COLUMBIA LIBRARIES OFFSITE AVERY FINE ARTS RESTRICTED AR01491300 STATE OF NEW-YORK. No. 181. IN ASSEMBLY, April 17, 1843, REPORT Of the select committee on the memorial of the French Benevolent Society of the city of New- York. .Mr. Daly, from the select committee to whom had been referred the memorial of the French Benevolent Society of the city of New- York, praying for the passage of an act vesting in them the proceeds of an estate bequeathed by Lewis Sacombe to the poor of the French com- munity of the city of New-York, and the remonstrance againstthe same, REPORTS : That it is set forth by the memorialists, that Lewis Sacombe, a native of France, died at Maracaibo, in the island of Surinam, about the year 1 742, leaving a will whereby he bequeathed ; 11 the "goods moveable or immovable, gold, silver, and outstanding claims," he possessed in the city of New-York, to the poor of the French community of that city, directing his executor therein named to sell the same, and pay over the proceeds thereof to the poor funds of the French community of said city. That after the death of Sacombe, the executor, in accordance with the provision of the will, sold all his personal effects in the city of New- York, and paid over the proceeds to the trustees, or some other persons having the management and control of the French Protestant Church Du St. Esprit, a congregation of French Protestants then and still wor- shipping in the city of New-York. [Assembly, No. 181.] 1 [Assembly That a part of the property of Sacombe consisted of a lot of land, situated in the county of Kings, and now in the city of Brooklyn, which land was never sold by the executor ; but that the said congregation, in a manner unknown to the memorialists, obtained possession of the same shortly after the death of Sacombe, and have held it from that lime to the present, deriving an annual rent therefrom; and that neither the pro- ceeds derived from the sale of the effects of Sacombe by his executor, nor the annnal rent derived from the said lot of land, have ever been applied by the said congregation to the charitable purposes intended by the testator ; but that the same has been placed from time to lime in the treasury of the said church, and devoted in common with its other funds, to religious purposes. The memorialists contend, that from the whole tenor of the will, it is evident that it was the intention of the testator to devote his property for the benefit of the French poor of New-York, without distinction of creed ; that it cannot be inferred from any thing in the will itself, that he intended to make even the French poor of any particular sect the recipients of his bounty ; that the feeling by which he was go- verned, was a national and not a religious one ; and that if he intended to distinguish between one religious sect of his countrymen and the rest, he would have so expressed it. They therefore regard the ab- sorption of this fund by the religious congregation Du St. Esprit, as a conversion to sectarian purposes, of that which was designed for the poor ; and conceive it to be the duty of the Legislature to direct by act of law, that the same be applied to the benevolent purpose the testator originally intended. The memorialists further set forth, that they were incorporated by the Legislature of this State, in the year 1819, by the title of "The French Benevolent Society," for the purpose of affording " relief and succor to poor French people in the city of New-York ;" and that they have carried out the objects of their incorporation, by distributing year- ly, bread, fuel, clothing and other necessaries, to the French poor of said city, in addition to maintaining a free school for the education of children ; that the society is sustained exclusively by the voluntary contributions of its members, which, during the past year, exceeded in amount $6,000, the greater portion of which has been expended in charily ; that they are the only body, society or incorporation in the city of New-York, devoted to the relief of indigent natives of France; AVERY ARCHITECTURAL AND FINE ARTS LIBRARY Gift of Seymour B. Durst Old York Library No. 181.] 3 and they therefore ask for the passage of an act vesting in them the title to the bequest of Sacombe, as the legitimate representatives of the poor of the French community of New-York. The present value of this property they are unable to set forth. They have not been able to discover what amount was paid in by the executor of Sacombe, to the treasury of the Church Du St. Esprit, but they estimate the value of the lot of land in Brooklyn at ten thou- sand dollars. The will of Sacombe, a certified copy of which is now before the com- mittee, is written in the Dutch language ; and the remonstrants differ with the petitioners, as to the correct translation of the passage by which this legacy was bequeathed. The passage, as translated by them, is rendered as follows : " This testator bequeaths to the poor of the French congregation of the cily of New-York, all such estate as the testator possesses in that place, real or personal, gold or silver, coined or uncoined, outstanding pretentions further nothing excepted, lying under the administration of the testator's attorney, James Tavieres, being at New-York ; which effects the testator desires shall be sold and made into money, by his hereinafter to be named executor, in order to be lodged in the chest of the poor of the French congregation of New-York." The word which is translated community by the petitioners, is here rendered congregation ; and the passage pointing out where the money shall be deposited, is given by the petitioners, " the poor fund of the French community^' and by the passage above quoted, the chest of the poor of the French congregation. If the translation of this portion of the will by the remonstrants be the correct one, then it would seem that the disposition made by the executor of the bequest was in ac- cordance with the intention of the testator. At the death of Sacombe, the congregation of the church Du St. Esprit was the only French con- gregation worshipping in the city of New-York ; and the