
    Mannix, Assignee v. Purcell et al.
    
      Archbishop of Roman Catholic Church — His title to church properly — Trusts for charitable uses — Parol evidence of— Church canons as evidence — Such trusts cognizable by courts — Each piece of church property held upon separate trust — ■ Individual assignment of archbishop to pay debts — IP7iai passes — ’Unincorporated beneficiaries of church property — What standing in court — Effect of changes in membership — Identity of congregation, etc. — Nature of, interest of in church property — Advances by trustee to improve trust property — Claim for passes to assignee — Power of trustee to charge trust property for its preservation — Cross-petition in error — When to be filed.
    
    1. It is competent to prove by parol evidence that land conveyed to a grantee by a deed absolute on its face, is in fact held by him in trust for charitable uses, but such evidence should be clear, convincing and conclusive.
    2. Where such grantee is in fact archbishop of the Roman Catholic Church for his diocese, its canons and decrees, regulating the mode of acquiring and holding church property, are competent evidence to show that the property so held by him. is held in trust for purposes of public religious worship and other charitable uses.
    3. Such a trust is one of which the courts will take cognizance and assume control for the purpose of preventing its abuse, .perversion, or destruction.
    
      4. Where such property, is held by the archbishop in trust to he devoted to the uses of public religious worship, cemeteries, orphan asylums and schools, each church, cemetery, asylum and school is held upon a separate trust and for its own separate uses, and one piece of property so held is not chargeable with any part of the expense of improving another, nor of improving church property generally in the diocese.
    5. Property held upon such trusts by the archbishop does not.pass to his assignee in insolvency by a deed of assignment made in his individual capacity for the payment of his individual debts. Such an assignment passes to the assignee no better or different title to the assigned property than the assignor held, and cestuis qui truslenl may assert, as against the assignee and the creditors of the assignor, the same rights that they could against the latter if no assignment had been made.
    6. Though the several congregations of the churches so held in trust, and the persons respectively possessing and having charge of such schools, cemeteries and asylums, are severally unincorporated and otherwise incapable of holding the legal title to the property so used, they nevertheless have such an interest in the trust property as permits them to be represented in court by a number less than the whole, having a common interest with them, for the purpose of protecting the property from seizure and sale for the satisfaction of the private debts of the trustee.
    7. Changes in the membership of such congregations and bodies do not affect their legal identity: and for the purposes of continuing and enjoying the uses to which the properties respectively possessed by them are devoted they respectively remain, in legal contemplation, the same congregations and bodies.
    8. It is not essential to the existence or enjoyment of a trust for charitable uses that the individual beneficiaries are able to show that they contributed to, or have a persona], pecuniary interest in, the trust property; their interest is measured by, and limited to, the uses for which the property is held.
    9. Where such trustee has made advances from his own private means, otherwise than as donations, to assist in buying or improving the trust property, he has a claim upon the particular property so purchased or improved which passes to his assignee in insolvency as individual assets; and in a proceeding by the assignee to subject the assets of his assignor to the payment of his debts, it is competent for the court to order an accounting of the advances so made, with a view to subjecting such property to the satisfaction of such claim.
    10. Such a trustee has power, by contract, to charge the trust property with the reasonable expense of its necessary preservation, improvement and repair, in favor of one who expends money, labor or materials for that purpose.
    11. A defendant in error against whom, as cross-petitioner in the trial court, a judgment had been rendered which is in favor of all the other parties to the suit, and to which no error is assigned by another party; is required to file his cross-petition in error within two years after the rendition of such judgment, in order to obtain its reversal.
    (Decided December 21, 1888.)
    Error to the District Court of Hamilton County.
    This cause comes to this court by a proceeding in error to reverse the judgment of the district court upon, the following findings of fact and conclusions of law:
    I. That in the year 1833, the defendant, John B. Purcell, was appointed bishop of the Roman Catholic diocese, which includes the city of Cincinnati, in this state; that afterwards, in the year 1855, he was appointed the archbishop of said diocese, and continued as such bishop or ai-chbishop from the time of his first appointment as aforesaid until after his assignment, made in March, 1879. That his brother, Edward Purcell, came to Cincinnati in the year 1837, to be one of the Roman Catholic priests of this diocese, and was appointed as one of the priests for the congregation worshiping at the Cathedral, and was also appointed by the said archbishop as vicar-general of the diocese, and has had the general management and control of the financial matters of the said archbishop.-
    That, with the knowledge and acquiescence of the said archbishop, the said Edward Purcell, as soon as he came into the diocese, began to receive money on deposit, paying interest thereon and loaning it out upon interest, and continued to receive money in said business until his indebtedness, arising out of said business, became too great to pay, and he made the-assignment to the plaintiff. That he assumed to have authority to do this from the said John B. Purcell, who recognized such authority, and has assumed his entire indebtedness thus created by the said Edward Purcell as his own, and for which he has acknowledged that he is liable.
    
      II. That at the time the said John B. Purcell was appointed bishop as aforesaid, and from that time and for all the timé, till he made the assignment hereinbefore named, the canons, rules and regulations governing the Roman Catholic Church of this diocese, and all its members, required that all property, land and buildings, acquired and used for ecclesiastical purposes and parochial residences, including school-houses and seminaries of learning, asylums and cemeteries, should be conveyed to the bishop or archbishop of the said diocese, by name, and his heirs and assigns forever, to be held by him in trust, for the uses and purposes for which-it was acquired; and since he has been such bishop and archhishop as aforesaid, numerous churches and other institutions have been acquired in this diocese for ecclesiastical purposes, according to the form and discipline of the Roman Catholic Church, including the churches, school-houses, parochial residences, asylums,seminary and cemeteries named in the petition in this case, and the same when acquired were conveyed by deed to the said John B. Purcell, his heirs and assigns, by reason of the said rules of the said church requiring it.
    III. That the said John B. Purcell, being unable to pay his debts, on the 4th of March, 1879, conveyed certain specific real estate, including some of the lots named in the petition in this case, to his brother, Edward Purcell, to enable him to pay the debts incurred by him on account of the said John B. Purcell; and oil the same day the said Edward Purcell did convey the same and all his own property to the plaintiff, in trust, for the payment of said debts; and on the 11th of March, 1879, the said John B. Purcell also made an assignment to the plaintiff, in trust, for the payment of his debts, of all his property which could by law or in equity be subjected to the payment ®f his debts; but said assignment did not include, nor was it intended to include any property held by the said John B. Purcell, in trust, for others; and said instrument of assignment also recited that all the debts contracted by his brother were contracted on his account, for which he was morally and legally bound, and that all the debts were intended to be covered by this assignment without discrimination. That said last named deed of assignment did not enumerate any specific property, but at the time it was made the said John B. Purcell held the legal title, by conveyances to him, his heirs and assigns, of the lots of land with the churches and other institutions thereon, which are named in the petition, and at the same time was the owner of property, which had been devised or deeded to him unaffected by any' trust, and could be in law and equity subjected to the payment of his debts.
    IY. That all the churches, institutions, and other properties named in the petition are situated in the Roman Catholic diocese of Cincinnati.
    Y. That the canons, rules and regulations existing for the government of the Roman Catholic Church and all its members in said diocese, and in force therein during the time when the said churches, institutions and other property were acquired, required that all churches acquired by the gifts, donations and contributions of the members of the several congregations worshiping therein and others ; and all asjdums, seminaries, cemeteries and other property acquired and used for ecclesiastical and charitable purposes, acquired by the gifts, ■devises and contributions of the friends of said institutions and others charitably disposed, to be deeded to the said John B. Purcell, the bishop of the diocese, his heirs and assigns, and that the said churches and other institutions above named were thus deeded to the said John B. Purcell, his heirs and assigns, by reason of’ said rules and regulations, and for no other reason, and that the said John B. Purcell held the same in trust for the uses-and purposes for which they were acquired.
    YI. That the several churches, known as the Holy Trinity Church, St. Mary’s Church, St. Anthony’s Church, St. John’s Church, St. Philomena’s Church, the Chimch of the Atonement, St. Michael’s Church, and the land on which they are situated, named in the petition, were severally bought, built and paid for by the gifts and contributions of the members of the several congregations worshiping therein, respectively, and others, for the purpose of a church, where public worship might be held according to the forms; doctrine and discipline of the Roman Catholic Church; that they were severally conveyed to the said John B. Purcell, his heirs and assigns, because the rules and regulations of the said church required them to be .so conveyed; that neither the said John B. Purcell, nor his brother, Edward Purcell, contributed any money or other pecuniary aid towards them which has not been repaid; that as to the said churches, known as the St. Mary’s and the St. John’s, the said John B. Purcell, as archbishop, befoi’e the assignment to the plaintiff, by instruments in writing duly executed, executed declarations of trust, reciting that he held said churches in trust for the several congregations who occupied them.
    "VII. That the said church, known as the St. Patrick’s 'Church, on the corner of Third and Mill streets, in Cincinnati, and St. Patrick’s Church, in Cumminsville, were bought, built and paid for, except as hereinafter named, by the gifts •of the members of said congregations worshiping therein, and •others, for the purpose of a church where public worship might be held according to the forms, doctrine and discipline of the Roman Catholic Church; but the same were conveyed to the said John B. Purcell, his heirs and assigns, because the rules :and regulations of the said church required them to be so conveyed. That either the said John B. Purcell or his brother Edward Purcell advanced, by way of loan, money to aid in the purchase or building of each of said churches; and the court find that the money advanced to aid the building of St. Patrick’s Church, in Cumminsville, has not been repaid, but are unable to state the amount due; and as to the money advanced in the purchase of the St. Patrick’s Church in Cincinnati, the court was unable to state whether it has been repaid or not.
    VIII. That the cathedral and parsonage attached were bought and built by the said John B. Purcell, bishop of said diocese, for the purpose of a cathedral for said diocese and for the use of a congregation worshiping therein; but he took the •title to said property in his own name, because the rules and regulations of the Roman Catholic Church for said diocese so required; that at the time of such purchase he intended, and so declared his intent, that it was for a cathedral for the whole 'diocese; that at the time he bought he solicited and received large sums of money, given him for the purpose of building-said cathedral; that he caused it to be consecrated as such in 1845, and to be used as a. place for public worship for a congregation worshiping therein according to the forms, doctrine and discipline of the Roman Catholic Church, and the court find that he held the same in trust for the uses and purposes for which it was acquired; but that in purchasing and building-the said cathedral the said John B. Purcell, or his brother, advanced large sums of money, which have not been entirely repaid, but the court is unable to state the amount now due on account of such advances.
    The several congregations occupying the said churches, were composed of men, women and children of the Roman Catholic faith, worshiping therein and there receiving the sacraments.
    They were not incorporated nor organized under any statute of the state, nor unincorporated associations where the members incurred any personal liability. They were not separated by territorial limits, though catholics were usually expected to attend the church nearest their residence, but could change from one church to another by a change of residence, and for other reasons, or even caprice. Taking a pew and paying the pew rates by a Roman Catholic would constitute such a person a member of the congregation. Leaving the church and going elsewhere he would cease to be a member.
    The churches were open to all for public worship, the poor as well as the rich having a right to attend free of cost.
    There were trustees chosen annually for some of said churches, and men over twenty-one years of age, and renting pews, could vote in the choice of trustees.
    The pastor of the congregation was appointed by the bishop and removable at his pleasure; but his salary was paid by the' congregation, and the pastor for the time being, with his congregation, had the actual possession of the church.
    IX. That the said Cathedral School, on the corner of Elizabeth and Mound streets, in Cincinnati, and included in the petition, was bought and built by the said Edward Purcell, for the purpose of a public school, to be kept in conneetion with the cathedral; that the title was taken in the name of the said John B. Purcell, archbishop as aforesaid, his heirs and assigns, because the rules and regulations of the Roman Catholic Church in this diocese so required.
    That said purchase was intended for a school-house, and a large proportion of the money for buying and building the same was given by the members of the cathedral congregation and others, for the purpose of a cathedral school, to be open to the public; that the said John B. Purcell received the conveyance of the said land, knowing that it was intended that he should hold it in trust for said school; that the said Edward Purcell made advances toward said school-house which have not been repaid, but the amount which is now due thereon the ■court are unable to state.
    X. The court do further find, that one Jacob Hoffner, in the year 1852, being the owner thereof, conveyed to the said John B. Purcell, his heirs and assigns, eleven and sixty-seven one-hundredths acres of land in Cumminsville, for the purpose of an orphan asylum. That the consideration named in the deed was $8,220, but the estimated value of said land was very much greater, but it was sold at the reduced price because it was understood to be used and was expressly conveyed for an orphan asylum. That said Hoffner, also, in consideration of the objects for which it was conveyed, remitted one-half of the $8,220 named in the deed as the consideration of the said conveyance. The court do also find, that under the direction of Edward Purcell, and with gifts, legacies and contributions, furnished him for that purpose by the friends of the said asylum, it was built and improvements made under the care and management and at the expense of the sisters in charge, and a large number of orphans received, taken out and supported therein, under the care of a sisterhood of the Roman Catholic Church, who have constantly occupied it and had the management and control of said asylum and said orphans, for an orphan asylum; that the said John B. Purcell received the said deed from the said Hoffner with the distinct understanding that the land therein ^conveyed would be held by him for an orphan asylum; and did in fact hold it in trust for an orphan asylum ; that the said Edward Purcell was treasurer of' the said asylum, and received and held the monies, and also made advances towards it, from time to time, but whether he has been repaid all he advanced, the court is unable to say.
    XI. We find, as to the claim of the cross-petitioner Benedetto Gatto, and Louis Nardini, his trustee, that they hold a mortgage, dated December 24th, 1878, given by John B. Purcell to his brother, Edward Purcell, on the orphan asylum property heretofore mentioned; that the same was given to secure the note of John B. Purcell for $17,005, dated December 14th, 1878, payable to the order of Edward Purcell three years after date, and endorsed by Edward Purcell to Benedetto Gatto. The consideration of said note consisted in part of money deposited with Edward Purcell in 1875, and the remainder, of loans made in June 1878, evidenced by notes, which were surrendered and the note given for the full amount.
    At the time said mortgage was given, and for all the intervening time since 1854, ¡he said orphan asylum had been in the actual and notorious possession and‘occup>ancy of the sisters of charity, who there maintained several hundred children and administered said charity, which was well known to the said Gatto and Nardini; also, that the said Gatto and Nardini were members of the Roman Catholic Church.
    XII. The court finds, as to St. Mary’s Seminary, that one Patrick Considine, in the year 1848, then being the owner, gave a tract of land in the western part of Cincinnati for the purpose of a seminary to educate young men for the priesthood, and conveyed it by deed to the said John B. Purcell, his heirs and assigns; that J. and J. Slevin, at their own expense, erected the main building for said seminary and presented it to the said archbishop and his successors in said office; that the said John B. Purcell received the said conveyance of said land and building and held them in trust for the purposes and uses for which they were given; that subsequently large additions were made to said seminary, at great expense, part of which were paid from the current receipts; that it received many gifts, donations and legacies towards such improvements; that Edward Purcell controlled the erection of said building, and received tbe gifts contributed for that purpose; that he also made advances, the amount of which, and whether he has been repaid what he has advanced, the court are unable to state.
    XIII. As to St. Joseph’s Cemetery, the court finds that in 1842 one Wm. Terry and wife conveyed nineteen and twenty-two one-hundredths acres of land to Edward Purcell, who deeded one-half thereof for a German Catholic cemetery, and the other half, nine and sixty-one one-hundredths acres, he retained for a cemetery for the Roman Catholics of this diocese, called the “Old St. Joseph’s.;” that it was consecrated for a Roman Catholic cemetery, used as a burial place by Roman Catholics in this diocese, and is now nearly filled up with graves. That in 1853 the said John B. Purcell purchased a tract of sixty-one and thirty-one one-hundredths acres, about two miles distant, known as the “New St. Joseph’s,” taking the deed to himself, his heirs and assigns; that he caused a part of the same to be platted, laid put into burial lots, announced in the cathedral that he had purchased this as a cemetery for the use of catholics of this diocese, and invited them to purchase burial lots therein; and in 1854 caused a greater part thereof to be consecrated as a cemetery, and from that time persons of that faith began to purchase lots and burial permits therein; that a road ran through the tract, cutting off eight or ten acres from the residue, which had never been consecrated; that Edward Purcell, from the time of the purchase in 1853 till the assignment, had the general superintendence, employed the engineer to lay it out into lots of various sizes, appointed the sexton, fixed the price of lots, and sold the same to purchasers — sometimes at so much per lot, or so much per half lot, sometimes at so much per square foot, and sometimes in single graves — the quantity taken as a burial lot when sold by the square foot being at the option of the purchaser. He also issued certificates of ownership to the several purchasers of lots. The first kind was for a single grave, and signed by the sexton; the next kind was a certificate for a lot, or half lot, in a certain range, containing so many square feet, and signed by the superintendent. A third was in this form, viz.:
    
