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December 1, 1866


ERROR to the Circuit Court for the District of Connecticut, the case being this: From the year 1702 or earlier, and down to the year 1818, and afterwards, with some unimportant alterations, there existed and was in force in Connecticut a statute thus: 'That all such lands, tenements, hereditaments, and other estates, that either formerly have been, or hereafter shall be, given and granted, either by the General Assembly of this Colony or by any town, village, or particular person or persons, for the maintenance of the ministry of the Gospel in any part of this Colony, or schools of learning, or for the relief of poor people, or for any other public and charitable use, shall forever remain and be continued to the use or uses to which such lands, tenements, hereditaments, or other estates, have been, or shall be, given and granted, according to the true intent and meaning of the grantors, and to no other use whatsoever; and also be exempted out of the general lists of estates, and free from the payment of rates.' This act being thus in force, William Stanley, of Hartford, Connecticut, in October, 1786, made his will in the material parts as follows: 'Imprimis. I give and bequeath unto the Second Church of Christ, in Hartford, such sum, to be paid out of the profits or rents of my real estate as hereafter mentioned, as shall be necessary to purchase a silver tankard of the same weight and dimensions, as near as conveniently may be, of that one formerly given said church by Mr. John Ellery, deceased; the same to be procured by my trustees, hereafter named, and presented to the officers of said church, to be kept forever for the use and benefit of said church, and my said trustees are to cause my name, coat of arms, the time of my death and my age thereon to be engraved. 'Item. I give and devise unto my niece, Elizabeth Whitman, one piece of land, &c., also one other piece of land lying, &c., and is part of the farm that formerly belonged unto my honored father, Colonel Nathaniel Stanley, deceased, and lies in the southeast corner of said farm, and butts on a highway, unto the said Elizabeth, and to her heirs and assigns forever, provided she shall not make any claim upon my estate for any services done for me. 'Item. I do also give and devise unto may sister Abigail the use and improvement of all my real estate (except that part thereof given unto her daughter Elizabeth) during her natural life, with this reserve, that she shall not cut any of the trees growing in that lot called Rocky Hill lot. 'Item. After the decease of my said sister, Abigail Whitman, I give and devise the whole of my real estate, of every kind and description, except which is hereinbefore given unto my niece, Elizabeth Whitman, unto the Second or South Ecclesiastical Society, in the town of Hartford, to be and remain to the use and benefit of said Second or South Society and their successors forever; PROVIDED that said real estate be not ever hereafter sold or disposed of, but the same be leased or left, and the annual rents or profits thereof applied, to the use and benefit of said Society, and the letting, leasing, and managing of said estate to be under the management and direction of certain trustees hereafter named by me, and their successors to be appointed in manner as hereafter directed. And it is my will that the first rents, profits, or avails issuing from said real estate shall, by my trustees after it comes to their possession, be applied to the purchasing of the aforesaid tankard. And it is my will that so much of the rents, profits, or avails next issuing out of my real estate, my said trustees shall reserve in their own hands as shall be sufficient to purchase and pay for the one-half part of the price of a proper bell for the meeting-house in said Second Society, of the same weight and dimensions of that in the North Meeting-House, in said town of Hartford, and be applied by my said trustees for that purpose; provided that the other part be procured by subscription or otherwise without taxing the inhabitants of said society; and in case said Second Society shall ever hereafter be divided, it is my will that my said real estate be not divided, but remain entire and forever to the said Second Society, and such part of said society as shall hereafter secede or be divided therefrom are hereby excluded from all the use and benefit of my said estate so devised as aforesaid to said Second Society. 'And for the best management and direction of my said real estate I do hereby appoint my friends, W. Ellery, &c., trustees to superintend, direct, and manage said real estate for the use and benefit of said Second Society in manner as above directed, and unto them, my trustees, I do give authority and power to nominate their successors to said trust, which is to be done in the manner and form following, viz.: That immediately after my decease, they shall nominate and appoint some meet person or persons, as occasion may require, into said trust and office; so be it that at no time more than three persons shall act in said trust or office or belong thereto at the same time. And all persons successors hereafter to said trust and office shall at all times in future have like power to superintend, direct, and manage said estate for said society, and in like manner to nominate and appoint their successors in said trust and office, and to perpetuate said trust for the benefit and use of said society as occasion may from time to time require. And the aforesaid real estate or any part thereof shall not be rented or let for a longer term or lease than thirty years before the