Evidence examined under issues raised by the cross-bills, and relief decreed in favor of cross-complainants upon principles already made the law of the case in the earlier stages of the litigation.

Heard on cross-bills, answers thereto, replications and proofs. in open court.

Mr. John J. Crandall, for the complainants.

Messrs. Melosh & Morten and Mr. Gilbert Collins, for the defendants.

GARRISON, V. C.

The right of the complainants to affirmative relief having been denied, and the bill having been dismissed in accordance with the directions of the court of errors and appeals (Lake v. Weaver, 76 N. J. Eq. (6 Buch.) 280), and that court having directed this court to proceed to hear the issues raised by the cross-bills, they will now be disposed of.

Dealing first with the cross-bill of Josephine T. Weaver, I find that she is entitled to a decree against the complainants thereon by which decree it will be determined that she has the right to hold the deed in question as a mortgage for the sums of money which it may be found that she had advanced to her son, Theodore S. Weaver, the grantor in the deed.

In her answer she sets out, in the fourteenth paragraph thereof, that she had an accounting with her son for the moneys that she had advanced him, and that, as a result thereof, he conveyed this property to her; and in the cross-bill she reaffirms this position

and claims that in any accounting to the complainants for the moneys which she now holds as trustee as aforesaid, she is entitled to charge against the complainants all moneys advanced by her to the said Theodore S. Weaver as aforesaid.

In both the answer and the cross-bill she sets up that this conveyance to her for moneys advanced by her to Theodore was for the benefit of her daughter and Theodore's sister, Ella Etta. I do not find that this is sustained by the proofs. The facts have been fully set forth by me in previous opinions which are reported.

While Josephine T. Weaver does not in her cross-bill pray that the deed in question may be established by this court, she avers the facts above referred to by me, and charges that she is entitled to hold the deed for the repayment of these moneys to her, and has a prayer for general relief of the nature to which she may be entitled.

The relief to which I find that she is entitled is to have this deed established in equity, to be held by her as if it were a mortgage. The particular facts which lead me to this conclusion, and the amount for which I find she may hold the same, are set forth in a previous opinion by me which will be found reported in Lake v. Weaver, 70 Atl. Rep. 81.

I shall, therefore, upon the cross-bill of Josephine T. Weaver, advise a decree in accordance with those views.

With respect to the cross-bill of Ella Etta Smith and husband, I find, as I have above stated, that they are not entitled to a decree as against the complainants, since I do not find that the deed in question was, by the proofs, shown to have been given to Josephine T. Weaver for the benefit of Ella Etta Smith, which is the contention of their cross-bill.

The cross-bill of these last-named defendants is also against Josephine T. Weaver, their co-defendant, and I find that the latter has agreed to permit this cross-bill to be taken as confessed as against her. The defendants Ella Etta Smith and her husband will, therefore, be entitled to whatever relief they should have as against Josephine T. Weaver upon their cross-bill against her, as to which I will hear counsel at the time of settling the final decree.

1. In the absence of statutory authority a benevolent and charitable corporation has no power, by the action of its stockholders and directors. or either, to voluntarily dissolve itself.

2. A corporation organized for benevolent and charitable purposes could not, under the act incorporating it, use its funds in any other manner except as provided in the act. Its certificate of incorporation stated that its sole object was the relief of indigent, aged, or disabled members. and its constitution recited that its purpose was to purchase a home for and to support aged and indigent Odd Fellows in the manner the by-laws prescribed. The by-laws prescribed that any lodge or encampment of the Independent Order of Odd Fellows might become a member by paying one cent a week for each of its members and that such lodge or encampment had the privilege of applying for the admission of inmates, &c. The by-laws further provided that donations should be invested and only the interest used for maintenance. Subsequently the land and home were sold and the proceeds added to the donation fund.-Held, that whether or not the corporation had power to become dissolved by voluntary action, such funds could not be distributed among its members.

Heard on bill, answers, replications and agreed state of facts.

