. [The State, ex rel. McNeill v. Bibb Street Church.] as a dwelling-house for the minister and pastor during his pastorate, and other buildings under the direction and authority of the church, the annual rentals of which have been devoted and applied by authority of the annual conference, for a number of years past, to paying the current expenses of the station and the compensation of the minister, and have been, and are amply sufficient for these purposes. In that case, the In Feizel v. Trustees, 9 Kan. 592, the local church was a member of the organization known as the Methodist Episcopal Church. The church edifice was erected on the land conveyed upon the trust, among others, that the trustees should, at all times and forever, permit such ministers and preachers, as should from time to time be duly authorized by the general or annual conference of the Methodist Episcopal Church, to preach and expound "God's Holy word" therein. The court held, that if the trustees hindered a duly appointed minister "from preaching in the church, they are thwarting the expressed intention of the donor, and diverting the property from the channel of the trust in which he placed it. At this point the courts will interfere and restrain the diversion of the property from the trust." A mandamus was issued to restore the removed minister. property was annexed to the local church, and belonged to the minister in respect of his office, under the rules and regulations of the church, and by the express terms of the conveyance. The deed to the realty connected with the "Bibb Street Church" is not set out in the petition, and we are not informed that it contained any specific uses and trusts. We must infer that the conveyance was in accordance with the regulations of the constitution of the church, which provides: "Each church shall have power, by the concurrent vote of two-thirds of the qualified members, present at a meeting publicly called together for that purpose, to purchase, build, lease, sell, rent, or otherwise obtain or dispose of property for the benefit of the Methodist Protestant Church;" and the same power is conferred by the discipline on the trustees of the local church.-Disc. 18, 110. It is further provided, that if any station shall become extinct in any manner, the church property shall vest in the Quarterly Conference, or, if there be none, in the Annual Conference, to be disposed of in erecting houses of worship for the church, after paying the debts of the local church. It is manifest from these provisions, that the property vests in the local church, until it becomes extinct, to be disposed of as authorized by two-thirds [The State, ex rel. McNeill v. Bibb Street Church.] of the qualified members. The constitution of the church further provides, that the Annual Conference shall be vested with power, "to make such rules and regulations as may be necessary to defray the expenses of the itinerant ministers, preachers and their families; to raise the amount of their salaries; and for all other purposes connected with the organization and continuance of said conferences."-Disc. 22. So long as the property is vested in, and subject to the disposition of the local station, the Annual Conference has no authority, without the consent of the local church, to direct any specific uses to which it shall be devoted; and if the church becomes extinct, the constitution directs how the property shall be appropriated. It is not averred, that any fixed salary has been agreed on; or that the rents of the property have been directed, by the requisite vote, to be applied to the payment of the pastor's salary; or that there has been any diversion of the property from the use and benefit of the Methodist Protestant Church, as declared by the conveyance, or by the rules of the church; or that the use of the property is annexed to the pastorate, so as to vest in the pastor a temporal right, of which the court can take jurisdiction. The allegations of the petition fail to sufficiently show any fixed emoluments, uses, or other temporal right, so as to authorize interference by the civil courts. There is another objection fatal to granting a mandamus in this case. The petitioner avers that his deprivation of the possession of the church edifice and parsonage, and of his rights, emoluments and franchises, have been conducted without due authority, and in positive and direct violation of the constitution, laws and ordinances of the Methodist Protestant Church. The case made by the petition presents questions of ecclesiastical rule or law, and of church discipline-the pivotal question being whether, under the rules and regulations of the organization, the "Bibb Street Church" is bound to receive any minister, who may be appointed thereto by the Annual Conference? When a local church is a member, and under the government of a larger organization, and ecclesiastical tribunals are provided for the determination and adjudication of such questions, their decisions will be referred to such tribunals by the courts. The constitution of the Methodist Protestant Church provides for the trial of any church which shall, by any official act or declaration, evince a determination not to conform to the provisions of the constitution and discipline. It is made the duty of the pastor, [Ex parte Henderson et al.] in such case, to make every reasonable and proper effort to induce the church to conform; and if such efforts prove unavailing, to nominate a committee of five male members, neither of whom shall be a member of the accused church, who shall constitute a competent court of trial, and shall decide the case. The accused church has the right of appeal to the Quarterly Conference, and if it be a station, to the following Annual Conference. The penalty prescribed is, that if the church "be found guilty of a departure from the constitution or the regulations of the discipline, it shall be declared no longer in connection with the Methodist Protestant Church." Disc. 59. Such tribunals having been provided for the trial and decision of such cases, the civil courts in the exercise of their discretion, will not grant a writ of mandamus to restore a rejected minister to his office and functions, before a final decision has been had by the church authorities.