Chapman, C. J.*
Trinity Church was incorporated by the St. of 1830, c. 83, as successor of a prior unincorporated society, and held certain real estate on Summer Street in Boston, where its church edifice stood. The corporation, as well as its predecessor, was composed of the proprietors of pews, and has continued to hold its property till the present time. The titles by which it was acquired will be considered hereafter. Upon th1? application of the corporation, an act was passed by the legisla* [17] turc on April 25, 1871, authorizing the corporation to sell this estate at public or private sale, and give the purchaser or purchasers good title, free of any trusts. So much of the avails as may be necessary are to be appropriated to pay the debts of the corporation, and to compensate the owners of pews and rights in tombs situated upon the land. The balance is to be applied to the purchase of land in Boston, and the erection of a new church thereon, to be held upon the same trusts as those upon which the present property is held. The application for the act was made by vote of a majority; the act has been accepted by a similar vote; and measures have been taken for making the sale. The purpose of this bill is to restrain the sale. We are not embarrassed by the allegation of any proposed changes in respect to doctrine, discipline, or modes of worship. Nothing is intended but to sell this property and build a new edifice in some new place in the city, which the defendants think will be more convenient and agreeable than the present one.
Changes of this sort are very common, not only in Boston, but in most of our growing cities and towns; and the legal rights of all parties interested in such cases have been much discussed, and are well settled. When such property is held in trust for the general purposes of the society, and cannot otherwise be conveyed, the legislature has constitutional power to authorize the trustees to convert their real estate into personal, in order that the avails may be reinvested or otherwise appropriated to the purposes of the trust. Rice v. Parkman, 16 Mass. 326. Humphrey v. Whitney, 3 Pick. 158, 164. Davison v. Johonnot, 7 Met. 388. Sohier v. Massachusetts General Hospital, 3 Cush. 483. Pine Street Congregational Society v. Weld, 12 Gray, 570. The principle is not limited to property held for parochial purposes. But we have no occasion to consider it in its application to other cases. The act now in question, and the acceptance of it by vote of a majority, gave the defendants full authority to sell the property, unless some of the objections urged by the plaintiffs constitute a legal obstacle to the sale.
The first and principal objection urged is, that, by reason of the title by which the land is held, it is necessary, or is at least [18] a duty which the court will enforce, that the defendants should hold it perpetually, for the purposes to which it is now devoted It becomes necessary therefore to look into this title.
The greater part of the land was conveyed by Leonard Vassall to John Barns, John Gibbins and William Speakman, on April 30, 1730, in trust to cause a building to be erected thereon for the performance of divine service according to the rubrics of the common prayer book of the Church of England as by law established ; and if the house should not be erected within five years, Vassall was to be entitled to a reconveyance on repayment of the consideration.' The house was erected, and Gibbins and Speak-man conveyed the property to Peter Luce and three other per-, sons, “ being a committee duly chosen by sundry persons who advanced divers sums of money towards erecting and building a new church in Summer Street.” The grantees were, by the terms of the deed, to hold the property till they should be reimbursed for moneys advanced, and what should be further advanced to finish and complete the church ; and were then to convey it to the vestry and wardens of the church. This deed is dated February 28, 1735, and expressed to be in trust. On December 10,1739, Luce and others conveyed the property to the vestry and wardens, naming them, and to their successors in office. The deed recites the conveyances from Vassall downwards, and recites that the grantors have been paid and indemnified, by the sale of pews and otherwise, for moneys advanced. The habendum is : “ In trust nevertheless, and upon condition always, that the said edifice or building, called Trinity Church, and the land aforesaid whereon ijt stands, and before conveyed, shall from henceforth and forever hereafter be converted, improved, appropriated and made use of for the public worship of God according to the rubric of the common prayer book used by the Church of England as the same is settled and established by an act of the parliament of England, made in the first year of the reign of Queen .Elizabeth, entitled ‘an act for uniformity of common prayer and service in the church, and administration of the sacraments,’ and another act of the parliament of England, made in the thirteenth year of tho reign of King Charles the Second, entitled ‘ an act for the uni[19] formity of public prayers and administration of sacraments and other rites and ceremonies, and for establishing the form of making, ordaining and consecrating bishops and deacons in the Church cf England; ’ and to be converted, improved and used to and foi no other use or purpose whatsoever.” This is the only clause in the deed that we need to consider here. It is relied upon by the plaintiffs as showing that the wardens and vestry took their title upon condition subsequent; and that by the contemplated sale the title would be forfeited.
