wise for its benefit.112 Where land is conveyed or devised to a trustee for the benefit of a corporation or its stockholders, generally, under the doctrine of equitable conversion, this is a gift of the money and not of the land; and is not within any restriction against the corporation taking and holding real estate under a devise.113 But if the object of the statute is to prohibit or restrict the testamentary power, then a devise of land in trust to sell and pay the proceeds to a corporation would be void.11 It has been held that a statutory restriction against conveyance or devise to corporations, would not be given a retroactive effect, so as to render void conveyances or devises previously made.115 The capacity of a corporation to take property by devise in excess of the amount prescribed by charter, cannot be attacked collaterally by the heirs at law of the testator.116 Where a corporation acquired title to land from a trustee, the cestui que trust was held to be estopped from setting up the want of power or the invalidity of the act in obtaining such title.117 The rule established in a Maine case is that a bequest to an incorporated charitable institution of property in excess of amount of which such corporations are permitted to take and hold, if not prohibited by the statute of wills, or by the charter or the laws under which it was organized, and there was no penalty for taking in excess of such limitation, then any such conveyance would not be void, but voidable only and could be avoided by the state alone.118 Where a 112 Zantzinger v. Gunton, 19 Wall. (U. S.) 32, 22 L. ed. 96; Germain v. Baltes, 113 Ill. 29; Wright v. Methodist &c. Church, Hoff. Ch. (N. Y.) 202. 113 Given v. Hilton, 95 U. S. 591, 24 L. ed. 458; State v. Wiltbank, 2 Har. (Del.) 18; Germain v. Baltes, 113 Ill. 29; Orrick v. Boehm, 49 Md. 72; Church Extension of Methodist &c. Church v. Smith, 56 Md. 362; Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290; Wright v. Methodist &c. Church, Hoff. Ch. (N. Y.) 202; Draper v. Harvard College, 57 How. Pr. (N. Y.) 269; Theological Seminary v. Childs, 4 Paige (N. Y.) 419; American Bible Soc. v. Noble, 11 Rich. Eq. (S. Car.) 156; Fisk v. Patton, 7 Utah 399, 27 Pac. 1; Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103; Milwaukee Protestant Home &c. v. Becher, 87 Wis. 409, 58 N. W. 774. 114 State v. Wiltbank, 2 Har. (Del.) 18. 115 Kelso v. Stigar, 75 Md. 376, 24 Atl. 18. 116 Jones v. Habersham, 107 U. S. 174, 27 L. ed. 401, 2 Sup. Ct. 336; Lauder v. Peoria Agri. &c. Soc., 71 Ill. App. 475; Farrington v. Putnam, 90 Me. 405, 37 Atl. 652, 38 L. R. A. 339; Hanson v. Little Sisters of the Poor &c., 79 Md. 434, 32 Atl. 1052, 32 L. R. A. 293n; Congregational Church &c. Soc. v. Everett, 85 Md. 79, 36 Atl. 654, 60 Am. St. 308n, 35 L. R. A. 693. But see McGraw, Estate of, In re, 111 N. Y. 66, 19 N. E. 233, 2 L. R. A. 387n; Moskowitz v. Hornberger, 20 Misc. (N. Y.) 558, 46 N. Y. S. 462. 117 State Security Bank v. Hoskins, 130 Iowa 339, 106 N. W. 764, 8 L. R. A. (N. S.) 376n. 118 Farrington v. Putnam, 90 Me. 405, 37 Atl. 652, 38 L. R. A. 339; Hamsher v. Hamsher, 132 Ill. 273, 23 N. E. 1123, 8 L. R. A. 556; Stickney, In re, 85 Md. 79, 36 Atl. 654, 60 Am. St. 308n, 35 L. R. A. 693. See also, Merchants' Nat. Bank v. Hanson, 33 Minn. 40, 21 N. W. 849, 53 Am. 5; Hennessy v. St. Paul, 54 Minn. 219, 55 N. W. 1123; Union Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; National Bank v. Whitney, 103 U. S. 99, 26 L. ed. 443; Fortier v. New Orleans Nat. Bank, corporation is incompetent to take property on account of charter limitations, the case is said to be one of mere failure of a trustee, which in equity would not involve a failure of trust.119 § 2377. No power to take real estate by devise-Curing incapacity. -A corporation having no capacity to take real estate or other property at the time a devise or bequest is created, may have such incapacity cured and may legally be qualified to take before the happening of the event upon which a devise or bequest was to become vested.120 Thus, where an unincorporated religious body had no power to take under a will, yet where it became incorporated before the time when a devise was to vest and take effect, it was held to have the power to take and hold the devise. 