1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City. American, and as affected by our own decisions, has a proper place in our jurisprudence, and that, after a proper inquiry, it may, if necessary, be applied to the management of the estate or fund in question. The trend of the argument in this court and our own reasoning having been directed to the probability that the charitable trusts under consideration may be enforced, exactly or approximately, it would be incongruous now to treat at length of the course to be pursued in case such trusts should fail or become wholly inoperative. We are not, however, to be understood as prejudging any rights hereafter to be set up under such circumstances. 5. The foregoing discussion does not, unfortunately, dispose of the case altogether. The inquiry yet remains, what is the standing of the complainants, and is their suit well conceived? The complainants are in nowise alleged to have been or to be office bearers in the Scotch Presbyterian Church or in the Presbytery of Jersey City, whose rights as such have been infringed. If such were the case, and the rights were of such a nature as to be cognizable in the civil courts, they would, for the most part, find redress in the courts of law. See State v. Crowell, 9 N. J. Law (4 Halst.) 390 (1828); Miller v. English, 21 N. J. Law (1 Zab.) 317 (1848). Neither is it alleged that they were or are members of the congregation of the Scotch Presbyterian Church or pew-holders therein, or members of any other congregation under the jurisdiction of the Presbytery of Jersey City, whereby they have or may have acquired rights in the property in question which would enable them, as cestuis que trustent, to call their trustees to account in equity. See Whitecar v. Michenor, 37 N. J. Eq. (10 Stew.) 6, 7 (1883); Everett v. First Presbyterian Church, 53 N. J. Eq. (8 Dick.) 500, 506 (1895); Davis v. Jenkins, 3 Ves. & B. 151 (1814); Foley v. Wontner, 2 Jac. & W. 245 (1820); Milligan v. Mitchell, 3 Myl. & C. (at p. 83) (1837); Watson v. Jones, 80 U. S. 679 (1871). The procedure indicated in these cases is quite aside from the case in hand. It is suggested that these complainants may have some standing by right of a reverter for a breach of the trust. To this it is enough to say that, although lands may revert to an owner MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq. or his heirs by reason of a breach of a condition, no such result flows from the violation of a trust. This court has already pointed this out. See Mills v. Davison, 54 N. J. Eq. (9 Dick.) 659, 667 (1896). Is it to be said that the complainants have a standing in court as possible beneficiaries, having some right, not as created by a breach of trust, but as existing from the time of the original donation, although dormant? It is obvious that no relief can be accorded to the complainants on this theory. The bill does not pray any declaration of their personal rights or any relief appropriate thereto; the proofs do not show that the charity has wholly failed, or cannot possibly be executed; and their counsel has expressly stated in this court that the complainants make no claim to the fund at this time. Furthermore, it may be observed that, if the complainants should seek any such relief, the end of their contention would be not the administration and enforcement of the charity but its termination. In such a case it is proper that the attorney-general, as representing the state, should be made a party defendant. He is the protector of the indefinite and fluctuating body of persons who are interested in the estate or fund; their beneficial interest he represents. See, on this point, Tud. Char. Trusts (2d ed.) 161, 162; Tud. Char. Trusts (3d ed.)323, 325; 1 Dan. Ch. Pr. (4th Am. ed.) 136, 138; Cook v. Duckenfield, 2 Atk. 562, 564 (1743); Corporation of Sons of Clergy v. Mose, 9 Sim. 610, 613 (1839); Skinners Company v. Irish Society, 12 Cl. & F. 425, 452 (1843-45); In re Templemoyle School, 4 Ir. Eq. 295, 300 (1869). Lastly, it is urged that the complainants have a standing in court as visitors. This averment brings up for our consideration the nature and extent of the doctrine of visitation. A visitor is an inspector and judge (Whart. Lex., ad verbum ; Bouv. Dict., ad verbum; 12 Encycl. L. of Eng. 483 (3), and his visitation is a judicial visit or perambulation. Whart. Ler., ad verbum; Bouv. Dict., ad verbum; Tud. Char. Trusts (3d ed.) 80. Corporations only are visited, and these within three classes— ecclesiastical, civil and eleemosynary. 1 Bl. Com. (Lewis' ed.) 1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City. *480; 2 Kent. Com. (14th ed.) *300. In England, ecclesiastical corporations were those in which the members composing it were altogether spiritual persons, such as bishops, parsons, vicars, and deans and chapters. Such were erected for the furtherance of religion and perpetuating the rights of the church. 1 Bl. Com. *469. These were visitable by the ordinary (1 Bi. Com. *480) ; or, in cases of royal foundations, free chapels and donatives, by the founder, whether the crown or a subject. 12 Encycl. L. of Eng. 482. Civil corporations were such as were created for a variety of temporal purposes. Such were the mayor and commonalty, for the good government of a district; trading companies, for the advancement of manufactures and commerce; church wardens, for the conservation of the goods of the parish. 1 Bl. Com. *470. These were subject to the jurisdiction of the king's bench; that is to say, to the visitation of the crown, exercisable in that court. 1 Bl. Com. *480, *481; 12 Encycl. L. of Eng. 482. Eleemosynary corporations were created for the perpetual distribution of the founder's bounty. Such were, for the most part, hospitals for the maintenance of the poor, sick and impotent, and colleges and schools for the promotion of piety and learning, and for affording assistance to their members. 