Carskadon v. Torreyson

17 W. Va. 43, 1880 W. Va. LEXIS 3

• Court: West Virginia Supreme Court
• Decided: November 13, 1880
• Status: Published

Opinion

Haymond, Judge,

delivered the opinion of the Court:

The appeal in this case is from the whole of the final decree; and all the parties to the suit in chancery and the notice of Crossfield for the appointment of trustees are before this Court by summons, appearance by counsel, &c. The two causes were heard together by the court below, and but one decree made, as appears by the decree, and both causes disposed of by that decree. And no question has been made before this Court, as to whether the appeal allowed in this Court does not properly bring before this Court for review the whole of said decree. It seems to me however under the circumstances appearing in this case, as all the parties are before this Court, that the whole of said decree is before this Court for review and that this Court may now properly pass upon the same. Entertaining this view I will now proceed to consider and ascertain and determine, whether there is error in said decree, for which it should be reversed, and what disposition should be made of the causes.

A number of errors have been assigned by the appellants as existing in said decree; but the one which has perhaps been most elaborately argued by counsel for the appellants and appellees before this Court is, whether the property conveyed by the deed of Angus W. McDonald and Cornelia, his wife, and Arnold 8. Trowbridge, to James Sheetz and others, bearing date the 8th of September, 1856, for the land therein mentioned, (which deed I have hereinbefore set out,) should be held by trustees under its provisions for the use and benefit of the members and congregations of the Methodist Episcopal church of the South Branch circuit of said church of the Baltimore annual conference of the Methodist Episcopal church, in connection with the general conference of said church, as a residence for the minister of the- said South Branch circuit of said church, or for the use and benefit of the members and congregations of the Methodist Episcopal church south of the South Branch circuit of the last named church of the Baltimore annual conference of the Methodist Episcopal church south in connection with the general conference of the last named church, as a residence for the ministers of the last named South Branch circuit.

SyJlabu3 t

We are confronted in the beginning of the investigation with the question raised by the counsel for the appellants, as to whether the said deed under the' law, as it existed in the. State of Virginia at the time the said deed was made and afterwards, conveyed any right of property to the trustees therein named in trust for the use of the cestui que trust or eestuis que trust, or either of. them, in said deed mentioned and referred to, which said eestuis que trust, or either of them, could take, hold or enforce, or, in other words, whether under the laws the trusts attempted to be created by said deed are not inoperative and in effect void, because of the indefiniteness of the cestui que trust or eestuis que trust therein named.

This presents a very important and interesting question for determination. To determine this question satisfactorily it is necessary and proper to ascertain and determine what is the law. And first I will proceed to ascertain what was the law of Virginia applicable thereto, at the time the deed was made; secondly, to ascertain the law of this State applicable thereto; and thirdly, whether the trusts attempted to be created by said deed for the use of the. eestuis que trust, or either of them, therein named is operative and enforcible under the law or laws applicable thereto.

In the case of Gallego’s ex’rs v. Attorney General, 3 Leigh 450, it was decided by the Court of Appeals of Virginia, in 1832, that the courts of Chancery in Virginia had no jurisdiction to enforce devises and bequests to religious societies or congregations. The court said, that as the statute of charitable uses, 43 Elizabeth, under which alone such vague bequests could be established, if ever in force in Virginia, had been repealed in 1792 in the general repeal of English statutes. Charitable bequests were to be treated as standing on the same footing with other bequests. If definite, they were to be treated as trusts, which courts of equity would execute by virtue of their ordinary jurisdiction; but if indefinite, they were no longer recognized by law, and could not be enforced. A devise or bequest of property to or for the uses of a religious congregation was, it was said, of the character last mentioned. The decision in the case of Gallego’s ex’rs v. Attorney General, was approved by the same court in 1856, in the case of Brooke et al v. Shacklett, 13 Gratt. 301, and in 1859 in the case of Seaburn’s ex’r v. Seaburn et al., 15 Gratt. 423. This decision has also been recognized and approved by this court in the case of The Bible Society v. Pendleton, trustee, 7 W. Va. 69, and in the case of Knox v. Knox’s ex’rs, 9 W. Va. 124.

In the case of the Bible Society v. Pendleton, trustee, Judge Pauli, who delivered the opinion of the Court, in speaking of the case of Gallego’s ex’rs v. Attorney General, 3 Leigh 450, and of Judge Tucker’s opinion therein says: “Here also be reviews and vindicates the past legislation of that State, and the policy on which it was based, to prevent the. possible interference of religious establishments in matters of government, if they were permitted to accumulate large possessions; hence the tenacity, with which applications for permission to take property in a corporate capacity (even the necessary grounds for churches and graveyards) have been refused. His views are illustrated in this regard by a reference to the tremendous evils to be found in the history of France and of England from the vast accumulations of property in the hands of church establishments, and these views have ever since left their impress on the jurisprudence and history of that State. This may be seen in the fact, tbat in the amended constitution of that State of 1851 it is provided for the first time, that the general assembly shall not grant a charter of incorporation to any church or religious denomination. The authority of thát case has been recognized, and has been affirmed in the case of Brooke v. Shacklett, 13 Gratt. 301, and Seaburn’s ex’r v. Seaburn et al. 15 Gratt. 423.”

In the case of Knox v. Knox’s ex’rs, 9 W. Va. 124, the judge who delivered the opinion of the court at page one hundred and forty-nine says: “It must be clear from the authorities cited, that the statute of 43 Elizabeth, if it ever was in force in Virginia, was repealed, and that the principles settled in the case of Gallego’s ex’rs v. The Attorney General, 3 Leigh, is the law of Virginia and of West Virginia, except so far as since modified or changed by acts of the Legislature. Whatever may be the law in other States, there can, ho longer be any doubt that in Virginia and West Virginia indefinite charities are void. The want of clearly^ recognized beneficiaries constitutes the indefinite character of these charities and renders them void.” See Dashiell v. The Attorney General, 5 Har. & J. 392; 6 Id. 1; Levy v. Levy, 33 N. Y. 97; Morice v. The Bishop of Durham, 9 Ves. 39.

