Miller v. McWilliams.

for the payment of its liabilities. County Commissioners v. Rather, at June term, 1872; Ex parte Selma & Gulf Railroad, 45 Ala. 696. The authority that contracts the debt should attend to its liquidation. After the amount of the liability is fixed by judgment against the corporation, and execution issued on such judgment is returned "No property found," then it becomes the duty of the corporate government to levy and collect such a tax as may be necessary to discharge the judgment thus existing. If they fail to do this, mandamus is the proper remedy. Walkley v. City of Muscatine, 6 Wall. 481; Dillon on Mun. Corp., § 685, note 4.

Then, the motion against the sheriff in the court below, who refused to levy an execution, issued on a judgment against the town of Camden, on the property of the inhabitants of said town for its satisfaction, was properly overruled and denied.

Besides this, the Constitution of this State declares, that "The General Assembly shall not have power to authorize any municipal corporation to pass any laws contrary to the general laws of the State, nor to levy a tax on real and personal property to a greater extent than two per centum (per annum) of the assessed value of such property." Const. Ala., art. 4, § 36. This, then, by implication, if not directly, forbids the property of the citizens of such corporations to be taken for the payment of the corporate debts or liabilities to an amount above this constitutional limit. The sounder exposition of the law does not permit that a burden, which should be borne equally by all, should be inflicted on one or a few. The payment of the liabilities of a municipal corporation is a common burden, and it is only by taxation that it can be equally distributed. For this purpose, the power to levy a tax is given.

The judgment of the court below is affirmed, with costs.

Judgment affirmed.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

OLD SOUTH SOCIETY IN BOSTON v. CROCKER.

(119 Mass. 1.)

Trust-public charity-sale of trust-property- when court will authorize.

A gift for the erection of a house for public worship, or for the use of the ministry, may constitute a public charity if there is no definite body for whose use the gift was intended, capable of receiving, holding and using it in the manner intended. But where there is a body, or a definite number of persons, ascertained or ascertainable, clearly pointed out by the terms of the gift to receive, control and enjoy its benefits, it is not a public charity, however carefully and exclusively the trust may be restricted to religious uses alone.

Land was conveyed to certain persons named "and to such as they shall associate to themselves, their heirs and successors forever, for the erection of a house for their assembling themselves together publicly to worship God, as also the erection of a dwelling-house for such minister or ministers as shall be by them and their successors from time to time orderly and regularly admitted for the pastor or teacher to the said church or assembly," "and for no other intent, use or purpose whatsoever." Held, (1) not to constitute a public charity; (2) that the land so conveyed might be sold by authority of the legislature or of a court of equity; and (3) on an application for a sale of the property, that the vote of a majority of the pew-holders or members of the society was not of itself a sufficient authority to enable the corporation to make the sale, nor a sufficient reason to justify the court in authorizing it to be made; but that those seeking the sale must satisfy the court that it was reasonably required for the accommodation of the society as a whole, and that the proposed change would not subject the minority to an unreasonable sacrifice of interest or convenience, or in any way work injustice to them.

TWO

WO cases were decided together. The first case was a bill in equity by the Old South Society against Crocker and others, members of

said society, alleging in substance as follows:

Old South Society in Boston v. Crocker.

That in 1669 Mary Norton did, for a voluntary consideration and “in confidence of their faithfulness to perform that trust which I shall repose in them," convey certain land in Boston to Thomas Savage and certain others named," and to such as they shall associate to themselves, their heirs and successors forever, for the erection of a house for their assembling themselves together publicly to worship God, as also the erection of a dwelling-house for such minister or ministers as shall be by them and their successors from time to time orderly and regularly admitted, for the pastor or teacher to the said church or assembly, and for the accommodation of the said dwelling-house for the use of the minister or minis ters as shall from time to time be chosen as aforesaid, and for the accommodation of the meeting-house, with convenient passages of ingress, egress and regress for the people, that shall there from time to time assemble as aforesaid, but for no other intent, use or purpose whatsoever."

Thereupon the grantees proceeded to erect a meeting-house and dwelling-house for their minister on said land, and to duly organize a church named "The Third Church of Christ in Boston"-afterward known as "The Old South." In 1677, the same grantor, by a deed reciting the preceding conveyance and the building of a meeting-house on the land by the grantees, conveyed an adjoining piece of land to the six survivors of the persons named in the preceding deed, "and to such as they shall have associated unto them in church fellowship, or shall be associated to them and to their heirs and successors forever, for the ends and purposes in the first above-mentioned deed is fully and amply declared," "with the house already erected thereon for the use of their ministers or ministry, orderly chosen by the said society, being the Third Church of Christ in Boston, from time to time, and at all times forever." Subsequently, the grantor by her will gave to the "Third Church of Christ in Boston" her dwelling-house which adjoined the land before conveyed, "for the use of the ministry in the said church successively forever." The deeds and other writings concerning said house were by the will bequeathed to two of the persons named in the preceding deeds, as trustees for the said church, "for the end and use before declared." In 1845, the proprietors of pews in the church and their successors were made a corporation and authorized to take and hold, to the use of the corporation and its successors and assigns in fee simple, the property held by the church, "for the support of public worship, for parochial and charitable purposes in this Commonwealth, and for paying the debts of said corporation."

The society afterward by a majority vote and after due notice decided to erect a new house of worship in another locality and to abandon the

Old South Society in Boston v. Crocker.

Old South meeting-house as a house of worship, and to sell the same and apply the proceeds to the payment of the expense of the new church and to parochial and charitable purposes.

