Opinion
02-06-1909
LARKIN et al. v. WIKOFF et al.
A. S. Appelget and George C. Vanderbilt, for complainants. John V. B. Wicoff, for defendants.
Bill by Francis E. Larkin and others against James H. Wikoff and others, trustees of the First Presbyterian Church of Princeton. Finding for defendants.
The bill alleges: That the complainants reside in the immediate vicinity of the Cedar Grove Church, in the township of Princeton, and that they and their families are members of, and contribute to the support and maintenance of, the respective churches and denominations named in the deed of trust made by the late Paul Tulane to the trustees of the First Presbyterian Congregation at Princeton on May 27, 1876, and have been and are constant attendants at the services held in the church edifice at Cedar Grove, as well as attendants at the Sunday School held therein on each and every succeeding Sunday. The conveyance was a grant of a tract of land with a church edifice erected upon it in trust to be used for gospel preaching and religious services, free to all the people of the neighborhood, the several Christian denominations—Presbyterian, Methodist, Baptist, and Reformed Dutch—to be accorded equal rights in preaching alternately on the Sabbath, according to a plan or programme to be declared and made known by the party of the second part, as nearly like the plan that had theretofore been and then was accepted and carried out by the grantor as could be. The preaching in the chapel was expected to be done chiefly by the pastors of the several denominational churches aforesaid, which were represented by families residing in the vicinity of Cedar Grove as theretofore, but thenceforth under the supervision and arrangement of the party of the second part, and in further trust that whenever thereafter the use of the chapelfor the purpose aforesaid should have been necessarily abandoned or discontinued through the neglect of the people to attend upon the services, or through the failure of the several pastors to preach in the chapel, or through the waste or destruction of the building, or whenever from any cause which should seem to the trustees clearly expedient to discontinue the plan of holding the property for such user as aforesaid, they, the trustees, being the judges and fully authorized to decide such discontinuance from all or any cause whatever, then and in such case of nonuser, abandonment, or discontinuance the trustees should hold the land and all buildings thereon as the property of the trustees for the use of the said First Presbyterian Church of Princeton, with power to sell the same, and to convert it into money, and to hold the money arising from the sale thereof forever in fee for the use of the said First Presbyterian Church aforesaid, of which they are the trustees, for meeting and defraying the contingent and ordinary expenses of said church and congregation. The deed of trust was duly executed and delivered and accepted by the trustees of the First Presbyterian Church of Princeton, who immediately took possession of the land and premises described therein, and entered upon the execution of said trust, and have ever since continued to act in accordance with the terms, conditions, and requirements in the deed particularly specified to be carried out and performed on their part as such trustees, so that the church edifice has from May 27, 1876, up to the time of filing the bill, been continuously used and occupied on each and every succeeding Sabbath by the various denominations of Christian worshipers named in the deed, which religious worship was presided over and the preaching in the chapel was conducted by the pastors of the several denominational churches aforesaid. In addition to the religious services, there has been held in the edifice a union Sunday school, so called, composed of the parents and scholars of the various Christian denominations residing in and round the vicinity, and which said school has been conducted regularly up to the present time with the full knowledge and consent of the trustees. That the country surrounding the church is thickly settled, and that the nearest house for religious worship in the community is at a distance of three or four miles, and that it was especially in view of that fact that Mr. Tulane in his lifetime purchased the land and premises and conveyed it in trust to the defendants for the sole and exclusive object and purpose that the inhabitants of the community might enjoy in perpetuity the means and advantages of religious worship, and, in order to further secure said object, Mr. Tulane in his lifetime, by another deed of trust, placed in the hands of the defendants, trustees, the sum of $5,000, to be by them invested in good securities, and the income arising therefrom to be appropriated exclusively, first, to the keeping of the church edifice in proper and sufficient repairs, and, second, to provide a fund for the payment of such pastors as might be employed from time to time to conduct the services in the church in accordance with the wishes and instructions of Mr. Tulane as expressed by him in the two deeds of trust.
