corporation or other political subdivision there- | 2. CHARITIES of." Section 3, subd. 3.

66

'Employé' means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants." Section 3, subd. 4.

The law further provides:

"Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employé resulting from an accidental personal injury sustained by the employé arising out of and in the course of his employment. Section 10.

The determination of the question here, through the application of these provisions, is not difficult. The company was an employer, because it employed workmen in an hazardous employment, to wit, preparing macaroni, a foodstuff. Bargey, the deceased, was not an employé, because he was not engaged in the preparation of macaroni. The placing of the partition was not an adjunct of or within a department of the employment of preparing macaroni. It was a specific act, for which Bargey was specially employed, which had no relation to the hazardous employment, except that it made more useful, within the contemplation of the employer, the building in which the employment was carried on. He was not engaged in the preparation of macaroni, even as in partitioning off a part of the residence of a physician as a professional office he would not be engaged in the occupation of practicing medicine. He was not, within the intendment of the law, an employé of the

company.

The appellant invokes also the part of the language creating group 42 as follows: "Construction, repair and demolition of build

ings."

It is answered by the fact that the company did not carry on the occupation of constructing, repairing, and demolishing buildings for pecuniary gain. This conclusion is obvious beyond the need of discussion.

The findings and determination of the appellant were without support in the evidence and the order should be affirmed, with costs against the state industrial commission.

WILLARD BARTLETT, C. J., and HISCOCK, CUDDEBACK, HOGAN, and POUND, JJ., concur. SEABURY, J., dissents, on dissenting opinion of WOODWARD, J., below. Order affirmed.

(224 Mass. 474)

CRAWFORD et al. v. NIES et al. (Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1916.)

1. TRUSTS 43(2)-PAROL EVIDENCE.

A trust deed, free from ambiguity, cannot be varied or controlled by extrinsic evidence. [Ed. Note.-For other cases, see Trusts, Cent. Dig §§ 63, 64; Dec. Dig. 43(2).]

13-CREATION-CONVEYANCE

A deed conveying realty to trustees and their successors, to build a house or place of worship for the use of the members of the Methodist Episcopal Church, and providing for the method of electing trustees in case of the death or disqualification of a trustee created a valid charitable trust under which the legal title vested in the trustees for the use and benefit of the members of said church, who might choose to attend worship in the church erected and maintained on the land.

Cent. Dig. § 37; Dec. Dig. 13.]
[Ed. Note. For other cases, see Charities,

3. RELIGIOUS SOCIETIES

CONVEYANCE-STATUTES,

20- PROPERTY

Under St. 1809, c. 70, St. 1847, c. 280, §§ 1, 2, Gen. St. c. 30, §§ 43-45, St. 1874, c. 177, Pub. St. c. 39, §§ 1, 4, or St. 1884, c. 78, relating to the powers of trustees of any society of the Methodist Episcopal Church to transfer parochial property, a voluntary religious association never had title to the property given it in trust, which the trustees could convey.

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 130-143; Dec. Dig. 20.]

4. RELIGIOUS SOCIETIES 18-INCORPORATION-EFFECT ON PROPERTY RIGHTS.

ciety in whose favor a valid charitable trust in St. 1809, c. 70, incorporating a religious sorealty had been created, under which the legal title vested in trustees for its use, did not change the trust, which remained same as if the statute had not been passed.

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 111-129; Dec. Dig. 18.] 5. RELIGIOUS SOCIETIES 18-TRUSTEES IN SUCCESSION-VESTING OF TITLE-STATUTE.

Before the enactment of St. 1878, c. 254, § 1, the new trustees filling vacancies in the number quire title, unless by conveyance from the survivof trustees of a religious society could not acing members of the original board or their successors to whom title had been lawfully transferred.

[Ed. Note.-For other cases, see Religious Societies, Cent. Dig. §§ 111-129; Dec. Dig. 18.] 6. MORTGAGES 32(3)-DEED AS MORTGAGE -INTENTION.

Where the trustees of land given in trust for the erection of a church building, and the maintenance of a place of worship under a particular church discipline, used forms of transfers, not technically adopted for the purpose of providing funds and which, while on their face were absolute in form, were understood by all parties. to be intended as a mortgage and as security for the reimbursement of whomsoever might lend or advance the required funds, the transfers were to be given effect as a mortgage.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 60; Dec. Dig. 32(3).] 7. CHARITIES 47-TRUST-APPOINTMENT OF TRUSTEE-EFFECT.

