(1) The trust created by the deed is a charitable use. (2) The establishment of the West Congregational Society in 1833, under the circumstances shown, was a separation, and division, in fact, by the inhabitants of the town "into two separate parishes or societies," within the fair interpretation of the condition in the deed. (3) Being a charitable use, the beneficiaries for the time being could not divert the income by agreement or arbitration. The result of these three propositions is, that the bill must be dismissed.
SMITH, J. By the establishment of the West society, "the inhabitants of Orford separated and divided into two separate parishes or societies," within the meaning of the deed. There is nothing in the language of the deed that requires such separation to be by vote of the legal voters in town-meeting duly warned and held, or by vote of its inhabitants ascertained in some other mode, if that term includes others besides legal voters. No method being pointed out in the deed by which a separation or division of the inhabitants is to be ascertained, I am of opinion that the inhabitants became separated and divided by the establishment of the West society, and consequently that the rents and profits arising from the land conveyed by the deed should be appropriated for the use and support of the gospel at the meeting-house occupied by the West society on the river road.
The trust being a charitable use, the beneficiaries cannot alien it, for the property is not theirs to sell; nor donate it, for the title is not in them; nor misapply the funds, because the use and trust for which it was created cannot be diverted. They are bound to apply the income according to the terms and conditions imposed by the donor. The compromise or agreement of 1838, by which the income was divided between the two societies, was a diversion of the property from the terms of the trust, and consequently cannot be enforced. The West society is entitled to the whole income.
Bill dismissed. *Page 471