The Clergyman's Hand-book of Law Part 8

*285.* _Will, Forfeiture._-The provision in a will or deed that land shall be used for purposes of a certain church, may create a trust for the benefit of the church only and not a condition the breach of which would work a forfeiture.(510) When a condition is put in a deed that it shall be forever used as a burial ground for the interment of bodies, it is doubtful whether the grantor and grantee together may change the uses of the property. Therefore, it is important in taking deeds to cemeteries to have no condition whatever, unless such conditions are desired.(511)

*286.* _Condition, Quit-Claim._-After conveying land upon a specified condition, the grantor then gave a quit-claim deed, and the court held that that relieved the grant from the condition.(512)

*287.* _Bishop, Trust, Successors._-A deed of land to the bishop of a church for a Protestant Episcopal church in fee simple, created a trust and on the death of such bishop the t.i.tle pa.s.sed to his successors.(513) Where a grantee in a deed absolute on its face, is in fact archbishop of the Roman Catholic Church for his diocese, its canons and decrees regulating the mode of acquiring and holding church property are competent evidence to show that the property is so held in trust for purposes for public wors.h.i.+p and other charitable uses. And property so held by a Catholic bishop in trust for the diocese, or in trust for a congregation, school, cemetery, or asylum, for the separate use of each, is not chargeable with any part of the expenses of another one or for improving the church property generally in the diocese.(514)

*288.* _Trustees, Vacancy._-When land is conveyed to certain persons as trustees of a church and their successors lawfully appointed, a court of equity will not step in to fill a vacancy but will leave that to be filled by the church in accordance with its discipline.(515) But an attempt to sell real estate of a religious society against the provisions of its charter, will be prevented by a court of equity.(516)

*289.* _Church, Majority, Change._-When property is conveyed to a church having a well-known doctrine, faith, and practice, a majority of the members has not the authority or power by reason of a change of religious views to carry the property thus dedicated to a new and different doctrine.(517)

*290.* _t.i.tle, Harmony, Division._-The t.i.tle to church property in a divided congregation is in that part of the congregation which acts in harmony with the law of the denomination; and the ecclesiastical laws and principles which were accepted among them before the dispute began, are the standard for determining which party is right.(518) In other cases the division of church property, where there is a division of the congregation, depends upon its particular facts.(519) Where $400 was bequeathed to a Lutheran congregation in S--, there being at the time of the making of the will but one Lutheran congregation in the place, but subsequently a majority of the trustees and members with the pastor left the church and built a new one, the old church continued vested with the t.i.tle to the property and all its funds.(520)

*291.* _Perversion, Misuse, Suit._-Unless there is substantial departure from the purpose of the trust which amounts to a perversion of it, a court of equity will not interfere to prevent the misuse or abuse of a trust of a religious nature. In actions in the State court, if the church is not incorporated, an action should be brought in the names of the members collectively, and if they are too numerous to be all named, the suit may be brought in the name of one or more of them for the whole. The same rules apply to religious societies when sued. However, in some dioceses, particularly in the Catholic Church, the t.i.tle to the church property is in the bishop and he thereby becomes an interested party who must be made either a plaintiff or a defendant.(521)

*292.* _Rights, Contracts, Torts, Crimes._-Vested property rights, contracts, torts, and crimes, are usually subject to the laws of the State and the control and judgment of a church tribunal is seldom final. While the State courts have no ecclesiastical jurisdiction and can not revise or question ordinary acts of church discipline, they have the power to adjudicate conflicting claims of parties to the church property or the use of it.(522)

*293.* _Cemetery, a.s.sessments._-Where a lot was bought for the purpose of building a church but was used for a cemetery, and a church was built at another place and the deed to the lot was taken in the name of the trustees, the pastor and a member of the church corporation were not the proper parties to bring an action to restrain the State from selling the lot to pay the a.s.sessments for pavement, as they had no legal or equitable interest for the protection of which they could claim the interposition of a court of equity.(523)

