Attorney General v. Proprietors of the Meeting-house in Federal Street

69 Mass. 1

Opinion

The opinion was delivered at March term 1855.

Shaw, C. J.

This cause has been very elaborately, and, we may add, ably and ingeniously argued, and the court have been gratified and greatly aided and enlightened by the argument. Yet we cannot avoid feeling a great anxiety respecting the result, principally on the ground that the questions are to a great extent new in this commonwealth, and that the decision may deeply affect important rights, not only of these parties, but of others, as a precedent, in matters of vital importance to the best interests of a civil and religious community. Our difficulty does not arise from want of great learning and research, and a citation of numerous cases. Our perplexity rather arises from the great abundance of cases which have been decided in Great Britain, and in the other states, having analogies more or less direct to the subject. They are numerous, and indicate an amount and scope of legal learning and judicial discrimination which require much time and study to enable us to understand all their bearings. But, considering to what an extent the ecclesiastical institutions of Massachusetts have been modified by law and long established usage, we fear that we cannot, in a case like this, adopt the judicial decisions of England and other states, or the reasons and principles on which they are founded, with the confidence with which we are glad to repose on them in most other cases drawn into controversy in our courts.

The great subject of inquiry is, what were the purposes and intentions of those persons who founded and provided a place for public worship in Long Lane, in 1730-35; what were their acts and doings; how were such acts affected by the law of the land as it then stood; and what were the relative rights and duties of the grantees named, of the other members of the body associated to provide a place of public worship, and of other persons, in the lot of land then conveyed as the site of a meeting-house.

The law, as it existed at that time in the State generally, and in the town of Boston in particular, must be resorted to, to ascertain the character and legal effect of the transaction. Whatever may have in fact been the tone of public sentiment in the earliest times of the colony, in regard to religious liberties and privileges, it is. believed that the legislation, especially in the celebrated “ Body of Liberties ” set forth in 1641, was somewhat in advance of public sentiment on this subject. Indeed, whatever spirit may have dictated the severe laws against the Quakers, Anabaptists and othei-s, those laws do not profess to be levelled against the articles of faith of those obnoxious sects, but against disorderly acts and practices tending to an interruption of the peace and order of the colony. The charge against the Quakers was not alone for speaking and writing blasphemous opinions, but as a sect despising government and the order of God in church and commonwealth.

But whatever may have been the prevalent sentiments or laws of the earlier settlers of the colony, which may be rather matter of curious speculation than of present practical importance, we have no doubt, that in 1730, nearly a century after the settlement, and nearly forty years after the adoption of the Province Charter, a great change had taken place, and a practical toleration, if not established before, was in full operation. Indeed, it was but a few years after this, in 1757, that an act was passed, conferring on the Quakers and Anabaptists, before denounced, the special privilege of being exempted from taxation for supporting ministers and building meeting-houses. Anc. Chart. 782. And this act is introduced by a preamble, reciting that several acts previously granting the same exemption to these sects, had expired. From this we derive the conclusion that they bad been so exempted for a considerable time previous.

We are aware of no law, which at that time (1735) prohibited the profession of any mode of Christian faith, or any form of Christian worship, conducted honestly and soberly ; but, on the contrary, several religious societies, of different denominations, had then been formed, and so far as the profession and inculcation ff doctrine was concerned, the principle was substantially adopted, which was afterwards embodied in the constitution by the third article of the Declaration of Rights.

But, in modern times, the provision of a place and other means of public worship, according to Protestant ideas, implies the assembling of a body of persons together, for the general services of public worship, and for religious instruction; and as connected therewith, a select body, formed and connected together by covenant, who constitute a church in full communion, invested, among other things, with the especial duty and privilege of administering the Christian ordinances. Assuming that such was the purpose of those, who associated to build a meeting-house in Long Lane, it is proper now to consider how the law stood in 1730 in regard to parochial as well as ecclesiastical relations, in order to understand the rights, duties and powers of parishes and religious societies, in the Province of Massachusetts.

From the earliest settlement of the colony, the territory, as fast as it was granted out to actual settlers, was divided into territorial parishes, and each parish was a corporation. In many cases, towns constituted parishes ; that is, each town was a corporation, combining all the powers and functions both of a parochial and of a municipal corporation, and, under one organization, provided for the erection of meeting-houses, the support of public worship, and incidental expenses. Large towns were sometimes divided into two or more territorial parishes, in which case, each parish was a corporation, with its proper organization and officers. It was made the duty of these corporations, as a civil obligation to be enforced by law, to provide for the maintenance of public worship, and the support of suitable ministers and religious teachers. One of the earliest of the provincial statutes imposed this duty upon towns, manifestly understanding that in that statute the term “ town ” is used as synonymous with “ parish,” because, in the great majority of cases at that early period, towns were parishes. St. 4 W. & M. (1692,1 Anc. Chart. 243. At the succeeding session, an act was passed, partly repealing and partly amending and explaining this act. It quotes a passage as contained in it, which I do net &zd in the act as published, to this effect, “that every minister, being a person of good conversation, able, learned and orthodox, that shall be chosen by the major part of the inhabitants in any town, at a town meeting, duly warned, shall be the minister of such town, and the whole town shall be obliged to pay towards his settlement and maintenance, each man his several proportion thereof.” The statute containing this recital then proceeds, upon further consideration of this section, and the impracticableness of this method for the choice of a minister in divers towns, where there are more churches than one, to repeal the foregoing section in said act, confirming the other parts of the act; and then provides that each respective gathered church in any town or place within the province, that shall at any time be in want of a minister, shall have power, according to the word of God, to choose their own minister; and the major part of such inhabitants as do usually attend on the public worship of God, and are by law duly qualified to vote in town affairs, concurring with the church, the person thus elected and approved, shall be the minister and all the inhabitants and ratable estates lying within such town or part of a town, or place limited, (territorial parish,) shall be obliged to pay in proportion. Anc. Chart. 254, 255. There is a proviso annexed to this section which I shall have occasion to refer to hereafter, and therefore will cite it here: “ Provided, that nothing herein contained is intended, or shall be construed to extend, to abridge the inhabitants of Boston of their accustomed way and practice as to the choice and maintenance of their ministers.”

It will be perceived by the above act, that when a town constituted a parish, or part of a town constituted a territorial parish, the minister was to be elected by the concurrent act of the church and of the inhabitants ; to this a slight modification was made, a year or two after, providing for the case when the congregation would not concur with the church in their choice. St. 7 W. 3, Anc. Chart. 286.

From this view, it will appear, that from a period immediately after the adoption of the Province Charter in 1692, if not earlier, the people composing a parish and religious society, though bound as a civil duty to support public worship and provide for religious instruction in some form, yet were under no restraint as to what denomination they would assume, what modes of Christian faith they would embrace and inculcate, or what form of protestant worship they would adopt and follow. There was not only a full toleration by the law in this respect, but all protestant denominations were placed on an equal footing, in regard to the rights of conscience and property, in religious concerns.

