Attorney General ex rel. Bailey v. Moore's Executors

The opinion of the dOurt was delivered by . Depue, J\ The bequest being for the establishment of an orphan asylum, and a hospital for sick and infirm persons, is a be•quest to a charitable use, and the objedt of this suit, as stated •in the prayer of the bill, is to obtain from this court a con■struction of the will, and directions to the executors how best to carry out the design of the testator in regard to these charities. • The right of an executor, or trustee, or of any other person interested in the execution of a trust, to come into the Court of Chancery to have the trust established and the Construction of the instrument by which it is created authoritatively settled, is a familiar doctrine of this court. The Court of Chancery has also an extensive jurisdiction over the subject of charitable uses, to uphold, protect, and enforce their execution. But this jurisdiction is not so universal as to include the execution by the court of all trusts, or to authorize its interference in all cases of bequests to charitable uses. Its authority can only be invoked in exceptional cases, where no trustee is interposed, or where there is no person in esse capable of taking, or where the charity is of an indefinite nature, or its execution according to the original purpose is, or has become, impracticable. Where the charity is definite in its objects, and lawful in its — 507 — creation, and capable of being executed according to the directions of the donor, and it is to be executed and regulated by trustees, whether they are private individuals or a corporation, the administration properly belongs to such trustees, and the king as parens patries has no general authority to regulate or control the administration of the funds. In all such cases, however, if there be any abuse or misuse of the funds by the trustees, the Court of Chancery will interpose, at the instance of the Attorney General, or the parties in interest, to correct such abuse or misuse of the funds. But in such cases the interposition of the court is properly referable to its general jurisdiction as a court of equity to prevent abuse of a trust, and not to any original right to direct the management of a charity or the conduct of the trustees. 2 Story’s Eq., § 1191. I have been thus particular in stating the jurisdiction of the Court of Chancery in matters of this kind, because we are asked by the prayer of the bill to direct the executors how best to carry out the design of the testator in regard to his charity; and much of the argument'which was addressed to this court bore upon the question as to how the charitable institutions, proposed to be founded by the testator, might be most efficiently managed to effectuate the benevolent objects he htid in view. Unless, by reason of the incomplete testamentary disposition of the testator, or the existence of the defects in, or difficulties in the execution of, the trusts above indicated, this court is called upon to fraiqe a scheme for its execution in order to prevent a failure of the trust, we have no jurisdiction to inquire how the testator’s bounty might be most judiciously administered, or to advise the executors how they shall exercise that discretion, which, to a certain extent, must be vested in every trustee in the management and administration of a trust. The jurisdiction qf the court extends no further than to ascertain the intent of the testator, from the language he has used ; and when such intent is ascertained, if the trust does not fall within the class of incomplete trusts, that require the aid of the Court of Chancery to sustain or — 508 — execute them, we have no jurisdiction to interpose, unless1 it ‘be to restrain the executors from any proposed abuse of' the trust or misuse of the trust funds.:' ; " In this case the charity is definite in its objects, and1 is capable of being executed according to the directions of the donor ; and trustees for the establishment of the institutions are appointed, and provision is made for a corporation for the complete management of the trusts. It does not therefore come within the jurisdiction of chancery, by reason' of ■any inefficiency of the scheme of the donor, or practical difficulty in its execution according to his' directions, or for the want of competent trustees to carry it into effect. ‘ It was admitted on the argument, and is not charged otherwise in the bill, that the executors are properly proceeding'with the administration'of the estate, and that they propose and intend with the residue of the estate, as soon as, practicable, to establish in the fifth ward of the city 'of Newark an orphan asylum, which they propose to call St. James Roman .Catholic Orphan Asylum, and also a hospital ■for sick and infirm persons; and that they propose and intend as soon as said institutions'shall have been established, to-cause them to be incorporated in one corporation, and upon such incorporation to convey to it the funds appropriated to those institutions, taking upon themselves the management of the institutions until such corporation is effected. This enumeration of acts proposed and intended to be done by the executors, comprises all the duties to be performed in the literal and complete- execution of the trusts declared in the will. But it is said that the1 executors, while they propose to carry into effect all the directions of the will in their literal terms, meditate a violation of their duties as trustees, in that they propose with the trust funds to establish ah orphan asylum and hospital purely charitable and of a general nature, in the management of which protestante will not be excluded, and in which the tenets of the Román Catholic church will not be taught, or the forms of worship of said church be adopted-, either exclusively or in preference — 509 — .to those of any other religious denomination. And the charge in the bill is, that the intent of the testator was to create the two .specified institutions for general charity, and for the reception and benefit of persons, without regard.to religious belief, but to be under the control and management exclusively of the Roman Catholic church; in both of which,.religious services shonld be bad and religious instruction, given, according to the tenets and form of worship of,the Roman Catholic church; and that, in order to secure that result, the trustees managing said institutions, when incorporated, should be members of the Roman Catholic church, and the institutions should each he subject to the right of visitation for spiritual purposes, hy the bishops and clergy of said church. The intent to make these institutions denominational in their management, is sought to be deduced from the fact that the testator was, for a long while prior to his death, an earnest Roman Catholic, and a large contributor in the building of St. James Roman Catholic church in the fifth ward, in Newark, in which ho was a stated worshipper; and that the charity cannot he rightly administered, as regards the asylum, without sectarian instruction ; and that the hospital, to be properly carried on, requires the presence of nurses and religious ministers who may give consolation to the sick and dying. These considerations, it is urged, indicate that the testator, when he designated the name of the institution as St. James Roman Catholic Orphan Asylum, had reference to similar institutions which the Roman Catholic church had under its care, and manifested his intention that the asylum and hospital should be under Roman Catholic management, governed and carried oil as Roman Catholics ordinarily govern apd carry on like institutions. It sufficiently appears from the preceding bequests in this will, that the testator was a Roman Catholic in hia faith. But it will be found that the cases in which a consideration of the religious faith of the founder of a charity is resorted to for the purpose of ascertaining his intent, are without — 510 — •exception, cases in which the primary object of the founda•tion was the propagation of religious doctrines, or the donor ••in the instrument of foundation has made some express provision relative to the religious-instructions to be given. Tn Attorney General v. Calvert, 23 Beav. 258, Sir John Romilly classifies charities, with a view to this subject, into ecclesias.tical, educational, and eleemosynary charities, and says that 'iri ecclesiastical charities, the object being to promote reli•gion, the opinions of the founder are of paramount importance; in educational charities, the opinions of the founder •are only of value when some directions' are given by him relative to the religious instruction to. be given to the pupils ' :to be taught, and only for the purpose of explaining and elucidating any obscurity which may be found in such direction ; in eleemosynary charities, the religious opinions and ■ tenets of the founder are wholly to. be disregarded, and are ■to be treatéd as forming no indication of his intention.-on •which the court can act. In an earlier case before the same judge, (Attorney General v. Sherborne Grammar School, 18 Beav. 256,) there is an illustration of an educational charity J where the court acted upon an intent that the charity should • be denominational, deduced from’ the instrument of founda- ' tion. That was a grammar school, established by King •Edward VI for the education, teaching and instruction of ■ boys and young' men. By the letters patent, the governors named were created a body corporate, and were empowered with the advice of the bishop of Bristol for the time being, ■to make fit and wholesome statutes and ordinances in writing, relating to the ordering, governing, and directing; of the master, sub-master, and scholars' of the school.- The regulations adopted by the corporation, with the approval of the bishop, subjected the charity to. Episcopal management. ■ In sustaining the power o,f the corporation to make such regulations, the Master of the Rolls says: “Unless the clause in the-letters patent be excluded entirely from-consideration, I ' think it impossible to come to any conclusion other than this; - that the founder intended that the advancement of the doc — 511 — trines of the Church of England, and the instruction and education of youth who belonged to that church, should be •the primary object of his foundation, and that he sought to socure that object by providing that the rules for the government of the institution should receive the sanction of one of the prelates of that church.” Shore v. Wilson, which involved the construction of Lady Hewley’s charities, does not conflict with the principle above r stated. That charity was, first, for the relief of “ poor and •godly preachers of Christ’s holy gospel,” and the widows of ■ such persons; second, for educating young men designed for the ministry of Christ’s holy gospel; and, third, for the •maintenance of an almshouse or hospital. By the rules 1 made by her “ for the better ordering, choosing, and government of the poor of the almshouse,” which were referred to in the deed of gift, she described the persons to be admitted, as “ poor and piously disposed of the protestant religion, that can repeat the Lord’s prayer, the creed, and ten commandments, and Mr. Edward Bowles’ catechism.” The educational branch of the charity was primarily designed for the dissemination and propagation of religious doctrines, and the ' persons to be benefited by the alms to be dispensed were to be selected with reference to their religious faith. In order to ascertain the persons who were entitled to enjoy the benefits of the charity, the court had recourse to the sectarian associations and connections of the founder, not thereby to control the administration of the charity, but for the purpose of .ascertaining the meaning of the ambiguous words used by the donor in defining the class of persons who were to be partakers of her bounty, on the ground that the words used by her were so indefinite and uncertain, that without resorting to their signification as used by the sect to which she belonged, and to the doctrines taught in the catechism referred to, the court could not understand what was mean thy them; or, as was said by Lord Chief Justice Tindal, “ for the purpose of maki ng the written instrument speak for itself, which otherwise would be either a dead letter, or would use a doubtful tongue, — 512 — or .convey a false impression of the meaning of the testator." 