Argument for the purchaser.

and management of said estate. The office, powers, and duties of the trustees, like the trust, are made perpetual.

The trustees, and they alone, are to have the possession of this estate. The trustees, and they alone, are to have the power to lease and manage it. They are to collect the rents. They are to pay them over to the society; and, of course, to enable them to discharge these duties, and execute these powers, "and to do all other legal acts for the well managing of the property," it was necessary that they should take the legal estate, and therefore the law will presume that the testator intended them to take it, and will declare accordingly.

In order to show that there has been any breach of condition by reason of the alienation of this land, the plaintiffs themselves must show that the legal title was vested in trus

tees.

The conveyance of this land purports to have been made by four persons, three of whom were trustees under this will, and a fourth was a gentleman nominated by the legislature, to represent the public interest. Upon these four persons, the legislature, by their act, undertook to confer the authority to make this conveyance, and when they make the conveyance they say they act by force of authority conferred upon them by the legislature.

The defendants contend that this act of the legislature was unconstitutional and void.

They are obliged to say so, for if the act was constitutional, then the sale was legal, and passed a title to the property:

If the act was unconstitutional and void, and the legal title was in the corporation, it still remains there, and there has been no sale, and consequently no breach of condition.

The corporation could be divested of the legal title only by a conveyance made in the name of the corporation, and under the seal of the corporation, by some person expressly authorized by the corporation to make it.

The agents of the corporation, as such, have no power to convey the real estate of the corporation. But this convey

Argument for the purchaser.

ance was not made by these persons under any authority conferred on them by the corporation. They did not affix the seal of the corporation. They say in the deed that they act by virtue of authority conferred upon them by the act of the legislature.

If then, by the terms of the will, the legal title vested in the society, and if the act of the legislature is void, the legal title still remains in the society, and there has been no breach of condition.

We have said that the plaintiffs, in order to recover, must show that the devise was upon some condition, the breach of which would be attended by a forfeiture.

We submit now, that upon the whole will, and looking at all its provisions, no such condition can be found. It is true that the word "Provided," in certain connections, and under certain circumstances, is competent to raise a condition, and it is equally certain that the same word, used in a different connection, and under different circumstances, will not create a condition. The court will therefore seek to discover the intention of the testator in this particular, not by considering what legal force some particular word in the will might have in the abstract, but by looking at all the provisions of the will, and the connection in which the word is used, and thus from an examination of the whole, will ascertain the sense in which the word was probably employed by the testator.

On the face of this will, it is plain that the Second or South Ecclesiastical Society were the objects of the testator's bounty, in respect to this land, and that he intended this bounty to be perpetual.

Now, if we keep in view this intention to create and perpetuate a trust for this society's benefit, a trust which he ex pected would endure forever, and consider that it was also his purpose to give very particular directions for the administration of it, and then observe the connection in which this word "provided" is used, it will be evident, that the testator could not have used the word in the sense set up by the plaintiffs.

Argument for the purchaser.

The testator, in the beginning of the will, after the decease of his sister, Mrs. Whitman, devises his real estate exeept, &c., to the Second or South Ecclesiastical Society, "to be and remain to the use and benefit of said Second or South Ecclesiastical Society, forever." But the society is not to have the management and control of this property: no power to lease it and receive the rents and profits directly. The entire management of it the testator gives to certain trustees to be appointed by him, and these trustees are to execute their trust according to his directions; therefore the testator, after the words last quoted, and in the same sentence, proceeds to give those directions, and says:

"Provided, that said real estate be not ever hereafter sold or disposed of, but the same be leased or let, and the annual rents or profits thereof applied to the use and benefit of said society, and the letting, leasing, and managing of said estate to be under the management and direction of certain trustees hereafter named by me, and their successors, to be appointed in like manner as hereinafter directed."*

It will be observed that every word here quoted is directly and essentially connected with this word "provided," which is supposed to create the condition. If there is any condition here, then it is plain that there are several conditions, and if a breach of one would cause a forfeiture of the estate, it must be admitted that the same result would follow from a breach of any other. The plaintiffs say there is a condition against alienation, the breach of which will cause a forfeiture of the est. te. If so, there is a condition that the estate shall be leased or let, and also that the annual rents and profits shall be paid to the society, and also that the leasing, letting, and managing of the estate shall be under the direction of trustees appointed by the testator, "in manner as hereinafter directed," the breach of either of which conditions would likewise cause a forfeiture of the estate; yet it is most improbable that the testator should have devised

The directions are found in the next paragraph. See supra, p. 121.

Argument for the purchaser.

this estate to this society, and endeavored to impress upon his bounty perpetual duration, and should have hedged it about by so many careful and minute directions as to its control and management, and should at the same time have intended that the society should forfeit the estate in case his trustees whom he had appointed to control and manage the estate, and in whom the legal title was vested, should be guilty of a breach of trust in violating any of these provisions. Such could hardly have been the intention. The true interpretation, in this particular, is this: The testator here creates a trust for the letting, leasing, and managing of this estate, and appoints trustees. It was his intention to give directions to those trustees for the management of it; they were not to sell but only to lease it, and the language which is supposed to raise the condition, occurs in the course of the directions he gives to his trustees, and was not used with any intention of creating a forfeiture in case the trustees should fail to obey those directions, or commit a breach of trust. Thus we find these words:

"And said trustees and their successors shall have full power to let and lease said estate, and to do all other legal acts for the well ordering and managing of said estate, under the limitations and restrictions as herein before expressed."

Now these limitations and restrictions are, that they should not sell, that the estate should not be divided in case part of the society should secede, that they shall lease the estate, but shall not give a lease for more than thirty years. Undoubtedly he desired that these directions should be strictly obeyed, but that the testator intended that the society should forfeit the estate in the event that the trustees should disobey any of these directions, cannot be maintained with any plausibility.

Let us advert to precedents. In the recent Massachusetts case of Chapin v. Harris,* a writ of entry was brought to recover certain real estate and water power, the title to which

* 8 Allen, 594.

Argument for the purchaser.

the plaintiff claimed had reverted to him by reason of the breach of a condition annexed to the land. The clause in the deed which was claimed to raise the condition, was as follows:

Provided said draw shall be so built as to answer for a street to the railroad, and Spring Street is to be opened three rods wide across said farm, to the south line of said railroad, and the said Stearns is to make the road."

The court decided that this clause did not raise a condition, the breach of which would be attended by a forfeiture of the estate, and among other things they say:

"It is true, as the demandant contends, 'provided' is an apt word to create a condition, and it is often used by way of limitation or qualification only, especially when it does not introduce a new clause, but only seems to qualify or restrain the generality of a former clause."

Such is the connection in which the word is used, and such its office in the case at bar.

A recent English case is Wright v. Wilkin.* A testator, after bequeathing legacies, devised to the defendant and to his heirs, &c., "all the real estate," and all the "residue of his personal estate," upon upon this express condition:

"That if my personal estate should be insufficient for the purpose, they do and shall within twelve months after my decease, pay and discharge the legacies before bequeathed, and I feel confident that he will comply with my wish, it being my particular desire that the above legacies shall be paid, and I hereby make chargeable all my said real and personal estate with the payment of the aforesaid legacies."

It was held in the K. B.,† and afterwards on appeal in the Exchequer Chamber, that the devise was not upon a condition, the failure to comply with which created a for

* 2 Best & Smith, 232, and see Mayor, &c., of South Molton v. Attorney. General and others, 5 House of Lords Reports; 14 Bevan, 357. † 2 Best & Smith, 232.