By an advertisement inserted in the Princeton Press newspaper on June 22, 1907, the trustees advertised the sale on Saturday June 29, 1907, at the Nassau Inn, Princeton, of the premises described in the trust deed; the advertisement stating the sale would be had by virtue of the provisions of the trust deed aforesaid, and by virtue of the authority of resolutions of the board of trustees passed May 22, 1907. The complainants charge that this attempt to sell the property is in disregard of the terms of the trust reposed in the trustees, and that they apprehend that the trustees intend to sell and convey the church edifice and lands described in the deed, and thereby the church may be closed, and the complainants and the residents of the community in and about the church may be deprived of the use and the conveniences of religious services contemplated by the donor, and that the trustees intend to appropriate, not only the money arising from the sale of the said premises, but also to appropriate to their own use the said sum of $5,000 which was set apart by Mr. Tulane to aid and maintain in perpetuity the services to be carried on in the church edifice as specified in the deed of trust. They pray, among other things, that the defendants may be enjoined from selling or conveying away any part or parcel of the church property.
The defendants answered, and admit the making, execution, and delivery of the trust deed, and they say that, while the deed was delivered to and accepted by them on May 29, 1870, yet the donor wished to, and in fact did, personally supervise and look after the church for several years, and from the time he gave up his personal supervision (not saying when) the trustees in the deed entered upon the execution of the trust and since and up to June 29, 1907, supervised and executed the trust strictly in accordance with the letter and spirit of the deed and the plan of the donor. They say that they believe a Sunday school of the parents and children residing in the vicinity of Cedar Grove has been held in the church edifice, but deny that the school, if organized, or the individual members thereof, have acquired any rights in the premises; that the abandonment and sale of the church will not necessarily deprive the people of Cedar Grove who desire it of Gospel knowledge, as there is a schoolhouse within a few rods of the church which might be available for Sunday school services. They deny that Mr. Tulane purchased the tract of land and premises and conveyed it in trust to the defendantsfor the sole and exclusive object and purpose in that behalf in the bill of complaint alleged to have been expressed in the deed of trust; and they assert the fact to be that Mr. Tulane did give to them, the trustees, on or about May 29, 1876, the sum of $5,000, to be held by them, and to be securely invested, and the income thereof annually to be applied in defraying the expenses of maintaining free preaching and religious services in the chapel or church at Cedar Grove, in paying the salary of a sexton, and the cost of fuel and keeping the house in order, and in compensating the pastors of the several churches who are expected to preach alternately on the Sabbath under a plan of arrangements to be prescribed by the trustees, following as nearly as can be the plan then observed by Mr. Tulane, the several Christian denominations, the Presbyterian, the Baptist, the Reformed Dutch, and the Methodist congregations adjoining, to be equally admitted to the use of the preaching services under the plan to be made by the trustees so as to carry out what they believe to have been the wish of Mr. Tulane in creating the trust, and as set forth in the trust deed for the church property, which he conveyed to them, and, whenever the church shall have ceased to be used for preaching and holding religious services therein and shall have been sold and abandoned for use as aforesaid, then to hold the $5,000 for the use of the First Presbyterian Church of Princeton to be applied for meeting the contingent and ordinary expenses of the church and congregation; that the defendants, trustees, received the sum of $5,000, and used the income therefrom in accordance with the terms of the trust; that they have advertised, and it was their purpose, to dispose of the church edifice and the land accompanying the same at public auction, but they deny that the intended sale was in disregard of the terms of trust reposed in the trustees, and say that their action in the abandonment of the use of the church property for church services and the proposed sale thereof were in strict conformity with the terms of the trust deed and the terms of the trust above set out; that the defendants deny that they intended to appropriate, not only the money arising from the sale, but also the said sum of $5,000, to their own use, but assert the fact to be that on or about May 22, 1907, at a duly convened meeting of the board of trustees of the First Presbyterian Church at Princeton, by resolution and in accordance with the terms of the said trusts, it was deemed expedient to discontinue and abandon on and after July 1, 1907, the use of the property described in the complainant's bill and the church edifice for Gospel preaching and religious services, first, because the people in the neighborhood of Cedar Grove neglect to attend upon the services and the few persons who do attend are connected with other churches in the vicinity and within easy reach of their respective churches, and, second, because the people in the vicinity of the church take little or no interest in the services or the work being done for them, and, third, because it would be a waste and perversion of the trust to longer continue preaching services at Cedar Grove, and that thereafter the church property and building be held for the use of the First Presbyterian Church at Princeton until the same could be sold, when the proceeds therefrom should be used for meeting and