
    The Rector and Wardens of King’s Chapel versus William Pelham.
    
      \ devise for life, with remainder in fee to the minister and wardens of an Episcopal church in trust, &c. Before the determination of the estate for life, the church had changed its discipline and form of worship. It was hoi den that, the remainder being a vested one, a stranger in possession could not question the title of the minister and wardens de facto; it belonging only to the heirs of the devisor to avail themselves of a forfeiture, if one had been incurred.
    
      This was an action of formedon in remainder, in which James Freeman as rector, and Ebenezer Oliver and Joseph May as wardens, of King’s Chapel, demanded against William Pelham a certain messuage and land in Boston.
    
    The demandants alleged that one William Price, on the 30th of April, 1770, was seised in fee of the demanded premises, and made his last will and testament on that day, and that he continued so seised until and on the 20th of April, 1771, on which day he made a codicil to his said last will and testament, bearing date the last-mentioned day ; — that in and by said last will and testament, and the said codicil, the said William Price devised the demanded premises to his wife, Sarah Price, for life, remainder to Margaret Crease and Sarah Crease, and the survivor of them for life, remainder in fee to the rector and church wardens of King’s Chapel, and their successors respectively in those offices, for certain uses and purposes in said devise expressed and set forth ; that the said William Price died seised of the demanded jjremises, and that, upon his decease, said Sarah P~ice entered into the demanded premises, and died seised thereof, and that the said Margaret Crease and Sarah Crease thereupon entered, and died seised thereof; — that at the time when the said William Price made his last will and testament, *and the codicil thereto, and at the time when the said William Price died, the said King’s Chapel church, mentioned in the said will and codicil, was a Protestant Episcopal church; that the rector and church wardens thereof were the rector and church wardens of such a church ; that the plaintiffs are their successors, that is to say, the said Freeman is the successor of the said rector, and the said Oliver and May are the successors of the said wardens; that the minister, &c., of said King’s Chapel church have accepted of the demanded premises ; that such acceptance has been certified to the minister and wardens of Trinity church in the manner directed in and by said Price’s last will; and that the demandants, as such successors, ought to be in possession of the premises, but that the said Pelham had unjustly entered into the same, and keeps them out thereof, &c.
    The tenant pleaded three several pleas.
    1st. That the said William Price did not give the messuage and land aforesaid, as the demandants had in their writ and declaration alleged ; on which plea, issue was joined to the country.
    2d. That the said demandants are not the successors of the said rector and church wardens of King’s Chapel church, mentioned in said Price’s will and codicil, as the demandants have alleged. On this plea, issue was also joined to the country.
    
      3d. That the said church or religious society in the writ and declaration mentioned, and whereof the said James Freeman is therein said to be the rector, and the said Oliver and May are therein said to be the church wardens, is not, and at the time of the commencement of this action was not, an Episcopal church.
    To this plea the demandants replied, that the church or religious society, in the writ and declaration mentioned, was and is the same church which, in the will of the said William Price, is called King’s Chapel church; and that said James Freeman was and is rector thereof, and successor *of the rector of King’s Chapel church mentioned in said, will and codicil; and that said Oliver and May were and are church wardens of the church in said writ and declaration mentioned, and successors of the wardens of King’s Chapel church in said Price’s will mentioned.
    To this replication the tenant demurred, and assigned for causes of demurrer,—
    1. That the replication neither traverses nor confesses, and attempts to avoid the facts set forth and alleged in the said third plea.
    2. That the said replication is argumentative ; inasmuch as the demandants, instead of averring that the said church was, at the time of the commencement of this action, or at the present time, an Episcopal church, do aver that it was at that time, and now is, the same church,'which is mentioned in the said last will ; thereby endeavoring to deny, by way of argument and inference, the fact alleged and set forth in the said third plea.
    3. That the said replication is double ; inasmuch as the demand-ants therein allege and set forth, first, that the said church, mentioned in the declaration, is the same church which is mentioned in the said will; —and, secondly, that the said Freeman is the rector thereof, and the successor of the said rector in the said will mentioned ; and that the said Oliver and May are the church wardens thereof, and the successors of the said church wardens in the said will mentioned ; whereas, if the matters in the said replication contained are material and proper in answer to the said third plea, either of the said averments would have been alone a sufficient answer thereto.
    And the demandants joined in demurrer.
    The issues in fact, arising on the two first pleas, were tried before the Chief Justice at the last November term in this county ; when the demandants produced an attested copy of the will and codicil of the said William Price, containing the devise as alleged and set forth by them in their * declaration. They also proved the said Price’s seisin of the demanded premises, his decease, and the entry, seisin, and decease, of the said Sarah Price, and of the said Sarah Crease and Margaret Crease, as alleged in the declaration. .
    The demandants then proved that, at the time of the death of William Price, and of the making of said will and codicil, and at the time of the probate thereof, there was a Protestant Episcopal church in Boston, called King’s Chapel, whereof the Rev. Dr. Henry Caner was then the rector; that there were church wardens and vestrymen, and proprietors of pews, of said King’s Chapel; that the rector of said church was ordained by a bishop in England; and that the liturgy used at said church was the liturgy of the established church in England,.
    
