2005-191, CLAIRE BERTHIAUME & a. v. JOHN B. MCCORMACK, ROMAN CATHOLIC BISHOP OF MANCHESTER

No. 2005-191 Hillsborough-southern judicial district

Church in Nashua, appeal the order of the Superior Court (Groff the former St. Francis Xavier parish (St. Francis Xavier) of the Roman Catholic

Jeanne Daigle, Theresa Santerre, Rita Bonner, Francis J. Bonner, John C. in his capacity as the Roman Catholic Bishop of Manchester, a corporation sole BRODERICK, C.J. The petitioners, Claire Berthiaume, Robert Daigle,

, of Nashua (Randall E. Wilbert, of Manchester (Ovide M. Lamontagne

their claims against the respondent, John B. McCormack (Bishop McCormack), page is: http://www.courts.state.nh.us/supreme., J.) dismissing a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

respondent. and Jonathan M. Shirley on the brief, and Mr. Lamontagne orally), for the Devine, Millimet & Branch, P.A.

Mary Lynn Roedel on the brief, and Mr. Wilbert orally), for the petitioners. Law Offices of Randall E. Wilbert and Errors may be reported by E-mail at the following address:

errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as value and significance were removed by the diocese and transferred to the

p. 2 St. Francis Xavier church was closed in March 2003, and all items of religious church as the place of worship for the three united parish communities. The Stanislaus and St. Francis Xavier, and designated the St. Aloysius of Gonzaga

parishes. Id

form one territorial parish. In doing so, he suppressed the parishes of St.

Bradley or would subsequently be conveyed to the Diocese of Manchester or its and responsibilities with respect to property that had been conveyed to Bishop corporation sole. Laws 1901, ch. 232. The statute created the RCBM’s powers

Stanislaus, St. Francis Xavier, and St. Aloysius of Gonzaga would be united to recommendations, Bishop McCormack decreed that the parishes of St. parishioners. On March 1, 2003, consistent with the task force

the legislature created the Roman Catholic Bishop of Manchester as a

resources in the face of a declining number of priests and inner city

Diocese of the Roman Catholic Church and not by Bishop Bradley personally, To make clear that this and other property was owned by the Manchester

[the] Jackson Co. its successors or assigns.”

Roman Catholic Church to fulfill its mission in Nashua while also managing its In 2001, Bishop McCormack formed a task force to study ways for the

buildings and the land on which they sit are the subject of this litigation.

upon default of any of the conditions, the land would “immediately revert to

and in 1945, they paid off the construction debt on both structures. These five

and never for any other use or purpose whatever.” The deed provided that, public religious resort and for public religious and pious uses and purposes, three years; and (3) that the land always “be used and occupied as a place of

constructed on the property. The parishioners continued to make donations, parishioners. Between 1918 and 1920, a school and a convent were until 1918, the parish’s debts were paid through donations from its

Bishop rebuild “a like church edifice designed for a similar purpose” within

Francis Xavier church was completed. From the founding of St. Francis Xavier

conveyance; (2) that if that church were destroyed by a fire or otherwise, the church edifice suited to public religious use” within two years of the conditions contained in the deed: (1) that the Bishop build “a substantial

the property conveyed by the Jackson Company, and in 1889, the present St. In May 1886, a small brick chapel and wood frame rectory were built on

.

of Manchester, Denis Bradley. The conveyance was made upon three express

Company, a textile manufacturer, deeded certain land in Nashua to the Bishop founded by the Diocese of Manchester. In July of that year, the Jackson The record supports the following. In 1885, St. Francis Xavier was

p. 3 that by closing the St. Francis Xavier church and selling the land and

relationship with the St. Francis Xavier parishioners.” They further argued

the Diocese of Manchester, the Diocese [had] a confidential and fiduciary contributions made by the St. Francis Xavier parishioners to the parish and to that, “[b]y paying for the construction of the parish church and by the