121 But where a devise is absolutely void so that the title to the property vests in the heirs at law immediately upon the death of the testator, then a subsequent legislative act enlarging the capacity of a corporation to take the devise will be unavailing because the title vested in the heirs, as it was not in the legislative power to devest it.122 § 2378. Conveyance to corporation on conditions subsequent.— Conveyances of real estate to corporations are frequently made upon some stipulated conditions which are to be subsequently performed. If a subsequent condition is not performed the estate may revert to the grantor, or his heirs. Failure to perform a condition subsequent may have the effect either of subjecting the grantee to an action, or of forfeiting the title.123 The general rule is that courts do not favor conditions subsequent, and courts of equity will often relieve against forfeitures produced by such conditions. Courts are inclined to hold that recitals in deeds imposing the performance of future acts upon the grantee as a part of the consideration of the conveyance, are not conditions subsequent but collateral obligations.124 But where the language of the deed is not ambiguous and the intention of the parties is plain and clear, the courts must give effect to the intention as expressed.125 The mere failure to perform a condition subsequent will 112 U. S. 439, 28 L. ed. 764, 5 Sup. N. Y. 66, 19 N. E. 233, 2 L. R. A. Ct. 234. 387n. 119 Eliot, Appeal of, 74 Conn. 586, 51 Atl. 558. 120 Plymouth Soc. v. Hepburn, 57 Hun (N. Y.) 161, 10 N. Y. S. 817. 121 Lougheed v. Dykeman's Baptist Church &c., 58 Hun (N. Y.) 364, 12 N. Y. S. 207. See Wilmoth v. Wilmoth, 34 W. Va. 426, 12 S. E. 731. 122 McGraw, Estate of, In re, 111 123 Weinreich v. Weinreich, 18 Mo. App. 364. See St. Louis v. Wiggins Ferry Co., 15 Mo. App. 227. 124 Platt v. Platt, 42 Conn. 330; Risley v. McNiece, 71 Ind. 434; Martin v. Martin, 131 Mass. 547. 125 Weinreich v. Weinreich, 18 Mo. App. 364. not, of itself, devest the title of the grantee and reinvest it in the grantor; some affirmative act on the part of the grantor, such as reentry, or its equivalent, is necessary; otherwise he will be deemed to have waived the performance of the condition.126 Where such conveyances are made to corporations upon such conditions or upon a trust, a court of chancery will not permit the land to be diverted from the express purposes of the grant. The fact that lands so conveyed have become unsuitable for the purposes stated, was held not sufficient to justify a court of equity in overruling the intention of the parties and putting an end to the trust.127 Land was conveyed to a religious society for use as a burial ground, and it was the intention of the parties to dedicate the property for such purpose. It was held that neither the corporation, the lot owner, nor the heirs of the grantor, could divert it from the uses intended.125 But a condition against alienation in a conveyance to a religious corporation for a stated consideration, was held to be void.129 Very frequent and familiar illustrations of conveyances on conditions subsequent, are found in deeds to railroads. conditioned on the location and construction of the road, or the erection of certain buildings or the maintenance of depots and stations, etc. 130 $2379. Power to take and power to hold.