Old South Society In Boston v. Uriel Crocker &Amp; Others

• Decision Date: 23 October 1875
• Citation: 119 Mass. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Old South Society in Boston v. Uriel Crocker & others

119 Mass. 1

Old South Society in Boston v. Uriel Crocker & others

Supreme Court of Massachusetts

October 23, 1875

Suffolk.

Bill dismissed.

Gray C. J., did not sit. Ames, J., absent.

OPINION

The first case was a bill in equity by the Old South Society against Uriel Crocker, Osmyn Brewster, David Buck, Jacob Dresser, Joseph Ballard, Simon G. Cheever, E. C. Milliken Harriet Gray, Ellen Gray, Elizabeth Coverly, Mercy Jellison and Abigail Armstrong, members of said society, alleging as follows:

On or before April 1, 1669, Captain Thomas Savage, William Davis and others joined themselves together and formed a "church of Christ," for the purpose of the public religious worship of God in the town of Boston, with the purpose to erect a meeting-house, wherein the said church might assemble themselves together publicly to worship God.

For the purpose of aiding in the establishment of and maintaining such church, Mary Norton, widow of John Norton, did, on April 1, 1669, "for divers good causes and considerations, mee thereunto moving, and more especially for and in consideration of that indeared affection that my late dear husband in his life time did beare, and my self doe beare unto his and my assured friends, Captaine Thomas Savage, Capt. William Davis, Mr. Hezekiah Usher, Mr. Edward Rawson, Mr. John Hull, Mr. Peter Olliver, Mr. Josiah Scottow, Mr. Edward Raynsford, Mr. Richard Trewsdall, and Mr. Jacob Elliot, all of the said Boston, and in confidence of their faithfulness to perform that trust which I shall repose in them," make a deed of conveyance or trust, wherein she conveyed a certain portion or strip of land, the same being a part of her homestead lot or garden, and being situated on the corner of what is now called Milk and Washington Streets, in Boston, and being the land substantially now occupied by the old meeting-house and the block of stores on Milk Street, to the persons above named, "and to such as they shall associate to themselves, their heirs and successors forever, for the erecting of a house for their assembling themselves together publiquely to worship God, as also the erecting of a dwelling house for such Minister or Ministers as shall be by them and their successors from time to time orderly and regularly admitted for the Pastor or Teacher to the said Church or Assembly, and for the accommodation of the said dwelling house for the Minister or Ministers as shall from time to time bee chosen as aforesaid, and for the accommodation of the Meeting House with convenient passages of ingress, egress and regress for the people, that shall there from time to time assemble as aforesaid, and for noe other intent use or purpose whatsoever."

Thereupon the said Thomas Savage and others proceeded to erect a meeting-house, and a dwelling-house for their minister, and said church of Christ was duly organized, and adopted the name of "The Third Church in Boston."

The said church and its minister entered upon and took possession of the land so given, and occupied the same for a long time for a church, and dwelling-house for the minister of the church.

On June 30, 1677, the said Mary Norton by a deed, reciting the conveyance in the preceding deed, the building of a meeting-house by Savage and others, and their repairing the grantor's house and building an addition to it for a habitation for a minister at her desire, and her promise to give them the land on which they built, conveyed to said Savage and five others, the survivors of those before mentioned, "and to such as they have associated unto them in church fellowship, or shall be associated, to them and to their heirs and successors forever, for the ends and purposes in the first above mentioned deed of April the first, 1669, is fully and amply declared," a certain additional piece of land upon which they had before built an addition to the minister's house, being the land under said addition, "for the use of their Ministers or Ministry orderly chosen by the said Society being the Third Church of Christ in Boston from time to time and at all times forever."