RCBM from “conveying the church for a non-religious use.” Third, they alleged

restrictions in the 1885 deed were in full force and effect and prohibited the trust for the use and benefit of its parishioners. Second, they argued that the statutory trust that obligated the RCBM to hold St. Francis Xavier property in

Laws 1901, chapter 232 (chapter 232), which created the RCBM, established a

and addressed the petitioners’ action. First, the petitioners contended that With the probate court matter resolved, the superior court lifted the stay

the RCBM’s requested ruling, allowing the sale to proceed.

charitable trusts, assented to the sale of the property, the probate court issued

Jackson Company’s successor and the Attorney General, as director of standing and accordingly denied their motion. No appeal was taken. After the arguments. The probate court subsequently ruled that the petitioners lacked

both objected to the intervention and responded to the petitioners’ substantive

various arguments why the proposed sale should not be allowed. The RCBM The petitioners attempted to intervene in the probate court, making

Pending a ruling, the superior court proceedings were stayed.

a ruling that the proposed sale was permitted by the 1885 deed restrictions. The RCBM then filed suit in the Hillsborough County Probate Court requesting property for public religious purposes as required by the original 1885 deed.

$1,000,000 and the Armenian Orthodox Church agreed to continue to use the

the property to the Armenian Orthodox Church. The purchaser agreed to pay

sale agreement for the land and buildings with an individual who agreed to give During the pendency of that litigation, the RCBM signed a purchase and

joined.

subsequently removed as a petitioner and the remaining six petitioners were court seeking to prohibit a sale of the property. The Foundation was April 2004, the Foundation and four of the petitioners filed suit in the superior

Nashua. The RCBM, however, decided to sell the property to someone else. In

$17,901.11, the amount of the outstanding real estate taxes owed to the City of 2004, the Foundation proposed to purchase the land and buildings for buildings at issue, or the ability to operate and to manage them. In February

of the petitioners, for the purpose of receiving a conveyance of the land and

(Foundation) was organized by St. Francis Xavier parishioners, including some In November 2002, the St. Francis Xavier Church Foundation

were unified, the petitioners were members of St. Francis Xavier. newly expanded St. Aloysius of Gonzaga parish. At the time the three parishes that the probate court proceedings were “res

p. 4 virtue of their status as beneficiaries under the statutory trust,” it concluded

petitioners could seek to prevent [a sale in violation of the deed’s provisions] by prohibited the sale of the property, the superior court held that, although “the On the petitioners’ second claim, that the 1885 deed restrictions

Amendment would prohibit it from taking jurisdiction. the Bishop’s fiduciary duty to the members of the parish,” the First two other parishes, and to determine whether that conduct [was] a breach of

Bishop’s right to suppress the St. Francis Xavier Parish and to unite it with the

court ruled that, “to the extent[ ] the petitioners [sought] to challenge the the superior court had jurisdiction to hear the case. However, the superior also created a statutory trust with the parishioners as beneficiaries, and thus

This appeal followed.

first claim, it ruled that the statute creating the RCBM as a corporation sole The superior court granted the motion to dismiss. On the petitioners’

each claim against the petitioners, the superior court dismissed the petition.

trust. petitioners had not alleged sufficient facts to support a claim for a constructive

to a statutory trust also applied to a constructive one. Having thus resolved exists.” It also ruled that the same First Amendment restrictions that applied there is no basis for [its] imposition . . . because an actual statutory trust

and redistribution of their property. Finally, the RCBM argued that the

petitioners met the requirements for the imposition of a constructive trust,

that Amendment because the dispute involved the reorganization of parishes and that the superior court could not resolve this litigation without violating Constitution prohibited courts from examining church doctrines and policies,

superior court determined that, “even were the Court to find that the On the final claim requesting imposition of a constructive trust, the 4 three unified parishes.

