9 Barb. 64 | N.Y. Sup. Ct. | 1850
The important questions arising in this case call for a careful consideration. Our civil and religious institutions differ so widely from those of the country whence we derive the common law, that upon some points but little light, comparatively, is received from that source. And in consequence of the diversity of legislation on the subject, very little aid can be obtained- from the decisions of the courts of sister states, and the contrariety of opinion in our own courts, unfortunately leave the matter in some perplexity.
These considerations naturally produce doubt and timidity in the judicial examination of a subject so delicate, and so closely connected with the very well-being of society. All the judge can do in such cases is to inquire, with patience and careful research, what is the law of the case; and that, ascertained, declare it; minding that the via trita is the safest, and avoiding judicial legislation.
The first step in the inquiry is into the nature of the conveyances admitted by the pleadings. Those from French are, perhaps, the most important, because the church edifices were both built upon the premises described therein. The first deed was given in 1786, the year after the church or congregation was organized; and the first house was built soon after. Gilmore’s deed of another parcel was given in 1799. In 1810, French and his wife executed another deed of the same premises described in his deed of 1786. The incorporation took place in 1826. Whatever estate was held by the grantees in
The deeds from Dr. Bullions in 1827, and from Mr. Stevenson in 1835, passed the property therein described, directly to the corporation. For, although the conveyances are to certain persons by name, as trustees, and not to the corporation by its corporate name, there is sufficient appearing upon the face of the instruments to designate the real grantee, and show the intention of the parties; and besides that, having capacity to take the legal estate, the use, I think, would be executed at
To a proper understanding of the law applicable to this case, it is necessary to ascertain the character and qualities of these religious corporations.
The first general act in this state upon this subject was that of 1784. (1 Greenl. Laws, 71.) The provisions of that act affecting denominations not otherwise therein particularly specified, were substantially the same as the law passed March 27th, 1801, (1 K. & R. 336,) of which the material parts of our present law, “ an act to provide for the incorporation of religious societies,” passed April 5th, 1813, are a transcript. The first section of the latter is applicable to the Protestant Episcopal Church, and does not affect this case. But it may be remarked that the electors of church wardens and vestrymen are confined by that section to the “ church or congregation,” omitting the word “ society and the church wardens and vestrymen elected, together with the rector, if there be one, form a vestry and are the trustees; and as such, are a body corporate. And the church wardens and vestrymen have power “ to call and induct a rector to the church or congregation,” as often as there is a vacancy. The second section is applied to the Reformed Protestant Dutch Church or congregation, and makes the minister, elders and deacons, or if no minister, then the two latter, “ elected according to the rules and usages of such churches within this state,” trustees of such “ church or congregation and such trustees are authorized to become incorporated by filing a proper certificate.
The third section applies to all other churches, congregations or religious societies, except a few special cases, found in this and subsequent statutes. It enacts, “ That it shall be lawful for the male persons of full age, belonging to any other church, congregation, or religious society, now or hereafter to
The fourth section applies to the trustees of all the churches, congregations, and societies embraced within the first, second, and third sections. It requires them to have a common seal, and empowers them “ to take into their possession and custody all the temporalities belonging to such church, congregation or society, whether the same consist of personal or real estate, and whether the same shall have been given, granted, or devised directly to such church, congregation or society, or to any other-person for their use, and also by their corporate name or title to sue and be sued in all courts of law or equity, and to recover, hold, and enjoy all the debts, demands, rights and privileges, and all churches, meeting houses, parsonages and burying places with the appurtenances, and all estates belonging to such church, congregation or society, in whatsoever manner the same may have been acquired, or in whose name soever the same may be held, as fully and amply as if the right or title thereto had originally been vested in said trustees; and also to purchase and hold other real and personal estate, and to demise, lease, and improve the same for the use of such church, congregation or society, or other pious uses,” not exceeding a certain amount. “And also to repair and alter their'churches or meeting houses, and to erect others if necessary, and to erect dwelling houses for the use of their ministers, and school houses and other buildings for the use of such church, congregation or society; and such trustees shall also have power to make rules and orders for managing the temporal affairs of such church, congregation or society, and to dispose of all moneys belonging thereto, and regulate and order the • renting of the pews in their churches and meeting houses, and the perquisites for the breaking of the" ground in the cemetery or churchyards and in the said churches and meeting houses for burying the dead, and all other matters relating to the temporal concerns and revenues of such church, congregation or society,” and appoint a clerk, treasurer, and collector, &c.
Section fifth declares the number of trustees necessary to do
The seventh section declares, “ That no person belonging to any church, congregation, or society, intended by the third section of this act, shall be entitled to vote at any election succeeding the first, until he shall have been a stated attendant on divine worship in the said church, congregation or society, at least one year before such election, and shall have contributed to the support of the said church, congregation or society, according to the usages and customs thereof; and that the clerk to the said trustees shall keep a register of the names of all such persons as shall desire to become stated hearers in the said church, congregation or society, and shall therein note the time when such request was made; and the said clerk shall attend all such subsequent elections, in order to test the qualifications of such electors, in case the same should he questioned.”
The eighth section reads as follows: “ And be it enacted, that nothing in this act contained shall be construed or taken to give to any trustee of any church, congregation or sociéty, the power to fix or ascertain any salary to be paid to any minister thereof, but the same shall be ascertained by a majority of persons entitled to elect trustees, at a meeting to be called for that purpose; and such salaries, when fixed, shall be ratified by the said trustees, or a majority of them, by an instrument in writing under their common seal, which salary shall thereupon be paid by the said trustees out of the revenues of such church, congregation, or society.”
The ninth section allows any “religious corporation” (other than those chartered) when deemed necessary, and for the interest of such “ religious corporation, to reduce their number of trustees,” but not to less “ than three trustees in any one of the said religious corporations.”
Sections ten, twelve and fifteen relate to the amount of yearly revenues, and also to the report thereof to the chancellor or a justice of the supreme court, or a county judge by the churches
Section eleven empowers The chancellor, on the application of the corporation, to authorize the sale of its real estate, (not granted by the state, &c.) and direct the application of the avails by the corporation “ to such uses as the same corporation with the consent and approbation of the chancellor shall conceive to be most for the interest of the society to which the real estate so sold did belong.”
Section thirteen, (no doubt referring to the former statutes,) establishes and confirms “ every corporation of any church, congregation or religious society,” made in pursuance of any law of this state in conformity to the directions of this act; and in case of a dissolution by reason of non-compliance with the statutory regulations, provides for re-incorporation within six years.
