Greely v. Houston , 148 Miss. 799 ( 1927 )

^* Corpus Juris-Cyc. References: Wills, 40Cyc, p. 1054, n. 87; p. 1055, n. 88; p. 1075, n. 58; p. 1892, n. 49, 50; p. 1899, n. 5; p. 1954, n. 65. As to power of religious society to take and hold property, see 23 R.C.L. 443, et seq. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal from a decree overruling separate demurrers of the various appellants to a bill of complaint in which they are defendants, and is for the purpose of settling the principles of the case.

The case set forth in the bill is substantially as follows: Frank B. Houston died in Cook county, Ill., while a citizen thereof, seized and possessed of a large amount of property, a part of which is situated in this state. He left a will by which, after making certain specific bequests and devises, he disposed of the residue of his property as set forth in item 3 thereof, which the reporter will set out in full. After providing for the appointment of the appellants, Greely, Graff, and Stewart, as his executors and trustees therein, the will continues as follows:

"I name these trustees in the confidence that they will be able to see that the property I leave is invested to provide a fair income for my sisters and brother, J.S. Houston, during their lives, and that the principal may be turned over intact to the ultimate beneficiaries to do some ultimate good."

The property in this state consists of land, a part of which is in cultivation, and certain personal property thereon. Houston sold a part of this land prior to his death to the Bellgrade Lumber Company, a Tennessee corporation, by a written contract signed both by himself and the Bellgrade Lumber Company, by which it was agreed that deeds to the land from Houston to the lumber company, each deed conveying a separate parcel, should be and they were deposited with the Commercial Trust Savings Bank of Chicago, Ill., to be delivered by the bank to the lumber company on the payment to it of the money which the lumber company agreed to pay for the land. Payments have been and are being made by the Bellgrade Lumber Company to the Commercial Trust Savings Bank under this contract.

Houston left surviving him as his sole heirs at law the brother and three sisters provided for in item 3 of his will, another brother, George T. Houston, and three children of a deceased sister, by whom the bill of complaint was filed.

The three churches and the Chicago branch of the Salvation Army are alleged to be religious institutions engaged in religious work. The Home for Destitute Crippled Children and the Old People's Home are alleged to be institutions engaged in work of a charitable nature.

The brother and three sisters provided for in the will, by proper allegations in the bill of complaint, expressly decline to accept the provision therein made for them, in so far as it affects the property of the testator in this state, and renounce the will to that extent. The bequests over to the religious and charitable institutions on the death of the beneficiaries of the trust are alleged to be void, because, in violation of sections 269 and 270 of the Constitution, and of sections 5090 and 5091, Code of 1906 (sections 3578 and 3579, Hemingway's Code 1927), which are rescripts thereof.

The prayer of the bill, in substance, is that these bequests over be held void, and that the trustees be directed to deliver the property in Mississippi attempted to be disposed of by the will to the complainants as heirs at law of Frank B. Houston, deceased.

The two main contentions of the appellants, defendants in the court below, are: (1) No action can be maintained by the testator's heirs at law to determine the validity of the devises and bequests to the religious and charitable institutions until the termination of the precedent trust by the death of the beneficiaries thereof; and (2) the remainders over to the religious and charitable institutions after the termination of the precedent trust are valid.

A devise or bequest does not become effective until accepted by the devisee or legatee, who has the right to accept or decline it as he may desire; and, when a devisee or legatee refuses to accept a devise or legacy, the property devised or bequeathed to him will be dealt with as if the devise or legacy had not been made. When a devise or bequest is followed by a limitation over on the death of the devisee or legatee, the refusal of the devisee or legatee to accept it is the equivalent of his death, and the limitation over becomes then effective, unless it is manifest from the provisions of the will that the testator intended otherwise. Rose v. Rose, 126 Miss. 114, 88 So. 513. That the bequest here is in the form of a benefit under a trust is of no consequence, for the will contains no provision, and the trustees are charged with no duty which remotely indicates that the testator intended the trust to remain in effect in the event the cestuis que trustent declined to accept the benefit thereof. The testator's manifest purpose in postponing the enjoyment of the property by the religious and charitable institutions until the death of the beneficiaries of the trust was that they (the beneficiaries of the trust) might receive the income thereof until their death. The renunciation of the will by the cestuis que trustent, in so far as it affects the property dealt with therein that is situated in this state, terminated the life estate of the trustees in that property, and the limitations over on the termination of the trust became at once effective.

