Bishop’s Address of 1883

The Rt. Rev. John Watrous Beckwith
2nd Bishop of Georgia

Brethren of the Clergy and Laity:

May 28. I held morning service, assisted by Rev. C. M. Beckwith and preached in St. Luke’s Cathedral.

June 10. I received the letter dimissory of Rev. Byron Holly, Jr., (Deacon) from the Diocese of Western New York.

June 31. Received letter dimissory of Rev. D. W. Winn, from Diocese of Virginia.

Bishop John BeckwithJuly 16. I ordained Rev. C. M. Beckwith to the Priesthood, in St. Luke’s Cathedral. The candidate was presented by the Rev. W. C. Williams, D. D., Priest in charge, who, with Rev. C. Dowe, assisted in the laying on of hands. At the same service, I ordained Mr. C. C. Leman to the Diaconate. The candidate was presented by the Rev. C. Dowe. I preached the sermon.

July 19. Confirmed one, presented by Rev. W. C. Williams, D. D., in St. Luke’s, Atlanta.

October 6. I received notice of the deposition from the ministry of Rev. J. Robert Love (colored Presbyter), of the Orthodox Apostolic Church of Hayti.

October 15. I held morning service, assisted by the Rector, the Rev. Geo. Macauley. Preached, confirmed four, and made an address in St. Mark’s, Dalton.

October 18. Being St. Luke’s Day, I instituted three Deaconesses of the Order of St. Catherine, namely, Sister Margaret, Sister Katharine, and Sister Sarah. The services were held in the Chapel of The Appleton Church Home, Macon, before a public congregation. I was assisted by Rev. Charles J. Wingate, Assistant Rector of the Home, and Rector of St. Paul’s Church, and by Rev. James R. Winchester, of Christ Church, and Rev. D. W. Winn, Assistant of Christ Church, and the Rev. C. C. Leman, of St. Luke’s, Hawkinsville. I made an address, and, with the Clergy, administered the Holy Communion.

October 22. I held morning service, baptized 1 adult, preached, confirmed 2, made an address and administered the Holy Communion in Cedartown.

October 25. I confirmed, in St. Philip’s Church. Atlanta, one person, who had come from Augusta to be confirmed. The candidate was presented by the Rector, the Rev. R. C. Foute.

October 29. I held morning service, assisted by the Bishop of Tennessee (who kindly preached for us), and the Rector, the Rev. G. W. Wilson, and confirmed 15, in St. Peter’s Church, Rome. In the evening I again held service, and preached in the same Church. I ought here to mention that, in my last Report to the Convention, I neglected to note that on the 11th of April, 1881, I held a service in St. Peter’s, Rome, confirmed 9, and made an address.

November 5. I had appointed for my visitation to Cave Spring, but was prevented by an attack of sickness, the beginning of that bodily weakness which has since so seriously interfered with the satisfactory discharge of my Episcopal duties.

November 12. I held service, assisted by Rev. T. M. N. George, Deacon, preached, confirmed 2, made an address and administered the Holy Communion, in the Church of the Advent, Madison.

November 13. I held evening service, assisted by the Rector, the Rev. J. Knowles, and preached in the Church of the Redeemer, Greensboro.

November 14. I gave a letter dimissory to Rev. R. Landsberger, to the Diocese of Central Pennsylvania.

November 19. I held morning service, assisted by Rev. Mr. George, preached and administered the Holy Communion, in the Church of the Mediator, Washington.

November 25. I held morning service, assisted by Rev. Mr. George, preached, and confirmed 2, in the Presbyterian Church, Sparta.

November 26. Held morning service, assisted by the Rector, Rev. J. M. Stoney, preached, confirmed 5, and made an address, in St. Stephen’s, Milledgeville.

December 3. Held morning service, baptized 1 infant, preached, confirmed 2, made an address and administered the Holy Communion, in Calvary Church, Americus.

December 5. Performed the marriage service in St.Philip’s, Atlana.

December 8. Held evening service, preached, confirmed 1 and administered the Holy Communion. After the service, I baptized, in private, 4 children, in Bainbridge. The service was held in the little room where the faithful few regularly gather on the Lord’s Day, for prayer and the reading of the Scriptures.

December 10. Held morning service, preached, confirmed 1, made an address and administered the Holy Communion, in St. Thomas’ Church, Thomasville.

December 11. I baptized, in private, 1 infant and 2 adults.

December 17. Held morning service, assisted by Rev. C. C. Leman, preached, confirmed 8, made an address and administered the Holy Communion, in St. Luke’s, Hawkinsville. In the evening, I confirmed, in private, 2.

December 25. Held morning service, assisted by Rev. C. M. Beckwith, preached, confirmed 2 in a Methodist Church, rented for the purpose, in Atlanta. In the afternoon I held a service in the unfinished basement of St. Luke’s new Cathedral Church. The new building was not in condition to be occupied, and yet we felt anxious that the life, so to speak, of the new Church might begin upon the day of our Lord’s Nativity. On the same day, I administered the Holy Communion, in private.

December 81. Held morning service, assisted by Rev. Edward Denniston, and preached, in the Presbyterian Church, in West Point.

January 7, 1883. Held morning service, assisted by Rev. Byron Holly, preached, confirmed 3, and made an address, in St. Andrew’s, Darien. In the afternoon. I held service, assisted by Mr. Holly, preached, and confirmed 2 colored persons, in St. Cyprians’, Darien.

