*1 v. SOCIETY. SOCIETY 463 June, 1875.] Society Congregational Orford Union June 15, 1875. Congregational of Orford. West Public Pleading. charity of deed — —Construction S., deed, land the selectmen the town of Orford certain name, trust, in for the use of the inhab- their successors said itants of the sole and express purpose aiding sup- lot of land is ever within the porting gospel ministry aforesaid, to remain to the said inhabitants for the sole use and purpose the rents of annually expended aforesaid, for the none other gospel that, uses,” with the the inhabitants of the town shall hereafter proviso, into two in that divide case the ever thereafter be ap- rents and to and at the propriated meeting- house on the in said use and benefit river road for the sole direction of river inhabitants of said parish society, wardens from time to time by or other officersthat bemay the afore- inhabitants of said To have and to hold parish hereto, named and with all the unto described premises, appurtenances the aforenamed selectmen to their successors inhabitants, the several to their uses purposes Held, use and behoof executed in the town forever.” that the use was in the deed. which became trustee for the purposes expressed 1819, and under the act of was legally organized assisted in the church formed connection with supporting preaching, difficulties having grown up time. Some present ministers, been called council of neighboring having dis- recommended the people dividing organized tinct the defendant legally parishes, formed con- under the act and a new church one, built nection and of the same faith and order as the old road, and maintained stated preaching meeting-houses since, every year. have served there ever and elected wardens who of the trust entitled to the benefit Held, that the defendant it to receive and that it was the of the town duty property, rents and profits. court for Grafton filed in the been superior A bill chancery having defendants, in rela- 1835, in term, at the favor July county, - not Held, to this dismissed. suit, not binding. made a judgment been having v. SOCIETY. SOCIETY Held, that no such two societies made a compromise 1838— *2 of force. effected could be said societies case: following The court found and the reported Oxford, which In in the town of a formed August, 1770, church was has with which church time, connection continued to the present and the services worship. or parish have supported ministry Under towns the the law of to 1791, authorizing support direct connec- ministry the taxation, supported the town of Orford there was no other church church; and, with this so far as appears, the repealed the the act of town or until after parish law of societies to support and authorized only and doctrine ministry. was what polity, This church was continues from the and so beginning, is known as orthodox to and regular meeting-house time. church Qr- known as town, at the now village in the centre of meetings Orford, about and meeting-house fordville or East said village was then river, what (in miles east from Connecticut north and road, river which runs now known as the year 1800) one year south said river. said town near through town of Or- widow Anna ford, to the selectmen Spooner : all men deed as follows Know trust, a lot of land by Graf- county these ton and esteem, Anna presents, I, Spooner, widow, for the consideration slate of New Hampshire, affection, I continue to have for inhabitants will that good a and wish that part with real desire town of together for the use and real my support estate be appropriated aforesaid as an encouragement the town of Orford gospel ministry with and further the same respectability, inhabitants to support as an that I still retain a sense grateful evidence to me that has ever been expressed paid attention respect small the said by consideration of among them, inhabitants while resident —with in hand the delivery dollar to me before paid one hereof, Mann, and Solomon Marston, Nathaniel Jeremiah Rogers, aforesaid, 1 do selectmen for hereby of Orford whereof the town receipt released, confirmed, granted, conveyed, acknowledge, given, alien, release, and confirm give, grant, convey, presents succes- Jeremiah, Solomon, unto said to their Nathaniel, for inhabitants of said sors in for the use ministry aiding supporting gospel sole within the purpose express town of or lot land in the fifty-acre one river Jun’r, aforesaid, Lane, of-Joshua right drawn to the original Orford in- the said lot of land is ever remain to numbered habitants for annually, fifty-six, wdiicli, aforesaid, use and the rents the sole said inhabitants for the expended by aforesaid, for none other or uses. Pro- purposes vided, however, condition, on this and this deed is express shall hereafter and divide into the inhabitants the town June, SOCIETY SOCIETY. that in that the rents to and shall ever thereafter be arising appropriated for at the the use and of the gospel inhabitants of Oxford, road in the for the sole use of wardens said river directions parish inhabi- from may other officers that time time hold the afore- tants of To have parish unto hereto, named and the described premises, appurtenances and to their successoi’s in aforenamed selectmen to their several uses and the said inhabitants purposes This deed was and was July 26,1800, behoof forever.” dated executed, duly witnessed, acknowledged, recorded. evidence, offered in the records of sev- eral lot votes of the town selectmen to lease this of land directing one Such votes 1801-5, more at time. were passed *3 in last article 1822, "the 1808,1814,1815, year upon
