OPINION
Myers, C. J.
Appellant
the adopted son of Elizabeth Ackerman, deceased, instituted
this action by next friend against the rector, Lawrence
Fichter, executor, and the Parish Councilors of Saint
Mary's Catholic Church of the City of Greensburgh,
Indiana, trustees under the will of Elizabeth Ackerman, by a
complaint in two paragraphs. The first paragraph alleged the
undue execution of the will and asked that it be declared
null and void. It was held sufficient on demurrer, as to
which ruling no question is presented here. The second
paragraph, which was an amended one, sets out appellant's
relation to the decedent, the admission of the will to
probate, the will itself, the objections thereto, and asks
that it be construed and be declared null and void and of no
effect. Joint and
several demurrers were sustained to this paragraph, and the
rulings thereon are assigned as error on appeal.
The
will provides in Item 1, for the payment of all just debts,
and that only so much of the testatrix's real estate
after exhausting the personal estate, as is necessary shall
be sold by the executor without order of court, to pay debts.
"Item 2. I give, devise and bequeath to the trustees
hereinafter designated, all other property of every kind and
description owned by me at my death, after paying my debts as
directed in Item 1, in trust, for the benefit, maintenance,
and support of the Parochial School of Saint Mary's Roman
Catholic Church at said city of Greensburgh, and I direct
that two-thirds of the rents, profits and income of said
bequest shall be applied to the payment of tuition in said
school; that one-third be used for masses every year, for the
repose of all poor souls, and the principal of
said bequest shall always be kept separate and apart for the
purposes herein expressed. Item 3. I hereby appoint and
designate Reverend Lawrence Fichter, Rector, and (four
persons, naming them,) Parish Councilors of said Saint
Mary's Catholic Church of said city of Greensburgh, and
their successors in office in said church as such Rector and
Parish Councilors, respectively, trustees, to receive, hold
and manage in trust the property devised and bequeathed in
Item 2, above, for the benefit, support and maintenance of
said school. Said trustees shall receive, hold and control
said property in trust for the purpose specified above, and
may sell said property, and if any part thereof shall be real
estate, they shall have full power to sell the same without
notice, at public or private sale, as they deem best, and may
sell and convey the same without any appraisement, or bond or
authority or order of any court or report or approval of said
sale, and said trustees shall invest all money, or proceeds
of property devised herein, in bonds of the U.S. of any State
therein, of any county, city or town in the State of Indiana,
or in first mortgage on real estate in the State of Indiana,
and said trustees shall manage said funds for the best
interest thereof, that it may yield the best income
consistent with a safe investment thereof. When any one of
the persons named above as trustee shall die, or cease to
hold the official position in said Saint Mary's Church
now held by such person as aforesaid, then such person shall
cease to be a trustee herein, or act as trustee herein, and
he shall be succeeded as trustee hereinunder, by the person
who shall be chosen or elected by the proper church authority
to fill the official place in Saint Mary's Church vacated
as aforesaid, and the person so chosen, or elected, shall
have the same powers and duties as trustee herein, as each of
the persons named above as trustee. It being my intention and
desire, that the same persons shall be and act as trustees
hereunder, as shall manage the business affairs of said Saint
Mary's Church. If at any time there shall
be a failure of trustees under this will, and it shall be the
duty of any court to appoint such trustees, then I request
and direct that the court having jurisdiction of this trust,
shall appoint as such trustees, the Rector and Parish
Councilors of said Saint Mary's Catholic Church of
Greensburgh. The trustees hereunder shall not be required to
give any bond for the performance of their duties as such
trustees nor shall they be requested to report to any court,
but they shall transact no business, except by three-fourth
vote of all trustees aforesaid, and shall annually make
report of said trust, and any funds or property thereof in
their hands as such trustees, to the congregation of said
Saint Mary's Church (Roman Catholic), provided, that at
any time upon the petition of ten persons, who are members of
said Saint Mary's Roman Catholic Church and heads of
families therein, said trustees may be required to report to
the court having jurisdiction thereof, fully and specifically
under oath, the condition of said trust, and if said report
be found correct and approved by the court, such petitioners
shall be liable for all costs. Trustees appointed or acting
hereunder shall not receive any compensation for their
services as such trustees. Item 4. If any time the Roman
Catholic Church shall cease to maintain a parish school at
said church, at said city of Greensburgh, then in that case
said funds shall be held in trust for, and managed as
hereinbefore directed by the trustees above designated, but
said bequest shall be held in trust for, and the interest or
income thereof shall be applied by said trustees to the
general support and maintenance of said Saint Mary's
Roman Catholic Church. Item 5. When Saint Mary's Roman
Catholic Church of Greensburgh, shall cease to exist as a
congregation or organization of the Roman Catholic Church of
Greensburgh, Indiana, I direct that the property given,
devised and bequeathed as aforesaid, and all the income,
rents and profits thereof then held by said trustees under
this will, shall be paid, transferred and
delivered to the Bishop of the Diocese Indianapolis, of the
Roman Catholic Church, of if the city of Greensburgh be not a
part of that Diocese, to the Bishop of the Diocese of the
Roman Catholic Church of which the city of Greensburgh shall
be a part, for the support of the Roman Catholic
Church."
