
    WESTMORELAND COUNTY.
    December Term, 1798.
    Lessee of the Executors of Theodorus Browers, v. Franciscus Fromm.
    
      BROWERS was a German catholic priest, who after a residence in a Danish West-India island, had, a few years before his death removed into Pennsylvania, and superintended a catholic congregation near Greensburgh in Westmoreland county, and owned two plantations there ; which, by his will, dated 24th October, 1790, he devised as follows :—“ To a Roman Catholic priest that shall succeed me in this said place, to be entailed to him, and his successors, in trust, and so left by him who shall succeed me to his successors, and so in trust and for the use herein mentioned in suceession forever. And that the said priest for the time being shall strictly and faithfully say four masses, each and every year forever, viz. one for the soul of the Reverend Theodorus Browers, on the day of his death, in each and every year forever, and three others, the following days in each year as aforesaid, at the request of the Reverend Theodorus Browers. And further it is my will, that the priest for the time being shall transmit the land so left him in trust as aforesaid to his successor, clear of all incumbrances, as aforesaid.”
    The will directed the payment of debts and funeral expences, and the erection of a tombstone on the grave of the testator on the premises. The ejectment was brought for the land thus devised.
    The defendant, a native of Germany, was there ordained a Catholic priest, in 1773, and officiated, in that capacity, in various parts of Germany. In February, 1789, intending to remove to America, he obtained from the vicar of the archbishop of Mentz, a commendatory certificate of million to America, as to a country in which there was no bishop. The Reverend Dr. John Carrol of Maryland, having been elected by the Roman Catholic clergy of America, was, by a bull of the present Pope 
      
      Pius VI. dated 6th November, 1789, constituted bishop of Baltimore, with jurisdiction over all the Catholic church within the United States, to be suffragan to no metropolitan, and subject only to the Apostolic See.—After Fromm had landed in America, he applied to bishop Carrol, received pecuniary assistance from him, and was employed to officiate as a priest for some time, in the counties of York and Lancaster in Pennsylvania. Hearing of the devise and death of Browers, he removed to Westmoreland county, and, of his own authority, took possession of his house and the lands ; and, 2d July, 1791, drew up and signed a writing reciting the manner of his taking possession, as under the will, and procured the executors to sign a certificate of their assent annexed to this writing. On the 7th of August, 1791, he wrote to bishop Carrol stating, that, as he understood, he had not received him among his clergy, but abandoned him, he had gone near to Greensburgh, and taken possession of the plantation of Browers, and been chosen by his congregation, where he would stay till he could acquire money to pay his debts, and his passage to his own country, and requesting the bishop’s consent to his election as priest of Browers’s congregation.
    After Fromm had thus got possession of the estate of Browers, the congregation began to doubt his authority, and wanted to turn him off. In April, 1794, he entered into a written agreement with the congregation, to officiate as priest among them, for one year, in consideration of certain sums to be paid by the individual members of the congregation ; and to obtain authority from the bishop of Baltimore, for this purpose ; or, if the bishop should refuse authority, then to give up his possession of the estate. This agreement he signed, adding to his name “Priest of Unity congregation for one year.” Not procuring authority from the bishop, he determined to keep possession of the estate under the will, on the terms of saying masses. But conceiving that his agreement would injure his claim, he contrived to get hold of it, under pretence of collecting his subscription money, and, having done this, he pocketed the agreement, as it lay on the table, where the subscribers were paying him his money ; and, when they remonstrated against this, he tore his name from it, saying, “I am no more your priest, nor you my congregation ;" refused to give it up ; and persisted in retaining possession of the estate.
    A certificate of the bishop of Baltimore, dated 5th August, 1795, was produced, stating, that by the rules of the Catholic church, no priest can exercise his ministry within the jurisdiction of any bishop, without authority from that bishop ; nor leave his congregation, and exercise his ministry in another, without such authority ; that Fromm never had any authority from him to exercise any spiritual ministry near the place of his residence, and, having exercised it, was interdicted, and, persisting, is suspended.
    A certificate was also produced from the vicar general of the archbishop of Mentz, under the seal of his archi-episcopal see, dated 8th May, 1797, stating, that Fromm is a priest capable of succeeding to the estate of Browers ; that priests may obtain mission, from any bishop, to administer the sacraments, and enjoy all rights of priests, in those places where there is no bishop ; that bulls must be promulgated in due manner ; that the sacrament of the mass may be validly celebrated by any priest, whether a parish priest or not, although this be interdicted to the priest, by the bishop, and though, by its celebration, the priest acts illegally ; and that, if masses of this kind be founded, by such celebration, the foundation and obligation may be validly satisfied.
    Brackenridge, for the defendant,
    made eight points.
    1. The executors had no authority to lease, or make any such agreement, as they made with Fromm, in April, 1794. If they had any authority, it was to put in possession for life ; and having done so, in July, 1791, their power expired ; and, after that, the priest so put in possession, is, by the will, to leave it to his successor.
    2. Executors have no authority over the real estate, unless given by the will. This will gives none.
    3. If they had any authority, they have executed it.
    4. By the rules of the Catholic church, bulls must be in certain forms. The bull constituting the bishop of Baltimore has not been in due form promulgated.
    5. The authority of the bishop extends only to the person. He has no authority over a private estate.—There is a difference between a benefice connected with the care of souls, and a benefice connected with a special service. The antient British church was a stranger to papal authority ; and laws were made to restrain appeals to it. Even where there is a right, it may be left without a remedy by the claimant’s negligence permitting a lapse of time. The canon law fortifies a colourable possession, the enjoyment of which has been permitted for a certain time, for one year, or for three years.
    
