Baptist Society v. Town of Wilton

2 N.H. 508 | Superior Court of New Hampshire | 1822

Richardson, C. J.

li seems always to have been understood in this state, that lands originally reserved in the respective towns for the use of the ministry, were the property of the towns; and lands of this description have always been occupied, and sold, and transferred by the respective owns claiming them as the absolute property of the towns?

In Massachusetts, provision has been made by law to preserve and render more effectual grants and donations to charitable and pious uses. Col. & Prov. Laws 605, & Mass. Statute of Feb. 20, 1786. — 2 Mass. Rep. 500—7 do. 445.—10 do, 93.—12 do. 285—14 do. 333—15 do. 464. There the ministers of the several protestan! churches are sole corporations, capable of taking in succession any parsonage land, and no alienation made by any minister of any such land is valid, any longer than he continues minister, unless such alienation be made with the consent of his town; and an alienation of the parsonage by the town is void. But in this state no such provision has been made by law. A settled minister has no interest in the parsonage lots belonging to the town where he is settled, unless by contract with the town.

A general opinion seems to have prevailed in this state, that the lots reserved by the proprietors of townships for the ministry and for schools, were intended to aid the first inhabitants in educating their children, and in procuring religious instruction, and thus to induce individuals to become inhabitants of the town. That those lots were intended as an absolute1 gift to the inhabitants of the towns, to be applied to those purposes at their discretion; and that, in fact, they were not intended to be vested in the towns in trust, to apply the rents and profits to those objects; but were, in truth, given as a temporary aid to the first inhabitants. It is certain that towns have always claimed and exercised the right of selling and conveying the lots reserved for the ministry and for schools, at their pleasure, and we are not aware that this right has ever been called in question. Belknap, in his history of this state, vol. 3, p. 244, says, “ it has been a common practice in all the grants of townships which have been made, either by the crown or the Masonian proprietors, to reserve one share, equal to that of any other “ grantee, for the first settled minister, as his own right, be- "* sides a parsonage lot. This has proved a great encourage- ” ment to the settlement of ministers in the new towns.”

The manner in which these reservations were made, gave some countenance to the general opinion that prevailed on the subject. The reservation in this case was “ one share “ for the first settled minister, and one for the ministry, and “ one for the school there forever.” No doubt was ever entertained that the first settled minister became the absolute owner of his share in fee simple, free from all trusts,, and il was not very unnatural that towns should suppose that they were the owners of the other two shares in the same manner.

It is also worthy of remark, that until the statute of 1819, cap. 76, was passed, we had no public act creating parishes, and defining their powers. All parishes, before that time were created by private acts. The power given to towns to raise money for the support of the ministry, was given among other powers merely municipal, in the act for regulating towns. No provision was made by law to preserve any trust supposed to exist in these reservations, and indeed until the passage of the statute of 1821, cap. 6, we had no court possessing proper powers to remedy breaches of trusts-in such cases.

Whether these reservations might not have been considered originally as trusts, which towns were bound to apply specifically to their intended objects, it is unnecessary now to inquire. It is enough that the inhabitants of our towns have generally viewed them in a different light, and have acted accordingly, and that they cannot now be viewed as trusts, without great public inconvenience. If we should now decide these reservations to be trusts, and hold towns to a specific performance of the trust, it would lead to endless litigation and expense, without any essential service to the cause of religion or education. It would be much better in every point of view, to compel by a general law, every town in the state to raise a fund for the use of the ministry and for schools, than to attempt, through the medium of courts of justice, to collect the “ disjecta membra?' of these reservations, and convert them into funds for those purposes.

The first inhabitants of this country considered the settle-' ment of ministers and the establishment of schools as matters of the highest importance. In general, those who first settled in the new townships were poor, and we have no doubt that these reservations were intended to aid those who went into the new towns. They were like the advancements which a parent makes to his children, to enable them to set out in the world. It was not intended that the towns should hold the reservations in trust, to apply them specifically to those purposes, but they were absolute gifts, intended merely to augment the ability of the inhabitants to procure instruction for themselves and their children.

if this be a correct view of these reservations, the present action cannot be maintained. The land sold belonged to the town of Wilton, and the money arising from the sale is the property of the town, and not the property of individuals. It is perfectly clear that individuals belonging to a town cannot by any action whatever recover a share of the funds of the town, to be applied to their own separate use. And we are of opinion that if this were a trust fund, the law would be the same. The reservation was general, “ for “ the ministry,” leaving the management of the trust to the discretion of the town. If the town then apply the fund to the hiring of a minister, whom a majority approve, can we say that the fund is misapplied 1 When a minister is settled in a town, all may have the benefit of his teaching if they choose, and if they cannot conscientiously hear him, it is their- misfortune. Individuals may think that if they had their share of the fund, they would lay it out more to their own profit; but the donation was not to individuals, but to a corporation, and to be laid out agreeably to the will of the corporation. It is the misfortune of these plaintiffs that they are a minority in the town of Wilton; but should the time ever arrive when the members of this society shall constitute a majority of the town of Wilton, this1 fund will be unquestionably at their disposal, and they may apply it in such manner as they may think best. : Judgment for the defendants.