Adams v. Bohon

• Decision Date: 01 June 1917
• Citation: 176 Ky. 66,195 S.W. 156
• Parties: ADAMS, COUNTY SUPERINTENDENT, v. BOHON ET AL.
• Court: Kentucky Court of Appeals

195 S.W. 156

176 Ky. 66

ADAMS, COUNTY SUPERINTENDENT, v. BOHON ET AL.

Court of Appeals of Kentucky.

June 1, 1917

Appeal from Circuit Court, Mercer County.

Action by Ora L. Adams, County Superintendent, against Irene Bohon executrix, and others. From judgment dismissing the petition plaintiff appeals. Affirmed.

Ed. C O'Rear, of Frankfort, and Chas. Carroll, of Louisville for appellant.

C. E. Rankin, of Harrodsburg, Helm Bruce and Bruce & Bullitt, all of Louisville, for appellee Bohon.

E. H. Gaither, of Harrodsburg, for appellee Pennybaker.

MILLER J.

This appeal presents the question whether the lands of the Society of Shakers, located near Pleasant Hill, in Mercer county, have escheated to the common schools of that county, under section 323 of the Kentucky Statutes. A brief statement concerning the history of the society and its purposes may be helpful in obtaining a ready comprehension of the precise questions involved.

The Society of Shakers originated in England in 1747; and, while not a branch of or in any way connected with the Quakers, the original members of the Shaker society had been members of the Quaker society. By reason of the peculiar form of worship adopted by the Shakers they were nicknamed "Shaking Quakers," although they differ from the Quakers in doctrine and practice. They style themselves the "United Society of Believers in Christ's Second Appearing."

The first colony of American Shakers was established at Mt. Lebanon, N. Y., in 1774, under the leadership of Ann Lee, who claimed to be Christ in his second reincarnation. Indeed, the origin of the society rests upon the belief in the revelation of Christ's second appearance in Ann Lee. This was the first communistic society established in the United States. This colony became the parent church, and from it branches went forth and established churches in Massachusetts, New Hampshire, Maine, Connecticut, and in other Eastern states, and later in Kentucky, Ohio, Georgia, and Florida. The first colony of Shakers in Kentucky was formed at Pleasant Hill, in Mercer county, and is the branch or society whose property the appellant now seeks to escheat.

It is unnecessary to go into the details of the religious belief of this society, further than to say that it was founded upon their conception of the teachings of Christ; that Christ had returned to earth in the person of Ann Lee; that it was the duty of all Christians to live together, and have their property in common; to do acts of charity; and to work for the common good of all in the church. They practiced celibacy because they believed the church, which was to them the world, was a spiritual institution, and that they should discourage all worldly and animal propensities. They did not, however, condemn marriage in other people, and they mingled freely with the outside world. To them the church was the nucleus upon which they contemplated a new order would be built and the whole world spiritualized. They regarded ostentation, luxury, and private property as sinful and unchristian; and they lived in groups or "families," the government of the family being parental.

The society's property was held by trustees, each branch or colony selecting its own trustees subject to the approval of the parent church at Mt. Lebanon. These trustees were given absolute power. As there was no marriage in the society, the members easily recognized that before they could accomplish the conversion of the world the society would die out unless it should have further accession of members; and so it became a rule with them to seek children, and to accept, and in fact to seek, converts from the outside world. It was, however, a condition precedent to one's entering the society that he should renounce all connection with the world, and if he brought any property with him it went into the common purse. If one withdrew from the society, he simply ceased to exist, and was not entitled to share in any of the property of the society.

The Shaker Society at Pleasant Hill was organized in about 1805, and in 1814 its 116 members signed a covenant setting forth their religious belief and the principles upon which the society should be conducted. They were a frugal and industrious people, with strong religious tendencies; and, while they prospered in business, their numbers did not greatly increase.

