State Ex Rel. Knox v. Sisters of Mercy

115 So. 323, 150 Miss. 559, 1928 Miss. LEXIS 100

• Court: Mississippi Supreme Court
• Decided: January 23, 1928
• Docket: No. 26546.
• Status: Published

Opinions

ANdebsoN, J.

Appellant, the state, on the relation of the attorney-g’eneral, filed its bill in the chancery court of Adams county against appellees the Sisters of Mercy of Vicksburg, Bight B ever end Bichard Gerow, Bishop of the Catholic Diocese of Natchez, Miss Emma Wood, whose religious name is Sister Imelda, and appellants Frank J. Julienne, Louis N. Julienne, Paul Julienne, Adolph L. Julienne, Harriett Julienne, W. S. Profilet, and Mrs. Louis J. Snelling to escheat to the state a considerable amount of valuable real estate situated in the city of Natchez, upon the ground that it was being held by the said Sisters of Mercy in violation of the laws and the public policy of this state. Appellees demurred to the bill, which demurrer was by the court sustained. The other appellants, who, for convenience, will be referred to as “the Juliennes,” answered the bill and made their answers a cross-bill which cross-bill was demurred to. The court sustained the demurrer to the cross-bill. The result of the action of the court on the demurrers to the original bill and the cross-bill was a decree dismissing the original bill and the cross-bill. From that decree appellant the state prosecutes an appeal, as also do appellants the Juliennes. Pending the litigation a receiver was appointed to take charge of and conserve the property involved. The decree of the court dismissing the original bill and cross-bill discharged the receiver.

The facts in the case are undisputed. They are embodied in the pleading's and the exhibits thereto. It was alleged in appellant’s bill as finally amended, substantially as follows: That on the 31st day of October, 1925, Mrs. Mary Q. Botto died intestate, leaving an estate consisting largely of real estate situated in the city of Natchez, in Adams county, in this state. Appellee Miss Emma Wood, known in her religious life as Sister Imelda, Mrs. Botto’s nearest of kin (a first cousin), is her sole surviving heir, having* been so declared by a decree of the chancery court of Adams county on the 20th day of July, 1926. Appellee the Sisters of Mercy of Vicksburg is a society incorporated under the laws of this state. Miss Wood, or Sister Imelda, was a member. As such she had taken all the vows and obligations required of her by the laws of the society, and of the Catholic Church, of which the Sisters of Mercy is a part, among which are the vows of poverty and obedience, and that all property of whatsoever kind she might acquire in any manner should inure to the benefit of and become the property of the society, the title thereto to be held by her as trustee for the society. The bill charged that such vows and obligations constituted a binding contract between her and the society of which she was a member, and that this court had so held in Maas v. Sisters of Mercy, 335 Miss. 505, 90 So. 468.

On the 9th day of August, 1926, appellee Sister Imelda conveyed the larger part of the property of which Mrs. Botto died seized and possessed to appellee Bishop Ger-ow, and his successors in office, as trustee, to be held and disposed of in trust for the benefit of appellee Sisters of Mfercy. That conveyance follows:

“In consideration of the sum of one ($1.00) dollar cash to me in hand paid, and other valuable considerations, the receipt of all of which is hereby acknowledged, I, the undersigned, Emma Wood, known in religious life as ‘ Sister Imelda, ’ do hereby remise, release, convey and forever quitclaim unto Right Reverend Richard O. Ger-ow, Bishop of the Catholic Diocese of Natchez, and his successors in office forever, as trustee, upon the conditions for the purposes hereinafter expressed, the property. ...

“This conveyance is in trust and for the following purposes and the following conditions:

“First. That the said trustee, or his successor, or successors, in succession, in the office aforesaid, shall, with reasonable dispatch, proceed to sell and convey, either with or without warranty of title, the property herein conveyed, and, as the lots or parcels of land are so sold, the proceeds of sale shall be paid over to the Sisters of Mercy, a body corporate under the laws of the state of Mississippi, and having its domicile at Vicksburg, in said state, using his best judgment and discretion as to the price and terms of sale.