-German Ref. Church v. Sibert, 3 Penn. St. 282; High Ex. Leg. Rem. $298. It is more promotive of the peace and good order of the church at large, and of the advancement of the principles of christianity, that resort should be had to the church judicatories, when they are provided by the constitution of the organization, for the decisions of such questions, than to the civil courts. The relator should be left to resort to the remedies provided and furnished by the constitution and discipline of the church. Affirmed. Ex parte Henderson et al. Application for Mandamus to Chancellor requiring him to entertain a Petition to correct Note of Testimony of Cause in Supreme Court. 1. Power of courts to correct records.--All courts have inherent power to correct their records so as to make them speak the truth, even after final decree and appeal to a higher court. This power exists until the judgment or decree of the lower court becomes merged in the judgment of the appellate court by affirmance. 2. Same; mandamus.-Mandamus will issue to compel a chancellor to consider and pass upon a petition praying a correction in the note of testimony in a cause appealed from his court and pending in the appellate court. [Ex parte Henderson et al.] 3. Notice; demurrer; appearance. A demurrer filed to a petition is sufficient appearance to dispense with notice. 4. Demurrer; amicus curiæ.-Demurrer can not be filed by amicus curiæ. This was an application to the Justices of the Supreme Court for a writ of mandamus to Chancellor McSpadden requiring him to entertain and pass upon a petition filed in the Talladega Chancery Court praying a correction of the note of testimony in a cause now in the Supreme Court on appeal from said lower court. There was filed in the lower court a motion by amicus curia to strike the petition from the files, and a demurrer; which motion and demurrer were filed by the attorneys for the appellees in the cause appealed to this court. KNOX & BOWIE, for petitioners. STONE, C. J.-This is an application for mandamus to Hon. S. K. McSpadden, chancellor of the N. E. Division, sitting in and for Talladega county, requiring and commanding him to entertain and pass upon the petition of relators, praying a correction of the note of testimony in the case of John Henderson, now revived in the names of his heirs-atlaw, against Charles Pelham et al., lately pending and decided in said court, and now in 'this court by appeal. A petition was filed in the court below, praying for such correction. The chancellor sustained a demurrer to the petition and dismissed it, on the ground that there had been a final decree in that court and an appeal to this court, which was still pending and undetermined. The case made by the petition is in the nature of an application for an amendment nunc pro tune. All courts have the inherent power to correct their records, so as to make them speak the truth, even after final decree, and after appeal to this court. And that power exists until the judgment or decree of the lower court becomes merged in the judgment of this court by affirmance. Stephens v. Norris, 15 Ala. 79; Norris v. Cottrell, 20 Ala. 304; 1 Brick. Dig. 78 S$ 129 to 163; Moore v. Lesueur, 33 Ala. 237; 3 Brick. Dig. 577-8. The chancellor erred in the reason he gave for his ruling. The petition was prima facie sufficient, and the demurrer filed was a sufficient appearance to dispense with notice. [Gay v. Gay.] Demurrer can not be filed by amicus curiæ. The chancellor should so far consider the petition, as to pronounce on the proofs offered.-Steele v. County Comm'rs, 83 Ala. 304. A rule nisi is awarded to the Hon. S. K. McSpadden, chancellor, to show cause why a mandamus shall not issue as prayed for, unless in the mean time he entertains and considers relator's petition for amendment of the note of testiThe rule to be returnable on Tuesday, the fourth day of December, 1888. mony. Gay v. Gay. Contested Probate of Will. 1. Revocation of will by marriage and birth of child.-The implied revocation of a will by subsequent marriage and birth of issue, under the statute of Alabama (Code of 1886, § 1953), is based on a presumed alteration of intention, arising from changed circumstances, new relations and duties; and the presumption is made conclusive, unless provision is made for the after-born child, or an intention not to make provision is shown in the will; but the presumption may be rebutted by a settlement providing for the child, made after as well as before the execution of the will. 2. Same; provision for child by ante-nuptial contract.-When provision for the after-born child is made by gift or settlement, the nature and extent thereof are left to the discretion of the testator as when made by will, except that it must not be so grossly inadequate as to be the equivalent of no provision; and an ante-nuptial contract, by which, in consideration of the marriage and the relinquishment by the wife of all interest in the estate of the husband and testator, real and personal property is conveyed to her, in trust to hold the same during life or widowhood, with remainder to the issue of the marriage living at his death, or at the time of her second marriage, and, on the death of such issue unmarried, then to the heirs at law of the testator, is prima facie a substantial provision for the after-born child, and rebuts the presumption of revocation. APPEAL from Montgomery Probate Court. Heard before the Hon. F. C. RANDOLPH. This was a contest of the probate of a paper purporting to be the last will and testament of Julius B. Gay, deceased, by Julius B. Gay, an infant child, represented by guardian ad litem. The grounds of contest, and the facts of the case, appear in the opinion. The contest was sustained, and it was adjudged and decreed by the probate court that the will was revoked and void. From that decree the proponents appealed. |