The opinion of the court was delivered by

The plaintiff, an inducted Roman Catholic priest, claims the premises, as answering the description of the devisee in the will of the Rev. Mr. Browers. The defendant holds under a lease from trustees appointed by a private act of assembly, to execute the trusts of the will, before the congregation had obtained its charter of incorporation. Neither party doubts the right of the plaintiff to have the profits applied to his maintenance; and the contest is, consequently, about the right to the immediate management of the estate. Were the devise interpreted strictly according to the meaning of the words, it would be impossible to carry the Intention of the testator into effect, for want of trustees to perpeT tuate the application of his bounty to the successive objects of it. A devise to an officiating priest and his successors, not being a corporation sole, is against the policy of the law, and void, as tending to a perpetuity; and this was the reason, I presume, why the legal title, which it was supposed had escheated to the commonwealth, was vested in trustees for the uses declared in the will. But we are ' to interpret this devise as if the legislature had not interfered; and we can prevent it from failing of effect for want of a trustee, only by holding, in] accordance with what, notwithstanding the literal meaning of the words, was undoubtedly the actual intent, that the devise was for the maintenance of a priest, but- in ease of the congregation; and consequently for its benefit alone. Now, although the congregation was not incorporated at the death of Mr. Browers, *52yet by the decisions of the court, a gift to a charity shall not fail for the want of a trustee, but vest as soon as the charity has acquired á capacity to take. But before the congregation had acquired that capacity, the legislature had vested the title in trustees, under whom the defendant claims. It is unnecessary to inquire into the consequences of this act, as the legislature interfered no farther than to vest in those trustees whatever might have escheated to the commonwealth, without at'all meaning to alter the trusts in the will. But there was in fact no escheat, the gift being sustainable on principles defined in former decisions of this court; and consequently there was nothing on which the act could operate. That matte)’ being disposed of, it follows that the congregation, either as having itself the legal title, or as standing in the relation óf cestui que trust, to the lessors of the defendant, is entitled to take the profits in the first instance, but subject to a right in the plaintiff to have them applied to his support; and the exceptions- to the verdict, therefore, are not sustained.

Judgment affirmed.