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In re Judicial Settlement of the Account of Proceedings of Miller

Supreme Court of New York, Appellate Division

February 16, 1912


Page 114

APPEAL by La Faculté Théologie Protestante de Montauban and another, contestants, from a decree of the Surrogate's Court of the county of New York, entered in said Surrogate's Court on the 25th day of July, 1910.


John S. Wise, Jr., of counsel [J. S. & H. A. Wise, attorneys], for the appellants.

Frederic R. Coudert of counsel [Coudert Brothers, attorneys], for the respondent.


Appeal from the decree of the surrogate in a proceeding for an accounting, holding that a legacy had lapsed and had gone into the residuary estate.

Louise Leclere executed her last will and testament on July 9, 1886. She died in the city of New York, of which she was a resident, on February 24, 1907, and her will was admitted to probate June 10, 1907. She appears to have left no relatives.

The question here grows out of the following clause of the will: 'I give and bequeath to the Faculté de Théologie Protestante de Montauban, in France, One Hundred Thousand francs, of the currency of France, to be held in trust, to invest and keep the same invested and drawing interest and to apply the interest and income therefrom yearly and every year, to as many free scholarships, under the control of said Faculte as said yearly interest will pay for or allow. Such scholarships to be granted, first, to the sons of poor clergymen in France intending to become ministers of the gospel, as may desire the same, and secondly, in the absence of such to any poor young

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men wishing to become ministers of the gospel or missionaries. It is my desire that this fund or endowment may bear my mother's name, and be known and designated as the 'Fonds Guinaud' and to her memory I institute and dedicate the same.'

She directed her executors to divide all the rest and residue of her property and estate into two shares, one of which she gave to the French Evangelical Church in the city of New York, and the remaining half to the Societe Protestante pour l'Encouragement de l'Instruction primaire en France, to be used forever by such society to increase the salaries of deserving teachers in the discretion of said society.

On December 9, 1905, fourteen months prior to the death of testatrix, the Separation Law was passed by the French Legislature and promulgated on December eleventh by the President of the republic. The said law provides: 'Article First. The Republic assures the liberty of conscience. She guarantees the free exercise of religious bodies under the sole restrictions hereinafter provided in the interest of public policy. 2. The Republic does not recognize nor pay, nor subvention any cult. Consequently, on and after the first of January, following the promulgation of the present law, shall be suppressed from the State budget and from the budgets of the departments and communes all provisions relating to the exercise of cults. * * * Public establishments of worship are suppressed under reserve of the provisions contained in Article 3. * * * 3. The establishments, the suppression of which is ordered by Article 2, shall continue to function provisionally in conformity with the provisions which now govern them until the attribution of their assets to such associations as are provided for by Title 4, and at the latest until the expiration of the delay hereinafter indicated. * * * 4. Within one year from the promulgation of the present law, the personal and real property of the 'meaces' 'fabriques,' 'conseil presbyeeraux' 'consistories' and other public cultual establishments shall be with all their liens and encumbrances and with their special affectation transferred by the legal representatives of said establishments to the associations which, in conforming with the general organization rules of the cult the exercise of which they propose to assume, shall have been legally formed according to

Page 116

the provisions of Article 19, in regard to the exercise of said cult in the former circumscription of said establishment. * * * 18. Associations formed for the purpose of providing for the expenses, maintenance and public exercise of a religion must be constituted in conformity with Article 5 and the following Articles of Title 1 of the law of July 1, 1901. Furthermore, they shall be subject to the provisions of the present law. 19. * * * The associations shall be able to receive, besides the subscriptions provided for by Article 6 of the Act of July 1, 1901, the proceeds from the collections for the expenses of the cult, and to receive remuneration for the ceremonies and religious services even by foundation; for the hiring of pews and seats; for the supply of things destined to funeral services in religious buildings and the decoration of such buildings. They shall be able to pay, without giving rise to a fiscal tax, the surplus of their receipts to other associations constituted with the same object. They shall not be able to receive, under whatever form it may be, subventions from the state, the departments and communes. * * * 20. Such associations may, within the forms provided for by Article 7 of the decree of August 16, 1901, constitute unions having a central administration and management. Such unions shall be governed by Article 18 and by the last five paragraphs of Article 19 of the present law. * * * 22. Associations and unions may employ their available resources for the creation of a general reserve fund sufficient to assure the expenses and maintenance of religion, but said fund cannot in any case receive any other destination; the amount of such general reserve can never receive a sum which shall be equal, for the unions and associations having more than 5,000 francs of income, to three times and, for other associations, to six times the average sum usually disbursed by each of them for the expenses of worship during the last preceding five years of its existence. Besides this general reserve fund, which must be invested in nominative securities, they may create a special reserve fund which must be deposited in money or in nominative securities with the 'Caisse des Depots et Consignations' (Government Deposit Bank) to be exclusively used, as well as the interests thereof, to the purchase, constructions, decoration

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or repairs of buildings or fixtures destined for the needs of the association or union.'

