Rhodes v. Rhodes

• Decision Date: 15 April 1890
• Citation: Rhodes v. Rhodes, 13 S.W. 590, 88 Tenn. 637 (Tenn. 1890)
• Writing for the Court: Lurton
• Parties: RHODES <I>v.</I> RHODES <I>et al.</I>
• Court: Tennessee Supreme Court

Page 590

13 S.W. 590

RHODES

v. RHODES et al.

Supreme Court of Tennessee.

April 15, 1890.

Appeal from chancery court, Fayette county; HENRY J. LIVINGSTON, Chancellor.

H. C. Moorman, for complainant. H. B. Folk, for defendants.

LURTON, J.

The will of Mrs. Ada Murphy was admitted to probate, December, 1881. The question for decision is as to the validity of two bequests contained in the following clause of her will: "I want a U. S. one thousand dollar bond given to New Castle Church, in Hardeman county, Tenn.; want it registered in Wm. Murphy's name, and the interest applied to the church annually, or as fast as due. I also want a one thousand dollar U. S. bond given to Mt. Moriah Church, Fayette county, Tennessee; want it registered in my name, and the interest applied to the church as fast as due." The churches thus designated as donees are unincorporated voluntary religious organizations, and under the well-settled rule are not capable of taking such a bequest. Green v. Allen, 5 Humph. 169; Reeves v. Reeves, 5 Lea, 644; Daniel v. Fain, Id. 324; White v. Hale, 2 Cold. 77. The testatrix is shown to have owned United States bonds, registered in her name. William Murphy, in whose name she directs that the bond given to New Castle Church shall be registered, was the deceased husband of the testatrix, and in his life-time had been a member of that congregation, while she had been a member of Mt. Moriah Church, to whom the other bond is given.

It has been earnestly argued that while these churches are not strictly corporations, yet they are quasi corporations, empowered to take and hold real estate as legal entities, under sections 1508 and 1509 of the Code, and that this capacity to take and hold real estate constitutes them, in a limited or qualified sense, corporations with capacity to be the recipients of a bequest such as that contained in this will. To support this position, counsel rely upon the case of Heiskell v. Chickasaw Lodge, 3 Pickle, 685, 11 S. W. Rep. 825. The sections of the Code relied upon as giving capacity to these voluntary religious organizations to take this charitable bequest, read as follows: "Any religious denomination or society, whether incorporated or not, may take, by deed or otherwise, and hold, not exceeding five acres of land at one place, for purposes of public worship." Mill. & V. Code, § 2006. "All lands bought or otherwise acquired by any religious denomination or society shall be vested in a board of trustees or other persons designated by the members of such denomination or society, for the use and benefit thereof." Id. § 2007. By the act of 1883, c. 37, carried into the Code of Milliken & Vertree at section 2008, provision is made for the conveyance of land so held by such church officers as may, by the rules of discipline of such churches, be authorized to make such conveyance. This provision, however, being enacted after the probate of Mrs. Murphy's will, cannot enlarge in any way the capacity of these churches to take the bequests now in question. The charity must stand or fall as it was found to exist at the date of the death of the testator. White v. Hale, 2 Cold. 77; Daniel v. Fain, 5 Lea, 325.

The capacity to take and hold real estate conferred by the sections of the Code quoted, operates to confer upon such a voluntary religious society the corporate right of existing as a legal entity for the purpose of holding and conveying, as defined in the statute; and a devise of land for a church-site, to be conveyed when a church building should be erected thereon, has been sustained as valid. Reeves v. Reeves, Id. 644. But this does not constitute such local church a corporation, save in an extremely qualified sense. The power or capacity has been expressly limited to an authority to take land for the purpose of a church-site. Id. 644. Indeed, in the case last cited, this power was so narrowly construed as to prevent such a quasi corporation from taking a devise of a house and lot to be used as a church parsonage. This view would seem to be hardly sustainable, inasmuch as a parsonage, in connection with a church, might be well deemed to be within the power to take land "for purpose of religious worship." However this may be, there can be no doubt but that a statute conferring quasi corporate capacity, upon such an unincorporated body, to take land for purposes of public worship, cannot, by the most liberal construction, be so extended as to confer power to take personal property. The reason for conferring power to take the one kind of property may operate as strongly in favor of the grant of power to take another sort of property; but such reasons should be addressed to the legislative authority, and not to the judiciary, whose duty is limited to the construction of the law, as enacted by the...