Hamsher v. Hamsher

Mr. Justice Magruder delivered the opinion of the Court r The appellees in this case make many points, some of which may be stated as follows: first, that the appellant has not and never can have a vested interest in the lands in controversy,, but that the title, possession and control of the interest claimed by him is vested in the executors and remains there until after his death: second, that appellant is not a tenant in common with appellee Anna Hamsher, the widow of the deceased, and therefore not entitled to the partition prayed for in his cross- ! hill, but that the widow, as owner in fee of one half of the lands by virtue of her renunciation and election, and the executors, sis being vested with the title in fee of the other half by oper- : ation of the will, are tenants in common and the only parties , entitled to partition: third, that the right of the Board of Directors of the Young Men’s Christian Association of Decatur to receive and hold so much of the real estate devised by item-11 of the will, as exceeds in quantity ten acres, can only be-called in question by the State in a direct proceeding: fourth, . that the appellant, by accepting the bequest of $600.00 per year i to himself during his life, is estopped from setting up any right . of his own that will defeat the full effect and operation of every j part of the will: fifth, that “The Young Men’s Christian Association of Decatur, Illinois,” does not come within that class of ;religious corporations, which are forbidden by our statute to-receive by devise more than ten acres of land, including land already held. As the view, which we take of the fifth and last point, disposes of the material issues involved in the cause, we do not deem it necessary to decide either of the other positions taken-by counsel for appellees. David F. Hamsher died testate, leaving no child or descendants of a child. His surviving wife, Anna Hamsher, by reason of her renunciation and election under sections 11,12 and 13-of the dower Act, is entitled to take one half of all the real and personal estate, subject to the payment of debts. The-theory of the cross-bill, filed by the appellant in the court below, is, that item 11 of the will attempts to devise to “The-Young Men’s Christian Association of Decatur, Illinois,” 160 acres of land, reduced by such renunciation and election of' the widow to an undivided one half of 160 acres of land; that such devise is void under section 42 of our Act concerning corporations,1 which is hereinafter set forth; that, by reason of' the void character of the devise, the land embraced in it must be regarded as intestate estate, and belongs to the appellant,, as the father and sole surviving heir of the deceased testator.. Assuming the contention of the appellant to be correct, that the will devises to the Association in question land exceeding-ten acres in quantity, including that already held by the Association, we are brought to the consideration of the question whether or'not the Association can hold the land so devised- Section 42 of the “Act concerning corporations,” approved April 18, 1872, in force July 1, 1872, (Starr & C. Ann. Stat.. page 623) is as follows: “Any corporation that may be formed for religious purposes under this Act, or under any law of this-State for the incorporation of religious societies, may receive, by gift, devise or purchase, land not exceeding in quantity (including that already held by such corporation) ten acres, and. may erect or build thereon such houses, buildings or other improvements as it may deem necessary for the convenience and comfort of such congregation, church or society, and may lay out and maintain thereon a burying ground; but no such property shall be used except in the manner expressed in the ■ gift, grant or devise, or, if no use or trust is so expressed, except for the benefit of the church, congregation or society for which it was intended.” From an examination of the sections, which precede, and of those, which follow, section 42, it becomes manifest that the corporations, intended to be designated by the latter section, are those churches, congregations or societies, which are organized for the purposes of “religious worship.” Sections from 29 to 34 inclusive of the Act have reference to “corporations not for pecuniary profit,” providing for the mode of their organization,- defining the nature and extent of their powers, specifying the methods of electing their trustees, of effecting their dissolution, of distributing their property, of changing their articles of association, etc. Sections from 35 to 46 inclusive have reference to “religious corporations.” Section 35 begins as follows: “The foregoing provisions shall not apply to any religious corporations; but any church, congregation or society, formed for the purpose of religious toorship, may become incorporated in the manner following, towit The mode of organizing such a religious corporation is essentially different from that prescribed for organizing a corporation “not for pecuniary profit.” In the latter case, three or more persons, desiring “to associate themselves fof any lawful purpose, other than for pecuniary profit,” make a certificate stating the name of the association, its business, the objects of its formation, the number and names of its trustees, managers or directors, etc., and file such certificate with the Secretary of State, who thereupon issues a certificate of organization, etc. But in the organization of the religious corporations referred to in the statute, the church, congregation or society holds a meeting and elects or appoints two or more of its members “as trustees, wardens and vestrymen,” etc., and adopts a corporate name; and, where the chairman or secretary of the meeting has made and filed in the recorder’s office of the county an affidavit as to the holding of such meeting and its action as aforesaid, the body politic and corporate is created. The words, “such congregation, church or society,” as used in sections 36, 41, 42 and 48, refer back to section 35, where "the “church, congregation or society” intended to be designated is described as being “formed for the purpose of religious worship.” The view here expressed has been adopted by the Supreme Court of the United States. In Gilmer v. Stone, 120 U. S. 586, that Court had occasion to construe the section 42 now under consideration, and Mr. Justice Harlan, in delivering the opinion in that case, uses the following language: “The counsel for the plaintiff in error seem to lay stress upon the more general words, “formed for religious purposes,” in the 42d section of the act; but manifestly the other parts of the same section, and previous sections, show that the only corporations