in the warrant “Voted that it is not unanimously, purpose, expedient to divide the town of Oxford into two separate parishes.” 1835, warrant, In in number of votes an article (Whole upon 134.) “Voted, was selectmen divide the received money “ societies use” of all the equally this lot Spooner among ” in formed in as the law 1845 the prescribes; voted to to lease a of this lot sufficient allow the selectmen portion for a of the in Oxford railroad consent societies track, by interested. themselves 13,1820, On John Mann and 143 others associated April “ and formed
together, Society,” the OxfordUnion Congregational and has society the act of 1819. This duly legally organized, its records and held its annual meetings kept regularly in in conncct- time. This has assisted society preaching supporting In this time. church, the first that formed church, of this set up one Deacon other members Dewey, road. attended a meeting Complaints and were made for advice and a council was called this proceeding, Blake, and McKean, and Rev. Messrs. neighboring ministei’s, the expediency Wood were the record shows present, council; also, was laid before dividing Congregational people the other brethren against Dewey, the matter Dea. grievance council recom- similar with him.” The the river who had taken steps two distinct into dividing Congregational people mended the and also in at the river so as have constantly preaching parishes, town; was exceed- and that stop the central or eastern part sustained. The desirable, it can be ought to be done ingly satisfactorily other difficulties were adjusted. associated them- others forty-six James Dayton Society and formed the “West Congregational selves together, legally duly society under the act of Oxford,” meetings its annual and held and has its x’ecords oi’ganized, kept regularly to tlie At present time. the time this society formed, there was a new also church formed in connection with but of the same faith and order as the old one. This church and built their meeting-house on the river so road, called, said Orford, since, have maintained generally stated therein ever has the Union church, in connection with the old meeting-house Orfordville. wardens, The new have elected who have served since its im- every year formation. The new society took mediately land, measures to secure the rents of this lot of various committees were appointed by both with each societies confer other in reference to 1833 to 1835 in which inclusive, last year the West society instructed their executive committee wardens to make another demand the rents of upon the selectmen for said lot, and, if not paid, commence suit said selectmen against Orford for the recovery lot, rents due for the so called.” Spooner a bill Accordingly entered court of judicature, superior Grafton county, July term, 1835, favor of the West v. The Town Orford, in rents relation Orford land, lot of which was continued from term until when the to term same was dismissed. In 1838, each to confer society chose committee with a committee from the au- committee was each thorized itsby divid- the matter of ing them equally between the met, two societies. These committees agreed upon signed forth in and the two socie- report set ties same; assented to the and the divided until rents were so 1870, since which said selectmen refuse to said rents to said pay Union Both society. societies from this lot for the wood got *4 use of their meeting-houses; and one some the timber blew down, and it was sold for about and the divided $250, proceeds equally between the two societies. This by concurrent votes of both societies. and division sale were made The plaintiffs offered to show that a society Universalists formed in the year 1830, or soon after, and built their meeting-house on said river road near house of the West Congregational and that they sustained fif- for some teen but years, that recently house was not used occasion- except ; ally but it did not that said claimed or was appear ever now claiming of the from this land. The defendants arising moved to dismiss the &c., as in answer. The questions law thus raised were reserved at the trial term.