expiration of the same, and said trustees and their successors shall have full power to let and lease said estate, and to do all other legal acts for the well ordering and management of said estate under the limitation and restrictions as herein is before expressed.' The ecclesiastical society named in the devise above quoted was established by authority of the State of Connecticut for the support of the Gospel ministry and the maintenance of public worship, and with power, for that purpose, to hold real estate. After the death of Stanley and his sister Abigail, who had the life-estate, and whose death occurred prior to the year 1800, it took possession of the premises, and down to 1852 the society and trustees managed them in the manner directed in the will, appropriating the income from time to time to the purposes of the society. During the whole time the premises were untaxed, the only ground for the exemption being the provision in the act of 1702, quoted on p. 120. In the year 1852 the legislature of Connecticut, upon the application of the society and of the trustees, passed a resolution reciting a memorial by the church and trustees, showing the will, possession of the land, &c. 'Also showing that the said land has on it a great number of buildings, owned by the tenants, built of wood, and in a decayed state; that the land on which they stand has, by the lapse of about three-fourths of a century, become valuable, some of which is in the central part of the city of Hartford, and too valuable to be improved profitably in any other way than by the erection on them of permanent brick or stone blocks of buildings; that the lessees cannot safely erect such buildings, because of the uncertainty of their tenure, and because they would thereby place themselves in the power of the owners, and that the owners have not the means, and could not lawfully contract debts for the purpose of building; that other parts of the estate are subject to other embarrassments arising from the restrictions of the will, so that said property has become unproductive, and the income greatly reduced, and the object of the testator in devising the property to the society frustrated; that those embarrassments, both to the owners and occupants, consequent on the restrictions in the will, are not likely to be removed, but will be increased by time, unless said land can be sold and conveyed in fee simple, and the proceeds suitably invested. 'And praying the Assembly to authorize a sale and conveyance of said land, under such guards and provisions as will secure the application of the proceeds according to the true intent and meaning of said will, as per petition on file.' This legislative record thus proceeded: 'This Assembly having inquired into the facts stated in said memorial, find the same to be true; and do further find that the most valuable portion of said estate is situated in a central part of said city of Hartford, is covered with unsuitable wooden buildings, and it is for the interest of the people of said city that more useful and valuable buildings should be built thereon, and do grant the prayer thereof; and it is therefore 'Resolved, That the said trustees and their successors, together with D. F. Robinson, as agent, shall have power, and they are hereby authorized, to sell and convey the said lands in said memorial mentioned, and such parts or proportions thereof as may from time to time be advantageously sold, and to execute good and sufficient deeds thereof in fee simple, with or without covenants of seizin and warranty, on the part of said society, subject to liens or incumbrances, if any shall lie upon said property, &c. And the proceeds of such sales shall be, by the trustees and agent, invested in good and sufficient bonds and mortgages of real estate, of double the value of the amount invested; and the interest of said proceeds shall be paid over to the treasurer of said society, and shall be appropriated to the use of said society in the same manner, and subject to the same use, as the rents or income of said property are by said will required to be appropriated, and for no other uses or purposes whatever. And all mortgages or investments made as aforesaid from time to time, and whenever such loans or investments shall be shifted or changed, the securities shall be taken in the name of such trustees and their successors, and expressed to be for the use and benefit of said society, according to the will of William Stanley, deceased: Provided, however, That before any person or persons shall proceed to make sale of said lands, or any part thereof, he or they shall become bound, in a good and sufficient bond, to the judge of probate for the district of Hartford, conditioned for the faithful performance of the duty in the premises; and said trustees shall also give the like bonds for the faithful performance of their trust.' The heirs at law of Stanley had no notice of any of these proceedings. The trustees and agent accordingly, in August, 1852, by deed reciting the legislative proceeding, and purporting to be made in virtue of their said capacity of trustees and agent, and of the powers conferred by the act, sold and conveyed, with special warranty, to one Colt, 'all the right, title, and interest that said Second Ecclesiastical Society, &c., have or ought to have in or to the above-described tract of land,' one of the tracts devised. Colt having entered into possession, the heirs at law of Stanley now brought ejectment against him for the premises. The court instructed the jury that on the case presented the defendant was entitled to their verdict; and judgment having gone accordingly, the case was now here on error.

