of approaching death, or in peril of death, the gift to take effect absolutely only on the

18 Raymond v. Sellick, 10 Conn. 480; Gratton v. Appleton, 3 Story, 755; Smith v. Kitteridge, 21 Vt. 238; Lee v. Luther, 3 W. & M. 519; Dole v. Lincoln, 31 Me. 422; Knott v. Hogan, 4 Met. (Ky.) 99; Weston v. Height, 5 Shep. (Me.) 287; Smith v. Kittridge, 21 Vt. 238; Candor and Henderson's App., 27 Pa. St. 119; Knott v. Hogan, 4 Met. (Ky.) 99; Dexheimer v. Gautier, 5 Rob. (N. Y.) 216; First National Bk. v. Balcom, 35 Conn. 351; Carr v. Silloway, 111 Mass. 24; Robson v. Jones, 3 Del. Ch. 51; Parcher v. Saco & Biddleford Savings Inst., 78 Me. 470; Dickenschield v. Exchange Bank, 28 W. Va. 340; Ridden v. Thrall, 55 Hun (N. Y.), 185, 27 N. Y. St. Rep. 947; 24 Abb. N. Cas. (N. Y.) 52; 7 N. Y. Supp. 822. To constitute a valid gift causa mortis is essential that the donor should make it in contemplation of death, either in his last illness, or while he is in iminent peril, and that his death result from such illness or peril. Dickeschied v. Exchange Bank, 28 W. Va. 340; Parcher v. Saco & Biddford Sav. Inst., 78 Me. 470. Some of the cases hold that the gift must be under apprehension of imminent death, and not of death as possibly the result of the sickness. Robson v. Jones, 3 Del. Ch. 51. But this is not the general doctrine of the cases. It is said in the recent cases of Ridden v. Thrall, 55 Hun (N. Y.) 185, 24 Abb. N. Cas. (N. Y.) 52; 27 N. Y. St. Rep. 947; 7 N. Y. Supp. 822, that if the death of the donor of a gift causa mortis ensues from a sudden and unforseen cause before his recovery from his illness or escape from danger, the gift stands complete and the title vests absolutely in the donee, taking effect by relation from the time of the actual delivery of the property or thing. Where a gift was made while the donor was in the expectation of immediate death from consumption, and he afterwards so far recov ered as to be able to attend to his ordinary business for eight months, but finally died from the same disease, the court held that such gift could not be supported as a donatio mortis causa. West v. Height, 5 Shep. (Me.) 287. In the case of Knott v. Hogan, 4 Metc. (Ky.) 99, at the time a note for money loaned was executed, payable three years after date the interest thereon to be paid annually, the payee executed and delivered to the payor a writing stipulating that if the payee should not collect the note in her lifetime, her representative was directed to surrender it to the maker, "as I intend it as a gift from me to him." The payee retained the note in her possession, and died within a year after executing the writing. The court held that the transaction was not a gift causa mortis, because it was not made in immediate contemplation of death. And the Supreme Court of Vermont say in the case of Smith v. Kittridge, 21 Vt. 238, that a delivery of property as a gift, to become absolute upon the decease of the donor, but made while the donor is in health, and without reserving to him the power of revocation, cannot be supported as a donatio mortis causa. The court of chancery of Delaware says in the case of Rodson v. Jones, 3 Del. Ch. 51, that a gift by an old man in feeble health cannot be supported as a donatio causa mortis, there beidg no "peril of death." The Supreme Court of Pennsylvania, in Candor & Henderson Appeal, 27 Pa. St. 119, where a bond from a father to his child, payable "ten years after date," irrespective of the question whether the father should be alive or dead, was held not to be a donatio mortis causa. A gift of money, made by the donor on enlisting in the army,

death of the donor;14 but this last condition need not be expressed by the donor, because the law implies it; 15 and when consummated so far as the donor's acts are concerned, it is liable to be defeated after it has been legally made (a), by a recovery from the sickness16 (b), by escape from the peril which threatened the life (c), resumption by the donee of the thing given ;18 or (d) revocation of the gift,19 which may be accomplished (a) by a

17

to be retained by the donee in case of the donor's death is held in Dexheimer v. Gautier, 5 Rob. (N. Y.) 216, not to be a good donatio mortis causa. To same effect Irish v. Nutting, 47 Barb. (N. Y.) 370; Granley v. Linsenbigler, 51 Pa. St. 345, contra; Baker v. Williams, 34 Ind. 547; Gass v. Simpson, 4 Cold. (Tenn.) 288; Percher v. Saco & Biddford Sav. Inst., 78 Me. 470; Dole v. Lincoln, 31 Me. 422; Dickeschied v. Exchange Bk., 28 W. Va. 340.

