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 NEW YORK

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NEW YORK

ministered through the medium of corporate bodies, created by legislative power and endowed with the same legal capacity to hold property for their corpo- rate purposes, as a private person or an ordinary pri- vate corporation had to receive and hold transfers of property. It was decided, therefore, in the leading case of Holland vs. Alcock (108 New York Reports 329), that direct bequests for Masses cannot be made definitely as such except to incorporated churches or other corporations having legal power to take property for such purposes. There is no difficulty in practice, however, in this regard, as Mass legacies are now either given to an incorporated church directly, or are left as personal bequests accompanied by requests, which in law do not derogate from the absolute quality of the gift.

However, it is to be noted that the rules laid down by the Court of Appeals in the matter of charities have been radically changed by legislation since 1888. The decision of the Court of Appeals in the Tilden will case, by which the elaborate plans for public charity made by Samuel J. Tilden were defeated by the application of these rules, was followed almost immediately by Chapter 701 of the Laws of 1893, which provides that gifts by will for charitable purposes shall not be de- feated because of indefiniteness in designating the beneficiaries, and that the power in the regulation of the gifts for charitable purposes formerly exercised by the Court of Chancery under the ancient law of England should be restored and vested in the Supreme Court as a Court of Equity. The Court of Appeals construing this statute has held that the existence of a competent corporation or other definable trustee with power to take is no longer necessary for the va- lidity of a trust for charitable uses, and that any legal trust for such purposes may be executed by proper trustees if such are named, and, if none are named, the trust will be administered by the Supreme Court. It is important to note, however, that this act must be confined to the cases to which it applies, and that it does not enable an unincorporated charity or associa- tion to take bequests or devises.

There exist, however, notwithstanding the liberal- ity of the New York system, some important re- strictions upon the conduct of religious and charitable corporations. The better opinion and the weight of judicial authority are, that, notwithstanding the re- pealing act of the Legislature of 1788 above noted, the English statutes of Elizabeth, which restricted re- ligious and charitable corporations, may hold in the alienation and encumbering of their real estate, have been adopted as the law of this State, and that such acts can only be lawfully done under the order of the Supreme Court. Limitations upon the value of the property and the amount of the income of religious and charitable corporations have also been uniformly made by the New York Statutes. The present law, however, is most liberal in this respect, the property of such corporations being limited to .$6,000,000 and the annual income to $600,000, and provision is also made that no increase in the value of property arising otherwise than from improvements made thereon by the owners shall be taken into account. By recent act also the strict requirements for accounting to the Supreme Court, the successor of the Court of Chan- cejy, as to their property and income, which in the early statutes controlled such corporations, are con- fined to cases where the attorney-general intervenes for the purpose by petition to the Supreme Court upon proper cause being shown.

The law of New York on the general subject of the Church and the legal position of the latter before the law has been defined by the statutes and numerous decisions. The results may be briefly stated as fol- lows: Religious societies as such are not legal en- tities, although as an aggregation of the individuals composing them, for motives of convenience, they are

recognized as existing in certain cases. They can neither sue nor be sued in civil courts. They cannot hold property directlj', although they may control property held by others for their use or upon trusts created by them. The existence, however, of the Church proper, as an organized legal entity, is not recognized by the municipal law of New York. There is no statute which authorizes the incorporation of the Church at large. The incorporation is generally made of the congregation or assemblage of persons accustomed statedly to meet for Divine worship, al- though provision has been made for the incorporation of special ecclesiastical bodies with governing author- ity over churches. For example, the Catholic dioceses of .Albany, Buffalo, and Brooklyn have been thus incorporated formally. The general plan provides specially for the incorporation and government of the churches of the separate denominations, as gathered into congregations. Each important denomination, therefore, has its own particular provisions in the Re- ligious Corporation Law, the general statute of the State which has codified these laws and decisions. In the case of the Roman Catholic Church, incorporation is obtained in this way. A certificate of incorpora- tion must be executed by the archbishop or bishop, the vicar-general of the diocese, the rector of the con- gregation, and two laymen thereof, selected by such officials or a majority of them. It must state the corporate name of the church, and also the municipal- ity where its principal place of worship exists or is in- tended to be located. On filing such certificate with the clerk of the county in which the principal place of worship is or is intended to be, or with the Secretary of State in certain cases, the corporation is created.

Questions of the civil rights of persons, relating either to themselves or to property, whatever may be their relations to church organizations, are as a matter of course the subject of adjudication in the civil tri- bunals. But judicial notice will be taken of the exist- ence of the church discipline or government in .some cases, and it is always the subject of evidence. When, therefore, personal rights and rights of property are in cases in the courts dependent upon questions of doctrine, discipline, church government, customs, or law, the civil court will consider as controlling and binding the determinations made on such questions by the highest tribunal within the Church to which they have been presented. While a clergyman, or other person, may always insist that his civil or prop- erty rights as an individual shall be determined ac- cording to the law of the land, his relations, rights, and obligations arising from his position as a member of some religious body must be determined according to the laws and procedure enacted by that body for such purpose. Where it appeared, therefore, in one case that questions growing out of relations between a priest and his bishop had been submitted by the par- tics to an ecclesiastical tribunal which the church it- self had organized for hearing such causes and was there decided by it, it was held by the Court of Ap- peals that the civil courts were ju.stificd in refusing to proceed further, and that the decision of the Church judicatory in the matter was a bar and a good defence (Baxter vs. McDonnell, 155 New York, 83). The Church at large, however, under the law of New York depends wholly upon moral power to carry on its functions, without the possibility of ajipeal to the civil authorities for aid cither through tlic Legislature or tlu^ Court. Where there is no incorporation, those whd divil with the Church must trust for the perform- anci' nf ii\ il (.hligalions to the honour and good faith of the iiicriil]iT.-<. The congregations formed into civil corporations arc governed bv the principles of the common law and statute law. With their doctrinal peculiarity and (h-nominationaf character the courts have nothing to do, except to carry out the statutes which protect their righla^in this respect. However,