BROWN, J.
The court of civil appeals for the Second supreme judicial district has certified to this court the following statement and questions: "In 1865, Isaac Cromie died at Louisville, Ky., and left a will, in which he named the House of Mercy of New York as a residuary legatee and devisee. A portion of his residuary estate consisted of lands in the state of Texas. The house of Mercy of New York, appellant herein, is a charitable corporation domiciled in the state of New York, and created under an act of the legislature of that state entitled `An act for the incorporation of benevolent, charitable, scientific and missionary societies,' passed on April 12, 1848. Said act contains the following provision respecting the corporations authorized to be created thereunder: `And they and their successors by their corporate name shall in law be capable of taking, receiving, purchasing and holding real estate for the purpose of their incorporation and for no other purpose to an amount not exceeding the sum of fifty thousand dollars in value, and personal estate for like purposes to an amount not exceeding seventy-five thousand dollars in value.' Appellant was incorporated in the year 1860 by filing a certificate of incorporation under the law above mentioned. At the time of Cromie's death it owned real estate of the full value of $50,000, and personal property of the value of $678.75. The executors of the will subsequently
delivered to it personal property in amount sufficient to make, with that already owned by it, the sum of $75,000. In the year 1866 the heirs of Isaac Cromie filed a suit in equity in the chancery court of Louisville, Ky., against the executors of the will and others, for the recovery of all the property included in the residuary clause of the will. The executors answered, and prayed that the House of Mercy of New York, and the other residuary legatee and devisee, the Presbyterian Orphans' Home of Louisville, be made parties; and also in their answer alleged that the Institution of Mercy of New York, another charitable corporation, was claiming to be the beneficiary intended by the testator, instead of the House of Mercy, and prayed that said Institution of Mercy be made a party to the suit, and that said parties be cited to appear and have their respective rights adjudicated. All said parties did appear and become parties to said suit, setting up their several claims under the will. The final result of the suit was a judgment by the court of appeals of Kentucky, revising the judgment of the lower court, and adjudging that the House of Mercy of New York, and not the Institution of Mercy, was intended by the testator to be his beneficiary; and further adjudged that, the House of Mercy of New York being in possession of real estate of the value of $50,000 at the time the will went into effect, was incapable, on account of the provision in the law of its creation, to take any real estate devised by the residuary clause of the will, and that the devise to it was, for that reason, void, and the property vested in the heirs of Cromie. The court also directed that personal property sufficient in value to equal, with that held by appellant at the time of Cromie's death, the sum of $75,000, be delivered to appellant out of the estate of testator. This direction was carried out, and the personal property delivered to and received by appellant. Cromie's Heirs v. Institution of Mercy, 3 Bush, 365. Appellant never took possession of the land in controversy, nor exercised any acts of ownership over it, such as paying taxes, etc., until the institution of this suit in the year 1894. Appellee claims the land through conveyances from and under the heirs of the testator, Cromie, and is in actual possession thereof, and was in such possession at the time of the institution of this suit, and he and those under whom he claims have regularly paid all taxes due on the land. Appellant claims the land under the will of Cromie, which made it a residuary devisee and legatee after the payment of specific legacies. The land in dispute is part of the estate devised by the residuary clause of the will to it. The questions we submit are, did the devise to appellant vest title to the land in Texas in ap...
