Robertson v. Bullions

Full title: ROBERTSON and others against BULLIONS and others

Court: Court of Appeals of the State of New York

Date published: Jun 1, 1854

11 N.Y. 243 (N.Y. 1854)

Opinion

June Term, 1854

Samuel Stevens, for the appellants.

N. Hill, Jr. for the respondents.

SELDEN, J.

The defendants not having appealed from any portion of the decree of the supreme court, so much of that decree as declares that Dr. Bullions had been deposed from the ministry, and that the trustees could not rightfully appropriate the funds of the corporation to his support, while he continued so deposed, without the consent of all the members of the corporation, and as prohibits such appropriation for the future, is to be regarded as final and conclusive. This court can only review those parts of the decree from which an appeal is taken. ( Kelsey v. Western, 2 Coms. 500.) It is not, however, to be inferred from this portion of the decree, that the supreme court intended to affirm the views of the trust, insisted upon by the complainants; because that part of the decree of the vice chancellor which declares the nature of the trust, was expressly reversed and annulled by the supreme court. The whole case therefore, except so far as it is involved in the simple prohibition in regard to the support of Dr. Bullions, is before this court; and in determining the questions which must necessarily be here decided in respect to the removal of the trustees, and their obligation to account, it becomes indispensable to pass to some extent upon the powers, duties and functions of trustees of religious corporations, the tenure by which they hold the corporate property, and the nature of the trusts committed to their charge.

Two distinct views have been taken of the nature of the corporations formed pursuant to the statute of this state providing for the incorporation of religious societies. According to one of these views the society itself does not become incorporated, but only its trustees. The individuals composing the society, the persons associated for the purpose of religious worship, form no part of the corporation, and are not to be regarded in any sense as corporators, but simply as members as well after as before incorporation, of a voluntary association, without unity, except such as may be produced by the assent of its members to its own self-imposed rules and regulations. The trustees in this aspect, constitute a body corporate entirely separate and distinct from the society, created for the sole purpose of receiving and holding the legal title to the property, and devoting it to the purposes and and objects of the society, which is supposed to retain its distinctive characteristics as a mere voluntary association, in no degree merged in the corporation, even in respect to its temporal and secular concerns. The consequence of this view of the subject would be, that the trustees of a religious corporation are not to be regarded as the managing officers and agents of the society, clothed with the aggregate powers of the corporators, representing their interests and entrusted with a discretionary charge of their temporal affairs, as in other corporations, but their relations to the society are those simply of a trustee to his cestui que trust, as understood in equity. Were this view established, its effect would probably be, to devolve upon the courts of equity the administration of the entire property of religious corporations throughout the state, a jurisdiction bringing with it as its inevitable concomitant, enumerable judicial enquiries into modes of faith, shades of religious opinion, and all those subtleties which attend the diversities of religious belief.

The other view assumes that the society itself is incorporated; that the previous voluntary association is merged in the corporation, so far as its secular affairs merely are concerned; that the trustees are not the body corporate itself, but merely its officers, to whom is committed the custody of its property, and the management of its concerns; that the members of the association form the constituent body, the legal entity which is represented by the trustees, and that the latter are clothed with the customary discretionary powers which appertain to the managing officers of all civil corporations; modified it is true in some degree, by the mixed nature of the body which they represent, and the peculiar objects of the incorporation.

The argument by which the former of these views is sustained, rests mainly upon that clause in the third section of the act authorizing these incorporations, which, after providing for the election of these trustees, declares, not that the society, but that such trustees and their successors shall by virtue of the act, be a body corporate, by the name or title expressed in the certificate. But while I do not deny the force of this and the other arguments adduced in support of this construction of the act, I nevertheless insist that the arguments against it are too strong to be resisted. In the first place, such a construction is adverse to the universal popular sentiment in respect to the law in question. To prove this I need only refer to the names adopted by the various religious societies upon becoming incorporated. The following list was taken promiscuously from the records of religious corporations in Monroe county, viz: Churchville Presbyterian Society. First Congregational Society of Mumford. Associate Reformed Association of Beulah. Adams' Basin Free Church Society. Baptist Church and Society of Sweden. Society of Christian Brethren in Rochester. St. Peter's Presbyterian Congregation, Rochester. Fifth Presbyterian Society and Congregation of Rochester.

Of the great number of religious corporations in the county almost all bear names similar in character to these. The trustees are sometimes, though rarely named.

The founders of these corporations must have supposed, that it was the society or congregation that was incorporated. I hazard nothing in saying, that this has been the general under standing throughout the state, ever since the passage of the acts in question.

But this view of the nature of religious corporations is not only opposed to the general sentiment of the people, but is repugnant also to judicial construction so far as any has ever been given to the acts in question. In the case of The Baptist Church, c. v. Witherell, (3 Paige, 296,) Chancellor Walworth treats, throughout, the society or congregation as the corporate body, the members of the society as corporators, and the trustees as the mere officers of the corporation. He says: "At the time the deed of Norton and wife was executed conveying the property to this society by their associate name, the statute was in existence, by which the members of the society were authorized to incorporate themselves whenever they thought proper." Again he says: "My opinion therefore upon the facts now before me is, that the corporation organized on the 6th of September, succeeded to the temporal rights of this society; and that the trustees of that incorporation are legally entitled to the possession and control of the meeting house and other temporalities of the congregation." And again, "The fact that the corporators, whom the complainants [the trustees] represent, own two-thirds of the pews, cannot alter the rights of the parties." The same view is taken in the subsequent case of Lawyer v. Cipperly, (7 Paige, 281.) So in the case of Miller v. Gable, in the late court of errors, (2 Denio, 492,) Gardiner, president of the court, speaks of trustees as "the representatives" of the congregation, and of the members of the latter, as corporators. It is clear therefore that if the popular understanding of the act authorizing religious corporations be an error, it is one in which the most enlightened of our courts and judges have participated.

