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1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City.

The answer of The Trustees of the Presbytery of Jersey City (a body corporate) set forth the events which led up to the two deeds of bargain and sale made by the Trustees of the Scotch Presbyterian Church of Jersey City to The Trustees of the Presbytery of Jersey City in particular—a communication addressed by or on behalf of the congregation of the Scotch church to the trustees of the presbytery in these terms:

"At the congregational meeting of the Scotch Presbyterian Church of Jersey City, held on January 31st, A. D. 1900, it was voted to convey to the Presbytery of Jersey City our church property, consisting of the church and manse on Mercer street, and this action has been further ratified by a unanimous vote at a second congregational meeting called especially for that purpose. The necessary deeds have been prepared and the transfer will be completed as soon as you have authority to receive them. * * * In making this transfer, we must inform you that there are certain conditions upon which the Scotch Presbyterian Church holds the property, restricting us in the manner of our use of it. In turning the property over to the Presbytery of Jersey City, we are acting in exact accord with these conditions, the deeds under which we hold stating that, should the church fail to comply with the conditions, the property is to be vested in the Presbytery. We have aimed faithfully to live up to the conditions, as we have understood them, but at present our existence as a church seems to be in the balance, and we request the Presbytery through you, its trustees, to accept the property ;"

also the incorporation of the Trustees of the Evangelical Lutheran Church of the Holy Trinity of Jersey City under the Religious Societies Act, the character of the congregation of said church, as one holding Calvinistic doctrines, in form and substance the same as those held by the Presbyterian Church in the United States of America, with which the Scotch Presbyterian Church was connected, and the contract of sale entered into between the party defendant and the trustees of the Holy Trinity Church; also the adoption of the resolutions of February 4th, A. D. 1901, not by the party defendant but by the Presbytery of Jersey City, an ecclesiastical body in connection with the Presbyterian Church in the United States of America, and the intention of the party defendant, upon receipt of the purchase-money of the said church, manse, lands and tenements, to dispose of the same in accordance with the directions

MacKenzie v. Trustees of Presbytery of Jersey City.

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of the Presbytery of Jersey City, denying, nevertheless, an intent not to recognize the conditions of the two deeds made by the said George R. MacKenzie, yet admitting that the three churches mentioned in the resolutions of the presbytery were churches which have heretofore used instrumental music in their worship. The answer denied that the parties complainant had any right or standing in court entitling them to prosecute their suit; that the parties complainant were entitled to relief by injunction or otherwise; and that the purposed use of the proceeds of the Scotch Church was unlawful or à breach of any trust. The answer substantially admitted the other allegata of the bill.

The cause came on for a hearing upon the bill and answer and the proofs (which were chiefly documentary exhibits) before Vice-Chancellor Pitney, who, being of opinion that the parties complainant have a standing in court as the children and heirs-at-law of the said George R. MacKenzie, deceased, and that the use proposed to be made of the fund obtained from the sale of the Scotch Presbyterian Church of Jersey City would be a breach of the limitations imposed upon said fund by the donor thereof, and that such use should be restrained, advised a decree almost exactly in the language of the prayer for relief. From the final decree, pronounced upon such advice and from the whole thereof, this appeal is taken.

Mr. William II. Corbin, for the appellants.

1. The so-called conditions in the two deeds made by MacKenzie to the Scotch Church are really the declarations of the trust upon which the property is held.

2. The proposed use by the presbytery of the proceeds of the property will not be a diversion from the trusts declared. On the contrary, it is proper, whether considered with reference to the donor's general intent or the doctrine of cy pres.

3. The respondents have no standing in court to prosecute their suit. They have no reversion; they are not beneficiaries: they have no visitatorial powers.

1 Robbins. Mackenzie v. Trustees of Presbytery of Jersey City.

Mr. Charles D. Thompson, for the respondents.

1. The respondents are entitled to prosecute their suit, either because they have rights and powers of visitation, or because the estate might revert to them in the future.

2. The intended application of the proceeds of the property is a diversion of the property, and is not authorized by the donor's intention or by the doctrine of cy pres, if such doctrine obtains in this state.

The opinion of the court (the foregoing statement of the case being made) was delivered by

GREEN, J.

1. Words seemingly appropriate to a condition only may introduce a covenant, a condition or a declaration of trust, and the whole of the clause submitted to investigation must, in form and scope, be considered, in order to determine within which class it should fall.

