Maas v. Sisters of Mercy

Anderson, J., delivered the opinion of the court. This was a contest of the last will and testament of C. Gr. Maas by appellant, his widow, Mrs. Buby C. Maas, instituted by her in the chancery court of Warren county against appellee Sisters of Mercy of Vicksburg and Misses Daly, Phelan, and Stevens, three of the members of said society, résiduary devisees and legatees under the fifth item of said will. There was a trial on pleadings and proof, and decree rendered in favor of appellees from which decree appellant prosecutes this appeal. C. Gr. Maas died testate, leaving as his sole heir at law his widow, appellant Mrs. Buby 0. Maas. After providing for the payment of his debts and certain specific-bequests in the first four items of his. will, he undertook — 512 — to dispose of the residue of his estate in item 5 in the following language: “Item 5. All the rest and residue of my estate, real, personal and mixed, I give and devise, in equal shares, unto Miss Emma Daly, Miss Annie Phelan and Miss Laura Stevens, who are members of the order, known as “Sisters of Mercy,” in Vicksburg, Mississippi; but on the death of the first of them, her share shall go and survive to the remaining two, and on the death of the second of them, her share shall go to the last survivor, or remaining one of them, in fee simple forever. “Let it be distinctly known and understood that the bequest and devise to these ladies is to them individually, and not to them as members of the Sisters of Mercy, or for the use and benefit of the Sisters of Mercy, or any other charitable or religious corporation or association. The bequest and devise is absolute to the ladies named. “Item 6. I desire that my executor shall execute a bond in a surety company authorized to do business in the state of Mississippi, and that he shall make report of his actions hereunder to the chancery court of Warren county, Mississippi. “Item 7. I hereby nominate, constitute and appoint my friend, John Brunini, the executor of this, my last will and testament.” Appellant contends that item 5 of said will is void because violative of the Mortmain Statutes of this state, sections 5090-and 5091, Code of 1906 (sections 3378 and 3379, Hemingway’s Code), which statutes are rescripts of sections 269 and 270 of the Constitution. Said statutes follow: “3378. Every devise or bequest of lands, tenements, or hereditaments, or any interest therein, or freehold or less than freehold, either present or future, vested or contingent, or of any money directed to be raised by the sale thereof, contained in any last will and testament, or codicil, or other testamentary writing, in favor of any religious or ecclesiastical corporation, sole or aggregate, — 513 — or any religions or ecclesiastical society, or to any religions denomination or association of persons, or to any person or body politic, in trust, either express or implied, secret or resulting, either for the use and benefit of such religious corporation, society, denomination, or association, or for the purpose of being given or appropriated to charitable uses or purposes, shall be null and void, and the heir at law shall take the property so devised or bequeathed, as though no testamentary disposition had been made. “3379. Eivery legacy, gift, or bequest, of money or personal property, or of any interest, benefit, or use therein, either direct, implied, or otherwise, contained in any last will and testament, or codicil, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit, or for the purpose of being given or appropriated to charitable uses, shall be null and void, and the distributees shall take the property as though no such testamentary disposition had been made.” Appellant contends that the constitution and by-laws of the Sisters of Mercy constitute a contract between the members of said organization by the terms of which the three Sisters of Mercy, made beneficiaries under item 5 of said will, became at most only trustees for the use and benefit of the Sisters of Mercy of the title to the property willed them by said decedent. In other words, that the relationship of said three sisters to said society was such that the effect of item 5 of said will was to create a re-' suiting trust in the estate therein devised and bequeathed in favor of the Sisters of Mercy. The Sisters of Mercy of the Catholic Church is an organization through which the Catholic Church carries on a large part of its religious, charitable, and educational work. It is a monastic sisterhood, established in Ireland by Catherine McAuley in 1827. Notwithstanding its origin is comparatively recent, the society has extended — 514 — its charitable, religious, and educational work over a large part of the earth. The members of this sisterhood, as shown by the evidence in this ease, are governed by the constitution, laws, and usages as laid down in the following authorities, which were properly identified at the trial and introduced in evidence: Volume 10, Catholic Encyclopedia, pages 199 to 200; Eules and Constitutions of .the Eeligious Sisters of Mercy, published by the Baltimore Publishing Company, containing 78 pages; Eeligious Profession, a commentary on a chapter of the new code of canon law by Hector Papi, S. J., Professor of Canon Law, Woodstock College, published by P. J. Kennedy & Sons, New York, containing 81 pages; Catechism of the New Eeligious Provision, translated from the French, and revised in conformity with the new code. It will be observed from the constitution and by-laws of the society that, after