#### *In*Re— *The Attorney General et al.*v. *John A. Jolly.*

Court of Errors.

Testator devised and bequeathed the -whole of his estate, both real and personal, to his wife for life, and after her death, “to the *Methodist Church*of which she may be a member at the time of her death, to be appropriated to the uses and purposes which *the conference may deem most advantageous for said church;*more especially,” *&c.*— held that the particular congregation, of which the wife was a member at the time of her death, was exclusively entitled to the bounty, and not the Methodist Church in its general connectional character.

Wills inartificially drawn, should be interpreted according to the common and proper meaning of the terms employed in them.

If a charity fail on account of the mode of appropriation prescribed in the will, being contrary to the laws of the society intended to be benefitted, it by no means follows that the Court will be bound to direct the charity to other kindred objects.

On appeal from the decree of Dunkin, Ch. sitting for Marion, June, 1847, overruling the exception taken to the following report of the Master:

*380*The Report of Edward R. Laurens, Master in Equity.*

This case is sent down to me by the Court of Appeals, under the following “consent order,” viz : This cause came on to be heard on the appeal of the complainants from an order of Chancellor JohNston, dismissing a rule taken out' upon the trustee, whereupon, by consent of parties, it is ordered that the case be referred to one of the Masters of this Court, at Charleston, to report to the Chancellor to hold there the ensuing Circuit Court, a scheme for the proper administration of the charitable uses established by decree: all parties interested to have the right to come in and propose a scheme before the Master, and to take such exceptions as they may be advised.

■Wm. Harper,

(Signed) B. F. Dunkin,

J. J. Caldwell.

We consent: — George W. Dargan,

C. G. Memminger,

W. W. Harllee, per C. C. Memminger.

Under this order I have held several references, and have had two schemes submitted to me — copies of which are herewith filed, and both of which I have attentively and carefully examined. To save the necessity of reference, it may not be amiss to repeat the words of the will here, as they are published in 1 Richardson’s Equity Rep. p. 100 : *“*I give, devise and bequeath the whole of my estate, both real and personal, to my wife, Elizabeth Burnet, during the term of her natural life. After her death I give, devise and bequeath the whole of my said estate, both real and personal, to the *Methodist Church*of which she may be a member at the time of her death, to be appropriated to the uses and purposes which *the conference may deem most advantageous for said church;*more especially for the support of Sunday schools, for the purchase of bibles and religious tracts, and the distribution 'of the same among the destitute, and for the support of Missionaries.”

By the terms of the will, this legacy is given “ to the Methodist Church” of which the testator’s widow might be a member at the time of her death; and it is to be appropriated to such uses and purposes as the conferance might deem most advantageous for said church; especially, says the will, for the support of Sunday schools — for the purchase of bibles and religious tracts, and the distribution of the same among the destitute, and for the support of Missionaries.

It is important, then, to inquire, what a well-informed, intelligent methodist, such as Burnet “was, means by the word church ?

*381Next, what is their usual course of proceeding in the matter of Sunday schools ?

Thirdly, their mode of operation in the supply and distribution of bibles and religious tracts?

And fourthly, their general missionary, organization ?

On all these heads I have taken testimony, and the depositions of the witnesses examined before me, are filed with this report.