provisions. The RCBM further argued that the First Amendment to the Federal

available, let alone available for a purpose other than for the benefit of the was premature as the sale had not yet been completed and there were no funds Further, it ruled that any claim that the proceeds of the sale would be misused

deed restrictions was within the exclusive jurisdiction of the probate court, and The RCBM moved to dismiss, arguing that the enforcement of the 1885

Foundation “all title, right and interest to the real estate.” order their continued maintenance, or to order the RCBM to deed to the beneficiaries, and to either prohibit the sale of the land and buildings and

constructive trust upon the RCBM with the St. Francis Xavier parishioners as enriched. Accordingly, they petitioned the superior court to impose a p. 5 Berry v. Watchtower Bible & Tract Soc.

that tests the facts in the complaint against the applicable law. facts in the plaintiff’s favor. We then engage in a threshold inquiry true, and we construe all reasonable inferences drawn from those

recovery. We assume all facts pleaded in the plaintiff’s writ are

are reasonably susceptible of a construction that would permit

is to ascertain whether the allegations pleaded in the plaintiff’s writ In reviewing the trial court’s grant of a motion to dismiss, our task

RCBM’s motion to dismiss.

standard of review. The superior court disposed of this case by granting the We begin our review of the issues with a discussion of the proper

ruling, the petitioners lost their right to challenge it. interest they might have had, and that by not appealing the probate court

that the Attorney General as director of charitable trusts represented any

probate court properly determined that the petitioners did not have standing,

bound by its determination in the superior court. The RCBM argues that the they were denied standing to intervene in the probate court, they cannot be superior court actions were not identical. They further argue that, because

religious purpose, the petitioners argue that the issues in the probate and

(applicability of res judicata is question of law). is question of law); Innie v. W & R, Inc., 116 N.H. 315, 315-16 (1976) of law); State v. Bortner, 150 N.H. 504, 510 (2004) (constitutionality of statute Town of Pelham, 152 N.H. 114, 116 (2005) (interpretation of statute is question 775 (2004) (interpretation of deed is question of law); Woodview Dev. Corp. v. law that are reviewed de novo. See Motion Motors v. Berwick, 150 N.H. 771, and citations omitted). The issues raised by the petitioners involve questions of

claim that the RCBM was prohibited from conveying the property for a non- As to whether the probate court proceedings were res judicata on their

arguments on appeal as it did in the trial court.

involving churches. For its part, the RCBM makes substantially the same neutral principles test to give courts the ability to resolve property disputes their claims, arguing that the United States Supreme Court has allowed a

and the Uniform Trust Code, see the statute designating the RCBM as a corporation sole, Laws 1901, ch. 232, violated its duties and powers as trustee of parish property as defined in both

They also contend that the First Amendment does not prohibit adjudication of

statutory trust, they argue that by attempting to sell the property, the RCBM The petitioners appeal only their first and second claims. As to the p. 6 Id

purely ecclesiastical concern.

religious doctrine and of implicating secular interests in matters of hazards are ever present of inhibiting the free development of controversies in order to adjudicate the property dispute, the

doctrine and practice. If civil courts undertake to resolve such

polity, and practice.” Jones civil courts completely from entanglement in questions of religious doctrine, and property law familiar to lawyers and judges. It thereby promises to free

adjudicating a church property dispute.” p. 6 Id internal organization of the Roman Catholic Church. See on the resolution by civil courts of controversies over religious parishes without entangling itself in matters of doctrine, discipline, faith, or

“The method relies exclusively on objective, well-established concepts of trust

602. the definitive manner in which a neutral principles analysis must occur. p. 6 Id. at require that such a test be adopted or that the test as articulated in Jones be

constitutionally entitled to adopt neutral principles of law as a means of plainly jeopardized when church property litigation is made to turn, 443 U.S. at 603. It then held “that a State is property dispute brought about by Bishop McCormack’s suppression of the which property is awarded. But First Amendment values are disputes, which can be applied without “establishing” churches to

with the neutral principles approach to property disputes involving churches. In Jones, the Supreme Court outlined various advantages associated