The opinion of the court was delivered by: In Wright v. Tuttle,*fn4 Swift, J., says:

Messrs. W. M. Evarts and C. E. Perkins, for the heirs at law:

The case is of general importance. A full argument will be allowed.

Three questions arise:

I. Had the society power under the will itself, to sell and convey this property to Colt without incurring a forfeiture?II. If it had not such power under the will, was it enabled so to do by the act of the legislature of 1852?

III. If the society had no power to convey from either source, what consequence results from its violation of the condition of the devise?

That the legal estate is in the church must, we suppose, be conceded. The devise is, in plain terms, to it in fee: 'I give and devise the whole of my estate . . . unto the Second or South Ecclesiastical Society . . . to be and remain to the use and benefit of said Second or South Society and their successors forever.' No legal estate is given to the trustees. They are but to 'superintend, direct, and manage.' This is exactly what any mere agent of restricted powers would do in regard to any estate, of which confessedly the fee would be in his constituent. Mere directions to one person to superintend, direct, and even to manage, cannot carry to him the legal estate given in plain, appropriate, and even technical terms to another in fee; even assuming that it might do so, if the legal estate were left undisposed of;–which we do not admit. Inference cannot control direct expression. The trustees were to have no powers but what were necessary to the office of superintendence, direction, and management of an estate that was never to be 'divided,' but which was 'to remain entire and forever to the said Second Society.' The legal estate then was given to the church.

The heirs of Stanley say then:

I. The society, under the provisions of the will, could not sell without violating the condition upon which they held the property, and thus incurring a forfeiture of their title.

Both by the obvious intent of the testator and by the legal effect of the words used, this devise is of an estate upon condition subsequent, a breach of which destroys all right of the society in the property.

1. The will shows that the testator meant to deprive the society of the power to sell. He meant that this property should always remain in the hands of the society. He believed that the property would increase in value, and from a sure increasing fund would supply the society's increased wants, while if the land was sold and the money invested, the society would receive no larger amount a hundred years thereafter, than at that day. He also desired that he should be remembered in connection with this society forever. He had an obvious pride of family name and estate, and an attachment plainly to this particular Second or South Church. He desires his 'arms' and name to be put upon a sacramental tankard, 'to be kept forever.' He leaves to his niece a piece of land that belonged to his 'honored father, Colonel Nathaniel Stanley, deceased.' To his sister, he leaves for life another piece, 'but she shall not cut any of the trees.'

The bulk of the real estate he leaves in fee to the church, separating the real estate from all power to manage it, and giving neither to the devisee nor to the trustees a power to sell the estate; but, on the contrary, showing that he meant it should never be sold or disintegrated. He looks forward to the possibility of a division of the religious body, and provides against any division of his estate from even that cause; declaring that if the society should 'ever hereafter' be divided, his real estate left to the existing body should 'be not divided, but remain entire and forever to the said Second Society.'

The courts in Connecticut have held, that where land was devised to an ecclesiastical society, the intent of the donor is shown by that very act to be that it should not be sold.*fn1

The means adopted by the testator to accomplish this intent, are the most effectual that could be conceived for his purpose. He did not intrust the accomplishment of his object to the society, to the legislature, or even to courts of equity. He determined to make it the interest of the society and its members to use the gift as he directed, by causing a forfeiture to follow their misuse.

He used apt words to carry out this intention.

In construing wills, courts are governed by certain well-settled rules. One of these rules, the seventeenth in Mr. Jarman's series, is:*fn2

'Where a testator uses technical words, he is presumed to employ them in their legal sense, unless the context clearly indicates the contrary.'

The obligation of the rule is nowhere more recognized than in Connecticut, where in Gold v. Judson,*fn3 the court say: 'We are bound to suppose the testator used language in its usual legal sense.'

The word Provided is a technical word: its meaning has been settled by innumerable decisions, and it has always been held that a devise to A., provided he should or should not perform certain acts, is a devise upon a condition subsequent, and the estate vests in A., subject to being divested if he does or does not perform the acts specified.

This is the rule in Connecticut.

'There is no word more proper to import or express a condition, than the word provided, and it shall always be so taken unless it appear from the context to be the intent of the party that it shall constitute a covenant.'

These words were cited and approved in the subsequent case of Rich v. Atwater,*fn5 and in Wheeler v. Walker.*fn6
This decision is the more obligatory, as it has been affirmed by subsequent Connecticut decisions,*fn7 and has, ever since they were made, been considered as fixing the law in the State of Connecticut on this subject.

The case at bar being in relation to the construction of a will devising real estate, this court will govern itself by the decisions of Connecticut on this point.*fn8

But this construction of the word provided is not confined to Connecticut; it has always been so held both in England and this country from the earliest time.

Comyns, in his Digest,*fn9 says:

'Divers words of themselves make an estate upon condition, as 'sub conditione,' 'proviso semper,' and the word proviso makes a condition, though joined with other words, as 'provided always and it is covenanted,' 'provided and it is agreed,' and therefore if the word proviso be the speaking of the grantor and obliges the grantee to any act, it makes a condition in whatever part of the deed it stands, and though there be covenants before and after, it is not material.'

