« ForrigeFortsett »
of that plan; and (3) their determination ac- time no quorum was present by reason of a tually made on the merits.
storm. The next record is that the adjourn 1. Several objections preliminary in ed annual meeting and visitation was held nature are urged against the forms of pro- on December 30, 1921. According to the reccedure and competency of the visitors. ords of the visitors that meeting was kept These objections relate to essential steps pre- alive by successive adjournments until June requisite to any action by the visitors touch- 15, 1922, when the hearing was given to the ing the consideration of the plan for closer trustees. The several adjournments were affiliation.
made, one subject to the call of the president, (a) The meetings, at which that plan was and others subject to the call of the secreconsidered, cannot be pronounced invalid. tary. Whatever objections might obtain One visitation each year is required, but the with respect to adjournments in this form activities of the visitors are not confined of meetings of public, municipal or ordinary to a single meeting or a single occasion, or corporate bodies as being a delegation of to times when called to the seminary by a power vested in the whole body, there was summons from a source outside their own no invalidity in the adjournments here in officers. It is provided by article XIV of the question because under the rules governing Associate Statutes that the visitors shall the visitors the president or under stated meet "once in every year at the aforesaid circumstances the secretary was clothed theological institution
and also with power to call meetings. Moreover the upon emergencies, when called thereto, as meetings were held apparently without obhereinafter directed.
This latterjection by the visitors and by consent of all sentence includes special meetings to be of the members of the corporation. Letters called by the president or secretary under were written in March, 1922, by the clerk the terms of article XVI whenever required of the trustees to two of the members of the by any necessity or exigency. It 'is not con- board of visitors outlining the proposed plan fined to the visits to the foundation “at other of affiliation and another trustee wrote a times [in addition to the regular annual visi- similar letter to the remaining visitor. tation) when regularly called thereto," by These were individual letters and not sent some person, board or organization clothed by authority of the trustees. On May 26. with that authority as set forth in article 1922, the clerk of the trustees acting in acXX. The words “when called thereto" in ar- cordance with a vote of the trustees sent to ticle XIV refer both to special meetings the secretary of the board of visitors, but called as "directed" in article XIV and to the for the information of the board, a letter "other times [of visits to the foundation) transmitting an attested copy of the vote of when regularly called thereto," of article XX the trustees with respect to closer affiliation where specific directions are found. With- with Harvard. That letter and vote called out determining the precise meaning of the the attention of the visitors. to matters of words "regularly called thereto," it is suffi- the highest importance touching the future cient to say that a special visitation may be of the seminary. While not in form a reguhad when a meeting of the visitors upon a lar call to make a visitation, it in substance necessary occasion is called to that end in justified a visitation provided the subjectaccordance with article XIV. The visitors matter of the vote was within the jurisdicunder these provisions are not restricted to tion of the visitors. Thereafter notice of a the single annual visitation. The visitors meeting of the visitors to be held on June 15, are themselves to decide whether an emer- 1922, to hear the trustees with regard to the gency exists which demands a visitation. proposed closer affiliation was sent to the The specific powers conferred upon the visi- trustees. At that meeting the trustees aptors are far more comprehensive than gen-peared and objected to the jurisdiction of eral visitatorial powers. Being possessed of the visitors on the grounds that (1) the meetthe general common-law power of visitors ing was not a special visitation because not and in addition the special visitatorial pow. "regularly called"; (2) the annual visitation ers conferred by the Associate and Addition- could not be kept alive by successive ad. al Statutes they may act on their own initia- journments; (3) the visitors had no jurisdictive as to a matter within their general ju- tion of the subject-matter of the plan for risdiction. The right of visitors to act spon- closer affiliation. The hearing then proceedtaneously appears to be recognized in Attor-ed and the determination or decree was final. ney General v. St. Cross Hospital, 17 Beav. ly adopted unanimously. 435, 466.