a given course of service and training preparatory thereto, the Sisters of Mercy take vows of poverty and obedience. The Sisters of Mercy of Vicksburg was shown by the evidence to be the mother house for all of the other Sisters of Mercy branches in the state. This mother house of the society was chartered in 1861. Among the powers given in its charter are the following: Establishing and' maintaining an academy and free school in the city of Vicksburg for the education of female children; “maintaining a house of protection for homeless and indigent females to qualify by training and education for the discharge of such duties as will enable them to procure protection and support;” establishing and maintaining an infirmary, or infirmaries, for the sick. And authority is given the society by its charter to adopt such by-laws, rules, and regulations as may be found necessary for the conduct of its business and affairs. The charter also authorizes the society to own real and personal property to the limit authorized by the laws of this state, and to sell or dispose of same when deemed expedient. — 515 — By the vow of poverty the Sisters of Mercy in substance bind themselves to be entirely disengaged from the love of the things of this world; that they will be “content with the food and raiment allowed them, and willing at all times to give up whatever has been allotted to them; that they will not give or receive any present without permission from the Mother Superior, and when, with her permission, they receive any present from their relatives or other persons, it must be considered as for the use of the community and not for the particular use of the receiver. By the vow of obedience they forever renounce their own will and bind themselves to become resigned to and follow the direction of their superiors. The vow concludes with-the language that “they shall obey the call of the bell as the voice of Grod. ’ ’ The “Catechism of the Religious Profession” defines what the oath of poverty means. In substance it is that it effectually deprives the members of the society of all right to own property in their individual capacity, and places them in a state of material subjection and dependence to their superiors; that any property owned by a sister at the time of profession, as well as any property she may thereafter acquire by legacy, inheritance, conveyance, or otherwise, shall inure to the benefit of the society; that the Sisters of Mercy receiving property shall be deprived of the ‘ ‘ use and usufruct of such property as well as of the free and independent disposal thereof; that even the bare legal title cannot be disposed of by the holder thereof without the permission of the governing authorities; that all property owned or acquired by the members of the society shall be community property, that is, the use thereof shall go alone for the benefit of the society; that a Sister shall depend alone on the food, raiment, and support furnished her by the society, which shall be the same as furnished to every member thereof. No member of the society shall have any right to or claim under any circumstances more than her support for the time she is a member. See pages 55, — 516 — 56, 58, '59, 60, 64, 70, 71, 76, 78, 79, 110. Withdrawal or dismissal from the society is permitted with the approval of the Pope. When withdrawal or dismissal takes place all the property acquired by the Sister during her membership belongs to the society; she takes none of it with her. Appellant’s contention is that this status of the Sisters of Mercy makes them trustees for the benefit of the society of all property coming to them in any manner whatever during their membership. In order to determine the question involved, it will be well to have in mind the purpose of the Mortmain Statutes — the evil sought to be remedied — and also the definition of a “resulting trust.” Discussing the first question in Barton v. King, 41 Miss. 288, this court said, among other things: “This whole section concerning ‘religious societies or congregations, ’ was designed simply to prevent the evils resulting, as well from the efforts to accumulate vast estates in the hands of the church as from the accomplishment of such an object, and had no reference to the power of testamentary disposition.” And in Blackbourn v. Tucker, 72 Miss. 747, 17 So. 739, the court said that these statutes had “no relation to the intention of the testator, nor do they regulate the manner in which he may make and publish his will;” that the question was not what was his will, but what was the wilTof the people as expressed in their Constitution; that manifestly one purpose of the Constitution was to prevent a person who would not be charitable at his own expense from being so at the expense of his heirs. The ownership of property by dead hands is the main thing condemned. Resulting trusts are those trusts which are deducible from the nature of the transaction, although not expressed by the words of the parties; they are trusts which are superinduced upon the transaction by operation of law as a matter of equity, independent of the particular — 517 — intention, of the parties. They arise by the operation of law for the purpose of carrying out the presumed intention of the parties or without regard to their intention for the purpose of protecting the rights of the parties. 