January 14. Held morning service, assisted by the Rector, Rev. Henry E. Lucas, preached, confirmed 14, and made an address, in St. Mark’s, Brunswick. In the evening, I confirmed, in private, 2. On the same day I received the letters dimissory of the Rev. John J. Andrew, (Priest) of the Diocese of Western New York.

January 15. I performed the marriage service in Decatur.

January 18. I gave my canonical consent to the consecration of Rev. Hugh Miller Thompson, D. D., as Assistant Bishop of Mississippi.

January 28. Held morning service, assisted by the Rev. T. C. Stanley, preached and confirmed 3, in Gainesville.

February 4. Held morning service, assisted by the Rector, Rev. W. C. Hunter, preached, confirmed 5, made an address, and administered the Holy Communion, in Trinity Church, Columbus. In the afternoon I visited the Sunday School of a flourishing Mission, under the care of Mr. Hunter, and made an address. Still later, I confirmed, in private, 1 person.

February 11. Held morning service, assisted by the Rector, Rev. Thomas Boone, preached, confirmed 17 and made an address, in Christ Church, Savannah. In the afternoon of the same day, I held service, assisted by Rev. I. B. Kennard, confirmed 4, and made an address, in St. Matthew’s, Savannah. I had caught a cold while preaching in Columbus, and after this day’s work, my throat became so inflamed and painful that the physician who examined it prohibited me from preaching.

February 15. Held morning service, assisted by Rev. Henry Dunlop, Missionary in charge, and Rev. Thomas Boone, and confirmed 13 colored persons, in St. Mark’s Chapel, on the Ogeechee.

February 16. Held evening service, assisted by Rev. Messrs. Andrew and Kennard, confirmed 1 colored person, and made a short address, in St. Augustine’s Chapel, Savannah.

February 18. Held morning service, assisted by the Rector, Rev. Charles H. Strong, confirmed 22, made a short address and administered the Holy Communion in St. John’s, Savannah. It was a great trial to me to stand in the presence of that crowded congregation and feel that I must not attempt to deliver the Master’s message. In the afternoon, I held service, assisted by the Rector, Rev. Jno. J. Andrew, and Rev. Messrs. Boone, Strong and Kennard, confirmed 11 colored persons, and made an address, in St. Stephen’s Church, Savannah.

February 25. I consecrated Christ Church, a handsome Chapel built near the factories in Augusta. I was assisted by Rev. Messrs. Weed and Walker. That evening I held service, assisted by the Rector, Rev. W. B. Walker, and Rev. C. C. Williams, and confirmed 16, in the Church of the Atonement, Augusta.

February 26th. Held morning service, assisted by Rev. Messrs. Weed, Williams and Walker, and confirmed 3 at Belair, near Augusta.

March 4. Held morning service, assisted by the Rector, Rev. Chauncy C. Williams and Rev. Mr. Walker. Confirmed 11 white and 1 colored person, and made a short address in St. Paul’s, Augusta. In the evening I held service, assisted by the Rector, Rev. E .G. Weed, and Rev. Messrs. Williams and Walker. Confirmed 24, and made an address in the Church of the Good Shepherd, Augusta.

March 5. I confirmed in private 1 colored person, presented by Rev. E. G. Weed. On the same day it was my privilege to confirm in private Mr. Paul Hamilton Hayne, at his residence, he being too unwell to attend the services of the Church. These visitations would have given me unalloyed happiness had my health permitted me to have joined my brethren in preaching the Gospel.

March 11. Held morning service, assisted by the Rector, Rev. J. R.Winchester. Confirmed 7 from Christ Church and 1 from St. Paul’s, and made an address in Christ Church, Macon. In the afternoon I confirmed 1 in private. In the evening I held service, assisted by Rev. D. W. Winn, Missionary in charge. Confirmed 2, and made an address in St. John’s Mission, Macon. St. Paul’s new Church being incomplete, my visitation to that Parish was, at the request of the Rector, deferred.

March 18. Held morning service, assisted by the Rev. Dr. Williams and the Rev. C. M. Beckwith, and made a short address in St. Luke’s Cathedral, Atlanta. After service I administered the Holy communion in private.

March 19, 20, 21, 22, 23. I held morning service, assisted by the Clergy of the Cathedral, and made addresses; and on the evening of the 22d, I administered the Holy communion, and made an address in St. Luke’s Cathedral, Atlanta.

March 24th. I baptized 1 infant in St. Luke’s Cathedral, Atlanta.

March 25. Being Easter Day, I held morning service, assisted by the Rector, the Rev. R. C. Foute. Confirmed 22, made an address, and administered the Holy Communion in St. Philip’s, Atlanta. I n the evening I held services assisted by the Rev. Dean Livermore, of Minnesota, the Rev. Dr. Williams, Rev. C. M. Beckwith and Rev. W. H. Hunt; confirmed 23 white persons and 1 colored person in St. Luke’s Cathedral, Atlanta. The sermon was preached by the Rt. Rev. H. B. Whipple, Bishop of Minnesota.

April 1. Held morning service, assisted by the Rector, the Rev. J. C Davis. Confirmed 5; made an address, and administered the Holy Communion in Emmanuel Church, Athens. In the evening I held service, assisted by the Rector, Rev. W. E. Eppes. Confirmed 7, and made an address in St. Mary’s, Athens.

April 2. 1 confirmed in private 1, presented by the Rev. Mr. Davis.

April 4. I performed the marriage service in Cartersville.

