Chapter 35. PROPERTY OF RELIGIOUS, EDUCATIONAL AND CHARITABLE ORGANIZATIONS.
Article 1. Religious Organizations.
§1. Validation of Transfers to Religious Organizations.—Every conveyance, devise or dedication of land which has heretofore been made and has not been declared void in any suit, action or proceeding, or has not been treated and acted upon as void under the law heretofore existing, and every conveyance, devise or dedication of land hereafter made, if it does not conflict with the limitations of section eight of this article, for the use or benefit of any church, religious sect, society or denomination as a place for public worship, or as a burial place, or a residence for a minister, or for the use or benefit of any church, religious sect, society or denomination as a residence for a bishop or other clergyman or minister who, though not in special charge of a congregation, is yet an officer of such church, religious sect, society or denomination, and employed under its authority and about its business; or as a location for a parish house or house for the meeting of societies or committees of the church, religious sect, society or denomination, or of others for the transaction of business connected therewith; or as a place of residence of a sexton or caretaker if the same is adjacent to or near by the land used for public worship or the other purposes aforesaid, shall be valid, and shall be construed to give the local parish, congregation or branch of such church, religious sect, society or denomination, to which any such land or property has been or shall be so conveyed, devised or dedicated, the control thereof, unless from the intent expressed in the conveyance, grant, will, gift or dedication, some other or larger body be given such control. Any land so conveyed, devised or dedicated shall be held and used for the purposes aforesaid and no other.(Code 1849, c. 77, §8; Code 1860, c. 77, §8; Code 1868, c. 57, §1; 1872-3, c. 86, §1; 1882, c. 33, §1; 1883, c. 41, §1; Code 1923, c. 57, §1.)
Revisers’ Note.—This section is a revision of a part of §1, c. 57, Code 1923. The date “the first day of January 1777” is omitted, because there would be few, if any conveyances, devises or dedications in this State prior to that time, and the addition of the words “has not been declared void in any suit or action, or has not been treated and acted upon as void under the law heretofore existing,” obviates the necessity of the inclusion of any date. The purposes for which the land or property may be used are greatly enlarged. It will be noted in §8 of this article that there is a limit in the amount of land that may be held at any one time by religious organizations, and conveyances, devises and dedications hereafter made that conflict with the same are not validated. The clause that dealt with the construction of the conveyance, devise or dedication as to the control of the land is considerably enlarged, and instead of giving control of the property absolutely to the local branch or congregation, the local branch or congregation is preferred, leaving the intent of the donor to govern. For other parts of §1, c. 57, Code 1923, see §§2 and 3 of this article.
§2. Equitable Title in Contiguous Congregations.—Any conveyance, devise or dedication of land for the use of two or more contiguous congregations shall be construed to give such contiguous congregations the equitable title to such property.(1883, c. 41, §1; Code 1923, c. 57, §1.)
Revisers’ Note.—The above provision was added to §1, c. 57 of the Code by the Acts of 1883, c. 41, §1, probably to cover some situation that was not met by the law as it then stood, and, for fear that such situation may be interfered with by its omission, though its specific need is not apparent, it is retained as a separate section. The rest of said §1 is covered in §§1 and 3 of this article.
§3. Property Not to be Taken From a Religious Organization.—Notwithstanding the provisions of section one of this article, no lot of ground or property now used for religious purposes shall be taken from the members of the church, religious sect, society, or denomination, or of the individual church, parish, congregation or branch, that has heretofore purchased the same, or for whose use or benefit it was heretofore conveyed, devised or dedicated.(1872-3, c. 86, §1; 1883, c. 41, §1; Code 1923, c. 57, §1.)
Revisers’ Note.—The above is a revision of the proviso to §1, c. 57, Code 1868, added by Acts 1872-3, c. 86, §1, but omitted by Acts 1882, c. 33, §1. When the provision relating to “contiguous congregations” was added to said §1, by Acts 1883, c. 41, §1, the proviso was reinstated, but was part of the sentence about “contiguous congregations,” and has so continued until this revision. Such a history indicates that its retention is necessary to protect the property of some religious bodies, and it is retained as a separate section. In Deepwater Railway Company v. Honaker, 66 W. Va., 136, 66 S. E. 104, it was held that such proviso had application only to the clause about contiguous congregations that immediately preceded it after the enactment of §1, c. 41, Acts 1883; but it is not believed that the court gave sufficient weight to the fact that from 1873 to 1882 there was no clause in the statute relating to contiguous congregations and that such proviso, for that period, applied to all conveyances, devises and dedications to churches, etc., and the revisers, notwithstanding the above cited case, have so treated it by retaining such proviso as a separate section. The words “religious purposes” are substituted for “church purposes,” and the section is made to apply only to purchases or to conveyances, devises or dedications heretofore made. As the matter of the section was a proviso to the matter of §1, c. 57, Code 1923, the phrase ending with the word “article” is new. The rest of said §1 is covered in §§1 and 2 of this article.