Lang Carpenter, plaintiffs. Felton, and S. Pierce, for the defendants. Bingham, Cushing, C. J. The case of Dublin, v. -General Attorney N. H. 459, originally commenced Abbot et al. the name of as A plaintiffs. demurrer been filed on ground June, amended. bill was should a have been made attorney-general The and party, sustained, have been here, same taken would objection, probably either plaintiff must made a party, have been being or a this suit defendant. It is obvious that the subject-matter unless made can be no final and conclusive settlement public charity, Pl., 69, 222. secs. state should Story’s Eq. be represented. nor the societies is clear that of Orford neither the town any settle fund interest as them power gives suit, which to it. above-mentioned thing is The conclusively regard “ et al., Abbot as The at the relation reported General, Attorney- The Town et on this al.,” authority point, Dublin conclusive different of that claims of object suit settle the being conflicting to a fund
religious societies charitable purposes. attorney- and that Assuming made, that the amendment has been to examine general has become a I shall defendant, proceed questions arise the case. of Mrs. first is in the deed to the question regard grantees is to kind of Spooner, gift estate taken them. and to their individuals, name, described as selectmen in said successors which I their successors means suppose ” ” “ trust the word word office substituted for donor habendum of the deed. It is that the intention evident inhabi- was to uses is convey fee, the declaration of the sole tants of inhabitants ever remain to the said &c. purpose, why do—no reason There is original grantees them; that the use the estate to me should remain in and it appears in the town vested executed in the land is town, so the fee of the annually be as trustee. rents shall The trust declared &c., by the said inhabitants expended gospel, for the support town shall with a that if the inhabitants provision, hereafter into two separate djvide there- that case ever the rents and after to and for the use approriated for the sole use meeting-house on the river road in said inhabitants of river parish direction of from time wardens or other officers that bemay to time the said parish Congre in Orford two from the case that now exist there same form gational substantially who are supporting founder Congregationalism of contemplated *5 have been organizations the trust. regular These societies to be appear I averred, but the statutes of is not expressly New It Hampshire. so far that think are voluntary it that may be these societies presumed, and I them, with they are to all to associate desiring open persons mem as think that embrace they no doubt but there can be reasonable according to to worship bers that form inhabitants of Orford who desire N. H. 574. case, Dublin The Congregationalism. SOCIETY SOCIETY. If the inhabitants of Orford are not now divided into it is difficult to conceive of in which it way so, can Orford, it be done. would seem to follow that the town of as trustee, is to bound the rents land to he the wardens of the defendant to the applied sup- the terms of port deed, unless, worship by reason of bill, something that suggested consequence pre- vented. it is Now, said that a suit has been commenced favor of that town of against which has on been dismissed de- It murrer. is not claimed in the bill directly that these rights defendants have been concluded by that There no such proceeding. statement of the precise court to allegations in bill as would enable the find were parties by the estopped judgment. If, however, there were such their effect would allegations, entirely be obviated the fact that the was not made a bill, and therefore cannot be its bound result. seems equally certain that could be done of com- way not promise agreement, which be We are now conclusive. concerned fund. administration The we past question have to determine What shall now done with it ? Under the law and as it remained until when Dr. * Whipple’s called, passed, act. it toleration as was towns had the act, though nearly *This moss-grown now marked an forgotten, era political history popularly of the state. called “Dr. Act,” Whipple’s worth, debate, because &c., Whipple, Dr. the member of House from Went- or, was the of its provisions, great author most vital to use his own words in the as the provi- amendment contained the most essential [offered him] result,” sions because, might from which either harm or use the words journalist of the most eminent of Hew England, “it was sustained ability the mover with unrivalled and eloquence.” 8, 1791, legislature, The Eebruary “An passed regulating on act fox towns provided choice very lengthy, perambula- officers.” It was officers, tion of town lines, appointment for the choice of numerous town others, vacancies, filling by-laws, warning passage town- meetings, prescribed variety officers, great the duties of a of town and the mode of legal service processes upon corporations, towns and &e. enacted, The tenth section as follows: “And be That the inhabi- state, qualified tants of each any meeting duly town in as constitution, and legally may, agreeably warned holden in such grant and money they judge necessary vote sucli sum or sums settlement, schools, ministry, meeting-houses, maintenance, support of the school-houses, highways, poor, laying repairing out and maintenance of for building charges arising- within repairing bridges, necessary and for all the the said as the polls to be assessed on estates in the same town, law directs.” act, grew, amendment act” out of which “the toleration intro- duced journal gives in the in 1819. no senate of the senate clew to author- that, ship, but shows ‘An act in June “A entitled amendment officers, act entitled ail of town regulating passed act for towns and the choice 1791,’ Eebruary 8th, Anno Domini readings, passed several enacted. Sent down for concurrence.” On 22,1819, following June house, proposed Dr. amendment: "Whipple *6 Juno, SOCIETY v. SOCIETY. ministry, to raise the and so