Where there was no provision in a deed, creating a valid charitable trust in realty for the benefit of a religious association, authorizing a resettlement or devolution of the property in the discretion of the trustees, or releasing it from the charitable purpose to which it had been dedicated, and where the property remained in the control and management of the original trustees or their successors, both before and after its incorporation, the transfer to the board of trustees appointed by the court did not extinguish the charity, as it could not be remoulded or changed to a trust, to be treated and administered exclusively for the maintenance and benefit of the society; and, too, if the trustees appointed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

under the church discipline had no title, the] 13. CHARITIES 37-CHARITABLE TRUSTStrust was not extinguished.

Such cross-bill, under the prayer for general designation refer to the complainants in the relief, could not be maintained for the removal cross-bill as the plaintiffs, and to the reof trustees unwilling in the administration of spondents, who alone excepted, as the dethe trust to accede to the views of the cross- fendants. But their first exception having complainants and the minority agreeing with been waived, and the remaining exceptions, them. [Ed. Note.-For other cases, see Religious So- that the records of the society admitted in cieties, Cent. Dig. §§ 154-167; Dec. Dig. 25.] evidence were not properly identified and

were offered for the purpose of varying the terms of a written instrument, and that the records "had no bearing on the matters in issue," being without merit or immaterial, the question for decision is, whether upon the record now presented the order for the decree, "that the trustees appointed by the court decree of 1913 are entitled to the proceeds of the sale of the Bromfield real estate and are to hold them in accordance with the trusts of the Jackson deed of 1806," should be reversed or modified. McKarren v. Boston & Northern Street Railway, 194 Mass. 179, 80 N. E. 477, 10 Ann. Cas. 961; First Bap-ed shall die or cease to be a member or memtist Church of Sharon v. Harper, 191 Mass. 196, 77 N. E. 778; Crawford v. Nies, 220 Mass. 61, 67, 107 N. E. 382.

or

United States. of America according to the rules and discipline which from time to time may be agreed upon and adopted by the ministers and preachers of the said church at their general conferences in the United States of America, and in further trust and confidence that they shall at all times forever hereafter to the said church as shall from time to time permit such ministers and preachers belonging be duly authorized by the general conference of the ministers and preachers of the said Methodist Episcopal Church or by the yearly conferences authorized by the said general conferences and none others to preach and expound God's Holy Word therein, and in further trust and confidence that as often as any one or more of the trustees herein before nambers of said church, according to the rules and discipline as aforesaid, then and in such case it shall be the duty of the stationed minister or preacher authorized as aforesaid who shall [1, 2] The specific prayers in substance ask, have the pastoral charge of the members of the that the proceeds of the sale of the trust said church to call a meeting of the remaining property shall be held by the plaintiffs and trustees as soon as conveniently may be, and when so met the said minister or preacher shall their successors for the support of a church proceed to nominate one or more persons to building or place of worship for the use of fill the place or places of him or them whose the members of the "Methodist Religious So- office have been vacated as aforesaid, provided ciety of Boston," subject to the rules and dis- the person or persons so nominated shall have been one year a member or members of the cipline of the Methodist Episcopal Church of said church immediately preceding such nomthe United States, the trustees forever to ination and at least 21 years of age, and the permit such ministers and preachers as trustees so assembled shall proceed to elect may be duly authorized by the authorities of person or persons so nominated to fill such vaand by a majority of votes shall appoint the said church to preach therein, and for the cancy or vacancies in order to keep up the general uses and purposes of the society un- number of nine trustees forever, and in case of der and in accordance with the discipline; an equal number of votes for and against the said nomination the stationed minister that the trustees, heretofore appointed by preacher shall have the casting vote. Providdecree of this court be discharged, and the ed, nevertheless, that if the said trustees or any plaintiffs and their successors, elected ac- of them or their successors have advanced or cording to the discipline of the "Religious shall be responsible for any sums of money on shall advance any sums of money or are or Society of Boston" as the discipline may account of the said premises, and they, the from time to time provide, should be the said trustees, or their successors be obliged to trustees who at all times are to be subject pay the said sum or sums of money by selling the pews in the said house when completed for to the control of and accountable only to the that purpose, subjecting the purchasers, howchurch authorities, with a general prayer for ever, to the rules and discipline of the said such other and further relief as the court Methodist Episcopal Church as aforesaid, or deems appropriate. While the master states by a mortgage on the said premises, or by selling the said premises after notice given to the there was no evidence that any society was ev- pastor or preacher who shall have the overer known as the "Methodist Religious Socie- sight or charge of the congregation attending ty," except as such inference might be drawn divine service on the said premises, if the money due be not paid to the said trustees or their from the fact that when the trustees were in- successors within one year after such notice corporated by St. 1809, c. 70, they were desig- given, and if such sale shall take place the said nated under the name of "Trustees of the trustees or their successors, after paying the Methodist Religious Society in Boston," the debt and all other expenses which may be due, from the money arising from such sale shall second as well as the first report leaves no deposit the remainder of the money arising doubt that the local body of worshippers from such sale in the hands of the stewards from the beginning were in affiliation with belonging to or attending divine service on the said premises, which surplus of the produce of the general organization known as the Meth- such sale so deposited in the hands of the said odist Episcopal Church, and intended to con- stewards shall be at the disposal of the next form to its discipline. It having become yearly conference authorized as aforesaid which expedient to provide a house of worship land said yearly conference shall dispose of the said surplus money according to the best of their was purchased and a church building erect- judgment for the use of the said society." ed, partially paid for by moneys raised by The instrument being free from ambiguity donations. The title was held by nine trus-it cannot be varied or controlled by extrinsic tees named in the indenture between William evidence. A valid charitable trust was creHall Jackson and Amos Binney, among ated, under which the legal title vested in whom were Binney and himself, dated March 24, 1806, and duly recorded. By the terms of the instrument the trustees and their successors in office held the property"forever in trust, that they shall erect and build or cause to be erected and built thereon a house or place of worship for the use of members of the Methodist Episcopal Church in the 99 N. E. 410; Ripley v. Brown, 218 Mass.