We must now consider what were the legal rights of property in church edifices, the lands on which they stood, and lands incident to and connected therewith, including a house for the minister. So long as towns remained of moderate and convenient size, and acted in the double capacity of town and parish, or where a large town was divided into two or more territorial parishes, (which was the condition of the whole state except Boston,) the rights of property were plain. The legal seizin of the entire realty was in the corporation. A town or parish was a corporation, capable of taking and holding real estate, and there was no difficulty therefore in saying that the fee of the land was in the corporation. But they hold this property to a special use, that of the support of public worship; and as the interests of the corporation, and of all its members, would be generally the same, there would seldom be any question about the rights of property. But there is another species of property connected with these church edifices to be considered, that of pews. We believe it was the practice in most of the territorial parishes, as well as in poll parishes hereafter to be mentioned, to appropriate a part of the area of each church to the erection of pews, which were usually sold, and the proceeds applied to the cost of the erection, or to the settlement and support of the minister, or other parish purposes.

The right to a pew, except in Boston, was regarded to many purposes as real estate, in which the proprietor had a freehold, for the invasion of which, a writ of entry, trespass quare clausum and other legal remedies, adapted to vindicate rights to real estate, were, and ever have been in constant,use. But in its nature it was a freehold and estate of peculiar character, held in subordination to the corporation, who are the sole owners of the soil.

So where poll parishes were established, they were uniformly constituted corporations by special act of incorporation, such an act was an enabling act, creating a corporation having perpetual succession, and capable of holding real estate to a limited amount; and in such case the fee was in the corporation, to the use of pewholders and other members. Gay v. Baker, 17 Mass. 435.

But whatever may have been the law generally in the colony and province, by which the territory was divided into parishes, and every person dwelling therein was required to contribute to the support of public worship, if not specially exempted, it never did apply to the town of Boston. Probably because its numbers increased so rapidly, and it was so early found that more than one religious society would be necessary within its limits, it is believed that no attempt was ever made to organize the town as a parish, or to divide the territory into parishes. Religious societies were merely voluntary, and were freely formed and maintained by persons associated together for the purpose; and of. course they were formed upon such views of doctrine and discipline, and professed and inculcated such religious doctrines and tenets of belief, as their own consciences and views of Christian truth dictated. We have already cited the provincial act of 1693, exempting the inhabitants of Boston from the operation of a general law, and by implication giving a sanction to their “ way and practice ” as to the choice and maintenance of their ministers.

The statute of 28 G. 2, (1754,) though mainly designed for another purpose, that of giving limited corporate powers to the deacons of Congregational churches and to the wardens of Episcopal churches, to take and hold gifts to pious uses, contains a separate section upon this subject. The preamble recites, that “ the several congregations in the town of Boston, and some others under the like circumstances, are not by law enabled by vote to raise money for the support of the ministry and public worship among them; ” and the act provides that in such cases, . where there is no adequate provision by law, (that is, we suppose, where not incorporated by law with the power of taxation,) they may, at a public meeting of proprietors of pews, or persons to whom they are allotted, called for that purpose, cause the several pews to be valued and taxed, the money to be applied to the support of the ministry and other necessary charges. It also provides that such proprietors may choose a clerk, and treasurer and collector. This last clause, to a certain extent, vested such body of proprietors with corporate powers, where they were not incorporated by law. Anc. Chart. 607.

Without multiplying authorities, we take it to be perfectly well established as matter of history, that the inhabitants of Boston never were compellable by law to pay taxes for the support of public worship ; that all religious societies were formed by voluntary association of those generally entertaining similar religious views in faith and practice. And it is believed that in many instances, if not the majority, these associations were not incorporated as poll parishes. At the early part of the present century, several religious societies were specially incorporated, probably for greater caution, though they had been in existence a great many years, and some of them from the earliest settlement of the town. For instance, the New North, June 22d 1803, one of the oldest; the New South, June 23d 1803, which had been in existence nearly a century. In other instances new and old societies were invested with new and additional corporate powers, as the First Church, worshipping in a meetinghouse called the Old Brick, which was actually the first religious society established in Boston, and the church in Brattle Street, by one and the same act, February 22d 1803. This last contains a clause requiring these societies, in all proceedings touch ing taxation, to conform to the laws in being, governing taxes of that nature in the town of Boston, saving the rights of proprie tors of pews. This provision implies some peculiar laws in force on this subject, in Boston.

Supposing then that most of the old societies of Boston were formed by association, without any act of incorporation, and there being no other body capable in law of taking and holding the fee and legal estate of the land to be used for a church edifice and its incidents, the natural expedient which would present itself, when an agreement had been made by an unincorporated body of persons, associated together to form a new religious society, with the owner of the land, for its purchase, to take a tleed to and for the use and benefit of the whole, in the names of a few, who in their natural capacity coúld take and hold i.he legal estate in fee and in trust for those who had thus associated to form such society, and who had raised the money for that purpose. In such case, the trustees would hold nearly the same relation to the pewholders, the contributors and the members of the society so associated, as the corporation, whether of a territorial or poll parish, would hold to the members ; the legal estate would be in the trustees, and the entire use and beneficial interest in the members of the society. Such trustees might, and naturally would be, members of the association, most likely active members, and as such would have an equal share in the use and beneficial interest with other members.

Such being the parochial and ecclesiastical condition of the Province of Massachusetts, and especially the town of Boston, in 1730, and such the circumstances under which the society in Long Lane, now of the respondents, was formed, we proceed to examine the acts done and the facts disclosed by the evidence, in order to judge of the character of the institution there founded.

The first question, and that which lies at the foundation of this prosecution, is, whether this transaction constitutes a public charity.

After this lapse of time, and in the absence of full records, we must depend, for the facts, mainly on the deed of Little to Glen, and the award of referees in pursuance of which it was made, the recitals contained in these documents, and the inferences of fact to be fairly drawn from them.

From these documents, we think it is clearly proved that John Little, George Glen and many other persons had associated and united themselves together to erect a Presbyterian meeting-house, for public worship, as early as 1729 or 1730; that they had agreed with Deering for the lot of land, at the price of £550 nearly two thousand dollars; that they agreed with John Little, one of their number, that he should take a deed from Deering in his own name, but for the benefit of the society; that he should proceed and make contracts for labor and materials, and erect a suitable house; to enable him to do which, the money raised by the associates, and probably the notes or obligations of some who did not pay money, were placed in Little’s hands, as the common agent. After four or five years, and probably after the meeting-house was nearly or quite finished, and after pews had been formed, and some of them, if not all, sold or otherwise appropriated to some of the members of the society, a controversy arose, between Little on the one part and the congregation on the other, in regard to their rights. We say between Little and the congregation, because, although the award itself states it to be between Little on the one side, and Glen and others, nine in all, on the other, yet the matter of the award shows it to have been a controversy with the congregation, concerning his accounts as their agent. Not being a corporation, they could not legally act in an aggregate name as a corporation; and their trustee being the adverse party, they must necessarily act by some of their own members for the rest. It is to be regretted that the submission under which the award was made cannot be produced; as it is, we can only read it by the reflected light appearing in the award.

