(148 V.E.) aration of men for the ministry to be located | piety." Every person, before becoming a at Newbury. As a result of negotiations, visitor is required to make and subscribe a these two bands of Congregationalists joined declaration in these words: in favor of the "theological institutions in

"Approving the Statutes of the aforesaid Phillips Academy" The difficulty in effect. theological institution, and those of the assoing this combination lay in framing a creed, ciate founders, I solemnly declare in the preswhich, in spite of their doctrinal differences, ence of God and of this board, that I will faithshould be acceptable to both groups. The fully exert my abilities, to carry into execution “Associate Creed,” contained in the "Asso- the Statutes of the said founders, and to prociate Statutes" (hereafter described) was

mote the great object of the Institution." adopted as a compromise. It was a state

Ee must also subscribe the same Andover ment upon which both groups of Calvinists Creed, which every professor is required to or orthodox trinitarian Congregationalists subscribe, and repeat a declaration of faith could agree. It omits much which is in the in the same creed at every successive period Westminster Catechisms. It is framed in of five years. All the Statutes must be read technical language, some of it from the West- by the president at every annual meeting minster Assembly's Shorter Catechism and

of the visitors. Thé visitors are required some from other sources. It is unique as a also to examine those proposed for profescreed. No other theological seminary and no

sors and all applicants for “the advantages church bas precisely this creedal basis.

of this foundation." As revealing the sig. In carrying out the plan of compromise be- nificance attached to the Andover Creed, in tween these two groups of Calvinists of some article XXVII of the Associate Statutes are what divergent doctrinal views, two instru- found these words: ments were presented to the trustees of Phil. lips Academy. One under date of March 21,

"It is strictly and solemnly enjoined, and left 1808, was a deed of gift transferring a con- in sacred charge, that every article of the above

said creed shall forever remain entirely and siderable sum of money to the trustees from identically the same, without the least alterathree persons belonging to the “New Calvin- tion, or any addition, or diminution.” ists" or "Hopkinsians." This instrument is termed the "Associate Foundation" and in Under date of May 3, 1808, the original cludes the "Associate Statutes." This gift founders of the theological institution, who was for the endowment of two professor- had as a part of their gift established its ships and "for the maintenance of such stu- "Constitution," acting pursuant to the power dents in divinity as may be proper candi- and right therein reserved to them made and dates for gratuitous support,” the trust to be ordained 13 articles termed "Additional Statadministered "agreeably to the following utes" in addition to and as a part of their statutes." Then follow 27 articles which are previous “Constitution," upon a condition called "Associate Statutes." One of these which has been fulfilled. These “Additional was the Andover Creed, being the statement Stati s" embody the salient parts of the of faith upon which both groups of trini. “Associate Statutes," including the “Andover tarian Congregationalists had agreed. An-Creed” with a slight addition, and the proother article provided for the theological sem- visions for a board of visitors, mostly in inary to be established a board of visitors, their exact words. In meaning and legal in these words:

effect they are identical, so far as concerns "That the trust aforesaid may be always ex- the cases at bar. ecuted agreeably to the true intent of this our [1] It is manifest that the associate foundfoundation; and that we may effectually guard ers and the original founders by adopting the same in all future time against all perver-their Statutes were unwilling to trust the sion, or the smallest avoidance of our true de- trustees with the management of their founsign, as herein expressed: We, the aforesaid founders, do hereby constitute a board of visi-dation in its theological aspects. No theotors, to be as in our place and stead the guard- logical belief was required of the trustees ians, overseers, and protectors of this our foun- and a majority of them must be laymen. dation."

According to the obvious import of these

Statutes, the visitors were designed to supThis instrument also displays a settled and ply this additional feature of management deliberate purpose to contine the donation to for the donations made at the foundation of the maintenance of an institution for the the theological institution, and especially to propagation of Calvinistic orthodox trinita- see to it that there was no deviation in the rianism by education in its tenets of those management of that institution from the dedestined for the ministry. The board of vis- clared purposes of the founders. itors was to be a self-perpetuating body. The donations embodied in the "Associate Its duties are set out at considerable length Foundation” with the "Associate Statutes" in these articles. It was to consist, as ul- were accepted by the trustees. According to timately constituted, of three persons, two the provisions of the Associate Statutes the clergymen and one layman, "all of whom plan was to be experimental for seven years shall be men of distinguished talents and and thereafter upon vote of visitors and trus

tees that a "perpetual coalition is important conduct of business. The new corporation and desirable; union shall be established up hereafter will be called trustees. Other leg. on visitorial principles, to continue, as the islative enactments were passed from time to sun and moon forever." Such union was time during the nineteenth century with reseasonably voted.