      
      Certificate of Ownership. — The Most Rev. J. B. Purcell, Archbishop of Cincinnati, hereby certifies that N. B., in considération of-dollars, is the owner of a lot in St. Joseph’s New Cemetery.
    (Signed) Edward Purcell,
    and countersigned by the sexton, as secretary; and the last form adopted was issued in the name of “ the .directors of the cemetery,” and certified that “ the purchaser, his heirs and assigns, are entitled to the use of said lot, in fee-simple, for the purpose of sepulture alone, subject, however, to the rules and regulations of the Roman Catholic Church regarding interments in consecrated ground ” ; that there were no directors, and the money received from the'sale of lots and burial permits ever since 1842, as to the “ Old St. Joseph’s,” and 1854 as to the “New St. Joseph’s,” was paid to him, except what was reserved to defray the expenses about the ground, and has been used by him as his own, for any purpose he saw fit. Of the portion of the “Now St. Joseph’s” that was consecrated, a narrow strip was designedly left unconsecrated and reserved for those who were not entitled to a catholic burial. A permit from some priest in the diocese was required in all cases for burial, and for those who could not afford to pay for the right of burial no charge was made. In June, 1874, Archbishop Purcell, in the petition, signed and sworn to by him in an action brought in the Hamilton County Court of Common Pleas, to enjoin the township trustees from laying out a road through the tract, alleged that he is the archbishop of the Roman Catholic Church in and for the diocese of Cificinnati, O. That as the archbishop of said diocese, under the laws governing the said Roman Catholic Church, all the property ofj the said church within said diocese, except such as vests in certain incorporated societies, is held by him in his own name, in trust for the sole use and benefit of the said church; that as such archbishop he holds the legal title of the following ■described real estate:
    Here follows a description, by metes and bounds, of the “New St. Joseph’s” Cemetery; and the deed of John Terry and wife to J. B. Purcell, dated November 22, 1853, is referred to for a more particular description. Then follows the further declaration that said premises were purchased and have been used solely for the purposes of a cemetery.
    XIV. The property known as the Catharine Street Cemetery, was purchased by Edward Dominick Fenwick, the Roman Catholic bishop of the diocese of Cincinnati, and the immediate predecessor in the said office of bishop of John B. Purcell, for a cemetery. The said Fenwick died in the year 1832, leaving a will duly executed and dated July 3, 1830, which was duly probated. By said will, said Fenwick devised and bequeathed said Catharine Street Cemetery, together with other property, to trustees in trust; that the trustees aforesaid shall, as soon as a Roman Catholic bishop for the diocese of Cincinnati shall have been canonically appointed and consecrated, convey to him said Catharine Street Cemetery property. John B. Purcell was the next Roman Catholic bishop canonically appointed and consecrated. Immediately thereafter said trustees did grant, give, sell, convey, release and confirm to the Right Rev. John B. Purcell, Roman Catholic bishop of the diocese of Cincinnati, canonically appointed and consecrated, and the immediate successor in the said office of bishop of the said Edward D. Fenwick, the said Catharine Street Cemetery tract. Habendum, “ To have and to hold the same and every part and parcel thereof to him, the said John B. Purcell, bishop as aforesaid, and his heirs forever, for the uses and purposes of the said church.”
    XV. The “ Old St. Joseph’s ” Cemetery, on the tax duplicate of Hamilton, county, has been exempted from taxation since 1844, as being a graveyard.
    XVI. The whole sixty-acre tract known as the “ New St. Joseph’s” Cemetery was exempted from taxation, as being a burial place, since 1854.
    XVII. In 1859 the larger part, about fifty acres east of the road, was on the tax duplicate for taxation, but has been exempted from taxation since 1862, as being a graveyard.
    
      XVIII. The court also finds that said John B. Purcell assigned the revenues of the “ Old ” and “ New St. Joseph’s ” cemeteries to' certain trustees, in a deed of trust made for the payment of his debts before this assignment, and afterwards canceled.
    XIX. After the assignment of John B. Purcell and Edward Purcell, and prior to September 1st, 1880, the income and revenues of the “Old” and “New St. Joseph’s” cemeteries were paid to John B. Mannix, assignee, and he still holds the same.
    The amount paid Mr. Mannix by Eugene Sullivan, sexton, during said time, was $9,631 39-100.
    The amount collected by said Mannix himself during that time was-dollars, at least $2,000.
    XX. The St. Joseph’s Cemetery Association was not organized or incorporated until August, 1880, after the assignment.
    XXI. And, in addition, the court further finds the following facts, which were agreed to be true by the assignee and his counsel on the one side, and the St. Joseph’s Cemetery and its counsel on the other side: That there was sufficient money realized from the sales of burial lots and graves in the Catharine street burying-ground, prior to the purchase, of the “Old St. Joseph’s ” Cemetery, to pay the original purchase-price of both the said Catharine street burying-ground and the “ Old St. Joseph’s” Cemetery, over and above all other outlays made on account of said Catharine street burying-ground.
    XXII. That subsequent to the purchase of the “ Old St. Joseph’s” Cemetery and prior to the purchase of the “New [present] St. Joseph’s” Cemetery a sufficient sum had been realized from the sale of lots and graves in the “ Old St. Joseph’s” Cemetery to pay the original cost of the “Old St. Joseph’s ” Cemetery and all improvements thereon, and left a surplus much more than sufficient to pay for the “ New St. Joseph’s” Cemetery, which surplus sums were paid to Edward Purcell, as representative of John B. Purcell.
    XXIII. That in the year 1835, and prior thereto, it was common for farmers and others throughout the state to have private or family burying-grounds on their premises, many of which did not exceed fifty dollars in value.
    XXIY. The title to the property described in the answer and cross-petition of the St. Joseph’s Cemetery Association, known as the “New St. Joseph’s” Cemetery, was conveyed to John B. Purcell, archbishop of Cincinnati, and the part known as the “Old St. Joseph’s” Cemetery to Edward Purcell, in fee-simple, and many years before the deeds of assignment executed by them to John B. Mannix, respectively, and so remained until and at the time of the said assignments subject to conveyances of lots for interment purpose, as hereinafter stated.
    XXY. At the date of said assignment said John B. Purcell was, and ever since has remained justly indebted to divers persons in divers sums, amounting in all to more than three and one-half million dollars, of which there have been presented and proper proof has been made to the assignee to the extent of more than two and one-half million dollars.
    XXYI. m By the rules of the Roman Catholic Church only catholics dying in the communion of the church are permitted to be buried in consecrated ground.
    XXYII. The petition in case No. 43,887, Hamilton County Common Pleas Court, shall be taken to be the same in all respects as the copy here produced, and was sworn to by John B. Purcell, as appears in said copy.
    XXYIII. The portion of the “New St. Joseph’s” Cemetery west of the road mentioned in the petition of John B. Purcell in 43,887, and sought to be by said petition enjoined from being made a public road, has never been consecrated as a cemetery, and no interments have been made therein, but it has been used and cultivated by the sexton as a part of his compensation as sexton.
    XXIX. At date of assignment not over one-third of the “New St. Joseph’s” Cemetery, but nearly all of the “ Old St. Joseph’s” Cemetery, had been actually used or occupied for burial purposes, and burial rights in writing had been granted by deed and otherwise to divers lot-holders to the extent aforesaid.
    
