
    Richard S. Ludlam and others vs. Joseph S. Higbee and others.
    As a general rule, the contributors to a fund creating a trust for mere charitable purposes cannot call the trustees of that fund to an account for a misapplication of the fund or any other breach of the trust. There must be something peculiar in the transaction, beyond the mere fact of contribution, to give a contributor to a charitable fund a foothold in court to enable him to question the disposition of the fund.
    A person who comes into a court of equity for such a purpose must have some interest in the trust. In general he must be a trustee, or cestui que trust, or have some reversionary interest in-the trust fund.
    Individuals subscribed and contributed a large fund for the purpose of building a church at Gape May, for visitors of all denominations of Christians, upon the trust that title was to be vested in and held for the purpose aforesaid by individuals holding the Presbyterian faith. Held — if the property was conveyed to individuals of the Presbyterian persuasion; if a trust was created by which the property was to be held by individuals holding the Presbyterian faith, to be used as a house of worship for the contributors to the fund and others', visitors at Gape May ; if the individuals in whom the title to the property was vested violated their trust by conveying the property to an ecclesiastical body under the organization of the Methodist church, who hold it for the exclusive benefit of persons of their own persuasion, and excluding all other denominations of Christians, then the contributors are entitled to their bill in this court for the protection of the court, because they are deprived of their benefit to the trust property.
    The hill states that, in July, 1841, a meeting was held at Cape Island, by “ the visitors and citizens of said island and vicinity, for the purpose of taking measures to procure the erection of a suitable, place of worship, on said island, for the free and perpetual use of said visitors,” at which meeting it was resolved forthwith to open subscription books for that purpose, to be submitted to the visitors and citizens.
    That such books were opened, and contributions solicited to form a fund for that purpose; that such contributions were made, and shortly amounted to over $2000, which has since been increased by subscriptions and weekly collections until over $4000 have been paid by com
      
      plainants and other contributors; that complainant, Richard S. Ludlam, has contributed, in all, $150, Jeremiah E. McCray has contributed over $100, William Stites has contributed over $50; hut that, in consequence of some subscriptions being lost, are not able to specify other contributions, a large amount of which was in weekly donations.
    That to effect the object of said meeting and design of said contributors, one James McCray purchased of Eveline Hughes a lot, in fee simple, by deed of August 20th, 1841, for $100, then worth $200, with the understanding that it should he used as a site for said church. That while said James held said lot, a building (a church) was erected thereon with his assent, and said funds collected and applied to it, with an agreement with said James “ that he would at any time convey the same, for a certain consideration, to such persons and for such purposes as should be agreed upon and directed by said contributors, or such of them as were the managers of the affairs of said church.”
    That “ the trastees of the Presbyterian church at Cold Spring,” being the only religious body to whom said contributors were willing to intrust the title and control, who desired to place the same under the control of persons holding the Presbyterian faith, they determined that said James should convey “ to the individuals then being the trustees of said Presbyterian church at Cold Springand that said James and wife, February 19th, 1844, conveyed the same to “Joseph Higbee, Enoch Edmunds, Jonathan Crawford, Eli B. Wales, John K. F. Stites, James Mc-Kean, and Andrew H. Reeves, as trustees of the Presbyterian church at Cold Spring, in the Lower township of the county of Cape May, and state of New Jersey, and their successors in office” — consideration $300 — “to have and to hold unto said Joseph S. Higbee, &c., trustees of the Presbyterian church at Cold Spring, in the county and state aforesaid, and their successors and assigns, to their only proper use and behoof far ever,” which deed was duly acknowledged and recorded.
    
