Church & Congregational Society v. Hatch

Bellows, J. It is urged by the defendant that this bequest is void for uncertainty; that it is in effect to the Congregational Church, or to the Congregational Society, in Greenland; and that, as there are two distinct bodies or associations bearing those names, it is impossible to determine which shall take. In determining this question it may be useful to consider the character of the two bodies. From the examination of the records which are in the case, it appears that the Congregational Society in Greenland was organized in March 1831, under the act of July 3, 1827, and for aught we can see the organization was valid, and the society became a legal corporate body. The declared object of the society was to maintain public worship in Greenland according to the Congregational order, and immediately upon its organization provision was made for the support of the minister of that parish by authorizing a tax upon the polls and estate of its members, and it was provided that its officers should consist of a clerk, three assessors, a treasurer and collector to be chosen at each annual meeting. It appears from the records that this organization has been kept up ever since, down to April 6th, 1858, when the last recorded meeting was holden and officers chosen ; and it appears that this society during this time has taken the charge of the financial affairs of the parish, and the support of its ministers. On the other hand there is no record of any organization of the church. It appears for a long time to have been called "-The Congre [396] gational Church of Christ in Greenland,” and sometimes "The Congregational Church in Greenland.” • The records of this body show an existence as far back as the early part of the last century; and until the organization of the Congregational Society the prudential affairs of the parish and the support of public M'orship was managed by the town of Greenland in its parochial capacity. It appears from the records that the church, as such, has at all times taken a part in the selection of the pastor, but it does not appear that it has undertaken to manage the prudential affairs of the parish, or to raise money for the support of public worship, but that these duties have been performed by the town, and afterwards by the Congregational Society, which by law had the power for those purposes to raise money by taxes upon the polls and ratable estate of its members. This church appears always to have been connected with this parish and society, and dependent upon their funds for the support of religious worship ; having no organization fitted for the raising of money or the management of the prudential affairs of the parish. The character of these two bodies, as derived from these records, is in accordance, we think, with the ordinary character of bodies of a similar designation connected with the sect of Christians known as Congregationalists. The question then is, What is the true construction of this bequest? Or is it void for uncertainty ? It is urged on the part of the plaintiff that by the t.erms, “ I give and bequeath to the Church or Congregational Society in Greenland,” the testator meant the Congregational Society alone, and that the term “ church” was used as synonymous with the term “society” and not as indicating a separate and distinct body. And it is we think a matter of common observation that the terms “ church” and ‘ ‘ society ” are popularly used to express the same thing, namely, a religious body organized to sustain public worship. As tending to show that the society only was meant by the testator it will be observed that he uses its true corporate name, while on the other hand he does not use the name of the other body associated with it. The name of that body, as we have seen, is the Congregational Church of Christ in Greenland, or the Congregational Church in Greenland, and the term “ Christ” in the bequest cannot be regarded as designating this body. To be sure, from its connection with the other parts of the bequest, it might be inferred that the Congregational Church was intended, and it might perhaps properly be read as a bequest to the Congregational Church or Society in Greenland; meaning but one body, and that the corporate body known as the Congregational Society in Greenland. A strong argument in favor of such an interpretation is derived from the facts that this society had assumed and exercised the duty of supporting the minister and of raising money for that and other parish purposes, and was a legal corporate body; while the church was composed of members of that society, and had no corporate organization, and as a church had no charge of the financial affairs of the parish and no responsibility for the support of public worship. [397] The object of the bequest was plainly to aid in the support of public religious worship in that parish; and the obvious and natural mode of doing it was to entrust the fund to the corporate body upon which the duty rested. To associate with this society in this trust, a body having no legal organization, and no duty in respect to the support of a minister was not to be expected ; and looking at the terms of the bequest and the surrounding circumstances we think that the testator intended to give this fund to the Congregational Society in Greenland to hold for the support of the clergyman of that society. Of course, this description of the legatee is imperfect in this case, but that does not render the legacy void unless the ambiguity be such that it is impossible either from the will or otherwise to ascertain who is the object of the testator’s bounty. Smith & ux. v. Smith & al., 4 Paige Ch. Rep. 271. Here we think there is no such ambiguity, and that the bequest is valid. A devise is held to be void for uncertainty only when after a resort to oral proof it still remains matter of mere conjecture what was intended by the instrument. Townsend v. Downer, 23 Vt. Rep. 225; Redfield on Wills 694, § 48, and 695, § 50; Powell v. Davis, 1 Beav. 532. So to give effect to the intention of the testator the word “ or” will often be construed to mean “ and.” Greenl. Cruise Dig. Tit. 38, ch. 9, § 18; 1 Jar. on Wills 446, & al.; Forsaith v. Clark, 21 N. H. 424. There is no proof that the annual income of the property held by this Congregational Society, including the bequest now in question, exceeds the sum of two thousand dollars. As we hold this society to be a legal corporation, the objection that the suit ought to be in the name of the trustees, deacons or other similar officers does not apply, and besides it would seem that in the ease of unincorporated religious societies they may under section 7 of the Comp. Stat., ch. 153, sue as if a corporate body. The bill alleges assets in the hands of the defendant to the amount of $20,000. The answer admits real estate in Portsmouth and Greenland which might be sold to pay just debts; but that believing that there was no valid claim for this legacy the defendant had not ventured to interfere with this real estate. Under these circumstances it is to be presumed that the defendant has assets. Smith & ux. v. Smith, 4 Paige Ch. Rep. 271. The defendant urges in his answer, that members of this society had remonstrated against paying this legacy to the society, in writing signed by them. But we think that can be no defence to this suit. In the first place the society can act only at a meeting called for that purpose ; and it does not even appear that the signer's of the remonstrance are a majority of the members of the society. It will be observed that in the remonstrance they style themselves members of the Congregational Church and Society or interested therein. The suit is brought in the name of the Church and Congregational Society in Greenland, but upon the views we have expressed it should be i n the name of the Congregational Society in Greenland ; but we [398] think this may be corrected even at this stage by amendment; setting forth also that it is a corporation. Upon this amendment being made, a master may be appointed to ascertain the amount due on account of this legacy.