Hamsher v. Hamsher

• Decision Date: 31 March 1890
• Citation: 23 N.E. 1123,132 Ill. 273
• Parties: HAMSHER v. HAMSHER et al.
• Court: Illinois Supreme Court

132 Ill. 273

23 N.E. 1123

HAMSHER

v.HAMSHER et al.¹

Supreme Court of Illinois.

March 31, 1890.

Appeal from circuit court, Macon county; EDWARD P. VAIL, Judge.

Bill by Anna Hamsher and others against William Hamsher for partition of land belonging to the estate of David F. Hamsher. Deceased was the husband of said Anna, and son of said William Hamsher, and had no children or descendants. By his will he devised the land in suit to his executors until certain legacies to his father and others, charged thereon, should be fully paid, and then to the Young Men's Christian Association of Decatur. Decree for complainants. Defendant appeals.

Bunn & Park, for appellant.

Mills Bros. and W. C. Outten, for appellees.

MAGRUDER, J.

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-bill, but that the widow, as owner in fee of one-half of the lands by virtue of her renunciation and election, and the executors, as being vested with the title in fee of the other half by operation 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 Associationof Decatur to receive and hold so much of the real estate devised by item 11 of the will as exceeds in quantity 10 acres can only be called in question by the state in a direct proceeding; fourth, that the appellant, by accepting the bequest of $600 per year 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 part of the will; fifth, that the Young Men's Christian Association of Decatur, Ill., does not come within that class of religious corporations which are forbidden by our statute to receive by devise more than 10 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 11-13 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, Ill., 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, 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 10 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. St. 623; Rev. St. 1874, c. 32, § 42,) 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 congregation, church, 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 worship may become incorporated in the manner following, to-wit.’ 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 for 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 the 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 when 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...