State ex rel. Wiltbank v. Bates

Curia per

The act of assembly points out the mode in which religious societies can lawfully take and hold real estate. It is by deed alone, and cannot be done through a last will; all devises, therefore, of land to a religious corporation, are void. So too a devise to such a corporation of money to arise out of land by sale or otherwise is void. The law holds the proceeds as realty, and a devise of the proceeds subject to the same rule as a devise of the land itself.

The devise in question is of the nett proceeds of sale of the testator’s real estate, to the trustees of the Methodist Episcopal Church in Dover, by whatsoever name they may be known in law, to be by those trustees applied in such manner as they shall devise, towards educating poor children of members of that church.

This is a direct devise to the trustees of the church in their corporate capacity, for the benefit of the poor children of the members of the church. It cannot avail or take effect under the act of assembly of 1787, Digest 459, for under it all devises of land to religious corporations are void; nor can it be sustained under the act of 17 Geo. 2; (Dig. 457,) on the ground of its being a devise for charitable purposes, for by the 4th section of that act it is declared, that such societies, or any persons in trust for them or to their use, shall not be authorized by that act to take or receive any lands, &c., by gift, grant, or otherwise, for or towards the maintenance or support of the said churches, houses of worship, schools or almshouses, or the people belonging to the same, or for any other use or purpose, save for the uses in that act mentioned.

This was an enabling act in favor of religious societies, to give them a power to do what previously they could not legally do. It *23authorized them to take land by gift or otherwise, “ for burying grounds, erecting churches, houses of religious worship, schools and almshouses,” but also declares that they shall not be thereby authorized to take lands, &c., for the support or maintenance of such churches, schools, &c., or the people belonging to the same, or for any other use or purpose. Under this act such societies have no power to take lands for the support or maintenance of churches or schools, or the people belonging thereto, or for any other purpose than those specified in the act; that is, for burying grounds, erecting churches, places of worship, schools and almshouses. Corporations are the creatures of the law — they exist by the law, and in the manner and for the purposes and objects specified in the law creating them; when created, they cannot exercise a power which the law creating them has expressly denied to them. This society cannot avail itself of this devise under the act of 1787, for it cannot take lands under that act in this way, and the sales of land are to be taken as we have said, as land itself. It cannot establish any title or right to it under the act of Geo. 2, as being a devise for charitable purposes, for the power of such a society to take lands or its proceeds for the maintenance or support of schools, or for any other purposes than those declared in the act is negatived and denied. To allow them to do this to sustain a charitable devise, would be to admit them to have a capacity and power which the law creating such corporations, declares they shall not possess. This cannot be done even in a court of equity, and for charitable purposes.

Under the act of Geo. 2, such a corporation had the political capacity to take lands by devise, prior to the act of 1787 : it authorized them to take in this way, for certain purposes which are enumerated, and for certain purposes only; the maintenance and support of schools is not one of these purposes, and is so expressly declared; — - they were not authorized to take lands “for any other purpose” than those specified. This religious society, therefore, cannot sustain a claim to a devise of the sales of land for educating the poor children of its members. Judgment must, therefore, be given for the plaintiffs, the heirs at law of the testator, who are entitled to the proceeds of sale of the land remaining in the hands of the administrator.