      XXX. The mortgage elated Jannuary 20,1879, from John B. Purcell to P. A. Quinn and others, in trust, recorded same day in book 420, page 223, Hamilton county records, was executed, as appears on its face, and may be offered in evidence subject to proper exceptions.
    XXXI. Previous to the purchase of the “ Old St. Joseph’s” Cemetery, John B. Purcell announced that he would have to purchase other grounds for a cemetery, on account of being obliged to give up the Catharine Street Cemetery. Soon after the purchase of the “ OldSt. Joseph’s” Cemetery, in 1842, he announced that he had purchased the same and set it apart as the cemetery of the Roman Catholics of his diocese. Thereupon members of the Roman Catholic Church commenced the purchase of lots and graves therein, the whole of which had been previously consecrated.
    XXXII. The court find that on the 26th day of November, 1878, Edward Purcell, as the agent of said John B. Purcell, made, executed and delivered to Henry Bokop, for $5,965 loaned, the note as follows, to-wit :
    No. 1.
    Cincinnati, November 26th, 1878.
    The archbishop of Cincinnati promises to pay, one year after date, to the order of Henry Bokop, five thousand nine hundred .and sixty-five dollars, for value received, with six per cent, interest for one year only.
    (Signed) John B. Pubcell.
    $5,965.00.
    Edward Purcell.
    That there was paid on said note fifty dollars on February 6th, 1879, and there have been no other or further payments thereon. That there is due thereon $5,915.00, with interest. That at the date of said note, and for a long period prior thereto, JohnB. Purcell was archbishop of the diocese of Cincinnati, and the said Edward Purcell Was his agent, with full power to do and transact the financial business of John B. Purcell as the archbishop of said diocese.
    XXXIII. That Patrick Brannan, a creditor of the said John B. Purcell, before the commencement of this proceeding, filed in the Common Pleas Court of Hamilton County a bill in behalf of himself and such creditors as might join under section 6345 of the Revised Statutes, to set aside the deed hereinbefore referred to, made March 4th, 1879, by John B. Purcell, to the said Edward Purcell, on the ground that it was fraudulent as to creditors. That the said Jefferson National Bank of Steubenville, and the First National Bank of Covington, who had severally discounted the notes of the said John B. Purcell, indorsed by Edward Purcell, and were creditors of the said John B. Purcell, and had Severally recovered judgments against him on said notes, have become parties to the 'said proceedings of the said Patrick Brannan, praying for the same relief, and such proceeding is now pending in the Supreme Court of Ohio.
    XXXIY. That the defendant, John G. Hendricks, another creditor of the said John B. Purcell, has recovered judgment by default against him in the sum of $39,327, composed of sundry items, for paving around the cathedral and putting on a new tin roof, and the greater part for the proceeds of certain U. S. Government bonds deposited with Edward Purcell, and by him sold and the proceeds credited on a pass-book to said Hendricks as so much money on deposit.
    And as conclusions of law the court find, that at the time of the assignment to the plaintiff, the said John B. Purcell, holding the said property named in the foregoing articles of this finding, except the St. Joseph’s Cemeteries, in trust for religious and charitable uses, the same did not pass to the plaintiff by the said instrument of assignment, nor can the said assignee subject it to the payment of the debts referred to and included in the said assignment; but as to the said churches and other properties known as the Church of St. Patrick’s, on the corner of Third and Mill streets; the Church of St. Patrick’s, in Cumminsville; the Cathedral; the Cathedral School ,• the Orphan Asylum and the Mt. St. Mary’s Seminary, the said assignee is entitled to recover whatever sums of money, if any, have been advanced by the said John B. Purcell or Edward Purcell, for buying or building, or to aid in buying or building any of said churches or other properties, or improving, repair-
      mg, insuring, or for taxes or other purposes, and has not been repaid; and unless the said parties can agree as to the amounts, if any, due from the said several churches and other institutions last above named, the said matter be referred to a master to ascertain the amount due the said John B. Purcell, or Edward Purcell, on account of advances to any of said churches or other property; but as to the other churches — the Holy Trinity, St. Anthony’s, St. Michael’s, St. Mary’s, St. John’s, Church of the Atonement, and St. Philomena’s — the petition should be dismissed with costs.
    And as a further conclusion of law, the court find that as to the several claims of Plenry Bokop, Patrick Brannan, the Jefferson National Bank of Steubenville, the First National Bank of Covington, John G. Hendricks, and Louisa Sturoff, the equity of the case is against them and with the defendants, and as to them and each of them, their answer and cross-petition be dismissed.
    And that the said mortgage made by the said John B. Purcell to Edward Purcell, and by him assigned to .the said Louis Nardini in trust, is not a lien upon said orphan asylum.
    The court also finds as a conclusion of law, that so much of the “New St. Joseph’s” Cemetery as has not been sold into burial lots, or otherwise appropriated to the burial of the dead, as is reasonably practicable to be separated from the residue and sold, is subject to sale by the assignee for the payment of debts under the assignment; and unless the parties can agree upon the quantity of ground that may be thus sold, the said master above named shall ascertain the quantity and report to the court, and that the fund on hand received for the sale of said lots of ground in the cemetery for burial purposes since the assignment, and which has not been expended for improvements, belongs to the plaintiff as assignee ; and that the claim and rights of said assignee are not affected by the organization of the St;. Joseph’s Cemetery Association since the assignment.
    And the court having found that as to the claim of Henry Bokop, Patrick Brannan, the Jefferson National Bank of Steubenville, the. First National Bank of Covington, John G. Hendricks, Louisa Sturoff, the equity of the case is with the defendants, the said parties representing the said congregations and other charitable and educational institutions; and as to the defendants herein last named, and each of them, their answers and cross-petitions be dismissed at the cost of each defendant for the costs made by him.
    That as to the 'mortgage of Benedetto Gatto set up in his cross-petition, and in the cross-petition of Louis Nardini, his trustee, the equity of the case is with the defendants, the St. Peter’s and St. Joseph’s Orphan Asylums, and that he is not entitled to recover his said claim or any part thereof in this suit, and that their cross-petitions be dismissed with costs; the costs for which each defendant shall be liable being only the costs incurred by each in maintaining the issue on his part.
    The court does further order, adjudge and decree that if the parties shall not be able to agree upon the amounts, if any, due from the congregation of the St. Patrick’s of Mill street, St. Patrick’s of Cumminsville, the cathedral congregation for the Cathedral and Cathedral School, the St. Peter’s and St. Joseph’s Orphan Asylums, and the Seminary of Mount St. Mary of the West, and the amount of ground unsold in the cemetery of St. Joseph, that the said master proceed to find what, if anything, was due J. B. Purcell from each of the congregations and institutions at the time of the assignment to the plaintiff, and the amount of the ground still unsold; that in so doing all the evidence before the court at the hearing, and such other competent evidence as any of the said congregations or other institutions or any party may offer, be received by him, and that such parts thereof be examined as he is referred to, and that he make his report at as early a time as may be.
    And the court appoints Alexander B. Huston as master to hear and determine the several matters above set forth; and that he find what other indebtedness for borrowed money there was due to other parties from such last named churches and institutions, and any other fact claimed to have a legal bearing upon such indebtedness.
    
      And to each of the conclusions of law above stated, and to the decree, the following parties thereupon severally excepted, namely: John B. Mannix, the plaintiff, the defendants John G. Hendricks, Louisa Sturoff, the First National Bank of Covington, Ky., the Jefferson National Bank of Steubenville, the defendant, the St. Joseph’s Cemetery Association and the defendant Henry Bokop, and likewise the said Benedetto Gatto and Louis Nardini, trustee, except to each of the conclusions of law above stated, and to the decree.
    That as to so much of the decree as finds that there may be anything due from the Cathedral, the Cathedral School, the St. Peter’s and St. Joseph’s Orphan Asylums, the Seminary of Mount St. Mary of the West, the congregation of St. Patrick’s of Mill street, and refers the same to a master to ascertain the same, in each case, the several parties representing said institutions except. And the several parties, having filed motions for a new trial, presented a bill of exceptions, which is signed, sealed and allowed by the court, and ordered to be recorded.
    
      8. A. Miller, Hoadly, Johnson & Colston, Mannix & Cos-grave, Stallo & Kittredge and Wilby & Wald, for the assignee and creditors.
    We contend the whole Catholic Church is concluded by the declarations of Archbishop and Edward Purcell as to the title to the property. That in the face of the deeds and their declarations, no trust can attach to the property to defeat a creditor. We claim-parol evidence is inadmissible to show any trust relating to the property. Eng. Stat. Frauds, sec. 7; Perry on Trusts, sec. 78; Hennessy v. Walsh, 55 N. H. 515; Miller v. Stokeley, 5 Ohio St. 194; Fleming v. Donahoe, 5 Ohio, 255; Stall v. Cincinnati, 16 Ohio St. 174; Mathew v. Leaman, 24 Ohio St. 623.
    We think we may look in vain to find any established division of trusts under which the trust, if one exists in this action, may be classed; for there is no direct or express trust, no implied trust, no resulting trust, no constructive trust. Attorney-General v. Manufacturing Company, 14 Gray, 586; Perry on Trusts, sec. 732; Kain v. Gibbony, 101 U. S. 362; Baptist Association v. Hart, 4 Wheaton, 1; Gallego v. Attorney-General, 3 Leigh, 450; Wheeler v. Smith, 9 Howard, 55; McLaughlin v. College, Western Reporter, vol. ii, 425.
    John B. Purcell contracted the debt officially, as bishop and archbishop, and it is a diocesan debt. He held the title in fee-simple, not only as appears on the face of the deeds, but as. understood by him, and as required by the laws of the church.
    There is no decision in any of the numerous cases involving the title and possession of Catholic Church property found in the reports of the higher courts of any of the states which tends to sustain the claim of defendants. See Chatard v. Donovan, 80 Ind. 20; Stack v. O’Hara, 98 Pa. St. 213; Smith v. Bonhoof, 2 Mich. 115; Hennessy v. Walsh, 55 N. H. 515.
    If one desired to give his property to a bishop for the purpose of serving God, as taught by his religious faith, and believed that he could best accomplish his purpose by making an absolute gift to the bishop, the title so bestowed would not be incumbered with the trust which the donor did not attach to the gift. American Tract Society v. Atwater, 30 Ohio St. 77.
    Ignorance of the law furnishes no ground to set aside the solemn acts of the parties, nor will equity furnish any relief where the facts are equally known to them. Story’s Eg., sec. 113; Perry on Trusts, sec. 184.
    The canon law is not admissible in evidence to show by what tenure real property is held in the state of Ohio. Neither is the Roman Catholic Church a voluntary association for benevolent or charitable purposes.
    The title to real estate in Ohio is held under statutory law. The Roman Catholic Church is not a voluntary association, established for benevolent and charitable purposes, but it is an ecclesiastical institution, and its rules and regulations, or its canon law, are not admissible in evidence in a court of justice, except when an ecclesiastical right is at issue between the-litigants. Voluntary, associations for benevolent and charitable purposes are within the special provisions of the statute, and courts can and will administer the trusts, and hence, their.rules and stipulations become admissible in evidence, and are not unfrequently of controlling importance; but the courts can not administer ecclesiastieism, and, hence, there is no comparison to be made between the Roman Catholic Church and a benevolent or charitable association.
    
