Orford Union Congregational Society v. West Congregational Society of Orford , 1875 N.H. LEXIS 111 ( 1875 )

Public charity — Construction of deed — Pleading. The case of the Attorney-General v. Dublin, 38 N.H. 459, was originally commenced in the name of Abbot et al. as plaintiffs. A demurrer having been filed on the ground that the attorney-general should have been made a party, the bill was amended. The same objection, if taken here, would probably have been sustained, and the attorney-general must have been made a party, either plaintiff or defendant. It is obvious that the subject-matter of this suit being a public charity, no final and conclusive settlement can be made unless the state should be represented. Story's Eq. Pl., secs. 8, 49, 69, 222.

It is clear that neither the town of Orford nor the societies have such an interest in the fund as gives them the power to settle anything conclusively in regard to it. The above-mentioned suit, which is reported as "The Attorney-General, at the relation of Abbot et al., v. The Town of Dublin et al.," is a conclusive authority on this point, the object of that suit being to settle the conflicting claims of different religious societies to a charitable fund given for religious purposes.

Assuming that the amendment has been made, and that the attorney-general has become a party defendant, I shall proceed to examine the questions that arise in the case.

The first question is in regard to the grantees in the deed of Mrs. Spooner, and the kind of estate taken by them. The gift is to three individuals, by name, described as selectmen of Orford, and to their successors in said trust, which I suppose means their successors in said office, the word "office" being substituted for the word "trust" in the habendum of the deed. It is evident that the intention of the donor was to convey a fee, and the declaration of the uses is to the inhabitants of said town, ever to remain to the said inhabitants for the sole use and purpose,c.

There is nothing for the original grantees to do — no reason why the estate should remain in them; and it appears to me that the use is executed in the town, so that the fee of the land is vested in the town as trustee. The trust declared is, that the rents shall annually be expended by the said inhabitants for the support of the gospel, c., and with a further provision, "that if the inhabitants of the town shall hereafter separate or divide into two separate parishes or societies, in that case the rents and profits arising therefrom shall ever thereafter be appropriated to and for the use and support of the gospel at the meeting-house on the river road in said Orford for the sole use and benefit of the inhabitants of the said river parish or society, under the direction of wardens or other officers that may be appointed from time to time by the inhabitants of the said parish or society."

It appears from the case that there now exist in Orford two Congregational societies, who are supporting substantially the same form of Congregationalism as appears to have been contemplated by the founder of the trust. These societies appear to be regular organizations under the statutes of New Hampshire. It is not expressly averred, but I think it may be presumed, that these societies are voluntary so far that they are open to all persons desiring to associate with them, and I think there can be no reasonable doubt but that they embrace as members all the inhabitants of Orford who desire to worship according to that form of Congregationalism. The Dublin case, 38 N.H. 574.

If the inhabitants of Orford are not now divided into two separate parishes or societies, it is difficult to conceive of any way in which it can be done. This being so, it would seem to follow that the town of Orford, as the trustee, is bound to permit the rents and profits of this land to be applied by the wardens of the defendant society to the support of religious worship according to the terms of the deed, unless, by reason of something suggested in the bill, that consequence is prevented.

Now, it is said that a suit has been commenced in favor of that society against the town of Orford, which has been dismissed on demurrer. It is not directly claimed in the bill that the rights of these defendants, have been concluded by that proceeding. There is no such precise statement of the allegations in that bill as would enable the court to find that the parties were estopped by the judgment.

If, however, there were such allegations, their effect would be entirely obviated by the fact that the attorney-general was not made a party to that bill, and therefore cannot be bound by its result. It seems equally certain that nothing could be done by these societies, by way of compromise or agreement, which could be conclusive. We are not now concerned with the past administration of the fund. The question we have to determine is, What shall now be done with it?

Under the law of 1791, and as it remained until 1819, when Dr. Whipple's toleration act,^* as it was called, was passed, towns had the power to raise money for the support of the ministry, and in so doing they would naturally have the regulation of the support of public worship in their power. It may be that during that time the town could by its vote have divided itself into two societies, and might have provided for the maintenance of public worship in that form, and under such circumstances a vote of the town that it was not expedient to form two societies might have some significance. But by the toleration act, the power of raising money by taxation for the support of the ministry was taken away from the towns, excepting in so far as was necessary for the fulfilment of contracts then existing.

Under this law, it appeared in the Dublin case that a religious society had been organized in Dublin, composed principally of those who had formerly composed the religious society under the town organization, and connected with the same church, and who had continued to support the ministry in connection with that church till the commencement of the suit. It was held by the court that that society was entitled to the benefit of the funds which the town held in trust under the will of Mr. Sprague. In the same way, the plaintiff society, was undoubtedly well entitled to the benefit of the fund which is the subject matter of this suit, so long as that continued to be the only society in Orford.