§4. Insufficient Designation of Beneficiaries or Objects Not to Cause Failure of Trust.—No conveyance, devise or dedication, if the same does not conflict with the limitations of section eight of this article, and no gift or bequest hereafter made to any church, religious sect, society, or denomination, or to any individual church, congregation, parish or branch within this State, or to the trustee or trustees for either, shall fail or be declared void for insufficient designation of the beneficiaries in, or the objects of, any trust annexed to such conveyance, devise, dedication, gift or bequest in any case where a lawful trustee or trustees of such church, religious sect, society or denomination, or of any individual church, parish, congregation or branch, are in existence, or where such church, religious sect, society or denomination, or any individual church, parish, congregation or branch, is capable of appointing such trustee or trustees as provided in this article; but such conveyance, devise, dedication, gift or bequest shall be valid; and whenever the object of such trust shall be undefined, or so uncertain as not to admit of enforcement by a court of chancery, then such conveyance, devise, dedication, gift or bequest shall inure and pass to the trustee or trustees of the beneficiary church, religious sect, society or denomination, or individual church, parish, congregation or branch, to be held, managed, and the principal or income appropriated for the religious and benevolent uses of such church, religious sect, society or denomination, or individual church, parish, congregation, or branch, as such trustee or trustees may determine, by and with the approval of the bishop, vestry, board of deacons, board of stewards, official board, board of elders, board of consultors, or other authorities which, under the rules or usages of such church, religious sect, society or denomination, or individual church, parish, congregation or branch, have charge of the administration of the temporalities thereof.
Revisers’ Note.—This section is new. It follows in general a part of §38, c. 7, Code Va. 1919, in which state it has been the law for several years, and is added in order to meet the demand for a more liberal construction of gifts, devises and bequests for religious purposes.
§5. Trustees for; How Appointed and Removed.—The conference, synod, presbytery, convention, association, consultors, official board, or other ecclesiastical body or individual representing any church, religious sect, society, or denomination within this State, as also any individual church, parish, congregation or branch, when holding any property separately from the church, denomination, society or sect as a whole, within this State, may from time to time, and whenever occasion may arise, appoint, in such manner as such ecclesiastical body or such individual church, parish, congregation or branch may deem proper, a trustee or trustees for its real and personal property. The body appointing may remove such trustee or trustees, or any of them, and fill all vacancies caused by death, removal or otherwise.(Code 1849, c. 77, §9; Code 1860, c. 77, §9; Code 1868, c. 57, §2; 1872-3, c. 86, §4; 1883, c. 41, §4; 1895, c. 25, §4; Code 1923, c. 57, §4.)
Revisers’ Note.—This section is a substitute for §4, c. 57, Code 1923, which provides for the appointment of trustees by the circuit court on application of the proper authorities of the church, religious sect, society, congregation or denomination. In order to relieve the circuit courts of the burden of such proceedings, and the churches and religious societies of the expense thereof, the above method, which is used in North Carolina (Consol. Stats. N. C. 1910, §3568), and Kentucky (Carroll’s Ky. Stats. 1922, §320), is provided, with the requirement by §6 of this article that a certificate of the appointment be recorded in the office of the county clerk. Other portions of said §4 are covered in §7 of this article and §3, art. 2 of this chapter.
§6. Same; Record of Appointment; Recording Fee.—The trustee or trustees heretofore appointed by the circuit court of any county to hold the title to the real and personal property of any church, religious sect, society, or denomination, or of any individual church, parish, congregation or branch, within this State, and who may be acting as such at the time this Code goes into effect, or the proper authorities of such church, religious sect, society or denomination, or of any individual church, parish, congregation or branch, shall cause a certified copy of the order of appointment of such trustee or trustees to be recorded in the office of the clerk of the county court of the county where such appointment was made; and a certificate of every appointment of any trustee or trustees hereafter made by any conference, synod, presbytery, convention, association, consultors, official board, or other ecclesiastical body or individual representing any church, religious sect, society or denomination, or by any individual church, parish, congregation or branch, in accordance with the provisions of the preceding section, signed by the secretary, clerk or other officer in charge of the records of the organization making such appointment, and verified by his affidavit, shall be recorded in the office of the clerk of the county court of each county wherein such church, religious sect, society or denomination, or the individual church, parish, congregation or branch, has any property. The county court of every county shall supply the clerk of the county court with a proper record book, to be labeled “Church Trustees,” wherein all such certified copies of orders of appointment and such certificates of appointment shall be recorded. The fee for recording such certified copy or such certificate shall be one dollar.
Revisers’ Note.—This section is new, and provides an easy and practical method of keeping such records in the same office where most all other property records are kept.
§7. Same; May Take and Hold Property.—The trustee or trustees of any church, religious sect, society or denomination, or of any individual church, parish, congregation or branch, within this State, shall have power to receive donations, gifts and bequests of personal property, and, subject to the limitations of section eight of this article, to take by devise, conveyance or dedication or to purchase and to hold, real property, in trust for such church, religious sect, society or denomination, or for any individual church, parish, congregation or branch; and in their own name or names to sue or be sued in all proper actions and suits, for or on account of the real or personal property so held or claimed, and for and on account of any matters relating thereto; and no such action or suit shall abate because of the death, removal or resignation of any trustee, or the appointment of another trustee, but may be proceeded with in the name of the trustee or trustees by or against whom it was instituted, or in the name of the succeeding trustee or trustees. The trustee or trustees shall be accountable to that church, religious sect, society, or denomination, or to that individual church, parish, congregation or branch, for which he or they hold in trust, for the use and management of such property, and shall surrender it to any person or persons authorized to demand it.(Code 1849, c. 77, §§9, 10, 11; Code 1860, c. 77, §§9, 10, 11; Code 1868, c. 57, §§2, 3, 4; 1872-3, c. 86, §§2, 4, 6; 1882, c. 33, §§6, 7; 1883, c. 41, §4; 1885, c. 10, §§5, 7; 1887, c. 32, §7; 1895, c. 25, §4; Code 1923, c. 57, §§2, 4, 7.)