4 Words and Phrases, page 3436, where definitions of such trust by Story and other writers are given. Clearly the constitution, by-laws, and usages of the Sisters of Mercy constitute, so far as they deal with their civil rights, a binding contract between them, provided, of course, the Constitution and laws of the state are not violated. So far as the ownership of property is concerned, the members of the society are simply trustees for the benefit of the society. If this is their status with reference' to the society, which status the courts would enforce except for our Mortmain Statutes, then we have clearly a resulting trust, by means of which if enforced, the Mortmain Statutes would be completely circumvented. The evidence of Mr. Brunini, decedent’s attorney, draftsman of said will, one of the legatees therein, and named as executor to carry out its provisions, throws light on the questions involved. He testified" in part: “Q. Please state to the court, in your own way, just what transpired when that will was prepared by you; go into detail. A. Mr. Maas, I suppose you knew, had been married, I think, three times, when this will was drawn, and he came to me and asked me to draw his will, and he told me that there were three Sisters, etc., who had paid special attention in nursing his first wife during his illness. Mr. Maas thought a great deal of that first wife, and he was always contrasting her relationship to him with his other wives; and he said he felt exceedingly kind towards those three Sisters, and he asked me to go out to the convent and find out their names; that I did, I went up, and made inquiry, and went back the second time, and they couldn’t tell me who those three Sisters were; those particular ones. This is a mother house of the Sisters, and these Sisters are sent — 518 — out to teach throughout the state; they have different houses in the state of Mississippi, and they couldn’t find out just the ones I wanted, as some who were there then were out now. I came back and told Maas; then he told me to go back and get the names of three of the Sisters who were in the convent at that time, at the time his wife was ill, and I did that, and I went back. “Q. Iiis first wife died? A. Yes, sir, his first wife died; the first wife he married, so far as I know anything about — and so I did that. ‘Now,’ he says, ‘I want to give all my property to those three Sisters,’ outside of these other bequests that he had enumerated — one to his niece, one to this negro, Osborn, and he was to leave me five hundred dollars, and he said, ‘I want them to enjoy it,’ so he instructed me to draw the will, and I did in that regard. I told Mr. Maas — I said, ‘These three Sisters, you know, are members of the Sisters of Mercy, and there may be some question about this, and I want to make it positive, and I am going to put in your will that this is given to them individually, and not to the Sisters of Mercy;’ and he told me that was exactly the way he wanted it; he was not giving it to the Sisters of Mercy, but to those three ladies. “Q. Individually? A. Yes, individually. “ Q. I will ask you if item 5 of the will is the item you prepared under these instructions? A. Yes, sir. In fact, I prepared the whole of the will.” As we view it, this question is settled in favor of the contention of appellant by the case of Order of St. Benedict v. Steinhauser, 234 U. S. 640, 34 Sup. Ct. 932, 58 L. Ed. 1512, 52 L. R. A. (N. S.) 459, Ann. Cas. 19T7A, 463. This was a case instituted by the Order of St. Benedict to establish its title to property-left by one of its members, Augustine Wirth. The suit was against Albert Steinhauser, administrator of the estate of said Wirth, who had died. Father Wirth during his lifetime published many works on religious matters, and obtained — 519 — copyrights therefor in his own name. The property in controversy consisted chiefly of the proceeds of the sale of these hooks. It was claimed by the administrator that the decedent had been granted special permission by the abbot of the monastery to retain the proceeds of the sale of his hooks, and for that reason the administrator was entitled to snch proceeds in preference to the Order of St. Benedict. The administrator contended also that the constitution and laws of the Order of St. Benedict were against public policy. The Order of St. Benedict claimed the property in question by virtue of its constitution and by-laws, which it contended, and the supreme court held, constituted a contract binding; between Father "Wirth and said society covering his civil rights to the copyrights and proceeds of the sale of the hooks of which he was the author. Members of the Brotherhood of St. Benedict were governed by a collection of mandates known as the rules of St. Benedict. Those rules prescribed vows of obedience and poverty as well as others. The society was empowered to hold property and to make by-laws for the government of the order not repugnant to the constitution of the United States and of the state of New Jersey. These laws provided that all property should he owned in common, and that no member should receive or own any property in his own right, hut it should all go to the Order of St. Benedict for the common good. In other words, it was monastic communistic brotherhood. Each member received a living and a support, and in turn all the earnings and property of each went into the common fund. There was the right of voluntary withdrawal of a member. The court in that case held in substance that a special permission granted by the abbot of a monastic brotherhood to enable a member to retain the use for charitable purposes of the proceeds of his literary labors did not and could not release such member from the agreement expressed in the