The opinion
Bedle, J.,
dissenting,
A bill was filed in the Court of Chancery, in the name of the Attorney General, upon the relation of the Roman Catholic bishop of the diocese of Newark, for an authoritative *520 construction of a charitable trust in the will of Nicholas Moore, deceased, late of the city of Newark. The testator died July 1st, 1865, having made his will March 29th, 1865. By it, after providing for the payment of his debts, he gives $700 to his executors, out of which they are to pay his’ funeral expenses, and the balance to pay to the pastor of St. James Roman Catholic church in Newark, to be disposed of by him at his discretion, for the benefit of his soul and the soul of his deceased wife. He then gives and devises, to his executors, and the survivor of them, all the residue of his estate, real and personal, in trust, first, to pay three several legacies of small amounts, and then, in the fourth place, 'to pay and appropriate $1000 for the building of an altar in St. James Roman Catholic church aforesaid, and the Sum of $600 for the construction of two side windows in said church, one to contain his name, and the other that of his deceased wife; also, in the fifth place, to pay to St. Mary’s Orphan Asylum; then or lately located in Newark, (which by the answer appears to be a Roman Catholic institution,) the sum of $400, and then, as follows; “Sixth. With the balance of my estate which may remain after executing the foregoing trusts, to establish, as soon as may be practicable after my decease, in what is now known as the fifth ward of said city of Newark, an orphan asylum, to be called St. James Roman Catholic Orphan Asylum, and also hospital for sick and infirm persons; and my said executors, or the survivor of them, shall, as soon as may be conveniently practicable after the institutions shall have been established, cause them to be incorporated, one corporation for both institutions, and shall convey to the corporation, when created, all the property belonging by assignment or appropriation of said executors, or the survivor of them, to the institutions. In the meantime and until such incorporation, my executors, or the survivor of them, shall have the management of the-institutions. Lastly. I hereby constitute and appoint Theodore Runyon, now mayor of said city of Newark, and Reverend John M. Gervais, now pastor of St. James Roman Catholic, church in Newark aioresaid, executors, &c.”
*521 The amount of the residue is not certain. The relator alleges that it will be about $40,000, and the executors say that they are now unable to state what the amount will be. The relator claims that the testator intended the two institutions to be of a denominational, religious character, that is, Roman Catholic. The executors claim that they are entirely secular charities, and to be managed without reference to any particular denominational regulation. No question is or can fairly be raised as to tho duty of the Court of Chancery to see that trusts for the establishment of charities, such as are indicated in this will, are faithfully carried out. The intention of the founder must be observed. If it appears from the will that he intended those institutions to be under Roman Catholic religious regulation or management, this court has no option but to compel the executors to carry out that intention. What, then, did the testator intend concerning that? This, now, is simply a question of religious management, and not as to the extent of the charities, so far as those who are to be benefited by them are concerned. That will be hereafter considered. These charities, in their nature, are eleemosynary, and need not be under denominational control. Religious instruction and consolation, however, are fitting and proper in their management, and were the will entirely silent on this subject, it would not be presumed that religious education was intended to be excluded from tho asylum, or religious privileges and comforts from the hospital, No such presumption as that is to be overcome in looking for the intention of the testator in his will. The only presumption that would arise, in the absence of any expression to the contrary, would be that he either intended his charities to be free from exclusive sectarian regulations, or that he was willing that those to whom the management was entrusted should exercise their discretion about it. And this is not a violent, stubborn presumption, for such charities are often under denominational control. They may be entirely secular, or they may be a part of tho system rccog- ■ nized and fostered by a particular denomination to propagate *522 its faith and practically exemplify it. The bill states “ that the Roman Catholic church has many orphan asylums and hospitals under its care, with orders of men and women especially trained for this department of Christian labor;” and that is distinctly admitted in the answer. The inquiry, then, fairly arises, did the testator, when he directed his executors to establish an orphan asylum and hospital for sick and infirm persons, mean such as are purely secular, and which might only be presumed to be so, or did he mean such as are analogous to those recognized and maintained under the patronage of the Roman Catholic church ? This question, it is true, must be settled by the will itself, yet in reading it we ought to put ourselves in the place of the testator, with the light of the circumstances that surrounded him, and then see how the language of the will affects its subject matter. 1 Jarman on Wills 349, note, ch. 14.
