EDWARD D. SOHIER & others vs. TRINITY CHURCH & others.

BILL IN EQUITY, filed May 11, 1871, by the owners of eight pews, and the so called "representatives" of four tombs, in the church building of Trinity Church in the city of Boston, a religious society incorporated by the St. of 1830, c. 83, against the corporation and its senior warden and its clerk, to compel disclosures by the two latter in response to allegations concerning doings of the corporation and its predecessors, and to restrain the corporation from exercising powers given by the St. of 1871, c. 221, particularly from selling a parcel of land on the east side of Summer Street in Boston, on which the church building was standing, from interfering with rights of the pew owners, from removing bodies interred in tombs under the building, and from interfering with further use of the tombs for interments. By the bill and answers, and a report of the case by Colt, J., who reserved it for the determination of the full court, these facts appeared:

On April 30, 1730, Leonard Vassall, then owning in fee simple the greater part of the parcel of land, "for and in consideration of the sum of five hundred fourteen pounds, seven shillings and two pence, in good public bills of credit of the Province," conveyed all his said estate to "John Barns, merchant, John Gibbins, apothecary, and William Speakman, baker, all of Boston," their heirs and assigns forever, "to and for the special use, trust and confidence hereafter mentioned, and to and for no other use, intent or purpose whatsoever, that is to say, that they, the said John Barns, John Gibbins and William Speakman, any or either of them, their, any or either of their heirs or assigns, shall and will with all convenient speed endeavor to procure a building to be

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erected on the said land for the worship of God; which building or church they, any or either of them, their, any or either of their heirs or assigns, shall take care to be contrived and disposed both without and within as they, any or either of them, their, any or either of their heirs or assigns, (in the absence of the other,) shall find and judge most conducing to the decent and regular performance of divine service, according to the rubrics of the common prayer book used by the Church of England, as by law established, and the same be appropriated for the said pious and most Christian use, intent, and purpose forever; but in case of not erecting the said church or building as aforesaid upon the said premises, or in failure of appropriating the same to the said pious and most Christian use, according to the true intent of these presents, as aforesaid, within five years and five months from the eleventh day of April current, then to the use of the said Leonard Vassall and his heirs forever, he or they repaying the sum of four hundred and fifty pounds, and no more."

On February 28, 1735, by an indenture of that date, between Gibbins and Speakman (in the absence of Barns) of the first part, and "Peter Luce, merchant, Thomas Child, distiller, William Price, cabinet maker, and Thomas Green, merchant, all of Boston, being a committee duly chosen by sundry persons who advanced divers sum of money towards erecting and building a new church in Summer Street in Boston," of the second part; reciting the terms of the trust in the former deed, and that "whereas the said church hath since been erected and built pursuant to the said use, trust and intent and purpose, and, in the building and erecting the same, sundry large sums of money have already been advanced and paid by divers piously disposed persons, to be reimbursed out of the moneys that shall arise upon the alienation of the pews or seats of said church, and whereas to complete and finish the said church further considerable sums of money must likewise be laid out and expended by the said Luce, Child, Price and Green;" the party of the first part conveyed the premises to the party of the second part, "to and for the special use, trust and confidence hereafter mentioned, and to and for no other use, intent or purpose whatsoever, that is to say

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to and for the use of the said" party of the second part, their heirs and assigns, until such time as they "shall, by the sale and alienation of the pews and seats of the said church, or otherwise howsoever, be fully reimbursed all and every such sum and sums of money already advanced by sundry well disposed persons towards the erecting and building of said church as aforesaid, as also all such other sum or sums of money hereafter to be laid out, paid and expended by" them or either of them "towards the completing and finishing of the said church," or until they, their heirs, executors, administrators and assigns, and every of them, "shall have the payment of all such sum and sums of money so advanced, paid, laid out and expended as aforesaid, secured to their satisfaction by the church wardens and vestry of the said church, hereafter to be duly chosen, and likewise be indemnified and saved harmless from all contracts, obligations, agreements and articles by them made, done and executed, or hereafter by them to be made, done and executed towards the erecting, building, finishing and completing the said church as aforesaid, and of and from all costs, charges and damages that they, their heirs, executors, administrators and assigns, may suffer, sustain or be put to, for or by means thereof; and from and immediately after the payment of all and every the aforesaid sum and sums of money in manner as aforesaid, or security so given as aforesaid, then to and for the use of the church wardens and vestry of the said church and their successors forever." And the party of the second part covenanted and agreed, "from and immediately after the payment of all and every the aforesaid sum and sums of money in manner as aforesaid, or such security so given as aforesaid," to execute "one or more deeds in the law, as by counsel shall be devised for the better passing and conveying the said church, land and premises, with the appurtenances, unto the church wardens and vestry of said church, and their successors forever, free from all gifts, grants, mortgages, dowers and incumbrances whatsoever, by them had, made, done or committed, or by any person or persons claiming by, from or under them."

