*331 On Rehearing.
I.
Sherwood, C. J.i. validity op deVISES AND BEquests to churchtdtion op 1865. Upon more mature reflection, I am satisfied that the view expressed by us in a former opinion, that the bequest in Harriet Bailey’s will, 1 whereby she bequeathed $5,000 to be used in erecting a church edifice on an acre of ground also devised by the will to the Baptist church or society in the city of Springfield, was a valid bequest, was an erroneous, though plausible, view of the subject.
The 13th clause of the 1st article of the constitution of 1865 prohibits, in express terms, every gift, sale or devise of land, and every gift, sale or bequest of goods and -chattels for the use, benefit or support of any minister, &c., or of any church, &c. The only exception made to the above comprehensive prohibitions is that exception which permits the gift, sale or devise of the quantity of land mentioned in the next preceding clause of the article. By that clause, one acre of ground is the limit in quantity of land which any church may hold in a town or city. With the wisdom or unwisdom of these constitutional provisions we have no concern. That was a matter confided to the framers of the constitution of 1865, and we have only to obey its behests. One thing which greatly contributed to our error on this point, on a former occasion, was our unwillingness to believe that the framers of that constitution, while permitting the donation or devise of an acre of ground to a church organization, would yet, at the same time, absolutely cut off and prohibit every gift, bequest or devise, whereby such donation or devise could be rendered of any benefit to the church or religious society to which it might have been made. But we are now fully convinced that the bequest of $5,000 for the purposes of a church building, and the bequest of $1,000 for the support of. a minister, which last we held invalid before, must both oc*332cupy the same position, and be held alike obnoxious to the provisions of the constitution before mentioned, thus falling within the ruling made in Kenrick v. Cole, 61 Mo. 572, and Schmucker’s Estate v. Reel, 61 Mo. 592.
II.
It is altogether unnecessary to discuss the validity or invalidity of the 6th clause of the will of the testatrix relative to the establishment of a seminary for young ladies, for the reason that it is not averred in the petition, but that the amount of the bequest specified therein has been ascertained and collected, the year elapsed after such ascertainment and collection, and yet the sum required to be secured by the church within that time, in order to obtain the legacy, not so secured. It would, therefore, be useless to discuss what would be the rights of the plaintiff in the premises, when it does not appear whether the conditions have been performed, upon whose performance alone those rights must depend. The remark, however, may be ventured, that, even if the averment just mentioned had been made, showing a full compliance with the conditions specified, it is to the last degree doubtful whether the constitutional provisions before quoted would not be applicable in this instance also, thus preventing the plaintiff’from taking the bequest, not for its own benefit, but for merely a charitable or educational purpose.
III.
2. — :partytosmt bO 0 S t Q I j gQ q 0 _ vise. I have no doubt as to the legal capacity of the plaintiff to maintain this action. The petition alleges the incorporation of the plaintiff’, and the demurrer * X / admits the truth of such allegation. The corporate name was, therefore, the obviously proper one in which to bring suit. North St. Louis Christian Church v. McGowan, 62 Mo. 279. And there.is nothing in clause 12 of article 1 of the constitution, supra, which forbids this view. The fact that, under the provisions of that clause, *333a. board of trustees is'to transact the financial business of the ecclesiastical corporation does not change the rules of pleading, nor the authority of well-settled precedents. The same line of reasoning which would forbid the church from suing in its corporate name would also prevent the “ board of trustees ” from doing the like as such board, for the obvious reason that no such power is conferred by the clause just referred to, and consequently, according to the defendant’s theory, cannot exist.
IV.
3. charitable befty'of'wiinEpíé!ding" Nor is it to be doubted that, under the pleadings, the plaintiff is the beneficiary under the will. This the petifi°n alleges ; this the demurrer admits. And even if the language of the bequest were somewhat obscure, such obscurity would not be suffered to defeat the purpose of the testatrix as to the one acre of grpund, this being the ease of a recognized charity. Schmidt v. Hess, 60 Mo. 591, and cases cited.
V.
4. will, suit to e?Tparties plain! tlff" . And it was competent for the plaintiff, in this instance, to take the initiative and institute the present proceedings, though this is usually done by the executor or trustee, by a bill in the nature of a bill of interpleader; and this for his own. protection. I Redfield on Wills, 492, and cases cited; Com. Dig. Chy. 3, G. 6; 1 Sto. Eq. Jur., § 544; Stevens v. Warren, 101 Mass. 564; Bailey v. Briggs, 56 N. Y. 407.
VI.
