I have heretofore expressed my conviction that dissenting opinions rarely add any real value to the reports of adjudicated cases, and that it is wise to refrain from them, under ordinary circumstances, but as the precise question in this case has never arisen in this State, nor elsewhere, so far as I am informed, and as it is, under the peculiar doctrine in this State relating to charitable uses, a question of more than ordinary interest, I feel warranted in stating the views which I entertain, and which compel me reluctantly to dissent from the conclusions of the Court. *Page 665
The facts of the case being sufficiently stated in the opinion of the Court, I shall not restate them here, merely observing that for the sake of brevity I shall in this opinion designate "The Woman's Foreign Missionary Society of the Methodist Episcopal Church," as The Missionary Society; "The Baltimore Branch of the Woman's Foreign Missionary Society of the Methodist Episcopal Church," as The Branch Society; and "The Madison Avenue Auxiliary Branch of the Woman's Foreign Missionary Society of the Methodist Episcopal Church," as The Madison Avenue Auxiliary Branch.
In Attorney-General v. Dashiell, 5 H. J. 392, JUDGE BUCHANAN laid down as law that the statute of 43 Elizabeth for regulating charitable uses was not in force in this State, and that, independent of that statute, a Court of Chancery cannot, in the exercise of its ordinary jurisdiction, sustain and enforce a bequest to charitable uses, which, if not a charity, would, on general principles, be void.
In Atty.-General v. Dashiell 6 H. J. 1, the same question was brought under review, with the same conclusion, the Court holding in that case the benefit of the void bequest results to the next of kin of the testator.
In Baltzell v. Church Home, 110 Md. 270, JUDGE BOYD. speaking for the whole Court, said: "It would serve no good purpose to compare the decisions elsewhere with those made by our predecessors in Dashiell v. Atty.-General, 5 H. J. 392, and 6 H. J. 1. These cases have been too frequently and too recently recognized by us to permit us to disturb them, if we were inclined to do so." There can, upon principle, be no distinction, in this respect, between a gift under a will, and a gift inter vivos, and we have been able to discover none in the books. It is true that in Brown v. Thompkins, 49 Md. 431, this Court held that when the Legislature gives its sanction, and authorizes a religious body to take and hold subscriptions or contributions in money or otherwise, for religious purposes the power thus to take by gift *Page 666 does not embrace power to take by will, and gave as a reason for thus holding, that "Article 38 of the Bill of Rights declares that every `gift', `sale' or `devise' of real or personal property for religious purposes, to take effect after the death of the `seller' or `donor,' without the prior or subsequent sanction of the Legislature, shall be void. The distinction between a `gift,' and a `sale,' and a `devise,' is thus expressly recognized by the Constitution." But it is clear that the Court did not mean to declare that there was any distinction between a gift under a will, and a gift inter vivos, and it is equally clear that the distinction meant was between benefits acquired from "sellers" or "donors," and those acquired from devise or bequest, and consequently what was there said has no application in the present case. Whatever then will avoid a gift under a will must avoid a gift inter vivos. If the devise or bequest fails because the devisee or legatee, as an unincorporated body is incapable of taking title, how is incapacity converted into capacity, because the gift is intervivos and not under a will? To hold that in one case the gift is invalid, and in the other is valid is to confess the Courts to be impotent to avoid or prevent a transaction which the law forbids to be made, and declares to be void when attempted.
In Halsey v. Convention, 75 Md. 275, JUDGE ROBINSON, in speaking of the capacity of a corporation to take property for the purpose of founding and maintaining a school for boys, uses the words gift and devise as interchangeable, and JUDGE McSHERRY, in Bennett v. Humane Society, 91 Md. and inMissionary Society v. Mitchell, 93 Md., repeatedly uses them in the same manner, as do the leading text writers on the subject of gifts. In the one case, as in the other, if the donee is incapable of taking for the expressed purpose of the gift, the gift must fail. In case of a will, the law interposes, when properly invoked, to prevent an attempt to perfect the gift by delivery, and in case of a gift inter vivos, *Page 667 the law, when properly invoked, interposes to declare the physical delivery to be ineffectual and to declare the donee to be a trustee for those in whom the law vests the subject of the gift. In Lane v. Eaton, 69 Minn. 141, where, as in Maryland the English Law of Charitable trusts, and the doctrine of cypres has never been recognized, it was held that a voluntary unincorporated association, constituting a branch of the Salvation Army, whose membership is fluctuating and uncertain, could not be the beneficiary under a will, and in like manner in another case a donation to the "Church of England" was held void, that not being a corporate body. In all such cases the donee or legatee takes only the legal title, and a trust results by implication of law to the donor or his representatives, or to the testator's residuary legatees or next of kin. Sheedy v.Roach, 124 Mass. 172; or as expressed by LORD ELDON, inMorice v. Bishop of Durham, 16 Vesey, 521, "though the trust is not declared, or is ineffectually declared, or becomesincapable of taking effect, the party taking shall be a trustee, if not for those who were to take by the will, for those who take under the disposition of the law."