Revisers’ Note.—This section is a substitute for several portions of §§2, 4 and 7, c. 57, Code 1923. Other portions of said §4 are covered in §5 of this article and §3, art. 2 of this chapter. Other portions of said §7 are covered in the following section and §8, art. 2 of this chapter.
§8. Same; Quantity of Real Estate Permissible.—The trustee or trustees of any individual church, parish, congregation or branch of any religious sect, society or denomination within this State may take and hold at any one time for each church, parish or congregation not to exceed four acres of land in an incorporated city, town or village, and not to exceed sixty acres out of such city, town or village.(Code 1849, c. 77, §12; Code 1860, c. 77, §12; Code 1868, c. 57, §5; 1872-3, c. 86, §7; 1882, c. 33, §7; 1885, c. 10, §7; 1887, c. 32, §7; Code 1923, c. 57, §7.)
Revisers’ Note.—This section is a part of §7, c. 57, Code 1923, but is so changed as to make the limitation apply to each individual church, parish, congregation or branch of any religious sect, society, or denomination within this State. For other parts of said §7, see §7 of this article and §8, art. 2 of this chapter and the revisers’ notes thereto.
§9. Same; Power to Sell, Convey and Encumber Property.—The trustee or trustees of any church, religious sect, society, or denomination within this State, whenever directed by the ecclesiastical officer or the delegated or select body to whom the authority to administer the affairs of such church, religious sect, society, or denomination is committed by its rules and ecclesiastical polity, or the trustee or trustees of any individual church, parish, congregation or branch of any religious sect, society or denomination within this State, whenever directed by a majority of the members of such individual church, parish, congregation or branch who are over twenty-one years of age, or by the ecclesiastical officer or the delegated or select body to whom the authority to administer the affairs of such church, parish, congregation or branch is committed by the rules and ecclesiastical polity of such church, religious sect, society or denomination, may sell and convey any property, real or personal, owned by such church, religious sect, society or denomination, or by such individual church, parish, congregation or branch, as the case may be, or upon like direction, may borrow money and execute a lien upon the church property to secure the payment thereof; and all conveyances so made, or liens so executed, by the persons who appear from the records in the office of the county clerk to be the trustee or trustees of the religious body making such conveyances or executing such liens, shall be effective to pass from such trustee or trustees such title or interest in the property under his or their control as is purported to be conveyed or passed by such conveyances or instruments of lien, and shall not be invalidated or affected by any defect or informality in the proceedings for the selection or appointment of such person or persons as trustee or trustees, or by any want of authority or lack of power in such trustee or trustees.(Code 1849, c. 77, §13; Code 1860, c. 77, §13; Code 1868, c. 57, §6; 1872-3, c. 86, §§8, 9; 1883, c. 41, §9; 1885, c. 10, §8; Code 1923, c. 57, §§8, 9.)
Revisers’ Note.—This section combines portions of §§8 and 9, c. 57, Code 1923, and puts the power to sell and to create liens upon the same basis. Formerly, a sale had to be authorized by the circuit court, while no restriction existed as to the creation of a lien. This section allows either to be done, without an order of court, when authorized as provided in this section; but attention is called to §11 of this article which furnishes the means of prohibiting, in any proper case, the selling of the property or the placing of a lien thereon. The word “polity” had been incorrectly changed to “policy” in several private editions of the Code since the Acts of 1883, but is restored by this section. See §§10 and 11 of this article for other portions of said §9.
§10. Notice of Conveyance or Lien to be First Given; Proof Thereof.—Before any such conveyance of real estate or instrument creating a lien thereon shall be made, the proper authorities of such church, religious sect, society, or denomination, or of any individual church, parish, congregation or branch, shall cause to be published in a newspaper of general circulation published in the county where such land is situated, once a week for three successive weeks, or if no newspaper be so published then by posting at the front door of the courthouse and on the land itself for a period of fifteen days, or, in lieu of any publication or posting, by reading at the principal services of such church, parish, congregation or branch, during such period of three weeks, a notice describing the real estate and stating that the same will be sold and conveyed, or subjected to a lien, as the case may be, on or following a designated date; and no conveyance or instrument creating a lien shall be made or become effective until such notice shall be published, or published and posted, or read, as aforesaid. An affidavit setting forth the facts regarding such publication, or publication and posting, or reading, shall accompany, and be recorded with, any deed of conveyance or instrument creating a lien, and shall be sufficient proof of the facts therein set forth.(1872-3, c. 86, §9; 1883, c. 41, §9; Code 1923, c. 57, §9.)
Revisers’ Note.—The Acts of 1872-3, c. 86, §9, added a requirement for publication of notice “for such time and in such manner as the court may prescribe,” but as there is now to be no application to the court, a definite period and manner of publication are prescribed by this section. Publication of some sort is necessary in order to give notice to all persons concerned, so that any persons having proper cause may, under the provisions of §11 of this article, take steps to prevent the making of any improper conveyances or liens. Other portions of said §9 are covered in §§9 and 11 of this article.