The Faculté de Théologie Protestante de Montauban is a superior school for the teaching of theology. Its purpose is to educate Protestant ministers of the gospel. It originated in the sixteenth century. From 1598 to 1659 it existed under the name of L'Academie Protestante de Montauban. It was transported to Puylaurens in 1659 and there existed until 1685 when it was returned to Montauban. Under the concordat entered into between Pius VII and the First Consul, July 15, 1801, and by decrees of 1808 and December 8, 1809, it was reconstituted by the French government. Since that decree it has been considered by the French jurisprudence as a public institution and it was supported by appropriations of funds from the budgets of the French government.

As appears from the testimony of the French attorney at law, 'before the law of December 9th, 1905, the faculty of Montauban was a public institution and a moral person; that is to say, it had a legal entity like a natural person, and therefore it had the capacity of acquiring property for a consideration * * * or gratuitously, * * * by gift or legacy. * * * It could act in justice and acquire property just the same as an individual person. * * * Therefore, I think the Faculty of Theology of Montauban corresponded to an American incorporated association.' Its character was religious; its business the teaching of theology; its purpose the training of its students for the profession of Protestant ministers of the gospel.

As such public institution it not only received government moneys, but its faculty and officers were appointed by the State. With all the other religious bodies which had since the concordat been so constituted and in receipt of public moneys, it was 'suppressed' by the law of December 9, 1905, as a public institution, and, therefore, separated from the French government. That is, it ceased to receive public moneys and the State authorities ceased to appoint its faculty and other officers. While it thus lost its official public character, it still exists in fact as a free faculty. The said law did not demolish said faculty and a decree of the president of the republic of June, 1907, acknowledged its existence de facto since it attributed

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its property to the Union Nationale. There has been no interruption in its existence. It has pay students and scholarship students, exactly as before the Separation Act; its course of instruction is the same and it has the same professors. It is located in the same place, has the same rooms, library and furniture. It remains identically the same organization as before the act with the exception that it has lost its public character.

This faculty accepted the law of 1905 and an association or union was formed under the law--The National Union of the Evangelical Reformed Churches of France. The French expert testified: 'It was not the intention of the law of Dec., 1905, to render impossible religious worship and the recruiting of ministers of the gospel. Therefore, in Title 4 it permitted the organization of cultual associations which were to take the place of the public establishments that were to disappear. The Union Nationale des Eglises Réformées Evangéliques de France is a union of cultual associations formed to administer Protestant religion in France. The organization of such unions was permitted in Art. 20 of the law of December 9th, 1905. * * * It originated in 1906 * * * by the union or amalgamation of several cultual associations. * * * After being duly declared it has a judicial capacity; that is to say, the capacity of suing and being sued, but its capacity of acquiring property is limited by Article 33 and the following articles of the decree of March 16th, 1906.'

By the decree it was provided: 'Article 1. There are attributed to the National Union of the Evangelical Reformed Churches of France with its special destination the personal property hereinafter designated which has belonged to the Faculty of Protestant Theology of Montauban suppressed from November 1st, 1906, in execution of the laws of December 9th, 1905, and July 20th, 1906, and to the Seminary connected with the said Faculty, to wit: 1. The funds in hand and the sums deposited at the Treasury. 2. The sums deposited at the Government Deposit Bank, and especially those coming from the Aurillon legacy (Decree May 23rd, 1883). 3. A certificate (nominative) of government stock 3%. Series 5th No. 558,267, amounting to Frs. 310 (Bequest of Marie Dupuy, wife of Guedon, and bequest Paul Guedon). 4. The collections and laboratory

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instruments, books, household furniture and other personal objects being in the premises occupied at the date of October 31st, 1906, by the Faculty of Theology and the Seminary connected therewith, excepting the books and personal objects which shall be, after inventory, recognized as belonging to the library of the University of Toulouse (Theological Department). Article II. The sums proceeding from the Aurillon bequest shall remain deposited at the Government Bank of Deposits. The loans to students, to which said bequest is destined, shall be made in conformity with the clauses of the Testament and in the conditions provided for by special regulations made by the National Union of the Evangelical Reformed Churches of France.'

The learned surrogate has held that 'The legatee named by the testatrix had, therefore, no capacity to take title to the legacy at the time of her death. Considered as a bequest in trust for the class of persons mentioned by the testatrix, to wit, poor young men, preferably ministers' sons, desiring to become ministers of the Gospel, for whose education the income of the fund was designed by her to support scholarships under the control of the faculty named in her will, it does not appear from any provision of French law submitted in evidence that the claimant has power to receive it as trustee for that purpose.' And, referring to the Union Nationale des Eglises Reformées Evangéliques de France, he said: 'There is no power given to the claimant, either by the said decree or by the Separation Act, so far as their provisions are in evidence, to take property by foundation, that is to say, by way of trust or other provision of a ...

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