spect to the theological seminary but no ref. The theological Seminary in Phillips erence need be made to them. Academy accordingly was established in An The trustees voted in 1908 to remove the dover. It was opened shortly after the dona- | Andover Theological Seminary to Camtion of the associate founders was received. bridge. Its real estate in Andover was sold. The documents upon which it rested were Land was bought in Cambridge adjoining the three instruments already described, land of Harvard University and a building namely, the Constitution of the Theological erected thereon for the uses of the semiInstitution in Phillips Academy, the As nary. In 1908 the trustees and the president sociate Statutes and the Additional Statutes. and fellows of Harvard College adopted a Its support at the outset was wholly depend plan of affiliation between the seminary and ent upon the gifts made under those instru- the Harvard Divinity School. The visitors, ments. Various gifts now aggregating with by vote of two to one of its corporate memthe donations of original and associate bers, adopted a resolution determining "that. founders about $1,000,000 have been made in removing the Seminary to Cambridge, the during the intervening years to the trustees trustees did not act contrary to the intenof Phillips Academy for the use or benefit tion of the founders,” but claiming and reof the theological seminary or purposes con- serving “a right to examine and pass upon nected with it, many of them by instruments the practical working of the scheme of afilicontaining no reference to the visitors. ation with Harvard University when it shall There were named in the Associate Stat- fully develop." In accordance with this plan utes and the Additional Statutes the persons of affiliation the seminary was removed to who were to act as visitors at the outset. Cambridge and there conducted until 1922. Included among them were the three as Second. The powers of the visitors are sociate founders. No successors were to be next to be determined. chosen except for three, to which number the [2-6] 1. Those who made the first gifts for board was ultimately to be reduced and at the establishment of the Theological Instituwhich it was to be maintained.

tion in Phillips Academy were its founders The members of the board of visitors were in the technical sense. St. John's College v. incorporated by St. 1823, p. 50, under the Todington, 1 Burr. 158; Sutton Hospital, 10 name “Visitors of the Theological Institu- Coke, 1, 33a. Although the trustees of Philtion in Phillips Academy." It will hereafter lips Academy had been incorporated and bad he called visitors. That corporation was received donations for the establishment of created, according to the words of its char- the academy for general education more ter, “to be the guardians, overseers and pro- than 25 years before, yet there was no tbeotectors of such donations as have been, or logical institution or department until the hereafter may be made subject to their in- donations of those who executed as expresspection, with the assent of the trustees of sive of the terms of their gifts the three insaid academy, according to the terms and struments already described and called the conditions prescribed by the statutes of the Constitution, the Associate Statutes and the founders thereof, agreeably to the intentions Additional Statutes. There was no incomof the founders."

patibility in making those gifts to an existThe seminary was conducted under the ing educational corporation and at the same name Theological Institution in Phillips time becoming, in the strictly legal meaning, Academy in Andover as one of its depart. founders of the new department, institution ments by the corporation trustees of Phillips or school to be established within and as a Academy from 1808 until the enactment of corporate part of the pre-established acadSt. 1907, c. 260. By the latter statute the emy. As founders of that institution they "Trustees of Andover Theological Seminary" had the right at common law either to be. was incorporated. The new corporation become the visitors themselves or to appoint came the successor of the old corporation other persons or a body to act as visitors with respect to all the real and personal with visitatorial powers.

The "Associate property theretofore held in trust for the Statutes" show unmistakably that those who benefit of the theological institution, subject signed it had a lively appreciation of the to the same trusts, limitations, conditions, visitatorial powers inherent in founders of provisions, rights, obligations and regula- charities and a correct conception of the aptions, and was charged with and bound by propriate words in which to clothe others all the duties and obligations theretofore with those powers. The institution which resting on the old corporation toward and they were endowing was in its aim and curconcerning the theological institution, to be riculum entirely distinct and separate from governed by the same provisions and regula- the existing academy. It was new in every tions as to organization, membership and particular except that its administration was