defraying the contingent and ordinary expenses of said church and congregation as provided by the terms of the trust deed, and it was further determined by said resolution to sell the premises described in complainants' bill of complaint to the highest bidder at public vendue; that at the meeting of May 22, 1907, it was determined by another resolution of said board of trustees of the First Presbyterian Church at Princeton that inasmuch as the Cedar Grove Church is to be abandoned and discontinued for preaching and the holding of religious services on the 1st day of July, 1907, for causes satisfactory to the said trustees within the terms of said trust, the said sum of $5,000, together with the accumulated unused income thereon, be on and after July 1, 1907, held for the church and congregation aforesaid, and the income therefrom used and applied toward paying the contingent and ordinary expenses of said church and congregation, as provided in the terms of said trust; that the decision of the trustees to abandon and discontinue the use of the church and to sell the same and to hold the proceeds together with the said trust fund, which provided, among other purposes, for the defraying of expenses for maintaining free preaching in the Cedar Grove Church, in trust for and to apply the same in paying the contingent and ordinary expenses of the First Presbyterian Church of Princeton, was only reached after careful investigation of the conditions that existed at Cedar Grove and the exercise in absolute good faith of the best judgment of the trustees based upon the facts, who by said deed of trust were made the judges, and were fully authorized to decide upon said discontinuance for reasons other than those specifically mentioned in the deed of trust, as well as those named in the answer; that for several years past the trustees have believed that the time was near approaching when it would be their duty under the terms of the trust to discontinue the use of the church at Cedar Grove for religious services because of lack of work and attendance upon the services, and it seemed that the object of the trust was no longer being obtained, yet the trustees felt that the step to discontinue the services should not be taken until they were fully persuaded thatthe objects of the trust were not being fulfilled, and, if they have erred at all, it is in not long ago discontinuing the services, and while they have believed, and still believe, that the trust deed fully authorizes them to decide in good faith upon the discontinuance of the preaching services and the termination of the trust for the benefit of Cedar Grove from all or any causes whatever in addition to the grounds specifically mentioned therein, and while they are not obliged under the terms of the trust to give reasons for their action, yet, in order to show the court their absolute good faith in their decision, they would say that the following are some of the circumstances which led up to their decision and the facts upon which their judgment was based:
(a) That within the past year and a half they have received communications from the session of the First Presbyterian Church and from certain of the pastors who supply the pulpit at Cedar Grove, advising them of the conditions existing at Cedar Grove and recommending the discontinuance of the religious services as carried on under the terms of the trust; (b) that the community in the vicinity of Cedar Grove has changed since the establishment of the church; that Mr. Tulane, who was the son of a French Huguenot immigrant, bought the church from the Methodists to provide & convenient place of worship for his own countrymen in that community; that none of the people for whom the trust was originally established are now living at Cedar Grove, nor their descendants, so far as the defendants are able to learn; (c) that almost without exception the religious people now in Cedar Grove are connected with churches in Princeton, Hopewell, Blawenburg, etc., and are in easy reach of their respective churches, the most remote being not more than four miles from a church of his own denomination; (d) that the services of recent years have been poorly attended, the average at a preaching service being 15 in fair weather and at times an attendance of only 4 people upon said services, the people taking little or no interest in the work being done, there frequently being no one to play the organ; (e) the pastors who supply in turn the pulpit are agreed that the services as now carried on are not sufficiently needed or appreciated to justify their continuance, the only possible exception being the Baptist minister at Hopewell, who has some parishioners who find it more convenient to attend upon his preaching at Cedar Grove than in Hopewell; (f) that the abandonment and sale of the church as provided by the trust will not necessarily deprive the people of Cedar Grove who desire to attend, of Gospel privileges, in fact, it is not and has not been the desire of the trustees to close the Cedar Grove Church and discontinue the services, but it seemed that it was their clear and plain duty to do so under the terms of the trust and plan of the donor; that there is a schoolhouse within a few rods of the church which might be available for Sunday school and preaching services should the people desire such work to go on, besides, that it is not unlikely that, in the event of a sale, the church may be bought by some denomination of Christians who would better serve the community than is done under the provisions of the trust that prevents any responsible leadership or control in the pastoral work; that the plan of the donor seems to have utterly failed in the conduct of the services at Cedar Grove; (g) that it would be a perversion of the trust and a neglect of the defendants' duties as trustees if they longer continued the use of the trust property for the maintenance of services at Cedar Grove as provided in the trust.