§11. Proceedings to Prevent Conveyances or Creation of Liens.—When any conveyance of, or any lien upon, the real estate of any church, religious sect, society, or denomination, or of any individual church, parish, congregation or branch, is proposed to be made or created by the trustee or trustees thereof, and such conveyance or the creation of such lien will, it is believed, violate or be inconsistent with the conditions or purposes of the trust under which the real estate is held, or the proper authorities or the requisite number of members do not desire, or have not directed, that a conveyance be made of or a lien be created upon such real estate, or the rights of other parties will thereby be affected, or for any other cause the making of such conveyance or the creation of such lien is improper; one-fourth or more of the total number of members of the conference, synod, presbytery, convention, association, consultors, or other ecclesiastical body representing any church, religious sect, society or denomination, when the property involved is that of the church, religious sect, society or denomination as a whole; or one-fourth or more of the total number of members who are over twenty-one years of age of any individual church, parish, congregation or branch, when the property involved is that of such individual church, parish, congregation or branch, may, in the name of two or more of them, on behalf of themselves and the others similarly objecting, file their petition in the circuit court of the county where such real estate is situated, or before the judge of such court in vacation, against the trustee or trustees, or the surviving or remaining trustee or trustees, setting up the reasons why such conveyance should not be made or such lien should not be created. The court or judge, on the filing of such petition, shall fix a time and place for the hearing of the same, and direct a copy of such petition and a notice of the time and place of such hearing to be served on such trustee or trustees a reasonable time in advance thereof; and at the time and place so fixed the court or judge shall proceed to hear the objections to the making of such conveyance or creation of such lien, and make such order in reference thereto as may be right and proper.(Code 1849, c. 77, §13; Code 1860, c. 77, §13; Code 1868, c. 57, §6; 1872-3, c. 86, §9; 1883, c. 41, §9; Code 1923, c. 57, §9.)
Revisers’ Note.—As this revision allows conveyances to be made, or liens to be created, without the authority of court, this section provides a method for preventing the making of improper conveyances or the creating of improper liens. As far as possible the procedure and causes stated in §9, c. 57, Code 1923, are adhered to in this section. It is believed that it fully protects the rights of all parties. Other portions of said §9 are covered in §§9 and 10 of this article.
§12. Disposition of Property of Extinct or Dissolved Religious Organization.—When any individual church, parish, congregation, or local branch of any religious sect, society, or denomination, has become extinct, or has dissolved, or has ceased to occupy and use its property for its religious and charitable purposes, or its property may be regarded as abandoned, a suit in chancery may be instituted in the county where the property of such individual church, parish, congregation, or local branch is situated, either by the trustee or trustees, or the surviving or remaining trustee or trustees, should there be any, or by any member of such individual church, parish, congregation, or local branch, should there be any, or by the ecclesiastical officer or religious body that by the laws of the church, religious sect, society, or denomination to which such individual church, parish, congregation, or local branch belongs, has the charge or custody of such property, or in whom or which it may be vested by the laws of such church, religious sect, society or denomination; and the court shall hear the matter and make such disposition of the property, or proceeds thereof, as is allowable under the terms of the conveyance, dedication, devise, gift or bequest of such property, and will be in accordance with the laws of such church, religious sect, society or denomination. The printed acts or laws of such church, religious sect, society or denomination, issued by its authority, embodied in book or pamphlet form, shall be taken and regarded as the laws and acts of such church, religious sect, society or denomination.
Revisers’ Note.—This section is new. It is based in part on a portion of §46, Code Va. 1919.
§13. Validation of Certain Transactions.—Where any church, religious sect, society, or denomination, or where any individual church, parish, congregation or local branch of any religious sect, society, or denomination, has under its rules and ecclesiastical polity heretofore acquired, by purchase or otherwise, and held, sold or conveyed, church property, or property used for church purposes, by or in the name of its duly appointed bishop, minister, or other ecclesiastical officer, person, or board, such acquisition, purchase, holding, sale or conveyance, heretofore made, is hereby ratified and declared valid: Provided, however, That no such acquisition, purchase, holding, sale or conveyance heretofore made, which has been declared void in any suit or action, and that no rights of third parties who have treated any such acquisition, purchase, holding, sale or conveyance as void under the law as it heretofore existed, and acted accordingly, shall be affected hereby.
Revisers’ Note.—This section is new.
Article 2. Educational, Fraternal and Charitable Organizations.
§1. Validation of Conveyances, Devises, Gifts and Bequests to.—Where any conveyance, dedication or devise of land, or transfer, gift or bequest of personal property, has been made or shall be made to trustees for the use of any university, college, academy, high school, seminary, or other institution of learning; or for the use of any benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association, or labor union or similar association or brotherhood of craftsmen or employees, or any local branch thereof, or for the use of any orphan asylum, children’s home, house of refuge, hospital, or home or asylum for the aged or incurables, or the afflicted in mind or body, or for the use of any other benevolent or charitable institution, association or purpose; or if, without the intervention of trustees, such conveyance, dedication or devise of land, or transfer, gift or bequest of personal property, has been made and has not been declared void in any suit or action, or has not been treated and acted upon as void under the law heretofore existing, or shall be hereafter made for any such use or purpose, the same shall be valid and such land or property, as well as any subsequently acquired by purchase or otherwise in furtherance of such use or purpose, shall be held for such use or purpose only.(Code 1849, c. 77, §14; Code 1860, c. 77, §§14, 16; Code 1868, c. 57, §§7, 9; 1872-3, c. 86, §§3, 10; 1885, c. 10, §3; Code 1923, c. 57, §§3, 10; 1923, c. 33, §12, c. 46, §3.)