If the law stood, as it did prior to the passage of certain acts, whose provisions will be presently noticed, it would be clear, that the said trusts specified in said deed would be inoperative and in effect void under the law, though the said deed purports to be for a valuable consideration and contains covenants of general warranty; yet the same or perhaps greater indefiniteness as to the beneficiaries, which defeated the bequest to the Roman Catholic congregation in Gallego’s ex’rs v. Attorney General, is to be found in the deed here, and would present an insuperable difficulty in the way of the courts' undertaking to control the trustees in the performance of their duties, at the instance of a beneficiary in the deed, whether he. claimed use in the property as a member of ^16 Methodist Episcopal church or of the Methodist Episcopal church south, or as a member of one of the congregations of either of said churches worshipping within or without the boundary of the South Branch circuit. Brooke v. Shacklett, 13 Gratt. 310. It is necessary and proper therefore to examine the acts of the Legislature of Virginia and West Virginia to a certain extent, and to enquire, whether the trusts of the deed can be brought within the scope of their provisions. The first of the acts to which I shall refer, is the act entitled, uAn act concerning conveyances or devises of places of public worship.” Acts Legislature of Virginia, 1841-42, page 60. This act was passed February 3,1842, and is as follows, viz :

“Í. Be it enacted by the General Assembly : That where any lot, or part of a lot, tract or parcel of land has been heretofore conveyed or devised, or shall hereafter be conveyed or devised, to one or more trustees for the use and benefit of any l’eligious congregation, as and for a place of public worship, the same, and all buildings, and other improvements thereupon, shall be held by such trustee or trustees (and their successors) for the purposes of the trust, and not otherwise.

“ 2. And be it further enacted, That where any conveyance or devise shall hereafter be made of such property for the use and benefit and purpose aforesaid, the same shall not be void or frustrated by reason of the want of trustees to take and hold the same in trust; but trustees may be appointed in the manner hereinafter directed.

“3. And be it further enacted, That when such conveyance and devise shall hereafter be made, whether by the intervention of trustees or not, the circuit superior court of law and chancery of the county or corporation, where such property is or may be situate, shall on application of the-attorney for the commonwealth on behalf of the authorized authorities of any religious congregation have full power and authority to appoint trustees originally, where there were none, or to substitute others from time to time, in cases of death, refusal or neglect to act, removal from the county or corporation, or other inability to execute the trust beneficially and conveniently; and the legal title shall thereupon become exclusively vested in the whole number of the then trustees and their successors.

“ 4. And be it further enacted, That a majority of the acting trustees for any such congregation may sue and be sued in their own names in relation to the title, possession or enjoyment of such pi’operty without abatement by the death of any of the trustees, or the substitution of others; but the action or suit may notwithstanding be proceeded to its final termination in the names of the trustees, by or against whom the same was instituted, and all other proceedings had in relation thereto in like manner, as if such death or substitution had not occurred. Provided, That such trustees for the use of any religious congregation shall not hereafter take or hold at any one time any tract of land in the county exceeding m quantity thirty acres, or in any incorporated town exceeding two acres; nor shall such real property be held by them for any other use than as a place of public worship, religious or other instruction, burial ground or residents of their minister.

“5. This act shall be in force from thé passage thereof.”

The next act was passed on the 20th day of March, 1847. See Acts of the Legislature of Virginia 1846-47, page 66. The last named act gives to any one or more of the members of any religious congregation the right; in his or their names, on behalf of such congregation to commence and prosecute a suit in equity against the trustees to compel them to apply the property for the use or benefit of the congregation, as their duty shall require. These acts of the Legislature of Virginia of 1841-42 and 1846-47 seem to have continued unchanged, until the Code of Virginia of 1849 took effect, which was on the 1st day of July, 1850. The provisions of the Code of Virginia of 1849 are contained in chapter 77 thereof at pages 362 and 363, sections 8, 9, 10, 11, 12 and 13, and are as follows:

“ Section 8. Every devise or dedication shall be valid, which since the 1st day of January, 1777, has beefl made, and every conveyance shall be valid, which hereafter shall be made, of land for the use or benefit of any religious congregation as a place of public worship or as a burial place or a residence for a minister ; and the land shall be held for such use or benefit for such purpose and not otherwise.

“ Section 9. The circuit court of the county or corporation, wherein there may be any parcel of such land or the greater part thereof, may on application of the proper authorities of such congregation from time to time appoint trustees, either where there were none, or in place of former trustees, and change those so appointed, whenever it may seem to the court proper, to effect or promote the purpose of the conveyance, devise or dedication ; and the legal title to such land shall for that purpose be vested in the said trustees for the time being and their successors.

“Sec. 10. When books or furniture shall be given or acquired for the benefit of such congregation, to be used on the said land in the ceremonies of public worship, or at the residence of their minister, the same shall stand vested in the trustees having the legal title to the land, to be held by them, as the land is held, for the benefit of the congregation.

“Sec. 11. The said trustees may, in their own names, sue for and recover such land or property, and be sued in relation thereto. Such suit, notwithstanding the death of any of the said trustees or the appointment of others, shall proceed in the names of the trustees, by or against whom it was instituted.

“Sec. 12. Such trustees shall not take or hold at any time more than two acres of land in an incorporated town, nor more than thirty acres out of such a town.

“Sec. 13. Any one or more of the members of any religious congregation may, in his or their names, on behalf of such congregation, commence and prosecute a suit in equity against any such trustee, to compel him to apply such land or property for the use or benefit of the congregation, as his duty shall require. No member of the congregation need be made a defendant to such suit, but, in other respects, the same shall be proceeded in,- and heard and determined as other suits in equity, except that it may be proceeded in, heard and determined as other suits in equity, notwithstanding the death of the plaintiff, as if he were still living.”

