South Carolina Lawyers Weekly
In a case involving property ownership in the aftermath of many parishes’ secession from the Episcopal Church in the United States of America (National Church), we interpret the five separate opinions entered in this court’s 2017 ruling on this case to determine that 14 parishes hold all their real and personal property in trust for the National Church. The remaining 15 parishes in this case did not create trusts under South Carolina law, and those 15 parishes retain ownership of their property.
Background
In the 1970’s, a dispute arose in the National Church over the ordination of women. One result of that dispute was the Dennis Canon: “All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains part of, and subject to this Church and its Constitution and Canons.”
In 1987, the Lower Diocese in South Carolina adopted, as its own canons, a version of the Dennis Canon (the Diocesan Canon).
In order to establish the existence of a trust under South Carolina law, the party claiming to benefit from the trust must prove, inter alia, (1) the party creating the trust took present actions – in writing – documenting both the creation of a trust and the placing of specified property in it and (2) the documents creating the trust indicate that the owner had the present intent for the writings to create a trust for the particular beneficiary.
After the National Church began ordinating gay priests, several South Carolina parishes withdrew from the National Church. At issue in our 2017 decision and again here is the question of who now owns these parishes’ property.
Parish Analysis
Trinity Episcopal Church, Pinopolis, appears not to have taken any action that could be argued to have created a trust.
Four other parishes did nothing more than to pledge or affirm, in their constitutions or bylaws, allegiance to the National Church and its teachings, or to acknowledge the National Church and the Lower Diocese’s religious authority. Without more, their promise to follow the religious teachings of the National Church and the Lower Diocese cannot deprive them of their ownership rights in their property.
The St. Helena Parish said it “pledges to adhere to the doctrine, discipline, and the worship” of the National Church and that any of its bylaws that “may be in conflict with the canons” of the National Church or the Lower Diocese “shall be considered null and void.” The use of the word “pledges” contemplates future action. This language does not show a present action necessary to create a trust, nor does it indicate the intent necessary to create a trust based on the Dennis Canon.
Five parishes said in their governing documents they were organized and/or operated pursuant to the canons of the National Church and the Lower Diocese. We view “organizing” and “operating” a church as different from, and not involving, the disposition of real estate by creating a trust.
St. Paul’s Episcopal Church of Bennettsville stated in its 2002 Articles of Incorporation not only that it was “organized under” the canons of the National Church and the Lower Diocese, but also that it was “subject to” the canons. The language “subject to” refers to future action, not the present action of the property owner that is necessary to satisfy the first element mentioned above.
Three parishes amended their constitutions or bylaws after the National Church adopted the Dennis Canon in 1979 to include phrases such as we agree “to be bound by” or “to conform to” the Canons of the National Church and the Lower Diocese. There is no specific reference to the Dennis Canon. These statements contemplate how a parish is going to act in the future. Future compliance with the Canons is not present action and does not indicate these Parishes had the present intent necessary to create a trust based on the Dennis Canon.
Nine parishes amended their constitutions or bylaws after the National Church adopted the Dennis Canon in 1979 and after the Lower Diocese adopted the Diocesan Canon in 1987 to include phrases such as we “adopt” or “accede to” the canons of the National Church and the Lower Diocese. The parishes that used this language took present action that created the trust the National Church and the Lower Diocese recited in their canons. These parishes’ actions satisfy the two elements described above.
Four parishes went further to recognize the Lower Diocese’s beneficial interest in their property. This recognition is additional evidence of these parishes’ intent to create a trust in favor of the National Church and its diocese.
Finally, St. James’ Church, James Island, recited a version of the Dennis Canon in its own constitution. Verbatim recitation of the Dennis Canon is clearly sufficient to create a trust.
Parish Analysis Summary
According to the five opinions of this court in its 2017 opinion, express accession to the Dennis Canon is sufficient to create a trust under South Carolina law. “Express accession” occurs under the 2017 Court’s collective ruling when the governing body of a parish states in an official document of the parish, such as a constitution or bylaws, that the parish “adopts” or “accedes to” the canons of the National Church, coupled with the parish’s knowledge of the Dennis Canon and participation in adopting the Diocesan Canon indicating the present intent to create a trust. The parish’s formal adoption of the constitutional provision or bylaw satisfies the writing and signature requirements of our trust law. Under these circumstances, the formal adoption of the document indicates the governing body of the parish took the action with the intent of complying with the National Church’s demand set forth in the Dennis Canon and thus intentionally created a trust. Under this analysis, we are satisfied that 14 parishes created a trust in favor of the National Church and its diocese by their “express accession to the Dennis Canon.” The remaining 15 Parishes, however, either did not take the necessary actions or did not have the requisite intent to create a trust under South Carolina trust law.
On the 2017 court, three justices would have held that the trusts in this case are irrevocable. We adhere to the votes those justices cast in 2017.
Moreover, three justices in 2017 decided the disassociated diocese (after separation from the National Church) and the Trustees of The Protestant Episcopal Church in South Carolina hold all of their real and personal property in trust for the benefit of the National Church and the associated diocese. We adhere today to the votes those justices cast in 2017.
Concurrence
(Beatty, C.J.) In 2017 I held the deciding vote. I did not vote to end the case in 2017. Rather, I intended to reserve final judgment as to each individual parish until the circuit court decided on remand whether each individual parish acceded to the Dennis Canon.
Concurrence
(James, J.) In my view, Justice Toal was correct in 2017—express accession to the Dennis Canon was not enough to create a real property trust under South Carolina law; however, that ship has sailed. Try as I might, I cannot disagree with Justice Few’s dissection of the 2017 opinions and his analysis of each parish’s real property; therefore, I reluctantly concur.
Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church 28095.pdf (sccourts.org) (Lawyers Weekly No. 010-018-22, 36 pp.) (John Few, J.) (Donald Beatty, C.J., & George James, J., concurring separately) Appealed from Dorchester County Circuit Court (Edgar Dickson, J.) Bert Glenn Utsey, Kathleen Chewning Barnes, Thomas Tisdale, Allan Holmes, David Booth Beers and Mary Kostel for appellant; Alan Runyan, William Bryan, Thomas Christian Davis, Albert Lacour, Charles Williams, Susan Pardue MacDonald, Mark Phillips, Peter Brandt Shelbourne, Pierce Campbell, James Kent Lehman, Mitchell Brown, Ivon Keith McCarty, Timothy O’Neill Lewis, Henry Grimball, Robert Horger, Allan Poe Sloan, Andrew Spencer Platte, Thornwell Sowell, Bess Jones DuRant, William Foster Gaillard, Joseph Wilson, David Spence Cox, William Scott, Harry Roberson Easterling, Mark Evans, Francis Marion Mack, David Marvel, David DeVane, Henrietta Golding and John Furman Wall for respondents. S.C. S. Ct.