Revisers’ Note.—This section is a combination and enlargement of §§3 and 10, c. 57, Code 1923. The most important changes are: (a) In place of the word “conveyance,” which was held in Hays v. Harris, 73 W. Va. 17, 80 S. E. 827, to comprehend “devise,” are used the words “conveyance, dedication or devise of land, or transfer, gift or bequest of personal property”; (b) In place of naming specific societies, as Free Masons, Odd Fellows, Sons of Temperance, Good Templars, Daughters of the American Revolution, or United Daughters of the Confederacy, the comprehensive terms “benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association, or labor union, or similar as sociation or brotherhood of craftsmen or employees, or any local branch thereof,” are used. Such terms will include all orders heretofore included, and will save constant importuning of the legislature to amend the section to name specifically any not so named; (c) In place of the date “thirty-first of March, 1848” (which was simply the date the original statute became effective) there are used the words “and has not been declared void in any suit or action, or has not been treated and acted upon as void under the law heretofore existing”; (d) The words “as well as any subsequently acquired by purchase or otherwise in furtherance of such use or purpose” are new, in order to allow additional acquisitions; (e) More words indicating the objects or purposes of the charity or benevolence are used, but such objects and purposes were most probably covered by the former language.
§2. Same; Appointment of Trustee; Designation of Beneficiaries and Objects; Administration by Chancery Court Cy Pres.—No conveyance, devise, dedication, gift, grant or bequest hereafter made for any of the uses set forth in the preceding section shall fail or be declared void for insufficient designation of the beneficiaries in, or the objects of, any trust annexed to such conveyance, devise, dedication, gift, grant, or bequest, or for any failure to name or appoint a trustee for the execution of the trust; but such conveyance, devise, dedication, gift, grant, or bequest shall be valid; and whenever the objects of any such trust shall be undefined, or be so uncertain as not to admit of specific enforcement, or literal execution, or no trustee shall have been named or appointed to execute the trust, or there is no trustee or trustees in existence having authority to take the property, a suit in chancery may be instituted, by any party interested, in the circuit court of the county where the trust subject, or any part thereof is, in the case of a conveyance, dedication, gift or grant, or in which the will was probated, in the case of a devise or bequest, for the appointment or designation of a trustee or trustees to execute the trust, or for the designation of the beneficiaries in, or the objects of, any such trust, or, where such trust does not admit of specific enforcement or literal execution, for the carrying into effect as near as may be the intent and purposes of the person creating such trust; and thereupon such court shall have full power to appoint or designate a trustee or trustees to execute the trust, or to designate the beneficiaries in, or the objects of, any such trust, or where such trust does not admit of specific enforcement or literal execution, to carry into effect as near as may be the intent and purposes of the person creating such trust.
Revisers’ Note.—This section is new. In drafting the same the following sources among others were referred to: Code Va. 1919, §§38, 587, 590; Carroll’s Ky. Stats. 1922, §§317, 318; Gen. Laws R. I. 1909, c. 259, §§1, 9. The effect of this section, together with that of the preceding section, is to reenact 43 Elizabeth, c. 4, relating to charitable uses and trusts. As “such trusts are highly favored by the law” (Williams, J., in Hays v. Harris, 73 W. Va. 17, 24, 80 S. E. 827, it is proper to make this provision for saving practically every charitable gift from failure.
§3. Trustees for Unincorporated Benevolent, Fraternal, Etc., Organizations.—Any unincorporated benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association, or any labor union, or similar association or brotherhood of craftsmen or employees, or any local branch thereof, to which, or for the use of which, any property, real or personal, is conveyed, dedicated, devised, transferred, given or bequeathed, may from time to time, and whenever occasion may arise, appoint, in such manner as any such society, order, lodge, association, or union, may deem proper, a suitable number of persons as trustees for such society, order, lodge, association or union, and may remove such trustees or any of them, and fill all vacancies caused by death or otherwise.(Code 1849, c. 77, §14; Code 1860, c. 77, §14; Code 1868, c. 57, §7; 1872-3, c. 86, §5; 1885, c. 10, §5; 1895, c. 25, §4; Code 1923, c. 57, §§4, 5; 1923, c. 33, §12.)
Revisers’ Note.—This section is a substitute for the method of appointment of trustees for the organizations named that is provided by §§4 and 5, c. 57, Code 1923. It follows the plan devised for religious organizations by §5, art. 1 of this chapter, and relieves the circuit court of the duty of appointment. The section is limited to unincorporated organizations, because incorporated organizations may hold and dispose of property in their corporate capacity and require no trustee; but the trustees of unincorporated organizations, except labor unions, by force of §6 of this article, become a corporation upon their appointment.
§4. Trustees for Educational or Charitable Institutions.—The authorities of any university, college, academy, high school, seminary, or other institution of learning, or the authorities of any orphan asylum, children’s home, house of refuge, hospital, or home or asylum for the aged or incurables or the afflicted in mind or body, or other benevolent or charitable institution or association, to which, or for the use of which, any property, real or personal, is conveyed, dedicated, devised, transferred, given or bequeathed, may from time to time, and whenever occasion may arise, appoint in such manner as any such authorities may deem proper, a suitable number of persons as trustees for any such institution or association, and may remove such trustees or any of them, and fill all vacancies caused by death or otherwise. Where there are no such authorities to make the appointment, the trustees in office shall have the power of removal, to appoint new members, and to fill vacancies, and if there be no such authorities and no trustees in office, then, on application of any one or more persons interested therein, or of the prosecuting attorney, the circuit court of the county where the trust subject, or any part thereof is, in the case of a conveyance, dedication, gift or grant, or in which the will was probated in the case of a devise or bequest, shall appoint such trustees.(Code 1849, c. 77, §14; Code 1860, c. 77, §14; Code 1868, c. 57, §7; 1872-3, c. 86, §5; 1885, c. 10, §5; Code 1923, c. 57, §5.)
