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MacKenzie v. Trustees of Presbytery of Jersey City.

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meeting in that church for worship and instruction, one of the provisions being that the church organization should be under the care of the Presbytery of Jersey City and its legitimate Presbyterian successors; and we find, also, that in the secondary limitations it was required that the property should vest in and the trusts be executed by the Presbytery of Jersey City and its legitimate Presbyterian successors. In the use of the words "the Presbytery of Jersey City and its legitimate Presbyterian successors," there seems, at the first glance, some confusion, inasmuch as we have already perceived the twofold aspect of a presbytery—as a strictly spiritual body or court, the body usually had in contemplation by the church; and as a presbyterial corporation, the body usually had in contemplation by the courts. A little reflection, however, will dispel the difficulty. A natural person, to whom property, real or personal, is conveyed or assigned upon trust, is none the less a single person or trustee because he has a dual or even a trinal nature, to wit, a spiritual nature, which may be moved by considerations of right and wrong; an intellectual nature, influenced by the rules of worldly prudence and of law; and a physical nature, through which the purposes and resolves of the immaterial being are manifested and wrought out. So, too, we may regard the presbytery as one, yet having at least a dual nature, and we may read the words above quoted as referring to the spiritual body and its particular functions, or to the trustee body and its particular functions, as may be necessary and proper.

Holding together before our minds the law of visitation, as already expounded, and the language of the deeds of gift respecting the functions of the presbytery and its successors, we see plainly indicated that it was the purpose of the donor or founder that the power of visitation should be lodged in the presbytery and its successors, acting as a church court, in things spiritual; acting by and through the trustee body, in things material; that the terms of the appointment being general, the whole power of visitation was vested in the appointees, to the exclusion of the donor and his heirs; and that, although the estate or fund in question has now passed into the legal possession of the Presbytery of Jersey City, by and through the trustee

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

body, so that the power of visitation in the general appointees is suspended, yet thereby the power does not return to the heirs of the donor; nevertheless, the trust remains subject to the superintending power of the courts. The exercise of such superintending authority the present complainants, upon their own showing, have no right or power to invoke. They appear to have no immediate interest in the questions involved.

Our last question—is the complainants' suit well conceived-has been measurably answered already, but it is now our task to show why the suit is not well conceived, and, incidentally thereto, what proceeding might be proper.

Tyssen, in his work on Charitable Bequests, ch. 39, Tit. Procedure, arranges in four great classes the principal cases in which litigation arises respecting charity property. Firstly, there may be wrongs to be redressed or relief to be sought, for which actions at law or suits in equity might lie, if the charity estates or funds were the private property of the trustees of the charity. In such cases, ordinary actions at law or suits in equity would be maintainable by the trustees against strangers. Secondly, a testator may make a charitable disposition by his will, and questions be raised as to its validity or the proper means of carrying it out. In such cases, the questions could be considered in an ordinary suit to administer his estate, or, occasionally, could be considered in other suits which come before the court under other branches of its jurisdiction. Thirdly, the trustees of the charity might improperly sell or lease the property to some person having a knowledge of the trust. Fourthly, the trustees of the charity might apply the property to wrong objects or appropriate it to their own use. In the third and fourth classes of cases, Tyssen remarks that our legal ancestors appear, for a time, to have felt a difficulty as to who was the proper person to bring a suit. At length, however, it came to be established that the attorney-general, as representing the crown, was the proper person. The suit had to be brought in the court of chancery, because that was the proper court for the enforcement of trusts, and the attorney-general came before it, not as a suitor complaining of an injury done to himself, but as one officer of the crown calling the attention of another officer to the neglect, on MacKenzie v. Trustees of Presbytery of Jersey City.

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the defendants' part, of the performance of a public duty. Hence the pleading was called, not a bill of complaint, but an information; and, as the crown had intervened merely for the protection of some of its subjects, the attorney-general was said to be the informant. If he sued at the relation of others, these parties were termed the relators, and the proceeding was called an information ex relatione. It may further be remarked of these cases that it became established that any person might act as relator in a charitable information without having the least beneficial interest in the administration of the charity, and that if this appeared on the face of the pleading, the latter was an information purely; but if any interest in the relator was set up, the pleading was an information and bill. See, on these points, 1 Dan. Ch. Pr. (4th Am. ed.) 8, 10, 11; Tys. Char. Beq. 514, 517; Tud. Char. Trusts (2d ed.) 148, 149, 156; Tud. Char. Trusts (3d ed.) 89, 315, 316, 317; Story Eq. Pl. (10th ed.) SS 8, 49.

