The opinion of the Court was delivered by
Gibson, C. J.Before the spirit of discord and separation, which seems at present to possess the elements of all things, had manifested itself in the Methodist society, there was but one congregation of that denomination in Pittsburgh. In process of time the building, in which its exercises were performed, was found to be too small for its accommodation; in consequence of which the principal subject of this action was purchased, and a church built on it by the Methodist brethren and individuals belonging to other denominations. ' The grant was in the form prescribed in the boob of “ doctrines and discipline” of the society : that is to say, the conveyance was to natural persons, but without words of inheritance, and in trust to erect a house of worship “ for the use of the members of the Methodist Episcopal church in the United States of America, according to the rules and discipline which from time may be agreed upon and adopted by the ministers and preachers of the said church at their general conference in the United States of America; and in further trust and confidence, that they shall at all times hereafter permit such ministers and preachers belonging to the said church as shall from time to time be duly authorized by the general conference of the ministers and preachers of the said Methodist church, or by the yearly conferences authorized by the said general conference, to preach and expound God’s holy word therein.” To this was added, a grant to the trustees of perpetual succession, with power to appoint their successors from persons to be nominated by the minister in charge. To a professional mind it is unnecessary to intimate that this formula was adopted in ignorance of the common law, which suffers not the fee to pass by deed without technical words of inheritance, or an individual to clothe an association of natural persons in one of the principal attributes of a corporation. What effect the want of proper words of conveyance may have on the ultimate destination of the property, it is not at present for us to say. The cause has been argued as if the fee had actually passed, and our business is consequently with the validity of the trust. But it will not be thought an officious interference with the concerns of the society to *224suggest to it, or the parties ultimately entitled, the necessity of immediate measures to secure the property, held by it under this form of assurance, to the objects originally contemplated by the donors.
The decision in Witman v. Lex, 17 Serg. & Rawle 388, is full to the point, that a trust in favour of an unincorporated religious or charitable society, is an available one ; and were the Methodist Society constituted entirely of members resident within the state, would probably rule the cause. This society, however, pervades the United States, and, till lately, was connected, it is believed, with the same sect in the British piovinces in America. It then becomes necessary to inquire, how far a trust in favour of what is, in some respects, a foreign society, is consistent with the spirit of our laws. The act of 1730, entitled “ an act for the enabling of religious societies of protestants, within this province, to purchase lands for burying grounds, churches, &c.” provides that, “it shall be lawful for any religious society of protestants within this province, to purchase, take, and receive by gift, grant or otherwise, for burying grounds, erecting churches, houses of religious worship, schools and almshouses, for any estate whatever; and to hold the same for the uses aforesaid of the lord of the fee, by the accustomed rents.” The words “ religious societies within this province” are understood to mean congregations, or distinct communities, though, perhaps, members of a superior body, and not particular sects or denominations, that cannot be said to have a local habitation any where : so that, if the trust before us is not to be sustained but on the enabling provisions of this statute, it must fail. On the other hand, it is fair to say that, though it derives no support from the statute, it is not necessarily.prohibited by it; for it is an undoubted rule of construction that an affirmative statute such as this is, does not take away the common law, and there certainly was no absolute prohibition of such a trust by. the common law, or any previous statute. The statutes of mortmain have been extended to this state only so far as they prohibit dedications of property to superstitious uses, and grants to corporations without a statutory license. The present is certainly not a superstitious use ; and, indeed, it is not easy to see how there can be such a thing here, at least in the acceptation of the word by the British courts, who seem to have extended it to all uses which are not subordinate to the interests and will of the established church. So far was this carried in the Attorney-General v. Guise, 2 Vern. 266, that the charge of an annual sum for the education of Scotchmen to propagate the doctrines of the church of England in Scotland, was treated as superstitious, because presbyteries were settled there by act of parliament. The trust before us, then, not being within the purview of any of the statutes of mortmain, as extended to this state, and the common law carrying the objects of the conveyance no further into effect than to vest the title in the trustees, how far are we to lend the equitable powers of the court to the execution of a trust which has not the benefit of any principle of legislative re*225cognition ? Equitable powers, in support of charitable uses, seem to be founded rather in necessity and the constitution of the court, than in the provisions of the 43 Eliz., which is not in force here ; and granting that in the exercise of them we are to have respect to the usages and necessities of our own people, it must be admitted, on the other hand, that we are to be guided by the policy of the legislature, as proclaimed by its acts in parallel cases. Admitting, then, that this trust requires not the aid of the act of 1730 to remove any positive impediment to it, yet as the execution of it requires an exertion of the equitable powers of the court, it must likewise be admitted that this exertion can be had only in subordination to the avowed policy of the state, which is too clearly expressed in that statute to be misconceived. Nor is it expressed in that statute alone. The power of self-incorporation delegated on certain conditions, by the act of 1791, to associations for literary, charitable and religious purposes, is expressly restrained to “ citizens of this commonwealth and the value of the annual profits of real estate to be