      That from the erection of said building, until the sale complained of, it was occupied under the management and control of said grantees, described as trustees as aforesaid, as a “ church for the common worship of the said visitors of all denominations, and called the Visitors church; and that during each summer, services were performed by ministers of all denominations of Christians, in rotation, and weekly contributions taken up, with public announcement and understanding that they should be applied to pay the debt of said church, and the thorough completion of said building and perpetual establishment thereof, as a church for the free and common use of said visitors under the control of said trustees, under which contributions were made to amount of $300 annually,” with which-the debt was paid, except $800, less than present value of land.
    That said moneys were raised, as aforesaid, solely to establish a free church for visitors, to be held by said grantees “as an organization, of persons holding the Presbyterian faith,” and not for benefit of grantors or said church at Cold Spring.
    That although said consequence purports to be an absolute conveyance in fee simple, yet it was made to enable the contributors to carry out their said charitable object, so that said grantees were in fact trustees for the uses and purposes aforesaid, and for no other use.
    That in conveyance of the erection of a new Presbyterian church at Cape Island, and the said Cold Spring congregation having no longer any use for the free church between bathing seasons, they resolved, at a meeting thereof, in 1854, that the then trustees of said church should convey said free church property to “ the Methodist Episcopal Church at Cape Island,” in pursuance of which resolution, Downs Edmunds, Eli B. Wales, Andrew H. Beeves, Jeremiah Eldridge, and William Cummings, the then trustees of said church at Cold Spring, by deed of May 1st, 1854, in consideration of $4000, conveyed the same to Jonas Miller, Israel Learning, Jeremiah Church, Aaron Garretson, William Corgie, Lemuel A. Shaw, Israel Hughes, Samuel Schillinger, and David. W. Pierson, as trustees of the Methodist Episcopal Church in Cape Island City, county and state aforesaid; it being stated, in said deed, “to be understood and agreed upon by the parties thereto, and to be the true intent and meaning thereof, that the said meeting house, or church, should be open and free to all denominations of evangelical Christians, during the bathing seasons,, for ever thereafter, and the pulpit of the said meeting house, or church, should be free and open to the ministers of said various denominations, in rotation of denomination, without preference to any denomination as to sabbath morning or afternoon or evening service; and that the ministers of such various denominations as might be present on the island during the bathing season should have the use and privilege of the pulpit in the way and manner aforesaid: to have and to hold unto said grantees, trustees as aforesaid, their successors in office or assigns, to them and their only proper use, benefit, and behoof for everwhich deed was duly acknowledged and recorded.
    That complainants have been informed, and believe that Gold Spring trustees received of Methodist trustees $4000, or other large sum.
    That the Methodist trustees had full notice of trusts, &c., and were duly warned against the purchase; yet they received the deed, and have taken possession of the property, and have control of it.
    That during the season of 1854, the Methodists have had almost the exclusive use, “ while other denominations have been entirely excluded therefrom, whereby many of the contributors to the purchase and support of said property have lost all the benefits and advantages thereof.”
    That the Cold Spring church is not a corporation; that the conveyance by James McCray was, at the request of complainants and other contributors as aforesaid, “ to the said individuals described as such trustees, in order that said individuals, then acting as such trustees, might better carry out and perform the purposes for which said property was purchased and said building erected, and not in any manner to vest the title in the said church at Cold Spring for its own benefit, or to give to the congregation thereof, or any future trustees, to dispose of the same, or divert it from said purposes;” — “that said property was conveyed to said individuals, as such trustees, in order that it might perpetually remain under the control of persons holding the Presbyterian faith, for the purposes aforesaid; and although free during bathing seasons, yet the control of it at times and the use between those persons to continue in persons holding the Presbyterian faith.”
    That the Methodists and Presbyterians differ in doctrine and management of property, and that the conveyance to the former is a breach of trust.
    That only two of the grantees of James McCray, viz. Eli B. Wales and Andrew H. Beeves, joined in the conveyance to the Methodist church, the other grantors claiming as successors, while the title was not in said trustees as a corporation, hut as individuals described as trustees, (descriptio persones).
    