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(148 N.E.) intrusted to an existing education corpora-, ly conferred. Lest anything might have been tion. Where individuals are incorporated to overlooked, at the end of the enumeration of manage a charity the visitatorial power is powers and duties general words are added. deemed to reside in them in their corporate The wide sweep of powers given to the visicharacter unless there is an express reserva- tors and the words and the context of that tion of that power to the founders or to oth- grant make inapplicable the principle that ers to whom it is assigned. Sanderson v. general words at the conclusion of specificaWhite, 18 Pick. 328, 338, 339, 29 Am. Dec. tions are to be restrained to incidental mat591; Dartmouth College v. Woodward, 4 ters ejusdem generis. That principle is to be Wheat, 518, 675, 4 L. Ed. 629. The original applied with some caution and only to effecact incorporating the trustees of Phillips tuate the main purpose of the writing to be Academy constituted them the sole visitors construed. Attorney General Brown, of the corporation. But that is not incon- ) [1920] 1 K. B. 773. Breadth and not narrowsistent with acceptance by them of funds for ness of power was the manifest design of the foundation of a new institution to be the founders in describing the functions of administered by them with visitatorial pow- the visitors. The most significant and comers in others. Moreover the amendment to prehensive of these “powers and duties” are the charter, St. 1807, c. 22, was a special au- set forth in article XX of the Associate Statthorization to that general effect.

utes and article X of the additional Statutes The nature and scope of the general visi- in these words: tatorial power where not amplified or re "To visit the Foundation once in every year, stricted by the terms of the foundation were and at other times when regularly called therestated by Chief Justice Shaw in Nelson v. to: to inquire into the state of this our Fund, Cushing, 2 Cush. 519, 529, 530 in these and the management of this Foundation, with words:

respect both to Professors and Students; to

determine, interpret, and explain the Statutes "The founder of a charitable institution has a of this foundation in all cases brought before right *

by the visitatorial power, which them in their judicial capacity; to redress

delegate to other persons or grievances, both with respect to Professors bodies, to see that his will and purpose in cre- and Students; to hear appeals from decisions ating the charity shall be observed and carried of the Board of Trustees, and to remedy upon into effect, and to restrain mismanagement and complain, duly exhibited in behalf of the said correct abuses.

* A general visitatorial | Professors or Students; to review and reverse power

gives a general superintend- any censure passed by the said Trustees, upon

* The authority and power of a board any Professor or Student, on this Foundation; of visitors" is that of "a domestic tribunal, con. to declare void all Rules and Regulations, made stituted by the founder of the charity, under by the said Trustees, relative to this Foundathe authority of law, to superintend the doings tion, which may be inconsistent with the origof the trustees, to correct mistakes, and to re- inal Statutes thereof; to take care that the dustrain all abuses of authority.”

ties of every Professor on this Foundation be

intelligently and faithfully discharged, and to The visitatorial function rests on the prin- admonish or remove him either for misbehavior, ciple of law respecting eleemosynary institu- heterodoxy, incapacity, or neglect of the duties tions that since the individual managers, the Students, and to admonish, suspend or de

of his office; to examine into the proficiency of “are liable

to deviate from the end prive any Student for negligence, contumacy, or of their institution

there shall some- any heinous crime, committed against the laws where exist a power to visit, inquire into, and of God, or the Statutes of this Foundation; correct all irregularities and abuses in such cor- and in general to see that our true intentions, porations, and to compel the original purposes as expressed in these our Statutes, be faithfully of the charity to be faithfully fulfilled.”

Mr. executed, always administering justice imparJustice Story in Dartmouth College v. Wood-tially, and exercising the functions 'of their ofward, 4 Wheat. 518, 673, 4 L. Ed. 629.

fice in the fear of God, according to the said Statutes, the Constitution of this seminary, and

the Laws of the Land." [7-9) 2. The founders of the theological seminary created their visitors with all the [10] 3. The theological institution was esgeneral powers and duties inherent in such tablished on certain foundations. The orig. a body under the common law. That is ap- inal founders of the institution were entitled parent not only from general words used but to make such statement of visitatorial powfrom the express statement of their purpose ers as they chose. The initial donations, in providing visitors, namely, that their making provision for the establishment of a trust may always be executed agreeably to “Theological Institution in Phillips Acadtheir true intent and be effectually guarded emy" was significantly designated "Consti"in all future time against all perversion or tution of the Theological Seminary." Their the smallest avoidance of” their true design. “Additional Statutes" made pursuant to pow. These words dominate and vivify the whole er reserved to them in the constitution, esinstrument. The founders enumerate in tablished also the board of visitors and deother articles additional obligations and au- scribed their powers. These Additional Statthority. They did not thereby cut down the utes in conjunction with the Associate Statgeneral visitatorial powers. These are plain-/utes create, specify and bound the powers of


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the visitors. They thereby were clothed with Endowed Schools Act. L. R. 10 A. C. 304, both general and special visitatorial author. 308. This general principle is recognized in ity and duties. These were accepted by the Cary Library v. Bliss, 151 Mass. 364, 377, trustees of Phillips Academy and were con- 25 N. E. 92, 94, 7 L. R. A. 765, where it was firmed by St. 1823, c. 50, whereby the visitors held that subsequent donors presumably were made a corporation. They thus were | “knew on what trusts the library was esincorporated into the “Constitution” of the tablished and was to be managed, and that theological institution. The visitors when they made their gifts to be held under the created were visitors of the theological in- same trusts. This general principle is not stitution and not of particular donations. çut down in the light of all the other cir.