April 8. Held morning service, assisted by the Rector. Rev. C. Dowe ; confirmed 5, and made an address in St. George’s, Griffin.

April 15. Held morning service, assisted by the Rector, Rev. Samuel J. Pinkerton ; confirmed 9, and made an address and administered the Holy Communion in St. James’, Marietta.

April 18. I confirmed 1 person in St. Luke’s Cathedral, Atlanta, presented by Rev. C. M. Beckwith.

April 22. Held morning service, assisted by Rev. Dr. Williams; confirmed 3, and made an address in St. Luke’s Cathedral.

April 28. The Rector, Rev. T. G. Pond being sick, I baptized 2 adults in St. Paul’s, Albany.

April 29. I held morning service, assisted by the Rector. Rev. T. G. Pond; confirmed 7, and made an address in St. Paul’s, Albany.

On the 8th of March it was my sad privilege to read the burial service of the Church over the remains of the late Governor, Alexander H. Stephens, at Oakland Cemetery, Atlanta. Religious services had been conducted by a number of the ministers of the different denominations, in the Capitol; and an able sermon had been preached by the Rev. Dr. Jones, of the Presbyterian Church; and then I was asked to take charge of the services, and bury the dead. It was an occasion never to be forgotten. Gov. Stephens had been greatly distinguished as an orator, a statesman and a writer. Like all strong men in public life, he had made many political enemies ; but now that he was dead, politics were forgotten, and the purity of his life, the grandeur of his character, in its simplicity, its kindness and its courage, rose before the people of Georgia, and bowed all hearts in one great sorrow. From every part of the State, cities, towns, villages and counties, came the people, and the representatives of the people, to show their love for this noble man. Thousands and thousands stood uncovered and mourned in silence, while the Church, in her wondrous Liturgy, committed the body to the grave, and told the mourning multitude the comforting message of the Holy Spirit, ” Blessed are the dead who die in the Lord, even so, for they rest from their labors.”

On the 27th of March I received notice of the death of the Rev. J.H. George, of Marietta. For many years Mr. George had been nearly blind, and this affliction, added to his poverty, and the care of a large family, made his burden a heavy one to bear. Still, while he was able, he worked faithfully in the Church of his blessed Master and, while waiting in his old age for the summons to rest, his faith in Christ kept his heart bright, for he knew that a crown awaited him who should be faithful unto death. He was simple-minded, pure-hearted, loving and kind; an Israelite indeed in whom there was no guile. Life bad become to him n period of patient longing, and death was simply the entering upon that rest which remained to the people of God.

Just before Easter, the Bishop of Minnesota, being in the South for his health, did us the great favor to spend Easter-eve, Easter day and the Monday in Easter week, in Atlanta as my guest. While I was holding my visitation in St. Philip’s Church Easter morning, the good Bishop took charge of the Cathedral and delighted the congregation with one of his earnest sermons. In the evening, at my visitation, I being unable to preach, the Bishop gave us an eloquent address and greatly encouraged us by his kind words. The clergy and congregation of the Cathedral are very thankful to the Bishop of Minnesota for all the trouble he took to make us happy upon this High Festival of the Church, and our hope is that, in giving us so much joy, he felt himself rewarded by the pleasure it must have given him to do so much good.

During the past year many of the Parishes have been engaged in the good work of building or repairing churches. St. Philip’s, Atlanta, has finished, with the exception of the spire, a large and very handsome church. The old wooden building, in which the congregation formerly worshipped, has been taken down and a Chapel built out of the material. In Marietta, St. James’ Church has been enlarged and a handsome window placed over the altar. In Augusta the new Mission church, “Christ Church,” has been built and consecrated; while the Church of the Good Shepherd has been beautifully decorated. Christ Church, Savannah, which had been seriously injured by a storm, has been restored and an elaborate and very elegant ceiling built. Christ Church, Macon, has taken down its galleries, thrown open its roof, and promises, when completed, to be both handsome and churchly; while St. Paul’s, having given up the old building, has built a beautiful Gothic Church, which is an ornament to the city. Finally, St. Luke’s, Atlanta, has torn down the small building which has for so many years held its little congregation and, having moved upon one of the thoroughfares of the city, has erected a comely  cathedral Church. For several years St. Luke’s Parish owed its existence, under God, to the devotion and self-sacrifice of the Rev. George Macauley. By his energy the money was raised to purchase the lot on Walton street and to build the Church. While the Parish was too poor to support a Rector he was still true to it, spending his private means and trying to keep the little flock together.

While the Church was being built debts were contracted which, owing to the poverty of the Parish, have threatened it more than once with utter destruction. Such was its condition when, in 1880, the Rev. W. C. Williams, D.D., came to its rescue, gave it his services without salary and undertook, so far as he could, to pay off its debt. Still, though under his care its prospects brightened, it seemed as though many years must pass ere the Doctor and his Assistant, the Rev. C. M. Beckwith, could win for it strength sufficient to enable it to become self-supporting. Since the last meeting of this Convention, two gentlemen in Atlanta, friends of St. Luke’s, conceived the idea of purchasing a lot in a more desirable part of the city and building a new Church. I was greatly touched when these gentlemen declared their wish to build a Cathedral Church as an evidence of their regard for me. True, it seemed to me the veriest dream, yet it was an agreeable one whose passing away could only leave behind it a pleasant memory.