Upon the first head the testimony is very clear, that whomever the word church is used, reference is had to the whole body, and that it is improperly applied when used by persons not methodists to designate the particular congregation at any given place; wherever it is intended to speak of such particular congregation, the proper and only proper word, in methodist parlance, is society. This will be further apparent from an examination of their book, entitled “ The Doctrines and Discipline of the Methodist Episcopal'Church, South.” I have read this book carefully, and the result of my scrutiny is in accordance with the testimony. Wherever the word church is used, allusion is invariably had to the whole body of that denomination, qualified, of course, by the immediate context, as where speaking of the quarterly conference, church means the members of all the different, congregations; or, more technically speaking, of all the different societies, comprised in that quarterly conference; so of the annual Conference, the word church would mean all the members of all the numerous societies in connection with and under the control of such Conference. In no instance have I found the word used as applicable to anyone individual society. It is sometimes so used in conversation, but even then only in cases where an individual society has become so numerous (as sometimes happens in cities and large towns) that it becomes expedient to make it a separate station, in order to the better and more efficient working of their ecclesiastical organization; but here it must be borne in mind, that where a separate station is .established, there we have, as of course, the important feature of a quarterly Conference, and how important a feature that is, the testimony so fully and so clearly shows, that it would be idle supererogation to repeat it here. The book of discipline, referred to above, recognizes the distinction between church and society from beginning to end. The introduction (I quote from the authorized edition, — John Early’s, Charleston, 1846) speaking of individual congregations, tells us that one Phillip Embury, an Irishman, began preaching in New-York, in 1766, and formed a *society*of his own countrymen, and the citizens, Robert Strawbridge, also from Ireland, settled in Maryland about the same time, and formed some *societies*there. When speaking of the whole body, the same introduction says : “we recom*382mend to you, as members of our church, our book of discipline,” etc. And again : “you ought, next to the word of God, *to*procure the articles and canons of the *church to*which yQU pe|011g.» Sections 1 and 2 of chapter 1, refer to the whole body of the methodists, and here we have used the word *church.*At page 23 we are told that one of the duties of a class-leader is to meet the ministers and stewards of the *society*once a week; and so throughout the chapter, where individual localities are spoken of, we have the word *society.*At page 28 we find that the general conference has full power to make rules and regulations “for *our church.”*At page 34 there is provision that no one shall be licensed to preach, except he be recommended by the *society*of which he is a member. At. page 40 the presiding elder is required to oversee the spiritual and temporal business of the *church*in his district, and the district of a presiding elder has several circuits within its limits, and each circuit has within it many *societies*— the circuit of which Liberty is a part has some 20 or more. At page 42 it is made the duty of those in charge of circuits or stations to take care that every *society*be duly supplied with books — he is to meet the men and women apartj in large societies, &*c. — he is to read the rules of the society (here the word is used to signify the whole body; but that does not militate against the view I have taken; it is common enough to call the whole body *“*the society,” it is more common and more proper to call it *“*the united” or “ our united societies ;” the position assumed in this report is that in methodist parlance a particular society is never designated as the church at such or such a place,) once a year in every congregation, and once a quarter in every society.— The congregation differs *from*the society in this; by the society is meant only the communicants — the congregation includes all who worship at that particular place, and the object of reading ihe rules, once a quarter to the society, is to remind them of these regulations at stated intervals — the object of reading them once a year, before the congregation at large, is that the public n^ry know and understand what are the rules and regulations of the society with which they áre constantly invited to connect themselves. At each quarterly meeting he is to read the names of those admitted into the church, and of those excluded. One of the duties of a travelling preacher, is to meet the societies, (page 48,) classes and general bands. Ministers, properly accredited from the British, Irish or Canada conferences, maybe received on satisfying the annual conference of their willingness to conform (page 52) to our *church*government and usages. Ministers of other evangelical churches, who may desire to unite (page 53) with our church, may be received, &c. Preachers not in orders may be received as licentiates, on condition they agree *383with the doctrines, discipline, government and usages (page 54) of our *church.*At page 57 one of the self-examination questions, preachers are to ask themselves, is, “do you meet every *society*?” At pages 58, 59, we have, as one of questions for determining the expediency of continuing to preach or not at any given place, “Is it advisable for us to preach in as many places as we can without forming any *societies*?” At page 61 we read, as to visiting from house to house, &c., “If we could but set this work on foot in all our *societies.”*At page 65 preachers are directed to read the sermon on evil speaking in every *society,*and in the same paragraph they are enjoined to extirpate from the *church*frauds on the revenue. At page 70 belief in the doctrine and discipline of our *church,*is made one of the conditions under which a local deacon shall be eligible as an elder ; and where an elder, deacon or preacher removes from one circuit to another, he is to procure from the presiding elder or preacher, in charge, a certificate of his standing in the *church.*At page 71 it is a rule laid down that none be received into the *church*until, among other things, he shall, on examination by the minister in charge, before the *church,*give satisfactory assurances of willingness to observe and keep the rules of the *church.*At page 72 the question is asked, “ How often shall we permit those who are not of our *church*to meet in class ?” At page 76 we read, “ Let no person that is not a member of our *church*be admitted to the communion without,” &c. And again, “ No person shall be admitted to the Lord’s Supper among us, who is guilty of any practice for which we would exclude a member of our *church.”*At page 78 there is direction that in every large *society*the people shall learn to sing. At page 80 we find that marriage with persons not of our *church*“is admissible;” same page, none are to be received into the *church*till they have left olf superfluous ornaments, and every one in charge of a circuit or station is directed to read Mr. Wesley’s thoughts on dress once a year in every *society.*At page 86 it is provided that those'exercising episcopal jurisdiction shall not continue in its exercise in the *church*when they cease to travel, unless, &c.; and so where an elder, deacon or preacher, is clearly convicted of certain crimes, he is to be suspended from all official, services in the *church.*After final trial before the general conference, in event of expulsion, the expelled is to have no privilege of society or sacraments in (page 89) our *church*until, &c.; local pieachers, for certain offences, shall be (page 91) expelled the *church.'*As to those members of our *church,*(p. 93) who are guilty of certain omissions, if they do not amend when admonished, he who has charge of the circuit or station is to bring their case before the *society,*or a select number, (p. 93) &c. So at page 94, in case of a *384dispute between two or more members of “ *our*church,” each party ¡s j0 Seiect an ai biter, and they select an umpire, but all three must be members of *“ our*churchif either party jg ¿isgatisfied with the award made, the matter is referable to five arbiters, chosen as the first three were, and whoever refuses to abide their judgment is to be excluded *“the*church.” So again, in cases ot debt, if any member of *“ our church”*refuses arbitration, &c. At page 95 preachers are cautioned not to allow any to remain in our *church*guilty of fraud.— Where parties contract debts they are unable to pay, the matter is to be looked into by three judicious members of the *church ;*on the same page are directions as to the necessary proceedings, when complaint is made against any member of *our church*for not paying his debts. At page 96 we are told that an accused person is to be tried before “ the *society*of which he is a member.” For certain offences, (among those enumerated is “ disobedience to the order and discipline of the church”) after a first and second admonition, the case is to be brought before *“*the society, or a select number,” and at page 97 we read, that if any member of ‘ *our church’*shall be clearly convicted of endeavoring to sow dissensions in any of our “ societies,” the offender, if contumacious, shall be “ expelled from the church.”

