MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq. (5 Dutch.) 321 (1862). Nevertheless, as such words are not essential to conditions upon conveyances of estates of freehold, except conditions in form si contingat (Litt. Ten. §§ 330, 331), we do well to look more deeply. If, then, we would regard the clauses as conditions, it must be as conditions subsequent; and such conditions are with us not favored, even at law, and are construed strictly because they tend to destroy estates (see Den v. Lawrence Church, 20 N. J. Law (Spenc.) 551, 555 (1845) ; much less are they favored in equity. In Grigg v. Landis, 21 N. J. Eq. (6 C. E. Gr.) 494, 501, 502, 511, 512 (1870), where the assignee of a vendee had performed the stipulations for improvements, but not within the time prescribed, this court decreed specific performance at the prayer of the vendee's assignee, saying that penalties, forfeitures and re-entries for conditions. broken are not favored in equity, and give rise to a large branch of equitable relief; that usually they are held to be securities for the payment of money and the performance of conditions, and when compensation can be made for non-payment or nonperformance, equity will relieve against the rigid enforcement of the contract. In Morris v. Kettle, 56 N. J. Eq. (11 Dick.) 826, 831 (1898), this court approved the language of Chancellor Kent, that "it may be laid down as a fundamental doctrine of the court that equity does not assist the recovery of a penalty or a forfeiture, or anything in the nature of a forfeiture.” In Bird v. Hawkins, 58 N. J. Eq. (13 Dick.) 229, 230, 243 (1899), there was annexed to a devise a proviso or condition that “she [the devisee] shall, within five years of my decease, free said properties from all indebtedness and mortgages that may be against them at the time of my death." The court said: "These are the essential elements of an estate upon condition subsequent. But that the devise is of this character, and that the devisee has failed to perform the conditions, will not lead this court to declare and enforce a forfeiture. ** * If the devise be upon terms which are capable of being enforced in equity, and the devise has been accepted, equity will compel compliance with the conditions annexed. * If this be inequitable or impossible, equity will award compensation in damages for breach of the condition, if that be possible." * 1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City. Hence, although we do not forget that it was said, in Grigg v. Landis, supra (at p. 502), that "it is not to be supposed that a court of equity will lightly dispense with a contract made between competent parties," we are but following the uniform leanings of courts of equity in not holding the clauses under consideration to be conditions subsequent, because of the harsh consequences which would legally flow from such a construction, unless they could be mitigated by the application of equitable rules. There remains, then, only the conclusion that the deeds embody and declare limitations in trust. To such conclusion, we are pointed by Tyssen, in his work on Charitable Bequests (p. 508), in these words: "A trust may be raised by a gift upon condition of doing a certain thing, even when followed by a gift-over, if the condition be broken. The tendency in early times was to treat such a limitation as a conditional gift; the tendency in modern times is to treat it as a trust.” ** To such conclusion we are led by our own decision, in Mills v. Davison, supra, and in such conclusion we are strengthened by the cases which Justice Depue, in Mills v. Davison (at p. 665), has so skillfully arrayed. The lawful intent of the parties to the original conveyances will thereby be most fully subserved. 3. The trust thus declared is evidently one for the public worship and instruction of an indefinite number of persons according to Presbyterian faith and polity. Nevertheless, there are other provisions which we do not overlook, but whether they be essential or accidental we do not now determine. It is obvious, however, that one sufficiently interested in religious things to become the donor of a church, manse and lands, would wish to make the donation of the most lasting value, and, to such end, would do all that in his judgment could secure the prosperity of the church on its material side, draw men within the reach of its worship and work on the spiritual side, and promote the purity and power of its worship and instruction. To such end were framed those provisions of the trust which have respect to the repairs of the church and manse, the avoidance. of liens thereupon, the name of the congregation and the pro MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq. hibition of instrumental music. The purposes of such provisions are manifest in the declaratory clauses contained in the deeds of conveyance, and additional light is thrown upon them by the letter of the donor, dated May 22d, 1885. This letter was written and signed by the grantor named in the deeds, was addressed to his grantees, was delivered at the same time with the earlier deed, and does not alter, vary or contradict the terms of the sealed assurances; we are therefore permitted to consider it. See 1 Perry Trusts (5th ed.) §§ 77, 147; 1 Greenl. Erid. (15th ed.) § 266; Lew. Trusts (7th Eng. ed.) 47, 48, 51, 52. It is true that the Presbytery of Jersey City, to whose jurisdiction and care the congregation worshiping in the church given was to be subject, does not, as an ecclesiastical body, appear to have shared the views of the donor respecting the use of instrumental music in worship. Yet we are in nowise informed that this ecclesiastical body does or did hold the use of instruments to be essential to worship; and it may well have been that the donor believed that subjection to presbyterial polity, as distinguished from congregational or prelatical polity, was the thing of prime importance, and that other points might be sufficiently secured by the provisions of the deeds of donation. Not of whim or caprice, but to promote peace and purity, as he believed (3 Schaff-Herzog Encycl. Relig. Knowl. 