That he was a Roman Catholic is admitted. His other bequests, excepting three inconsiderable legacies, show his attachment to that church. That church recognizes the maintenance of orphan asylums and hospitals, as a part of its Christian labor. These facts, although of the religion and religious surroundings of the testator, are competent, under the well known principle of construction already stated, as lights to help ascertain the meaning and application of the language used. Religious opinions of the founder of a charity are sometimes admitted to control the objects of it, or the administration of the trust, where the charity is created to promote a religious establishment or religious education, and when the intention as to the religion to be .promoted is not expressed, or expressed in a very uncertain way. In such cases the object being to promote religion, and it so appearing in the instrument of foundation, it has been presumed that the founder intended some particular form of religious doctrine to be taught or supported, and that he could not have intended to propagate any other form than his own. Hence, his own has been considered to control. This seems to be the principle announced by Sir John *523 Eomilly in The Attorney General v. Calvert, 23 Beav. 258, and without controverting it, it is only necessary to say that it has no application to the rule of construction now invoked. Concisely stated, it is as follows : the object being to promote religion, some form was presumed to be intended, and hence his own was that form, unless expressed otherwise. That is not a doctrine of construction, but of legal presumption. The rule of construction referred to, is stated by Lord Chancellor Cottenham, in the case of The Attorney General v. Shore, in the House of Lords (11 Sim. 639), upon the admissibility of extrinsic evidence to ascertain the intention of Lady Hewley in her charities “ to godly preachers of Christ’s holy gospel,” &c. After the delivery of the opinions of the learned judges, to whom the several questions in the cause had been referred, the Lord Chancellor, in moving the judgment of the house, uses this language : “Your lordships will have observed that in the discussion in the Court of Chancery, a very large range of evidence wras admitted with a view of coming to a decision as to what was the intention of Lady Hewley, which could, after all, only be judged of by the language and views used in the deeds. In what respect and for what purposes this evidence was properly received, was the subject of one of the questions put to the learned judges, and has been the subject of some difference in their opinions. It does not appear to me necessary to consider minutely these differences, because I conceive that keeping strictly within those rules which all the opinions recognize, there is sufficient, upon the view taken by the great majority, to support the conclusion to which they have come upon the main point in the case. It was very clearly and shortly laid down by Mr. Baron Gurney, ‘ that that part of the evidence which goes to show the existence of a religious party, by which the phraseology found in the deeds was used, and in the manner in which it was used, and that Lady Hewley was a member of that party, is admissible;’ that being in effect no more than receiving evidence of the circumstances by which the author of the instrument was *524 surrounded at the time.” The principle is here laid down that the intention must be judged of from the instrument, and in the light of the circumstances surrounding at the time. Let us, then, take this familiar principle, with the circumstances surrounding the testator, and proceed to ascertain from the will_ the character of the charities intended. The asylum and hospital are mentioned as two institutions, yet he directs that they shall be incorporated as one — “ one incorporation for both institutions.” From this, it is evident he intended both to be under one management, and the reasonable construction of the clause, “ an orphan asylum, to be called St. James Roman Catholic Orphan Asylum, and also hospital for sick and infirm persons,” taken in connection therewith, is, that the asylum and hospital should be called St. James Roman Catholic Orphan Asylum and Hospital for sick and infirm persons.
Now, does this name mean anything, or is it delusive and senseless ? Does it mean a secular charity purely, or such a charity as is well recognized by the Roman Catholic church, with which, as it appears, he was familiar? St. Mary’s Orphan Asylum was an orphan asylum merely. That was Roman Catholic, and he gave to it. This charity is for orphans, and sick and infirm persons besides. Does he mean to have this charity just what he calls it, or something else ? Names, like titles to acts of the legislature, may denote character and quality, or thdy may indicate but little. Whether either, depends much upon the name itself, andj in this case, upon how it is used. It is no uncommon thing to name institutions, whether educational, religious, political, or charitable, from individuals concerned in or connected with the general object of the institution. From that no particular quality can be drawn. Churches are often named after saints, and no denominational character may be deduced from it; but when in addition to that, a peculiar denominational name is added, as for instance, the St. James Roman Catholic church, no one could hesitate to believe that it meant what it said, that it showed as plainly as words could make it, that the church *525 that bore that name was a Eoman Catholic church ; and so of nil other churches of any sect or creed. The name, whether Baptist, Episcopalian, Methodist, Presbyterian, or whatever religious sect it may be, is always considered as showing the denominational character of the church, and no one could reasonably think otherwise. Denominational names, so far as common observation goes, are only used to denote character or some quality when applied to church organizations, and to the common understanding the same rule would naturally apply to any organization that may be managed under some religious discipline, whether it be an orphan asylum, a hospital, or a school. The compound adjective, Eoman Catholic, prefixed to either, would, according to natural and plain construction and understanding, give that peculiar quality to it. Those words would designate the kind of an institution it should be, just so far only