At the risk of being tedious I have tiras minutely examined the book of discipline, and the instances cited are abundantly sufficient to show, that in methodist parlance the term church is never applied to an individual congregation. Had the bequest been for the benefit of a particular baptist congregation, there is no doubt the whole legacy would have its proper appropriation, if paid over to the authorized agent or agents of that particular congregation ; because, in that communion, each individual congregation is in itself complete, a separate, distinct and independent body. But I have shown from the methodist discipline, and the testimony of several methodist preachers, learned in their discipline and usages, is concurrent, that the case with the methodists is widely different. The whole philosophy of their system is connectional: it looks to one church comprising many congregations, and rejects wholly and unhesitatingly the idea of any independent or congregational organization of individual churches. It is an unit, it is one church, not an association of several. Now with all these authorities from the discipline, and with the depositions of the witnesses examined, is it to be presumed that Burnet, who, it is admitted, was a man of intelligence, and who (it is in evidence) was “an official member” of the Methodist Episcopal Church, could have intended that the one small society at Liberty should be the exclusive recipient of a charity, which, by the express terms of the will, he gives to the Methodist church, of which his *385wife might be a member at the time of her death ; which he limits to such uses and purposes as the conference should deem most advantageous for said church, and where among the uses he especially favors, is the support of missionaries ; a matter which no individual society, as a distinct body, could possibly proceed with under the ecclesiastical polity of the .Methodist Episcopal Church — I should think not. Mr. Smith, the pastor of Trinity Society in this city, tells us that not one methodist in a thousand would give this interpretation to the words of Burnet’s will; and in all reason we are not to look for the exception to the rule in an *“*official member,” especially too when he was making his last will and testament with the ulterior view of assisting the cause of God and of His church, as he believed and understood it. We must seek then some other reason for his qualifying the legacy to the Methodist church, by insisting on the test “ of which she may be a member at the time of her death.” We have it at hand. The testimony filed is direct to the point; and shows very plainly why it was fit and proper that Bur-net should have thought of some way to prevent his charity being, by possibility, administered through, those, into whose hands he least of all would have wished it to go. *“*In 1831 and 1832,” (1 quote from the testimony filed.) “A Mr. John Russell was travelling through the Sumter or Santee circuit, endeavoring to establish societies^ in behalf of the secession from the Methodist Episcopal Church, known as the Methodist Protestant Church. He did succeed in establishing one of these societies within the circuit in which Mr. Burnet held his church membership. Mr. Russell’s travelling about on this business, created a great deal of talk in the matter of the polity of the church, and the distinctive principles between the Methodist Episcopal Church, and that which Russell was endeavoring to establish. The stir in this matter was of such a nature that it must have attracted the attention of a man of Burnet’s *character.”*And to this effect many others could have been called to testify, but as the fact of this secession was sufficiently notorious, I thought it unnecessary to delay the case or cumber the record. I understand the proviso in Burnet’s will, as intending to ensure that his legacy should not fail of the object he had in view, by reason or on account of the schism then existing. I have perhaps enlarged unnecessarily on this preliminary point, but it seemed to me proper to state the point fully as to the true meaning of the word church, the matter submitted to me necessarily involving this preliminary, and in endeavoring to arrive at this true meaning, I have considered the words not merely in their true phdological sense, but I have sought to make them harmonize, as they ought to do in this case, with methodist nomenclature. It will be remembered that the methodist society *386had its origin in a secession from the church of England; ^r_ Lesley was a regularly ordained presbyter of the church,) and in some of their rales and regulations they yet acy.iere ^o the distinctive features of the church. Only one instance is important to be here cited. There is no such thing known in the church or in the Methodist United Society as A. B., a communicant of the O. D. Church — a communicant anywhere (that is anywhere in one of their several properly organized congregations) is a communicant *de jure*every where; there are many places of worship, there is but one altar; there are many members — there is but one body.