    The demandants further proved that the said Henry Caner departed from Boston at the commencement of the American revolution, and never returned to Boston; that the present rector, the Rev. .Tames Freeman, was ordained as rector of said Kang’s Chapel, on the 18th day of November, 1787, by the church wardens and proprietors and vestrymen of said King’s Chapel, the bishop at New York, on application to him, having declined to ordain him ; that at the time of said Freeman’s ordination, all those persons who were proprietors of pews at the time of said Caner’s departure, had gone to England or elsewhere, as adherents to the British government, excepting, twenty-six persons, of whom sixteen were present at, con • seated to, and assisted in, the ordination of the said Freeman.
    
    The, demandants also proved that Ebenezer Oliver and Joseph May, the demandants, were at the time of the commencement of this action, and had continued to the time of the trial, to be the church wardens of the said King’s Chapel; and that the public worship oí God had been kept up in said church by the members and proprietors thereof, who were such before the American revolution, and continued so to be to the time of said Freeman’s ordination, * and by the members and proprietors of said church, who had become such since the said revolution, and continued so to the present time.
    The demandants also proved the acceptance of said donation ; and that the same was certified to the rector, &c., of Trinity church, in manner required by said will and codicil. '
    The records of King’s Chape] church, and the liturgy used therein while the said Caner was rector, and the liturgy therein used after-wards, and at the time of the commencement of this action, and at the time of trial, were read in evidence to the jury, and were made part of the case.
    
    
      Upon this evidence, the Chief Justice instructed the jury that the evidence was sufficient in law to maintain the first issue on the part of the demandants. And as to the second issue, he instructed the jury, that from the evidence. it sufficiently appeared that the demandants were, in fact, successors respectively to the rector and church wardens existing at the death of the devisor; and that a stranger to the estate, not claiming under the devisor, could not question the title of the demandants as lawfully successors ; but that an objection of this nature must come from some person making title under the devisor.
    A verdict was thereupon taken for thé demandants, subject to the opinion of the Court on this direction of the judge ; and if the Court should be of opinion that the said direction was erroneous in law, then the verdict was to be set aside, and a new trial to be granted ; otherwise the verdict was to stand and judgment bo rendered thereon.
    The cause was argued upon the demurrer, and also upon the motion for a new trial by Dams, Solicitor-General, * and Otis for the demandants, and by Dexter and Jackson for the tenant.
    