Section fourteen applies solely to the Methodist Episcopal Church in the city of New-York. '
The sixteenth section provides, “ that whenever any religious corporation shall be dissolved by means of any nonuser or neglect to exercise any of the powers necessary for its preservation, it shall be lawful for the religious society which was connected with such corporation to re-incorporate itself in the mode prescribed by this act, and that thereupon all the real and personal property which did belong to such dissolved corporation at the time of its dissolution shall vest in such new corporation for the said society.”
The law of 1826, (ch. 47,) amendatory of this act, provides for holding over in case of omission to elect, and authorizes a re-election to fill vacancies. And the second section declares that in case of an omission of any church, congregation or religious society to elect trustees, church-wardens, vestrymen or other officers, such church, congregation or religious society shall not be deemed or taken to have been thereby dissolved, but those officers shall hold over, provided a new election shall take place within one year. And the third section of the amendatory act of 1844, (ch. 158,) is a repetition of this section.
Then what kind of corporations are they
The answer to this inquiry may be of some importance in this case. Chancellor -Kent, in his commentaries, denominates them ecclesiastical corporations,” and Angel &. Ames in their valuable work on corporations, upon this authority, adopt the same application. (2 Kent, 274. Ang. & Ames on Corp. 33.) Neither cites any decision. Considering the high authority from whence the remark emanates, I express a dissent with much timidity, but with deference, I think it incorrect. I doubt whether, in a technical sense, there are any ecclesiastical corporations in this state, particularly under the third section of this act. As an ecclesiastical body, they have no legal existence; they have no ecclesiastical power. They are not controlled by and can not control the church, or any church judicatory, or interfere in spiritual concerns. Their object and purpose is to manage the temporalities of the society. “ Ecclesiastical corporations,” says Blackstone, “ are where the members who compose it, are entirely spiritual persons; such as bishops, certain deans and prebendaries; all arch-deans, parsons and vicars, which are sole corporations; deans and chapters at present, and formerly prior and convent, abbots and monks, and the-like; bodies aggregate.” And in describing the class of lay corporations known as eleemosynary, he adds: “ and all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons, and although they in some things partake of the nature, privileges and restrictions of ecclesiastical bodies.” (1 Bl. 470. And see Phillips v. Bury, 1 Ld. Ray. 6; Cawdreys case, 5 Co.fol. 15; 2 Bqc. Abr. 2; 1 Kyd, 22.) It is not the profession of piety
corporations is, that they are subject to the jurisdiction of the ecclesiastical courts or the visitatorial power of the ordinary. (1 Bl. 471, n. 1. Tom. Dic. 436. 1 Kyd, 22. Holt, C. J. l Show.252.) Our religious corporations have no such amenabilities. There the ordinary is the visitor of ecclesiastical corporations, and from him there is an appeal. The king, as the “ supreme ordinary,” visits the metropolitan, and the metropolitan the bishop. Church wardens (in England) are said to be lay corporations, although instituted for the benefit and advancement of religion and to suppress profaneness and immorality, and to see that public worship be performed with due decency and reverence; and are elected by the parish or lire minister and parish. (1 Bac. Abr. 597. Dawson v. Fowle, Hardr. 378. Holt, C. J. in Rex v. Rees, 12 Mod. 116. Toml. Dic. “ Church wardens,” 1 Lill. Abr. “ Church wardens.” 1 Burn’s Eccl. L. 378.) It may be added, that our corporations have power to build school houses, and dwellings for the minister, and other buildings, &c. If these were ecclesiastical corporations, there would be no visitor, for the reason that no person or officer, with us, has any such jurisdiction. That system is a part of the ecclesiastical polity of England, and does not apply to our religious corporations. (2 Kent, 304.)
If lay corporations, then they are either eleemosynary or civil.
But I am inclined to the opinion that these corporations are not eleemosynary, although occasionally so called. Eleemosynary corporations “ are constituted for the perpetual distribution
If, then, these corporations are not ecclesiastical, nor eleemosynary, they fall into the remaining class, private and civil. I think they possess the nature and qualifications of private, civil corporations, created mainly for the purpose of aiding in the promotion and enjoyment of religion, by managing the property of the church. Civil corporations are subject to no visitation, except in England by the king, who exercises this power in the king’s bench, which is his representative, by mandamus, or quo warranto; and here this power, in a degree, belongs to the government, and was exercised in our supreme court; which is
“ This court,” said Sir William Grant, master of the rolls, “ I apprehend, has no jurisdiction with regard either to the election or amotion of corporators of any description.” (Attorney Gen. v. Earl of Clarendon, 17 Ves. 499.) And Lord Eldon, in a case of gross abuse of a charity under the statute of 43 of Eliz. upon •an information, stopped the cause until a petition was presented to him in his visitatorial capacity, and then declared an election invalid. (Att’y Gen. v. Dixie, 13 Ves. 519.) The same view was taken by Lord Commissioner Eyre. “ If the governors,” said he, “ established for the regulation of it [a charity established by charter,] are not those who have the management of the revenues, this court has no jurisdiction: and if ever so much abused, as far as respects the jurisdiction of this court, it is without remedy; but if those established as governors have also the management of the revenues, this court does assume a jurisdiction of necessity, so far as they are to be considered trustees of the revenue.” (The Att’y Gen. v. Gov. of the Found. Hosp. 2 Ves. jun. 47.) Chancellor Kent, on a review of the cases,
It follows, that chancery has no power to disfranchise a member, or remove one of the officers of a corporation, in this state, only so far as that power is given by statute. Disfranchisement, it is said, is properly predicable of a member and amotion of an officer of a corporation. (Ang. & Ames on Corp. 404.) But neither, in case of a private civil corporation, at common law, is within the power of that court.
But there is another important inquiry; where the incorporation is under the third section of the act, who are the corpora-tors 1 This is not without difficulty. Chancellor Walworth, in Lawyer v. Cipperly, says that the statute of 1784 recognized three distinct classes or bodies existing in a religious corporation; “ the church or spiritual body, consisting of the office-bearers and communicants; the congregation or electors, embracing all the stated hearers or attendants on divine worship who are competent to vote for trustees; and the trustees of the corporation.” (7 Paige, 285. Sec 16 Mass. 503,4; 10 Pick. 193; 11 Id. 494.) But the 11th section of that act is not found in the acts
The statute, therefore, declares who are the corporators, and the court of chancery can not indirectly disfranchise a member by declaring that he does not possess the necessary qualifications. That power is expressly given to others by the act, and the law courts, in case of controversy, alone can review the matter, if that can be done by any tribunal.
If the foregoing views are correct, then those parts of the decree appealed from in this case, which removed some of the defendants as trustees or officers of the corporation, and which declare that the adherents of Dr. Bullions are not members of the corporation, and who are electors therein, and which provide for a new election of trustees, are erroneous; the court of chancery having no power of amotion of an officer of these corporations, or to disfranchise a member thereof, or interfere with or control the election of its officers.