The words “ upon condition ” are appropriate words for creating a condition, but they do not of necessity create such an estate. Stanley v. Colt, 5 Wallace, 119, and cases there cited. If it is such an estate, in this case, the forfeiture would be to the grantors or their heirs. But the grantors were merely a committee who had taken their title in trust for the society; and if it were to come back to their heirs by forfeiture, it must be held by them in trust for the society, and thus would merely be turned into a trust estate. Therefore nothing could be gained by a forfeiture, or by treating it as an estate on condition. Taking into consideration the title of the grantors, the purposes of the grant, and the fact that the expression is “in trust nevertheless,'and upon condition always,” the fair construction of the instrument is, that the parties intended the title to be in trust, and that the words “ upon condition ” were not used in their technical sense. These words do not always create a condition. Merchant Tailors' Co. v. Attorney General, Law Rep. 11 Eq. 35. Wright v. Wilkin, 2 B. & S. 232. Attorney General v. Southmolton, 14 Beav. 357, 361. See also Chapin v. Harris, 8 Allen, 594. But we regard the case of Rawson v. School District in Uxbridge, 7 Allen, 125, as decisive of the question; the purpose for which the property is to be used being in its nature general and public in this case as it was in that case, and the language of the deed not indicating an intent that the grant is to be void if the declared purpose is not fulfilled, but rather indicating a trust to be enforced if the grantees shall attempt to violate it. The case is plainly distinguishable from Austin v. Cambridgeport Parish, 21 Pick, 215.
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Chapman, C. J.*
Trinity Church was incorporated by the St. of 1830, c. 83, as successor of a prior unincorporated society, and held certain real estate on Summer Street in Boston, where its church edifice stood. The corporation, as well as its predecessor, was composed of the proprietors of pews, and has continued to hold its property till the present time. The titles by which it was acquired will be considered hereafter. Upon th1? application of the corporation, an act was passed by the legisla* [17] turc on April 25, 1871, authorizing the corporation to sell this estate at public or private sale, and give the purchaser or purchasers good title, free of any trusts. So much of the avails as may be necessary are to be appropriated to pay the debts of the corporation, and to compensate the owners of pews and rights in tombs situated upon the land. The balance is to be applied to the purchase of land in Boston, and the erection of a new church thereon, to be held upon the same trusts as those upon which the present property is held. The application for the act was made by vote of a majority; the act has been accepted by a similar vote; and measures have been taken for making the sale. The purpose of this bill is to restrain the sale. We are not embarrassed by the allegation of any proposed changes in respect to doctrine, discipline, or modes of worship. Nothing is intended but to sell this property and build a new edifice in some new place in the city, which the defendants think will be more convenient and agreeable than the present one.
Changes of this sort are very common, not only in Boston, but in most of our growing cities and towns; and the legal rights of all parties interested in such cases have been much discussed, and are well settled. When such property is held in trust for the general purposes of the society, and cannot otherwise be conveyed, the legislature has constitutional power to authorize the trustees to convert their real estate into personal, in order that the avails may be reinvested or otherwise appropriated to the purposes of the trust. Rice v. Parkman, 16 Mass. 326. Humphrey v. Whitney, 3 Pick. 158, 164. Davison v. Johonnot, 7 Met. 388. Sohier v. Massachusetts General Hospital, 3 Cush. 483. Pine Street Congregational Society v. Weld, 12 Gray, 570. The principle is not limited to property held for parochial purposes. But we have no occasion to consider it in its application to other cases. The act now in question, and the acceptance of it by vote of a majority, gave the defendants full authority to sell the property, unless some of the objections urged by the plaintiffs constitute a legal obstacle to the sale.
The first and principal objection urged is, that, by reason of the title by which the land is held, it is necessary, or is at least [18] a duty which the court will enforce, that the defendants should hold it perpetually, for the purposes to which it is now devoted It becomes necessary therefore to look into this title.
The greater part of the land was conveyed by Leonard Vassall to John Barns, John Gibbins and William Speakman, on April 30, 1730, in trust to cause a building to be erected thereon for the performance of divine service according to the rubrics of the common prayer book of the Church of England as by law established ; and if the house should not be erected within five years, Vassall was to be entitled to a reconveyance on repayment of the consideration.' The house was erected, and Gibbins and Speak-man conveyed the property to Peter Luce and three other per-, sons, “ being a committee duly chosen by sundry persons who advanced divers sums of money towards erecting and building a new church in Summer Street.” The grantees were, by the terms of the deed, to hold the property till they should be reimbursed for moneys advanced, and what should be further advanced to finish and complete the church ; and were then to convey it to the vestry and wardens of the church. This deed is dated February 28, 1735, and expressed to be in trust. On December 10,1739, Luce and others conveyed the property to the vestry and wardens, naming them, and to their successors in office. The deed recites the conveyances from Vassall downwards, and recites that the grantors have been paid and indemnified, by the sale of pews and otherwise, for moneys advanced. The habendum is : “ In trust nevertheless, and upon condition always, that the said edifice or building, called Trinity Church, and the land aforesaid whereon ijt stands, and before conveyed, shall from henceforth and forever hereafter be converted, improved, appropriated and made use of for the public worship of God according to the rubric of the common prayer book used by the Church of England as the same is settled and established by an act of the parliament of England, made in the first year of the reign of Queen .Elizabeth, entitled ‘an act for uniformity of common prayer and service in the church, and administration of the sacraments,’ and another act of the parliament of England, made in the thirteenth year of tho reign of King Charles the Second, entitled ‘ an act for the uni[19] formity of public prayers and administration of sacraments and other rites and ceremonies, and for establishing the form of making, ordaining and consecrating bishops and deacons in the Church cf England; ’ and to be converted, improved and used to and foi no other use or purpose whatsoever.” This is the only clause in the deed that we need to consider here. It is relied upon by the plaintiffs as showing that the wardens and vestry took their title upon condition subsequent; and that by the contemplated sale the title would be forfeited.
