MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq.

our laws class them as "religious;" and such, indeed, they are, the church corporation taking, in part at least, the place of the rector and church wardens of the established Church of England (3 Steph. Com. 646, 649, 664, 678), and the presbyterial corporation taking a somewhat similar place with respect to the property of the presbytery. Whether these corporations are civil or elemosynary, in the English sense, is a question not easy of determination, for if we observe, on the one hand, that they are but the civil arm of the church or presbytery to hold and manage their temporalities, we may observe, on the other, that they may, and often do, acquire lands and goods of private dotation, and that the real object of their existence is to employ these lands and goods for the welfare of men, without profit or reward. Interesting as this question is, both in itself and in its bearing upon the mode of visitation, we need not now determine it; for, although we should assume that such corporations are eleemosynary, or, with Chancellor Kent (2 Kent Com. (14th ed.) *274), that they are ecclesiastical, and that, in respect of the lands or estate in question, the original donor, George R. MacKenzie, might have reserved to himself and his heirs visitatorial powers over the trustees of the Scotch Church and over The Trustees of the Presbytery of Jersey City, we have not established the standing of the complainants in this suit.

When a charity rests upon a private endowment, the founder and his heirs become, by the dotation, under the principles already stated, the legal visitors; nevertheless, the founder may delegate his power of visitation, either generally or specially, and no technical or precise form of words is necessary for the appointment of either a general or special visitor. Tud. Char. Trusts (2d ed.) 119; Tud. Char. Trusts (3d ed.) 74; 2 Kent Com. (14th ed.) *301. In Dartmouth College v. Woodward. 17 U. S. 518, 694 (1819), Justice Story, citing English cases, declared that it is sufficient if from the nature of the duties to be performed it can be inferred that the founder intended to part with the right of visitation, and that when the appointment is made in general terms the whole power of visitation vests in the appointce. In Attorney-General v. Talbot, 3 Atk. 662,673 (1747), Lord Hardwicke held the chancellor of the University

1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City.

of Cambridge to be general visitor of Clare Hall, the appointment to be inferred from the fact that branches of visitatorial power had been given to him; that the power to interpret the statutes had been conferred upon him; and that the founder's heir had been excluded.

Furthermore, when the founder has thus appointed a general visitor, and for some cause the latter's functions shall have been suspended, as, for example, when rights and powers shall have so centered in one person that the rule that the same person cannot be both visitor and visited shall come into play, the power of visitation does not, ipso facto, return to the founder or his heirs, but is exercised through the courts of the land, properly invoked. Tud. Char. Trusts (2d ed.) 129, 130; Tud. Char. Trusts (3d ed.) 80, 81; 2 Kent Com. (14th ed.) *303, *304. In Rex v. Episc. Chest., 2 Str. 797 (1728), a mandamus issued to the bishop, as warden of Manchester College, and he returned that he was visitor; in argument, it was urged that the two offices being in the same person, he could not visit himself, and that there was no case shown wherein the founder had once granted the whole visitation out of him, and, on a temporary suspension, it had resulted back; the mandamus was then made peremptory, the court saying "the ground of our interposing is that at present there is no other visitatorial power in being." This case was relied upon in Green v. Rutherforth, 1 Ves. Sr. 463, 471 (1750). In Sanderson v. White, 35 Mass. 328, 339 (1836), Chief-Justice Shaw said that the trustees of a charitable trust are within the superintending power of a court of equity, not as of itself possessing visitatorial power, but as possessing a general jurisdiction over trusts, and that in such cases the interest of the public-or, what is the same thing, of the general and indefinite objects of the charity-would be represented by the attorney-general. In the case last cited, it may be remarked, the right of heirs, as visitors, to maintain a suit in equity was denied (see p. 339).

If, now, we recur to the two deeds of donation, we find that the church, manse and lands were conveyed to the Trustees of the Scotch Presbyterian Church upon trusts which in their primary limitations were for the benefit of the religious society

MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq.

meeting in that church for worship and instruction, one of the provisions being that the church organization should be under the care of the Presbytery of Jersey City and its legitimate Presbyterian successors; and we find, also, that in the secondary limitations it was required that the property should vest in and the trusts be executed by the Presbytery of Jersey City and its legitimate Presbyterian successors. In the use of the words "the Presbytery of Jersey City and its legitimate Presbyterian successors," there seems, at the first glance, some confusion, inasmuch as we have already perceived the twofold aspect of a presbytery as a strictly spiritual body or court, the body usually had in contemplation by the church; and as a presbyterial corporation, the body usually had in contemplation by the courts. A little reflection, however, will dispel the difficulty. A natural person, to whom property, real or personal, is conveyed or assigned upon trust, is none the less a single person or trustee because he has a dual or even a trinal nature, to wit, a spiritual nature, which may be moved by considerations of right and wrong; an intellectual nature, influenced by the rules of worldly prudence and of law; and a physical nature, through which the purposes and resolves of the immaterial being are manifested and wrought out. So, too, we may regard the presbytery as one, yet having at least a dual nature, and we may read the words above quoted as referring to the spiritual body and its particular functions, or to the trustee body and its particular functions, as may be necessary and proper.