Coming now to the validity vel non of the remainders over on the death of the beneficiaries of the precedent trust, and dealing first with the devise of the land, it is said by counsel for the appellants that the rule that a devise of land is governed by the law of the state wherein it is situated should not be applied here, for, to test the validity of Houston's will by section 269 of the Constitution, would be to give it an extraterritorial effect. In support of this contention they say that the purpose of that section of the Constitution is not to limit testamentary power, but to prevent the accumulation of property in the hands of religious institutions, and that the institutions to which this property was devised and bequeathed are domiciled, not in Mississippi, but in Illinois and Iowa, in which states such institutions may hold property devised or bequeathed to them.

One of the purposes sought to be accomplished by section 270 may be to prevent the accumulation of property in the hands of religious institutions; but it is not the only one, for, as expressly set forth in Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737:

"The purpose of the Constitution is to prevent one who will not be charitable at his own expense from being so at the expense of his heir at law. . . . The limitation is upon testamentary power."

The will directs the trustees to sell the testators real property and invest the proceeds in personal property, because of which the appellants say that, under the doctrine of equitable conversion, the will must be dealt with as if it disposed of personal property only, and therefore its validity must be determined by the laws of Illinois. Section 269 of the Constitution renders void, not only a devise of land for religious and charitable uses, but also any direction in a will that land be sold and the money received therefor be applied to such uses. The direction in Houston's will that his land be sold and the money received therefor invested in personal property is therefore ineffective in so far as the religious and charitable institutions are concerned, and, consequently, the ground on which they base their claim for the application of the doctrine of equitable conversion disappears.

On behalf of the nonreligious charitable institutions, it is said that section 269 of the Constitution does not prohibit a devise of land or its proceeds direct to a nonreligious charitable institution, unless accompanied with instructions to appropriate it to charitable uses, and that the devises here are not accompanied with any instructions at all; consequently, the constitutional prohibition is not violated thereby. The devises to these nonreligious charitable institutions are not wholly unaccompanied by instructions as to their use, for the testator expressly stated in one paragraph of his will that the estate devised in trust for the benefit of his brother and sisters should, after their death, "be turned over, intact, to the ultimate beneficiaries to do some permanent good." But, without this, it is clear from the whole will that the testator meant for the money which these nonreligious charitable institutions should receive under his will should be expended by them in carrying on the charitable work in which they are engaged. He could have had no other purpose in leaving the money to these institutions, and his purpose to appropriate this money to charitable uses will, in all probability, be as effectually accomplished as if he had created a trust therefor by the use of the most approved and technical words. Compare Maas v. Sistersof Mercy, 135 Miss. 505, 99 So. 468.

Section 269 of the Constitution prohibits a devise of land direct to a religious institution or in trust for the use and benefit of such an institution "or for the purpose of being given or appropriated to charitable uses or purposes." Section 270 prohibits a bequest of personal property to a religious institution "either for its own use or benefit, or for the purpose of being given or appropriated to charitable uses," but, unlike section 269, prohibits a bequest in trust for charitable uses only when the trustee or the one to make the appropriation to charitable uses is a religious institution. Why a distinction between real and personal property should have been made in these sections of the Constitution is not apparent (Blackbourn v.Tucker, 72 Miss. 735, 17 So. 737); and counsel for the nonreligious charitable institutions say that it is manifest that no distinction was, in fact, intended. They say that the purpose of each of these sections is the same, and is to prevent devises and bequests of property to religious institutions for any purpose whatever; and that section 269 should be so construed, thereby bringing it into harmony with section 270. This contention was negatived in Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737, wherein a devise of land to a college was held to violate section 269, the court saying it had "sought in vain for some principle upon which the two sections might be brought into harmonious reading by construction."

The appellants contend that the bequests of the personal property are governed: (1) By the laws of Illinois, the state of the testator's domicile, under which they are valid; and, if not, but are governed by the laws of this state, then (2) under section 270 of the Constitution, the bequests of the personal property to the nonreligious charitable institutions are valid. The second of these contentions is, of course, true; but it will not be necessary for us to decide the first, for, should we hold that the bequests of the personal property are governed by the laws of Illinois, we must nevertheless affirm the overruling by the court below of the demurrers to the bill of complaint, for the appellees would still be entitled to recover the land. For the same reason it will not be necessary for us to determine whether the Bellgrade Lumber Company land was converted in equity into personalty by the contract for the sale thereof executed by the testator prior to his death; and, in addition, whether this land was converted into personalty should be decided in the light of the facts alleged in the answer of the Bellgrade Lumber Company, which cannot now be done.

Affirmed and remanded, with leave for the appellants to answer the bill of complaint within thirty days after the filing of the mandate in the court below.

Affirmed and remanded.