82 Mo. 418 | Mo. | 1884
Plaintiff, as a corporation, instituted this suit in the circuit court of Caldwell county to establish a certain paper writing, as the last will and testament of Ilott Tobbein, deceased, which having been offered for probate to the probate court of Caldwell county was rejected. This cause was taken by change of venue to the circuit court of Livingston county, where plaintiff'obtained a judgment, from which defendants have appealed.
Ilett Tobbein died in September, 1879, leaving as his last will and testament the paper writing in question, which contained the following devises and bequests, viz.: To his wife, if she survived him, a life interest and estate in and to all his property, consisting of real estate and personalty, with full power to manage, control and use it, during her life, and, at her death, to her legal heirs one half of all of his estate, and the other and remaining half to the Catholic Church at the city of Lexington, in the State of Missouri. The other dispositions of his property, were upon condition that he survived his wife, and, she having survived him, it is not necessary to notice them. Before the institution of this suit, Mrs. Tobbein renounced the provisions of the will, and made her election to one-half of the estate absolutely.
One of the principal questions discussed by the briefs of counsel relates to the corporate existence of the plaintiff', which was put in issue by the answer.
In the The City of St. Louis v. Shields, 62 Mo. 252, this court expressly sanctioned the doctrine laid down by Judge Cooley in his work on Constitutional Limitations, page 254, that whether a corporation exists de jure or not, its existence cannot be questioned in a collateral proceeding, if it appear to be acting under color law, and recognized by the State as such. The question of its being must be raised by the State itself, on a quo warranto or other direct proceeding ; and this, although the act incorporating it, or authorizing its incorporation, is violative of the constitution of the State.
But there is another question decisive of the case against plaintiff' if answered in the negative, viz : Lid the incorporation of the plaintiff' vest in it the property rights of the Catholic Church at the city of Lexington? The will took effect before plaintiff was incorporated and the provision in Tobbein’s will was for the Catholic Church at Lexington, and not to the plaintiff' corporation, which it seems adopted its name with reference to that provision of the will, and stands upon no better footing in this controversy than if it had a different corporate name. The Catholic Church at Lexington did not lose its existence or organization in the incorporation of the plaintiff'by the same name. Our constitution provides that: “No religious corporation can be established in this State, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries.” Const. 1875, art. 2, § 8. There can, therefore, be no incorporation of a church for religious or other purposes in this State, except only for the sole purpose of holding the title to such real estate, and the quality as may be prescribed by general law