602. Sharpsburg Ch., 396 U.S. 367, 368 (1970) (per curiam); Jones, 443 U.S. at Diocese v. Milivojevich, 426 U.S. 696, 709 (1976); Md. & Va. Churches v.

its jurisdiction in this case, we must determine whether it could resolve the . Thus, in order to decide whether the superior court too narrowly construed there are neutral principles of law, developed for use in all property

controversies over church doctrine and practice.” Presbyterian Church v. Hull

church property can be determined conclusively.” Jones v. Wolf property disputes, and in providing a civil forum where the ownership of “The State has an obvious and legitimate interest in the peaceful resolution of opening their doors to disputes involving church property. And Civil courts do not inhibit free exercise of religion merely by

As the United States Supreme Court has noted: carefully examine disputes that involve religious organizations. See id. at 449. Church, 393 U.S. 440, 445 (1969). It is for these reasons that courts must

602 (1979). “Special problems arise, however, when these disputes implicate

at all, issues raised when a church is involved in a dispute over its property. We first address whether the First Amendment allows courts to review, if p. 7 We recognize that the United States Supreme Court in Jones

by a civil court.

polity governing such property. Id

a trust.” Id them to the new, unified St. Aloysius of Gonzaga parish, may not be reviewed in determining whether [they indicate] that the parties have intended to create scrutinize [them] in purely secular terms, and not to rely on religious precepts

examine certain religious documents, such as a church constitution.” Jones recognized the problems that may arise when civil courts are required “to documents do not contain any provisions describing church property and the

promote confusion than understanding.” Id precepts. Attempting to read them ‘in purely secular terms’ is more likely to

property in question. The RCBM further contends that these actions, documents, the Supreme Court merely advised courts to “take special care to such documents, the dissent concluded that the better rule was that of McCormack authority to suppress St. Francis Xavier, as well as to sell the

stated that the First Amendment does not mandate such a test. Indeed, it The dissent explained the problems that could arise if the church’s governing

constitutional documents of churches tend to be drawn in terms of religious

. The four dissenting justices in Jones observed, “The

443 U.S. at 604. But instead of prohibiting courts from examining church property. The RCBM, on the other hand, argues that Canon Law gave Bishop,

the deeds to the property in question.” Antioch Temple, Inc. v. Parekh the test put forth by the petitioners. However, as noted, that Court explicitly so far as they pertain to the ownership and control of church property; and (c) approved of constitutions and by-laws of the religious organizations involved, especially in us to join Massachusetts in adopting the neutral principles test as articulated

disputes. See

requiring that the Church defer to civil courts on disputes over Church and parishioners, as defining whether Church property may be sold, and as Church as defining certain obligations that bishops and priests owe to parishes

. The petitioners read the Canon Law of the Roman Catholic

governing the holding of property by religious corporations; (b) the be given to a church’s own interpretation of its governing documents, they urge Although the petitioners do not articulate what deference, if any, should

id. at 1346.

not necessarily defer to the rulings of church tribunals on matters of property went on to state that, “as a matter of Federal constitutional law,” courts need Congregational Church, 808 N.E.2d 301, 306-09 (Mass. 2004). That court N.E.2d 1337, 1345-46 (Mass. 1981), overruled in part by Callahan v. First

doctrine, the court may examine such sources as (a) statutory provisions resolution of a church property dispute involves no inquiry into religious stated, “Under the ‘neutral principles of law’ analysis, as long as a State court’s Jones. Relying upon Jones, the Massachusetts Supreme Judicial Court has Some States have adopted the neutral principles test as articulated in p. 8 Id

provides for. cognizance, subject only to such appeals as the organism itself

p. 8 Id

impermissible inquiry into church polity.” rule would appear to require “a searching and therefore

that those decisions should be binding in all cases of ecclesiastical

control would be ambiguous . . . . In such cases, the suggested

tribunals for the decision of questions arising among themselves, the essence of these religious unions, and of their right to establish could appeal to the secular courts and have them reversed. It is of