9 Clark & Fin. 355, 567; 11. Sim. 632, note to Attorney General v. Shore ; Attorney General v. Wilson, 16 Sim. 210 ; Attorney General v. Drummond, 1 Con. & Lawson, 210 ; S. C., on. Appeal, 2 Eng. L. and Eq. 15-23; Miller v. Gable, 2 Denio 521, 540 ; Robertson v. Bullions, 1 Kern. 243. In a later case before Lord Oran worth, the learned Chancellor, in commenting on Shore v, Wilson, and Attorney General v. Drummond, uses the following language: “InLady Hewley’s case, and in the later case from Dublin, Drummond v. Attorney General, parol evidence was received only to enable the court to understand and construe the deed under which the trusts existed. The great question in the former case was as to what was the sense in which the words “ godly preachers.of Christ’s holy gospel” were to he understood in the deed creating the trust; and in the latter, the question was in like manner as to the meaning of the words “ Protestant Dissenters.” In both these cases, the parol evidence was necessary in order to enable the court rightly to understand the deed. Certain words wepe used which it was necessary to construe, and this could not be done without admitting a great deal of evidence as to the state of religious parties at the, time when the deeds were framed. For such a purpose, the evidence was most reasonable, It was like the evidence afforded by a dictionary which enables us to translate a foreign language, or a book of science which gives us the meaning of words of art.” Attorney General v. Clapham, 31 Eng. L. and Eq. 164. The charity which was before the Court of Chancery of England, In the matter of the Norwich Charities, 2 Mylne & Craig 275, in the character of tire bequest creating it, is similar to that now under consideration. The bequest was for establishing a hospital for keeping, bringing up, and teaching young and very poor children, who were without friends to help them, and for the helping and curing of poor, distressed men, women, and children, who should be hurt by falls or otherwise, or should be diseased and likely to be — 513 — cured. The testator was a member of the''church of -England. The Lord Chancellor held the charity to be not exclusively a Church of England charity, so as to make it proper to place it under the superintendence of a’body of trustees consisting entirely of members of that church. The counéel •who contended for the denominational aspect of the charity, pursued the same line of argument that was adopted here— . the necessity that the children should be instructed in religion, and the presumption that the donor would not be indifferent as to what religions doctrines they should be taught. Lord Cottenham, 0., disclaimed all right to proceed on such grounds in the selection of trustees to manage the charity, and said: “If I should say that the master was wrong in appointing the four trustees, who are not members of the church of England, I could only come to that decision upon the ground that I found something in the charter, or in the Constitution of the charity, which would lead me to conclude that it was meant to be exclusively confined to the children of members of the church of England." In the course of his opinion the Chancellor states the rules by which the Court .of Chancery is guided in the matter, as follows : “ The master in selecting new trustees has, with my entire concurrence, whenever the charity was for church purposes, selected as trustees persons who were members of the church of England. It has been thought proper, that when the object of the trust has been exclusively connected with one particular religious party, the trustees who were to have the control over it, should bo of the same religious party. The question is, what are to be considered church purposes ? When I look to this •foundation I can find nothing alluding to a church purpose; and I cannot hold, because I may have reason to suppose that Thomas Anguish, (the donor,) when he made his will in the year 1617, was a member of the Church of England, that, therefore, he intended that the only objects o: his charity should be persons who belonged to the Church of England. He could easily have declared such an intention, if he entertained it.” — 514 — ‘ It will be perceived that in Attorney General v. Sherborne Grammar School, the Master of the Rolls arrived at the conclusion that the charity in question was denominational in its management, by force of express directions of the donor, Which indicated that the primary object of the charity was the advancement of certain religious doctrines, and the education of persons who possessed certain qualifications connected with the religious faith they professed. Another observation sustained by the cases is, that the courts in declaring that any eleemosynary charity is denominational in its management, in the absence of express directions as to the management and direction of the charity, are uniformly led to that conclusion by the circumstance that the benefits are to be enjoyed exclusively by persons of a particular religious belief. An