Revisers’ Note.—This section is a substitute for the method of appointment of trustees, for the institutions named, provided by §5, c. 57, Code 1923, and follows the plan devised for religious organizations by §5, art. 1 of this chapter, and relieves the circuit court of the duty of appointment in all but the exceptional case.
§5. Record of Appointment of Trustees; Recording Fee.—The trustees heretofore appointed by the circuit court of any county to hold the title to the real and personal property of any society, order, lodge, association, union or brotherhood, or of any institution of learning, or of any benevolent or charitable institution or association, in this article mentioned, and who are still occupying such positions at the time this Code goes into effect, or the proper authorities of such society, order, lodge, association, union or brotherhood, or of any institution of learning, or of any benevolent or charitable institution or association, shall cause a certified copy of the order of appointment of such trustees to be recorded in the office of the clerk of the county court of the county where such trustees were appointed; and a certificate of every appointment of any trustees hereafter made in accordance with the provisions of this article, signed by the secretary, clerk or other officer in charge of the records of the organization, authorities or trustees making such appointment, and verified by his affidavit, or, if such appointment is made by the circuit court, a certified copy of the order of appointment, shall be recorded in the office of the clerk of the county court of the county wherein such society, order, lodge, association, union or brotherhood, or such institution of learning, or such benevolent or charitable institution or association, has any real or personal property. The county court of every county shall supply the clerk of the county court with a proper record book, to be labeled “Trustees of Institutions,” wherein all such certified copies of orders of appointments and such certificates of appointments shall be recorded. The fee for recording such certified copy or such certificate of appointment shall be one dollar.
Revisers’ Note.—This section is new and is designed to provide an easy and practical method of keeping such record in the same office where most all other property records are kept. This section provides the same method as is provided for the record of church trustees by §6, art. 1 of this chapter.
§6. Trustees of Certain Organizations to be Corporations.—The trustees of every institution, society, order, organization, or association in this article mentioned (except trustees for any labor union or similar association or brotherhood of craftsmen or employees), or any local branch thereof, whether named in the conveyance, dedication, devise, gift or bequest, or appointed as provided in this article, shall be a corporation by the name and style of “Board of Trustees of ——— University,” (or college, academy, etc., as the case may be), and as such corporation they shall be governed by all the provisions of law relating to, and have and exercise all the privileges and powers of, nonstock corporations, including the power to take and hold real and personal property, to borrow money for any legitimate purpose in the execution of the trust and to execute a lien on the trust property as security therefor, and to do and perform any and all acts and business pertaining to the trust created by any conveyance, dedication, devise, gift or bequest to such institution, society, order, organization, or association.(1872-3, c. 86, §6; 1882, c. 33, §6; Code 1923, c. 57, §6; 1923, c. 33, §12.)
Revisers’ Note.—This section is a revision of §6, c. 57, Code 1923. Labor unions are excepted, because they were especially excepted by Acts 1923, c. 33, §12. Instead of setting out the corporate powers, the law relating to nonstock corporations is made applicable. There is omitted as unnecessary, because of the provisions of this revision, the following sentence which appeared at the end of said §6: “Any conveyance, devise or dedication heretofore made to the board of trustees of any church, college, academy, high school or other seminary of learning, or of any of the societies or orders mentioned in the third section of this chapter, shall vest the title to such property in the said trustees individually and collectively, and shall be as valid and binding in all respects as if such property had been conveyed to them by their proper names.” By giving to such corporations all the privileges and powers of nonstock corporations, the retention of §11, c. 57, Code 1923, granting power to make by-laws and regulations, is unnecessary.
§7. Property of Labor Unions, How Held and Disposed of.—Sections seven, nine, ten, eleven and twelve of article one of this chapter, relating to the property of religious organizations and the powers of the trustees and the rights of members of such organizations, shall apply to and govern labor unions, or similar associations, or brotherhoods of craftsmen or employees, or any local branches thereof, and the trustees and members thereof; and nothing in this chapter contained shall make any such labor union, association or brotherhood, or the trustees thereof, a corporation.(1923, c. 33, §12.)
Revisers’ Note.—This section is a revision of §12 c. 33, Acts 1923, to accord with other provisions of this chapter.
§8. Quantity of Real Estate Certain Organizations May Hold.—Except as may otherwise be allowed by law, the trustees of any society, order, lodge, association, union or brotherhood mentioned in this article may take and hold at any one time not exceeding two acres of land to be used as a place of meeting for such society, order, lodge, association, union or brotherhood, and for the education and maintenance of children charitably provided for by them.(Code 1849, c. 77, §15; Code 1860, c. 77, §15; Code 1868, c. 57, §8; 1872-3, c. 86, §7; 1882, c. 33, §7; 1885, c. 10, §7; 1887, c. 32, §7; Code 1923, c. 57, §7.)
Revisers’ Note.—This is a revision of §7, c. 57, Code 1923, to accord with other provisions of this chapter. The parts relating to church trustees and their powers are omitted, because covered separately in §§7 and 8, art. 1 of this chapter. The provisions for the quantities of land that may be held for other uses are omitted, as no such limitations are placed by this revision on nonstock corporations, organized for benevolent purposes, nor is there any need of saying that for any particular use there shall be no limit.