task would not prove to be difficult. But in others, the locus of has ultimate control over church property. In some cases, this administration of a church to determine which unit of government

such religious bodies, if any one aggrieved by one of their decisions

civil courts would always be required to examine the polity and in resolving church property disputes, even where no issue of doctrinal reason, it did not require “a rule of compulsory deference to religious authority . at 605 (quoting Serbian Orthodox Diocese, 426 U.S. at 723). For this

would be a vain consent and would lead to the total subversion of

however, believed that under the dissent’s reading of Watson, case. Jones, 443 U.S. at 616-20 (Powell, J., dissenting). The majority, 426 U.S. at 710-15, the Jones dissent concluded that it should govern that (1952); Presbyterian Church, 393 U.S. at 447-48; Serbian Orthodox Diocese, several times, see Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 110-16 Because the Watson rule of deference has subsequently been reaffirmed consent to this government, and are bound to submit to it. But it . at 729. All who unite themselves to such a body do so with an implied

church documents:

hierarchical, the court would defer to the decision of the hierarchy. p. 8 Id church is congregational, a majority of members would govern; but if it were

restraints.” p. 8 Id under the protection of the law, and the actions of their members subject to its charitable purposes, and their rights of property, or of contract, are equally

The Court explained why a deferential rule should govern the interpretation of

associations should govern internal disputes over church property: if the

. at 714. Accordingly, the Court held that the law of voluntary

in the same attitude as other voluntary associations for benevolent or In Watson, the Court stated that “[r]eligious organizations come before us

(1871). p. 8 Id. at 610-20. deference adopted by the Supreme Court in Watson v. Jones, 80 U.S. 679 patent or latent ambiguity. See

p. 9 law which should decide the case, to one which is less so.

parties’ intent only if the language of the relevant documents contains either evidence and the circumstances surrounding a conveyance to determine the property disputes generally. In resolving such disputes, we consider extrinsic would therefore be an appeal from the more learned tribunal in the This holding is consistent with our rules governing the resolution of

Reardon bodies as the ablest men in each are in reference to their own. It competent in the ecclesiastical law and religious faith of all these pronouncements regarding the proper interpretation of those documents. It is not to be supposed that the judges of the civil courts can be as opinion as to what level of deference should be given to church provisions governing the use or disposal of church property. We reserve our

superior court requesting that the court construe their employment contracts.

Court in Watson when it stated: such as church constitutions and by-laws, even when such documents contain 740 (1990). Our holding also properly reflects the statement of the Supreme (1994); Quality Discount Market Corp. v. Laconia Planning Bd., 132 N.H. 734,

left it to the States to “adopt any In light of these cases, and due to the fact that the Supreme Court has them. Believing they were improperly dismissed, the nuns filed suit in the parochial school that he was recommending that the school board not rehire document or pronouncement that might involve doctrine or policy. Manchester notified four nuns working as teachers and the principal of a

employment case. Id it unclear which party should prevail will we consider religious documents, documents such as trusts, deeds, and statutes. Only if these documents leave , 443 U.S. at 602 (quotation omitted), we will first consider only secular property disputes so long as it involves no consideration of doctrinal matters,”

examine the Canon Law of the Roman Catholic Church, or any other religious consider in applying it. There, the superintendent of schools for the Diocese of Id. at 1051 (King, C.J., concurring specially). Accordingly, we had no need to concurrence, “[T]his is basically a simple case of an alleged breach of contract.”

examining the employment contracts just as we would have in any other Applying a neutral principles test, we resolved that dispute simply by

, 122 N.H. at 1045-46.

122 N.H. 1042 (1982), we did not define what kinds of documents we would Although we adopted a neutral principles test in Reardon v. Lemoyne,

documents such as deeds and trusts in addition to church documents. controversy is involved.” Id. Thus, it allowed courts to consider secular p. 10 The deed conveys the land to “Dennis [sic

deed and other provisions of chapter 232. issue here are parish property. To determine this we must consider the 1885 parishioners. Thus, the issue before us is whether the land and buildings at

property must be held for the use and benefit of the parish and its We agree that the plain language of the statute demonstrates that parish

the benefit of the parishioners.