The award first directs that said Glen and others, naming the nine, within the space of two months, pay or cause to be paid to Little the sum of ¿£140, 5d., which shall be in full of his demands against the congregation belonging to the Presbyterian Meeting-house in Long Lane in Boston, “ with respect to his attendance upon and looking after the building of the said meeting-house, and all his accounts of charges and disbursements about the same, and the land whereon it stands, as also touching and concerning the said Little’s purchase of the said land of Henry Deering, Esq.” It appears, therefore, that he had purchased the land, in his own name, at £550; that he had attended to the building of said meeting house, and charged his disburse ments about the same, and also his disbursements for the land. Supposing the cost of the house two or three times that of the land, £1200 or £1500, and the balance due to him £140, it follows that he had received the difference in cash, or securities from which he had realized cash, from the various members of the congregation, or from other sources, as gifts to the congregation.

The referees next award that, upon the payment of said sum of £140, 5d., Little shall make “ unto the congregation ” a good lawful deed' of conveyance of the land, meeting-house ana appurtenances, “ to hold the same unto the said congregation, according to the tenures and after the same manner as the Church of Scotland hold and enjoy the lands whereon their meetinghouses are erected."

They next award that the right and interest which Little has in the meeting-house is the pew and seat therein, now in his possession, “ which is to remain good to him forever, in the same manner as the rest of the proprietors in the said meeting do hold and enjoy their respective rights and interests therein.”

They then award that Little shall assign to Glen and others, the nine named, as they are a committee chosen and appointed by said congregation for managing the prudential affairs thereof, all the outstanding debts due to the congregation, amounting to £54, 5s., and they divide the costs between the parties.

It is to be remembered here, that by the award, the deed was to be made to the congregation, the referees probably not being aware that by the rule of law, existing then as well as now, a conveyance could not be legally made to an unincorporated body of individuals, by an aggregate name; and that such a deed would be inoperative and void.

Another thing to be observed is, that, at the time of the submission and award, the congregation were represented by a com mittee of nine of their number, as a prudential committee; and at the time of the conveyance, two months afterwards, four only were representing the congregation, and acting as a prudential committee, showing, in both cases, that the persons named were agents, and the congregation were the party in beneficial interest.

We then come to the conveyance in the form of an indenture, made June 9th 1735. It is made between John Little on the one part, and Glen, Hall, Shaw and Knox, “ for themselves and as a committee chosen and appointed by the rest of the congregation belonging to the Presbyterian Meeting-house in Long Lane in Boston, for managing the prudential affairs thereof,” on the other part. The deed then, by apt words, in consideration- of ¿£140, 5d., the precise amount of the balance awarded Little, conveys to Glen, Hall, Shaw and Knox, the land, (bounded and described,) also the meeting-house on the same, with all privileges ; reserving to Little, the grantor, his heirs and assigns, the pew and seat therein then in his possession, to remain good to him, his heirs and assigns forever, in the same manner as the rest of the proprietors do hold and enjoy then respective rights, which right was ascertained by the award of Sheafe, Boutineau, and Vans; to have and to hold the land, meeting-house, premises and appurtenances (saving and reserving as aforesaid) to said Glen, Hall, Shaw and Knox, “ in their capacity aforesaid, and to their successors in that trust and office forever, but to and for the only proper use, benefit and behoof of the said congregation, (according to the tenures and after the same manner as the Church of Scotland hold and enjoy the lands, whereon the meeting-houses are erected,) forever, and for no other use, intent or purpose whatsoever,” with warranty.

We have now to inquire what effect this conveyance had upon the rights of the respective parties. In the first place, it seems quite clear that it transferred the premises, and vested the entire legal estate in the four grantees. We say nothing at present as to the quantity of estate, whether for life or in fee; we shall consider that point hereafter. A good legal estate passed from the grantor, and vested in the grantees. But it was so vested in them to and for the only proper use, benefit and behoof of the said congregation forever, and for no other use, intent or purpose whatsoever. This created an estate in trust; for though the words “ in trust ” are not used in this deed, yet, as the habendum is to them and their successors in that trust, it sufficiently describes them as trustees by implication. But further, and this puts the matter beyond doubt, where property is conveyed to the use of a party not capable of taking the legal estate, it cannot vest in the cestui que use, by the statute of uses; therefore, by a well known rule of construction early engrafted on the St of H. 8, it constitutes an estate in trust in the first takers. They therefore took an estate in trust for the congregation. Though the term congregation, as in the present case, designates a number of persons associated, but not incorporated, so that they are incapable by law to take a legal estate by such conveyance, yet it is a good description of persons who may be cestuis que trust, and beneficially interested. In general, it may be said that the congregation, before the sale of pews, consists of those who have in fact united together, and by mutual agreement under seal, or by any less formal mode, by the subscription of papers or otherwise, have agreed to form a religious society, and have contributed, or bound themselves to contribute, towards the cost of buildings and the support of public worship. As agreement and union are the essence of such voluntary religious societies we are not prepared to say that persons not able to contribute to the pecuniary means of such society, but otherwise capable of being useful and desirable associates, might not be received as members. But as there is nothing to show that there were any persons included in this congregation but those who had contributed or promised money, it is not necessary to go further than to determine that those who have thus united and contributed shall be deemed members. Where pews have been sold, or have been assigned and set apart, to be held in severalty, this is conclusive evidence that such pewholders are members of the congregation. If such pews are sold and assigned to contributors, (and most of them probably would be, because it is a probable conclusion that the largest contributors and the most efficient promoters of the enterprise would be likely to take pews,) they would of course be members. But even if sold to strangers, it must be in pursuance of some by-law or regulation agreed upon by the actual associates and members of the congregation, and therefore such sale of a pew would be conclusive evidence of their assent to accept and receive such purchaser of a pew as an associate and member.