the trustees for the use and benefit "of the members of the Methodist Episcopal Church in America," who might choose to attend worship in the church erected and maintained on the land. Austin v. Shaw, 10 Allen, 552; Chase v. Dickey, 212 Mass. 555,

33, 105 N. E. 637; Crawford v. Nies, 220 | sufficient. The various transfers are enumerMass 61, 64, 107 N. E. 382. The mode of ated and fully described in the master's elabfilling vacancies as they occurred after the orate report. If the method chosen was not trustees by vote had increased their num- technically adapted for the purpose, and on ber to 15, which included seven of the orig- their face the conveyances are absolute in inal trustees, and their incorporation by form, yet all parties understood that the St. 1809, c. 70, as well as under the amenda- transaction was intended as a mortgage and tory act of 1828, c. 144, reducing their as security for the reimbursement of whomnumber to nine, and providing that the pew-soever might lend or advance the required holders should nominate "suitable persons, amount. Campbell v. Dearborn, 109 Mass. being members of said society, and inhabit- 130, 12 Am. Rep. 671. The local society ants of said Boston" to fill vacancies, "and thereafter and until the sale under the decree from such nominations the remaining trus- of this court hereinafter referred to contees shall proceed to elect by a majority of tinued to use the premises, for religious worvotes a person to supply such vacancy," was ship, and the master reports that the propnot uniform. The master finds that some erty remained in the unquestioned control times St. 1809, c. 70, was complied with while and management of the original trustees or at other times the trustees were nominated of their successors after as well as before inby the pewholders until St. 1828, c. 144, after corporation, until the transfer to the board which nominations were made only by the of trustees appointed by the court; a period pewholders, although upon appointment they substantially of 82 years. The charity, howperformed all the duties appertaining to their ever, was not thereby extinguished. It could office as required by the discipline. He also not be remoulded or changed to a trust to be found that in the sale and conveyance of por-treated and administered exclusively for the tions of the property they acted as if they maintenance and benefit of the society. No were not an incorporated board, but had been chosen in the manner prescribed by the discipline:

"And it is apparent from the records of the trustees and of the quarterly conferences, that the trustees and the governing officials and boards representing the society considered that the trustees were in charge administering the property in accordance with the discipline as from time to time in force until 1891."

provisions are found in the deed authorizing a resettlement or devolution of the property in the discretion of the trustees, or releasing the property from the charitable purpose to which it had been devoted and dedicated. Perry on Trusts (6th Ed.) §§ 346, 347; Bartlett v. Nye, 4 Metc. 378, 380; Boxford Religious Society v. Harriman, 125 Mass. 321, 328; Winthrop v. Atty. Gen., 128 Mass. 258; Missionary Society v. Chapman, 128 Mass. 265, 268; St. 1809, c. 70; St. 1828, c. 144.