The will of Mary Norton, dated August 20, 1677, contained the following, among other clauses:

"Item. I give and bequeath unto the Third Church of Christ in Boston, my now dwelling house, with all the land belonging to the same, as it is situate near the Third Meeting House in Boston aforesaid, with all profits, privileges, rights, and appurtenances whatsoever to the same belonging or appertaining, for the use of the Ministry in the said Church successively forever. And my will further is, that the said Third Church, or some person or persons in their behalf, shall be possessed of the said House and Land, with the rights and appurtenances, at and immediately after my decease, for the reasons following: First, Because many of the particular members of the said Third Church have been large contributors to that Meeting House and Church treasure, from whom they issued. Secondly, Because of the great charge that the brethren of the said Third Church have been at in building their meeting house. Thirdly, Because I conceive it will prove inconvenient for a minister to live so near a meeting house where he doth not preach: Provided, alway, that the said Third Church, or some person or persons in their name and behalf, pay or cause to be paid unto the first Church of Christ in Boston, the full and just sum of one hundred pounds of lawful money of New England within the space of one year next after my decease; and my will is that the payment of the said sum and tender thereof, be made at or in my now dwelling house.

"Item. I give and make over by these presents all my deeds and other writings that concern my said house and land in said Boston, unto Capt. John Hull and Mr. Jacob Elliot, all of Boston aforesaid, as Trustees for the said Third Church of Christ in Boston, for the end and use before declared."

Savage and others from time to time associated unto themselves various persons as composing the Third Church, and in that capacity took possession of and occupied said lands, and were and became seised in fee simple thereof, and were the managers of all the property of said church.

In 1729 the said church proceeded to remove the old meeting-house and erect a new one; and in the new meeting-house those who had associated themselves together as the successors of Thomas Savage and others purchased pews, and the same were conveyed to them by the officers of the church, and the pew proprietors in the meeting-house, which at this time was called the Old South Meeting-house, were and became the associates and successors of Thomas Savage and others, to whom the said estates had been conveyed and devised.

At about that time the church, which had formerly been called and named the Third Church in Boston, and afterwards by reason of its situation the South Church, now began to be called the Old South Church, and the house where the church and congregation assembled together for public worship was called the Old South Meeting-house, and has been so called ever since, and the plaintiff claims and believes that the name was legally changed from the Third Church to the Old South Church, and that the Old South Church is the legal successor of the Third Church, and that the pew proprietors, as constituted at the time of the building of the church in 1729, were the regular and duly constituted successors of Thomas Savage and others, and that the lands described in said deeds and will were duly and properly vested in the pew proprietors in the Old South Meeting-house until the year 1845.

By the St. of 1845, c. 229, the proprietors of pews in the Old South Meeting-house were made a corporation by the name of the Old South Church in Boston, (which name was subsequently, by the St. of 1859, c. 88, changed to the Old South Society in Boston,) with all the powers and privileges, and subject to all the duties and liabilities contained in the Rev. Sts. cc. 20, 44; and by said act said corporation was authorized to take and hold to the use of said corporation and its successors and assigns in fee simple, all and singular that parcel of real estate situate on Milk, Washington and Spring streets, with authority to demise and lease all or any of its real estate, except the meeting-house and land under the same.

In 1800, the then pew proprietors caused the ancient house of Mary Norton to be removed, and in the place thereof erected a block of stores on Washington Street, which ever since have been let, and the income thereof applied to the paying the debts and expenses of the society and to the support of the public worship of God in the city of Boston and for charitable and parochial purposes; and afterwards, in the year 1845, the society removed the pastor's house on Milk Street, and in the place thereof erected a block of stores, which have been leased, and the income thereof applied for the purposes aforesaid; and afterwards the society let for business purposes the chapel owned by them, situated on Spring Lane and upon land, a part of which was originally given by Mary Norton, and a part acquired by purchase. So that at the annual meeting of the corporation in the year 1869, the entire land owned by the society, nearly all of which had been given by Mary Norton, was, with the exception of the land and yard occupied by the meeting-house, entirely occupied by stores, &c., for business purposes, and the income arising therefrom was entirely used for paying the debts and expenses of the society, and for parochial and charitable purposes.

At the meeting of the pew proprietors held in April, 1869, after due consideration, and for reasons that seemed good to the members of the corporation, a vote was passed looking towards...