3 Steph. Com. (14th ed.) 3, 4. Such were visitable, in most instances, by the founder (fundator perficiens) in virtue of the dotation. 1 Bl. Com. *481; 12 Encycl. L. of Eng. 482; 3 Steph. Com. (14th ed.) 12. In our own state, under the Religious Societies Act (3 Gen. Stat. p. 2735), a religious society presents a threefold aspect— the congregation, made up of those who meet for worship and instruction; the church, composed of those entitled to full church privileges; and the trustees, or church corporation. Miller v. Baptist Church, 16 N. J. Law (1 Harr.) 251, 253 (1837). Under the act of 1872 (3 Gen. Stat. p. 2759), a presbytery may be said to present a twofold aspect-the Presbytery, a strictly spiritual body or court (Moore's Presbyterian Digest of 1898 177, 190), and the Trustees, or presbyterial corporation. Neither the church corporation nor the presbyterial corporation is strictly ecclesiastical in the English sense, inasmuch as the former is composed wholly of laymen; the latter, partly so. Nevertheless MacKenzie v. Trustees of Presbytery of Jersey City. 67 Eq. our laws class them as "religious ;" and such, indeed, they are, the church corporation taking, in part at least, the place of the rector and church wardens of the established Church of England (3 Steph. Com. 646, 649, 664, 678), and the presbyterial corporation taking a somewhat similar place with respect to the property of the presbytery. Whether these corporations are civil or eleemosynary, in the English sense, is a question not easy of determination, for if we observe, on the one hand, that they are but the civil arm of the church or presbytery to hold and manage their temporalities, we may observe, on the other, that they may, and often do, acquire lands and goods of private dotation, and that the real object of their existence is to employ these lands and goods for the welfare of men, without profit or reward. Interesting as this question is, both in itself and in its bearing upon the mode of visitation, we need not now determine it; for, although we should assume that such corporations are eleemosynary, or, with Chancellor Kent (2 Kent Com. (14th ed.) *274), that they are ecclesiastical, and that, in respect of the lands or estate in question, the original donor, George R. MacKenzie, might have reserved to himself and his heirs visitatorial powers over the trustees of the Scotch Church and over The Trustees of the Presbytery of Jersey City, we have not established the standing of the complainants in this suit. When a charity rests upon a private endowment, the founder and his heirs become, by the dotation, under the principles already stated, the legal visitors; nevertheless, the founder may delegate his power of visitation, either generally or specially, and no technical or precise form of words is necessary for the appointment of either a general or special visitor. Tud. Char. Trusts (2d ed.) 119; Tud. Char. Trusts (3d ed.) 74; 2 Kent Com. (14th ed.) *301. In Dartmouth College v. Woodward. 17 U. S. 518, 694 (1819), Justice Story, citing English cases, declared that it is sufficient if from the nature of the duties to be performed it can be inferred that the founder intended to part with the right of visitation, and that when the appointment is made in general terms the whole power of visitation vests in the appointee. In Attorney-General v. Talbot, 3 Atk. 662, 673 (1747), Lord Hardwicke held the chancellor of the University 1 Robbins. MacKenzie v. Trustees of Presbytery of Jersey City. of Cambridge to be general visitor of Clare Hall, the appointment to be inferred from the fact that branches of visitatorial power had been given to him; that the power to interpret the statutes had been conferred upon him; and that the founder's heir had been excluded. Furthermore, when the founder has thus appointed a general visitor, and for some cause the latter's functions shall have been suspended, as, for example, when rights and powers shall have so centered in one person that the rule that the same person cannot be both visitor and visited shall come into play, the power of visitation does not, ipso facto, return to the founder or his heirs, but is exercised through the courts of the land, properly invoked. Tud. Char. Trusts (2d ed.) 129, 130; Tud. Char. Trusts (3d ed.) 80, 81; 2 Kent Com. (14th ed.) *303, *304. In Rex v. Episc. Chest., 2 Str. 797 (1728), a mandamus issued to the bishop, as warden of Manchester College, and he returned that he was visitor; in argument, it was urged that the two offices being in the same person, he could not visit himself, and that there was no case shown wherein the founder had once granted the whole visitation out of him, and, on a temporary suspension, it had resulted back; the mandamus was then made peremptory, the court saying "the ground of our interposing is that at present there is no other visitatorial power in being." This case was relied upon in Green v. Rutherforth, 1 Ves. Sr. 463, 471 (1750). In Sanderson v. White, 35 Mass. 328, 359 (1836), Chief-Justice Shaw said that the trustees of a charitable trust are within the superintending power of a court of equity, not as of itself possessing visitatorial power, but as possessing a general jurisdiction over trusts, and that in such cases the interest of the public-or, what is the same thing, of the general and indefinite objects of the charity-would be represented by the attorney-general. In the case last cited, it may be remarked, the right of heirs, as visitors, to maintain a suit in equity was denied (see p. 339). If, now, we recur to the two deeds of donation, we find that the church, manse and lands were conveyed to the Trustees of the Scotch Presbyterian Church upon trusts which in their primary limitations were for the benefit of the religious society |