This is in relation to deeds. In relation to wills, he says:*fn10

'So words in a will make a condition which will not make it in a deed. So a devise to A. provided, and my will is that he keep it in repair, makes a condition; so there shall be a condition in a will though there be no words that the estate shall cease, as a devise to a wife, provided that she shall have a rent only if she departs out of London.'

Similar decisions as to the effect of the word 'provided' have been made in most if not all the States, and in England.

In Hooper v. Cummings, a case in Maine,*fn11 the expression was 'provided they (the grantees) fence the land and keep it in repair.' The question arose whether this word created a condition, and the court say:

'We may assume that the proviso in the deed created a condition subsequent, and in this we are sustained by most if not all the authorities ancient and modern.'

In the New Hampshire case of Chapin v. School,*fn12 the court say:

'The usual words of a condition subsequent are 'so that' 'provided," & c.

In another case, Wiggin v. Berry, from the same State,*fn13 a devise was to a town 'provided' they would pay the taxes on the land and devote the net profits to keeping a school for the benefit of the inhabitants. The town did not comply with these conditions, and the court held that his was a devise upon condition, that the town had forfeited their title, and the land went to the testator's devisees. This case seems to be directly in point.
In Massachusetts, Attorney-General v. Merrimack County,*fn14 the court say:

'The words 'provided,' 'so that,' and 'upon condition that,' are the usual words to make a condition.'

In Hayden v. Stoughton,*fn15 a case in the same State, the devise was to a town for a school-house, 'provided said school-house is built by said town within one hundred rods of the place where the meeting-house now stands.'

In this case the school-house was not built, and the court held that the land upon entry by the heirs reverted to them.

It is an important case in many respects, and will be referred to hereafter.

So in Hadley v. Hadley,*fn16 the court held that the words 'provided' and 'on condition,' had the same effect in making a devise conditional.
And in Rawson v. School District,*fn17 in speaking of a conditional estate, they say:

'The usual and proper technical words by which such a estate is granted by deed are 'provided, so as, or on condition."

To the same effect are cases in New York and Pennsylvania.*fn18

In the English case of Tattersall v. Howell,*fn19 the same word 'provided' was used, and the court held it created an estate upon condition.

The usual and legal effect of this word 'provided,' being therefore to create a conditional estate, subject to forfeiture by a breach of the condition, this court will give it such a construction here.

There is another rule of construction–the eighteenth of Mr. Jarman's series,*fn20 and strongly enforced, as a true rule of law, in an important case*fn21 by Lord Chancellor Sugden–applicable to this question.

'Where a word is used in one devise in a will with a particular meaning, and is again found in a subsequent devise used in the same manner, it is to have the same effect.'

In one devise in this will, the testator devises certain lands to Elizabeth Whitman, 'provided she shall not make any claim upon my estate for any services done for me.'

There can be no doubt but that this is a devise upon condition subsequent, upon the breach of which a forfeiture would ensue.*fn22

Will it be argued, that this condition is void, as a restriction of the power of alienation? The law is not so.

1st. It has always been held in Connecticut by an uninterrupted chain of decisions, that under the act of 1702, such a restriction is valid.

In New Haven v. Sheffield,*fn23 decided in 1861, the court say:

'The chief object to the enactment of that statute was not so much to exempt certain estates from taxation as to confirm and perpetuate the estates referred to in it.'

And this expression was affirmed and approved in the very latest case on the subject. Brainard v. Colchester,*fn24 decided in 1863, and see Hamden v. Rice.*fn25

This court will hold itself bound by the decisions of the State of Connecticut on this subject.*fn26

2d. Apart from this statute of 1702, it is conceived that such a devise to an ecclesiastical society is good.

In many of the cases hereinbefore and hereinafter cited, similar devises were held to be valid.

In Brattle Square Church v. Grant, a Massachusetts case,*fn27 the devise was on condition that the land should never be sold, but the minister should always reside on it. In considering the question whether the devise was void as violating the rule against perpetuities, the court say:

'A grant of a fee on condition only creates an estate of a base or determinable nature in the grantee, leaving the right or possibility of revester vested in the grantor. Such an interest or right in the grantor, as it does not arise and take effect upon a future uncertain or remote contingency, is not liable to the objection of violating the rule against perpetuities, in the same degree with other conditional and contingent interests in real estate of an executory character. The possibility of reverter, being a vested interest in real property, is capable at all times of being released to the person holding the estate on condition or his grantee, and if so released vests an absolute and indefeasible title thereto. The grant or devise of a fee on condition does not therefore fetter and tie up estates so as to prevent their alienation, and thus contravene the policy of the law, which aims to secure the free and unembarrassed disposition of real property.'