But, although a court of chancery has no jurisdiction with regard to the election or amotion of corporators, it may, in some cases, where a corporation is a trustee, take from it the trust fund, if the trust be abused. Even the trustees of a literary or charitable institution in whom visitatorial power is vested by the incorporation, are not placed beyond the reach of the law. As managers of the revenue of the corporation they are subject to the general superintending power of the court of chancery, not as of itself possessing visitatorial power, or a right to control a charity, but as possessing a general jurisdiction in all cases of an abuse of trust, to redress grievances and suppress frauds. And where a corporation is a mere trustee of a charity, a court of equity will go yet farther, and though it can not appoint or remove a corporator, it will in case of gross fraud or abuse of trust, take away the trust from the corporation and vest it in other hands. (Story, J. in Dartmouth College v. Woodward, 4 Wheat. 528. Mayor of Coventry v. Att'y Gen.
Chancery had jurisdiction over trustees for certain purposes, it seems, even before the statute of uses, 27 Hen. 8, c. 10; and at all events before the statute of charitable uses, 43 Eliz. c. 4. (1 Spence’s Eq. Jur. of Chan’y, 458, 466. 4 Viner’s Ab. 386. And see note to Vidall v. Girard’s Ex’rs, 2 How. U. S. Rep. 155. 2 Fonb. 207 and notes to the Am. ed. Angell & Ames on Corporations, 143.) Independent of its special jurisdiction by the statute of 43 Eliz., chancery, by virtue of its general jurisdiction over trusts, may enforce them when for charitable purposes, in many cases. (2 Story’s Eq. Jur. § 1187.) The favor formerly shown to donations for charitable uses, induced the court of chancery to disregard the statute of mortmain, and allow corporations to take lands for that purpose by devise. Lands held by a corporation ordinarily revert to the donor on its dissolution, but not so in case of a charity. (Att’y Gen. v. Lord Gower, 9 Mod. 226.) And the language of Lord Chancellor Ellesmere, that the goods in the hands of the administrators were all to charitable uses, and that the office of the ordinary and of the administrator is to employ them in pious uses, and that the kindred and children have no property or pre-eminence but under the title of charity, would not now readily receive our assent. (Damus’ case, Moor, 822-3.) This was said by him while he and Baron Altham were sitting as commissioners under the statute of Elizabeth.
But this statute of charitable uses has never been re-enacted in this state, and though many principles of equity growing out of
As we have seen, where the corporation is acting merely as a trustee, and grossly abuses the trust, it can be divested thereof. That was the case of Ex parte Greenhouse, (1 Madd. 92.) There the surviving trustee conveyed the trust property, a chapel, bells therein, and burying ground, (and other property,) to the bailiffs, burgesses, and commonalty of Ludlow; and the corporation pulled down the chapel, carried the bell to the market place, the pews to another church, repaired a bridge with the materials, and leased the site to one of the corporators for one-fourth of its value, and violated the burial place. The vice chancellor, Sir T. Plummer, very properly removed the corporation as trustee, remarking “ It is an enormous breach of trust, and such as could not be expected in a Christian country !” Here the corporation was a mere trustee, receiving the legal estate, (and improperly too, as stated by the court,) to fulfil the trust. If the corporation of Ludlow had owned the property in their own right without any trust, and had been the beneficial as well as the legal owners, equity would not. and could not have taken it from them. It is on the ground, of confidence that equity interferes. No corporator or officer of the corporation was removed in that case. A trust, in which as a corporation they had no interest, was taken from them. Probably now, in this state, they could not have acted as trustees at all. (In re Howe, 1 Paige, 214. And see 4 Id. 423.)
In this case the corporation, together with four of the six trustees, and Dr. Bullions, claiming to be and officiating as minister, are made defendants. It is admitted that the legal estate is in the corporation. The officers of the corporation, as individuals, have no more beneficial interest than any other corporators. It was said in Verplank v. The Mer. Ins. Co. that the relation of cestui que trust and trustee does not exist between the corporation and stockholders of an incorporated company. (1 Edw. Ch. Rep. 47, per McCoun, V. C.) But the vice chancellor farther added, that a relation was created between the stockholders and those directors, who in their char
In this case the first deed from French is to seven persons described as trustees of the Associate Church of Cambridge, adhering to the Associate Presbytery of Pennsylvania, habendum to the said party of the second part, and their successors forever, to the sole and only proper use, benefit and behoof of the said Associate
This brings us to the great question in this cause: are the defendants or any of them, violating the trust reposed in them, or their duty, by adhering to and supporting Dr. Bullions? For if that is so, although a court of chancery can not remove them and can not divest them of this property, it can compel them to do their duty in relation to it.