      
      Corp. Jur. Can. Extrav. Com. L. 1. tit. 3 c.un.Bonif.
    
    
      2 Scbram.Insl. Jur.Ec. 153.
    
      
      4Comm. 103. 3 Comm. 242.
    
    Fleur. Inst. Jur. Ec. 347. Schram. 252.
    
      Befom. Mor. Christ. 96. 3 Schram.Inst. 292.
    
    
      Can. Cone. Trid.62. 102, 195.
    
    
      Conf. of Faith 101. Larg. Catech. 235,
    
    2 Comm. 253.
    6. The censure of the bishop of Baltimore is not regular. It is invalid for informality. There ought to have been three admonitions previous to it, in the presence of witnesses ; unless the censure be by law, which is public to all.
    7. Notwithstanding a suspension, or even excommunication, a priest remains a priest. He may administer the sacrament of the mass, though under a mortal sin. He may confess and absolve. A priest though he do not preach is not less a priest. A priest cannot become a layman. The laying on of hands gives the holy spirit, which cannot be taken away. To suppose otherwise would be inconsistent with the presumption on which the ordination is founded, that he is in a state of grace. The perseverance of saints is an established doctrine of the Calvinist church. The elect cannot fall away. The spirit of God cannot be taken away by the censure of the church. A priest who holds an estate, on condition of saying mass, is not affected by any interdict or censure of the church.
    8. This estate was vacant, and acquirable by the first occupant, qualified for performing the condition. It was not to be given by the executors, or by the bishop. Any Catholic priest, who should first set his foot on it might take it, hold it, and transmit it to his successor. Occupancy is a title known to the law, the taking possession of things belonging to nobody. This estate was of that description.
    Young, for the plaintiff.
    All sects of religion are protected by our laws ; and, if an intruder be indulged in possession of property belonging to the Roman Catholic church, the same thing will happen in every church.—This case must be decided with a due regard to the rules of the church of which the defendant is a member. If this man controvert the rules of the church of which he 
      prosesses to be a member, he is not a pastor ; to use with due respect the language of holy writ, “ he cometh not in by the door, but climbeth in at a window, and is not the true shepherd, but a thief and a robber.”
    Apost.Con. 12.
    
