62 Iowa 339 | Iowa | 1883
Tbe cause was submitted upon an agreed statement of facts, from which it appears that tbe Presbyterian church of Libertyville was organized and incorporated on tbe 28th day of May, 1855, and that it has kept up its organization, and exercised all tbe privileges and franchises of a corporation, to tbe present time. The plaintiffs insist that tbe corporate existence of tbe church in question ceased upon tbe lapse of twenty years from tbe date of its incorporation, to wit, on tbe 28th day of May, 1875. Tbe plaint
Section 1187 of the Revision is the same, and section 1091 of the Code of 1873 is Substantially the same. It is said by the appellants that section 681 of the Code is not applicable to corporations not formed for pecuniary profit, and that, consequently, by express provision of section 708, it does not apply to such corporations.
As now advised, this court is not agreed upon this question, and we do not deem its determination essential to a disposition of this case. The defendants insist that it is not necessary that the church in question should be incorporated, in order to take the benefits of the devise in question. The defendants rely upon Miller v. Chittenden, 2 Iowa, 315; s. c. 4 Id., 252; and Johnson v. Mayne, 4 Id., 180. The latter case is more directly in point. The doctrine of that case, and of the authorities which it cites and approves, is that, when there is a devise of real estate to a church or
II. Section 1101 of tbe Code of 1873, which is found in tbe chapter upon corporations other than for pecuniary profit, provides: “Any corporation formed under this chapter shall be capable of taking, bolding or receiving property by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, but no person having a wife, child or parent shall devise or bequeath to such institution or corporation more than one-fourth of bis estate, after the payment of bis debts, and such devise or bequest shall be valid only to tbe extent of such one-fourth. Tbe plaintiffs insist that, as Mary Byers left children, tbe devise can in no event be enforced to tbe extent of more than one-fourth of her estate. Upon tbe other band, the defendants insist that the church in question was not incorporated under the chapter referred to in section 1101, and that, therefore, that section does not apply. It would be anomalous if a church by refusing to incorporate could evade the provisions of that section. The section refers to such institution or corporation. The words, “such institution,” we think, refer to the associations named in section 1091 of the Code, and such associations, whether incorporated or not, it seems to us, can not take by will more than one-fourth of the estate of a testator, who leaves a wife, child or parent. Because the court held the will wholly void, the judgment is
Reversed.