The view of the act we are combating is contrary to the general scope and language of the act itself. It stands opposed in the first place to its title, which is "An act to provide for the incorporation of religious societies." It is irreconcilable with section nine of the act, which provides "That whenever any religious corporation within this state, other than the chartered corporations, shall deem it necessary, and for the interest of such religious corporation to reduce their number of trustees, it shall and may be lawful for any such religious corporation, to reduce their number of trustees at any annual meeting." The trustees have no annual meeting; but this section authorizes the corporation to reduce the number of their trustees, at an annual meeting. This admits of but one construction. Again, this view is directly repugnant to the 14th section of the act which provides "that the corporation of the Methodist Episcopal Church in the city of New-York, shall be and hereby are authorized to continue to elect nine trustees of the said corporation." Here the congregation in whom the right of election rests is styled the corporation in the act itself.

It cannot, I think, be necessary to pursue this subject further, although there are other portions of the statute which equally conflict with the view, that the trustees and not the society constitute the body corporate. I think it clear, therefore, that the views which appear to have been generally entertained by both courts and people upon this subject are correct; that the societies are themselves incorporated; that their members are the corporators, and the trustees the managing officers or the corporation.

What then are the powers, rights and obligations of this class of corporate officers, and to what extent has this court jurisdiction over them? These questions are to be answered in view of the statute authorizing the incorporation of these societies, and the rules which regulate other corporations of the same legal character, and their officers; and not with reference to those peculiar principles which are applied to trusts by courts of equity. These officers are trustees in the same sense with the president and directors of a bank, or of a railroad company. They are the officers of the corporation to whom is delegated the power of managing its concerns for the common benefit of themselves and all other corporators; and over whom the body corporate retains control, through its power to supersede them at every recurring election.

This is the plain inference to be drawn from the statute itself. Section four provides, among other things, not only that the trustees may take into their possession and custody all the property real and personal of the corporation, and may purchase and hold additional property, and demise, lease and improve the same for the use of the society, and repair, alter and erect church edifices, school houses and other buildings; but also that they may "make rules and orders for managing the temporal affairs of such church, congregation or society, and dispose of all moneys belonging thereto, and regulate and order the renting the pews, in their churches and meeting houses, c., and all other matters relating to the temporal concerns and revenues of such church, congregation or society." These are broad and sweeping powers, and the reason for their amplitude is to be found in the policy of the legislature, which aimed to produce an entire separation between the spiritual and temporal concerns of these associations, and to prevent the latter from being in any manner brought under the control and management of the ecclesiastical judicatories. It was not designed to interfere in the slightest degree with the proper functions of these judicatories, but simply to limit them to their appropriate sphere. The provision giving to every member of the congregation the privilege of voting, and the entire omission of any requirement in respect to the religious views or opinions of the persons to be elected as trustees, afford unmistakeable evidence that no very rigid adherence to any particular creed or doctrine was contemplated, so far as concerned the management of the temporal affairs of the society; but that it was intended to leave all this to be regulated and controlled by the members of the corporation through the exercise of their legitimate corporate powers.

It follows from this view, that the supreme court were entirely right in holding, in this case, that these incorporated societies are not to be regarded as ecclesiastical corporations, in the sense of the English law, which were composed entirely of ecclesiastical persons, and subject to the ecclesiastical judicatories; but as belonging to the class of civil corporations to be controlled and managed according to the principles of the common law, as administered by the ordinary tribunals of justice.

The question then arises, to what extent had the late court of chancery jurisdiction and control over the officers of civil corporations, in respect to the performance of their official duties? This question was ably discussed by Chancellor Kent, in Attorney General v. Utica Insurance Company, (2 John. Ch. 371.) He there held, that the court of chancery did not possess any general supervisory control over corporations of this character, and inclined to the opinion that the court had no jurisdiction whatever, even in a case of abuse by a corporate trustee, or other officer of his trust, by a perversion or misapplication of the funds of the corporation.

But, if it be admitted that a court of equity has power, by virtue of its general jurisdiction, over every species of trust, to interfere at the instance of a corporator, in cases of gross violation of duty by the managing officers of a civil corporation, which is at least doubtful; the question still remains, how may this jurisdiction be exercised? Does it extend to the removal of the officers of the corporation? It is difficult to conceive from what source, the court, independent of legislative enactment, could derive such a power. This class of officers receive their authority directly from the sovereignty of the state. The statute prescribes their qualifications, the mode of their election, and the tenure of their offices. What power has the court of chancery, or any other court, to set aside the statute; to impose conditions to the holding of the office which the statute does not impose? There is a wide difference between this description of officers and mere private trustees, whose powers rest solely upon individual contract. There, if the conditions of the contract be violated, the office is rightfully forfeited; and the court may enforce this forfeiture at the instance of the party aggrieved. But the powers of corporate officers have a source above that of mere private contract, over which the court of chancery has no paramount authority. No such power was ever asserted or claimed by the English court of chancery. On the contrary, when the question arose in the case of the Att'y Gen. v. The Earl of Clarendon, (17 Vesey, 491,) the power was peremptorily denied. "This court," said the master of the rolls, "I apprehend, has no jurisdiction, with regard either to the election or amotion of corporators of any description." There is a class of English cases, of a different character, which have been sometimes referred to in discussions on this subject, but which afford no support to the doctrine contended for here. They are cases where a corporation is made a trustee, having no beneficial interest in the fund. There, if the corporation grossly abuses the trust, it will be removed by the court of chancery, in the same manner as an individual trustee. Such was the case of Ex parte Greenhouse, (1 Madd. 92.) This is merely the exercise of the ordinary jurisdiction of the court, and is widely different from the removal of corporate officers for a violation of their duty to the corporation.