The bill prayed for a decree authorizing the society to sell the said Old South meeting-house.

The defendants, a minority of the pew-holders, claimed that the cor poration had no power to dispose of the property, and that a sale thereof would be contrary to the trust and in violation of the conditions thereof. The case was reserved for the consideration of the full court.

The second case was an information filed by the attorney-general on December 4, 1874, at the relation of the parties defendant in the first case, alleging that the Old South Society held the land conveyed and devised to it by Mary Norton as trustee of a public charity; that by the acts done by the defendant, all of which were set forth at length and were the same appearing in the first case, the defendant had violated its trust, and praying that it be restrained from selling its land, that it should be removed from its said trust and that other trustees be appointed in its stead.

An answer was filed, and the case was reserved by ENDICOTT, J., for the consideration of the full court on the pleadings and a report similar to that in the first case.

B. F. Thomas & L. M. Child, for the Old South Society.

E. R. Hoar & G. O. Shattuck (R. Gray with them), for defendants in the first case, and the attorney-general in the second case. 1. The property sought to be sold is held to charitable uses. The object is charitable. Trusts for the support of public worship and religious instruction, either under a liberal construction of the words "repair of churches" in the Stat. 43 Eliz., ch. 4, or by virtue of original equity jurisdiction, have always been held to be charities. Earle v. Wood, 8 Cush. 430; Jackson v. Phillips, 14 Allen, 539, 552; Attorney-General v. Pearson, 3 Mer. 353. The object of the three gifts of Mary Norton, all of which were gratuitous, was the advancement of religion through the erection of a meetinghouse for the public worship of God and supplying a dwelling-place for the minister thereof. Gifts to build a church are held charitable. Dutch Church v. Mott, 7 Paige, 77; Beaver v. Filson, 8 Barr, 327; Schnorr's Appeal, 67 Penn. St. 138; Potter v. Thornton, 7 R. I. 252; Meeting St. Baptist Society v. Hail, 8 id. 234; Goode v. McPherson, 51 Mo. 126; Johnson v. Mayne, 4 Iowa, 180; Scott v. Stipe, 12 Ind. 74; Hopkins v. Upshur, 20 Tex. 89; Davis v. Jenkins, 3 Ves. & B. 151. So also are

Old South Society in Boston v. Crocker.

gifts to build a parsonage. Sewell v. Crewe-Read, L. R., 3 Eq. 60; Cresswell v. Cresswell, L. R., 6 Eq. 69. The gifts are to Thomas Savage and others" and to such as they shall associate to themselves, their heirs and successors forever." Any persons of the same religious views might be come members of the society by buying pews in the church. The society could be no source of pecuniary profit to its members; and the fact that the members paid for their pews can be no objection to its being a charity. Gooch v. Association for Aged Females, 109 Mass. 558; Gass v. Wilhite, 2 Dana, 170.

Α

The beneficiaries are sufficiently indefinite. It is only necessary that they should take by virtue of their position and not as individuals. gift otherwise a charity will be none the less so because its benefits are confined to a class of persons who are represented at the time of the gift by certain definite individuals. Thus the following gifts are held to be charities, though there is no uncertainty as to the persons to be immediately benefited: A gift to a priest or minister, by virtue of his office. Attorney-General v. Cock, 2 Ves. Sen. 273; Thornber v. Wilson, 3 Drew. 345; 4 id. 350; Attorney-General v. Dublin, 38 N. H. 459. A gift to a lodge of Freemasons. King v. Parker, 9 Cush. 71; Vander Volgen v. Yates, 3 Barb. Ch. 242; Duke v. Fuller, 9 N. H. 536; Indianapolis v. Grand Master, 25 Ind. 518. A gift to a particular religious society. Earle v. Wood, 8 Cush. 430; Dexter v. Gardner, 7 Allen, 243; Beatty v. Kurtz, 2 Pet. 566; Magill v. Brown, Brightly, 346, note; Wi liams v. Williams, 4 Seld. 525; Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. 186, 237; Banks v. Phelan, 4 Barb. 80; Wright v. Methodist Church, Hoffm. Ch. 202; Price v. Maxwell, 28 Penn. St. 23; Attorney-General v. Dublin, 38 N. H. 459; Gass v. Wilhite, 2 Dana, 170; Curd v. Wallace, 7 id. 190, 192; Attorney-General v. Jolly, 2 Strobh. Eq. 379; White v. University, 4 Ired. Eq. 19, 20; Bridges v. Pleasants, id. 26, 31; Johnson v. Mayne, 4 Iowa, 180; Ward v. Hipwell, 3 Giff. 547; Attorney-General v. Gould, 28 Beav. 485. gift of land for the purpose, as in this case, of building a particular church. Dutch Church v. Mott, 7 Paige, 77, and other cases before cited. In the following recent English cases, legacies for the purpose of building a chapel or parsonage were assumed to be charitable, the only question being whether they came within the Mortmain Act, 9 Geo. II, ch. 36. Sewell v. Crewe-Read, L. R., 3 Eq. 60; Booth v. Carter, id. 757; Creswell v. Creswell, L. R., 6 Eq. 69; In re Watmough, L. R 8 Eq. 272; Sinnett v. Herbert, L. R., 12 Eq. 201; S. C., L. R., 7 Ch. 232; Pratt v. Harvey, L. R., 12 Eq. 544; In re Lee, 21 W. R. 168; 27 L. T. (N S.) 808.