By the Court, B. Darwin Smith, J.
The demurrer "in this cause was sustained upon the authority of the cases of Robertson v. Bullions, (1 Kern. 243,) and of Petty v. Tooker, (21 N. Y. Rep. 267.)
It was considered by the learned judge, at special term, that those cases had put an end in the courts of justice in this state to the class of controversies and questions of the nature of "those presented in the complaint in this action. But it is now urged uj)on us with much earnestness by learned counsel that this is not the case, and that there is nothing in the decision of either of those cases that necessarily controls the present case or precludes this court from giving the relief sought in the plaintiff’s complaint.
The case of Robertson v. Bullions, was an action in equity, like the present. The bill showed that a religious society was formed in the town of Cambridge in the county of Washington, which was incorporated under the general act of 1813, of this state, relating to incorporation of religious societies, by the name of the Associate Congregation of Cambridge of the county of Washington and state of Hew York, adhering to the principles of the Associate [304]*304Presbytery of Pennsylvania formerly—now the Associate Synod of North America. The defendant Bullions had, in 1808, been duly elected and ordained minister of said church, and continued to officiate as such till 1838, when he was deposed from the ministry by the presbytery with which the said church was connected. It appears that notwithstanding such deposition, a majority of the congregation and of the trustees .continued him as their pastor and devoted the revenues of the church to his support, and the trustees refused to permit two clergymen sent by the Synod, the ecclesiastical judicatory to which they were subordinate, to occupy the pulpit; and closed the doors of the church against them. The suit was brought by the minority of the trustees and a portion of the minority of the congregation, on behalf of themselves and others of the minority, to restrain the trustees from authorizing Mr. Bullions to officiate as minister, and to permit clergymen in good standing and in full communion with the Associate Presbytery of Cambridge to preach and teach, and administer the ordinances in said church, and to remove such trustees who had so allowed said Bullions to preach, and to require them and the said Bullions to account for the use of said property after the deposition of said Bullions. The cause was brought to a hearing before the vice chancellor of the 4th circuit, who made a decree granting the relief prayed for. The defendants appealed from this decree and the same was reversed in the general term of this court, (see 9 Barb. 65,) except that the general term affirmed so much thereof as restrained the defendants, the trustees, from using the temporalities of the corporation for the support of Dr. Bullions’ ministry as long as he was under sentence of deposition. The defendants acquiesced in this decree, but the complainants appealed to the court of appeals from so much of said decree as was against them. The only question presented upon this appeal to the court of appeals was therefore strictly upon that portion of the decree of the general term which reversed the decision or decree of [305]*305the vice chancellor. So far as the court at general term had affirmed the decree of the vice chancellor, that portion of the judgment not being appealed from stood, and the court of appeals made and could render no judgment thereupon. It follows, therefore, that so far as the court at general term assumed jurisdiction to restrain the trustees from using the temporalities of the corporation for the support of Dr. Bullions, so long as he was under sentence of deposition, the question not being properly before the court, it can not be held to be strictly decided whether the court could or should exercise such power in such cases.
The case of Petty v. Tooker was an action of ejectment, to try the question which of two sets of trustees were the rightful trustees and as such entitled to the possession and control of the temporalities of the church. The jolaintiffs and defendants both claimed to be the legal trustees of a religious society incorporated under the 3d section of. the act of 1813.
There is another distinction between these two cases, of Robertson v. Bullions and Petty v. Tooker, and the present case which is pressed upon us by counsel.
In the case of Petty v. Tooker, the land on which the church edifice was erected was conveyed to the trustees after the society was incorporated,' unconditionally, and without any words or terms creating or declaring, or attempting to create' or declare, any trust.
In the case of Robertson v. Bullions the questions chiefly discussed and considered in this court related to a deed from one French, made in 1786, after the congregation was organized, which conveyed the land on which the church edifice was erected. In this deed the land was conveyed to five persons by name, described as chosen and elected trustees of the Associate Presbytery of Pennsylvania and their successors forever, habendum to the sole and only proper use, benefit and behoof of the said associate congregation of Cambridge. The deed contained a covenant for such further [306]*306assurance as should be necessary to vest the land in the jiarties of the second part and their successors, “for the sole use of said Associate Congregation of Cambridge.” When this society became incorporated, in 1826, the title thus conveyed confessedly passed to -and vested in the corporation under the first section of the act for the incorporation of religious societies, of 1813.
In this case the society was incorporated in 1807, under the act for the incorporation of religious societies, then in force, which was in substance the same as the act of 1813 ; and it is not claimed that the plaintiffs’ rights are not precisely the same as they would be under the act of 1813 if the incorporation had taken place under the latter act. The land on which the church edifice now claimed and possessed by the defendants was erected, was conveyed by two deeds—■ one from Caleb Bice, dated February 24, 1808, in which the grantees named are five persons, described as “trustees of the Associate Reformed Church of the town of Seneca” &c.
