this estate.

Nor can a corporation hold lands as joint tenant with a natural person, for there is no reciprocity of survivorship between them. Angell and Ames Corporations, 150; 1 Kyd Corp., 72.

But a tenancy in common requires for its existence but one unity, namely, that of possession. 1 Cruise, 390, § 2; 2 Crabb's Real Prop., 627, § 2316. If, therefore, a grant should be made to two persons, which in its terms should imply a joint tenancy, but such an estate could not vest, for the reason that some of the requisite unities were wanting, the result would be the creation of a tenancy in common. The rule of law is, that a grant shall not fail if there is a capacity to take under it, and if the higher estate can not vest, the next estate which is possible shall vest. This is an equitable rule which is made to apply to all grants and devises. The appellants in this case propose to purchase the undivided one-half of the property known as the Jenny Lind and Parker House, and the land upon which the same stands, to be used as tenants in common with the city of San Fran cisco. But it is said that two incorporations can not hold lands as tenants in common; and the case of the New York and Sharon Canal Company v. The Fulton Bank, 7 Wendell 412, is cited in the opinion delivered by the district judge, and is the only authority produced to sustain this proposition. From an examination of the case, we think that it maintains the opposite doctrine.

The eminent counsel on the part of the plaintiff, arguendo, asserted that two or more corporations may unite in the purchase of property real or personal; they may take a deed of real estate for the estab lishment of their houses of business. Insurance companies may own pilot boats in common, and canal companies may be tenants in common of locks, canal boats and other property subserving their mutual interest; 1 Kyd, 108; 2 Kent's Com., 315; and the counsel for the defendant said, "It is not denied that distinct corporations may own property in common," while Savage, the chief justice, in delivering the opinion of the court, said, "These two companies had certain moneys in the hands of their officer; they were both interested in those moneys, and probably in equal degree. Not being partners, they were tenants in common; in that character they made the deposit of the money, and in that character I can see no objection to their sustaining an action for it; thus the court decides that they may be tenants in common in a chattel, but does not decide that they may be so in lands, that question not being before the court," and yet this case is cited to maintain the doctrine that two corporations can not hold real estate as tenants in common.

The books and cases do not afford any instance in which this right of holding lands as tenants in common, either with each other or with natural persons, is denied to corporations. Not one of the reasons which work a want of capacity to hold as joint tenants would prevent their holding as tenants in common, for this estate requires but one unity, that of possession.

So far from corporations not being able to hold lands in common, the original condition at common law of the largest class of corpora

tions known to the law, was that of holding all their lands in common with each other; and they were never separated until the original position produced inconveniences. 1 Kyd Corporations, 108.

Order denying motion reversed.

I

Note. See to same effect, as to joint tenancy: 1851, Telfair v. Howe, 3 Rich. Eq. (S. C.) 235, 55 Am. D. 637. Also to same effect, as to tenancy in common: 1883, Estell v. University of the South, 80 Tenn. (12 Lea) 476; 1885, Hackett v. Multnomah R. Co., 12 Ore. 124, 53 Am. Rep. 327; 1894, Calvert v. Idaho Stage Co., 25 Ore. 412; 1895, Bates v. Coronado Beach Co., 109 Cal. 160.

Sec. 294. (B) By devise.

(a) History and general doctrines.

MCCARTEE v. ORPHAN ASYLUM SOCIETY OF NEW YORK.' 1827. IN THE COURT FOR THE CORRECTION OF ERRORS OF NEW YORK. 9 Cowen (N. Y.) Rep. 437-525, 18 Am. Dec. 516.

[J., being seized of real estate, devised that if, at his death, he should have a child living, the rents and profits should be received by his executors, and applied for the support, etc., of the child, the surplus to be invested in stock to accumulate and be paid over to the child at twenty-one, or marriage. He gave all the residue of his real and personal estate, after payment of all legacies and other bequests, to a corporate company (the Orphan Asylum Society in the city of New York), the bequest to take effect immediately after debts and legacies paid, if he should leave no child; or, if he should leave a child, then, upon the child's death, inter-marriage or attaining twenty-one. The will then gave to his executors all his real estate, subject to the trusts aforesaid, and declared his will to be that when such child should attain twenty-one, or marry, his real estate should be sold by his executors, and one-half of the proceeds paid to the child, if it should attain twenty-one, or marry. The testator died, seized, and a posthumous child was born to him, which died before twenty-one, and unmarried.