14 Emery v. Clough, 63 N. H. 552; Raymond v. Sellick, 10 Conn. 480; Grattan v. Appleton, 3 Story, 755; McCraw v. Edwards, 6 Ired. (N. C.) Eq. 202; Dole v. Lincoln, 31 Me. 422; First Nat. Bk. v. Balcom, 35 Conn. 351; Weston v. Height, 5 Shep. (Me.) 287; Smith v. Kittridge, 21 Vt. 238; Daniel v. Smith, 75 Cal. 548, 17 Pac. Rep. 683. It is said in Smith v. Kittridge, 21 Vt. 238, that a delivery of property as a gift, to become absolute on the death of the donor, but made while the donor is in health and without reserving to him any power of revocation, cannot be supported as a donatio causa mortis; and in Daniel v. Smith, 75 Cal. 548, 17 Pac. Rep. 683, that to constitute a gift causa mortis, the subject of the gift must be delivered either to the donee or some person for his use and benefit, and the donor must part with all dominion over the property, and the title must vest in the donee, subject to the right of the donor at any time to revoke the gift.

15 Daniel v. Smith, 75 Cal. 548, 17 Pac. Rep. 683. 16 Weston v. Height, 5 Shep. (Me.) 287; Merchant v. Merchant, 2 Bradf. (N. Y.) 432; Staniland v. Willott, 12 Eng. L. & Eq. 42. But it is said by the Supreme Court of Connecticut in the case of Gilligan v. Lord, 51 Conn. 562, that a gift of an estate and chattels on it made by the donor to his wife when he expected to die soon, is not for that reason revocable on his recovery.

17 Id. It is said in the case of Roberts v. Draper, 18 Ill. App. 167, that if one deposit money to be given to a certain charity if the depositor never returns from an intended journey there is not a donatio causa mortis if the depositor does return.

18 See Hatch v. Atkinson, 56 Me. 324; Wigle v. Wigle, 6 Watts. (Pa.) 522,5 Watts (Pa.) 486; Merchant v. Merchant, 2 Bradf. (N. Y.) 432, 2 Ves. Sr. 433, 7 Taunt. 232. The reason for this is the gift not being made to take effect immediately, but being inchoate, and depending on the event of the donor's death locus penitentia was reserved to him, of which change of mind the resumption of possession being evidence, determines the donation. Adams v. Nichols, 1 Miles (Pa.), 155. However, if there has been a redelivery by the donor to the donee, and he be in possession at the time of the donor's death, such redelivery will nullify the resumption and make good the original gift; or rather the redelivery will be a new gift of the same kind, and with the same conditions as the original one.

19 Merchant v. Merchant, 2 Bradf. (N. Y.) 432; Dan

23

22

subsequent will (b), the subsequent birth of a child,20 or (c), the death of the donee before that of the donor;21 also (d), by the personal representatives in behalf of the creditors, where their rights have been infringed upon, and (e) by a violation, on the part of the donee, of the condition on which the donation was received. The Supreme Court of Maine have said, that gifts inter vivos and gifts mortis causa differ in nothing, except that the latter are made in the expectancy of death, to take effect only on the death of the donor, and may be revoked; otherwise the same principles apply to each.24 Title to gifts may pass by gift inter vivos where there is a delivery of the property with an intention to consummate the gift, but a mere delivery of the property will not in general pass the title; there must be an intention to give, accom

iel v. Smith, 75 Cal. 548, 17 Pac. Rep. 683; Curtis v. Barnes, 38 Hun (N. Y.), 165.