      Lincoln, Stephens & Lincoln and Mathews, Ramsey & Mathews, for all the other churches and institutions.
    A trust may be proved by parol. Perry on Trusts, sec. 75; Mathews v. Leaman, 24 Ohio St. 715; Morice v. Bishop of Durham, 9 Ves. 404; Fleming v. Donahoe, 5 Ohio, 256; Osterman v. Baldwin, 6 Wall, 116.
    The property in question was held in trust, as shown by the evidence of Bishop Purcell and other prelates of the church, the statutes of the diocese, and the canons of the church. See Canons, 187, 195, etc.
    The trust was one for each congregation, as shown by the evidence. The congregations are the eestuis que trustent. Pres. Cong. v. Johnston, 1 Watts. & Serg. 46; Martin v. McCord, 5 Watts. 493; Syler v. Eckart, 1 Binn. 378; Witman v. Lex, 17 Serg. & Rawle, 93; Unangst v. Shortz, 5 Wharton, 519; African M. E. Church v. Conover, 27 N. J. Eq. 158; Beatty v. Kurtz, 2 Pet. 578 ; 3 Peters, 500; Strong’s Lectures, 65, 71.
    The pastor is not the agent of the bishop. Rose v. Vertin, 46 Mich. 458; Twigg v. Sheehan, 101 Pa. St. 370; O’Hara v. Stock, 90 Pa. St. 491; Leahey v. Williams, 141 Mass. 356 ; Tuigg v. Tracy, 104 Pa. St. 500.
    John B. Purcell, as archbishop of the diocese, held the churches in trust for the congregations building and worshiping in them. Where the conveyance is to a known religious denomination or congregation, tne trust is certain. Hale v. Everett, 53 N. H. 70; Att’y-Gen. v. Shore, 7 Sim. 309; Miller v. Goble, 2 Denio, 492; Robertson v. Bullions, 9 Barb. 64; Parish of Bellport v. Tooker, 29 Barb. 256; Petty v. Tooker, 21 N. Y. 267 ; Strong’s Lectures, 71.
    Property held in trust does not pass by a general assignment for the benefit of creditors. Perry on Trusts, secs. 334, 335; Ludwig v. Highley, 5 Barr, 139 ; 55 Maine, 580; Strong’s Lectures, 71 to 76; 67 Pa. St. 146; 60 Mo. 590; 41 Pa. St. 16 ; 17 Serg. & Rawle, 91; 69 Pa. St. 467 ; 84 Pa. St. 291; 1 Ohio St. 164; 2 Ohio St. 581.
    The debt was not a debt of the trust. It grew out of the “ banking business ; ” a business wholly foreign to the relations born by the bishop to the church.
    The fact that the property was in the name of John B. Purcell, gives the assignee no peculiar equity. McGovern v. Knox, 21 Ohio St. 547; Ludwig v. Highley, supra.
    
    These were unincorporated public charities. ■ The practice in all such cases is to permit parties connected therewith to .appear and defend the same; Beatty v. Kurtz, 2 Pets. 585 ; Story Eq. Pl., sec. 114-121; Milligan v. Mitchell, 3 My. & Cr. 72-84.
    The court will protect these charities if it can. Many gifts for such charities were made, and the property was purchased and paid for by such gifts. Such charities are always highly favored in law. Zanesville Canal & Mfg. Co. v. Zanesville, 20 Ohio, 488; Sowers v. Cyrenus, 39 Ohio St. 35; Urmey’s Ex. v. Wooden, 1 Ohio St. 163; Jackson v. Phillips, 14 Allen, 550; Odell v. Odell, 10 Allen, 5, 6; Witman v. Lex, 17 Serg. & R. 91; Trustees of McIntyre v. Zanesville C. Co., 9 Ohio, 287 ; Smart v. Bradstock, 7 Beav. 500.
    Title may be conveyed to an unincorporated society by name — in other words, it is not necessary that there should be a donee, known as such to the law. Beatty v. Kurtz, supra.
    
    The particular cestuis que trustent are not known or ascertained. The person or persons appearing to defend the charity, may not be of the class even of beneficiaries named in the gift creating it.
    The statute of limitations does not run against it in equity. College of St. Mary Mag. v. Att’y-Gen., 6 H. L. C. 207.
    The congregations were in possession of their property and in the continued use of it, and the statute would not run as against them and in favor of Archbishop Purcell. Wood on Limitations, p. 414; College of St. Mary Mag. v. Att’y-Gen., 6 H. L. C. 205.
    The doctrine of perpetuities has no application thereto. It. may hold forever. College of St. Mary Mag. v. Att’y-Gen., 6 H. L. C. 207; Odell v. Odell, 10 Allen, 6 ; Jackson v. Phillips, 14 Allen, 550; Perin v. Carey, 25 How. 507 ; Perry on Trusts, sec. 736.
    In private trusts, the donee must be ascertained within the period allowed by the law against perpetuities, or the trust will be void, and a resulting trust will arise in favor of the. heirs; whereas the individual persons to be benefited by a charitable trust, are not ascertained, nor is there any such thing known as a resulting trust to the heir in such cases, or for breach or failure of the trust. Perry on Trusts, sec. 144- • 156 ; Jackson v. Phillips, 14 Allen, 550.
    The law as to accumulations does not apply to charitable trusts. Perry on Trusts, sec. 738; Jackson v. Phillips, 14 Allen, 550.
    Although trustees are especially named in a charitable trust, a majority may act, which is not the case with trustees of a private trust. Perry on Trusts, see. 413.
    And the court may appoint their successors. 1 Perry on Trusts, sec. 287. Attorney-Gen. v. Shore, 1 Mylne & Cr. 400.
    
      I. W. Goss, for St. Michael’s Congregation.
    I. Our first proposition is, that from the finding of facts, equity raises a trust in favor of the congregation, and by the congregation we mean the organized body of that name, and not-the individuals thereof taken separately. Calkins v. Chaney, 92 Ill. 464. For the law as to resulting trusts, see: Storey’s Equity Jurisprudence, sec. 1201, and Perry on Trusts, sec. 124, et seq.; Creed v. Lancaster Bank, 1 Ohio St. 1; Williams v. Van Tuyl, 2 Ohio St. 336; McGovern v. Knox, 21 Ohio St. 551; Dudley v. Bosworth, 10 Humphreys, 12; Gomez v. Tradesman’s Bank, 4 Sandf. 106; Baptist Church v. Yates, 1 Hoffman’s Chy. 142; Church v. Sterling, 16 Conn. 388; Perry on Trusts, sec. 127.
    
      II. It is claimed that this congregation is unincorporated, and is not, therefore, such an entity as can have any standing in law or equity. The objection is disposed of by Williams v. First Presb. Church, 1 Ohio St. 479; Trustees, etc. v. Z., C. & M. Co., 9 Ohio, 287; Phipps v. Jones, 20 Pa. St. 260; Horton v. Baptist Church, 34 Vt. 309; Vestry v. Chantey, 3 McCord. 317; Witman v. Lex, 17 Serg. & Rawle, 88 ; Keller v. Tracy, 11 Iowa, 530; Inglis v. Sailors’ Snug Harbor, 3 Peters, 99 ; Beatty & Richy v. Kurtz, 2 Id. 584; De Voss v. Gray, 22 Ohio St. 159; and Perry on Trusts, sec. 45.
    III. A deed, absolute on its face, may be shown by parol evidence to be in fact a trust, is no longer open to discussion in Ohio. Mathews v. Leaman, 24 Ohio St. 615; Broadrup v. Woodman, 27 Id. 553. The trust may be established by circumstantial evidence. Fleming v. Donahoe, 5 Ohio, 255; Miller v. Stockly, 5 Ohio St. 195.
    The possession of the congregation was such as to charge all persons with notice of their equitable interest, or of that of the church at large. McKenzie v. Perrill, 15 Ohio St. 162.
    
      Thos. A. Logan and Logan & Slattery, for Louis Nardini, trustee.
    Since the hearing of the motion for postponement in this court, upon December 16th, the counsel for the assignees, the plaintiffs in error, has consented that a cross-petition in error shall be filed by Nardini in both cases, and it has been filed accordingly. The omission, if any there was, has thereby been waived, so far as they are concerned. King v. Penn, 43 Ohio St. 57. But I claim that it was not necessary for them to file any cross-petition in error. Those which have been filed by consent, have been filed out of excess of caution. When John B. Mannix began his action below, Gatto and Nardini were properly made parties defendant thereto. They were necessary parties then. “ When an assignee brings suit for the construction of the terms of the assignment, all parties interested in the estate are necessary parties.” Burrill on Assignments, 5th ed. 682. Mannix filed his petition in error in ■.this court within the statutory period, to which again Gatto and Nardini were properly made defendants. Summons in errox' was duly served upoxi them. This court thereby acquired jurisdiction of them, and of the whole case, which, being here properly as to one, is here properly as to all. The precise question has been decided in Buckingham v. The Commercial Bank, 21 Ohio St. 131; Secor v. Winter, 39 Ohio St. 218; Meese v. Keefe, 10 Ohio St. 362; Bradford v. Andrews, 20 Ohio St. 208. If the property assigned by the archbishop to Mannix passed by the deed of assignxnent, then: “ The assignee holds it in trust for the benefit of all the creditors, whether they ax-e specifically before the court or not, and such decree will be made as will protect the rights of all equally.” Stanton v. Keys, 14 Ohio St. 443; Doremus v. O’Hara, 1 Ohio St. 45; Hyde v. Olds, 12 Ohio St. 591; Hallowell v. Bayliss, 10 Ohio St. 536. This court will permit a cross-petition in error to be filed now, if it is deemed necessaiy. Nations v. Johnson, 34 How. N. S. 195.
    [On the other propositions in the case, counsel cited substaixtially the same authorities as counsel for plaintiffs in error.]
    
