text:
    Stone vs. Morgan and others.
    1844. April 2.
    Where the personal representatives of the decedent are cited to account before the surrogate, by the next of kin, but such representatives do not take the proper steps to cite the creditors so as to make the accounting final; and the surrogate takes the account so far as the estate has been administered, and decrees payment of a balance found due to the next of kin, but directs that the representatives shall render a further account of the estate in their hands when required to do so ; the decree of the surrogate is not a decree for the final settlement of the account within the meaning of the provisions of the revised statutes, so as to give the parties three months to appeal. But an appeal must be entered within thirty days after the entry of such decree.
    In cases where the time for appealing is limited by statute, the appellate court is not authorized to extend the time for appealing. And where the appeal is not entered within the time allowed by the statute, it will be dismissed ; unless the objection, that the appeal was not brought in time, has been waived by the adverse party.
    This was an application to dismiss an appeal from a decree of the surrogate of the county of Monroe. The respondents, as the representatives of S. Morgan, the next of kin of J. Morgan deceased, cited the appellant, as the administrator of J. Morgan, to account • as authorized by the 52d section of the article of the revised statutes relative to the duties of executors and administrators in rendering an account and in making distribution to the next of kin. And such administrator rendered his account, which was passed upon by the surrogate. And the surrogate made a decree declaring the rights of the respondents, as the personal representatives of the next of kin of the appellant’s intestate, and decreeing the payment of a balance in the appellant’s hands, of the assets collected by him ; except the sum of $68,85, which he was permitted to retain, to meet an unliquidated claim against the estate ; the appellant not having cited the creditors to attend the settlement of his account, so as to have a final settlement thereof. This decree was entered on the 26th of May, 1843, and the appeal was not filed until the 25th of August thereafter.

      M. T. Reynolds, for the appellant.

      E. F. Smith, for the respondents.
   The Chancellor.

The petition of appeal was filed one day too late ; but the delay is fully excused, by the irregularity of the mail. And the neglect to procure the transcript within the twenty days is also satisfactorily accounted for. But as the time within which the appeal was to be brought depended upon a statutory regulation, and.not upon the rules or practice of the court, if the appeal was not entered with the surrogate within the time allowed by law for appealing, the objection is fatal, if it has not been waived by the respondent, and the appeal must be dismissed. (1 Paige’s Rep. 423. 2 Id. 413.) An appeal to this court, from a decree of a surrogate for the final settlement of the account of an executor, administrator or guardian, may b'e made within three months after the decree is recordéd. And six months is allowed to appeal from a decision of a surrogate as to the appointment or removal of guardians. But in all other cases, not otherwise limited by law, appeals from the orders, decrees and sentences of surrogates, to the court of chancery, must be made within thirty days after the making of the decree, order or sentence-appealed from. (2 R. S. 610, § 107.) And if the decree appealed from in .the present case is not a decree for the final settlement of the account of this administrator, within the true intent and meaning of the provisions of the revised statutes on that subject, (2 R. S. 94, § 67, Idem, 618, § 105,) the appeal should have been brought within thirty days after the decree was made and entered by the surrogate, on the 26th of May, 1843.

In the case of Bronson v. Ward, (3 Paige's Rep. 189,) this court decided that a decree of the surrogate upon the taking of an account against an administrator, made upon the application of creditors of the estate, but without citing the next of kin of the intestate to attend the settlement of the account, as directed by the statute, (2 R. S. 93, § 60,) was not a decree for the final settlement of the account of ■the administrator ; and that an appeal could not be brought after the expiration of thirty days from the time of entering the decree. Here the administrator is cited to account upon the application of the personal representatives of the next of kin of the decedent; but such administrator has neglected to take proper steps to cite the creditors of the estate to attend the settlement of the account. And the surrogate has not made a decree for the final settlement thereof, either in form or in substance. For in the first place he allows the appellant to retain a portion of the moneys actually received by him, for the purpose of meeting an unliquidated claim against the estate of the decedent, made by a creditor, or so much of that claim as may afterwards be ascertained to be due. And secondly, he declares in the decree that there are other assets belonging to the estate of the decedent, remaining in the hands of the administrator to be administered, which are not charged in the account, and that the administrator is to render an account thereof when he shall hereafter be required so to do.

The motion to dismiss the appeal must therefore be granted; with costs to be taxed.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Partridge vs. C. & A. Havens.
    1844. April 2.
    Where the defendant in a judgment, who was imprisoned upon a capias ad satisfaciendum, subsequently obtained his discharge under the act to abolish imprisonment for debt, and made an assignment of his property ; and the assignees afterwards conveyed all his interest in his real estate, to the plaintiff in the judgment, without any consideration whatever; Held, that such conveyance was invalid, and transferred no right to the equitable interest of the judgment debtor in the land to the grantee in such coveyance.

      Held also, that by the arrest of the judgment debtor upon the ca. sa., and by his subsequent discharge under the insolvent act, his equitable interest in his real estate passed to his assignees discharged of any equitable lien thereon by virtue of the judgment.
    Where the wife is entitled to an equitable provision for the support of herself and her children out of a legacy given to her by a deceased relative, which legacy the husband has not reduced to possession, that equity is a sufficient consideration for a post-nuptial agreement, of the husband, that a part of the legacy shall be secured for the use and support of the wife and her children.
    If a father pays the consideration money, upon the purchase of real estate, and takes a conveyance of the estate in the name of his child, the legal presumption is that it was intended as a gift, or advancement for the child, and not as a trust for the benefit of the father.
    Where the wife holds the proceeds of a legacy as her separate estate, under an agreement with her husband which is valid, and she afterwards invests it in the purchase of real estate, in the names and for the benefit of her children, the creditors of the husband are not entitled to an interest in the land by virtue of any resulting trust in their favor.
    This was an appeal from a decree of the late assistant vice chancellor of the ñrst circuit. The bill was filed againt the defendants, who were the infant children of Nathaniel Havens and Abigail his wife, to obtain a conveyance of the legal title to about twenty acres of land in the town of Riverhead. The grounds of the claim, as alleged in the bill, were that the premises in equity belonged to N. Havens the father, by virtue of a resulting trust; and that he had procured the legal title to be conveyed to the defendants for the purpose of defrauding the complainant in the collection of a judgment against N. Havens. The infants put in a general answer by their guardian ad litem, and the cause was heard upon pleadings and proofs. The facts, as established by the proofs, were substantially as follows: The brother of Abigail Havens, the mother of the defendants, died about the year 1817, and by his will gave to her a legacy of $500. By her consent, about $200 of the legacy was paid, by the administrator of the brother, in discharge of debts due by her husband previous to such brother’s death. The residue of the legacy was suffered to remain for some time, in the hands of the administrator, for the purpose of being appropriated exclusively for the benefit of Mrs. Havens the legatee. But she, afterwards, apprehending that the moneyowas unsafe in his hands, consented that the money should be collected by her husband, under an express agreement with the husband that the money, if collected, should be appropriated solely to the benefit of herself and her children. Under that agreement the husband received $150, towards the legacy, about the last of August, 1819, which sum was loaned immediately thereafter to Thomas Youngs, for the benefit of Mrs. Havens and her children; but the note therefor was taken in the name of the husband. In September, 1821, the husband collected the residue of the legacy, $200, and delivered the same to his wife. She loaned it to John Downs, upon an understanding that it was loaned for the benefit of herself and her children. Downs delivered her a memorandum of the amount lent; but as he died shortly after, and as the debt was subsequently settled by his executors, the memorandum was not produced ; nor did it appear whether it was a note, or in whose name it was taken. An arrangement was after-wards made by N. Havens and wife, through the intervention of Joshua Downs, by which $136 of the money loaned to Youngs, and the $200 loaned to John Downs, were to be invested in the purchase of the premises in question, from the executors of the latter, and which premises were to be conveyed to the children. This arrangement for the purchase of the premises to be conveyed to the defendants, and to be paid for with the proceeds of this part of the legacy, was made at the particular request of Mrs. Havens, their mother, and with the approbation of her husband. In pursuance of the arrangement, the executors conveyed the premises to Joshua Downs, on the 19th of April, 1822; who gave to them his own note for the residue of the purchase money beyond "the $200 due from their testator. The next day Joshua Downs conveyed the premises to the defendants, according to the agreement which had previously been made. And Youngs gave his note directly to Joshua Downs, for the $136 for which the latter had given his note to the executors; and the original note given for the money loaned, and on which that amount was then due, was given up and cancelled.
    In January, 1822, the complainant recovered a judgment against N. Havens, in the Suffolk court of common pleás, for $239,87, upon two sealed notes given in 1807 and 1808. On that judgment a fi. fa. was afterwards issued, upon which the sheriff returned that the defendant therein had no goods or chattels in his bailiwick. A ca. sa. was afterwards issued, upon which the defendant was arrested and imprisoned. He subsequently applied for a discharge under the act to abolish imprisonment for debt in certain cases; and in November, 1822, under an order of the judge, he made an assignment of all his property to J. Downs and W. Griffing, as directed by the statute. On the 27th of January, 1824, the assignees, for the nominal consideration of one dollar as stated in their deed, but without any consideration whatever as they both testified, conveyed all their right and interest in the premises in question to Asa Partridge, the complainant in this suit.
    The assistant vice chancellor decided that the purchase money of the premises belonged to N. Havens, the husband of the legatee, and that the transaction created a resulting trust in his favor, so that he might have compelled a conveyance of the premises to himself • but that the assignment executed by him, under the insolvent act, transferred all his interest in the premises to his assignees, for the benefit of his creditors generally, and that the conveyanee from the assignees to the complainant was therefore invalid. And he dismissed the bill, with costs.

