(concurring in result) :
I concur that this case, should be affirmed, but for different reasons.
Appellant in this case relies on Title 61, Sections 4, 5, Code of Alabama, 1940, as amended (Recompiled 1958) and the long standing common law rule that an unincorporated association cannot hold title to real property, e. g., Enterprise Lodge No. 352 v. First Baptist Church (Col.) of Evergreen, 288 Ala. 592, 264 So.2d 153 (1972). Section 4 provides as follows:
“A devise of lands, tenements, or hereditaments may be made to any person or corporation capable by law of holding real estate.”
Section 5 states:
“Any estate or interest in real property, devised to a person or corporation incapable of taking, descends as in case of intestacy . . . ”
This court has gone so far as to hold that because of the common law disability of an unincorporated association to hold title to real property, a devise to such an association is void. McLean v. Church of God, 254 Ala. 134, 47 So.2d 257 (1950).
The hub of Appellant’s argument then is the above mentioned common law rule. Although this court has repeatedly intoned the rule over the years, little discussion of the reasons for maintaining such a rule can be found. Indeed, because of the realities of modern day conditions the courts of this country, including this court, have used many devices to avoid the operation of this ancient rule. For example, the prohibition is said to apply only to real and not personal property. See McLean v. Churcli of God, supra. And, in addition, this court has held that an unincorporated society may hold equitable title to real property under certain circumstances. See, e. g., Johnson v. Sweeney’s Lane Church of God, 270 Ala. 260, 116 So.2d 899 (1960).
The majority opinion in this case would carve out still another exception by permitting a devise of real property to be sustained under the theory that a charitable use should not fail for want of a trustee.
These inroads into the old rule are the result of a recognition by members of this court of the social necessity for some form of collective ownership by unicorporated organizations. The overall problem is well summarized by Professor Powell:
“Some courts persist in the viewpoint that an unincorporated group is not an entity and hence that a deed to such a group, in its collective name, is a nullity. Like holdings have been made concerning wills which devise land to a group as such. An occasional statute retains this unrealistic attitude.
“The unrealism of the above position stems from the facts that groups do function widely and variously in present-*84day society and must be provided some means for collective acquisition, utilization, and transfer of land. Joint tenancies or tenancies in common created in those persons who are members of the group at the date of the deed or will making no provision for future changes in the group’s membership preclude anything like majority decisions as to the group’s policies and actions, and give to any dissentient member an unreasonable veto power because of his ability to demand partition. Whatever phraseology or concept is utilized by the law to meet the need for 'collective ownership,’ the power of a dissentient individual or minority to block the group’s handling of its assets must'be kept slight.
“The social necessity for a permissible form of collective ownership by unincorporated associations is most frequently met by allowing the officers of any such group to take title as trustees for the group. When the group has a charitable objective, this position is merely an application of the age-old equitable idea that a gift to charity will not be permitted to fail because of a failure effectively to designate a trustee, and its corollary, that when the basic fact of an intent to give to charity is found, equity will appoint a competent trustee to administer the property. This solution has been applied in many states to unincorporated churches of many different denominations, and in one state to an unincorporated group of Chinese organizing a Chinese Joss House. It also has been applied to the auxiliary groups furthering religious work, and to the Salvation Army. It has found embodiment in the statutes of many states. When, however, the group does not have a charitable objective, the anological extension of the trustee device is sometimes refused, but has been made in a considerable number of cases.
“In some jurisdictions the pendulum has swung even further from the early common-law rule, and unincorporated associations are permitted to acquire land interests in the group name, without mention of trustees as the mediators of ownership. Sometimes this holding is made without explanation, sometimes it is based on statutory provisions which permit the officers of such an unincorporated association to constitute ‘a body corporate,’ and sometimes it is the product of statutes which explicitly - permit such an association to acquire land interests in its group name.” R. Powell, The Law of Real Property § 131, at 510-516 (1969).
