Opinion
Decided June 28, 1928.
Whether at church and religious society has been maintained in conformity with the requirements of a bequest of property thereto is a question of fact.
Bequest to trustees "for the support of the said Second Advent Church and Society at . . . Sugar Hill, as long as the visibility of that Church shall be continued at that place by the maintenance of public worship, and by the maintenance of a meeting house, the property of said society according to the forms and tenets of the Second Advent Church," with a gift over upon the "failure of . . . the Church Society and meeting house . . . as active living agencies of the Second Advent Church at that place." Notwithstanding an agreement between said church and another denomination for community services which were conducted by a minister not of the Advent denomination, and notwithstanding there had been no preaching of doctrinal sermons by Advent ministers, certain evidence as to the services conducted, the preaching of certain Advent doctrines, and as to the maintenance of the organization warranted the conclusion that the "visibility" of the church had been continued by the maintenance of public worship and that the church and society and meeting house had been continued as active living agencies of the church as intended by the testator.
A bequest to a church conditional upon service being maintained "according to the forms and tenets" thereof means in accordance with the faith of the denomination, if there is no evidence of any peculiar or distinguishing religious forms.
BILL IN EQUITY, for instructions, brought by the trustees under the will of Chandler B. Parker.
The third clause of the will gives certain property to the plaintiffs, in their capacity as trustees of the Second Advent Church and Society of Sugar Hill. It confers the right to change investments, and then reads as follows: ". . . keeping the principal invested as safely as practicable, in good interest bearing securities or properties, the income of the property and the interest on the investment being used by said Trustees for the support of the said Second Advent Church and Society at said Sugar Hill, as long as the visibility of that Church shall be continued at that place by the maintenance of public worship, and by the maintenance of a meeting house, the property of said society according to the forms and tenets of the Second Advent Church."
The fourth clause makes a gift over to the defendant "in case of failure of the cause for the support of which said estate is by this will placed in their custody, viz: the Church, Society and meeting house of the Second Advent Church at Sugar Hill, as active living agencies of the Second Advent Church at that place, . . ."
There was a trial of the facts before Young, J., who made findings and an order in substance as follows.
Parker died in July, 1906. By chapter 195, Laws 1907, the Second Advent Church and Society of Sugar Hill, New Hampshire, was incorporated, and was authorized to receive and hold all property devised by the will. On February 15, 1908, the trustees of said church received from the executor $2,898.58.
The church organization, in fact, existed for many years before the act of incorporation above referred to. Since the death of Parker the congregation and membership of said church and society have become materially diminished in numbers, because of deaths and removals. The same is true with respect to the Free Baptist Church of that community. In 1920, by written articles of agreement, said Advent Church and said Free Baptist Church formed a union, for the purpose of cooperating to the end that religious services might be continued, in which all might join. It was agreed that each church should retain its own organization, receive and dismiss members according to its own customs, remain loyal to its own denomination, and contribute to its own denominational enterprises as it might choose. It was intended that this union should not be a denominational body, and it has not been such, but has served the purposes of enabling the community to have a settled pastor and regular religious services, neither of which would have been possible otherwise. Each society owns a church building and parsonage. For convenience it has been the custom and practice to hold the community services in the Baptist church during the summer, and in the Advent church during the winter. The church building and parsonage of the Advent society are in a good state of repair, and suitable for their intended use, and at the present time the community pastor is living in the Advent parsonage. The Advent society has kept its organization, held its society meetings, and elected its officers regularly, although no longer a member of the Advent Conference under the by-laws of that organization, because of the fact that it has failed to report to the conference for a period of over five years. One new member has been taken into the Advent church, and the arrangement has been such that any who desired could have joined at any time.
No doctrines have been advocated under the community plan which were antagonistic or derogatory to, or inconsistent with the Advent belief. By this plan the visibility of the Second Advent Church and Society at Sugar Hill has been continued by the maintenance of public worship, and the church and society and meeting house have been kept and continued as active, living agencies of the Second Advent Church at Sugar Hill.
A part of said Parker fund has been used in connection with the maintenance of said community organization, and in the repair and upkeep of the Advent church and parsonage. Such use has not been a misappropriation of the fund, but at all times has been consistent with the intents, purposes, and desires of the said Parker, as expressed in his said will.
