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(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 bad 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 estabThe great and leading purpose of the lishment of the Andover Seminary and of founders was to establish a theological school" the extreme care taken by the founders to for “the defense and promotion of the Chris- safeguard their donations against any pertian religion by increasing the number of version of their emphatically proclaimed purlearned and able defenders of the gospel of pose demonstrates that no such close affiliaChrist, as well as of orthodox, pious and tion as is here arranged with an undenomzealous ministers of the New Testament.” inational school would harmonize with their The teachers in the institution are required project. There was no elasticity in their 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 bis 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 its 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 to all that is required in the Constitution. or diminution." Continued belief in this The argument that in the matter of doccreed is a test of the right to remain a pro- trinal requirements there is a material infessor. It is manifest under the Associate consistency between the “Constitution" and and Additional Statutes that every Andover the “Associate Statutes" of the seminary. professor must believe sincerely, and be con- arising from compromise between the two scientiously convinced of the truth of these groups of trinitarian Congregationalists comdistinctive theological doctrines. It is a fair bining in its foundation, is not impressive in inference from the three documents on which this connection. The institution was in subthe Andover Seminary came into existence, stance dedicated by all its founders to an framed with such obvious and extreme care orthodox creed. touching the theological beliefs of the profes The organization of the new theological sors, that the founders expected professors school with "a single faculty, roll of students, entertaining such tenets to teach them to the administration and catalogue is inconsistent students. It is expressly provided in the As with the Associate and Additional Statutes sociate Statutes that each professor shall of the Andover Seminary, and with principles promise to “maintain and inculcate the Chris- underlying the foundation of the seminary. tian faith as expressed in the creed by me The professors appointed under the Andover now repeated, together with all other doc- endowment do not become professors in the trines and duties of our holy religion.” 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 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 The choosing of the faculty, the courses of which professors owing any allegiance to study, the declaration of the policy, and deAndover are in the minority. The courses terminations as to the administration of the of study and methods of instruction, being new theological school in the test of final commonly under the control of the faculty, power rest with the authorities of Harvard have passed out of the exclusive regulation rather than with those of Andover. These by Andover Seminary. The educational pol- factors constitute a delegation of power by icies outlined by the founders of Andover in the trustees which by the underlying trusts their Statutes have no binding authority over of the Andover Seminary can be administera majority of those now administering the ed by them alone. affairs of the new theological school. The The general effect of the plan for closer faculty is subject to the rules adopted by the affiliation is a union of the Andover Seminary Harvard corporation. The present arrange with the Harvard Divinity School so as to ment of courses is such that commonly even become a department of the University. students seeking to be and remain strictly That constitutes an institution different in Andover students would receive a substantial nature from the one contemplated by the part of their instruction from Harvard | Constitution and Associate and Additional professors; that is, from professors who Statutes of Andover. teach and emphasize no denominational ten The preliminary paragraphs of the plan ets whatsoever. They might well receive in- for closer affiliation to the effect that the construction from no other professors. It is tinuity and distinct existence of the Andover apparent that the strong tendency of the plan Seminary shall be maintained, and that the for closer affiliation as a practical matter is powers of the trustees and board of visitors toward the complete disappearance of Ando- shall remain and continue to be exercised, ver, with all its distinctive characteristics, must be read and construed in connection and its merger in the new Theological School with the succeeding paragraphs, which in of Harvard.

substance and effect place such a dominating Recommendations of students for Andover power in Harvard as to enable the trustees scholarships and fellowships must proceed and visitors of Andover, in the exercise of from the faculty of the new school, although their own free, untrammeled judgment, from the appointments are to be made by the trus- executing the will of its founders. This contees of Andover. This further accentuates clusion is supported by the principle laid the completeness of the control of the Har- down in several decisions. Harvard Col. vard faculty over matters pertaining to Ando- lege v. Society for Promoting Theological

