Trustees of Protestant Episcopal Church in N. H. v. Danais

• Decision Date: 30 November 1967
• Docket Number: No. 5673,5673
• Citation: 235 A.2d 516,108 N.H. 344
• Parties: The TRUSTEES OF the PROTESTANT EPISCOPAL CHURCH IN NEW HAMPSHIRE and Christ Church of Exeter v. Robert DANAIS, Director of Charitable Trusts.
• Court: New Hampshire Supreme Court

Page 516

235 A.2d 516

108 N.H. 344

The TRUSTEES OF the PROTESTANT EPISCOPAL CHURCH IN NEW HAMPSHIRE and Christ Church of Exeter v. Robert DANAIS, Director of Charitable Trusts.

No. 5673.

Supreme Court of New Hampshire.

Argued Oct. 4, 1967.

Decided Nov. 30, 1967.

Edward A. Gage, Exeter (by brief and orally), for plaintiffs.

Norman E. D'Amours, Asst. Atty. Gen. (by brief), for defendant.

GRIFFITH, Justice.

The petition involves a tract of land acquired by Christ Church on August 28, 1866 by warranty deed of William O. and Clarissa T. Smith reciting the 'premises are to be used for the purpose of erecting and maintaining a house of worship for said Church.' The habendum further provided that the grant to the church is to be held for the above named purpose 'so long as said Christ Church shall continue to exist and if from any cause said Church shall cease to exist then to the Missionary Fund of the Episcopal Diocese of New Hampshire.'

It appears from the petition that a church building was erected and that it has been in continuous use until the present time. The growth of the parish of Christ Church in the hundred years that have elapsed since the deed is such that the present church is no longer adequate for the membership without extensive reconstruction. Reconstruction of the present wooden edifice would be uneconomical and impractical, as the land on which the church stands is inadequate and adjacent land is unavailable. Christ Church has therefore erected a new church complex in Exeter and has agreed to sell the present church building and land to Exeter Academy whose land surrounds it on three sides. The sum of $29,800 to be paid to the church for the property would be applied to cost of land and construction of the new church facilities.

The archives of the Protestant Episcopal Church in New Hampshire have been searched and there is no record of any legal entity known as the 'Missionary Fund of the Episcopal Diocese of New Hampshire' and the plaintiffs' information and belief are that there is not now and never has been such an entity. The plaintiff Trustees of the Protestant Episcopal Church in New Hampshire were incorporated by Laws of 1846, c. 441.

The following questions were transferred by the Trial Court (Dunfey, J.), without ruling:

'1. By the deed of William O. Smith and Clarissa T. Smith was a charitable trust created?

'2. Did said deed setting forth the purpose of such conveyance convey title in trust to the grantees free from any reversionary interest in the grantors or their heirs, if Christ Church should continue to exist but discontinue using the premises for the stated purpose?

'3. By naming a non-existent fund of the Episcopal Church as grantee of a contingent interest did the grantors create a contingent interest in the actual governing body of the Episcopal Church in New Hampshire, i.e., The Trustees of the Protestant Episcopal Church in New Hampshire?

'4. If a valid charitable trust was created in Christ Church, Exeter, subject to the condition of its continued existence, may it have authority to deviate from the terms of the trust and sell the premises and devote the proceeds to paying a part of the cost of the construction of the new house of worship of Christ Church?'

The deed indicates a general intention to devote the land to the religious purposes of Christ Church and the 'Missionary Fund of the Episcopal Diocese of New Hampshire,' and contained no reverter clause. The language used indicates an intention to create a charitable trust with no rights retained by the grantors but a contingent grant to the 'Missionary Fund' if the original grantee ceased to exist. Clearly a charitable trust was...