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(148 N.E.)

"That when a general visitatorial power is pro- | other would in effect make a new charity, vided by the founder of an eleemosynary corpo- rather than to execute the one already estabration and foundation for charity, no court of lished. When that purpose is ascertained either law or equity will interfere to control or direct the ordinary exercise of such visitatorial it must be given effect. The charity must be administered accordingly. The law recogpower, subject to the limitation only, that when the visitors, in the exercise of their power, act nizes the right of the founder of a charity to contrary to law in a matter amounting in effect fix and define its nature. An owner of propto a breach of trust, then a court of equity erty may give it upon trust to maintain and *** will interpose, upon the application of inculcate any doctrine of Christianity or to the attorney general, as the representative of promote and extend any particular Christian the public to prevent and restrain such breach denomination by the training of ministers to preach its tenets. Such a gift constitutes a charity. The law will uphold and protect it. The obligation is imposed upon the managers of such a charity to adhere strictly to the scheme of the founders. Those who administer the charity have no right to vary, alter or change its plan. They must execute the purpose of the founders conformably to its Their ideas of expediency or true intent.

of trust."

[29] The principle generally recognized is that in all cases where a visitor has given a decision within his powers, it is final and not subject to re-examination at law or in equity. Attorney General v. Catherine Hall, Jac. 381, 392; Ex parte Berkhampstead Free School, 2 V. & B. 134, 137; The King v. Bishop of Ely, 5 Durnford & East, 475, 477; Murdock, Appellant, 7 Pick. 303, 321; Philips v. Bury, 2 Durnford & East, 346, 348, 353.

general utility in conducting the trust are of no consequence. The court, in ascertaining the purpose of the founders of charitable trusts and in performing its duty to see that they are not perverted, has no concern with the degree of public advantage likely to flow from the trust as founded, compared with some other more or less analogous purpose. [33, 34] We are bound by the declared purIt is only when that pose of the founders.

[30] These principles, applied to the Andover trusts, mean that the determination of the visitors must stand, if supported by evidence, unless it is contrary to some general principle of law or to some provision of the Constitution or Associate or Additional Statutes of the seminary. This is the implication of the words of St. 1823, c. 50, § 3, to the effect that the court may intervene if the visi-purpose has become impracticable of executors "act contrary to the Statutes of the tion that upon proper proceedings the charity founders" or "exceed the limits of their juris- may be directed by the court into another diction." Murdock, Appellant, 7 Pick. 303, channel under the doctrine of. cy pres. In 323; Nelson v. Cushing, 2 Cush. 519, 530; applying these principles to a charity estabSmyth v. Phillips Academy, 154 Mass. 551, lished for the training of ministers of reli560, 561, 562, 28 N. E. 683. See Gillard's gion, manifestly not the slightest consideraCase, 244 Mass. 47, 55, 138 N. E. 384, and In- tion can be given to the present prevalence of terstate Commerce Commission v. Louisville the religious creeds or doctrines to be taught & Nashville R. Co., 227 U. S. 88, 92, 33 S. or to our own beliefs concerning them. The Ct. 185, 57 L. Ed. 431. The determination of nature of the institution as declared by the the visitors has been treated in argument as founders is the single end to be sought. if it was the equivalent of a decision as to Attorney General v. Federal Street Meetingquestions of law. We treat it accordingly. house, 3 Gray, 1, 58; Harvard College v. The crucial facts do not appear to be in dis- Society for Promoting Theological Educapute. That question of law is, whether the tion, 3 Gray, 280, 301; Jackson v. Phillips, plan for closer affiliation is contrary to the 14 Allen, 539, 591; Attorney General v. Armpurposes of the founders expressed in the strong, 231 Mass. 196, 203, 120 N. E. 678; Constitution and Associate and Additional Eustace v. Dickey, 240 Mass. 55, 72, 132 N. E. Statutes on which the Andover Seminary 719; Attorney General v. Pearson, 3 Mer. was established. 353, 400, 418, 419; In re Weir Hospital, [1910] 2 Ch. 124, 131. 133. 135.

[31, 32] The principles to be followed in deciding this question are settled. The seminary is a public charitable trust for the religious education of those preparing for the Christian ministry. The main inquiry is to ascertain the purposes of the founders as expressed in the instruments signed by them. That purpose must be gathered from the words of those instruments, interpreted according to the meaning there attributed to them, and read in the light of the circumstances existing at the time they were used. There is no other test or guide by which to find the true character of a charity and its scope and its limitations. To follow any 148 N.E.-58

[35] Whether the decision of the visitors respecting the plan for a closer affiliation was erroneous in law requires a detailed examination of its terms and its effect upon the maintenance and administration of the seminary in accordance with the expressed design and declared purpose of its founders.