The power here denied has been admitted by one or two of our judicial officers. ( See Lawyer v. Cipperly, 7 Paige, 281; Bowden v. McLeod, 1 Edw. Ch. R. 588;) and was exercised by the assistant vice chancellor of the city of New-York, in the case of Kinskern v. The Lutheran Churches, (1 Sandf. Ch. R. 439.) The vice chancellor went so far in his opinion in that case, as to authorize a decree, not only removing the trustees, but disfranchising a portion of the corporators, and prescribing who should be permitted to vote at the new election, to be held under the supervision of a master of the court; thus entirely superseding the statutory provisions prescribing the qualifications of electors. But the eminent counsel for the complainant, in preparing the decree, seems to have omitted entirely to avail himself of the privilege of disfranchisement thus conceded to him; an omission which is somewhat significant of his own opinion upon the point. This case is, in my judgment, in conflict with principle, and wholly unsustained by authority, in so far, at least, as it asserts the original power of the court of chancery to remove the trustees of a corporation regularly elected, in pursuance of the provisions of the statute, and to substitute upon a new election qualifications for electors defined by itself, instead of those prescribed by the statute.

But in addition to the absence of all authority in favor of such a power at common law, the express provision of our statute, conferring the power upon the court of chancery in regard to corporations in general, and excepting religious, and one or two other classes of corporations, affords affirmative evidence, that independent of the statute, the power did not exist. (2 R.S. 462, § 33, and 466, § 57.) The supreme court, therefore, were clearly right in denying the existence of this power.

This brings us to the consideration of the alleged trust in the present case. In the view I take of the case, it is unnecessary to inquire as to the effect of the deed of July, 1786, or whether a court of equity would sustain the right of the congregation to an equitable fee under that deed, agreeably to the obvious intent of the parties, or compel a further assurance to effectuate that intent; but I shall consider the case as though all the rights, either legal or equitable, of the congregation or its trustees, derived under the first deed, were fully merged in the second. Under this deed the persons named became seised of an estate in fee, which they held subject to the trust expressed in the deed, until the congregation became incorporated in 1826. What then was the effect of that incorporation upon the title to this property, and upon the trusts under which it was held? We are saved the necessity of inquiring whether the title actually passed to the corporation; because, the counsel on both sides concede that such was the effect of incorporating the congregation.

A question arises as to the construction of the clause in the deed limiting the trust. If by members "in full communion," c., is intended members of the church, or the body of covenanted professors of a certain faith, as distinct from other members of the association, which I suppose to be its true interpretation, then prior to the incorporation the title to the property was held not for the benefit of the congregation at large, but for the exclusive use and benefit of the members of the church of a particular connection.

What effect then had the transfer of the title to the corporation upon this trust? This involves the inquiry, whether trustees of a religious corporation can take a trust for the exclusive benefit of a portion of the body, whose interests they represent, and whose officers they are. In the case of Williams v. Williams, decided by this court in January last, it was held that the trustees of such a corporation might take a bequest in trust for the support of a minister, that being one of the general objects for which the corporation existed. Denio, J., in that case says: "The object of this bequest is, the support of a minister, which is one of the most prominent of the objects for which these corporations are created. It is not essential to the validity of a bequest to a religious corporation, that it should be given generally, for all the purposes for which it may be legally used, or for any to which the trustees may see fit to devote it. This is apparent from the language of the provision as well as from the reason of the case. These corporations are authorized to take property, for the use of the society, 'or other pious uses,' which plainly shows that a benefactor may apply his bounty to the whole, or any one or more of the various purposes for which the corporation are authorized to hold property." ( MS. Opinion.) The learned judge in this passage nowhere intimates, that the trustees of an entire corporation can take and hold property for the sole benefit of a portion of the members of that corporation, and exclude the other members from all participation in its use. His language, in my view, tends strongly to repel any such conclusion. He says they are authorized to take property for the use of the society: and that they may take it for any of the objects for which the corporation, that is, of course, the corporation as an entirety, was created. It would be difficult, I think, to maintain, that it would be compatible with the office and duties of trustees of a religious corporation, that they should take and hold and administer the revenues of property, from the benefits of which a portion of the corporators must be excluded. It would prove an entering wedge of division, the force of which even Christian charity and forbearance would scarcely be able to resist. But the unanswerable objection to such a trust is, that it is not authorized by the statute, and is inconsistent with its general scope and object, as well as with its terms.

It follows from this, that when the title to the property in question passed, as it is conceded it did, to the trustees of the corporation, by the voluntary act of all the parties interested either as trustees or beneficiaries, the trust, if its character was such as we have supposed, was merged; or was at least transmuted into a trust, for the benefit of the entire corporation. No question arises here in regard to the effect of this change, as between the trustees and the original grantor or his heirs. The exclusive trust in favor of members of the church of a particular faith, if such a trust existed, being thus at an end, the title stands as though it had been conveyed to the trustees for the use and benefit of the corporation generally.