It has been shown above, that if Liberty be made a separate station, it would of consequence be invested with all the rights, privileges and immunities of a Quarterly Conference. The testimony gives us what these privileges are ; but it is also shown that there are not men enough at the place for the practical working of such Quarterly Conference ; by the time the preacher in charge had appointed his class leaders, exhorters, and stewards, the whole would be head, and there would be no classes to lead ; nobody to be exhorted. So again in event of any trial under the discipline, the right of appeal to the quarterly conference would in practice be wholly destroyed ; for it would be nothing more than the same men meeting again in a different capacity, and determining that what had been done before was right.

The testimony and the book of discipline both show that Sunday Schools, the distribution of Bibles and Tracts, and the support of Missionaries, are matters over which the annual conference exerts continued superintendance, and it must be manifest that if a local society were to attempt a separate movement in any of these affairs, there would be at once a collision of authorities. But I will notice these points in order ; and first as to the Sunday Schools. The testimony filed clearly shows that it will be very difficult to get up one at Liberty under any circumstances. Mr. Taylor tells us he could not get up one; that it would be difficult to find more than five competent Sunday School teachers, and that there was not one in the neighborhood fit to take charge as super-intendant. Mr. Smith tells us that from $15 to $20 would be as much as could be profitably used in this place, even if a school were established and set in operation; it further appears that it is one of the rules of the Methodist Episcopal Church to allow the use of no books in their schools other than those issued from their own press, and they take care that these are provided at the cheapest possible rate.

Next as to Bibles and religious tracts. There is no point involved in the case, which is more fully covered by Methodist rule and discipline than this. The distribution of Bibles and religious tracts is a highly favored and prominent object *387with them, and in their rales they have made ample provision for their supply and distribution. It is manifest that much more could and would be done in this behalf by adopting the usual and regular course of proceeding, than could possibly be effected by any individual action (no matter how well devised and vigorously carried out) of the society at Liberty, The local society has no machinery which could act upon the subject further than making known their wants, while the means at the control of the annual conference are complete for the purpose. It seems to me, therefore, that nothing would be gained by the scheme looking to the separate action of the local society, and 1 give the preference to the other.

Another favored use of this charity is the support of Missionaries. Now this could not possibly be done by an individual society; it is a matter for the Conference, and it is not to be supposed for an instant that they would allow a local society to interfere or intermeddle with their established plan of operations through those having Episcopal jurisdiction, through the Conference itself, and through the Missionary Society, which last is nothing else than the Annual *Conference*resolving itself into a Propaganda Society. The same body of men with a different name, page 181. *“*Let each annual conference form itself into a missionary society, auxiliary to the Missionary Society of the Methodist Episcopal Church, South,” &e. It would breed endless confusion and trouble to allow á local society to originate and support Missions, and insisting upon doing so (if the society at Liberty should be contumacious and disregard the authority of the annual conference,) it would be forced to secede, and seceding it is no longer even a part of that Methodist Church in the communion of which the testator’s widow lived and died.

The first proposition in the scheme suggested on behalf of certain members of Liberty society, is to appropriate enough from the annual income to build *“*a handsome and durable edifice as a place or house of worship.” Handsome and costly houses of worship are contrary to Metiodist rule and discipline. Hear their own words on this subject: page 158: “Let all,” (not when it is expedient to save expense, but in every instance, all.) “ Let all our churches be built plain and decent, with free seats: but not more expensive, than is absolutely necessary,” <fcc. The conference have already directed an appropriation of five hundred dollars for that purpose, and it is ample, in a locality where other denominations, as the testimony sets forth, meet more favor, and where the congregation proper (also in evidence) never filled the very small building now there.