The right to a pew, although everywhere in Massachusetts it is regarded as property, and, in every part of the State except Boston, as real estate,

Footnotes

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* and in Boston as personal estate, yet it is property of a peculiar nature, derivative and dependent. It is an exclusive right to occupy a particular portion of a house of public worship, under certain restrictions. The owner of a pew is not a tenant in common of the estate on which the house stands; the legal estate is in the corporation, if the religious society be one, or in the trustees, if the property be vested in them to the use of the congregation, forming a religious society for public worship. Whoever else, therefore, may be, or claim to be, cestuis que trust, the- holders of pews are clearly entitled to stand in that relation. For whom then were these grantees constituted trustees ? The answer is, for a body of individuals who had united together and contributed of then means to purchase land and erect a house of public worship—a body of individuals as capable at that time of being designated, ascertained and identified by proof, as if they had been actually enumerated in the deed. It is no answer to this that now, after the lapse of over a century, when all parties are long since dead, and no records can be produced, it would be difficult to ascertain and prove who were then designated under the name “congregation.” Nor is it material. The character of the conveyance must be ascertained by the facts as they existed at the time it was made. And it appears to us that it was a conveyance in trust for the sole use of a religious society, consisting of persons who had united to form a religious society, had contributed the whole amount necessary to purchase the land and build the house, and had caused a conveyance to be made to several persons, to hold in trust for them, because they were incapable in law to take the legal estate to themselves as an aggregate body. It was a mere naked trust; the whole beneficial interest was in the contributors, the congregation; and even the reservation to Little himself was not a reservation or exception out of the fee, but it implied a previous conveyance or assignment to him, as a contributor and member of the congregation, of that peculiar property which one may have as the holder of a pew, and manifested an intent not to relinquish that right, which the general words of the deed might be otherwise construed to do. If all the contributors had at that time taken pews, then it would be strictly in trust for pewholders. But if otherwise, it would not affect the character and legal operation of the deed, because it would still be for certain persons, capable of being ascertained and identified; not so clearly, perhaps, as if they had taken deeds of pews, which .are usually recorded; but quite as effectually, it may be, by records, or books in the nature of records, then kept and preserved, by proof of subscription and payment, or otherwise.

The term “ said congregation ” is a good designatio persona-rum,, connected, as it is, with the introductory part of the indenture, describing them as the congregation belonging to the Presbyterian Meeting-house in Long Lane, and with the general tenor and effect of the indenture. By the award, it was directed that the conveyance be made to the congregation ; and the fair presumption is that when they came to be advised by the conveyancer that such a deed would not be valid in that form, that was done which all parties deemed equivalent—a deed was made to some of them personally, being the prudential committee, to the use of the whole.

The establishment of companies to hold real estate, for purposes not religious, "where the legal estate is vested in a corporation or trustees, but the whole beneficial estate is vested in others, is a well known form of taking a title to property. In all cases of moneyed corporations, for manufacturing, banking and other purposes, the whole legal estate is in that creature of law called a corporation, but the whole beneficial interest in members or stockholders. So when companies have been formed Without incorporation, consisting of considerable numbers, for the purchase of wild lands, with a view to a resale or other like purpose, the grant is made to trustees in trust for several members designated, and a certificate of such right to an aliquot part of the beneficial interest is usually issued by the trustees to the several parties, indicating what aliquot part each holds in such trust property or beneficial interest; and such certificates are well understood as muniments of property.

We consider the case of a .grant to a corporation or to irustees, for the uses of a religious society, analogous in this; that whilst the whole legal estate is in the trustees, the whole beneficial interest is in the members. This is usually, and may, by proper terms of agreement amongst the associates, be exclusively manifested by deeds of pews, so that the whole beneficial interest is in the pewholders. Or, as the holding a title to a pew is conclusive evidence that the holder has a share in the beneficial interest in the estate held by trustees for the use of the congregation, and these shares may include the whole interest, and after a lapse of time no other person can produce evidence, of having any such beneficial interest, the trust will be held exclusively for the congregation composed of pewholders and their families, not because, by any general law or ecclesiastical arrangement, pewholders have a right to' control the use of the meeting-house, but because, in the particular case, the property was conveyed in trust for the associate body who formed the congregation. The pewholders in such case show their title to a share in the beneficial interest by their deeds, no other person exhibits any such proof, and therefore the pewholders are the only beneficiaries.

o Indeed, in later times, especially in Boston, most of the acts of incorporation of religious societies have in terms incorporated the proprietors of pews, which is a convenient and sufficiently certain designation of the persons to be incorporated and to hold as members. All the cases hereinbefore cited and many others are of this character. The effect of this is to make all those who are holders of pews, for the time being, members, so that when they become holders of pews they become corporators, and when they cease to hold pews they cease to be corporators. It may be proper to add here that it is competent for such a society to make such reasonable by-laws and regulations, respecting the sale and purchase of pews, as they think their interests as a re ligious society may require. Ánd it is usual for such societies to make such regulations in regard to the sale of then- pews, and express them in the deeds they issue, as to prevent an indiscriminate sale of pews, and thus retain some right to elect and determine whom they will associate with, or rather who may associate with them. Otherwise, if it were free to anybody to purchase pews without restraint, a number of people of another denomination, finding pews low, might purchase them and become a majority, and thus turn the proper congregation out of their own house,

One other remark it is necessary to make respecting the character of this conveyance. It will be perceived that, in the conveying part of it, the grant is to Glen, Hall, Shaw and Knox, omitting the words “ heirs and assigns,” and in the habendum it is to them “ in their capacity aforesaid, and to their successors in that trust and office forever.” Here, by the strictest construction of law, though the property could not go in succession, and the limitation to successors were void, yet the grant to the four individuals named would be a good conveyance to them for their lives. Then we are to apply the well established rule of law, that when an estate is granted to one or more, without words of limitation to heirs and assigns, in trust, and the trust is of such a nature that to support and carry it into effect requires a legal estate in the trustee for a duration which will or by possibility may exceed the life or lives of the trustee or trustees, the law will construe the estate to be a fee. Cleveland v. Hallett, 6 Cush. 406. Here the trust was to continue .indefinitely ; it might be long beyond the lives of all the trustees. It was therefore a conveyance in fee,’ and no reversion or other scintilla of legal interest remained in the grantor. It was a conveyance in fee to Glen and others, in trust for the use of that congregation.

The court are unable to perceive in this transaction any of the characteristics of a charitable foundation, to be vindicated by the public, through the attorney general, on the ground that those who ought to reap the benefit of it are incapable of vindi eating their own rights.

In the first place, it is entirely wanting in the quality of gift, donation or gratuity, from anybody to anybody. Deering was paid a full consideration for the land by Little. Little was paid a full consideration for the land and building and all incidental expenses, including his own services “ with respect to his attendance upon and looking after the building of the said meetinghouse.” It was not a purchase by the grantees, and a donation from them to the congregation ; for they acted in a representative capacity for themselves and the congregation. Besides, the award was to make a deed to the congregation, thereby showing that the whole consideration moved from them; and the probability is, that, in proceeding to carry that award into effect by a conveyance, they were informed that a deed in those terms would not be good, because they were not a corporation; but a deed to some, in trust for the congregation, would accomplish the same thing in legal effect, and be a substantial performance of the award.

Nor can we perceive any uncertainty in the persons who took an equitable interest in this grant; they were persons capable of asserting and vindicating their own equitable rights in a judicial tribunal. Even if it constituted a dedication to a special Presbyterian religious use, as amongst themselves, so that each one should be bound to all the rest, and all to each one, that it should not be diverted from such religious use, a trust of which we say nothing at present, it would not constitute a charity; because it is quite definite and certain who were the persons beneficially interested in such use; and they, and they only, could claim its execution in a court of justice or elsewhere.