      Gangram. Can. 6.
    1. The defendant’s counsel has contended, that his priesthood is so sacred, that he cannot be devested of it.
    I shall not dispute whether the defendant be in a state of grace, or not. All I will say is, that, if he be, he has, by contradicting the solemn obligations which he has taken upon him, not shewn any marks of grace.
    No human authority can take from him his skill in divinity, sacred history, and spiritual gifts. But because he possesses them, has he a right to exercise them, wherever he pleases. I shall suppose a compleat scholar, bred at the university of Oxford, instructed as a lawyer at the inns of court, and in Westminster Hall advanced to the degree of sergeant or king’s counsel, arrives here ; is he intitled, without any other formality, to appear at the bar of any court in this country ? Let Dr. Fromm, with all his gifts of learning and grace, retire to his own country, and there exercise them, where the exercise of them was first permitted.
    The rules of his church declare, that, if any priest leave his parish, and continue in another without his bishop’s consent, he must no longer perform his liturgy ; and, if, when his bishop calls him back, he persist in his irregularity, let him communicate as a layman. If any man will have ecclesiastical offices performed without a priest constituted by the consent of the bishop, let him be anathema.
    
      Fromm acknowledged the authority of bishop Carrol, and accepted an appointment from him. Then he was a wretched beggar, having squandered his money, unable to pay his passage from Germany, and was nourished by the liberality of the bishop. Now, having obtained what he thinks an estate, secured to him for life, he sets the bishop and the world at defiance. He has violated his sacred obligation of subjection to his superior, the bishop of Baltimore ; and, for this contumacious offence has been interdicted and suspended, and is no longer a priest qualified for the regular exercise of spiritual functions.
    
      2. This is said to be a foundation for saying masses yearly, for the soul of Mr. Browers. This is too absurd to be supposed in a man of such learning and sense, as Mr. Browers possessed. Browers gave this estate to enable a poor Catholic congregation to support a priest regularly admitted to administer instruction and the sacraments to a flock which he loved. He gave it to his successor duly appointed according to the rules of his church. Successor will be construed as a priest regularly inducted into the care of the souls of this congregation, over which Mr. Browers exercised pastoral functions. Suppose Mr. Browers alive, and to present to this cure on his foundation, he could not, without the consent of the bishop ; for the bishop may reject an unqualified presentee of the patron.
    
      Can. Conc. Trid. 229. 103.
    The true point in this case is, whether the executors have a right to eject this intruder. I conceive they have a right to keep possession, till the ecclesiastical superior induct a proper tenant under the will. The will directs, that his debts and funeral expences should be paid. It says not out of what fund. The personal estate has been, dilapidated by such another reprobate as the defendant. The real estate, then, must be a fund for payment of debts. All authorities of this kind will be liberally construed. A man who leaves this world without making provision for the payment of his debts must remain in purgatory. The executors had no right to present an incumbent ; but they had a right to take care of the estate, till an incumbent came. They could expend money in improvement of the estate, erecting a tomb, &c. Hence results an authority over it as special occupants, to fulfil the intention of the testator. This objection, like that to the jurisdiction of the bishop of Baltimore, lies not in the mouth of Fromm, who has admitted the authority of the executors, by applying for their fanction annexed to his solemn instrument of taking possession. Fromm turns, as he states, to the east, west, north, and south ; and does not, like each of the two antient patriarchs, content himself with two of the quarters, but takes all. And now he contends, that, possession having been acquired by him, with the consent of the executors, their power is exhausted, The whole transaction of his occupancy is fraudulent, and the law will give no efficacy to it. He imposed himself on the executors and congregation as a priest appointed by the bishop to officiate in that congregation. And, when suspected and detected, he agrees to give up his possession at the will of the bishop. He goes not to the bishop for authority, remains in possession, and, at the end of the year, the cunning old priest fraudulently obtains and destroys the only paper, as he thought, which could destroy his new claim to the perpetual enjoyment of this estate, by virtue of his inherent spiritual power of saying masses ; and sets at nought the sacred duty, which Mr. Browers must chiefly have had in view, the care of the souls of this congregation. And, to confirm his estate, he resorts to triennial possession. But this is where there is a colourable title. However, we have nothing to do with the canon law, as to the possession of an estate.
    