If we turn to our judicial history, we perceive how well that which Tyssen has written accords with our own procedure. Taking up his second class of charity cases, we remember that suits for the administration of the estate of a deceased person are brought in equity, and rest on four grounds of equitable jurisdiction—the execution of trusts, the taking of accounts, the compelling of discovery and the inadequacy of any remedy at law. 1 Story Eq. Jur. (13th ed.) SS 531-534. Likewise, that among administration suits, or cognate thereto, are those for the construction of wills and the direction of executors and trustees, also brought in equity and resting on two or more of the jurisdictional grounds above mentioned. Under this second class, we may then arrange Norris v. Thomson's Executors, 19 N. J. Eq. (4 C. E. Gr.) 307 (1868); S.C. on appeal, 20 N. J. Eq. (5 C. E. Gr.) 489; Taylor's Executors v. Trustees of Bryn Mawr College, 34 N. J. Eq. (7 Stew.) 101 (1881); Brown v. Pancoast, 34 N. J. Eq. (© Stew.) 321 (1881); Hesketh v. Murphy, 35 N. J. Eq. (8 Stew.) 23 (1882); S. C.on appeal, 36 N. J. Eq. (9 Stew.) 304; Trustees v. Wilkinson, E.recutor, 36 N. J. Eq. (9 Stew.) 141 (1882); S.C. on appeal, 38 N. J. Eg. (11 Stew.) 514; Claypool v. Norcross, 42 N. J. Eq. (15 Stew.)

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

545 (1887); S. C. on appeal, 44 N. J. Eq. (17 Stew.) 522; Hutchins' Executor v. George, 44 N. J. Eq. (17 Stew.) 124 (1888); S. C. on appeal, 45 N. J. Eq. (18 Stew.) 757; Smith v. Smith, 54 N. J. Eq. (9 Dick.) 1 (1895); S.C. on appeal, 55 N. J. Eq. (10 Dick.) 821; Jones v. Watford, 62 N. J. Eq. (17 Dick.) 339 (1901); S. C. on appeal, 64 N. J. Eq. (19 Dich.) 785; Bruere, Executor, v. Cook, 63 N. J. Eq. (18 Dick.) 6.24 (1902); Hyde's Executors v. Hyde, 64 N. J. Eq. (19 Dick.) 6 (1902), and Pennington v. Metropolitan Art Museum, 65 N. J. Eq. (20 Dick.) 11 (1903). Furthermore, of the collateral cases in Tyssen's second class, we have several examples, notably Mills v. Davison, which was originally brought for the foreclosure of a mortgage. Mutual Benefit Life Insurance Co. v. Grace Church, 5.3 N. J. Eq. (8 Dick.) 413 (1895). If, in one or more of these casas, strict regard for practice would have made it proper that the attorney-general be made a party, all that need be said now is that the matter was passed sub silentio, and such cases are not authority, in point of practice, either pro or con. In the present case we do not thus pass over the matter, inasmuch as the standing of the complainants as suitors has been positively denied by the defendants. Taking up Tyssen's fourth class of charity cases (within which the cause sub judice plainly belongs), we find, in our reports, Attorney-General v. Moore's Executors, 18 N. J. Eq. (3 C. E. Gr.) 256 (1867); S. (. on appeal, 19 N. J. Eq. (4 C. E. Gr.) 503, in which the procedure by an information of the attorney-general ex relatione was followed, the relator, Bishop Bailey, having no personal interest in the charity; Green v. Blackwell, 35 Atl. Rep. 375 (1896), in which such procedure was pointed out as the one proper to be followed; and Lanning v. Commissioners of Public Instruction of Trenton, 63 N. J. Eq. (18 Dick.) 1, 8 (1902), in which such procedure was approved, but, under the circumstances, waived.

In the case in hand, the persons interested in the estate or fund, being an indefinite or fluctuating body, are properly represented only by the attorney-general; and only he, or the Presbytery of Jersey City, by and through the body charged with the duties of trusteeship, or some member of that body, can

MacKenzie v. Trustees of Presbytery of Jersey City.

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acquire or have a standing to invoke the action of the courts touching the due administration of the trusts. .

It must not, however, be inferred, from the fact that the right of the present complainants to maintain their suit has been denied, that the use of the estate or fund proposed by the Presbytery of Jersey City, and revealed by the pleadings, meets with our approval. Evidently such use is not in exact accord with the original intent of the founder, and it can be permitted, if at all, only after the whole case shall have been fully disclosed in the court of chancery, either upon an information filed by the attorney-general (probably ex relatione), as representing the undefined beneficiaries of the charity, against the Presbytery of Jersey City, in and through its trustee body, or upon a bill exhibited by the presbytery, by and through its body charged with the duties of trusteeship, in which the attorney-general, as representing the beneficiaries, should be made a party defendant. In the proceedings upon such information or bill, if it appears that the trust cannot be literally executed, there should be presented to the chancellor, for approval, either directly or by an inquiry in the master's office, a scheme for the due administration of the charity within the limits of the judicial doctrine of cy pres, as hereinbefore accepted. Until such course shall have been pursued, it will be the duty of the proper presbyterial body to preserve the fund intact, and the attorney-general should take care that such duty is not violated.

6. The decree of the court of chancery should be reversed, but, of course, without prejudice te any further or other proceedings of the nature hereinbefore indicated. The reversal will be with costs.

For affirmance-PITNEY, BOGERT—2.

For reversalDixon, GARRISON, SWAYZE, VREDENBURGH, VROOM, GREEN, GRAY—7.

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