On October 10, 1739, by an indenture between the grantees in the indenture of February 28, 1735, of the first part, and "William

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Speakman, baker, and Joseph Dowse, merchant, the present church wardens of the said church, now called Trinity Church, and John Arburthnot, distiller, Philip Dumaresque, merchant, Charles Apthorp, merchant, Benjamin Faneuil, merchant, John Merrett, merchant, John Hancock, wine cooper, Thomas Austin, apothecary, Henry Laughton, tailor, Peter Kerwood, merchant, Rufus Green, goldsmith, Lawrence Lutwyche, distiller, James Griffin, merchant, and William Coffin, merchant, all of Boston, the present vestry of the said church," of the second part; reciting the previous conveyances, and the provisions thereof; the party of the first part, for and in consideration that they, "by the sale and alienation of sundry pews and seats in the said church, already disposed of to divers persons," were "fully reimbursed and paid all such sum and sums of money as hitherto have been advanced by sundry well disposed persons towards the building of the said church," and were also indemnified and saved harmless from all contracts, obligations, &c., towards completing it, and for the further consideration of twenty shillings, lawful money of New England, to them in hand paid by the party of the second part, gave, granted, bargained and sold unto the said party of the second part, and their successors in office, "as well the aforementioned piece or parcel of land, as also the said edifice or building thereon standing, now used for the public worship of God, called Trinity Church," to have and to hold unto the said party of the second part, and their successors in office, "in trust nevertheless, and upon condition always, that the said edifice or building called Trinity Church, and the land aforesaid whereon it stands, and before conveyed, shall from henceforth and forever hereafter be converted, improved, appropriated and made use of for the public worship of God according to the rubric of the common prayer book used by the Church of England, as the same is settled and established by an act of the parliament of England, made in the first year of the reign of Queen Elizabeth, entitled 'an act for uniformity of common prayer and service in the church, and administration of the sacraments,' and another act of the parliament of England, made in the thirteenth year of the reign of King Charles the Second, entitled 'an act for the uniformity

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of public prayers and administration of sacraments and other rites and ceremonies, and for establishing the form of making, ordaining and consecrating bishops, priests and deacons in the Church of England,' and be converted, improved and used to and for no other use or purpose whatsoever and also that the right of presentation of a minister or ministers for the said church shall be continued and remain from henceforth successively forever hereafter in the proprietors of the several pews in the said church, or the major part of them that shall be present and convened together on a legal warning or notification given by order of the church warden or wardens for the time being for that purpose; always provided, that only one vote and no more shall at all times be allowed to each pew in the said church, agreeable to a vote of the said church, passed and entered in the said church books for that purpose, the fifth day of March, Anno Domini one thousand, seven hundred and thirty-five, and in no other person or persons whatsoever, any right that thereunto may otherwise be claimed notwithstanding, and that all votes for the choice of a minister or ministers, and all officers and their salaries, shall be by written votes and no otherwise."

The religious society to which the premises were thus conveyed worshipped in the building so erected and conveyed, until 1828-9, when they demolished it and erected the present church building on the same parcel of land, wherein they have continued to worship to this time. The building committee for the erection of the present building was appointed on February 8, 1828; and the last service held in the former building was on August 3 of that year.

On September 10, 1736, the society voted that, "whereas the committee of Trinity Church has been at a great trouble in seeing the building so far carried on, and have likewise spent a great deal of time and always their own money in their meetings, and more especially for that they have been bound for large sums of money for carrying on the work, it is thought reasonable that they should have the liberty each of them to build a tomb of a common size under said church at their own cost and charge, without paying anything for the ground to said church; that

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likewise Leonard Vassall and William Speakman have the same liberty with the committee; that any proprietors may have liberty to build a tomb of the common size under the church in such place as the present committee or wardens, when chose, shall appoint, for the burying in his relations, he or they paying ten pounds for the use of said church, but that no man or person shall have liberty to put in any corpse not related to them without five pounds to the use of the church for each corpse so buried." Several of the proprietors availed themselves of this liberty, and built tombs accordingly, but the records of the society omit to show who were the original proprietors of any tombs built under the former church building, and no deeds thereof were given by the society.