as they would qualify the substantive. In the absence of words of quality, I concede that this charity would not be under denominational control as to religion, but when such words are given by which it shall be called as long as the institution shall survive, I cannot hesitate to believe that the founder intended that the object of his bounty should be just what he called it. It was suggested that the testator may have intended in the name he gave, to show his attachment and respect for the St. James Eoman Catholic church, of which he was a member. IPad he simply called his charity St. James Orphan Asylum and Hospital, there might have been some plausibility in the suggestion; but when he goes further and adds the name of a religious denomination, I cannot believe that simply to commemorate that church, he meant to have, for all time, the strange inconsistency of a denominational name to a charity only secular, particularly when no such intention is found in the will. What right have we to say that he did not intend that institution to be what he called it ? Why should we not rather say that he meant what he called it, when a name so significant and characteristic is given ? If we do not, then we surmise and *526 wonder why he should have fixed a designation so anomalous. Every effort to account for it like the one stated, takes :us away from the terms of the will, and gives no solution that can satisfy or explain. This designation by name overcomes all presumption that the charity was only secular, by reason of any general words employed. It is'not the policy of the law to raise violent presumptions to disconnect charities from religious denominations. Their management is often better and more earnest under the regulation of a particular faith, than- under the common humanity of even enlightened society; still the presumption of the law should not be disturbed,-except when a sufficiently distinct intention to the contrary is manifested. The intention of the founder is clear in this case, unless something is found in his will to indicate that he did not mean his institutions to be what he called them. Is there anything of that character ?
The next direction is to incorporate them as one. This is proper and convenient for the management and perpetuity of the trust. A reference to the legislation of this state shows that St. Mary’s Orphans Asylum, referred to in the testator’s will, was incorporated March 10th, 1853, (Laws 1853, p. 405); and that, from the answer, is wholly under denominational management. Whether under Eoman Catholic regulations or not, these institutions ought to be incorporated. But the chief reliance against any secular character, is in the fact that the testator directs that in the mean time, and until such incorporation, his executors, or the survivor, shall have the management of the institutions; and also in the fact that whilst one of the executors is a Eoman Catholic, the other is a Protestant. The order of the executors’ duties concerning this trust, as stated in the will, is as follows: First, to establish the institutions. That would comprehend their erection, and perhaps organization. Secondly, after their establishment, as soon as conveniently practicable, to cause them to be incorporated. Thirdly, t’o convey the property to the corporation. Now it might be, that between the establishment and incorporation there *527 would bo some unavoidable delay ; and to meet that contingency, the right to manage was given to the executors, or their survivor. Even with an intention that the institutions should he Boman Catholic, it is not strange that the testator should associate with the other executor, who is a clergyman, a lawyer occupying official position, for the settlement of his estate, and to hold, invest, and control the residue, in trust to be appropriated for the purposes intended. Such duties require skill, integrity, and good judgment; and besides, legal knowledge, if not indispensable, was desirable, and likely to be sought for. That executor is not selected in the will because he is a protestant, or even as mayor. Beference to his office is only made as deseriptio personae. He is selected as an individual. What knowledge, if any, the testator had of his faith, at the time of the making of the will, does not appear, and nothing is shown, otherwise than that he was appointed as a competent, trustworthy, legal business man, who could be relied upon to carry out all the trusts of the will, in connection with the testator’s pastor. It is fairer to argue that because he appointed a Boman Catholic priest one executor, that he expected he would more immediately control the religious features of his bequests, leaving the other executor to attend to the strictly business parts of his trusts, than from the fact of the protestanj;sm of the latter to infer that the testator did not mean the name of his charity to indicate the truth. To establish and organize those institutions, if to be under Boman Catholic control, to incorporate them, and when incorporated to convey to the corporation, are not more inconsistent for a protestant, than to pay out money for the soul of the testator and his wife, or for the erection of an altar and memorial windows in a Boman Catholic church, or for the benefit of another Boman Catholic Orphan Asylum. If the testator had confidence that he would do the one, he naturally could expect that he would do the other. It is very apparent that any management the executors or the survivor might have to exercise, would only be temporary between the establishment and the *528 incorporation, and it would depend very much upon the executors themselves whether they or either of them would have to take the management at all. With proper action on their part, any such necessity could hardly be expected; and I see no reason why the testator could not have relied upon the lay executor to do whatever that necessity required of him, even if those in Roman Catholic orders or faith should control the religious management. We must be better satisfied, than from the disclosures of this case, that the testator had reason to believe his lay executor could not, in conscience, carry out one object of his trust as well as another, before we allow the simple fact that he was a protestant, with no evidence that the testator knew he had any protestant sectarian faith, to be used to overcome what I conceive to be a designation of what these institutions should be.