And we do not perceive in it any public, general or indefinite object, such as preaching the gospel, or any particular form of the gospel, to the poor generally, or to any particular class of poor, or to any persons gratuitously who might, at any future time, choose to attend on such ministrations at that place. No such design or purpose is stated or intimated. On the contrary, it was to constitute a religious society, for the use of the members and proprietors who might be pewholders, or of them with other members, according to circumstances.

But it was urged in argument that it is usual in all Christian societies and places of public worship, that all persons who choose may in fact attend, and that it is usual to set apart free seats, and so the public are benefited. The fact is undoubtedly so, that persons who desire it may usually attend; but it is matter of courtesy, and not of right. On the contrary, any religious society, unless formed under some unusual terms, may withhold this courtesy, and close their doors, or admit whom they please only; and circumstances may be easily imagined in which it would be necessary to their peace and order that they should exercise such right. Were it otherwise, and were the occasional permission of all persons to enter churches, and listen to preachers, to be regarded as a public or general right, every parish, territorial or poll, every society formed by the incorporation of proprietors or pewholders, must be considered as a public charitable institution, to be regulated and controlled by an "information filed by the attorney general at the relation of any person desirous of attending the religious services of such societies.

But a public charity, in legal contemplation, is derived from gift or bounty. Attorney General v. Hewer, 2 Vern. 387. In the case of Attorney General v. Heelis, 2 Sim. & Stu. 77, it is said by the vice-chancellor that it is the source whence the funds are derived, and not the purpose to which they are dedicated, which constitutes the use charitable ; if derived from the gift of the crown, or of the legislature', or a private gift for improving a town, they are charitable, within the equity of the St. of 43 Eliz. c. 4; but where a fund.is derived from rates and assessments, being in no respect derived from bounty or charity, it is not char-i table. So a subscription by a benefit society, for mutual relief, is to a private, and not a public charity, and does not require the intervention of the attorney general. Anon. 3 Atk. 277.

It may be of use to look at the information, and see how the attorney general has stated this, as a public charity, without which he with his relators have no standing in court; and see how far the averments are proved. After stating the conveyance from Deering to Little, and the consideration, it proceeds to state that the said John Little, being minded and disposed t ■ devote Ms property to the founding and supporting of a church and place of religious worship, to be held and enjoyed forever for the preaching and maintaining the doctrine, discipline, worship and form of government of the Church of Scotland, did make the deed in question, with the habendum as before stated, and refers to the deed. This averment, so far as the ques= tian is of its being a charitable gift and foundation, or any gift or donation whatever, in the sense of being voluntary or gratúitous, which is the foundation of this claim, we think is not sustained by the proof.

It then alleges that Little, and Glen, Hall, Shaw and Knox, with others, being Presbyterians, being minded and disposed to devote their property to the founding and supporting of such a church, and to create and found a trust and charity therefor, did severally contribute, Little the land, and the others moneys wherewith the meeting-house was built, and did thereafter, by said indenture, create and establish the said trust and charity. This refers to the indenture which we have before us, and on the true construction of which, these averments, as legal inferences from the indenture made, under the circumstances stated, by Little, and accepted by Glen and others, must depend.

We think this indenture, and the award referred to in it, wholly fail to show that Little had any purpose to make a donation of his property, but the contrary. The indenture also fails to show that Glen and others, the grantees, intended to give, or did give then: property to any purpose of charity. They took no interest in the estate, except by the force and operation of the indenture; and that is the conveyance of a legal estate, upon a pure, naked trust for others, without any beneficial interest in themselves, except such as they might have in another capacity, as members of the congregation. The same instrument which vested the legal estate in them declared the entire beneficial use for others, and thus divested them eo instcmti of all pecuniary, beneficial or available interest, out of which any gratuitous valuable donation could be made. Nor is there any evidence in the indenture, or the attending circumstances, to show that they did accept the grant to hold for any public, indefinite or general use; but, on the contrary, they accepted it for the use of all the proprietors as members of said congregation, being pewholders, and perhaps others, ard those who should succeed them in the same relation. And xv hether that purpose was accompanied xvith another, that it should be held exclusively for Presbyterian worship and discipline, is immaterial to the question whether they founded a charitable donation.

The next paragraph in the information reiterates the averment, that by the said deed, the said Little, Glen and others created a trust or charitable estate of a very high character, to wit, for the support of the Christian religion according to a certain form of worship. No new fact is stated, this paragraph refers for authority to the deed alone; calling it a charitable estate does not make it so; and we have already stated that by the deed, though there might be a trust, there was no charity established.

Having come to the conclusion that this suit, as an information in equity, to establish, declare or regulate a public charity cannot be maintained, perhaps it might be better to stop here, But as it has been insisted in the argument that the complaint by which this suit was commenced may be regarded as a bill in equity, to investigate and enforce the rights of parties aggrieved by a breach of the trust set forth, as well as an information in equity in behalf of the public, though upon reading the complaint we should have hardly considered it as being, of that character; and as there are precedents, xve believe, for thus combining, in one prosecution, the vindication of private together with public rights; it may not be considered inappropriate to consider briefly some of the other questions discussed in the argument, and which would naturally arise in that aspect of the case.

The supposed trust, for maintaining in said religious society the doctrine, faith, discipline and mode of worship of the Presbyterian Church exclusively, is found in the clause in the deed from Little to Glen and others, contained in a parenthesis in the habendum, after the words “ to the only proper use of said congregation, (according to the tenures and after the same manner as the Church of Scotland hold and enjoy the lands whereon the meeting-houses are erected.)

In terms, this applies to the tenure or mode of holding the land. It is a little doubtful whether in this clause the parties intended the Church of Scotland, spoken of as a whole, or the parish churches of Scotland as separate societies. But whether the one or the other, it would be impossible for these trustees, or any trustees in Massachusetts, so to hold this estate.

It appears, by the evidence, that before the Reformation, the whole territory of Scotland was divided into parishes; and since the firm establishment of the Presbyterian Church, as the established religion of Scotland, a lot of land is set apart in each parish for a church edifice, and probably for a manse or parsonage house, and other parish purposes, and this land is specially and inalienably appropriated by law to the support of public worship, conformably to the faith, discipline and practice of the Presbyterian church. It also appears that by law the heritors or landholders, in each parish, are bound to pay for the erection and repairs of churches. The land therefore could not be held here, as it was held in Scotland, for parish purposes. But suppose we look beyond the letter, to the real purposes of this body of Christians, what were they ? Whatever might be their desire to bring themselves under the power and protection of the church of Scotland, it was impossible, because it appears that the church of Scotland never did, as a hierarchy or ecclesiastical judicatory, take any jurisdiction of the Presbyterian churches of this country. Supposing their wish was, to approach as nearly as practicable to that condition, and for that purpose to place themselves under the protection and jurisdiction of some presbytery in this country; a difficulty would still meet them. By the established hierarchy of Scotland, each parish has its kirk session, of teacher and elders; a number of parishes together form a presbytery of the bounds, having jurisdiction over all the parishes within those bounds; and several presbyteries form a synod; and over the whole church is a general assembly, formed by delegates from all the synods. Each inferior judicatory is subordinate to the next superior. This jurisdiction in all matters of spiritual o; ecclesiastical concern is authoritative and fixed by law, and no parish or church can avoid it. If therefore any number of parishioners, or even nearly the whole, become heretical in faith, or irregular in practice, they may be excommunicated, and then they can have no share in parish privileges, or voice in parish concerns. If they secede, they may be removed, and the property will be taken possession of by the presbytery of the bounds, to be retained until another orderly congregation can be formed within the parish. For though the presbytery will exercise only a spiritual jurisdiction, yet as the right of any parishioner, or any number of parishioners, depends on their being in regular standing with the church, as soon as they are removed by the ecclesiastical authority, they lose all benefit of the property appropriated by law to the support of the established church. Nothing similar could take place in this country.