[3] But the society itself as a voluntary religious association, whatever its name, never had title to the property of the trust which [8] By the decree of October 8, 1891, in a the trustees could convey under either St. suit brought in this court to determine their 1809, c. 70, or St. 1847, c. 280, §§ 1, 2, Gen. St. rights and powers, the incorporated trustees c. 30, §§ 43-45, St. 1874, c. 177, Pub. St. c. 39, were ordered to convey by a sufficient deed §§ 1, 4, and St. 1884, c. 78, relating to the pow-to the trustees, appointed and named in the ers of trustees of any society of the Methodist Episcopal Church to transfer parochial property. Parker v. May, 5 Cush. 336; Sohier v. Wardens and Vestry, 12 Metc. 250; Currier v. Trustees of Trinity Society, 109 Mass. 165; First Baptist Church in Sharon v. Harper, 191 Mass. 196, 206, 207, 77 N. E. 778. See R. L. c. 37, §§ 1-4, 6.

decree, all the real estate "as has not heretofore been conveyed to other parties" described in the "deed from William Hall Jackson to Amos Binney and others, being the real estate generally known as the Bromfield Church Es

tate

to hold, manage or convey

said estate upon the trusts and for the purposes as set forth in said deed from William Hall Jackson to Amos Binney et al." Whichever way is taken the result is the same. If the trustees appointed under the discipline had no title, the trust had not perished. Bartlett v. Nye, 4 Metc. 378, 380; Sells v. Delgado, 186 Mass. 25, 28, 70 N. E. 1036. And the trustees appointed by the court were seized of the legal estate. Hadley v. Hop

[4-7] The act of incorporation did not change the trust, which remained the same as if the statute had not been passed. Hadley v. Hopkins Academy, 14 Pick. 240, 254, 255. It is also plain that before the enactment of St. 1878, c. 254, § 1, if vacancies occurred the new trustee or trustees would not acquire title unless by conveyance from the surviving members of the original board, or their successors to whom title had been law-kins Academy, 14 Pick. 240, 253; Pub. St. c. fully transmitted. Peabody v. Eastern Methodist Society in Lynn, 5 Allen, 540; Glazier v. Everett, 224 Mass. 184, 112 N. E. 1009, and cases cited. A brief reference to the title after the trustees voted to mortgage the property to provide funds for the payments maturing on the purchase price of the land, and on the contract entered into by them for

141, §§ 5, 6. If they had title under St. 1809, c. 70, § 4, or by succession under the indenture, that title passed by their conveyance under the order of the court to the trustees named in the decree. This decree not having been vacated, and the conveyance having been made, the trustees thus appointed were the only persons authorized to execute the

court as a court of equity had and retained fendant in the suit then brought, was the full jurisdiction. Bowditch v. Banuelos, 1 only surviving trustee of those named in the Gray, 220; Atty. Gen. v. Barbour, 121 Mass. first decree, or in St. 1892, c. 103. The pres568, 573; White v. Gove, 183 Mass. 333, 67 ent plaintiffs Nies and Leonard, "being the N. E. 359; Jackson v. Phillips, 14 Allen, 539, stationed preachers now in charge of the 567, 577; Sohier v. Trinity Church, 109 Mass. Methodist Religious Society sometimes known 1, 17; Chase v. Dickey, 212 Mass. 555, 99 N. as the Bromfield Street Methodist Episcopal E. 410; Perry on Trusts [6th Ed.] § 282; Pub. Church" assented to the petition, and reSt. c. 141, §§ 5, 20, now R. L. c. 147, §§ 5, 15.quested that the prayer for the appointment [9] The decree and vesting of the title do of the nine persons named as trustees under not appear to have settled the controversy, and the deed made by William Hall Jackson be the master states that while at first the trus- granted. tees appointed by the court were also appoint- [10] By the decree entered January 17, ed in accordance with the discipline, yet when 1913, with the consent of all parties in intervacancies occurred they were not filled as re-est the resignation of Whittier was accepted, quired by the terms of the deed, but as prescribed by the discipline "as it existed at the respective times." The trustees, however, appointed under the discipline subsequent to the decree do not appear to have acquired any title to the fee, and it having been decided to sell the property which had very greatly depreciated in value and become undesirable as a place for religious worship, they petitioned the Legislature, and St. 1892, c. 103, was passed. By this statute the trustees appointed by the court were authorized to sell at public or private sale:

