
    The Attorney-General ex rel. Nicholas J. Marselus v. The Minister and Elders of the Dutch Reformed Protestant Church of New York.
    A devise made in 1684 “to the elders or overseers of the Nether Dutch Reformed Congregation within the city of New York, to the proper use and behoof of the minister of the Nether Dutch Reformed Congregation . within the city of New York, for- the support and maintenance of their minister, ordained according to the church orders of the Netherlands,” is a devise to that particular church and congregation, for the purposes specified; and not to the ministers of that denomination generally.
    The charter granted by the king in 1634 upon the petition of this church and congregation for that purpose, whereby it was ordained “that the then minister, elders and deacons, and all such others as then were, or thereafter should he, admitted to the communion of the Reformed Dutch Church in the said city of New York, should from that time, and at all times thereafter, be a body politic and corporate by the name of the minister, elders and deacons of the Reformed Protestant Dutch Church of- the city of New York; and their successors, in trust for the sole and only use, benefit and behoof of them, etc.,- and other members in communion of the said Reformed Dutch Church of New York and their successors forever, was an incorporation of the particular church petitioning only, and was not an incorporation of the denomination, not members of said church.
    "Where, by the terms of the will, the legal title of the estate devised, is vested in the defendants, who are the sole beneficiaries, if there remains a surplus after the trusts of the will are fully satisfied, such surplus follows the legal title, discharged of the trusts of the will.
    
      P. Y. Cutler, for the appellant.
    
      D. Lord, for the respondent.
   Grover, J.

This action was instituted by the relator in the name of the attorney-general, claiming that he, together with all other ministers of the Dutch Beformed Church engaged in ministering to churches in the city of New York, in communion with the Protestant Beformed Dutch Church, are entitled to payment of their salaries in whole or in part from the income of property in the hands of defendants, which property was derived by devise from one Steinwick, by will dated 1684, and one Hurpendinck, by will dated February 7, 1723, and to enforce such claim by the- judges ment of the court. Several questions are presented by the case which must be considered in its determination. It is claimed on the part of the plaintiff that the trusts attached to the property by the devisors, were to apply the income thereof to the payment of the stipends or salaries of all the ministers officiating in Protestant Dutch Reformed Churches in the city of New York. If this be so, the relator is entitled to the relief demanded, as he shows that in that case he belongs to that class of beneficiaries. I shall not discuss the question whether this relief could be obtained in this action prosecuted in the name of the attorney-general, or whether it could only be obtained in an action brought by the plaintiff in his own name, as cestui que trust. . Is is clear that in the latter mode the relator would be entitled, if this position be correct, to the relief prayed for. Although difficult to see how the attorney-general can intervene and maintain an action to procure redress for the relator upon this ground; yet for the purposes of the inquiry, I shall assume that the action in its present form can be maintained for that purpose.

The inquiry then is whether the trusts created by the wills were in favor of one particular church now represented by the defendant, or whether in favor of all the officiating clergy of the denomination from time to time engaged in the city. At the time Steinwick made his will, there was no church or congregation of the denomination, incorporated in the city. There was but one such church and congregation in the city. That was unincorporated and known as the Nether Dutch Church or congregation. Under this state of facts Steinwick devised the manor of Fordham to the elders or overseers of the Nether Dutch Reformed Congregation within the city of New York to the proper 'use and behoof of the minister of the Nether Dutch Reformed Congregation within the city of New York, for the support and maintenance of their minister ordained according to the church orders of the Netherlands, etc. It will be borne in mind that the question here is not whether the will is valid or any title acquired by any one under it. But to whom did Steinwick intend to give the property, and upon what trusts ? The facts above stated leave np doubt upon this point. He gave it direct to the Nether Dutch Reformed Congregation, and there is no more reason to suppose he intended to include the minister of any other congregation of the same or any other denomination in the city of New York, than that he intended to include those of the mother country. It is clear that if the will, or the deed conveying the property, made pursuant to the directions of the will conveyed a title, that title and the trust thereby created was acquired by and inured to the benefit of this particular congregation. This fully answers the claim of the "relator in this respect, for if no title was acquired by the will or deed, or both, no trust was created, and he has of course no claim upon the property or income.

In 1634, this church, still remaining unincorporated, presented a petition to the king'for a charter of incorporation, reciting therein their ownership of the manor in question and certain other real estate, and praying for a confirmation of their title. Upon this petition the king, on the 11th of May of that year, granted to them a charter, whereby, among other things, it was ordained that the then minister, elders and deacons, and all such others as then were or thereafter should be admitted to the communion of the Reformed Protestant Dutch Church in the said city of New York, should from time to time and at all times forever thereafter, be a body politic and corporate by the name of the minister, elders and deacons of the Reformed Protestant Dutch Church of the city "of New York, and by the same charter confirmed the title to the real estate unto them, the said minister, elders and deacons of the Reformed Protestant Dutch Church of the city of New York and their successors, in trust for the sole and only use, benefit and behoof of them, the minister, elders and deacons, and other members in communion of the said Reformed Dutch Church of New York, and their successors forever. A question is made whether this charter incorporated the particular church petitioning for it, or whether it created a denominational corporation embracing all the churches and congregations of that denomination that ■might thereafter exist in the city of New York. This questian is material, as its determination will also determine in whose favor the trust was created by Hurpendinck’s will.