The
questions raised by the complaint are, "That said will
is illegal, against public policy, and in violation of the
statutes of the State of Indiana, both civil and
criminal, in this to wit: That the terms of said will violate
the revised statutes of the State of Indiana, §§
4031-4040 Burns 1908, §§ 2988-2997 R. S. 1881,
inclusive; that the same is in direct violation of §
3173 Burns 1908, Acts 1895 p. 247, affixing a penalty for
such violation. That said will if enforced would, and will
abrogate and abolish the jurisdiction of the circuit court
over decedent's estates; that said will is against public
policy, for the reason that the Catholic Church and the
school therein named have no corporate existence, neither can
they contract nor be contracted with, sue or be sued, and
neither could be held accountable to any court for violation
of any laws of the State of Indiana; and there is no
beneficiary living, who is named in said will, having a legal
capacity to enforce the execution of the trust. That said
parochial school named in said will is not a free school, and
does not share in public school funds but said school is
supported by tuition fees paid by its patrons, and is
maintained in opposition to the policy of the public school
system of the State of Indiana, and the pupils of such
parochial schools are not permitted to attend the public
schools of Indiana."
An
attempt is made to interject the question of due process of
law, but it has no place here, as the rights of testatrix to
dispose of her property to the exclusion even of her son, can
not be denied. The real question is, whether the will is void
as being in violation of law, and against public policy, and
as being indefinite and uncertain, both as to
beneficiaries, and as to trustees, and whether there is a
beneficiary capable of enforcing the trust.
It is
contended that since the trustees are not representatives of
an incorporated body, they are unable to take. It is not
necessary that they be so; if they are in being, and
ascertainable, the trust will not fail because of lack of
corporate existence. In this case they are individuals
definitely fixed by name, and also as the rector and parish
councilors, and they are capable of holding as trustees, and
are vested with title, and succession provided for, and can
be held to account for their acts as trustees by the
constituted authorities, with respect to property matters.
Ramsey v. Hicks (1910), 174 Ind. 428, 91
N.E. 344, 92 N.E. 164, 30 L. R. A. (N. S.) 665;
Hatfield v. Delong (1901), 156 Ind. 207,
209, 59 N.E. 483, 51 L. R. A. 751, 83 Am. St. 194;
Smith v. Pedigo (1896), 145 Ind. 361, 33
N.E. 777, 44 N.E. 363, 19 L. R. A. 433, 32 L. R. A. 838;
Gaff v. Greer (1882), 88 Ind. 122, 45 Am.
Rep. 449. They have the title of the res, the
corpus, and its control, therefore have powers
coupled with an interest. Cooley v. Kelley
(1913), 52 Ind.App. 687, 96 N.E. 638, 98 N.E. 653;
Hadley v. Hadley (1897), 147 Ind. 423, 46
N.E. 823; Rowe v. Beckett (1868), 30 Ind....
