*1 And fact that Orín W. Cox the document signed undisputed.
We are that the case does McAnnulty opinion case, not control and that disposition present the written document awas sufficient memorandum to remove the oral from the bar of the antenuptial agreement Statute of Frauds. The judgment appellate reversed, must therefore be and the cause remanded circuit Lee court of for further County proceedings.
Reversed and remanded. (No. 45679. al.,
WILLIAM H. LOWE et v. THE FIRST Appellants, PRESBYTERIAN CHURCH OF FOREST et PARK al., Appellees.
Opinion January on rehearing denial filed 1974. Modified March 1974. GOLDENHERSH, J., dissenting. Mulder, Carton, of Chicago (Gardner, Douglas,
John Waud, & for counsel), Chilgren appellants. Bertram,
Richard D. Price Frederick both of J. Chicago, appellees. delivered the
MR. CHIEF UNDERWOOD JUSTICE the court: opinion
Plaintiffs, United Chicago States of America Church in the United *2 the and United Presbyterian Presbytery (hereafter Affairs, on Business and its Committee respectively) Counsel, suit for a mandatory and filed Building Budget defendants, the First Presbyterian injunction against Park and six as trustees of the Church of Forest individuals church, the of that church’s compel conveyance seeking real the Extension Board and personal property circuit of the The Cook court denied County Presbytery. motions for dismissal of the and for defendants’ complaint on and awarded summary judgment, plaintiffs judgment First District Court reversed Appellate pleadings. First 9 Ill. 3d (Lowe Presbyterian App. 415), and we allowed for leave to plaintiffs’ petition appeal. 8, 1968,
Plaintiffs that on October Presby- allege a resolution tery adopted dissolving the First Park Church of Forest as of Presbyterian October 31, 1968, and directed that the assets of the church be committee. Defendant trustees by liquidated plaintiff refused to the real or turn convey subsequently property over the this suit personal property followed.
The essence of this is found in the controversy that the church is a defendant allegations corpora- tion Act, Not For Profit Ill. Rev. (General Corporation Stat. ch. et 163a title to the par. seq.) holding real estate in for the use its and benefit of controversy and that the defendants constitute a member congregation; church of the to its control and Presbytery subject Plaintiffs assert that the defendant church is supervision. subordinate to the and that under the provis- ions of XXXII of the Form of Government of the chapter are United Church defendants required accordance with directions convey property XXXII Presbytery. Chapter provides: particular
“Whenever hereafter formally by presbytery, dissolved or become by extinct dispersal members, reason of the its abandonment work, cause, have, property or may such as it held, personal, both real and shall applied be used and uses, purposes, such presbytery and trusts may as direct, limit, appoint, property may or such sold be disposed may direct, as the presbytery in conform- ity with the Constitution of the United Church in the United States of America.” Section 62.11. “Whether particular civil law trustees of a hold title to its or are officers of a corporation thereto, which holds title shall deal with only they may such be authorized or directed session, authority respect their selling, mortgaging, of real shall leasing be any rights also to reserved bylaws civil particular law or the church and to the provided.” permission presbytery as herein Section 62.08.
