9 Pa. 321 | Pa. | 1848
(after stating the evidence offered and rejected.) — The will was made on the 27th November, 1837, and
But passing by this view of the case, I will consider the matter as it would stand at the common law, or mnder the English statute of frauds and perjuries, which, in this particular, is merely declarative of the common law. There are two kinds of ambiguities; the one patent, the other latent. The first is, when the uncertainty exists on the face of the will; and, in such case, parol
Part of the evidence proposed and rejected, is not denied but admitted; and that part which relates to the declarations of the testator, as to which church he intended the devise to benefit, and named the individuals and persons whom he intended to receive
It is evident from this statement of facts, that the first and main question is, whether the plaintiffs are the representatives of such a church as the testator intended should - receive the benefit of the devise, or not.
When the testator made his will, there was but one General Assembly in the United States; that Avas in November, 1837, and •the same state of things continued until his death, in April, 1838. The disruption and formation of the second, or what is called the New School General Assembly, did not occur until May, 1838. The trustees of the old General Assembly, existing in 1837, were incorporated; and that this General Assembly was in the mind of the testator is evident from the fact of there being then but one alone, and also from the fact that he speaks of the trustees, and their successors, who should be elected by the General Assembly. The developement of facts then in futuro, could not have been present to his mind; for Ayho can fathom and make palpable to sight and
In support of this view of the case, I may add, that the Presbytery of Erie, under which the plaintiffs are organized, applied to the old Synod of Pittsburgh, in the autumn of 1838, for recognition and adoption, thus manifesting that .they believed it to be a true branch of the old hierarchy, but were not admitted, because the Presbytery under which the defendants are established as a church, had been previously recognised.. We cannot decide, and do not undertake to determine, which branch or section of the old Presbyterian General Assembly is soundest in doctrine or purest in faith, or adheres most closely to acknowledged standards. These questions belong to another and a higher forum. We only decide as to identity and continuity of organization, so far as the right of property is concerned. That to which an individual has been long accustomed, and to which he has clung through life, is apt to be present to his mind in the closing hours of life and in articulo mortis, and is not relinquished without giving clear and unequivocal evidence of the fact. And when we have departed, and cannot speak for ourselves, such intention ought not to be imputed by the tribunals without satisfactory evidence. The testator died a member of the old Presbyterian Church; and in case the particular place of worship to which he intended his bounty to apply was not erected, he consigned the fund to the trustees of the General Assembly, to be disposed of by the Board of Education, through all time to come. This shows the location of his intent, and the settled purpose of his mind. The doctrine of Lord Eldon, in the ease of The Attorney-General v. Pearson, 3 Merivale, 400, that it is' the duty of the court to decide in favour of those, whether a majority or minority of the congregation, who are adhering to the ecclesiastical government of the church which was in operation at the time the trust was declared, is consonant with truth and nature, because it was on that which the mind of the donor rested. The case of App v. Lutheran Congregation, 6 Barr, 201, has a strong affinity in principle, though it does not reach the exact point. The
Judgment affirmed.