The next proposition is to build a parsonage, with glebe, &c., so as to secure the services of a pastor located among *388them. If this contemplates erecting Liberty into a separate station, I have already said enough upon the subject. One of the witnesses expressly says, that the great want of the Conference is men; they have not enough to fill their appointments ; they want more, many more ; it would be a waste of labor to locate one at Liberty; he would have a sinecure; there are but two societies in the whole circuit where the prospects of usefulness were not more cheering and promising. To suppose that the Conference would allow this Liberty society to be made a separate station, and depart, in that instance, from all their established rules and usages, for the sake of a legacy, could only be because it might be thought their poverty would consent, if not their will. Even this temptation they will not be subjected to, for it is a great mistake to suppose that the Methodist communion is poor; the fact is the other way; it is rich ; witness their annual contributions for missions ; witness all their other charities, so far exceeding in amount those of other communions who are called rich, and who, in some respects, are so. In this particular, at least, the Methodists conform to primitive Catholic usage. The individual members of the united societies may be, and many assuredly are, poor in this world’s goods, and can give but little; but they are diligent “ gladly to give of that littleand further, their ministers are content to work for little, very little. This it is which makes the whole body rich and efficient in action. The greal want with the Methodists (and it is a waut every where) is a sufficient number of competent, zealous and devoted men. They have not half enough, and of consequence none such would be sent to labor exclusively in the unfruitful field of Liberty, and it is right and proper that none such should be sent. If the parsonage is to be for the circuit, there again the testimony is that Liberty is about the worst place which could be selected.

The 3d proposition contemplates a settled pastor, with an annual salary, a thing unknown in the Methodist communion, where the compensation of the preachers is all regulated by fixed and established rules. Take, for instance, the cases of some large planters, who annually pay a certain stipend for the religious instruction of their slaves. One (and there are others) near Georgetown pays three hundred dollars per an-num, but he does not pay it to the missionary; he pays to the Conference in its character of missionary society, by whom it is disbursed as they think proper, and without regard to the amount.

The fourth proposition is to appropriate, annually, a certain amount for the purehase and distribution of Bibles, <fcc. This, also, I have sufficiently spoken of above.' It is unnecessary to repeat my views here.

The 5th relates to missionary enterprise in the neighborhood * *389and assumes that it presents a large field for missionary labor, a fact which is negatived by the testimony filed. It unnecessary here to repeat what I have already said on subject:

I think it also unnecessary minutely to notice the scheme suggested by the complainants, as it is entirely in accordance, throughout, with the finding and reasoning of this report. ' I would suggest, however, a modification in the first proposition. It is essential that the funds be forthwith called in, (as it is highly improper that funds of this character should be invested in the obligations of private individuals,) and re-invested ; but 1 submit that an investment, as suggested in the scheme, in stocks of the General or State Goverment, or of the city of Charleston, is a bad one. It is true that in England the investment in consols is favored, if not absolutely enjoined by the Chancery, but the circumstances of the two countries are not strictly (if at all) analogous. Great Britain does not look to the payment of her debt. We do. All these stocks are above par, and are certain to be redeemed. Though they may be, and generally are a safe investment for temporary purposes, yet the Court will at once see that where perpetuity or a long permanency is contemplated, they must always prove investments to loss. As I have said above, these stocks are always above par; that is, they always cost more than will be paid back when redeemed; it follows that each successive investment and consequent redemption operates as an assault on the corpus. I would, therefore, in this matter, allow some further discretion to the Conference, (if any limit be necessary) and authorise the investment of these funds in stocks of the General or State Government, or of the city of Charleston, or in the capital stock of any of the banks of the State of South Carolina.

I have only, in conclusion, to submit, that in my judgment, (not hastily formed, but made up after much scrutiny and with some deliberation) the mode of distiibuting the funds, recommended in the scheme proposed by the complainants, is suitable, proper, and well adapted to ensure efficiency to the Burnet charity, and in exact conformity with the true meaning of the will by which it has originated. I have endeavored, throughout this report, to show, step by step, the grounds of my reasoning in this behalf. It is only necessary (briefly summing up) to say, that every project, specially favored in the will, is the immediate object of Methodist rule and discipline; (nay, more, studying the discipline of the Methodists, as I have done, they seem to me matters which are exclusively within the jurisdiction of the annual conference, and which cannot be committed to or acted upon by any one individual local society,) and duly weighing t.ie importance of these several objects, I am decidedly of opinion *390that the scheme proposed by the complainants is the best, as t0 apportionment, which has been brought to my notice.