Francis Xavier, and therefore the RCBM had a duty to hold them in trust for

The petitioners argue that the land and buildings were the property of St.

benefit of such parish.

instrument mentioned to the Roman Catholic Bishop of satisfy debts and obligations incurred and created for the use and

giving, granting, devising, or bequeathing the property in such to be only liable and subject to a mortgage or pledge to secure or

terms of it and the limitations thereof shall prevail, as conveying, other parish within the diocese; the property of each parish thereof unless the contrary clearly appears from the instrument, when the property of any parish for the debts, or other obligations, of any Denis M. Bradley, Bishop of Manchester . . . shall be construed, RCBM] shall not convey by mortgage, or otherwise pledge, the

(Emphasis added.) Section 6 then immediately begins, “It is also

and bequests heretofore made, of property within this state, to . . . for the use and benefit of the members of such parish; and [the provided” that the RCBM holds “in trust, the property of each parish.”

instrument, and to any limitations governing said trust. Manchester. . . subject to any trust expressed in any said

All gifts, grants, deeds, and conveyances, and also all devises as holding, in trust, the property of each parish, in said diocese, It is also hereby provided that [the RCBM] shall be regarded Manchester.” Section 5 of chapter 232 states, in relevant part: with respect to the land and buildings at issue:] M. Bradley, Bishop of

that section 6 of chapter 232 governs the RCBM’s rights and responsibilities to the interpretation of the statutes and deeds involved. The petitioners argue Having outlined the contours of our neutral principles test, we now turn

choose to avoid any perception of entanglement, where possible.

may consider religious documents, where it did not require such a result, we Watson, 80 U.S. at 729. Although the Supreme Court has since held that we p. 11 See

the vestry. purpose, or if made by the church wardens without the consent of the church, or a committee of the church appointed for that

as interpreted by this court. Having performed de

the same if made by the trustees or deacons without the consent of

land is defined, not by the parties to a dispute, but by the deeds and statutes and buildings as St. Francis Xavier property. That notwithstanding, title to We recognize that the RCBM as well as the parishioners refer to the land

No conveyance of the lands of a church shall be effectual to pass

individual who would give it to the Armenian Orthodox Church. requirements were not met by the sale of the property from the RCBM to the buildings from the RCBM to St. Francis Xavier. Nor do they allege that these

of the deed. Indeed, in RSA 306:7 (2005) the legislature has determined: Xavier, nor have the petitioners alleged any such conveyance or interpretation

not alleged that these requirements were met in order to convey the land and

directly, or by Bishop Bradley or any of his successors as RCBM to St. Francis

Manchester.”

respective churches, or to the poor of their churches”). The petitioners have

or in the record to suggest that the property was conveyed to the parish clearly appears from the instrument.” We find nothing on the face of the deed expressly makes property thus conveyed that of the RCBM “unless the contrary the RCBM holds legal title [to the land in question] for the Diocese of

of real or personal estate, made either to them and their successors, or to their the purpose of taking and holding in succession grants and donations, whether other similar officers of churches or religious societies” as “bodies corporate for

buildings qualify as section 5 property and not section 6 property. Section 5 reasoning, the probate court reached the same conclusion when it ruled “that and not to St. Francis Xavier. We also note that, although it did not provide its documents, we hold that the 1885 deed conveyed this property to the RCBM,

. . . .”); RSA 306:4 (2005) (recognizing “trustees, deacons, church wardens or

Bradley, and not to the St. Francis Xavier parish, we hold that the land and Where the 1885 deed expressly conveyed the property at issue to Bishop

the parish and its parishioners.

