#### The First Presbyterian Society of the Township of Gallipolis (in connection with the Hocking Presbytery) *v.*The First Presbyterian Society of the Township of Gallipolis (in connection with the Athens Presbytery) and William H. Langley, Executor and Trustee.

■Where a trust is created for the benefit of an incorporated religious society, and there are two bodies each claiming to be such society, a court of equity may require the claimants to interplead, and may proceed to ascertain the true beneficiary, without compelling either party to establish its corporate rights at law.

Reserved in the District Court of Gallia county.

In 1828, the First Presbyterian Society of Gallipolis became incorporated under the act of February 15, 1819, having, for some years before, been known as the First Religious Society of Gallipolis. At the time this society became incorporated, there was a Presbyterian church connected with it, duly organized and in connection with the Hocking Presbytery, and, through it, with the Presbyterian Church of the United States of America. The society adopted a constitution for its government, which, among other things, provided that two-thirds of the members must concur to make any change, “ but no alteration shall ever take place so as to change the name, order, or fundamental principles of the society other than the present, or the orders, rules, regulations, and canons of the *Presbyterian Church in the township of Gallipolis,*and in conformity with the rules, regulations, canons, and customs of the Pres*129byterian Church of the United States of America.” Without a change in this constitution, and none has ever been made, this indissolubly connected both the Presbyterian Church and the Eirst Presbyterian Society of Gallipolis township with the Presbyterian Church of the United States of America. Erom 1828 to 1855 there was but one church and one society. In 1838 the Presbyterian Church of the United States divided, the seeeders becoming an organized body, with a general assembly and inferior church courts, and each calling itself the Presbyterian Church of the United States of America. The seceding body established a presbytery known as the Atbeus Presbytery. Erom 1828 to 1855, there was but one society and church known as the Eirst Presbyterian Society of Gallipolis. In the latter year there was a division in the *church*connected with the society; about one-half the-members withdrew, and organizing another church, which they called by the same name, and joined themselves to the Athens Presbytery. Erom this time to the commencement of this action there were two church organizations kept up, each claiming to be the Eirst Presbyterian Society of Gallipolis. The one remaining in connection with the Hocking Presbytery is known as the “Old School,” and the other, connected with the Athens Presbytery, is called the’ “New School ” Church.

Mrs. Bethia S. Tupper died in September, 1855, leaving a will dated February 28, 1853, which was probated October 15,1855, by which she appointed William H. Langley her executor and trustee, and directed him, out of funds set apart for that purpose, to invest the sum of $2,000, as a permanent investment for the use “of the Eirst Presbyterian Society of the township of Gallipolis, Gallia county r Ohio, the income of said fund to be applied toward the support and maintenance of a Presbyterian preacher in said society.” At the date of the will there was but one society or church in Gallipolis to which the bequest applied. The “ Old School” has kept up its trustees since the society was *130incorporated in 1828. The election, after the schism in 1855, was held on the day fixed by the constitution, but without the required notice having been given. The “New ¡School” first elected trustees in 1856, and since that time •each society has kept up its set of trustees, each claiming to be the corporation. The “ New School,” claiming to be the beneficiary and entitled to the income of the trust-fund created by the will of Mrs. Tupper, commenced an action, in the Court of Common Pleas of Gallia county, against William H. Uangley, the executor and trustee, to compel him to execute the trust in its favor. The executor and trustee answered, and by way of cross-petition set up the fact that the “ Old School ” was also claiming to be the beneficiary and entitled to the income of the trust-fund, and asking the direction of the Court in executing the trust. The answer and cross-petition were held bad on demurrer, and a default decree entered in favor of the “New School” against the executor, from which he appealed to the District ■Court of Gallia.

The District Court overruled the demurrer to the answer and cross-petition, and ordered the “ Old School ” to be ■made a party, and further ordered the claimants to inter-plead, and set forth the grounds upon which they respectively claimed the trust-fund. Eollowing this direction the “ Old School,” as plaintiff and the “New School,” as defendant, by their pleadings, made the issue as to which party is entitled to the trust-fund.

On the trial in the District Court, a special finding of facts was made and certified, and the cause reserved for determination in this court.

On the 7th of November, 1873, the “New School” moved this court for leave to file a supplemental answer, setting up facts alleged to have occurred since the cause came into this court.

The motion is resisted, and is overruled.

*Gushing ‡ Hebard*and W. *W. Johnson,*for plaintiff:

We deny that *quo warranto*is the only form of remedy *131to try the issues made up by the pleadings; this being a proceeding in equity, involving the mode of administering a *trust,*chancery has jurisdiction, regardless of the question of who represents the corporation. 1 S. & C. 621; 2 S. & C. 1270, sec. 22 ; *Hullman*v. *Honcomp,*5 Ohio St. 237; *Keyser*v. *Stansifer,*6 Ohio, 365 ; *Van Houton*v. *First Re-formed Church,*17 N. J. 126 ; *Att’y-Gen.*v. *Old South Church,*13 Allen, 474; *Kemper*v. *Lane Seminary,*17 Ohio, 293; *Hadden*v. *Chorn,*8 B. Mon. 78; *Bentley et al.*v. *Kurtz et al.,*2 Pet. 566.

This will was made Eebruaiy 28, 1853, when there was no *New School*society or church in Gallipolis, by a member of the church as it then was, and in which doubtless she had been reared, and in which she shortly afterward died.