The defendants admit that, although the complainants may have an interest in the subject-matter of the suit, yet they say that they are not answerable alone, but as well to all other persons residing in the neighborhood of the Cedar Grove Church, and that the bill should have been filed by the complainants on behalf of themselves and all other persons residing in the neighborhood who would come in and contribute to the expenses of the suit, and that the complainants should not be allowed to proceed without making parties the respective pastors of the Presbyterian, Methodist, Baptist, and Reformed Dutch Churches which are represented by the families residing in the vicinity of and who supply the pulpit in the Cedar Grove Church in accordance with the terms of the trust, the interest of whom a decree in this cause must directly and essentially affect (giving the names and addresses of the pastors), and praying to have the same benefit of this defense as if they had demurred to the bill.
A. S. Appelget and George C. Vanderbilt, for complainants. John V. B. Wicoff, for defendants.
WALKER, V. C. The right of the complainants to maintain this suit being challenged, that question will be examined before proceeding to the consideration of the cause upon its merits. Two grounds of objection are named in the answer, and for which the benefit of a demurrer is prayed, namely: (1) That, while the complainants may have an interest in the subject-matter of the suit, yet their bill should have been filed on behalf of themselves and all other persons residing in the neighborhood of the church who would come in and contribute to the expenses of the suit; and (2) that they should not be allowed to proceed without making parties the respective pastors of the Presbyterian, Methodist, Baptist, and Dutch Reformed Churches, who supply the pulpit, and who, it is said, have a direct interest which may be affected bythe decision of this cause. A third objection was urged upon the argument, and that is that the Attorney General is a necessary party in this proceeding. These objections will now be considered together.
In several cases in this state bills were filed by a limited number of individuals who were interested in a charitable trust, and the lights of the parties were adjudicated without the presence of the Attorney General and without the bills having been filed on behalf of the complainants and all others who were interested with them in the subject-matter. Of this class of cases Ludlam v. Higbee, 11 N. J. Eq. 342, and Mills v. Davison, 54 N. J. Eq. 659, 35 Atl. 1072, 35 L. R. A. 113, 55 Am. St. Rep. 594, are examples. But in MacKenzie v. Trustees of Presbytery, 67 N. J. Eq. 652, 685, 61 Atl. 1027, 3 L. R. A. (N. S.) 227, the Court of Errors and Appeals, speaking by Judge Green, cited Mills v. Davison, and intimated that, if strict regard for practice would have made it proper that the Attorney General be a party to such suits, all that need be said is that the matter was passed sub silentio, and that such cases are not authority in point of practice either pro or con. He then went on to expressly decide the point because the standing of the complainants as suitors had been attacked by the defendants, and cited Attorney General v. Moore's Exrs, 18 N. J. Eq. 256, s. ft, 19 N. J. Eq. 503, in which the procedure by an information by the Attorney General ex relatione was followed, and he referred to Green v. Blackwell, 35 Atl. 375, in which the procedure was pointed out as the one proper to be followed. In this case (Green v. Blackwell) Vice Chancellor Stevens held that a citizen of the state, not being a trustee or executor, and not otherwise especially interested, cannot file a bill in a case in which he seeks to do nothing more than vindicate a public right, but that in cases relating to charities he may be a relator in an information filed by the Attorney General, but that the presence of the Attorney General is indispensable.
