McCULLOCH, J.
This appeal involves the construction of the will of Mary Hare, deceased, the validity of certain bequests therein made, and the right to sell, during the life of her daughter, Ella Hare, the real estate of the testator. The clauses of the will under consideration are the following:
"I give and bequeath to Rev. Lawrence Smyth and the Rev. Michael Smyth the sum of two hundred dollars each, and request that they offer the holy sacrifice of the mass occasional for the eternal repose of the souls of myself and my husband.
"I give, devise and bequeath to the Convent of the Sisters of Mercy at Ft. Smith, known as St. Anne's Convent, one-half of all my real estate, real and personal, after deducting the legacies and bequests mentioned in this my last will and testament, for the support and maintenance of my daughter, Ella Hare, during her life, and after the death of my said daughter Ella, I give, devise and bequeath to the said Sisters of Mercy the said one-half of my estate, real and personal, for the purpose of helping to educate poor Catholic children.
"I give, devise and bequeath to the pastor of the parish of the Immaculate Conception of Ft. Smith in the state of Arkansas, one-half of all my estate, real and personal, to be used by the said pastor for the purpose of helping to establish a school in said parish for the education of Catholic boys and for helping to educate young men of the parish for the priesthood."
The testatrix, Mary Hare, resided at Ft. Smith, and was a member of the Roman Catholic Church called the "Church of the Immaculate Conception." This church is sometimes called the "Irish Catholic Church," because of the fact that its membership is made up largely of Irish Catholics, and in contradistinction from another church organization in the same city, named "St. Bonefacius Catholic Church," and sometimes called the "German Catholic Church." There was
a local body of Sisters of Mercy connected with the Church of the Immaculate Conception, conducting a school on their property adjoining the church, and commonly known as "Sisters of Mercy of St. Anne's Academy"; also sometimes called "St. Anne's Convent." and sometimes "Sisters' Convent." In the laws of the church such an organization is denominated as "Chapter of the Sisters of Mercy," and is perpetuated by the incoming of new sisters from year to year. The title of the executive officer of the chapter is "Mother Superior," and the office is filled by election of chapter sisters at intervals of three years. When the sisters first enter the convent they serve for a time as postulants, and later become members of the chapter, and are called "Sisters of Mercy." These organizations are auxiliaries of the Catholic Church, and have fixed rules for their operation.
The General Assembly enacted a statute, which was approved December 20, 1860, as follows:
"An act to incorporate the Sisters of Mercy of the female academies of Helena, Little Rock and Ft. Smith.
"Section 1. Be it enacted by the General Assembly of the state of Arkansas, that the sisters of Mercy of the Female Academies of Helena, Little Rock, and Ft. Smith, and their successors respectively, are hereby constituted bodies corporate and politic, with succession, each, for ninety years, under the respective corporate names and styles of `The Sisters of Mercy of the Female Academy of Helena,' `The Sisters of Mercy of the Female Academy of Little Rock' and `The Sisters of Mercy of the Female Academy of Ft. Smith,' and by those names applicable to each corporate body as if contained in separate acts; shall have power to make contracts, and to sue and be sued, and shall have a common seal; and each corporation respectively shall have full power to form such constitution and by-laws, or such rules and regulations, as may be necessary and needful for the government of each of said academies respectively; and to promote proper discipline and education and learning therein and to provide for the selection of superiors or directors, or other officers therein, at any time; also power to use and preserve their property, real, personal and mixed, and to have, hold and enjoy the same, which may be at any time given, donated, granted sold or bequeathed to the said sisters, or said academies, respectively, for the use thereof; and to sell, mortgage or pledge the same, for the benefits of the said academies, or for the use thereof, respectively; and finally to do and perform all other things that may be proper to be done for the advancement of learning, and the interest and objects of the said corporations, respectively; but nothing shall be allowed contrary to the constitution and laws of this state.
"Sec. 2. No misnomer shall defeat or annul any grant, gift, devise or bequest thereto, or contract therewith, whenever the real intent sufficiently appears. * * *
"Sec. 4. This act shall be construed as if it were three separate charters for said corporations, and shall be judicially noticed without pleading, and shall be in force from its passage."
Laws 1860-61, p. 54.
The chancellor in his decree construed the will as follows: "The bequests to `the Convent of the Sisters of Mercy at Ft. Smith, known as St. Anne's Convent,' is construed to mean that the Sisters of Mercy of the Female Academy of Ft. Smith, a corporation, was made trustee under this clause of the will; that said Sisters of Mercy took no beneficial interest, but did take as trustees one-half of said estate, after deducting special legacies for the support and maintenance of Ella Hare, daughter of testator, during her life, and at the death of said Ella Hare take the said one-half in trust for the purpose of helping to educate poor Catholic children, and the latter bequest was for charitable uses, and was and is a valid bequest to said Sisters of Mercy of the Female Academy of Ft. Smith, for the purposes mentioned in said will. The bequest to the pastor of the Church of the Immaculate Conception is construed to mean that the pastor of the Church of Immaculate Conception, at the death of said testator and his successor or successors as pastor, took the property therein bequeathed in trust for the purposes mentioned in that clause of said will; that the said trust was and is a valid one; and that James Brady, present pastor of the Church of the Immaculate Conception, holds said property under the provisions of said will as trustee for the uses and purposes therein mentioned; that the Sisters of Mercy of the Female Academy of Ft. Smith and James Brady, pastor of the Church of the Immaculate Conception, had the right to sell the property devised as aforesaid and held in trust by them respectively, as hereinabove decreed; and that the deed of conveyance made to defendant, Tillman Shaw, by said James Brady and the Sisters of Mercy of the Female Academy of Ft. Smith, by Sister Aloysius O'Connell, mother superior, was and is valid." Did the chancellor reach the correct conclusion?
1. It is contended, first, that the court erred in construing the language of the will "Convent of the Sisters of Mercy at Ft. Smith, known as St. Anne's Convent," to mean and refer to "Sisters of Mercy of the Female Academy of Ft. Smith," a corporation created by the statute quoted above; that said so-called "Convent of the Sisters of Mercy at Ft. Smith, known as St. Anne's Convent," was not capable of acting as trustee; that the devise was void; and that on the death of the testatrix the title vested by inheritance in her daughter. It is an elementary
rule of construction that a bequest or...