Upon this subject the cases are not very satisfactory. The church establishment of England, from which country we derive the great body of our laws, occupies a large space there ; and has not and never can have any representative here. Sustained by the strong arm of power from the first Christianization of the island, its influence has been constantly felt, not only in ecclesiastical matters, but in those of a secular nature. For a long period, the chancellors of the kingdom were ecclesiastics, such only, being considered fit keepers of the king’s conscience. These, first exercised jurisdiction over trusts. The most rigid rules for the observance of faith, practice, doctrines and government of the church were enforced. “ The toleration of héresy,” says Sir. J. Mackintosh, “ was deemed by men of all persuasions, to be as unreasonable, as it would now be thought to propose the impunity of murder.” (History of England, ch. 13.) Nor did this end at the reformation. The great Lord Coke was fierce against witches; ( 3 Inst. 45;) and he was overruled by the chief justice, chief baron and two of the judges, who as late as 1611, certified to the king that a heretic could be burnt on conviction before the ordinary. (12 Co. 93, and see Or abb’s History of English Law, 500.) Indeed, it is questionable whether the same punishment could not be inflicted for a denial of predestination. (1 Hal. Const Hist. 139, n.) Sir Thomas More personally assisted at the punishment of heretics; and the immortal Bacon, as attorney general, was present, if he did not superintend the torture by the rack, of an old clergyman, Even the Bohemians admitted in general, that corruptora of re
Another leading case in England was one arising out of the charities founded by Lady Hewley. It was decided by the'same vice chancellor, in 1833, was argued on an appeal before Lord Brougham, assisted by Justice Lit tied ale and Mr. Baron Parke in 1834, but not decided; and re-argued before Lord Lyndhurst, assisted by Mr. Baron Alderson and Mr. Justice Patterson, in 1835, and decided in 1836. (Attorney Gen. v. Shore, 7 Sim. 309, n.) And was argued on appeal in the house of lords in 1839, and affirmed there in 1842. (Shore v. Wilson, 9 Clark & Finnelly's P. R. 355.) Lady Hewley was a Presbyterian, and conveyed lands to trustees by two deeds, one given in 1704 and the other in 1707, for the purpose of assisting poor and godly preachers of Christ’s holy gospel, and the widows of such, and to assist in the education of young persons designed for the ministry of Christ’s holy gospel; and for encouraging and promoting the preaching of Christ’s holy gospel in such poo.r places as the trustees should think fit, and for the relief of poor and godly persons in distress. In case of the death of a trustee, his place could be filled by the survivors. The first deed reserved the power to revoke the trusts and declare new trusts. The second deed was for the same objects, and also established a hospital or habitation for poor people, to be subject to certain rules, one of which was, that none of evil report be admitted, but such as were poor and piously disposed and of the protestant religion; another was, “ Let every almsbody be one that can repeat by heart the Lord’s prayer, the creed and ten commandments, and Mr. Edward Bowles’ catechism.” The attorney general said a Unitarian could repeat Bowles’ catechism. The Bishop of London said: “ An Alian may, but not a Unitarian.” The effect
Craigdallie v. Aikman was decided in the house of lords in 1813. (1 Dow’s P. C. 1.) Certain persons, as early as 1733, and who adopted the principles of the secession from the Church of Scotland, which took place in 1737, and adhered and submitted to a secession judicatory, had provided a chapel for worship. There was no special contract of adherence, but the judicatory had continued to regulate and direct the use of the chapel until 1795. In 1795 a difference of opinion arose, and a majority of the congregation, as well as the synod, adopted the new views, though a majority of the money contributors to the chapel adhered to the old, and declined the authority of the judicatory. The question was to
Galbraith v. Smith was decided by the court of session in Scotland, in 1837. (15 Cases in Court of Session, 819.) The church judicatories of a dissenting body, having pronounced a sentence declaring a minister of their body out of connection, joint possession was awarded to the claimants until a decision should be made. A secession church had joined a certain presbytery, but a minister they had called being deposed, and the decision of the presbytery affirmed on appeal, the struggle was for possession of the chapel. Lord Meadowbank said, “ I take it to be clearly and finally settled that a trust may be legally established, and a civil right created, for behoof of a body of dissenting Christians professing certain tenets, and agreeing to have their civil rights fixed by and dependent upon the observance of such rules and regulations as are inherent in, and calculated to maintain tire principles they support.” And “ that it is a legal object of such a trust, that it may profess to be constituted with a view to perpetuity even, by placing in the hands of a recognized body the right and power of controlling and modifying these rules and regulations in conformity with the fundamental principles of that sect of dissenting Christians to which those constituting the trust may have professed to adhere, and that a civil court will not take cognizance of the proceedings and determinations of those ecclesiastical judicatories, as they may be termed, upon matters of doctrine and discipline, but hold them to the probatio probata of the principles of the sect.” He further stated that the deed need not declare all the
In Porter v. Clarke, (2 Simons, 520,) the conveyance was to trustees “ to permit and suffer the said messuage tenement and meeting house building and premises, to be used as and for a place for the worship of Almighty God by the congregation of protestants dissenting from the Church of ."England, under the denomination of particular baptists, holding the doctrines of personal election, imputation of original sin, effectual calling, free justification, and final perseverance of the saints, and by the members and successors of the same congregation of protestants holding the same doctrines.” There was no endowment for the minister, nor any trust property except the chapel and premises, and the minister was supported solely by voluntary contributions of those attending the chapel. The plaintiff had been minister for thirty-seven years, and had been dismissed. The court thought there was no cause for interference.
Milligan v. Mitchell came before Lord Chancellor Brougham in 1833, and before Lord Chancellor Cottenham in 1837. (1 Myl. & Keen, 446. 3 Myl. & Craig, 72.) And also came up on questions of practice at other times. (1 Id. 433, 511.) About 1798 the Scotch Presbyterian Chapel at Woolwich, being
Leslie v. Birnie turned upon the question whether the seat-holders had a right to vote for a minister. (2 Russ. 114.) The chapel had been all along used by a congregation professing the faith, discipline, &c. of the established Church of Scotland, so far as applicable to a church out of Scotland; and had been in connection with the presbytery of the Scotch church in London. The chancellor said the trust was for the congregation, which might mean all that met together at the chapel, or in a more limited sense the members only. That the trust might be well executed if the minister was chosen according to the customs and laws of the Church of Scotland.
Davis v. Jenkins was also a struggle for the possession of the trust property. The surviving trustee assumed to control it, and the court ordered a reference to a master to inquire into the nature of the establishment and who should elect a minister. It was decided in 1814. (3 Ves. & B. 151.)
Foley v. Wonter was decided in 1820. (2 Jac. & Walk. 245.) A new site was purchased on which a new house had been erected, and the deed gave the power of appointing the trustees to the surviving trustees, instead of the congregation at large, as in the first deed. Disputes arose and the parties resorted to equity. Lord Eldon said he had several tiipes been called upon
Attorney Gen. v. Drummond was decided in 1842, (1 Conner & Lawson, 210,) and was a struggle before Lord Chancellor Sugden, in the Irish court of chancery, by the Unitarians, to share a fund raised in 1710, to support the Protestant dissenting interests. One question was upon the kinds of evidence admissible to ascertain the trust. As to that, perhaps it may be considered settled, certainly in England, that, to a degree, extrinsic evidence is admissible, but not parol declarations of the trust. And it was also decided that the fund was not applicable to the support of Unitarian doctrines.
Several cases in our sister states have more or less raised some of the questions arising in this cause, a few of which I will notice.
The Presbyterian Church v. Johnston, (1 Watts & Serg. 1,) was decided in 1841. The grant was to trustees “ as a site for a house of religious worship, and a burial place for the use of the said religious society of the English Presbyterians and their successors in and near said town of York.” The church had been connected with the Carlisle Presbytery at least 20 years before the deed, and at that date, and until 1838, in all about 73 years. They then renounced all obedience and subjection to any church judicatory, and so continued for a time, and then formed a connection with the Presbytery of Harrisburgh, of the new school. They became incorporated after the deed was given. One of the judges, in his dissenting opinion, insisted that a church could not be presbyterian without being connected with some presbytery, and denied that the new school was presbyterian. But the majority decided, that a connection with the
The trust in the case of Chambers v. Baptist Education Society, was for the education of such Baptist preachers and candidates as adhered to the articles of General Union of Baptists in Kentucky, and the court thought the trustees had a sound discretion as to the manner of executing the trust. (Monroe's Eq. 216.)
