintains thus broadly the total inapplicability of the provisions of the Revised Statutes to trusts in lands, where the trusts are created for a religious or charitable purpose. The next case, where the subject now under discussion was considered, is that of Ayres agt. The Methodist Church, &c., (3 Sand. S. C. R., 351.) The devise there was to the trustees of the Methodist church, of certain real estate in trust, to receive the rents and profits thereof, and apply the same to the support and maintenance of one or more moral, worthy persons, of the age of sixty years and upwards. The opinion of the court was delivered by DUER, J., who had previously rendered the opinion in the case of Tucker agt. St. Clement's Church, and it contains a masterly review of the state of the law at the time of the repeal, in this state, of the statute of Elizabeth and the mortmain acts. He demonstrates conclusively, to my mind, that by such repeal, it was never intended to revive the clerical doctrine of pious and charitable uses as it prevailed in England before the reformation, and during the prevalence of which, as Lord HARDWICKE says, (1 Vesey, 224,) the Downing agt. Marshall. clergy and religious houses had continued to possess themselves of nearly one-half of the whole of the real property of the kingdom, and he wonders they did not get the rest, as people thought they thereby purchased heaven. Judge DUER says: "We cannot suppose that the legislature meant to condemn and reject the policy upon which the statutes of mortmain are founded, a policy which the most enlightened statesmen and jurists have constantly approved, and the observance of which the very nature of our institutions seems to demand. This policy, so far from having been abandoned, had been strictly adhered to and followed in retaining the prohibition to corporations to take by devise, and in limiting the amount of the property that religious corporations are permitted to hold. The object of these provisions is exactly the same as that of the statutes of mortmain, namely, to prevent real property from being locked up in perpetuity, and to save persons, in extremis, from being led by false motives of merit or duty so to dispose of their estates as to impoverish, perhaps to leave in actual destitution, their families or dependent relatives. (4 Kent's Com., 507.) The same policy has been constantly adhered to by the course of legislation in this state, and has found expression in the general act to incorporate benevolent, charitable, scientific and missionary societies, passed April 12, 1848. (Laws of 1848, p. 447.) It is found in the sixth section of that act, which is as follows: "Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars, provided no person leaving a wife or child or parents shall devise or bequeath to such institution or corporation more than one-fourth of his or her estate, after the payment of his or her debts; and such devise or bequest shall be valid to the extent of such Downing agt. Marshall. one-fourth. And no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator." Judge WILLARD, in his Treatise on Equity Jurisprudence, says that this provision was made to guard against improvident testamentary dispositions of property by persons in extremis, in derogation of the claims of near relatives. (Willard's Eq. Juris., p. 576.) It cannot fail to be seen, that if we hold that testators may evade this statute, by giving by will their lands to trustees for the benefit of corporations, we entirely circumvent the benign intentions of the legislature, and effectually defeat the objects sought to be attained by the legislature. We permit to be done indirectly what the legislature have prohibited in the most positive and direct terms. To permit a trust to be created, as is sought to be done in this case, the object of the sta tute is utterly thwarted. Mr. Justice DUER, in the case of Ayres, (supra,) also says "that as charitable uses are most plainly and directly repugnant to the statutory provisions in relation to trusts and perpetuities, they are now to be considered as posi tively forbidden, and therefore abolished." He further says, and I quote at length, as the source from which the remarks originate give to them peculiar weight and authority, "that they" (charitable uses) "are embraced within the terms of these statutory provisions; terms as explicit, as strong and as comprehensive as the language can furnish, it is impossible to deny, and we yet remain to be convinced that they are not just as certainly embraced within their spirit and policy. At any rate, to declare that they are not, and upon that ground to introduce an exception which there is not the slightest evidence was ever contemplated by the revisers or by the legislature, would seem to us, as at present advised, an unjustifiable if not unexampled stretch of judicial power. It is said (referring, doubtless, to the opinion of vice-chancellor SANDFORD in Mott agt. |