#### John Washburn and Another, as Executors and Trustees Under the Last Will and Testament of John W. Stewart, Deceased, Plaintiffs, *v.*John Acome, as Treasurer of the Church of the Good Shepherd, and The Church of the Messiah, and Lucinda Stewart, Defendants.

(Supreme Court, Saratoga Trial Term,

November, 1911.)

Associations — Powers and rights of association — Holding real estate. Remainders — Effect on remainder of failure of precedent estate. Suspension of power of alienation — Conditions determining • validity of suspension — Limitations suspending alienation for term of years.

An unincorporated church cannot take lands by devise, and a devise of lands to trustees to be conveyed to such church if it becomes incorporated within one year and eleven months from the time of testator’s death is an attempt to effect an unlawful suspension of the power of alienation and is invalid.

The direction to the trustees contained in the same will to convey to the incorporated church of which the former unincorporated church was a branch or mission at the end of two years, if the mission church did not become incorporated within the period mentioned, does not create a trust for the benefit of the incorporated church; but, the former church not having been incorporated and, therefore, unable to take at the testator’s death, no title passes to the trustees but the title vests at once in the incorporated church.

Action to obtain a construction of a will and a determination as to the validity of certain provisions thereof.

Willard J. Miner, for plaintiffs.

*302Archie C. Taylor, for defendant The Church of the Messiah.

Frank D. Morehouse, for defendant Lucinda Stewart.

Kellogg, J. A.,.J.

This action involves the construction and validity of a clause in the last will and testament of John W." Stewart, deceased, which is as follows:

“ *Fifth.*I give, devise and bequeath to the Trustees hereinafter named, for the uses and purposes herein set forth, the following real estate, chattels real, and its and their rents, issues and income, all that certain lot and premises and appurtenances thereto belonging known as lot Ho. 29 Main Street, in the Village of South Glens Falls, Saratoga County, Hew York, in and upon which the Village Lockup is situated at present, and which said lot and appurtenances are incum-' bered by a certain indenture of mortgage in the principal sum of, One Thousand one hundred and fifty dollars ($1,150.) and I will and direct that the said trustees convey said lot, premises and the appurtenances thereto belonging, by a good and sufficient deed of conveyance to the Episcopal Church, called and known a*s*The Church of the Good Shepherd,’ located in the Village of South Glens Falls Saratoga County, Hew York, subject to said indenture of mortgage, and which said mortgage and the bond accompanying the same, the said Church of the Good Shepherd ’ must assume and’agree to pay and save the rest, residue and remainder of my estate harmless from or on account of said mortgage and the bond accompanying the same.

“And I also give, devise and bequeath to the Trusteés hereinafter named, all that other certain lot, premises and appurtenancés thereto belonging and known as lot Ho. 10 Hudson Street, in the Village of South Glens Falls, Saratoga County, State of Hew York, and which said lot is now held under a contract to convey said real estate, to, and purchased by David O’Connor, and I will and direct that the said Trustees convey by a good and sufficient deed of conveyance said lot Ho. 10, premises and appurtenances thereto belonging (subject to said contract to convey) to ‘ The Church of the Good *303Shepherd/ located at the Village of South Glens Falls, Sara-toga County, H. Y., and I also will and direct the said Trustees to assign and transfer said contract to convey said real estate to said David O’Connor to the said The Church of the Good Shepherd *’*hereinbefore mentioned and designated, and that the Church of the Good Shepherd to take, have and to hold said contract and the proceeds thereof, according to its full tenor, and make proper conveyances of the land and property therein described, upon receipt of the payment therein reserved to said David O’Connor, or to whomsoever the said David O’Connor may designate in writing, they, the said Church of the Good Sheperd, to take and have for its own use, behoof and benefit, the full proceeds thereof forever.