The plan of closer affiliation between the two schools was adopted in 1922. As summarized by the master, it—

"provides for a nondenominational theological school with a single faculty, roll of students, administration and catalogue, the name of which shall be the Theological School in Harvard Uni

come a modernist, was forbidden to celebrate the mass or further to fulfill the functions of a priest, who has never severed his connections with the Roman Catholic Church, but has no relations with it. Certain members of the faculty of arts and sciences of the University, whose courses, having nothing to do with matters of doctrine, are announced in the catalogue of the Theological School, are also members, although seldom if ever attending the meetings of its faculty. Three of these are Episcopalians, one a Jew, one a Christian, but member of no church, and two regular attendants at Appleton Chapel, whose denominational connections were not found by the master. The findings of the master touching the present denominational status of the Harvard Divinity School or the Theological School of Harvard are that:

versity, though it is provided that in all official, the Roman Catholic Church, but, having be publications it shall be described as 'formed by the affiliation of the Harvard Divinity School and Andover Theological Seminary.' It is represented in the catalogue of the Theological School in Harvard University for the academic year 1923-24 that the school is a department of Harvard University. By the agreement-Plan of Closer Affiliation-it is provided that the Trustees of Andover Seminary 'shall continue to exercise their functions under the Statutes, and otherwise, having the same control, as now, over the property, funds, chairs of instruction, and students, of Andover Theological Seminary' and that 'the board of visitors shall continue in the exercise of their authority and duties as defined by the provisions of the Associate Foundation, and other deeds of gift.' The internal affairs of the Theological School in Harvard University are in the first instance under control of its faculty. The method of constituting this faculty is fixed by the agreement. The faculty is subject to the Statutes of Harvard University-meaning the rules adopted by "No denominational test is now or has been the corporation of Harvard University so far for many years imposed in the choice of trusas they do not conflict with the provisions of tees, officers or teachers, nor in the admission the agreement. At meetings of the faculty the of students; nor are any denominational tenets president of Harvard University presides and in or doctrines taught to students. * The his absence the dean of the Theological School. aim of its management has been to maintain a The faculty decisions are made by a majority school in which all matters connected with thevote. At the meetings of the faculty held pre-ology shall be studied in as free a spirit as that vious to the hearings on this case less than half of those in attendance at each meeting were professors on the Andover Foundation."

"Degrees in the Theological School in Harvard University are granted by the Harvard Corporation upon the recommendation of the faculty of the Theological School. The only requirement for bachelor's degree (S. T. B.) is that the student shall complete three years of theological study and shall pass a general examination covering under seven heads the field of theological study. Hence a student (Andover or otherwise) may obtain this degree without taking any course given by an Andover instructor and a student (Andover or otherwise) may obtain this degree without taking any but courses given by Andover instructors, but he would not be likely to do so. The Trustees of Andover Seminary retain their right to grant at their discretion Andover degrees to Andover students. No student, however, gets an Andover degree unless he asks for it and elects to take it. The requirements for the Andover degree have not been affected by the Plan of Closer Affiliation. In order to obtain the Andover degree it is necessary for a student to take certain courses given by Andover professors, including Professor Evans' course in systematic theology."

The faculty of the Theological School in Harvard University in the academic year 1923-24 under the working of the plan for closer affiliation with respect to denominational connections was as follows: The president of the University was a Unitarian, three of the Andover faculty were members of trinitarian Congregational churches, and one a member of the orthodox branch of the Society of Friends. Three of the Harvard faculty were also trinitarian Congregationalists, two Unitarians, one a member of the Church of England, one ordained a priest of

in which philosophy, history, and classical literature are studied in the colleges. The questions which gave rise to the division of the Congregational denomination are irrelevant to the various subjects taught in the theological school-homiletics, biblical exegesis, church history-with the exception of systematic theology. For many years prior to 1921 the teaching of systematic theology in the Harvard Divinity School had laid no stress on any creed and was as if the Westminster Shorter Catechism and the Associate Creed were nonexistent."

The Andover Seminary at its inception was a protest against predominance of Unitarianism in Harvard manifested by the election of a professor of that tendency in 1805. The differentiation in Harvard of the Divinity School from the College was gradual. Its faculty was organized in 1819. During its early years and until 1880 all of its professors were Unitarians, and most of its students became Unitarian ministers. During this period it was known and conducted as a Since 1880 it has gradually changed by inschool for the propagation of Unitarian faith, cluding in its faculty trinitarian Congregationalists and those of other denominations. Apparently by 1906, if not earlier, it had become entirely undenominational.