Deun v. Bolton, decided in 1831, is often cited. (7 Halst. 206.) The land was Conveyed to the “ministers, elders and deacons of the Dutch Reformed Church in the English neighborhood.” The church had been connected with the classis of. Bergen and the General Synod, and a portion of them withdrew and formed a connection with the True Reformed Dutch Church, and it was held that the plaintiffs, who had been chosen according to the old form and regulations, and remained, were entitled to the property. This church was incorporated under the statute of New Jersey, entitled “ An act to incorporate trustees of religious societies,” passed June 12, 1799. (1 R. L. 475.) The 12th section of that act declares that the minister, elders and deacons, or if no minister, the elders and deacons of Reformed Dutch Churches, “shall be trustees of the same and a body politic and corporate in law.”
In the case of St. Mary’s Church, (7 Serg. & Rawle, 539,) it appeared the ground on which the chapel stood was held in trust for a Roman Catholic congregation, and afterwards a charter was granted to a religious society of Roman Catholics; and the chief justice remarked : “Now if a majority of this congregation should insist upon employing pastors contrary t.o the rules of the" church, and the minority should choose to remain strict Roman Catholics in the sense of the word at the time of their incorporation, what is to become of the chapel and the
The cases in Massachusetts and Connecticut give but little light on the subject, owing to the peculiarity of the semi-established systems under which they arose. In Massachusetts it was decided that a congregational church was not a corporation, nor qua corporation, for the purpose of holding property ; and a minority of the church remaining with the parish, was recognized as the church connected with the parish. (Baker v. Fales, 16 Mass. 488. Stebbins v. Jennings, 10 Pick. 172. Page v. Croly, 24 Id. 211.) And to depose a clergyman, there should be an essential change of doctrine, or wilful neglect of duty, or immoral or criminal conduct. (Avery v. Tyringham, 3 Mass. 160. Burr v. Sandwich, 9 Id. 277. And see 16 Pick. 274; 24 Id. 281; 5 Conn. R. 495.) In the case of Landon v. Plymouth Cong. Society, (12 Conn. R. 113,) a sum of money was raised for the support of the gospel ministry in the society, and the management of it given to the corporation. The corporation undertook to destroy the fund by returning it to the donors and their representatives. The court interposed, on the application of the minority. Ch. J. Williams, in delivering the opinion of the court, said, that were the corporation the donees and their powers unlimited, they would have greater rights over it; but, as trustees, they could not destroy it. That it was well settled, that without the consent of the cestuis que trust, or the aid of the court of chancery, trustees can not change the relation at pleasure, and denude themselves of the trust; and cited Ally General v. Christ’s Hospital, (3 Bro. C. R. 165 ;) Chalmers v. Bradley, (1 Jac. & Walker, 68;) Shepherd v. Mclvers, (4 John. Ch. 136.) The principal case, it will be observed, was one of express trust; and even had the property belonged to the corporation, the majority could not destroy the corporate fund, at least without the consent of all the corporators.
The cases in our own state are not more satisfactory. In the People v. Runkel, the supreme court held that the trustees of a religious corporation under our statute were entitled to the possession and custody of the temporalities of the church, and law
Diefendorf v. Reformed Calvinistic Church, decided in the supreme court, was an action for a subscription “ for the support of the ministry of the said church as long as the Rev. John I. Wack is and remains our regular preacher.” Wack had been deposed for immoral conduct, by the classis, and, on appeal to the synod, that sentence was reversed. The court held the relation of minister and congregation was not dissolved; and Platt, J. who delivered the opinion of the court, said the decision of the synod was conclusive. (20 John. 12.)
The Dutch Church of Albany v. Bradford, in the court for the correction of errors, was put on similar ground. There the defendant in error had received a call referring to the rules of church government established in the national synod held at Dordrecht, (1618-19,) and the articles explanatory of the government and discipline of the Reformed Dutch Church in the United States of America, which he had accepted ; but was afterwards suspended by the classis for inebriety. He appealed to the synod, but his appeal was not sustained; and finally his pastoral connection with the church was dissolved by the classis. The question was whether he was entitled to his salary after the suspension ; the effect of the decisions of the church judicatories in other respects, seems to have been admitted on both sides. (8 Cowen, 457.)
Field v. Field. (9 Wend. 394,) was also at law. The action was on a sealed note payable to the plaintiff, “ treasurer to the purchase-meeting-school-fund or his successor.” The dispute grew out of the division of the Friends into Orthodox and Hicksites. The court decided that the person appointed in “ the old mode” was the treasurer. And Nelson, J. remarked that a court
The Baptist Church of Hartford v. Witherell was the first cause that came before Chancellor Walworth involving these questions. (3 Paige, 296.) It was amotion for an injunction, and most of the facts appeared by the bill, and were not controverted. A deed of the land was given to the “elder or minister, deacons, wardens, and their successors in office, of the First Baptist Church in Hartford,” in 1813; and a church erected upon the premises soon after. The society remained unincorporated until 1831. The adherents of the defendant Witherell, who were in- the majority, were incorporated in September, 1831, and the minority, represented by the complainants, claiming to be the corporation, endeavored to be incorporated about two months after. The defendants were charged with unchristian conduct. The Washington County Baptist Association, which, as was alledged and not denied, was the regular tribunal, constituted by all the Baptist churches in Washington county, to take cognizance of and decide all ecclesiastical questions of that and the like nature, and whose decision was final unless appealed from, had decided that the minority constituted the regular church. The defendants, after this decision, wholly withdrew from the fellowship of this association, and had put the complainants out of possession, although those represented by the latter owned two-thirds of the pews. The chancellor decided that the trustees appointed by the defendants had a right to the possession of the property, and he remarked that “ the complainants appear to have acted on the supposition that the decision - of the ecclesiastical judicatory, that a certain portion of the members of the Baptist church in Hartford were heterodox in doctrine
The chancellor again, in The Reformed Protestant Dutch Church in Garden-street v. Mott, sustained the title and power of the trustees to and over the temporalities of the society, even to alienation. He added, that the court of chancery in this state, independent of the English statute in relation to charitable uses, which he said was never acted upon in this state, had
This was followed by the case of Lawyer v. Cipperly, decided in 1838, (7 Paige, 281.) The complainants were a clergyman and a part of the elders and deacons of Zion Church, an incorporated Lutheran society, and they sought to restrain the defendants, who were the trustees of the corporation, from depriving the complainants of the enjoyment of the property, and the use of the church belonging to the corporation. Lawyer claimed to have been duly nominated by the church council and elected, by the majority of the male members of the church and congregation ; but the defendants, the trustees, refused to allow him to preach, and denied the regularity of his election, and insisted that he and his adherents had abandoned the faith and doctrine of the evangelical Lutheran church, by refusing to adhere to the Augsburgh confession of faith; and had withdrawn themselves, and were endeavoring to withdraw the church, from the Hartwick Synod : a superior church judicatory to which Zion’s Church had attached itself many years before. The society was incorporated under the act of 1784. The chancellor adverted to and reaffirmed his views in Witherell’s case; and said the church or spiritual body, as to its doctrines, government and worship, is to be governed and regulated by its own peculiar rules, which neither the trustees nor the congregation have any right to interfere with or alter without the consent of the church itself; and declined to pass upon the question, whether a church, as such, has a right to change its government, discipline or mode of worship, or standards of faith with the consent of the trustees and congregation. That it was not sufficient that a minister should be called and elected by the church or spiritual body according to its general usages, but, if he is to use the house, or enjoy the property of the corporation, “ his employment must also be sanctioned by the trustees as the representatives of the temporal rights of the whole congregation. And if he is to receive any support or compensation for his services, either from pew rents or from subscriptions, or other ordinary contributions, by all or any of the stated hearers of the congregation, which subscriptions or contributions for the support
And Paddock v. Brown, (6 Hill, 530,) agreed with Lawyer v. dpperly, as to the power of trustees in the employment of ministers. There the call was by three elders of a Presbyterian church and one trustee, and contained a promise to pay the salary ; but those signing the call were held not personally liable, as it was considered the act of the congregation. This was decided in May, 1844; and in the same month, the eminent jurist who decided The Baptist Church v. Witherell, and Lawyer v. Cipperly, decided Gable v. Miller, (10 Paige, 627.)