Education, 3 Gray, 280; Winthrop 7. AtThe plan of the founders of Andover was torney General, 128 Mass. 258; Morville v. that its professors were to be militant teach- Fowle, 144 Mass. 109;1 Cary Library v. Bliss, ers. According to the mandate of its Statutes 151 Mass. 364, 25 N. E. 92, 7 L. R. A. 765; they were not only to inculcate trinitarian Eliot v. Trinity Church, 232 Mass. 517, 122 orthodox principles but they were to oppose N. E. 648. The case at bar upon this point many other varieties of religious belief there hardly can be distinguished from Harvard enumerated. Such contentiuosness is in- College v. Attorney General, 228 Mass. 396, 117 compatible with the nature of an undenom- N. E. 903. The question decided in Dickey inational school.

v. Trustees of Putnam Free School, 197 Mass. The plan for closer affiliation requires that 468, 84 N. E. 140, has no bearing upon the Andover professors shall teach all those present issues. students of the new school who come to their This conclusion we feel compelled to reach classes whether they intend to become "or- on settled principles of law. It is not afthodox

ministers" or do not in- fected by the facts found by the master that tend to become ministers at all. While Ando- there is not now the sharp difference between ver Seminary by its Constitution is open to the orthodox or trinitarian Congregational“Protestants of every denomination," its at-ists and the liberal or unitarian Congregatention in general was confined to those who tionalists that there was at the time the Anintended to devote themselves to "the work dover Seminary was founded. There of the gospel ministry,” and exercised their mains a fundamental difference between the preference to attend a theological school de two, confined to a part of the field of systemvoted to the promotion of orthodox trinitar- atic theology. This difference for philosophi

an Congregationalism centralizing about the cal thinkers has been much softened or even Andover Creed and the Westminster Assem-obliterated. "Except as this difference is bly's Shorter Catechism. The requirement discussed historically, it is irrelevant in the of the plan of closer affiliation is in this re other branches of study which are ordinarily spect different in kind from an arrangement carried on in a theological school.” A readfor interchange of students between separate / ing of the Andover Creed and of the West

110 N. E. 766.

ver.

*

re

1

(148 N.E.) minster Assembly's Shorter Catechism and dover Seminary was founded than does the giving the words used their common mean- Plan of Closer Affiliation with Harvard Univering shows clearly that the disobedience, sin sity.” or fall of Adam constitute an important, if This conclusion is supported by other and not an essential, part of both. The master by subsidiary findings. finds that:

The substance of other findings of the mas"So far as the 'sin' or 'fall' of Adam is con ter 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 school by removing from Massachusetts [for

that it could affiliate with any other such thereof in Genesis as historical."

hidden by section 10, c. 15, St. 1780]; that These findings cannot abate or qualify the Massachusetts is and has been since colonial emphasis placed upon the Andover Creed and times the leading Congregational state in the the Westminster Assembly's Shorter Cate sense that there are here many more Congrechism in the Constitution and the Associate gational churches than in any other state and Additional Statutes of the Andover Sem- and that the maintenance here of a strong inary.

theological school is of peculiar importance at There has been considerable argument con- the present time"; that for practical purposcerning tuition and scholarships in the An. es there are now no acute divergencies bedover Seminary and violations of the Associ- tween trinitarian and unitarian Congregaate and Additional Statutes in these particu- tionalists, that the existing difference is conlars. There is nothing in the plan for closer fined to a part of a single theological field affiliation concerning tuition. There is no al- having only a historical aspect so far as conlegation in the pleading touching tuition. cerns theological instruction. These findings Therefore it is not before us. The details do not go to the extent of showing that the concerning scholarship are not relevant to the plan of closer afiliation is in conformity to main issues on which these cases must turn. the purposes of the founders of the Andover The master finds:

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 re. cessful, "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 Theo Their views as expressed in the "Constitulogical Seminary to maintain a theological tion" and the “Associate Statutes” as to docschool of a grade which would justify the grant- trine and creed were immutable. The founding of degrees without an affiliation of some

ers looked forward to no such modifications. kind with some other institution or institu- On the contrary, the associate founders entions."