But it is said that the nature of the trust may be ascertained, not only from the language of the deeds by which the property is conveyed, but may be inferred from the tenets, faith and practice of the creators of the fund; and hence that it is those inferred in this case, that a trust was intended in favor of those only who adhered to the principles and practices of the Associate Synod of North America. This doctrine, if it means any thing more than, that where the language of the deed is ambiguous it may be explained by proof of the surrounding circumstances, I deny. It is at variance with well established principles, and rests, as I conceive, upon no sound and reliable common law authority. In the first place, conditions and limitations are not to be raised by inference or argument. ( See 4 Kent's Com . 132.) The law favors the free and untrammeled alienation of property, simplicity in its title, and freedom in its use; especially in this country: and every presumption is against the existence of limitations, restrictions or qualifications.

But the English cases upon which this doctrine of implied restriction is supposed to rest, do not support it. The leading cases, and those usually relied upon to sustain it are, Attorney General v. Pearson, (3 Meriv. 353,) and those relating to the Lady Hewley charities, viz. Attorney General v. Shaw, (7 Sim. 309;) and same case in the house of lords, (9 Clark Fin. 355.) The doctrine of these cases has been so perverted and misapplied that I find it necessary to give to them a somewhat extended examination. They seem to me not to have been fully analyzed when referred to in the cases which have been made to rest upon their authority.

In Attorney General v. Pearson, a meeting house and lot, belonging to a congregation of Protestant dissenters in Wolverhampton, was held by trustees; the trust being expressed in the deed to be "for the worship and service of God." The deed also contained this clause, viz: "That if at any time thereafter meetings for the worship and service of God, should be prohibited by law, and thereby the meeting house should become useless, it should be lawful for the trustees for the time being to sell and dispose of the same," c. The deed bore date in 1701. The contest was between a majority of the trustees who were Unitarians, and a minority of one who was a Trinitarian, for the possession of the trust property and the administration of the trust. The main question involved in the case was, whether the property thus held could be devoted, consistently with the trust, to the support of a Unitarian minister and the worship of a Unitarian congregation. It was alleged in both bill and answer, that the trust was created for the benefit of a congregation of dissenters; so that no question arose on that subject. The chancellor held, that the trust could only be administered for the benefit of a congregation, and the support of a minister professing Trinitarian doctrines. The reason is important, and the key to the whole case. It was, that worship by Unitarians and the preaching of Unitarian doctrines at the time the trust was created were prohibited by law; were indeed a crime, both by the common law and under the statute of 9 and 10 Will. 3, ch. 32; and it was not to be presumed that any person intended to establish a trust and a worship which was illegal and criminal. That this was the true reason upon which the decision was based, may be proved beyond doubt or cavil from the case itself. First, from the arguments of counsel, who rested the case almost entirely upon this ground. Sir Samuel Romilly, in arguing for the complainants, said, "In 1701 land was settled and a meeting house built for the service and worship of God, and there can be no question in a court of justice that by that expression is meant the worship and service of God according to the Trinitarian doctrine, because the opposite doctrine with respect to the nature and character of the Supreme Being had at that time no legal existence, being expressly excepted out of the toleration act." The whole argument upon that side was of the same tenor.

Again, this ground for the decision is plainly to be collected from the language of the chancellor himself; especially from that part of his opinion in which he asserts, that if the nature of the trust were to be determined upon the language of the deed alone, independent of the averments and admissions in the bill and answer, it would be the duty of the court to execute it in favor of the established church. After adverting to the allegations in the pleadings as sufficient to show that the trust was created for the benefit of a congregation of dissenters, he proceeds as follows: "I observe upon this, particularly, because I take it that if land or money were given for the purpose of building a church or a house, or otherwise for the maintaining and propagating the worship of God, and if there was nothing more precise in the case, this court would execute such a trust by making it a provision for maintaining and propagating the established religion of the country." No doubt the court would do this; and why? Simply because the legal presumption would be that the donor intended a trust and a worship which would be consonant to law. By parity of reasoning, when the trust was admitted to be for the benefit of dissenters, but was otherwise general, the court would limit it to dissenters who were within, in preference to those who were excepted from the toleration act.

Now this is all that is really decided in this noted case. It is true there is a great deal more said about religious and charitable trusts in general; but much of what is so said, and especially that part in relation to determining the nature of the trust, from the tenets and practices of its founders, is obiter; and is not law at this day, even in England, as I shall presently show. Why then should this case be so frequently cited and so much relied upon in this country? That it is so proves, that our courts have not always reflected upon the difference in this respect, between a country where all religions, at least all forms of the Christian religion, are tolerated and placed upon an equal footing, and one where a particular form of worship is established by law. The case under review, considering the nature of the point decided in it, is wholly without weight in this country; because we have no religious system to which it can apply.

We come now to the still more celebrated case of Attorney General v. Shaw, involving the construction of the Lady Hewley charities. (7 Simons, 290, in note.) Lady Hewley, by deed executed in 1704, had conveyed various estates in Yorkshire to trustees upon certain trusts, which so far as they are required to be noticed here, were as follows, viz: Out of the rents, issues and profits "to pay and dispose of such sums of money, yearly or otherwise, to such and so many poor and godly preachers for the time being of Christ's holy gospel, and to such poor and godly widows for the time being of poor and godly preachers of Christ's holy gospel, at such time and times and for so long time and times, and according to such distributions as the said trustees and managers for the time being or any four or more of them shall think fit." In this case as well as in that of Attorney General v. Pearson, a majority of the trustees had become Unitarians, and the bill was filed in behalf of the minority, to have the trusts declared in their favor, and to obtain a removal of the trustees who were Unitarians, and an injunction to restrain them from proceeding to the election of new trustees. It was admitted on both sides in this case, as it was in that of Attorney General v. Pearson, that the trust was not intended for the benefit of ministers of the established church. The questions therefore, were nearly indentical with those which arose in that case.

