The opinion of the court was delivered by
Wheeler, J.
The deed from George Howe'to Oliver Lowry, Luther Prouty and William A. Prentiss, described the land con[288] veyed as being then enclosed as a meeting-house green, on which the brick meeting-house or church at Jericho Corners then stood, and conveyed it to that use, upon the special trust and confidence, and for no other purpose whatever, that the grantees, their heirs and assigns, and the survivor of them, his heirs and assigns, should permit the owners, proprietors and their successors, of the brick meeting-house or church, to occupy the land for the purpose of continuing a brick meeting-house thereon, and for a common or green • subject to the reservation and condition that if the owners and proprietors of the brick meeting-house or church should neglect or omit to occupy the land for that purpose and by continuing a meeting-house or church upon it, then the land should revert to the grantor and his heirs. Whether this grant vested the whole fee of the land in the grantees until there should be a breach of the trust, and until it should be revested in the grantor, or those standing in his right in this respect, making what is called an estate upon condition, or only conveyed an estate equal in duration to the time during which the trust should be carried out, reserving the rest of the fee in the grantor, making an estate with a conditional limitation, in either case, the grantees and those standing in their right, would continue to hold the land so long as the trust should be carried out. The purpose of the trust was to have the land used for a common or green, with a meeting-house upon it. The trust could be carried out without continuing the same meeting-house, or a brick meeting-house, upon the land ; for it was to revert only upon the omission or neglect to occupy the land for the purpose aforesaid, that is, for a common or green, and by continuing a meeting-house or church upon it, without more than that it should be a meeting-house or church. It is plain that the grantor looked forward to, and in the grant intended to provide for, the times of weakness that owners and proprietors of meeting-houses frequently must pass through, as well as for the times of strength they might enjoy.
The words, meeting-house and church, as used in this deed, imply a house to meet in for religious worship; but not that it shall be constantly used for that purpose. It must be kept for that use, and not be put to any other use substantially inconsistent [289] with that. While so kept, it would be continued within the fair meaning of the words of the deed. Should the use of the house for that purpose be wholly abandoned, then a meeting-house or church would not be continued there according to the terms of the deed, although the house should continue to stand and not be put to any other use. Should the house be destroyed by any casualty, while the intention to rebuild and maintain another, for the same purpose, should be in good faith entertained by the owners and proprietors of the one destroyed, and the land should be put to no use inconsistent with that purpose, there would be no breach of the trust and confidence reposed in them by this grantor. Delay to rebuild or to take any measures to do so, long continued, would be strong evidence of a discontinuance of the intended use, but that would not be conclusive. Lack of repair of the house is evidence of the same character, but is still less conclusive.
The testimony in this case shows a want of repair in the house to a considerable extent; also that the spiritual church accustomed to meet there is weak, and that the owners and proprietors of the house are not zealous in carrying forward religious worship in it. It is well known, however, that many churches have been weaker than this is, and the owners and proprietors of houses of religious worship more cold than these are, and after that the churches have revived and prospered, and the societies become strong and efficient. In view of all experience in such matters, it cannot be assumed but that a time of strength and prosperity will follow the present time of weakness of this church while it has so many members as it now has, and still less, that it has abandoned its hope of existence or its house of worship.
Upon all the testimony, it is not found that there has yet been any breach of the trust and confidence upon which this grant was made, in respect to a continuance of a meeting-house or church upon the land. The questions as to the nature of the estate granted and the necessity of an entry, and as to who could make the entry if one was necessary, which would have been important if a breach had been found, are rendered wholly unimportant to this decision by the failure to find any breach. These [290] questions are, therefore, left without any expression of opinion upon them.
It appears that a narrow strip of the land has been enclosed with the burying ground that adjoined it, and used for burial purposes. The use of ground about churches for burial purposes is not unusual. Some members of the court think that such use of' this piece of land, as has been shown to have been made in this case, is consistent with the use required by this deed; others think it inconsistent. The piece so used is very small, and not at all material to this controversy, or to the parties to it. If such use has wrought a technical breach of the trust and a forfeiture of the estate, the forfeiture rests upon no substantial foundation. In equity, the substance is regarded railer than the technicality, and relief from such forfeitures frequently afforded. Those members of the court who think that use to be inconsistent, also think that such relief should be afforded in this case as to prevent the defendants from standing upon any forfeiture on account of it. All therefore are agreed that relief cannot be denied to the orators by reason of that use.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Wheeler, J.
The deed from George Howe'to Oliver Lowry, Luther Prouty and William A. Prentiss, described the land con[288] veyed as being then enclosed as a meeting-house green, on which the brick meeting-house or church at Jericho Corners then stood, and conveyed it to that use, upon the special trust and confidence, and for no other purpose whatever, that the grantees, their heirs and assigns, and the survivor of them, his heirs and assigns, should permit the owners, proprietors and their successors, of the brick meeting-house or church, to occupy the land for the purpose of continuing a brick meeting-house thereon, and for a common or green • subject to the reservation and condition that if the owners and proprietors of the brick meeting-house or church should neglect or omit to occupy the land for that purpose and by continuing a meeting-house or church upon it, then the land should revert to the grantor and his heirs. Whether this grant vested the whole fee of the land in the grantees until there should be a breach of the trust, and until it should be revested in the grantor, or those standing in his right in this respect, making what is called an estate upon condition, or only conveyed an estate equal in duration to the time during which the trust should be carried out, reserving the rest of the fee in the grantor, making an estate with a conditional limitation, in either case, the grantees and those standing in their right, would continue to hold the land so long as the trust should be carried out. The purpose of the trust was to have the land used for a common or green, with a meeting-house upon it. The trust could be carried out without continuing the same meeting-house, or a brick meeting-house, upon the land ; for it was to revert only upon the omission or neglect to occupy the land for the purpose aforesaid, that is, for a common or green, and by continuing a meeting-house or church upon it, without more than that it should be a meeting-house or church. It is plain that the grantor looked forward to, and in the grant intended to provide for, the times of weakness that owners and proprietors of meeting-houses frequently must pass through, as well as for the times of strength they might enjoy.