On May 11, 1828, the society voted that the building committee appointed February 8, 1828, "be authorized to make any and all agreements with the proprietors of the tombs under the church, for the removal or the rebuilding of the same, which said committee may think proper;" and the committee were authorized, if it should be found "expedient or necessary to deprive any such proprietor of the tomb he now owns," to make him such compensation therefor in money, or by giving him a new tomb, as might be agreed by them with him. In constructing the present church building, fifty-five tombs were built under it," outside of the old tombs;" and on September 13, 1829, the society voted "that the wardens be directed to give deeds to the original proprietors of tombs who shall appear to be the legal owners, in conformity to the deeds reported by the committee." Thereupon deeds of nineteen new tombs were given by the wardens in the form printed in the margin; [Note p7] and four new tombs were assigned

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respectively, without deeds, to the names of Thomas Child, Charles Harrison, John McLennan and William Price, those four names, and the names of the grantees of the nineteen, being the "names of the owners of tombs under the old church edifice at the time the present church was erected, so far as known;" and out of the rest of the fifty-five new tombs, thirty-three were sold at different dates, the first on October 7, 1829, and the last on February 12, 1851, for pecuniary considerations varying from $450 to $136, and conveyed to the respective purchasers by deeds in the form also printed in the margin. [Note p8] Many of the former

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owners of tombs are dead, leaving no claimants of their respective tombs who are known to the society.

William Price, above mentioned, to whose name one of the new tombs was assigned, was the original proprietor of one of the old tombs, and by his will devised certain real estate in trust, among other things, "for keeping my tomb which is under Trinity Church in good and decent repair." By an indenture dated November 21, 1828, between the rector and wardens of Trinity Church, of the first part, the vestry and pew owners of the church, of the second part, the rector or minister and wardens of King's Chapel in Boston, of the third part, and the vestry of said King's Chapel, of the fourth part, the said parties of the first and second parts became bound to execute the trust, and the title to the trust estate has been confirmed by a decree of this court. His original tomb was removed, before the execution of this indenture, in the course of demolition of the original church building and construction of the present building. The new tomb, assigned to his name by the building committee in its stead, bears a tablet inscribed "William Price, 1736," and is inspected annually by the wardens of the church.

It was admitted, for the purposes of this report, "that the Reverend Samuel Parker, the rector of Trinity Church, was authorized on July 18, 1776, by the wardens and vestry, and afterwards by the proprietors of the church, to omit that part of the liturgy which related to the king; that said Parker was on September 5, 1787, authorized to attend a general convention of the Episcopal Church in Philadelphia; that at an Episcopal convention

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held in Philadelphia on September 29, 1785, certain changes were made in the prayer book, and that the prayer book as then established has ever since been used; that in the preliminary transactions with the archbishops and bishops of the Church of England, which secured the transmission of the episcopate from the Church of England to the American Church, assurance was given in the form of a letter from the general convention of the American Church to the English prelates, that the former had not departed and did not purpose to depart from the doctrines of the Church of England; that at a meeting of the Episcopal clergymen in Boston, on September 8, 1784, a resolve was passed, that the doctrines of the Gospel be maintained as then professed by the Church of England, and that uniformity of worship be continued as near as may be to the liturgy of said Church; and that at the triennial convention held in 1814 a declaration was made 'that what is now called the Episcopal Church in the United States of America is precisely, in succession, the body formerly known by the name of the Church of England in America.'"

On May 5, 1823, the proprietors of Trinity Church voted to apply to the legislature for an act of incorporation; and on April 4, 1831, they accepted the act passed by the legislature on March 12, 1831, the material parts of which are printed in the margin. [Note p10]

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At the annual meeting of the corporation on April 28, 1851, the record of the previous annual meeting was amended by adding "the verbal report of the wardens that they had visited the cemetery during the year and it was in good order." On January 1, 1853, the cemetery was closed by an order of the mayor and aldermen of the city of Boston acting as a board of health. At the annual meeting of the corporation on March 28, 1853, it was voted "that the committee on the cemetery be authorized to remonstrate with the city authorities in relation to their late action in reference to the cemetery under the church, with authority to employ counsel to secure the rights of the proprietors of the tombs under the church." On May 9, 1855, the wardens, in behalf of the proprietors of the cemetery, petitioned the board of health to rescind the order of January 1, 1853, for closing it; and alleged in the petition "that said cemetery under Trinity Church was not then and is not now likely to be the cause of any nuisance or injury to the health of any citizens of Boston." At the hearing on the petition the church was represented by the wardens and by counsel, and medical testimony was introduced by them to the effect that the tombs were not then prejudicial to the public health; and the order as to that cemetery was rescinded. There has been no change in "the structure or condition" of the tombs, since 1853.