But to take the most liberal view of the matter, and suppose they intended to establish a religious society, conformable in point of religious belief, doctrine and discipline, to the usages of the Church of Scotland, as nearly as circumstances would permit ; as there could be no presbytery of the bounds to exercise authority iver them, they must of course connect themselves, by their own voluntary act, with some presbytery, synod, or Presbyterian jurisdiction; and as such submission would be purely voluntary on their part, it is difficult to say that they could not withdraw and unite themselves with some other presbytery, or become independent, when, as a body, they should think fit so to do.

But it was maintained that, although there could be little or no analogy between a Presbyterian church thus formed under trustees in this country, and the regular parish churches of Scotland, where the lands are allodial and not held by trustees, yet that there is a strong analogy between the society established under trustees in Long Lane, and the chapels or meeting-houses established in large parishes, where the parishioners become too numerous to be accommodated at the parish church, and where land is purchased and vested in trustees, to form a religious society in connection with the church of Scotland.

There is certainly a considerable outward analogy between the society in Long Lane, and these chapels, which may for convenience be called chapels of ease, the land being vested in trustees, in trust for a religious society in connection with the established church, a very interesting account of which is given by the learned advocate, John Shank More, Esq., who has been examined as a witness in this case. It seems that the deed we have been examining had been submitted to him; and be describes these chapels or meeting-houses, which have been erected in connection with the Church of Scotland, and which are held under trusts similar to the trust created by this deed. He states that these chapels are usually held under trust, and they are either expressly or by inference declared to be held for the use of a congregation in connection with the Church of Scotland. And it has been decided in regard to chapels or meeting-houses held under such trusts, that the presbytery of the bounds may, in the event of any violation of the trust, reclaim the land and the meeting-house itself, and may insist on its being devoted exclusively to the use of a congregation in communion with the Church of Scotland, as by law established. This holds, not merely where the congregation have become independents, and repudiate the Presbyterian polity, but also where they retain the Presbyterian polity, if they do not retain their connection with the established church. That is, this rule extends to seceders from the existing established church, although adhering in all respects to the faith, doctrine and discipline. For this he cites the following decisions by Scottish civil tribunals: Presbytery of Edinburg v. Trustees of Lady Glenorchy’s Chapel, 18 Jurist, 305 ; Presbytery of Fordyce v. Shanks, 11 Scotch Court of Sessions Cases, (2d series) 1361; Bain v. Black, 11 Scotch Court of Sessions Cases, (2d series,) 1286, and 6 Bell, 317. He adds, that in case of any change of doctrine or discipline, of becoming Unitarian, or Congregational, the church would forfeit all right to the enjoyment of the meeting-house ; and the presbytery of the bounds, as representing the Church of Scotland, would be entitled to claim the chapel, and to insist that it should be exclusively occupied for the use of a congregation in connection with the established church. This view is substantially confirmed' by the testimony of another learned advocate, Alexander Shank Cook, Esq. Both of them distinctly state that these results flow from the existing law of the land. It is confirmed also by Dr. Hill. A circumstance is stated in the testimony of Dr. Forsyth, which tends to explain this matter, which is, that such chapels in aid ~f the regular parish meeting-houses were usually built by concriDution; but they could not be established without a special authority from the General Assembly, called a “ constitution; ” and whatever other provisions were made by such constitution, in favor of pewholders or other members, it was the invariable practice to insert a clause that the chapel should be held to the use of a congregation in connection with the established church.

The constitution of these chapels certainly very much resembles in form and tenure that of the Presbyterian Society in Long Lane in Boston. The first remark to be made is that these special Presbyterian churches were not introduced till about 1750, and could not have been regarded as a model by the society in Boston in 1735. But supposing this to be similar to those formed later in Scotland, and supposing it be asked why, according to the testimony, upon this church becoming Congregational in 1786, or Unitarian afterwards, they did not forfeit all right to the property, and why did it not become vested in some presbytery, for the use of the Presbyterian Church ? The answer we think simply is, that the law of Scotland and the law of Massachusetts, when this conveyance was made and when this meeting-house was built, and thence to the present time, have been wholly different. In Scotland, the Presbyterian religion was established by law. The whole territory was divided into parishes and presbyteries, by territorial limits. Every meetinghouse which could be built must be within the limits of some territory over which there was a controlling power entirely paramount to that of the congregation or trustees. One of these chapels could not be constituted without being expressly devoted to the use of the Presbyterian Church; because, if otherwise, constituted, they would be mere dissenters, and not recognized in any respect as Presbyterian. Then, by force cf law, if anv one of these congregations changed its doctrine or form of worship, here was a power—not merely a spiritual or ecclesiastical power, but a civil power—exerting the acknowledged and irresistible law of the land, legally authorized to remove them and hold the property until a Presbyterian congregation should be formed in its place.

In Massachusetts no such law existed. On the contrary, every religious society, unless restrained by some special trust, by the general law were at liberty to change their denomination, to profess and peaceably to inculcate any Christian faith or doctrine, and adopt the form of worship most agreeable to themselves ; and, by doing so, no forfeiture could be incurred. There was no presbytery of the bounds, to declare any forfeiture, or take possession of the chapel or other estate of any such seceding church. If a religious society, attached to the tenets and practices of the Presbyterian Church, chose to attach themselves to any Presbyterian community, it was their voluntary act; it was for spiritual edification and assistance only; and any superior ecclesiastical judicatory, presbytery, synod or general assembly could act only by spiritual censures, and had no jurisdiction over their temporalities.

From the evidence of the learned Scottish jurists, who have aided us with their testimony, we think it highly probable that, if asked, they would have expressed the opinion that, if a conveyance like that firom Little to Glen and others had been made in Scotland, and afterwards the congregation had become Unitarian or otherwise congregational, the estate would have been forfeited, and might be claimed and held by the presbytery of the bounds. And for myself, I have no hesitation in saying that I should concur with them in that opinion. But it would be so entirely by force of the law of the land, not merely of ecclesiastical regulations and usages, but by the municipal law, recognized and enforced by the civil tribunals. But as no such law does exist, or has existed, in this state, it is manifest that these rales can have no bearing on the present case.