On the 3d day of March, 1852, the Legislature of Virginia passed an act entitled, “An act to authorize the circuit courts to direct the sale of church property,” which is as follows, viz :

“ 1. Be it enacted byt%e General Assembly, That whenever any religious congregation, for whose use a conveyance, devise or dedication of land has been lawfully made, shall deem that their interests will be promoted by a sale of such land, it shall be lawful for any member of such congregation, in his name, and on behalf of the other members thereof, to prosecute a suit in equity for that purpose in. the circuit court of the county or corporation, in which such land, or the greater part thereof? may lie, against the trustees, or the survivors of them, in whom the legal title may be ; and it shall be lawful for such court, if a proper case be made, and the court be of opinion that the rights of others will not be violated thereby, to order the sale of such land, and make such disposition of the proceeds thereof as the congregation may desire.

“2. No member of the congregation need be made a defendant to such suit, but any member thereof may voluntarily enter himself as such and contest the same. In other respects the suit shall be heard and determined as other suits in equity, except that it may be.proceeded in notwithstanding the death of the plaintiff, as it he were living.

“ 3. This act shall be in force from its passage.”

Afterwards, on the 13th day of March, 1856, the Legislature of Virginia passed another act which is as follows, viz :

“1. Be it enacted by the General Assembly, That the first section of an act entitled 'An act to authorize the cii’cuit courts to direct the sale of church property,5 passed March 3, 1852, be re-enacted and amended as follows:

“Sec. 1. That whenever any religious congregation, benevolent or literary association, for whose use a conveyance, devise or dedication ol land has been lawfully made, shall deem their interest will be promoted by a sale of such land, it shall be lawful for any member of such congregation, benevolent or literary association, in his name, and on behalf of the other members thereof, to prosecute a suit in equity for that purpose, in the circuit court of the county or corporation in which such land, or the greater part thereof may lie, against the trustees or the survivors of them, in whom the legal title may be; and it shall be lawful for such court, if a proper ease be made, and the court be of opinion that the rights of others will not be violated thereby, to order the sale of such land, and make such disposition of the proceeds thereof as the congregation, benevolent or literary association may desire.55

“2. This act shall be in force from its passage.”

.The eighth, ninth, tenth, eleventh and twelfth sections of the seventy-seventh chapter of the Code of Virginia of 1860, are the same as the same sections of chapter seventy-seven of the Code of 1849,- of the State of Virginia, which I have here quoted, and the thirteenth section of said chapter of the Code of Virginia, of 1860, is the same as the first section of the act of the Legislature of Virginia, as amended and re-enacted by the said act of the Virginia Legislature, passed the 13th day of March, 1856, which I have also copied herein above. I have not been able to find any legislation in Virginia subsequent to the said Code of 1849, bearing upon the sub-jeet, prior to said Code of 1860, other'than above referred to, and the law as contained in the said Code of 1860. The law as contained in the Code of 1860, in said chapter seventy-seven thereof, continued in force in this State from its formation, until the Code of this State of 1868 took effect in April, 1869, after the commencement of this suit. The law upon the subject, as contained in the said Code of Virginia of 1860 is carried into the Code of this State of 1868 without material change, except as hereinafter stated, and is contained in. the first, second, third, fourth, fifth and sixth sections of chapter fifty-seven of the Code of this State of 1868.

Syllabus 1.

From what has been before stated it will be seen, that the statute-law bearing upon the subject of enquiry, as contained in the Code of 1860, chapter seventy-seven, of Viiginia, was in force with us until the present time in all material respects bearing upon said deed. The only change in the statute since 1860 by the Code of this State of 1868 is that the words, “there may be any parcel of ” contained in the first and second lines of the ninth section of chapter seventy-seven of said Code of 1860 are omitted from the second section of chapter fifty-seven of said Code of 1868, and the word “survivors,” contained in the thirteenth section of said chapter seventy-seven, is omitted from the sixth section of chapter fifty-seven of the Code of 1868, and the word “successors” is substituted in lieu thereof. If there are other changes at all material in this case, they do not now occur to me.

The next question now to be considered is: Does the . 1 . . . ♦ i i t cestui que trust or cestuis que trust, specified m said deed come within the meaning or purview of the statute, or in other words, does the statute cover or authorize the trusts specified in said deed? If it does, then of course the trust should be enforced according to the true intent and effect thereof. But according to the authorities I have cited, and which prevail with us, if the statute does not cover or authorize such trust or uses, then the trusts or uses are inoperative and cannot be enforced, because the oestui que trust is too vague and indefinite according to the common law and the rules and principles prevailing with us in courts of equity in such cases. My understanding of the statute is, that the conveyance of this •land must be at least substantially for the use or benefit of some local religious congregation as a place of public worship, or for the use of such congregation as a burial place, or for the use of such congregation as a residence for a minister. And it seems to me, that it cannot be said from any reasonable or fair interpretation of said deed, that it amounts in substance to a conveyance of the land therein mentioned for either of the trusts or uses specified in the statute.