In Gable v. Miller, the trustees of a German Reformed Church, which was for a long time in connection with and subject to the judicatories of the Reformed Dutch Church in the United States, attempted to dissolve that connection, and employed German Lutheran pastors without the consent of a large portion of the
From this contrariety of opinions, it is impossible to say upon what ground the members constituting this large majority of the court, put the decision. Whether they considered there was no condition attached to the property; or that there was no deviation from doctrine or discipline; or that the deviation was too unimportant for the interference of the court; or that the court had no jurisdiction; does not appear. The first time the chancellor avowed the change in his opinions, and declared the court of chancery to have jurisdiction to interfere to control trustees in reference to doctrine and modes of worship of a religious society, and acted upon that principle, his decree was overthrown by the highest court in the state, by the decisive vote of nearly five to one.
In the cases of Kniskern v. The Lutheran Churches, (1 Sandf. Ch. R. 439,) before Assistant Vice Chancellor Sandford, and Bowden v. McLeod, (1 Ed. Ch. R. 588,) before Vice Chancellor McCoun, this power of chancery was declared to exist on the ground of trust, and in the former case acted upon; but as both cases were decided before the final decision of Miller v. Gable, though very ably considered, they must be deemed overruled, so far as they conflict with the latter. The People v. Steele, decided by Mr. Justice Edmonds in 1848, was an application for a mandamus. (2 Barb. S. C. R. 397.) Three Methodist churches united and formed a new church and became incorporated under the general act, built a church by voluntary contributions, and
It is proper to remark, before closing this review of the authorities, that the supreme court of Vermont has recently decided the case of Smith v. Nelson, growing out of the same difficulties which have occasioned this controversy. Ch. J. Williams delivered the opinion of the court, and came to conclusions, in most respects, diametrically opposite to those entertained by the vice chancellor in this case.
I have thus given a summary of the cases bearing the most directly on the one before us. It will be observed that the most important of those in England were struggles between the Unitarians and Trinitarians; and the two leading cases were upon trusts originating when dissenters were tolerated, (by the toleration act, 1 Wm. & M. ch. 18—1689,) if they believed in the trinity; but for the denial of which they were subject to severe penalties; so that those claiming to retain the. property in the cases of The Attorney General v. Pearson and The Attorney General v. Shore, as well as in The Attorney General v. Drummond, supported doctrines, the avowal of which, when the trusts were created, would have been highly criminal by the laws of the land. This fact undoubtedly influenced those decisions, and thus circumstances which can not exist here, had a controlling effect upon the law of that country. The English cases too, were of unincorporated trusts, and so governed by the law of private trusts, and most of them in the nature of charities. They have been decided since our revolution, and in addition to what has been said in the courts of that country and this, their adaptation to the spirit and genius of our institutions has been doubted by our ablest jurists. Mr. Justice Story remarks upon the doctrines laid down in The Attorney General v. Pearson and The Attorney General v. Shore, that “ no such doctrine has as yet been ever promulgated in America; and from the peculiar circumstances of the country, and the diversity of religious opinions, it is improbable that it ever will be.” (2 Star. Eq. 1191, a, n.) Every case decided in England or in this country, shows that the subject is full of practical difficulties.
Upon this examination of the subject, it seems to me that certain general rules are applicable to these institutions when incorporated under the third section of the act—that chancery has no power to disfranchise one of the members, nor to remove the trustees or declare their election void; nor direct who shall vote; or in any way interfere with their election. This I have already very fully considered; that the trustees may be restrained from wasting the property, and from such management of it as the court can clearly see, unreasonably and unconscientiously deprives the society, or some part of it, of its enjoyment £ and also from applying it to the promotion of tenets clearly opposed and adverse to the fundamental principles of the faith and doctrine professed by the church or society at the time the corporation purchased the property. But the exercise of this jurisdiction should generally be restrictive, and not mandatory ; for the statute is their guide and authority for the future, and
In the present case I do not think a secession from any particular presbytery or synod would be a palpable abuse. The first connection was with the Associate Presbytery of Pennsylvania, which, it seems, is now nominally extinct. The church or society lost no rights by connecting itself with the Associate Synod of North America and the Associate Presbytery of Cambridge. Nor do I see how it would do so, by connecting itself with any other presbytery or synod of the same denomination, if any other exists. Whether a majority, under our statute, may dissolve all connection with other church judicatories, if there be no change in the fundamental doctrines of their faith, it is not necessary now to decide.
But whether the use of the house by a majority of the congregation under the ministry of the defendant, Dr. Bullions, is such
It was said on the argument that he had been restored by a presbytery in Vermont. I find nothing in the books made exhibits in this case, nor in the history of this denomination, that authorizes a deposed minister to go to some other presbytery, with which neither he or his church had before any connection, to be restored. (Perdivan, 194.) Had the Cambridge Church, before that application, connected itself with that presbytery, the case might have been different. Without expressing any opinion as to the manner in which it was done, I think, so long as he is under sentence of deprivation, the use of the corporate property should not be devoted to the support of his ministry against the will of any respectable portion of the society. I speak of the case as it stood at the time of commencing this suil. If he has been restored by a proper judicatory to which the Church of Cambridge was at the time attached, that is another matter, and not now before us.