      T. Fessenden, for the appellant.
    Upon the conveyance of the premises in question to Downs, the consideration therefor having been paid with the money and notes of N. Havens, a trust in the premises resulted to Havens. Such trust can be proved'by parol. Upon the conveyance to Downs, the judgment of the complainant became a lien on the premises ; and such premises might have been sold under the judgment. (1 John. Ch. Rep. 583. 3 John. Rep. 216. 1 John. Cas. 153. 1 John. Ch. Rep. 45, note. 11 John. Rep. 91. 1 John. Ch. 405, 437. 2 Story’s Eq. 443, § 1201) The conveyance by Downs to the defendants was voluntary and without consideration, and void as to the creditors of their father. (3 John. Ch. Rep. 492. 4 Id. 450. 2 Story’s Eq. 440, § 1197.) The legacy having come to the hands of oHavens, his wife ceased to have any right to control or direct it. (3 Bac. Abr. p. 289, tit. Baron and Feme, C. 3. Idem, 290, D.) The discharge of N. Havens under the act to abolish imprisonment for debt, placed the complainant in the same situation he would have been in, if he had never issued a ca. sa. against Havens. The right and interest of Havens in the premises passed to his assignees, subject to the complainant’s lien. Such lien continued in equity, if it did not at law. The conveyance from the assignees to the complainant passed to the latter the equitable title. The debt of Havens to the complainant was a sufficient consideration to support the conveyance. The complainant having the equitable title, is entitled to a conveyance from the defendants, who stand in the place of Downs the original trustee.

      E. H. Ely, for the respondents.
    The proper persons are not parties to the bill. The assignees of Havens and Downs should have been made parties, (Edw. on Parties, 162, 163;) and the bill should have been filed by the complainant on behalf of himself and all other creditors of N. Havens. The purchase of the complainant from the assignees of Havens was in violation of the act against champerty and maintenance. (1 R. L. of 1813, p. 173. 1 John. Rep. 345. 5 Id. 489. 7 Id. 251. 8 Id. 479.) And the assignees had no right to give such a conveyance to the complainant without consideration. The premises in question were not conveyed by Havens to his assignees, nor were they intended to be ; and if they were, the deed to the complainant was in fraud of the other creditors of Havens. But if the deed to the complainant is valid, his remedy is at law in an action of ejectment; and chancery will not aid him. (6 John. Ch. Rep. 222.) If the judgment of the complainant was a lien on the premises, such lien was discharged when Havens was arrested on the ca. sa. When Havens was imprisoned on the ca. sa., the debt of the complainant was, at the common law, discharged. (1 Cowen, 56.) The act under which Havens was discharged, kept it alive only in reference to the future acquisitions of Havens. It was extinguished as to the property which Havens had at the time of his assignment. Havens, by appropriating the. legacy of his wife to the purchase of real estate for the use of herself and children, only did what a court of equity would have compelled him to do. (1 John. Ch. Rep. 153. 2 Id. 537. 3 Id. 129. 5 Id. 461. 6 Id. 225, 25, 178. 1 Atk. 190. 2 Id. 518. 2 Ves. 190. 9 Id. 369. 10 Id. 139, 145.)
   The Chancellor.

If the complainant had filed his bill as a judgment creditor of N. Havens, for the purpose of reaching an interest in this property which still belonged to his debtor, or to reach it upon the ground that it had been conveyed to the children in fraud of the complainant’s rights as a creditor, the objection made in behalf of these infant defendants that the judgment debtor should have been made a party, would have been well taken. And as infants cannot be prejudiced by the neglect of their guardian ad litem to make such an objection in the answer, the objection may be raised by their counsel at the hearing. But if N. Havens ever had any interest in the premises, as a resulting trust, or otherwise, the assistant vice chancellor is clearly right in supposing that such, interest passed to the assignees by virtue o-f the assignment of November, 1822. And if their subsequent conveyance to the complainant was valid, he and the infant defendants were alone interested in the property, after that conveyance ; and no other persons were necessary or proper parties to the bill in this cause at the time of filing it in May, 1824.

But the assistant vice chancellor was clearly right in supposing that the complainant acquired no title to the premises, either legal or equitable, under the conveyance from the assignees. I have not been able to find any evidence whatever from which I can pres.ume that the conveyance was intended to be made in payment or satisfaction of the complainant’s judgment, or of any part thereof. That judgment was for several hundred dollars; and yet the nominal consideration inserted in the conveyance from the assignees is but one dollar. Even that nominal sum was not paid; for the assignees were examined as witnesses, and both testified that they received no consideration whatever for the conveyance. And no agreement appears to have been made between the parties to that conveyance that even the one dollar mentioned therein should, in any event, be applied upon the judgment. Nor does the complainant allege in his bill that there was an agreement to receive that conveyance in payment, or in part payment, of his judgment against N. Havens. On the contrary, he expressly avers and charges, that with the exception of a very small sum collected by the sheriff upon the execution, the whole amount of the judgment, with the interest thereon, is still due to him. Even if there were no other creditors in this case who "were entitled to share in the proceeds of the assigned property, the assignor would be entitled to have whatever his interest therein was worth applied upon the judgment ; so that his future earnings might not be liable for the whole amount of the debt.

The effect of the arrest of the defendant in the judgment, upon the ca. sa., and of his subsequent assignment and discharge under the act to abolish imprisonment for debt in certain cases, (Laws of 1819, p. 117, § 6,) was to vest all the property and effects of the defendant who was thus arrested and in execution in his assignees, discharged of any legal or equitable lien which the plaintiff in the judgment might have had therein before such defendant was arrested on the ca. sa.; but to leave the judgment in full force and effect as against any property which N. Havens might acquire subsequent to the assignment. If the equitable title to the premises in question, therefore, was in the judgment debtor at the time of the assignment, by the operation of a resulting trust or otherwise, the complainant can claim no interest in the property, by virtue of the right which he originally had to an equitable lien, under the provisions of the fourth section of the act concerning uses. (1 R. L. of 1813, p. 74.) For by changing the judgment debtor in execution, he lost his lien, if it previously existed ; and he can now only claim an interest in the premises through the assignees. And this voluntary conveyance from the assignees, without consideration and in violation of the trust upon which the interest, if any, of the judgment debtor in the premises had been assigned to them, furnishes no sufficient foundation for an application to the equitable powers of this court for relief. The bill, therefore, was properly dismissed upon that ground alone.

Again; I think, upon the facts of this case, that the assistant vice chancellor was wrong in supposing that there was even a resulting trust, as to the premises in question, in favor of N. Havens. The wife had an equitable right to. a support for herself and her infant children, out of the moneys given to her by the will of her brother; which equity the court would have protected and enforced at any time before the legacy was reduced to possession by her husband. That equity was a sufficient consideration for the agreement between her and her husband, that the balance of the legacy still due from the administrator should, if collected by the husband, be appropriated for the benefit of herself and her children solely. For if the husband had not consented to that arrangement, she might have applied to this court to protect her equity in the fund. And a post-nuptial contract between husband and wife, founded upon a sufficient consideration, by which property is set apart for her separate use, although void at law, will be sustained in equity. (Garlick v. Strong, 3 Paige, 440.) That such an agreement was made in this case, previous to the receipt of the two sums of money, due upon the legacy, which subsequently formed the sole consideration for the conveyance of the premises in question to Joshua Downs, and through him to these defendants, there can be very little room for doubt. The complainant has examined Mr. and Mrs. Havens as witnesses in this cause, and they both testify positively to such an agreement. And that the husband intended to carry this agreement into effect in good faith, after the receipt of the money, is evident from the fact that it was loaned upon the same understanding; although the parties do not appear to have been sufficiently acquainted with the law to take proper securities for the loans, in the name of a trustee, for the wife and children. This court converts the husband into a trustee for the wife in many cases, where it is necessary to protect her" equitable rights. And I am inclined to think that if the husband had taken these funds, which he had agreed should be held for the sole use of the wife and children, and had invested them in the purchase of this lot, and had taken the conveyance therefor in his own name, without her consent, it would have been the duty of the court to have declared a resulting trust in favor of his wife and children, in these premises, in consequence of this misapplication of the fund. If so, the conveyance to Joshua Downs would have raised a resulting trust in the premises in this case, not in favor of the husband, but a resulting trust for the separate use of the wife and children.