You can imagine, better than I can express, the astonishment and joy with which I have seen that dream realized. St. Philip s Parish was busy with its own building and it could not be expected to assist materially in this work ; yet the foundations were laid, its walls erected, the arches sprang into existence; and the money seemed to come from everywhere. On the 7th of September, 1882, the work was begun; on the 9th of February, 1883, the first service was held in the body of the church, and to-day the Cathedral is not large enough to seat its congregation. May the Great Head of the Church bless those who have so liberally, promptly and generously erected this churchly building to the glory of His name.

These are signs of life working outward, and the forerunners, let us hope, of increased and deepened spiritual life. The Church is lengthening her cords and strengthening her stakes. Her presence is felt and her best labors are needed. Let us pray that we may be equal to our responsibilities.

During the past year, as doubtless you know, I have been engaged in litigation with the Rector, Wardens and Vestrymen of St. Philip’s Church, Atlanta. On the 1st day of November last, the Supreme Court of this State published its decision. As this decision is now the law in this State, touching “charitable trusts,” and as part of the property committed to my care is held by me in trust for the Diocese, and as the Court, in giving its decision, has also given a sufficient history of the case, I have concluded, for convenience of reference, to incorporate the decision entire into this, my address:

The case of Bishop Beckwith, Trustee, vs. Rector, Wardens, and Vestrymen of St. Philip’s Church et al. Refusal of injunction from Fulton.

Speer, Justice.

On the 13th of April, 1847, Samuel Mitchell for and in consideration of his desire to promote the cause of morals and religion in the land, and one dollar paid, sold and conveyed a certain lot in the town of Atlanta known as fraction block No. 1, containing three fourths of an acre, to Stephen Elliott, Jr., of the P. E. Church in the division of Georgia, to have and to hold the same as Bishop aforesaid, for the use of said Church in said division in fee simple.

By deed dated 10th June, 1847, L. P. Grant conveyed to Stephen Elliott, Jr., lots 33 and 34. Stephen Elliott, Jr., executed a disclaimer of the title to these last two lots except as Bishop of Diocese of Georgia in trust for use and benefit of the Parish of St. Philip’s in Atlanta, debarring his heirs, declaring the same to be rightfully vested in his successor or successors in office as Bishop of the Diocese of Georgia. This deed of disclaimer is not dated, but recorded 8th November, 1866, in Fulton county.

A Parish was organized in 1847, known by the name of St. Philip’s Church, the articles of association acknowledging and acceding to the doctrine, discipline, worship, and the constitution and canons of the Protestant Episcopal Church in the United States, and constitution and canons of the same church in the Diocese of Georgia.

The Diocese of Georgia was incorporated in May, 1877, by Chatham Superior Court, under the style of the “‘Protestant Episcopal Church of the Diocese of Georgia” Under the act of 1876, and in said charter the Bishop and standing committee, and their associates, members of said church, were, with other powers, granted the right to hold real and personal property necessary for its organization, ” including all property and right of property heretofore held by said Church under its unincorporated organization.”

On the 6th of October, 1881, a petition averring that a church had been established was presented to Fulton Superior Court, and an order passed incorporating the Rector, Wardens and Vestrymen of St. Philip’s Parish, Atlanta, for twenty years, giving them authority with other corporate rights, “to take possession of, hold and alienate any property, real or personal that may be held in trust for said Parish.” On December 5, 1881, the Rector, Wardens and Vestry resolved to mortgage the entire property for $15,000, and the Bishop, as trustee, was requested to give his consent to this mortgage. This the Bishop, on the 12th December, 1881, declined to do.

On Easter Monday, 11th April, 1883, at a Parish meeting for an election of the Wardens and Vestry of St. Philip’s Church, “it was resolved to mortgage for $10,000, all the property which belongs to the Parish of St. Philip’s.” The complainant, as trustee under both deeds, on 9th May, 1882, filed this bill to prevent the realty passing under either deed from being so encumbered, as a cloud upon his title and endangering the trust estate.

The Court below ruled that from the incorporation of the Parish the title to the lot held in trust for the Parish passed to the corporation, and that the Bishop of the Diocese, as trustee, had no such interest in the lot conveyed by Mitchell as authorized him to maintain the bill retaining the Injunction pending the writ, of error only as to the lot conveyed by Mitchell.

The assignments of error on this judgment of the Chancellor below are:

1st. In refusing the motion of complainant to strike the answer because not properly verified.

2d. In holding and deciding that the incorporation of the Rector, Wardens and Vestrymen of St. Philip’s Parish was and is an incorporation of the Parish of St. Philips.

3d. In holding and deciding that the incorporation of a Parish would divest a trustee of title previously held by such trustee for the benefit and use of said Parish.

4th. In holding and deciding that the incorporation of the Rector, Wardens and Vestrymen of St. Philip’s Parish divested the complainant of all title and interest in and to the lots described in exhibits B and C to complainant’s bill, and that the said corporations upon their creation became invested with a perfect title to said lot.

5th. In holding and deciding that complainant does not, as trustee or otherwise, hold the title to the lot described in exhibit A to complainant’s bill, and that complainant did not, in reference to this lot, succeed as trustee his predecessor in the office of Bishop of the Protestant Episcopal Church in the Diocese of Georgia, and that complainant has no such interest in said lot as could enable him to maintain said bill.

6th. In refusing to grant the injunction prayed for.

There is no issue as to the facts between these parties, and hence no review here as to abuse of discretion in the judgment of the Chancellor below on the facts in refusing the injunction. But the questions presented are questions of law upon the facts admitted.

We deem it unnecessary to pass upon the three first grounds of error assigned in the record, as in our judgment a ruling on the other grounds embraces the main and controlling questions of law involved.