“Second. That, in the meantime, the said trustee shall manage and control said property, either directly, or through an agent, or agents, to he selected by him, and after paying the costs of maintaining said property in a reasonable state of repair, the taxes and insurance thereof, and such other expenses in the handling thereof, as may arise, the proceeds shall be paid over to the said Sisters of Mercy, monthly, quarterly, or semiannually, as he may find it convenient. ’ ’

The bill alleged that the real estate conveyed by this' deed was held by appellee Sisters of Mercy, in violation of section 934, Code of 1906 (Hemingway’s Code 1917, section 4110); that the moving’ reason for such conveyance was the carrying out by appellee Sister Imelda of the vows and obligations taken by her, to hold all property coming into her hands in trust for the society. The bill sought to escheat the property to the state upon the ground that it was being held in violation of said statute. The bill alleged that there was danger of the property being disposed of by appellee Bishop- Gerow in carrying out the trust conveyance to him by appellee Sister Imelda. The bill prayed, first for a forfeiture of the property to the state and, in the alternative, that it be sold and the proceeds turned over to those entitled thereto.

Appellants the Juliennes set up in their answer and cross-bill that they were the next of kin to Mrs. Botto, after appellee Sister Imelda; that the latter was a first cousin, and they were second cousins of Mrs. Botto; that they were entitled to inherit the property involved instead of Sister Imelda, for the reason that the latter, by virtue of the vows and obligations taken by her to the appellee Sisters of Mercy to hold all property coming to her for the benefit of such society, thereby divested herself of any right to inherit the property. In other words, that by virtue of such vows and obligations she had become dead in law and incapable of taking property by inheritance. As stated, the demurrers to the original bill and the cross-bill were sustained.

Section 934, Code of 1906 (Hemingway’s Code 1917, section 4110), provides as follows:

“Any religious society or congregation or ecclesiastical body may hold and own, at any one place, the following real property, but no other, viz.:

“ (a) A house or tenement for a place of worship;

“(b) A house or tenement for a place of residence for its pastor or minister;

“(c) A house or tenement appropriated and used as a school or seminary of learning for males;

“(d) And another house or tenement to be appropriated and used as a school or seminary of learning for females;

“With a proper and reasonable quantity of ground, in each instance, thereto attached; and “(e) A cemetery of sufficient dimensions.

“(f) Any religious denomination may, in addition, own such college or seminaries of learning as it may think proper; and

“(g) A place of residence for its local clergyman in charge. ’ ’

The property involved is in excess of that which, under the statute, appellee Sisters of Mercy was authorized to own and hold. That fact is unquestioned. The position of the state is that property so held by a religious society is forfeited to the state, while appellee Sisters of Mercy contends that no such forfeiture takes place, because none is provided by the statute. Maas v. Sisters of Mercy, 135 Miss. 505, 99 So. 468, is not authority for the position taken by the state. In that case, the testator devised and bequeathed certain real and personal property to three members of the society of Sisters of Mercy. The widow and sole heir of the testator contended that in so disposing of the property onr Mortmain Statutes, sections 5090' and 5091, Code of 1906 (Hemingway’s Code 1927, sections 3578 and 3579), which are re-scripts of sections 269 and 270 of the Constitution, were violated. Each of those statutes provides a'penalty for its violation. The first section referred to provides, in substance, that all devises or bequests of lands to religious or ecclesiastical societies or associations of persons, either directly or indirectly, shall be void, “and the heir at law shall take the property so devised or bequeathed, as though no testamentary disposition had been made.” The second section provides, in substance, that every legacy, gift, or bequest of money or personal property to any such religions or ecclesiastical ■ society or association shall be void, “and the distributees shall take the property as though no such testamentary disposition had been made.” The statute here involved contains no provision for ■ forfeiture of title to the property held in violation of it. Does the forfeiture take place in the absence of such a provision in the statute? We think this question is answered in the negative by the decisions of our court as well as the courts of this' country generally. The property held by a corporation in excess of that authorized by statute is not forfeited to the state- unless it is expressly so provided in the statute. State v. Edward Hines Lumber Co., 106 Miss. 780, 64 So. 729; Quitman County v. Stritze, 70 Miss. 320, 13 So. 36; Taylor v. Alliance Trust Co., 71 Miss. 694, 15 So. 121; Middleton v. Georgetown Mercantile Co., 117 Miss. 134, 77 So. 956; Wall v. Darby, 132 Miss. 93, 95 So. 791; People v. Stockton, 133 Cal. 611, 65 P. 1078, 85 Am. St. Rep. 225; Commonwealth of Pa. v. Railroad Co., 132 Pa. 591, 19 A. 291, 7 L. R. A. 634; Collins v. Doyle’s Executor, 119 Va. 63, 89 S. E. 88; West Virginia v. Baptist Home Mission, 96 W. Va. 447, 123 S. E. 440; 37 A. L. R. 200; Union Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188, 10 R. C. L. 607, 608.

