Hoar, J.
This is an information filed by the attorney general, at the relation of the rector, wardens and vestry of St. Anne’s Church in Lowell, to enforce the performance of a trust by the respondents, under and by virtue of which it is contended that a lot of land, with a stone church and parsonage thereupon, ought rightfully to be held and appropriated by the respondents for the purposes of a public charity.
Two principal questions are raised upon the pleadings and agreed statement of facts, which, with others of less and incidental importance, have been twice argued before us, and have been discussed by counsel with a learning and ability proportionate to the magnitude and interest of the cause.
The first of these questions is, whether a dedication of the lot of land, upon which St. Anne’s Church in Lowell was erected, to a pious and charitable use, was ever made by the respondents, so that the land was irrevocably appropriated to such use, and was no longer under their control nor subject to their disposal ? If such a dedication has been made, and has been so far completed that the holder of the legal estate became a mere trustee for the purposes of the charity, it would follow that no subsequent conveyance to any grantee having notice of the trust would be effectual to change the use, and such grantee would take the estate subject to the trust; and therefore if the relators have established the fact of such a dedication, the use is fastened upon the land; as it would hardly be contended that any subsequent conveyance was made without full and ample notice of all the circumstances affecting the title.
[602] It is perhaps not easy, in a case like the present, to state with precision what is meant by a dedication to a pious and charitable use. It seems to be understood by the relators that if the respondents, being the owners of a piece of land, formed the purpose and intention that it should be thenceforward appropriated for a church, and a residence for a clergyman who should officiate in the church, and indicated such intention by acts which were equivalent to a deliberate declaration of such a purpose, although no conveyance of the land or any estate or interest therein was made, it might still be sufficient to create the charitable use. This statement is qualified by the admission that the church must be devoted to the public worship of God, as distinguished from a private chapel, or place of private worship. But the question remains, what, in such a connection, is meant by the public worship of God ? And it may be that some confusion of ideas arises from the ambiguity of this form of expression.
Public worship may mean the worship of God conducted and observed under public authority; or it' may mean worship in an open or public place, without privacy or concealment; or it may mean the performance of religious exercises under a provision for an equal right in the whole public to participate in its benefits ; or it may be used in contradistinction to worship in the family, or the closet. In this country, what is called public worship is commonly conducted by voluntary societies, constituted according to their own notions of ecclesiastical authority and ritual propriety, opening their places of worship, and admitting to their religious services such persons, and upon such terms, and subject to such regulations, as they may choose to designate and establish. A church absolutely belonging to the public, and in which all persons without restriction have equal rights, such as the public enjoy in highways or public landings, is certainly a very rare institution, if such a thing can be found. Religious societies of various denominations, incorporated by special acts of the legislature, or under general laws, or, as is often the case, consisting merely of a company of persons associated together without any corporate capacity, and holding [603] their property through the intervention of trustees, erect buildings as places of worship, consecrate them with religious ceremonies, and make provision in them for the due observance of sacraments and ordinances. In some instances the property in the church is not in the same body of proprietors as that which provides for and controls the religious exercises which are performed in it. Rights of pews and sittings are often created and conveyed, by which the power of the proprietors to dispose of the church may be to some extent qualified and limited. Contracts may be made with particular societies, producing a like limitation. But in the absence of any contract or gift, (and a gift is strictly a contract,) by which the legal or equitable estate of the owner of the fee of the land is itself diminished, it has certainly never been held in this commonwealth, and we do not know that it was ever suggested, that the power of disposing of the property, or of changing the use to which it should be applied, did not remain as absolute and unquestioned as in the case of any other real property. We know no rule of law which would prevent the sale of any church by its owner, and the use of the proceeds for any purpose to which that owner might lawfully appropriate money, merely because it is a church, if the title is subject to no trust, and is unincumbered. When the towns of Massachusetts were both parochial and municipal corporations, it was an ordinary practice to change the appropriation of land from a parochial to a municipal use, or the contrary ; and the fact that the use to which it was first appropriated was a pious and charitable use, or was for the support of public worship, was never held to affect the legality of the change. In the case of Pawlet v. Clark, 9 Cranch, 292, the supreme court of the United States decided that the reservation of land as the glebe for the Church of England, in the grant from the crown in the charter of the town of Pawlet, was itself to be construed as a grant; that no Episcopal church, as a part of the national religious establishment, having been founded in Pawlet before the revolution, the title to the land vested in the town, as being charged by law with the support of public worship; and that it was lawful for the town, with the assent of the legislature, to [604] change the use, and apply the land to the support of schools. We suppose that churches of all denominations have been, certainly they may have been, sold by their owners, notwithstanding their consecration or dedication to religious uses. The consecration is, and is to be regarded as, a religious ceremony, and not as an act qualifying the estate in the land.