The separation of March 19, 1855, was in the nature of a *secession*by the New School party, and by well-settled law they have no rights, if this be so. *Methodist Church*v. *Wood,*5 Ohio, 283 ; *Wilson*v. *John’s Island Church,*2 Rich. Eq. 192; *App. v. LutheranCong.,*6 Barr, 201; *Baker*v. *Fales,*16 Mass. 488; *Stebbins*v. *Jennings,*10 Pick. 171; *Smith*v. *Swanestead,*5 McL. 396; *Dere*v. *Bolton,*7 Halstead, 206 ; *Trustees*v. *Sturgeon,*9 Barr, 321; *McGinnis*v. *Watson,*41 Penn. St. 9 ; *Ferraria*v. *Vascencelles,*23 Ill. 456. See also *Harper*v. *Straus,*14 B. Mon. 48; *Venable*v. *Hoffman,*2 W. Va. 310; *Shannon*v. *Frost,*3 B. Mon. 253; *Hadden*v. *Chorn,*8 B. Mon. 70; *Schorr’s Appeal,*67 Penn. 138 (5 Amer. 415); *Winebrenner*v. *Colder,*7 Wright, 244; *Brooke*v. *Sacket,*13 Grattan, 301.

*Simeon Nash,*for defendant:

The District Court should not have ordered the bill of interpleader to be filed. Section 42 of the code (2 S. & O. 958) provides for the case; and the proceedings here are not in compliance with that section.

The question as to which set of trustees have the right to the fund can only be settled on a *quo warranto.*Trustees in fact have the right to control the corporation until ousted by a writ of *quo warranto. Hullman*v. *Honcomp,*5 *132Ohio St. 237; *First Parish of Sudbury*v. *Stearns,*21 Pick. 148; *Presbyterian Society of Gallipolis*v. *Smithers et al.,*12 Ohio St. 248.

Gilmore, J.

The controversy in this case is.between two Presbyterian congregations, one of which is in ecclesiastical connection with the Hocking Presbytery, and is commonly called “Old School;” the other in like connection with the Athens Presbytery, and commonly called “New School,” and each calling itself “The First Presbyterian Society of the township of Gallipolis.” This society is duly incorporated as a religious society. Both parties claim the trust-fund created by the will of Bethia S. Tupper, deceased. In addition to the issues made to determine these claims respectively, the “New School” further answers in bar, that the question as to which set of trustees are the *lawful*trustees of the corporation, is involved, and can only be determined by proceedings in *quo warranto.*The issues need not be separately considered and determined.

There is, in fact, but one incorporated religious society known as “The First Presbyterian Society of Gallipolis.” There is but one organized church legally connected with it. There are two church organizations, each assuming the same name, and each claiming to be the incorporated society; and in harmony with these claims, there are two sets of trustees, each claiming to be the trustees of the corporation. Neither party claims that the franchises of. the corporation have been or ought to be forfeited. None of the trustees on either side are individually parties to the action, and can not therefore be affected officially by any decree that may be made. The “New School,” assuming to be the corporation, is voluntarily before the court, in its assumed corporate character, asking the trust to be enforced in its favor against the executor and trustee, whom it made a party. He disclosed to the court the fact that the “Old School” was setting up claims to the trust-fund, in every respect similar to those made by the “ New School,” which. *133made it perilous for him to proceed in executing the trust without the direction of the court, and this he asked in pursuance of his statutory right. IS. & C. 621, sec. 283. This gave the court jurisdiction of the case, with the powers of a court of chancery; in the exercise of which, it ordered the “Old School” to be made a party, and required the claimants to interplead and set up the grounds of their respective claims to the trust-fund, which they did by each respectively claiming to be the corporation, and each denying the claims of the other. On the issues thus made, the court has power to proceed and ascertain the beneficiary, and enforce the trust, without requiring the claimants to establish their corporate rights at law. 2 S. & O. 1270, sec. 22.

"We find no difficulty whatever in ascertaining that Mrs*. Tupper, in creating the trust and providing the fund, intended it to be managed by the incorporated society, for the benefit of the church then connected with it. There is no conflict in the testimony on this point.

It is also clear that the church then connected with the society was what is -now known as the “ Old School” Church, and that the trustees controlling the corporation or society at the date of the will, were doing so for the benefit of this church.

¥e find, also, that there has been lawful corporate succession in the trustees representing the society in connection with the “ Old School” Church. There was an irregularity in the election of trustees of the society in 1855. But this was the only election held that yeai’, and, although it was held without previous notice, it was sufficient to constitute those elected *defacto*trustees for that year, and the informality could only have been taken advantage of by those having a better right (if there were such), during the current year for which they were elected. Nothing of the kind was done or attempted.

Notice was given, and both the “ Old School” and “New School” societies elected trustees in 1856. Those elected by the “ Old School” stood in the line of regular corporate *134succession, and took the offices as trustees *de jure,*and the succession continued unbroken up to the time this action was commenced. We therefore find that “The First Presbyterian Society of the township of Gallipolis, in connection with the Hocking Presbytery,” plaintiff, is the beneficiary, and entitled to the relief asked for in its petition of interpleader.

*Decree accordingly.*

McIlvaine, C.J., Welch, White, and Res, JJ., concurred.