20 In Bloomer v. Bloomer, 2 Bradf. (N. Y.) 339, it was said that under the law of Connecticut, a donatio mortis causa like a will, was revoked by the subsequent birth of a child. This can be done only indirectly, for while it is true that a donatio mortis causa is revocable by the donor in his life-time, without the consent of the donee, yet it cannot be revoked by will, because the will does not speak until after the donor's death, and on his death the title in the donee becomes absolute, Merchant v. Merchant, 2 Bradf. (N. Y.) 432; and by relation is complete and absolute from the pe. riod of delivery in the life-time of the donor, and for that reason incapable of revocation by any act which was inoperative before and only commenced at the death of the donor. This principle has been established ever since the case of Jones v. Selby, Pre. Ch. 300, 304. Yet, although a gift mortis causa cannot be revoked by the will of the donor, it may be satisfied by a legacy given to the donee. Thus it was determined in Jones v. Selby, supra, that where there was a donation of a bond for 1,000£ and by a subsequent will, a legacy of equal amount was given generally to the donee, the latter would be a satisfaction of the former; subject, however, to the donee's liability to prove that no satisfaction was intended. It is thought that the same principle which authorizes the application of the doctrine of satisfaction to this species of donation, equally applies to the doctrine of election. Thus if the donation were of a bond and the donor subsequently specifically bequeath it to another, and give by the same will a legacy to the donee, he must elect between the gift and the legacy. See Johnson v. Smith, 1 Ves. Sen. 314. 21 Merchant v. Merchant, 2 Bradf. (N. Y.) 432. 22 Gaunt v. Tucker, 18 Ala. 27; Borneman v. Sidlinger, 3 Shep. (Me.) 429; Chase v. Redding, 13 Gray (Mass.) 418; House v. Grant, 4 Lans. (N. Y.) 269; Gano v. Fisk, 43 Ohio St., 462, 54 Am. Rep. 819.

23 Thus it has been said that where a testator makes a gift mortis causa upon the condition that the donee shall receive nothing further from the donor's estate, and she afterwards claims her share therein, she will be required to account for the amount of the donation. Currie v. Steele, 2 Sandf. (N. Y.) 542. 24 See Dresser v. Dresser, 46 Me. 48, 67.

panying the act of delivery in order to consummate the gift, and the circumstances attending the delivery of the property must be such as ordinarily accompanies a gift, inducing the donee to believe that the gift was intended, in which case it is said that the gift will be perfect, although it may not have been the secret intention of the donor to make a gift.25 A gift made during a last sickness, in which the donor did not expect to recover, is a donatio mortis causa, and not a gift inter vivos;26 and where a gift of personal property is made to take effect immediately and irrevocably, and is fully executed by complete and unconditional delivery, it is certainly binding upon the donor as a gift inter vivos, even if the donor was at the time in extremis and died soon after. But where such intent is not manifest, and the gift is otherwise made, under such circumstances it will ordinarily be regarded as a gift mortis causa; but even such a gift is not complete without delivery.

3. The Delivery. To make complete and valid a donatio mortis causa there must be a transfer of the thing given, and an actual and absolute delivery28 to the donee,' or to

29

25 See Carter v. Perry, 1 Hayw. (N. C.) 2; Hallowell v. Skinner, 4 Ired. (N. C.) 165; Ford v. Aiken, 4 Rich. (S. C.) 133. Contra Keeney v. Macy, 4 Bibb. (Ky.) 35; Smith v. Montgomery, 5 Metc. (Ky.) 504; Betts v. Francis, 30 N. J. L. (1 Vr.) 152.

26 Merchant v. Merchant, 2 Bradf. (N. Y.) 432. Though a bond or note be delivered to a person, and the donor sign an indorsement on it in these words: "For value received I assign all my right to, title and interest in, this bond or note to" the donee, naming him, yet such gift may be shown by the surrounding circumstances to have been a gift causa mortis, and not a gift inter vivos. See Lewis v. Merritt, 42 Hun (N. Y.), 161; Dickeschied v. Exchange Bank, 28 W. Va. 341. Thus in the case of Delmotte v. Taylor, 1 Redf. (N. Y.) 417, in the New York Surrogate Court, the deceased was in his last illness, suffering from an incurable disease; he has just made his will, and everything tended to show that he was in present apprehension of death; and the court held that, under such circumstances, a gift of his horses, furniture, wearing apparel and watch, was a gift causa mortis, and not inter vivos.