At the time of presenting the petition of the mother church to the king, for an.incorporation, there was no other church of that denomination in the city. The petition was for the incorporation of this church. There is nothing tending to show that at that time it was in the contemplation of any one that there would thereafter be in the city of Dew York, any other organized and incorporated church of the denomination. This particular church desired to be incorporated to enable it to manage its temporalities. The language of the charter must be construed in the light of the extrinsic facts. An important fact is the petition that asked for the incorporation of this particular church. This church was known as the only Protestant Dutch Deformed Church in the city. It had an organization constructed upon the basis of churches of this description. Under this state of facts, the reasonable presumption is, that any general language used was intended to apply to this church, especially when, as in this case, there is nothing except such general language tending to show that any thing more was contemplated. The general language of the charter, from which it is attempted to deduce a different conclusion, is, all such others as there were or thereafter should be admitted to the communion in the Deformed Protestant Dutch Church in the city of Dew York. It must be considered that this particular church being at the time the only church of the denomination in the city, there was no way of being admitted to the communion of the church except by becoming a member of this particular church. Hence the language appropriately applies to this particular church. Again, it may be remarked that if the design was to include, in the corporation created, separate churches and congregations, no mode for the exercise of the corporate powers by such bodies is provided.

Upon all the facts my conclusion is, that this particular church alone was incorporated, and that, by those in communion with the Protestant Deformed Dutch Church, was intended members of this church, as that at the time was the mode of being in communion therewith in the city of New York. In February, 1723, Hurpendinck willed to the corporation by name his interest in the Shoemaker farm, for the payment and satisfying of the yearly stipend, salary, etc., of the respective minister or ministers who, from time to time, and at all times thereafter, should be regularly and legally called to the ministry of the said church, and to no other use whatever. If right in the above conclusion, it follows that, if the will is valid, the title vested, in and the trust inured to, the benefit of this church. This renders it unnecessary to examine various questions ably discussed in the opinion of the Special Term, as we have seen that the only standing ground of the relator is that the title under the will and thé trust thereby created is valid. This renders the question wholly immaterial whether the will is void under the statute of Elizabeth, or for any other reason, or not, because if valid the whole beneficial interest vested in this particular church. There is nothing conflicting with this view in any of the colonial legislative acts if such acts were competent to modify the title. It will be seen that one of these acts in terms confers power upon the defendant to apply the income to building or repairing churches, etc. This is what from time to time it has done as the exigences of their congregation required. When that became too large to be accommodated in one edifice they have from time to time erected others, governing all by the same officers as one church, preserving all in the same corporation.

It is not claimed, but that it might lawfully do this with its own property, but it is claimed that it is a breach of trust-to apply the income in question to any other purpose than the payment of ministers, and that, therefore, the court should interpose by restraining any such application, whether the relator and those similarly situated have any interest or not. This Brings us to what I regard as the only remaining question in the case necessary to determine. The case shows that the income largely exceeds what is necessary to pay the ministers employed by defendant in. full, and the question is, who shall determine what disposition shall be made of this surplus ? The plaintiff’s counsel insists that it is the duty of the court to do this, that the property was by the devisors devoted to the payment of the salaries of ministers, and cannot, therefore, be appropriated by defendant to any other object. It is therefore insisted, that although it should be held that the trusts did not extend to the relator, yet the court should have proceeded to devise a scheme as near the presumed intention of the testators as possible, to which this surplus should be applied.

The counsel suggests that, as the testators made express provision for the support of preaching only of the particular denomination, it would accord with their intention to apply this surplus to the payment of the salaries of all the ministers of the denomination employed in the city of New York. Numerous authorities are cited by the counsel, which show that the Court of Chancery in England has in numerous instances acted upon the principle, that where charitable bequests were made, or provision for charity made in any other way, the court would supply almost any defect in the instrument making the provision, or remove any other difficulty in carrying out the design of the donor. In many of the -cases the court has devised almost the entire scheme, and the donor would hardly be able to recognize in.it any analogy to his design. This doctrine had its origin in the strong desire of the ecclesiastical chancellors to uphold every gift to the church and every act that subjected property to its control. At this day, I apprehend the courts of this State will content themselves with carrying into effect the intention of donors, when found intelligently expressed and to accord with the rules of law. That if there is any substantial defect in the instrument, the court will not supply it; but the scheme will fail, and the property descend according to law. In this case the property was devised to the defendant, and so far as the parties here are concerned, it must be held that it has the legal title. That title is charged with a trust of which the defendant is the -sole beneficiary. That trust is fully discharged. It turns out, doubtless contrary to the expectations of the donors, that, by the rise in the value of real estate, after a great lapse of time, there is a large surplus. When the property was given, it would hardly pay one minister. The income now pays four, and leaves an. annual surplus of seventy thousand dollars. This surplus, after the entire satisfaction of the trust charged upon the property, I think, follows the legal title, and therefore - belongs to the defendant, not charged with any special trust, but to be used for any of the purposes authorized by the corporation. This is precisely what the defendants have done and propose to do hereafter.

The judgment dismissing the complaint should be affirmed.

Portee, J., takes no part.

All concur.

Affirmed.  