Easterbrooks v. Tillinghast , 71 Mass. 17 ( 1855 )

Metcalf, J.

The devise of Elery Wood to the defendant was in special trust that he and his successors in the trust should appropriate and apply the income and profits of the devised property to the support of the gospel, and the maintenance of a pastor or elder in a church in Swanzey, of a certain, faith and practice, as long as they (the members of said church) or their successors should maintain the visibility of a church in such faith and order. And the plaintiffs have alleged in their bill that the visibility of said church has not been maintained; that therefore the devised property cannot be rightfully held any longer by the defendant, but that it has, by the statutes of the Commonwealth, descended to them as the heirs at law of the devisor; and they pray, among other things, that the defendant may be decreed to release the property to them. The facts, on which the plaintiffs rely in support of their allegation that the visibility of said church has not been maintained, are set forth in the bill, and they are admitted by the defendant, for present purposes and effects, by his demurrer to the bill.

The first question in the case is, whether the six-principle Baptist Church in Swanzey, for whose benefit Wood’s devise was made, has ceased to maintain its visibility, or, in language more commonly used, ceased to be a visible church. If it has, then the second question is, whether the plaintiffs, as Wood’s heirs at law, are now entitled to the devised property, which is still in the defendant’s possession.

1. The bill avers that on the 31st day of March 1853 there were only two members of said church ; that they, on that day, at a meeting called by public notice, voted and resolved that they would not any longer endeavor to maintain the appearance of a visible church ; that they declared the same dissolved and extinct; and that the said vote and resolve were entered on the records of said church. This seems to the court to have been a dissolution of the church, so that it thenceforth ceased to be a visible church in any sense, legal or ecclesiastical. Of course, the attempt afterwards made to admit members was futile.

If any of these alleged facts could have been safely denied or successfully admitted and avoided, the defendant should have filed an answer to the bill, and not have demurred to it.

2. The devise to the defendant of the property in question was doubtless a devise in fee, Cleveland v. Hallett, 6 Cush. 407; and having been made to him as trustee, and for a specific purpose only, he holds the property, since the failure of the trust by the extinction of the cestui que trust, not for his own benefit, but fox the devisor’s heirs at law, as a resulting trust, and is answerable to them for it. Hill on Trustees, (2d Amer. ed.) 157, 184, 185 The precise mode of relief to which the law entitles the heirs may Be a subject for consideration hereafter.

Demurrer overruled.