    That all said grantors are living, and that John X. P. Stites (one of them) was, at the time of the conveyance to the Methodist church, one of the Cold Spring trustees, and refused to join in the conveyance, and Richard D. Edmunds (another of said grantors) also refused, denying the power of the Cold Spring congregation.
    Bill charges, among other things, that the title is still in grantees of McCray, and although the deed is absolute on its face, the consideration was by the said contributors and the trust resulting, and are implied as aforesaid.
    That the conveyance to the Methodist church is a fraud —property worth $7000.
    That the appropriation of the purchase money is a perversion of the charity.
    Prays the conveyance to he deemed fraudulent and void.
    
      That "Wales and Reeves he removed from the trust for joining in the conveyance, and new trustees appointed in their stead; or that, if conveyance void, the said grantees be deemed to hold in trust, &c., and directed to execute a declaration of trust, and that Wales and Reeves be removed.
    Order that said grantors account with contributors for purchase money and general relief.
    To this bill there was a general demurrer.
    
      W. L. Dayton, for complainants.
    
      A. Browning, for defendants.
   The Chancellor.

The several grounds urged in support of this demurrer are objections which reach the whole equity of the bill.

First. It is objected that the complainants are not entitled to maintain this suit, because they have no interest in the alleged trust. The argument assumes that the complainants, by the bill, show no connection with the trust, except that they were among the donors who contributed the fund to establish the trust. It is insisted that the mere contributors to a fund creating a trust for charitable purposes cannot call the trustees of that fund to an account for a misapplication of the funds or any other breach of the trust. This is certainly true, as a general rule, and there must be something peculiar in the transaction beyond the mere fact of contribution to give a contributor to a charitable fund a foothold in this court for the purpose of questioning the disposition of the fund. A party who comes into a court of equity for such a purpose must have some interest in the trust. In general, he must be a trustee, or cestui que trust, or have some reversionary interest in the trust fund.

But I think it sufficiently appears, on the face of the bill, that the complainants, as well as having been contributors to the fund, are interested in it as cestuis que trust. It is true thei’e is no specific allegation to this effect, and it may be that the draftsman of the bill did not consider the importance of the complainants assuming this position before the court. But the whole scope of the bill is to the effect, that if the trust be established, the complainants are entitled to the privilege of worshipping in the church. If they have been deprived of this privilege, which was one of the objects of the trust, they have a right to seek redress in this court. The trust set up is, that the church was to be free for the use of visitors at Cape May of all denominations of Christians, and that the title was to be vested in and held for this purpose by individuals holding the Presbyterian faith. The breaches alleged are, that the church has been conveyed to an ecclesiastical body under the organization and government of the Methodist Episcopal Church, and that the church building has been used, almost exclusively, for the worship of persons of the Methodist persuasion, while other denominations of Christians have been entirely excluded therefrom. If the complainants, with others, contributed to a fund to erect a church; if the property was originally conveyed to individuals of the Presbyterian persuasion ; if a trust was created by which the property was to be held by individuals holding the Presbyterian faith, to be used as a house of worship for the complainants and others, visitors at Cape May; if the individuals in whom the trust property was vested have violated their trust— then the complainants, who have been deprived of the benefit of the trust property, are entitled to the protection of this court, and to have the trust property restored to its original purpose and trusts.

Another objection is, that the bill shows a parol trust, and of such a character as- cannot be established by parol testimony.

I do not think the objection is well taken as to the fact upon which it is based. The deed from McCray and wife to Joseph S. Higbeo and others is, upon the face of it, a trust deed. It is true it does not state specifically the terms of the trust which the bill seeks to establish — that the property was to be held by Presbyterians, and for the benefit of visitors at Cape May. But the deed describes the property as a house of worship. It is described as “ the new Presbyterian Church on Cape Island.” Tt is conveyed to persons bolding the Presbyterian faith — to the “ trustees of the Presbyterian Church at Cold Spring, in the Lower township of Cape May, and state of New Jersey,” and their successors in office. But the evidence of the trust does not rest here. The bill expressly declares that the trust will appear by the minutes and proceedings of tlie meeting of the individuals who originated the enterprise, and by the books and subscription papers which are in the possession of the complainants, and which they tender themselves ready to produce. I think the hill is of a character to call for an answer from the defendants.  