Constitution and laws of such brotherhood that the gains of the members should belong to — 520 — the' order, although the rules of the order recognized the right of a member to keep whatever the abbot permitted him to have; that the agreement expressed in the constitution and laws of such a brotherhood that the gains of the members thereof should belong to the order was not opposed to public policy, where the constitution of the order recognized the privilege of withdrawal, and that therefore the order was entitled to all the property left by a deceased member, including that derived from his literary labors; that the equitable ownership of all property. acquired by a member of such order belonged to the order; that, as to all property coming to the members of such an order during their membership, the members occupied merely the position of trustees for the order. In brief, the court held in that case that the members of a communistic society could make a valid and binding contract with each other by means of the constitution and laws of such a society, to hold all property coming to them as common to all where there existed to each member the right of withdrawal from such society; and that, as long as one remained a member of such a society, he was bound by its constitution and laws so far as they affected his right to hold property. It is true that in the present case the right of voluntary withdrawal is not given; it must be with the approval of the highest authority of the Catholic Church. Still it is not necessary to pass on the question whether the members of a communistic society, so far as the rights of property are affected, are bound by its constitution and laws during their lifetime. We hold that, as long as they are members enjoying the benefits derived from such membership, which in case of the Sisters of Mercy consists of a home and comfortable support and care in sickness and death, that is sufficient consideration for their obligation to bring all the property received by them during their membership into the community for the benefit of all'.. And this means, as will be seen at once, simply that all property coming to — 521 — them by legacy, inheritance, conveyance, or otherwise is held in trust for the common good of the society; and furthermore, excepting for our Mortmain Statutes, this would constitute a resulting trust which the Sisters of Mercy would have the right to enforce in a court of equity; and the society would have that right, regardless of what the purpose of the testator was. Even though it be true that the testator in this case had no purpose to violate the Mortmain Statutes, nevertheless, if his will be given effect'the result will be that said statutes will be as effectually violated as if he had intended to do so. However, it is argued by appellees that the constitution and by-laws of the Sisters of Mercy cannot be given effect as written in this case, because it was shown by the testimony of one of the Sisters of Mercy (-not one of the appellees, because neither of those testified) and Father Prendergast that the Sisters of Mercy could and did own property in their individual rights. This evidence was objected to on the trial, but the objection was not ruled on by the court. It is argued by appellant that this evidence was not admissible, because it tended to violate the constitution and laws of the Sisters of Mercy which constituted a contract between its members with reference to their property. This question was involved and decided in Order of St. Benedict v. Steinhauser, supra. There the court held that the fact that Father Wirth had been permitted to receive the fruits of his literary labors did not affect the contract he had with the Order of St. Benedict, evidenced by its constitution and by-laws, which made the fruits of such labors the property of the order. ’ The trial court should have excluded this evidence objected to by appellant. This was simply evidence tending to contradict or vary the terms of the contract by which the members of the Sisters of Mercy werejiound. Appellees did not offer to show by these witnesses that the constitution and by-laws of the society providing for — 522 — the ownership of property in common had been abrogated. Something was said in the argument about the court enforcing' the laws of religious societies. As said in the case of Order of St. Benedict v. Steinhauser, we are dealing not with “ecclesiastical requirements or monastic discipline” as such, but the question is solely one of civil rights. It is true that the communistic agreement between the Sisters of Mercy is a law of a religious society; nevertheless it is a law that undertakes and does affect property rights, and in this case it fixes the status of the members of this society as long as they are such members, as trustees of all property coming to them in any manner, for the benefit of the society of which they are members. Reversed, and judgment here for appellant. On Suggestion oe Error. Ethridge, J. In the suggestion of error it is contended that at least one-half of the personal property owned by the testator at the time of his death must go to the appellees under section 270' of the state Constitution, and that the case of Blackbourn v. Tucker, 72 Miss. 735, 748, 17 So. 737, sustains this contention. Section 270 of the state Constitution reads as follows: “Every legacy, gift, or bequest of money or personal property, or of any interest, benefit, or use therein, either direct, implied, or otherwise, contained in any last will and testament or