Both conveyances in this case, however, were but different parts of the same transaction, and were intended to carry into effect the agreement by which the wife consented that her interest in the fund should be conveyed directly to the children ; instead of having it secured for her separate use and the use of the children, according to the original agreement with the husband. The effect of the conveyances, therefore, is the same as if the conveyance by the executors of John Downs had been made directly to the defendants, under this new agreement, without the intervention of Joshua Downs. Looking upon the transaction in that light, there cannot be a pretence of a resulting trust in behalf of 1ST. Havens. But if the money which formed the consideration of the conveyance had belonged absolutely to him, in his own right, such an investment might have been a fraud upon his creditors, so as to raise a resulting trust in their favor, if necessary, to enable them to reach the fund in the hands of these defendants.

The general rule, previous to the revised statutes, undoubtedly was, that if a man purchased real estate and paid for it with his own funds, and took a conveyance therefor in the name of a third person, there was a resulting trust in his favor •, unless the person in whose name the conveyance was made could introduce some evidence to rebut the legal presumption of such a trust. But no such presumption arose where a parent advanced the purchase money, or consideration, and took a conveyance in the name of his child. For in such a case the law presumed the conveyance was intended as a gift or advancement to the child. (Lew. Law of Trusts, 169. 3 Sug. Law of Vend. 10th Lond. ed. 262.) Here the children were wholly unprovided for. And the testimony, instead of rebutting the presumption that the intention of the parents was to vest a beneficial interest in the premises in the children, shows that such was evidently their intention.

The decree appealed from must therefore be afiirmed, with costs.


text:
    Gable and others vs. Miller and others.
    1844. May 7.
    Where the trustees of a German Reformed Church which was in ecclesiastical connection with, and subject to, the church judicatories of the Dutch Reformed Church in the United States, attempted to dissolve the connection of such church with the classes to which it belonged, and employed German Lutheran pastors, without the consent of a large portion of the church and congregation, or of the classes with which the church was connected; and refused to permit the stated supplies provided by the classes to occupy the pulpit; Held, that such conduct of the trustees and their adherents was a diversion of the funds and property of the church from the purposes for which they were contributed by the original donors.

      ■Held also, that those members of the church and congregation who adhered to the original doctrines of the church, and who had continued their ecclesiastical connection with the church judicatories to which they were subordinate when the property of the church was acquired, and who had also kept up a proper corporate organization, by the regular election of the proper church officers, as trustees of the corporation, from time to time, were entitled to the temporalities of the church and to its books and papers.
    The court of chancery has jurisdiction to prevent a diversion of the temporalities of a church from the purposes for which they were devoted by the donors; and to require them to bo appropriated to the support of that form of worship, and to the teaching of those doctrines, for which they were originally intended.
    Whether the trustees of a church who have the legal control of its temporalities, can withdraw themselves from their ecclesiastical connection with the church judicatories with which such church is connected, upon the ground that such church judicatories have departed from the original doctrines upon which the church was established; or whether the decisions of such judicatories are conclusive, upon the churches ecclesiastically connected with them, as to what are the peculiar doctrines of their church, or denomination of Christians; Qucere ?

    This was an appeal, by the complainants, from a decree of the late assistant vice chancellor of the first circuit. The bill was filed by H. Gable and five other persons, as trustees, in behalf of themselves and their adherents, claiming to be corporators and members, and to constitute as such trustees the true and legitimate corporation or board of trustees of “ the corporation of the German Reformed Church, in the city of New-York,” to obtain the possession and control of the books and papers, seal, funds and other temporalities of such church and corporation. The cause was heard, upon pleadings and proofs, before the assistant vice chancellor, who dismissed the complainants’ bill.

      J. Graham & G. Wood, for the appellants.

      Clinton De Witt, for the respondents.
   The Chancellor.

To understand the questions arising in this case, it is necessary to refer to the history of this church and congregation from its first organization, between eighty and ninety years since. Its records only extend back to October, 1763 ; but its earlier history is contained in a letter transmitted to the classis of Amsterdam, in February, 1766, signed by the the then minister, eiders, and deacons of the church. This letter was received and read as evidence, in the cause, by the consent of both parties. It may be also proper to remark, that at the time the letter was written, this church had attached itself to the coetus of the Dutch Reformed Church here ; which coetus was then under the jurisdiction of the classis of Amsterdam, in connection with the synod of North Holland.

From that letter it appears that previous to 1758, many Germans had settled in New-York, who probably in their native country had been attached to the German Reformed Church, as contradistinguished from the German Lutheran Church. Such of them as understood the Low Dutch language, attached themselves to the Dutch Reformed Church in New-York. But as many of them could understand German preaching only, they were obliged to attend the Lutheran Church, or not hear the gospel preached. This deplorable condition, as they call it in their letter, induced them to make an attempt to establish the worship of God in their mother tongue. A meeting of the German Reformed members was therefore held, and a subscription gotten up for the support of a minister, and arrangements were made to procure a place for public worship. A building formerly occupied as a theatre, in Nassau-street, was purchased for $1250, and fitted up for a place of public worship ; and when completed the society found itself in debt to the amount of $2000.

About the time they got their church completed, in 1758, Dominie Rozencrantz, probably a clergyman of the German Palatines on the Mohawk, whose flock had been driven off and scattered by the Indians, fled to New-York, and was employed by this congregation as their pastor, for a year. At the end of that time he returned to his former charge ; and they then employed another clergyman, who had been stationed upon the Raritan. He, as their letter states, proved to be a wolf among the flock instead of a shepherd j and at the end of a year they were glad to get rid of him. They were then for some months without a preacher. But in the spring of 1761, a vessel arrived having on board a German Reformed clergyman. And they employed him for a year on trial, and finally gave him a call. He soon, however, got into difficulties with the church, and they had to resort to legal means to rid themselves of him ; which was finally effected.

Having learned from experience the danger of engaging ministers in this irregular way, they resolved to adopt a different course for the future. They therefore wrote to the consistory of Heidelburgh, in the Lower Palatinate, requesting them to send a suitable candidate for the ministry. That consistory sent over the Rev. J. M. Kern, who arrived at New-York in September, 1763. He probably had united himself with the classis of Amsterdam and the synod of North Holland before he left Europe. For a few weeks after his arrival, upon learning the situation of the church from its elders and deacons, he advised them to connect themselves with the classis of Amsterdam. On the 28th of October, 1763, the records of the church commence ; in which it is called the German Reformed Congregation in New-York.” A meeting of the consistory of the church and of some others of its advisory members took place on that day, at which meeting Dominie Kern presided. And it was then resolved that for the purpose of avoiding all misunderstandings they should join the classis of Amster- ■ dam, and the synod of North Holland ; for which purpose they solicited the aid of the Rev. Dominies Ritzema and De Ronde.

Those two gentlemen, as a matter of history, are known to have been at that time, and for many years before, ministers of the Reformed Dutch Church in the city of New-York ; and they continued to officiate as such until the British took possession of the city in 1776, when they retired into the country. At the same meeting it was resolved that a formal call should be made out for Dominie Kern, according to the rules of the Reformed Dutch Church; and Dominie De Ronde was requested to moderate the call, or, in the language of the articles of that church, to superintend the proceedings in the making of such call. Dominie De Ronde accordingly attended a meeting of the consistory and church on the 26th January, 1764, at which a formal call was made out and signed by the members of the consistory, and was countersigned by him, calling Dominie Kern, as the regular pastor and teacher of the German Reformed Church in New-York j in the form then used by the Dutch Reformed churches. He accepted the call, and notice was given that he would be installed as pastor of the church the next day, by Dominie De Ronde ; which, undoubtedly was done accordingly.

In June, 1764, the pastor gave notice that he had received an invitation from the Dominies Ritzema and De Ronde to attend the meeting of the coetus of the Reformed Dutch Church, which was to be held the next day. And referring to the resolution of the consistory, of the 28th of the preceding October, to unite with the classis of Amsterdam, he suggested that they should then give their conscientious vote upon the subject. It was thereupon resolved that, inasmuch as by subordination to the classis of Amsterdam the best interests of the church could be better promoted than by standing independent, the necessary credentials for that purpose should be duly prepared and signed. Credentials were thereupon drawn up and signed by the members of the consistory, directed to the ministers and deputies of the classis of Amsterdam, constituting the ecclesiastical meeting subordinate to the synod of North Holland. These credentials recited the resolution of the German Reformed church in New-York, of a previous date, to unite with the classis of Amsterdam; the invitation to their pastor to attend the meeting of the coetus ; and that they had again duly considered the measure and had unhesitatingly resolved to carry into effect the measure at the time or opportunity then afforded them ; and stated that they had accordingly, in fulfilment of such resolution, appointed and deputed their pastor and one of their elders to represent them, in subordination to the classis of Amsterdam, in such meeting, for the purpose of deliberating with the ministers and elders of the several churches, and passing such resolutions as might be deemed advisable, in accordance with the word of God and their church discipline, in reference to all matters which might then or thereafter be brought up for decision j for the furtherance of the best interests of the whole of the Reformed Dutch Church in this province^ and especially as related to the interests of their particular church. And that these delegates attended such meeting, and thus consummated the ecclesiastical union with the Reformed Dutch Church in New-York, and with the classis of Amsterdam, is evident from the letter before referred to.