      Hargr. Co. Lit. 42. a.b. 183, b.
    
      Bull.Ni.Pri. 170, 177.
    2 Eq. Ca. Abr. 193.
    
    The law, which abhors wrong, will not work a wrong. The law regards a less estate by right, rather than a larger by wrong. Where the grant cannot take effect according to the letter, the law will make such construction, as that the gift may take effect. In debt for rent, the tenant cannot plead nil habuit in tenementis ; for the indenture concludes both. An estate was left by will to B. his heirs, executors, and administrators, in trust, for the use of dissenting ministers, in places where the people are unable to allow them suitable maintenance. The trustee died before the testator. It was held, by the lord chancellor, that the trustee was but an instrument, to convey the legacy to those for whose use it was intended, and that, notwithstanding his death, the charity itself, which was the substance and reason of the devise, is still subsisting, and may be answered as fully, by the aid and directions of the court of Chancery, as if the legatee were alive. Whatever rules would be adopted in favour of protestant dissenters in England, will be applied to Catholics here.
    Brackenridge, for the defendant.
    Mr. Fromm came into America a priest of unquestionable character. He having acknowledged the jurisdiction of bishop Carrol, by accepting an appointment from him, I wave the question of the publication of the bull, I wave also the necessity of monitions, and admit that Fromm has been legally suspended.
    I rest on the distinction between an estate to which cure of souls is annexed, and one depending on particular functions. A priest once is a priest always. Grace given can never be lost. Here is an estate given on condition of saying masses. No censure can deprive a priest of this power. If a man has acquired an estate, and disposed of it, as he thought proper, will you apply it to another purpose ? The executors are not to have it and keep it. A priest is to get it, and transmit it to a priest, and so forever : and the possessor is to perform the service of saying four masses yearly for the soul of Mr. Browers. On the death of Browers, this estate was vacant, to be taken possession of by any priest, as a special occupant. Fromm took possession in a solemn manner, under the will, without any consent of the executors. This made Fromm’s title for life complete, and the subsequent transaction, of the article for one year, is either misrepresented, or cannot be supposed to devest him of his interest. The executors had either no power, or none to lease for a year. Whenever they gave possession, they were functi officio. This is a private estate to which no cure of soul is annexed.
    Semple, for the plaintiff.
    
      Browers left this estate for the benefit of his poor congregation incapable themselves of supporting a priest. Fromm comes forward pretending himself qualified. This is a fraud and vitiates the contract with the executors. Fromm’s letter to bishop Carrol acknowledges his jurisdiction, and prays his consent to admission to this congregation. Fromm can only acquire title to this estate with the consent of the bishop of Baltimore, whose jurisdiction he cannot controvert.
    Suppose the ghost of Browers hovering over us now, would he not blush for the conduct of his unworthy successor ?
    Suspension incapacitates from discharging the duties prescribed by the will.
   President.

This case has been argued with ingenuity, and with good sense. Much canonical learning has been expended, the discussion of which I do not think necessary, in deciding this case on its merits.

It is to be regretted, that people will apply to ignorant men to write wills and other papers affecting property. Had this will been written by a man of any skill, competent to express the meaning of the testator, all this dispute might have been avoided. The testator himself had but little acquaintance either with our laws or our language. As the will stands, the meaning of the testator seems to be discoverable ; and, if it be, we ought, if confidently with established rules, it be in our power, to carry it into effect.