One of the latest cases in our reports in which this question is exploited is that of Lanning v. Commissioners of Public Instruction, 63 N. J. Eq. 1, 51 Atl. 787, in which the Attorney General was a party defendant. The bill was filed by the complainant on behalf of himself and all others similarly situated and interested in the matters exhibited in the bill against the defendants as individuals and as commissioners of public instruction of the city of Trenton, who had succeeded a former public corporation as trustee under a will creating a trust for charitable uses; the purpose of the trust being to establish a library for the use of the teachers and pupils of the public schools, apprentices, mechanics, and such other persons as the trustee should deem expedient and most conducive to the public good. Chancellor Magie said, at page 8 of 63 N. J. Eq., at page 789 of 51 Atl.: "As this is a public trust, the Attorney General, representing the public, is a necessary party to the litigation. The general practice seems to be that a bill of this sort in a matter of a public trust is filed by the Attorney General, either on his own motion or on the relation of some parties interested. In this case the parties interested have presented the bill, and have made the Attorney General a party defendant thereto. No objection to this course having been made by the Attorney General, I think the proper parties are before the court, and that it is immaterial that the Attorney General is a defendant instead of a complainant. That was the view taken by the Massachusetts Supreme Court in Harvard College v. Society, etc., 3 Gray (Mass.) 280, and it accords with reason." The case of Attorney General v. Heelis, 3 S. & S. 67, was an information and bill by the Attorney General, in which 10 persons were the relators on behalf of themselves and all the other tenants and occupiers of houses and other premises situate in Great Bolton subject to the rates or assessments, and entitled to the benefit of certain acts of Parliament, and the defendants were the trustees under those acts. In cases where the relator has an interest in the matter in dispute, in which case his personal complaint being joined to and incorporated with the information given to the court by the Attorney General, the pleading forms what is called an information and bill. Daniels, Ch. Pl. & Pr. (6th Am. Ed.) *10. The rule is that, where property affected by a trust for public purposes is in the hands of those who hold it devoted to that trust, it is the privilege of the public that the state be entitled to intervene by its officers for the purpose of asserting on behalf of the public generally the public's right and interest. Id. *8. Where a bill has been filed by an individual of a numerous class in his own right, the court will generally allow an amendment to be made so as to make such individual sue on behalf of himself and the rest of the class even on final hearing. Daniel's Ch. Pl. & Pr. *245. The cestuis que trustent are those for whose benefit others are seised of real or personal property. 1 Bouvier's L. D. (Rawles' Rev.) p. 302. The cestui que trust is the real, substantial, and beneficial owner of an estate which is held in trust as distinguished from the trustee in whom the mere legal title is vested. 28 Am. & Eng. Ency. of L. (2d Ed.) p. 1100. In the case under consideration the cestuis que trustent are all the people of the neighborhood of the Cedar Grove Church, and the trustees are the trustees of the First Presbyterian Congregation at Princeton. The pastors of the several Christian denominational churches who conduct the services at Cedar Grove are neither cestuis que trustent nor trustees under the Tulane deed. If theywere either, a decree could not be pronounced in this cause without their presence before the court. As it is, they are not necessary parties, and were rightly omitted from the bill.
The conclusions reached upon this branch of the case are that the bill should have been filed by the complainants on behalf of themselves and all others who were interested with them in the subject-matter; that the Attorney General should have been joined with them, in which case the pleading would have been a bill and information, or the Attorney General should have been made a party defendant. The result is that the bill will have to be amended so as to make the complainants sue on behalf of themselves and the rest of the class who are interested with them, and the Attorney General will have to be made a defendant and brought into court by process before a decree can be pronounced. The case will be disposed of on the merits at this time as between the parties to the record, and, if the Attorney General, after being brought in, should be satisfied that a right conclusion has been reached, he may file a formal answer and submit to the judgment of the court. If, however, he should file a litigious pleading against the defendant trustees, the case will be opened to afford him an opportunity to take proofs in addition to the testimony which is already in. In the event of this course being taken, the view of the facts hereafter to be expressed will, of course, be put aside, and the whole question will be considered open.
