Church Extension of the Methodist Episcopal Church v. Smith ex rel. Guerke

Bartol, C. J., delivered the opinion of the Court. These are cross-appeals taken from a decree of the Circuit Court of Baltimore City, declaring invalid, several bequests made in the last will and codicils of Susie Duke Callow, deceased, and establishing as valid certain other bequests therein contained. The will was dated on the 2nd day of March 18T0, and the several codicils thereto were dated respectively April 25th 18T0, July 20th 18T1, and November 30th 18T5. The testatrix died in June 18T6.

The will and codicils were duly executed and were admitted to probate on the 13 th day of July 18T6, and letters testamentary were granted to Samuel Gr. Taylor, the executor therein named. Soon after the lapse of thirteen months thereafter, the original bill of complaint was filed by Margaret Ann Smith by her next friend, heir-at-law and next of kin of the testatrix, alleging that certain bequests in the will and codicils were invalid. After- ³⁸⁷ wards by agreement tbe original bill was withdrawn, and the second amended bill of complaint, was substituted therefor.

All the parties in interest claiming as legatees were made parties to the cause. Most of the material facts were established by the written agreement of the solicitors filed in the case; among other things, the correct names of the several corporations mentioned and referred to in the will, were agreed to, and admitted to be the same corporations intended by. the testatrix, so that no question of misnomer arises in the case. The several Acts and certificates of incorporation were also admitted as if they were duly proved, and it was agreed that the same might be read at the hearing. The several bequests in tbe will are therein numbered from one to fourteen; of these Numbers nine, ten, eleven, twelve and thirteen are admitted to be valid, and are not questioned or impeached.

The others, viz., Numbers one, two, three, four, five, six, seven and fourteen are alleged in the bill of complaint to be invalid, and also the two bequests of $1000 each, in the codicil dated 30th day of November 1875, given in lieu of the $2000 which had been bequeathed to Mrs. Matilda Christopher by the eighth item of the will, and which had been revoked in consequence of her .death. Of the several bequests thus impeached, the Circuit Court decided that Numbers one, two, three and seven were valid, and from its decree in this respect the complainant has appealed; and as to Numbers four, five, six and fourteen, and those contained in the codicil of November 30th 1875, the Circuit Court decided that they were invalid, and from this part of the decree the several legatees therein mentioned have appealed; and they have also appealed from the decision of the Circuit Court as to the proper disposition to be made of the fund in cases where the bequests fail to take effect by reason of their invalidity. This last ³⁸⁸ question will claim our consideration after we shall have disposed of the several disputed items of the will. The will first disposes of certain articles of household furniture, clothing and personal ornaments according to the directions contained in a schedule thereto annexed, afterwards somewhat enlarged by a codicil, dated July 20th 1871.

The testatrix then devises and bequeaths all the rest and residueof her estate, real, personal and mixed, to Samuel G-. Taylor, the executor, in trust that he will sell the same, and after the payment of debts and funeral expenses out of the proceeds, pay the legacies following,, viz., Then follow the-names of the several legatees, and the amounts of the several pecuniary legacies to them, numbered from one to fourteen. The will then provides as follows: ‘ ‘ Should the proceeds of said property when sold and converted into money, be more than sufficient to pay the aforegoing legacies in full, it is my will, and I do-hereby order and direct my said executor to distribute-the surplus remaining in his hands, amongst said legatees pro rata. And in case the proceeds^ should prove insufficient to pay said legacies, it is my will, and I do order and direct the same ratably.” By the last clause of the will, the executor and trasteéis authorized and empowered to execute deeds, conveyances, &c., of the property directed to be sold.

The property has been sold, and the proceeds have-proved insufficient to pay the pecuniary legacies, if these were all legal and valid. So that there is no surplus as contemplated by the will in one of its aspects. The pecuniary legacies amount to $41,500, and it appears from the record that the money in the hands of the executor applicable to-their payment is $27,792.23, of which the sum of $2025 was the proceeds of the sale of real estate. 1. The first bequest is $4500 to “ The Missionary Society of the Methodist Episcopal Church, incorporated by the Legislature of the State of New York.” ³⁸⁹ The existence of the corporation is admitted, and its charter is produced and agreed to be read as if duly proved.

It is objected to this bequest, first, that the corporation has no power under its charter, to take personal property by bequest, and secondly, that being a foreign corporation, it is incapable of taking lands in Maryland, or any interest in lands in this State, and consequently in so far as the legacy is ^erived or payable from the sale of land, it is void. First. The sixth section of the charter, after declaring that the corporation is capable of receiving, taking and holding any real estate by virtue of any devise, subject to certain limitations therein mentioned, provides “ that the said corporation shall be also competent to act as trustee in respect to any devise or bequest pertaining to the objects of said corporation, and devises and bequests of real or personal property may be made directly to said corporation, or in trust for any of the purposes comprehended in the general purposes of said society; and such trusts may continue for such time as may he necessary to -accomplish the purposes for which they may be created;” There can be no doubt of the power of the corporation, under this section, to take the pecuniary bequest under Mrs. Callow’s will. Being a foreign corporation, the provisions of the 38th section of our Bill of Rights have no application to it, and impose no restraint upon the power of the testatrix to make to it a valid bequest of personal property, as was decided in Vansant vs. Roberts, 3 Md., 119, 128, 129, and Brown vs. Thompkins, 49 Md., 431 .

