Lilly v. Tobbein

• Decision Date: 23 February 1891
• Citation: 15 S.W. 618,103 Mo. 477
• Parties: Lilly et al. v. Tobbein et al., Appellants
• Court: Missouri Supreme Court

15 S.W. 618

103 Mo. 477

Lilly et al. v. Tobbein et al., Appellants

Supreme Court of Missouri, First Division

February 23, 1891

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

Karnes Holmes & Krauthoff for appellants.

(1) In the absence of statutory authority, the unincorporated Immaculate Conception Society was powerless to appear as a plaintiff in court. It was not a legal entity, could not sue and a proceeding to which it alone appeared in an assumed corporate capacity, negatived, however, on the face of the petition, was a nullity -- it lacked the essential requisite of an actor recognized by law. Blakely v. Benecke, 59 Mo. 195; Heath v. Goslin, 80 Mo. 316; Webb v LaFayette Co., 67 Mo. 353, 365; Van Buren v. Church, 62 Barb. 495, 497; Petty v. Tooker, 21 N.Y. 267, 271, 273; Detroit Bund v. Detroit Verein, 44 Mich. 313, 315, 316; Story Eq. Plead. [9 Ed.] secs. 497, 107, 110, 114a to 119; 1 Dan. Ch. Prac. [5 Ed.] pp. 24, 238, 240; Church v. Clark, 41 Mich. 730, 735; Penfield v. Skinner, 11 Vt. 269, 297. "Such associations cannot be recognized or dealt with as parties to an action." Hill v. Beach, 12 N.J.Eq. 31, 35. "They have no standing in court for any purpose." Galen v. Road Co., 27 Barb. 543, 550, 551. "If they affect to sue as parties and their unincorporated character is disclosed by the petition, the proceeding is felo de se." Cooper Eq. Plead., pp. 40, 164, 165; Barbour on Parties, p. 381; Edwards on Parties, pp. 6, 40; Pom. on Remedies, sec. 393. (2) No amendment can be grafted on such a petition. 1 Tidd's Prac. 713; Ex parte Collins, 49 Ala. 69, 70, 71; Edwards v. Ross, 58 Ga. 147, 149; Lodge v. Brooks, 61 Me. 585; Welch v. St. Louis, 12 Mo.App. 516. (3) Consequently, there was no suit or proceeding which could be recognized until persons known to the law appeared as plaintiffs. When they appeared, after the bar of the statute of limitation had become conclusive against their rights, this bar could not be obviated, nor the statute nullified, by indulging and sanctioning the idea that the petition by which they presented their claim for the first time related back as though it had been filed as of the date when the unauthorized proceeding was undertaken to be instituted by the unincorporated society. Sweet v. Jeffries, 67 Mo. 420, 424, 425; Van Syckles v. Perry, 3 Robertson (N. Y.) 621; United States v. Innerarity, 19 Wall. 595, 597; Meath v. Commissioner, 109 U.S. 268, 274; Tiffin v. Leabo, 52 Mo. 49; United States v. Patterson, 15 How. 10, 12; Thieman v. Goodnight, 17 Mo.App. 429, 433; Gibbons v. Steamboat, 40 Mo. 253, 256; Bombeck v. Devorss, 19 Mo.App. 38, 41; Lumpkin v. Collier, 69 Mo. 170; Scoville v. Glasner, 79 Mo. 449. (4) The so-called amended petition was a new suit as to those plaintiffs who then appeared and sued for the first time. Bombeck v. Devorss, 19 Mo.App. 38, 41; Buel v. Trans. Co., 45 Mo. 562; Durnin v. Waddingham, 12 Mo.App. 145; Bassett v. Fish, 75 N.Y. 303, 315; Shaw v. Cock, 78 N.Y. 194, 197; Wright v. Storms, 3 N. Y. Code Rep. 138; Comegyss v. Robb, 2 Cranch, C. C. 141; Commission Co. v. Russell, 8 Cowen, 122; Quinby v. Claflin, 27 Hun, 611. (5) The allowance of an amendment is a matter of discretion; but the effect of the amendment, when made, is one of law. The defendant cannot be deprived of the defense of the statute of limitations by permitting an amendment; nor is a court authorized to defeat or nullify that statute by exercising a discretion. Shaw v. Cock, 78 N.Y. 194, 197; Gill v. Young, 88 N.C. 58, 61; Brown v. Thomas, 69 Ga. 47; Van Syckles v. Perry, 3 Roberts. 621, 624; Quinby v. Claflin, 27 Hun, 611. (6) This proceeding is purely a statutory one and stands as a substitute for an appeal from the judgment of the probate court. "It stands on a different foundation from ordinary actions at law of causes of action." Garvin v. Williams, 50 Mo. 206, 212; Jourden v. Meier, 31 Mo. 40; Hughes v. Burriss, 85 Mo. 660, 665; Benoist v. Murrin, 48 Mo. 48, 52; Harris v. Hays, 53 Mo. 90. (7) "According to the common law, the Church of Christ, not being a civil corporation, could not sue in its aggregate name, nor in the names of its agents or trustees, in whom the right of property is not, either by contract or devise, exclusively vested." Curd v. Wallace, 7 Dana, 190, 192; Greenhood, Public Policy, p. 508; Bundy v. Birdsall, 27 Barb. 31, 33, 34; Taft v. Ward, 106 Mass. 518, 524, 525; Heath v. Goslin, 80 Mo. 310, 316. (8) The validity of the only clause of the will remaining unrenounced by the widow turns upon the question whether a direct and absolute devise to an unincorporated church can be upheld as declaring a charitable trust. There are no words prescribed or limiting the uses to which the property shall be put, nor is anyone named as devisee who is competent to take. The general rule is that a devise to a non-existing corporation, or to an unincorporated body, is void. Grant on Corp. 123; Counden v. Clark, Hobart, 33; 8 Vin. Arb., title "Devise," H. 1; Douthitt v. Stinson, 63 Mo. 268, 273, et seq. This rule is not obviated by the fact that the body in question is a "church." McCartee v. Asylum, 9 Cowen, 437, 504, 509; James v. Allen, 3 Meriv. 17, 19; Ellis v. Selby, 1 Myl. & Cr. 286, 298; Vezey v. Sampson, 1 Sim. & St. 69, 71; Nash v. Morley, 5 Beav. 177, 182; Kendall v. Granger, 5 Beav. 300, 302; Cromie v. Orphan's Home, 3 Bush, 365, 373, 376, 391; Kain v. Gibbony, 101 U.S. 362, 365; Earle v. Wood, 7 Cush. 430, 437, 438, 441, 451. (9) The will declares no charitable trust, whether the property affected be deemed real or personal in its nature. An unincorporated society cannot take either class of property under our law. McKeon v. Kearney, 57 How. Pr. 349, 353; Betts v. Betts, 57 How. Pr. 355; Leonard v. Davenport, 58 How. Pr. 384, 386. (10) The interest of the church in the realty affected by the will was a contingent remainder, and this estate was defeated by the widow's renunciation of the will. Broom & Hadley's Comm., pp. 623, 624, 633, 627, 628, note 302; 2 Greenl. Cruise, 202, 249; 2 Washb. Real Prop. [4 Ed.] pp. 541, 542, 548, 569; 2 Blackst. Comm. 169; 4 Kent's Comm. 202, 208; Williamson v. Field, 2 Sandf. Ch. 533.