The case of Attorney General v. Pearson, however, arose upon a motion for an injunction, founded upon the pleadings alone. All that was there said therefore about a resort to extrinsic parol proof to ascertain the nature of a trust created by deed for religious purposes, was foreign to the case. But the case of Attorney General v. Shaw was heard upon pleadings and proofs. The complainants, adopting the dictum of the chancellor in Attorney General v. Pearson, had introduced a mass of evidence to show the particular religious tenets, faith and belief of Lady Hewley, consisting among other things, of extracts from her will; also from the will of Sir John Hewley, her husband, and from that of Dr. Colton, one of the trustees appointed by her. They also examined witnesses as to the meaning of the terms "godly preachers," "godly persons," "Presbyterians,"c., at the time of the foundation of the charities. All this testimony was read upon the hearing before both the vice chancellor and the chancellor, and as appears from their opinions, was taken into consideration. The vice chancellor put his decree exclusively upon the ground that it was shown that Lady Hewley was a Presbyterian, and that the Presbyterians of her day believed in the divinity of Christ, and in the doctrine of original sin; and hence he held that persons who denied those doctrines could not be entitled to the benefits of the trust. The chancellor, Lord Lyndhurst, however, although he adopted the views of the vice chancellor in this respect, also placed his decision upon the ground that Unitarian doctrines being prohibited by law, it was not to be presumed that Lady Hewley intended to create a trust in violation of law. After stating the statute, the effect of which was to prohibit the preaching of Unitarian doctrines, he says: "I cannot therefore, bring myself to the conclusion that Lady Hewley intended to promote and encourage the preaching of doctrines contrary to law; that she intended purely to violate the law, it would be contrary to every rule of fair construction and legal presumption to decide." Again he says: "On these two grounds then, each of which appears to me to be conclusive; first of all, that I cannot presume that this pious lady intended that her estates should be employed to encourage and promote the preaching of doctrines directly at variance with what she must have considered as essential to Christianity; and that she could not intend to violate the law: on those two grounds I feel myself, as a conclusion of fact, compelled to come to this determination; that she did not intend, under the description of godly preachers, to include those persons who impugned the doctrine of the trinity."

There was an appeal from the chancellor's decree to the house of lords, and my object is to show that in this court, where the whole judicial force of England was assembled, the doctrine of the vice chancellor and the chancellor, that the objects of the trust might be inferred from the tenets, faith and belief of Lady Hewley, was entirely discarded, and that the decree was affirmed solely upon the second ground assumed by the chancellor, viz: That a trust for the benefit of Unitarians would be contrary to law, and therefore, was not to be presumed. This may be conclusively shown from the report of the case in 9 Clark and Finnelly, 355. Upon the conclusion of the very elaborate and able argument of the cause in the house of lords, that body submitted to the judges a series of questions, upon which their opinions were required; only two of which it is necessary to notice. The first was as follows: "Whether the extrinsic evidence adduced in this cause, or what part of it is admissible for the purpose of determining who are entitled, under the terms "godly preachers of Christ's holy gospel," "godly persons," and the other descriptions contained in the deeds of 1706 and 1707, to the benefit of Lady Hewley's bounty." The fourth was this: "Whether, upon the true construction of the deed of 1704, ministers or preachers of what is commonly called Unitarian belief and doctrine, and their widows and members of their congregations, and persons of what are commonly called Unitarian belief and doctrine, are excluded from being objects of the charities of that deed."

Seven of the twelve judges, together with the Chancellor, Lord Cottenham, delivered opinions upon these questions. Of these seven, only two, viz. Justices Coleridge and Williams, were of opinion that the extrinsic evidence was properly admitted. Justices Maule and Erskine were clearly of opinion that no portion of it was admissible. Baron Parke doubted whether any of it was admissible; and Baron Gurney and Chief Justice Tindal, together with Lord Chancellor Cottenham, were of opin ion that none of it was admissible, except such as came within the ordinary rule, that parol evidence may be given of the "surrounding circumstances" under which a deed is executed, when its language is not explicit. The chancellor, after adverting to this as the true rule, says: I have thought it right to make these observations upon this matter of evidence; as otherwise, the affirmance of the decree might seem to sanction the receiving all the evidence received below, which might tend to introduce much doubt and confusion in other cases. The second of the above questions, being the fourth put to the judges, was answered by the judges in the affirmative; all, except two or three, putting their opinions distinctly upon the ground, that a trust for the benefit of Unitarians being contrary to law, the presumption was against an intention to create such a trust.

So far, therefore, as the house of lords in England, with the aid of all the judges of the highest courts, can do it, the doctrine, that the nature of a trust for religious purposes, created by deed, may be inferred from parol evidence as to the religious faith and tenets of the founder, in the broad sense in which it seems to have been generally understood, is overthrown; or, at least, the doctrine finds no support in this case concerning the charities of Lady Hewley.