This deed conveys one half an acre of land in terms following: “ Witnesseth, that the said party of the first part, for the support encouragement and preferment of religion, hath given, granted, aliened and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm unto the said party of the second part and their successors forever, in trust to and for the uses, interests and purposes of the religious society denominated the Associate Reformed Church of the town of Seneca in the county of Ontario and state of New York, either for the express purpose of building a church on said lot or for a burying place.” The other deed is from Elihu Cary and wife, dated February 24,1808, and is in the precise words of the former deed, except the description of the land and the terms of the trust, which is in these words : “In trust for the religions society denominated the Associate Reformed Church of the town of Seneca.” A third deed described in- the complaint is dated the 29th of November 1856, and is a conveyance to the trustees of [307]
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By the Court, B. Darwin Smith, J.
The demurrer "in this cause was sustained upon the authority of the cases of Robertson v. Bullions, (1 Kern. 243,) and of Petty v. Tooker, (21 N. Y. Rep. 267.)
It was considered by the learned judge, at special term, that those cases had put an end in the courts of justice in this state to the class of controversies and questions of the nature of "those presented in the complaint in this action. But it is now urged uj)on us with much earnestness by learned counsel that this is not the case, and that there is nothing in the decision of either of those cases that necessarily controls the present case or precludes this court from giving the relief sought in the plaintiff’s complaint.
The case of Robertson v. Bullions, was an action in equity, like the present. The bill showed that a religious society was formed in the town of Cambridge in the county of Washington, which was incorporated under the general act of 1813, of this state, relating to incorporation of religious societies, by the name of the Associate Congregation of Cambridge of the county of Washington and state of Hew York, adhering to the principles of the Associate [304]*304Presbytery of Pennsylvania formerly—now the Associate Synod of North America. The defendant Bullions had, in 1808, been duly elected and ordained minister of said church, and continued to officiate as such till 1838, when he was deposed from the ministry by the presbytery with which the said church was connected. It appears that notwithstanding such deposition, a majority of the congregation and of the trustees .continued him as their pastor and devoted the revenues of the church to his support, and the trustees refused to permit two clergymen sent by the Synod, the ecclesiastical judicatory to which they were subordinate, to occupy the pulpit; and closed the doors of the church against them. The suit was brought by the minority of the trustees and a portion of the minority of the congregation, on behalf of themselves and others of the minority, to restrain the trustees from authorizing Mr. Bullions to officiate as minister, and to permit clergymen in good standing and in full communion with the Associate Presbytery of Cambridge to preach and teach, and administer the ordinances in said church, and to remove such trustees who had so allowed said Bullions to preach, and to require them and the said Bullions to account for the use of said property after the deposition of said Bullions. The cause was brought to a hearing before the vice chancellor of the 4th circuit, who made a decree granting the relief prayed for. The defendants appealed from this decree and the same was reversed in the general term of this court, (see 9 Barb. 65,) except that the general term affirmed so much thereof as restrained the defendants, the trustees, from using the temporalities of the corporation for the support of Dr. Bullions’ ministry as long as he was under sentence of deposition. The defendants acquiesced in this decree, but the complainants appealed to the court of appeals from so much of said decree as was against them. The only question presented upon this appeal to the court of appeals was therefore strictly upon that portion of the decree of the general term which reversed the decision or decree of [305]*305the vice chancellor. So far as the court at general term had affirmed the decree of the vice chancellor, that portion of the judgment not being appealed from stood, and the court of appeals made and could render no judgment thereupon. It follows, therefore, that so far as the court at general term assumed jurisdiction to restrain the trustees from using the temporalities of the corporation for the support of Dr. Bullions, so long as he was under sentence of deposition, the question not being properly before the court, it can not be held to be strictly decided whether the court could or should exercise such power in such cases.
The case of Petty v. Tooker was an action of ejectment, to try the question which of two sets of trustees were the rightful trustees and as such entitled to the possession and control of the temporalities of the church. The jolaintiffs and defendants both claimed to be the legal trustees of a religious society incorporated under the 3d section of. the act of 1813.
There is another distinction between these two cases, of Robertson v. Bullions and Petty v. Tooker, and the present case which is pressed upon us by counsel.
In the case of Petty v. Tooker, the land on which the church edifice was erected was conveyed to the trustees after the society was incorporated,' unconditionally, and without any words or terms creating or declaring, or attempting to create' or declare, any trust.