It is specified that the visitors are to visit cumstances by the words of section 1 of St. the "Foundation." In that context the word 1823, c. 50, to the effect that the visitors as manifestly means the institution itself with a corporation are to be the guardians, overall that appertains thereto. The Constitution seers and protectors of "such donations as of the original founders (to which their Ad- have been, or hereafter may be made subject ditional Statutes were supplementary and not to their inspection, with the assent of the substitutional) definitely refers in article trustees of said academy. The unqualified XXXIV to future gifts to the same ends. acceptance by the trustees of unrestricted The name under which the visitors were gifts for the theological seminary imports incorporated was "The Visitors of the Theo- the same visitatorial powers as obtain with logical Institution in Phillips Academy." | respect to that department of the institution The clear implication of this name is that under the express words of the original and they are visitors of the whole theological in- associate founders. Of course, the visitors stitution and not of particular funds held have no power with respect to gifts made to for its benefit. The purport of the Associate the trustees and accepted by them unqual. and Additional Statutes is that the visitors ifiedly with the express provision that they are established with respect to the theologi- are not to be subject to the visitatorial funccal institution. Their powers are not nar- tions. It follows that the visitors have ju. rowed to particular funds. The board of risdiction touching the seminary as an entity visitors became an integral part of that in and not alone touching definite funds with stitution. The jurisdiction of the visitors which it has been endowed with special in. extends not alone to the donations made by vocation of visitatorial powers, but omitting the original and associate founders, but to those given with express provisions that they all subsequent general and unrestricted gifts are to be free from the powers of the visitors. for the benefit of the theological institution. The meaning of the ample grants of power

[11, 12] The visitatorial feature to be conferred upon the Andover visitors has been exercised by a separate board outside the before this court in two cases. Much in trustees was a constituent element of the theo- small space has there been said pertinent to logical institution. All gifts to an institu- the issues here to be decided. In Murdock, tion thus established are by implication, Appellant, 7 Pick. 303, at page 322, occur unless express provision is made to the con- | these words: trary, made subject to the visitatorial pow "To the visitor

• belongs the right er. This is the general principle. If a sub- and power of inspecting the affairs of the corsequent donor makes a new gift to the old poration and superintending all officers who foundation, that is to say, to the institution | have the management of them, according to such established by the original foundation with regulations and restrictions as are prescribed by

the founder in the statutes which he ordains. out erecting either a special trust or a distinct visitor, then the visitor of the old foun- statutes] the trustees are invested with au

By these different provisions (of the dation will be visitor of the new gift. It is thority, in the first instance, to supervise the considered that the donor intended that his concerns of the institutions * A gen. gift should fall under the general statutes eral appellate power is given to the body deand rules of the institution and be regulated nominated the board of visitors, who have also with the rest of its property. Such sub

original authority concurrent with that of the

trustees as to most of the subjects committed sequent donors are not founders of the char

to their charge.” ity. They find it in existence. They merely aid, assist and increase it. They take it as In Smyth v. Phillips Academy, 154 Mass. they find it with all its powers and limita- | 551, 28 N. E. 683, it was said at pages 554, tions, including the visitatorial.

Green v.

557 (28 N. E. 685), that the general duty of Rutherforth, 1 Ves. Sen. 462, 472, 473; Rex the board of visitorsv. Bishop of Ely, 1 Wm. Blackstone, 70, 87; "is to visit the corporation (which is under the Ex parte Inge, 2 Rus. & Mylne, 590, 596, management and control of the trustees) and see 597; Attorney General v. Talbot, 3 Atk. 662, that the trustees manage the institution in con674, 675; 8. c. 1 Ves. Sen. 77, 78; Attorney formity with the statutes, and, if errors or General' v. Mood, Hayes & Jones, Appx. Their visitation is for the purpose of inquiring

abuses are discovered, to correct them. *** XXI, XXXV; St. John's College v. Toding- into its condition, and ascertaining whether it ton, 1 Burr. 158, 202, 203, 204; In Matter of is properly or improperly managed, and wheth

(148 N.E.) er in all respects it is conducted according to ( rights of succession, and unchanged in every the principles of its foundation."

