Trustees of the Diocese v. Trustees of the Diocese

9 S.E. 310, 102 N.C. 442

• Court: Supreme Court of North Carolina
• Decided: February 5, 1889
• Status: Published

Opinion

MerbimoN, J.

(after stating the case). The Protestant Episcopal Church in the United States is an organized body of Christian people, and in its ecclesiastical organization it has a constitution, canons, rules and regulations for its government. It is divided into Dioceses, each designated by an appropriate name, and having greater or less territorial extent. It has existed in this State for a long period of time — about a hundred years —and prior to 1883, the whole territory of this State was designated as the Diocese of North Carolina. Under the statute (The Code, § 3065), the church thus organized was capable of taking and holding property of every kind by purchase, gift, grant or will, and it is provided as to such cases, that “ the estate therein (the property) shall be deemed and held to be absolutely vested, as between the parties thereto, in the trustees, respectively, of the said churches, denominations, societies and congregations, for their several use, according to the intent expressed in the conveyance, gift, grant or will; and in case there shall be no trustees, then in the said churches, denominations, societies and congregations, respectively, according to such intent.”

Thus the devisee of the will and of the particular devise under consideration had certainty and distinctiveness of character and capacity to take and hold the property devised. The testator must be deemed to have known and understood the nature, the constituent elements, the purposes and territorial extent of the collective object of her bounty. She knew that it was a subdivision of the Protestant Episcopal Church in the United States; that it was composed of all the clergy and laity of that Church within the limits of this State, Having such knowledge, she “ duly made and published her last will and testament in writing,” in the month of February, 1881 (the material parts of which are above set forth), whereby she devised and bequeathed the property in question “ to the Board of Trustees for the Protestant Episcopal Church in the Diocese of North Carolina,” &c. If this were all of the matter, there could be no question as to the intention of the testatrix; the whole Church within the State would share in her bounty without distinction.

But afterwards, in 1883, a new Diocese, designated as the Diocese of East Carolina, was created, strictly as allowed by the canons and usages of the Church, having prescribed boundaries, within the Diocese of North Carolina, the latter retaining its name unchanged. The formation of the new Diocese “ was occasioned only by motives of policy, for the well-being of the Church, and not by any disputes or differences in matters of faith, doctrine, discipline, form of worship or polity, all of which continued to be the same, without alteration, in both Dioceses, as they had been before the division.”

The testatrix, having executed her will in 1881, continued to reside and have her domicile within the Diocese of North Carolina until her death, on the 13th of November, 1885. She never resided within the new Diocese. The appellants contend — firsts that, properly interpreting, the devise, it is exclusively io the Diocese of North Carolina as it is now constituted; and secondly, that the clergy and laity of the new Diocese, having voluntarily abandoned the old one, must be treated as having abandoned or lost any possible right they may have had under the will in question.

We are of opinion that these contentions are not well founded, and that the judgment must be affirmed. The intention of the testatrix in disposing of the property in question, as expressed in her will, and not otherwise, must prevail. The Court has no authority to look beyond the will in ascertaining its true meaning, and consider what she may have said before or after its execution, at one time or another, or to one person or another, as to her intention. This must be ascertained from the will itself — its reference to the property disposed of, and the persons to whom, or organization to which, it is devised and bequeathed. The very purpose of putting it in writing was to declare and ■express her settled intention as to the property in a solemn and unequivocal manner, and thereby provide certain and permanent evidence of it, not to be thereafter altered or modified, except by an intentional destruction of the will by herself or by her direction, or by a codicil thereto, or by a .subsequent one properly executed. Nor could the changed condition or circumstances of the devisee and legatee surviving, subsequent to the execution of the will, change or affect the intention of the testatrix as therein expressed, as to the property embraced by it, in the absence of any provision contemplating such change, except as such intention may be in such case affected by some rule of law or statutory provision. This must be so, because the intention, once expressed in the will, could not be effectually changed otherwise than by one of the ways above indicated.

Then, what was the intention of the testatrix as to the property in controversy ? The will was executed in 1881. At that time the Diocese of North Carolina,embraced the whole territory of this State; that of East Carolina did not then exist — so far as appears, it had not been thought of. The devise was “ to the Board of Trustees for the Protestant Episcopal Church in the Diocese of North Carolina.” Obviously, she had in view, and intended at the time she executed her will, the whole Church within this State, and not that part of it in one section or locality more than another; she said so in express terms; she could not have intended or contemplated a subdivision such as has come about since 1881, because none existed, and the language employed does not imply or suggest any such thing. The devise isnot to the Diocese as such, nor to the Board of Trustees for it as a Diocese, but to the Church — to the Trustees for the Church— within the Diocese. And' upon the death of the testatrix, the statute above recited vested the property in the Trustees for the Church, and, in the absence -of Trustees, directly in the Church itself. The statute so expressly provides. The mere subdivision of the Diocese — the change of its boundaries or its name — could not change or render the devise inoperative; the Church would remain sufficiently designated and identified, and the Church, and not the Diocese, was the religious organization to be benefited. If, in the division of the Diocese of North Carolina into two parts, one part had been called the Diocese of West Carolina and the other East Carolina, this would not have affected the devise adversely, because the Church, the real object contemplated, sufficiently designated, remained to take and be benefited. The Diocese was not the Church, nor an essential part of the devise— it was only a part of the machinery of the Church, through which it effected its purposes, that might be changed, modified, or dispensed with, as-to its name and territorial extent, or altogether, by the proper ecclesiastical authority; this could be done without affecting the entirety of the Church generally, or in a particular locality, or within a fixed boundary. Hence, the testatrix, in making her will, had in view, and intended to benefit, not the mere name and form of church organization, but “ the Protestant Episcopal Church ” within North Carolina; and neither the Church nor the Diocese could change or give direction to her intention, as expressed in her will, by anything they could do. She alone had the right to designate the object of her bounty, and that object, as a whole, has the right to accept and take benefit of it, accordingly as she directed in the devise, although, for its convenience and advantage, it has changed its name, bounds and relations, not affecting materially its nature and substance, since the execution of the will.