In the case of Robertson v. Bullions the questions chiefly discussed and considered in this court related to a deed from one French, made in 1786, after the congregation was organized, which conveyed the land on which the church edifice was erected. In this deed the land was conveyed to five persons by name, described as chosen and elected trustees of the Associate Presbytery of Pennsylvania and their successors forever, habendum to the sole and only proper use, benefit and behoof of the said associate congregation of Cambridge. The deed contained a covenant for such further [306]*306assurance as should be necessary to vest the land in the jiarties of the second part and their successors, “for the sole use of said Associate Congregation of Cambridge.” When this society became incorporated, in 1826, the title thus conveyed confessedly passed to -and vested in the corporation under the first section of the act for the incorporation of religious societies, of 1813.
In this case the society was incorporated in 1807, under the act for the incorporation of religious societies, then in force, which was in substance the same as the act of 1813 ; and it is not claimed that the plaintiffs’ rights are not precisely the same as they would be under the act of 1813 if the incorporation had taken place under the latter act. The land on which the church edifice now claimed and possessed by the defendants was erected, was conveyed by two deeds—■ one from Caleb Bice, dated February 24, 1808, in which the grantees named are five persons, described as “trustees of the Associate Reformed Church of the town of Seneca” &c.
This deed conveys one half an acre of land in terms following: “ Witnesseth, that the said party of the first part, for the support encouragement and preferment of religion, hath given, granted, aliened and confirmed, and by these presents doth give, grant, alien, enfeoff and confirm unto the said party of the second part and their successors forever, in trust to and for the uses, interests and purposes of the religious society denominated the Associate Reformed Church of the town of Seneca in the county of Ontario and state of New York, either for the express purpose of building a church on said lot or for a burying place.” The other deed is from Elihu Cary and wife, dated February 24,1808, and is in the precise words of the former deed, except the description of the land and the terms of the trust, which is in these words : “In trust for the religions society denominated the Associate Reformed Church of the town of Seneca.” A third deed described in- the complaint is dated the 29th of November 1856, and is a conveyance to the trustees of [307]*307the Associate Reformed Church of the town of Seneca, of two acres of land, with no declaration of trust except that the land is conveyed “for a parsonage and nothing else.”
We are prepared now to consider what was in fact decided in the court of appeals in these cases of Robertson v. Bullions and Petty v. Tooker.
When the case of Bullions was decided the court of appeals was composed of six judges. Judge Ruggles was absent, and Judge Johnson, for some reason, took no part in the decision. The leading opinion was written by Judge Selden, who, after an elaborate discussion of the questions presented, concluded his very able opinion by recapitulating the points which he had attempted to establish and which consist of eight points or propositions : 1st. That that court could not review any portion of the decree of the supreme court not appealed from. 2d. That a religious incorporation, under our statute, consists not of the trustees alone, but of the members of the society; that the society itself is incorporated, and its members are the corporators. 3d. That the relation of the trustees to the society is not that of a private trustee to the cestui que trust, but they are managing officers of the corporation—like the directors of .a bank or rail road corporation. 4th, That an incorporated religious society, under our law, does not belong to that class of ecclesiastical corporations in the sense of the English law; but is to be regarded as a civil corporation and governed by the ordinary rules of the common law. 5 th. That courts of equity have no power to remove the trustees of the incorporations, or to prescribe the qualifications of electors of such trustees. 6th. That the trustees of a religious corporation, under our statute, can not take a trust to the sole benefit of members of the church as distinguished from other members of the congregation ; no trust being authorized except for the whole society. 7th. That when a deed is executed to trustees, for religious purposes, and the use is expressed in general and pot in specific terms,, it cap not be inferred from the religious [308]*308tenets and faith of the grantee that it was intended to limit the use to the support of the particular doctrines which he preferred. 8th. That the trustees of a religious corporation in this state can not receive a trust limited to the support of a particular faith or a particular class of doctrines, for the reason that it is inconsistent with those provisions of the statute which give to the majority of the congregation, without regard to their religious ■ tenets, the entire control over the revenues of the corporation.
Three of the judges, Gardiner, Parker and Edwards, concurred in the entire opinion of Judge Selden. Judge Denio dissented from the 8th of the foregoing propositions, and must he deemed, as the case is reported, to have assented to the other seven propositions, which would make a majority of the court, and sufficient to decide the case, concur in the said seven propositions. Judge Allen, in a separate opinion, discussed the case, and in his opinion came to the same conclusion, in effect, on several of the said propositions. So far, therefore, as the said seven propositions are essential to the decision they must he deemed the law of the case, and authority binding as such.
The character and nature of religious incorporations, in this state, and the powers and duties of courts of equity over and in respect to such corporations, and over the property held by them or conveyed for the use of such corporation, or of the society or church connected therewith or designed for their benefit, were necessarily involved in the discussion and decision of the questions presented upon the appeal in said cause. I do not see why each of the said eight propositions, except the seventh, were not necessarily raised in the case and involved in its decision.