 Three individuals compose the cor(b) The circumstances of the meeting of poration established by St. 1823, c. 50, as June 15, 1922, when the hearing was given visitors of the theological institution. It is to the trustee respecting the plan for closer provided by article XIV of the Associate affiliation, were these: Without narrating Statutes that “a majority of the visitors. the details of meetings and adjournments, when regularly convened, shall be a quorum, it is enough to say that the annual visitation of which quorum a major part shall have was fixed for November 30, 1921. At that power to transact the business of their com
(148 N.E.) mission." The notice to the trustees of the to time. Russell v. Wellington, 157 Mass. hearing to be held on June 15, 1922, stated 100, 105, 31 N. E, 630; Cheney v Coughlin, that a special visitation would be held for 201 Mass, 204, 212, 87 N. E. 744, and cases that purpose at a specified time and place. there collected; Ashley v. Three Justices of The records of the visitors seem to show the Superior Court, 228 Mass. 63, 70, 116 N. that that meeting was an adjournment of the E. 961, 8 A. L. R. 1463. Even if it be asannual visitation. In view of the powers sumed that the term of office of the visitor conferred upon the visitors by the Associate came to an end by efflux of time on reachand Additional Statutes, there can be an ad- ing the age of 70 years, the visitors as a corjournment of a visitation from time to time poration continued to function with the two such as is shown by the present record. In remaining members. His participation in its the Matter of the Dean of York, 2 Q. B. 1, actions came to an end before the hearing 39.
and before any decision respecting the mat It has not been argued that the notice ters have involved. See Queen v. Justices of the hearing given to the trustees was not of Suffolk, 18 Q. B. 416, 421. authorized by the visitors, or was not suf  (e) These circumstances as to the exficient in form, or did not give adequate time piration of the term of one visitor and the for preparation for the bearing or was not election of his successor after the issuance seasonably served. No one of the individuals of the notice to the trustees and before the composing the visitors as a corporation hearing do not affect the validity of their makes any complaint as to the regularity of proceedings. The visitors constitute a corthe meeting. According to their records, all poration. Changes in the members or offimembers were present. Whether it was an cers of a corporation do not concern its coradjournment of the annual visitation or a porate entity or continuity. The visitors as special visitation is not of vital consequence. a corporation continued its existence and The visitors were gathered in a meeting and identity regardless of shifting membership. for a purpose of which adequate notice had Phillips Academy v. King, 12 Mass. 546, 554; been given the trustees. Every formality so | Commonwealth-Atlantic National Bank, Pefar as concerned the real interests of the tition of, 249 Mass. 440, 144 N. E. 443. trustees had been observed. In these cir  (f) Immediately upon receipt from the cumstances the trustees cannot rightly ob- trustees of the copy of the plan of closer afject to the meeting as a visitation.
filiation at a meeting held on May 31, 1922,  (c) The point now raised that the the visitors voted to authorize counsel to meeting of June 15, 1922, was not held at the take steps necessary “to protect the interests seminary is too clear for extended discus- of Andover Theological Seminary" to the end sion. The trustees raised no objection on that the “proposed closer affiliation between this ground at the time. Apparently the Andover Theological Seminary and Harvard meetings were held at a place convenient to University may be fully presented to the Suall parties.
