#### Jones v. Hart’s Executors.

Tuesday, October 20, 1807.

Attorney in Fact — Suits in Name of.†— A suit cannot be maintained in the name of an attorney in fact, even in a Court of -Equity.

■Legacies — Certainty—Case at Bar — Quasre.—Is a bequest of personal estate “to the Baptist Association that for ordinary meets at Philadelphia annually, to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the descendants of the family of the testator’s father" sufficiently- deiinite and certain to be carried into effect?—

Same — Case at Bar-- Quasre. — Can a society incorporated under the name of the trustees of the Philadelphia Baptist Association claim, by virtue ’ of that bequest, without proving that they were actually incorporated at the time of the bequest, and that they are the same society intended by the testator.

†

Specific Performance — Parties.—An agent for the purchase of land is not a proper party to a bill against the principal for a specific performance, although the agent signed the memorandum for the purchase in his own name. Tavenner v. Barrett, 21 W. Va. 673, citing the principal case.

This suit was brought on the Chancery side of the County Court of Rockingham, by David Jones the appellant, as *attorney*in fact for the Philadelphia Baptist Association, for the purpose of recovering of the appellees, the executors of Silas Hart, a legacy bequeathed, as he alleged, *by their testator to the said Association. One of the clauses of the will, under which the claim was exhibited, was in the following words; “Item, what shall remain of my military certificates (now-funded at Richmond agreeable to an act of Congress) at the time of my decease, both principal and interest, I give and bequeath to the Baptist Association that for ordinary meets at Philadelphia annually, which I allow to be a perpetual fund foi the education of youths of the Baptist denomination who shall appear promising for the ministry, always giving a preference to the descendants of my father’s family.” — Another clause was the following; “After my just debts, funeral expenses, and legacies by me bequeathed be fully paid, what shall remain I give and bequeath to the Association before mentioned, and for the same purpose as the other.”

The power of attorney produced by the complainant was signed by Samuel Jones as president, and William Rogers as secretary of the trustees of the Philadelphia Baptist Association, and authenticated by a certificate from Thomas Mifflin, Governor of Pennsylvania, with the seal of the State annexed, stating that those persons were, at the time of subscribing the same, and now are, the former, president, the latter, secretary, of the said board of trustees, “A body corporate, in law, and in fact, in the said Commonwealth appointed.”

There was no statement in the bill that the Baptist Association was a body corporate. The answer of the executors denied the corporate existence of the Association, and put it upon the plaintiff to prove every thing requisite to shew that they were entitled to receive the legacy. No farther evidence was produced; and the cause coming on to be heard upon bill, answer, and exhibits, the bill was dismissed with costs. The plaintiff appealed to the Superior Court of Chancery for the Staunton District, where the decree was affirmed; from which affirmance the plaintiff appealed to this Court.

For the appellees it was contended,

1st. That there being no evidence of such a corporate body as the Baptist Association, in Philadelphia, and there being no individual named in the bequest, the bequest itself was void:

2dly. That if the bequest was not void, yet there was no evidence to shew that the trustees of the Association who authorised this suit, were the trustees of the Association to whom the legacy was given: and, *3dly. That the plaintiff had shewn no right to maintain a suit in his own name.

Randolph, for the appellant, contended — ■ 1. That the 1st and 2d objections were overthrown by the evidence: for that the existence of such a body corporate as the Baptist Association, in Philadelphia, was sufficiently proved by the certificate of Thomas Mifflin, Governor of Pennsylvania, which is the proper mode of authentication under the act of Congress and our own act of Assembly; that, although no individual was mentioned to whom the devise was made, the executors were trustees to preserve the estate: but,' if there were no trustee, where a trust exists, the *Court of*Chancery will appoint organs for its execution ; that, even if they were not incorporated, the Assembly of Baptists would take; the bequest *212being of personal estate only. Kyd on Corporations says a devise of real estate cannot be made to an Association unless it be incorporated ; and Coke says, “a devise to the parishioners of Dale” is void : but these doctrines do not affect personal estate: 2. That the 3d objection was merely technical. The bill was in the name of David Jones as attorney in fact; but its whole object was stated to be for the benefit of the Association. At common law, this objection might be fatal: but not in equity: eyen a plea in abatement would not lie. His suing in his own name was more beneficial for the defendants, because he was thereby made responsible for the cost. I know of no instance of a bill in Chancery dismissed for such a defect. At any rate, the bill should be dismissed without prejudice. If the principal point, concerning the bequest, is decided' in our favour, we shall be satisfied; for we believe the executors would then pay the money:

Chapman Johnson, for the appellees. Mr. Randolph is right in his last assertion, and in that only: but we trust that the Court, considering the costs are in question, will not reverse the decree, if they think the third point is for us.

The act of incorporation ought to be shewn. But, even if the Governor’s certificate were sufficient to prove the corporation, it does not shew whether they were incorporated at the time when the will was written, or since.

If sufficiently described, they might take in their natural capacities; but here the persons are uncertain, whether associators in Philadelphia, in Pennsylvania, in the United States, or in the world.

*If there was evidence that a certain association known by the name used in the will existed in Philadelphia, it would be sufficient: but of this there is no evidence; and the “Philadelphia Baptist Association’ ’ might be a very different body from the “Baptist Association which for ordinary meets annually in Philadelphia.”

The association itself are only trustees; and the cestuis que trust are still more uncertain; the description of persons entitled to claim the benefit of the bequest being so vague and indefinite that, if a youth of the Baptist Society were before you as a complainant, you could not tell whether he was entitled to have any part of the money applied to this use or not.