Plaintiffs further defendant church allege *3 all of its the and honored operations always recognized until directed the authority by Presby- Defendants, to transfer in their amended tery property. answer, the Extension had state that Church Board the conveyed and previously property quitclaimed them, are to and that without question plaintiffs authority to the order to the defendants to reconvey property Church their Extension Board. Defendants that deny of church was ever to the control or subject supervision the not a and while do resolution deny Presbytery, they the the defendant adopted by Presbytery dissolving the was an assert that resolution assumption the in the authority existing organization the also that Presbytery. They subsequent allege the church as a defendant incorporation $30,000 in it out over rebuilding, corporation, paid the and and church building premi- remodeling renovating ses, the and this work was for with proceeds paid $25,000 the the remainder from loan of mortgage also state They prior church’s treasury. defendant needed all the funds the members provided incorporation the church building. for maintenance operation of the defend- that the members further Defendants allege to hold desire to continue regular unanimously ant church church services. is that conveyance quit- theory
Defendants’ an church was the defendant outright claim deed to and, an declaration in the absence of express transfer to the control trust, should not be property and reversed agreed Presbytery. appellate on Calkins court, basically of the trial relying judgment involved contract Ill. 463. Calkins Cheney (1879), the Protestant Church purchase Episcopal by parish Money erect a church a lot which to parsonage. upon was obtained by for project purchase rental or and from from members of donations parish sale of building. proposed pews control of intended to eliminate congregation sole control and and retain management Bishop to convey thereof. To that end it was arranged with no “Trustees of Christ Church” of trust in the deed any declaration express document. members Minority a rector
Calkins filed suit deposed enjoin as rector Protestant Church from serving Episcopal from Christ and to enjoin services, or him, to officiate at him compensating allowing reside in the the case the court parsonage. deciding looked to the deed to the trustees conveying of Christ Church. That deed contained no declara- express tion of trust the Protestant Church in Episcopal *4 nor was there a written declaration of general, separate the clear efforts trust the trustees. court also noted by of the and trustees to avoid interference by congregation On facts the court held that the these property Bishop. to the of Christ belonged outright 408
was not held in trust for the benefit of the church, parent and was not to the subject control of any ecclesiastical judicatory.
Defendants in this suit and the court, in the appellate absence of an declaration express of trust benefit of the have relied on Calkins. It is not title to the disputed legal here is in the trustees of the church virtue corporation of the Therefore, deed. quitclaim defendants, assert plaintiffs have no to order transfer since, of the right property, urge, only control the local church. Defendants also cite Dubs v. Egli Ill. (1897), 514; Illinois Classis Church Holben v. Reformed and Glader (1919), 286 v. Schwinge (1929), as either Calkins or it with following citing approval.
While this has surface approach we do not appeal, believe the in Calkins is here. Resolu- holding dispositive tion of the issue here us to more do than requires simply examine the deed so, conveying property. doing however, it is that the necessary freedom of recognize both Federal and State religion guaranteed by constitu- tions limits the of action a civil court in scope settlement of have, over church Courts disputes property. with success, such varying degrees sought, resolving controversies, to formulate principles preserve interest protect of the State without legitimate undesirable or interference in the impermissible internal of those rules which operation churches have chosen as their own form of government.
The more recent view law to church relating attaches substantial disputes significance internal structure or and the polity church. parent (Watson Jones, U.S. (13 Wall.) 726-727, 666, 676; L. Ed. v. St. Nicholas Kedroff Cathedral the Russian Orthodox Church North America, 94, 116, 120, 136, 334 U.S. 97 L. Ed. 73 S. Ct. *5 143; First Pres- First Church v. Cumberland Presbyterian Church, A in factor byterian major 95.) and control of church of ownership resolving questions and nation- from between local disputes property resulting is al church the structure parent organizations to the local church. and its body relationship Watson; in the United States Kedroff; Presbyterian Elizabeth Hull Memorial Presbyterian Blue Mary 601; 393 U.S. L. Ed. 89 S. Ct. 2d First First Presby- Church v. Cumberland Presbyterian terian Church.
Watson is a case which modern century-old begins view of the law on church A Presby- property disputes. Louisville, terian into divided Kentucky, congregation two factions as the result an of differing opinions regarding oath Each faction claimed slavery. stating opposition the local church The General Assembly building. Church decided that which majority, oath,
favored the was the successor to the legitimate to use the entitled property. Court noted that the local awas Supreme member national Church subject to its control and of ecclesiastical system government. Therefore, since the General had decided Assembly the court was bound that decision. question, by held classifying property questions concerning rights ecclesiastical bodies into three by general categories, court observed:
“1. The first of these is when the which property been, is the controversy by donor, by deed or will of the or instrument held, which the is terms express of the instrument devoted to teaching, sup- or of some form of port spread specific doctrine or belief. The second is is
2. when held which, the nature of its religious congregation of other is strictly independent organization, associations, so far as church ecclesiastical concerned, no is owes fealty government to any authority. obligation higher 3. The third is where the religious congregation or ecclesiastical but body holding member of some subordinate ecclesi- there are superior organization astical tribunals with a and ultimate control more or less some *6 of complete power over whole membership judicatory supreme 80 U.S. of that (13 organization.” Wall.) general 722-723, 666, 679, L. Ed. 674. 20 note, A Intervention in Over the of Disputes Use Judicial Property, 1142, Harv. L. 75 Rev. 1143 (1962), also discusses the of church type organizations, indicating the three basic forms of internal church structure to be In the congregational, presbyterial episcopal. congrega- tional form the local is autonomous, while form the structure is presbyterial episcopal hierarchical.