“And I also give, devise and bequeath to the Trustees here- . inafter named, all that other certain lot, premises and appurtenances thereto belonging, known as lot Ho. 79 Hudson Street, in said Village of South Glens Falls, Saratoga County and State of Hew York, and which said lot is now held under a contract to convey said real estáte to and purchased by Patrick McGroaty, and I will, and direct, that the said Trustees convey by a good and sufficient deed of conveyance, said lot Ho. 79, premises and appurtenances thereto belonging, (subject to said contract to convey) to The Church of the Good Shepherd, located at said Village of South Glens Falls, aforesaid, and I also will and direct the said Trustees to assign and transfer said contract to convey said real estate to said Patrick McGroaty to the said *‘*The Church of the Good Shepherd ’ hereinbefore mentioned and designated, and that said, The Church of the Good Shepherd ’ take, have and hold said contract and the proceeds thereof according to its full tenor and make proper conveyance of the land and property therein described upon receipt of the payments reserved therein to said Patrick McGroaty, or to whomsoever the said Patrick McGroaty may designate in writing, they, the said The Church of the Good Shepherd/ to take and have the proceeds of said contract for its own use, behoof and benefit forever.

“And I further will and direct that each and every of the conveyances herein in this the Fifth Clause of this my Last *304Will and Testament, directed to be made by the said Trustees herein mentioned be made as soon as practicable after the probate of this my Last Will and Testament, as herein sec forth, and I further will and direct that if in any case or from any cause said Church*,*The Church of the Good Shepherd,’ aforesaid, shall be incapable of taking the bequests or any of them herein designated, and set forth to and for it, and its own use, behoof and benefit, for the space of one year and eleven months after the probate of this my Last Will and Testament, then, and in that event, I direct that the said Trustees within thirty days after the expiration of said one year and eleven months hereinbefore mentioned, convey each and every of said bequests to the Chqrch of the Messiah, located at the Village of Glens Falls, Warren County, Mew York, subject to the same provisions and reservations as herein provided for in directions for the several conveyances to ‘ The Church of the Good Shepherd;’ and I also will and direct that in .the interim between the probate of 'this my Last Will and Testament and the giving of the conveyances herein in this Fifth Clause provided for, that the said Trustees collect all the rents, issues and income of and from each of said premises and contracts and that out of the proceeds thereof they first pay the current expenses and the taxes, assessments and interest due or that becomes due during said interim, on the said mortgage herein in this Fifth Clause mentioned, and also for any necessary repairs to the premises covered by the said mortgage herein in this Fifth Clause mentioned, during the time the Trustees 'shall so retain possession of said premises or either portion thereof set forth in this Fifth Clause hereof, and that the rest, residue and remainder.of all such rents, issues and income so coming into their, possession bé by the said Trustees paid over to the said *‘*The Church of the Good Shepherd ’ on the first day of January, April, July and October in each year, so long as they shall retain possession of said premises or any portion or portions thereof.”

The testator devised and bequeathed all the residue of his estate to Lucinda Stewart, his wife.

The Church of the Good Shepherd is situated at South *305Glens Falls, and is a mission of ‘the Episcopal church under the supervision of the rector of the Church of the Messiah, situated at Glens Falls, FT. Y., who is the priest in charge at such mission. This has been the condition for a number of years, antedating the date of this will, and the same condition now exists.

The Church of the Good Shepherd is unincorporated and makes no claim under the will.

The intention of the testator, which it is the duty of the court to uphold if possible, is quite clear. He intended to devise these various parcels of real estate, subject to their incumbrances and contracts, to a body which he called *“*The Church of the Good Shepherd,” which was not an incorporated body, but which was a mission of the Church of the Messiah, which was incorporated. It is a well established principle, conceded by the society called “ The Church of the Good Shepherd,” that an unincorporated society cannot take by devise. Cruikshank v. Home for the Friendless, 113 N. Y. 337; Fralick v. Lyford, 107 App. Div. 543; affd., 187 N. Y. 524.

The testator was evidently informed as to this legal principle, because his will clearly contemplates a condition in which this proposed devisee would be incapable of taking. He supposed, however, that, even if it was incapable of taking at the time of his death, this branch of the church in which he was interested might become capable by subsequent incorporation, and he attempted to provide a period of time consisting of one year and eleven months during which it might become capable of taking under his will; and, in case of its failure to become so capable, a conveyance was to be made by the trustees to the parent body, “ The Church of the Messiah.”