There must be a decree restraining the defendants from using the temporalities of the corporation for the support of Dr. Bullions’ ministry as long as he is under sentence of deprivation. All the other portions of the decree which have been appealed from, must be reversed. Neither party can have costs against the other on this appeal. The complainants have asked too much, and neither side is free from blame. The rule is, where both parties have claimed what they are not entitled to, and each has succeeded as to part of the matters in litigation be
It was stated on the argument that the complainants, under the vice chancellor’s decree, had taken possession of and occupied the church edifice. The defendants, who were trustees at the time of the commencement of the suit, and their successors, are entitled to the possession of the property of the corporation; but under all the circumstances of this case, there should be no accounting for the mere use of the property.
If there has been waste or destruction of property, that should be made good.
Paige, P, J, concurred.
The facts, that the defendants in this cause represent four-fifths of the persons who formed “ The Associate Congregation of Cambridge, in the county of Washington, in the state of New-York, adhering to the principles of the Associate Presbytery of Pennsylvania formerly, now the Associate Synod of North Americathat they have contributed three-fourths of all the money expended in purchasing the property and erecting the buildings, which are the subjects of this controversy; and that all the property is in the hands of trustees, elected by a majority of the voters who belonged to the said congregation, and who, in all their acts have only obeyed the will of that majority, made me wish to find some legal ground upon which the cause could be decided in favor of the defendants. But I have sought in vain for any such ground. The defendants and those who act with them, contributed liberally for the purchase of lands and a library, and for the erection of a church and other buildings; and if, when doing so, they dedicated their contributions to a specific purpose, they voluntarily parted with their property, and can no more reclaim it and call it their own, than - the man who has contributed $ 100 to the American Bible Soci
As early as the year 1785, a congregation was organized and called “ The Associate Congregation of Cambridge, adhering to the Associate Presbytery of Pennsylvania.” Why these latter words but to furnish evidence to the world of the principles of faith, practice, discipline and government, which the congregation intended to adopt ? The year after the congregation was organized, Jonathan French conveyed to seven persons described as having been “ chosen and elected trustees for the Associate Congregation of Cambridge, adhering to the Associate Presbytery of Pennsylvania,” half an acre of land, “ to hold to the party of the second part and their successors forever, to the sole and only proper use, benefit and behoof of the said Associate Congregation of Cambridge.” The grantees took the estate as joint tenants; (Laws of 1786, ch. 12, § 6; 1 R. S. 727, § 44;) but as the word heirs was omitted, they took only an estate for life ; and on the death of the survivor, the estate would at law have reverted to the grantor or his heirs. The same year this conveyance was made, the congregation built a meeting house on the lot. In 1808, Rev. Alexander Bullions, one of the defendants, was ordained and installed as the pastor and minister of the said Associate Congregation of Cambridge ; and the bill alledges, “that on such ordination and installation, one of his vows was answering affirmatively the following question : “Do you engage to submit yourself willingly and humbly in the spirit of meekness to the admonition of this presbytery as subordinate to the Associate Synod of North America?” &c. The complainants alledge, that in or about the year 1784, “ the said
The defendants in their answers admit the authority of the book above mentioned, but seek to escape the force ascribed to it by the complainants, by insisting that the submission, mentioned in the ordination vows, is a submission in the Lord—a submission to a presbytery when it acts uprightly—but, when it does not act uprightly, that it is the duty of the individual to refuse to submit, and to contend against and resist such a judgment ; and they refer to said book and pray that it may be taken as a part of their answer. This branch of the case will be resumed hereafter.
In November, 1826, the congregation was duly incorporated by the name of “ The Associate Congregation of Cambridge, in the county of Washington, and state of New-Yorlc, adhering to the principles of the Associate Presbytery of Pennsylvania formerly, now the Associate Synod of North America.” This was forty-one years after the first organization of the congregation, and eighteen after the ordination of Rev. Dr. Bullions; and the congregation insert in their corporate name their adhesion to the principles by which they were governed at their organization.
The members of the congregation seemed to have lived and prospered harmoniously till April, 1838, when the Presbytery of Cambridge deposed and excommunicated Rev. Dr. Bullions. That act of the Presbytery was, on his appeal, affirmed by the Associate Synod of North America. But, he, regarding the sentence pronounced by the Presbytery, and affirmed by the
But the complainants, and some other members of the congregation, believing that submission to the judgment of the Presbytery and Synod, is not only essential to maintain order in the church, but is required by religion itself, still adhere to the principles of faith, practice, discipline and government, as set forth in “ the declaration and testimony and they, in their bill, after setting out these principles of faith, practice, discipline and government, which had been adopted by the Associate Congregation of Cambridge, and after describing the various items of property, real and personal, belonging to said congregation, alledge, “ All of which property, real and personal, was acquired and accumulated by said Associate Congregation of Cambridge, and ever has been and still is held by the trustees of said congregation, in trust for the sole and only and exclusive purpose of being devoted and appropriated solely and exclusively to the support and maintenance of the preaching and teaching the gospel, and the administration of divine ordinances in said Associate Congregation, according to the aforesaid principles of faith, practice, discipline and government of the said Associate Church of North America, according to which principles no minister, who is under sentence of excommunication, can be permitted to occupy the pulpit, or administer divine ordinances, in said Associate Congregation; nor can any member of said congregation hear the preaching and receive the administration of divine ordinances from a minister under sentence of excommunication, without violating the solemn vows which they took on themselves when they became members of said Associate Church,” and which they alledge “ they most conscientiously believe would be sinful in the sight of God,” &c.
What answer do the defendants, one and all, give to these various allegations? They reply, that “all the real estate was purchased for a valuable consideration ; that no part of the real
It is evident that the unhappy controversy between these parties has grown out of the excommunication of the defendant, Rev. Dr. Bullions. He and his friends alledge that the sentence of excommunication was unrighteous. Be it so; be it that it was injudicious in a prudential point of view, and that he can conscientiously regard it as unrighteous; that does not alter the fact that he was excommunicated by a tribunal having authority to act in the premises, and was expelled from the Associate Presbytery of Cambridge, and no longer regarded as a member of the Associate Synod of North America.