      Yaple, Moos & McCabe, for St. Mary’s Congi’egation.
    In Ohio, an express trust may be ingrafted upon an absolute deed in fee, by parol. Mathews v. Leaman, 24 Ohio St. 615; Broadrup v. Woodman, 27 Ohio St. 553, 559 ; Harvey v. Gardner, 41 Ohio St. 642, 646, 647.
    This was so at common law, which was only changed by the seventh section of the Statute of Frauds, 41 Ohio St. 647, and cases cited, and 2 ’Whart. Ev. §§ 903, 1031, 1034, .1036; 2 "Washb. Real Prop., pp. 50, 51 (4th ed.); French v. Griswold, 40 Ia. 484; Dark v. Williamson, 25 Bev. Chy. 622.
    To enable any creditors, or the assignee who represents them,- to charge such property as this, or any other congregation, for the debts of the Pui’cells, the very money loaned to them, or either of them, must have gone into such property, and it must be clearly traced and proven to have been so invested. Ferris v. Van Vechten, 71 N. Y. 113.
    So far as property questions are concerned, the law of Ohm governs the case entirely, and the canon law is a nullity, being a foreign law. Nowler v. Coit, 1 Ohio, 519.
    If the congregations are nothing, as the plaintiff’s counsel claim, the deeds in evidence, which are expressed to be in trust for certain congregations, whose property is not sought to be subjected, would simply be deeds declaring trusts in favor of nobody — nothing—therefore void for want of a beneficiary ; and all such property would stand upon the same legal footing as to liability for the debts of the archbishop as that to which no declaration of trust has been made. Such “ congregation ” is as definite as “ poor children in the town of Zanesville.” 17 Ohio St. 352; 9 Ohio, 203 — Mclntire’s Will.
    By nothing that he said or did, did J. B. Purcell bind or create a lien upon any of this real estate to or in favor of any creditor.
    In this case, none of the creditors represented by the assignee, Mr. Mannix, ever dealt with the property held in .the name of J. B. Purcell. They obtained nothing but his personal obligations — his personal liability. No real estate was charged in any way by anything said or done by him or Edward Purcell.
    The dealings and incurring of their debts by the archbishop and Father Edward Purcell in no way bound this congregation or its property rights, or the rights therein of any member of the orthodox Catholic Church in good standing regularly worshiping there, either in law or equity. DeVoss v. Gray, 22 Ohio St. 159.
    The assignee stands, in this case, simply and precisely in the shoes of the assignor, J. B. Purcell, and takes the property subject to all the equitable right of others therein which they could have asserted against the assignor, and which he could not have taken away from them, if he had made no assignment but had personally brought an action against them to sell the property to pay his own debts. Gibson v. Warden, 14 Wal., at p. 248, and cases there cited; 2 Superior Court R., at p. 307; Bump on Bankruptcy, 9th ed., p. 497; Adams v. Collier, 122 U. S. 382, and cases cited; Id., p. 391.
    
      
      Oliver, Murray & Benedict, for the St. Joseph’s Cemeteries.
    John B. Purcell held the lands in controversy upon an express trust for pious and charitable uses. Although the lands .about which the trust is now concerned, which are the lands in controversy, are not- the same lands, still the trust is the .same identical trust. Attorney-General v. South Sea Co., 4 Beav. 458; Alemany v. Weisinger, 40 Cal. 288; Smith, Manual of Eq., sec. 51; Spence’s Equity, vol. 2, p. 204; Wilcocks v. Wilcocks, 2 White & Tudor, L. C. in Eq., 4 Am. Ed. 833.
    An express trust may be attached by parol to a conveyance .absolute on its face. Flemming v. Donohue, 5 Ohio, 154; Miller v. Stokely, 5 Ohio St. 194; Stall v. Cincinnati, 10 Ohio St. 170; Matthews et al. v. Leaman et al., 24 Ohio St. 615, 623; Broadrup et al. v. Woodman et al., 27 Ohio St. 553.
    The trust in this case is a charitable trust. A charity is a gift for an indefinite number of persons, for a proper purpose, and is permanent in duration. Perry on Trusts, sec. 697; Jackson v. Phillips, 14 Allen, 556. The mode of application <of bounty and the selection of particular objects may be left to the trustees. Gerke v. Purcell, 25 Ohio St. 229, 245; Attorney-General v. Pearce, 2 Atk. 87-8; Saltanstall et al. v. Sanders et al., 11 Allen (Mass.) 455-6-7.
    Charities are not confined at the present day to those enumerated by the Statute of Elizabeth. Chancery has inherent jurisdiction independent of that statute. Perry on Trusts, sec. 694; McIntire P. S. v. Zanesville C. & M. Co., 9 Ohio, 287; Urmey’s Executors v. Woodin, 1 Ohio St. 160-4. Public does not mean universal. The beneficiaries may be confined to those of a particular town, age, sex, condition, race or society, religious or secular. Burd’s Orphan Asylum, 90 Pa. St. 35; Indianapolis v. Grand Master, 25 Ind. 519; Saltanstall v. Sanders et al., 11 Allen, 455.
    Compensation exacted does not make a use more or less public; or more or less charitable; this depends upon the ■object and purpose for which the compensation is made. Gerke v. Purcell, 25 Ohio St. 229, 247.
    The trust in this case is not void for uncertainty. Sowers v. Cyrenius, 39 Ohio St. 29.
    
      A gift need not be. called charitable to make it charitable. Perry on Trusts, sec. 396.
    It is not necessary to a charity that any one shall have the legal right to demand admittance to its benefits. McDonald v. Massachusetts General Hospital, 120 Mass. 435.
    Seasonable discretion may be vested in trustees of charities as to internal regulations for the purpose of carrying out the charity and promoting it. When the regulations tend to destroy the trust or divert the fund, such abuse may be corrected by a court of equity. McDonald v. Mass. Gen. Hosp., 120 Mass. 435.
    It is immaterial from what source the funds are derived which constitute the trust. Perry on Trusts, § 707.
    It is'no valid objection to a grant or devise to a charitable use that it creates a perpetuity, or renders the estate granted or devised for the purpose inalienable. Yard’s Appeal, 64 Pa. St. 98.
    If the estate be vested, it is not in the view of the law a per- ■ petuity, although the purpose for which it is granted be such that it can not be devoted to any other use. Ib. ■
    
    The foregoing propositions will be found abundantly supported by the following authorities : Jackson v. Phillips, 14 Allen (Mass.) 556, 539, 550; Perry on Trusts, sec. 710 (distinguishes 5 Rawle, 551, and Morning Star Lodge, 23 Ohio St. 134, cited by Mr. Miller) ; sec. 732 of Perry; Indianapolis v. Grand Master, 25 Ind. 519 ; Duke v. Fuller, 9 N. H. 536; Potts v. Philadelphia Asso., 1 Legal Gazette R. (Pa.) 369 ; Att’y- General v. Pierce, 2 Atkyns, 88, p. 276 ; Saltanstall et al. v. Sander et al., 11 Allen (Mass.) 446, 455-6, and on page 464 distinguishes, Anon, 3 Atk. 277, and Att’y-Gen. v. Federal St. Meeting House, in 3 Gray, cited by Mr. Miller; Miller v. Teachout, 24 Ohio St. 525, 532-4; Evangelical Asso. Appeal, 32 Pa. St. 316; Perry on Trusts, § 710; Thornber v. Wilson, 3 Drewry, 245 ; Ould v. The Washington Hospital, 95 U. S. 311 ; Wright v. Linn, 9 Barr (Pa.) 438 ; White v. White, 7 Vis. 422; Philadelphia v. Fox et al., 64 Pa. St. 169 ; Tr. of McI. P. Sch. v. Z. C. & M. Co., 9 Ohio, 303, 287; Z. C. & M. Co. v. City of Z., 20 Ohio, 483; Urmey’s Ex. v. Woodin et al., 1 Ohio St. 160; Humphries v. Little Sisters of the Poor, 29 Ohio St. 201; Sarah Zane’s Will, in Magill v. Brown, 1 Brightly (Pa.) 357, 407-8 ; McLain v. School Directors, 51 Pa. St. 196 ; Thomas v. Ellmaker, 1 Pars. Eq. (Pa.) 98 ; Burr v. Smith, 7 Vt. 241; Yard’s Appeal, 64 Pa. St. 98; Foreign Missionary Society’s Appeal, 30 Pa. St. 425; Mr. Miller relies upon the cases of Babb v. Reid, 5 Rawle, 151, 3 Atk. 277, Anon ; and Morning Star Lodge v. Hayslip, 23 Ohio St. 144.
    The purpose for which these lands were set apart is a charitable purpose. Ould v. Washington Hospital, 95 U. S. supra; Evangelical Asso. Appeal, 35 Pa. St. 316; cases in which burial grounds have been held public charities. Beatty et al. v. Kurtz, 2 Peters, 566, 583, approved in City of Cincinnati v. Lessee of White, 6 Peters, 436 ; and cited with approval in Price et al. v. M. E. Church, 4 Ohio, 515 (875); State v. Trask, 6 Vt. 364; Hunter v. Trustees of Sandy Hill, 6 Hill, 407; First Cong. Church v. Walsh, 57 Ill. 363; Donohuyh’s Appeal, 86 Pa. St. 314; Hill on Trustees, *453, citing Doe v. Pitcher, 6 Taunton, 359, 363; Dexter v. Gardner, 7 Allen, 247; Swanscy v. American Bible Society, 57 Me. 527 ; Beaver v. Filson, 8 Pa. St. 327, 335 ; Trustees of McIntire Poor School v. The Zanesville Canal and Manufacturing Co., 9 Ohio, 287.
    A charitable use is public. Spence’s Equitable Jurisdiction of Chancery, vol. 1, p. 588, Ch. XI, § 1, and see note (d); Lewin’s Law of Trusts, p. 20; Bispham’s Eq. § 125, p. 171 ; Hullamn v. Honcomp et al., 5 Ohio St. 242.
    Even if John B. Purcell was originally absolute owner of the lands, he has dedicated them to charitable and pious uses. He has appropriated the lands to the use of the Boman Catholics of the diocese, and they have acted upon the appropriation in such manner that he is estopped to claim ownership. Hunter v. Trustees, 6 Hill (N. Y.) 411; Village of Fulton v. Mehrenfeld, 8 Ohio St. 445 ; Cincinnati v. Lessees of White, 6 Pet. 438 ; Brown v. Manning, 6 Ohio 129 ; Price et al. v. M. E. Church, 4 Ohio 515; Cong. Church v. Walsh, 57 Ill. 
      363; Com. v. Wellington, 7 Allen, 299; Com. v. Viall, 2 Allen, 512.
    
      JE. W. Kittredge, for John G. Hendricks.
    I claim that Hendricks is entitled to be paid out of the general church property, under the authority conferred by the act of January 3, 1825, 2 Chase’s Stat. 1460. [Mr. Kittredge also elaborated the various points made by other counsel in the case, citing substantially the same line of authorities heretofore given. — Rep.]
   Owen, C. J.

The case has been considered by us upon the facts found by the district court. While we have examined the evidence sufficiently to see that it tends to support these findings, we have not undertaken to determine its weight.

These facts, so far as they have engaged the consideration of this court and are involved in this opinion, may be more briefly summarized as follows :

John B. Purcell was bishop of the Roman Catholic diocese of Cincinnati from 1833 to 1855, and archbishop from that time to and after his assignment, in March, 1879. From 1837 to the time of such assignment, his brother, Edward Purcell, was priest, serving at the cathedral, and also, by appointment of the archbishop, vicar-general of the diocese, to whom was confided the general management and control of the financial affairs of the archbishop. During all the time above mentioned the canons, decrees, and rules of the Roman Catholic Church for the diocese required all property held and used for ecclesiastical purposes to be conveyed to the bishop or archbishop of the diocese by name, his heirs or assigns forever, to be held by him in trust for the uses for which it was acquired. In the manner and for the uses above stated, the churches, school houses, parochial residences, asylums, seminary and cemeteries involved in this controversy, were acquired and conveyed to John B. Purcell, his heirs and assigns forever,” because the rules and canons of the church required the legal title to be so vested, and for no other reasons. As soon as Edward Purcell came into the diocese, and in his capacity of vicar-general, he began to receive money on deposit, (paying interest thereon) and loaning it out upon interest, all with the acquiescence of the archbishop, and so continued to receive money until the indebtedness so incurred amounted to more than $3,500,000, which has been assumed by John B. Purcell as his own.