It is contended that this devise suspends' the power of alienation, contrary to section 42 of the Heal Property Law, because a definite period of time, not dependent upon the terminatipn of human lives, is fixed prior to the execution of the conveyance directed to be made to the defendant, The Church of the Messiah. It is a well established principle that the suspension of the power of alienation for any definite *306period, however short, is illegal ánd invalid. For this reason the testator was in error in his supposition that, if the *“*Church of the Good Shepherd ” was not capable of taking the devise at the time of his death, it could hecome so capable by subsequent incorporation.

Frequent cases have come to the attention of the court where testators have provided in their wills for corporations 'subsequently to be created, but the validity of such devises can only be upheld where the incorporation is directed to take place within the limit of two specified lives. St. John v. Andrews Institute, 191 N. Y. 254, and cases cited at page 267.

In the instrument under consideration, the period provided not being dependent upon the termination of human lives, not only was *“*The Church of the Good Shepherd ” in-, capable of taking at the time of the testator’s death, but it was not legally possible for it thereafter to become capable of taking by subsequent incorporation. This leaves the bequest to it, both as.to the property and as to its rents and profits, not only wholly invalid but, further, such invalidity was apparent at the moment that the testator died, and incapable of cure by any action which could have been taken under any condition which might thereafter arise. Therer fore, there was no suspension of the power of alienation, on account of the uncertainty of the devisee, nor on account of the creation of a trust, because no valid trust- had been created. Real Prop. Law, § 96.

In view of this condition existing, *eo instanti*at the death of Stewart, the situation was the same in law as if his will merely provided that, within thirty days after the expiration of one year and eleven months, the trustees should convey the property described to “ The Church of the Messiah.”

This duty to convey is not a valid trust permitted by law and, if it is of any importance whatever, it comes within the provision of section 99 of the Real Property Law, which provides as follows: " Where an express trust relating to real property is created for any purpose not specified in the preceding sections of this article, no estate shall vest in' the trustees: but the trust, if directing or authorizing the perforin*307anee of any act which may he lawfully performed under a power, shall he valid as a power in trust, subject to the provisions 'of this chapter. ’ Where a trust is valid as a power, the real property to which the trust relates shall remain in or descend to the persons otherwise entitled, subject to the execution of the trust as a power.”

It may be seriously questioned whether it would have been necessary for the trustees to wait for the expiration of the specified period before conveying to the Church of the Messiah, because the evident intention of the testator was that, as soon as it developed that “ The Church of the Good Shepherd ” was incapable of taking, the Church of the Messiah stood in the position of a substituted devisee; and, inasmuch as this condition developed immediately upon the death of the testator, it’might very well be urged that, at that time, the Church of the Messiah was entitled to a conveyance under the will.

I think the position of the Church of the Messiah is substantially the same as that of the substituted devisees in the Cruikshank case above referred to.

Under the facts and the law, therefore, the only duties of the executors in regard” to the parcels of land devised by this clause are such as devolve upon donees of a power.

The title to the real estate in question is vested in the Church of the Messiah and has been so at all times since the death of Stewart, irrespective of the execution of the power by the executors. Matter of Livingston, 34 N. Y. 555; Adams v. Perry, 43 id. 487; Watkins v. Reynolds, 123 id. 211; O'Donoghue v. Boies, 159 id. 87, 97.

The conveyance by the executors would not have the effect of increasing in any manner the title of the Church of the Messiah, but the execution of such conveyance is a duty devolving upon such executors under the will, affording to the devisee an additional muniment of title, rendering it somewhat easier for them to establish their rights, should it thereafter become necessary in any proceeding at law and equity.

A decision may, therefore, be prepared, construing the *308will as to the various subjects upon which the plaintiffs wish advice as follows:

*First.*That the gifts to “ The Church of the Good Shepherd *”*are invalid.

*Second.*That the gift to The Church of the Messiah is valid, and The Church of the Messiah became the devisee of the property devised, and its title thereto and to the rents and profits accruing therefrom vested upon the death of John W. Stewart.

*Third.*That the residuary legatee, Lucinda Stewart, has no title or interest in the parcels devised under the fifth clause of the will.

A decision may be prepared accordingly.

Judgment accordingly.