Coming now to the facts of the case, it appears that the plan of union services, so called, outlined by the donor, has been followed by the defendants. No Sunday school was ever held in the Cedar Grove Church during Mr. Tulane's time, nor until four or five years ago, when Dr. Wykoff, the president of the board of trustees of the First Presbyterian Church of Princeton, consented to the use of the edifice for Sunday school purposes without consulting the other trustees or receiving any authorization from them. The holding of Sunday school services in the church was not a part of the donor's plan. It was shown that the trust fund, originally $5,000, had accumulated, and Mr. Howe, one of the trustees and secretary of the board, stated that the full income had not been used by the defendants to keep the church in order and to pay the various salaries and encourage the work of the church, because Mr. Tulane, after giving the fund, stated that he wished to pay all the expenses of carrying on the work, and did so for the 11 succeeding years, when he died. The average attendance upon the services of the church in Mr. Tulane's time was from 50 to 100. It has gradually dwindled until during the last three or four years it has ranged from about 5 to 25, occasionally going above the last number; the average being, perhaps, in the neighborhood of 15. Mr. Paul Martin, the secretary of the faculty of the Princeton Theological Seminary, was connected with the Cedar Grove Church during the year 1905. He preached there steadily during the year on each Sunday when the pulpit was to be filled by the pastor of the First Presbyterian Church, and only found a congregation of six or seven people. He thereupon made a canvass of the vicinity to ascertain the religious beliefs and church affiliations of the people, and found that they were almost universally connected with some church. He inaugurated some social gatherings to encourage interest in the church, but his efforts were unavailing. The trouble appears to have been with the plan, namely, that of union services, so called, which are services conducted by pastors of various denominations, neither the services nor the congregation at any time being distinctively of a denominational or sectarian character, as I understand it. Mr. Martin says that this plan never succeeds as far as his knowledge extends. There is other testimony to the same effect, and I am satisfied this view is correct. It seems that there can be no effective organization for religious work of this kind, and that doubtless is the reason of the want of success of the union plan.
The complainants contend that the conditions require the continued execution of the trust upon the plan and according to the intentions of the donor; but, failing that, that the trust property and fund should be applied cy pres. My judgment is inclined to be against the complainants upon the first proposition, for it seems to me that the prevailing conditions are such that the plan and intention of the donor is not being, and cannot be, efficiently and effectually carried out; but this question is not decided because of the power and discretion of the trustees in the premises as hereafter stated. As to the second proposition: I think the doctrine of cy pres does not apply, because the donor by the terms of the trust has precluded its application. In this connection it should be remarked that the complainants do not point out in what way the trust property and fund can be applied cy pres. Admittedly, in a proper case, the doctrine obtains in this state. In MacKenzie v. Trustees of Presbytery, 67 N. J. Eq. 652, 61 Atl. 1027, 3 L. R. A. (N. S.) 227, it was held that a trust for public worship and instruction for the benefit of an indefinite number of persons according to Presbyterian faith and polity, with certain added provisions, appeared to be good as a charity, and that such a trust is enforceable in this state either exactly or under the doctrine of cy pres approximately, and Judge Green, speaking for the Court of Errors and Appeals in that case, at page 673 of 67 N. J. Eq., at page 1036 of 61 Atl. (3 L. R. A. [N. S.] 227), quoting from Chief Justice Beasley in Hesketh v. Murphy, 36 N. J.Eq. 304, 310, said: "When a gift has been placed in the hands of a trustee to promote a charity which, from the mutation of circumstances, had become incapable of fulfillment, such gift was to be applied by the courts, exercising a purely judicial authority, to some cognate object." And again at page 675 of 67 N. J. Eq., at page 1037 of 61 Atl. (3 L. R. A. [N. S.] 227): "The sound rule now is—at least in America—that courts will not execute charitable trusts in a manner different from that intended, unless the intent cannot in the original mode be literally carried out; that they will preserve the substance, although the mode be departed from; and that they will not presume or invent an intention which the testator or donor has not fairly indicated." Now, upon the authority of these cases, it is perfectly apparent that, if the particular trust created by the donor is no longer capable of fulfillment owing to the changed conditions existing, the property and fund would be applied cy pres, were it not for the fact that the donor himself in the deed of gift has provided what shall be done with reference to the trust estate in the event of the failure of the object of charity which he endeavored to promote. Of course, the doctrine of cy pres—that is, the doctrine that a fund for charity being impossible of application according to the intention of the donor shall be applied as nearly as may be according to his intention—can have no existence when the donor himself provides for the application of the fund in the event of the failure of the charitable use to which he in the first instance directed that it should be devoted. In the deed under consideration Mr. Tulane provided that, upon failure of the trust, the property should go to meet certain expenses of the First Presbyterian Church of Princeton. Therefore, surely, if the trust has failed, the property must be applied as the donor directed, and not upon any theory of cy pres.
