Maas v. Sisters of Mercy of Vicksburg

• Decision Date: 10 March 1924
• Docket Number: 23531
• Citation: 99 So. 468,135 Miss. 505
• Court: Mississippi Supreme Court
• Parties: MAAS v. SISTERS OF MERCY OF VICKSBURG et al

99 So. 468

135 Miss. 505

MAAS v. SISTERS OF MERCY OF VICKSBURG et al

No. 23531

Supreme Court of Mississippi

March 10, 1924

Suggestion of Error Overruled April 7, 1924.

(En Banc.) January 1, 1920

1 TRUSTS. "Resulting trusts" defined.

"Resulting trusts" are trusts deducible from the nature of the transaction, although not expressed by the words of the parties, and are superinduced upon the transaction by operation of law as a matter of equity for the purpose of carrying out the presumed intention of the parties in order to protect their rights, independent of their intention in fact---(citing 4 Words and Phrases, "Implied Trust").

2. RELIGIOUS SOCIETIES. Constitution, by-laws, and usages of Sisters of Mercy held contract between society and member that member hold property devised to her in trust for society.

The constitution, by-laws, and usages of the "Sisters of Mercy," requiring the Sisters to take vows of poverty and obedience, in effect depriving the Sisters of all right to own property in their individual capacity, and making property acquired by the Sisters inure to the benefit of the society, held to constitute a contract between the society and a member, while the member is enjoying the benefits of such membership, under which property devised to such member shall be held in trust for the society.

3 WILLS. Legacies to members of "Sisters of Mercy" held violative of mortmain statutes.

Legacies to members of "Sisters of Mercy" held violative of mortmain statutes (Code 1906, sections 5090, 5091 [Hemingway's Code, sections 3378, 3379] and Const. 1890 sections 269, 270), making legacies to a religious or ecclesiastical society void, in view of constitution, by-laws, and usages of the "Sisters of Mercy," making the members of the "Sisters of Mercy" trustees, for the benefit of the society, of all property acquired by members during their membership, since such legacies created a resulting trust in favor of the society in violation of the statute.

4. RELIGIOUS SOCIETIES. Benefits derived from membership in religious society held sufficient consideration for agreement to bring all property received during membership into the community.

Benefits derived from membership in "Sisters of Mercy," consisting of home and comfortable support, and care in sickness and death, were sufficient consideration for members' obligation to bring all property received by them during their membership into the community for the benefit of all.

5. EVIDENCE. Parol evidence not admissible to contradict constitution and by-laws constituting contract between "Sisters of Mercy" and members.

Parol evidence that members of "Sisters of Mercy" could and did own property in their individual rights held not admissible to contradict constitution and by-laws of the society constituting contract between society and members.

ON SUGGESTION OF ERROR.

6. RELIGIOUS SOCIETIES. Wills. "Sisters of Mercy" held a "religious society," within statutes making legacies to religious society void; bequest to religious society, void under statute, goes to heirs at law.

Under section 270 of the Constitution of 1890, and section 3379, Hemingway's Code (section 5091, Code of 1906), providing that gifts, legacies, and bequests of money or personal property to a "religious society" shall be void when contained in any last will and testament, a will made to the religious society of the Sisters of Mercy, which is a religious and charitable society, is void, and such bequest goes to the heirs at law of the testatrix.

HON. E. N. THOMAS, Chancellor.

APPEAL from chancery court of Warren county, HON. E. N. THOMAS, Chancellor.

Suit by Mrs. Ruby V. Maas against the Sisters of Mercy of Vicksburg and others contesting the last will and testament of C. G. Maas, deceased. Decree for defendants, and plaintiff appeals. Reversed and judgment rendered.

Reversed. Suggestion of error overruled.

Henry, Canizaro & Henry, and H. K. Murray, for appellant.

We invoked in the chancery court, as we do here, the Statute of Mortmain, under our constitutional provisions, sections 269 and 270, and the Statute Laws, sections 5090 and 5091, Mississippi Code of 1906, and to those sections of the Constitution and to those sections of the Code we now direct our remarks.

For a short historical review of the Mortmain Statute, see Chase's Blackstone (4 Ed.), page 423. The court will observe that among the reasons given against the church taking property by will, we find: (a) That the circulation of landed property from man to man began to stagnate. (b) Taking long leases, one thousand years or so, was an evasion of the law. (c) Fraud and collusion wherein tenants made no defense of suits, was a mischievous and pernicious attempt to defeat the Mortmain Statute. (d) Lands not granted to themselves (the church) directly but to nominal "feoffees" ("Holders" to the use and benefit of religious houses). Quite an ingenious attempt to defeat the law! (e) Purchasing large tracts of land and calling it churchyards. Flood v. Ryan, 22 L. R. A. (N. S.) 1263, and note.