In the book of discipline of the Methodist Episcopal church of 1860, at pages one hundred and sixty-one to one hundred and sixty-six inclusive, there is contained and recommended a form of a deed to be adopted, so far as the laws of the States respectively, will admit of it. In the case of Gibson et al. v. Armstrong and Armstrong v. Gibson et al., 7 B. Mon. 481, the deed for .the land was substantially the same in most respects as that prescribed in •said discipline book of 1860, as I infer from the statement of Judge Marshall, who delivered the opinion of the court, at pages 488 and 469. At page 489 Judge Marshall says: “ The two first clauses have been copied literally, and of the two others, of which the substance is stated, such expressions are retained as are supposed to be in any degree illustrative of the previous portions and of the intended operations of the entire instrument. In reference to a question arising incidentally in the case, we remark that the phrase, * the said church/ used three times in the third clause, evidently means, in the second instance of its use therein, the local church or congregation worshipping on the premises, of whose members alone the stationed preacher has the pastoral charge; and we think the same mean ing should be given to- the same words in the first and third instances of their use in the same clause. From this construction it follows, that a trustee might be regarded as vacating his office by ceasing to be a member of the local church, of which he was a trustee, and that his place might be filled according to the third clause of the deed, although he took membership in the local church of some other place, and in that way continued to be a member of the Methodist Episcopal church.” The judge also says, at page 490: “A second proposition arising from the very nature and circumstances of the case, and demonstrated by the features of the deed and other considerations just referred to, is, that notwithstanding the apparent comprehensiveness of terms, in which the use is declared in the favor of members of the Methodist Episcopal church in the United States, the actual use, that is, the use of the premises by occupancy and for accommodation, and the immediate control of them as a place of worship, was intended to be secured to the local congregation or society, subject to the rules and regulations prescribed by the highest authorities of the church.” In this case the deed conveyed to trustees and their successors forever a lot or parcel of land in the city of Maysville, upon trust for the purpose of erecting a house of worship thereon for the use, &c.

In the case of Brook et al. v. Shacklett, 13 Gratt. 301, the deed was dated 3d day of June, 1842, and the consideration therein stated was >$90.00, and it conveyed a lot in the town of Salem in the county of Fauquier in trust for the purpose of erecting a house of worship thereon for the use, &c. The deed in this case seems to be substantially the same as that in the case irr 7 B. Mon. above cited, as well, in most parts, as the said form contained in the book of discipline of the Methodist Episcopal church of 1860. In this case Judge Daniel, who it seems delivered the opinion of a majority of the court, at pages 312 and 313 says:

' “ There is, I think, nothing in the language of these ^aws ” (meaning the 8th, 9th, 10th, 11th, 12th and 13th sections of chapter 77 of the Code ol Virginia of 1849, and the provisions of the said acts of 1842 and 1846-7) “ to show that the Legislature designed to confer peculiar benefits on any particular sect or sects. And the manfestation of any such', design would not only have been utterly at war with the whole spirit of our institutions, but also in direct conflict with the letter of the Constitution declaring that the Legislature shall not confer any peculiar privileges or advantages on any one sect or denomination. The terms of the acts are broad enough to embrace not only such congregations as may be independent of others, choosing their own pastors, and making the laws for their own government, but also such as may be united with other congregations under a common government, from which they may respectively receive the pastors that are to instruct them or the laws that are to regulate them, without having any voice either in the selection or appointment of the former, or in the framing or enactment of the latter, And such is, I think, the obvious design of the Legislature. The benefits which these acts confer are intended tor any and every religious congregation, without regard to the peculiarities of religious faith or the forms of church governments. It is, however, equally obvious that the conveyances, devises and dedications, to which the acts mean to give validity, are conveyances, devises and dedications of property for the use of the religious congregations therein mentioned, in the limited and local sense of the term, viz: for the members (of these religious congregations) as such, who from their residence at or near the place of public worship may be expected to use it for such purpose. This interpretation is to be drawn from the general tenor of the acts, but more especially from the language of those portions of them that stand in the Code as the eighth and tenth sections of the chapter before referred to. The dedications of real estate must be made for the use of the ‘ religious congre-gatipn, as a plaoe for puhlie worship, or as a burial place, or as a residence for a ministerand that of the ‘books and furniture, for the benefit of such congregation/ to be used on the said land in the ceremonies of public worship, or at the residence of their minister, uses which it is plain, from their very nature and connection and the connection in which they are mentioned, must belong peculiarly in the local society, the religious congregation at or near the locality of the property conveyed. No dedication of property to religious uses which does not respect these rights of the local society or religious congregation, no deed which does not design such enjoyment of the uses of the property conveyed, by the local society or congregation, can be placed within the influence and protection of the statutes.

“The deed under consideration, in its first clause or declaration of trusts, provides that the trustees are to hold the property conveyed to them, and their successors forever, in trust that they shall build or cause to be built thereon a house or place of worship for the use of the members of the Methodist Episcopal church in the United States of America, according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of the said church, at their general conference in the United States of America; and in further trust and confidence, that they shall at all times forever hereafter permit such ministers and preachers belonging to said church, as shall from time to time be duly authorized by the general conference of the ministers and preachers of the said Meth-dist Episcopal church, or by the annual conferences authorized by the said general conference, to preach and expound God’s holy word therein.

“I am free to admit, that the first impression which this clause of the deed is calculated to make is that of a declaration of trust, not for the benefit of a local society or congregation of Methodists worshipping or expected to worship at a particular place, but for the benefit of the Episcopal church in the United States as an aggregate body or sect, to the exclusion of any peculiar rights of property in the land conveyed in such local society or congregation. And if such is the true interpretation to be given the deed, it would plainly stand, for reasons already mentioned, outside of the influence and operation of the statutes. Upon a fuller and more rigid examination of the deed, however, in which I have been much aided by the clear and forcible views presented by Chief Justice Marshall, of Kentucky in announcing the interpretation placed by the Supreme Court of that state on a deed identical in its features with the'deed under consideration, see Gibson v. Armstrong, 7 B. Mon. 481, I have come to the conclusion, that the deed is entitled to be regarded as substantially a conveyance of the property therein mentioned to the uses of the local society ; and that said property is thus placed within the pale of the statutes.

“It is to be observed, as already stated, that the house or place of worship to be erected is to be for the use of the members of the Methodist Episcopal church, &c.; and as the members of the local society are necessarily members of the Methodist Episcopal church, in the sense in which the term is used in the deed, it follows that the land is conveyed for the benefit, to some extent at least, of the local society or congregation. It is to be noted further also, that except upon the happening of a certain contingency, the deed contemplates the perpetual use of the property as a place of worship. And' it is obvious, from the nature of things, that the usual occupancy of the property, in attending upon the preaching and exhortations of their minister and in meeting for the observance of the various religious duties and exercises enjoined upon its members by the rules of the church, is one that can be enjoyed only by the local society; and that any use or occupaacy oí the house by other members of the church must be necessarily casual and infrequent; so much so as not to interfere with the full use and enjoyment of it as a place of worship by the local members, Hence it is fairly inferable that the former use and the latter was mainly if not exclusively within the contemplation of the parties to the deed.