But on the other hand, donations, grants and devises have been sustained and executed by courts of equity as appropriations to pious and charitable uses, where the element of public right or interest could hardly be found ; such as for a church, or the support of a pastor or teacher, of a particular and perhaps a very small denomination; or for the benefit of a particular district or territory; or of persons connected with a designated institution; or of a particular employment, age, sex, color,, descent or nation. It would seem, indeed, that there must be some strictly public object of bounty, or such indefiniteness in the designation of those who are beneficially interested, that no persons competent to sue can claim a direct interest in themselves, to authorize a proceeding by information in the name of the attorney general to enforce the due administration of the charity. But the dedication or appropriation to pious and charitable uses may be complete, so that the use will be established and the trust enforced by a court of equity, where the object is not a distinctively public one. And we are of the opinion, that whatever else may be essential to constitute a dedication of land to pious uses, the mere appropriation of it by its owner to the uses of a church, or of public worship, in the sense in which that phrase is usually understood, is not sufficient; that there must be a donation by the owner; some unequivocal act uniting with the intent to divest himself to some extent of the ownership or power of control over his property, and vest an independent and irrevocable interest therein in some other person or body. Attorney General v. Lord Foley, 1 Dick. 363.
In most of the numerous cases which have been cited in the argument, there has been no question in regard to this intent; and the act by which the owner created the trust or the use has been explicit and direct; usually, indeed, a devise or a grant. [605] In some of them the appropriation was made by the vote of a town, or of proprietors, whose title could be conveyed by vote.
The only exception is the case of Beatty v. Kurtz, 2 Pet. 566. In that case there had never been any devise or grant, by which the legal estate in the land had been divested from the original owner. But he had laid out a town, according to a plan on which one lot was marked “for the Lutheran church.” This plan was afterwards, by a statute, required to be recorded, and copies thereof made evidence in the courts of law and equity. An unincorporated society of the German Lutherans had taken possession of the lot, erected a house of worship thereon, enclosed it, and used a part of it as a burial ground; and had continued in the undisturbed and unquestioned possession of it for more than fifty years. No taxes bad been assessed upon it during all this period, and it had been treated by the public authorities as church property. The owner died, having recognized the right of the Lutheran Society to the end of his life; and after his death his administrator sold all his other lots, but made no claim to this. His son and heir, who was a defendant in the suit, had, for sixteen years after his father’s death, not only omitted to take any possession of the land, or assert any claim to it, but had repeatedly admitted in express terms the right of the Lutheran Society. In short, the facts in the case were abundant to prove a legal title, by adverse occupation, if the possession had been in any person or corporation competent to hold the land. Under these circumstances the court held, that there was proof of a dedication of the lot to a charitable use, which a court of equity would execute in favor of a religious society, who for want of an act of incorporation were incapable of taking the legal title. But the decision rests upon the conclusion that the intention of the original owner, not merely to have a church upon the land, but a church belonging to and controlled by other persons than himself, and acts of donation done in pursuance of such intention, were proved beyond all controversy.
We must then carefully examine the situation, objects, relations and conduct of the respondents in the case before us, to [606] see whether sufficient evidence is furnished of such a dedication of their land as the relators allege.