Second. As to the objection that a part of the fund in the hands of the executor, consists of the proceeds arising from the sale of real estate. We are of opinion that the effect and operation of the will, is to convert the whole estate into personalty, and to appropriate, the whole ³⁹⁰ blended fund, called “money” in the will, to the purpose of paying the debts, funeral expenses, and pecuniary legacies. Hurtt vs. Fisher, 1 H. & G., 88 ; Leadenham vs. Nicholson, 1 H. & G., 267 ; Thomas vs. Moore, 1 Md. Ch., 298 ; Curr vs. Ireland. 4 Md. Ch., 251 ; Smithers vs. Hooper, 23 Md., 273 ; Orrick’s Case, 49 Md., 104, 105 ; Given vs. Hilton, 95 U. S., 591 ; Singleton vs. Tomlinson, L. R., 3 Appeal cases, 404. • The will before us, like that in the case last cited, directs “that the whole estate, he turned into money, sc as to be converted out and out, not for a special purpose only, but for the general purposes of the will;” and after satisfying the several pecuniary legacies named in the will, the surplus, if any, is disposed of in favor of the same legatees, no part of it could go to the heir as real estate.

While it may be conceded that a devise of lands in Maryland to a foreign religious corporation would be held invalid as against the policy of the law, and contrary to the spirit of the 38th Article of the Declaration of Rights, which is analogous to the British Mortmain Acts, yet. it by no means follows, that where, as in this case, the will directs that the whole estate, real and personal, shall be converted into money, and constitute a blended fund for the purpose of paying debts and legacies, and the whole surplus is disposed of as mone}'; and a pecuniary legacy is given to a foreign religious corporation, any objection can be made to' the validity of the legacy because a portion of the fund out of which it is directed to be paid, is derived from the sale of real estate. In this case, there is a clear and manifest intent to disinherit the heir. — The whole fund must be considered and treated as money — and the bequest to the foreign religious corporation, not being affected by the provision of the Declaration of Rights — was rightly held by the Circuit Court to be a valid bequest. ³⁹¹ The bequest in the seventh item, of the will, is in these words, “ To my highly esteemed friend and pastor, the Eeverend Leonard M. Gardner, as a token of my respect and gratitude, the' sum of five thousand dollars.” We concur in the opinion of the Circuit Court, that this is a perfectly valid bequest. It is given to Mr. Gardner in his personal and individual character, for his own use absolutely, not in his character as a minister or preacher. It. does not, therefore, come within the terms of Art. 38, of the Declaration of Eights. • The legatee is designated by the testatrix as her “esteemed friend and pastor.” These words are descriptive of the person intended; the gift is to the man, and not to the preacher “as such,” within the meaning of Art. 38, which cannot be construed as disqualifying him, because of his vocatiQn, from receiving a legacy, or acquiring property without the sanction of the Legislature.

The second clause of the will gives to “the Methodist Preachers’ Aid Society of Baltimore,” $4500. The third, to “the Home of the Aged of the Methodist Episcopal Church of Baltimore City,” $5000. The fifth, to “the Trustees of the Strawbridge Methodist Episcopal Church, situated on the corner of Garden and Biddle streets,” $2000. The sixth, to “the Trustees of the United Presbyr terian Church, situated on the corner of Madison avenue and Biddle streets,” $1000.

And the codicil of November 30th 1875, gives to “ the Baltimore City Missionary and Church Extension Society of the Methodist Episcopal Church, incorporated under the General Laws of the State of Maryland,” $1000. These five legacies will all be considered together, the several legatees are domestic corporations, the two last named were incorporated under the general laws of the State, and the others were incorporated by special Acts of Assembly, each of them is entitled to hold property to a limited amount, and it is admitted that if the several ³⁹² pecuniary legacies given them hy the will he held valid, the funds thus accruing to them will not be in excess of the limitations fixed "by their charters. It is conceded that the three last named are religious corporations within the meaning of the 38th Article of the Declaration of Rights. The two first named, viz., “ The Methodist Preachers’ Aid Society,” and “The Home of the Aged of the Methodist Episcopal Church,” it is contended, are eleemosynary associations, not religious or sectarian in their character, and consequently not within the terms of the 38th Article ; and so the Circuit Court decided, and for that reason sustained as valid the legacies • given to them.

In the view we take of the case, it seems to us to be unnecessary to pass upon that question. Assuming them to be' religious corporations within the meaning of the 38th Article, and subject to the disabilities provided. by that Article, without however so deciding, we shall consider all the five corporations named as standing in the same category, and incapable of taking the bequests without the sanction of the Legislature. And this brings us to the consideration of the question whether such sanction has been validly and effectually given. We quite agree with the complainant’s solicitors in the position that the power to .take and hold property to a specified amount expressed in the charters, whether the same are created by express legislative enactment, or formed under the general corporation laws, cannot be construed as a sanction by the Legislature within the intent and meaning of the 38th Article, conferring upon them the capacity to take under a devise or bequest.

Such a construction would render nugatory the important and carefully considered provisions of the 38th Article. In our opinion, the sanction of the Legislature contemplated and required by that Article must he expressly given to each particular devise or bequest, in order to render it valid. Such has been the uniform and invariable construction given to ³⁹³ that Article, or to similar provisions in the organic law, as is shown by the course of legislation for many years ; and the question was so decided in Orriclc’s Case, 49 Md., 105 . This point does not distinctly appear in the opinion delivered hy this Court, hut hy reference to the record in Orrick’s Case , it will appear that “the Lutheran Congregation of Boonsborough,” one of the legatees in Stonebraker’s will, was duly incorporated, and both hy the Acts of 1802 ch. 110, and 1815 ch. 222, and by the provisions in -its charter, was authorized to receive and hold property to a limited amount, and in its-answer these provisions of law were relied on to show a legislative sanction of the bequest, yet it was decided that the bequest was void, because of the incapacity of the corporation to take it, there being in that case no express sanction of the bequest by