The petitioners are advised that the use of the income from said Parker fund for the maintenance of public worship in the manner hereinbefore described is within the meaning of said will; and that the said trustees may continue to so use said income in like manner as long as the Second Advent Church and Society at Sugar Hill continues active, maintains public worship and a meeting house in the interests of the doctrines, beliefs, and tenets of the Advent faith.
The defendant excepted to the following findings:
"By this plan the visibility of the Second Advent Church and Society at Sugar Hill has been continued by the maintenance of public worship, and the church and society and meeting house have been kept and continued as active, living agencies of the Second Advent Church at Sugar Hill, and has prevented the failure of hope of that church in the coming of Christ in the near future."
"Such use has not been a misappropriation of the fund, but at all times has been consistent with the intents, purposes, and desires of the said Parker, as expressed in his said will."
"The petitioners are advised that the use of the income from said Parker fund for the maintenance of public worship in the manner hereinbefore described is within the meaning of said will; and that the said trustees may continue to so use said income in like manner as long as the Second Advent Church and Society at Sugar Hill continues active, maintains public worship and a meeting house in the interests of the doctrines, beliefs, and tenets of the Advent faith."
The case is transferred on these exceptions.
Fred S. Wright, for the plaintiffs.
Foster Lake, for the defendant.
The question raised by the exceptions is whether the findings are supported by any substantial evidence. The maintenance of the church and society in conformity with the requirements stated in the will is a matter of fact. Carter v. Savings Bank, 70 N.H. 456. If there was visible maintenance of the Advent doctrines through the medium of public services it is sufficient.
The visibility of the church through the maintenance of public worship, might be manifested by other means than the preaching of doctrinal sermons by Advent ministers. The bequest is not made to depend upon the support of such a minister or upon a large number of members in the church. So long as there were sufficient members, and of sufficient zeal for the cause, to visibly maintain public worship according to the forms and tenets of the denomination, the benefaction was to continue.
That this provision is not to be dealt with in any narrow or technical sense, is shown by the form of expression used in the gift over, wherein the test is stated to be the "failure of . . . the Church, Society and meeting house of the Second Advent Church at Sugar Hill, as active living agencies of the Second Advent Church at that place."
The phrase "according to the forms and tenets" of the Advent church merely means, so far as the evidence discloses, in accordance with the faith of that denomination. No peculiar or distinguishing forms were testified to.
Public worship may well be maintained for the edification and spiritual welfare of those who are already members of the church. It does not cease to be public worship because no evangelizing efforts are put forth. Such worship, openly and notoriously conducted, is certainly visible. When it is conducted by the religious corporation and in the church owned thereby, the corporation and the edifice may well be found to be active agencies of the denomination.
The chief point of the defendant is that the activities carried on are not devoted to the Advent faith. Because the services are maintained in part by a Baptist society, and the minister is not of the Advent denomination, it is said that such faith is not maintained. The evidence discloses a purpose and course of conduct calculated to avoid any such objection. The present minister, while professing allegiance to another denomination, declared his belief in nearly all the Advent tenets, that he preached the same, and that upon the point as to which he was in doubt he refrained from preaching.
It ought not to be impossible for two Christian bodies to worship in common, while each maintains its own peculiar doctrinal points. A church may be an active force, although it is not an exclusive one. There is no suggestion in the evidence that the tenets of the Advent church require a pharisaical separation from other Christian worship.
The situation disclosed by the evidence is not an unusual one. Changes in population, and the trend of the younger generation sway from remote rural communities, leave the churches with a small membership of elderly people. As one of the plaintiffs testified, the church was petering out, but they were trying to do the best they could. His acquiescence in the court's suggestion that "they ought to leave you run until you peter out," is both reasonable and good law. The testimony of the defendant's representative that "we consider it dead" (referring to the church), does not conclude the matter. Its right to continue to receive the testator's benefaction depends upon what he wrote in his will. It was his purpose to aid this particular religious body so long as it had an active part in the life of the community. So long as it continues to do so in the manner described by the presiding justice, it is entitled to the income of the fund.
The defendant's other objections relate to the legal conclusions drawn from the facts found. As they are based entirely upon untenable objections to the findings of fact, there is no occasion for their further consideration.
Exceptions overruled.
SNOW, J., was absent: the others concurred.