About the close of 1764 a heavy fall of snow caused the walls of their church edifice to spread, so as to render it unsafe as a place of worship, and the congregation was permitted to use the Low Dutch church temporarily till their church could be rebuilt. The new church was erected at an expense of about $3000, of which amount about $1500 was raised by contributions for that object; leaving the society in debt in February, 1768, something more than $3300. This debt was probably paid off by contributions to the society previous to the revolution. For we hear nothing of the debt afterwards; and it appears by the records of the church that applications were sent to Amsterdam and London, for aid, as early as July, 1766. The corner stone of the new church edifice was laid on the 8th of March, 1765. And the proceedings which then took place are important, to show the nature and character of the uses to which the church property and the subsequent donations for the use of the church, previous to the revolution, were devoted by the donors. The record of that transaction states, in substance, that the then church council, as well as the former members thereof and the other members of the congregation, were invited to attend; and that the corner-stone was laid by Dominie Kern, their pastor, in their presence, with a repetition of the words of the patriarch Jacob,<£ This stone which I erect shall be a house of God.” He then said : ££ In the house to be built on this foundation stone shall be taught the word of God, pure and unadulterated, according to the reformed doctrines of Heidelburgh and Switzerland.” And thereupon foundation stones were also IaicT by each member of the consistory, repeating the expression££ for a German Reformed church.” This record is signed by the members of the consistory, and others, stating the times and places of their respective births. From which it appears that three of the members of the then church council were from the canton of Zurich in German Switzerland. In March, 1772, the Rev. C. F. Foering was called as pastor, and in May of the same year he was installed, as such, by one of the regular ministers of the Dutch Reformed Church in the city of New-York.

In October, 1771, the articles of union between the different Reformed Dutch churches in this country were formed, by the advice and direction of the classis of Amsterdam ; which articles were approved of by the classis, and by an assembly of the representatives of the different churches composing such union, the next year. By this union this church, and the Dutch Reformed churches with which it was in connection in this country, were virtually separated from the classis of Amsterdam, and the synod of North Holland, and were left to the spiritual regulation and control of their own church judicatories here. But no change in the doctrines of these churches took place ; net was there any change in their ecclesiastical organization, except such as the separation from the mother church of the Netherlands necessarily required. For the first article of the plan of union declares that they adhere in all things to the constitution of the Netherland Reformed Church, as the same was established in the church orders of the Synod of Dort. And on the 14th of June, 1772, previous to the meeting of the assembly of the Reformed Dutch churches, the consistory of the German Reformed congregation authorized its pastor, and also one of its elders, to represent it in the assembly which was then about to be held to confirm the articles of union, which had been preliminarily adopted the preceding year, and to assent to the same. They accordingly attended and subscribed the articles of union, in October, 1772. This church was thereafter regularly represented in the meetings of the classis of the Dutch Reformed Church in New-York, until the war of the revolution. Dominie Gebhard was its pastor at the time the British took possession of the city in 1776. He fled to the country, and accepted a call at Claverack, from whence he did not return. The members of the church were likewise scattered j but a few of them remained in the city, and by their influence with the Hessian officers preserved their church buildings.

From this statement of facts, it is perfectly evident that this church, not only at the time it was erected in 1764, but also before and after that time, down to the commencement of the revolution, was a Calvinistic church • in spiritual union with the Dutch Reformed churches in New-York, and agreeing with them in its doctrines and church government. The church was not originally founded upon the principle of independency in the ecclesiastical sense of the term, nor in fact in any other sense than that of temporary necessity. For it is a matter of history that the German Reformed churches of the Lower Palatinate, and of German Switzerland, sometimes called in the early history of the reformation the Zuinglian churches, "were organized upon the same plan as the churches of the Netherlands, and of Geneva and of Scotland : That is, with different ecclesiastical church judicatories subordinate to each other ; such as a church session or consistory, a presbytery or classis composed of the clergy and ruling elders as delegates from the different churches "within a particular district, and a synod composed of clerical and lay delegates as the representatives of the several presbyteries or classes in a larger territory. And if the doctrines of the pious founders of this church -were the same as those of the Dutch Reformed Church, it was in accordance with the object for which the society was organized, to put themselves under the jurisdiction and control of the judicatories of that church as soon as practicable.

That their doctrines, as well as their form of church government, were the same as those of the Dutch Reformed churches, is established by the testimony in the cause; which testimony is also in accordance with ecclesiastical history. The term " German Reformed church” was used, at an early day, to distinguish the Calvinistic protestant churches of Germany from the German Lutheran protestant churches ; the latter of which became semi-pelagian soon after the death of Luther, if they were not so from the commencement of the reformation. Although the confession presented at the diet of Augsburgh, on the 25th of June, 1730, is not explicit upon the doctrines of predestination and election, and of the final perseverance of those who have been regenerated by the Holy Spirit, the German copy of the twelfth article, according to Dr. Schmucker, contained a rejection-of the last of these doctrines ; which last is intimately connected with the other two.

The language of one of the condemnatory clauses of that article, in the German copy which was read in the diet, is as follows : " We reject the opinion of those who teach that such as have once become pious cannot fall from grace.” Very little was said upon those subjects at the commencement of the reformation, nor until after Calvin was called to the divinity chair in Geneva, in 1536, subsequent to the death of Zuinglius. Hence we cannot expect to find the five controverted points, of predestination, particular redemption, total depravity, effectual calling and final perseverance, afterward so prominent in theological discussions, set forth with any particularity in the earliest of the Helvetic and German confessions. Yet in the third section of the first article of the confession of Basle, written about 1532 in the German language, by the ministers of the church of Basle, and subscribed also by the pastors of Strasburgh, we find the following : “ Hereupon we confess that God, before he had created the world, had chosen all those to whom he would freely give the inheritance of eternal blessedness.” (Hall’s Harm. of Confess. 83.) Shortly after the death of Calvin, the doctrines which have since borne his name were incorporated, to a greater or less extent, into the confessions of all the protestant churches in Europe, except those of the Lutherans, Moravians, and a few others; and from fifty to sixty years previous to the meeting of the synod of Dort. The Heidelburgh catechism, though not in the form of a confession of faith was intended to have the effect of one, by the Elector Palatine, Frederick the 3d, by whose direction it was written and used for the purpose of having a uniform rule of faith in all the churches of the Palatinate.. It was published about 1563. And it is attributed to Olivianus, the minister of-Heidelburgh, and Ursinus the professor of theology in the Rupert Caroline University; one of the oldest seminaries of learning in- Germany. This university early adopted the Calvinistic doctrines, and bore a distinguished part in the ecclesiastical discussions of the reformation. I refer to these historical facts to rebut the presumption that the doctrines of the Heidelburgh catechism, which is a common standard of faith in the Calvinistic churches of Holland, German Switzerland, and Germany, varies in substance from the doctrines of the Low Dutch Church, upon the points of difference between that church and the Lutherans and other Armenian churches.

Even if Zuinglius, who was killed in 1531, had not in fact written any thing to indicate that his opinions upon what were afterward called and known as the Calvinistic doctrines, were not semi-Pelagian,his successor as the pastor of Zurich Bullinger, was unquestionably a Calvinist. For in the latter confession of Helvetia, re-written in 1566, two years after the death of Calvin, by Bullinger and the other pastors of Zurich, the doctrine of predestination is distinctly set forth. The following, among other things, is contained in chapter 10 of that confession, entitled, Of the predestination of God and the election of the saints. “ God hath from the beginning freely, and of his mere grace, without any respect to men, predestinated, or elected, the saints whom we will save in Christ, according to the saying of the apostle, See. Therefore, though not for any merit of ours, yet not without a means, but in Christ and for Christ, did God choose us; and they who are now en-grafted into Christ by faith, the same also were elected.” (Hall's Harmony, 81.) And this confession is the one which was subscribed not only by all the Zuinglian churches of the Tigurines, but also by their confederates of Berne and Schaffhausen ; and by the pastors of the churches of Sangallia, Rhetia, Mulhausen, and Bienna, of the Grison league. It is also said to have been signed by the churches of Geneva, Savoy, Hungary and Scotland. The 16th article of the Belgic confession, which was published about the same time, and the 12th article of the confession of France, adopted at the synod of Paris in 1559, are the same in substance as the Helvetic confession on this subject. The language of the French confession perhaps is somewhat stronger; at least it is more explicit. Neither of them, however, sets forth the doctrines of the five points, subsequently established at the synod of Dort, with the strength and distinctness of the articles of Lambeth, which were drawn up by the direction of Archbishop Whitgift in 1595, and sanctioned by his archiepiscopal brother of York; nor with the clearness of the Calvinistic articles of the church of Ireland, which were adopted in the convocation of the church of Dublin, twenty years afterward. For the articles of Lambeth, which were incorporated into the articles of the church of Ireland by Archbishop Usher and Ms associates, were as strongly and as decidedly Calvinistic as the subsequent canons of the synod of Dort. In addition to the Heidelburgh catechism, a Calvinistic confession of faith was drawn up by the direction of John Casimir the Elector Palatine, in the latter part of the sixteenth century, for the reformed churches of the Palatinate. It is not, however, referred to in the Harmony, and I have no certain knowledge of its contents. But we may safely infer that its doctrines were the same with those of the reformed churches of Helvetia and of Geneva, &c. from the fact that John Casimir was a Calvinist, and that the doctrines of the palatine confession, as well as of the Heidelburgh catechism, were objected to by the remonstrants at the synod of Dort; which objections were presented to the synod in writing. (2 Toplady’s Works, Lond. ed. 1825, p. 250. Hale's Remains, 55.)