At a meeting of the corporation on January 16, 1871, one hundred and ten pews were entitled to representation by votes, and it was voted, by forty-seven in the affirmative to twenty-eight in the negative, to apply to the legislature for the passage of an act to sell the land of the corporation, with the church building thereon, and give the purchaser a good title free of any trusts.

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Application was made accordingly, and thereupon the legislature passed the St. of 1871, c. 221, which is printed in the margin. [Note p12]

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On May 6, 1871, these plaintiffs served on the corporation a protest against the acceptance of the statute, on the following grounds:

Because the land was conveyed on conditions limiting its use to church purposes, or upon trusts which require its perpetual use for a place of worship.

Because the statute impairs the obligation of contracts created by the deeds and acts of the church in selling tombs and granting rights of interment and perpetual easements under the church building.

Because the declaration in the statute, that the tombs have become dangerous to the public health, was unauthorized, and is inconsistent with the above recited proceedings of the corporation concerning the cemetery in 1855.

Because its acceptance would impair the obligation of the contracts entered into by the church on accepting the devise of William Price, requiring perpetual care of his tomb under the church building.

The corporation, nevertheless, at a meeting held on May 8, 1871, at which one hundred and twenty pews were entitled to representation by votes, and at which the said protest was read, voted, by thirty-seven in the affirmative to three in the negative, to accept the statute; also voted "that the wardens be authorized and directed to make such contracts and conveyances as may be advisable, for the purpose of effecting a sale of the land and buildings of Trinity Church, provided that such contracts and conveyances be not concluded until the vestry have approved of the same;" and chose appraisers of the pews and tombs, pursuant to the statute; and the said protest was entered on the records of the corporation.

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It was alleged in the bill, and admitted in the answer of the corporation, that Trinity Church is, and was at the time of all the before recited proceedings of the corporation relative to a sale of the land and church building, a parish of the Protestant Episcopal Church for the diocese of Massachusetts, and subject to the canons thereof; that at the last general convention of said Protestant Episcopal Church, held in 1868, a canon was passed that "no consecrated church or chapel shall be removed, taken down or otherwise disposed of, for any unhallowed, worldly or common use, without the previous consent of the bishop, acting with the advice and consent of the standing committee of the diocese in which such church or chapel may be situate;" that the church building in question is a consecrated church within this canon; and that the said proceedings of the corporation have been conducted without the previous consent of the bishop.

E. Blake, for the plaintiffs. The defendants hold the land on a condition and a trust, which will be violated by a sale. In re New South Meeting-house, 13 Allen 497. Canal Bridge v. Methodist Religious Society, 13 Met. 335. Gray v. Blanchard, 8 Pick. 284, 288. Wright v. Wilkin, 2 B. & S. 232. Rawson v. School District in Uxbridge, 7 Allen 125, 130. Parker v. Nightingale, 6 Allen 341. Whitney v. Union Railway Co. 11 Gray 359. Merrifield v. Parritt, 11 Cush. 590, 598. Glass v. Hulbert, 102 Mass. 24, 28. Herman on Estoppel, §§ 211, 229, 376.

No change in the tenure of the land can be made without unanimous consent of the pewholders. Angell & Ames on Corporations (9th ed.) §§ 391, 393, 499 note, 500. Cooley on Constitutional Limitations, 96. Dwarris on Statutes, 498.

The law protects tombs and rights of interment from sale or disturbance. Gen. Sts. c. 28, §§ 6, 12; c. 43, § 90. Commonwealth v. Viall, 2 Allen 512. Beatty v. Kurtz, 2 Pet. 566.

By the terms of Price's will, the corporation was bound to keep his tomb perpetually in its present locality under the church building. Attorney General v. Trinity Church, 9 Allen 422. Boyle on Charities, 45. Masters v. Masters, 1 P. W. 421. Durour v. Motteux, 1 Ves. Sen. 320. Doe v. Pitcher, 3 M & S. 407.

