
    PROPERTY HELD IN TRUST FOR. A FRATERNAL ORDER.
    [Circuit Court of Franklin County.]
    New England Lodge No. 4 F. & A. M. et al v. Rufus M. Weaver et al.
    Decided, 1906.
    
      Trusts and. Trustees—Conveyance for Benefit of Masonic Lodges— Rights of the Cestuis que Trustent—Seceders must Invoice Procedure within the Organization—Can not Establish Their Right to Title to Property of the Organization by an Action in Court—Duty of Public Officer Holding a Dry Trust.
    
    1. Where a deed to a public officer in trust for certain unincorporated societies names beneficiaries and employs words of perpetuity to convey the fee, but does not invest the trustee with any other duty than that of being the mere repository of the legal title, it is competent for such trustee to execute the trust at the instance of the cestuis que trustent by conveying such property to them or their nominee.
    2. Where a grantor conveyed land to the governor of the state, in trust for the local organization of certain fraternal orders, the fact that such local bodies have seceded from the state organization which had chartered them, will deprive them of the right to enjoy such property, where their charters have been reissued to other bodies since the secession.
    Henry, J.'; Marvin, J., and Giefen, J., concur (sitting in place of the Judges of the Second Circuit).
    Heard on appeal from common pleas court.
    This was a case involving a controversy between two organizations, each claiming to be the cestui que trust of land in the town of Worthington, Franklin county, Ohio, which was conveyed in 1824 by one John Snow to Jereiniah Morrow, governor of the state of Ohio, and his successors in office forever, “for the use and benefit of New England Lodge and Horeb Royal Arch Chapter, Free and Accepted Masons, established in said town of Worthington.” This lodge and chapter were established respectively in 1814 and 1816. by charters from the grand lodge and grand chapter of the state of Ohio, and they were incorporated under the laws of Ohio in 1887 and 1888. In 1891 the local bodies in Worthington withdrew from their respective state organizations aforesaid, by reason of requirements imposed by the latter upon them which they deemed to be unmasonie and a departure from the ancient landmarks of the order. The state organizations thereupon demanded a surrender of their masonic charters, and this being 'refused, duplicate or substitute charters were issued to a small minority of the local bodies who had either not participated or had not persisted in the revolt.. The seceders remained in possession of the property in dispute, maintaining substantially their accustomed names, practices and corporate organizations, but no longer in subordination, to the grand lodge and grand chapter of the state of Ohio.
    In 1899, the local bodies, to which the duplicate charters had been issued, procured from Asa S. Bushnell, then governor of the state of Ohio, a deed of conveyance of the property in dispute to one Weaver, as trustee for their local lodge—their local chapter having waived its rights thereto. Thereupon the seceders, being still in possession and claiming to be the true beneficiaries of the original trust, brought this action to enjoin'the record of said deed, to have the same declared null and void, and for general relief. The present governor of the state of Ohio, the recorder and auditor of Franklin county, and the grantee of Governor Bushnell are made parties defendant.
    The plaintiffs contend that the sole issue to be- decided here is as to the validity of the deed from Governor Bushnell to Weaver. The defendants contend that a preliminary question is, whether or not the plaintiffs are the beneficiaries of the original trust, and if not, whether they have any standing in court to complain of the alleged invalidity of "said deed;
    ■ On the part of the plaintiffs it is urged that this action is properly brought within the purview of Section 5779, Revised Statutes of Ohio, which provides that, “An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.” They further urge that the terms of the trust, as defined in the deed to Governor Morrow, are such as to devote the land in controversy to the uses thereby defined, in perpetuity, and that Governor Bushnell, therefore, had no right to alien the property to any person or for any purpose whatsoever.
    Our examination of the deed to Governor Morrow and of the authorities cited to us, convinces us that the original trust was nothing else than a simple or dry trust, created to obviate the difficulty, of granting' the land directly to two unincorporated societies for their joint use. The deed names the beneficiaries and employs words of perpetuity to convey the fee, but it does not invest the trustee with any duty other than that of being the mere repository of the legal title. It was, therefore, perfectly competent for the trustee to execute the trust at the instance of the beneficiaries by conveying it to them or their nominee.
    We are, therefore, compelled, even on the plaintiff’s theory of their ease, to inquire next whether the alleged beneficiaries thus recognized by Governor Bushnell were the cestuis que trust ent of the original deed to Governor Morrow. It is clear that Snow, the original grantor, sought to name as beneficiaries the local bodies then established in Worthington in subordination to the state bodies then existing. It is equally clear that the plaintiffs have seceded from that relationship. They may have had the best of reasons for so doing, and their claims as to the action of the state bodies being a departure from the ancient landmarks may be perfectly true. But those are questions which they must work out through the organizations themselves. They were entitled to invoke the procedure afforded by those organizations for the relief of dissatisfied adherents. It is not complained that such procedure was not afforded, nor that they were denied the right to invoke it. And we must, therefore, hold that the plaintiffs, having withdrawn from the organizations contemplated by the original deed of trust, are not entitled to the relief for which they pray. .
    Petition dismissed.
    
      T. J. Duncan, for the plaintiffs.
    
      O. W. Aldrich and Allen Andrew, for the defendants.
     