It is not necessary, however, to go back to an earlier period than the synod of Dort, to ascertain the probable harmony between the doctrines of the Dutch Reformed Church of Holland, and those of the reformed churches of German Switzerland, and of the German Reformed churches of Heidelburgh or the Palatinate, &c. subsequent to that time, down to 1763 j in relation to the questions discussed in that synod. The history of that synod, drawn up and published by authority, shows that previous to the convening of the synod, the civil government addressed letters to the king of England, to the Elector Palatine, to the elector of Brandenburgh, to the landgrave of Hesse, to the four reformed republics of Helvetia, Zurich, Berne, Basle, and Schaffhausen, to the republics of Bremen, Geneva, and Embden, and to the deputies of the reformed churches of France; all of whom were requested to send, as representatives to the synod, some of their own theologians, excelling in learning, piety, and prudence, who might earnestly labor,by their counsel and decisions; with the deputies of the Belgic churches, to settle the controversies which had arisen and to restore peace too the churches. And I believe the reformed churches of all these states were represented in the synod; except the elector of Brandenburgh, and the reformed churches of France. Neal says Nassau and Wetteravia were also represented in the synod. The deputies of the protestant churches of France were prohibited by an order of their sovereign from attending. Heylen, in his life of Archbishop Laud, says that the Dutch, antecedently to the calling of the synod, took care to invite to their assistance some divines out of all the churches of Calvin’s platform, and no others. This is probably true; for this invitation does not appear to have been extended to those German states whose churches adhered to the Augsburgh Confession, or to its cognate confessions of Saxony and of Wirtemburgh. It may safely be assumed, therefore, that the German Reformed and the Helvetic churches, which were represented in that synod were Calvinistic ; and that their doctrines, then and subsequently, down to the organizing of the church whose property is now in controversy, were in accordance with the decisions of the synod of Dort upon the controverted points. It is true some of their divines very justly condemned the persecuting spirit with which the remonstrants were pursued in the Netherlands. But the fact that the same persecution did not extend itself to the Palatinate, and to Switzerland, and other Calvinistic states, is no evidence that the churches of those states agreed with the followers of Arminius in their doctrines.

It is certain that the Protestant churches of France, whose delegates were not permitted to attend the discussions of that august assembly, afterwards approved of its decisions; in their national synod at Alez, in 1619. And no dissent whatever appears to have been made to the decisions of the synod of Dort by any of the foreign delegates, except the English divines; who merely protested against its decision as to the parity of the ministry, and asserted the superiority of the prelatical organization of their own church. (See 3 Fuller’s Ch. Hist., Lond. ed. of 1837, p. 279.) I have no doubt, therefore, that there was an agreement in doctrines, upon the five controverted points, between the Low Dutch church and the German Reformed and Swiss churches, from the time of the synod of Dort down to the time of the ecclesiastical union of the German Reformed congregation in New-York with the Dutch Reformed classis and churches in this country, previotis to the revolution.

Nor can I agree with the assistant vice chancellor that there is any satisfactory evidence, either as a matter of history or otherwise, of a fundamental difference in the doctrines of those churches in relation to the sacrament of the supper. If his honor had referred to the Heidelburgh catechism, and to the confessions of faith of the different churches on the subject, instead of resorting to the early writings of Zuinglius before the articles of faith of the churches were settled, I think he must have arrived at the conclusion that, at the time of the synod of Dort, the articles of the German Reformed churches of Switzerland and the Palatinate, as well as the articles of the protestant churches of France, England, Scotland, Ireland and of the Netherlands, were substantially the same as those of the present Dutch Reformed churches, on the question as to the presence of the Savior in the eucharist. They all rejected the Romish doctrine, that the bread and wine were actually changed into the real body and blood of our Lord by the consecration of the elements. And they also rejected the Lutheran. doctrine of consubstantiation, as contained in the tenth article of the Augsburgh confession ; that in the sacrament of the supper the body and blood of Christ were actually present, under the emblems of bread and wine, and were distributed to the communicants. But the confessions of all those churches, at that time, as well as the Heidelburgh catechism, sanctioned the idea of a spiritual presence of the Savior in the eucharist, and a spiritual reception of his body and blood by the pious communicant. Not, indeed, carnally, by the mouth, but mystically, by faith, as food for the soul. Even in the former Helvetic confession, written but five years after the death of Zuinglius, and by those who had been his fellow laborers in the churches of German Switzerland, the spiritual reception of the body and blood of the Redeemer in the sacrament of the supper is recognized. And in the latter confession of Helvetia, this doctrine is most distinctly set forth in the chapter entitled Of the Holy Supper of the Lord.” See also the same doctrine contained in the 36th, 37th and 38th articles of the confession of France ; and in the 35th article of the Belgic confession of 1566, confirmed by the synod of Belgium in 1579. When the foundation of the church in Nassau-street was laid, therefore, as a German Reformed church, where the word of God was to be taught pure and unadulterated accordingto the reformed doctrines of Heidelburgh and Switzerland, it was a dedication of the property to the worship of God according to the reformed Calvinistic doctrines of the Dutch Reformed, German Reformed, and Helvetic churches, as recognized in their then standards of faith; all of which doctrines, upon the five controverted points, were unquestionably understood to be in accordance with the canons of the synod of Dort; and as contradistinguished from the Arminian doctrines of the German Lutheran churches, both upon those points and upon the question of consubstantiation.

The fact that the minister, consistory, and church were then in actual ecclesiastical connection with the Dutch Reformed churches, and that no one at that time contemplated a separation, is conclusive to show that it was perfectly well understood that the ecclesiastical organization, as well as the doctrines, of this church was to continue the same in substance. Those who contributed to the funds of this society therefore, whoever they were, made their donations with the intention of dedicating them to the pious use of erecting and sustaining a place of worship and for the preaching of the gospel in accordance with such doctrines, and by pastors who were to be subject to the ecclesiastical control and jurisdiction of the ordinary church judicatories in such churches. It must be recollected, too, that the funds dedicated to this pious use were contributed subsequent to that time and in reference to these objects exclusively. For the debt of the society was then unquestionably more than the value of the site upon which the new church was to be erected.

The letter to the classis of Amsterdam of February, 1766, shows that the original price of the lot, a few years before, including the building which was subsequently used as a place of worship, was but $1250. And when the foundation of the new church edifice was laid, in March, 1765, the debt was $2000 ; the increase of such debt having been incurred in the reparations and changes in the old building beyond the amount of contributions for that purpose. For every practical purpose, therefore, the contributions which were afterwards made towards the erection of the new church edifice, and to pay off this debt, constituted the property devoted to this pious use. And those for whose use the donations were intended have a right to claim, that the property of this church shall be appropriated and applied to the support of the worship of God, and to the propagation of the doctrines and the administering of the sacraments of the church as then established ; unless the defendants can show that the trust has been changed by general consent of all persons interested therein, or that the diversion of the fund to other purposes has been so long acquiesced in as to constitute a bar by lapse of time.

It does not distinctly appear what were the particular doctrines taught in the church during the period which elapsed from the time when Dominie Gebhard was driven off by the British, in 1776, until the close of the war of the revolution. But from the church records, which were again commenced in 1783, it may be fairly inferred that the doctrines of the church had not been changed during that period. For Dominie Kern, who had been formerly settled in this church in ecclesiastical connection with the coetus of the Reformed Dutch Church, is stated to have officiated as preacher during most of that period. And it is then stated that some of the members of the church remained in the city during the war, and that they, with other persons of a similar faith who arrived from Europe and some who returned from the country, kept up an intercourse, by which their church building was preserved in good order.