*294.* _Burned, Revert, Vested._-The fact that a church on lands donated to the parish, on condition of sustaining the church, burned down, the t.i.tle did not revert to the grantor's heirs.(524) Also land granted a bishop for church uses, vested immediately in him and was not forfeited because it was not used for church purposes.(525)

*295.* _Abandoned, Revert._-Land granted to trustees and their successors forever in trust to erect a Methodist church, according to its rules and discipline, which was used for such church for a long time and then abandoned and sold to parties who converted it into a blacksmith shop, did not thereupon revert in the absence of a provision to that effect.(526)

*296.* _Uses and Trusts._-The chapter of the Wisconsin statutes on religious societies, although not included in the same t.i.tle as the chapter abolis.h.i.+ng all uses and trusts excepting as therein created, was not intended to prohibit the trusts expressly authorized by the former.(527)

*297.* _Trust Funds, Account._-Where a member of the church received funds to invest in his own name for the benefit of the church, he will be obliged in a court of equity to give full account for the money and its profits.(528)

*298.* _Fund, Diverted, Split._-A fund created for a particular purpose, as the education of children in the faith and doctrines of a denomination at the time the fund is created, can not be diverted from its original object.(529) Neither can such a fund be split up when a congregation is divided, but must be retained as created.(530)

*299.* _Church, Personalty._-A church removed from its foundation and put on rollers was severed from the realty and became personal property.(531)

*300.* _Lease, Purposes._-A religious literary society and scientific corporation has power to lease part of a building owned by it for theatrical and operatic purposes.(532)

*301.* _Salary, Lien, Equity._-The church building and the land on which it stands have been held subject to the payment of a debt due for the salary of a pastor of the congregation owning such property.(533) A contractor is ent.i.tled to a lien on the church property for work done on the building.(534) A person who became liable for the debts of the congregation incurred in the purchase of church property, obtained relief in equity by subjecting the church property to a sale.(535)

*302.* _Bankruptcy, Creditors._-There is no provision of law for a church corporation to make an a.s.signment in bankruptcy. However, the church corporation may be sued and a receiver appointed to take possession of the property and sequester the a.s.sets.(536) But where a.s.signments in bankruptcy and a sale and conveyance of church property are lawful, the church property may be a.s.signed for the benefit of the creditors.(537)

*303.* _Jurisdiction, Process._-In order to obtain jurisdiction where there are contentions between various persons claiming to be officers, the only safe rule is to serve the process on all those who are in the offices or claim the offices upon the occupants of which the papers must be served.(538)

*304.* _States, Property, Restrictions._-Some States restrict the quant.i.ty and use of property that a religious society or church may hold. Other States have no restrictions; but nearly all the States have some statutory law on the subject, which is changed so frequently that it would be useless to give the provisions of such law in this work.(539)

*305.* _Land, Limitation._-A statute of Illinois relating to Catholic societies contains no limitations on property rights, but it was held that the general law applied, and that an organization having ten acres could not acquire additional land by devise. A conveyance of land to a corporation after it has taken all the land allowed by law, is void.(540) In Kentucky where a church is limited to fifty acres and a devise was made to a church for the benefit of foreign missions, it was held valid under a statute providing that all devises for relief of aged, impotent, poor people, churches, or for any other charitable or humane purposes, shall be valid.(541) Maryland's peculiar law by which leave must be obtained from the Legislature for a conveyance of more than two acres of land, has been construed to give the Legislature authority to ratify a conveyance that otherwise would be void under the statute.(542) Also, it was held in the same case that a church might acquire more land, but that it would be restricted with regard to its use. A statute prohibiting a religious society from holding more than twenty acres of land applied to a single religious society and not to the denomination.(543) Where the territorial law provided that no religious corporation should hold real estate of greater value than $50,000, a receiver was appointed for the Mormon corporation.(544)

