Presbyterian Congregation v. Johnston , 1 Watts & Serg. 9 ( 1841 )

Kennedy, J.,

dissenting.—This is an action of ejectment for a lot of ground, situate in the borough of York, containing about two acres, with a brick church, a two-story dwelling-house, and a frame stable thereon. The plaintiffs claim to be incorporated under a charter certified by the governor of this commonwealth, on the 7th of December 1813; and, as such incorporation, they also allege that they are entitled to the possession of the property in question. In support of their claim, after giving the charter of incorporation in evidence, they read in evidence a deed of bargain and sale, bearing date the 29th of September 1785, from John Penn, Jun. and John Penn, Esquires, late proprietaries of Pennsylvania, to George Irwin, merchant, William Scott, and Archibald M’Lean, Esquires, conveying to them, their heirs and assigns, the said lot of ground, in consideration as well of the inclination of the bargainors to comply with a request made of them by the bargainees on behalf of themselves and other members of the religious society of the English Presbyterians in and near the town of York, in York county, and the commonwealth of Pennsylvania, to grant to the said society, in fee, the said lot of ground, as a site for a house of religious worship, and a burial place for the use of the said religious society of the said English Presbyterians and their successors, in and near the said town of York, as the sum of five shillings, lawful money of Pennsylvania, to the bargainors in hand paid by the bargainees, to have and to hold the said lot of ground, with its appurtenances, unto the said George Irwin, William Scott, and Archibald M’Lean, their heirs and assigns, for ever, in trust for the use of the said religious society of English Presbyterians, and their successors, in and near the said town of York, in the county of York; and in confidence that they, the said George Irwin, William Scott, and Archibald M’Lean, and the survivor of them, their and his heirs and assigns, shall and will permit and suffer the said lot of ground, and the buildings thereon, thereafter to be erected, to be from time to time, and at all times thereafter for ever, at the disposal, and under the care, regulation, and management of the said religious society and their successors, in and near the town of York aforesaid; and to and for no other use, intent, or purpose whatsoever.

Other evidence was also given, showing that previously to the 16th of October 1838, the plaintiffs and defendants individually were members of the religious society of English Presbyterians, in and near the town of York; and at that time, and for many years previously, even prior to the date of the deed aforesaid from the Penns, at least as early as 1765, were, and had, as a congregation, formed a constituent part of the Carlisle Presbytery, and consequently were, and had been under its immediate care and direction. That a meeting of the congregation took place on the said 16th of October 1838, in consequence of a communication from the Presbytery of Carlisle, reciting that the congregation had applied, by a commissioner, appointed for that purpose, to the Presbytery for leave to present a call to the Rev. B. J. Wallace, a member of the Presbytery of Muhlenburg (Kentucky); which application had never been made, although Mr. Wallace had been statedly preaching to said congregation for the last eight months, without having presented himself or his credentials to the Presbytery, or to the committee of the Presbytery appointed to examine the credentials of travelling ministers; and that there was reason to apprehend that the congregation would receive injury by such a state of things continuing; and therefore, resolving, that, in the judgment of the Presbytery, Mr Wallace had been acting in an irregular manner; that the stated clerk write to the Presbytery of Muhlenburg, and inform them of Mr Wallace’s conduct, and the opinion of the Carlisle Presbytery respecting it; and that a copy of the foregoing be sent by the stated clerk to Mr Wallace and the session of the congregation-of York. At the meeting of the congregation held in consequence of this communication, on the 16th of October 1838, a resolution wa§ offered and seconded, stating that the congregation, having been, for nearly the whole period of its organization, in connexion with the Carlisle Presbytery, ought not to be separated from it. This resolution, after being debated, was postponed by a majority of the persons present, and a substitute adopted declaring, “ that the church and congregation continue to recognise the Confession of Faith of the J^resbyterian Church of the United States of America, as containing the system of doctrine taught in the Holy Scriptures, and approve of the government of the same church on the basis of the constitution. That in studying the peace and unity of that church (congregation), and in the .peculiar circumstances in which it was placed, while they disclaimed any intention of becoming an independent church, they deemed it inexpedient for the present, to recognise the jurisdiction of any of the conflicting church judicatories, which may claim authority over them.” The resolution, thus adopted by the majority, being looked upon by the minority as an avowed determination to separate the church or congregation from the Carlisle Presbytery, offered a protest, which they requested to have entered upon the minutes of the meeting. But this was refused by the majority, who still proceeded further, and passed a resolution declaring “ that that church and congregation cheerfully exonerated the Rev. B. J. Wallace from any charge of neglect, on his part, in not having earlier obtained his certificate of dismissal from the Presbytery of Muhlenburg, Kentucky, as they believed him to have used all proper means to obtain the same.” And furthermore, “ that that church and congregation highly approved of the ministerial labours and conduct of the Rev. B. J. Wallace since he had been among them, and believed that his talents and piety highly qualified him to promote the spiritual interests of that congregation.” And lastly, “ that although they did not desire, for the present, that any change should take place in the ecclesiastical relations of their minister, the Rev. B. J. Wallace, yet they were willing, should circumstances render it absolutely necessary, that he should seek such connexions as would afford him requisite ecclesiastical protection.” That from this time the congregation became divided into two parts. The one part being the minority, who were for adhering to their connexion with the Carlisle Presbytery, are the plaintiffs in this action; and the majority, who retained and still continue to retain the possession of the lot of ground, together with the buildings thereon, including the meeting-house, and the Rev. B. J. Wallace as their preacher. That afterwards, on the 9th of November 1838, when a committee from the Presbytery of Carlisle, appointed shortly before at a meeting of the same held at Lancaster city, to visit the English Presbyterian church in York, and to confer with the officers and members of said church, came and announced their presence for that purpose, instead of being received and admitted to a conference by the party in possession of the church-house, the defendants, they were presented with a copy of their resolutions, passed on the 16th of October preceding, the purport of which is4 stated above; and to a request, made by the said committee, to be admitted into the church-house, a positive denial was given. That afterwards, in 1839, the majority, without consulting the Carlisle Presbytery, united themselves with a Presbytery called the Presbytery of Harrisburg, which was established some short time previously by what is generally called and known by the name of “ the General Assembly of the New School Presbyterians in the United States of America” consisting in part of a secession from “ the General Assembly of the Presbyterian Church in the United States of America.” That this same majority, claiming to be “ the congregation of the English Presbyterian church in the borough of York, in the county of York, and state of Pennsylvania;” after their union with the New School Presbyterians, on the first Monday of May, in the succeeding year 1839, elected the defendants as trustees under the 9th Article of the charter read in evidence. While the minority, still continuing their connexion with the Car-lisle Presbytery and the General Assembly of the Presbyterian Church in the United States of America, claiming in like manner to be the congregation of the English Presbyterian church in the borough of York, <fcc., also elected trustees in conformity to the said article.

These would seem to be the undisputed facts of the case; out of which two questions have been raised. First: Are the minority to be regarded as’ “ the Religious Society of the English Presbyterians in and near the town of York, in the county of York and state of Pennsylvania, mentioned in the deed from the Penns, and as being the same who were incorporated by the charter given in evidence? And secondly, admitting the said minority to be the same, and the trustees elected by them to be the congregation that is embraced and incorporated by the charter given in evidence, have they, as an incorporation, such a right to the possession of the property in dispute as will entitle them to recover it in this action ?

In regard to the first question, it is proper to premise that-it is not denied, but admitted by both parties, that the religious society of English Presbyterians in and near the town of York, &c., mentioned in the deed of the Penns, as the society for whose úse the lot in question was thereby conveyed to the trustees therein named, is the same religious society which was subsequently incorporated, in the year 1813, by the name, style, and title of “ the trustees of the English Presbyterian congregation in the borough of York.” And, indeed, if it be that the words “ in and near the town of York,” describe the same topographical limits as those of “ the borough of York,” the description of the society as given in the deed would seem to be substantially the same with that contained in the charter of incorporation; for either is clearly sufficient to show that the society intended to be made the object of the bounty of the Penns, was a Presbyterian church or congregation, composed of persons, as members thereof, speaking and using the English language exclusively in their religious worship and exercises, and residing at the time of making the deed, “ in and near the town of York,” &c., the town not then being a borough, but afterwards, when it came to be incorporated as such, residing within the limits of the borough, which, as may be fairly inferred, were extended so as to embrace the town and its vicinity, or the land and the inhabitants upon it, in and near the town.

Now, in the exposition of deeds, as also in all other instruments of writing containing the contracts of parties, the intention of the parties, if lawful, must be regarded and carried into’ effect; and it is the bounden duty of courts, when appealed to, to cause this to be done to the utmost extent of their powers.

The, object and design of a trust created by deed, as in this case, must therefore be particularly attended to; and where the object and design of the trust are plainly indicated by the terms of the deed, courts are bound, when properly called on for that purpose, to give effect to the trust according to such design. And even where the object of the trust is not plainly pointed out and specified upon the face of the deed, so as to discover therefrom what form or species of religious worship was intended, the usage of the congregation in that respect will be inquired into and resorted to by the court as a directory in the administration of the trust. Accordingly, Lord Eldon, in the case of The Attorney General v. Pearson, 3 Meriv. 400, lays it down, that when an institution exists for the purpose of religious worship, and it cannot be discovered from the deed declaring the trust, what form or species of religious worship was intended, the court can find no other means of deciding the question than through the medium of an inquiry into what has been the usage of the congregation in respect to it; and if the usage turns out upon inquiry to be such as can be supported, it is the duty of the court to administer the trust in such a manner as to establish the usage, considering it as a matter of implied contract between the members of that congregation. But if on the other hand, it turns out that the institution was established for the express purpose of such form of religious worship, or the teaching of such particular doctrines as the founder has thought most conformable to the principles of the Christian religion, he considered that it was not in the power of individuals having the management of that institution, at any time, to alter the purpose for which it was founded, or to say to the remaining members, “ we have changed our opinions, and you who assemble in this place for the purpose of hearing the doctrines and joining in the worship prescribed by the founder, shall no longer enjoy the benefit he intended for you, unless you conform to the alteration which has taken place in our opinion.” In such a case, therefore, considering it as settled by the House of Lords in a case mentioned by him, upon an appeal from Scotland, he apprehends, that when a congregation become dissatisfied among themselves, the nature of the original institution must alone be looked to as the guide for the decision of the court, and that to refer to any other criterion, such as the sense of the existing majority, would be to make a new institution, which is altogether beyond the reach, and inconsistent with the duties and character of the court.

Again, this eminent chancellor, distinguished alike for his great depth of learning and soundness of judgment, both in legal and equitable matters, in the same case, page 409 of the same book, observes, “ If land or money be given for the purpose of building a church or a house, or otherwise maintaining the worship of God, and if there be 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. But it is clearly settled, that if a fund, real or personal, be given in such a way that the purpose be clearly expressed to be that of maintaining a society of Protestant dissenters, promoting no doctrines contrary to law, it is the duty of the court to carry such a trust as that into execution, and to administer it according to the intent of the founder.” If this be the rule by which courts are governed in England, in cases where the form and nature of the religious worship, to be promoted by the trust, is clearly expressed, it would seem to be much more applicable and just here, where we have no favourite church established by law to claim, or to which a preference can be given. And further, in page 418 of the same book, this learned chancellor declares that “ If any persons seeking the benefit of a trust for charitable purposes, should incline to the adoption of a different system from that which was intended by the original founders or donors; and if others of those who are interested think proper to adhere to the original system, the leaning of the court must be to support those adhering to the original system, and not to sacrifice the original system to any change of sentiment in the persons seeking alteration, however commendable that proposed alteration may be.” From this doctrine, which seems to be founded upon the great cardinal rule obtaining in the exposition of deeds, and indeed of all contracts, that a trust created or declared must be carried into effect and administered according to the intent of the donor, or of the parties thereto, if lawful, as nearly as practicable, it is clear, that not only the religious principles of the society intended to be benefited by the deed, but likewise the form of worship, as also that of the church government with which the society stands connected at the time of the gift, are all to be looked to and regarded by the court, when called on to administer the trust and settle the rights of the contending parties, lest the intention of the donor may by possibility be defeated, or some portion of the cestuis que trust deprived of the benefit and right intended to be secured to them under the grant. And should any portion of the congregation, whether it consist of a majority or a minority, desire a change in all or any of these particulars, it is not in the power of the court either to grant or sanction it. On the contrary, it is the imperious duty of the court to determine against every thing of the sort; and to decide in favour of those, whether a minority or a majority of the congregation, who are for adhering to the doctrine professed by the congregation, and the form of worship in practice, as also the form of the government of the church in operation, with which it was connected at the time the trust was first declared. Then, for what purpose, and for whose use, does the lot of ground in question appear to have been granted by the Penns ? It is expressly declared in the deed to be “ as a site for a house of religious worship, and a burial-place for the use of the religious society of the English Presbyterians and their successors, in and near the town of York in the county of York.”

Thus it appears from the face of the deed itself, that the cestui que trusts were a Presbyterian church or congregation, located in and near the town of York in the county of York, which worshipped and performed their religious exercises in the English language; and that they were to have the lot for the purpose of erecting thereon, for their own use, a house of religious worship, and as a place for the burial of their dead. But this society could not be an English Presbyterian church or congregation, as it is denominated in the deed, without being connected with some Presbytery then in esse under the government of the Presbyterian church within the United States of America. This would seem to be requisite from the very definition of a particular church, as given in the Confession of Faith, containing the constitution of the Presbyterian Church in the United States of America, Tit. Form of Government, ch. 2, sec. 4. There it is said, “ a particular church consists of a number of professing Christians, with their offspring, voluntarily associated together for divine worship and godly living, agreeably to the holy scriptures; and submitting to a certain form of government.” At the time of the gift of the lot in question by the Penns, the religious society of English Presbyterians in and near the town of York, was joined with and under the care and direction of the Presbytery of Carlisle; and, according to the form of the Presbyterian church government, may be said to have formed a constituent part thereof; and, as it would appear from the evidence, had been under the care and direction of that Presbytery from 1765, some twenty years prior to the date of the gift: and being without any stated pastor during that period, had received supplies, as it is usually termed, from that Presbytery. It would also appear from the evidence, that this society or congregation afterwards, in the year 1793, by the permission and authority of the Carlisle Presbytery, received the Rev. Mr Cathcart as their stated pastor. That he continued under the care and jurisdiction of this Presbytery as long as he remained their pastor; and that they remained under its care and jurisdiction until the 16th of October 1838, when the defendants and those whom they represent, forming a part of the congregation at that time, resolved, in effect, that they would no longer recognize the authority or jurisdiction of the Carlisle Presbytery; nor indeed that of any other Presbytery; for they say that they “ deem it inexpedient for the present to recognise the jurisdiction of any of the conflicting church judicatories which may claim authority over themand shortly afterwards, on the 9th of November following, they, being in the possession of the church-house erected on the lot in question, acted in accordance with this resolution by closing its doors against a committee appointed by the same Presbytery to visit and confer with them; and absolutely refused to have any communion or conference with the committee. And further, in defiance of the previous admonition received from that Presbytery, continued to retain Mr Wallace as their preacher. And although it be true, that they, at the same time that they renounced their obedience and subjection to any church judicatory that should claim the same of them, declared that they “ continued to recognise the Confession of Faith of the Presbyterian Church of the United States of America, as containing the system of doctrine taught in the holy scriptures, and approved of the government of the same church on the basis of the constitution;” yet surely no intelligent man would suppose that such a declaration or salvo, as this, could have the effect of either preserving their membership in the congregation or their standing in the Presbyterian Church of the United States of America. Their resolution, solemnly taken and subsequently acted upon, amounted clearly to a withdrawal and secession, at least for the time being, from the Presbyterian church, notwithstanding their reservation to the contrary. But it is said that their resolution, in this respect, was, at most, as it were, a mere declaration of intention, on their part, to be and remain neutral, until the civil war, which had broken out, and was then raging in the Presbyterian church should be settled and finally ended; and that they afterwards united themselves with a Presbytery, called the Presbytery of Harrisburg, which was organized by the New School General Assembly. But it must be admitted, that for a certain time at least, they had placed themselves entirely without the government of the church, and were wholly unwilling to submit to it. For notwithstanding their religious faith may have continued the same that it was before, yet the instant they refused to submit to the government and discipline of the Presbyterian church, to which they had been united, they ceased to be members of that church. “ To constitute a member of any church,” says Chief Justice Ewing, in Den v. Bolton et al., 7 Halst. Rep. 214, “ two points at least are essential, without meaning to say that others are not so, a profession of its faith and a submission to its government.” And such in effect is the language and spirit of the book entitled “ The Confession of Faith,” which contains a summary of the doctrines taught in the Presbyterian church, together with a directory for the worship of God, and a plan of its government and discipline. Indeed it is perfectly obvious that government and submission are as necessary to the spiritual welfare and happiness of the members of the church, as civil government, and submission to it, is for the secure enjoyment of all the rights appertaining to our persons, as also those which we have to things. And, seeing the church cannot compel obedience to its laws and mandates, otherwise than by the exertion of a moral force merely, it is perfectly just and reasonable that those who renounce the church, or refuse to yield obedience to her regulations and authority, should thereby forfeit and lose all right to membership. If this were not so, it would answer little or no purpose, that the Presbytery, for instance, in the Presbyterian church is vested with a power, among other things, “ to visit particular churches under its care, for the purpose of inquiring into their state and redi'essing the evils that may have arisen in them; to unite or divide congregations, at the request of the people, or to form or receive new congregations, and in general to order ivhatever pertains to the spiritual welfare of the churches under its care." See Confession of Faith, tit. Form of Government, ch. 10, sec. 8. Hence it is, because members of the Reformed Dutch Church in the United States are not subject to the government of the Presbyterian church, that they are not considered members of the latter church; and for the same reason, Presbyterians are not considered members of the Reformed Dutch Church, although their faith is the same. This course of reasoning, which I take to be correct, goes to show that the defendants, notwithstanding they may have continued to hold the same religious faith and tenets that they did before their withdrawal from their former connexion with the government of the Presbyterian church, yet ceased to be members of it, and likewise of the congregation, of which they theretofore had formed a part up to that time; and having ceased to be members of the congregation, the necessary consequence would seem to be, that they also ceased to have any valid claim or interest in the lot in question, as long as any portion of the congregation remained to enjoy it under the government of the Presbyterian church in the same manner as at the time the lot was granted by the Penns, and ever afterwards— unless, indeed, it be that their having become united afterwards with the Presbytery of Harrisburg, as already mentioned, preserved their right in the lot, as being the congregation for whose use and benefit it was granted. Individually and personally they can have no claim, because it is not probable that any one of them was a member of the congregation at the date of the gift; possibly not even born then. But supposing the contrary to be the fact, still if it has not been shown already, it will be, that the only interest which they acqüired under the deed of gift was limited in its duration to the time of their continuing to be members of the congregation. It is therefore only by reason of the defendants either being or having become members of the same congregation and continuing to be such, that they can pretend to have a claim to the property in question.

It appears on the face of the deed from the Penns, that the society or congregation for whose use the lot was given, was a Presbyterian congregation ; and further, from the evidence given on the trial of the cause, it appeal's that at the date of the deed, and for twenty years previously, they had been under the care and jurisdiction of the Presbytery of Carlisle, one of the judicatories of the only Presbyterian Church known during that period in the United States of America; so that if the congregation was not sufficiently designated in the deed of gift, so as to disclose clearly the object and design of their primitive formation, it was made manifest from the evidence by a usage of upwards of twenty years, that it was formed for the purpose of worshipping God according to the Presbyterian Directory, under the protection and aid of the government of that church, and that alone, as it would seem. Now, if the defendants, after their first declaration of neutrality, flagrante hello, had submitted themselves again to the authority of the Presbytery of Carlisle, or the Synod or General Assembly to which it belonged, they would doubtless be entitled to be considered still as part of the same congregation; and if it be that they are really the majority, and had no other object in view than the worship of God under a full conviction of the Presbyterian faith, according to its directory, it is most likely that, they would thus have attained it. This, however, they did not choose to do, but elected to join the Presbytery of Harrisburg, a judicatory, though Presbyterian, that has no connexion whatever with the church and government under which the congregation existed, either at the time of the gift, or of the withdrawal by the defendants therefrom. It is a Presbytery organized by a secession from the Presbyterian Church of the United States of America, styling themselves, however, “ The General Assembly of the Presbyterian Church of the United States of America,” and claiming not only to be that body, but likewise all the rights belonging to it. But they have been held by this court in The Commonwealth v. Green et al., 4 Whart. Rep. 531, not to be the same, nor entitled to the rights appertaining to the same. By the decision in that case, this New School Assembly, as they are pretty generally denominated, w'ere held not to be the General Assembly of the Presbyterian Church of the United States of America, that had existed from 1788, but a secession merely from it, that could not be considered the same in any respect whatever. It is said, however, that this decision was founded upon the fact and the principle that they were a minority of the Presbyterian body. This, I think, is a misapprehension, for I cannot discover any such ground taken in the opinion of the court as reported; and for myself, I must say that it did not receive my concurrence upon any such ground; but upon the principle that it was an assembly which had organized itself in direct violation, as it appeared to me, of the established rules and government of the Presbyterian Church. They, in short, by organizing themselves as they did, thereby refused to submit to the government of that church, and thus, as it were, disfranchised themselves; and by their association became a new and entirely distinct body or assembly from that of the General Assembly of the Presbyterian Church in the United States of America. This being the case, it wras of no importance whether they were the minority or the majority, because it was not competent for the one more than the other to take the rule of the church into their own hands in a manner different from that prescribed by its government.

Then, seeing the defendants here, and those whom they represent, were but a part of the congregation under the government of the Presbyterian Church anterior to the 16th of October 1838, and that they have united themselves with those who seceded from that church, while the plaintiffs, the residue of the congregation, remained and continued to do so under its government, how can the former be said to be the congregation for whose use the gift in question was intended? They have undoubtedly changed their position entirely in regard to the church to which they were attached, and by which they were governed at the time the gift was made; while the plaintiffs, on the other .hand, continue to maintain the same relation and connexion with the Presbyterian Church that the, entire congregation had at the date of the gift, and ever afterwards, until the secession of the defendants. But, it is said that the General Assembly of the Presbyterian Church of the United States of America was not in being at the date of the gift, and therefore the withdrawal from its government could not possibly change the nature and character of the congregation, or its rights as such; and that the defendants, being the majority, must therefore still be considered the congregation entitled to the use of the property in question. But this argument, if indeed it can be called one, is very small, if not perfectly futile. Presbyterianism, like man himself, had its state of infancy in the United States, and continued to increase in size and strength with the increase of years until it might be said to have attained something like its majority. The first Presbyterian church in the United States consisted of a single congregation, formed in the city of Philadelphia, about the year 1700, which is known now by the name of the First Presbyterian Church in that city. Increasing, however, in number and strength, several congregations were formed shortly afterwards. In 1704 the first Presbytery was organized; and in 171’6 the first Synod, consisting of four Presbyteries. It was called the Synod of Philadelphia; but in 1741 a division took place, which gave rise to a second, called the Synod of New York. In 1758, however, these Synods became united again under the title of the Synod of New York and Philadelphia, and governed the Presbyterian church in the United States until 1788, when the Presbyterians having increased greatly in number, and being dispersed over a great extent of territory, it was "deemed expedient, in order to promote and preservé purity, and prevent error from creeping into the church, to increase the number of synods, and to establish a General Assembly, in .imitation of that established by the Church of Scotland under the Westminster Confession of Faith, invested with executive, legislative and judicial power over the whole church. The form of government adopted by the Church of Scotland, and given in the Westminster Confession of Faith, was ever looked to by the Presbyterians in the United States as their guide, and was followed and adopted by them, with the exception as to the power given to the civil magistrate in matters of religion, from time to time, as their numbers increased and'rendered it expedient, if not necessary, to do so. They began first by forming themselves into a single congregation ; next into a presbytery, as soon as the requisite number of congregations were formed to compose it. Then, as the number of presbyteries was increased, a synod was organized; after that several particular synods, and ultimately the General Assembly, or what, in other words, may be called the National Synod. But certainly it never entered into the mind of any one to conceive that the creation of a Presbyterian Synod or General Assembly changed the nature or affected the identity of any of the congregations or particular churches composing the elements of such Synod or General Assembly, more than the growth of a child into manhood would affect the identity of his person. The plaintiffs, therefore, stand precisely in the same position in the Presbyterian Church, and maintain the same relation to it, that their predecessors did at the time the property in question was granted to their use. Seeing, then, that they still hold to the same religious faith and doctrines, and are in perfect subjection to the government of the same church, why are they not to be considered the society for whose use and benefit the gift was made and intended ? Not only the language of the deed of the Penns, but the practice and usage of the society for more than twenty years before the making of the deed, show clearly that the purpose for which the plaintiffs demand the property in this action, is the same that it was intended it should for ever be applied to by the donors, the donees, and all concerned. The liberality of the Penns has been spoken of, in their being willing to oblige and tolerate all denominations of Christians alike. Admitting, however, this to have been the fact, it cannot alter the construction of their deed in this case. The rule of construction and the effect of the deed must be the same as if it were shown that they were unwilling to favour any other denomination than that of the Presbyterians. But it is also said that the terms of the trust in the deed prescribe no form of doctrine or discipline. This appears to me to be a mistake; for if not clearly expressed, it is at least necessarily implied by the description given therein of the beneficiary, and the purpose for which the lot of ground is expressly granted. The beneficiary is described as a Presbyterian society or congregation. Now, it has been shown already that this society could not have been sueh as described in the deed without a profession, by them, of their faith in the Presbyterian doctrines, and a submission on their part to the government of that church, by an observance of their directory for worship, &c. That such had been their profession and submission was fully proved by their practice and usage for a course of twenty years and more before the date of the deed. The purpose also for which the lot was expressly granted, shows most clearly that it was to accommodate the cestuis que trust in their worship of God as Presbyterians. It is given to them “ for and as a site for a house of religions ivorship, &c., of the said religious society of English Presbyterians.” Thus showing, as it were, to demonstration, that the lot of ground was granted with.a view to promote and maintain the religious worship of God according to the faith, directory, and form of government adopted by the Presbyterian Church. In this view the donees and beneficiaries had a right to consider it; and without the consent, therefore, of each and every one of them, the subject of the grant cannot' be diverted from its original purpose. Hence it is a great misconception of the terms and effect of the grant, in this case, to suppose that it was left to any portion of the beneficiaries to apply the gift to such pious uses as they should think fit; and certainly an equally great error to suppose, because subjection, on the part of the beneficiaries, to the government of the Presbyterian- Church, as it then existed, is not formally and expressly mentioned as a condition upon which the gift is made, that, therefore, the lot was given subject to the direction of a majority of the congregation as long as they claimed to retain the name of Presbyterians, although they had renounced all subjection-to the government of that church with which they were connected at the time of the grant. This would be contrary to all that Lord Eldon has laid down on the subject; the substance of which is this: “ that if it appear from the face of the deed declaring the trust, what form or species of religious worship was intended; or where this is not the case, and it can be ascertained from the usage of the congregation in respect to it, it is the duty of the court to administer the trust, in the first case, so as to promote and maintain the form of religious worship mentioned; and in the latter case, so as to establish the usage which had obtained in regard to it; because, in the first case, it is matter of express contract that it should be so, and in the second case, it is matter of implied contract between-the members of the con-, gregation, and therefore, in neither case can the court permit or sanction any alteration in the original purpose of its application.” The effect, therefore, is the same as if the form of worship mentioned in the deed, or shown by proof of usage, had been made a formal condition of bestowing the gift. Suppose the defendants in this case, after withdrawing from the Presbyterian Church as they did, had joined the church of the Cumberland Presbyterians; it certainly could not be said with propriety, or any show of reason, that they were in a religious point of view the same society or congregation that is described in the deed and shown by their religious practice and usage to have existed as a Presbyterian congregation in connexion with and under the care and protection of the government of the Presbyterian Church in the United States for upwards of twenty years before the execution of the deed. If it could, under such a change, be considered the same congregation, where, I would ask, is the difference betweeh that' case and the present, of their having joined the New School Presbyterians'! I confess I can perceive none. It may possibly, however, be answered, that there is a difference of opinion in regard to doctrine, on some religious points, between the Old School Presbyterians and the Cumberland Presbyterians. This, I believe, is true; and I have no doubt that there is also a difference of opinion existing between the Old School Presbyterians and the New School Presbyterians, on certain religious points; and for this reason, as well as that of their being now under separate church governments, they are not the same religious body of Christians. Indeed, it is impossible to avoid believing that such a difference of opinion does exist between them; because it is wholly incredible that the separation which has taken place between them, should have happened without such a difference of opinion. It is the only cause that could have interrupted the peace and harmony that once existed among them, and finally have produced the separation. The great number of men on both sides, distinguished for their eminent abilities, learning and piety, was sufficient to, and doubtless would have preserved the peace and unity of the church from being disturbed or broken up by any other cause. It may be said, however, and no doubt with truth also, that both parties still, by profession, make the Confession of Faith the standard of their rule of faith and practice. But, notwithstanding they may each be perfectly honest in such profession, yet it occurs too frequently that men, equally intelligent and upright, differ in their exposition of the same text or the same rule; and perhaps more frequently in the application of the same rules to the same state of facts, and thus come to directly opposite conclusions in regard to the case. This arises from human fallibility; for it must be admitted that man is prone to err, and often refuses his assent to the truth, even when fairly presented to him: and hence have arisen the various denominations of professing Christians. This difference of opinion which takes place so frequently among us, is not confined to religious matters; for the case before us, and I regret it extremely, furnishes an example of the truth of this proposition, in which the judges of this court, professing to be governed by the same legal rules and principles, have in the application of them come to opposite conclusions.

It may not perhaps, however, be so easy to discover which of us here have departed from the proper application of these rules, to which we all profess to adhere, as it would be to determine whether it was the old school or the new school that departed from the long established and generally received opinion and exposition of the matters contained in the Presbyterian' Confession of Faith. The new school are charged with it; and the appellation given to them would seem to be prima facie evidence of the fact; while the separation that has taken place, is strong evidence that a real difference of opinion exists between the two parties, in regard to matters of religious faith and practice. It is evident, therefore, that they are no longer the same body, but separate, distinct, and independent, living under different governments. Hence, both cannot be the primitive Presbyterian church of the United States. The new body could only be so by taking the place of the old. But this could not be, unless the old be dissolved or defunct; which is not the case, as was adjudged by this court in the case of The Commonwealth v. Green and others, referred to before. The old school are therefore the original Presbyterian Church of the United States. Now all that is here said of the old and new school parties, may be predicated of the plaintiffs and defendants. Both can not be the old congregation, for whose benefit and accommodation the lot of ground in question was granted. The old congregation formed a part of the old original Presbyterian church. The plaintiffs, who were all of that congregation, still adhere to that church, and form a constituent part of it; whereas, the defendants, on the contrary, have withdrawn themselves from it, and joined the new school church, which, as has been just shown, is an entirely different body. But the identity of a particular church or congregation depends, as we have seen, as much at least upon its adherence to the government of the church to which it was originally annexed, as upon its adherence to the same religious doctrines and form of worship. It therefore being clear that the old congregation cannot be considered dissolved or dead as long as any portion of them remain in being, it would be not only anomalous, but unjust, to permit the defendants to hold the property in question against the claim of the plaintiffs, and those whom they represent, as they are the old and original congregation, for whose use and accommodation it was granted. To decide in favour of the defendants, under such circumstances, would be permitting them to say to the plaintiffs, “We have changed our opinions in respect to the doctrines and worship prescribed by the church, with which we were all united at the time the property was granted, for the purpose of enabling us the more conveniently to attend upon and have the benefit of such doctrines preached, and worship celebrated among us; and you, although you claim it for this purpose, cannot have or enjoy the benefit of it again, unless you alter your opinions in conformity to ours, and unite yourselves with the new and independent church which we have joined.” But this is what Lord Eldon declares the defendants have no right to say. For, says he, “ when a congregation becomes dissatisfied among themselves, the nature of the original institution must alone be looked to as the guide for the decision of the court; and that to refer to any other criterion, such as the sense of the existing majority, would be to make a new institution, which is altogether beyond the reach, and inconsistent with the duties and character of the court.”