We would not be understood to express an opinion that, under our law, an owner of property may not dispose of it upon special trust to maintain and inculcate any doctrines of Christianity clearly and specially designated, or to carry on any form of Christian worship specially and intelligibly described and specified; because an owner of property, with a general power of disposing of that property, may devote it to any purpose not unlawful; and if so, he may do it in the form of a trust. It is one of the incidents to the right of property. But he must do it in terms so clear as to leave no doubt of his intentions. A court of equity, under its general power and duty to see that trusts are not perverted, and upon the application of proper parties, and upon proper issues, may be obliged to inquire into the fact whether such doctrines have been professed and promulgated, such forms of worship adopted or rejected; not to decide whether such doctrines are sound, but whether the trustee has conscientiously done that without which he has no good right to hold the property, or to use it as he has done. Such we take to be the case of Lady Hewley’s Charity, Shore v. Wilson, 9 Cl. & Fin. 355, and many other cases cited in the argument, decided in England and in this country. These cases have no direct bearing upon the question, and we have alluded to them only for the purpose of avoiding any wrong construction which might arise from our view of the Scotch cases, and the whole of the evidence upon the subject.

Supposing then the whole practice and usage of Scotland, in 1735 and since, both in regard to parish churches and to chapels or meeting-houses, established by contributions from individuals, in connection with the established church, and the property vested in trustees, to be inapplicable, because they depended upon the law of Scotland, and because there was no presbytery of the bounds within which Boston was situated which was authorized or capable of exercising a paramount jurisdiction, or taking any jurisdiction of the Presbyterian Church in Boston, the nearest approach they could make to the establishment of a religious society of a Presbyterian character would seem to be to call and settle a minister professing the faith and desirous of maintaining the order and discipline of that church, by voluntarily associating themselves with other similar societies, and thus forming a presbytery, to whose jurisdiction, in matters of spiritual concern, they would submit themselves, according to the forms of proceeding in the Church of Scotland. We say the forms, because no presbytery which they could thus voluntarily form could exercise a permanent authority in temporal concerns, for want of the law of the land to establish it. It appears, front the imperfect records produced, that the society, by their minister', Mr. Morehead, did unite themselves with the Presbytery of Londonderry ; but after his death, in 1773, they declined the jurisdiction, and that act was afterwards, by another presbytery to whom they applied, pronounced to be regular and valid. From this it seems manifest that there was no superior ecclesiastical judicatory, having the right and power to coerce, restrain, direct or regulate the conduct of this society, even in spiritual and ecclesiastical concerns, any longer than it was their will to submit themselves to the jurisdiction of such superior. But without tracing their changes, or inquiring whether all or either of the ecclesiastical bodies with whom, at different times, they voluntarily associated, conformed truly to the doctrine, discipline and form of worship and church government of the Church of Scotland, during the twelve or thirteen years which elapsed between the time of Mr. Morehead’s decease and the vote of 1786, we are brought to consider the fact and the effect of the proceedings of that date.

It appears that Rev. Mr. Robert Annan, the last Presbyterian minister, received a call to a parish in New York, which was communicated to the presbytery in February 1786 ; and notice being ordered to the society in Boston to show cause, they made no appearance, and no doubt the call was allowed and accepted. In August following, at a meeting of the proprietors and others of the Presbyterian Church in Long Lane, it was “ voted, unanimously, that the church and congregation do embrace the Congregational mode of government, and that all difficulties in the church hereafter be settled by the ministers or mare members of the church.” It further appears, that they not only voted to renounce Presbyterianism and become Congregational, but they acted accordingly, and soon after settled Dr. Belknap, and have ever since acted as a Congregational church and society; and that in 1805 an act of the legislature was passed, (St. 1805, c. 19,) entitled,“ An act declaring and confirming the incorporation of the Proprietors of the Meeting-house in Federal Street, in the town of Boston,” thereby implying the existence of a previous act, though none appears. It was decided in the early part of the present century that an incorporation of a town or parish might be presumed from length of time, and the actual long and uninteiTupted use of corporate powers. Dillingham v. Snow, 5 Mass. 552. The act then proceeds to incorporate “all persons who now are or who may hereafter be proprietors of the pews in the Congregational Meeting-house in Federal Street,” and they are declared and confirmed to be a corporation by the name of “ The Proprietors of the Meeting-house in Federal Street in the town of Boston.”

Now in regard to the vote of 1786, supposing this society, so constituted a religious society under the deed of Little to Glen and others, by a mutual agreement and compact in the nature of a mutual trust, all for each and each for all, to maintain public worship according to the faith and creed, form and worship, and as nearly as practically they could, to the discipline and form of government of the Church of Scotland, we are strongly inclined to the opinion that, by the unanimous consent of all legally and beneficially interested, they could change or wholly relinquish such trust. It is to be considered that the trustees were also cestuis que trust; that their rights, as also the pews of all the pewholders, were descendible and transmissible to heirs; that the pewholders were certainly cestuis que trust beneficially interested ; and there is no evidence that any other person than pew-holders had any interest, legal or equitable, in the estate. The record shows that the vote was unanimous; and there is no evidence to control it, or raise a doubt of its truth. It is alleged in the information, but denied in the answer, that there was a minority who opposed this change, but that they were overborne by a majority. As no evidence was offered to prove this averment, the answer is conclusive, and the fact is not proved.

Supposing then a trust created for a religious use, for persons specially designated, for their own use, not general and indeterminate so as to constitute a charity; and all persons interested, trustees and cestuis que trust, change their religious views, become sincerely converted to another mode of Christian faith, and desire another form of worship; why should they not make the change ? The trust is created, if at all, out of the right of property; the change is desired and effected by all those who have any interest legal or equitable in that property. Who is there to object? Whose rights are impaired? It is contrary to no law; all sects and denominations are equal before the law; it opposes no public policy; on the contrary, it is an advancement of the policy declared by the Constitution, in the third article of the Declaration of Rights. In this respect, a religious society, thus constituted by making some trustees to hold the legal estate, but for the use of themselves and others designated, is very similar to a poll parish incorporated by statute, or under the religious freedom acts; and though they be of one denomination, when incorporated, we are aware of no rule of law, or principle of equity, which prevents them from changing their creed and modifying then' practice, as their own consciences and views of propriety may dictate. We think the same rule applies in the present case, wnere the vote was unanimous. What would be the effect in this respect if one or more had opposed, we have no occasion to consider.

We have said that, in the case supposed, we are inclined to the opinion that the change of denomination would be justifiable, and put an end to the trust. We do not state it more strongly, because perhaps there were persons interested, not present at the meeting and not notified, but more particularly because we do not place our judgment on that ground. But it leads to another consideration, which we consider more decisive, and that is the law of limitations.