*306.* _Corporations, Bequests._-Foreign religious corporations may be ent.i.tled to recover bequests made to them in some States; but the general rule is that a foreign religious society has no better right to take property by devise than a domestic corporation.(545) When the statute requires a conveyance to specify the purpose for which a religious society takes land, the failure to so specify renders the deed void.(546) But the Young Men's Christian a.s.sociation was declared not within the limitation because it was not formed for pecuniary benefit and profit and was not under the control of any one denomination nor formed for religious wors.h.i.+p.(547)

*307.* _Collateral Attack._-A devise of land to a religious society which will increase the t.i.tle beyond the amount that is allowed by statute, can not be attacked collaterally by a private individual.(548) It is for the State and not for the individual to make inquiry into excess on the part of a religious society in its acc.u.mulation.(549)

CHAPTER XXII. RELIGIOUS SERVICES

*308.* _Wors.h.i.+p, Discipline, Innovations._-The denomination itself, according to its rules and regulations, determines what services shall form a part of its public wors.h.i.+p. The inferior authority in the church has no right to violate the discipline by innovations. Whether or not devotional singing may be accompanied with instrumental music, must be determined by those who administer the discipline of the church.(550)

*309.* _Doctrines, Temporal Affairs._-The fact that the congregation sells the pews does not give the owners the right to determine what doctrines shall be preached in the church, nor who shall preach them.(551) A majority of a local church can not change the faith of the church against the protest of the minority.(552) The corporation of the congregation is governed by the majority only in temporal affairs.(553) However, some of the Protestant churches are so independent that a vote of the congregation may transfer them from one denomination to another.(554)

*310.* _Contributions, Presbyterians, Methodists._-Where certain persons by contributions built a church and the t.i.tle was taken and held by the Presbyterians who permitted all other denominations to hold services therein, all of which was a condition of the subscriptions for establis.h.i.+ng the church, when the Presbyterians sold out to the Methodists and they held it for their own exclusive use, those who contributed the money had the right to resort to the court to enforce their rights to wors.h.i.+p in such church.(555)

*311.* _True Religion, Courts._-Ordinarily the civil courts do not interfere where there is a question as to which of two or more parties is adhering to the true religious teaching of the denomination. If no question of property or civil rights arises, the court will not interfere.(556)

*312.* _Heresy, Injunction._-Where a minister did not preach the doctrine and the entire system of Calvinistic theology received and taught by that denomination, he had no right to the pulpit of the church, and the court granted an injunction against his officiating therein.(557)

*313.* _Bequest, Sects, Condition._-Where a bequest was made to erect a place of wors.h.i.+p with the privilege for other sects to wors.h.i.+p therein and forever to be used as such, the trustees in whom the t.i.tle vested had no authority to sell without the consent of the grantor or his heirs; and the congregation having sold the church property and it having been thereafter used for a store, the grantor's heirs had a right of entry for condition broken.(558)

*314.* _s.e.xton, Undertaker, Authorities._-The s.e.xton who has charge of the church property may lawfully remove from the church an undertaker who, after being warned to desist and leave, persists in conducting the funeral in violation of rules prescribed by the authorities of the church.(559)

CHAPTER XXIII. BEQUESTS, DEVISES, AND GIFTS

*315.* _Statutes, Wills._-In some States a religious society can not take under a will, and a bequest of money to a church is void.(560) In Connecticut any devise to a religious corporation not expressly authorized by statute, is void.(561) In Maryland leave to devise land to a religious society must be obtained from the Legislature.(562) In all the States it is safest to consult and carefully follow the statute in drawing a will.