power money for support doing they would have the of naturally regulation support wor- public ship may their be that that time the town power. during and by vided have itself divided have might pro- in that form, for the maintenance of public under worship such vote of town that it was not circumstances a the expedient form two societies have some But significance. tolera- might act, taxation of of power raising money towns, was taken in so far ministry away excepting of contracts then necessary existing. fulfilment law, Under this it Dublin case appeared religious society had boon Dublin, those who organized had composed principally formerly composed religious society organization, church, connected with the the and who same continued to sup- ministry with that church till connection port commence- ment of suit. It was held the court society was entitled to the will benefit of the funds which the town held in trust under of Mr. way, the same Sprague. society was well entitled of the fund which is undoubtedly the sub- so as that ject-matter suit, continued be the long only society in Orford. But held, understand, when as must council, we usages had recommended a Congregational polity, division of the of that pursuance recommendation defendant society had been formed, seems that the division into undoubtedly enacted, every “And be That religious,sect or denomination of Christians may may may state associate and form for admit members, establish by-laws regulation government, rules porate the and shall have the cor- powers may estate necessary money by to assess and raise taxes npon polls and ratable the members of such association, to collect and appropriate building same repairing houses for public worship, gospel; the assessors of such associations shall powers assessing collectors same and col- moneys, lecting said be liable penalties, to the same as similar town officers Provided, are .person compelled now have and liable to: That no shall be join to, church, any nor be classed with associate support, society, person congregation, Provided, also, express without his consent first had and obtained. If any shall choose to himself from such association to which he may belong, and leave a written thereof the clerk notice association, longer he shall thereupon expenses be no liable future may incurred or association.” Portsmouth, Amherst, Parker opposed amendment Pitman It was supported Pittsfield, Charlestown. Butters Hubbard Bartlett ried, yeas Ichabod Portsmouth, closing Whipple opening Dr. debate. was car- 96, nays by Dr. Whipple 88. Another proposed amendment — 95, nays was ordered to a third 88. adopted, motion to reading, yeas Toppan’s — 79, nays negatived, yeas session postpone next — amendments, adoption Whipple After the voted Hubbard for the bill. See 1819; History of the House and Senate for Barstow’s of New Hamp- Journals 423, 426, 433, 427, 432, 434, 425, 431, ib., 422, 428, 429, 430, 435; shire 424, 436, 437, 442, 438, 439, 440, 441, 443, 444, 445; Hampshire Gazette, New 3,10; Patriot and State 13, 20, July August Register by June and all the articles Gracchus Reporter. Alcibiades, and. Baltimore Niles.
societies in tlie will donor bad contemplated effected, been the town thereafter should have to that the benefit of that society fund. There is in the nothing calls for an into inquiry heretofore, manner which fund has been administered on so that whatever need not be subject considered now. is, fact, public charity. cannot be controlled or its funds diverted from their original by any claiming parties beneficiaries. result, therefore, the defendant is rightfully the rents and receiving land, and it will be the duty the town to them to continue to do and to so, other prevent any or person from with the or interfering land, taking anything it; from and the bill must be dismissed. Ladd, J. The trust created the deed is a charitable use. (1) The establishment of the West (2) under the circumstances was a shown, division, separation, fact, the inhabitants of the town “into two or socie- ties,” within fair interpretation condition the deed. a charitable (3) Being use, the beneficiaries the time not divert the income by agreement arbitration. The result three propositions is, that the bill must be dismissed. J. By the establishment of the West Smith, the inhabi- tants of Orford and divided separated societies,” within the of the deed. meaning There language requires to be separation deed.that vote legal voters in held, warned and town-meeting duly inhabitants ascertained in some mode, if that term includes others besides voters. legal No method out in the being pointed deed which a separation division of the inhabitants is to be ascertained, I am of that the inhabitants opinion became and divided separated the establishment of the West consequently land by the deed should be appropriated use occupied by the.West society the river road. The trust being charitable use, it, beneficiaries cannot alien sell; not theirs to property nor donate for the title is not in them; nor funds, misapply because the use and trust for which it was created cannot be diverted. bound They are income apply the donor. The the terms and conditions imposed by agreement 1838, which the income was divided between two societies, was a diversion of the from the property terms of the trust, cannot be enforced. consequently The West is entitled to the whole income. Bill dismissed.