The idea that he intended a sectarian charity, at least in management, is also encouraged from the fact that he made no provision for its permanent support. It seems to be conceded, from the scope of the pleadings, that the estate is barely sufficient to establish the institutions with any reasonable capacity. He was familiar with the care exercised in his own denomination over this class of charities. He-knew of their men and women qualified for that department of labor. And it is more reasonable to believe that in the absence of any provision for their support, he trusted to that liberality and care which were his immediate surroundings, rather than to promiscuous aid.
The view already taken is entirely inconsistent with the idea that he intended to leave all questions of religious management to his executors, from the general nature of their powers. But a word more as to that. The powers given certainly imply a large discretion, but they are entirely consistent with complete subordination to the quality or kind of charity that the name denotes. There is no clause necessarily implying an unlimited discretion in the executors, and I see nothing to encourage the belief that he intended them or the corporation to exercise their own discretion *529 whether the institutions should have any religious regulation or not, or what it should be. When the will shows that he contemplated a particular kind of charity, all expressions concerning its establishment, although general when detached, must be construed in reference to that. The will bears, to my mind, such convincing evidence of the kind of charities the testator contemplated, that I shall vote to declare that he intended his executors to establish those instb tutions in such a way as that they shall be under Roman Catholic religious control.
Who can participate in the benefit of these charities remains to be briefly referred to. No provision being made to support, them, the extent of their usefulness will depend upon the aid that the benevolent may extend to them, and therefore those in the management ought to have a large discretion on this question. It does not follow that Roman Catholics alone are to participate in the benefit, because there is a Roman Catholic control in matters of religion; and without attempting now to abridge the discretion of the executors, it is only necessary to say that there is no intention disclosed in the will that Roman Catholic orphans, or the sick and infirm of that denomination, should alone be the recipients of the bounty. In the case of The Attorney General v. The Sherborne Grammar School, 18 Beav. 256, (18 Jur. 636,) the Master of the Rolls makes the distinction between establishing a school for the education of youth of all denominations merely, and “ regulating a school the primary object of which was to afford instruction and education to members of the established church, in such a manner as to enable families of dissenters to participate in their advantagesand he further says, that “ it does not follow because this is a Church of England school, that dissenters are to be excluded from all benefit of the instruction there given.” I am willing also to adopt the suggestion of the same learned Master of the Rolls, in the case of the Attorney General v. Calvert, (23 Beav) already referred to, that “ in eleemosynary charities, the presump *530 tion is that he included all.” Some of the charities in this case were subject to certain conditions not religious, others had ditties of a religious nature connected with them, yet being all eleemosynary as to the benefit, the selection of the beneficiaries was held not to depend upon their opinions or denomination. They Were of course subject however to the conditions ahd duties which the trusts required in the enjoyment of the benefit; and it was upon the question whether any religious qualification was required to enable persons to participate in the charities then under consideration, that the expression is found in the opinion of Sir John Romilly, that “ in eleemosynary charities the religious opinions and tenets of the founder are wholly to be disregarded, and are to be treated as forming no indication of his intention on which this court can act.” This remark is calculated to be misunderstood. It means only that the scope of the bounty in eleemosynary charities is not to be limited by the religious tenets of the founder. They form no indication that he intended to exclude any who were not qualified with his creed. It is not claimed by the relator that the objects of these charities should be selected with any reference to the Roman Catholic faith. The bill states the contrary, and such, I think, is the fair construction of the will. The court ought not to interfere in this respect with the discretion of whoever for the time being are the legal managers of the institutions, unless there should be such abuse as to seriously affect the fair operation of the trust.
The result to which I have come is, that the decree, dismissing the bill should be reversed, and a decree be made declaring that the executors shall establish the institutions, so that there shall be a religious control by the Roman Catholics, the whole mode and all the details in the performance of that duty to be left to the discretion of the executors or the survivor, and also that in selecting the persons to be benefited by the charities, no religious qualification is necessary.
*531 The decree was affirmed by the following vote:
For affirmance — Beasley, 0. J., Depue, Elmer, Ogden, Olden, Vredenburgh, Woodhgll* 7.
For reversal — Bedle, Dalrimple, Clement, Kennedy, Vail, Wales. 6.