It having been decided that the intervention of a trustee is essent¡a] t0 jjjg furtherance of Burnet’s charity, inasmuch as the annual Conference is not a body corporate, the investments recommended by this report cannot be made in the name of the Conference, (which is advisable.) I therefore suggest, as the next best plan, that it would be an assurance against waste, and not contrary to or in any way conflicting with previous orders, if the trustee were absolutely' prohibited from any change in the investments to be made, except with the expressed assent of the annual Conference. This can easily be done by ordering that it be inserted in any certificates of stock purchased, “not transferable, except with the assent of the So. Ca. Conference of the Methodist Episcopal Church, South.”

Edward It. Laurens, *Master in Equity.*

*Scheme for the employment of the Fund bequeathed by John Burnett to the Methodist*Church, *known as the liberty Church.*

*First,*— As the building in which the Methodist congregation called the Liberty Church now worship, was originally nothing better than a pine-log structure, which is, at the present time, a ruin ; dedicate from the income of the fund a sufficient sum to build a handsome and durable edifice as a place or house of worship, and after its erection an annual sum which may be sufficient for its repairs and preservation.

*Second,*— After the construction of the Church, and the dedication of a sufficient sum for its annual repair and preservation from the income, build a parsonage or mansion house for a resident clergyman, with glebe land attached, so that the congiegalion of Liberty Church may always have the services of a pastor located among them.

*Third,*— From the income of the fund, an annual salary for the said pastor, whose duty it shall be to have charge of Sunday Schools to be conducted in the Liberty Church on the Sabbath day, and to preach to said congregation.

*Fourth,*—The appropriation of an annual sum for the purchase of Sunday school books, and for the purchase of Bibles and religious tracts, and the distribution of the same, first among the destitute of the Liberty Church congregation, and afterwards among the destitute in its vicinity.

*Fifth,*— As there is a most ample field for domestic missions in the neighborhood of Liberty Church, among the poor in the surrounding country, and among the negroes on the large neighboring plantations, it is proposed that a portion of the income of the fund be appropriated to the establishment of a station for domestic missions, and for preaching *the gos**391pel among the destitute poor and the slaves in the neighborhood of Liberty Church — the missionary station to be at the parsonage of the Liberty Church, from which, as a centre, the missionary could go out and preach on the neighboring plantations, and in destitute parts of the country near, and also act ás a colporteur in the distribution of the Bibles and tracts provided for in the will, in which way the time and talents of one or more missionaries could be constantly and profitably occupied.

The foregoing is a plan which is in accordance with the provisions of the will. It will of course be observed that the estate is given *“ to the Methodist Church*of which she should be a memberat the time of her death,” “for the uses and purposes most advantageous to said Church,” and all that the Methoqist Conference have to do. in the matter is to designate “ the uses and purposes” which in *their*opinion would be “most advantageous for said"Church.” There is nothing given to the Conference, which is duly invested with a power of appointment to uses, and when they have made that appointment, their functions are discharged. The Conference has no right to the possession or disbursement of the fund, or to divert it to any object or purpose which may not be advantageous to the Liberty Church, for even in the matter of missionaries, the establishment of a mission station at the Liberty Church would unquestionably redound to the prosperity of said Church, in the advancement of religion and morality around. It is submitted that tlie appointor to uses has no power or authority in a case like this to divert the trust fund from the persons whom the testator designated as the objects of his bounty, and when those p'ersons are specifically fixed. It is only the mode in which these persons are to.enjoy the estate that is left to the Methodist Conference.

For the provisions of the John Burnett will, see 1 Rich. Equity Rep. 99.

DakgaN, on behalf of the members of the Liberty Church.

The complainants proposed the following as a scheme to be reported under the decree of the Court of Appeals.

1. Let the trustee be directed immediately to call in and invest the whole trust fund in Government stock, either of this State or city, or of the United States.

2. Declare that the interest accruing shall be applied by the trustee to the trusts, under the will of John Burnett, as follows, that is to say: one half shall be paid over to the treasurer, for the time being, of the Missionary Society of South Carolina Gonferenceof the Methodist Episcopal Church, South, to be employed for missionary purposes, under the direction of the Board of Managers of said society.

3. One fourth of the said accruing interest shall be paid to the standing committee of the South Carolina Conference, *392known as the standing committee on the Bible cause, to be under their direction, to the procurement and gratui-distribution of Bibles and Testaments, preference being given to the wants of Darlington Circuit, m the neighborhood of Liberty Chapel.

4. One fourth of the said accruing interest shall be paid to the assistant book agent, at Charleston, of the Methodist Episcopal Church, South, to be laid out and expended in the procurement and distribution of tracts and Sunday school books, under the direction of the South Carolina Conference, preference being given to the wants of the congregation worship-ping at Liberty Chapel.