joined that every article of the creed “forever

remain entirely and identically the same, [36] The master further finds:

without the least alteration." "That, apart from doctrinal or creedal re [37, 38] All these facts have no decisive quirements, the Plan of Closer Affiliation ful- bearing upon the questions here presented fills, as nearly as is possible under the existing for decision. The question presented is quite conditions, the purposes for which Andover different from what it would be if the semiSeminary was founded," and "that if the purposes for which the Seminary was founded, so

nary had been founded simply or in substance far as such purposes involve doctrinal or creed- for the training of orthodox tripitarian Conal requirements, are fulfilled if instruction in gregational ministers. Doubtless if that had the field of theological studies in which doc- been the foundation, the seminary rightly trinal questions are involved is in the historical | could be administered according to the besuccession of New England trinitarian Congre- liefs of those "in the historical succession gationalism, the Plan of Closer Affiliation ful- of New England trinitarian Congregationalfills with respect to Andover students as nearly ism." If it has become impracticable to exas possible under existing conditions the purposes for which Andover Seminary was found-ecute the charitable trusts established exed. It did not appear before me that, even if pressly in writing with respect to the Anthe purposes for which Andover Seminary was dover Seminary, that fact does not authorfounded,

with respect to doctrinal or ize the trustees to make a different disposicreedal requirements, are not fulfilled if in- tion of the charity. The trustees cannot struction in the field of theological studies in rightly depart from the trusts established. which doctrinal questions are involved is in the The doctrine of cy pres can be administered historical succession of New England trinitarian Congregationalism, any affiliation of Ando- only by a court of equity and not by the man. ver Seminary with any other institution would agers of a charity. MacKenzie v. Trustees of more nearly fulfill the purposes for which An- | the Presbytery of Jersey City, 67 N. J. Eq.

652, 671, 61 A. 1027, 3 L. R. A. (N S.) 227; , position which they here take. We need not Lakatong Lodge v, Franklin Board of Edu- consider whether circumstances might arise cation, 84 N. J. Eq. 112, 116, 92 A. 870; In which would work something in the nature of re Campden Charities, 18 Ch. D. 310, 328, 329, an estoppel against the visitors. General330; Tudor on Charities & Mortmain (4th ly it is true that no length of time of diverEd.) 490.

sion from the plain provisions of a charitable It may be that in the light of these findings foundation will prevent its restoration to its the founders were unwise, and that it would true purpose. The practical construction put have been sounder policy to have made a upon a charitable foundation of doubtful charitable foundation less hedged about with meaning by those charged with its adminisrestrictions and with freer hand in the man- tration through many years is entitled to. agers to adapt the charity to changed condi- great weight in ascertaining its right contions as decades come and go. Such consid-struction. Here the words establishing the erations have no relevancy to the questions charity are clear. The purpose of the foundhere to be decided. We can only interpreters is expressed with lucidity. No reason is and apply the charity as it was founded ac- shown why the trust should now be admincording to the terms of the gift and the words istered by the trustees of their own motion in of the founders.

a manner so divergent from its terms as orig[39] The argument of the trustees that re- inally established. Attorney General v. Rochlief ought to be denied because of changed ester, 5 De Gex, M. & G. 797, 822; Attorney conditions, based on cases like Jackson v. Ste-General v. Beverley, 6 De Gex, M. & G. 256, venson, 156 Mass. 496, 31 N. E. 691, 32 Am. 268; Attorney General v. St. John's Hospital, St. Rep. 476, and Loud v. Pendergast, 2062 De Gex, J. & S. 621; Church of Christ v. Mass. 122, 02 N. E. 40, has no relevancy Reorganized Church, 71 F. 250, 17 C. C. A. whatever to the situation here disclosed. 397; Drummond v. Attorney General, 2 H. The doctrine, that a public charity, no longer L. Cas. 837, 861. capable of practical administration according The cases have been decided on the pleadto its foundation, can be changed to a new ings and as presented in argument. Kindred, purpose under the doctrine of cy pres, alone cognate or allied questions need not be disis too well settled to require discussion. cussed or considered.

