Opinion
05-13-1913
RECTOR, ETC., OF ST. JAMES CHURCH v. WILSON, ATTY. GEN., et al.
Gilbert Collins, of Jersey City, and Thomas V. Arrowsmith, of Long Branch, for complainant. Edmund Wilson, Atty. Gen., pro se. William J. Leonard, of Atlantic Highlands, for other defendants.
Bill by the Rector, Wardens, and Vestrymen of St. James Church against Edmund Wilson, Attorney General, and others to construe a will. Decree for complainants, and cross-bill dismissed.
Gilbert Collins, of Jersey City, and Thomas V. Arrowsmith, of Long Branch, for complainant.
Edmund Wilson, Atty. Gen., pro se. William J. Leonard, of Atlantic Highlands, for other defendants.
LEWIS, V. C. The bill is filed to obtain direction and a construction of the will of Edmund West, who died May 8, 1885, leaving a last will and testament duly executed and admitted to probate in the office of the surrogate of the county of Monmouth, whereby he gave the sum of fourteen thousand dollars ($14,000) to his executors therein named to pay the income thereof to one Rufus T. West, and to one Emma D. West, during their joint lives, and upon the death of the survivor, without either of them leaving issue, then to pay the said sum of fourteen thousand dollars ($14,000) to the complainants, the rector, wardens and vestrymen of St, James Church, in trust, for the purpose of building and erecting a church to be named "St. Mary's Episcopal Church," on a certain tract of land conveyed by the testator to the complainant during his lifetime, which tract of land is situated near Wolf Hill in the township of Eatontown, in the county of Monmouth and state of New Jersey; the said church to be built within the space of three years after the happening of the contingency upon which the said gift was to take effect. Emma D. West died on the 31st day of December, in the year 1896; Rufus T. West died on the 8th day of February in the year 1908, neither of them leaving any issue, and, upon the death of the said Rufus T. West, the said sum of fourteen thousand dollars ($14,000) came into the hands of the complainant. At the time of the death of the said testator, the neighborhood of Wolf Hill was a growing and flourishing one by reason of the Monmouth Park Association, which was used during many months of the year for the racing of horses, furnishing employment to large numbers of persons in the vicinity, and attracting large numbersof transient visitors, and of persons who resided there during the whole of the summer months in the vicinity. After the year 1892 the Monmouth Park Association ceased to hold race meetings upon its grounds, and the buildings thereon were dismantled and torn down, and the railroad tracks running thereto were taken up and carried away, and the lands of said association were sold and conveyed to other persons. The proofs show that the discontinuance of the said race meetings has resulted in the complete stagnation of the village of Oceanport, which had grown up in the vicinity of Wolf Hill by reason of the large business and trade which had arisen by reason of the numbers of persons attracted to the vicinity by the said race meetings; that the population of the said village had stagnated, if not declined. There is no prospect of any reasonable growth of such population, and, as a result, an Episcopal church erected on the said lot at Wolf Hill could not reasonably be expected to be supported either financially or by the attendance of a congregation, because of the very few members of the Protestant Episcopal Church in or near the locality of Wolf Hill. The proofs also show that such members as do reside in the vicinity are affiliated with other congregations of the Protestant Episcopal Church now in existence. No new parish can be created at such place under the canons and laws of the Protestant Episcopal Church in the United States of America for lack of assurance that sufficient money could be raised to pay the annual salary of a priest to conduct the services in such church, and for lack of a sufficient number of male communicants of the Protestant Episcopal Church to comprise a lawful vestry of governing body thereof under the laws of the state of New Jersey. In view of these facts, it seems to me highly undesirable and contrary to public policy to carry out the particular intent of the testator to complete a church building to be named "St. Mary's Episcopal Church" on the tract of land in question.
The learned and exhaustive opinion of Judge Green in the case of MacKenzie v. Trustees of Presbystery of Jersey City, 67 N.J.Eq. 652, 61 Atl. 1027, 3 l. R. A. (N. S.) 227, clearly establishes the doctrine of cy pres in the jurisprudence of this state. In this case the New Jersey decisions on the subject are considered with the greatest of care, and are examined in detail. The rule to be gathered from such consideration seems to be that the general charitable intent of a testator may be carried out in case it should be undesirable, impracticable, or against public policy, although not impossible, under altered circumstances, to carry out the special intent. The subject has been dealt with in several decisions of the Court of Chancery since the MacKenzie Case, and, while in the case of Brown v. Condict, 70 N.J.Eq. 440, 61 Atl. 1055, the court refuses to make cy pres application on the ground that it was impossible at the time of the death of the testator to carry out his actual charitable intention, yet it avows that cy pres application can be had even in this event, if the general intent of the testator can be accomplished.
The suggestion of the solicitor of the residuary legatees that the trust is void for impossibility does not appear by the facts in this case. The charitable legatee here not only exists, but is able to carry out the trust, and applies to this court for an application of cy pres, so that the terms of the trust should be modified so as to meet conditions which have changed since the making of the will.
It appears, from the last will and testament of the testator, that his general charitable intent in making the gift was to benefit the Protestant Episcopal Church in the neighborhood of Wolf Hill, and I am satisfied that it was his will that such general charitable intent be carried out in the event that it should prove undesirable, impracticable, or contrary to public policy, to carry out the particular intent My conclusion is that the defendants, the next of kin of the testator, are not entitled to any of the fund, and that the said fourteen thousand dollars ($14,000), with its accumulations, must be disposed of by the complainant for the benefit of the Protestant Episcopal Church in the United States of America in the neighborhood of Wolf Hill, in such a manner as will most nearly effect the general charitable intention of said testator, Edmund West, and the complainant must propose a scheme in this court for the disposition of the said fund in accordance with the findings of the court.
The cross-bill of the defendants will be dismissed.