5. It appearing that the meeting house at Liberty, is in a ruinous condition, and the South Carolina Conference having recommended the appropriation of five hundred dollars to rebuild the same, let the sum be paid over to the Rev. Charles Betts, the commissioner appointed for that purpose, and let this sum be applied by him accordingly, the said amount to Be first taken from the interest now due, or first accruing from the said trust fund.

Memminger, on behalf of complainants.

*Exception.*

The undersigned, in behalf of sundry members of the Libei'ty Church, excepted to the Master’s Repoit, on the ground that the scheme proposed by. them ought to have been reported by the Master, instead of the one which he has recommended.

Dargan, solicitor.

His Honor pronounced the following decree.

Dcjnkin, Ch. This cause was sent from the Court of Appeals, for the purpose of obtaining a scheme for the proper administration of the charitable uses established by a former decree.

The Master has reported a scheme, and it is the desire of all the parties to submit the scheme to the judgment of the tribunal in the last resort.

It is ordered and decreed that the exception to the report of the Master, Mr. Laurens be overruled, that the report be confirmed, and the scheme as recommended by him be adopted.

The defendants excepted to the report of the Commissioner, and appealed from the decree of the Chancellor, on the following grounds.

1. That parol evidence was admitted to explain the will of the testator, as to whether he meant the bequest and devise to the Liberty Church, or to the Methodist Episcopal Church.

*393Rich. Eq. too

2. That the Master’s scheme proceeds upon the doctrine of *cy pres,*and the doctrine of *cy pres,*depends upon the 43d. of Elizabeth, which is not of force in this State.

3. That the doctrine of *cy pres,*does not apply when the objects of testator’s bounty are sufficiently expressed, which is the fact in the case of Burnet’s will.

4. That the testator gave the estate for the benefit of Liberty Church, or, which is the same thing, to the Methodist Church of which his wife should be a member at the time of her death.

5. That the plan submitted on the part of the Liberty Church, is in conformity with the testator’s will, while that on the part of the Methodist Episcopal Church is in violation of it.

DargaN, for the motion.

Memminger and Harllee, contra.

JohnstoN, Ch.

delivered the opinion of the Court.

It might have saved much of the present litigation, if the record had been constantly kept within the view of the ties. “The bill,” says the Chancellor who first heard the case, “purports to be filed by certain persons, on behalf of themselves and others, alleging themselves to be *members of the Methodist Church called*Liberty, of which it is also alleged that the said Elizabeth Burnet was *a*member, at the time of her death.” It was decreed that the trustee appropriate the profits of the estate, “to the uses and purposes which the Methodist Conference, to which said *Liberty Church*is attached, may deem most advantageous for *said Church,*more especially,” <fcc.

It appears to the Court that it is not competent for other parties, coming in under this record, to claim adversely to the interests thus declared in favor of the parties litigant; or to take away from them the rights settled in their favor; and that it was an error in the Master, acting on .the record before him, to entertain the question whether the'beneficiaries under the will were the Methodist Church, in its general connectional character, instead of the congregation belonging to Liberty.

The interpretation put upon the words of the will in the judgment already pronounced, was not contested at the hearing ; and therefore, it may be conceded, that it is not, beyond all question, the true construction. In a proper case, and with the proper parties for that purpose, it might be examined. But it is at least one proof of its being' the natural construction, that it was that which suggested itself to all parties to the record, and was adopted by the whole Court, without a doubt being suggested or a question raised by any party, or by the Attorney General.

*394We have, again, examined the words of the will, in the light of a very learned and scrutinizing argument; and our opinion still is, that the construction put upon them, in the decree of the Court, was the correct and proper construction.

Wills inartificialy drawn, as this will evidently was, should be interpreted according to the common and proper meaning of the terms employed in them ; and it may safely be left to men, indiscriminately, whether in the common apprehension, the testator here did not evidently design to confer the benefits, contemplated by him, upon the particular Church, or congregation, with which his wife might happen to be connected at the’time of her death ; to be appropriated under the direction of'the annual conference having jurisdiction oyer that Church.