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The St. of 1871, c. 221, which is a private act, is invalid. As to the pewholders, in exercising a judicial power; Cooley on Constitutional Limitations, 91, 274; Dwarris on Statutes, 488, 490; Wilkinson v. Leland, 2 Pet. 627, 658; Norman v. Heist, 5 W. & S. 171; Ervine's appeal, 16 Penn. State, 256 ; Brown v. Hummel, 6 Barr, 86; Talbot v. Hudson, 16 Gray 417; Emery's case, 107 Mass. 172. As to the tombs; Dwarris on Statutes, 444; Cooley on Constitutional Limitations, 595; Coates v. New York City, 7 Cowen, 585; Brick Presbyterian Church v. New York City, 5 Cowen, 538; Russell v. New York City, 2 Denio, 461; Commonwealth v. Tewksbury, 11 Met. 55; Talbot v. Hudson, 16 Gray 417; Dingley v. Boston, 100 Mass. 544, 556; Gen. Sts. c. 28, §§ 8, 9; Simonds v. Simonds, 103 Mass. 572. A private act does not bind third persons by recital of facts; and so the plaintiffs may show that in 1855 the corporation denied the cemetery to be a nuisance or to be likely to become one.

B. R. Curtis & G. O. Shattuck, (J. C. Ropes with them,) for the defendants. The land is not subject to a trust or condition. Wright v. Wilkin, 2 B. & S. 232, 249. Stanley v. Colt, 5 Wallace, 119, 146, 164, 166, 167. Merchant Tailors' Co. v. Attorney General, Law Rep. 11 Eq. 35, 47 ; 6 Ch. 512. Attorney General v. Southmolton, 14 Beav. 357, 361. Shep. Touchst. 122. Chapin v. Harris, 8 Allen 594, and cases cited. Rawson v. School District in Uxbridge, 7 Allen 125, 128.

Even if subject to a trust, the legislature may authorize a sale of the land and reinvestment of the proceeds. Stanley v. Colt, 5 Wallace 119. Rice v. Parkman, 16 Mass. 326. Davison v. Johonnot, 7 Met. 388. Sohier v. Massachusetts General Hospital, 3 Cush. 483, 496. Attorney General v. Federal Street Meeting house, 3 Gray 1. Resolves of 1816, c. 149. Sts. of 1816, c. 106; 1818, c. 161; 1832, c. 42; 1837, cc. 5, 106, 123, 134, 231; 1838, cc. 11, 25, 27, 88; 1851, c. 79; 1852, c. 183; 1853, c. 170; 1854 c. 208; 1855, c. 325; 1859, c. 13; 1863, c. 194; 1868, c. 137 1871, cc. 221, 305.

The owners of rights in the tombs cannot prevent a sale of the church building. Stewart v. Clark, 13 Met. 79. Bryan v. Whistler, 8 B. & C. 288. McCrea v. Marsh, 12 Gray 211.

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Burton v. Scherpf, 1 Allen 133. Windt v. German Reformed Church, 4 Sandf. Ch. 471. Kincaid's appeal, 66 Penn. State, 411. Wood v. Leadbitter, 13 M. & W. 838. In re Brick Presbyterian Church, 3 Edw. Ch. 155. Richards v. Northwest Protestant Dutch Church, 32 Barb. 42; S. C. 11 Abbott Pract. 30; 20 How. Pract. 317. In re Beekman Street, 4 Bradf. 503. Gay v. Baker, 17 Mass. 435. Daniel v. Wood, 1 Pick. 102.

The act of the legislature is sufficient authority for the removal of all the tombs. Brick Presbyterian Church v. New York City, 5 Cowen, 538. Coates v. New York City, 7 Cowen, 585. Commonwealth v. Alger, 7 Cush. 53, 85. Dingley v. Boston, 100 Mass. 544, 556.

Price must be assumed to have contemplated in his will that in the course of time and circumstances it might become necessary to remove his tomb. It was necessary to do so on the rebuilding of the church edifice in 1828-9, and has become so now again. Otherwise, it may be questioned whether the provision in his will for its preservation is not void as tending to create a perpetuity. See Giles v. Boston Fatherless & Widows Society, 10 Allen 355, 357.

Curtis argued further, that the private rights in question were in their very origin qualified by the right to remove; and that the legislature has moreover provided full compensation; citing Fisher v. Glover, 4 N. H. 180, and Daniel v. Wood, 1 Pick. 102; and cited In re New South Meeting-house, 13 Allen 497, 506, 519, 520, as to how far the nature of a trust to a corporation is affected by the word "forever."