The chancellor, JONES, upheld the devise to the orphan asylum, and appeal was taken.]

STEBBINS, SENATOR, dissenting.

The questions presented by the case, as I view it, are first, whether the testator (Phillip Jacobs) devised the real estate in question to the corporation directly, or to his executors, subject to the trusts mentioned in the will; second, whether the devise to trustees for the use of the respondents, is a valid devise, under which they can take as cestuis que use; and third, whether the use is executed by the statute of uses, and if so, the effect.

[After holding contrary to the majority opinion that the devise was 1 Statement abridged; Chancellor Jones' and Senators Woodworth's and Crary's opinions omitted, and only part of Senator Stebbins's opinion given.

not to the corporation directly, but to the executors in trust-—a question of construction, proceeds:]

The next and more important question is, whether the corporation can take the use under this will, notwithstanding the provisions of our statute of wills. This statute enacts that any person having any estate of inheritance in any lands, tenements or hereditaments, may give or devise the same, or any rent or profit out of the same, to any person or persons (except bodies politic and corporate) by his last will and testament, or by any other act by him lawfully executed; and it is contended that if a devise to a corporation directly would be void, a devise of the use is also void.

Although in England, under the Saxons, lands were devisable by will at common law, yet at the conquest, and upon the introduction of the feudal system, the common law underwent a complete change in this respect; and an estate in fee-simple in lands was no longer devisable. It became inconsistent with the nature of that system, that a tenant should have an unlimited power to devise his lands; for the reason that he might devise to persons incapable of perform. ing feudal services. The power of alienation by devise (except of a chattel interest) is in England, then, to be traced to the statutes of wills of the 32 Hen. VIII, ch. 1, and 34 Hen. VIII, ch. 5.

Our statute of wills is a transcript of these, with the additional enumeration of rents and profits. It is contended that the terms rents and profits, mentioned in the statute, are intended to describe a use, and that, as the lands can not, so the use also can not, be devised to a corporation under this statute.

I apprehend, however, there is a material difference between rents and profits, and that which has long been known under the denomination of a use.

Rents and profits are incorporeal hereditaments; but a use is not. A use is said to be neither jus in re nor ad rem, neither right, title nor interest in law, but a species of property unknown to the common law, and owing its existence to the equitable jurisdiction of chancery, resting upon confidence in the person and privity of estate, a thing collateral to the land, and only annexed to a particular estate in it, not to the mere possession; so that when the estate to which the use is annexed is destroyed, the use itself is destroyed, as by disseisin, or the entry of tenant by the curtesy or in dower. It was rather a hold upon the conscience of the feoffee to uses, than a lien upon, or interest in, the land; and the principle upon which it was founded was that the feoffee was bound in conscience to follow the direction of the feoffor. (See Cruis. Dig., tit. 11, ch. 2.) A thing so subtle, and cognizable only in courts of equity, which act upon the conscience, differs essentially from an incorporeal hereditament, which is of legal cognizance. Indeed, incorporeal hereditaments, such as rents, advowsons, etc., were the subject of conveyance to

uses.

If, then, a use is not comprehended in the terms of the statute the

argument rests upon the ground that if a devise of land to the corporation would have been invalid, the devise of the use is equally so.

It might perhaps be conceded that if corporations were prohibited by statute from taking the fee by devise (which, by the by, is not the case), the law would not allow them to take the use. But the his-tory of the English law furnishes at least a plausible argument against such a proposition.

Corporations were prohibited by several statutes of mortmain from holding lands; yet it was deemed necessary to enact the statute of 15 Rich. II, ch. 5, declaring uses subject to the statutes of mortmain.. (Chudleigh's Čase, 1 Rep. 120.)

But the statute of wills is an enabling statute, and not prohibitory. Before this statute individuals had no capacity to devise lands; but this enabled them to do so, except to corporations. In conferring the capacity to devise the legislature withheld the capacity to devise to a corporation, and for what reason?