If it has become impracticable to carry out The question whether the doctrine of cy the Andover trusts, application may be pres may be invoked upon the facts disclosed made to the court for the formulation of a in the master's report is not raised on the scheme for their administration under the present pleadings; and the question whethdoctrine of cy pres.

None of the cases at er amendment to that end ought to be albar are directed to the invocation of that lowed also is not before us. doctrine. Hence we cannot deal with that Fourth. The conclusion which we bare subject on these records.

reached may render immaterial some or all [40] It has been urged with earnestness of the visitors' exceptions to evidence. Ner. that the visitors are disabled from raising the ertheless no error is disclosed in any of the question as to the validity of the plan for rulings to which they excepted. Large ques. closer affiliation because of the plan of affili- tions affecting an important public charity ation of 1908 which they have not disap- were involved. Whether it was practicable proved and which has been in operation so to administer that charity in conformity to long as to render any attack upon it now an its foundation in the light of change in docinjustice. The plan for affiliation of 1908 is trinal positions and creedal beliefs or the not before us for consideration. The master importance attributed to them, and the deterfinds that the plan of closer affiliation differs minations of the visitors from time to time as materially from the previous plan of affilia- to precise adherence to the terms of the Astion in many respects, although resembling sociate and Additional Statutes, had a bearit in others. Critical comparison of the two ing, although somewhat remote, upon the plans demonstrates that this finding is right. real nature of the charity. At all events this Without taking time to state the points of is one of the cases where the court is not indivergence and resemblance, it is enough to clined to sustain exceptions as to evidence say that they are so far different in sub- where its admission does not appear to be stance that approval of the earlier plan does plainly wrong. Sargent v Merrimac, 196 not as matter of logic, or of judicial impar- Mass. 171, 175, 176, 81 N. E. 970, 11 L. R. tiality require approval of the latter.

A. (N. S.) 996, 124 Am. St. Rep. 528; Jed[41, 42) The trustees point to various in- drey v Boston & N St. R. Co., 198 Mass. 232, stauces where in past years the visitors have 235, 84 N. E. 316. relaxed from strict adherence to the require Evidence as to relaxation by the visitors of ments of the Associate and Additional Stat- the strictness of unqualified subscription to utes. These relate to requirement of sub- the Andover Creed by professors and repetiscription to the creed without qualification tion of its words and other matters of this by professors and in other matters. All these nature was pertinent on the same ground and matters, giving them collective force, are not stands on the same footing in law. enough to bar the visitors from asserting the

There is no merit in the exceptions

were

our

or

(148 N.E.) trustees to the exclusion of evidence. Evi-, to secure and maintain in the administration dence of teachings from time to time in the j and teaching of the theological institution Andover Theological Seminary and writings, adherence to the creed set forth both in statements and conduct indicating strongly their Associate and Additional Statutes and disbelief by various professors and others to the theological doctrines there described. interested in the seminary in parts of the The establishment of visitors is stated to be Andover Creed have no relevancy to the is- to the end that the trusts for the theological sues here depending. Evidence that there seminary "may be always executed agreeably

no educational institutions in New to the true intent of this our foundation, and England which would accept the Andover that we may effectually guard the same in all trusts subject to the doctrinal restrictions future time against all perversion, or the also was not germane to the present inquiry. smallest avoidance of true design." The opinion of various writers and church Then, after the enumeration of many speci

ecclesiastical meetings concerning the fied powers and duties, the visitors are merits of the plan for closer affiliation also charged "in general, to see that our true inwere impertinent to questions here to be tentions, as expressed in these our Statutes, decided. Without further discussion or state- be faithfully executed.” These powers are ment, all the exceptions as to evidence are broad enough to enable the visitors to invoke overruled.