But, were it otherwise, and were we to infer in this case, either from the evidence on this subject, or from what appears upon the face of the deed, or any other source, that a trust was intended in favor of persons of a particular religious faith; then I hold it to be clear, that a religious corporation in this state can be the recipient of no such trust, for the reason, that its execution would be entirely inconsistent with the provisions of the act authorizing such incorporations. This can be readily shown. The trustees are authorized by section 4, to purchase and hold real and personal estate, for the use of the church, congregation or society. If they may take a trust limited, as supposed, it may become their duty to administer the trust for the exclusive benefit of a portion only of the congregation or society. This is not authorized by the act. It is repugnant, not to the section to which I have referred alone, but to various other provisions. Section 7 prescribes the qualifications of electors, and it is not in the power of the congregation, nor of any portion of the society, or even of the courts, to change these qualifications, or prescribe any other. The majority of the congregation may be composed of persons of any religious faith, or of no particular faith, and still, their right to vote, and to control the election, is not affected. This is inconsistent with the idea, that the trustees can be expected to execute any trust, except such as is acceptable to the majority of the congregation.

But such a trust would be still more repugnant to the provisions of section 8. By that section the salary of the minister is put absolutely, and at all times, under the control of a majority of the congregation. The trustees have no control over the subject, but are imperatively required to ratify and pay the salary fixed by the majority. Whatever may be thought of the other provisions of the act, this section must forever give to the majority of the congregation the control over the employment of the minister. It would be in vain for any donor of property or funds to the congregation, to prescribe the religious faith of the minister to whose support the avails should be devoted; for, until the salary should be fixed by a majority of the congregation, not one dollar of the revenues of the society could be appropriated by the trustees to its payment.

The whole act shows, that it was the intention of the legislature to place the control of the temporal affairs of these societies in the hands of the majority of the corporators, independent of priest or bishop, presbytery, synod, or other ecclesiastical judicatory. This is the inevitable effect of the provision giving to the majority, without regard to their religious sentiments, the right to elect trustees, and to fix the salary of the minister. The courts clearly cannot disfranchise any corporator who possesses the qualifications prescribed by the statute.

Suppose then, the majority in a particular congregation choose to change entirely their form of worship; how are they to be controlled? Should the court assume in the exercise of its jurisdiction over trusts to direct the trustees to employ a minister of a particular faith, the whole object of the direction might be defeated, by the employment of a minister wholly unacceptable to those who procured the interference of the court; and even if the court went so far as to direct whom they should employ, still the majority would have the right to fix the salary, and the court would clearly have no power to control such majority in the exercise of this discretion, which the statute confides wholly to them. The act has in truth accomplished what the public sentiment in this country would seem to demand, that is, the entire separation of the functions of the ecclesiastical and temporal judicatories, and has limited the former to their proper sphere of control over the spiritual concerns of the people. If this statute is properly construed, we shall have fewer examples of temporal courts engaged in the inappropriate duty of deciding upon confessions of faith, and shades of religious belief and points of doctrine too subtle for any but ecclesiastical comprehension.

The courts have not hitherto fully considered the broad distinction that exists between a voluntary association which may adopt such rules and regulations and such mutual obligations not inconsistent with law, as it may see fit, and a corporation whose powers and functions are prescribed by statute. If a society wishes to devote its property to an unchangeable form of worship and to tie down its members to a Procrustean bed of creeds and confessions of faith, it must remain a voluntary association, and not commit the management of its affairs to a corporation.

I by no means deny that a grantor of property to the trustees of a religious corporation may annex such conditions to the grant as he may choose, not inconsistent with law; and that the trustees may take the property subject to the conditions. For instance, property may be conveyed to them to be held so long as the society continues in a certain ecclesiastical connection; or so long as it supports a minister of a certain faith: and this condition if explicit and clear and free from all doubt or obscurity would be good. An uncertain condition would be void.

The title of the trustees under such a deed would be good so long as a majority of the corporators chose to abide by the condition; and when that was departed from, their title would be forfeited. This is widely different from a trust, which is to be enforced in opposition to the will of the majority.

It follows from these principles, that neither presbytery or synod had any control over the Associate Congregation of Cambridge in respect to the minister whom they should employ. That depended upon the trustees and a majority of the congregation. His deposition or excommunication had nothing whatever to do with the right of the congregation to employ him, so far as the administration of its temporalities was concerned; although it might subject them or some portion of them to spiritual censure or ecclesiastical penalties.

While, therefore, it is settled so far as these parties are concerned, by the acquiescence of the defendants in the decree of the supreme court, that the trustees had and still have no right to employ Dr. Bullions, there is no reason for following up that error by requiring them to account.

It may be well briefly to recapitulate here the principal points which I have attempted to maintain. They are —

1. That this court cannot review those portions of the decree of the supreme court not appealed from. 2. That a religious corporation under our statute, consists not of the trustees alone, but of the members of the society. That the society itself is incorporated, and not merely the trustees, and its members are the corporators. 3. That the relation of the trustees to the society is not that of a private trustee to the cestui que trust; but they are the managing officers of the corporation, and trustees in the same sense in which the president and directors of a bank or of a railroad company are trustees, and are invested in regard to the temporal affairs of the society, with the powers specifically conferred by the statute, and with the ordinary discretionary powers of similar corporate officers. 4. That an incorporated religious society, under our law, does not belong to the class of ecclesiastical corporations in the sense of the English law; which were composed entirely of ecclesiastical persons, and subject to the ecclesiastical judicatories; but are to be regarded as civil corporations, governed by the ordinary rules of the common law. 5. That if it be granted that courts of equity, by virtue of their general jurisdiction over trusts, may exercise some degree of control over the trustees of a religious corporation in cases of gross abuse of their trust; yet, they have no power to remove those officers, who derive their offices directly from the enactments of the legislature; nor have they power to prescribe qualifications for electors of such trustees, other than those prescribed by the statute. 6. That the trustees of a religious corporation under our statute, cannot take a trust for the sole benefit of members of the church as distinguished from other members of the congregation, nor for the benefit of any portion of the corporators to the exclusion of others, no trust being authorized by the statute except for the use and benefit of the whole society. 7. That where in a deed executed to trustees for religious purposes, the use is expressed in general and not in specific terms, it cannot be inferred from the religious tenets and faith of the grantor, that it was intended to limit the use to the support of the particular doctrines which he professed or the religious class to which he belonged: although if the language creating the trust be ambiguous, evidence of the surrounding circumstances, and among them perhaps of the faith of the donor, may be received, as in other cases, to aid in its construction. 8. That the trustees of a religious corporation in this state cannot receive a trust limited to the support of a particular faith, or a particular class of doctrines, for the reason that it is inconsistent with those provisions of the statute which give to the majority of the corporators, without regard to their religious tenets, the entire control over the revenues of the corporation.