In M.E. Church v. Jackson Square Church, 84 Md. 173, which was a case of a conveyance of land held void, there was shown to be a valuable consideration for the conveyance and for thatreason only, a resulting trust was not raised, and the grantees were held to take an absolute interest. But here there is no consideration. In Trustees v. Hart's Executors, 4 Wheat., JUDGE MARSHALL said: "The bequest was intended for a society which was not at the time, and might never be incorporated.According to law it is gone forever, and the property vests, if not otherwise disposed of, in the next of kin. Can the bequest be taken by the individuals who compose the association at the death of the testator? The Court is decidedly of the opinion they cannot. No private advantage was intended for them." *Page 668
In M.E. Church v. Warren, 28 Md. 338, where the testatrix bequeathed a moiety of the residue of her personal estate to the M.E. Church at Greenborough, that church was not incorporated when the will took effect, though it subsequently became incorporated. JUDGE MILLER said: "As a general rule, it is clear that a bequest or devise to an unincorporated association is void, and it is only by virtue of that peculiar jurisdiction exercised by Courts of Equity in regard to charitable uses that such bequests have ever been sustained * * *. It has been decided that the Statute of 43 Elizabeth concerning charitable uses has not been adopted, nor its principles recognized as part of the common law of this State, * * *. This bequest must therefore be held void, because there was, at the time the will took effect, no legatee in being capable of taking it."
In the case now before us the Missionary Society is a duly incorporated body capable of taking for its corporate purposes under a devise, bequest or gift. The purpose of Mr. Crook was to make a gift, but the attempted gift was not to the corporate entity, the Missionary Society, but either to the Branch Society, or to the Madison Avenue Auxiliary, according as the one or the other might be held to be the real beneficiary under the face of certificate No. 353, or under the indorsement thereon which has been transcribed herein. If the proposed gift could be considered as complete in virtue of the assignment to Mrs. Uhler as Treasurer of the Branch Society, of the certificate of stock No. 122, and the issuance by the Crown Cork and Seal Company of the new certificate No. 353 to her as Treasurer of the Branch Society, then the gift was to the Branch Society. If, however, effect is to be given to the subsequent assignment and declaration of trust in favor of the Madison Avenue Auxiliary, endorsed on certificate No. 353, then the gift was to the Madison Avenue Auxiliary. But neither of these are corporate bodies. Both are voluntary unincorporated associations of individuals, *Page 669 and under all the Maryland cases, such associations cannot take a gift such as that under consideration. They have no common personal interest in the subject of the gift. Hence they do not, in this case, come within the class of cases of which Mears v.Moulton, 30 Md. 142, is an illustration. In that case Mrs. E.A.F. Mears, as treasurer had an account in the Chesapeake Bank. Mrs. Mears was afterwards removed, and Mrs. Moulton was appointed treasurer in her stead. The bank filed a bill of interpleader to protect itself against the rival claimants of the fund. It was insisted that the appellees, Mrs. Moulton and others, members of a voluntary unincorporated association were incapable of suing, either at law or in equity, but the Court decreed the money should be paid to Mrs. Moulton as new treasurer, and this decree was affirmed on appeal, JUDGE ROBINSON saying: "It is an error to suppose the claim of the appellees is based upon, or in any manner depends upon the provisions of 43 Elizabeth. It is admitted on both sides that the fund in controversy was earned by the joint labor and industry of a voluntary association of ladies, under the name of the "Southern Orphans' Association of Baltimore." As such, it was by them deposited in bank and the right of the members of this association, whether incorporated or not, to claim the money cannot be questioned. They cannot sue in a corporate capacity, but as individuals having a commoninterest."
The Missionary Society however seeks to bring the case within the exception established in Shively v. Baptist Church,67 Md. 495. In that case there was a bequest to a church, a corporate body, "to be applied to the Sunday School belonging to, or attached to, said church." CHIEF JUDGE ALVEY said: "The Sunday School is shown to be an integral part of the church organization, and therefore embraced within the scope of the corporate functions and work of the church," and the bequest was held good; and that case was followed in Halsey v.Convention, 75 Md. 275; Woman's *Page 670 Foreign Missionary Society v. Mitchell, 93 Md. 199; Doan v.Ascension Parish, 103 Md. 662; Baltzell v. Church Home,110 Md. 270, and other cases.