The Andover Theological Seminary was founded by Calvinists. It was made by them distinct and apart from every other theological school. Their three instruments of gift show that their convictions were settled upon definite theological denominational tenets. An undenominational theological school was foreign to their purpose and alien to their declarations. The circumstances, under which the seminary was founded, have already been narrated. Without now repeating them, it

(148 N.E.)

is enough to say that they show unmistak-, Andover Seminary was established as a sepably that its original donors were actuated arate, distinct and independent theological by a desire to nourish, strengthen and ex- school. The instruments of gift which called tend orthodox, trinitarian, evangelical Con- it into being disclose no express or implied gregationalism. All those qualifying words permission that it ever be consolidated with at that time had a signification more sharp another kindred institution. The joining of and distinctive than now. Each of those the seminary with another institution to form qualifying words occurs in one or more of a nondenominational theological school is the instruments on which the seminary was contrary to the avowed end and aim of the established. Those original donors were res- founders. The causes and the history of olute in their determination to combat lib- the establishment of the Andover institution eral religious thought among Congregational- disclose an unmistakable primary and final ists. The language of the Constitution and purpose to found a theological school dethe Associate and Additional Statutes dis- voted exclusively to the propagation of the closes a deep seated conviction on the part dogmas of a well-defined religious belief. of those who signed them that the Andover The founders called it into existence for Seminary should be an instrumentality for that single object. The narration, already the propagation of these distinctive theolog- made in parts "First" and "Second" of this ical doctrines. opinion, of the circumstances of the establishment of the Andover Seminary and of the extreme care taken by the founders to safeguard their donations against any perversion of their emphatically proclaimed purpose demonstrates that no such close affiliation as is here arranged with an undenominational school would harmonize with their project. There was no elasticity in their

The great and leading purpose of the founders was to establish a theological school for "the defense and promotion of the Christian religion by increasing the number of learned and able defenders of the gospel of Christ, as well as of orthodox, pious and zealous ministers of the New Testament." The teachers in the institution are required to oppose every theological error and heresy statement of what they intended in certain inconsistent with the Andover Creed. Every respects. They made no provision for maprofessor in the seminary must be a man of terial changes in the religious conceptions sound and orthodox principles in divinity ac- set forth in the Creed and in the Westmincording to the system of evangelical doc- ster Assembly's Shorter Catechism. They detrines called the Westminister Assembly's clared in writing a clear design in that parShorter Catechism, must subscribe his be ticular and they enjoined rigid conformity lief in the Andover Creed at the outset of to it. According to the Constitution of the his professorship and according to the words Andover Seminary every professor must of the Statutes must renew his fealty to it maintain and inculcate the Christian faith by repeating it publicly every five years. A in the fundamental and distinguishing doccentral feature of the Associate and Addi- trines of Christ "as summarily expressed in tional Statutes is the Andover Creed. In the the Westminster Assembly's Shorter CateAssociate Statutes it is "strictly and solemn- chism." The Associate Statutes set forth ly enjoined and left in solemn charge that the Andover Creed as the test of faith for every article of the above said creed shall all professors. The Additional Statutes also remain entirely and identically the same set forth the Andover Creed as an addition without the least alteration or any addition or diminution." Continued belief in this creed is a test of the right to remain a professor. It is manifest under the Associate and Additional Statutes that every Andover professor must believe sincerely, and be conscientiously convinced of the truth of these distinctive theological doctrines. It is a fair inference from the three documents on which the Andover Seminary came into existence, framed with such obvious and extreme care touching the theological beliefs of the professors, that the founders expected professors entertaining such tenets to teach them to the students. It is expressly provided in the Associate Statutes that each professor shall promise to "maintain and inculcate the Christian faith as expressed in the creed by me now repeated, together with all other doctrines and duties of our holy religion."

to all that is required in the Constitution.

The argument that in the matter of doctrinal requirements there is a material inconsistency between the "Constitution" and the "Associate Statutes" of the seminary. arising from compromise between the two groups of trinitarian Congregationalists combining in its foundation, is not impressive in this connection. The institution was in substance dedicated by all its founders to an orthodox creed.