But when a council, held, as we must understand, according to the usages of the Congregational polity, had recommended a division of the society, and in pursuance of that recommendation the defendant society had been formed, it seems that undoubtedly the division into two societies contemplated in the will of the donor had been effected, and the town thereafter should have given to that society the benefit of that fund.

There is nothing in the present case that calls for an inquiry into the manner in which the fund has been administered heretofore, so that whatever appears in the bill on that subject need not be considered now.

This is, in fact, a public charity. It cannot be controlled or its funds diverted from their original purpose by any parties claiming to be the beneficiaries.

The result, therefore, is, that the defendant society is rightfully receiving the rents and profits of this land, and it will be the duty of the town to permit them to continue to do so, and to prevent any other society or person from interfering with the land, or taking anything from it; and the bill must be dismissed.

^* This act, though now moss-grown and nearly forgotten, marked an era in the religious and political history of the state. It was popularly called "Dr. Whipple's Act," c., because Dr. Whipple, the member of the House from Wentworth, was the author of its most vital provisions, or, to use his own words in the great debate, "as the amendment [offered by him] contained the most essential provisions of the bill, from which either harm or benefit might result" and because, to use the words of the most eminent journalist of New England, "it was sustained by the mover with unrivalled ability and eloquence." The legislature, on February 8, 1791, passed "An act for regulating towns and the choice of town officers." It was very lengthy, and provided for the perambulation of town lines, for the choice of numerous town officers, the appointment of others, the fining of vacancies, the passage of by-laws, the warning of town-meetings, and prescribed the duties of a great variety of town officers, and the mode of service of legal processes upon towns and other corporations, c. The tenth section was as follows: "And be it further enacted, That the inhabitants of each town in this state, qualified to vote as aforesaid, at any meeting duly and legally warned and holden in such town, may, agreeably to the constitution, grant and vote such sum or sums of money as they shall judge necessary for the settlement, maintenance, and support of the ministry, schools, meeting-houses, school-houses, the maintenance of the poor for laying out and repairing highways, for building and repairing bridges, and for all the necessary charges arising within the said town, to be assessed on the polls and estates in the same town, as the law directs." The amendment to this act, out of which "the toleration act" grew, was introduced in the senate in 1819. The journal of the senate gives no clew to its authorship, but shows that, on June 14, 1819, "A bill entitled ``An act in amendment of an act entitled an act for regulating towns and the choice of town officers, passed February 8th, Anno Domini 1791,' having had three several readings, passed to be enacted. Sent down for concurrence." On June 22, 1819, in the house, Dr. Whipple proposed the following amendment: "And be it further enacted, That every religious sect or denomination of Christians in this state may associate and form societies, may admit members, may establish rules and by-laws for their regulation and government, and shall have all the corporate powers which may be necessary to assess and raise money by taxes upon the polls and ratable estate of the members of such association, and to collect and appropriate the same for the purpose of building and repairing houses for public worship, and for the support of the preaching of the gospel; and the assessors and collectors of such associations shall have the same powers in assessing and collecting said moneys, and shall be liable to the same penalties, as similar town officers now have and are liable to: Provided, That no person shall be compelled to join or support, nor be classed with or associate to, any congregation, church, or religious society, without his express consent first had and obtained. Provided, also, If any person shall choose to separate himself from such society or association to which he may belong, and shall leave a written notice thereof with the clerk of such society or association, he shall thereupon be no longer liable for any future expenses which may be incurred by said society or association." The amendment was opposed by Pitman of Portsmouth, Parker of Amherst, and Hubbard of Charlestown. It was supported by Butters of Pittsfield, and Ichabod Bartlett of Portsmouth, Dr. Whipple opening and closing the debate. It was carried, — yeas 96, nays 88. Another amendment proposed by Dr. Whipple was adopted, and the bill was ordered to a third reading, — yeas 95, nays 88. Toppan's motion to postpone to the next session was negatived, — yeas 79, nays 103. After the adoption of the Whipple amendments, Hubbard voted for the bill. See Journals of the House and Senate for 1819; Barstow's History of New Hampshire 424, 425, 430, 431, 433, 435; ib., 422, 423, 426, 427, 428, 429, 432, 434, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445; New Hampshire Patriot and State Gazette, 1819, June 29, July 6, 13, 20, 27, August 3, 10; and all the articles by Gracchus and Alcibiades, and the Baltimore Register by Niles. REPORTER.