Theodorus Browers, a priest regularly exercising pastoral functions in a congregation, was desirous of extending to this congregation his good will and services beyond his life. With this view, he made his will and devised this estate to the priest who should succeed him, and to his successors forever. And on this succeeding priest, and every succeeding priest for the time being, he imposed the duty of saying masses. As I view this will, therefore, no man could be legally admitted to the possession of this estate under the will, but one qualified to succeed Mr. Browers in the discharge of the pastoral duties in this congregation, according to the rules of the Roman Catholic church. When one so qualified to succeed Mr. Browers, in his pastoral charge, is admitted into the possession of this estate, he must, to retain this possession, continue to discharge the pastoral functions in this congregation according to the rules of this church ; and, besides those pastoral duties, he must say four masses yearly for the soul of Mr. Browers.

I lay out of the question all discussion, whether a priest can, by any sentence of the church, be reduced to the state of a layman, and disqualified from saying masses, or dispensing any of the sacraments. It will be sufficient for me to ascertain whether Fromm, according to the rules of the Catholic church, was qualified to take, and is qualified to retain, possession of this estate, under the will as I have construed it.

On the construction, which I give the will, he was not qualified to take possession of this estate ; for he was not regularly admitted to exercise the pastoral functions in this congregation ; and this estate was devised for the use of a priest regularly admitted to the discharge of those duties, who should also, besides those duties discharge the other duties of masses for the soul of Mr. Browers. His disqualification has not been removed, but confirmed by the interdict and suspension.

Had this been an independent congregation acknowledging no superior authority or appellate jurisdiction over their internal concerns, his priest’s office, and the assent of the congregation might have been a sufficient introduction of him into the enjoyment of this estate. But, in other Christian churches, there are grades of jurisdiction, general and national councils, general assemblies, synods, and presbyteries ; pope, patriarch, metropolitan, suffragan, arch-bishop, and bishop. As, in churches of the presbyterian form, no minister can be regularly qualified to discharge the pastoral functions in any congregation or parish without the appointment of the presbytery of the bounds ; so, in churches of the episcopal form, without the appointment of the bishop of the diocese.

The bishop of Baltimore has, and before, and at the time of Fromm’s taking possession of this estate, had the sole episcopal authority over the Catholic church of the United States. Every Catholic congregation within the United States is subject to his inspection ; and, without authority from him, no Catholic priest can exercise any pastoral functions over any congregation within the United States. Without his appointment or permission to exercise pastoral functions over this congregation, no priest can be intitled, under the will of Browers, to claim the enjoyment of this estate. Fromm has no such appointment or permission, and is, therefore, incompetent to discharge the duties, or enjoy the benefits, which are the objects of the will of Browers.

We cannot suppose, that Mr. Browers intended, that his estate should be enjoyed by any vagrant irregular priest, who might happen first to occupy it. He surely meant a priest regularly established as pastor of this congregation. I feel it a duty to strain every expression against the construction, that this is a foundation of masses for the soul of the dead, without any care of the souls of the living. And I find expressions in this will, sufficient to satisfy me, that Browers devised his estate to his successors in the pastoral duties over that congregation.

With this opinion, it is not to be supposed that I should consider the possession of Mr. Fromm, acquired as it was, otherwise than as the possession of an intruder without any right. He himself seems in an honest moment, to have considered it in the same light, and solemnly agreed to give it up, if the bishop did not consent to his establishment as priest in that congregation.

I have no hesitation in saying, that the defendant has no right.

The next question is, whether the executors are the proper persons to make a lease on which to support an ejectment.

We have no court of Chancery in Pennsylvania, so superintend the execution of trusts. Perhaps it would have been proper to apply to the legislature, to vest the estate in trustees for the uses of the will of Theodorus Browers. As the case stands, no persons are more proper, as lessors, than the executors. They have a right to possession for some purposes, to build a tomb, &c. I have no inclination to look, with an eagle’s eye, into every defect in point of form, when I am so clear, that the defendant has no right to possession. At any rate, I am not now prepared to say, that, on this ground, there ought to be a verdict for the defendant. If the executors be incompetent to make a lease, on which to support an ejectment, the defendant may obtain the deliberate opinion of this or a superior court. Now, I think, there ought to be a verdict for the plaintiff.

The jury found a verdict for the plaintiff.  