27 Dunbar v. Dunbar (Me.), 13 Atl. Rep. 578; Hinschel v. Mauer, 69 Wis. 576, 34 N. W. Rep. 926.

28 Borneman v. Sidlinger,3 Shep. (Me.) 429; McDowell v. Murdock, N. & M. 237; Campbell's Estate, 7 Barr (Pa.) 100; Craig v. Craig, 3 Barb. Ch. (N. Y.) 76; Miller v. Jeffrees, 4 Gratt. (Va.) 472; McCraw v. Edwards, 6 Ired. (N. C.) Eq. 202; Chevallier v. Wilson, 1 Tex. 161; Huntington v. Gilmore, 14 Barb. (N. Y.) 243; Hitch v. Davis, 3 Md. Ch. Dec. 266; Michener v. Dale, 23 Pa. St. St. 59; Singleton v. Cotton, 23 Ga. 261; Cutting v. Gilman, 41 N. H. 114; Delmotte v. Taylor, 1 Redf. (N. Y) 417; French v. Raymond, 39 Vt. 632;

Westerlo v. De Witt, 36 N. Y. 340; Charleston v. Lovejoy, 54 Me. 445; Egerton's Exrs. v. Egerton, 2 Green (N. J.), 419; Hatch v. Atkinson, 56 Me. 324; Chase v. Dennison, 9 R. I. 88; Gynee v. Hone, 49 N. Y. 17; McGarth v. Reynolds, 116 Mass. 566; Ellis v. Secor, 31 Mich. 185; Killy v. Godwin, 2 Del. Ch. 61; Robson v. Jones, 3 Del. Ch. 51; Emery v. Clough, 63 N. H. 552; Gano v. Fisk, 43 Ohio St. 462, 54 Am. Rep. 819; Madeira's App. (Pa.), 2 Cent. Rep. 312; Lamson v. Monroe (Me.), 2 N. Eng. 453; Denbar v. Dunbar (Me.), 13 Atl. Rep. 578; Henschel v. Maurer, 69 Wis. 576, 34 N. W. Rep. 926.

29 Jones v. Deyer, 16 Ala. 221; Michener v. Dale, 23 Pa. St. 59; Dole v. Lincoln, 31 Me. 422; Raymond v. Sellick, 10 Conn. 480; McDowell v. Murdock, 1 N. & M. 237; Bowers v. Hurd, 10 Mass. 427; Borneman v. Sidlinger, 3 Shep. (Me.) 429; Grattan v. Appleton, 3 Story, 755; Brinkerhoff v. Lawrence, 2 Sandf. Ch. (N. Y.) 400; Carpenter v. Dodge, 20 Vt. 595.

30 Wells v. Tucker, 3 Binn. (Pa.) 366; Borneman v. Sidlinger, 3 Shep. (Me.) 429; Dole v. Lincoln, 31 Me. 422; Jones v. Deyer, 16 Ala. 221; Michener v. Dale, 25 Pa. 8t. 59; Moore v. Darton, 7 Eng. L. & Eq. 134. 31 Grattan v. Appleton, 3 Story, 755.

Robson v. Jones, 3 Del. Ch. 51.

33 Kilby v. Godwin, 2 Del. Ch. 61. A few examples will serve to illustrate the proposition. In Coleman v. Parker, 114 Mass. 30, taking the key of a trunk from the place where it was kept, putting goods into the trunk and returning the key to its place, at the request of the owner in his last sickness, he apprehending death, and expressing the desire to make a gift of the trunk and contents mortis causa, was held not to be a delivery sufficient for that purpose. It would have been, however, had the owner requested the donee to keep the key. In Fiero v. Fiero, 5 Thomp. & C. (N. Y.) 151, 2 Hun (N. Y.), 600, a woman who had money on deposit in a savings bank, during her last illness, told a girl who lived with her, and had the custody of her bank book, to get the book, which, being done, said, "take and keep it, and lock it up." The girl retained the book. But this was held not sufficient to establish a gift causa mortis, as the evidence was not enough to show such intention, and the transaction did not constitute a delivery. The Supreme Court of Rhode Island considered a similar case in Case v. Dennison, 9 R. I. 88, where a woman, about to die, requested her son to get her bank book, then in the possession of her son-in-law, settle bills and divide the residue of the deposit among her three children; and the court held that this was not a gift causa mortis for want of delivery. But where a father, having lent his son a sum of money, took a deposit of the title deeds of an estate, together with a bond, and the son afterwards borrowed the deeds from his father, and mortgaged the property to another person unknown to the father, who during an illness, from which he never recovered, gave his son the bond, at the same time saying to him, "take this, but do not wrong your children, and do not mortgage your property" the