Mr. Randolph says there is a difference, as to the right of David Jones, as attorney, to sue in his own name, between a suit in equity and at common law. But what reason is there for this distinction? David Jones is not the proper person to receive the money; he might recover, and never pay it to the association. There was no necessity for a plea in abatement, because the plaintiff’s right of action was denied.

Stuart, on the same side. — 1. There must be a corporate body to be authorised to take under the terms of the will now in question. And, if there was no such body, even if there were trustees designated by name to preserve the devise, it would not be sufficient; because in their natural capacities they could not preserve it forever.

The Governor’s certificate is not sufficient to prove the fact in dispute, because he had no right to decide whether in law they were a corporation, but only to authenticate-the instrument by which they were incorporated. Why is not that instrument produced? When it is considered that the Governor’s certificate was exhibited with the bill, and that the answer denied the fact of incorporation, and demanded proof; its. not being produced is presumptive evidence against the fact.

2. The intention of the testator is *so*doubtful that the devise is void. In the will the word “Philadelphia” is used as descriptive of the place of meeting only. The “Philadelphia Baptist Association” appears to be composed only of the citizens of Philadelphia. The ‘1 association meeting at Philadelphia annually” are probably ^people living at a great distance, and may be citizens of Pennsylvania, or of the United States, generally.

This is a bequest of a trust. The trustees ought therefore to be designated.

In Powell on Contracts, p. 418, a devise to twenty of the poorest of the testator’s kindred is said to be void for the uncertainty, (a) Here it is for the use of the most deserving young men of the Baptist Society I How is this to be ascertained?

Where a devise is to “his son” and he has two sons, or to his son John, and he has two sons by the name of John, it is also void, (b)

2 Bac. Abr. 85. (c) A. devised lands to trustees in fee, in trust to pay debts, &c. and, after those debts paid, then to sell; and, if any of the testator’s name would buy, such person to have the lands 2001. less than the value. This devise was declared to be void; for, if two of the testator’s name should claim the benefit, who must have it? So, here, I say, another Baptist Association meeting annually at Philadelphia may claim.

Randolph, in reply, observed that there was no uncertainty in the persons who might be entitled to receive the benefit of the provisions; that this could easily be ascertained by the managers, whose business it was; that, as to the act of Incorporation, he believed that corporations might be created in Pennsylvania by the executive; and therefore, it was sufficiently authenticated in this case. He argued that it was not necessary to shew a corporation existing at the time of the devise. Wherever a sum of money is given to produce a particular effect thereafter, as for a college when founded; the college when afterwards founded may take. Here it should be understood that the legacy was' given upon a condition that a corporation qualified to. take should exist while the money should remain in the hands of the executors, and the corporation, if not existing at the time, was shortly afterwards created.

The case of Pleasants v. Pleasants, (d) was somewhat similar to this. There certain negroes were to be emancipated when the law would permit, &c. and, a subse-*213■querit law having passed authorizing emancipation, the devise was decreed to take effect.

In 2 Bao. Abr. p. 6, it is said that in devises, if the name of a corporation be mistaken, yet, if there be words sufficient to shew the meaning, it will be sufficient.” There are a number of Baptist Associations in this state: but that in Philadelphia is sufficiently described. But the answer *does not dispute the identity of the association; but only requires proof of the incorporation. The identity is therefore not put in issue. Besides, the words are the same in substance.

In fact there is no difficulty in this cause, «except that concerning the right of David Jones to sue in his own name, which is merely a question of form, and not of substance. If the Court should be of opinion that the devise is not good, they will dismiss the bill; if otherwise, they will direct proper parties to be made. But it is said that he is not the proper person to receive the money. To obviate any difficulty on that score, this Court may specially decree, so that the Baptist Association only could get the money, since it appears on the record that the suit is for their benefit.

JUDGE LYONS.

May they not revoke the power of attorney? If he dies, and the decree is in his name, are not his executors to have the benefit of it?

JUDGE TUCKER.

Why did not your clients shew, from the identity of their description, that no other persons were au-thorised to take?

Randolph. This is a matter which depends on the general history of that society, and general history we have a right to refer to. Besides the identity is admitted in the answer.

JUDGE TUCKER.

The answer puts you upon the proof of every thing.

Saturday, October 24. The Judges delivered their opinions.

JUDGE TUCKER.

This was a bill brought by David Jones, attorney in fact for the President and Trustees of the *‘*‘Philadelphia Baptist Association,” tore-cover a legacy bequeathed by Silas Hart ‘’to the Baptist Association that for ordinary meets in Philadelphia annually. ” The executors admit the legacy, but say that they *‘do not think it safe to pay the same, inasmuch as it was never been shewn that the Baptist Association was at the time of making the will a corporate body; on the contrary, they believe it was not incorporated, either at the time of making the will, or of their testator’s death, and call for proof.” None is produced as to this point. The Court dismissed the bill. '^Without deciding whether the constituents of Mr. Jones have proved themselves to be the objects of the testator’s bounty, or not, since it is possible that some other Baptist Association, that •ordinarily meets in Philadelphia annually, might contest that point with them, I am •of opinion that the bill cannot be maintained in the name of an attorney in fact, even ■in a Court of Equity. The common case -of the assignee of a bond in England, who must, even when he has an irrevocable power of attorney, sue in the name of the obligee, sufficiently proves this I conceive.

My opinion therefore is, that the decree of dismission be affirmed, without prejudice to any right which the constituents of the appellant may have.

JUDGES FLEMING and LYONS concurred.

The decree was therefore affirmed, without prejudice.

(a)

 See also ib. p. 336.

(b)

 Tb. p. 424.

(c)

 1 Veru. 362, Huckstep & Matthews.

(d)

2 Call, 319.