There is nothing in the will, or in the particular devise under consideration, that indicates the slightest purpose, on the part of the testatrix, to modify, limit or restrict at all, the devise, in the contingency that the Diocese should be divided, or in any other contingency. It is unrestricted and absolute as to the devisee to be benefited.

It was said on the argument that the Diocese of North Carolina continued to exist at the time of the death of the testatrix, and therefore, the devise should be construed as applying to it as it existed at that time. This argument is specious, but certainly not sound. It is true, that Diocese existed at that time in name, but it was not the same in ter ritorial extent, nor did it then embrace a very large and su!> stantial part of the certain and well defined object embraced by the intention and purpose of the testatrix as expressed in her will. At the time of her death, a large part of the Church which she clearly intended to benefit had been detached from the Diocese, and nothing appears, in terms or by reasonable implication, in the will, to show that she intended to modify her expressed purpose so as to exclude the detached part of the Church. This Church within North Carolina — within the Diocese embracing the whole State— as she contemplated it at the time she made her will and therein expressed her intention, continued in all material respects to exist at the time of her death just as it did at .the time she made her will — it had only been changed into two Dioceses instead of one; the Church as defined and specified in the will remained the same, capable of taking benefit under the devise as contemplated and intended by the testatrix. As is said above, the mere division of the Diocese could not modify or defeat her intention. This was settled and expressed, not to be modified except in one of the ways already specified, at the time she executed her will. Richmond v. Vanhook, 3 Ired. Eq., 581; Tayloe v. Bond, Busb. Eq., 5 (18); Garrett v. Niblock, 1 Rus. Myl., 029; Parker v. Merchant, 1 Young and Cally, 299 ; Bonlow v. Rignold, 8 How., 131; 1 Red. on Wills, 384, par. 9.

Nor can that part of the Church embraced by the new Diocese of North Carolina be deemed and treated as having lost, abandoned or forfeited its right to have benefit of the devise. The division of the Diocese of North Carolina was made by common consent of the clergy and laity of the Church within it, for the common good of the Church and its purposes, strictly as allowed by and in accordance with its canons and usages ; it was not prompted by any spirit of rivalry or insubordination, or dissent from the doctrines of faith, the polity, usages or practices of the Church ; there was neither secession nor schism ; it continued, and continues now, to be in its substance, integrity, spirit and life, just as before the division and the creation of the new Diocese, and just as when the testatrix made her will. The Church within the Diocese of East Carolina is as certainly now within her intention and purpose, as expressed, as it was then ; it has done nothing to put itself without such intention or to forfeit its right to share in the devise; it has done nothing in the eye of the Church or the law that was or is culpable, or that justly subjects it to censure in any respect. On the other hand, the creation of the new Diocese was praiseworthy and to be commended, because it was intended by and through it, as a legitimate instrumentality, to accomplish increased and great good. As the Church within it comes, as we have seen, within the purpose of the testatrix, we cannot discover the slightest reason why it should not share in her generous bounty to the Church of her choice. Why shall it not do so ? What has it done, in the eye of the law of the Church or law of the land, that prevents it from doing so ? We cannot conceive of a just reason why it may not. It might — no doubt wrnuld — -be otherwise, if the clergy and laity of the new Diocese had abandoned the faith, doctrines, usages and practices of the Church — had seceded from it and set up an independent church organization. But it is not suggested that anything inimical to the Church, or at all improper, has been done by that part of it within the new Diocese.

The views we have expressed, it seems to us, are founded on principles of justice, and are fully sustained by numerous authorities cited by the learned counsel of the appellees in the course of liis able argument, some of which we cite : Smith v. Swormstedt, 16 How. (U. S.), 288; Ferrana v. Vasconcellas, 31 Ill., 53; Niccolls v. Rugg, 47 Ill., 47 ; Wiswell v. The Church, 14 Ohio St. R., 44; Gaston v. Penick, 5 Bush. (Ky.), 110; Hale v. Everett, 53 New Ham., 80; Friends v. Friends, 89; ibid., 136.

It seems to us, that the authorities in respect to the division of counties, towns and the like, cited on the argument by the learned counsel for the appellants, have no proper application in this case. In those and like cases, simple rules.of law applicable determine the rights and liabilities of the county or town and the detached parts thereof. In this case, the intention of the testatrix, expressed in her will, not inconsistent with established rules of law, settles, directs and controls the right of the Diocese of North Carolina, and the detached part thereof forming the new Diocese, as to the property embraced by the devise in question. If the devise were to a county, and, pending the life-time of the testator, a part of the county were detached and made a new county, or part of another, the detached part would certainly share in- the property devised, if it should appear that the testator so intended; and this is so, because his intention must prevail, if it be lawful and practicable.

It has been suggested that the testatrix really intended that the present Diocese of North Carolina alone should have benefit of the devise. This, if so, can avail nothing. As we have airead}*- said, we can only know her intention as expressed in her will. If she so intended, she ought to have modified the devise by a codicil, or in some other effectual way. But with her change of purpose, if she had one, we have nothing to do. We cannot doubt that we have properly interpreted her intention as expressed in her will.

In view of the interpretation -we have given of the devise in question, there is no objection to the judgment appealed from; and so, it must be affirmed.

By consent of the parties, the costs of this controversy must be paid by the defendant executor out of any fund arising from the sale, rents or hires of the property, or any part of it.

No error. Affirmed.