The words “ upon condition ” are appropriate words for creating a condition, but they do not of necessity create such an estate. Stanley v. Colt, 5 Wallace, 119, and cases there cited. If it is such an estate, in this case, the forfeiture would be to the grantors or their heirs. But the grantors were merely a committee who had taken their title in trust for the society; and if it were to come back to their heirs by forfeiture, it must be held by them in trust for the society, and thus would merely be turned into a trust estate. Therefore nothing could be gained by a forfeiture, or by treating it as an estate on condition. Taking into consideration the title of the grantors, the purposes of the grant, and the fact that the expression is “in trust nevertheless,'and upon condition always,” the fair construction of the instrument is, that the parties intended the title to be in trust, and that the words “ upon condition ” were not used in their technical sense. These words do not always create a condition. Merchant Tailors' Co. v. Attorney General, Law Rep. 11 Eq. 35. Wright v. Wilkin, 2 B. & S. 232. Attorney General v. Southmolton, 14 Beav. 357, 361. See also Chapin v. Harris, 8 Allen, 594. But we regard the case of Rawson v. School District in Uxbridge, 7 Allen, 125, as decisive of the question; the purpose for which the property is to be used being in its nature general and public in this case as it was in that case, and the language of the deed not indicating an intent that the grant is to be void if the declared purpose is not fulfilled, but rather indicating a trust to be enforced if the grantees shall attempt to violate it. The case is plainly distinguishable from Austin v. Cambridgeport Parish, 21 Pick, 215.
[20] The trust was set forth with great particularity, as was common in those times. Perhaps in the estimation of the parties thereto a departure from any of the forms of worship therein prescribed, in any particular, would have been regarded as a breach of the trust; but the whole current of our decisions is adverse to such an idea. After the Revolution, their relations to the British government, the acts of parliament, and the Church of England, were changed. Under our laws, it was no breach of the trust for the society to connect themselves with the Protestant Episcopal Church of this country, and cast aside the requirements of the acts of parliament referred to in the deed, so far as they interfered with their duties as citizens of the United States and members of the Protestant Episcopal Church established here. The plaintiffs admit that the society did not by that change violate the trust. Until March 1831, the society was unincorporated; but at that time it obtained an act of incorporation, and has since held the property and acted under the charter. In respect then to the method of obtaining its funds by voluntary contribution, its organization as an unincorporated society, and its becoming incorporated afterwards, its history resembles that of numerous religious societies in this Commonwealth; and the well established principles. that have been applied to them must be applied to this case. There is nothing in the title by which the property is held, to prevent the society, under the legislative act, from selling the property for the purposes set forth in the act.
It is further objected that the votes to accept the act and make the sale were not unanimous, but were only passed by a mere majority, and that those who are in the minority, being pewhclders, have each a right to interpose and prevent the sale. As members of the corporation, they are bound by the votes of the majority; but they urge their distinct rights as having titles to several of the pews. It is contended that the well recognized doctrine, that the legislature itself has no constitutional power to transfer one person’s property to another without his consent, applies to the case of a pewholder. But pews are held by very peculiar title,-». They constitute a qualified and usufructuary [21] right, being a right to occupy under certain restrictions. Gay v. Baker, 17 Mass. 434. Wentworth v. First Parish in Canton, 3 Pick. 344. Howard v. First Parish in North Bridgewater, 7 Pick. 138. Daniel v. Wood, 1 Pick. 102. Attorney Greneral v. Federal Street Meeting-house, 3 Gray, 1. In re New South Meeting-house, 13 Allen, 497, 502. They are held subject to the right of the proprietors of the meeting-house — a right which it is so often found necessary to exercise in this country — to alter the internal structure of the house and remodel the pews, or to enlarge or remove it, or sell it in order to build anew. By the Gen. Sts. o. 30, §§ 35, 36, ample provision is made for enabling proprietors of meeting-houses to make these changes, and the right of pewholders to compensation is secured. But when the corporate body determines to make the sale or alteration, it is not necessary to consult the pewholders, as such, in respect' to their right to do so. The right of property in pews is not such as gives the owners any authority to object to the proceeding.