The organization of the new theological school with "a single faculty, roll of students, administration and catalogue is inconsistent with the Associate and Additional Statutes of the Andover Seminary, and with principles underlying the foundation of the seminary. The professors appointed under the Andover endowment do not become professors in the new theological school until appointed by the The plan for closer affiliation with Harvard governing boards of Harvard. No one can is not compatible with the foundation of be and remain an Andover professor until the Andover Theological Seminary. The appointed by the authorities of Harvard.

The choosing of the faculty, the courses of study, the declaration of the policy, and determinations as to the administration of the new theological school in the test of final power rest with the authorities of Harvard rather than with those of Andover. These factors constitute a delegation of power by the trustees which by the underlying trusts of the Andover Seminary can be administered by them alone.

The independence of an educational institu- theological institutions. Standing alone, this tion is gone when its teachers must receive circumstance would not be decisive, but it is their final appointment from some outside to be considered in connection with the other authority. All matters under the control of matters. the faculty are determined by a body in which professors owing any allegiance to Andover are in the minority. The courses of study and methods of instruction, being commonly under the control of the faculty, have passed out of the exclusive regulation by Andover Seminary. The educational policies outlined by the founders of Andover in their Statutes have no binding authority over - a majority of those now administering the affairs of the new theological school. The faculty is subject to the rules adopted by the Harvard corporation. The present arrange ment of courses is such that commonly even students seeking to be and remain strictly Andover students would receive a substantial part of their instruction from Harvard professors; that is, from professors who teach and emphasize no denominational tenets whatsoever. They might well receive instruction from no other professors. It is apparent that the strong tendency of the plan for closer affiliation as a practical matter is toward the complete disappearance of Andover, with all its distinctive characteristics, and its merger in the new Theological School of Harvard.

Recommendations of students for Andover scholarships and fellowships must proceed from the faculty of the new school, although the appointments are to be made by the trustees of Andover. This further accentuates the completeness of the control of the Harvard faculty over matters pertaining to Ando

ver.

The plan of the founders of Andover was that its professors were to be militant teachers. According to the mandate of its Statutes they were not only to inculcate trinitarian orthodox principles but they were to oppose many other varieties of religious belief there enumerated. Such contentiuosness is incompatible with the nature of an undenominational school.

The plan for closer affiliation requires that Andover professors shall teach all those students of the new school who come to their classes whether they intend to become "orthodox * * * ministers" or do not intend to become ministers at all. While Andover Seminary by its Constitution is open to "Protestants of every denomination," its attention in general was confined to those who intended to devote themselves to "the work of the gospel ministry," and exercised their preference to attend a theological school devoted to the promotion of orthodox trinitarian Congregationalism centralizing about the Andover Creed and the Westminster Assembly's Shorter Catechism. The requirement of the plan of closer affiliation is in this respect different in kind from an arrangement for interchange of students between separate

The general effect of the plan for closer affiliation is a union of the Andover Seminary with the Harvard Divinity School so as to become a department of the University. That constitutes an institution different in nature from the one contemplated by the Constitution and Associate and Additional Statutes of Andover.

The preliminary paragraphs of the plan for closer affiliation to the effect that the continuity and distinct existence of the Andover Seminary shall be maintained, and that the powers of the trustees and board of visitors shall remain and continue to be exercised, must be read and construed in connection with the succeeding paragraphs, which in substance and effect place such a dominating power in Harvard as to enable the trustees and visitors of Andover, in the exercise of their own free, untrammeled judgment, from executing the will of its founders. This conclusion is supported by the principle laid down in several decisions. Harvard College v. Society for Promoting Theological Education, 3 Gray, 280; Winthrop v. Attorney General, 128 Mass. 258; Morville v. Fowle, 144 Mass. 109;1 Cary Library v. Bliss, 151 Mass. 364, 25 N. E. 92, 7 L. R. A. 765; Eliot v. Trinity Church, 232 Mass. 517, 122 N. E. 648. The case at bar upon this point hardly can be distinguished from Harvard College v. Attorney General, 228 Mass. 396, 117 N. E. 903. The question decided in Dickey v. Trustees of Putnam Free School, 197 Mass. 468, 84 N. E. 140, has no bearing upon the present issues.

This conclusion we feel compelled to reach on settled principles of law. It is not affected by the facts found by the master that there is not now the sharp difference between the orthodox or trinitarian Congregationalists and the liberal or unitarian Congregationalists that there was at the time the Andover Seminary was founded. There remains a fundamental difference between the two, confined to a part of the field of systematic theology. This difference for philosophical thinkers has been much softened or even obliterated. "Except as this difference is discussed historically, it is irrelevant in the other branches of study which are ordinarily carried on in a theological school.” A reading of the Andover Creed and of the West110 N. E. 766.