      For the tenant,
    
    it was contended that the corporation, to whom the devise in the case was made, was dissolved. It had ceased to be an Episcopal church, and had become absolutely Congregational or Independent. Their retaining the name of rector and gardens for their officers did not make the proprietors an Episcopal church. The Anabaptists might, in perfect consistency wfith their principles, denominate their teacher and his deacons the rector and wardens of their church. But it will not be contended that they thus became Episcopalians, to whose existence the three orders of bishops, presbyters, and deacons, are essential. If the corporation is not extinct, the demandants are not the corporation. There may be proprietors of this church, who may hereafter unite, place themselves under Episcopal authority, and procure an Episcopal clergyman to be their minister, and, being thus qualified, would be able to claim the benefit of this devise. And the tenant, although a stranger, may avail himself of these points. He does not claim for condition broken ; but he says that the remainder in this case was contingent, depending on a precedent condition, and never vested in the demandants. It is enough for him to disprove their title, or to show it defective. He has no occasion to show any title in himself, until the demandants make out one in themselves.  Whether the remainder vested or not is immaterial, if the demandants are not the corporation to whom it was limited: how the tenant became possessed is no question in the action.
    The demandants, in fact, admit that they are not an Episcopal church by their replication to the tenant’s third plea. That plea avers that they are not such a church. The replication neither traverses nor confesses and avoids that averment. They evade it, and deny it only by way of argument.
    
      For the demandants,
    
    it was insisted that the remainder, in this case, was a vested one in the .rector and wardens of * King’s Chapel church. If the acceptance of the devise was a precedent condition, that condition was performed long before the death of the tenant for life.
    It is a principle of law that an alteration in the name, government, or component parts of a corporation, does not work its dissolution, or deprive it of any rights or authorities vested in it before such alteration. This is the same church to which the devise was made. And although it has made some alterations in its discipline and forms of worship, yet it has still a rector and wardens, which are all that the statute  makes necessary for the purpose of receiving bequests and devises. It may be added that no such church exists in the United States, in every particular like the King’s Chapel at the time Mr. Price made his will. To such a church a minister was necessary, who should have sworn allegiance to the king of Great Britain, and promised subjection and obedience to a bishop of that country. Such a qualification is inconsistent with our present constitutions of government.
    In short, the demandants are, de facto at least, the rector and wardens they assume to be; and, as such, they have right to the demanded premises, until some one, showing a better title to them, shall claim them. It is not for the present tenant, a stranger and a mere intruder, to question their right to the offices which the demandants show themselves, in fact, possessed of.
    
      
       It seemed to be understood at the argument of this cause, that the liturgy used by Dr Freeman and his adherents differed from that used in the Episcopal churches principally in this, that in the former the passages supposed to recognize the doctrine of the Trinity had been expunged.
    
    
      
       8 Co. 170. Buckmeres case.
      
    
    
      
       1785, c. 51
      
    
   By the Court.

This was a vested remainder in the minister and wardens of the King’s Chapel church, in trust for certain uses specified in Mr. Price’s will, with a contingent remainder over to the minister and wardens of Trinity church; and it was a remainder vested in a corporation capable of taking.

The proprietors of the pews in churches constitute the parishes in Boston, and several other of our seaport towns. Parishes have secured to them, by the declaration of rights, the election and appointment of their ministers or public instructors. Mr. Freeman is the minister de facto of this * society, elected by the only authority capable of it. The other demandants are also de facto the wardens. They havq then a right to the demanded premises, as against the present tenant, a stranger, showing no title. If, by any alteration in their doctrines, worship, or discipline, this parish has incurred a forfeiture of the demanded premises, it is for the heirs of the devisor to avail themselves of it. The record shows it to be the same church to whose officers the devise was made, and the demandants are entitled to judgment on the verdict; and, upon the demurrer, their replication is adjudged good, 
      
      
         [This case is not well reported. By the will, it appears that the remainder in fee was devised to the rector and wardens of the King’s Chapel, and their successors in office, for certain uses, provided they should signify their acceptance thereof in writing, in the manner therein set forth; and, in case of non-acceptance by said rector and wardens, (and there was no proof that they had so accepted.) to the rector and wardens of Trinity church, to the like uses. It is quite clear, therefore, that there was no vested remainder, in this case, in the said rector and wardens of the King’s Chapel. See the record of the proceedings in the case of The Rector and Wardens of Trinity Church vs. Stodder & Al., S. J. Courts Suffolk, 1828. — Ed.]
     