“This view is made still more apparent in the subsequent declaration of the trusts. The deed proceeds to provide further, that in case one or more of the trustees die or cease to be a member of the said church, the stationed minister or preacher who shall have the pastoral charge of the members of the said church, (meaning plainly the society), is to call a meeting of the remaining trustees, who, upon his nomination, are to appoint one or more persons, who shall have been one year a member or members of said church, to fill such vacancy; showing that the minister provided for in fhe deed is to have charge of the members of the local society; who consequently are expected to attend upon and receive his religious instructions and ministrations ; and who are thus necessarily the members that are, peculiarly, to enjoy the occupancy of the house as a place of worship. And in the next and last clause, in which, upon a certain contingency, provision is made for the sale of the property for the discharge of debts incurred by the trustees on account of the premises, the surplus arising from the sale, after paying the debts, is directed to be placed in the hands of the steward of the society attending divine service on the premises, and is to be disposed of by the next conference, according to the best of their judgment, for the use of said society.

“Does not this provision strongly persuade to the conclusion of a design that, in the event no sale of the property is ever required, or until it is required, the immediate control and peculiar use of the property is to be and remain with the local society, by the contributions of whose members, in the main, (as is stated in the bill, and not denied in the answer,) the church-house was erected, and to whose use the surplus proceeds of the property, in the event of a sale, are to be appropriated.

“‘The primary object of the whole transaction/ (in the language of Chief Justice Marshall in the case before cited,) ‘ must necessarily have been to provide and secure a place of worship according to the Methodist Episcopal discipline for the local society of that denomination, by and for which contributions were made, and which was expected to attend worship on the premises. The members of the Methodist Episcopal church at large, not belonging to the local society, can, in a general view have no other use of the local premises, but through the instrumentality of the local society, and by means of the subordination of the local use to the laws and authority of the church at large.’ ”

In the thirty-second section of the fourth article of the Constitution of Virginia of 1851, it is declared, that the general assembly may secure the title to church-property to an extent to be limited by law ; whilst an additional guard against the dangers adverted to is thrown around the subject by a provision, that there shall not be any grants of charters of incorporation to any church or religious denomination.

In the case of Venable et al. v. Coffman et al., 2 W. Va. 310, the deed was dated in 1851, conveying to the trustees of the Methodist Episcopal church in Lewis-burg, and their successors in office, two certain lots, known as numbers sixty-two and sixty-four, on which was erected a brick house of worship, for the use of the minister and members of the Methodist Episcopal church, &c.

In the case of Seaburn’s ex’r v. Seaburn et al., decided by the Court of Appeals of Virginia in 1859, 15 Gratt. 423, it was heíd: “ 2. The act, Code, ch. 77, § 8, p. 362, does not authorize a devise of land for the Mse of a religious congregation, but only a conveyance by deed. 3.< A fortiori the act does not authorize a bequest of money to be expended in building a church at a specified place', or for the support of the pastor of the said church.” In this case Judge Moncure, in deliver-ingthe opinion of a majority of the court, at page 432, *

“ Under these circumstances we think we ought not to apply a very liberal rule of construction to the statute, but to construe it according to the general rules. And so construing it, we think the conveyance, by which it authorizes a transfer of land to be made for the use of a religious congregation, does not embrace a devise. We think the Legislature plainly intended to alter the preexisting law, by not authorizing such a transfer of land by devise in future. Whether the reason for the alteration was good or not, is a question which it belongs not to this, court to decide. We may readily conceive what the reason was. And we must admit that the danger of excessive and inordinate alienation of property to religious uses, so jealously guarded against by the policy of our law and the provisions of our Constitution, before referred to, would be greatly increased by authorizing such alienation to be made by will as well as by-deed.”

The ninth section of the second article of the Constitution of this State of 1863 among other things declares, that the Legislature shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination. The second section of article eleven of the same Constitution declares, that no charter of incorporation shall be granted to any church or religous denomination, but it provides, that provision may be made by general laws for securing the title to church-property, so that it shall be held and used for the purposes intended. The fifteenth section of the third article of the Constitution of this State, ratified in 1872, and which took the place of the Constitution of 1863, declares among other things, that the Legislature shall not prescribe any religious test whatever or confer any peculiar privileges or advantages on any sect or denomination. And the forty-seventh section of the sixth article of the same Constitution declares, that no charter of incorporation shall be granted to any church religious denomination, but provides, that provision may be made by general laws for securing the title to church-property, and for the sale and transfer thereof, so that it shall be held, used or transferred for the purposes of said church or religious denomination.