Finding themselves without available means to pay this indebtedness, they made an assignment in insolvency to the plaintiff, before whom about $2,500,000 of indebtedness have been duly proved. It is only necessary to deal with the assignment of John B. Purcell. On March 11, 1879, the latter, in his individual capacity, made his assignment to Mannix in trust for the payment of his debts, of all his property which could at law or in equity be subjected to such payment, expressly excepting all property held by him in trust for others. No specific property was named or described in the deed; but in addition to the church property held in his own name, the assignor owned a large amount of property which had been deeded or devised to him unaffected by any trust, and which yras legally subject to the payment of his debts, and about which there is no controversy. All the church edifices involved in this controversy, except three, (which includes the ■cathedral) were severally bought, built and paid for wholly by the gifts of the members of the several congregations worshiping therein, respectively, and others, for the sole purpose of public religious worship therein. To the purchase and building of the three excepted as above, John B. and Edward Purcell advanced money by way of loan, (and otherwise than as gifts), which, as to the cathedral and St. Patrick’s Church in Cumminsville, has not been repaid. Except the money so advanced, these church buildings were paid for by contributions from members of the respective congregations, and others, and the legal title vested in the archbishop, to be by him held in trust for the use of the congregations, respectively, using them as places of public worship. The congregations of the several churches were composed • of men, women and children.of the Roman Catholic faith, worshiping and receiving the sacraments of the church therein.

These congregations were not incorporated, nor organized under any law of the state, nor were they unincorporated associations whose members incurred any personal liability; although some of them had trustees appointed for purposes other than for control over the title to church property. Members could change from one church to another by change of residence, or from mere caprice. Taking a pew and paying the pew rates by a Roman Catholic constituted such person a member of the congregation. Upon leaving the church and going elsewhere, the membership ceased. The churches were open and free to all for purposes of public worship. The pastor of each congregation was appointed by the bishop and removed at his pleasure, but his salary was paid by the congregation ; and the pastor for the time being, with his congregation, had actual possession of the church. None of the congregations, nor any bodies of individuals representing them, were so organized as to be capable of holding the legal title to the church property. The other properties held and used for ecclesiastical purposes — asylums, schools, cemeteries (with the qualifying facts found by the court below concerning the property represented by the St. Joseph’s Cemetery Association, a part of which was subjected to the payment of creditors), were, like the churches, openly, notoriously, continuously, and exclusively possessed and used for the purposes for which they were acquired and deeded to the archbishop. But they were so possessed, used and managed by persons with whom it was impracticable to invest the legal title, by reason of the want of permanency in the personnel of their possession and .management.

The original action was brought by the assignee for the purpose of procuring a sale of all this property free of all clouds and incumbrances by reason of the assertion of the trusts and uses for which it is claimed the archbishop held it; the contention of the assignee being that (1) the debts before mentioned were not the individual debts of the archbishop, but contracted for diocesan purposes, and that the church property is justly chargeable with their payment, and this prior to all other charges upon the property; and (2) that the archbishop was so far the absolute owner of the property— such was his dominion over it — that it is subject to the payment of even his general indebtedness, and passed by the deed of assignment to the assignee; that there was no trust of which the civil courts can take cognizance or assume control, or which can stand in the way of the ordinary course of administration of the assignment.

Except as to the claim of John G. Hendricks for improvements put upon the cathedral property, (which will be considered in another connection), the central and controlling question in the case is whether the church property, including all the property above mentioned, is liable for the debts of the archbishop, contracted as above, and passed to the assignee by the deed of assignment, and is now held by him to be applied to the extinguishment of the indebtedness proved before him. There are in all over two hundred pieces of church property in the diocese described in the petition of the assignee, but it was agreed by counsel upon the trial that fourteen different churches, institutions and properties, selected by them as representing the various questions of law and fact in the case, may be considered as representing all the property involved in the controversy.

The case is one of unusual magnitude and interest, as well in the questions as in the amount involved. It has received that consideration at our hands which its importance seemed to demand. We desire to acknowledge our obligation to the eminent counsel whose great learning, tireless research, and strong presentation of the case in all its varied aspects and complications, have so greatly assisted us in its consideration.

It will facilitate the consideration and disposition of this question to keep in mind a few fundamental facts and propositions which assume prominence a£ the threshold of the investigation. The archbishop, in his official capacity, has made no assignment. The diocese of Cincinnati has not gone into insolvency, nor have any of the churches or other institutions iuvolved in this controversy. We are not dealing with church debts, nor with the assets of the church. John B. Purcell/the individual, made an assignment in insolvency of all his individual property to an assignee to be by the latter applied to the payment of his individual debts. No property held by him in trust for others could, or was intended to, pass by deed of assignment. 1 Perry on Trusts, sections 334, 335, 336. This word “trust” is here employed in its legal sense, and is not intended to comprehend mere confidential relations or duties of which the civil courts may not take cognizance or assume control. All property subject, at law or in equity, to the payment of John B. Purcell’s debts, whether held nominally in trust or not, passed by the assignment to the plaintiff below. $o higher or better right or title to any of this property passed to the assignee than the assignor held. His creditors acquired no new rights or remedies in or against it by force of the assignment. The assignee simply represents them and their rights, which he has undertaken to enforce by the plain processes appointed by statute. They do not, in any sense, stand to the assigned property in the relation of purchasers. The beneficiaries of the property which the assignee is now seeking to subject to the payment of the assignor’s debts, are free to assert against the latter every right and claim which, before the assignment, they could have asserted against -the assignor. Morgan v. Kinney, 38 Ohio St. 610; Burrill on Assignments, §391.

The questions before us are very similar to those which would have arisen if John B. Purcell, claiming to be in possession of this property, had brought suit to quiet his alleged title against those who now assert the trust, or as if, claiming to be the unqualified owner in fee-simple, had brought his actions against them to recover possession of the several properties held by them. The practical and substantial subject of the present inquiry is, have these supposed beneficiaries an interest in this property which they can assert as superior to the right of John B. Purcell or his creditors to subject it to the payment of his debts? Another important consideration which should be kept in view, is that none of the defendants.are asking to have any trust performed or executed. They are simply standing upon the defensive — asking that the properties which they respectively speak for and represent, be left free from assault; asking that the relations which have obtained between them and their archbishop concerning these properties since they were first respectively possessed and used by them, be permitted to continue uninterrupted and unaffected. Instead of asking that the execution of the trusts be decreed, they simply pray that their destruction may be averted. They are content that the legal title to this property should remain where, by all the canons of their church, it has for so many years been reposed; but they ask that*the uses to which, during all these years, it has been devoted, be not abused, perverted nor destroyed.

The parties have gone back fifteen centuries into the laws and cannons of the church for proof of the nature of the tenure by which the archbishop held the legal title to ecclesiastical property. And the proof is overwhelming that he was not invested with an absolute title to it as his own. It is practically conceded that he held it in trust; but the parties are very far from a concurrence of views concerning the terms of the trust. The right to go to the rules and canons of the Catholic Church for the purpose of establishing, defining and limiting the trust is denied. That parol evidence may be resorted to to engraft a trust upon a title held by deed absolute upon its face, is a question which in this state has passed beyond the range of serious discussion; though the proof in such cases should be clear, strong and convincing. Matthews v. Leaman, 24 Ohio St. 615; Broadrup v. Woodman, 27 Ohio St. 559. The contention is that to resort to the law of the church as proof upon which to qualify the absolute terms of the grant, is to permit the law of the church to supersede or dominate the civil law; and much sensitiveness is shown by eminent counsel upon this subject. There is here no ground for alarm. It is no innovation upon the law of evidence, in determining questions like the one at bar, to call, in aid of the civil tribunal, upon the law of the particular church involved for the purpose of determining the title to church property. It surely is not unreasonable in a case like the present, to hold one of the great prelates of the Church of Rome to the terms upon which, by the very law to which he has vowed his fealty, he has consented to accept the legal title to property which is appointed to the uses of the church to whose service he has with mpst solemn unction dedicated his life. It is but a form of establishing, by convenient and very convincing proof, what entered into the contemplation of the parties to the grant at the time the title vested. It has been held that where a religious body becomes divided, and the right to the property is in conflict, the civil courts will consider and determine which of the divisions submits to the church, local and general. This division is entitled to the property. In determining which of the divisions has maintained the correct doctrine, the findings of the supreme ecclesiastical tribunal of the denomination in question is binding upon the-civil courts. McGinnis v. Watson, 41 Pa. St. 9; Ramsey’s Appeal, 88 Pa. St. 60; First Pres. Society v. Langley, Trustee, 25 Ohio St. 128; Ferraria v. Vasconcellos, 31 Ill. 25; 3 Am. & Eng. Ency. of Law, 235. So where a bequest is made for a church, to take effect whenever a congregation should be formed, the proper ecclesiastical authorities are the judges of the formation of such congregation. Fidelity Ins. Co.’s Appeal, 99 Pa. St. 443. If by the laws of a Masonic lodge the Master, or of an Odd Eellows5 lodge, the Noble Grand, was to be the repository of the legal title to all real property of the lodge, to be held in trust for its uses, would there be anything startling in the proposal to prove the law of the lodge in a controversy between the latter and its chief officer, involving the title to such property ? Yet in such case it could as well be contended that the courts were permitting the law of Freemasonry or Odd Fellowship to supersede the law of the state, as it can now be asserted that we are enforcing the canons and decrees of Rome. It is no more than establishing, by a form of proof which the courts have held to be competent, the terms upon which, by the convention of the parties, the title to church property was granted and accepted.

It is to be observed, however, that the court below was not limited to such evidence in determining whether any and what trust was raised upon the title which the archbishop held. Formal written declarations of trust, sworn pleadings in other cases, and other written concessions of the archbishop made before any controversies like the present arose, were before the court to aid in the determination of this question. It is trug that from time to time during the archbishop’s service he exercised acts of apparent private ownership over property held for ecclesiastical uses. He sold property, received the proceeds, re-invested it in other property for church uses, executed mortgages upon property purchased, and received mortgages upon property sold. But so far as appears in the case, all this was done with the free acquiescence of the respective congregations and others interested in the property affected. There was evidence tending to show that the archbishop and his vicar-general represented to-depositors that the entire' church property was bound for re-payment of deposits as well as payment of interest. Counsel maintain that these representations charged such property with a liability to answer to such creditors. The court below very properly omitted to make a finding upon this evidence. The fact, if so found, would have been immaterial. The law will not permit a trustee thus tq talk away the trust estate. The infirmity of the argument lies in its assumption of the very proposition in controversy. If the archbishop’s control over church property was such that he could incumber it by his mere declarations, it was liable for his debts. He could not estop the cestuis qui trustent by his words. The latter were found by the court below to have been continuously in possession of the property.

It also appears that the congregations, through representative members, have, without objection from the archbishop, bonded and mortgaged church property in large sums. But prior to the transactions which led to the assignment, no occasion is shown where any collision or difference has arisen between the archbishop and any of the beneficiaries of the church property respecting its management or control. It has been reserved for, the case at bar to present for the first time in the administration of the archbishop, a condition of things which called upon the various beneficiaries to question his right or power, or that of his successor in title, the assignee, to Interrupt or interfere without their consent, with their enjoyment of the uses to which the property has heretofore been devoted. This question is now fairly presented; and the nature of the trust upon which it is conceded the assignor held ■ the property, is, for the purpose of determining whether any ■and what control a court of chancery may assume or exercise over it, squarely presented for adjudication.