But to bring this case within Shively's case, would be a plain inversion of the reasoning by which the bequests in that case and the other cases last cited, were sustained. In all those cases the bequests were directly to a corporate body capable of taking, and the uses to which the bequests were to be applied, were within the scope of the corporate functions and work of the capable legatee. The bequests were in fact bequests to a corporation for its general and corporate purposes. Here the gift is to a body incapable of taking, a voluntary unincorporated association, though organized as subsiduary or auxiliary, to the corporation. The proposition of the association we are now considering, like an inverted cone, must fall for want of a base upon which to stand.
This distinction was pointedly made in Trinity M.E. Church v.Baker, 91 Md. 539, in an opinion by the late JUDGE JONES.
One of the bequests in that case, in the ninth item of the will, was to "The Trustees of Randolph Macon College, a corporation, to be applied to aid deserving young women such as expect to attend the Randolph Macon Woman's College, at Lynchburg." A part of the work of the corporate legatee was carried on through the agency of the Randolph Macon Woman's College, organized by the parent corporation to carry out its general objects. This bequest was sustained under the decision inShively's case, supra. But in item ten of the same will, thirty-five hundred dollars was bequeathed to the trustees of the corporation of Trinity M.E. Church, South, to be invested, and the annual income on six hundred dollars, part thereof, to be paid to the Trinity Auxiliary of the Woman's Foreign Missionary Society of the M.E. Church, South. This auxiliary was not an incorporated body, "but an independent voluntary association, called into existence by the volition of the members composing *Page 671 it, and continuing its existence only at the volition and pleasure of its membership," which is the precise situation in the case now before us; and that provision of item ten was for that reason held void. Another bequest under the eighteenth item of the same will was to "The Woman's College, at Lynchburg, Virginia, for the education of one or more worthy girls." The Woman's College at Lynchburg was not an incorporated body, though an organized auxiliary of the parent corporation. JUDGE JONES declared that in his opinion this bequest was void, the legatee named being incapable of taking. The majority of the Court did not deny the principle involved in the view thus expressed by JUDGE JONES, but rescued the bequest from invalidity, because they held, upon certain evidence in the case that the term "Woman's College" was a misnomer, and that the intention of the testatrix was to make the corporation, "The Trustees of the Randolph Macon College," the legatee under this item of her will, and that being so, this bequest was valid for the same reason that the bequest under the ninth item was valid. In this case there is no evidence upon which to find a misnomer, and as it is clear that but for the fact that the majority of the Court found there was a misnomer in that case that bequest would not have been sustained by the Court, that decision practically carries with it the authority of all the judges who sat in the case, to the effect that the gift in this case is void because the donee is incapable of taking.
This Court concurring with the learned Judge of the Circuit Court bases its opinion upon the proposition that this was a giftperfected by delivery, and that such a gift can no more be revoked by the donor than a sale or any other executed contract, and that if not revocable by the donor in his life, his executor, for the same reason, cannot revoke it, or dispute its validity. But surely this proposition must imply a donee capable oftaking, just as it implies a donor capable of making the gift. How can there be a perfected gift unless the donor is capable of giving, and the donee is capable *Page 672 of taking? To hold otherwise is to beg the question of a perfected gift. If the attempted gift were intended to vest in the individuals composing this unincorporated association, a common, private, interest, they would be capable of taking in such capacity, and for such purposes. But such a purpose is conclusively repelled by any possible construction to be given to any or all of the instruments by which it was sought to vest this gift, either in the Branch Society, or in the Madison Avenue Auxiliary. It is just because the Statute of 43 Elizabeth is not in force in this State, that the gifts in the cases we have cited were held to be void. That statute was enacted for the very purpose of validating gifts which would have been otherwise invalid. Both in its title and its preamble, it refers to "goods, chattels, money, and stocks of money given," etc., and giftsinter vivos, or "perfected gifts," as designated in the opinion of the Circuit Court are thus within the very terms of the act. The Court refers in support of the ground of its opinion, to section 415 of Article 23, in force from 1868 to 1908, which is as follows:
"It shall be sufficient in any suit, pleading, or process, either at law or in equity, or before any justice of the peace, by or against any joint stock company or association, to describe the said joint stock company or association, by the name or title by which it is commonly known, or by, or under, which its business is transacted." But that section refers exclusively to the form of pleading and could not have been designed otherwise to enlarge the powers or capabilities of joint stock companies or associations. Before that Act, such unincorporated associations were capable of suing or being sued in the names of the individuals composing the association, but their right thus to sue or be sued was limited, as held in Mears v. Moulton,supra, "to matters pertaining to or affecting their interests," etc., their common private interests. After the passage of that Act, and during its continuance upon the statute books, they could sue or be sued either by the names of those composing the association or by *Page 673 the title under which their business was transacted, but there was no other enlargement of their capabilities or powers. We cannot perceive anything either in the case of Littleton v.Wells Council, 98 Md. 453, or My Maryland Lodge v. Adt.,100 Md. 238, which supports the proposition under consideration, as in both those cases the associations were dealing with their common private interests. Their power to make contracts, or to accept gifts, must be exercised for their own private common interests, and not for those of a corporation such as the Missionary Society.
