Germain v. Baltes

Mr. Chief Justice Scholfield delivered the opinion of the Court: The will of Catharine Agnes Germain is as follows: “In the name of God, Amen. I, Catharine Agnes Germain, being infirm of body but of sound and disposing mind and memory, and being especially desirous to aid, as far as I can, in the erection and maintenance of an orphan asylum in the city of Belleville, in the State of Illinois, do make and ordain this my last will and testament. I give and bequeath and devise unto the Right-Reverend Peter Joseph Baltes, Roman Catholic Bishop of Alton, in his individual capacity, upon the trusts and for the uses and purposes hereinafter mentioned, all my real estate and personal property of which I may die seized, or in or to which, at the time of my death, I may have any right, title or interest. I direct that the said Baltes shall, upon the request of the St. Peter’s Roman Catholic Congregation of said city of Belleville, sell all of said property, either at public or private sale, as he may deem best, and apply the proceeds of such sale to the erection or maintenance, or both, of an orphan asylum in said city of Belleville, under the direction of and as requested by said congregation. I appoint the said Peter Joseph Baltes executor of this my last will and testament, and direct that no bond be required of him as such executor. “Signed by me and sealed with my seal' this 14th day of May, A. D. 1879. We held in St. Peter’s Roman Catholic Congregation v. Germain, 104 Ill. 440, that a grant of land in excess of ten acres in quantity, to a religious society, is, under section 42, chapter 32, of the Revised Statutes of 1874, absolutely void; and counsel for plaintiffs in error contend that the same doctrine is applicable to this devise, and renders it void, likewise. This, as we conceive, is a clear misapprehension of the character of this devise. The purpose of the statute in prohibiting religious societies from owning and holding lands beyond ten acres in quantity, is, very clearly, to prevent lands being tied up in the hands of corporations, and to leave them free to pass by conveyances, as the wants and conveniences of society may demand. But this devise is not to a corporation, but to a natural person,—Peter Joseph Baltes,—in his individual capacity. The land is not to be kept for the benefit of a corporation, but is to be sold and conveyed by him, and thus, instead of being tied up, it is to pass, as soon as it conveniently may, into other hands, and is therefore as free to barter, sale and conveyance as any land possibly can be. There is nothing in any statute upon our statute book, of which we are aware, that prevents an individual from giving his property to charity, if he shall desire to so dispose of it. He may certainly sell his property, convert it into money, and give the money to charity, and if he may do this, it is impossible to conceive why he may not place it in the hands of a trustee to do the same thing. The only thing that is prohibited, is the owning by the corporation of more than ten acres of land. Under a "well settled rule of construction, the devise, here, in favor of the charity, is to be regarded as a devise of money, and not of land. Baker v. Copenbarger et al. 15 Ill. 103. It is not claimed, and can not be, that this devise, as one to charity, apart from the question just considered, can not be upheld under our law. The reverse is settled law. Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 id. 223. See, also, Perry on Trusts, (1st ed.) secs. 692, 693, et seq., and notes. The decree is affirmed. Decree affirmed.