preme Judicial Court." This was not a vote [20-22] (d) It is provided in the Statutes expressive of a determination as to the merthat a member of the board of visitors shall its of that plan. Doubtless the visitors are not hold his office after reaching the age of required to act in a judicial capacity. They seventy. One of the visitors reached that ought to be as nearly impartial as the lot of age on December 29, 1921, but continued to humanity will permit. Nevertheless the visiact as a member of the board until after the tors constitute the tribunal established by the meeting held on May 31, 1922, when, that Associate and Additional Statutes, and by St. fact coming to the attention of the other 1823, c. 50. No other can be substituted for two members, his successor was elected on it under the law The visitors are bound to June 5, 1922, and qualified on June 8, 1922. act on their own consciences. The proceedIt is provided by article XIII of the Associ- ings respecting the hearing and determinaate Statutes that when any visitor shall have tion do not appear to have been a mere matcompleted his sixty-ninth year the board ter of form. The visitors cannot be said on shall within the year next ensuing choose this record simply to have gone through the some suitable person to succeed him who motions of a hearing in order to register a shall not take his seat before his predeces- conclusion already reached. Doubtless they sor shall have completed his seventieth year did not approach the subject with blank er resigned. There is nothing to indicate minds because it had been to a greater or that this provision was a limitation on the less extent involved in some of its aspects power of the visitors or anything more than in the 1908 plan for affiliation and because an expression of strong purpose which ought certain of the trustees had informed the visito be observed. Failure to conform to it is tors as individuals some months before as not fatal to the validity of acts performed. to the outlines of the proposed plan for clogWhile there was not a strict compliance with er affiliation. All this, however, cannot be the letter of art. XIII, those provisions ac- said to be prejudging the matter. It has cording to general principles of law must be not been urged that there was corruption on regarded as directory and not mandatory as the part of the visitors. There is nothing to
indicate that the vistiors did not hear the , amination of the plan for closer affiliation arguments of the trustees presented at the presented in 1922. hearing in a judicial spirit with a purpose It is difficult to conceive of a matter more single to 'perform their duty under the trust obviously likely to call for the exercise of reposed in them and without bias due to visitatorial powers than the close union of their previous action. This conclusion is such a seminary as Andover with such a supported in principle by Correia v. Supreme school as Harvard. The board of visitors Lodge of Portuguese Fraternity, 218 Mass. having the general and special powers al305, 309, 105 N. E. 977; The Queen v. Hert- ready adverted to are charged to guard the ford College, 3 Q. B D. 693, 703; Hayman Andover Theological Institution in all future v Governors of Rugby School, L. R. 18 Eq. time against all perversion or the smallest 28, 86; In re Fremington School, 11 Jurist, avoidance of the true design of its founders. 421, 424. See Swan v. Justices of the Su- The visitors could hardly do less than exaperior Court, 222 Mass. 542, 548, 111 N. E. ine the plan for closer affiliation of the semi386. The cases at bar are distinguishable nary with Harvard to ascertain whether it on this aspect from Thompson v. Catholic conformed to the Constitution and Associate Congregational Society, 7 Pick, 160, and sim- and Additional Statutes. The powers and duilar authorities.
ties of the visitors already set forth include  2. The trustees assail the jurisdic- within their jurisdiction a matter of such tion of the visitors to consider the plan of importance to the seminary. closer affiliation between Andover Seminary  The jurisdiction of the visitors over and Harvard Divinity School. They have the subject is not affected by the fact that
done nothing to estop themselves from rais-president and fellows of Harvard College - ing that point. This decision does not rest were not summoned before them for hearing
upon the practical interpretation placed up on the validity of the plan for closer affilia. on the powers of the visitors both by them tion. That body did not ask to be heard. and the trustees during the time since 1808, The visitors had no jurisdiction over Har. important though that might be. Burrage vard College. The trustees by making a con• v. County of Bristol, 210 Mass 299, 301, tract with a third person manifestly cannot 96 N. E. 719; United States Trust Co. v. prevent the visitors from performing their Commonwealth, 245 Mass. 75, 80, 139 N. E. duties. The cases at bar are distinguishable 794; Southborough v. Boston & Worcester in this respect from Smyth v, Phillips Acad. Street Railway, 250 Mass. 234, 145 N. E. 422. emy, 154 Mass. 551, 28 N. E. 683. The presi.
The plan for closer affiliation in the main | dent and fellows of Harvard College raise po was a joining of Andover Theological Semi- such question. nary with Harvard Divinity School. The 3. The determination or decree made by former was founded and had been main-| the visitors after prefatory recitals was in tained solely for the theological education of these words: ministers of orthodox trinitarian Congrega
"(1) That the said plan for closer affiliation tionalists. The strict provisions as to the between Andover Theological Seminary and theological beliefs of her professors, and the Harvard University is inconsistent with the Asheavy duty laid upon the visitors to inquire sociate Foundation Statutes. into these matters show how vital was re
“(2) That by the adoption of said plan for garded adherence of the institution as an Seminary and Harvard University, the said An
closer affiliation, between Andover Theological entity to that denomination. The Andover dover Theological Seminary will be improperly Creed itself was essentially a statement or- | managed and will not then be conducted in acthodox, trinitarian, evangelical in the strict cordance with the principles of its foundation. meaning of those words at that time. It was The board of visitors of Andover Theological framed by and for Calvinists of that day. Seminary therefore declare void the plan for It embodied a part of the Westminster As-closer affiliation between Andover Theological sembly's Shorter Catechism.
