By the Court,
Savage, Ch. J.The demurrer being to both counts of the declaration, if either is good the plaintiffs will be entitled to judgment. I will consider the objections to both counts.
It is objected that the release from the patentees to the elders and deacons, being given to parties not in possession, passed no interest. It is true that a release is not the appropriate conveyance by which to transfer a rent. Technically it is given to some person having an interest in the premises, upon which the release is intended to operate. There can be no doubt that in this case the release was intended to operate by way of passing the estate; and rather than the intention of the parties should be defeated, the court might presume a previous lease, conveying a lesser estate in the estate intended to be conveyed. It was intended, however, as an assignment. Perhaps we might" give it effect as a release. The releasors held the estate in trust for the people of the town of Schenectady. The releasees, as inhabitants of the town, had an equitable interest in the very rent; they were a part of the cestuis que use, and, under the circumstances of this case, had all the possession of which the subject was susceptible, to enable them to receive a release. I am inclined to think it sufficient.
Nor is there a substantial objection as it regards the consideration. There is indeed no pecuniary consideration; but the support of the gospel in a Christian country is a sufficient consideration. The conveyance being to the elders and deacons by name as individuals, the legal estate is supposed by the first count to be in them ; and they holding as joint tenants, the estate survived to the last liver and descended to his heir at law, who, in 1772, conveyed to the minister, elders and deacons of the Reformed Protestant Dutch Church, which is the style of an incorporation granted in -1734 to the society before known as the elders and deacons of the Nether Dutch Church in Schenectady. To this con*497veyance it is objected that there is no averment of a capacity to take real estate. Our statute gives this capacity to religious incorporations, which seems to render any such averment unnecessary; and it may fairly be presumed the corporation in 1772 possessed the same capacity. In the second count this release is not stated ; but it is averred that the elders and deacons being seised by virtue of the release from the patentees to the use of the church, the plaintiffs were duly elected the minister, elders and deacons of the Nether Dutch Church, now known by the title of the minister, elders and deacons of the Reformed Protestant Dutch Church, and so became the successors of the elders and deacons of the Nether Dutch Church, deriving title directly from the releasors, and not through the heir of the last survivor. Our statute, (2 R. L. 212,) directs how a church may become incorporated, and that the trustees of any church are authorised to take possession of the temporalities belonging to such church, whether real or personal estate, and whether the same may have been conveyed directly to such church or to any other person for then: use. Under this statute the present plaintiffs were authorized to take possession and enjoy the rent in question ; and under the statute of uses, the legal estate is vested in the cestui que use, after such quality? manner and form as they had in the use. (1 R. L. 72. 1 Cranch, 432, s. 6.)
Before the incorporation of the plaintiffs, there was no person in esse capable, as cestui qui use, to take the estate ; and then the persons who were described as elders and deacons stood seised to the use. There was indeed a church, but not incorporated; and when the church received legal capacity to take and hold real estate, the statute executed the possession to the use, and the estate vested. The averment in the declaration that the plaintiffs were elected the minister, elders and deacons, &c. 1 understand alludes to their first receiving a corporate capacity; for previous to that time it is averred Garret Symonse and others were seised of the estate in question. This is the view of the case presented by the second count.
*498I confess, I think the plaintiffs’ title strongest under the grg£ comg; according to which the title may be stated thus: Ryert Schermerhorn and others held the land in trust for the town of Schenectady. They were patentees, and had the legal estate. They leased to Vrooman, reserving the rent in question. This rent they soon after transferred by release to Garret Symonse and five others, in trust for the use of the Nether Dutch Church. Garret Symonse and the other five trustees died, John Delamont being the last survivor. The church, in the mean time, had been incorporated, and the heir at law of John Delamont holding the legal estate, conveyed to the church by its corporate name: which church, though by a different name, is represented by the plaintiffs and sues for the rent.
I think the title good; and if so, the plaintiffs are entitled to judgment on the demurrer, with leave to the defendant to plead on payment of costs.