Wm. F. Woerner also for appellants.

(1) The proceeding instituted by the sole plaintiff -- the fact of its unincorporation appearing on the face of the petition -- was a nullity; there was no suit before the court. (2) A nullity, such as this proceeding, cannot be galvanized into vitality by means of an amendment. An amendment can only be made when there are "parties before the court;" otherwise the proceeding "would in effect be the commencement of a new action." Pomeroy, Remedies & Rem. Rights [2 Ed.] sec. 414, p. 460; sec. 420, p. 464; Davis v. Mayor, 14 N.Y. 506; Eyerman v. Scollay, 16 Mo.App. 498; Ex parte Collins, 49 Ala. 69; Lake v. Morse, 11 Ill. 587; Thruston v. Kercheval, 7 Humph. 329; Lodge v. Inhabitants, 61 Me. 585; Little v. Virginia Co., 9 Nev. 318; Edwards v. Ross, 58 Ga. 149; Thieman v. Goodnight, 17 Mo.App. 429; Anderson's Law Dict. (3) Even if the amendment were otherwise allowable, the suit solely instituted by a nonentity cannot inure to the benefit of the proper plaintiffs, who do not come in until barred by lapse of time. As to the latter, it is, in effect, a new suit. It does not strike back by relation so as to avoid the statute, unless the original parties had some interest in the suit. Willink v. Renwick, 22 Wend. 608, 610; Jones v. Johnson, 81 Ga. 294; s. c., 6 S.E. 181; Jackson v. Murray, 1 Cowan, 156; Railroad v. Culbertson, 72 Tex. 375; Van Syckles v. Perry, 3 Roberts. (N. Y.) 621; Eyerman v. Scollay, 16 Mo.App. 498; Story, Equity Pleading, sec. 904. (4) The statute, under which alone any proceeding could be brought to contest this will, requires suit to be instituted, within five years, by a "person interested in the probate." The unincorporated so-called plaintiff was not a person, either natural or artificial. Six years had elapsed, when for the first time, a person appeared to claim his rights. It was too late. R. S. 1879, sec. 3980; R. S. 1889, sec. 8888.

Alexander Graves and Mansur & McLaughlin for respondents.

(1) A devise of property to a designated "church" is ex vi termini a charity, and will be upheld, although the devisee is unincorporated. See directly in point Historical Society v. Academy, 94 Mo. 459; Curling v. Curling, 8 Dana (Ky.) 38; Evangelical Association's Appeal, 35 Pa. St. 316; Bartlet v. Nye, 4 Met. (Mass.) 378; Burbank v. Whitney, 24 Pick (Mass.) 146; Washburn v. Sewall, 9 Met. (Mass.) 280; Tucker v. Aid Society, 7 Met. 180; Schnorr's Appeal, 67 Pa. St. 146; Zimmerman v. Anderson, 6 Watts & Serg. 218; Burr v. Smith, 7 Ver. 241; Dodge v. Williams, 46 Wis. 72, et seq.; Gould v. Asylum, 46 Wis. 115; Estate of Ticknor, 13 Mich. 55; Jones v. Hobersham, 107 U.S. 188; Beatty v. Kurtz, 8 Curtis (U.S.) 212; Zeiswiss v. James, 63 Pa. St. 465. (2) But this will required the executor to sell and divide the proceeds. Therefore, the executor becomes a trustee and the title to the land vested in him as such trustee. Taylor v. Benham, 16 Curtis, 377; 5 How. 233; Wilson v. Wilson, 54 Mo. 213. The fact that this executor by the will was to sell the property after expiration of the widow's life-estate, and divide the proceeds, render this a will of personalty. Hocker v. Gentry, 3 Met. (Ky.) 473; Arnold v. Arnold, 9 B. Mon., pp. 86, 87, 88; Peter v. Beverly, 12 Curtis, 235 (10 Pet.). (3) The constitutional point is eliminated from this case, because that applies only to religious corporations; and this plaintiff is the unincorporated association. (4) The validity of this will must depend upon the state of the law in force when the testator died, not the Drake constitution. Dodge v. Williams, 46 Wis. 106; ...