As we have seen, the deed in question in the case at bar is dated the 8th of September, 1856, and is between Angus W. McDonald and Cornelia, his wife, and Arnold S. Trowbridge, of the county of Hampshire, and State of Virginia, of the one part, and nine persons, named in the deed, trustees of the Methodist Episcopal church in South Branch circuit, Baltimore annual conference, appointed by the circuit court of Hampshire county at September term, 1856, upon the application of the Rev. Thomas Hildebrand, preacher in charge of said circuit, of the second part. The deed recites, that the said Angus W. McDonald, for the consideration of the sum of $300.00, contracted to sell and convey with general warranty to the said Arnold S. Trowbridge, his heirs or assigns, two certain lots in the town of Romney, containing each a half an acre of ground, which consideration the said Angus W. McDonald acknowledges to have been paid by the said Arnold S. Trowbridge. And the deed then further recites, that the said Trowbridge had erected a brick dwelling-house and other improvements on said two lots, which are known and distinguished in the plat of said town of Romney by the numbers twenty-three and twenty-four, had sold to the said parties of the second part and their successors in office the said two lots with their appurtenances for the sum of $1,790.00, the receipt whereof he acknowledges. The deed then further proceeds to declare, that therefore this deed witnesseth, that the parties of the first part for and in consideration of the premises and for the further consideration of $1.00 to them in hand paid by the said parties of the second part at or before the sealing and delivery of the deed, the receipt whereof is acknowledged, have granted, bargained and sold, &c., and by these presents do grant, &c., unto the parties of the second part, trustees as aforesaid, and their successors in office the said two lots of land situated as aforesaid in the said town of Romney, &c., to have and to hold unto the said parties of the second part and their successors in office forever, in trust nevertheless, that they shall hold the same, and cause the building to be put and kept in repair as a parsonage or place of residence for the use of the ministers or preachers of the Methodist Episcopal church in the United States of America according to the rules and discipline, which from time to time may be agreed upon and adopted by the ministers and preachers of said church at their general conference in the United States of America, and in further trust and confidence, that they shall at. all times forever thereafter permit such ministers and preachers belonging to said church, as shall from time to time be duly authorized by the general conferences of the ministers and preachers of said Methodist Episcopal clmrch, or shall by the annual conferences authorized by the said general conference, be from time to time stationed on the circuit, within the bounds of which said house and lots are situated, to use and occupy said house and lots as a parsonage or place of residence. The deed then further declares, that in case the general conference of said church shall make such change in the discipline or constitution of said church at any time thereafter, as shall render it necessary or expedient for the annual conference, within the bounds of which said lots are situate, to separate from said general conference, then said lots are to be held for the use of the ministers or preachers sent by said annual conference to the circuit, within the bounds of which said parsonage is situated. And the deed then further proceeds to declare in further trust and confidence, that as often as any one or more of the said trustees shall die or cease to be a member of said church, according to the rules and discipline of the general conference, of which the annual conference, within whose bounds said parsonage is situated belongs, then and in such ease it shall be the duty of the stationed minister or preacher, who shall have the pastoral charge of the members of the said church, to call a meeting of the remaining trustees, as soon as conveniently may be, and when so met, the minister or preacher shall proceed to nominate one or more persons to fill the place or places of him or them, whose office or offices has or have been vacated as aforesaid, provided the person or persons so nominated shall have been one 'year a member or members of the said church immediately preceding such nomination, and be at least twenty-one years of age; and the said trustees so assembled shall proceed to elect, and by a majority of votes appoint the person or persons so nominated to fill such vacancy or vacancies, in order to keep up the number of nine trustees forever; and in the ease of an equal number of votes for and against the said nomination, the stationed minister or preacher shall have the casting vote.

Now I think it is manifest, that the said deed attempts to create the following trusts and uses: ' First — That the trustees shall hold the lots conveyed and cause to be kept in repair as a parsonage or residence therein for the use of the ministers or.preachers of the Methodist Epis--copal church, in the United States of America, according to the rules and discipline, which shall be from time to time agreed upon and adopted by said ministers or preachers of said church at their said conference. Second — That the said trustees shall at all times forever thereafter permit such ministers and preachers belonging to said church, as shall from time to time be duly authorized by said general conference of said church, or shall by the annual 'conferences authorized by the said general conference be from time to time stationed on the circuit of said church, within the bounds of which said house and lots áre situated, to use and occupy said house and lots as a parsonage or place of residence. Third — But if the said general conference shall thereafter make such change in the discipline or constitution of said church at any time thereafter, as shall render it necessary or expedient for the annual conference, within the bounds of which said lots are situated, to separate from said general conference, then the said lots shall be held for the use of the ministers or preachers sent by such annual conference to the circuit of such annual conference, within the bounds of which said parsonage is situated; and Fourth and last — That as often as vacancies occur caused by the death of any of the trustees or by any of them ceasing to be a member of said church according to the rules and discipline oí said general conference, of which the annual conference within whose bounds said parsonage shall be situated belongs, then and in such case, it shall be the duty of the stationed minister or preacher, having the pastoral charge of the members of such church, to call a meeting of the remaining trustees as soon as conveniently might be, and when so met, such minister or preacher shall proceed to renominate one or more persons to fill such vacancy or vacancies, &c., as stated in the said deed.

It seems to me that it cannot be successfully maintained upon authority or principle, that the first trust or use attempted to be created by said deed is for the peculiar use of any local religious congregation at or near the property conveyed as a residence for a minister, or that in fact it is for the use of any congregation of the Methodist Episcopal church as distinguished from any other or others, at least within the South Branch circuit of said church, if it could be confined to that circuit. In fact there is nothing in the clause specifying this trust or use designating any cestui que trust or use, such as is mentioned and contemplated by the statute. And the trust or use therein prescribed is not within the influence or purview of the statute. This trust or use not being covered by the statute is so vague and indefinite as to be inoperative and of no eflect under the decisions, to which I have referred. Bearing the fact in mind, that the deed was ma<^e f° the parties therein named as trustees of the South Branch circuit ot said church, and considering the said first trust or use in connection with the second trust or use, the said second trust or use is for a place of residence for the minister who shall be assigned by the proper authority from time to time in charge of said circuit or the circuit within whose bounds the property shall be situated. While the members of the Methodist Episcopal church within the bonnds of the circuit, in which the property conveyed might, be situated might derive in some way a benefit from the said second trust or use, still, I apprehend, it cannot successfully be maintained upon any fair construction of the statute or decision of the Court of Appeals of Virginia or of this State, that such a trust or use is within the purview of the statute relating to the subject under consideration.

We see from the evidence in the cause, that a circuit of said church is not necessarily permanent in its boundaries — that the boundary of a circuit may be changed by the proper, authority of the said Methodist Episcopal church from time to time, as such authority may deem it expedient and proper so to do. Thus by the exercise of such authority, which, we see, has been done in this case to a considerable extent, there is not permanence in the boundaries of a circuit of said church. The property conveyed may one year be within the boundaries of one circuit, and the next or perhaps sooner within another. In fact it might one year be in the north end of one circuit, and the next in the south end of another. Stations may be carved out of circuits by the proper church authority, &c.