*316.* _Ma.s.ses, Alabama._-Formerly as a rule of the English common law, it was held that bequests and devises for the purpose of having Ma.s.ses said for the soul of the deceased, were void as superst.i.tious uses; but under Article 1 of the Amendments to the United States Const.i.tution, and under similar provisions in the const.i.tutions of the several States, the English rule does not prevail in the United States. However, Alabama adopted the English rule.(563) By reading the foot-note to the Alabama case, it will be found that a majority of the States hold that such bequests are lawful.(564) Even in Alabama if the bequest had been to a clergyman or a certain person and accompanied by a request to say Ma.s.ses, the court might have allowed it.(565)

*317.* _Name, Bequest, Corporation._-A mistake in a name does not render a bequest or a gift void if the person intended can be identified.(566) Also, a devise may be made to a corporation not yet organized and when it is organized the gift or devise will vest. During the interim, it will remain in abeyance.(567)

*318.* _Clergyman, Undue Influence._-A clergyman who is a grantee in a deed from a paris.h.i.+oner, although deriving no benefit therefrom, has the burden of showing good faith in the transaction as the law presumes that he is guilty of undue influence. This presumption is further strengthened by proof of the enfeebled condition of the grantor by age and illness and his susceptibleness to influence. Where the property conveyed in trust for the parish was greatly in excess of its needs, the deed was set aside.(568)

*319.* _Contest, Secession._-In case of a devise to a church which is claimed by two societies, it is the duty of the court to decide in favor of those who adhere to the ecclesiastical government of the church which was in operation at the time the trust was declared.(569) However, to maintain such action it must be brought by the proper parties.(570)

*320.* _Bequests, Members.h.i.+p._-Bequests left to individuals on condition that they shall remain members of a certain church, can be obtained only by complying with such condition.(571)

*321.* _Conditions, Religious Tenets._-In order to determine the conditions of a trust the religious tenets of the donor may be shown to aid in construction of ambiguous provisions.(572)

*322.* _Name, Uncertainty._-A bequest to Georgetown University, in the District of Columbia, which was incorporated under the name of "The President and Directors of Georgetown College," is not void for uncertainty, as the only inst.i.tution of learning in the District of Columbia is Georgetown College.(573)

*323.* _Future Uses, Uncertainty._-A devise to a foundling or eleemosynary inst.i.tution, whenever the Christians should create one which the trustees approved, is valid.(574) And a devise to the "First Christian church erected or to be erected in the village of Telfairville, in Burke county, or to such persons as may become trustees of the same," is good as a charitable bequest.(575) A bequest to a priest to hold in trust and pay over to the Sisters for the Poor, is valid.(576) A bequest for the care of a tombstone is valid in some States and not in others without a statutory provision.(577) A bequest to the bishop "to be by him used for Roman Catholic charitable inst.i.tutions in his diocese," sufficiently describes the beneficiaries and is good.(578) Also, a bequest to Bishop England "in trust for the Ladies of the Ursuline Order residing in Charleston in the State of South Carolina," was held for "The Ladies of the Ursuline Community of the city of Charleston."(579) A bequest for Ma.s.ses "to a Roman Catholic priest that shall succeed me in this place," was held void for uncertainty.(580) A bequest in trust to a bishop by name to sell and give the proceeds to a society named, is not a devise to the society, but to the bishop in trust.(581)

*324.* _Education, Priesthood._-A devise or bequest to a clergyman of property to be used for the education of poor Catholic boys for the priesthood, was sustained in court as sufficiently definite for performance.(582)

*325.* _Charitable Trust, Cy-Pres._-Equity will not allow a charitable trust to fail for want of a trustee, but will appoint one.(583) The doctrine of _cy-pres_ as applied to charitable gifts and trusts, is not in force in Alabama, Connecticut, Delaware, Indiana, Maryland, Iowa, New York, North Carolina, nor Wisconsin; but seems to prevail in California, Illinois, Ma.s.sachusetts, Missouri, Pennsylvania, and Rhode Island.

*326.* _Error, Ambiguity._-Great lat.i.tude is allowed in charitable bequests, devises, and gifts, in proving _aliunde_ the beneficiary intended where there is error in the name or a latent ambiguity.(584) The religion of the testator will be considered in proving intention.

*327.* _Dissolution, Resulting Trust._-On dissolution of a religious society, the money collected or derived from the sale of property goes back as a resulting trust to the contributors.(585)