Before the statute of wills, corporations were prohibited by the mortmain acts from taking or holding lands, or uses arising from them.. The exception, therefore, in the statute of wills, could not have been introduced for the purpose of prohibiting corporations from taking by devise, for they were already prohibited from taking in any mode; but was to guard against enabling them to take by devise. Without the exception in the statute of wills in England they would have been enabled to take by devise, when the mortmain acts would have pro-hibited their taking in any other way.

The history of the statute, I think, fortifies this view of it. In the firststatute of wills (32 Hen. VIII, ch. 1) corporations were not excepted, and were, therefore, enabled to take by devise in common with other persons, contrary to the policy of the statutes of mortmain; but two years afterwards the parliament, finding the mortmain acts so far repealed by the statute of wills, passed a new statute (34 Hen. VIII, ch, 5), not prohibiting corporations in terms from taking under the statute of wills, but entitled, "an act for the explanation of the statute of wills," in which they re-enact the provisions of the first statute of wills, and introduce the exception as to corporations; not, therefore, expressly prohibiting corporations from taking, but qualifying the capacity to devise. The intention seems to have been to rely upon the mortmain laws, to keep property from corporations and to qualify the statute of wills so as not to interfere with those prohibitory acts.

The distinction is a wide one between an incapacity to devise and a prohibition against taking; for, although there may be an incapacity to devise directly to a corporation, yet such incapacity will not prevent the corporation from taking by grant from the devisee in trust, if there is no prohibition against their taking. So, too, there may be an incapacity to devise lands to a corporation, and yet the corporation may take a use. But in either case, if prohibited from taking, the law would not probably allow that to be indirectly done which was directly prohibited.

If, then, there is no other reason arising from the statute of wills.

why corporations may not take land by devise, except the want of capacity in the devisor to convey, there would seem to be no objec tion in this case against the corporation's taking as cestui que use; for a devisor has capacity to devise a use; and this corporation is not pro hibited from taking and holding either land itself or a use. All the English mortmain acts, including the 15th Rich. 2, are repealed by

our statutes.

And if corporations can not take by devise, merely for want of capacity to take in that particular way, the cases of a conveyance from a wife to her husband through the intervention of a trustee, and of a tenant in tail to a purchaser by means of a common recovery, seem to be conclusive to show that an indirect mode of conveyance is no fraud upon the law when resorted to only to remedy a want of capacity to convey directly.

If it is shown that the exception in the statute of wills is to be regarded not as a prohibition against the taking of lands by a corporation, but as a qualification of the capacity to devise, created by that statute, the opinion pronounced in the court of chancery in this cause contains another view of the subject which appears to my mind perfectly conclusive. It is, that before the statute of wills, when persons were not capacitated to take lands by devise, they might nevertheless take the use in that way; and, therefore, that since the statute of wills, although corporations can not take lands by devise, yet they may take the use, there being no prohibition.

Corporations, since the statute of wills, stand in the same situation as to taking lands by devise as all natural persons stood in before that statute. If, therefore, a use was devisable before the statute, a corporation may take a use by devise since the statute, especially if it be such as is not executed by the statute of uses.

And

It is said by Cruise that uses were devisable, though lands were not; and persons, by that means, acquired a disposition of property for the benefit of their families, which they had not otherwise. They were the invention of ecclesiastics to evade the statutes of mortmain. after the 15th Rich. 2, ch. 5, which subjected them to the statutes of mortmain, the practice of conveying to uses was continued as the most effectual mode of evading the hardships of the feudal tenures, and of securing estates from forfeiture for treason. They became general, and were applied to purposes inconsistent with the policy of the government.

Finally, by the statute of uses, 27 Hen. 8, ch. 10, after reciting all these mischiefs, the legislature declared that possession shall be annexed to the use.

The object of the crown was to reassert its rights of wardship and other feudal profits out of the lands of the nobility; and the intention of parliament was to abolish uses by changing them into legal estates, and subjecting them to the rules of common law tenures.

Before the statute of uses we have seen they were devisable to natural persons, although there was then no statute of wills nor any common law capacity to devise. The operation of the statute upon