codicil, in favor of any religious or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit, or for the purpose of being given or appropriated to charitable uses, shall be null and void, and the distributees shall take, the same as though no such testamentary disposition had been made. ” — 523 — The same provision is contained in section 3379, Hemingway’s Code (section 5091, Code of 1906). In our former opinion we stated that the appellees were a religious society, hut did not enlarge upon that feature of the case. A number of books were introduced in evidence bearing upon this proposition, among which are: volume 10 of the Catholic Encyclopedia, pp. 199, 200; Eules of Sisters of Mercy; Catechism of the Eeligious Profession; Eeligious Profession, A Commentary on a Chapter of the'New. Code of Canon Law, and the New Canon Law. In the article referred to in the Catholic Encyclopedia it is stated that, after the organization of the society of Sisters of Mercy, a question arose as to whether it should be a religious society, and that a vote was taken and the society unanimously decided to become a religious society. In the Eules and Constitutions of the Eeligious Sisters of Mercy, in chapter 1, under heading, “Object of the Institute,” we find the following: “The Sisters admitted to this religious congregation, besides attending particularly to their own perfection, which is the principal end of all religious orders, should also have in view what is peculiarly characteristic of this institute — that is, a most serious application to the instruction of poor girls, visitation of the sick, and protection of distressed women of good character. “2. In undertaking this arduous, but meritorious, duty of instructing the poor, the Sisters whom Cod has been pleased to call to this state of perfection should animate their zeal and fervor by the example of their Divine Master, Jesus Christ, who has testified on all occasions a tender love for the poor, and has declared that he would consider as done to Himself whatever should be done unto them. ’ ’ In section 3, chapter 2, of said Eules and Constitutions of the Eeligious Sisters of Mercy, it is provided: “The Sisters shall teach the children to offer their hearts to Cod when they awake in the morning, adore His — 524 — Sovereign Majesty, return Him thanks for all His favors, and arm themselves with the sign of the cross. They shall instruct them how to direct all their thoughts, words, and actions to Grod’s glory, implore His grace to know and love Him, and-fulfill His commandments, how to examine their conscience, and respect parents and su - periors.” * Section 4 of said chapter 2 provides: “They shall teach them the method of assisting devoutly at the holy sacrifice of the mass, how to prepare for confession, and shall he ever attentive to dispose them for the sacraments of confirmation and of the holy communion. ’ ’ In section 9 of chapter 3 thereof it is provided: “The Sisters shall always have spiritual good most in view; hence when they find habits have been careless, religions duties long neglected, and coldness and indifference seem to prevail, it is most necessary they should endeavor to create alarm, by speaking of the dreadful judgments of G-od towards impenitent sinners, and admonishing the patient that, if we do not seek His mercy and protection in the way He has appointed, we must be miserable for all eternity,” etc. In said book, Bules and Constitutions of the Beligious Sisters of Mercy, second part, chapter 1, we find the following “This religious congregation shall be always subject to the authority and jurisdiction of the diocesan bishop, and the Sisters shall respect and obey him as their principal superior after the Holy See.” . Many other passages could be quoted showing that the promotion of religion is the chief object of the society, but the foregoing is deemed sufficient for that purpose. Coming, now, to an analysis of section 270, of the Constitution, and section 3379, Hemingway’s Code (section 5091, Code of 1906), it is provided that every legacy, gift, or bequest of money or personal property, or of any interest, benefit, or use therein, either direct, implied, or — 525 — otherwise, contained in the last will and testament or a codicil, in favor of any religions or ecclesiastical corporation, sole or aggregate, or any religious or ecclesiastical society, or to any religious denomination or association, either for its own use or benefit, or for the purpose of being given or appropriated to charitable uses shall be null and void. This section prohibits a gift, legacy, or bequest of money or personal property to a religious society, either directly or impliedly, or otherwise. The language of the section is most comprehensive and all-inclusive, and establishes beyond question, it seems to-us, that no religious society should receive by or through a will any personal property of any kind. There is nothing in the case of Blackbourn v. Tucker, 72 Miss. 748, 17 So. 737, supra, that held anything contrary to this view. The section does not prohibit a gift, legacy, or bequest of money or personal property to an educational institution not under j^ligious control, as was the case before the court in Blackbourn v. Tucker, supra. The policy established by this section and the preceding section is clear and explicit, so far as a religious or ecclesiastical society or. organization is concerned. The terms of the statute are too clear and plain to admit of any other construction. The suggestion of error will therefore be overruled. Overruled.