34

establish a gift causa mortis the law requires clear and unmistakable proof, not only of an intention to give, but of an actual gift3 perfected by as complete a delivery36 as the nature of the thing given will admit of.37 It not only requires the delivery to be actual and complete, such as deprives the donor of all further control and dominion over the thing given, but it requires the donee to take and retain possession until the donor's death.88 English court held that this constituted a valid donatio mortis causa for the benefit of the son alone. Meridith v. Watson, 23 Eng. L. & Eq. 250. Where a volunteer soldier, in daily expectation of being ordered to the seat of war, while on a furlough at the house of a friend gave into the possession of that friend certain personal property, telling him in the presence of witnesses to keep such property till his return, and adding "if I never return it is yours," and soon afterward went to the front, and at the end of about ten months died in the service, of a disease contracted while in such service: The Supreme Court of New York held that the transaction did not constitute a valid donatio mortis causa. Irish v. Nutting, 47 Barb. (N. Y.), 370. In the similar case of Gourley v. Linsenbigler, 51 Pa. St. 345, G enlisted in the United States service, and on the same day gave P two notes enclosed in an envelope directed to L, G telling P to "give them to L," and saying that "if he never came back he wanted her to have the notes, as he would rather she would have them than any other person." P afterwards delivered the envelope with the notes to L. G was in good health at the time of the delivery, but four months afterwards died of disease in the service. The court held that this transaction was not a donatio mortis causa.

34 Hatch v. Atkinson, 56 Me. 324; Egerton's Exrs. v. Egerton, 2 Green (N. J.) 419; Gano v. Fisk, 43 Ohio St. 462; 54 Am. Rep. 819. In the last case it is said that gifts causa mortis are exceptions to the law goyerning testamentary dispositions, not to be extended by way of analogy, and that intention and actual delivery must be clearly proven.

35 Id.

36 Phillips v. McGrew, 13 Ala. 255; Huntington v. Gilmore, 14 Barb. (N. Y.) 243; Carpenter v. Dodge, 20 Vt. 595; Hatch v. Atchison, 56 Me. 324. Mere words will not change the possession. Huntington v. Gilmore, 14 Barb. (N. Y.) 243. A gift is ineffectual, both in chancery, and at law, without actual delivery, of the property; and the principle is the same whether the gift be inter vivos or mortis causa. Carpenter v. Dodge, 20 Vt. 595. See Phillips v. McGraw, 13 Ala. 255.

37 Hatch v. Atkinson, 56 Me. 324; Madeira's App. (Pa.) 2 Cent. Rep. 312; Lamson v. Monroe (Me.), 2 N. Eng. 453; Hitch v. Davis, 3 Md. Ch. Dec. 266. The court in the last case say that it is necessary to the validity of a donatio mortis causa, that a delivery should be made according to the manner in which the subject of the gift is susceptible of being delivered; but that an actual delivery may be inferred from facts and circumstances, and need not be proved by the witness who saw it made.

38 Hatch v. Atkinson, 56 Me. 324; Dickerschied v. Exchange Bank, 28 W. Va. 340; Craig v. Craig, 3 Barb. Ch. (N. Y.) 76. In the case of Dickerschied v. Exchange Bank, cited above, it is said that the dono

Although the delivery may have been at the time complete, yet this will not be sufficient,39 unless the possession be constantly maintained under the donee. If the donor again has possession of the thing given, the gift becomes nugatory. And public policy requires these rules to be enforced with great stringency. It is far better that occasionally a gift of this kind fail, than that the rules of the law be so relaxed as to encourage fraud and perjury.40 The requirement of delivery is no more essential to gifts mortis causa, than to all gifts; and though tradition, or some equivalent, seems to have been necessary at common law to pass chattels by gift, yet it was always competent to transfer them by writing.41 It is said in the case of Brinckerhoff v. Lawrence, 42 that the strong expressions in the books of common law, against maintaining donations either causa mortis or inter vivos, without delivery, are owing to such gifts being usually claimed on parol evidence; but where the intent of the donor is proved by writing under his hand, a delivery will be presumed from slight circumstances. It is said in Malone's Estate,43 however, that any act on the part of the owner of a chose in action, showing not only a present intention to transfer, but that he regarded himself as having carried his intention into effect, is sufficient, without written evidence of the transaction, and that in this respect there is no difference between gifts causa mortis and inter vivos.

must part with all dominion over the object of things given, so that no further act of his or of his personal representative is necessary to vest the title perfectly in the donee, to belong to him presently as his own property, in case the donor shall die of his present illness, or from the impending peril, without making any change in the relation of the gift, leaving the donee surviving him.

