Martinsburg gazette and public advertiser. [volume] (Martinsburg, Va. [W. Va.]) 1826-1833, 1832-12-27


tcithia this proUnlce, TO purchase, take, and
receive by gift, grant, OF otherwise. for bury
ing grounds. erecting churches, houses of re-
lIgious worship, schools, and aims houses,
for any estate whatever, and to hold the same
for the uses aforesaid, of the lord Of the fee
by the accustomed rents" The words, 're
ligious societies within the province, are IN
derstood to mean congregations, or distinct
communities. though perhaps members ola
superior body not particular sects or denona
nations that cannot be said 10 have local
habl,ation any where. so that in the trust be-
fore US is not to be sustained bet on the en-
abling provisions of this statue, il must fail.
On the other hand, it is fair to say, that
though It derives no support from the statue,
IT is not necessarily prohibited by IT fer II is
an undopbled rule of construction that an atlir
native statue such as this is. does n OF take
away the common law, and there certainly
was no absolute prohibitation Of srch trust
BY the common law or any previous statue
The statues of mortmain have been extended
TO this state only SO far as they prohibit ded.
Ieatlons of property 10 supeFstltious uses,
and grants TO corporations without statutory
licens. The presents certainly not super
stIlous use aud indeed ii IS not easy to see
Row There can be such thing here, at least
IN the acceptstion Of the word by the British
Courts who seem to have extended 1t TO all
uses which are not subordinate TO the into
rests and wil of the estahlshe church, SO
far was this carried in The Attorney Gene
raj v. Guise. g Vern. $50. that the charge
OF an annual sum for the education Of Scotch
men TO propagate the doctrines ofthe Church
OF England in Scotland, was treated as SUI
perst;lous, because presbyterians were set
tied there by act Of Parliament
The trust before Us, them not being with
in the pdrv'ew Of any of the statutes Of mort
maia as extended TO this State, and The com
mon law csrrying the objects OF the convey
ance no lutthcr into effect than 10 vest the
title In the trustees, how far are we TO lend
the equitable powers Of The court 10 the ex-
ecution Of trust which has not the benefit
OF any principal of legislative recognition?
Equitable powers IN support oil charitable
, uses seem 10 be founded rather in necessity
the Constitution OF the court then IN proyis
ions Of the 43 Eiiz. which is not in force
here; and granting thas in the exercise oil
them, we are 10. have respect 10 the usaSes
and necessities of our own people, II must be
admitted on the other hand, that we are 10
be guided by the policy Of the Legislature, as
proclaimed by its acts IN parallel cases. Ad'
Knitting then, that this trust requires not The
aid of the act OF 1890, TO remove any POSITIVE
impeachment to II, yet as the execution oil II
requires al txcrtiun Of the equitable powers
OF the court, it must likewise be admitted thai
this exerion can be had only in subordlna-
ton 10 the avowed policy Of the state, which
is too clearly expressed IN that statue TO tie
interviewed. Nor is il expressed ~ that
static alone. The power OF sell ncoipora'
ton. delegated on certain conditions, by the
Act oi 1891, to association for literary, cha
gItab!e, and religious purposes, Is expressly
restrained to 'citiZens oil tins commonwealth,
and the value Of the annual profits Of real es
tate 10 be held even by such corporations, Is
hunted to .ige hundred pounds HE statues
Of nortTsiain, too, which deprive corporations
Of capacity to hold, would be OF little avail, II
foreign unihc orporated societies might pos
sees al! the incidents OF ownership by the m
sirumentality Of trust. Ii IS fair to iafcr,
thea, from all these statues, an intent to IN
teTIct to such societies the use of privileges
that were but spariugly allowed 10 our own
cillzens. Though no sect has shewn dispo
sition 10 acquire real estate rs an engine OF
power. or evan for purposes OF revenue De-
yu1d the exigences OF its expenditure, The le-
gislature has entertained an evident jealousy
Of clerical monopoly by limiting the right OF
tenure to lust so much ground as may be ad-
eduate 10 the purposes OF sculpture and the
erect ton Of buildings dedicated TO religious
use Ia the Act of 1880, X is lurthur provi-
ded, SEhat nothing in this Act contained
shall be taken or construed to enable any OF
Che said religious societies, or any person or
persons whatsoever 10 trust for them or TO
their use, 10 purchase, take or receive, any
lands or tenements by gift, grant or other
wise. for or towards the nlainteaailce or sup
,,oyt OF the said churches. houses OF worship,
schools, or aims houses, or the people belong
ing 10 the same, or for any other use or pur-
pose, save for the uses IN this Act before
mentioned. Now, though globes baye been
held il, trust IS appurtenant to the churches
nnincorporated congregations whose proper
~ in the soil has been the s1hjeet OF judicial
r.coqaaiion, as in Caufmsn, v. the congFega-
ton, Of Ceder Spring. 6 Binney 3d. yet the
trust depended not on the enabling provisions
of this statue, but on the custom OF the prov
nce as stated in Whitman v. Lex; and GER
tainly it dose not follow that the members OF
religious society, vast majority oil whom
are strs:ngers to the custom, should be let
into the benefit of il without legislative i
cense. II seems to me, however. q speak
but for myselfJ that statue TO authorize such
trusts. would commend Itself not less to the
Judgment of the law giyer than to the fee.
lngs of the phllanthropist. Notwithstanding
the disregard of popular rights apparent IN
the constitution of the Methodist Episeopai
Church. The sacrifices of its ministers to the
promotion of piet7, by q life Of poverty and
t,r I.I - heir tSnrornmon success IN