Note also that the legislature has moved to alleviate the unreality of the common law rule by enacting a simplified scheme whereby churches, educational or benevolent societies, etc. may incorporate, and upon completion of this incorporation, the association may “acquire, hold, administer, distribute or dispose of real or personal property . . . ” See Title 10, Sections 124 — 132 Code of Alabama 1940, as amended (Recompiled 1958). Regardless of this simplified procedure, there remain in this state a large number of unincorporated associations, especially religious groups, which, for reasons of their own, have elected not to incorporate. Thus the problem of how best to fashion a rule of law which will fulfill the need for a form of collective ownership by unicorporated associations should be considered.
I feel that the ends of justice will best be served by a rule which permits unincorporated associations to acquire, hold and transfer property in their own name. I would hold that an unincorporated religious society does have the capacity to acquire real property by devise, and the instant case is due to be affirmed. Thus I would overrule McLean v. Church of God, supra, and other similar holdings.
It is realized that the promulgation of a new rule often leaves many questions unanswered. But there is a core of decisions in this state and decisions from other states which will serve as a basis for re*85solving problems as they arise. Perhaps the foremost problem likely to arise is how the rights of the church members will be protected in case of a schism or in case it becomes necessary or expedient to dispose of the property held.
As a starting point, the court has repeatedly held that while the powers of courts of this state may not be invoked in purely ecclesiastical matters, the courts of this state do have jurisdiction to act in church matters involving civil and property rights. See, e. g. Board of Incorporators of African Methodist Episcopal Church v. Gaston, D.C., 343 F.Supp. 823 (1972); Williams v. Jones, 258 Ala. 59, 61 So.2d 101 (1952); United Baptist Church of Primitive Faith v. Gautney, 250 Ala. 216, 34 So.2d 1 (1948). Furthermore, the conveyance of property held by trustees of an unincorporated association has long been under the watchful eye of the courts of equity, since as trustees of a passive trust, the trustees have no power to convey the property. Street v. Pitts, 238 Ala. 531, 192 So. 258 (1939). Thus it seems clear that the courts of this state have jurisdiction to settle controversies involving the conveyancing of property to and from unincorporated associations.
Although the court may not have the ability to predict every conceivable variation which may arise under the new rule, there are some generally established principles which will provide guidance.
In the usual situation, the persons who constitute an unincorporated association will have made some sort of agreement or will have established a constitution and by-laws for the government of the association. Unless justice and equity dictate otherwise, the actions of the duly constituted authorities, acting in accordance with its rules and regulations or under a mandate of the majority should be binding on the association. Naturally a corollary to this rule 'would be that if the constituted authorities act outside the scope of the conferred authority, the acts would not bind the association. See Pallilla v. Galilee Baptist Church, 215 Ala. 667, 112 So. 134 (1927).
In the event the association has no written constitution or by-laws, absent a valid reason for not so doing, the court likely would adhere to the cases which hold that in democratic church organizations, the majority controls as a rule. See Gewin v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947 (1910); Harris v. Cosby, 173 Ala. 81, 55 So. 231 (1911); Guin v. Johnson, 230 Ala. 427, 161 So. 810 (1935).
In the event of a schism, the law extant in this state both as to incorporated and unincorporated associations is essentially the same. The principle applied is well stated in Guin v. Johnson, supra:
“The power and duty of the state to protect religious bodies in their property rights are beyond question. These temporal facilities are in aid of, if not essential, to the full enjoyment of religious freedom — to congregate and worship, teach, preach, and generally promote the spiritual ends for which churches exist.
“This puts upon the courts the determination of the very delicate question as to which of two contending groups is entitled to the possession and control of the church property. Unless there is shown a clear diversion of the property from the religious uses to which it was dedicated, the majority must rule in a democratic religious body. Harris et al v. Cosby et al., 173 Ala. 81, 94, 55 So. 231; Morgan et al. v. Gabard et al., 176 Ala. 568, 58 So. 902; Gewin et al. v. Mt. Pilgrim Baptist Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41; Christian Church of Huntsville et al. v. Sommer et al., 149 Ala. 145, 43 So. 8, 8 L.R.A.(N. S.) 1031, 123 Am.St.Rep. 27; Barton et al. v. Fitzpatrick et al., 187 Ala. 273, 65 So. 390; Stewart et al. v. White et al., 128 Ala. 202, 30 So. 526, 55 L.R.A. 211; Manning et al. v. Yeager et al., 201 Ala. *86599, 79 So. 19; Id., 203 Ala. 185, 82 So. 435; Blount et al. v. Sixteenth St. Baptist Church, 206, Ala. 423, 90 So. 602; 54 C.J. 71.”
