Smith v. Hammond

By the law of England, and which, as such, became the law of the colonies, lands were devisable in virtue only of the statute of Henry VIII. commonly known as the statute of wills. Special customs were exceptions to the common or general law; but, being local, they formed no part of our law, and the right or *338P°wer to devise, granted by the statute, being expressly limited or restricted from extending to a right or power to devise to corporations, the devise in the will of Israel Smith to the trustees of Brookhaven, ought, therefore, to be adjudged void; so, that on his death the lands descended to the lessor of the plaintiff as his heir at law. This must be admitted, unless, as is contended for on the part of the defendant, by our statute of the 6th April, 1784, enabling churches, 8cc. to incorporate themselves, they are constructively, with respect to lands possessed or held by them, at the time of their incorporation, made capable to take by devise ; and that, to that end the incorporation is to relate to the death of the testator, so as to overreach the rights of all others claiming under him.

It must be acknowledged, that if the words devised and devise in the 4th section, had either been wholly omitted, or if in the sentence in which they are found, they had been made expressly to refer only to goods or chattels, there would not then have been a possible ground for a constructive capacity in these corporations to take and hold hmds also by devise; the question, therefore, between the parties may be more precisely stated to be, whether the construction contended for is necessary, in order to satisfy these words, or to give them their requisite due sense and meaning, considered as predicates or relatives, and the words lands, tenements, hereditaments, goods and chattels considered as subjects or antecedents.

The rule reddenda sunt singula singulis is obviously applicable in this case, and by a transposition, equally obvious, the sentence may be made to read “ all temporalities, whether the same consist of lands, tenements, hereditaments, goods or chattels given or *339granted, or of goods or chattels devised,” See. whereby a perfect, although a less extensive sense and meaning, will be given to the word devised, and its concomitant devise, and the sentence will be rendered consistent both with itself and with law, and especially with the concluding sentence in the section, “ that the trustees shall hold the church and lands thereunto belonging, by whatsoever name or person the same were purchased or had, or to them given or granted, in as Jitll a manner as if they had been legally incorporated, and made capable to take, receive, purchase, have, hold, use and enjoy the same”

The only manner in which, had they been incorporated, they were capable of taking, See. being by gift or grant, and not by devise, it is, therefore, not unworthy of notice, that in the latter sentence the word devise is omitted, and the words, given or granted only used, to which may be added, that if the construction contended for by the defendant is to obtain, then this consequence will follow, that the legislature must be supposed to have intended to give to a church a capacity to hold lands taken or acquired as it were before their incorporation, and refuse to them a capacity to take and consequently to hold lands acquired after their incorporation, and without a reason for the discrimination ; for, whether the acquisition was before or after the incorporation, or whether it was by gift or grant or by devise, was immaterial, as long as the value was within the sum limited by the statute. As to the argument deduced from the expression in the statute, “ although such gift, grant or devise may not have strictly been agreeable to the rigid rules of law,” and that the restriction or limitation in the statute of wills from devising to corpora*340tions is to be considered in the nature of a strict or rigid rule of law, and therefore intended to be dispensed* with by these provisional expressions, it would be sufficient to observe, that it is only colourable at best •

I will, however, in answer, state, that if the will in the present instance had, after the possession and incorporation of the Baptist church, the cestui que trust in it, been discovered to have been attested by only two witnesses, the heir at law would be entitled to recover the lands; this I assume, as unnecessary to be demonstrated, and therefore, if the expressions cited were not competent to cure a mere imperfe'etion in the devise, surely they must be less so wholly to create a devise ; if they must yield to the rule, and of questionable utility in the statute of frauds, much more must they yield to the rule confessedly highly provident in the statute of wills. I will only add, "that supposing the statute of Henry VIII. never to have passed, and that we had not had, as was the fact, any statute of wills of our own, till the present one of 1787, would the incorporating statute now under consideration, in such case have been deemed impliedly to alter the common law, so far as to give a right to devise to a church, congregation, or other religious society only ? if not, and the statute of Henry VIII. having passed, and with the express restriction or limitation already mentioned, should we now, therefore, decide for the defendant, will it not follow from the decision, that terms less explicit and less forcible will suffice for an implied enlargement or extension of an express restriction or limitation in a grant of a right or power, than for an implied right or power, no otherwise to be considered as prohibited, except as *341it liath never been positively granted? Where shall we find the rule or principle for the difference in this * * respect' in the two cases ? My opinion is'that the words devised and devise in the statute, refer only to goods and chattels, and that to make them refer also to lands, tenements, and hereditaments, would be a construction too extensive "to be warranted by law, and consequently that there must be judgment for the plaintiff

Judgment for the plaintiff accordingly.