The Watson dealt with the third opinion category, where the was a subordinate member of a church The court superior concluded general organization. case, this class of “whenever the questions faith, rule, or of or ecclesiastical custom or law discipline have these church been decided by highest carried, the to which the matter has been judicatories legal final, tribunals must such decisions as and as accept them, on in their to the case before binding application 666, 679, 727, them.” L. Ed. 676. 80 U.S. 20 (13 Wall.) in a In a recent Court more decision Supreme Church v. Mary church dispute, Presbyterian Elizabeth Blue Hull Memorial 658, 601, L. S. Ct. the court U.S. Ed. 2d church on a civil court from prohibited awarding which the the basis of the interpretation significance civil court accorded various church doctrine. aspects courts had sustained theory implied Georgia trust of local church benefit of the so adhered to the long tenets faith at the time of affiliation existing local churches. Whether church had the general departed from those tenets was determined courts. Georgia This allowed civil court to determine approach ecclesiastical questions process resolving property and was held be in conflict disputes, direct with the of Watson which had elevated to been constitu holding tional stature in Nicholas St. Cathedral Kedroff Russian America, Orthodox In Church North 344 U.S. L.
97 Ed.
It is *7 that resolution of the here apparent controversy a the detailed examination of requires governmental structure of the United Church Presbyterian and the First of Church Forest relationship Presbyterian Park.
The United Church is Presbyterian one of two substantial church in bodies this Presbyterian country. n.20, A.L.R.3d (Annot., G. Weigel, citing Churches in North America Books (Schocken p. There are bodies, other smaller church 34).) Presbyterian all of similar structure. That structure governmental consists of a series of bodies called ascending Judicatories. At the trustees, lowest level is the Session of composed deacons members of the local At congregation.
the level ais made secondary local Presbytery up many churches such the Presbyterian Presbytery Chicago, one of the At here. the is third level plaintiffs Synod aof number of the comprised Presbyteries, supreme is the General body actions governing Assembly, are at all lower levels. Plaintiffs’ controlling allega- is the the United that this structure of Presbyterian tion contested, is nature of the Church and the Presby- church structure has been demon- terian governmental in the annotation strated a series of cases collected 324, at It is clear that United A.L.R.3d 417-423. form Church is hierarchical governmental Presbyterian it. The in that each has control of those below judicatory is each here of that member this structure significance the rules and directions is and Assembly. of its Synod Presbytery, First Presby- is whether remaining question Park terian Church of Forest is member hierarchical structure. therefore a of that part have certain events history Plaintiffs alleged with, and its affiliation defendant church as evidencing to, their answer subordination Presbytery. defend- on motion pleadings, plaintiffs’ judgment occurred, events but these do not deny ants specific rather, indicates their occurrence jurisdiction deny recital those events A and control in Presbytery. which has as to the nature of relationship illuminating the Presbytery church and existed defendant between church. and general X, section 7 of Form
In accordance with chapter of the United Presbyterian of Government giving new or receive to form congrega- Presbytery power authorized in 1913 tions, the Chicago Forest Church of Pioneer organization the Presbytery A was Park. approved pastor XV, section 1 of Form installed chapter pursuant later with name changed Government. *8 and consent of the the First to approval Presbytery Presbyterian of Forest Park. The church was as a incorporated not-for-profit religious corporation with a of the of compliance Form mandatory requirement XXVII, Government sec. facilitate the (ch. 3) designed activities the of local churches in receiving, holding We believe that the of transferring property. incorporation local church can be viewed as that hardly releasing from church control when such incorporation church for the required by reasons above stated.