Article 3. Homes and Asylums of Fraternal Orders.
§1. Acquisition of Real Estate by Unincorporated Grand Lodges; Exemption From Taxation.—It shall be lawful for the grand lodges of the Knights of Pythias, Independent Order of Odd Fellows, Ancient Free and Accepted Masons, Junior Order United American Mechanics, Improved Order of Red Men, and other organizations of like character, to acquire by purchase, devise or gift, and hold the same for the purpose of establishing, erecting, and maintaining thereon homes or asylums for the care and support of orphans and widows of deceased members, and of disabled and aged members of said organizations in indigent circumstances, respectively, such quantity of real estate within this State, as shall be necessary, not exceeding five hundred acres of land in the aggregate, upon which to erect, construct and maintain such buildings as may be necessary to care for and maintain therein and thereon all such persons as may be eligible to admission thereto; and all of such land to be cultivated, or otherwise utilized, for the benefit and support of such homes or asylums. The real estate thus acquired together with such personal property as may be needed in the administration of the affairs of said homes or asylums shall be exempt from every species of taxation as long as used for the purpose of such homes or asylums.[1907, c. 64, §1; Code 1923, c. 55A, 32b(1); 1925, c. 72, §32b(1).]
Revisers’ Note.—This section and the following sections of this article have heretofore been placed by compilers in the chapter on fraternal beneficiary societies, but it is believed that they more properly belong here. Some slight changes in wording are made. The number of acres of land allowed to be held is increased from three hundred to five hundred, to be consistent with §4, c. 64, Acts 1907, as amended by Acts 1925, now §5 of this article.
§2. Regulations and Boards for Government.—Any such grand lodge desiring to establish a home or asylum shall adopt and prescribe such rules and regulations for the government and control thereof as may be deemed wise by such grand body; and it shall appoint a board of directors, trustees, regents or commissioners, composed of a specified number of persons from its own membership, not fewer than five nor more than seven, to serve for definite periods; and any such grand lodge may select for each of such boards one member from the associate branches of the orders, known as Pythian Sisters, Rebekahs, Eastern Star, or other like organizations, as the case may be. Such board shall have the management and control of the home or asylum for which it is appointed, under the prescribed rules and regulations adopted by said body for the government thereof. Such board of directors, trustees, regents or commissioners shall organize by the election of a president, secretary and treasurer, and, if necessary or expedient, an executive committee, all from its own membership.[1907, c. 64, §2; Code 1923, c. 55A, §32b (2); 1925, c. 72, §32b(2).]
Revisers’ Note.—See revisers’ note to §1 of this article. The above, except for a few changes in wording, is a part of §32b(2), c. 72, Acts 1925. For the rest of said §32b(2) see §3 of this article.
§3. Boards to be Corporations; Powers.—Such boards shall be corporate bodies; and as such shall be governed by all the provisions of law relating to, and have and exercise all the privileges and powers of, nonstock corporations.[1907, c. 64, §2; Code 1923, c. 55A, §32b(2); 1925, c. 72, §32b(2).]
Revisers’ Note.—See revisers’ note to §1 of this article. The above is a part of §32b (2), c. 72 Acts 1925, but, instead of specifying the corporate powers, is changed as above, thus putting such corporations on the same basis as all other nonstock corporations. For the rest of said §32b(2), see §2 of this article.
§4. Corporate Name.—Each board of directors, trustees, regents, or commissioners, appointed under the provisions of this article, shall be styled and known by such corporate name as may be designated and bestowed thereon by the grand body appointing or creating such board.[1907, c. 64, §3; Code 1923, c. 55A, §32b(3); 1925, c. 72, §32b(3).]
Revisers’ Note.—See revisers’ note to §1 of this article. There are omitted the specific references to other sections, and the words “under the provisions of this article” substituted; and there are also omitted, as unnecessary, the provisions relating to the manner of taking and holding property.
§5. Incorporated Grand Lodges May Establish Homes or Asylums.—Any grand lodge enumerated in this article, or any similar grand lodge, heretofore or hereafter incorporated as such grand lodge under the laws of this State, shall be authorized and empowered to take by purchase, gift, devise or otherwise, land not to exceed five hundred acres for the purpose of establishing and maintaining homes or asylums for orphans, widows, aged and indigent members and dependents, and in and under its corporate name may hold or dispose of such land under such regulations and restrictions as said grand lodge may prescribe.[1907, c. 64, §4; Code 1923, c. 55A, §32b(4); 1925, c. 72, §32b(4).]
Revisers’ Note.—Some changes in wording are made in this section, and some specific references to other sections are omitted.
§6. Provisions of Article Not to Apply to Organizations Connected With Churches.—Nothing in this article contained shall authorize the incorporation of any society or organization connected directly or indirectly with any church, religious sect or denomination, and nothing in this article contained shall authorize any society or organization, connected directly or indirectly with any church, religious sect, society, or denomination to have or acquire any real estate.[1907, c. 64, §5; Code 1923, c. 55A, §32b(5); 1925, c. 72, §32b(5).]
Article 4. Provisions Regarding Particular Fraternal Organizations.