All the authorities agree that an acceptance is an essential and indispensable element of a valid gift "inter vivos."
In 14 Amer. English Enc. of Law, 1015, 2nd ed., it is said: "To constitute a valid gift inter vivos there must be a gratuitous and absolute transfer of the property from the donor to the donee, taking effect immediately, and fully executed by a delivery of the property by the donor, and an acceptance thereof by the donee, * * *. To constitute a valid gift there must be the assent of both parties. There must be not only a delivery of the property, but also an acceptance on the part ofthe donee." Idem 1027.
In Thornton on Gifts, section 79, the author says: "Like in a contract there must be two persons to every gift, for an acceptance of the thing given is as essential as the acceptance of the terms of the proposed contract * * *. Until acceptance the donor has full power to revoke the gift, although every other act has been performed that is essential to make a perfect gift, section 81 * * *. This acceptance must be within the lifetime of the donor. It cannot be made after his death," sections 80 and 116. The decided cases sustain these text writers.
In Pierce v. Buroughs, 58 N.H. 302, it was held that "the assent of both parties is as necessary to a gift as to a contract." In Scott v. Berkshire Bank, 140 Mass. 157, the Court said, "the acceptance of the donee completes a contract between the donor and the bank." *Page 674
In Gray v. Nelson, 77 Iowa 69, a gift was held invalid, "because the evidence showed there was no acceptance of the gift."
In Payne v. Powell, 5 Bush. 248, where there was a conflict of evidence as to delivery, the Court said, "even if the view that there was delivery was adopted, still there is no evidence of an acceptance of the gift in the life of the father;" and it may be observed here that all the cases agree that in gifts between parent and child the Courts lean toward sustaining the gift if possible.
In Love v. Francis, 63 Mich. 192, it is said, "the acceptance of a gift need not be made immediately. It is sufficient if made before revoked by death or otherwise."
In Blanchard v. Sheldon, 43 Vt. 514, it is said, "to constitute a valid gift there must be both a delivery by the donor to the donee, or to someone for the donee, and an acceptance by the donee."
And in Nickerson v. Nickerson, 28th Md. 332, this Court speaking through JUDGE ALVEY said: "To complete the investiture of title there must be the mutual consent and concurrent will of both donor and donee, or trustee or guardian acting for the donee in the acceptance of the gift," and in Taylor v. Henry,48 Md. 557, JUDGE ALVEY again declared acceptance to be essential. It is true that a donee is not required to accept a gift in person. He may, if sui juris, authorize an agent to accept it, or he may ratify acceptance by an agent who has undertaken to accept for him without authority. But, "it must be shown either that the agent has authority to accept or that his act was ratified by the donee before a revocation." Thornton onGifts, section 88.
I may have dwelt unduly upon the necessity of an acceptance by the donee, but it seemed to me important to emphasize that necessity as the foundation of the conclusion to which I am driven, viz, that it is impossible to find any acceptance in this case. *Page 675
It is conceded that at common law a bequest to an unincorporated body is void, and the reason is that it is neither a natural person nor an artificial person. It is neither endowed with the intelligence and volition which are natural attributes of every sane person of mature years nor has it been invested by the State, with those powers to be exercised for its benefit through the agency of natural persons, who in their aggregate capacity constitute the body corporate.
The Legislature of this State with the commendable purpose of preventing the failure of bequests or devises in such cases, has provided that such bequests or devises shall not fail, if the will making the same shall contain directions for the formation of a corporation to take the same, and the actual formation of such corporation within twelve months from the date of probate of the will, and this provision serves to show how settled and inflexible is the rule of the common law, that an unincorporated body cannot take a bequest or devise. In the case at bar, there was no corporate body answering to the description of the donee in this case, and there has been none such formed since the date of the attempted gift, even if it were possible to suppose that the provision of the Code above mentioned, could, by any rational construction, be held to embrace such a case as this.