There are two deeds in this record conveying these lots. One by Samuel Mitchell conveying one of said lots to Stephen Elliott, jr., bishop of the diocese of Georgia, for the use of the Protestant Episcopal church, and the other by Stephen Elliott, Jr., conveying the other lots to the Bishop of the Diocese of Georgia, in trust for the use and benefit of the parish of St. Philip’s in the city of Atlanta. These deeds originally vested the title of the lots in the grantees for the uses and benefits as stated.

The complainant below claims, as the successor of Bishop Elliott in the office of Bishop, that he holds the title for the uses therein declared. The defendants in error claim that by the subsequent incorporation of the Diocese and the Parish of St. Philip’s, the trusts became executed and the legal title held by the Bishop united or merged into the use, and hence both legal and equitable title by operation of the statute of uses, known as the statute of 27 Henry VIII., passed to the trustees of said several corporations, to-wit : the Diocese of Georgia, and the Parish of St. Philip’s.

It certainly was the clear intent and purpose of the donor and grantor, in the creation of these trusts, to provide for and promote religious instruction and worship—the one in the diocese of Georgia, and the other in the parish of St. Philips. When trusts are created for such a purpose they are known and defined in law as “charitable trusts.” The Code defines a trust making provision for “religious instruction, or worship,” a “charity ” cognizable by a Court of equity. Code. §3151.

Perry, in his work on Trusts, says : “Charitable trusts include all gifts for religious or educational purposes, in their ever varying diversity.” 2d Perry, Sect. 687; 4 Ga., 404 ; 46 Ga., 88.

The rules of charitable trusts, in their establishment and administration, are very different from those that are applicable to private trusts, in giving effect to the intention of the donor, and in establishing the charity. In a private trust the cestui que trusts if so uncertain, or if so incapable of taking, that they cannot be identified or cannot, by legal or equitable proceedings, claim the benefit conferred on them, the gift will fail and revert to the donor and his heirs. But if a gift is made for a “public charitable purpose,” it is immaterial that the trustee is uncertain or incapable of taking, or that the objects of the charily are uncertain and indefinite. Still it will be sustained. A public charity begins where uncertainty in the recipient begins. Courts look with favor upon such trusts and take special cure to enforce them—to guard them from assault and protect them from abuse.

“Charity in thought, speech and deed challenges the admiration and affection of mankind.”

“Christianity teaches it as its crowning grace and glory, and the inspired apostle exhausts his eloquence by setting forth its beauty and the nothingness of all things without it.”

The support and propagation of religion is clearly a charitable use, and this includes gifts for the erection, maintenance and repair of church edifices, of worship, the support of the ministry, etc. 2d Pom. Eq., 587-8; Law of Trust. (Tiffany and Bullard) 232, 236, 39. 40.

Where the general intention is “charity,” the court will not permit mere matters of form to defeat it. 80 Penn., 437, 12 La., 301.

In charitable trusts the cestui que trust or beneficiaries are not, and need not be, capable of taking the legal title, and when the property is given for the poor of a parish or for the education of youth—for pious uses or any charitable purpose, the beneficiaries are generally unknown, uncertain and incapable of taking or dealing with the legal title, but such trusts are valid in equity, and Courts of equity will administer them and protect the right of the beneficiary. Perry on Trust, 66. An alienation of the legal title by the holder or trustee will be considered per se as a breach of his trust. It is his duty to preserve the trust property—act favorably to the trust interest, and if he sell the trust property he must be prepared to show the transaction was beneficial to the charity, and in the absence of such proof the sale will be treated as a breach of trust and be set aside. Law of Trusts (L. and B.), 274, and authorities there cited.

Are these charitable trusts subject to the statute of uses as declared in 27 Henry VIII.? Or, in other words, do such trusts ever become executed so as to merge the legal into the equitable estate under that statute? The intent of the statute of 27 Henry VIII. was undoubtedly to do away wholly with the separation between the legal and beneficial ownership of lands, and to abolish uses and trusts altogether; but such a construction has not been fully carried out by the Courts for various reasons.

Mr. Dwight, in his argument in the “Rose will case,” says, speaking of charitable trusts or uses: “The very nature of the case precludes the idea that a statute could have been enacted with the intent to vest the title in the poor, or in children who were the beneficiaries of the charity. The essential nature of a charity is that the property shall be kept away from the temporary beneficiaries and to preserve it for them for all time to come, as they arrive one after another.” Charitable uses are neither within the scope nor the words of the statute. The only design of that statute was to convert equitable into legal estates by annexing the legal title to the equitable right of possession; but the persons for whose benefit a charity is created have no estate or interest in the lands upon which the statute could possibly operate. They are mere beneficiaries, having the right, and nothing more than the right, to compel the performance of the trust according to its terms and the intention of the donor. A valid charitable use must always remain, and can only be enforced as a trust unaffected by the provisions of the statute. Since considering it simply as a use, there is not and never can be any person in whom it can be executed. As the rents and profits are to be applied to the benefit of a succession of persons in perpetuity, there is not and can never be a cestui que trust to whom the legal estate, if that of the trustee is divested, can be given without destroying the charity and defeating forever the intention of the founder.” The very nature of this trust makes it a continuing executory trust. There is always something for the trustee to do, not only in protecting the title, but in ascertaining the objects of the trust, improving the property, and determining the beneficiaries, who are uncertain and fluctuating. 4 Wheat, 646. It is conceded that there can be no merger of the legal and equitable estate so long as the trust is executory. Does the trust become executed by the creation of these corporations?