may be necessary to take, hold, manage and use the donation, gift or grant unincorporated religious society, such society shall be a corporation so far as also RSA 306:3 (2005) (“If a donation, gift or grant is made to any

property has the additional limitation of being used for the express benefit of any trust expressed in any instrument of conveyance. However, parish are subject to the limitations contained in section 2 of chapter 232 as well as

of property — property of the RCBM and property of individual parishes. Both (Emphasis added.) The plain language of the statute defines two different types p. 12 RCBM the power to “manage and

RCBM’s powers under chapter 232. Section 2, however, expressly gives the

The petitioners seek to prohibit the sale of the property as a violation of the

money. estate by deed absolute, or by mortgage to secure payment of

of this state and to the terms of such trusts, to convey the said

by law govern any such trust, with full power, subject to the laws RCBM. conveyance of any such estate, . . . with such limitations as may terms of any trust set forth in any bequest, devise, deed, or

chapter 232 in Akscyn v. Bank

church building, the title to which

donated funds should have been in the name of an entity other than the Roman Catholic church, subject to the laws of this state and to the Id

the RCBM and not St. Francis Xavier is consistent with our interpretation of 12 Our holding that the land and buildings at issue here are the property of

interests as parishioners of St. Francis Xavier. trust or condition that it was to be used only for the purchase of a It is claimed the money, or portions of it, was given upon the

arose that they had not been used for the intended purpose. We stated: here, both cases turn on whether title to land and buildings purchased with . at 200 (emphasis added). While the issue there was slightly different from the religious, charitable, educational, and burial purposes of the every description, . . . and to manage and dispose of the same for by sale gift, lease, devise, or otherwise, real and personal estate of purpose. nor the bishop are [sic] authorized to use the money for another this be so, it is apparent that neither the committee, the society name of the St. Cassimer Roman Catholic Society of Nashua. If

contrary to the interests of the Roman Catholic Church, but only against their

N.H. at 199. The funds were then donated to the RCBM, and an allegation church accommodations for [a] Lithuanian Catholic congregation.” Akscyn, 78 been established to raise money in trust for the purpose of “the securing of [The RCBM] shall be empowered to receive, take, and hold,, 78 N.H. 196 (1916). There, a foundation had

(Emphasis added.) The petitioners do not argue that the RCBM has acted charitable, educational, and burial purposes of the Roman Catholic [C]hurch.”

and powers with respect to RCBM property. Section 2 defines those powers: petitioners have standing to ensure that the RCBM properly exercises its duties

232. Because they are members of the Manchester Diocese, we hold that the This is not to say that the petitioners have no recourse under chapter in making its decision, we reach the same conclusion. Having engaged in de p. 13 Although the superior court appears to have considered the Canon Law

8 of RSA chapter 564-B.

constitute a violation of the RCBM’s duties under either chapter 232 or article

hold that the proposed sale of the land and buildings in this case does not We need not define the precise scope of the RCBM’s duties. We simply

disposal of RCBM property.

terms, and as discussed above, section 2 of chapter 232 expressly allows the authorizes a trustee to manage trust property in accordance with the trust’s benefit of the Roman Catholic Church. Section 8-801 of RSA chapter 564-B

would prohibit a sale of the property, so long as the proceeds are used for the

B:8-801. The petitioners point to nothing in the Uniform Trust Code that interests of the beneficiaries, and in accordance with this chapter.” RSA 564good faith, in accordance with [the trust’s] terms and purposes and the

“administer, invest and manage the trust and distribute the trust property in

defined under article 8 of RSA chapter 564-B. Trustees are required to We reach the same result analyzing the RCBM’s responsibilities as

under section 6 of chapter 232.