The first proposition admits, in effect, that the question whether the decree of the general term, so far as it restrained the trustees from using the temporalities of the corporation for the support of Dr. Bullions as long as he was ander sentence of deposition, was not before the court. But it is [309]*309quite apparent that if that portion of the judgment below had been appealed from and had been before , the court, it would have been reversed. Judge Selden calls it an error. He says : “ While, therefore, it is settled, so far as these parties are concerned, by the acquiescence of the defendants in the decree of the supreme court, that .the trustees had and still have no right to employ Dr. Bullions, there is no reason for following up that error by requiring them to account.
The decision of this court as contained in the other propositions concurred in by the five judges, implies that such part of the decree below was erroneous, and that the court had no power to control the action of the trustees in the employment or payment of a minister. And this conclusion, it seems to me, inevitably follows the decision, that in this class of incorporations the whole body of the congregation is incorporate, and that all property conveyed to or held by the trustees belongs to the whole body of the corporators or of the society, without regard to any discrimination between those in communion and those not in communion or fellowship with the church considered as a spiritual body connected with such congregation. The majority of corporators elect the trustees, and a majority of the trustees employ and pay the minister.
This principle is more fully asserted in the case of Petty v. Tooker. In that case there Avas but one opinion, and the report states that all the judges of the court concurred therein. In this case a majority of the trustees, with the concurrence of a majority of the congregation, had changed the ecclesiastical relations of the society confessedly founded and established as congregational, from a congregational to the presbyterian, by the employment of a presbyterian minister and exclusion of the congregational minister from the exercise of his proper functions in the church building, and by opening the meeting house to the ministrations of such presbyterian minister. Judge Selden says expressly that “Corporations formed under the 3d section of the act of [310]*3101813 have no denominational character, nor can such character be in any manner engrafted upon them.”
This case clearly decides that the trustees of such a religious society have 'the legal right to employ such minister as they see fit; and that they had in that case a perfect right to employ a presbyterian minister and exclude the congregational minister from the pulpit; and that no trust existed or could he created -which any court could enforce, in conflict with their full authority and discretion on the subject.
These views are necessarily decisive of this case. The trustees of the religious society denominated the Associate Reformed Church of the town of Seneca (the defendants’ title) took this property conveyed to them by the several deeds mentioned in the complaint for the use of such society according to the law and principles which governed the oi’ganization of such corporations. They could not take it or hold it in any other character, or upon any other trust. The property thus conveyed belongs to the corporation, which consists of all the members of the society entitled to vote in the election of trustees, a majority of whom thus controls the property of the corporation ; and as a necessary consequence decides the ecclesiastical relations and connections of the society and the character of the religious views, opinions and doctrines inculcated from its pulpit.
But if this were otherwise, and the courts of equity were bound to enforce trusts created to peiqoetuate particular creeds or classes of Christian doctrines or of particular ecclesiastical connection, and involving questions, issues and inquiries in respect to the diversities, refinements and subtleties of religious belief or opinions, I think it is quite clear that within the rule as the question was stated by Judge Gardiner in Miller v. Gable, (2 Denio, 540,) we should not be authorized to interfere in this case, and the demurrer was properly sustained at special term. The learned judge in that case said, that when the trust is declared in writing, and its nature and extent clearly defined, the court has no alternative but to [311]*311carry it into execution ; but he also, in the same case, said that it would be a plain and palpable abuse of trust which will influence a court of equity to interpose respecting a controversy growing out of a difference in religious or sectarian tenets.
[Monroe General Term,
September 5, 1865.
Within this rule, which is as far, I think,- as any equity judge in this country would now feel authorized to go, there was not in this case such a departure from what in the strictest sense can be regarded the trust declared in the deeds to the defendants as Would justify the interference of this court.
The trust as declared in the first and most important deed, from Caleb Eice, was to and for the uses, interests and purposes of the religious society denominated the Associate Reformed Church of the town of Seneca, either for the express purpose of building a church on said lot or for a burying place. The defendants, by the same title described in the deed, still occupy, possess and use said lot. It has not been diverted to any other than religious uses. The deed does not declare the ecclesiastical connection of the society at the time of its date, or upon its face seek professedly to perpetuate its connection with any ecclesiastical judicatory. The plaintiff and those in behalf of whom this suit was .commenced profess to adhere to the constitution and standard of the United Presbyterian Church of North America.
The trustees of the corporation are also presbyterian, and have employed a presbyterian minister to occupy the pulpit and officiate in the church, in good standing in the jnesbytery of Rochester, and which is subordinate to and in connection with the Old School Presbyterian Church of the United States. I can not think that there is in this course of proceeding on the part of the trustees any abuse of the trust, or that it involves any special departure in things fundamental in respect to the. spiritual concerns and worship or doctrines of the church. I think the judgment rendered at the special term was correct, and that the same should be affirmed, with costs.
James 0. Smith, Johnson and j¡. Darwin Smith, Justices.]