It cannot be denied that under the statute of uses when a trust becomes executed it is a destruction of the trust estate, because an actual estate is thereby created in the beneficiary as effectually as if done by conveyance and livery of seisin at common law. 2d Washburn, 415. Under this trust the trustee is charged with the duty of promoting the cause of religion and morals, and us it is continuing and perpetual, we cannot see how it can be executed, and thus terminated without doing violence to the intention of the donor. It is impracticable for this trust to be executed in the beneficiaries, for they are ever changing, by removals, accessions, deaths and births. Is it executed in these corporations as claimed by defendants in error—that is, is the complainant, as trustee, divested of the legal title in these lots by the creation of these corporations, and does this legal title merge or unite with the equitable estate in these corporations? The cases cited by the defendants in error in support of this proposition, in 4 Wend. 497; 3d Paige-296; 2d Wash. (Va.), 35 and 5; Watts and S., 323, all seem to rest on decisions made in New York, and upon a statute of that State. In that State the statute of 27 Henry VIII., and 43 Elizabeth (known as the statute for charitable uses), were both repealed as early as 1788, and the State enacted in lieu thereof a statute that expressly provides “that property held in trust for an unincorporated religious society would vest in an incorporation of such society.” This New York statute declares “that the trustees of a church are authorized and empowered to take into their possession and custody all the temporalities belonging to such church congregation or society, whether the same consists of real or personal estate, and whether the same shall have been given, granted or devised, directly to such church congregation or society, or to any other person for their use.” Revised Statute N. Y., 3d vol., 292. In Georgia the only statute of uses in force is that of 27 Henry VIII. as found embodied in sections 2313, 2314, 2315 of the code.

So far as our investigation has extended we can find no case where it has been held, under the English statute of uses, a charitable trust, such as this, continuing and perpetual, would be terminated by creating a corporation embracing the beneficiaries. On the other hand, in the case of the Methodist Society of Georgetown vs. Bennett et al, 89 Con., 298: “Where land was conveyed to certain trustees in trust for the members of the Methodist P. Church of G., to be holden by them and their successors in office forever, for the proper use and behoof of said church, agreeably to the Methodist P. Church Discipline, and the book of discipline provided for the election of trustees to each church, and made it their duty to hold the property of the individual churches in trust for the use and benefit of the members thereof, with power, when authorized by two-thirds of the male members over twenty-one years of age, to dispose of property so held, but on no other condition. It was held that the legal title did not vest in the church as a corporation.

“If this legal title in the complainant is by the statute of uses merged in the equitable or beneficial estate, and both unite and form but one estate, then these corporations would hold this property free from any trust; for wherever this merger takes place the equitable or beneficial estate ceases, and the title is in the corporation unincumbered with the trust. For, as before stated, when under the statute of uses a trust becomes executed by the merger of the legal with equitable estate,” an actual estate is thereby created in the beneficiary as effectively as if done by conveyance with livery of seisin at common law. 2d Wash., 415. If this trust is executed by the creation of these corporations and they take both the legal as well as the equitable title, then their actual estate is absolute, the trust is terminated and the intention of the donor is defeated. But it is said the perfect title would vest in these corporations ”according to the terms and limitations of the trust.” Code, 2314. The meaning of this is they would take first such a legal estate as the beneficiaries had and held as an equitable estate, and as their equitable estate was designed (in these deeds) to be perpetual, so would the legal estate be perpetual and the trust would no longer exist.

The English statute of uses—27th Henry VIII.—was enacted in hostility to trust estates. Its purpose was to destroy and put an end to such estates and vest the title, both legal and equitable, in the beneficiary of the trust, and thus create in him an actual estate free of the trust, and if this trust is executed as claimed, by these corporations coming into existence, they take the actual, absolute title disencumbered of any trust. To claim they would hold as trustees for the beneficiaries subject to the uses and terms of the deeds from the donors, would not be in conformity with either the letter or the spirit of the statute of uses, as applied to executed trusts. Code, 2314. In 2d Michigan Reports 113, the Court decided that the creation of a corporation after the conveyance of the land in trust would not permit the corporate officers to manage the corporate property contrary to the laws and usages of the church. In Calkins vs. Cheney, 72 Illinois, 462, the Court stated, “most obviously, property held in trust for the benefit of a religious denomination cannot be held subject to be conveyed away or improved or used in accordance with the dictates of a society or congregation.” In Watts and S. R., 25, it was held, “an act of incorporation after the deed of trust is always with respect to this grant to be construed consistently with the deed, and the congregation must enjoy the land granted in subordination to the uses described in the deed.” “The charter cannot change the effect of the grant in any particular. The grant is a contract, the obligation of which cannot be impaired by any authority.” 4 Wheaton, 15; do 518. 624. But whether the title to these lots is in the trustee or the corporation it is still a trust. The 2335th section of the Code declares “trustees are not authorized to create any lien on the trust estate except such as are given by law.” In Iverson vs. Saulsbury, decided at the February term, 1882, not yet reported, a majority of this court held that after full notice to all parties a chancellor could not, in vacation, authorize a trustee to encumber the trust estate by mortgage.”

Was there error in the Court holding, as complained of in the 5th assignment of error, ”that the lot conveyed to Stephen Elliott, Jr., Bishop, in trust for the Protestant Episcopal Church in the Diocese of Georgia was a trust attaching to the person and not to the office of Bishop, and that the trust did not pass to his successor in office.”