By the year 1862 the society had acquired 35 tracts of fine land, which it had incorporated into one body. As early as 1830 the society had become comparatively wealthy, and practically all the buildings that now exist had then been erected. About this time two dissatisfied members, Gass and Bonta, seceded from the society, and brought an action to dissolve it, and to have apportioned to them their shares of the land and the other property of the society. The circuit court dismissed their petition, and upon appeal it was affirmed by this court in 1834, in the case of Gass and Bonta v. Wilhite, 2 Dana, 170, 26 Am. Dec. 446.

Until shortly after the war between the states the community continued to prosper; and in about 1870 it had 362 members, living in four "families," or groups, and owned most of the good land in the eastern portion of Mercer county. At this time each of the four families had an allotted boundary of land, and each family was independent of the others in the management of its affairs, but all were governed by one set of trustees selected by the community, and approved by the home church at Mt. Lebanon.

Shortly thereafter the older and wiser members of the society began to die, and those remaining, having grown up in the community without contact with the world and with no business training, were not successful from a business point of view. Subsequently they were compelled to sell a large part of their best land. New members ceased to come in, and the society began to dwindle in numbers until they were reduced to two families, one known as the Shelton and Sutton family, and controlled by James Shelton, a very old man, and Jane Sutton, a woman of great intelligence, but neither of them having any business ability. The other family was under the control of two brothers, both of whom had been raised at Pleasant Hill, and both being greatly above the average in ability. One of these brothers is the appellee Dr. W. F. Pennybaker.

Under the management of the three trustees of the society, James Shelton, Jane Sutton, and John Pilkington (all being members of the Shelton and Sutton family), large debts were created, of which Dr. Pennybaker had no knowledge. These debts were held by George Bohon, of Harrodsburg. It was apparent that something had to be done to satisfy these debts. Jane Sutton was removed as trustee, and Dr. Pennybaker became one of the trustees. The home society was called upon for assistance, and declined to render any, except upon the condition that the members be removed to one of the Eastern societies and the land at Pleasant Hill turned over to that society. To this none of the 17 or 18 members then in the society was willing to consent. The few remaining members were all very old, and, with the exception of Dr. Pennybaker, none of them was able to make a living if turned upon his own resources. All of them, however, desired to spend the few remaining years of their lives at the place where they had been raised.

Finally an arrangement was made with Bohon, the creditor, that he should take over the property, consisting of more than 1,500 acres, besides the personal property, put it in repair, support the members during their lives, provide them with all necessary funds while they lived, and furnish them burial at their deaths, in consideration that their lands and personal property should be conveyed to Bohon. A meeting of the society was called to consider the proposition, and all of the members agreed to it. The contract was submitted to and approved by the home society. This contract was carried out in 1910 by the six living members of the society conveying all of their lands to George Bohon, in consideration of the covenants upon his part as above recited, and the further covenant that he would set aside and hold the sum of $5,000 to be used and expended by and for them as their needs might require.

However, as Dr. Pennybaker's "family," which held a comparatively small part of the land, had incurred none of these debts, Bohon in 1913 conveyed 576 acres of the tract to Dr. Pennybaker under the same terms and conditions upon which Bohon had taken the land; and under this deed Dr. Pennybaker now holds this tract in trust for the members of his family still living.

In 1916 the appellant, Ora L. Adams, as county superintendent of the common schools in Mercer county, brought this action against the four living members of the society and Bohon's executrix to set aside the conveyance to Bohon, upon the ground that the society had been dissolved and its lands escheated to the common schools of the county under the provisions of section 323 of the Kentucky Statutes, which reads as follows:

"If any society holding lands shall dissolve, the title to such land and appurtenances shall vest in the trustees of the county seminary in which the land may lie, for the use of such seminary; and if there be no such seminary, then in the county court, for the benefit of common schools in the county. The provisions of this chapter shall not apply to the society called Shakers, who shall have the same right to acquire and hold real estate as they have had prior to the passage of this law."

The petition alleged that the society had abandoned the purposes for which it had been organized and had sold all of its property to Bohon, and that these facts operated to dissolve the society under the rule laid down in...