5. equity: pleadlngSo far as concerns the petition, it is substantially good, since it alleges a controversy to have arisen between the plaintiff and the executor, respecting his duties and plaintiff’s rights under the will, and that doubts have arisen as to its proper construction, and that danger to those rights is apprehended, unless equity interfere and give proper directions to the executor.
*334VII.
gee ene COUNTY* tionHÓfwill™00" I shall next discuss whether the circuit court had jurisdiction of the cause. Under the law of it organization, (Loc- Acts> 1855> P- 58> § the probate and common pleas court of Greene county has exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, granting letters testamentary and of administration, * * and the settlement and-allowance of accounts of executors, administrators, guardians and curators, and * * to hear and determine all disputes and controversies whatsoever respecting wills, the right of executorship, administration or guardianship, or respecting the duties or accounts of executors, administrators, guardians or curators, * * to hear and determine all disputes and other proceedings instituted against executors and administrators, upon any demand against the estate of their testator or intestate, etc., etc. The statute creating the probate and common pleas court of Greene county differs in no essential particular from the statutes at large respecting the jurisdiction of county courts, which statutes in relation to the probate jurisdiction of such courts have been on the statute book since 1825.
In Miller v. Woodward, 8 Mo. 169, where no final settlement 'had been made, in commenting upon similar language to that above quoted, Mr. Justice Napton, speaking for the court, held that such language did not oust the circuit court of its chancery jurisdiction to establish a demand against an estate, or to restrain, by injunction, the administrators of that estate from making distribution, nor preclude that court from affording to the complainant, a surety, equitable relief by substituting him in the place and stead of the creditor, as to all securities, funds, liens and equities which the latter possessed ; and that such substitution could only be recognized and accomplished in a court of equity; and this upon the ground of the demand *335being purely equitable. And in Clark v. Henry’s Admr., 9 Mo. 340, Miller v. Woodward, supra, is mentioned with approval by the same judge who delivered the opinion in each case, and the original and ancient jurisdiction of courts of equity, so far, at least, as concerns proceedings analagous to the present one, undisturbed by statutory provisions, or modern usage in courts of law, fully and forcibly maintained. The case of Overton v. McFarland, 15 Mo. 312, enunciates nothing to the contrary of the cases just cited. The only point in judgment there was that the powers conferred on the county court, by the statutory provisions already quoted, were not absorbed by reason of the circuit court being possessed of a general control over executors, administrators, etc. It is scarcely necessary to say that the maintaining of the present proceeding by no means depends upon a denial of that doctrine.
. The powers invoked here are not within the scope, grasp or jurisdiction of probate courts; but powers possessed alone by courts of equity — possessed independent of and long anterior to the existence of the statute mentioned —possessed for the beneficent purpose of affording relief where no adequate redress can be afforded under the ordinary course of legal procedure. Now it has been determined that probate courts in this State possess no chancery powers. Presbyterian Church v. McElhinney, 61 Mo. 540. But it is only in a tribunal possessing such powers that an executor or administrator can file a bill in the nature of a bill of interpleader, in order to have his duties defined and his pathway marked out by the decree of a court fully competent to adjudicate upon the complex questions which sometimes arise in the course of administration. And the reason why a court of equity is the only tribunal thus competent is because a court of law can deal alone with past occurrences, while the peculiar province and distinguishing feature of the court of equity is to administer preventive justice; to entertain measures of precautionary relief; to forestall wrongs or anticipated mis*336chief; and in affording its comprehensive and wide-reaching relief, extend its arm in futuro; arrest the progress of impending evils and thwart the threatened danger. Besides, a court of equity ought to entertain jurisdiction of this cause, because capable to avoid a multiplicity of suits, which a court of law would be compelled to entertain at the instance of each dissatisfied suitor interested iirthe subject matter of the will. I think it may be safely affirmed that no instance can be found in the books where a court of law, a court merely of statutory origin, has been adjudged the possessor of such powers.
Doubtless the Legislature might confer such powers on probate courts, but doubtless our Legislature never has. This is shown not only by the authority just referred to, but by the case of Schulter’s Admr. v. Bockwinkle’s Admr., 19 Mo. 647, a case which arose in St. Louis county. In that instance, it was ruled that the special statutory proceeding against an executor or administrator, under the provisions of section 36, page 148, R. S. 1845, for specific performance, could be maintained in the county court only when the contract was in writing; otherwise, the proceeding must be had “ under the general law,” i. e., in the circuit court, which alone could enforce specific performance when the contract rested in parol. And the Legislature must evidently have been of the same opinion as to the jurisdiction of county courts, or else they would not have been at the pains to have conferred, in a single instance and in one particular way, equity powers upon such courts, if those courts already possessed a general equitable jurisdiction. So, also, in the case of Mead v. Jennings, 46 Mo. 91, it was held that, if the executors of a will failed to act as required by the testatrix, a complete remedy was to be had by filing a bill, not in the county court, but in equity, to compel them to execute the trust. The above are only a few of the many cases which might be cited as showing what hithei’to has not been deemed doubtful, that circuit courts, or those on which such jurisdiction was expressly *337conferred by the law of their organization, were the only fora capable to administer equitable relief.