eleemosynary charity is essentially unsectarian, both'in its management and in the scope of its benevolence, and it can only become sectarian in either respect, when sudh restrictions or limitations are imposed by the declared intent of the donor in the instrument of foundation. A corporation created for the execution and administration of such a charity is a lay and not an ecclesiastical corporation, and, therefore, not subject to ecclesiastical visitation, even though composed of ecclesiastical peysons, or provision is made in the instrument of foundation for the maintenance of priests within the hospital to celebrate divine .service to the poor. 2 Co. Lit. 342, a; 1 Black. Com. 471, and note. “It is the object for which the house was established that makes it a spiritual or a lay foundation. If a hospital be established for the relief of the poor, and if there be no cure of souls attached to it, it is a lay foundation, though the founder has annexed, as a qualification of the office, that no person shall be master or warden of it except a clerk in holy orders." Attorney General v. The Master and Brethren of the Hospital of St. Cross, 21 Eng. L. and Eq. 397, per Sir J. Romilly, M. R; The charity in this case comes within the legal designation of an eleemosynary charity. The propagation of religious — 515 — doctrines was not the primary object of the foundation. The purpose the testator had in view, was the establishment of an asylum and hospital for the benevolent purposes for which charitable institutions of that description are usually established. The principles upon which the cases cited above were decided, exclude from our consideration any reference to the religious faith of the testator in patting a legal construction on his will. On the argument, some stress was put on the fact that the Roman Catholic church has many orphan asylums and hospitals under its care, with orders of men and women specially trained for this department of Christian labor, one of which ■ — the St. Mary’s Orphan Asylum — -is located in Newark; and it is charged in the bill, that the testator, when he directed the establishment of an asylum, to be called St. James Roman Catholic Orphan Asylum, had reference to like asylums governed and carried on under the control and management of Roman Catholics, with whose existence and character he was familiar. There is nothing on the face of the will that evinces any design to assimilate the asylum the testator projected, to other institutions established for like purposes. While it is allowable to construe a will by the four corners of the instrument, yet it is not permitted to the court to travel outside of it to annex provisions or introduce qualifications, or for any other purpose, except it be to ascertain the meaning of the language of the testator, where he has expressed himself in ambiguous terms. See Colpoys v. Colpoys, Jacob 451, per Sir Thomas Plumer, M. R.; Shore v. Wilson, 11 Simons 631, per Tindal, C. J.; Mann v. Ex’rs of Mann, 1 Johns. C. R. 234; S. C. 14 Johns. R. 1. There is no ambiguity or uncertainty in the language in which this bequest is framed that requires the aid of averment; and we must be governed in ascertaining the intent by the words by which this charity is created. It is not claimed by the relator that the charity was intended to be for the benefit exclusively of persons of the religious faith of the testator. The right of management and — 516 — control cannot, therefore, be claimed to be in persons of Boman Catholic connection, because of the charity being exclusively for the purposes of that church. It is admitted in the bill, that both the proposed institutions were intended to be for general charity, and for the reception and benefit of persons, without regard to religious belief. If they are to be subjected to the control exclusively of the Boman Catholic church, they must, therefore, have become so by force of some express directions in the will of the testator, touching their government and management. Treating the orphan asylum as the main and controlling purpose of the charity, and viewing that as an educational charity, has the testator given any directions as to the religious instruction to be taught to those who shall be admitted to the asylum, or as to the management of either institution, with a view to the propagation or inculcation of any particular religious doctrines ? The affirmative of this proposition depends solqly upon the name which he directs to be given to the asylum, which is the name of the church at which he worshipped, and whose pastor he selected as one of his executors. On this branch of the case, two cases (Miller v. Gable, 2 Denio 492, and The People v. Steele, 2 Barb. R. 398) were cited and.much relied on. In both of these cases the charities were churches, established as religious societies. There was no dispute that the primary and sole object of their establishment was the dissemination of religious doctrines; and the remark of the court, that in a grant to a religious corporation its distinctive denominational name, as descriptive of its ecclesiastical connection, was indicative of the particular religious tenets designed to be propagated, is applicable only to societies established for religions purposes. The charity now under consideration is not an ecclesiastical charity, and the point of'this case is not the inquiry whether the testator designed to make these institutions Protestant or Boman Catholic in their management and control, but whether he intended to subject them absolutely — 517 — to any denominational management, or designed that the entire administration of the charity, including its spiritual and educational as well as its purely eleemosynary duties, should be vested in the corporation to be organized under the direction of his executors in their discretion, without