Zeisweiss v. James

Decision Date13 January 1870
Citation63 Pa. 465
PartiesZeisweiss <I>versus</I> James <I>et al.,</I> Anna N. James and Mary A. Conover with her husband O. H. P. Conover.
CourtPennsylvania Supreme Court

Before THOMPSON, C. J., READ and SHARSWOOD, JJ. AGNEW, J., at Nisi Prius. WILLIAMS, J., absent.

Certificate from Nisi Prius.

W. A. Manderson, for plaintiff in error.

Thos. J. Clayton, for defendant in error, cited 2 Redf. on Wills, 2d ed. 770; 1 Dev. Eq. 276; Holland v. Peck, 2 Ired. Eq. 255; 1 Jarman on Wills 332.

The opinion of the court was delivered, January 13th 1870, by SHARSWOOD, J.

It must be conceded that the devise by the will of Levi Nice to Mary A. Conover and Anna M. James, in fee simple, is reduced, by the subsequent words, to a life-estate to the devisees and the survivor of them, determinable, however, on their both refusing to reside on the homestead known as Oxford Lodge for the space of two months. The testator declares that in that event the said real estate is to go as directed in the next clause of his will; that is to say, in the same manner as if both of the devisees were dead.

The next clause is as follows: "Immediately after the death of both my said grand-nieces, then it is my will that my real estate aforesaid shall go to and be held in fee simple by the Infidel Society in Philadelphia, hereafter to be incorporated, and to be held and disposed of by them, for the purpose of building a hall for the free discussion of religion, politics, &c."

If there was an Infidel Society in Philadelphia at the date of the will, it was not then incorporated, the testator expressly referring to it as thereafter to be incorporated. If we are to infer the nature and objects of the corporation from the name, it means an association of infidels or unbelievers, for the purpose of propagating infidelity, or a denial of the doctrines and obligations of revealed religion. It must be so understood, according to the commonly received meaning of the term. Such an association, it would seem, could not be incorporated under any of the general laws of the Commonwealth. The Acts of April 6th 1791, 3 Smith 20, and of October 13th 1840, Pamph. L. 1841, p. 5, provide for the incorporation of societies for any literary, charitable or religious purpose, and beneficial societies or associations. It could scarcely be considered as within either the letter or spirit of these acts. It is highly improbable that the legislature will ever incorporate, or authorize the incorporation, of such an association. Supposing it, however, to be possible, it is potentia remota — that a corporation should be created, and with that name — a possibility upon a possibility, which, as Lord Coke tells us, is never admitted by intendment of law: Co. Litt. 25-6, 184 a. It is like a remainder to the heirs of a person unborn — that a person should be born and die during the continuance of the particular estate — or to an unborn son of a particular name: Fearne 251. Indeed, the very case is put in the old books that if a remainder be limited either by feoffment or devise to a corporation which is not in existence at the time of the grant or devise, the remainder is void, even though such a corporation should afterwards be erected during the particular estate, because it is potentia remota: Sir Hugh Cholmley's case, 2 Rep. 51 a; Lane v. Cowper, Moor, 104; Cowden v. Clarke, Hob. 33; Noe's case, Winch 55; Simpson v. Southward, 1 Rol. Rep. 254. In the Year Book, 9 Hen. VI. 24, it is laid down that if one devise lands to the priests of a chantry, or of a college in the church of A., at which time there is no chantry and no college, the devise is void, notwithstanding the devise is by license of the king; and if after a chantry or college is made in the same place, yet they shall not have the land, because at the time of the devise there was no corporation in which the devise could take effect. We must conclude then that this remainder, limited to a corporation thereafter to be created, was void, because there was no devisee competent to take at the time, and the possibility that there might be such a corporation during the particular estate for life, was too remote.