It has been suggested that the phraseology employed by the testator may have been intended to prevent his charity from being diverted to the support of the Methodist Protestant Church, which- Mr. Russel was endeavoring to build up, at the expense of the Methodist Episcopal Church, with which the testator was connected, and to which he was greatly attached. This is merely conjectural at best, and forms no sufficient ground for departing from the natural and obvious meaning of his words. There is no evidence that either the testator, or the draftsman of his will, had ever heard of Mr. Russel, or the schism to which his efforts tended. But if his intention was such as is suggested, the means by which he attempted to accomplish it were most unfortunate. They were neither natural nor efficacious. In that case, why did he limit the bounty which he intended for the Methodist Episcopal Church, to the contingency of his wife’s dying in connexion with it *1*Why did he not give the legacy, in express words, to the Methodist Episcopal Church ? If he intended to withhold the charity from the Protestant Methodists, why did he put it into the power of his wife to transfer it to them by connecting herself with that body ?

If the testator’s object was to benefit the Episcopal Methodists, in general, we do not perceive any rational motive for his suspending his legacy upon any contingency, whatever. But we can perceive a motive, and a very sufficient motive, why he should not only annex a condition, but the very condition he has annexed, upon the supposition that he looked to a particular congregation as his beneficiaries. We are to infer from the will, and the evidence, that he had no children. Nothing in the will, or in the circumstances, suggests the probability of future issue from his wife. She was childless and unprotected. He did not wish to confine her residence to any given locality; or to *tie her*down *to*connexion with one congregation of the Church to which she belonged. He wished to secure her that kindness which might naturally *395bé expected to arise from pecuniary expectations on the part of those with whom she might happen to be spiritually nected; and to enable her, under any disappointment, to change her connexion, for her greater comfort.

The technical construction suggesed by the Master, we have no reason to suppose was within the testator’s contemplation. It is not favored by the structure of the will, which is plain and inartificial. To avoid the application of the word *Church,,*to a particular congregation, we cannot but observe that some of the witnesses have been obliged studiously to employ the term *Chapel,*a term which seems to be rather unusual. Notwithstanding this care, one of the witnesses seems, on one occasion, naturally and unconsciously to have fallen into the use of the word *Church*in the common sense; thus shewing an example (contrary to what is contended for,) of the use of that word among Methodists, in its common acceptation.

Being fully persuaded that the testator intended to indicate a particular congregation, nothing is to prevent our giving effect to his intention but some invincible necessity, arising out of the Methodist polity. Under the contingencies which have happened, the legacy, according to our construction, was intended for Liberty Church, as much so as if it had been given to it, *eo nomine.*Then, the question is whether if the legacy had been to this Church, by name, the government of the denomination to which it is attached is such as to prevent its receiving the benefits intended. If that were the case, it by no means follows that the Court would be bound to divert the legacy to other kindred objects. That is a doctrine which this Court would be very reluctant to adopt without a strong necessity, and very mature reflection. It has never, to our knowledge, been adopted, or recognised, in our Courts, and we are persuaded that it ought not to be adopted. But the evidence shews us that there are various ways in which the interest of the fund bequeathed to Liberty Church, may be expended, from time to time, for her benefit; and so much of it as cannot be thus expended may be suffered to accumulate for her benefit, until contingencies arise for its expenditure for her advantage.

The Master having put a wrong construction on the will, and recommended a scheme for administering the trusts for the benefit of the Church at large, and not for the benefit of Liberty church, the beneficiaries intended, his report must be set aside, and the case sent down, (under the consent decree, which we are bound to respect,) that he may receive proposals according to the latter view, and report them to the Circuit Court in Equity for its consideration and approval.

We do not intend, by any thing we have said, to indicate what description of benefits, spiritual or temporal, are most *396consonant to the will; but simply that, in some way or other, tjjey. shoxiici be advantageous to Liberty Church.

It is ordered that the decree be reversed, and the report recommitted to the Master for the purposes aforesaid.

It is also ordered that the case be remanded to the Court of Appeals in Equity, from whence it came, for the purpose of making any further orders that may be deemed proper in the case.

O’Neall, J. Evans, J. Wardlaw, J. Withers, J. & Caldwell, Ch. concurred.

Dargan, Ch. gave no opinion, having been of counsel in the case.

*Decree reversed*

The Court of Appeals in Equity ordered as follows.

Johnston, Ch. The Court of Errors having determined certain questions in this case, and recommitted the report of the Master, as in their decree is stated, and having remanded the case to this Court for further orders,

It is ordered, that the trustee, E. Leggit, do account before the Master for the trust fund; and that he do lay before the Master proposals for investing said fund; and that the Master do report what, in his judgment (upon evidence to be heard by him) is the most profitable, safe and suitable *mode*of investing said fund. The report to be made to the Circuit Court for its consideration.

Dunkin, Ch. and Caldwell, Ch. concurred.

Dargan, Ch. having been of counsel, gave no opinion.