The first meeting of the classis of New-York, subsequent to the revolution, appears to have been held in October, 1784. Previous to that time, however, it appears that this church had called the Rev. J. D. Gross, of Canajoharie, to be its minister, in December, 1783. It appears also by the records of this church that in May, 1784, Dr. Livingston, who was endeavoring to reorganize the judicatories of the Dutch Reformed Church, which judicatories had, to a certain extent, been broken up by the war of the revolution, applied to the consistory of this church and requested them to consult and decide whether they would send delegates to attend the meetings of those judicatories, and submit to their resolutions and decisions. The consistory thereupon decided that they never would unite with them ; and they entered upon their minutes the following as their reasons for such refusal:

" First, that the German Reformed Church in this city, notwithstanding it in former times sent ministers and elders to attend such meetings, whose names may appear on the minutes of said meetings, and this church may be recorded on the protocol of such meetings, yet by right it should be independent of churches of other nations and languages. Second, that such communion can never promote the. best interests of this church, because such church would be alone; and even if other German churches should join in, still they would be too few to acquire much influence in such meetings, where other languages are spoken which we cannot be supposed to understand, and where we dare not speak our language. Third, that it would be best for this church and German churches in general, to form a union together as soon as a greater number of preachers may be had in this state.” A committee was also appointed to inform Dr. Livingston of their decision. The consistory thereupon concluded to have the church incorporated, under the general act relative to the incorporation of religious societies, which had been passed in April of that year. And the certificate of such incorporation was duly recorded on the 11th of June, 1784. It is evident from this minute of the reasons for not then renewing the ecclesiastical connection with the calssis and synods of the Reformed Dutch Church, that it was not from any disagreement with them in doctrines or church government; but it was merely on account of differences in language, that this church resolved to break off the connection which had theretofore existed. Neither is there an intimation that the consistory of the church, at that time, thought of adopting the principles of independency. On the contrary, they were looking forward to the time when they might place themselves under the control of superior church judicatories, not of a different faith from those with which they had been previously connected, but merely of a different language ; a language which they could understand.

It may also be proper here to remark that all, or nearly all of the German Reformed churches in this country, previous to the revolution, were in some measure connected with the classis of Amsterdam and the synod of North Holland. And when the separation took place between the Low Dutch churches in this country and those European judicatories, the German Reformed coetus of Pennsylvania still continued its connection with, and its dependence, to a certain extent, upon the classis of Amsterdam-, for about twenty years longer. In 1795, Dominie Milledollar, who then belonged to the German Reformed synod of North America, was called as minister of this church. But no connection was then formed between it and any of the judicatories of the church to which he belonged, though it appears that an application was made for that purpose. In September, 1797, the classis of the Reformed Dutch Church of New-York signified its willingness to consider this church as one of its members, notwithstanding its neglect to send delegates for several years; and authorized it to take measures to produce testimonials respecting its pastor, so as to enable him to unite with the classis. In December, 1799, the consistory of the church unanimously resolved that the invitation of the classis of New-York should be accepted; and Dominie Milledollar was directed to make the necessary arrangements to carry the reunion into effect. He therefore obtained the assent of the synod of the German Reformed Church, with which he was connected, to unite himself with the classis of the Dutch Reformed Church of New-York ; and he united himself with that classis accordingly. And in September, 1800, this church was again represented in the classis, by its pastor and one of its ruling elders. The ecclesiastical connection with the classis which was thus resumed was thereafter continued ; with a short interruption, while the controversy between the adherents of Mr. Runkle and the trustees of the corporation was carried on, as reported in 9 Johnson’s Reports. Runkle had been irregularly called, without the sanction of the classis. But in April, 1811, Dominie Dryer was called, with the approbation of the classis, and accepted the call. Dominie Smith was subsequently called with the like approbation. And as there was a controversy in the church as to the regularity of his election as its pastor, the parties were heard before the classis before such call was approved. Dominie Labagh was called, in 1814, with the like approbation ; and he continued their pastor until April, 1822, when his pastoral relation with the church was dissolved by mutual consent, and with the approbation of the classis.

In April, 1822, the church edifice and church lot in Nassau street were sold, and the corporation erected its present house of worship, on one of its lots in Forsyth street which had been conveyed to the trustees of the corporation in 1784. Subsequent to 1822 the defendants and their adherents, claiming to be the legitimate trustees of the corporation and members of the church, have discontinued all intercourse with the classis of New-York, and have refused to submit to its superintending care and control. They have also called and sustained ministers belonging to the Lutheran Church, and others whose doctrines and church government were not in accordance either with the Dutch Reformed or with the German Reformed churches. It is evident, therefore, that the property and funds of this church have been perverted and misapplied to other objects than those to which they were intended to be devoted by the original founders and donors.

It is in vain to say that the clergymen employed instruct the church and congregation from the Heidelburgh Catechism ; which is one of the standards of the Dutch Reformed, as well as of the German Reformed and the Helve-tic churches. As well might it be said that the trustees of a Trinitarian Church did not pervert their trust by appropriating its funds to support a Socinian minister, because he instructed his hearers in the doctrines of the holy scriptures; which scriptures were recognized as the only infallible guide and rule of faith in the Protestant Trinitarian Church of which they were trustees. A very important object in the organization of the German Reformed, Dutch Reformed, and Helvetic churches, in connection with a classis and a synod, and in having the clergy called and employed under the supervision of those church judicatories, was to secure to such churches a ministry who were known to concur in doctrine, <fcc. with the denomination of Christians to which those churches were attached. And without such a supervision there can be no security that the peculiar doctrines of a particuliar denomination of Christians will be inculcated and explained by the pastor of the church.

It is not sufficient, therefore, to show that a clergyman of a different denomination who has been employed by the trustees, as the regular pastor of the church, has not preached the peculiar doctrines of his own confession of faith. For the object of the trust requires that the opposite doctrines, which are peculiar to the church of which he is the pastor, should be inculcated and enforced, occasionally at least. And it is not to be presumed that any Christian minister will preach doctrines which he does not in fact believe to be true. Ho arminian divine, therefore, can teach or preach the word of God “ according to the reformed doctrines of Heidelburgh and Switzerland,” in the sense in which that expression was used and understood by the founders of this church in March, 1765, when the corner stone of the church edifice in Nassau street was laid. The employment of such clergymen as regular pastors, or any other clergymen whose characters and doctrines were not to be subjected to the supervision of the church judicatories of the Reformed Dutch Church, or other church judicatories of the same religious belief, contrary to the wishes of a very considerable portion of the stated hearers and worshippers in this church and congregation, was therefore a clear breach of trust.

Although the classis of New-York was broken up and separated by the war of the revolution, and this church, after the termination of the war, declined for a time to unite itself with the reorganized classis, its members finally came in and unanimously resumed their former relation to that body, and continued such connection for more than twenty years. In 1823, therefore, this church was as effectually re-united to the classis, and to the superior church judicatories of the Dutch Reformed Church, as if it had assented to the reunion immediately after the original cause of separation was removed, by the termination of the revolutionary war. It was then a departure from their duty, by the defendants and their adherents, to attempt to cast off the authority of the classis. And it was also a violation of their trust to exclude the stated supplies of the classis from their pulpit; while the church had no minister regularly called and approved by the classis, according to the regulations of the Reformed Dutch churches with which they were rightfully connected. The funds were raised and devoted to the building of a church for the use of a congregation in that ecclesiastical connection, previous to the revolution ; which connection, though necessarily suspended by the revolution, and for a few years afterwards without necessity, was subsequently restored, with the unanimous consent of the consistory of the church, about the close of the eighteenth century.

The exercise of jurisdiction by this court, in cases of this kind, is not without its difficulties. And I felt them pressing upon me in the case of The Baptist Church v. Witherell, (3 Paige’s Rep. 276,) so as to induce me to doubt whether civil courts could interfere. Since that time, however, several cases have arisen and been decided in this country and in England, which appear to settle the question in favor of the exercise of such a jurisdiction. Most of those cases are referred to in the opinion of the assistant vice chancellor in the present case. (2 Russ. Rep. 114. 1 Myl. & Keen, 446. 3 Myl. & Craig, 72. 7 Sim. Rep. 290. 1 Con. & Law. Rep. 210. 7 Serg. & Raw. Rep. 539. 9 Wend. Rep. 401. 1 B. Monro’s Rep. 215.) The only one not there referred to which is now recollected is that of Dill v. Watson, before the court of exchequer in Ireland in 1836 ; reported by Macrory, under the title of the Clough case.

In that case a portion of the members of the Presbyterian congregation of Clough, in ecclesiastical connection with the synod of Ulster, had without authority of the synod withdrawn from its jurisdiction, and had united themselves with the seceding presbytery of Antrim ; which seceding presbytery was reputed to be socinian in its principles. And the court decreed the temporalities of the church to the complainants and their adherents, who still desired to continue their connection with the synod of Ulster. Upon the principles of these decisions, I think the temporalities of this church must be decreed to belong to the complainants, and to such others of the. church and congregation as adhere to their ecclesiastical connection with the classis of Eew-York, and are recognized by that body.

It is unnecessary to say what would have been the duty of the duly elected and legitimate trustees of the corporation, having the legal title to the temporalities of this church, if the classis of New-York, and the superior ecclesiastical judicatories with which it was connected, had themselves abandoned the fundamental articles of faith upon which such connection was based ; or had irregularly and unconstitutionally attempted to deprive any portion of the members of this church of their legitimate rights and privileges. For there is nothing in this case which can serve as a foundation for a pretence of that kind.

I think the complainants have also established the allegation contained in their bill, that they are the legitimate and regularly elected trustees of the corporation. They certainly constituted the majority of the board in 1837, and have had a regular succession by election; and I am satisfied that they and their adherents constituted a majority of those who were entitled to elect trustees. They also are, and always have been since that time, in connection with the consistory and church that has been recognized by the classis that was entitled to the supervision and control of their spiritual organization and affairs. The interlocutory orders made by the vice chancellor, in the suit which was brought in the name of the corporation, founded upon affidavits, &c. settled nothing between these parties as to matters of fact. Nor did the order made in that case, dismissing the bill, constitute any bar to this suit. It was not a decision of the cause upon the merits, but merely a withdrawal of the suit. And the only question submitted to the vice chancellor, for his decision, was upon what terms the suit should be discontinued, in relation to costs.