Seminary and Harvard University as submitted It was the
to them by the trustees of Andover Theological creedal basis of an institution founded and Seminary." promoted to combat liberalism in religion. Harvard Divinity School, for many years [27, 28) It is not our province to re-examine distinctively Unitarian, had become wholly | this decision so far as it rests upon findings undenominational. On its faculty were Uni- of fact. The ordinary exercise of visitatorial tarians, and others not adherents of any trin- powers if founded upon any evidence, is not itarian orthodox church. The Plan of Closer reviewed by courts. The duty of the courts Affiliation differs materially from the 1908 touching the determination by visitors actPlan of Affiliation in many respects, although ing within their general jurisdiction is to inalike in that under both Andover and Har- terpose to prevent action contrary to law in vard students meet in the same courses and the administration of the trust. The weight Andover students take courses given by Har- and effect to be given in general to the detervard instructors and vice versa. Approval of mination of the visitors of a charity are statthe 1908 plan (even if there were such ap-ed in Nelson v. Cushing, 2 Cush. 519, at page proval by the visitors) would not prevent ex- 530, to be:
(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 it must be given effect. The charity must be direct the ordinary exercise of such visitatorial
The law recog. power, subject to the limitation only, that when administered accordingly. 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 of trust."
preach its tenets. Such a gift constitutes a  The principle generally recognized is charity. The law will uphold and protect it. that in all cases where a visitor has given a
The obligation is imposed upon the managers decision within his powers, it is final and not of such a charity to adhere strictly to the subject to re-examination at law or in equity. scheme of the founders. Those who adminisAttorney General v. Catherine Hall, Jac. 381, ter the charity have no right to vary, alter 392; Ex parte Berkhampstead Free School, or change its plan. They must execute the 2 V. & B. 134, 137; The King v. Bishop of purpose of the founders conformably to its Ely, 5 Durnford & East, 475, 477; Murdock, true intent. Their ideas of expediency or Appellant, 7 Pick. 303, 321; Philips v. Bury, 2 general utility in conducting the trust are of Durnford & East, 346, 348, 353.
no consequence. The court, in ascertaining  These principles, applied to the An- the purpose of the founders of charitable dover trusts, mean that the determination of trusts and in performing its duty to see that the visitors must stand, if supported by evi- they are not perverted, has no concern with dence, unless it is contrary to some general the degree of public advantage likely to flow principle of law or to some provision of the from the trust as founded, compared with Constitution or Associate or Additional Stat- some other more or less analogous purpose. utes of the seminary. This is the implication
[33, 34] We are bound by the declared purof the words of St. 1823, c. 50, $ 3, to the ef- pose of the founders. It is only when that fect 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, [31, 32] The principles to be foilowed in  2 Ch. 124, 131. 133. 135. deciding this question are settled. The sem  Whether the decision of the visitors inary is a public charitable trust for the re respecting the plan for a closer afliliation ligious education of those preparing for the was erroneous in law requires a detailed exChristian ministry. The main inquiry is to amination of its terms and its effect upon the ascertain the purposes of the founders as ex- maintenance and administration of the sempressed in the instruments signed by them. inary in accordance with the expressed deThat purpose must be gathered from the sign and declared purpose of its founders. words of those instruments, interpreted ac
The plan of closer affiliation between the
As sumcording to the meaning there attributed to two schools was adopted in 1922, them, and read in the light of the circum- marized by the master, itstances existing at the time they were used. “provides for a nondenominational theological There is no other test or guide by which to school with a single faculty, roll of students, find the true character of a charity and its administration and catalogue, the name of which scope and its limitations. To follow any shall be the Theological School in Harvard Uni.