The contention of the creditors is that though the archbishop may not have held this property by an absolute, unqualified ownership, yet the vagueness of the alleged trust, the uncertainty and indefiniteness as to the cestuis qui trustent, together with the absence of all other persons capable of dealing with, acquiring, or incumbering the legal title to this property, necessarily left the holder of the legal title supreme in his power of disposition and control.

Let us once assume that John B. Purcell 'was a trustee of this property, and a solution of the question at bar is relieved •of much of the difficulty which would otherwise involve it.

Wherever there is a trustee there is necessarily a subject of the trust — the estate ; an object of the trust — the use, and a cestui qui trust — the beneficiary of the trust. A trust is where property is conferred upon and accepted by one person on the terms of holding, using or disposing of it for the benefit of another. Wherever such a trust is shown, it is cognizable by a court of equity. The law knows no trust which .simply binds the conscience. An alleged trust which is cognizable only in the court of morals or the forum of conscience, is no trust at all; it is an absurdity. The law does not acknowledge a trust over the exercise of which it will not, through its tribunals, assume control, to avert its destruction, perversion or abuse. Morice v. Bishop of Durham, 9 Ves. 400. It is true that in some cases alleged trusts may, as they •do, fail by reason of some hard rule of evidence which prevents their proof; but let them once be established, and the power of a court of equity to control their exercise is almost universally conceded.

This was among the earliest subjects of chancery jurisdiction. While it was for a time supposed that the statute of uses — 43 Eliz.. — was the origin of this jurisdiction, it is now conceded that it ante-dated that statute, and is now freely exercised in states which do not regard that statute as in force within their jurisdiction. Urmy v. Wooden et al., 1 Ohio St. 160.

Indefiniteness in the number and identity of the alleged cestuis qui trustent is urged as conclusive against the assumption that this property is held upon any trust of which the courts, will take cognizance.

The cathedral and other church buildings have been, since their completion, actually and openly possessed and used by their respective priests and congregations; the schools by their pupils and teachers; the orphan asylum by the sisters of charity in charge and about four hundred orphans; and the grave yards, (except the part devoted by the court below to the payment of debts,) by those in charge who have daily devoted them to the burial of the dead. It is true that none of these have been incorporated or otherwise organized under any law of the state. Indeed, their immediate management and control have been in such hands as to illustrate that very principle or element of indefiniteness which has, for many centuries, been one of the controlling characteristics of a trust for charitable and pious uses. It is said that vagueness is, in some respects, essential to a good gift for a public charity, and that a public charity begins where uncertainty in the recipient begins. Fontain v. Ravenel, 17 How. 384; Saltonstall v. Sanders, 11 Allen, 456; Russell v. Allen, 107 U. S. 163; 3 Am. & Eng. Ency. of Law, 127; 2 Perry on Trusts, sec. 687. The individual recipients of the charity are constantly changing. For illustration, take the case of a congregation of one of the' churches in question. It may be that among those who comprise it there is not one member wdio worshipped there ten years ago. Yet it is in legal contemplation the same congregation. It is the congregation for whose uses, as a place of religious worship, the church has been from the first devoted. Its name and the location of its place of worship render its identification easy.

Is it such an entity as that it may constitute a beneficiary to support a trust for a charitable use ? If these congregations and other beneficiaries are sufficiently tangible and substantial to have a standing in court, the question ought, it would seem, to be resolved in their favor. This seems to us a fair test of the question. Are they in court ? They are represented each by prominent members who answered below for themselves and the other members; the orphan asylum by prominent contributors to its establishment and support, with whom were associated several members of the catholic sisterhood in charge; the schools are similarly represented, and the cerne! eries by the St. Joseph’s Cemetery Association, incorporated since the assignment, to which the legal title has been conveyed by John B. Purcell, or whatever interest then remained in him. It is a well recognized practice for certain persons, belonging to a voluntary, unincorporated society, and having a common interest, to sue in behalf of themselves and others having a like interest, as part of the same society, for purposes common to all and beneficial to all. In Beatty v. Kurtz, 2 Peters, 566, several members of an unincorporated Lutheran congregation, having no trustees capable of holding the legal title to church property, were permitted to appear in court in behalf of themselves and others having like interests, for the purpose of preserving a trust in a lot set apart upon a town plat, for the Lutheran Church,” upon which they had established a place of. burial anj erected a school house, but the legal title to which was still in the heirs of the original proprietor. See also, Phila. Bap. Ass’n v. Smith, 3 Peters, 500; African M. E. Church v. Conover, 27 N. J. Eq. 159; Hullman v. Boncamp, 5 Ohio St. 242; 6 Ohio, 298; 7 Ohio, 218. It does not follow, however, that, in the light of the facts established in the court below, it would not have protected the uses for which the property was held, even if these beneficiaries had not been formally in court. But they are in court.

It is scarcely necessary to cite authority to show that the uses for which this property is held, are such as the courts will uphold. The education of the youth; the care, education .and nurture of orphans ; the religious instruction of the living and the decent repose of the dead, are among the most prominent and common objects of charitable trusts. 2 Perry on Trusts, Secs. 669, 700, 701, 706; 3 Am. & Eng. Ency. of Law, 122; Gerke v. Purcell, 25 Ohio St. 229, (where some of the property now in controversy is declared to be held in trust); McIntire v. City of Zanesville, 17 Ohio St. 352; Trustees v. Zanesville Canal Co., 9 Ohio, 287.

Surely this court ought not to be expected to declare that: the trusts in the case at bar are too vague or indefinite to be recognized by it after its decision in the two cases last cited. It there upheld and enforced a charitable bequest to an unincorporated association for the use and support of a poor-school which they are to establish for the use of the poor-children of the town of Zanesville;” the donee afterwards, becoming incorporated. Compared with such a use, the objects of the trusts in the ease at bar are simple and definite.

Lane J., in the case last cited, says concerning the extent of chancery jurisdiction over charities: “One of the earliest elements of every social community, upon its lawgivers, at the dawn of its civilization, is adequate protection to its property and institutions which subserve public uses, or are devoted to its elevation, or consecrated to its religious culture and sepulchers ; ” etc.

In Miller v. Teachout, 24 Ohio St. 425, this court sustained a bequest to an executor for the advancement and benefit of the Christian religion, to be applied in such manner as in his. judgment will best promote the object named.”

In Urmy v. Wooden, 1 Ohio St. 160, the court sustained a bequest to “ the poor and needy, fatherless, etc., of Jefferson and Madison townships, of the county aforesaid, to such poor( as are not able to support themselves, to be divided as my executors may deem proper without any partiality.” In Sowers v. Syrenius, 39 Ohio St. 29, it sustained a testamentay disposition for the preaching of the gospel of the blessed son of God, as taught by the people iioav knoAvn as the Disciples of Christ, the preaching to be avcII and faithfully done in Loraine county in Birmingham, and at Berlin in Erie county, Ohio.”

In Williams v. First Pres. Society of Cincinnati, 1 Ohio St. 478, the court held that a deed to certain persons as “trustees for the presbyterian congregation of Cincinnati, and their successors forever, for the use, benefit and behoof of the congregation forever,” there being then but one such congregation, is not void for uncertainty as to the beneficiaries of the trust, although they were not then incorporated. This bears with much weight upon the questions at bar. In none of these cases could the beneficiaries assert any special pecuniary interest in the trust estate, but the uses upon which the legal title was conferred were recognized and enforced.

Much of the complication and difficulty in which the discussion of the present case has involved it, arises from an attempt to solve it by the tests which are usually applied to cases of alleged resulting trusts, and from a failure to mark the distinction between active trusts, where the nature of the trust is such as to render it necessary, for the purposes of the trust, that the legal title should remain in the trustee (who cannot be compelled to convey), and a passive trust, where the cestui qui trust has the right to be put in actual possession of the property, or the right to call upon the trustee to convey the legal estate, as the former may direct. Bispham’s Eq., sec. 50.

The distinction between resulting trusts and trusts for charitable or pious uses is almost as clear and as broad as that between legal and equitable estates. The foundation of a resulting trust is the payment, or the securing to be paid, by the cestui qui trust, out of his own means, the consideration of the conveyance, or some part thereof, at its completion. McGovern v. Knox, 21 Ohio St. 552. A resulting trust is to be performed or executed by the trustee by transferring the title to the cestui qui trust at his request. Millard v. Hathaway, 27 Cal. 119; 1 Perry on Trusts, sec. 165a.

No one seriously claims that the donors of the various charities now in question — those whose donations and contributions so largely comprise the funds to which they owe their existence — have a definable, pecuniary interest in, or claim upon, them- which is enforcible in any court. Indeed, no such claim is made in their behalf. Nor is any personal or pecuniary interest asserted by or on behalf of those to whose uses they are being devoted. Their interest in them is limited to the enjoyment of these uses. As already observed, they are not seeking nor asking the enforcement or execution of any trusts in their behalf. The trusts which attach to these various properties have been and are still being performed and executed. Each day that public religious worship is held by, or the sacraments of the church adininistered to, members of the congregations of any of these churches therein ; ’ each day that pupils are instructed in the schools; that the orphans are sheltered and cared for in the asylum; that the cemeteries are opened to receive the dead, witnesses the performance of the trusts upon which they are held by the archbishop of the diocese. The prayer is-identical with that of the bill in Beatty v. Kurtz, 2 Peters, 566, supra, that they be left undisturbed in the enjoyment of the uses to which the property actually possessed by them has been so long devoted. In this view, the assumed difficulty or impracticability of enforcing these trusts disappears entirely as an element in the case.

Upon this feature of the case the eminent counsel for the assignee, among other things says :

“ Can the beneficiaries be the individuals who attend the church, or who constitute the so-called congregations ? Certainly not; as no private advantage can be claimed for them, nothing can pass to them, nor can they, as individuals, act in any capacity in relation to the property. They are not only not an incorporated body or association, but they never can be incorporated as a body and continue to be part of the Roman Catholic Church. Take away the bishop, and there can be no priest to manage the affairs of the Church, and there can be no Catholic Church without a priest. Take away the bishop and the Church is gone forever. The congregation no longer has an existence, and the property must descend to the heirs of the grantee in the deed, unless it is disposed of by the deed of the grantee himself.”

It is sufficient answer to this to say that it will be time to deal with such an aspect of the case when such a calamity overtakes the Church as the one suggested by counsel.

We are not called upon to prophesy what this court would or ought to do with this property when, if ever, bishop, priests, churches and congregations are gone forever.” We are dealing with a present, acting bishop (the successor of Archbishop Purcell, deceased), with officiating priests, with living churches and with worshiping congregations. It is against a disaster quite as fatal as that supposed by counsel that the court is asked to interpose its restraint.

Instead of asking that the head of the Church of the diocese oonvey, or be divested of, the legal title, the beneficiaries ask that it remain in him upon the same trusts and for the same uses to which, from the first, it has been devoted. Indeed, it is quite indispensable to the existence of the trust that the legal title be held by some one other than the eestuis qui i/rystent, who are incapable, by reason of the indefiniteness which characterizes their personality, of holding it.