But it may, nevertheless, be true that if the purpose for which the devise over in remainder was made, be a valid charitable use, which can be enforced and administered in a court of equity, it will not be allowed to fail for want of a trustee: McGirr v. Aaron, 1 Penna. Rep. 49. Such an use may be vague and indefinite, so that no particular person or persons may have such an interest as will give them a right to demand the execution of it, yet that forms no objection to a charity if there be a competent trustee named, clothed with discretionary power, either express or implied, to carry out the general objects of the donor or testator. As was said by Gibson, C. J., in Witman v. Lex, 17 S. & R. 93"It is immaterial whether the person to take be in esse or not, or whether the legatee was at the time of the bequest a corporation capable of taking or not, or how uncertain the objects may be, provided there be a discretionary power vested anywhere over the application of the testator's bounty to those objects." To the same effect are McGirr v. Aaron, 1 Penna. Rep. 51; Martin v. McCord, 5 Watts 495; Beaver v. Filson, 8 Barr 335; Pickering v. Shotwell, 10 Barr 23; The Domestic and Foreign Missionary Society's Appeal, 6 Casey 425. "A charitable gift," says Comstock, C. J., in Beekman v. Bonsor, 23 New York 308, "definite both in its subject and purpose and made to a definite trustee, who is to receive the fund and apply it in the manner specified, is to be maintained, although it would be void by the general rules of law, because the particular objects of the gift, or persons to be benefited by it, are unascertained. Such a gift is capable of being enforced by judicial sentence; and affords neither room nor justification for an exercise of the cy pres power. So much, then, of that which is...

To continue reading

Request your trial
18 cases
  • In re Estate Rahn
    • United States
    • Missouri Supreme Court
    • February 16, 1927
    ... ... policy. 2 Perry on Trusts (5 Ed.) p. 356; Dickson v ... Montgomery, 1 Swan, 438; Methodist Church v ... Remington, 1 Watts, 218; Zeisweiss v. James, 63 ... Pa. 465; DeCamp v. Dobbins, 31 N.J.Eq. 671; In ... re Hill's Estate (Wash.), 204 P. 1055; U.S ... Constitution, art. 3, ... ...
  • Long v. Union Trust Co.
    • United States
    • U.S. District Court — District of Indiana
    • May 4, 1921
    ... ... Estate, 155 Cal. 727, 102 P. 920; Morice v. Bishop of Durham, ... 9 Ves. 399, 32 Eng.Rep. 656, affirmed 10 Ves. 522, 32 ... Eng.Rep. 947; James v. Allen, 3 Meriv. 17; Macduff v ... Macduff, (1896) 2 Ch. 451; Kendall v. Granger, 5 Beav. 300; ... Perry on Trusts, Sec. 711; Fowler v. Duhme, ... Missionary Union, 73 N.H ... 414, 62 A. 647, 3 L.R.A. (N.S.) 1143, 111 Am.St.Rep. 632, 6 ... Ann.Cas. 646; Leonard v. Burr, 18 N.Y. 96; Zeisweiss v ... James, 63 Pa. 465, 3 Am.Rep. 558; Smith v. Townsend, 32 Pa ... 434; Penrose's Estate, 257 Pa. 231, 101 A. 319; Village ... v. Mead, 43 Vt ... ...
  • Loomis' Estate, In re
    • United States
    • Kansas Supreme Court
    • March 8, 1969
    ... ... to be created after the death of the testator is void because there is no devisee with capacity to take the property at the time of death (Zeisweiss v. James, 63 Pa. 465, 3 Am.R. 558; Carr v. Hart, 220 La. 833, 57 So.2d 739; In re Korzeniewska's Estate, 163 Misc. 323, 297 N.Y.S. 997; 94 C.J.S ... ...
  • Klumpert v. Vrieland
    • United States
    • Iowa Supreme Court
    • May 10, 1909
    ... ... Derby, 4 R. I. 414;Williams v. Pearson, 38 Ala. 299; 2 Perry on Trusts, 732; In re Strong's Appeal, 68 Conn. 527, 37 Atl. 395;Zeisweiss v. James, 63 Pa. 465, 3 Am. Rep. 558. See Miller v. Atkinson, 63 N. C. 537; 2 Underhill on Wills, 816; 3 Pomeroy, Eq. 1022.True there are decisions ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT