White v. South Parish

Shaw, C. J.

This is a real action, brought by the heirs of John R. Hollis, deceased, to recover the demanded premises, of which it is admitted that said Hollis died seized. The tenants defend on the ground, that said Hollis made a will, which, after his decease in 1842, was duly proved and allowed, and by which he devised the premises to the said parish, to be placed in the hands of three suitable trustees, in trust for said parish, to be chosen annually by them, to manage the property; the income to be applied for the benefit of schooling in said parish; the principal to be forever preserved and kept good.

The demandants, not denying such devise in form, in the will of their ancestor, insist that the tenants, as a parish, had no legal capacity to take and hold property for the purposes mentioned in said will; that therefore this devise was wholly void, and that the estate vested in them, by descent, in the same manner as if such devise had not been made.

The question is, therefore, upon the validity and legality of this devise; and this depends upon the capacity of a corporation, chartered for parochial purposes, to take and hold such a gift of real estate.

This parish was incorporated by a special act passed February 26th 1829. The third section provides that they may hold and possess, by grant, gift, devise or otherwise, real and personal estate, for the purpose of supporting public worship and other parochial charges, not exceeding, &c. The argument is, that this special enumeration of purposes, for which they may hold gifts by devise, by reasonable implication excludes all others. But the court are of opinion, that this argument does not apply; because, in § 1, they are incorporated with all the powers, privileges and immunities, and subject to all the liabilities of parishes, according to the constitution and laws of this Commonwealth. Both are affirmative, and no negative words are used. Such a particular enumeration is often inserted for greater caution, and to remove doubts, when the same authority is given by a more general grant of power, in the same instrument. We think, therefore, that the tenants stood on the same footing with all other parishes and religious societies, not territorial.

In the case of the First Parish in Sutton v. Cole, 3 Pick. 232, it was held to be within the corporate powers of a parish or religious society to take and hold gifts and grants of real and personal property, for the purpose of maintaining and supporting schools. It is true, that in rendering judgment in that case, the court placed much reliance on St. 1789, c. 19. § 8, which was then in force, giving authority to parishes to raise such sums of money, on the polls and ratable estate of their respective inhabitants, for the maintenance and support of a schoolmaster, as they might deem expedient. The argument was, that if parishes could lay and assess taxes for that purpose, a fortiori might they accept gifts and donations for the same purpose. In that view, the argument was very decisive; but the case did not decide, that if that power to lay and assess taxes had been wanting, the corporation would not have had a legal capacity to take donations. On the contrary, many of the considerations suggested by the court would lead to a contrary conclusion.

We think that the power of a parish to assess taxes for any particular purpose is not a decisive test of their power to accept and hold property for purposes not precisely within the main object of their creation, to wit, the support of public worship, but yet not foreign to it, and not inconsistent with it. Should a friend and benefactor offer to erect, and give to a religious society, a building, to be used as a vestry and for singing schools, Sunday schools, adult evening schools, adult day schools, or reading and writing schools, as the society, by its proper officers, might direct or permit; these purposes are so akin to all the religious and charitable objects for which a religious society is formed, that it seems hardly doubtful that they would have capacity and power to receive and hold it, though they might not have power to lay taxes on polls and estates to raise money for erecting such a building. It is worthy of consideration, that the power of a corporation to raise money by taxation is a very high power. It is exercised by a majority, by means of which a minority may be compelled to pay money for objects, against their own will and judgment, payment of which is enforced by the highest compulsory power of the law. It is therefore guarded with great jealousy, and will not be held to exist, where it is not clearly given. None of these considerations apply to a voluntary donation.

It is then contended, that as the St. of 1789, c. 19, was repealed by St. 1826, c. 143, the power given to parishes to lay and assess taxes for the support of schools was revoked, and the authority, implied from it, to take and hold property for that purpose, fell with it. If the latter power depended wholly upon St. 1789, and there were no saving clause, this would be a legitimate conclusion. But if, by ancient usage, which seems to be implied in First Parish in Sutton v. Cole, parishes had power to hold property for the support of schools, then the St. of 1789 was rather the confirmation than the original source of that power. But we think the St. of 1826, in § 18, itself affords an answer to this argument. The act in terms repeals the act of 1789. But § 18 declares, that “ nothing in this act contained shall be so construed as to affect the right of any corporation, heretofore or which may be hereafter established in any city, town or district in this Commonwealth, to manage any estate or funds given or obtained for the purpose of supporting schools therein,” &c., “ but such corporate powers and such estate and funds shall be and remain as if this act had never passed.” The terms “ any corporation ” and the whole description are broad enough to include religious societies. They extended to those corporations which might be thereafter established, as well as to those then existing, and of course to funds after-wards to be given, as well as to those then held. This was after the decision in First Parish in Sutton v. Cole, declaring that parishes had power to take and hold estate, for the support of schools; and the effect of this statute was, to declare that nothing contained in it should impair, that is, that the repeal of the St. of 1789 should not impair, that right. This power was confirmed by St. 1834, c. 183, § 1, and by Rev. Sts. c. 23, § 59, and c. 20, § 2. The words “rights, privileges and immunities,” as applied to parishes and religious societies,, are large enough, and fitly adapted, we think, to include a capacity to receive gifts and donations, not only for the direct purposes for which they were constituted, but for purposes which, by usage and custom, and the general consent of enlightened persons, are regarded as analogous thereto Schools appear to us to be of this description ; and the court are of opinion, that the power heretofore existing in parishes, to take and hold property, in their corporate capacity, for the. support of schools, has not been taken away or impaired by any of the. recent statutes respecting schools or parishes.

The sole question in this case is, whether the parish have a capacity to take and hold the land demanded, for the purpose specified in the will. If they have, it cannot be claimed by the heirs. It is not a question, to be considered here, whether the parish have established the right kind of school, or otherwise rightly appropriated the fund. If they can take it, they take it as a charity; and whether they act correctly or not, in the administration of the funds, the heirs cannot reclaim the estate as if it were a void devise. Going v. Emery 16 Pick. 107. Sanderson v. White, 18 Pick. 333. In case of any mismanagement, the conduct of the donees will be regulated by the visitatorial power, if any, subject ultimately to the authority of this court, as a court of equity..

Judgment for the tenants.