39 Delmotte v. Taylor, 1 Redf. (N. Y.) 417; Hatch v. Atkinson, 56 Me. 324. In the former case the court say the mere fact that the thing has passed into the possession of the donee, even by the act of the donor, is not sufficient.

40 See Hatch v. Atkinson, 56 Me. 324.

41 Ellis v. Secor, 31 Mich. 195.

42 2 Sandf. Ch. (N. Y.) 400. 43 13 Pa. St. 313.

ADVERSE POSSESSION-TITLE TO PEWS-DESTRUCTION OF PEWS-RIGHTS OF OWNER.

AYLWARD V. O'BRIEN.

Supreme Judicial Court of Massachusetts, Nov. 28, 1893. 1. Where the conveyances under which plaintiff

claimed title to a pew were executed by the archbishop, who held title to the soil on which the church stood, were good as conveyances of real estate, except for the lack of seals, plaintiff might acquire a good title by adverse possession, if he occupied under the deeds believing them to be valid.

2. Where pews are removed from a church merely as a matter of expediency, the owners are entitled to payment.

ALLEN, J.: The plaintiff's right must be determined independently of the statutes relating to the power of parishes or proprietors of meetinghouses to take down meeting-houses and destroy pews. Those statutes apply to proprietors of meeting-houses who have organized as corporations, and the powers given therein are to be exercised by the corporations. Pub. St. ch. 38, § 27 et seq. There are also statutes providing specially how Roman Catholic churches may become incorporated, (Pub. St. ch. 38 §§ 48, 50; St. 1879, ch. 108); but it does not appear that the church or society in question ever became incorporated under these statutes. Under the eleventh amendment of the constitution, adopted in 1833, the Roman Catholic denomination stands on the same footing before the law as other religious sects and denominations; and in the present case, there being no statutes having a special application, the rights of the parties depend on general principles of law as applied in Massachusetts, and on the usages which have prevailed here. Not much light is to be got from decisions as to the rights of pew holders in England or elsewhere, where different laws, usages, and systems of religious administration have been established. Attorney General v. Federal St. Meeting-house, 3 Gray, 1, 64.

The first question is, what was the plaintiff's title? There was evidence as to this, and the report states that at the trial no question was made as to the plaintiff's title to the pews; but the defendant contended that they were owned only as pews are owned in the Roman Catholic Church according to the laws and usages of that denomination. We have therefore to look into the report to see what sort of a title the plaintiff had. The title in the soil stood in the archbishop. Prior to St. 1855, ch. 122, pews except in Boston were real estate. Trespass would lie for interference with the pew owner's right to his pew. Jackson v. Rounselville, 5 Metc. (Mass.) 127. A conveyance of the pew, therefore, should be by deed. The conveyances under which the plaintiff claims title were executed in 1843 and 1852 by the archbishop, who owned the soil. These two conveyances were in the form of deeds, except that neither of them was under seal, nor called for a seal. This omission would render the conveyances ineffectual as deeds of real estate. But the plaintiff claims title by adverse possession. The conveyances ran to the grantees and their heirs forever; subject, however, to a condition. They also described the terms on which the grantees might lose their rights as owners. The conveyances were in form adapted to convey a good title to real es

tate in all respects, except in the want of seals or words calling for seals; and the grantees occupying under them, if they understood their title to be good, as they may have done, had a basis upon which to begin an adverse possession. Whether the plaintiff had gained a title by adverse possession was a question of fact. The court could not rule against him as matter of law as to his title, and we think did not intend to do so. Certainly, the plaintiff had a sufficient case for the jury as to his title, unless the title to pews in a Catholic Church is different from the title to pews in other churches. There is nothing in the facts of the case to show that in 1843 or 1852 the title to pews in Catholic Churches, when conveyed to individuals, was held by them in any different way, or that it conferred any different right upon the pew owners, than in the churches of other religious denominations. The various pieces of testimony introduced to show the methods and usages of that denomination do not seem to touch the question of the right of a pew holder who has a title to his pew.