particular except that a new educational [13] A manifest result from these decisions faculty had been superimposed on its former and principles is that under the law the au- corporate rights. It was not disabled from thority of the visitors under their general exercising any prerogative, right, power, or and special powers is very great. While all duty. Its powers were augmented, not imquestions pertaining to the administration of paired. The extension of corporate potenthe seminary are to be decided in the first tiality into a new field to operate therein instance by the trustees the visitors have only to the extent permitted by special gifts supervision and control of any decision of directed solely to that end cannot impair any such magnitude as that here in issue.

corporate or other right theretofore exist[14] 4. It has been urged that the powers ing. All the gifts up to the incorporation of of visitors as created by the Associate and the trustees of the seminary by St. 1907, c. Additional Statutes and as recognized and 260, were made to the corporation established established by St. 1823, c. 50, are incompat- by St. 1780, c. 15. But all gifts involved in ible with the provisions of the charter of the present controversy were made for the the trustees of Phillips Academy.

That theological institution recognized by St. 1807, charter, St. 1780, c. 15, provided amongst oth- c. 22, and not for the general uses of Philer matters that the persons named as incor- lips Academy. There is no sound ground porators and their successors should be “the for attack upon the constitutional power of sole .visitors, trustees and governors of the the visitors with respect to the theological said Phillips Academy” The theological in- seminary. There is here no violation of arstitution when founded constituted a new ticle 1, § 10, of the Constitution of the United department of the established academy. It

States. The principle established by that is not necessary to inquire or decide whether constitutional guaranty is recognized and apits corporate powers were broad enough to plied in all its amplitude, but it does not have enabled the original corporation to or

cover the facts here presented. Commonganize a department for theological educa- wealth v. Farmers & Mechanics Bank, 21 tion and to receive special gifts to that end. Pick, 542, 556, 32 am. Dec. 290; Opinion of That course was not pursued. On the con- the Justices, 9 Cush. 604, 610; Cary Library trary the original charter on petition of the v. Bliss, 151 Mass. 364, 25 N. E. 92, 7 L. R. trustees was amended by St. 1807, c. 22, A. 765;. Opinion of the Justices, 237 Mass. whereby the trustees were specifically em

619, 622, 131 N. E. 29; Dartmouth College powered to receive and hold gifts yielding v. Woodward, 4 Wheat. 518, 4 L. Ed. 629. a limited income "for the purpose of a Theo

The precise questions now raised, includlogical Institution,” the income whereof was

ing the constitutionality of St. 1823, c. 50, always to be "applied to said objects, agree

incorporating the visitors, and its repugably to the will of the donors, if consistent nance to St. 1780, c. 15, whereby the trustees with the original design of the founders of of Phillips Academy were incorporated, and the said Academy.” This statute conferred

impairment of the grant of powers there the express power upon the trustees to receive made, was raised and settled in Smyth v. gifts subject to such conditions as the donors Phillips Academy, 154 Mass. 556, 28 N. E. might impose. That authorization was com

683. In concluding the discussion upholding prehensive enough to enable the corporation the visitors, it was said at page 556 (28 N.

the constitutionality of the act incorporating to receive gifts for the theological institution

E. 685): subject to such powers of visitation as the donors might impose and the trustees accept.

"The validity of these statutes [of the asso[15] Gifts were made and accepted by the ciate founders) and of the act incorporating the trustees on the strength of St. 1807, c. 22. adjudications of this court. Phillips Academy

board of visitors, seems to have been settled by All this constituted no impairment of any

v. King, 12 Mass. 546; Murdock, Appellant, 7 contractual obligation growing out of the Pick. 303; Murdock v. Phillips Academy, 12 original act of incorporation. The founders Pick. 244." of the academy, the trustees as a corporation and intervening benefactors of the academy The ground has been re-examined in the suffered no impairment of any right, when light of the argument now presented. We the commonwealth conferred a new power remain satisfied with the conclusion stated upon the corporation to receive new gifts to in the Smyth Case. be applied to a new purpose.

The former Third. The next matter for consideration gifts, the former powers, and the former ob- is the validity of the determination of the ligations were not altered, enfeebled or af- visitors touching the plan of closer affiliation fected. Those gifts could not be diverted to of the Andover Theological Seminary with different uses. The obligations were not the Harvard Divinity School. This question weakened or strengthened or modified, but must be considered with reference (1) to the remained in full force to be performed by forms of the procedure of the visitors and the original corporation; that corporation their individual and personal competency to was the same in incorporators, the same in act; (2) to their jurisdiction over the subject

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