The objection that the corporation itself is not made a party, is not raised by the answer; and it is too late to make a mere formal objection of that kind at the hearing, when a proper decree can be made between the parties who are before the court. And if the objection, that the remedy of the complainants was exclusively at law, would have been valid if taken in the answer, which however is not conceded, it is too late to raise that question of jurisdiction for the first time at the hearing. The decision of the assistant vice chancellor must therefore be reversed; and the claim of the complainants to relief must be sustained.

A decree must be entered declaring that the complainants, at the time of filing their bill, were the true and legitimate board of trustees of this corporation ; and that they, or their successors in office who have been duly elected since that time, are entitled to the possession and control of the real and personal estate, and of the books, common seal, title deeds and other papers of the corporation ; that the property of such corporation is held by it in trust for the support of the worship of God, by a church and ministry in connection with the church judicatories of the Dutch Reformed churches, and for the teaching of the doctrines which were recognized by the standards of those churches, and by the classis of Amsterdam and the synod of North Holland in March, 1765 ; which doctrines are the same in . . o substance as those recognized in and by the present constitution of the Reformed Dutch Church in North America.

The defendants, and all the persons claiming under them, subsequent to the commencement of this suit, any of the property of the corporation, or the books, records, or other papers of the church or corporation, must be directed to deliver up the same to the complainants, or to their successors in office ; and must be perpetually enjoined from interfering therewith, hereafter, except so far as maybe consistent with the declarations of this decree. The defendants must pay the costs of the complainants, including their costs upon this appeal, and must also be decreed to account for the rents and profits and the property, which they have received and misapplied, or converted to their own use, since the commencement of this suit; unless such complainants elect to waive the right to an account, in which case this decree is to be final without such accounting.


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    Danforth vs. G. A. Woods and others. The same vs. M. D. Woods and Briggs.
    Where the real estate of the wife, by an ante-nuptial settlement, was conveyed to a trustee for her separate use, free from the control or debts of her intended husband, who was then insolvent, and the trustee, in pursuance of the trust, sold the estate, and loaned the proceeds to a mercantile firm, of which the husband was a partner, and took the note of the firm therefor, payable to himself as trustee; and subsequently directed the firm to invest a part of the amount thus loaned in furniture, for the use of the wife, and the furniture Was purchased accordingly for her separate use; Held, that the furniture thus purchased was in equity the property of the wife, as cestui que trust, and belonged to the -trustee for her use and benefit, and that the same could not be reached by the husband’s creditors;

      Held, further, if the money invested in the furniture was to be Considered as a loan of so much of the trust estate, to purchase furniture for the husband’s own use and benefit, that a subsequent judgment for that amount given to the trustee, under which the furniture was subsequently sold, and bid in by the latter, was founded upon a good and valid consideration; and vested the title of the furniture in the trustee, for the separate use of the wife.
    A bill taken as confessed against an absentee, after publication, who does not appear in the suit, is not evidence of any fact as against him, even as to his personal rights.
    Where a bill is filed against a tfustee jointly with the cestui que trust, and the latter appears and puts in an answer denying the charges in the bill, the suffering the bill to be taken as confessed by the trustee, cannot be permitted to prejudice the rights of the cestui que trust.
    If the husband’s furniture is sold upon execution against him, and is purchased in by the trustee of the wife, with funds held by him as her separate estate, and the furniture is left with the wife for the purpose of enabling her to have the use of the same, as her sepajate estate, such possession does not render the sale fraudulent as against the husband’s creditors; her possession being the possession of her trustee, and not the possession of the husband.

      This case came originally before the chancellor upon appeal, and the decree of the court below having been reversed, the respondent applied for a rehearing. The facts in the case are' sufficiently stated in the opinion of the chancellor.

      J. Rhoades, for complainant.

      C. Stevens, for the defendant M. D. Woods.
   The Chancellor.

This is an application for a rehearing of the decree of this court, of the 5th of February last, reversing so much of the decree of the late assistant vice chancellor of the first circuit as affects the defendant Margaret D. Woods, or George C. Briggs her trustee; and dismissing the supplemental bill of the complainant with costs. The case was decided in this court upon the argument; and the petition for a rehearing appears to be. founded upon a misapprehension of the grounds upon which that decision was based. Although the bill appears to have been taken as confessed, it is not stated whether it was taken as confessed upon a personal service of the subpoena upon the defendant Briggs, or against him as an absentee, or for want of an answer after he had appeared in the cause. But, as he resided in the state of Massachusetts, the presumption is that he was proceeded against as. an absentee. So that his suffering the bill to be taken as confessed is not evidence against him of any fact, even as to his personal rights.. Again; the neglect of Briggs, the trustee, to answer the bill, even if there was a personal service of the subpoena, could not prejudice the rights of Mrs. Woods, the person for whom he was trustee, and who was herself a party and made a defence to the suit.

This case must, therefore, be decided, upon the supplemental bill, and her answer thereto, and upon the testimony which is applicable to the sanie. From which it appears that the real estate of Mrs. Woods, in Boston, was; by an ante-nuptial settlement, conveyed to the defendant Briggs, as her trustee, for her separate use and support; and free from the Control or debts of her intended husband, who was then insolvent. It also appears that the trustee sold the real estate, and in April, 1839, loaned $1800 of the proceeds thereof to the firm of Woods & Wheel-right, of the city of New-York, of which firm the husband was a member, and took from the firm a promissory note payable to him as trustee, or to his order, on demand, with interest. Briggs the trustee, afterwards ordered Woods & Wheelright to invest $800 of the fund in furniture for the use of Mrs. Woods. The furniture was púrchased, and, as Mrs. Woods claims, it was intended to be for her separate use, and to be held in trust for her; although to give her the use of it, without producing a separation from bed and board between her and her husband, he would necessarily be entitled to the use of it, to a certain extent, jointly with her. If this was intended to be a purchase of the furniture for her separate use, then it was entirely different from the case of Shirley v. Shirley, (9 Paige's Rep. 363.) There the rents and profits of the wife’s trust estate, which the trustee had paid over to her, were invested by her in the purchase of furniture generally; without any indication of an intent that it was to be kept apart from the property of the husband, as her separate estate, either in the name of the trustee or otherwise. And the court held that those rents and profits, thus rightfully paid over to her and invested in the purchase of furniture, which were mixed up with the furniture of the husband, became the property of the husband. Here, however, it would be a clear breach of trust, on the part of the trustee, to give the husband’s creditors the capital of the wife’s separate estate, by a purchase of furniture therewith to be held by the husband as his own, without protecting her rights therein. In the late case of Spencer v. Staats, in the court for the correction of errors, in December, 1842, it was decided that a purchase of furniture with the trust funds of the wife, which were held in trust for her separate use, and leaving the furniture in her possession to enable her to use the same, would not authorize the seizure of the property by an execution against the husband ; the intention being to have the property still held for her separate use. Her possession, in such a case, is the .possession of her trustee, and not the possession of her husband.

The question was discussed upon the former argument, whether this furniture was in fact purchased for the separate use of the wife, or was a mere loan to the husband of the $800, to enable him to purchase the furniture for himself. But I then thought, and still think, the decision of that question was not material to the decision of the cause. If the furniture was intended, by the trustee, to be bought and held for the separate use of the wife, in accordance with the trust, then the purchase was a repayment to the trust fund of so much of the money loaned to the firm; and the furniture belonged to the trustee. And the judgment which the husband afterwards confessed to the trustee, including that amount, was fraudulent, or at least, was without consideration, pro tanto. But if that sum was loaned to the husband, either by the firm or by the trustee, to buy furniture for himself, and not to be held for the separate use of the wife, then the whole consideration of the judgment was valid; and there was no fraud in confessing the judgment and having the property bid in under it for the trust estate; as that was a valid mode of givings a preference to the debt due to the trust estate, over other debts due from the husband and his copartner. My own impression is that the furniture, as originally purchased, was intended to be held for the separate use of the wife, under the trust; and that the advice of the lawyer, that the giving of a judgment for the trust moneys and a sale of the property under such judgment was' necessary or proper to protect the just and equitable rights of the wife, was wrong. If so, this form of sale under the judgment and execution was a mere nullity, and could not divest her of her right. On the other hand, if the judgment was founded upon a good consideration, the proceeds of the sale belonged to the plaintiff in the judgment; and the furniture being bid in in his name, for the benefit of the trust estate, the mere form of paying the money would not prevent the property from being vested in the trustee, for the benefit of his cestui que trust.

