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November 22, 1948

ROBERDS et al.
MARKHAM et al.

The opinion of the court was delivered by: HOLTZOFF

The essential facts are not in dispute. Sidney Virginia Douglas was a member of the congregation of the Methodist Episcopal Church, of which her son-in-law was pastor. She conveyed to the trustees of the church the property located at the corner of 11th and H Streets, Northeast, in the District of Columbia, on which the church was situated. The church then became known as the Douglas Memorial Methodist Church. The conveyance was in fee simple. It contained the following additional provisions:

 'In trust that said premises shall be used, kept and maintained, as a place of divine worship for the use of the ministry and membership of the Methodist Episcopal Church in the United States of America and to be known as 'The Douglas Memorial Methodist Episcopal Church' of the City of Washington in the District of Columbia, subject to the discipline, usage and ministerial appointments of said Methodist Episcopal Church as from time to time authorized and declared by the general conference of said church and the annual conference within whose bounds the said premises are situate.

 'Provided However, that when the said premises shall cease to be used, kept and maintained as aforesaid as a place of worship for the ministry and membership of the said Methodist Episcopal Church that the same shall revert to the said party hereto of the first part, her heirs and assigns, and further that the Memorial Tablet now in said church shall be permitted to remain there or in any new church that may be erected on the site thereof.'

 The trustees of the church have found that the character of the neighborhood has drastically changed in the course of years. Originally it consisted mostly of dwelling houses. Today the section is largely of a commercial character. Vehicular traffic has greatly increased and has brought a great deal of noise in its wake. Many members of the congregation have moved away from the locality and have scattered among different places in the city and its environs. For these reasons, the trustees desire to sell the church property, and with the proceeds to erect another church in a more suitable section of the city. To this end, they, in effect, request an adjudication that they may convey title in fee simple free of the trust.

 On its face the deed appears to create a fee simple estate subject to termination on the occurrence of a specified contingency. Qualified, determinable, or defeasible fees were known at common law and are recognized in the District of Columbia, Cowell v. Springs Co., 100 U.S. 55, 25 L. Ed. 547; D.C. Code (1940) Title 45, Section 803. *fn1"

 The conveyance is in trust to use the premises as a place of divine worship for the use of the Methodist Episcopal Church. A gift of property in trust for religious purposes is a valid charitable trust. Thus, Restatement of the Law of Trusts, Section 371, states that 'a trust for the advancement of religion is charitable.' It expressly enumerates a trust to build or maintain a church building among examples of charitable trusts. In Smith v. Gardiner, 36 App.D.C. 485, it was held that a gift for the use of a specified religious organization and a gift to a specified church were valid as charitable trusts. Somewhat similar gifts have been held to be valid charitable trusts, such as a grant for the maintenance of a burial ground, Hopkins v. Grimshaw, 165 U.S. 342, 352, 17 S. Ct. 401, 41 L. Ed. 739; a gift for a hospital, Ould v. Washington Hospital, 95 U.S. 303, 24 L. Ed. 450; Graff v. Wallace, 59 App.D.C. 64, 32 F.2d 960; a grant for a home for indigent persons, Shoemaker v. American Security & Trust Co., 82 U.S.App.D.C. 270, 163 F.2d 585; and a gift for building and maintaining an art museum, Noel v. Olds, 78 U.S.App.0d.c. 155, 158, 138 F.2d 581. Indubitably, therefore, the conveyance in the instant case created a valid charitable trust. One vital consequence of this conclusion is that the rule against perpetuities is inapplicable to an interest or estate arising after the termination of the trust.

 The trust is coupled with a limitation that when the premises shall cease to be used, kept and maintained as a place of worship for the ministry and members of the Methodist Episcopal church, it shall revert to the grantor, her heirs and assigns. There is a further provision that the memorial tablet then in the church should be permitted to remain there, or in any new church that might be erected on the site thereof. A scrutiny of these two provisions inescapably leads to the conclusion that they create a possibility of reverter to the grantor and her heirs in the event that the premises shall cease to be used for the purposes of the charitable trust.

 It is argued that an application of the doctrine of cy pres would make it possible for the court to authorize the trustees to sell the property and use the proceeds for building and maintaining another church in a different locality, if changes in conditions make it impracticable or undesirable to continue the maintenance of the church at its present location. The doctrine of judicial cy pres is recognized in the District of Columbia, Noel v. Olds, 78 U.S.App.D.C. 155, 160, 138 F.2d 581. The question to be determined is whether it may be properly invoked in this case.

 In President and Fellows of Harvard College v. Jewett, 6 Cir., 11 F.2d 119, 122, the Court stated:

 'The cy pres doctrine can only be invoked in furtherance of the intent and purpose of the donor of the trust as near as may be, and not in disregard of the express terms of the grant or devise.'

 In First Congregational Society v. Bridgeport, 99 Conn. 22, 121 A. 77, the court construed a conveyance in trust for a church. The deed contained a provision that if the society to which the grant was made should cease to support the exercises of religion on the property, the property should be held in trust for such inhabitants of the town as might associate together for the purpose of maintaining public worship on the property. The Court declined to permit a sale of the property and the use of the proceeds for the erection of a church elsewhere, in spite of the fact that the change of conditions made such a course desirable from the standpoint of the congregation. The court made the following observations, 99 pages 34, 35, 37, 121 page 81:

 'If the grant of land be in trust for a charity, and no condition of reverter be coupled with the trust, and no provision be found in the grant forbidding it, the court may, if conditions have changed, in a suitable case order a sale of the land either under its general equity power or under the statute. * * * But, if the trust be coupled with a condition that the estate shall revert if the trust be breached, the court is without power to order a sale even though the conditions have so far changed as to make it impossible to continue to carry out the intention of the donor. * * * Even though the grant of land in trust and for a charitable purpose contained a provision of reverter if the use of the land granted was incident to the main purpose of the grantor -- the establishment of the charity -- the land is not of the essence of the charity, so that the court could properly order a sale if it found the land was no longer available or less available for the use for which the grantor had intended it.

 'No public benefit, no increased beneficence, no advantage to religious activity can justify a court in making over the wills or contracts of men in the conviction that changed conditions make this, if not necessary, at least highly desirable. These grantors have in the exercise of their right under the law determined the conditions of their grant and provided for such a reversion as they desired. We cannot remake their grant, nor can we by a process of construction interpret it to mean something other than that intended by the grantors. The power of the court to decree a sale of property ...

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