Having shown now, as I conceive, in answer to the first question, that the plaintiffs and those whom they represent are, in contemplation of law, to be deemed the society or congregation for whose benefit the lot in question was granted by the Penns, it follows of course, according to the admission of the parties, that the plaintiffs must be regarded as the corporation created by the charter of 1813.

Having thus disposed of the first question, I come now to the second, which is, Have the plaintiffs, admitting them to be the corporation created by the charter of 1813, a right in this action, as such, to recover the possession of the property in question'! The learned judge of the court below gave a negative answer to this question in his charge to the jury. In this, however, we all agree that he erred. It is true, as the judge said, that the legal title in fee to the property in dispute, became vested by the deed from the Penns in the trustees therein named, and that it still remains in them, the survivors or survivor; or, if all be dead, as would seem to be probable, in the heirs of the last survivor. The congregation’s becoming incorporated did not affect the legal title, or transfer it to the corporation, though the great object of becoming incorporated was, no doubt, to enable them- to have their temporal rights, connected with the church, taken care of, and to procure every thing of the kind that might be wanting in this respect. But it is certainly not correct, as the court below seemed to think it was, that the corporation could not recover the possession of the property in this action, unless they were invested with the legal title. A right to the possession is sufficient to enable a plaintiff in ejectment to recover, although it be only equitable. In this state, having had no court of equity to apply to on the subject, the cestui que trust, if he be entitled to the possession, for the purpose of enabling him to enjoy the trust in the manner that was intended, may maintain ejectment for it in his own name, either against the trustee himself or any other person. It is only where it is proper, that the trustee should have the possession for the purpose of enabling him to execute the trust, in the manner prescribed by the deed declaring it, that he can resist the claim of the cestui que trust to it. Kennedy v. Fury, 1 Dallas 72; Crunkelton v. Evert, 3 Yeates 570; Cecil v. Korbman, 1 Binn. 134, 137; Hunt v. Crawford, 3 Penn. Rep. 426. By the 3d article of the charter of incorporation, it is made the duty of the trustees of the congregation, the plaintiffs, to apply the rents, profits, and interest of the real and personal estate of the congregation to the maintenance and support of the gospel ministry in the same, and also to repair and maintain the house of public, worship, burial-ground, &c. (the identical property in dispute) as shall be thought just and right by them. They are further authorized by the 6th article, “ to do every thing needful for the management of the secular affairs of the said congregation.” Thus, having the care and management of the property in question given to them, they must, therefore, be considered as virtute officii entitled to the possession, as it was held in The People v. Runkle, 9 Johns. Rep. 156; and consequently may well maintain this action.

Huston, J., also dissented from the opinion of the Court.

Judgment affirmed.