Congregational Church v. Cutler

76 Vt. 338 | Vt. | 1904

Munson, J.

The bequest of Sarah D. Cutler toi the orator, the Congregational Church of Chester, was on the following condition: “That the officers of said church, or a committee erf said church chosen for that purpose, shall annually visit my grave, and give it such care and attention as I would give under like circumstances.”' The bill prays, among other things, for such direction of the Court of Chancery as will enable the orator properly to perform) this condition.

The defendant insists that the Probate Court has power to construe the will, and that the bill should be dismissed for this reason. The action taken below precludes the raising of this question. A demurrer was incorporated in the answer to the amended bill, but this was not brought forward for hearing, and was treated as waived. j

The corporate existence of the orator is denied. The master reports that this church has records, more or.less perfect, covering a period of one hundred and twenty-eight years, but that the first articles of association contained therein were adopted in 1859. The statute then in force required that the first meeting be notified, organized and held in the manner prescribed in the articles of association. Comp. Stat. ch. 85, § 6. The articles of 1859 contain noi provision regarding the notification of the first meeting, and this omission left the action then' taken without a statutory basis. So we proceed to inquire as to the previous status of the organization.

By a statute passed in 1797, and continuously in force until after 1824, it was provided in substance that any number of persons might associate for the purpose of hiring a minister and erecting a house of worship’, and might make contracts, and purchase, hold and transfer property for the benefit of the association. By an act passed in 1814, it was further provided that persons voluntarily associating under the act of 1797 should be a body corporate and politic for the purposes contemplated in that act, and have all the powers incident to corporations. We have then a statute authorizing persons to associate for the-maintenance of religious worship, and, a later statute making the persons thus associated corporations with the powers incident thereto. It sufficiently appears from the master’s findings that the plaintiff organization has been' in existence and supporting public worship from a time prior to 1814, and it is to be presumed that the organization has been maintained since 1814 under the statute of that date. Nothing more is required to establish its corporate existence. Methodist Episcopal Society v. Lake, 51 Vt. 353. That existence was not lost by the attempt to organize under the later statute.

In 1894 the church applied to the Probate Court for an order upon the defendant as administratrix to pay to the church the amount of this legacy, but the court held that a trustee should be appointed h> hold and manage the fund for the church, and appointed as such trustee the orator Sargent. The fund was then paid to- the trustee, and he held it and paid over the avails to the church until 1900, when he resigned and the church itself was appointed trustee. The defendant appealed from1 the order making this appointment, and the appeal is still pending. We find nothing in this to- support the defendant’s contention that the decree of 1894 was a conclusive determination that the church is not entitled to this fund. The trustee was appointed upon the theory that the church was entitled to it, and the question raised by the subsequent appointment of the church to- hold and administer it, is saved by the decree below for determination in the probate appeal.

The answer and the argument proceed upon the theory that the condition upon .which the legacy was given- is a condition precedent, and that the orator has not yet obtained, and is not now entitled to- receive, the legacy. The provision, if it be treated as a condition, is clearly a condition subsequent; and if the question- of forfeiture can be raised upon the pleadings, the claim cannot be sustained upon the findings of the master.

It was not error to permit the officials of the church to state what their intention had been and was as regards the care of the grave. The bill alleges, and the answer denies, an intention- on the part of the orator t-oi comply fully with the conditions of the bequest.

The defendant objected to- the offer o'f a book of church records -on the ground that it was not sufficiently authenticated. The fdcts reported regarding the custody and recognition of the book were sufficient to- justify its admission.

The report says that the records of the society meetings were received subject to- the defendant’s objection and exception “so far as they are hereinafter referred to.” The only further reference is to the record of a meeting in which it was voted to accept this bequest, and this record was specially ■objected to for that the bequest was to the church and not to the society. It is-not necessary to the determination of this question that we consider the findings of the master in regard to the relations of the church and the society. The bequest was not conditioned upon there being any vote of acceptance by the legatee, and proof of such a vote by the society was immaterial and harmless. The only requirement is that the officials or a committee of the church visit and care for the grave, and the report shows that all done in this respect has been done by the officials of the church.

Decree affirmed and came remanded.