The crucial point in the case is the plenary discretion given to the defendants, the trustees, to authorize and decide when to discontinue the plan of holding the property for the use expressed in the trust deed, and their action under that power. Let it be remembered that the language of the deed is: "Whenever hereafter the use of said chapel for the purposes aforesaid shall have been necessarily abandoned, or discontinued through the neglect of the people to attend upon the services; or through the failure of the several pastors to preach in said chapel; or through the waste or destruction of said building; or whenever from any cause it shall seem to the said trustees, clearly expedient to discontinue the plan of holding the said property for such use, as aforesaid?they the said trustees being the judges and fully authorized to decide such discontinuance, upon all or any cause whatever—then in such case of nonuser, abandonment or discontinuance, the said trustees shall hold the said land and all buildings thereon, as the property of the said trustees for the use of the said First Presbyterian Church and Congregation of Princeton, with full power to sell the same and convert it into money and to hold the money arising from the sale thereof, forever, in fee, for the use of the board of trustees of said First Presbyterian Church and Congregation of Princeton aforesaid, of which they are the trustees, for meeting and defraying the contingent and ordinary expenses of said church and congregation." As to the $5,000 trust fund given by Mr. Tulane to the trustees under the deed at or about the time of the delivery of that instrument, it was provided by the donor that whenever the church should have ceased to be used for preaching and holding religious services therein, and should have been sold and abandoned for such use, then the $5,000 was to be held for the same use as the church and land, or the money arising from the sale thereof was to be held, namely, for defraying the contingent and ordinary expenses of the First Presbyterian Church and Congregation of Princeton. Where a power is given to trustees to do or not to do a particular thing at their discretion, the court has no jurisdiction to lay a command or prohibition upon them as to the exercise of that power, provided their conduct be bona fide, and their determination is not influenced by improper motives. 2 Lew. on Tr. *613, and note "o." Where absolute discretion is given to trustees as to the exercise of a power, the court will not compel its exercise unless it is improperly or unreasonably exercised. Tempest v. Lord Camoys, 21 Ch. Div. 571. See, also, Marquis of Camden v. Murray, 16 Ch. Div. 161. Where trustees had power to apply the income of a fund in their "uncontrolled and irresponsible discretion," the court, while expressing an opinion that the trustees were not acting judiciously, declined to interfere with their discretion; there being no proof of mala fides. Tabor v. Brooks, 10 Ch. Div. 273. See, also, Gisborne v. Gisborne, 2 App. Cas. 300; Attorney General v. Governors of Harrow School, 2 Ves. 551; Brophy v. Bellamy, 8 L. R. Ch. App. 798; Collins v. Vining, C. P. Coop. 472. Where in a trust deed for the satisfaction of debts a discretion is vested in the trustees to refuse the benefit of that deed to any creditor, although his claim might be lawful, the court could not empower a master to ascertain who were entitled to the benefit of the deed. Wain v. Earl of Egmont, 3 My. & K. 445.