The Merrimack Manufacturing Company were incorporated in the year 1822, for the purpose of making and printing cotton goods in the town of Chelmsford. St. 1821, c. 46. They purchased a large tract of land, and proceeded to dig canals, build factories, lay out streets, and do all that was necessary to estab lish a manufacturing village. Under the Constitution and law of the Commonwealth as they then existed, all persons and cor porations in the several towns were required to contribute to the support of public worship ; and the Merrimack Company were liable to be assessed for this purpose in the first parish in Chelmsford, whose meeting-house was four miles distant from the territory belonging to the company. A large population was soon gathered upon this territory, almost the whole of whom were in the employment and under the direction of the company. There was therefore a direct interest of the company, that some provision should be made for public worship and religious instruction in their own neighborhood; of which they might have the benefit, through its influence upon the morals, good order and intelligence of the people whom their enterprise had assembled.
In order to secure the advantages of public worship, a meeting-house, or suitable place for the accommodation of the worshipping congregation, must be provided. The Merrimack Manufacturing Company were the chief owners of property, and were liable in some form to sustain the chief burden of the necessary expense of erecting such a building. In order to gain the object of appropriating the taxes upon their property, and upon the polls and estates of the persons in their employment, in a manner profitable and convenient to the taxpayers, it was requisite that a new parish or religious society should be established. And provision was made for accomplishing both these results.
On the 27th of December 1822, the directors of the Merrimack Manufacturing Company voted, “ That P. T. Jackson and Kirk Boott be a committee with authority to build a suitable [607] church for the use of the company at Chelmsford, and that a sum not exceeding five thousand dollars be appropriated for that purpose ; ” and on the 15th of April 1824, “ that the agent be authorized to build a church at Chelmsford, and that a sum not exceeding nine thousand dollars be appropriated for that purpose.” These were the only votes ever passed by the company or its directors, in relation to the church, until the sale to the Proprietors of the Locks and Canals in 1826. It is clear upon the evidence, however, that the acts of Mr. Boott, the agent, in the erection of the church and parsonage, and in staking out the land upon which they were erected, and his other acts of a public nature in providing for the support of public worship, were done with the full knowledge and tacit approbation of the company. The first of these votes expressly provides that the church shall be built “ for the use of the company; ” and the second contains no intimation of any purpose to devote it to any other use.
The Merrimack Religious Society was organized on the 26th day of February 1824; and consisted wholly of persons connected with, or in the employment of the company; and its first meetings were held in a building which had been built and used by the company as a school house. On the 29th of April 1824 the election of the Merrimack Company, and of the persons who had joined the new society, to have their taxes appropriated to its support, was duly made known to the first parish in Chelmsford; and they became thereby exempted by law from contributing to parochial charges and expenses in that parish. The new religious society made no contract with a minister, and no provision for his support; but all the arrangements for religious instruction seem to have been made by the company. In the spring of the same year, the lot of land for the church and parsonage was staked out, and the company proceeded to erect a stone church and parsonage upon it. When the church was completed, it was consecrated with the usual rites of the Episcopal church; and this was done in a public and solemn manner, and undoubtedly with the full knowledge and approval of the company. The keys of the church were delivered to the [608] bishop as a part of the ceremony of consecration. The agent of the company then proceeded to let the pews to persons in the employment of the company, or occupying their houses, at an annual rent of $1.50 a seat; the choice of pews being offered at auction ; and all seats which were not thus disposed of, were offered singly at the fixed price. The advertisement of the agent stated that persons securing the choice of pews at the auction would thereby be entitled to the pew they might select so long as they should pay the annual rent and remain in the employment of the company; but that when they should quit said employ, or neglect to pay the annual rent, their pew or seats should be at the disposal of the church wardens. We do not understand, however, that this disposal of the church wardens was authorized for any other purposes than those of the company, or was to continue except at the pleasure of the company. The company made the contract with the Rev. Mr. Edson, and paid his salary, and the other expenses of the church, and reserved from the wages of each person in their employment the sum of $1.50 a year, for the purposes of public worship, whether they attended at this church or not.
We can see in all these facts and circumstances no intention to dedicate the church and parsonage to any other use than that of the respondents, no purpose to create any interest or estate in them in any other body or person, independent, to any extent, of their own control and absolute power of disposal; but the contrary.