1894, 1903), did the donor frame these limitations in trust, and his right to do so must be allowed, unless they contravene some principle of law. See Lew. Trusts (7th Eng. ed.) 485; Attorney-General v. Pearson, 3 Meriv. 353, 409, 410. The trusts limited and declared in the two deeds under consideration are good as charitable trusts. It was said, in Norris v. Thomson's Executors, 19 N. J. Eq. (4 C. E. Gr.) 307, 312 (1868), that the statute of charitable uses (43 Eliz. c. 4) is not in force in this state, and the remark has been perhaps too freely quoted; nevertheless, its accuracy is, for the present, of but little concern. This court, in the same case on appeal (Thomson's Executors v. Norris, 20 N. J. Eq. (5 C. E. Gr.) 489, 522) (1869), speaking by Chief-Justice Beasley, said: "I do not understand that there is any difference whatever between the common law of England and the law of 1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City. this state as to what constitutes the legal definition of a charity. And, by this common law, I mean the system, so far as respects this question, which has grown up in a series of decisions founded, in part, upon 43 Elizabeth c. 4-the statute of charitable uses. The doctrine of the English court of chancery, with regard to the mere classification of things which are and those which are not charities, has been very generally recognized in this country." Lewin, writing of trusts generally (Lew. Trusts (7th Eng. ed.) 20), says: * * "Public trusts and charitable trusts may be considered, generally, as synonymous expressions. A public or charitable trust has for its objects the members of an uncertain and fluctuating body, and the trust itself is of a permanent and indefinite character." Tudor, writing of charitable trusts especially. (Tud. Char. Trusts (2d Eng. ed.) 5-15), says of gifts within the statute of Elizabeth, or by analogy within its spirit or intendment, that they are gifts for the benefit of the poor, gifts for the advancement of learning, gifts for the advancement of religion, gifts for public and general purposes. Tyssen, writing of Charitable Bequests (Tys. Char. Beq. 5, 6), speaks to the same effect, adding that many purposes have been held to be charitable which are not mentioned in the statutory list. In Jackson v. Phillips et al., 96 Mass. 539, 566 (1867), Justice Gray says: "A charity, in its legal sense, may be more fully defined as a gift, to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint; by assisting them to establish themselves in life; or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it be so described as to show that it is charitable in its nature." Of this definition Mr. Perry, in his work on Trusts (5th ed.) $697, has said that it leaves nothing to be desired; and the editors of 5 Am. & Eng. Encycl. L. (2d ed.) 894, and of 6 MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq. Cyc. L. & P. 900, have accepted it as comprehensive and satisfactory. The decisions of the courts of Massachusetts and New Jersey are not always at one in cases of charities; but, for present purposes, we may give hearty assent to Justice Gray's definition. Measured by the definitions, English and American, the clauses of the two deeds under consideration create valid charities, but we are not left to generalities only. In Baldwin's Executor v. Baldwin, 7 N. J. Eq. (3 Halst.) 211, 213 (1848), there was a devise of land, in trust, as the site of a building for a free school for the benefit of poor children, and a lecture-room for religious worship, and as the site for a dwelling-house to be occupied by the minister that might from time to time officiate in said room, the said lecture-room to be for the use of the denomination of Christians called Methodist Episcopal; and it was held to be a good charitable devise. In Trustees of Cory Universalist Society v. Beatty, 28 N. J. Eq. (1 Stew.) 570, 572, 575 (1877), there was a bequest of $12,000 to certain trustees, after they should have established a society of the denomination of Universalists, to be used "to employ a preacher of the abovenamed denomination," and it was held to be a legal charity. In De Camp v. Dobbins, 31 N. J. Eq. (3 Stew.) 671, 672, 688, 696 (1879), there was a devise to the North Reformed Church of Newark, "in trust that they may use the same to promote the religious interests of the said church and to aid the missionary, educational and benevolent enterprises to which the said church is in the habit of contributing." The second question considered in this court was whether this testamentary provision created a valid charitable use, and it was answered affirmatively. In Mills v. Davison, supra, there was a gift by deed to the rector, wardens and vestrymen of Grace Church, Westfield, incorporated by certificate pursuant to the Religious Societies Act, upon the "express condition and limitation" above set forth, and this court held that there was a valid charitable trust for public worship and teaching in conformity with the rites and ceremonies of the Protestant Episcopal Church. Under the doctrine of these cases, and the operation of the Religious Societies Act, as expounded in Morgan v. Rose, 22 N. J. Eq. (7 C. E. Gr.) |