(148 N.E.)

minster Assembly's Shorter Catechism and giving the words used their common meaning shows clearly that the disobedience, sin or fall of Adam constitute an important, if not an essential, part of both. The master finds that:

dover Seminary was founded than does the Plan of Closer Affiliation with Harvard University."

This conclusion is supported by other and by subsidiary findings.

The substance of other findings of the mas"So far as the 'sin' or 'fall' of Adam is conter upon this aspect of the controversy is cerned * * * there is now no controversy that there is no probability that the "Anbetween the orthodox or trinitarian Congrega- dover Seminary can affiliate with any theologtionalists and the liberal or unitarian Congrega- ical school in Massachusetts other than Hartionalists in New England, since in New Eng-vard, that there is little if any probability land Congregationalists, whether trinitarian or unitarian, do not generally accept the account thereof in Genesis as historical."

These findings cannot abate or qualify the emphasis placed upon the Andover Creed and the Westminster Assembly's Shorter Catechism in the Constitution and the Associate and Additional Statutes of the Andover Seminary.

There has been considerable argument concerning tuition and scholarships in the Andover Seminary and violations of the Associate and Additional Statutes in these particulars. There is nothing in the plan for closer affiliation concerning tuition. There is no allegation in the pleading touching tuition. Therefore it is not before us. The details concerning scholarship are not relevant to the main issues on which these cases must turn. The master finds:

that it could affiliate with any other such school by removing from Massachusetts [forbidden by section 10, c. 15, St. 1780]; that Massachusetts is and has been since colonial times the leading Congregational state in the sense that there are here many more Congregational churches than in any other state and that the maintenance here of a strong theological school is of peculiar importance at the present time"; that for practical purposes there are now no acute divergencies between trinitarian and unitarian Congregationalists, that the existing difference is confined to a part of a single theological field having only a historical aspect so far as concerns theological instruction. These findings do not go to the extent of showing that the plan of closer affiliation is in conformity to the purposes of the founders of the Andover Seminary. Doctrinal and creedal requireThat the trustees have taken all practicable ments were of the essence of the purpose of measures to increase the endowment of the the founders of the Andover Seminary. With seminary which have in the main been unsuc- respect to those doctrinal and creedal recessful. "There is and has been for several quirements the founders did not contemplate years practically no prospect of any substan- changes in those respects in the historical tial additions to the endowment of the semi-succession of trinitarian Congregationalism. nary. It would be impossible, for financial reasons, for the trustees of Andover Theological Seminary to maintain a theological school of a grade which would justify the granting of degrees without an affiliation of some kind with some other institution or institutions."

*

*

[36] The master further finds:

"That, apart from doctrinal or creedal requirements, the Plan of Closer Affiliation fulfills, as nearly as is possible under the existing conditions, the purposes for which Andover Seminary was founded," and "that if the purposes for which the Seminary was founded, so far as such purposes involve doctrinal or creedal requirements, are fulfilled if instruction in the field of theological studies in which doctrinal questions are involved is in the historical succession of New England trinitarian Congregationalism, the Plan of Closer Affiliation fulfills with respect to Andover students as nearly as possible under existing conditions the purposes for which Andover Seminary was founded. It did not appear before me that, even if the purposes for which Andover Seminary was founded, ** with respect to doctrinal or creedal requirements, are not fulfilled if instruction in the field of theological studies in which doctrinal questions are involved is in the historical succession of New England trinitarian Congregationalism, any affiliation of Andover Seminary with any other institution would more nearly fulfill the purposes for which An

*

Their views as expressed in the "Constitu

tion" and the "Associate Statutes" as to doctrine and creed were immutable. The founders looked forward to no such modifications. On the contrary, the associate founders enjoined that every article of the creed "forever remain entirely and identically the same, without the least alteration."

[37, 38] All these facts have no decisive bearing upon the questions here presented for decision. The question presented is quite different from what it would be if the seminary had been founded simply or in substance for the training of orthodox trinitarian Congregational ministers. Doubtless if that had been the foundation, the seminary rightly could be administered according to the beliefs of those "in the historical succession ism." If it has become impracticable to exof New England trinitarian Congregationalecute the charitable trusts established expressly in writing with respect to the Andover Seminary, that fact does not authorize the trustees to make a different disposition of the charity. The trustees cannot rightly depart from the trusts established. The doctrine of cy pres can be administered only by a court of equity and not by the managers of a charity. MacKenzie v. Trustees of the Presbytery of Jersey City, 67 N. J. Eq.

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