Holding together before our minds the law of visitation, as already expounded, and the language of the deeds of gift respecting the functions of the presbytery and its successors, we see plainly indicated that it was the purpose of the donor or founder that the power of visitation should be lodged in the presbytery and its successors, acting as a church court, in things spiritual; acting by and through the trustee body, in things material; that the terms of the appointment being general, the whole power of visitation was vested in the appointees, to the exclusion of the donor and his heirs; and that, although the estate or fund in question has now passed into the legal possession of the Presbytery of Jersey City, by and through the trustee

1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City.

body, so that the power of visitation in the general appointees is suspended, yet thereby the power ver does not return to the heirs of the donor; nevertheless, the trust remains subject to the superintending power of the courts. The exercise of such superintending authority the present complainants, upon their own showing, have no right or power to invoke. They appear to have no immediate interest in the questions involved.

Our last question is the complainants' suit well conceived-has been measurably answered already, but it is now our task to show why the suit is not well conceived, and, incidentally thereto, what proceeding might be proper.

Tyssen, in his work on Charitable Bequests, ch. 39, Tit. Procedure, arranges in four great classes the principal cases in which litigation arises respecting charity property. Firstly, there may be wrongs to be redressed or relief to be sought, for which actions at law or suits in equity might lie, if the charity estates or funds were the private property of the trustees of the charity. In such cases, ordinary actions at law or suits in equity would be maintainable by the trustees against strangers. Secondly, a testator may make a charitable disposition by his will, and questions be raised as to its validity or the proper means of carrying it out. In such cases, the questions could be considered in an ordinary suit to administer his estate, or, occasionally, could be considered in other suits which come before the court under other branches of its jurisdiction. Thirdly, the trustees of the charity might improperly sell or lease the property to some person having a knowledge of the trust. Fourthly, the trustees of the charity might apply the property to wrong objects or appropriate it to their own use. In the third and fourth classes of cases, Tyssen remarks that our legal ancestors appear, for a time, to have felt a difficulty as to who was the proper person to bring a suit. At length, however, it came to be established that the attorney-general, as representing the crown, was the proper person. The suit had to be brought in the court of chancery, because that was the proper court for the enforcement of trusts, and the attorney-general came before it, not as a suitor complaining of an injury done to himself, but as one officer of the crown calling the attention of another officer to the neglect, on

MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq.

the defendants' part, of the performance of a public duty. Hence the pleading was called, not a bill of complaint, but an information; and, as the crown had intervened merely for the protection of some of its subjects, the attorney-general was said to be the informant. If he sued at the relation of others, these parties were termed the relators, and the proceeding was called an information ex relatione. It may further be remarked of these cases that it became established that any person might act as relator in a charitable information without having the least beneficial interest in the administration of the charity, and that if this appeared on the face of the pleading, the latter was an information purely; but if any interest in the relator was set up, the pleading was an information and bill. See, on these points, 1 Dan. Ch. Pr. (4th Am. ed.) 8, 10, 11; Tys. Char. Beq. 514, 517; Tud. Char. Trusts (2d ed.) 148, 149, 156; Tud. Char. Trusts (3d ed.) 89, 315, 316, 317; Story Eq. Pl. (10th ed.) §§ 8,49.

If we turn to our judicial history, we perceive how well that which Tyssen has written accords with our own procedure. Taking up his second class of charity cases, we remember that suits for the administration of the estate of a deceased person are brought in equity, and rest on four grounds of equitable jurisdiction-the execution of trusts, the taking of accounts, the compelling of discovery and the inadequacy of any remedy at law. 1 Story Eq. Jur. (13th ed.) §§ 531-534. Likewise, that among administration suits, or cognate thereto, are those for the construction of wills and the direction of executors and trustees, also brought in equity and resting on two or more of the jurisdictional grounds above mentioned. Under this second class, we may then arrange Norris v. Thomson's Executors, 19 N. J. Eq. (4 C. E. Gr.) 307 (1868); S. C. on appeal, 20 N. J. Eq. (5 C. E. Gr.) 489; Taylor's Executors v. Trustees of Bryn Mawr College, 34 N. J. Eq. (7 Stew.) 101 (1881); Brown v. Pancoast, 34 N. J. Eq. (7 Stew.) 321 (1881); Hesketh v. Murphy, 35 N. J. Eq. (8 Stew.) 23 (1882); S. C. on appeal, 36 N. J. Eq. (9 Stew.) 304; Trustees v. Wilkinson, Executor, 36 N. J. Eq. (9 Stew.) 141 (1882); S. C. on appeal, 38 N. J. Eq. (11 Stew.) 514; Claypool v. Norcross, 42 N. J. Eq. (15 Stew.)