and the new trustees were appointed “under the deed from William Hall Jackson to Amos Binney and others and as authorized in chapter 103 of the acts of the year 1892." The trustees so appointed were officers of the court, subject to its supervision and control, and being seized of the legal title under R. L. c. 147, §§ 5, 6, and having been empowered to sell, they could make, execute and deliver a valid conveyance of the property which the purchaser would hold discharged from the trust. A sale having been made, the trustees thereafter held the proceeds under the terms of the Jackson trust. Bradstreet v. Butterfield, 129 Mass. 339; Sohier v. Massachusetts General Hospital, 3 Cush. 483; Chapin v. Chicopee Universalist Society, 8 Gray, 580; Hadley v. Hopkins Academy, 14 Pick. 240. We have reviewed the history of this trust at much greater length than would have been desirable if the plaintiffs, who do not question the validity of the purchaser's title, had not urgently contended, that the trustees under the decree should be discharged, and the alleged trustees and their successors appointed solely under ecclesiastical authority should be declared the trustees to administer the trust subject only to the rules and discipline "of the Methodist Episcopal Church in the United States."

"Such sale and conveyance to be made with the consent of the persons or bodies whose consent to sales of real estate is required by the discipline and usages for the time being of the Methodist Episcopal Church in the United States of America; the net proceeds of sale to be held and disposed of by said trustees for the use of the members of the Methodist Episcopal Church in the United States of America, according to the rules and discipline which from time to time may have been or may be agreed upon and adopted at the general conferences of said church in the United States of America, and the final application of said proceeds, in accordance with said rules and discipline, to be a full discharge of the said trustees, the trusts of said deed being thereupon terminated." The Legislature had no power to terminate the trust, and if a sale were effected the proceeds would go to the trustees and their successors appointed by the court in accord[11] But even if the cross-bill could be treatance with Pub. St. c. 141, §§ 5, 6, now R. L. c. ed as in the nature of a bill of review, the de147, §§ 5, 6, to be held in place of the land. cree of sale when read shows no error of law, Cary Library v. Bliss, 151 Mass. 364, 25 N. and if the discretionary power of the court to E. 92, 7 L. R. A. 765; Codman v. Crocker, vacate is invoked, the plaintiffs have failed 203 Mass. 146, 150, 89 N. E. 177,. 25 L. R. A. to show any reasonable ground for such ac(N. S.) 980, and cases cited; Sohier v. Mass. tion. The equities are all against them, for General Hospital, 3 Cush. 483, 496; Clark the. record is bare of any suggestion of acv. Hayes, 9 Gray, 426; Deny v. Mattoon, 2 cident, fraud or mistake, and some of them Allen, 361, 377, 378, 79 Am. Dec. 784; Box- as we have said acting presumably under ford Religious Society v. Harriman, 125 the advice of counsel not only consented to, Mass. 321, 328; Thissell v. Schillinger, 186 but asked for, the relief granted. Coghlan v. Mass. 180, 71 N. E. 300; 6 Cyc. 967, 971. See Pub. St. c. 141, § 20; R. L. c. 147, § 15. A period of ten years having elapsed negotiations took place which resulted in a sale, and although the provisions of the church discipline for the selection of trustees and sale of the property apparently had been complied with, the purchaser was not satisfied, and at the request of his conveyancer the trustees again sought the aid of the court. The record shows that Albert R. Whittier, the de

Dana, 173 Mass. 421, 53 N. E. 890; Gray v. Chase, 184 Mass. 444, 68 N. E. 676; Lakin v. Lawrence, 195 Mass. 27, 80 N. E. 578; Mulrey v. Carberry, 204 Mass. 378, 90 N. E. 576; Id., 207 Mass. 390, 93 N. E. 796; Kapiolani v. Atcherly, 238 U. S. 119, 35 Sup. Ct. 832, 59 L. Ed. 1229.

[12, 13] While a majority of the present board are unwilling in the administration of the trust to accede to the views and desires of the plaintiffs, and the minority agreeing