It is also objected that there are certain tombs under the church, which the defendants are bound to preserve and have no right to remove, disturb or abandon. The fourth section of the act declares that the bodies interred in the tombs have become dangerous to public health, and directs that they shall be removed within a certain time ; and the fifth section prohibits their further use for interments. Rights of burial under churches or in public burial grounds are peculiar, and are not very dissimilar to rights in pews. They are so far public that private interests in them are subject to the control of the public authorities having charge of police regulations. Cooley on Constitutional Limitations, 594, and cases there cited. It often becomes necessary to remove not only tombs, but burial grounds. In Brick Presbyterian Church v. New York City, 5 Cowen, 538, land had been conveyed for a church and cemetery, in 1766; in 1823, the legislature prohibited the use of the cemetery ; and it was held that they had a constitutional right to do so. In Coates v. New York City, 7 Cowen, 585, an act which had been passed in respect to Trinity and other church yards, authorizing the city to enact bylaws in restraint of burials, was held to be constitutional; resting [22] upon the same ground as the right of the legislature to provide for the suppression of nuisances and make provision for the publn health. In Windt v. German Reformed Church, 4 Sandf. Ch 471, it was held that the sepulture of friends and relatives in a cemetery belonging to a religious society confers no right or title upon the survivors, and they cannot prevent a sale of such cemetery by the corporation and the removal of the interred remains, when such removal is in all respects conducted according to law. In Kincaid’s appeal, 66 Penn. State, 411, the Methodist Episcopal Society in Pittsburg had purchased a piece of ground for a grave yard. The city grew, and became closely built up around the grave yard, and it became a nuisance. The legislature then passed an act for its sale and the removal of the bodies. The constitutionality of the act was discussed; and the supreme court of Pennsylvania held it to be valid.
This court has had occasion to discuss the power of the legislature to pass laws which belong to the class of police regulations, and which include laws for the preservation, care and removal of cemeteries and tombs, and the disposal of the remains of the dead; and it is held here as well as in other states, that all individual rights of property are subject to laws of this character. The principle was fully stated by Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. 53. See also Fisher v. McGirr, 1 Gray, 1; Baker v. Boston, 12 Pick. 184 ; Vandine, petitioner, 6 Pick. 187; Nightingale, petitioner, 11 Pick. 168; Salem v. Eastern Railroad Co. 98 Mass. 431; Dingley v. Boston, 100 Mass. 544. It has been usual for our legislature to pass laws for the preservation of the public health, and the suppression of what it has deemed to be nuisances, in application to a great variety of cases.
Under the authority of the act cited above, the defendants are justified in removing the bodies and remains interred under their church, as therein directed. The act is peremptory, and renders all reference to the opinions expressed by committees and physicians at a prior time immaterial.
There are other causes which are obviously sufficient to authorize the removal of bodies and tombs placed under a church. The [23] edifice may be consumed by fire, or otherwise destroyed; or it may decay; or the place may become unsuitable for such a building ; or for various other reasons it may be proper to abandon or sell it. And in such cases it would be improper to leave the tombs and the remains deposited in them; obvious propriety would require that the remains should be removed to some suitable place ; and, as the owners of the tombs and the friends of the deceased have no title to the lands, but only an interest in the structures and in their proper use, the public authorities do not violate their rights of property, if proper provision is made for compensation or substitution.
The defendants contend that the rights in tombs are mere licenses, and revocable at any time, as in McCrea v. Marsh, 12 Gray, 211; Burton v. Scherpf, 1 Allen, 133; Wood v. Leadbitter, 13 M. & W. 838. But it is not necessary to decide that question, as the legislative act justifies this removal of the tombs.
As to the tomb called the Price tomb, it appears to be held by the same usufructuary right with the other tombs, and to be subject to the same liability to removal with them. The legal title to the land on which it stands is in the defendants.
The canons of the Protestant Episcopal Church, which are referred to in the bill, requiring the defendants to obtain the consent of the bishop and standing committee, for removing, taking down, or otherwise disposing of a church, do not affect the legal title to the property held by these defendants under the deeds above mentioned. Titles to property must be determined by the laws of the Commonwealth. The canons are matters of discipline, and cannot be enforced by legal process.
Nor have we any occasion, in this suit, to consider whether the defendants will act wisely, and for the best interests of all parties interested, in exercising the discretionary power which is intrusted to them. It is sufficient that they have thus far proaeeded in conformity wmü the principles of law.
Bill dismissed.