Thus we find that the testator could not by evasion or subterfuge dispose of his property against his heirs. And so we are admonished that the Sisters of Mercy cannot hold against the heir at law of the deceased, C. G. Maas. Edwards v. Pike (1775), 1 Eden, 267; Russell v. Jackson (1852), 10 Hare, 204; Moss v. Cooper (1861), 1 John & H. H. 352; Long v. Gloyd 25 Wash. L. Rep. 50; Blackbourn v. Tucker, 72 Miss. 747.

We are not concerned as to what the deceased, Maas, wanted to do, nor what he intended his attorney to do, nor what his attorney attempted to do. There is a prohibition "against the thing to be done, and not against the process by which it is done." In other words, "the limitation is upon testamentary power."

The Mortmain Law in Mississippi. The court will observe that there has been in Mississippi, an inhibition against one devising property to any religious or ecclesiastical society or denomination as early as the Code of 1857, Mississippi, articles 55 and 56, section 10. There was at that time, no constitutional provision. Barton, et al., v. King, et al., 41 Miss. 288. The people of Mississippi were not content to have the matter of Mortmain merely set out in the statute law of the state, but desiring that it might be secured for all times, in order that property could not be held by a devise in "dead hands," caused sections 269 and 270 to be written into the Constitution of the state of Mississippi, as will appear in the Constitution of 1890.

The Constitution forbids implied trusts in such a case. In Words and Phrases, Volume Four, page 3436, we find what law writers conceive to be the true definition of implied trust. Kaphan v. Toney (Tenn.), 58 S.W. 909, 913; Cone v. Dunham, 20 A. 311, 313, 59 Conn. 145, 8 L. R. 647; Garrell v. Alspaugh, 27 S.E. 85.

A pertinent inquiry would be, who are the Sisters of Mercy? In answer we will say that the very first words of the "Rule and Constitution" are "The Sisters admitted to this religious congregation." So we have a religious society, and as the charter of incorporation provides for rules and regulations, we have rules and regulations of a religious society with which to deal. We find the oath of poverty; we find gifts belong to the community; gifts only received at sanction of Mother Superior (which shows she governs and controls them); the vow of obedience.

How can it then be argued that they, these three Sisters, may have and hold property in fee-simple?

It is perfectly manifest, beyond question, that he wanted the Sisters of Mercy of Vicksburg to enjoy this property after his death, and in order to evade and circumvent the strict mandate of the law, the scrivener attempted to do that which the law absolutely condemns. A case directly in point, with facts and circumstances almost identical, decided by the supreme court of Pennsylvania, is styled: In Re Stirk's Estate, 81 A. 187, 232 Pa. 98. See, also, Russell v. Jackson, 10 Hare, 204; In Re Bickley's Estate, 270 Penn. 103, 113 A. 68.

We say: Item five of Mr. Maas' will creates Miss Emma Daly, Miss Anna Phelan, and Miss Laura Stevens, trustees for and in behalf of the convent. The attention of the court is invited to the case of the Order of St. Benedict v. Steinhauser, quoted in 58 L.Ed. 1512, 234 U.S. 640. This case was decided by Justice HUGHES, now secretary of state. This case, decided by the highest court in the land, is conclusive.

Hirsh, Dent & Landau, and Anderson, Vollor, & Kelly, for appellees.

I. We know of no law in this state whereby a party can divest himself or herself of the right to hold, acquire, or receive property by gift, devise, or otherwise, by joining any association, ecclesiastical or otherwise. As we view this case, the question of the Canon law, ecclesiastical requirements or monastic discipline is not involved. The sole question for this court to determine is: What was the intention of Maas at the time he made the will in question, and who shall take the property devised in item five of the will?

Counsel cite no authorities to show that when a party becomes a member of the Sisters of Mercy, or other society, they become disqualified to hold or take property in this state in their own name by deed, gift, devise, or otherwise. The Canon laws, and the ecclesiastical doctrines of the Catholic Church, are not a part of the law of this state, and, therefore, under the law, cannot affect the rights of the respective parties to this controversy.

II. Agreement, rule or regulation of any society or organization to divest one from right to hold, acquire, enjoy or dispose of property void as against public policy and the law of this state. Hershey v. Clark, 38 Am. Rep. (Ark.) 5; ...