In Hannon v. The State, 9 Gill, 440, where a gift by deed was attacked, the Court of Appeals said: "Every sane man has authority to give away his property, unless he attempts it upon terms which the law repudiates as against sound policy. He cannot give it to be held in perpetuity, or by any tenure not consistent with the rules of law, nor may he devote it to impolitic or criminal objects." The English Statute of 43 Elizabeth was necessary in England to give validity to such charitable bequests, devises and gifts, as that now under consideration. The Courts of this State have declared that this statute "has not been adopted in this State, nor its principles recognized as part of the common law of this State." They have repudiated that statute as *Page 676 against sound policy and to permit property in this State to pass and be held under its policy and principles, is in the language of 9 Gill, supra, to sustain a gift attempted to be made "upon terms which the law repudiates as against sound policy" and "to be held by a tenure not consistent with the rules of law." InThornton on Gifts, section 64, it is said a gift cannot be made to a dead person, "for a dead person has no power to accept it. Nor can one be made to an unborn infant," for the same reason. In the latter case the capacity to accept has never sprung into existence. In the former it has perished with the loss of intelligence and volition.
The principle upon which the text is founded is the same that in this case denies validity to the attempted gift and was established as far back as 12 Cokes Rep., Hayne's case, 113. "The case was that one Wm. Haynes had digged up the several graves of three men and one woman in the night, and had taken their winding sheets from their bodies, and had buried them again, and it was resolved by the Justices at Sergeants Inn in Fleetwood that the property in the sheets remains in the owner,that is, in him who had property therein, when the dead body was wrapped therewith, for the dead body is not capable of it as in 11th Henry 4. If apparel is put upon a boy, this is a gift in the law, for the boy hath capacity to take it; but a dead body, being but a lump of clay, hath no capacity * * *. Also a mancannot relinquish the property he hath to his goods, unless theybe vested in another." This opinion or report I conceive to contain the absolute law of this case. It is couched in the quaint language and style of the period, but modern rhetoric could and nothing to its clearness or cogency.
In Johnson v. Hines, 61 Md. 131, the Court was considering the effect of a conveyance made by a trustee under a decree in equity, before the payment of the purchase money and without ratification of the sale, and held that the unauthorized deed of the trustee could convey no title to the purchaser, *Page 677 and in so holding, used the following language: "That nothing can emanate from nonentity, or, as more tersely enunciated, denihilo nil, is an axiom in the physical sciences which might be appropriately transferred to a judicial investigation of this nature." And it seems not inappropriate to repeat the language here. How can acceptance be presumed, or deduced from anything in the case, if the donee is neither a natural nor an artificial person; in other words if it is a nonentity: Or, recurring to the language of the Iowa case, Gray v. Nelson, supra, how could "the evidence more conclusively show that there was no acceptance of the gift," than by showing, as it does show here, that the donee had no capacity to accept?
It can make no difference in this view of the case that the parties here are not in Court of law, but in a Court of Equity.
In DeGrange v. DeGrange, 96 Md. 614, this Court said: "It has been uniformly held that unless the gift was perfected, and the subject matter of it had passed out of the dominion of the donor and into that of the donee in the life time of the donor, the gift was not perfected, and the donee could not recover it from the estate of the donor."
In no case will a Court of Equity interfere to perfect a defective or imperfect gift. "A gift which is not good and valid in law cannot be made good in equity." Pennington v.Gittings, 2 G. J. 27; Cox v. Hill, 6 Md. 287. "Equity cannot make that good and enforcible as a gift inter vivos, which was incomplete, and therefore not enforcible at law."Baltimore Retort Fire Brick Co. v. Mali, 65 Md. 98.
I share the desire of the learned Judge of the Circuit Court and of my brothers in this Court, to sustain this gift, but I have not been able to reconcile the decree which is here affirmed with the convictions which I entertain as to the legal principle which should control the case. I feel constrained to adopt the language of JUDGE MILLER, in M.E. Church v. *Page 678 Warren, supra, where he said: "It is to be regretted that the wishes of the testatrix (donor) should be thus defeated, but our duty is to declare the law as we find it to be, not to make law for the purpose of carrying out what we may think in individual cases ought to be done," and for the reasons stated, but with sincere respect and deference to the views of the majority of the Court, I think the decree of the lower Court should be reversed and the bill be dismissed.
I am authorized by JUDGE SCHMUCKER and JUDGE BURKE to say that they concur in this opinion.