It has sometimes been said that the statutes of limitation do not extend proprio vigore to suits in equity in England, although it is everywhere conceded that the principle is adopted. It is thus stated: Though the statute bars only legal remedies, yet courts of equity, by their own rules, independently of any statutes of limitation, give great effect to length of, time. But in the same case a court of equity, in deciding on the effect of a statute of limitations of Jamaica, which, in the nature of presumption, went to quiet the title, after an adverse possession and the lapse of seven years, held that the statute was as binding on a court of equity as a court of law. Beckford v. Wade, 17 Ves. 87.

And in this state it has been decided that the statute of limitations, barring suits after a certain time, extends as well to equity suits, as to suits at law, as a proper bar. Farnam v. Brooks, 9 Pick. 212. Baker v. Atlas Bank, 9 Met. 182. In the first of these cases, the court say, in the opinion expressed by Parker, C. J., that in this court as much force must be given to the statute, when pleaded to a bill in equity, as to an action at common law, and it can be avoided in the same way only, that is by proof of fraudulent concealment and a discovery of the fraud, within the time of limitation. And he cites a great number of authorities, English and American, to support this decision.

It is true, that in a direct question between trustees and cestuis que trust, the possession of the latter is the possession of the trustees, and cannot be adverse. But when another party, not acknowledging the trust, but denying that any such trust affecting the estate has been created, or asserting that it has been fully performed, or released or discharged, or otherwise does not exist, and claiming adversely both to trustee and cestuis que trust, such a possession is adverse; and if all those who would have a right to questi an it, lie by and acquiesce, during the time of limitation, the statute is a bar.

In the present case, we are inclined to the opinion that the possession became adverse, by the vote of 1786, and the holding under it. They were in possession and had the right of possession, whether in trust or not is the question. They declared publicly by their acts and votes, that under a claim of right to do so, they held it for a purpose inconsistent with a presbyterian use exclusively, that if any such trust ever had existed, it had ceased to exist, and they denied and repudiated it. It is not now the question, whether they have a right to do so, and whether their possession was lawful, but whether it was adverse, If it was, then all those who had any claims legal or equitable, including all synods and Presbyterian bodies, with whom they had at any time been associated, were bound to come forward and assert their rights; otherwise, their consent was to be presumed. We believe the statute of limitations was not then in force ; but the rule of twenty years’ acquiescence in similar cases was held equivalent. That vote was passed nearly seventy years ago.

But whether that vote and the acts and possession under it are to operate as a bar or not, we are of opinion that the act declaring and confirming the incorporation of the proprietors of pews in the Congregational meeting-house, together with the acceptance of the same and acts of the parties under it, continued during the period of limitation, is such bar. The act declares that the corporation shall be deemed in law seized of the meeting-house and lands, including the dwelling-house then recently erected on the land appurtenant for the accommodation of the minister of that society, reserving to the several proprietors of the pews their right to and interest in the said pews respectively. This created the tenure, like those, heretofore described, by which the lands were held on which other meetinghouses in Massachusetts have been built and maintained, vesting an estate in the house and land in the corporation itself, with an estate in the holders of pews, peculiar, subordinate and derivative, still an estate and property recogiiized and protected by law. This, we add in passing, ascertains and identifies the rights of pewholders in Massachusetts so definitely, as to render the evidence offered in this case, respecting the rights of pewholders, both in parish churches, and separate chapels, in Scotland,- and in those of Canada, and the other states of the Union, of little importance, as evidence of the rights of holders of pews in Massachusetts. The same remark may be repeated here, which has been before made, that it is not the name or fact alone which decides the rights of the parties, but the facts existing in connection with the governing law of the place, giving their whole significance, and on which the legal and equitable rights of parties depend and must be determined. There are no doubt persons holding pews or separate seats, in the parish churches and Presbyterian chapels in Scotland, in Episcopal churches and dissenting meeting-houses in England, and perhaps in similar churches and chapels in Canada, and in the other states, all of whom hold a relation to their churches and places of worship, similar in fact, in many respects, to that of pew-holders in Massachusetts; but the measure, the extent and limitations of their rights, incident to such relation, must depend on the laws acknowledged and enforced in these respective places; and these laws are so various, that no just inference can be drawn from the rights of the one to those of the other.

The act declaring and confirming the incorporation of those “ who now are, or who may hereafter be the proprietors of the pews in the Congregational meeting-house in Federal Street, in the town of Boston,” was passed in June, 1805; the proprietors were afterwards in the actual and exclusive possession till some time after 1846, when a demand was made upon them by the relators, who formed a Presbyterian society in Boston in that year. Regarding the question as affecting the realty, these acts would seem to constitute a seizin either by right or by wrong, and of course a disseizin of trustees and cestuis que trust, claiming to hold for a different purpose, and against whom such entry and holding by the respondent society must be deemed adverse; and after the lapse of twenty years, or perhaps, as the law then stood, thirty years, from the time of such acts, all right of entry and of action would be barred. In fact, the act itself implies that they had been long in possession before its date; and more than forty years elapsed, after its passage, before their right was questioned. If this would have been a good bar at law, on a question of title in a real action, a fortiori must it be regarded, as a long con-, tinued adverse possession, sufficient to preclude all claim in equity.

The conclusions, then, to which the court have come are these: That by the transactions of 1730 and 1735, between Little, Glen and their associates, and the deed from Little to Glen and others, they did not intend to form, and did not in fact form or found any public charity or any charitable founda fcion whatever; that it was their intention to establish, and they did establish a parish and religious society, for themselves and their families, their associates, successors and assigns, and had full right and lawful authority under the laws of Massachusetts, to adopt such Christian doctrines, form of worship and church discipline, as were consistent with the dictates of their own consciences, and sense of duty and propriety, and to alter and change the same from time to time; that the whole property and interest in the land, church edifice and buildings, remained in the trustees and associates, who, by their united and continued will and action, might control and dispose of them; that they manifested a desire to organize themselves into a religious society in conformity, as nearly as practicable, with the doctrines, discipline and practice of the Church of Scotland or Presbyterian Church; that if this manifested a preference of that form of worship, and a mutual agreement amongst themselves, in the nature of a trust to and for éaeh other, still it was one, which by mutual consent, and especially by unanimous consent, they could alter and change for their own benefit; that, by the unanimous vote of the proprietors in 1786, they did alter and change it by the consent of all parties interested in the preservation of that trust, by which it was terminated and discharged ; that if the deed from Little to Glen and others vested the legal estate in them, as trustees, in fee, such estate descended to their heirs, and is now outstanding in such heirs, and were it now a question of legal title, between such heirs and the respondent society, the facts that the respondents were in possession in 1805 claiming title, that the act then passed declared them seized in fee of the estate as a corporation, their acceptance of the act, and holding under the same peaceably and adversely more than forty years, would be a disseizin of the trustees, and bar of their legal title; and as the respondent society claimed to hold adversely as well to the cestuis que trust, as to the trustees, such possession for such length of time is a bar alike to all legal and equitable claims to the estate in controversy.

Decree accordingly.

By St. 1855, c, 122, pews in all houses of public worship are made personal property.