In Georgia the Courts apply liberal rules of construction to carry out the intention of the donor, 4 Ga., 404; 25 Id. 420. A bond payable to Gilmer, Governor, and his successors in office, is payable to the officer and not to the individual. 15 Ga., 423. So if only payable to the Governor. 1 Ga.,: 583. So by the terms of a close analogy with section 1343 of the Code this trust would vest in the present complainant as the successor. This was evidently the intention of the donor. The trust was lodged for the benefit of a Diocese in its Bishop, its highest officer, and who by the rules of his Church government was the regular successor of a long line of officials preceding him. No other provision was made by the deed for any other succession, and the conclusion is reasonable he intended this trust to pass to the successors in office of the first trustee.

We conclude, therefore, that the complainant, to whose predecessor these conveyances were executed is not divested of his legal title to these lots of land by the incorporation of the “Diocese of Georgia” and the “Parish of St. Philip’s church” under the “statute of uses,” as of force in this State and that without his consent there could be no lien or mortgage created on this trust property and that the Chancellor below erred in not granting the injunction as prayed for. 

Judgment reversed.
Jackson, Chief Justice, dubitante.
Harrison & Peeples; S. Hall, F. H. Miller, for plaintiff in error.
E. N. Broyles; MrCoy & Abbot, for defendants.

I will be pardoned, I trust, if I take this opportunity of placing on record the expression of my earnest gratitude, first to Col. Z. D. Harrison, who, in all this unfortunate affair, has been my wise, ready and patient adviser, and who had the charge and direction of the case from the beginning ; and second to Hon. Samuel Hall, now of the Supreme Court, and Mr. Frank H. Miller, of Augusta. These gentlemen, with Col. Harrison, gave to the Church, in this important case, their time, their learning and their distinguished abilities, without money and without price. Laboring for the Church for the Blessed Master’s sake, by their skill and unfaltering energy, the case was conducted to a conclusion, which has made unmistakable the law upon “charitable trusts,” and has given a security to property of that kind, belonging to any and all the Christian bodies in this State, never before known.

The subject of missions will, as usual, claim your serious attention. I am glad that I have but little to say upon this subject, so long as there is willingness upon the part of the Parishes to do their duty, and give according to their ability for the spread of the Gospel, I doubt if the present canon can be improved, except in one respect. §8 of the canon provides that the “Convention shall make an appropriation to carry on the missionary work within the Diocese during the ensuing year, and apportion between the Parishes the amount so appropriated, after consultation with the representatives present.” §9 provides that the Board of Missions shall “provide for the distribution to the missionary stations and feeble parishes the amount appropriated by the Convention.” Whether it were so intended or not, the practical working of these sections is as follows, viz: The Convention, at the beginning of the year, determines that a certain amount of money is needed for missionary work during the entire year. This amount, heretofore, has been simply what is needed to take care of the clergy already in the field. The Board of Missions, when it meets, finds that it can only give to fields already occupied. The consequence is that the fields of list year are the fields of the new year; all the money must be appropriated to them, and not one dollar is provided for extension. Opportunities to plant new missions may, and do, occur. Missionaries may, and do, offer to come into the Diocese and work; but our hands are tied, our money all appropriated, and our only hope of carrying the Church into new fields, is in the weaker Parishes and existing mission stations attaining such growth as will enable them to surrender their stipends, so that the amounts may be diverted into new channels. I do not mention this in the hope that you can correct it now. I know the difficulty which you have in realizing even your present appropriations. Still, we should, I think, fully understand that the amounts now given only enable ns to hold our own, but render progress impossible. When Church people, clerical and lay, shall realize and appreciate the fact that the blessed Lord died for souls outside their Parochial organization as well as for themselves, and that they are His voluntarily pledged agents to carry or to send to others the news of salvation ; then we will cease to be congregational monopolists, and become self-sacrificing and liberal co-workers with Him upon whose bounty we live, by whose mercy we hope to be saved, and whose service we have acknowledged to be our bounden duty.

I rejoice to see in certain parts of the Diocese an increased interest in city missions. It is true that, in the present condition of our finances, such missions must be the work of individual Parishes; for if we cannot increase missions in the villages and country, neither can we in the city. But I find encouragement for city missions in the fact that the Parishes most actively engaged in such work are not the ones most neglectful of the general missions of the Diocese. I consider this an evidence that God will prosper most, those who think of and work for others than themselves. I believe that the history of the Church throughout the ages will show, that the man, or the Parish, whose charities begin and remain at home, who thinks of and provides only for himself or itself, will gradually become the victim of a disease known as the ” dry rot.” The man, in his community, will become useless ; the Parish, in the Church, will remain a burden.