versity, though it is provided that in all official, the Roman Catholic Church, but, having be publications it shall be described as 'formed by come a modernist, was forbidden to celebrate the affiliation of the Harvard Divinity School the mass or further to fulfill the functions of and Andover Theological Seminary. It is rep
a priest, who has never severed his connecresented in the catalogue of the Theological School in Harvard University for the academic tions with the Roman Catholic Church, but year 1923-24 that the school is a department of has no relations with it. Certain members of Harvard University. By the agreement-Plan the faculty of arts and sciences of the Univerof Closer Affiliation-it is provided that the sity, whose courses, having nothing to do Trustees of Andover Seminary ‘shall continue with matters of doctrine, are announced in to exercise their functions under the Statutes, the catalogue of the Theological School, are and otherwise, having the same control, as now, also members, although seldom if ever atover the property, funds, chairs of instruction, and students, of Andover Theological Semi: tending the meetings of its faculty. Three nary' and that the board of visitors shall con
of these are Episcopalians, one a Jew, one a tinue in the exercise of their authority and du- Christian, but member of no church, and two ties as defined by the provisions of the Associ- regular attendants at Appleton Chapel, whose ate Foundation, and other deeds of gift.' The denominational connections were not found internal affairs of the Theological School in by the master. The findings of the master Harvard University are in the first instance un touching the present denominational status der control of its faculty. The method of con- of the Harvard Divinity School or the Theostituting this faculty is fixed by the agreement. The faculty is subject to the Statutes of Har: logical School of Harvard are that: vard 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 in which philosophy, history, and classical litof those in attendance at each meeting were erature are studied in the colleges. The quesprofessors on the Andover Foundation."
tions which gave rise to the division of the “Degrees in the Theological School in Har- Congregational denomination are irrelevant to vard University are granted by the Harvard the various subjects taught in the theological Corporation upon the recommendation of the school-homiletics, biblical exegesis, church hisfaculty of the Theological School. The only re-tory-with the exception of systematic theology. quirement for bachelor's degree (S. T. B.) is For many years prior to 1921 the teaching of that the student shall complete three years of systematic theology in the Harvard Divinity theological study and shall pass a general ex- School had laid no stress on any creed and was amination covering under seven heads the field as if the Westminster Shorter Catechism and of theological study. Hence a student (Ando- the Associate Creed were nonexistent." ver or otherwise) may obtain this degree without taking any course given by an Andover in The Andover Seminary at its inception was structor and a student (Andover or otherwise) a protest against predominance of Unitarianmay obtain this degree without taking any but ism in Harvard manifested by the election of courses given by Andover instructors, but he would not be likely to do so. The Trustees of
a professor of that tendency in 1805. The Andover Seminary retain their right to grant at differentiation in Harvard of the Divinity their discretion Andover degrees to Andover School from the College was gradual. Its students. No student, however, gets an Ando- faculty was organized in 1819. During its ver degree unless he asks for it and elects to early years and until 1880 all of its profestake it. The requirements for the Andover sors were Unitarians, and most of its students degree have not been affected by the Plan of became Unitarian ministers. During this Closer Affiliation. In order to obtain the An- period it was known and conducted as a dover degree it is necessary for a student to school for the propagation of Unitarian faith. take certain courses given by Andover profes- Since 1880 it has gradually changed by insors, including Professor Evans' course in systematic theology."
cluding in its faculty trinitarian Congrega
tionalists and those of other denominations. The faculty of the Theological School in Apparently by 1906, if not earlier, it had beHarvard University in the academic year come entirely undenominational. 1923–24 under the working of the plan for The Andover Theological Seminary was closer affiliation with respect to denomina- founded by Calvinists. It was made by them tional connections was as follows: The pres. | distinct and apart from every other theolog. ident of the University was a Unitarian, ical school. Their three instruments of gift three of the Andover faculty were members show that their convictions were settled upon of trinitarian Congregational churches, and definite theological denominational tenets. An one a member of the orthodox branch of the undenominational theological school was forSociety of Friends. Three of the Harvard eign to their purpose and alien to their der faculty were also trinitarian Congregational-larations. The circumstances, under which ists, two Unitarians, one a member of the the seminary was founded, have already been Church of England, one ordained a priest of narrated. Without now repeating them, it