“Provided always," which Blackstone, in his Commentaries, Book 2, *299, mentions as typical words of condition, may, either alone or with other words, be found introducing reciprocal covenants in agreements, as in 1 Bythe. Conv. (Jarman's ed.) 90, 93, 97, 101, &c.; or conditions of re-entry in leases, as in 4 Bythe. Conv. 358, 422, 4234; or of defeasance in mortgages, as in 5 Bythe. Conv. 238, 247, &c.; or declarations of trust or powers affecting trusts, as in 9 Bythe. Conv. 129, 141, 205, &c. The words employed by the draughtsman of the deeds of conveyance under examination are "on condition," "on further condition,” and although these also are words appropriate to conditions in deed (Litt. Ten. § 238), there are not wanting in our own reports illustrations of a wider use. Thus, in Woodruff v. Woodruff, 44 N. J. Eq. (17 Stew.) 349, 350, 353, 354 (1889), the complainant's deed contained these words:

"Provided, nevertheless, and upon the following condition, that if the said grantor, A. D. W., shall survive the said grantee, P. H. W., he, the said grantor, shall have the right, within eighteen months after the death of the said grantee, to purchase back again all the right, title and interest

MacKenzie v. Trustees of Presbytery of Jersey City.

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in said farm 'Oaklands,' hereby conveyed, at a valuation to be then made by two disinterested persons, one of whom shall be selected by the legal representatives of the said grantee, and the other selected by said grantor, and in case of a disagreement the persons so selected may choose a third person."

This was held to be a covenant, the court stating the guiding principle of construction, and citing 2 Pars. Cont. *511, and 4 Kent. Com. *132. In Woodruff v. Trenton Water Power Co., 10 N. J. Eq. (2 Stock.) 489, 492, 507, 508 (1856), the deed under consideration contained this clause:

"Subject, nevertheless, to the proviso, that if the said main raceway shall not be made on the said premises in conformity to the act incorporating said company the said lands and premises shall revert to the said G. W., his heirs and assigns; and also that," &c.

The chancellor concluded that this clause was a condition, saying: “There are no covenants in this deed on the part of the grantees. * * * The language in the deed is appropriate to create a condition, and, as if to avoid any doubt, the legal consequences of a breach or violation of the condition is inserted;" and he cited Bouv. Dict., Tit. Proviso; ('0. Litt. 216. Thereupon he held that equity would not enforce the specific performance of a clause in a deed, the non-performance of which would work a forfeiture of the estate. On appeal, the decree was unanimously affirmed in this court, without an opinion. In Mills v. Davison, 54 N. J. Eq. (9 Dick.) 659, 60, 664, 665 (1896), the deed of gift embraced this clause:

"With this express condition and limitation that neither the said party of the second part, nor their successors, shall at any time sell, mortgage or in any way convey the said land and premises, or any part thereof, and that no building shall be kept, maintained or erected thereon except for the purpose of public worship and teaching in accordance with the usages, rites and ceremonies of the Protestant Episcopal Church in the l'nited States of America, and also except the proper outbuildings appurtenant thereto."

This court, reversing Mutual Benefit Life Insurance Co. v. Grace Church, 53 N. J. Eq. (8 Dick.) 413, decided that the clause created a trust, not a condition, saying, by Justice Depue,

1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City.

"such a construction si. e., as a condition designed to defeat the estate granted] is, it seems to me, contrary to the intent of the grantor in making the gift. * * * Words of express condition are not inapt as introductory to a declaration of trust.” Numerous authorities were cited, among them, 3 Com. Dig., Tit. Condition T," Tys. Char. Beq. 508; Tud. Char. Trusts 50. In all of our decisions it will be observed that the whole clause in the instrument of conveyance was considered—the introductory words, the words setting forth the thing to be done or omitted, and the words of determination or reverter, if any. To the same effect are Sohier v. Trinity Church, 109 Mass. 1 (1871), and Episcopal City Mission v. Appleton, 117 Mass. 326 (1875), where the question arose upon clauses in deeds; Goodman v. Mayor of Saltash, 7 App. Cas. 633 (1882), where it arose upon a presumed grant; and Stanley v. Colt, 72 U. S. 119 (1866), and Attorney-General v. The Wax Chandler's Co., L. R. 6 Eng. & Ir. App. 1 (1873), where the question arose upon devises.

2. All of the words used in the clause in question being considered, and the absence of words of determination or reverter being noted, the intent of the parties, to be exercised as permitted by the principles of law, will be best subserved by holding the clause to be a declaration of trust.

Examining the deeds in the light of the authorities, we find no words whereby either party binds itself to the other for the doing or not doing of a particular thing, or for the existence or non-existence of a particular state of facts, and for breach whereof the party bound should be answerable in damages, hence we have no difficulty in concluding that the words are not words of covenant. See Bouv. Dict., Tit. Covenant; .3 Blacks. Com. *150; Woodruff v. Trenton Water Power Co., 10 N. J. Eq. (2 Stock.), at p. 508.

Re-examining the deeds, we find no words of forfeiture of the estate given, or conferring a right of re-entry as for condition broken. These words are commonly found in well-drawn conditions. See Litt. Ten. § 331; Woodruff v. Trenton Water Power Co., supra; Southard v. Central Railroad Co., 26 N. J. Law (2 Dutch.) 13 (18.56); Mckelway v. Seymour, 29 N. J. Law

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