prescribing the religious faith of the persons under whose care the institutions should be placed, and by whom they should be managed. It is obvious that if this charity is not an ecclesiastical charity, the name given to the institutions does not afford an indication of an intent to subject them to denominational control. They may bear the proposed name, and still retain their character as purely an eleemosynary charity. Especially is this the case when the testator has designated the instruments by which the charity is to be administered, without any qualifications as to the manner of administration. And if it be conceded that the name proposed does afford some indication of an intent to make the institutions denominational, it is exceedingly slight, and is overcome by the unmistakable evidence in the language of the bequest, of the trust and confidence reposed by the testator in his trustees. He selects as trustees two persons, one of whom is a protest-ant, and the other a priest of his own persuasion. He describes one as mayor of the city of Newark, and the other as pastor of St. James Roman Catholic Church, in Newark, and bequeaths and devises to them the estate out of which the fund for the charity is to be raised, absolutely and with full power of disposition. He directs that they shall establish these institutions, and when established, that they shall cause them to be incorporated, and that they shall have the management of them until incorporated; and he vests in the survivor the power to execute these trusts in case of the death of one. The testator has contented himself with declaring the objects of the charity, leaving the trustees to regulate its details and provide for its management in their discretion, with no other restriction on the exercise of that discretion than that the institution he provides for shall be — 518 — called St. James Roman Catholic Orphan Asylum. If an act of incorporation is procured, expressed in the same language as is used by the testator in this bequest, in which the trustees named by him are named as corporators and managers, it would be impossible, by any known canons of construction, to so construe it as to make the institutions, when incorporated, denominational in their management, or subject to ecclesiastical visitation. The scheme set forth in the proposed act of the legislature, annexed tp the bill of complaint, and which is necessary to give this charity a denominational cast, illustrates the difference between the words of the bequest and the appropriate language to give expression to an intent to make an eleemosynary charity denominational in its management, and subject it to ecclesiastical visitation. The only jurisdiction of the Court of Chancery over this charity is to decree the legal construction of the bequest, and to restrain the trustees from diverting the trust funds from the declared purposes of the trust. Beyond that, we have no jurisdiction to direct or advise the trustees as to the manner in which they shall exercise their office as trustees, or regulate the internal management of the charity. The considerations urged here, connected with the religious faith of the testator and the name of the institutions his benevolence projected, may properly be addressed to the executors to influence them in the conduct of these institutions while under their control, and in the constitution of the corporation by which the charity is finally to be administered; but they do not furnish the elements upon which this court can act in construing the will of the testator, to declare that he has given such directions on that subject that a departure from them will be a diversion of the trust funds from the declared objects of the trust, such as would require the interposition of this court to restrain the executors, or to punish them for a violation of their duty as trustees. The conclusion is, that the testator has provided for an asylum and hospital for the general charitable purposes which • such institutions are designed to promote) and that the right — 519 — to establish those institutions for the purposes specified, and to determine the manner in which they shall be organized, is vested in the executors, with no other restriction than that the institutions, when established, shall bear the name mentioned in the will; and that they are not bound to place them under the direction of the Roman Catholic church, or to subject them to the visitation of the bishop or clergy of that church, or to cause its worship to he adopted, or its tenets to be taught exclusively, or at all, except as their own judgment impels them. The decree of the Chancellor appealed from, dismissed the bill with costs. The bill was filed at the instance of the executors, with the view of having the construction of the will settled by a decree of the court for their guidance, before the erection of suitable buildings for the purposes of the charity was commenced. Where the duty of a trustee is a matter of doubt, it is his undoubted right to ask and receive the aid and direction of a court of equity in the execution of his trust. Kearney v. Macomb, 1 C. E. Green 189. In such cases, if reasonable grounds exist for coming into the court to obtain the construction of the instrument creating the trust, the practice is to allow the costs and expenses, as it respects all the parties, and as betweep attorney and client, out of the trust funds. 1 Redfield on Wills 493 ; 3 Raniell's Oh. Rr. 1554. This case comes within the application of this principle. The costs, and a reasonable counsel fee on both sides, both in this court and in the Court of Chancery, should be allowed out of the trust estate; the amount of counsel fees to be settled by the Chancellor. In this respect the decree of the Chancellor is modified; in all other respects, it is affirmed.