that the buildings, like the land, belong to the RCBM and not to the parish

that title to the land and buildings is in separate entities. We therefore hold give them the relief they seek, we do not address that issue. RCBM and not to St. Francis Xavier. Furthermore, there are no allegations that the monetary donations created a separate, constructive trust that would Section 5 of chapter 232 makes clear that such a conveyance is to the As the petitioners do not appeal whether facts in the writ support a claim

petitioners, see

built as a condition of the transfer to Bishop Bradley. it relates to the statutory trust and the RCBM’s duties as trustee. the RCBM. Indeed, the 1885 deed itself specifically references that a church be properly granted. Accordingly, we affirm the dismissal by the superior court as on the condition that they become property of the parish rather than that of Berry, 152 N.H. at 410, we hold that the motion to dismiss was writ, and construing all reasonable inferences from them in favor of the grant of the motion to dismiss. Assuming the truth of all facts contained in the interpretations of the statutes and deed, we now turn to the superior court’s novo review of the applicability of the First Amendment, as well as the

donations, although clearly marked for a specific use, were to pay for buildings

chapter 232 and not section 5. However, there is no evidence that the the buildings are St. Francis Xavier property, and thus governed by section 6 of order to pay for the buildings at issue. We read their arguments as stating that

St. Francis Xavier parishioners to the parish and the Manchester Diocese in The petitioners urge us to consider the fact that donations were made by also

p. 14 This was exactly the issue before the probate court. That the petitioners were

religious use. thereby limit the respondents from conveying the church for a nondetermine that said restrictions are in full force and effect and

By this Petition, the petitioners are requesting the Court to

restrictions on the use of the property. The [1885] deed by the Jackson Company . . . contain[s] RCBM in both actions. litigate issues related to the deed restrictions, something challenged by the petitioners declared:

courts. Thus the issue precluded is whether the petitioners had standing to (Citation omitted.) We disagree. In paragraphs 36 and 37 of their petition, the

the trust by selling the St. Francis property.

standing to enforce the deed restrictions in both the superior and probate intervene in the probate court matter, the petitioners raised the issue of their the superior court to enforce the deed restrictions, and then attempting to Laws 1901 was violating its fiduciary duties to the beneficiaries of

parties to that case. We need not reach that issue, however, because by asking RCBM as trustee of the statutory trust created by New Hampshire

they were denied standing in the probate court action and therefore were not appellants sought a ruling from the Superior Court on whether the deed restrictions were the same in both cases, preclusion cannot take effect as and therefore, it was not before the Superior Court. Rather, the 14 The petitioners next argue that, even if the claims to enforce the 1885 raised by the appellants in their Petition for Declaratory Judgment

The issue of the deed restrictions was not an argument deed restrictions prohibited the proposed sale of the property. fact that they petitioned the superior court for a determination that the 1885 arguing that the RCBM violated its duties as trustee does not change the

litigation involving the same cause of action. Eastern Marine Const. Corp. v. court of competent jurisdiction is conclusive upon the parties in a subsequent

superior and probate courts were not identical. The petitioners claim: On appeal, the petitioners argue first that the causes of action in the

sale. The essence of the doctrine of res judicata is that a final judgment by a

First Southern Leasing, 129 N.H. 270, 273 (1987).

the restrictions of the 1885 deed should be construed to prohibit the proposed The final issue is whether res judicata bars the petitioners’ claims that

to the petitioners’ second claim. Accordingly, we affirm on that issue as well.

different issue than the superior court, we reach the same result with respect again in the superior court. Although we would apply res judicata to a slightly the probate court and lost, the petitioners are barred from bringing the action

case. Our holding here simply recognizes that, having litigated that issue in

determination, as the petitioners did not appeal the denial of standing in that We make no statements as to the propriety of the probate court

claims regarding the enforcement of the deed restrictions in the superior court.

petitioners’ standing, we hold that the petitioners were precluded from raising and that the probate court proceeding had reached finality on the issue of the superior court. Given that the parties and the standing issue were identical,

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

question of the petitioners’ standing to enforce the deed restrictions in the

challenge that determination on appeal. The same parties then reargued the argued the merits of the standing issue, and the petitioners chose not to enforce the 1885 deed restrictions. This ruling was made after the parties The probate court held that the petitioners did not have standing to