In 1958 the Church Extension Board the Presby- tery Chicago conveyed question defendant church for a deed stated considera- quitclaim tion of one dollar. One later the year autho- Presbytery rized defendant church to mortgage property. Presbytery specified from proceeds mortgage be used for amount, specified term remodeling, and rate of interest. The also the cost Presbytery approved $15,000 be remodeling secured required before the pledges commenced. This was program done XXVII, pursuant section 10a chapter Form Government, that a church “shall provides sell or without written real any mortgage permission Presbytery.”
The defendant church has submitted its Session an minutes for review on annual Presbytery basis. terminated relationship pastor to the defendant of a retirement approved to serve while pastor moderator appointed an church was without active Similarly, pastor. of an at a
Presbytery approved
specified
purchase
organ
short,
the local church. In
it seems to us clear that
price by
since the
formation of the Pioneer
original
Church some 60
defendants have been an
years ago
Church.
United
Their
integral party
consent
its form
membership implies
government
*9
Elizabeth Blue
and their conduct
Mary
(Watson;
Hull),
that
its
Under that
during
period acknowledges
supremacy.
indicated,
earlier
is
form of
as
government,
authorized
direct
local church’s
disposition
that
There are no
dissolution of
church.
property upon
us
before
which
pleadings
justify
allegations
v. Roman
interference
a civil court. See Gonzales
Manila,
1,
131,
Catholic
U.S.
L. Ed.
74
Archbishop
280
Our here to Illinois law. conclusion new v. First Presby Church Cumberland (First Presbyterian terian Ill. case involved the cited 74.) 245 reunion of effect on local church of the two national of the Church. organizations separate Title church to a local building parsonage of the dependent upon validity merger. general had of the two churches decided already assemblies it: court held “this decision this upon binding question, that ecclesiastical court must follow the determination of here court determination property rights 74, involved.” In so court cited deciding (245 120.) Ed. L. Watson v. U.S. Jones, (13 Wall.) remarked:
“*** or where, here, as corporation to church is but title body holding of some subordinate member is a ecclesi- there superior organization tribunal, of review astical with jurisdiction over the inferior tribunals and control members, of such church and its judgment is, within binding tribunal legitimate sphere, courts, the civil and conclusive upon the civil must followed by such be judgment of such courts in the determination called the civil courts be upon may rights at 95. adjudicate.” to be principle garnered our controlling opinion from the of the cited United States holdings Supreme Court cases and from this own court’s in First holding First Cumberland Presbyterian Church is is a local church but a subordinate where of a member superior general organization, consented to its form of impliedly directly government, that church is bound decisions of the ordinarily circumstances, ecclesiastical In these the civil judicatories. cannot, courts process resolving property disputes between local and the general independently determine within the of ecclesi- questions properly sphere astical bodies. the decision
Accordingly, appellate *10 reversed, and the of the circuit court of Cook judgment is affirmed. County reversed; court
Appellate circuit court affirmed. GOLDENHERSH, MR. dissenting: JUSTICE I dissent. In the result achieved reaching opinion sound majority estab- disregarded legal principles lished court, earlier decisions of this which legal were evolved after principles careful consideration over a substantial of time and period deserve better than the cavalier treatment to which the majority opinion subjects them. of
The first over a hierarchical- controversy a involved a schism in church to reach this type and resulted in three opinions Presbyterian congregation Vasconcelles, 403; Ill. v. written. being (Ferraria Ferraria, 237; Vasconcellos Ferraria v. Vas concellos, that action 31 Ill. In 1851 the to parties 25.) left the island Madeira were members of the of where they Free of the Free Church under the Portuguese jurisdiction Scotland, Church of to came Jacksonville, Illinois, and there formed an unincorporated religious under the name of the Free Church. Prior body Portuguese received the certificate Madeira had they proper leaving
of Free of dismissal from the Church Presbytery Glasgow, which had unite with they required lot, In a Church of the United States. they purchased of the church took title the name of individual members trustees, with as erected and a building. members, unanimous consent of the presented their of letter dismissal from of Presbytery Glasgow were received in for and membership applied In 1858 schism occurred Sangamon. local church the members would be as to whether members, At 105 voted re-baptized. meeting from and 101 voted withdraw the Sangamon Presbytery withdrawal. took against majority possession filed an action for the minority building, peaceable the action. the trial court dismissed possession, an In its first the court applied implied-trust opinion and held that the who had withdrawn minority, theory the owners of from were Sangamon Presbytery, the donations The court said: “The object property. erection money, purchase edifice, the church was to afford of worship place then body usages principles according and not some organized, according usages The case was remanded body.” (23 409-410.) the court further and in the second opinion proceedings, if the local stated according congregation, *11 constitution, of the Presbyterian and usages government America Church of the States of could withdraw United consent, the then from the without its majority presbytery the it vote made independent congregation as it evidence in the record “The Presbytery. Sangamon fact, so, the this and if now to establish seems appears, unwarranted, and was action of minority irregular 237, The no Ill. it (27 239.) they acquired rights.” on the of a for evidence cause was remanded further right from to local withdraw presbytery congregation without its consent.