-It will be observed that the restriction of this power as to real estate, is to take and hold; and in some instances it would appear that the restriction might be limited to the power to hold. And from this it has been argued that any restriction on the power to hold, was necessarily a limitation on the power to take. But this does not necessarily follow; and such was not the operation of the English statute of mortmain. "But since those statutes," said the Pennsylvania court, "it is necessary, in order to enable a corporation to retain lands which it has purchased, to have a license for that purpose." But as in this country there are no mesne lords to enter and claim the fee, that right would accrue immediately to the commonwealth.131 A statute permitting a university to hold 126 Chalker v. Chalker, 1 Conn. 79, 6 Am. Dec. 206; Warner v. Bennett, 31 Conn. 468; Jones v. St. Louis &c. R. Co., 79 Mo. 92; Towne v. Bowers, 81 Mo. 491; Ellis v. Kyger, 90 Mo. 600, 3 S. W. 23; O'Brien v. Wagner, 94 Mo. 93, 7 S. W. 19, 4 Am. St. 362; Missouri Historical Soc. v. Academy of Science, 94 Mo. 459, 8 S. W. 346; Sharon Iron Co. v. Erie, 41 Pa. St. 341. 127 Reed v. Stouffer, 56 Md. 236. 128 Second Universalist Soc. v. Dugan, 65 Md. 460, 5 Atl. 415. 129 Magie v. German Evangelical &c. Church, 13 N. J. Eq. 77. 130 Morrill v. Wabash &c. R. Co., 96 Mo. 174, 9 S. W. 657; Stilwell v. St. Louis &c. R. Co., 39 Mo. App. 221. 131 Leazure v. Hillegas, 7 S. & R. (Pa.) 313; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198; McGraw, Estate of, In re, 111 N. Y. 66, 19 N. E. 233, 2 L. R. A. 387n. real and personal property not exceeding a specified value, was held to give the measure of such power to such university to take as well as to hold real property; that it could not be held that while the power of the college to take and hold by gift, grant or devise was enlarged in respect to the power to hold property the power to take was thereby left unlimited.132 Where a charter provision limited the amount of real and personal property a charitable institution could hold, such corporation had power to take only such part of the legacy given as will, with the property already owned, make up a maximum amount.133 Whatever may have been claimed in the older cases, all distinction between taking and holding has been repudiated and wiped out.134 But it will be seen that the statutes make a distinction between the power to purchase and hold property, and the power to take by devise.135 But in other cases it is said that the incapacity to take real estate would not be inferred from an inhibition, held, though the policy of the latter was to prevent the cumulation by the corporation of a specified description of property, if the purpose of the conveyance was a sale of the property by the corporation and application of its proceeds to the object contemplated by the charter.136 § 2380. Power to hold and convey presumed.-The rule is that where a corporation is authorized under some circumstances to acquire, hold and convey real estate, it will be presumed, in the absence of evidence to the contrary, that any real estate which it conveyed was held. and conveyed by it in the proper exercise of its corporate powers.137 Thus where a corporation authorized by its charter to purchase and hold real estate for the transaction of its business, entered into an executory contract of purchase, by which it agreed to make payments at any time within one hundred years, and to pay taxes and interest in the meantime, without the right to possession until payment was made, it was held, in the absence of proof to the contrary, that the court must presume the purchase to have been made for the legitimate purposes of the corporation.138 The rule is that where a corporation 132 McGraw, Estate of, In re, 111 N. Y. 66, 19 N. E. 233, 2 L. R. A. 387n. Barb. (N. Y.) 303; Van Kleeck v. 133 Wood v. Hammond, 16 R. I. 98, inary v. Childs, 4 Paige (N. Y.) 419; 17 Atl. 324, 18 Atl. 198. Leslie v. Marshall, 31 Barb. (N. Y.) 560. 