intended to be restricted in the ownership of land to ten acres, were those formed for the purpose of “religious worship,” and not organizations commonly called benevolent or missionary societies.” It now becomes necessary to inquire whether or not “The Young Men’s Christian Association of Decatur, Illinois” is a corporation organized for the purposes of “religious worship.” If it is not such a corporation, then the legislature, whether wisely or unwisely, has failed to place any restriction upon its receiving by “gift, devise or purchase” a quantity of land greater than ten acres. The best evidence of the purposes of its formation is the declaration of such purposes as found in its charter, or articles of association. These articles are made a part of the cross-bill and attached thereto as an exhibit. They consist of a certificate in writing made, signed and acknowledged as required by section 29 of the corporation Act, and of a certificate of organization issued by the Secretary of State in accordance-with section 30 of that Act. From the very nature of these-articles, it is apparent that The Young Men’s Christian Association of Decatur, Illinois, was organized as a corporation “not for pecuniary profit.” If it had been organized under the act as a “religious corporation, ” the evidence of its incorporation would not be such articles, of .association as are above-described, but would be'the affidavit, or a certified copy thereof, mentioned in sections 35 and 36. We agree with counsel for appellant, that a corporation, whose purpose is to engage in “religious worship, ” cannot circumvent the statutory restriction of its ownership of land to ten acres by effecting its organization under the sections in relation to “corporations not for pecuniary profit.” Hence its character is to he determined not so much by the mode of its formation, as by the object and pmposes of its formation. The written certificate filed with the Secretary of State states, among other things, that “the name,of such corporation is ‘The Young Men’s Christian Association of Decatur, Illinois the object for which it is formed is to promote growth in grace and Christian fellowship among its members, and aggressive Christian work especially by and for young men, and to seek out and aid the worthy poor; the management of the aforesaid Association shall be vested in a Board of Directors, consisting of the officers of said Association and one active member from each religious denomination represented in said Association, who are to be elected annually.” It is manifest from the provision thus made for the composition of the board of directors, that the Association is not under the control of one religious denomination, but is made up of representatives from a number of such denominations, while the corporation, which is forbidden by section 42 to receive more than ten acres of ground, is one which embodies the ideas and principles of a single religious or ecclesiastical •organization. The written certificate-of the Association does not state in ■express terms that it is formed “for the purpose of religious worship,” nor can we say that the objects of its formation as ■declared in such certificate are necessarily the equivalents of •certain forms of religious worship. Webster defines worship to be “the act of paying honors to the Supreme Being: religious reverence and homage: adoration paid to God, or a Being. viewed as God.” The Association in question seems, however, to contemplate a practical missionary and benevolent work, not only among its own members, but among the young and the poor who may need help outside of its membership. The object, for which it was formed, according to the description ■of such object in its articles of association, does not approach so nearly the definition of “religious worship,” as do the announced objects of the two societies mentioned in Gilmer v. Stone, supra. There, it appeared that a Board of Foreign Missions was formed “for the purpose of establishing and conducting Christian missions among the unevangelized or pagan nations and the general diffusion of Christianity,” and that a Board of Home Missions had for its object “to assist in sustaining the preaching of' the Gospel in feeble churches,” etc., . and “to superintend the whole of home missions in the behalf” ■ of certain churches, and “to receive * * * and disburse • * * * funds „ * * * for home missionary purposes”; and it was there held that neither of said Boards was “a church, • congregation or society formed for the purpose of religious worship.” It does not appear, that “The Young Men’s Christian Association of Decatur, Illinois” exercises'any ecclesiastical control ■ over its members, or prescribes any form of worship for them, ■or subjects those, who fail to conform to its rules, to ecclesiastical discipline. Therefore, a limitation upon the extent of ;its ownership of real estate is not so imperatively demanded by those considerations of public policy, which apply to corpo-rations formed for the purpose of religious worship. We are of the opinion that said Association is not subject to the restriction contained in section .42 of the Corporation Act, and that the devise to it of a greater quantity of land than ten acres is not invalid. It follows, that the appellant takes nothing as heir, and that his cross-bill was properly dismissed. Counsel for appellant claim, that, even if the Association was properly organized as a corporation “not for pecuniary - profit, ” it can only take and hold so much real estate as is necessary for the purposes of its organization, and that the will gives it more land than it needs for such purposes. By section 31 of the Corporation Act, corporations “not for pecuniary profit” are made capable, in law; “of taking, purchasing, holding and disposing of real and personal estate for purposes of their organization.” Such corporations are thus clothed with the capacity of holding real estate. If The Young Men’s Christian Association of Decatur “has exceeded in extent its power of holding real estate, appellant, we conceive, cannot take advantage of the fact.” (Alexander v. Tolleston Club, 110 Ill. 65.) Where a corporation may, for some purposes, acquire and hold the title to real- estate, it cannot be made a question by any party, except the State, whether the real estate has been acquired for the authorized uses or not. (Hayward v. Davidson, 41 Ind. 214). There being capacity to purchase or to receive by devise, whether the corporation, in so purchasing or receiving, exceeds its power is a question between it and the State, and does not concern appellant. (Dillon on Mun. Corp. sec. 444). We perceive no error in the record. The judgment of the Circuit Court is affirmed. Judgment affirmed.