In Cowley v. Hartstonge, 1 Dow. 361, Lord Chancellor Eldon remarked, at page 378, that, if a testator clearly manifested his intention on the face of the will that his trustees should have certain discretion, the court would not control that discretion. In Talbot v. Marshfield, 2 Dr. & Sm. 285, Vice Chancellor Sir R. T. Kindersley said that the intention of the testator clearly was that, if acertain exigency arose, the trustees should, if they thought fit, in the exercise of their discretion, notwithstanding the gift in remainder, hand over the corpus of the fund to the persons entitled for life; and the court would not interfere with the honest exercise of such discretion. Where a testator directed two trustees to apply certain rents or such parts as they or he should in their or his discretion see fit in the maintenance and education or advancement in life of his younger children during the life of his wife, and one of the trustees having died, the court would not interfere with the discretion to be exercised by the surviving trustee. Livesey v. Harding, 1 Tarn. 460. In Gisborne v. Gisborne, 2 App. Cas. 300, Lord Cairns, speaking for the House of Lords, said at page 305: "The trustees are not merely to have discretion, but they are to have 'uncontrollable'—that is, uncontrolled-authority. Their discretion and authority, always supposing that there is no mala fides with regard to its exercise, is to be without any check or control from any superior tribunal." In re Lofthouse, An Infant, 29 Ch. Div. 921, Vice Chancellor Bacon, referring to Gisborne v. Gisborne, ubi supra, remarked at page 926: "There the trustees had reposed in them an 'uncontrollable authority.' and their lordships refused to interfere with that authority." In Marquis of Camden v. Murray, 16 Ch. Div. 161, Vice Chancellor Malins, at page 170, speaking of the court's exercise of control over trustees, remarked: "In certain cases—not in all cases, because, if their discretion is absolutely uncontrollable, I should not interfere—that I have recently decided, after full investigation, in the case of Tabor v. Brooks, 10 Ch. Div. 273, where there was an absolute discretion in trustees, although they exercised their discretion in a manner most unsatisfactory and in a way I entirely disapproved of, yet I felt myself bound to come to the conclusion on the authorities and principles of the court that I could not control them where there was no mala fides, and where they were honestly exercising their power." In this state the Court of Errors and Appeals in Read v. Patterson, 44 N. J. Eq. 211, 14 Atl. 490, 6 Am. St. Rep. 877, held: "Where a power is coupled with a trust or duty, a court of equity will enforce a proper and timely exercise of the power; but, if it be given upon a trust to be exercised in the discretion or upon the judgment of the trustee, the court will not interfere with the trustee's discretion in executing the trust, unless he has exercised his discretion mala fide"—and cited with approval many English cases, among them Livesey v. Harding, Brophy v. Bellamy, Tempest v. Lord Camoys, In re Lofthouse, ubi supra.
This case is an appeal from the conscience of the trustees to the conscience of the court, and, assuming that the court, upon the facts, would be of the opinion that the complainants are entitled to the relief they pray, namely, that the defendants be enjoined and restrained from selling and conveying away any part or parcel of the Cedar Grove Church property, and further, that they are entitled to have the trust property applied cy pres, still the court would be powerless to grant such relief unless the defendants had acted mala fides. There is no proof of bad faith in this case. On the contrary, the trustees, all honorable and intelligent men, appear to have acted in a way entirely warranted by the facts, and, while not obliged under the terms of the trust to give reasons for their action in that regard, they have given some of them, which may be succinctly stated as follows: That certain of the pastors who supply the pulpit at Cedar Grove have recommended the discontinuance of the religious services carried on under the plan by reason of existing conditions; that the community in the vicinity of the church has changed since its establishment, and that none of the people for whom the trust was originally created are now living at Cedar Grove; that almost without exception the religious people there are connected with other churches; that the services of recent years have been poorly attended; that the abandonment and sale of the church will not deprive the people of Cedar Grove of gospel privileges. They say that it seems to them to be their plain and clear duty to discontinue the services under the terms of the trust and plan of the donor. And in this I am inclined to agree with them, especially in view of the great falling off in the attendance upon the services, amounting, at times at least, almost to an abandonment of the church as a place of religious worship. However, this question is not decided, as I before remarked, and the reason is that its decision was by the donor confided to the trustees who have made a bona fide exercise of their power in that regard. This being so, the court may not review their judgment in the premises.
The result is that as the case stands the prayer of the complainants must be denied. The amendment above mentioned will be directed to be made, and the Attorney General must be made a party defendant. After he appears and answers, ultimate disposition will be made of the case as above indicated. As this proceeding is in good faith and requires a construction of the trust instrument under which the property is held, it would appear to be a case for the allowance of costs and counsel fees to both parties under the authority of Attorney General v. Moore's Ex'rs, 19 N. J. Eq. 503, 519. I will hear counsel further on this question at any time before final decree.