This view was again taken by the same court in Austin v. Cambridgeport,*fn28 where there was a grant of land to a parish on condition that it be forever used as a site for a church in part and in part for the support of the minister.

3d. But this point is not an open one here.

In Perin v. Carey,*fn29 in this court, an important case, fully argued, one point taken was, that the devise to a charity providing that none of the land should ever be sold, was void as making a perpetuity contrary to law; but the court unanimously held that a devise to a charity could be made in perpetuity, and say:

'The direction in the will that the real estate should not be alienated, makes no perpetuity in the sense forbidden by the law, but only a perpetuity allowed by law and equity in the case of charitable trusts.'

Similar decisions exist in New York,*fn30 North Carolina,*fn31 Kentucky*fn32 and other States.*fn33

II. This act of 1852 was void upon three grounds:

1st. No State legislature has power to alter the express conditions of a will. Such an attempt is contrary to the principles of natural right and justice which no legislature can contravene.

In Hooker v. Canal Co.,*fn34 a Connecticut case, the court say:

'The fundamental maxims of a free government require that the right of personal liberty and private property should be held sacred.'

They cite and approve the expressions of Marshall, C. J., in Fletcher v. Peck:*fn35

'And it may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power,' &c.

This whole subject is fully treated in the late decision of Booth v. Woodbury,*fn36 where it is expressly held that the legislature can pass no laws contrary to the 'principles of natural justice.'
All these cases, and the jurisprudence of Connecticut on this subject, are in harmony with and in fact founded upon the case of Calder v. Bull,*fn37 a case which went from Connecticut to this court; and the expressions in Goshen v. Stonington are almost identical with those of Mr. Justice Chase, where he says:

'I cannot subscribe to the omnipotence of a State legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the constitution or fundamental law of the State.'

But both in this court and many of the State courts the same rule is applied.*fn38

A case quite in point is Brown v. Hummel,*fn39 in the Supreme Court of Pennsylvania. There a devise of land was made to an orphan asylum, with a provision that the land be never sold, but the rents and profits only be applied to the use of the asylum. The legislature, by a special act, directed that part of the land be sold.

The court held unanimously that the act was void and unconstitutional.

If the legislature can, by a special act, dispense with the performance of one condition of a devise, they can with any.

Such an act as this is different from those enabling or healing acts often passed, such as those authorizing a sale of minors' lands, or those of lunatics, &c. In all such cases they merely remove a personal disability.*fn40 Acts, too, will be cited on the other side in which power has been given to corporations to sell, where in the gifts to them no such power was expressly given. Such cases are from the purpose. To say nothing about the constitutionality or safety of this sort of legislation in general, it may be noted that in many cases the legislature has only aided an intent of a donor left unexpressed or but insufficiently given, or cases in which perhaps the legislature was itself the donor. But can any case be found where, without the assent of the heirs, a power to destroy the identity and substance of the gift has been given in any case where it was plain that the testator meant to keep the land in specie, forever undivided in the corporation, beneficiary, and devisee? What is proper to be done in any case where heirs may have an interest, and what the legislature of Connecticut itself has done, may be seen in the Acts of Connecticut, May Sessions, 1850, at page 82. There Thaddeus and Eunice Burr, she owning it, had granted a lot for a parsonage. An act reciting that the land was not now and never could be wanted for a parsonage, and that a sale was desirable and expedient, authorized a sale. But how? It declares the sale is to be made 'with the assent of the heirs of the said Eunice;' and the act authorized the heirs to release a condition in the deed, in the presence of witnesses; and such release, it was enacted, 'shall operate to forever estop said heirs, and all claiming under them.' This is the right way; and in no other way, assuredly, in a case like the present, could a sale be authorized and the right of property in the heirs be duly respected.

It will be argued that a legislature has power as parens patrioe to interfere and authorize a sale of land in cases like the one at bar; but the authorities say that the legislatures in this country have no such power.

In Moore v. Moore,*fn41 a Kentucky case, the court say:

'We do not admit that the commonwealth as parens patrioe can rightfully interfere, unless there has been an escheat to her, and then she can become absolute and beneficial owner. Rights here are regulated by law, and if any person has a claim to property ineffectually dedicated to charity, the commonwealth has no prerogative right to decide on that claim and dispose of the property, as the King of England has been permitted to do.'

2d. This act of 1853 is void, as depriving the plaintiffs of property, contrary to the constitution ...

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