134 McGraw, Estate of, In re, 111 N. Y. 66, 19 N. E. 233, 2 L. R. A. 387n; Wood v. Hammond, 16 R. I. 98, 17 Atl. 324, 18 Atl. 198. 135 Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Attorney-General v. Reformed &c. Dutch Church, 33 136 Rivanna Nav. Co. v. Dawsons, 3 Gratt. (Va.) 19, 46 Am. Dec. 183. 137 Farmers' Loan &c. Co. v. Curtis, 7 N. Y. 466. 138 University of Mich. v. Detroit &c. Soc., 12 Mich. 138. is permitted to acquire and hold real estate, the presumption is that all purchases of land by such a corporation was for valid purposes, and the contrary must be shown by any person denying the right.139 As all corporations are presumed to have power to purchase and hold real estate, the burden is on the person claiming that a conveyance to a mining corporation was invalid under a statute, to show that the property so purchased was mining ground, and that at the time of the purchase the corporation already held mining lands.140 The presumption in such cases is that the corporation has not exceeded its powers.141 The presumption that a deed to a corporation authorized to acquire land for some purpose only was taken by it for a lawful purpose; if the actual purpose was illegal that must be affirmatively shown.142 Where the owner of a certificate of purchase of state school lands was found by the court to be a corporation, the certificate was admissible in evidence on the authority that it would be presumed that the corporation had power to purchase and hold lands.143 § 2381. Purposes for which real estate may be acquired.-As already seen11 corporations have the implied power to take real estate the same as individuals. However, by this is meant that corporations have such power to the extent that it is necessary to effectuate the purposes of their creation. The very purpose of permitting corporations to take real estate is, that they may thereby effectuate their corporate purposes and existence, and to this extent this power is perhaps absolutely unlimited, and especially in its application to certain classes of corporations. In the absence of statutory or charter restriction, as a general rule a corporation has implied power, by purchasé or otherwise, to acquire and hold real estate, when reasonably necessary or convenient to accomplish the object of its incorporation.145 130 Hagar v. Yolo Co., 47 Cal. 222; People v. La Rue, 67 Cal. 526, 8 Pac. 84; Stockton Sav. Bank v. Staples, 98 Cal. 189, 32 Pac. 936; Peru Iron Co., Ex parte, 7 Cow. (N. Y.) 540; University of Mich. v. Detroit &c. Soc., 12 Mich. 138; Connecticut &c. Ins. Co. v. Smith, 117 Mo. 261, 22 S. W. 623, 38 Am. St. 656; Chautauque Co. Bank v. Risley, 19 N. Y. 369, 75 Am. Dec. 347n; Yates v. Van De Bogert, 56 N. Y. 526; Mallett v. Simpson, 94 N. Car. 37, 55 Am. 594; Myers v. Croft, 13 Wall. (U. S.) 291, 20 L. ed. 562. 140 Granite Gold Min. Co. v. Maginness, 118 Cal. 131, 50 Pac. 269. 141 Kentucky Lumber Co. v. Green, 87 Ky. 257, 8 S. W. 439, 10 Ky. L. 139. 142 Chautauque Co. Bank v. Risley, 19 N. Y. 369, 75 Am. Dec. 347n. 143 Diamond Coal Co. v. Cook, 129 Cal. xviii, 61 Pac. 578. 144 See § 2365. 145 Brown v. Hogg, 14 Ill. 219; Cynthiana &c. Tpk. Co. v. Hutchinson, (Ky.) 60 S. W. 378, 22 Ky. L. 1233; Old Colony R. Corp v. Evans, 6 Gray (Mass.) 25, 66 Am. Dec. 394; Richardson v. Massachusetts Charitable &c. Assn., 131 Mass. 174; University of Mich. v. Detroit &c. Soc., 12 Mich. 138; Morris &c. R. Co. v. Newark, 10 N. J. Eq. 352; Moss v. Rossie Lead Min. Co., 5 Hill (N. Y.) |