Akscyn v. Bank , 78 N.H. 196 ( 1916 )

By the statute, c. 232, Laws 1901, the Roman Catholic Bishop of the diocese of Manchester and his successors in office are created a corporation sole under the name of the Roman Catholic Bishop of Manchester with power to take, hold and manage property for the purposes of the Roman Catholic church. The sixth section of the chapter is: "It is also hereby provided that said corporation shall be regarded as holding, in trust, the property of each parish, in said diocese, for the use and benefit of the members of such parish; and said corporation shall not convey by mortgage, or otherwise pledge, the property of any parish for the debts, or other obligations, of any other parish within the diocese; the property of each parish thereof to be only liable and subject to a mortgage or pledge to secure or satisfy debts and obligations incurred and created for the use and benefit of such parish." The case mentions the "St. Cassimer parish in Nashua," an association organized by the plaintiffs and others, and the "Lithuanian Roman Catholic Church in Nashua," and the suit is brought by the plaintiffs as members of the "Lithuanian St. Cassimer Roman Catholic Society of Nashua." Whether this distinction in nomenclature refers to different organizations does not appear in the case and is immaterial. The only purpose of the St. Cassimer Society, so far as disclosed, is the raising, mainly by gifts, of the fund in dispute. This fund is not the property of the society raising it, but is a trust fund, to be held by the proper legal trustee upon the trust for which it was given, which in general terms was the securing of church accommodations for the Lithuanian Catholic congregation heretofore accustomed to assemble in the basement of the Church of the Immaculate Conception. Whether the society as organized was the parish, or the parish means the unorganized congregation, the beneficial use of the fund belonged to the parish, and, in the absence of specific evidence to the contrary, the presumption is the funds were given in view of the law of the state (MacDonald v. Railway, 71 N.H. 448, 450), which vests in the Bishop of Manchester the legal title to the property of Roman Catholic parish. There was no error in the decree declaring that the fund in dispute is the property in trust of the Roman Catholic Bishop of Manchester. But the settling of the legal title the bishop does not settle the terms of the trust. He will hold the fund, if he takes it, upon the same trusts as the money was held by the committees collecting it or the St. Cassimer Society, those imposed thereon by the subscribers to, or donors of, the fund.

It is claimed the money, or portions of it, was given upon the trust or condition that it was to be used only for the purchase of a church building, the title to which, when paid for, should be in the name of the St. Cassimer Roman Catholic Society of Nashua. If this be so, it is apparent that neither the committee, the society nor the bishop are authorized to use the money for another purpose. The absence of such limitation of the trust is not determined by a decree in a proceeding to which only claimants of the legal title are parties. The decree ordered would not protect the rightful holder of the legal title in a proceeding to secure due execution of the trust. It seems clear from the case that the bishop would not, and could not, accept the trusteeship of a fund which he was required to administer by the purchase of a church building the title to which should be in a Catholic society instead of in the Bishop of Manchester as a corporation. The present controversy is a regrettable one and apparently useless, since the property, money or a building, is charged with the same trust whoever holds the legal title. But having been entered upon it should now be ended. If all the donors of the fund are made parties and the attorney-general is joined in behalf of the public (Rolfe and. Rumford Asylum v. Lefebre, 69 N.H. 238, 240), after hearing upon such notice as may be ordered, a decree can be made which will finally determine the disposition of any portion of the fund which it may be found was donated for a purpose which cannot be carried out. The question is, not what the plaintiffs and most of the members of the society understood, but what did those who gave intend.

The plaintiffs sue as members of the Lithuanian St. Cassimer Roman Catholic Society of Nashua to enforce a right of the association. To such a proceeding the association is a necessary party. Kidd v. Traction Co.,72 N.H. 273, 286. There should be notice to, or an appearance for, the society.

Case discharged.

All concurred.