§1. Odd Fellows; Disposition of Property of Subordinate Lodge on Dissolution.—If any subordinate lodge of the Independent Order of Odd Fellows in this State, working under the jurisdiction of the grand lodge of said order for this State, shall disband, surrender its charter and cease to work, all its property, real and personal, shall, immediately upon such disbanding, vest in the said grand lodge, to be held by that body for the charitable uses of the said order in this State, according to the rules and regulations of said order, and said grand lodge is authorized in its corporate name, to sue for and recover such property, real and personal.(1891, c. 35, §1; Code 1923, c. 55A, §32a.)
Revisers’ Note.—This section had formerly been placed by compilers in the chapter on fraternal beneficial societies, but it is believed that it is more properly located here. Some slight changes in the wording, but not in effect, are made.
Article 5. Cemeteries.
§1. Appointment of New Trustees for Burial Grounds.—Where any conveyance, dedication or devise was made of land for burial grounds, to any church, religious sect, society, congregation or denomination, or to any benevolent, fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association, that has dissolved or become extinct in the county and vicinity where such burial grounds are situated, and the trustees of same have removed or died, the circuit court of such county, upon the application of five or more persons having relatives buried in such burial grounds, shall appoint five trustees, who for the time being and their successors shall be invested with all the powers necessary to promote and carry out the object and purposes named in such conveyance, dedication or devise.(1897, c. 70, §4a; Code 1923, c. 57, §4a.)
Revisers’ Note.—This section is revised to accord with the changes made in other sections of this chapter.
§2. Sale of Part of Cemetery.—The trustees of any burial grounds, or any incorporated cemetery association, whenever it is deemed advisable by such trustees or association, and is not prohibited by the terms of the conveyance, dedication or devise of such grounds, may sell and convey any part of such burial grounds or land of such association, without restriction as to its use, if such sale and conveyance will not render any lot previously sold for burial purposes inaccessible for such purposes, or detach it from the main body of the cemetery. But no such sale shall be made by such trustees or such association unless authorized by a majority of the lot owners present and voting at a general or special meeting, of which meeting and its objects previous notice shall be given by advertising the same once a week for two successive weeks at least, in some newspaper of general circulation in the county where the cemetery is situated: Provided, That no desecration shall be made of any grave or monument, or any of the walks, drives, trees, or shrubbery within the inclosure of any burial grounds; nor shall any shaft or entry be made within the inclosure of such burial grounds, or any building be erected therein for any purpose whatever other than cemetery purposes.(1872-3, c. 44, §1; Code 1923, c. 57, §7a.)
Revisers’ Note.—The section is made to apply to trustees of burial grounds, and to deny authority for the sale when it is prohibited by the terms of the conveyance, dedication or devise of the burial grounds to the trustees or association. Changes in phraseology are also made.
§3. Permanent Endowment Funds for Cemetery Associations; How Created.—There is hereby authorized the creation of permanent endowment funds for cemetery associations to be known as “permanent endowment funds,” the income from which is to be annually spent by such cemetery associations, or their successors, in beautifying and maintaining cemeteries owned or controlled by such associations. The “permanent endowment funds” are to be created by depositing in such funds all permanent funds derived from all sources set apart by the board of directors of such associations, and by donations, gifts and bequests made to such cemetery associations for such purpose.(1929, c. 78, §§1, 2.)
§4. How Invested; Report of Trustee; Disposition of Income.—The principal of such permanent endowment fund shall be invested in some safe securities, to be approved by the board of directors of such cemetery association, or its successors, in the name of a trustee appointed as hereinafter provided. Such trustee shall make an annual report to the board of directors of such cemetery association showing the amount of the permanent endowment fund at the beginning of each year, the names of the donors, if any, and the amounts contributed by each during the year in which the report is made, the income derived from such fund during the year, and the amount on hand at the end of the year; and a copy of such report shall be filed with the clerk of the county court of the county in which such cemetery association is located. The trustee during the year, or at the end thereof, shall turn over to such cemetery association, or its successor, all income derived from such permanent endowment fund during the year, which shall be expended in accordance with this article.(1929, c. 78, §3.)
§5. Trustee Therefor; Appointment; Bond; Compensation; Vacancy.—The board of directors of any such cemetery association shall appoint a trustee, who shall be a responsible business man or some solvent and reliable bank or trust company, to act as such trustee for a period of two years, or until his, or its, successor is appointed. Such trustee shall be known as the trustee of the permanent endowment fund of such cemetery association, and shall immediately upon his, or its, appointment and acceptance of the trust, give bond to the said cemetery association, with some solvent and reliable bonding company authorized to do business in this State, in a sum equal to the amount which may come into the hands of such trustee, which bond shall be increased or diminished from time to time so as always to equal at least the amount of the trust funds in the hands of such trustee; and the premium upon such bond shall be paid out of the income of the trust funds in the trustee’s hands and as part of the cost of the administration of the trust fund. No trustee appointed under this section shall enter upon the discharge of his, or its, duties until such bond is given and approved by the board of directors of such cemetery association. The board of directors of such cemetery association shall not allow to such trustee, for service as such, a sum in excess of two per cent of the annual net income from such trust funds. In the event of a vacancy in such trusteeship, or failure of the board of directors of any such cemetery association to appoint such trustee, after being requested so to do by any stockholder of any such cemetery association, or its successor, or any citizen interested, application may be made to the circuit court of the county wherein such cemetery association is located, and it shall be the duty of the circuit court of such county to appoint a trustee, who, when so appointed and qualified, shall have all the powers and perform all the duties of such trustee as provided in this section.(1929, c. 78, §4.)
Committee’s Note.—Only minor changes in phraseology are made.