Currey, for complainant: —
Although the deed from Mr. Brown may sound like a deed of trust, yet, taking its language in connection with the relative position and general purpose of the parties ( Deblois v. Earle, 7 R.I. 26 ), and their acts under it for nearly half a century, it will be evident that the deed was intended to operate, not as a trust, but as an absolute gift to the parties who took possession of the land on the making of the deed, and whose title, as is shown by the answer, the complainant now has. The deed itself is so extraordinary an instrument that, taking its language alone, it is difficult to put any satisfactory construction upon it, according to the rules of law. It might, without any impropriety, be held to be totally void for uncertainty, in which case the complainant would be competent to make a good conveyance to the respondent, by virtue of the deed obtained by the complainant from the heirs of Moses Brown, mentioned in respondent's answer. Story's Eq. Jur. § 1183. The direct and palpable object of the parties was, to convey to Obadiah Brown, George Benson and Henry Jackson a lot of land for the erection of a building to be used as a school and meeting house for the colored people of Providence; but how this was to be accomplished according to the rules of law, how and in whom the legal title was to be placed, and how it was intended that the title should be continued and perpetuated, it is extremely difficult to ascertain or even conjecture, from the terms and provisions of this deed.
I. This deed contains no words of procreation in the grant to the so-called "feoffees in trust." In a grant or feoffment at common law, or operating under the statute of uses, this of course would limit the grant to an estate for life. 2 Washburn on Real Prop. 116, § 13. But in the case of a conveyance to a trustee, without words of inheritance, the general doctrine in the United States seems to be, that a fee will be implied whenever the purposes of the trust make it necessary, or cannot be properly accomplished without such a construction. Fisher v. Fields, 10 Johns. 505; Welch v. Allen, 21 Wend. 147; Stearns v. Palmer, 10 Met. 32; Gould v. Lamb, 11 Ib. 84; Cleveland v. Hallett, 6 Cush. 403; North v. Philbrook, 34 Me. 537 ; Rutledge v. Smith, Busbee Eq. 283; Neilson v. Lagow, 12 How. U.S. 110; Williams v. First Presbyterian Society, 1 Ohio St. N.S. 493, semble. Although in England there appears to be still no departure from the ancient doctrine of conveyancing on this subject, Doe d. Pottow v. Fricker, 6 Excheq. 510; and in this State the English rule is acted upon in practice. Upon the weight of authority, however, the omission of words of inheritance in this case is of no importance, if the deed can be said to create a trust. And it is very remarkable, that while the manifest object was the erection of "a suitable building for a school house on the Lancaster plan of education, and also for a meeting house for divine worship for the people of color," and while the immediate grantees are called "feoffees in trust," for that purpose, the deed does not make it the duty of such feoffees to erect the building, or place any fund at their disposal, either for that purpose or for the maintenance of the peculiar mode of education pointed out, or for the support of the ministry to be connected with the church; nor are any active powers or duties vested in, or imposed upon, said feoffees, touching the management or disposition of the property, save what is found in the closing part of the deed, namely, the obligation to apply the property "to and for the use of the people of color forever, for a school house and meeting house for them and their descendants and associates forever. Can it be said that this creates a trust in the general
sense of the term? Clearly the intention to create a trust must be purely a matter of conjecture.
II. The deed does not in terms define who were to be benefited by the conveyance. In a grant at common law, there must be a person in esse, both to give and to receive a conveyance, in order to make a deed of an immediate estate by or to such person good; and if the deed create any uncertainty as to who is the grantee intended, it will be void. 2 Washburn Real Prop. pp. 566, 567. So also is it necessary to the execution of a use, under the statute, that there should be a cestui que use in esse, and if a use be limited to a person not in esse, or to a person uncertain, the statute cannot execute the use. Cruise's Dig. title XI (use), ch. iii, § 22. Such being the rule, this deed could never be supported except upon the ground that it creates a charitable use, in which case it should seem that it would be no objection to it, that the persons to be benefited are uncertain or indefinitely described. Bartlett v. King, 12 Mass. 537 ; Going v. Emery, 16 Pick. 107; Vidal v. Girard,
2 How. U.S. 127; in which last named case is a full discussion of the subject, and a review of the authorities.
III. Can it be supposed that this grantor intended to create a charitable use, which, under the form of this deed, would imply a continuing trust, and not merely a conveyance of the land to some person or persons then or thereafter to come into being? From what has already been said, this is, at least, improbable. "In all ancient instruments and transactions where doubtful words are used, where the purpose and intent are obscurely expressed, the acts and conduct of the parties immediately following are to be regarded as the best expositors." Per Shaw, C.J., in Cambridge v. Lexington, 17 Pick. 222. See also Choate v. Burnham, 7 Pick. 274; Livingstone v. Ten Broeck, 16 Johns. R. 14. The deed in question is a singular document and full of obscurity, and so much so, that it might be treated as a nullity on the ground of uncertainty, in which case the complainant would convey to the defendant by force of the deed from the heirs of Moses Brown. But it may not be necessary to take this course in view of the facts set forth in the answer, which clearly shows
that the parties in possession have always acted as the owners of the land, and were deemed such both by the grantor, who lived some seventeen years after the making of the deed, and the "feoffees in trust." In either case the complainant would be competent to make a good title.
Markland, for defendant: —
The deed from Moses Brown, to say the least, sounds like a charitable use. It is a grant to certain persons called " feoffees in trust" for the benefit of others, namely, the colored people who then were or thereafter might be in the then town of Providence, and the deed makes it the duty of the " feoffees in trust " to apply the land in question for the use of said colored people, for a school house and meeting house,
and to this extent the deed did in terms impose an active duty, eleemosynary in its nature, and which would, ordinarily, constitute a charitable use. Vidal v. Girard's Executors, 2 How. U.S. 127. There is difficulty, perhaps, in ascertaining from the deed itself when or how the application of the land was intended to be made, but still the duty to make it remains. The complainant's counsel says, that the deed may be treated as a nullity on the ground of uncertainty, and then the complainant can make a good title under the conveyance to it from the heirs of Moses Brown; but if the original deed cannot be treated as void, then that it should be construed, as it has been done by the acts of the parties, as creating not a trust or use, but an absolute gift. He has considered the case very fully, and if his conclusions are satisfactory to the court, they will be to the respondent.