417 In the court ordered its third opinion partition “*** be the whatever ecclesias may property, stating: church, a a its church, tical or a to sever right portion with a with or connection without particular presbytery, follow, consent, it in so does not the majority church, entitled to the of the become acting, *** It the exclusion with truth be may minority. said, that as did not forfeit its majority right did the from, so neither property by withdrawing minority *** to, the proceeds adhering presbytery. them, therefore, to be divided between in ought, which members proportion seceding adhering of that each in bear point numbers.” Ill. 25, partition theory (31 53.) again 47, in Niccols Ill. v. also Rugg, applied involving church, schism in a in which the court referred to and Ferraria v. followed Vascon specifically celles. v. 463, Calkins Cheney, upon relied, contended
appellate principally plaintiffs that under the doctrine of Watson v. 80 U.S. Jones, (13 Vasconcelles, L. Ed. or Ferraria Wall.) in which the doctrine was implied-trust applied hierarchical as the adherents the tenets they, faith, Protestant were entitled to Episcopal enjoin the defendant from further church or officiating The court did not discuss premises. Watson occupying v. Jones, trust, and, an refused to find explicitly implied after various sections discussing religious-corpora statute, tion stated: statute,
“From these references to the it is clear trustees of an incorporated religious or association do not hold the society property, declared, absence of or at least clearly trust, for nor any implied general, the benefit of doctrines or tenets of any peculiar matters, faith and but practice solely for the whose officers society
418 are; not, and that are in the they discharge duties,
of their to the control of subject any ecclesiastical judicatory.
[*]
[*]
[*]
The
here
societies
incorporated
contemplated
***
are
civil
to be controlled and
corporations
of
under
law
managed
general principles
such
to
as administered
applicable
corporations,
463,
477,
476,
civil
courts.”
Ill.
478.
514,
v.
In Dubs
167 Ill.
there was a
Egli,
dispute
Park over
Church and
Bethany
Society Highland
use
of two factions had the
to
the church property.
right
v.
The basis of the
is set forth in Schweiker
controversy
Husser,
Later each
met
a letter of dismissal from
seek
respective consistpry
in
Illinois Classis
order that they
join
Springfield
might
determined that it had no
The Illinois Classis
Presbytery.
The trustees of the
letters of dismissal.
authority
grant
their
to a straw
two
then conveyed
congregations
to the
who
conveyed
respectively,
party
property,
and the
trustees of the Mt. Zion
Church
Presbyterian
at
trustees of the
Church
First Presbyterian
Stonington.
an action to
title
The Illinois Classis then filed
quiet
It
the trustees
two congregations.
alleged
against
from the Reformed Church
withdraw
attempt
to the constitu-
was contrary
Church
Presbyterian
join
Church and constituted
tion and laws of the Reformed
that uder
of the local
dissolution
congregations,
Church,
when
Reformed
constitution and laws of
in
vested
becomes
dissolved, its
is
the church.
body
in Illinois Classis
Cheney,
Calkins
Citing
trust
declaration
no
“The deeds contain
express
stated:
of any
the benefit of the
body
any
denomination or for the teaching
practice
particular
or doctrines
religious
or faith
principles
fo;
matters. Such
deeds are
solely
benefit of
whose trustees are
congregations
named as the grant-
ees,
control, and use
right
possession,
£nd
***
is vested
them.