The decree of the supreme court should be affirmed.

W.F. ALLEN, J.

Upon the incorporation of the religious society in 1826, under the name of the "Associate Congregation of Cambridge, of the county of Washington and state of New-York, adhering to the principles of the Associate Presbytery of Pennsylvania formerly, now the Associate Synod of North America," the title to the property real and personal which had been theretofore acquired by the society by gift, grant, conveyance to trustees for the use of the members, or otherwise, vested in the corporation, and the trustees of the society thereupon and thereafter duly elected succeeded to the possession and custody of all the temporalities of the congregation, and were invested with all the powers and subjected to all the duties devolved upon trustees by the act for the incorporation of religious societies, passed April 5, 1813. (1 R.S. 4 th ed. 1179.) It is not claimed that any part of the property which is the subject of this controversy was for any reason exempted from this consequence of the act of incorporation. The members of the congregation, having availed themselves of the benefits of the general law for the voluntary incorporation of religious societies, necessarily subjected themselves to all its provisions; and the rights and privileges of individual members, the qualifications of electors, the powers and duties of the trustees, and the rules for the enjoyment, employment and disposal of the temporalities of the body corporate must be sought for in the act under which the corporation was created. The church proper, as a collective body of Christians who have made a public profession of the Christian religion and are united in fellowship and communion under the same pastor and form of church government, is entirely distinct from the ecclesiastical society formed under the act; and while the professing members of the church have, as such, rights and privileges accorded to them, and duties imposed upon them which are not common to the non-professing members of the congregation, as corporators the rights and privileges of all are equal.

It follows, that while for all the purposes of this case it may be assumed that so long as the members of the Associate Congregation of Cambridge remained unincorporated they could provide for an administration of their funds in such manner, and an appropriation of their property to such purposes not inconsistent with the laws of the land as they pleased, and might restrict the use of their property to those who professed a common faith with them and submitted to the same church discipline, and might lawfully exclude all others from a voice in the affairs of the body, upon becoming incorporated under the general provisions of law these peculiar and exclusive rights and privileges were surrendered, and thereafter the property of the society became the property of the corporation, to be managed and controlled for the benefit of all who by the act are recognized as members and entitled to the rights of membership. It is not material, therefore, to inquire into the effect of the clause in the deed from Jonathan French, which it is claimed created a trust in the property conveyed for the exclusive benefit of the members of the church in full communion. (1) The benefit of that trust, if any such at any time existed, was voluntarily relinquished by the beneficiaries at the time of the incorporation, and in that relinquishment the complainants and all others, so far as appears, acquiesce. (2) It is not claimed that the property is held for any "pious use" other than for the benefit of the society, and there is no way in which it can be administered under the act for the benefit of any one class, to the exclusion of other members of the congregation entitled to vote for trustees and eligible to that office.

The bill charges that the property of the congregation was and still is held by the trustees "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 and practice, discipline and government of 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." The defendants, by their answer, admit this to be true, and the final decree of the supreme court is based upon the truth of this allegation, and proceeds upon the assumption that the property was and is held upon the trusts, and for the purposes named. The defendants have not appealed from any part of the decree, and so far as it adjudicates upon questions involved in this litigation adversely to them, it is conclusive upon them. They have acquiesced in the decree, and it is not open for review upon this appeal at their instance.

But for the admission in the answer, and the implied adjudication of the supreme court, I should deem it very questionable whether a trust for the particular and limited purpose claimed, could be predicated upon the description of the beneficiaries or the particular name by which they were mentioned in the grant of the property. There is nothing in the grants requiring the property to be devoted to the preaching or teaching of the gospel in conformity with the tenets and doctrines of any particular denomination, or for the benefit of a church holding a particular ecclesiastical connection with any other body, unless it can be implied from the name which the association assumed, and by which they were at that time known. But for the purposes of this appeal, this is not an open question. One other important question is definitively settled by the judgment of the supreme court, from which no appeal has been taken, to wit, that the defendant Bullions had been, and at the time of filing the bill of complaint, was deposed from the ministry, and that the trustees of the corporation could not rightfully or lawfully appropriate or apply the property without the consent of all the members of the corporation to his support, nor allow him to preach in the church edifice belonging to the corporation; and that the trustees should be enjoined from the application of said property to the support of Dr. Bullions, and from permitting him to preach in the church edifice until he should be restored to the office of the ministry. Although we might be of the opinion that the proceedings against Dr. Bullions, and those of his church who adhered to him, were not conducted with all that charity, brotherly love and forbearance, which should have been expected, the action of the church judicatories, or the effect of such action upon the rights of the parties, are not before us upon this appeal.