Since the last Convention, the Diocese has contributed to the support of the Appleton Church Home the amount of $216.63. This apparent indifference to the prosperity or even the existence of this institution, has given me much anxiety. The most helpless part of our population and that which appeals most directly to our sympathy and manhood, is the little orphan girl. Friendless and alone, the future is well nigh hopeless to these little ones! Without a mother’s love or a father’s care, born in poverty, starting life in a world where the designing and wicked lie in wait to entrap and destroy her, there is an eloquence in her helplessness which rarely appeals in vain to the kind offices of true-hearted men. There have been orphan girls in that Home whose parents once abounded in this world’s goods. They had as strong a hold, apparently, upon life, and their children were as safe from its sorrows and poverty, as we or our children. The misfortunes which have befallen them are not peculiar to them. Amid the un-guessed events of the future there may come to those we love, all the isolation and friendlessness, the dependence and weakness, which are now the lot of the orphan child who asks protection of the Church Home. I wonder if the Great God who sees them turned away from its doors, because we have not means to support them, will, at such a time, think of those upon whom He has lavished blessings? Will He remember that the crumbs which fall unheeded from your tables would feed and bless these “the least of His brethren?” If the sin of the father is visited upon the child, will we, when we die, leave to our children the blessed legacy, ” Inasmuch as ye did it unto one of the least of these my brethren ye did it unto me ?” or shall we have disregarded the solemn charge, “Take heed that ye cause not one of these little ones to offend!” and leave that as our sin to be visited upon our dear ones?

When, years ago, my friend, Mr. Appleton, gave me the choice between a church which should be his gift to me, or an Orphan’s Home to be a refuge for the helpless little girls of the Diocese, I, having an abiding faith in the sympathy of our people, declined the church and accepted the Home for the Orphans. For more than twelve years the little waifs have found a refuge there, and now all over the State I meet young Christian women who tell me of the loving care of the Sisters who watched over and trained them in the days of their helplessness. Church people and strangers have visited the Home, and their testimony is unanimous that in all this land they know no institution that does a gentler, more faithful or more Christian work. During the month of March a noble Christian lady of New York city sent me for investment for the Home, $1,000, and yet this entire Diocese has given to the support of its own institution, and the only one it has, the sum of $216.63.

When the Appleton Church Home was mine, people said: “It is the Bishop’s affair and we have no interest in it.” But now, that it has for years belonged to the Diocese, is a regularly incorporated institution, with its Board of Directors, the people seem to say: “It is no longer tie Bishop’s but ours, and still we have no interest in it.'” It is free from debt; has an endowment of between $15,000 and $20,000 ; owns property worth as much as its endowment, and yet, though it cares for helpless little orphan girls, to its most earnest appeals for help, the Diocese only answers in the sum of $216 63. This, my dear brethren, is but poor encouragement to one who has labored through these years to build up an institution to bless little children of the Church in the years which are to come. It is put poor encouragement to the wealthy men of the Church, North and South, who are looking for places where their money may do the Master’s work after they are gone. They will fear to build institutions for us when they see the fruit of their charity is to be but indifference.

And now, my dear brethren, the Convention has appointed Whitsunday as the time when your people shall be asked to give for the support of the Home. It is doing its work faithfully and well ; may I not hope that you will strengthen our hands and cheer our hearts by your generous liberality?

I have received a letter from the Rev. F. Burnside, Rector of Hortingfordbury, Harford, England, who is Hon. Secretary to the committee appointed by “The Society for Promoting Christian Knowledge,” to publish “The Official Year Book of the Church of England.” The Secretary requests that I submit to your consideration a Prospectus of the Year Book, which accompanies his letter, and that the Convention, if it think proper, take some official notice of the work. He also asks that a copy of the Convention Journal may be sent him year by year for official reference. I think the Year Book an important publication, and trust that the letter of the Secretary may receive your kindly consideration.

The last General Convention adopted an amendment to the “Ratification of the Prayer Book,” a copy of which I lay now before this Convention for its consideration. Final action will be taken by the General Convention, which meets in Philadelphia in October next. By this amendment serious changes are proposed in the public services of the Church, and it is therefore desirable that you should give it a careful examination and, if necessary, instruct your delegates as to their action upon so important a matter.

The general condition of the Church in the Diocese is encouraging. I find, almost everywhere, a growing desire upon the part of church people to inform themselves more thoroughly as to the history, doctrine, discipline and worship of the Church, and as knowledge increases there comes a feeling of satisfaction, of contentment and security which flows from an intelligent consciousness of membership in a church whose history reaches back through the-ages to apostolic times; whose ministry is Divinely commissioned; whose authorized Ritual, in its simple majesty, is free from the eccentricities of extemporized formalism, and from the solemn absurdities of mediaeval mummery, and whose creeds contain simply “the Faith once for all delivered to the Saints.” This increasing interest on the part of church people is awakening a corresponding interest on the part of thoughtful men and women around us. Consequently, many persons are enquiring for the Church. Congregations listen gladly to the evidences that her doctrine is Scriptural and her organization primitive. When such a Church shall, to such teachings and such a history, add the unanswerable argument of personal holiness and self-sacrifice in her members, then the world will see before it the power, and the only power, which can successfully encounter the cultivated scepticism and the materialistic infidelity of the day.

St. Paul preached “Christ the power of God and the wisdom of God.” When the power of God is exhibited in the daily walk and conversation of those who worship “God manifest in the flesh,” then the wisdom of God is established by an argument which scepticism cannot gainsay and which wickedness cannot resist. “Like as the hart desireth the water-brooks, so longeth my soul after thee O God.” This yearning after a higher and nobler life is a fact which modern scientists cannot deny, and for which their theories cannot account. As the sight of food to the starving man, so is the revelation of holiness to the soul famished by sin. There is a hunger after righteousness which is as genuine and as powerful as the craving for bodily food. It is for this reason that we, of the clergy, are commissioned to preach the Gospel to every creature ; and that you, my brethren of the laity, are commanded to “let your light so shine before men that they may see your good works and glorify your Father which is in heaven.” This is the work of the Church; and in this work she is irresistible so long as she is faithful.

Jno. W. Beckwith.
Bishop of Georgia.