held even by such corporations, is limited to 500 pounds. The statutes of mortmain, too, which deprive corporations of capacity to hold, would be of little avail if foreign unincorporated societies might possess all the incidents of ownership by the instrumentality of a trust. It is fair to infer, then, from all these statutes, an intent to interdict to such societies the use of privileges that were but sparingly allowed to our own citizens. Though no sect has shown a disposition to acquire real estate as an engine of power, or even for purposes of revenue beyond the exigences of its current expenditure, the legislature has entertained an evident jealousy of clerical monopoly, by limiting the right of tenure to just so much ground as may be adequate to the purposes of sepulture and the erection of buildings dedicated to religious or charitable uses. In the act of 1730, it is further provided, that “ nothing in this act contained shall be taken or construed to enable any of the said religious societies, or any person or persons whatsoever in trust for them or to their use, to purchase, take or receive any lands or tenements, by gift, grant or otherwise,, for or towards the maintenance or support of the said churches, houses of worship, schools or almshouses, or the people belonging to the same, or for any other use or purpose, save for the uses in this act before mentioned.’’ Now, though glebes have been held in trust as appurtenant to the churches of unincorporated congregations whose property in the soil has been the subject of judicial recognition, as in Caufman v. The Congregation of Cedar Spring, 6 Binn. 59, yet the trust depended not on the enabling provisions of the statute, but on the custom of the province as stated in Witman v. Lex; and certainlyit does not follow, that the members of a religious society, a vast majority of whom are strangers to the custom, should be let into the benefit of it without a legislative license. It seems to me, however,—I speak for myself—that a statute to authorize such trusts would commend itself not less to the judgment of the lawgiver than to the feelings of the philanthropist. Notwithstand*226ing the disregard of popular rights apparent in the constitution of the Methodist Episcopal Church; the sacrifices of its ministers to the promotion of piety, by a life of poverty and self-denial, and their uncommon success in restoring to society the lost and the worthless, whose case is ordinarily reached by the ministration of no other clergy, ought, it seems to me, to allay the fear of clerical dominion, and render it worthy of consideration, whether their efforts in the cause of virtue and good government do not deserve to be encouraged by any reasonable concession of the civil authority.
The preceding remarks dispose of the question of the title so far as the Methodist Society is concerned; and as the conclusion at which we have arrived is adverse to a right in it to recover in any shape, the decision might be rested here. There are, however, other matters in the cause which seem to call for consideration. The legal estate, at least for the lives of the original grantees, is vested in the corporation by force of their conveyance to it; but in whom is the beneficial interest ? The original trust, though void, was not a superstitious one; nor if it were, would the property, as in England, revert to the state for the purpose of being appropriated in eodeni gmere, as no court here possesses the specific powers necessary to give effect to the principle of cy pres, even were the principle itself not too grossly revolting to the public sense of justice to be tolerated in a country where there is no ecclesiastical establishment. The declared trust then being simply a nullity, we have the ordinary case of a purchase in the name of third persons, and consequently a trust resulting by implication of law in favour of those who paid the purchase money. Whether their interests were surrendered to the corporation, by becoming parties to the charter subsequently procured, it is unnecessary to say. If such of the contributors as adhere to the communion of the Methodist Episcopal Church, should still be deemed to have an interest in the property in proportion to the part of its price paid by them, it is obvious, that to enforce it by the law, would produce an endless train of petty legislation, vexatious to all parties, and certainly not very profitable to the cause of religion. But they undoubtedly are entitled to compensation in point of conscience ; and not only justice, but every consideration of policy points to a compromise by which, they may receive what will no doubt be promptly tendered, a fair remuneration.
The title to the burying ground, which, though included in the action, has not been insisted on, depends on circumstances and principles essentially different. The ground was purchased by individuals belonging to the congregation as a cemetery for the families of themselves, and others who should be found willing to pay for compartments in it; and the title was vested in trustees, but without the semblance of a trust for the Methodist Society, which therefore has no colour of right to it. It is observable, however, as a circumstance to be regretted, that the plan of vesting the title was, as in the case of the church, a conveyance to trustees without words of inheritance, *227and an attempted substitution of the principle of succession for the common law principle of descent.
In conclusion, it is but necessary to remark, that even were the Methodist Society beneficially entitled, it could not recover in an action at law, its remedy being a petition to have the trustee for the time being removed for a misapplication of the property to uses foreign to the purposes of the trust; and least of all, could it recover in the name of the corporation by an action against the corporation’s officers, who are ex officio entitled to the management, and consequently to the possession of its property. In every aspect, then, the cause is with the defendants; and I have only to add the expression of a desire that this unhappy controversy may presently cease, at least within the precincts of this state, where the title is so plainly settled by municipal regulations, as to leave nothing to the usual chances of litigation. What the event may be in other states, it would be presumptuous in me to predict; but it certainly would conduce no less to the temporal than to the spiritual comfort of the parties, were they to part in peace having settled their respective claims to the property on the basis of mutual and liberal concession.
Kennedy, Justice”, took no part, having been of counsel in the cause.New trial awarded.