Alden v. St. Peter's Parish

Mr. Justice Carter delivered the opinion of the court: The trial court found that the defendant society was not a corporation, and did not come within the provisions of the statute prohibiting corporations formed for religious worship from holding more than ten acres of land, and found also that the condition in the first deed conveying the lots in question for church purposes only had not been broken by the renting of such lots and using-the rents for church purposes. After a careful consideration of the evidence, and the law applicable thereto, we are satisfied that the case was correctly decided by the learned chancellor in the circuit court. It has been repeatedly held by this court that the statute of 43 Elizabeth (chap. 4) is in force in this State, and that gifts to charitable uses are, by force of that statute, excluded from the operation of the rule against perpetuities. (Heuser v. Harris, 42 Ill. 425; Andrews v. Andrews, 110 id. 223; Crerar v. Williams, 145 id. 625.) It is. also established that a gift for the support of churches, or to pay the expense of preaching any particular religious doctrine, comes within the equity, and therefore within the spirit, of that statute, as a gift for a charitable use. (Andrews v. Andrews, supra; Crerar v. Williams, supra; Hunt v. Fowler, 121 Ill. 269.) It is true that the questions presented for decision by this record, so far as they (or those of a kindred nature) have heretofore come before this court for consideration, have arisen under wills, and not deeds. But we do not understand the counsel for appellants to insist that the deeds in question are void on the ground that, being made to the officers of an unincorporated society in trust for such society or its members or directly to such unincorporated society, there was no grantee capable, in law, of taking by deed. If the grant were not one made as a gift for a charitable or pious use, and so not brought within the saving provisions of the statute of 43 Elizabeth, it might be contended that the deeds would be void for want of a grantee capable of taking. (German Land Association v. Scholler, 10 Minn. 331.) But we are of the opinion, conceding that the religious society in question was not incorporated, that the conveyances were made to the rector, church wardens and vestrymen of the society in their official capacity, in trust for a designated charitable and pious use, and are within the provisions of the statute in question, and are not void for want of a grantee capable of taking by deed, but will be upheld and enforced in equity, unless rendered invalid upon other grounds urged by counsel and referred to below. Judd v. Woodbury, 2 Root, (Conn.) 298; 20 Am. & Eng. Ency. of Law, 804; Ferraria v. Vasconcelles, 31 Ill. 25. The conveyances in question were made to the rector, church wardens and vestrymen of this unincorporated religious society, the one conveying the one hundred and sixty acres being “upon the express condition and trust that the rents, issues and profits be devoted to and used for the payment, so far as it may go, of the salary of the rectors of said parish forever,” and the other, conveying the lots, being upon condition that they were to be used for church purposes only. Both were given for the consideration of love and affection for the church and parish. It is clear that these conveyances constituted a gift in trust for a charitable use. (Ferraria v. Vasconcelles, 23 Ill. 403, and 31 id. 25; 20 Am. & Eng. Ency. of Law, 805-809.) And in such a case a court of equity will be inclined to lend its aid in carrying out the purpose of the donor and to give effect to the trust, if it can be done consistently with existing laws. The questions so far considered have been so often and so uniformly decided that we deem any further discussion of them, and citation of authority in support of the position here assumed, unnecessary. It is, however, contended,—and this is the principal question in the case,—that this society should be held to be an incorporated church or religious society under the laws of this State, or if it be not held to be a corporation, still, inasmuch as incorporated religious societies are, by the statute, prohibited from taking or holding more than ten (now twenty) acres of land, that on the grounds of public policy the prohibition must extend to all such societies, whether incorporated or not. In support of the first branch of this contention it is said, that by the statute in relation to the incorporation of religious societies in force at the time of the organization of the church, in 1856, viz., the act of 1845, chapter 25, page 120, (see 1 Adams & Durham’s Real Estate Statutes, p. 342,) it was made the duty of the society, or its trustees, to make and file with the recorder of deeds the certificate required by section 45 of that act, and thus become incorporated; and it is further said, that because of the destruction of one of the early records of the church, and also one of the early • records of DeKalb county, it is left uncertain whether the duty imposed by the statute was performed or not, and that the presumption must be indulged that the duty imposed by the statute was performed, the law complied with, the certificate made and filed, and the society thus duly incorporated. It is, however, evident that the statute in question did not make it obligatory upon all.voluntary religious societies to become incorporated, but merely prescribed the mode by which they might incorporate, and there being no evidence that this society ever took any of the steps prescribed by the statute to become incorporated, or that it ever assumed to act as a corporation, it would be carrying the doctrine of presumptive evidence too far to presume such incorporation. It is a matter of common knowledge that there have been in existence in this State many such unincorporated societies, and so far as the evidence discloses this was one of them. In Ferraria v. Vasconcelles, supra, where this court held that the steps, taken in attempting to incorporate a religious society under the act of 1845 were insufficient to create a corporation, Mr. Justice Walker said (p. 406): “The statute must be at least substantially complied with in its provisions, and all of its, express requirements must be observed. We have no power to dispense with such requirements and render illegal acts valid and binding. It is not within the province of the court to question the propriety of such requirements when imposed by the legislature, and in this case they are few, simple and easily performed. But whether they are the most salutary is. not a question which we can consider. They have been imposed as a condition to the organization of these corporations, and must be performed before corporate rights-can attach. And this is expressly declared to be the legislative will by the latter clause of the 49th section.”' The contention that public policy requires that the statutory limitation on the power to take and hold real estate should be imposed on these unincorporated religious societies by judicial decree, is, we think, equally untenable. Upon becoming incorporated certain legal rights are acquired and certain burdens assumed, as provided by the statute. Without incorporating, these societies cannot exercise these rights that pertain to corporations, and they ought not to be required to assume the corresponding burdens,—at least unless the statute so directs. As pointed out in Ferraria v. Vasconcelles, supra, and other cases, there are marked distinctions in the powers, property rights and duties of the two kinds of organizations. (Robertson v. Bullions, 11 N. Y. 243.) There are many corporations closely allied to these church organizations which have been held not subject to the ten-acre limitation, yet it might, as reasonably as here, be contended that public policy requires that they be included in what is usually denominated religious corporations, or corporations organized for religious worship. (Hamsher v. Hamsher, 132 Ill. 273; Gilmer v. Stone, 120 U. S. 586; Germain v. Baltes, 113 Ill. 29.) In Andrews v. Andrews, supra, it was urged that public policy requires that the value as well as the number of acres should be limited, but it was there said that it was “a sufficient answer to say the statute has authorized such bodies to acquire and hold not exceeding ten acres of land, without any limit as to value or income.” Yet ten acres of land in some parts of the State might not be of much value, while in a large city it would be worth many millions. It is for the law-making power to determine what the limit shall be and upon what bodies it shall be imposed, and unless that power imposes on unincorporated religious societies the same restrictions it has placed upon those becoming incorporated, it is not within the province of the courts to do so. The decree of the circuit court will be affirmed. Decree affirmed.