,It was held in Maas v. Sisters of Mercy, supra, that the constitution and by-laws of the Sisters of Mercy, requiring the members thereof to take vows of poverty and obedience, depriving them of the right to own property in' their individual capacity, and making any property acquired by them inure to the benefit of the society, constituted a binding’ contract between the society and its members, while such members enjoyed the benefits of their membership, and that any property devised to a member of the society was thereby held by her in trust for the society. The state contends that under the authority of that case appellee Sister Imelda held the property here involved in trust for the benefit of appellee Sisters of Mercy. In other words, that the appellee Sisters of Mercy became the owner of the beneficial interest in the property, there being nothing outstanding except the bar legal title in the appellee Sister Imelda. "We do not decide whether that be true or not, but if it were true, by chapter 194 of the Laws of 1926 (Hemingway’s Code 1927, section 4525) the title to the property in appellee Sisters of Mercy was ratified and confirmed. It is provided, among other things in that statute, that the title to all real property now owned by any religious society, ecclesiastical body, or any congregation thereof, “be and the same is hereby validated and such society, body or congregation is authorized and empowered to continue to own the same or to convey or encumber the same.” There is no constitutional objection to such a statute. It violates neither section 87 nor 88 of the Constitution. The legislature could have authorized in advance the ownership by religious societies any amount of real and personal property whatsoever, except such as might come to them by devise or bequest, which is prohibited by the Mortmain provisions of onr Constitution and by the statutes enacted in pursuance thereof, as above shown. Furthermore, even if it be true that, under the authority of the Maas case, appellee Sister Imelda took the property involved as a mere trustee for appellee Sisters of Mercy, and if there were no statute confirming the title thereto in the latter, still there would be no forfeiture of the property to the state, as shown by the authorities already referred to. Appellee Sisters of Mercy would own the property with the right to convey it, although the title would be a defeasible one at the instance of the state. The state could force a sale of the property, but it could not take it from them.

The curative statute (chapter 194, Laws of 1926 [Hemingway’s Code, 1927, section 4525]) was passed before the execution of the deed by appellee Sister Imelda to appellee Bishop Gerow, by the terms of which the property involved was conveyed by the former to the latter in trust for the appellee Sisters of Mercy, The conveyance was made August 9, 1926. The statute went into effect March 15, 1926. Therefore the curative statute could have no effect on the title of the property acquired by appellee Sisters of Mercy by virtue of that conveyance. By that conveyance appellee Sisters of Mercy got the beneficial interest in the property. Appellee Bishop Ger-ow was a mere trustee for the benefit of the society. It is true, as stated, the property was in an amount in excess of that authorized by the statute to be held by appellee Sisters of Mercy, but as shown above, under the law no forfeiture resulted by reason thereof to the state, because the statute provided for none. Appellee Sisters of Mercy held a defeasible title to the property, it is true, but such a title it could convey.

It seems that what has already been said would preclude any right of appellants the Juliennes to inherit the property involved from the deceased, Mrs. Botto. Restrictions imposed by law upon a corporation as to the amount of property it may. hold cannot be taken advantage of collaterally by private persons, but only by direct proceeding's by the state which created the corporation. This principle applies to the next of kin as well as all other persons. Jones v. Habersham, 3 Woods, 443, Fed. Cas. No. 7465 (U. S. Circuit Court, 5th Circuit); Id., 107 U. S. 174, 2 S. Ct. 336, 27 L. Ed. 401.

We do not think there is any merit in the contention that if the state is not entitled to have the property involved forfeited to the state it has the right, under the allegations of the bill in this case, to retain jurisdiction over the trustee and force a speedy sale of the property. The conveyance from appellee Sister Imelda to appellee Bishop Gerow took place on the 9th day of August, 1926. Within thirty days thereafter the bill in this case was filed by the state. Its scope and purpose was not to force the execution of the trust by the trustee in that conveyance. The bill had no such object. It charged no breach of trust by the trustee. There is no intimation in the bill that the trustee would not speedily execute the trust according to the terms of the conveyance. On the contrary, it was alleged in the bill that appellee Bishop Gerow, the trustee, was proceeding to carry out the trust and convert the real estate into money and turn the proceeds over to appellee Sisters of Mercy, and unless restrained, he would accomplish that purpose. Under the law that is all the state had the right to ask. If the trustee should fail to carry out the trust by converting the real estate into money with reasonable expedition, it will be time enough for the state to move.

Affirmed.

Pack, J., took no part in tliis decision.