I therefore see no ground to doubt the correctness of the conclusion at which I arrived upon the original argument of this cause, that this furniture, in justice and equity, is the property of the wife; and is held by the trustee for her separate use and benefit; and that the husband’s creditors are not entitled to it, but must seek their remedy ágainst property, if any, in which he and the other defendants in the original bill have some interest. The formal objections to the supplemental bill I did not think necessary to consider. For even if a supplemental bill, instead of an amendment, was the proper method of bringing the wife and her trustee before the court, still, as the decision was in her favor upon the merits, it was proper to dismiss the supplemental bill, and to allow her the costs of her defence to the same; as the complainant thought proper to subject her to that expense after being apprized of the facts.

The motion for a rehearing is, therefore, denied, with fifteen dollars costs.


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    De Peyster, administrator, vs. Ferrers, administratrix.
    Where the owner of certain claims gaye a power of attorney to F. to recover the same, and stipulated to allow him a specified commission on the amount recovered, and afterwards made an assignment of the claims to F. in trust, the better to enable him to recover the same, and F. subsequently died, but previous to the revised statutes, and his administratrix after the death of F. recovered the claims; Held, that she was entitled to the commissions; she having succeeded to the rights ofF. as trustee, by operation of law.
    By the common law, where a trustee of personal estate died without having executed the trust, such trust devolved upon his personal representatives; who were bound to proceed and execute the trust.
    This case came before the chancellor upon appeal; and the only question in controversy was whether the personal representatives of a trustee, who died previous to the revised statutes, were entitled to the commissions, for executing the trust, which were stipulated to be paid to the trustee by the terms of the trust deed.

      M. S. Bidwell, for appellant.

      D. B. Ogden & D. Greig, for respondent.
   The Chancellor.

This is an appeal from the decision of the vice chancellor of the first circuit, disallowing the claim of the defendant for commissions, under the agreement with the , testator of the 28th of January, 1799. The power of attorney of that date was undoubtedly revocable. And if the claim of the defendant depended upon that alone, it must of course be considered as revoked by the death of Ferrers; so as to leave no further duty to be performed by his personal representatives. But even in such a case I am not prepared to say that the representatives would not be entitled to the commissions if they actually proceeded and recovered the moneys, under the Spanish treaty, or otherwise, without any other charge to the parties beneficially interested than they would have been bound to pay if Ferrers himself had survived and attended to the business in person. The case of Gray v. Murray, (3 John. Ch. Rep. 167,) decided by Chancellor Kent, in 1817, is a very strong authority in favor of sustaining the equitable claim of the executrix to the stipulated reward, or commission, in such a case.

The case under consideration, however, does not depend solely upon the power of attorney and the agreement of 1799 ; but must be taken in connection with the fact, which appears in the pleadings, that actual assignments, of the various claims referred to in that power and agreement, were made to Ferrers in his lifetime; in trust, that he might prosecute such claims in his own name, as such trustee, for the purpose of recovering the same. This was not only a power coupled with an interest in him, to the extent of the compensation stipulated in the agreement of January, 1799, bpt it was a trust, which devolved upon his executors and executrix by the common law. Previous to the revised statutes, where a trustee died, the trust property, if real estate, passed to the heir or devisee; and if personal, it went by operation of law to the executor or administrator of the trustee charged with the trust; who held it in the same character in which the decedent held it. (Nee Lewin on Trusts, 205, and cases there cited.) In the case under consideration, therefore, these claims were rightfully prosecuted by the personal representa-lives, as trustees. And if they had neglected to present these claims under the treaty, whereby they had been lost, it would have been a breach of trust for which the estate of the decedent would have been liable.

The compensation paid to Mr. Colden, by the claimants, was paid to him as counsel; and was probably the same compensation which was paid to counsel in other cases, for their services in advocating claims of a similar character. Arid at the time they paid it to him they knew he claimed it iri that character, and not as a part of the commissions due the estate of Ferrers under the agreement of January, 1799. Indeed that agreement expressly provided for the repayment to Ferrers, or his representatives, of all moneys necessarily expended for lawyers’ and notaries’ fees, and other expenses in executing the trust. And if the cestui que trust thought proper to liquidate the claims of counsel, and others, and settle them himself, he could have no claim to deduct the same from the commissions due the estate; upon the ground that he had paid too much.

I conclude, therefore, that the estate of Ferrers is entitled to the commissions in controversy; and that the decree appealed from is erroneous. It must be reversed; and the costs of the executrix of Ferrers in the original suit must be paid out of the estate of the complainant’s intestate. But they are not to be charged on the complainant personally, in case there are no assets of that estate. And neither party is to have costs as against the other, on this appeal.


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    Curtis and others vs. Masten and others.
    An answer setting up a defence of usury, under the laws of this state, must state the particular facts and circumstances of the supposed usurious agreement, to the end that the court may see that the agreement was a violation of the statute; and it is not sufficient to state that the bonds alleged to be usurious were made to be sold at a usurious premium, and were so sold, contrary to the laws of this state.
    Where the defendant, in his answer, wishes to set Up the defence of Usury, upon the ground that the securities alleged to be Usurious were first sold in another state or country, in violation of the usury laws in force there, he must state in his answer what those laws were at the time of the supposed usurious sale, and the particular ■facts and circumstances of the case which rendered the transaction usurious under those laws; so that the court may see that, if the answer is true, the securities are void for usury in the hands of the purchasers and holders thereof.
    If an exception for impertinence embraces matters of the answer which are responsive to allegations in the complainant’s bill, as well as matters which are impertinent, the whole exception must be disallowed.
    The facts in this case are sufficiently stated in the opinion of the chancellor, to show the grounds upon which the defence of usury, attempted to be raised by the answer, was overruled as impertinent.

      W. C. Noyes, for complainant.

      W. L. F. Warren, for defendant
   The Chancellor.

This case com.es before me upon exceptions to the report of Master Ruggles, allowing eight exceptions to the answer of the defendant Masten, for impertinence. The object of the bill is to foreclose a mortgage given by Masten to Joseph D. Beers, as president of the North American Trust and Banking Company, and which mortgage was afterwards assigned to the complainants, as trustees, in trust to secure the payment of certain bonds of that association. One defence attempted to ^be set up in the answer was, that the bonds, to secure the payment of which the assignment in trust was made, were void for usury. The first, second, fourth, fifth, sixth and seventh exceptions relate to the sale of the bond in England at a discount; and which sale the answer alleges to be usurious. These exceptions are founded upon the fact that there is nothing in the answer showing that there are any statutes in England making the bonds void in the hands of the holders thereof, even if the matters stated in the answer and excepted to as impertinent are true. The only allusion to any Usury laws in England, is a prayer in the answer, that this Court “ will take notice of the statutes of Great Britain against usury.” But nothing is stated in the answer as to what statutes are intended to be referred to, or when they were passed, or what are their provisions which are supposed to have been violated. A replication to such an answer would not put in issue the existence of any law of a foreign country, so as to enable the parties to take proof as to the provisions of the law supposed to be violated. The proper course for the defendant, if he wished to set up the defence that these bonds were void, upon the ground that they had been first negotiated in England, to raise money at a discount beyond the amount allowed by the laws of England, was first to state what the laws of England were, at the time of the transaction, and then to set out the facts which rendered the securities void according to those laws : So that the court, upon the answer itself, could see that, if the allegations therein were true, the trusts upon which the assignment was made were illegal, or that they had failed, because the bonds, which the assignment was given to secure, were void in the hands of the holders thereof. Upon a replication to such an answer,containing the proper allegations on the subjept, either party would have an opportunity to prove or disprove the fact of the existence of the supposed usury laws, in the usual mode of proving foreign laws. The matters embraced in those six exceptions are therefore impertinent. And the corresponding exceptions to the master’s report must be overruled.

The eighth exception is to a part of the answer in which the defendant avers that the bonds were made and executed in this state to be sold at an usurious premium, and were sold at such usurious premium, contrary to the laws of this state; by which the bonds and deed of trust were rendered void. But no fact is stated in the answer showing. that any usurious contract had been made here which could render the bonds void by our laws. The objection to this general charge of usury is, that although the court is bound to take notice of our laws, the defendant who attempts to set up the defence of usury must state the .particular facts and circumstances of the supposed usurious agreement; so that the court can see that it was such a violation of the statute, as rendered the contract void for usury. [Comyn on Usury, 203. New-Orleans Gas Light Company v. Dudley, 9 Paige's, Rep. 458.) This part of the answer is therefore impertinent, and the eighth exception was properly allowed by the master; and the eighth exception to his report must be disallowed.

The third exception embraces a part of the answer which appears to have been directly responsive to an allegation in the bill, that the mortgage was in the .first place assigned to Beers, Graham and Tylee, as trustees, and afterwards re-assigned by them to Beers, as president of the company. And if the other matters embraced in that exception were impertinent, upon which question I express no opinion, the exception is too broad, and should have been overruled on that account. (1 Russ. & Myl. 30. 4 Paige, 174.) The third exception to the master’s report must therefore be allowed, and the third exception to the answer is disallowed.

The complainants are entitled to their costs of the hearing of these exceptions to the report, to be taxed, not exceeding ten dollars; and to their costs of the, seven exceptions to the answer which are finally allowed, including the costs of expunging the impertinent matter. And the order must direct the proper officer to expunge the impertinent matter; and that the defendant Mas-ten pay the costs within twenty days after service of the taxed bill.