Thus the court has held that when a religious society divides into two groups, one of which radically departs from fundamental ecclesiastical usages and principles which were accepted before the dispute arose, ordinary principles of majority rule do not apply, and the group adhering to such usages and principles is entitled to the church property. Holt v. Scott, 252 Ala. 579, 42 So.2d 258 (1949). Although these rules are rooted in trust principles there appears to be no good reason why such rules should not be applied by a court of equity in a non-trust situation. Indeed in cases involving incorporated churches, the courts of equity of this state have not hesitated to assume jurisdiction, even though any passive trust would have been executed upon incorporation of the association. See Williams v. Jones, supra.
As a final note, it should be pointed out that authority also exists to resolve problems which arise in unincorporated associations which are less democratically organized that the “majority rule” associations mentioned above. In Davidson v. Church of Christ, 245 Ala. 203, 16 So.2d 179 (1944), the appellants insisted that since the Church of Christ was congregational in its nature and creation, with no superior or directing power other than that found in the government of the church by its membership, express authority of the congregation, acting as such, is necessary to institute a suit in the church’s name. The evidence was without conflict that the church in question has no written creed or discipline, but that the elders had been chosen by the customary manner of the church:
“That is to say, the members of the church do not ‘vote,’ as the term is ordinarily used, but instead discuss among themselves the qualifications of a member to serve as an elder. An announcement is then made to the congregation that a certain named member is an elder, and if there is no objection voiced, he then becomes an elder.”
The court went on to hold that there was sufficient evidence to support the church’s insistence that the elders have authority to govern and control the temporal affairs of the church and the church property, and held that those who unite themselves to such an organization do so with an implied consent to that form of government and must submit to it.
In summary then, it appears that there is authority to guide the court in resolving problems of conveyancing to and from unincorporated associations.
Furthermore, it would seem that no private interests are protected and no compelling public policy is served by requiring that unincorporated associations hold real property through some trust arrangement. See generally, Comment, The Law of Trusts in Alabama, 25 Ala.L.Rev. 467, 492-59 (1973). On the other hand, the rule herein suggested would have the effect of fulfilling the reasonable intent and expectations of the average layman in this state when he attempts to transfer property, whether by deed or by will, to some unincorporated church group. Also, the rule should have a salutary effect on a long-recognized problem of clouds placed on titles to land because of conveyances of real property from unincorporated religious societies. See Worthy, The Acquisition and Alienation of Real Property By Religious Societies in Alabama, 15 Ala. Law 410 (1954).
Furthermore, the legislature has recognized that unincorporated associations are sufficiently recognizable entities so that they may sue and be sued in their own name. Title 7, Section 142-145, Code of Alabama 1940, as amended (Recompiled 1958). And note particularly Section 145 which states:
“Where a judgment in such action is rendered in favor of the plaintiff against such organization or association the property of such organization or associa*87tion shall be liable to the satisfaction of such judgment.” (Emphasis added)
In conclusion, a comment by Professor Powell is again in order:
“The extent of legal recognition of capacity does and should differ according to the nature of the group in question. When a group activity (1) serves a desirable social end, and (2) is facilitated by the possession of land rights, the recognition of the capacity of such group to acquire, to hold, and to transfer interests in land becomes socially requisite. As either of those factors shades down, the necessity diminishes. Hence, it is to be expected that the law will differentiate between unincorporated associations on many bases, treating differently those existing for the economic profit of the constituents and those functioning for the promotion of religious, fraternal, social, and more transient objectives.” R. Powell, supra, § 130, at 506.
Thus, even though I would hold that an unincorporated religious association may take by devise, I would reserve judgment as to the capacity of other types of unincorporated associations until the arguments pro and con are heard.