The purpose to have a church, that is, a building appropriated to public worship and religious instruction, established in their neighborhood, forever, or for an indefinite future, is apparent. But it is equally apparent that they intended it in the first place for their own use, and to be in their own charge, and under their own control; and there is nothing to show that they intended to divest themselves of the power of alienation, at any future time, when it should seem expedient, to any other persons or organization, who, in the future growth of the community which they were founding, might be competent and willing to take it, upon any consideration agreed upon. The building [609] was a permanent one, adapted for use, and having its principal value to be used, as a church; but this is true of every church built of similar materials. When a large sum of money is expended in erecting a building of a durable character, of little value except for a single purpose, the inference is strong that it is intended permanently to be devoted to that purpose. A structure is to be, permanently, a church; but the question recurs, whose church ? And the answer commonly must be the church of its owners; to be used by them as long as their occasions require, and then to be sold to the best advantage, which would of course substantially confine the range of purchasers to those who would intend to occupy it for a like purpose. This church of St. Anne was designed for a church, and still is, and probably will continue to be a church, though it has been leased and sold, and may be leased or sold hereafter. Its consecration by a religious ceremony, to sacred uses, forever, proves no more than the design of the edifice, in relation to any change of title. What is called the deed of consecration seems to be merely the bishop’s certificate of the due performance of the religious rites according to the forms of his sect. A deed of donation was indeed prepared by the bishop, but not executed by any one; and although it is claimed by the relators that the agent of the company promised that it should be executed afterward, if necessary, no authority is shown from the company to him which would authorize him to make such a promise, or render it binding upon them. It is besides to be observed, that this form of a deed, thus prepared, contains a statement that the church is “ to be ever hereafter held sacred for religious uses and divine worship, according to the liturgy of the Protestant Episcopal Church ; ” while the letter to Mr. Edson, entered upon the records of the company as a statement of the contract made with him by their agent, expressly states that the company may wish to substitute some other form of worship, and provides for that contingency.
It may be noticed in this connection, that the correspondence between Mr. Edson and Mr. Boott, just referred to, is with Mr. Boott as the agent of the company. He agrees, as the agent of [610] the company, to pay the salary, and furnish the house to the minister; the contract is the contract of the company; and Mr. Edson, addressing him in reply as the agent of the company, agrees “ to become your minister,” that is, the minister of the company, upon the terms proposed. The Merrimack Manufacturing Company then not only owned the land and church, but hired and paid the minister, and regulated the disposition and occupancy of the pews and seats. There was an organized society, competent to take and hold any estate or interest of which the company might choose to divest itself; and if it was the purpose of the company to alienate any of their property for religious uses, there is no apparent reason why that purpose should not have been executed. Especially if they intended to dedicate their property to the use of these relators, the simple and ordinary forms of a conveyance would have accomplished the object.
But the company were themselves a permanent body, able to execute their charitable purposes from time to time, as prudence or generosity might dictate, and with such modifications as circumstances might require, without parting with the dominion over their property. We think they did not by any act relinquish this dominion, and that there was no dedication of their land to pious or charitable uses before the conveyance to the Proprietors of the Locks and Canals by the deed of May 3d 1826.
The matter of the parsonage stands on still stronger ground than that of the church, as the respondents had agreed by their contract with the minister to furnish him a house; and there were no separate acts or votes respecting it which would make the case of the relators in any respect better.
It would be an interesting question to consider, whether, if there had been before the date of the deed any such dedication to the general object of the support of public worship, as the relators claim, it would not, according to the decisions in Pawlet v. Clark, before cited, and in Brown v. Porter, 10 Mass. 93, have enured to the benefit of the First Parish in Chelmsford, and not of these relators; but the conclusion to which we have come renders its discussion unnecessary.
[611] The Merrimack Manufacturing Company having on the 3d of May 1826 a clear title to the land with the buildings upon it, unincumbered by any trust, or any legal or equitable interest in these relators or others, their deed to the Proprietors of the Locks and Canals conveyed to that corporation a like unincumbered and perfect title; and it remains to consider the effect of the deed of reconveyance executed by the Proprietors of the Locks and Canals on the same day, and as a part of the same transaction. The relators contend that this deed created a base fee in the Merrimack Manufacturing Company, charged with a trust to hold the estate for the use of divine worship and the residence of a minister of the gospel forever. The claim of the respondents is, that it conveyed an estate in fee upon condition subsequent, which could only be divested by a reentry of the grantor after condition broken; that a release of the condition would make it a fee simple absolute; and that no trust was attached to it.