Was the dominion of the archbishop over this property .such as to render it subject, at law or iniquity, to the payment of his debts ? The debts are, almost, if not quite, exclusively, such as were contracted in the business of receiving money on deposit upon the terms of paying interest upon it while on deposit, and finally restoring the principal. It surely cannot be seriously claimed that this important branch of the banking business was within the terms or powers of the trust upon, which the property was held. It originated with, and was prosecuted exclusively by, the vicar-general, Edward Purcell. The archbishop stated, among other things upon this subject, that this business had its origin in the failure of the banks, and the desire of the depositors that Father Edward should take their money and keep it for them, they refusing any security, but trusting to his integrity and good faith ; and that he labored for them without compensation, to earn for them interest on their money. While the findings of the court below do not in form embrace one upon this subject, they are entirely inconsistent with any such power, as are also the conclusions of law. The member of the court below who prepared the opinion of the court (Smith, J.), in a very able and exhaustive presentation of the reasons which prompted the judgment, says that “ most of the present indebtedness-grew out of his brother’s banking, business; receiving money on deposit, paying interest and lending it out on interest. The-canon law strictly forbade this to be done by ecclesiastics. All the canonists concur in this testimony. It could hardly be a debt of the trust when the authority creating and regulating the trust strictly forbade it.”

There is no serious attempt by any creditor to trace moneys deposited by him into any specified property. There was but. one fund. The book-keeping was crude and primitive. While-some money deposited must have gone into church property, donations must have gone to pay interest upon, and re-pay the principal of, deposits; but the controversy is chiefly between depositors who expected interest and finally their principal,, and those who gave without hope of either interest or principal, except as it came in the enjoyment of the uses to which the-property was devoted.

The theory that these are diocesan debts to be satisfied out of diocesan or general church property, is untenable. It is not made to appear in this case that a diocese is a body or an organization capable of owning property or of contracting debts. A diocese is the circuit or extent of a bishop’s jurisdiction ; the district in which a bishop exercises his ecclesiastical authority, but it has not been made to appear that it i-s constituted to hold either the legal or equitable estate in any property which is devoted to church purposes. Certainly no such party was summoned nor made its appearance in this cause,, and we have not heard of any complaint of a defect of parties, in the courts below. The legal title to all this property is in the bishop; while the equitable or beneficial interest is in the-several congregations and others for whose several uses-they are respectively held. There seems to be no room for another owner. There is no such triangular title as this theory assumes.

Each of these congregations and other beneficiaries is here-defending for itself and in its own rights. Each piece of property is held upon a separate trust, and for a distinct use. No. warrant is shown for charging upon one the expense incurred on account of another.

In the case of Tuigg, Trustee v. Tracy, 104 Penn. St. 493, the right to charge upon one congregation of a Catholic church expenses incurred for the benefit of another, was under consideration in the light of the rules of the-church. They were under the same general canonical laws which prevailed in the diocese of Cincinnati. The court say: “Whether or not, therefore, Father Tracy, (who was pastor of St. Bridget’s congregation), paid and expended the money of St. Bridget’s as his own, in the St. Joseph’s Mission, at the instance and request of the bishop, is not important, as the bishop had no more right to pledge the credit of the congregation in an enterprise it had not undertaken or assumed, and in which it had no particular concern, or to divert the funds of the congregation from their use, than the pastor himself, and neither, it would seem, had any power.”

While this is not an adjudication of the power of the archbishop which controls us in the case at bar, it affords strong support to the finding of the court below, especially as the sources of information were practically the same in both cases.

Our conclusion is that the property sought to be subjected to the payment of the individual debts of John B. Purcell (except so much of the cemeteries as was devoted to such purposes), was “held in trust for others,” and did not pass to the assignee by the deed of assignment.

Some of the defendants and cross-petitioners acquired judgments upon their claims against John B. Purcell after the assignment, but we are not able to discover how their situations are improved by that fact.

The claim of John G. Hendricks, another cross-petitioner below and cross-petitioner in error in this court, stands upon'ground distinct from all others. He obtained a judgment against John B. Purcell, also after the assignment, upon a claim composed in part of an indebtedness for money deposited to bear interest, and in part for improvements and repairs placed upon the Cathedral, and for its preservation, at the request of the archbishop. We are all in accord upon the proposition that the latter claim possesses peculiar merit, upon the principle that the trust property should answer for the reasonable expense incurred in its preservation and necessary repair and. improvement. We are not in accord, however, as to the means of effectuating this right. A majority of the i court is of opinion that the remedy may be granted in this (case, and for this purpose the judgment as to this claim is re-I versed and the cause remanded for further proceedings upon / this branch of the controversy. The eminent counsel who represents Hendricks, predicates his claim to be re-imbursed out of the general church property chiefly (to the extent of his entire claim) upon the authority which he maintains is conferred upon the archbishop by an ant of the general assembly passed January 3, 1825, which it is claimed was in force at the time of the assignment (2 Chase’s Stat. 1460).

It is entitled: An act securing to religious societies a perpetuity of title to lands and tenements conveyed in trust for meeting-houses, burying-grounds, or residence for preachers.”

It is as follows :

Sec. 1. Be it enacted, etc., that all lands and tenements, not exceeding twenty acres, that have been or hereafter may be conveyed by devise, purchase, or otherwise, to any person ■or persons as trustee, trustees, in trust for the use of any religious society within this state, either for a meeting-house, burying-ground, or residence of their preacher, shall descend with the improvements and appurtenances in perpetual succession in trust to such trustee or trustees as shall from time to time be elected or appointed by any such religious society, according to the rules and regulations of such society respectively.

Sec. 2. That the trustee or trustees, for the time being, of any religious society aforesaid, shall have the same power to defend and prosecute suits at law or in equity, and do all other acts for the protection, improvement and preservation of said property, as individuals may do in relation to their individual property.

Upon this proposition the counsel stands alone, and his contention has provoked a vigorous cross-fire from his co-defendants and the assignee. It is by them contended that the act, if in force, does not and never was intended to apply to the Catholic Church and its bishops. We have not found it necessary to attempt a solution of this controversy. Conceding, for the purposes of the discussion, that it is broad enough to comprehend Catholic bishops and church property, it still falls far short of supporting the claim of Hendricks, that his claim for money deposited is a charge upon church property. It is maintained that the effect of this statute is to give to the official holding the trust property, power to sue and be sued in his own name — to defend and to prosecute suits at law or in equity— and to do all other acts, such as to make contracts, which individuals may do in relation to their individual property, for its protection, improvement and preservation. It is maintained that this act invested the archbishop with all the characteristics of a corporation sole, though it is said that this position is not essential to the argument.

The antecedent of “ said property ” in the second section of the act, is all lands not exceeding twenty acres conveyed, etc., to any person as trustee, either for a meeting-house, burying-ground, or residence of their preacher.” The power given is to do acts for the protection, improvement and preservation of said property. ”

As we have indicated, it required no legislation to authorize a charge upon this property for money expended “ for its protection, improvement and preservation.” The act in question contemplates the protection, etc., of specific property — “a meeting house, burying ground, or residence for the preacher.” There is no pretense that the money deposited by Hendricks was applied to the improvement, etc., of any particular church property. There is evidence that some of it was expended in the éducation of some young men for the priesthood. But the claim is supported upon the theory that the debt is diocesan, and that diocesan (meaning general church) property should satisfy it. This view of the case has already been sufficiently considered,' and an adverse conclusion reached.

No cross-petitions in error .are filed by the various congregations, etc., to the order of the court below, for an account of the assets of John B. Purcell, in the form of claims for money advanced by him, for the construction of various churches, etc., nor is the claim made that such order is not a final one. We are all impressed with the general equity and fairness of this feature of the judgment below, and it is, for the reasons stated, left undisturbed.

Louis Nardini, trustee for Benedetto Gatto, one of the defendants below, filed his cross-petition setting up a mortgage upon the orphan asylum, executed by John B. Purcell, with which issue was joined, tidal had, and judgment rendered against him, to which he excepted. He filed his separate motion for a new trial, which was overruled ; he excepted and took his separate bill of exceptions. His claim was adverse to all the other parties in the case. He failed to file a cross-petition in error in this court within two years after the judgment against him. Has he a standing in this court? A cross-petition in error is not expressly authorized by our code. It was claimed in Seitz v. Railway Co., 16. Kan. 131, that the proceeding was unauthorized, and the court so held, and that a separate proceeding in error was necessary. The same question was first presented in this court in Shinkle v. The Bank, 22 Ohio St. 516. It was contended that such a pleading was unauthorized. The court, by Welch J., said : “There is no good reason why cross-petitions in error should not be allowed equally as in original actions. They were allowed at common law, and there is nothing in the code which forbids their use. On the contrary, they are calculated to subserve a leading object of the code, namely, to avoid multiplicity of suits, and to render litigation simple, cheap and speedy. * * * To summon the opposite party, who is already in court, and to bring in a copy of the record, a copy of which is already in court, would be a useless labor, and involve an unnecessary expense and delay, etc.” The Supreme Court of Kansas was again called upon to consider this question in Stettauer v. Carney, 20 Kan. 496, when it overruled its former decision upon the authority of Shinkle v. The Bank, supra, saying : “ We are constrained to believe that in this respect the decisions of the Supreme Court of Ohio are the better exposition of the law.”

Again in Bundy v. Iron Co., 35 Ohio St. 80, a motion was made in this court for leave to file a cross-petition in error. At the time no leave was required to file petitions in error. It was said, by 'the court: “ As held in Shinkle v. First Nat. Bank, 22 Ohio St. 516, it is competent for a defendant in error to file a cross-petition asking the reversal of the judgment for errors prejudicial to him, and not assigned in the plaintiff’s petition. And as a petition in error may, under the present legislation, be filed without leave of court, the same rule will be applied to the cross-petition.”

The just inference is that if the law had required leave to file a petition in error, the same rule would necessarily have applied to a cross-petition in error. In the case before us the ■errors which Nardini relied upon were not assigned by the plaintiff in error; he stood upon his own right. The judgment against him stood unchallenged upon the record. There can be little doubt that if the proceeding in error by the plaintiff had been dismissed at any time before Nardini’s cross-petition in error was filed, his branch of the case would also have gone out of court. The logic of the foregoing cases and considerations is that such a proceeding is the prosecution of a proceeding in error ; but to avoid a multiplicity of suits, he may in the same case and upon the same record predicate that prosecution. If a law requiring leave to file a petition in error would apply as well to a cross-petition in error, they are so far upon the saíne footing as that if the two years’ limitation applies to one, it applies with the same force to the other. All parties in whose favor the judgment of which he complains was rendered (and it was in favor of all but himself), had a right to suppose, after the expiration of two years from its rendition, that it stood unquestioned, and was forever at rest. The cross-petition in error was filed too late. This conclusion relieves us of a further consideration of the question arising upon this mortgage, and the judgment thereon is affirmed.

The writer of this opinion does not concur in so much of the judgment as remands the case to the court below for further proceedings upon the claim of Hendricks; nor does he concur in the affirmance of so much of the judgment below as devotes a part of the St. Joseph's Cemeteries to the payment of creditors, believing that these are quite clearly shown to be trust property, and that they did not pass to the assignee by the assignment.

With the modification above indicated of the judgment against Hendricks,

The judgment below is affirmed.

CLOSES ARGUED AND DETERMINED IN THE SUPREME COURT OE OHIO. JANUARY TERM, 1889. Hon. Hon. Hon. Hon. Hon. SELW'YN N. OWEN, Chief Justice. FRANKLIN J. DICKMAN, THAD. A. MINSHALL, MARSHALL J. WILLIAMS, WILLIAM T. SPEAR. Judges.  