By the Court,
Johnson, J.All the personal estate of the testator, as the case shows, has been applied in payment of the legacies given by the will. The Baptist church mentioned in the will, therefore, if it can take at all, takes only the real estate. And it must be deemed to take it under and by virtue of the devise, as real estate. This church or society is a religious corporation duly organized under the act of 1813. By the revised statutes (2 R. S. 57, § 3) it is declared that “.no devise to a corporation shall be valid unless such corporation be expressly authorized by its charter or by statute to take by devise.” It is entirely clear, I think, that religious societies incorporated under the act of 1813, are not expressly, or even impliedly, authorized to take lands by devise, for any purpose whatever, where such devise is made after their incorporation. By the fourth section of the act, the trustees are authorized, upon the incorporation of the society, to take into their possession, and custody, all the temporalities, whether the same consist of real or personal estate, and whether the same shall have been given, granted, or devised, to such church, congregation or society, or to any other person for their use. They are also authorized, by their corporate name or title, to sue and be sued in all courts of law and equity, and to recover, hold and enjoy, all the property and estates belonging to such church, congregation or society, in whatever manner the same may have been acquired, or in *554whose name soever the same may have been held, as fully and amply as if the right or title thereto had been originally vested in the said trustees. This obviously relates to what shall vest in the trustees at the organization of the society, and applies only to such property as the church, congregation or society held, or owned as beneficiaries, before, and at the time of, their incorporation. It has no reference whatever to what the trustees, as such corporation, may after-wards acquire. This power is given in a subsequent clause, and is as follows: “ and also to purchase and hold other real and personal estate, and to demise, lease and improve the same, for the use of such church, congregation or society, or other pious uses,” but the whole is not to exceed the annual value or income of three thousand dollars, bic power is given to these corporations to take and hold real estate, by devise to them, after their creation, but only by purchase. Having no power to take by devise for any purpose, the church or society in question acquired no right, but the devise, and the trust founded upoá? it, are entirely void, and the estate descended to the heirs at law, subject to the life estate of the widow, at the death of the testator. (Theological Seminary of Auburn v. Childs, 4 Paige, 419. Ayres v. The Methodist Episcopal Church, 3 Sand. S. C. R. 351. King v. Rundle, 15 Barb. 139.)
But if the devise could be supported, I am clearly of the opinion that the trust must be held void, for the reason that the object of the charity is too vague and uncertain. If it were any other than a charitable trust, it would be clearly void for the want of any certain beneficiaries who could enforce it. But it seems to be now settled that a gift to a charity, if there is a competent trustee, although there is no ascertained, or ascertainable, beneficiary, may still be upheld, provided the charitable use is so clearly and certainly defined, as to be capable of being specifically executed and enforced, as intended by the donor, by judicial decree. This seems to be the conclusion from all the late cases in this state. (Will*555iams v. Williams, 4 Seld. 525. Owen v. The Missionary Society of the M. E. Church, 14 N. Y. R. 380. Beekman v. Bonsor, 23 id. 298, 310.)
By the terms of the will, the legacy, as the devise is termed, is to he kept by the church as a perpetual fund, on interest. “ And the interest applied for the purpose of remunerating the services of some faithful minister of Christ, and of the Baptist order, who shall he employed by the church, as their missionary, in preaching the gospel in the destitute distant regions of the west.” Although the interest of the fund is to he employed in remunerating the services of the minister to he employed as a missionary, the minister or missionary is in no respect the object of the charity, unless it he incidentally. He was intended to he a mere servant, or laborer, employed and paid to serve others, who were designed mainly to be benefited.
But where was to he the field of labor, and what race or class of people were designed to he the subjects of such missionary labor ? The field designated is “ the destitute distant regions of the west.”
Nothing could possibly-he more vague and uncertain than this. It must he in some western region or regions, and in such as were destitute and distant. I do not see how it is possible for any court, by a decree, to enforce and carry out this disposition. The field, and objects of the labor, could never he designated or directed; and if the court should undertake it, it could never he certain that it was fulfilling, in any reasonable degree, the charitable idea and disposition of the donor. He doubtless had some definite end and purpose in view, hut I think he has failed to express it in his will with sufficient clearness and precision to enable the court to decree its specific execution. For this reason, also, I am of the opinion that the trust is void. There can he no doubt, as it seems to me, looldng at all the provisions of the will, that the testator intended that the three legacies given in the will immediately preceding the residuary bequest, should be prin*556cipally paid out of the real estate. That he intended they should be paid "admits of no doubt whatever, although they were not to become due until the death of the testator’s widow. He first gives to his wife, after the payment of funeral expenses and all honest debts, all his personal estate, of every description absolutely, except one thousand dollars due him in notes, and the interest of this one thousand dollars during her life. He also gives her the whole income of all his real estate for life, absolutely. He then gives these three legacies, amounting in the aggregate to the sum of three thousand five hundred dollars. He then gives “ the whole remaining part of all my worldly property, which it is supposed will exceed three thousand dollars,” to the church, in trust as above referred to.
It will be observed, that the testator knew when he executed the will that at the time these three legacies would fall due, there could be only .one thousand dollars of personal property which could be applicable to their payment, as he had expressly bequeathed all his personal estate, except that sum, and disposed of the interest of that sum also, together with the income of the real estate, thus intentionally leaving the real estate only, out of which the greater portion could possibly be paid. In addition to this, the residuary bequest or devise is of the whole remaining part, only, showing, as I think, very plainly an intention to give only the part which should remain after the other legacies were paid and satisfied. It is conceded that an intention to charge real estate is not to be inferred simply because legacies are given in a will, and the will afterwards contains a general residuary devise of real and personal estate. There must be something more, or the intention will not be rendered sufficiently apparent, to make the legacies a charge upon the real estate, thus devised. (Lupton v. Lupton, 2 John. Ch. 614. Tracy v. Tracy, 15 Barb. 503. Reynolds v. Reynolds, 16 N. Y. Rep. 261.) There is, however, much more than that here, and I think quite enough, taking all the provisions of the will together, *557to make the intention and the charge entirely clear. This being so, the charge follows the estate in the hands of the heirs at law. For although the devise is void, the legacies are valid, and bind the land, in whosesoever hands the same may come. The plaintiffs, therefore, as heirs at law, are entitled to judgment adjudging and decreeing that the said Baptist church or society took no right, title or interest in the property of the testator, by virtue of his will, but that the real estate descended, and now belongs, to the plaintiffs as heirs at law of the testator, subject to the balance due and unpaid upon the legacies to Polly Wheeler and Huldah Groddard, which is a charge upon said real estate. And also that the said defendants account to the plaintiffs, and pay over to them the rents, issues and profits of the said real estate, according to the stipulations and admissions in the case agreed upon.
[Monroe General Term, June 2, 1862.Johnson, Welles and Campbell, Justices.]