pronounced the -opinion of the Court.— The plaintiff brings this action for the benefit of the heirs at law oiAmmi Fuller. Hence, he contends, that the devise to the Methodist Church or society, under whom the defendant claims to hold, is void. And the principal question presented and urged is, in whom is the legal estate vested ?
It is conceded by the defendant’s counsel, that the Church or society, having no legal perpetuity, cannot take a fee. Indeed, nothing but the use or interest is given them by the will. And if, at any time, this Church or society should become extinct, and there should, also, cease to be any conference of churches of the Methodist order comprising said town of Charlotte, there would *402no cestui que trust, and this interest would revert to the heirs? Jat law.
The ^len appoints, as agents and trustees, seven persons,. nam>ng them, and their successors in office, who might be thereafter appointed, according to the rules, he. of said Church and society, to receive, possess, improve and take charge of said real estate, for the use and benefit of said Church, as aforesaid. It was obviously the intention of the testator, that these persons and their successors should take the same care of this real estate as they might do, if a title in fee were vested in them : yet he has not used very apt words to vest the fee in them. But, aside from this, a question arises, whether these agents or trustees possess sufficient perpetuity to support a fee ? They clearly do not. They are, if possible,more fragile than the Church or society itself. The manner-,- in- which they are named in the will, supposes, that they are already in office, by appointment of the Church, to take care of the temporal concerns of the Church t their successors to follow them' in this case must be so appointed ; and the case shows, that they were so in office at the date of the will, and some were out before the decease of the testator. And the will makes no provision for the survivors to act upon the decease of some. It therefore virtually makes those persons trustees who then held, and should from time to time hold, the offices named by-such appointment from the church or society. Therefore, these cannot, by any possiblity, out-live the Church or society : but the latter may continue, and yet neglect to make such appointments. That is, the cestui que trust may continue, but there will be no trustees. Now, what is to be the result of this state of things? Shall the cestui que trust lose the use for want of a trustee ? We think not. In England, according to the authorities cited in argument, the heir must stand as trustee, on failure of the trustees appointed.
By the operation of our statute the executor must be the trustee while the estate is settling. When that is done,the heirs hold in trust for the cestui que trust: and they, in whom the legal estate is, must recover at law, in order to enable them to execute their trust.
According to the manifest intention of the testator there is yet no failure of a cestui que trust; for the case shows this Church or society to have had an existence as such for more than twenty years, and still to retain that existence. They must have this interest: and the heirs at law must hold this real estate and manage it, according to the intention of the testator, for the benefit of *403'ibis Church ; or, if they refuse or neglect, the-court of chancery, on a proper application, will appoint others who will execute the trust. In executing this trust, whether the land ought to be retained and cultivated, or sold, and the avails put out at interest, must depend upon circumstances not now disclosed to us. But the expressions of the will go far to show, that the testator supposed a sale would be most prudent and profitable. He does not say that the Church shall have the net profit of ths farm, but shall have the interest, the principal being kept good. Again, it is to be placed on interest. It may by this time be supposed, that our decision will allow the plaintiff to recover, and he, and the heirs after him, hold in trust, and account with the defendant or with the Church for the interest; for the defendant cannot hold by virtue of his title, through want of power in the acting trustees, who put him in possession.
The plaintiff, however, labors under no small difficulty. He brought this action in January, 1828, in his capacity of executor. Ten months before this, to wit, March, 1827, this same real estate was, by a committee appointed by the court of probate and a decree ofthe court, divided off according to the will to these trustees, or to this Church ; so that his right over it as executor had ceased before he commenced his action. Therefore the defendant’s possession is sufficient title for him, till some person with a better title would oust him.
The judgement of the county court is affirmed with costs.