the aid of a chancery court in a case like the Fifth. Form of Procedure and Relief. present to enforce conformity to the intenThe three cases are rightly here.

tions of the founders with respect to the [43] 1. The appeal of the trustees from theological institution. Instances might arise the determination or decree of the visitors where the only avenue open to the visitors is expressly authorized by St. 1823, c. 50, 8 to enforce observance of the intentions of 3. Two such appeals have hitherto come be the founders would be by resort to a court. fore this court and have been entertained Even though this power is not expressly conand decided. Murdock, Appellant, 7 Pick, ferred by St. 1823, c. 50, it is implied in the 303; Smyth v. Phillips Academy, 154 Mass. ample grant of corporate authority and ob.551, 28 N. E. 683.

ligation there contained. The visitors have 2. The suit by the trustees against the a public or official duty resting on them in visitors seeking to set aside the determina- this particular Kline v Shapley, 232 Mass. tion or decree declaring void the plan of 500, 122 N. E. 641; Monroe v. Cooper, 235 closer affiliation and to restrain the visitors Mass. 33, 34, 126 N. E. 286; Ayer v. Commisfrom further interference with the execu- sioners on Height of Buildings, 242 Mass. 30, tion of that plan appears to be sanctioned 33, 136 N. E. 338. Of course à defendant and perhaps may be supported by the prin- ought not to be harassed with unnecessary ciples of Eaton v. Eaton, 233 Mass..351, 364, litigation. Spear v Coggan, 223 Mass. 156, 124 N. E. 37, 5 A. L. R. 1426, and Eustace v. 111 N E. 793; Consolidated Ordnance Co. Dickey, 240 Mass. 55, 60, 86, 132 N. E. 852. v. Marsh, 227 Mass. 15, 116 N. E. 394. See, however, Smyth v. Phillips Academy, 154 [45] The visitors have brought only one Mass. 551, 28 N. E. 683, where the Attorney suit. The president and fellows of Harvard General was made a party. Since this bill College in their own right and the Attorney must be dismissed, there is no objection to General representing the interests of the stating the grounds of substantive law which general public have or may have an interest support that result. Commonwealth v. Mc- in some aspects of the present controversy. Nary, 246 Mass. 46, 48, 140 N. E. 255, 29 They have been made parties to the suit A. L. R. 483, and cases there collected. brought by the visitors. In view of the spe

[44] 3. The suit by the visitors against the cial powers and duties of the visitors in contrustees, the president and fellows of Har- nection with the general visitatorial funcvard College and the Attorney General is tions, this is not one of the numerous cases not open to attack by demurrer, It states a illustrated by Burbank v. Burbank, 152 Mass. case for equitable relief. The powers and 254, 25 N. E. 427. 9 L. R. A. 748, Attorney duties of the visitors are bounded by the General v. Bedard, 218 Mass. 378, 385, 105 statute creating them a corporation. That N E. 993, and Krauthoff v Attorney General, statute in turn by reference embodies “the 240 Mass. 88, 92, 132 N E. 865, where the terms and conditions prescribed by the stat- Attorney General alone is authorized to inutes of the founders” of the theological institute proceedings to enforce a public charstitution “agreeably to the intentions of the itable trust. In the peculiar circumstances founders," and expressly confers upon the of the present parties and their unusual invisitors "power to do and perform all acts | terests and rights, it cannot be said that and things required of them by such stat- the suit of the visitors cannot be maintained. utes.” The visitors, therefore, have not only What is sought is not a mere declaratory degeneral visitatorial power, but also certain cree and the principle of Hanson v. Grisadditional special powers set out in detail wold, 221 Mass. 228, 108 N. E. 1035, is not in the Statutes of the founders. Manifestly applicable. It follows from what has been the fundamental purpose of the founders was said, without further discussion, that the

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