The decrees of the council held in 1868 go to show that many of the ordinary corporate powers of proprietors of meeting-houses, are vested in certain ecclesiastical officers; but they do not reach the question what rights a pew holder acquires by virtue of his ownership of a pew. In respect to these rights, the plaintiff as pew holder, stood in the same position as a pew holder in a church of any other denomination, under the general rules or principles of law. The general right of a pew holder, as between himself and the parish or the proprietors of the meeting-house, is settled by a course of decisions. The parish or the proprietors may abandon the meeting-house as a place of public worship without any liability to pew holders, although the pews may thereby be rendered nearly or quite useless; and the fact that the meeting-house is still fit to be used does not render the parish or the proprietors liable. Fassetts v. Parish, 19 Pick. 361. It is within the power of the parish or the proprietors to determine whether to take down a church or to make alterations and repairs. The pew holder cannot prevent them from doing this. The parish or the proprietors or the owners of the soil, and they may determine all matters relative to the structure to be maintained thereon. Daniel v. Wood, Pick. 102; Gay v. Baker, 17 Mass. 435; In re New South Meeting-house, 13 Allen, 497, 507. Nevertheless, the right of the pew holder is held to be of such a nature that he is entitled to an indemnity if the parish or the proprietors exercise their right to take down the church when it is in such a condition that its demolition is not actually necessary. If it has become necessary to take down a meeting-house,-that is to say, if a meeting-house has become so old and ruinous that its further use is not practicable,—the parish or proprietors need not make payment to a pew holder for the removal of his pew. But if a meeting-house is taken down, or the pews are

removed, merely as a matter of expediency, the pew holders are entitled to payment. This rule has been so often stated and maintained that it must be taken to be settled law of this commonwealth, however the law may be elsewhere. Howard v. North Bridgewater, 7 Pick. 138; Kimball v. Parish, 24 Pick. 347, 349; Gorton v. Hadsell, 9 Cush. 508; Wentworth v. Parish, 3 Pick. 344. It is obvious that if, for any reason, the place of public worship has been changed so that religious services are no longer held in the church which was formerly used for that purpose, the value of a pew is much diminished; but, when such change has been made merely from reasons of expediency, the parish or proprietors cannot go on and demolish the pew without making compensation to the owner of it. He still has an existing right, which may not be very valuable, but which, nevertheless, is entitled to recognition under the laws. Religious services may be re-established there, or other uses of this pew may be open to the pew holder. The archbishop had no greater rights in respect to the demolition of the plaintiff's pews than an organized religious corporation of any other denomination would have had by reason of its ownership of the church. The right of the, pew owner is not subject to the absolute power of such a corporation to destroy the pew; and it could not properly be ruled, as matter of law, that the plaintiff's rights were wholly gone. Under the terms of the report in the opinion of a majority of the court, the verdict must be set aside, and the case stand for trial. Case to stand for trial.

NOTE.-Rights of Pew Holders.-A pew holder has a right to the exclusive occupation and use of his pew upon those occasions for which pews are designed to be used. Gay v. Baker, 17 Mass. 435; Kimball v. Second Parish, 24 Pick. 349; First Baptist Society v. Grant, 59 Me. 245; Kellogg v. Dickinson, 18 Vt. 266; O'Hear v. Goesbriand, 33 Vt. 892. A pew holder's right is only a right to occupy his pew during public worship and when the meeting house is in such ruinous condition that it cannot be and is not occupied for public worship he can recover only nominal damages, for injury to his pew. Howe v. Stevens, 47 Vt. 262. And see Jackson v. Rounseville, 5 Met. 132. Their right to use and occupation is by some writers termed an easement. Washburn on Easements, 515; Union House v. Rowell, 66 Me. 402; First Baptist Society v. Grant, 59 Me. 251. But it may be doubted whether the right of a pew holder to his pew is an easement unless it is appurtenant to some tenement. See article by J. A. Sedden on Rights of Pew Holders, 15 Cent. L. J. 101. Also O'Hear v. Goesbriand, supra. It is a qualified interest subject to the rights of the religious society owning the land and building. First Baptist Society v. Grant, supra; Freligh v. Platt, 5 Cowan (N. Y.), 494; Erwin v. Hurd, 13 Abb. N. C. (N. Y.) 96; Kimball v. Second Parish, supra; Church v. Wells, 24 Pa. St. 249; Sohier v. Trinity Church, 109 Mass. 21. "Pews are held by very peculiar titles," says the Supreme Court of Massachusetts, in Sohier v. Trinity Church, supra. "They constitute an unqualified and usufructuary right being a right to occupy under certain restrictions." To the same effect see the language of Shaw, C. J., in Attorney-General v. Federal Street