From the bill, answers and agreed state of facts the situation is as follows:

On the 28th day of April, 1886, there became incorporated under the act to incorporate benevolent and charitable associations (1 Gen. Stat. p. 149), a corporation known as the Home for Aged and Indigent Odd Fellows of the State of New Jersey. In the certificate it is certified

"that the sole and exclusive object of the said incorporation is the relief of such of the members thereof as shall by reason of age and indigence. physical disability, infirmity or accident be rendered incapable of attending to their usual occupation or calling, and also such other charitable

7 Buch.

Sumner Lodge v. Odd Fellows Home.

and other objects and purposes as may be provided for in the constitution and by-laws of the said association."

On April 7th, 1887, the name of this corporation was changed to "The Odd Fellows Home of New Jersey."

The act under which it was incorporated provided in the first section (Gen. Stat. p. 152 § 19)

*

"that every association of persons not less than three in number associated for benevolent and charitable purposes * are hereby constituted a body politic and corporate in law."

By the fifth section of the said act (Gen. Stat. p. 153 § 20) it was provided

"that the sole and exclusive objects of incorporations under this act shall be to relieve or support such of the members thereof, or such other persons as shall by sickness, casualty, old age or other cause be rendered incapable of attending to their usual occupation or calling * ** * to give and extend benevolent and charitable relief and assistance to persons who are not members or corporators # * * and other charitable objects; any one or more of the above objects may be provided for in the constitution and by-laws of such corporation, which shall have power to provide for such necessary expenses as shall accrue by carrying into effect the said object or objects; and no part of the funds of such corporation shall be used for banking purposes or in any manner except as provided in this act."

By the third section of the act (Gen. Stat. p. 150 § 3) it is provided

"that the estate and property, of what kind soever the same may be. of such association, shall be vested in them as a corporation, and by their corporate name such association shall be able to purchase, receive, take, hold and convey, for the use and benefit of such corporation, and for the purpose of effecting the objects of its incorporation, any lands, tenements and hereditaments, and any sum or sums of money, rights, securities, goods and chattels, by gift, alienation, devise. bequest or otherwise, of any person or persons, bodies politic and corporate."

By the second article of the constitution adopted by the corporation it is provided

"that the purpose of this corporation is to purchase a home for, and to support and maintain aged and indigent Odd Fellows in such a manner as the by-laws may prescribe."

Sumner Lodge v. Odd Fellows Home.

77 Eq.

"ARTICLE 3. This corporation shall be composed of Lodges, Encampments and Rebekah Degree Lodges of the Independent Order of Odd Fellows * * and each lodge * belonging to this corporation shall elect one member thereof annually, to represent them in this corporation. in such manner as the by-laws may prescribe."

"ARTICLE 4. Any Lodge, Encampment or Rebekah Degree Lodge may become a member of this corporation upon the payment of such fee and weekly dues, as the by-laws may prescribe, for the support and maintenance of this corporation."

By section 1, article 1, of the by-laws, it is provided that

"each Lodge, Encampment or Rebekah Degree Lodge, members of this corporation, shall elect one representative to serve one year,

and shall certify his election."

There are then provisions for the representatives meeting at Trenton at a time fixed, and electing officers who are to hold their offices for fixed periods; and there is then provision for special meetings of the representatives. There is provision that the lodges shall pay their dues quarterly in advance; and a provision is made for nine managers of the corporation.

Article 12, section 1, provided that no application from lodges or encampments for admission of inmates shall be entertained until they have been members of the home for a period of twelve months.

"SECTION 2. All Lodges or Encampments admitted members of the Home, having a membership of one hundred or less. shall be entitled to place one inmate therein; and one inmate allowed to every additional one hundred members; and every Lodge or Encampment wishing to place an extra inmate shall pay the sum of one hundred and four dollars per annum, to be paid quarterly to the Board of Representatives, said Lodge or Encampment to be credited with per capita over and above the even hundred."

"SECTION 3. Inmates not to be admitted beyond a number that the current revenues of the Home will support, to be determined by the Managers."

Sections 4 and 5 provide how applications for admission shall be made, and, among other things, provides that applicants for admission 66* * * must be at least fifty years of age, and unable to support themselves by reason of age and indigence." By reason of physical disability, infirmity or accident any Odd