It is
solely
immaterial
whether the
were
grantees
or not.”
incorporated
(286
473, at
In so
the court
476-7.)
holding,
applied
formal-title doctrine rather
than the civil-corporation
doctrine
in Calkins v.
and Dubs
applied
Cheney
v. Egli.
The formal-title doctrine was
in Glader v.
again applied
Schwinge,
Catholic Manila, 131, U.S. 74 L. Archbishop Ed. 50 S. Ct. and First v. First Cumberland misplaced. In Gonzales the was whether question presented petitioner was entitled to a collative legally chaplaincy the Roman Catholic Archdiocese of Manila. The Supreme *14 Court held that the determination of the petitioner’s fitness for the was a canonical act and the assignment property involved were an incident of the rights office of It is clear chaplain. from the that had the issue opinion presented trust, of the terms of the required interpretation law, and not canon would have legal principles, governed. In First the Presbyterian court was not called upon decide a That case reached the court in property question. on the posture one opposing parties contending, hand, reunion of the Church Presbyterian Cumberland Church effected their nation- al valid, assemblies was and on the other that it was invalid. Involved in the case was the property Cumberland Presbyterian Church in Lincoln. The said court “*** the determination of the where the title to question said church now rests will involve a necessarily decision of the whether the reunion of the question church, Cumberland church with the Presbyterian the two churches in declared assemblies of general 1906, was valid and both churches and the upon binding members of the said churches their judica- tories, or whether said reunion was invalid and void.” (245 “*** Ill. whether reunion 81.) question and the between the Cumberland church church was a valid reunion was general question decide, assemblies of the two churches to as the sitting churches, ecclesiastical of those highest judicatories church, of the Cumberland assembly general valid and upon held the reunion binding having this upon binding Cumberland judgment court ***.” Ill. 119-20. stated, clearly,
This court explicitly controversy presents distinction between a ques- law and one to tion determined under ecclesiastical to be civil law. be decided under principles Trinity In Marie Methodist Episcopal 21, 28, Methodist Episcopal plaintiffs inter of certain contending, sought conveyance property, alia, the Methodist Church that the conference an earlier decision of the had decided the issue contrary the decision of and that (205 601) on the court and conference was binding parties. said, “The the contention the court judicial rejecting civil and and the upon authority adjudicate power is not in the courts and is vested property rights courts, however, committed to ecclesiastical tribunals. tribunals of churches the decisions of the accept highest doctrine, and where of faith and upon questions the decision of is dependent upon ownership the construction of such a will follow question the title to ecclesiastical tribunal and adjudge *15 *** did not determine conference accordingly. an ecclesiastical but decided upon question and we cannot admit to this parties litigation, rights conference to determine such authority rights.” has strained to read into this record majority
some submission to hierarchical control which implied control, would but plaintiffs’ recitation of no is no conduct is of There past significance. matters, here that on church question congregation, control, strain as itself to hierarchical but it subjected cannot from this record the facts might majority glean to remove this case from the rule of civil If law. necessary hierarchical control addition to the plaintiffs, matters, to control exercised over ecclesiastical desired in the defendant property, simple provision church’s or a clause in the deed bylaws reversionary means would have of which the was conveyed not, however, that result. It did accomplished pursue course, either and this case falls under the squarely doctrine of Calkins v. Cheney. demonstrate,
As the dissent our citations in this court, consideration, after careful on this predecessors have doctrine of developed applied corporate-title Calkins v. doctrine of Illinois and the formal-title Cheney Holben. Classis v. These are “sound of law legal principles for use all to which the developed property disputes” Church v. Court referred in Presbyterian Mary Supreme Elizabeth Blue Hull Memorial 440, 449, 658, 665, U.S. L. S. Ed. 89 Ct. 606. 2d If there are valid reasons for from departing long- established and enunciated and none clearly precedents, are reflected either this record or opinion then should be overruled and majority, forthrightly distinctions. circumvented means of nonexistent