The appellants insist that the supreme court erred in the reversal of that part of the decree of the vice chancellor removing the trustees from office, and providing for the election of others in their stead. The power of a court of equity in this state to prevent a diversion of the temporalities of a church from the purposes to which they were devoted, and compel the due execution of a trust by the officers of a religious corporation, is one thing, while the power to remove the officers for an alleged diversion of the trust property, and consequent abuse of the trust, is quite a different thing. The former power may be conceded upon principle and authority to be inherent in every court having, in virtue of equity powers, jurisdiction over trusts, without advancing at all in the argument to establish the latter power. A court of chancery in the exercise of its jurisdiction over trusts, proceeds in a limited sense in rem, and by its decree acts upon the trust fund or property, taking action as to persons only so far as may be necessary to accomplish the end; and when the person proceeded against is a mere trustee, having no relation, official or otherwise, to the property, the cestuis que trust or third persons, other than as the depositary of the legal title for the purposes of the trust, it is very proper in cases of a gross abuse of the trust, endangering the safety of the fund and the interest of the beneficiaries, to transfer the title from the faithless trustee, and vest it in one more worthy. But when the trust is incident to an office, or grows out of the relation of the parties, it is more than questionable whether the powers of the court extend to the removal from office, or the destruction of that relation to which the trust is an incident. The power is not necessary to the performance of the proper functions of the court in compelling the execution of the trust. Municipal officers may be ex officio trustees for the administration of funds for the benefit of portions or of the entire community; and yet it would hardly be claimed that for an abuse of such trust they could be removed from office by the decree of a court of equity; and whether the trust duties constitute the principal, or but a small part of the duties of the office, is not material. The office and officer are distinct from the trust and trustee; the latter are subject to the direction of the court of chancery; the former not.

The cases in the English courts cannot be relied upon as authorities for the jurisdiction in this state, or safely followed as precedents, for the reason that there is no analogy between our system and the laws under which religious societies are incorporated and their temporal affairs managed, and the charities and trusts for religious purposes in England, in respect to which the decisions have been pronounced. Knickern v. The Lutheran Churches of St. John's and St. Peter's, and others, (1 Sandf. Ch. R. 439,) is the only direct authority in support of the position, that trustees of a religious corporation may be removed from office for acts done in respect to the property of the corporation; and this, I think, unsupported either by principle or authority. The learned assistant vice chancellor relies upon the jurisdiction of the court of chancery over charities, independent of any statute, and the decisions of the English chancery in respect to private charities. He also cites Lawyer v. Cipperly, (7 Paige, 281,) in respect to which it is sufficient to say, that the chancellor did not decide that the court had authority to arrest a breach of trust like the one in question, by removing the trustees from office.

The statute has prescribed the mode and manner of electing officers of religious corporations, and the qualifications of electors; and officers duly elected, by properly qualified electors, cannot be removed from office, without, to some extent, disfranchising both the electors and the person chosen to office, and depriving them of the rights secured to them by law.

Provision has been made by statute for the suspension or removal of trustees and officers of corporations other than incorporated library societies, religious corporations and Lancasterian and select schools, from office, for abuse of trust, or grass misconduct. (2 R.S. 462 § 33, § 57.) This legislation on the subject shows, 1. That the legislature did not suppose that, independently of the statute, the court of chancery had power to remove a director or trustee of any corporation for any cause; and 2. That they did not deem it expedient to vest such power in the court, in respect to the corporations excepted from the operations of the act, religious corporations being within the exception. The provision was new, and introduced to remedy evils then existing. The vice chancellor exceeded his power in the removal of the trustees from office, and the reversal of that portion of the decree by the supreme court was right.

The claim of the complainants for an account of the rents and profits of the property from the time of the deposition of Dr. Bullions from the ministry, was properly disposed of by the supreme court. 1. The right of the defendants, who are trustees, to the custody of the property being established, it is not seen upon what principle the complainants, a small minority of the members of the association, can compel an accounting to them for the income. To whom should the amount which upon an accounting might be found due be paid? Not certainly to the minority of the congregation, to reimburse them for expenses incurred in procuring the gospel to be preached by a minister of their own selection, and at a place other than the church edifice owned by the corporation. The calling of a minister is doubtless, by the church as a body, distinct from the incorporated society, but the regulation of the amount and the payment of the salary is within the control of the society, and the amount is to be ascertained by a majority of those entitled to elect trustees. I do not understand that it is claimed that the trustees have refused to appropriate the income of the property to the payment of a pastor thus called, and whose salary has been ascertained and fixed according to law. 2. The trustees have acted in good faith, and as they supposed and as is tolerably apparent from the proof, in accordance with the wishes of a large majority of those entitled to a voice in the premises. The defendants have derived no personal pecuniary benefit from the use of the property, and the complainants have not been deprived of profits or possession to which they had any legal right, to the exclusion of the defendants and a majority of the members of the congregation.

There is no reason to suppose that the trustees will refuse properly to apply the property of the society to the support of gospel preaching in the church edifice, whenever a minister shall be called and settled, and the decree pronounced by the supreme court will prevent a diversion to any unauthorized purpose. It was not necessary or proper, therefore, to go farther than to restrain the defendants from the application of the fund to the support of Dr. Bullions and his ministry. The discretion of the supreme court in respect to costs, was properly exercised.

The decree of the supreme court should be affirmed, with costs of this court.

DENIO, J., concurred in the opinion of ALLEN, J., and dissented from the 8th proposition stated by Selden, J. GARDINER, Ch. J., PARKER and EDWARDS, Js., concurred in the conclusions of Selden, J. RUGGLES, J., was absent.

Decree affirmed.