Schallenkamp v. Stevens

• Citation: 81 S.D. 573,138 N.W.2d 657
• Decision Date: 15 December 1965
• Docket Number: D,No. 10279,No. 146 and M,No. 143,146 and M,143,10279
• Court: Supreme Court of South Dakota
• Parties: Lucy SCHALLENKAMP, Plaintiff and Appellant, v. Walter STEVENS and J. F. Haas as Co-Administrators with the Will Annexed of the Estate of F. Eugene Stainsby, Deceased, and Old Glory Lodgeorning Glory Lodgeefendants and Respondents.

Page 657

138 N.W.2d 657

81 S.D. 573

Lucy SCHALLENKAMP, Plaintiff and Appellant, v. Walter STEVENS and J. F. Haas as Co-Administrators with the

Will Annexed of the Estate of F. Eugene Stainsby, Deceased,

and Old Glory Lodge No. 146 and Morning Glory Lodge No. 143,

Defendants and Respondents.

No. 10279.

Supreme Court of South Dakota.

Dec. 15, 1965.

Rehearing Denied Jan. 5, 1966.

Rex M. Sheild, Salem, Blaine Simons, Sioux Falls, for plaintiff and appellant.

Zimmer & Connelly and John H. Zimmer, Parker, for defendants and respondents.

HANSON, Judge.

F. Eugene Stainsby died June 23, 1964 leaving the following will:

'I, Eugene Stainsby, on March 24, 1964, do hereby make my last Will and Testament. I leave all my personal property, household goods to Mr. and Mrs. Ernest Alsgaard and family.

'To the Old Glory Lodge No. 146 and Morning Glory Lodge No. 143, I wish to leave my farm, the Southeast 1/4 of Section 23, Richland Township not to be sold but rented to Odd Fellows or Rebbeccas, income to be used by both lodges.

'Burial expenses to be absorbed by both beneficiaries.

'Signed F. Eugene Stainsby.

'Witnessed by

J. F. Haas

Marvin McKay'

The will was admitted to probate in the County Court of McCook County. Lucy Schallenkamp, a sister of decedent and only surviving heir commenced this action for a declaration of her rights. She has appealed from an adverse judgment.

Old Glory and Morning Glory are both subordinate lodges affiliated with and chartered by the Independent Order of Odd Fellows of South Dakota. Both are located at Canistota. Their nonprofit, benevolent and fraternal character qualifies them for incorporation under the Benevolent Corporation Act of South Dakota as provided by SDC 11.14. Neither is incorporated.

The single question presented is whether or not a voluntary, unincorporated, benevolent and fraternal association may take real property by devise in this state.

At common law, an unincorporated association is not regarded as a legal entity and has no status distinct or apart from the persons comprising the group. 6 Am.Jur.2d, Associations and Clubs, Sec. 1, p. 429. Any rules regarding them developed from rules of law relating to individuals. 'At one time there were policy reasons why this should be so. Developments in England, discernible as early as the reign of Edward III, established that the capacity to act as a group in the legal system did not follow from the fact of being a group, but from a royal grant of the right to be a group. This theory, the franchise theory, which assisted the assertion and maintenance of royal power, produced the common law rule that where a society which had not been incorporated presumed to act as a corporation the members would be guilty of a contempt of the monarch, inasmuch as they had usurped his prerogative. In such a climate of thought the royal courts would not be disposed to develop legal techniques to assist the unincorporated groups in the matter of holding property and other matters.' Ford, Dispositions of Property to Unincorporated Non-Profit Associations, 55 Mich.L.Rev. 235 (1956).

Despite the common law unincorporated group activity has survived to serve many useful civic and social purposes. Their functions are varied. Best known and most numerous are voluntary, nonprofit, unincorporated groups or associations comprising church congregations, cemeteries, fraternal and benevolent orders, recreational, civic, political, educational and social clubs. Of necessity, many own property. Neverthless, as pointed out in Vol. 1, Powell on Real Property, p 486 'Some courts persist in the viewpoint that an unincorporated group is not an entity and hence that a deed to such a group, in its collective name, is a nullity. Like holdings have been made concerning wills which devise land to a group as such. An occasional statute retains this unrealistic attitude. The unrealism of the above position stems from the facts * * * that groups do function widely and variously in present day society and must be provided some means for collective acquisition, utilization and transfer of land.' In the same vein Page on Wills, Vol. 1, Sec. 17.14, p. 832 states: 'The problem of the capacity of an unincorporated association to acquire real property as a testamentary donee is but an ordinary part of the much larger problem of the capacity of...