It is perhaps hardly material to determine whether the clauses in the deed which refer to the appropriation of the land to certain uses, and fix the rights of the parties in case such appropriation should cease, are to be construed as creating a limitation, or a condition, if it should appear that no trust was established ; because the deed of release of the Proprietors of the Locks and Canals of May 22d 1830, by which all “ the provisions and conditions ” in the former deed were released to the respondents, would seem to be clearly sufficient to perfect their title, and to extinguish the interest of the Proprietors of the Locks and Canals, whether that interest were regarded as a right to reenter for breach of a condition, or a possibility of reverter upon the happening of the event which constituted the limitation. And the court are all of the opinion, for reasons substantially like those which have been given in considering the question of dedication, and from a careful examination of the terms of the deed, that no trust was intended by the parties, or constituted by the conveyance. The Proprietors of the Locks and Canals, m their relations to the new community, which became the city of Lowell, and in their objects and motives for providing for the [612] support of public worship, were substantially the successors of the Merrimack Manufacturing Company. The words “in trust” are not found in the deed, although they are the usual and well known phrase when the creation of a trust is designed ; and we think there is nothing in the circumstances or relations of the parties to show that they contemplated a beneficial interest in the estate to be enjoyed by any individual or corporate body, or by the public at large, beyond their own administration and control. And although there are apt words in the deed to create a limitation, and sufficient for that purpose if they stood alone, we think that all its parts taken together do create an estate upon condition, and that by such a construction every portion of the deed is made effective, and its obvious purposes are most completely executed.
The distinction between an estate upon condition, and the limitation by which an estate is determined upon the happening of some event, is, that in the latter case the estate reverts to the grantor, or passes to the' person to whom it is granted by limitation over, upon the mere happening of the event upon which it is limited, without any entry or other act; while in the former the reservation can only be made to the grantor or his heirs, and an entry upon breach of the condition is requisite to revest the estate. The provision for reentry is therefore the distinctive characteristic of an estate upon condition; and when it is found that by any form of expression the grantor has reserved the right, upon the happening of any event, to reenter, and thereby revest in himself his former estate, it may be construed as such. Shep. Touch. 121, 122. Lit. §§ 329, 330. 4 Cruise Dig. tit. 32, c. 25. 4 Kent Com. (6th ed.) 125, 126. The words “provided,” “so that,” and “ upon condition that,” are the usual words to make a condition; but to say, that if a certain event happen the grantor may reenter, is equally effectual.. And the reason of this rule of construction is, that the stipulation for a right of reentry would be senseless if the deed were construed to create a limitation; because the estate vesting upon the mere happening of the event, the right to enter would of course follow with all other rights of ownership.
[613] The lease of the church, following so soon the deed from the Proprietors of the Locks and Canals, the release of the conditions in that deed by them, the subsequent sale of the church, and the resumption of the use of the parsonage without objection, acquiesced in for so many years, have properly no influence upon the decision of the cause. The intentions of the parties, and the effect of their contracts, must be determined by their acts preceding the written instruments of conveyance, and by applying the legal rules of construction to those instruments. But it is certainly noticeable that the deeds of May 3d 1826, the lease of November 3d 1827, and the release of May 22d 1830, are all executed by Mr. Boott, the original agent of the Merrimack Manufacturing Company, upon whose acts and intentions when acting as their agent so much depends, and who must have known the purposes of the respondents so well. And it is a satisfaction to know, in looking to see whether substantial justice is afforded by the decision of the court, that the conclusions to which we have arrived, and the construction which the law requires us to give to the deeds and contracts before us, are the same which appear to have been understood by all parties in interest to be correct at the time the transactions occurred, and which were acquiesced in and acted upon by them for a period of more than twenty years.
The decree to be entered in this suit must be
Information dismissed with costs.