But, the defendants insist, that although Dr. Bullions has been excommunicated and cut off from fellowship with this Presbytery and Synod, he has a right to preach, and perform all the duties of a gospel minister. It may be admitted, that neither the Associate Presbytery of Cambridge, nor the Associate Synod of North America, have any power to take from Dr. Bullions the right or to exempt him from the duty of preaching. Nay more, it may be admitted that it is the duty of men seeking the salvation of their souls, to listen to his preaching. But these admissions would not settle the question in relation to the property in dispute. The most important item of this property has, on the defendants’ admission, been held, from July, 1786, until this controversy, by the trustees of the Associate Congregation of Cambridge, in trust for the sole and only and exclusive purpose of being devoted and appropriated solely and exclusively to the support and maintenance of the preaching and teaching the gospel, and the administration of divine ordi
What do the complainants ask? They ask that the property shall continue to be applied and appropriated as it was for more than fifty years before this controversy commenced ; that it shall be applied and appropriated according to the declared will of the donors. How has the property been applied and appropriated ? To support and maintain the preaching and teaching of the gospel, and the administration of divine ordinances, by a minister in regular standing with the Associate Presbytery of Cambridge, and who, by the principles of faith, practice, discipline and government of the Associate Synod of North America, had a right to preach and administer ordinances in its churches. What do the defendants ask? They ask for a change; for an application of the funds to a purpose which no man who ever contributed a cent towards the erection of the church edifice or the lot on which it stands, anticipated or thought of; to have the funds applied to the support of the preaching and teaching of the gospel, and the administration of divine ordinances, by a gentleman, who, by the laws of the Associate Presbytery of Cambridge and of the Associate Synod of North America, has no more right to appear in the pulpit of this congregation of Cambridge and there administer ordinances, than any other gentleman in the state. The complainants are on the side of order. They wish to maintain and submit to the laws to which they vowed obedience when admitted members in full communion with the church. On the other hand, the defendants insist that obedience to those laws is a duty no longer than each man pleases to obey. This is in effect saying, that there is no rule or law which has been adopted by the Associate Presbytery of Cambridge, or the Associate Synod of
■ The defendants insist, that they are a large majority of the persons who, previous to the excommunication of Rev. Dr. Bullions, formed the Associate Congregation of Cambridge; that the trustees who were then in office, and those since elected by the defendants, are the trustees of said congregation; and that the trustees have the right to appropriate the funds and all the property which did belong to the congregation, as the majority of the corporators may direct. If this claim can not be maintained, the defence must fail. There is some reason to doubt whether the title to the lot on which the church edifice stands, ever passed to the trustees of the corporation. But, assuming that it did, the trustees took it charged with the same trust which it was subject to in the hands of the grantees named in the deed of 1810; and it will, I believe, be difficult for any one to read that deed and adopt the opinion that the rents and profits may be legally or equitably applied to support a minister, who, however worthy he may be, has been excommunicated by the Associate Presbytery of Cambridge. The charity is in terms confined to members in full communion with a congregation, in accession to the principles then presently maintained, by the Associate Synod of North America, and then under the inspection of the Associate Presbytery of Cambridge belonging to said Synod. This Presbytery, and this Synod, still exist. But the defendants do not claim that they compose either the whole or a part of the Associate Congregation of Cambridge, which is now under the inspection of this Presbytery, which belongs to this Synod, which Presbytery and Synod existed when this charity was declared, and still exist. They do not, therefore, show themselves to be the beneficiaries, or cestuis que trust described in the deed, or in any way entitled to a participation in that charity.
Other parcels of land have been conveyed to trustees or to the corporation, by deeds in which the trust is not so particularly specified; and in relation to these there might be more difficulty in saying who were the beneficiaries, had it not been
In the case of Miller v. Gable, in error, (2 Denio, 540,) Gar-diner, president, who gave the leading opinion, says : “ When the trust is declared in writing, and its nature and extent clearly defined, the court has no alternative but to carry it into execution.” This would seem to be sufficient so far as respects the lot on which the church edifice stands. In the same case, Barlow, senator, says : “ When property is in terms conveyed upon trust to support a particular form of worship, or to provide for the teaching of the doctrines of a particular denomination of Christians, the court of chancery will enforce such trust and prevent a perversion of the property to other purposes.” And Gar-diner, president, at pages 546 and 547, says: “ Again, if we are to assume that a German Reformed Church implies subordination to the Dutch Reformed Church, under the government of a consistory, classis and synod, because this church was in that connection in 1763, then it is a part of the trust, that such government shall be adhered to in all its parts as it then existed.” In the case now under consideration, subordination to the Associate Presbytery of Cambridge and the Associate Synod of North America, is in terms made a part of the trust; and if the defendants can not conscientiously submit to the discipline and government of the said Presbytery and Synod, it would seem most reasonable that they should not claim to participate in the benefits of a charity which was intended for the exclusive benefit of those whose consciences will allow them to submit to such discipline and government. At page 548 of the case above cited, Gardiner, president, says, in relation to grants made to churches in general terms: “ In those cases, the corporate or denominational name, in connection with the contemporaneous acts of the corporators, may be a sufficient guide as to the nature of the trust in respect to doctrines esteemed fundamental.” May not the same species of evidence be resorted to for showing what form of discipline and government the charity was intended to encourage ? In this case, as has been shown, the corporate name refers to the principles by which the corporators
Should a religious congregation be incorporated, and conveyances made to it without any declarations of trust, the rule insisted on by the defendants would apply, to wit, that a majority of the corporators or trustees would have a right to apply the property to such religious purposes as they deemed proper, unless it should be so long used for a specific purpose as to furnish evidence that it was originally dedicated to that purpose. But, in this case, the trust is so clearly and fully established, that neither a majority of the corporators, nor the trustees, have a right to divert the fund from the object to which it was originally dedicated, and has been so long applied.
Upon the question whether the sentence of excommunication against the Rev. Dr. Bullions was void, I shall only refer to the opinion of the vice chancellor. Whether the proceedings against him were marked with all that kindness and brotherly affection which ought to characterize a Christian judicatory when dealing with an erring brother, and whom they ought, if possible, consistently with the glory of their Master, to forgive “ seventy times seven,” is not for this court to determine. It is enough, so far as the duties of this tribunal are concerned, to say that he and the other defendants are no longer the beneficiaries described in the habendum in the last deed given by Jonathan French, and are not now among the cestuis que trust for whom the whole property has uniformly been held.
The decree of the vice chancellor must be affirmed, except that part of it in relation to the removal of the defendant trustees. Instead of a decree removing them from office, they must be decreed to deliver over the property which was in their hands as trustees when the bill was filed, and to account for the income thereof to such trustees as have been or shall be chosen
Decree restraining the defendants from using the temporalities of the corporation, for the support of Dr. Bullions’ ministry, as long as he is under sentence of deprivation. All the other portions of the decree which were appealed from, reversed; without costs to either party as against the other, upon the appeal.