remonstrants set forth that at that lime, and from thence to the present day, there has always been maintained in said church a fund for charitable purposes, known in the old French huguenot churches as the " Tronc des Pau- vi es,'' (Trunk of the Poor,) or Caisse des Pauvres, (Chest of the Poor.) The committee are unable to determine positively which of these translations is correct. Both translations of the original will are at- 4 [Assembly tested. The one presented by the remonstrants appears to have been translated by Brandt Schuyler, in the year 1750, eight years after the date of the will ; and that exhibited on the part of the memorialists, to have been translated within the present year. From the late period at which this subject was brought before the Legislature, the committee have been unable to procure a translation of the disputed passage at the hands of a disinterested proficient in the Dutch language ; in the absence of which they have resorted to the standard lexicographers who have ren- dered that language into English, for the true interpretation of the more important words it contains. In Buys Volkomen Woordenboek der En- gelsche en Nederduitsche, the Dutch word ' gemeenle? the word in the original will, translated by the respective parties 'community,' 1 ' congre- gation 1 ? is rendered " community, church ;" and the word cassa? as found in the original, 1 de Arme Cassa der Franse gemeente,' translated by the memorialists " funds" and by the remonstrants ' chest,' is not to be found in the works of any lexicographer of the Dutch language they have been enabled to obtain. The committee are strongly induced to believe that the word ge- meente, like many words in our own language, is susceptible of either signification — congregation or community ; and that when used in con- nection with the word cassa in the same sentence, it is intended to im- ply a congregation. Cassa, with the exception of a single letter, re- sembles the French word caissa (chest) ; and from t he circumstance of its not being found in Dutch dictionaries, the committee are disposed to believe that it was put down and mispelled by the notary who drew the will, as received from the lips of the testator, who probably used it as a specific term to designate an institution with which he was familiar, the " Caisse des Pauvres," of huguenot churches. Nothing reliable has been laid before the committee of the personal history of Sacombe. It does not appear whether he was a Protes- tant or a Catholic. It is contended on the part of the memorialists, that the will affords the presumption that he was the latter, from the fact that he there makes a bequest to a relative residing in a catholic city in France, but the supposition is far more tenable that he was one of the body of huguenots that emigrated from Rochelle, after the revocation of the edict of Nanlz, to the city of New- York, and founded the church du St. Esprit. In the will he makes a bequest in the same words, " Arrnen der franse gemeente," of his property in the city of Boston ; at which place there was also, at the date of the will, a congre- gation of French proteslants or huguenots, similar to that in New- No. 181.] 5 York. Boston and New-York were the principal places in the northern colonies where the exiled huguenots settled. In the former they erect- ed a place of worship as early as 1686, the year of their emigration, the congregation of which kept together until the year 1748, when, in consequence of the disuse of the French language among them, and from the fact that most of the descendants of the original founders had become connected with other congregations, the church was sold to a body of dissenting protestants who retained it until 1788, when it be- came a Roman Caiholic Church. (See Collections of the Massachu- setts Historical Society for 1794, vol. 3, page 264.) The Church du St. Esprit was founded in the latter city in the year 1704. (Smith's History of New-York, Appendix, vol. 1, page 261.) These facts would raise a very strong presumption that he was connected with these religious exiles, and that he was desirous of devoting after his death that part of his property remaining in (he cities where they had located, to be distributed among the poor of a sect with whom he had suffered religious persecution. According to the remonstrants, the records of the church do not show what amount was received from Sacombe's executor, nor the man- ner in which it was obtained. The early records of this church were se- verely mutilated and the greater part destroyed while the city of New- York was in the possession of the British troops during the war of the revolution. The lot in Brooklyn appears to have belonged to Sacombe in 1 742, but there are no deeds upon record. It has been in the posses- sion of the Congregation du St. Esprit about ninety years, but the manner in which they obtained it, whether by conveyance from the executors or otherwise, does not now appear. 'This, however, would not afford a sufficient presumption to shake the validity of their title ; for the recording of deeds in this State is but of comparatively recent origin. Prior to its introduction, instruments of conveyance were kept in the possession of the parties interested ; and if the church had been in possession of any written evidence of title, the supposition is not jmprubable that it may have been either lost or destroyed during the troubles of the revolution. In the absence, therefore, of any positive evidence of the manner in which the church obtained the bequest of Sacombe, it is most reason- able to presume, at this remote period of time, that it was obtained through his executor, acting under the will ; and it is not unreasonable to suppose that that executor had some knowledge of his religious faith 6 [Assembly and personal history. It appears by the will, that at the time it was drawn, he was the testator's attorney, residing in the city of New-York, and having the charge of all his property at that place. The name of the executor would imply that he was a countryman ; and that taken in connection with the important trust reposed in him by