I am aware of but two instances where the attention of this court has been called to a proceeding like the present; that is, a bill to construe a will. Those cases are Collier’s Will, 40 Mo. 287, and Jamison, Exr. of Bell, v. Hay et al., 46 Mo. 546. In the first instance, the proceeding was instituted by the trustees mentioned in the will; whether they were also executors does not appear. In the second instance, the application was by the executor as such. Distinguished counsel were, however, employed in each instance, and the matters incident to the construction of wills learnedly and exhaustively discussed ; but it was not for a moment questioned that the circuit court, sitting as a court of equity, was the only forum competent to give instructions to those applying therefor how safely to dispose of the vast property devised and bequeathed in the first instance mentioned, and of the by no means, inconsiderable estate devised and bequeathed in the second instance.
But it is suggested by counsel, that Collier’s case differs from this, in that it does not appear, but that the general administration had in that ease been finally closed. I am altogether unable to see how that circumstance affects in the slightest degree the point under discussion, for if the jurisdiction of the probate and common pleas court, as to all matters pertaining to the “ duties or accounts of executors, &c., and as to all disputes and controversies whatsoever respecting wills,” is “original and exclusive,” then it must needs follow that the only jurisdiction which the circuit court could'possibly exercise in such matters would be an appellate jurisdiction; and this regardless of the question, whether the administration was pending in the probate court or previously determined; for it cannot, with any show of reason, be contended that the final winding up and settlement of an estate in the probate court, would ipso facto — would by operation of law develop a new juris*338diction in the circuit court, never existing before, until that hour. So that the position of defendant’s counsel will be found ultimately to resolve itself into this : That you cannot invoke the equitable interposition of the circuit court, while the administration is in progress, because the jurisdiction of the probate and common pleas court is original and exclusive; nor after final settlement, for the self same reason — in a word, that in no probate matter will equity take cognizance or afi'ord relief. I am unwilling to accept such a theory, or such, its inevitable consequences.
Granting, however, for the sake of argument, that the jurisdiction of the probate and common pleas court is as extensive as counsel claim; grantingthat we must stick in the bark of a literal construction, still this case does not fall within that jurisdiction, and for this obvious reason: That the duties of this executor, Robberson, are not conferred by the statute, but by the will. In the case of Coil v. Pitman’s Admr., 46 Mo. 51, an administrator with the will annexed, under the power conferred by that instrument, sold land, but failed to make a deed to the purchaser, and the latter applied to the county court for specific performance, which was refused. This court, after quoting the statutory provisions before noted, held that, as the specific power to sell was conferred by the will, and had no existence in consequence of statutory law, the administrator acted independently of the county court, and was not amenable to it for the performance of any duty respecting the sale; that, when the authority to sell was derived from statutory provisions, a different rule prevailed, and the administrator became subject to the control of the court, and its full “ supervisory power and jurisdiction in all matters touching the premises;” but ■ that, since the will in that instance bestowed the power, the only resort of the purchaser for specific performance was to a court of chancery; that the statute had not conferred such jurisdiction on the county court, and that nothing in favor of the jurisdiction of that court was to be taken for granted or given by im*339plication. It is quite evident from the case just cited that only matters resting in the ordinary routine of administration were held exclusively cognizable by probate courts. Tested by the rule just announced, it will be found that,as the powers in the present instance are conferred by the will, and not by the statute, the probate and common pleas court has no jurisdiction, and the only proper resort of plaintiff was to the present method of procedure, and in the circuit court.
VIII.
If it is established that the circuit court has jurisdiction, then no more difficulty can attend the enforcing of the decree which it may render in this than in any other cause whatsoever. Jurisdiction existing, the power to enforce and effectuate whatever may be done pursuant to such jurisdiction follows as a necessary incident.
IX.
It would seem that the devise as to the acre of ground on which to build a church was sufficiently definite to obviate the necessity of asking the construction of that clause of the will, but the petition alleges and the demurrer confesses that a controversy has arisen between the plaintiff and the executor respecting that devise. Eor this reason alone, the judgment will be reversed and the cause remanded.
All concur, except Hough and Henry, JJ., who dissent.