Do the members of the Methodist Episcopal church within the bounds of a circuit of said Methodist Episcopal church constitute a congregation within the purview and meaning of the statutes bearing upon the subject ? and can it fairly and properly be so held by a court, whose province is to ascertain and declare what the law is, and not to make the law ? I answer, under ■ the authorities and decisions which prevail with us, in the negative. When a conveyance is made for the use of, a a religious congregation of the Methodist Episcopal church, worshipping at or near any designated place, of land as a residence for a minister, then the staiute makes the use in that case sufficiently explicit by express provision. The -statute, as we have seen, contemplates a local congregation. It appears that within the South Branch circuit there are several distinct congregations of the Methodist Episcopal church worshipping at as many different places; and I feel authorized to infer from what appears in the cause, that at the date of said defed there were within said circuit several distinct congregations in charge of' the minister assigned or stationed upon said circuit by the authorities of the said church. I see no reason to conclude, that the phrase “ any religious congregation,” used in the first line of the seventy-seventh chapter of said Code of Virginia should have attached to it any less extensive meaning than the same phrase employed in. the fourth line of the eighth section of the same chapter. Can it be contended, with any reasonable plausibility, that a member of any one of the several congregations of the Methodist Episcopal church, within the bounds of the South Branch circuit of said church, could maintain a suit in the circuit court, or any other court in the State, under the provisions of said thirteenth section of said chapter seventy-seven of the said Code of Virginia, for the sale of said lots, upon the ground that the whole membership of said church, or the several congregations of said church, within the bounds of the circuit of said church, in which said lots are situated, constitutes a religious congregation within the meaning of said statutes ? To my mind the answer is clearly but one, and that is in the negative.

The counsel for the appellees filed with the cause at the time of the hearing thereof before this court, what purports to be the opinion of Judge Parker, late judge of the Winchester circuit court, of Virginia, rendered in is called a Methodist church case, it being the case Anderson & Bowers v. Nulton et al., and the said counsel asked us to read and consider it for what it was worth, in considering the case at bar. From said opinion it appears, that both the contending parties claimed the property in dispute under a deed made on the 18th day of June, 1863, by David W. Barton, a special commissioner of sale, to Abraham Nnlton and the other trustees, “ in trust for the use and benefit of the congregation of the Methodist Episcopal church in Winchester and its vicinity.” In his opinion in print, as it is before us, the judge says:

“ Clearly the contributors acquired no legal or equitable right of property in the church-building; the congregation designated in the' deed became the only beneficiaries. Nor could the individual members of the congregation acquire any separate individual property ther-in. This appertained to the congregation alone, however much it might change and fluctuate. The grant is not and could not be to the Methodist Episcopal church, meaning thereby the church at large; but it is to the local society or particular congregation. Our law is plain and explicit on this. It permits and protects such a grant to a local congregation, whilst it utterly prohibits an attempt to confer property upon an establishment like the Methodist Episcopal church.”

If this opinion were authority for this Court, and if it tends to prove anything, it is, that the second as well as the first trust or use created in said deed, or attempted to be created, is not authorized by the statute. But Judge Parker in his said opinion in fact follows, as far as he goes, to a great extent the principles announced on this subject in the case of Brooke et al. v. Shacklett, 13 Gratt.

The said third trust or use is conditional in one respect^ as is clearly seen, and is subject to the same fatal objections as the second, as is manifest 'upon its face. It does not in any respect tend to aid the preceding trusts or uses, but in fact in some respects renders the trusts and uses sought to be created by said deed more uncertain, if possible.

In the fourth trust by'the words, “ stationed minister or preacher, who shall have the pastoral charge of the members of said church,” I think is meant, as used in the deed, the minister or preacher assigned by the annual conference to have pastoral charge of the members of the church within the circuit, and does not refer to any particular or local congregation of the church. But this fourth trust is part of the scheme for perpetuating the said preceding trusts, and as they are none of them within the influence or purview of the statute nor valid without the statute, this trust falls with the other specified trusts and uses of the deed.

It does not appear how the money 'was raised, which the deed recites was paid to the grantor, Trowbridge, for the said house and lots of ground, or from whence it came, any further than is shown by the recitals in the deed. It will be seen that the deed in question in this case contains no provision in case of the sale of the property as to how the proceeds of sale should be applied, as was the case in the Brooke, and Bhachlett cas'e and in the case in 7 B. Monroe above cited. In the case of Gallego’s ex’rs v. The Attorney General, 3 Leigh, Judge Tucker at page 465 says : “There is no principle supposed to be more perfectly settled, in reference to conveyances, than that every deed must have sufficient certainty as to the grantee, who is to take under it. If there is such uncertainty as to the grantee, that it cannot be known distinctly who is to take by the grant, it is ipso facto void for that uncertainty.” Again on page 466, Judge Tucker says : “ There is not more necessity for a properly defined grantee in a deed, than for a cestui que trust capable of taking, and so defined and pointed out that the trust will not be void for uncertainty. In short, there cannot be a trust without a cestui que trust; and if it cannot be ascertained who the aes^ (lue trust is, it is the same thing as if there was none. These principles, it is confidently believed, are the general principles of the common law upon the subject.” Again at page 467 the same learned judge says: “A diligent search has led me to the conclusion, that there was no case at common law, in which a bequest or a trust of this indefinite character could be supported; and the learned counsel on both sides have acknowledged that they have been unable to discover any case anterior to the statute of 43 Elizabeth, in which the validity of such bequests or trusts has been distinctly recognized by the courts.”