the testator, would render it not improbable that he was an acquaintance. It is true that it is a common circumstance for a person situated like Sacombe, to have an agent in charge of his property residing abroad, with whom he might be personally unacquainted. But he was the owner in fee of land in the immediate vicinity of New-York, a circumstance that would lead to the inference that at some time before the making of the will, he was a resident of that city ; for it is scarcely to be presumed that at that early period a Frenchman, residing at the distant island of Suri- nam, would invest his property in real estate in Brooklyn. In fact the circumstance of his being the owner of this land, would not only lead to the conviction that he was a resident of New-York, and personally acquainted with his attorney and subsequent executor, but it would materially strengthen the supposition that he was a huguenot. The committee are not now informed, nor had they the time, at this late period of the session, to ascertain what were the conditions upon which the exiled huguenots were permitted to hold land in the Colony of New-York. They settled at Staten-Island, at the city of New- York, and founded, in its immediate vicinity, a village named after their native city, New-Rochelle. Not being subjects to the crown of Great Britain, they could not hold land under the colonial government, except by a direct grant from the governor and council, or colonial legisla- ture. Such being ihe fact, and the date of this will being but about forty years after the settlement of the huguenots in New-York, the conclusion is almost irresistible that Sacombe was one of their num- ber ; and that he held this land by a direct grant of the colonial legis- lature, as a huguenot. Whatever equities might exist as to the per- sonal property deposited by the executor with the congregation Du St. Esprit, none could apply to this real estate. It has been in the undistur- bed possession of this church, under color of title, for nearly a century, and no court of law would disturb it; and the committee are disposed to think, that every presumption arising from the case as submitted to them, would lead to the conclusion, that if any personal property was placed by the executor in the charitable fund of this church, he acted , No. 181.1 7 by so placing it, in conformity whh the obvious requirements of the will. Whatever disposition the Legislature might feel to secure by posi- tive enactment the proper application of a fund bequeathed for charita- ble purposes, the facts presented in this case are not of a character to warrant so unusual an act of legislation. The powers conferred by the existing laws of this State upon the Court of Chancery, are sufficiently ample to meet the equities of this case, did it present all that the me- morialists contend for. It has been urged before the committee on the part of the memori- alists, that if the disposition of the bequest by the executor was the correct one, nevertheless the church had forfeited all right to it, having changed from the Calvinistic to the Episcopal form of worship since the death of Sacombe, and that it therefore becomes the duty of the State to make a different disposition of it. This fact rests solely on the assertion of the memorialists, and is denied by the remonstrants. But were it true, it would be difficult to discover how a circumstance like this could confer upon the State a right to interfere with the pro- perty. Where a congregation differs as to the propriety of respective modes of worship, and it becomes necessary for them to separate, a court of equity may determine which of the parties in difference is en- titled to the possession of the common property ; but where a whole congregation change their form of worship, it would be assuming too much to say that by that act they forfeited all right to their former pro- perty, and that it became vested thereafter in the State. The State has nothing to do with the particular form of worship of any congre- gation, nor with its right to change it. Their properly is incident to them as an association of individuals, and whatever form of worship they mutually agree upon, is a matter belonging to themselves. Where a fund is bequeathed to them for charitable purposes, upon the condi- tion of their continuance in a particular form of worship, their right to retain it might be questioned upon their changing that form ; but such was not the nature of the bequest of Sacombe. His bounty was be- stowed upon the poor of the French congregation, and he annexed no condition that they should continue Calvinists. That congregation con- tinues to the present day, though their form of worship may have un- dergone changes. They had the power the moment they received this fund, to have distributed the whole of it among their poor ; and if they saw fit, on the contrary, to invest it, devoting the interest, or but part » [Assembly of the principal to that object, it can scarcely be presumed that the pow- er they originally possessed has become 'abrogated or diminished after the lapse of a century by reason of any changes in their form of wor- ship. The committee, in conclusion, would reiterate the opinion already expressed, that there is nothing in this case that would justify legislative action. The title to the lot of land is fixed in the remonstrants by lapse of time. If any other property of Sacombe has ever been re- ceived by the church, contrary to the intention of the testator, a court of equity is the proper tribunal for the parties aggrieved to appeal to. The committee suppose that if this fund was bequeathed to the poor of the French community of New-York, a bill in equity would lie at the complaint of any indigent native of France residing in that city. At all events it would be a most extraordinary act of legislation to vest a title to property under a disputed or uncertain state of facts in any society, however benevolent or praiseworthy its object ; and the com- mittee therefore recommend the adoption of the following resolution : Resolved, That the prayer of the memorialists be denied. SEYMOUR DURST AVEP^