Starkweather v. the Am. Bible Soc'y.

• Decision Date: 31 January 1874
• Citation: 1874 WL 8755,72 Ill. 50,22 Am.Rep. 133
• Parties: RALPH E. STARKWEATHER et al.v.THE AMERICAN BIBLE SOCIETY.
• Court: Illinois Supreme Court

72 Ill. 50

1874 WL 8755 (Ill.)

22 Am.Rep. 133

RALPH E. STARKWEATHER et al.

v.THE AMERICAN BIBLE SOCIETY.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Cook county; the Hon. W. W. FARWELL, Judge, presiding. Messrs. MILLER & FROST, for the appellants.

Messrs. LAWRENCE, WINSTON, CAMPBELL & LAWRENCE, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellants, as devisees and heirs at law of Charles R. Stark-weather, deceased, filed their bill in the circuit court of Cook county, to establish their title to the real estate owned by testator in his lifetime, under what is known as the “Burnt Record Statute,” and, amongst others, the American Bible Society was made a defendant. The society appeared, and claimed an interest in the property under the fifth clause in his will. Its right was contested, and the court below rendered a pro forma decree in favor of the Bible Society, to reverse which this appeal is prosecuted.

There is no question raised as to the proper execution and probate of the will, nor is it disputed that the will contained a devise of the interest claimed by appellee. The clause in the will is this: “I give and bequeath to the trustees of the American Bible Society, established in 1816, an undivided eighth of my estate, to have and to hold the same for the use of said society; provided, that said Bible Society is not to be entitled to the same, or to the income of the same, till my youngest child becomes of age.”

The society was incorporated by a statute of the State of New York, passed on the 25th of March, 1841, for the purpose of publishing and promoting the general circulation of the scriptures, without note or comment. It was vested, by its charter, with the powers granted to corporations in that State by their Revised Statutes, amongst which is this power: “To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.” The Statute of Wills in that State, adopted in March, 1813, authorizes persons having real estate to devise the same to any person or persons, except bodies corporate and politic, by their last will and testament. Again, in 1822, in revising the statutes, it was provided that corporations might take, purchase and hold real estate, but it was declared that no devise to a corporation should be valid unless such corporation be expressly authorized by its charter to take by devise.

Thus it will be seen that the charter of this company does not prohibit it from taking property by devise, but the Statute of Wills does expressly declare that no devise to a corporation shall be valid, unless such corporation is authorized, by its charter or by statute, to take in that manner. These provisions, thus found in different chapters of the statutes of New York, have given rise to litigation in that State to obtain a construction of these acts. The courts of last resort in New York have held, that a devise to a corporation not thus expressly authorized to so take real estate in that State was void, and that such corporations have no power to so receive and hold real estate. See Downing v. Marshall, 23 N. Y. R. 366, McCarter v. Orphans' Asylum, 7 Cow. 437. In these cases it was held, that these statutes must be regarded as being in pari materia, and should be construed together, and we have seen the result at which their courts arrived.

At the common law it is believed that no such devise could be made, and the 32 Hen. 8, ch. 1, and the 34 Hen. 8, ch. 5, commonly called the Statute of Wills, gave power to every person having sole estates in fee of manors, etc., “to give, dispose, will or devise to any person or persons, except to bodies politic or corporate, by his last will and testament, such lands,” etc. Thus it will be seen that New York adopted this enactment in substance, and the policy of these statutes was, undoubtedly, to prevent gifts to these bodies in mortmain. It is also said, that “where the Statute of Wills excepts bodies politic as competent devisees, the usual power given to corporations by charter or act of incorporation to purchase lands, etc., has been construed not to qualify them to take by devise, the word ‘purchase’ being understood in its ordinary and not in its legal and technical sense.” Angell & Ames on Corp. 111, and in support of the text they refer to Jackson v. Hammond, 2 Caines' Cases, 337, McCarter v. Orphans' Asylum, supra, Canal Co. v. Railroad Co. 4 Gill & Johns. 1, which sustain the rule.

We, then, find a corporation created and located in New York, incapable, by devise, of taking and holding real estate there, claiming to hold real estate here, devised to it by a citizen of this State. Appellee contends that the Statute of Wills in New York only operates as a disability upon all persons in that State to become devisors of real estate to this company, and that the charter does not prevent them from receiving lands in other States, by devise, from persons beyond the limits of the State, and hence this devise is valid and binding. We have seen that the courts of New York have held that such companies are not authorized to so take and hold property in that State; and if incapable of doing so there, how, it may be asked, can it exercise powers and discharge functions beyond the limits of that State which it is not capable of doing under the laws of the State which created and endowed it with its powers and functions? Such bodies have such powers, only, as are conferred upon them by the laws of the State in which they are created.

It does not matter whether this body is prohibited by its charter or by the Statute of Wills in New York from taking lands by devise. Whether the one or the other statute creates the disability, the effect is the same, as it goes to the power of so taking and holding. When this body was incorporated, the Statute of Wills was in force, and the courts of New York hold that it controled the powers of the company as though both provisions had been contained in the same enactment. If so, the disability is fundamental. It operated to create a corporation that might perform the acts and exercise the privileges conferred, but without power to receive lands by devise. Such a prohibition goes to the power of the body, as well as to persons disposed to devise lands to them. If, then, the corporation was created without power to so take, it is incapable of doing so, no matter where the devisor may reside or the lands are situated. The reasons operating on the legislature when they refused to endow this and other similar organizations with such capacity, grew out of considerations of sound public policy in thus preventing them from receiving and holding lands in mortmain--and this was effectually accomplished by their Statute of Wills.

We can perceive no difference whether the disability or prohibition is contained in the one or the other enactment, inasmuch as it operates on the body, as the New York courts hold, with the same effect, and produces the same results. It carries out the policy of the State as effectually in the one mode as in the other, and goes to the power to thus take real estate, and operates as a prohibition and a want of power; and the power not existing in the body to so take, all such devises to it must be held ineffectual to pass title, without reference to where the devisor may reside or the lands may be situated.

We are aware that other courts, of the highest respectability, have held that the laws of New York can not prevent this corporation from taking land out of that State, by devise, so that the devisor does not reside there; but we are unable to concur with them in so holding, as we think the inhibition is fundamental, and goes to the power to thus receive real estate.

It may be said, that, the lands not being in New York, it can, in nowise, affect the policy of that State for the company to hold lands in another State. Such bodies can only exercise their privileges and functions in other States by permission, expressed or implied. When by implication, it is denominated comity between States. For such bodies to hold property or transact business in a State different from that of their creation, they must have such permission. This being so, New York has no power to create a body incapable of taking lands by devise in that State, and yet with power to do so in a foreign jurisdiction. If their legislature was to so enact, and other States were to consent, then such bodies might, no doubt, so receive and hold lands; but that legislature has not so enacted in this case, nor has our State so consented.

The will in this case was probated on the 16th day of September, 1867, and we are aware of no statute of our legislature, then in force, which authorized foreign...