Of course I feel it my duty to enforce the statutes heretofore passed by the Legislature, or that may be hereafter passed by the Legisture, which are within the constitutional powers of the Legislature, in relation to church-property. And I feel disposed, in construing such acts of the Legislature upon that subject, to give full effect to the intent of the Legislature. But at the same time I feel it to be my duty to keep within the clearly indicated intent of the Legislature, and not to go beyond it. If the Legislature, in representing the sentiments of the people, desires to proceed further than it has heretofore gone, and does so within constitutional limits, it will be my duty to aid in its enforcement, which duty will be faithfully performed to the best of my judgment.

After a patient examination of the deed under consideration in this case, in all its parts, and the authorities bearing upon the said four trusts or uses therein specified, which I have hereinbefore stated and indicated, and after having patiently and elaborately considered the same, I am of opinion that none of said trusts come within the influence or purview of the statute, and that, because of their vagueness and indefiniteness as to the cestui que trust or cestuis que trust therein referred to the same are under the law, as it is with us, inoperative and in effect void. And that therefore no trustees, as to said lots of land, could be appointed .by the circuit court of the county of Hampshire, or the circuit'court of the county of Mineral, as was done by each of said courts, under the provisions of the ninth section of said chapter seventy-seven of the Code of Virginia of 1860, or the second section of the fifty-seventh chapter of the Code of this State of 1868. The Legislature of this State passed an act amending the said fifty-seventh chapter of the Code of this State of 1868, which was approved the 2d day of April, 1873. See Acts of 1872-73, commencing on page 208. This act makes changes in' the said fifty-seventh chapter of the Code and the first section thereof as well as other sections thereof. And among other things it may have been intended to cure some defects existing in some deeds made prior to the date of the act, and perhaps it may have that effect in some cases. But this act has not been relied on by counsel before us in argument or in their briefs as curing or validating the said trusts specified in the deed in question in this case, so far as now recollected. But if it had been so relied on, whatever may be its curative effects upon the trusts or uses contained in other deeds unlike the one in question, it seems to me for obvious reasons, that it cannot fairly or justly be construed to have the effect of curing or validating the trusts or uses specified in this deed.

If land is conveyed for the use and benefit of the Methodist Episcopal church for a place of public worship, then the local congregation or society may be readily ascertained and determined. But if conveyed for the use and benefit of the Methodist Episcopal church simply for a residence for a minister or for its ministers without locality in the deed as to the place of the church, then in would be difficult, if not impossible, in many cases to ascertain and determine satisfactorily, which is the local society or congregation; as, for instance, in a city or town, in which there are several distinct societies or congregations of the Methodist Episcopal church. Other instances of difficulty might be easily given, but I deem it unnecessary. But the trusts or uses specified in the deed in question are not mentioned in the said act. There is no such cestui que trust or use mentioned in this deed as those specified in said act, as may be readily seen by comparison. I am now speaking of the said act of 1873.

Syllabus 2.

The plaintiffs’ bill was filed in this case as, is obvious from its contents, upon the supposition that the trusts specified in said deed were operative and valid and en-forcible in a court of equity, and the manifest object of the bill is in effect to carry out the said trusts or uses, and not for the purpose of removing a cloud upon the title of the plaintiffs and the other original trustees or any of them. The.proceedingof the circuit court of the county of Hampshire in appointing trustees of the property conveyed by said deed on the application of B,ev. Mr. Torreyson was altogether ex parte, and as the said trusts specified in said deed were inoperative and in effect void upon their face from the beginning, for the reasons aforesaid, the appointment of trustees in that proceeding to fill supposed vacancies in place of a part of the persons in the deed mentioned could not and did not confer any right or title in the persons so appointed by the court to the property conveyed. Several other errors were assigned and discussed by counsel before us at the hearing, but under the view I have taken of the case they have become immaterial and therefore do not fairly arise or pertain to the case; and I therefore deem it unnecessary and improper to express any opinion touching the same.

The said trusts specified in said deed being inoperative and in effect void from the beginning, as hereinbe-fore determined, is the deed void at law as a grant of the property to the persons therein named, it (the deed) appearing to have been made to said persons for valuable consideration and being a deed of general warranty ? Under the view I take of this case it is not necessary or perhaps proper now to pass an opinion upon that, question, as persons interested therein are not before the court, and that question has not been very elaborately argued before us.

As before stated, it does not appear in the case distinctly with whose money the said house and lots were purchased of Trowbridge and paid for, whether it was the money of the persons named in the deed as trustees, or the money of other persons. If it was the money of other persons, it is not necessary now to consider the question, whether, as the trusts specified in said deed are inoperative and in effect void for the reasons aforesaid, the persons, whose money paid for the property, have the equitable right to claim the property, or have a resulting trust against the said property in the hands of the persons named in said deed, as trustees, who are living, and the heirs of those, who are dead, as that question does not arise in this case.

' For the foregoing reasons there is error in the said decree of the circuit court of Mineral county, rendered in this cause on the 24th day of December, 1870; and the whole of said decree must therefore be reversed and annulled, and the appellants must recover against the ap-pellees, James Carskadon, Isaac H. Carskadon, Henry Trout and Enos Everett, their costs about the prosecution of their appe.al in this cause expended. And this Court proceeding to render such decree in this the said cause of James Carskadon and others against Charles L. Torreyson and others, as the circuit court of the county of Mineral ought to have rendered, it is adjudged, ordered and decreed, that the injunction heretofore awarded in this cause be dissolved, and that the plaintiffs5 bill filed in the cause be dismissed, but without costs. But this dismissal is without prejudice to any suit or proceedings at law or equity, which, the plaintiffs, or any of them may be advised to hereafter bring against the defendants or any of them, or any other person, with a view to quiet the title to the house and lots in the bill mentioned, or to recover the possession of said property, or to try the validity of the said deed in the bill mentioned as a simple deed of conveyance of the property therein mentioned absolutely to the person therein named or for any other purpose, except the enforcement of specific trusts specified in said deed. And it is further adjudged, ordered and decreed, that the petition of Rev. George Crossfield for the appointment of trustees in the room of former trustees be and the same is hereby dismissed, but without costs.

The Other Judges CONCURRED.

Decree Reversed.