
    Byers et al. v. McCartney, Ex’r, et al.
    1. Corporations for Religious Purposes: how long they continue. Whether the limitations placed by the statute upon the endurance of corporations for pecuniary profit apply to religious corporations, quaere.
    
    2. Will: DEVISE TO UNINCORPORATED CHURCH: HOW EAR VALID. Where there is a devise of real estate to a church incapable of taking the title, because not incorporated, the devise is not void, hut the legal title descends to the heirs, charged with the trust, which they will be required to execute; or a court of equity will appoint a trustee to execute the trust, until the church becomes incorporated, and acquires the capacity to hold the legal title; following Johnson v. Maytw, 4 Iowa, 180; but the church in such case cannot take more than one-fourth of the estate of a testator who leaves a wife, child or parent. Code, § 1101.
    
      Appeal from Jefferson Circuit Court.
    
    Monday, December 10.
    In August, 1877, Mary Byers executed ber last will and testament, devising all ber property, both real and personal, after tbe payment of debts and funeral expenses, to tbe Presbyterian eburcb at Libertyville, Jefferson county, Iowa, and appointing tbe defendant, W. R. McCartney, executor. At tbe time of ber death sbe owned certain real estate in question. Tbe will was duly admitted to probate. In June, 1879, tbe plaintiffs, wbo are children of Mary Byers, deceased, commenced this action, alleging that the devises in tbe will of Mary Byers are contrary to statute, and that there is no beneficiary or devisee named in tbe will legally able and competent under the law to take a devise, and praying that tbe will be set aside, and that tbe defendant be ordered to pay the plaintiffs tbe proceeds of tbe estate. The court granted tbe relief prayed. Tbe defendant appeals.
    
      Jas. JR. McCrachm and Leggett c§ McKemey, for appellant.
    
      JRateliff <& McCoy, for appellees.
   Day, Ch. J.

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 plaintiffs rely for tbis position upon Code of 1851, section 681; Revision, section 1158; Code of 1873, section 1069. This section is as follows: “Corporations for the construction of any wort of internal improvement may be formed to endure fifty years; those formed for other purposes can not exceed twenty years in duration; but in either case they may be renewed from time to time for periods not greater respectively than was at first permissible, provided three-fourths of the votes cast at any regular election for that purpose be in favor of such renewal, and provided, also, that those thus wishing a renewal will purchase the stock of those opposed to the renewal, at its fair current value.” In the Code of 1851, the Revision, and the Code of 1873, this section occurs in the chapter on corporations for pecuniary profit. Section 708 of the Code of 1851 provides: “Corporations for the establishment of seminaries of learning, churches, lyceums, libraries, agricultural societies, and for other lawful purposes unconnected with motives of pecuniary profit, may be formed in the manner directed in the preceding chapter, so far as applicable, and the provisions of that chapter are extended to them, except as herein modified.”

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 society incapable of taking tbe legal title simply because of not being incorporated, tbe devise is not void, and tbe estate devised does not descend unincumbered to tbe beirs, but a trust is. created for tbe benefit of tbe churcb, and tbe legal title devolves upon tbe beirs charged witb tbe trust, which they will be required to execute; or a court of equity will appoint a trustee to execute tlie trust iintil tbe society becomes incorporated and acquires capacity to bold the legal title. We think this case announces tbe correct doctrine. It follows that tbe plaintiffs are not entitled to have tbe devise declared void, and the estate vested in them, even if tbe church in question was not an incorporated body.

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.  