The words, meeting-house and church, as used in this deed, imply a house to meet in for religious worship; but not that it shall be constantly used for that purpose. It must be kept for that use, and not be put to any other use substantially inconsistent [289] with that. While so kept, it would be continued within the fair meaning of the words of the deed. Should the use of the house for that purpose be wholly abandoned, then a meeting-house or church would not be continued there according to the terms of the deed, although the house should continue to stand and not be put to any other use. Should the house be destroyed by any casualty, while the intention to rebuild and maintain another, for the same purpose, should be in good faith entertained by the owners and proprietors of the one destroyed, and the land should be put to no use inconsistent with that purpose, there would be no breach of the trust and confidence reposed in them by this grantor. Delay to rebuild or to take any measures to do so, long continued, would be strong evidence of a discontinuance of the intended use, but that would not be conclusive. Lack of repair of the house is evidence of the same character, but is still less conclusive.
The testimony in this case shows a want of repair in the house to a considerable extent; also that the spiritual church accustomed to meet there is weak, and that the owners and proprietors of the house are not zealous in carrying forward religious worship in it. It is well known, however, that many churches have been weaker than this is, and the owners and proprietors of houses of religious worship more cold than these are, and after that the churches have revived and prospered, and the societies become strong and efficient. In view of all experience in such matters, it cannot be assumed but that a time of strength and prosperity will follow the present time of weakness of this church while it has so many members as it now has, and still less, that it has abandoned its hope of existence or its house of worship.
Upon all the testimony, it is not found that there has yet been any breach of the trust and confidence upon which this grant was made, in respect to a continuance of a meeting-house or church upon the land. The questions as to the nature of the estate granted and the necessity of an entry, and as to who could make the entry if one was necessary, which would have been important if a breach had been found, are rendered wholly unimportant to this decision by the failure to find any breach. These [290] questions are, therefore, left without any expression of opinion upon them.
It appears that a narrow strip of the land has been enclosed with the burying ground that adjoined it, and used for burial purposes. The use of ground about churches for burial purposes is not unusual. Some members of the court think that such use of' this piece of land, as has been shown to have been made in this case, is consistent with the use required by this deed; others think it inconsistent. The piece so used is very small, and not at all material to this controversy, or to the parties to it. If such use has wrought a technical breach of the trust and a forfeiture of the estate, the forfeiture rests upon no substantial foundation. In equity, the substance is regarded railer than the technicality, and relief from such forfeitures frequently afforded. Those members of the court who think that use to be inconsistent, also think that such relief should be afforded in this case as to prevent the defendants from standing upon any forfeiture on account of it. All therefore are agreed that relief cannot be denied to the orators by reason of that use.
The grant was made in express terms to the grantees, their heirs and assigns, and the survivor of them his heirs and assigns, upon the special trust and confidence set forth in the deed. The grantees were joint tenants of the trust estate and William A. Prentiss is the survivor of them. He has conveyed his title to the defendant school district. By this conveyance the school district became the assignee of the trust estate, and took it just as William A. Prentiss, the -survivor of the trustees, held it; and just as the deed provided that the assignee of the grantees, or of the survivor of them, should take it; that is, upon the special trust and confidence to permit the owners and proprietors of the meeting-house to occupy the land for the purpose of continuing a meeting-house thereon and for a common or green. The school district and its officers attempted to convert the meeting-house into a school-house, and the land about it into a school-house yard. Such a conversion would have been a direct and substantial breach of the trust. It is the duty of courts of chancery in this state to prevent such a breach of trust, when properly applied to for that [291] purpose by proper parties. Each of the orators, except two, has shown either a legal or an equitable title to a pew in the church. One of these two is the widow of a husband who had title to such a pew. Under the statutes of this state, the pew might be assigned to her as dower ; and she would have the right to occupy it until dower should be assigned. It does not appear whether dower has ever been assigned'her or not, and in the absence of anything to show that her right to occupy the pew has been terminated by the assignment of dower, without assigning the pew as a part of it, it will not be presumed that her right to occupy it has been terminated.
The other of the two is the husband of a wife that owns a pew. He has the right, as husband, to the use of the pew at least during coverture. All the orators therefore have at least equitable interests in the pews. The interests of pew-holders are substantial and material rights in a meeting-house, which in this case would be injuriously affected by the breach of the trust attempted by the defendants. They had the right to join in the suit to protect the interests common to them all. The relief afforded by the court of chancery was the proper relief; therefore, the decree of that court is affirmed.