 | Board of Visitors minutes April 19, 1917 |  |
IV.
VALIDITY OF DEVISE AND BEQUEST TO TRUSTEES OF EMANUEL
CHURCH OF COVINGTON
It is the settled law of this State that a church
cannot take as a legatee under a will.
Dictum in Perkins v. Siegfried, 97 Va. 446.
See Gallego's Ex'rs. v. Attorney General, 30 Va. (3rd
Leigh) 450, which is the leading case on this subject.
Also Fifield v. Van Wyck, 94 Va. 557, affirming Gallego
v. Attorney General.
See also Seaburn's Ex'or. v. Seaburn, 56 Va. (XV Gratt.)
423, in which a full discussion is given of the construction
of Code Ch. 77. Sec. 8, p. 363.
Sec. 1398 Code 1904—Amended Acts 1916 p/ 136.
But the amendment of Sec. 1398 of the Code above referred
to seems to change the established doctrine so far as churches
are concerned, and it would seem that now a "Gift", grant
or bequest" may be made to a religious congregation or to
Trustees appointed for such congregation, within the limits
of Sec. 1403.
Quaere? Whether the words "Gift, grant or bequest"
include "devise" — see opinion in Seaburn v. Seaburn, 56
Va. 423.
See also editorial by Lile in 8 V. L. R. 280, citing
editorial in 3 V. L. R. 537.
The latest case at all in point is Jordan v. Richmond
Home, 106 Va. 710, chiefly valuable on account of a reference
to an historical narrative on the subject of constitutional
and legislative enactments with reference to "Religion", "Churches",
"Charities" and "Schools", prepared by Mr. Jackson Guy
and submitted to the Court below with his report as commissioner.
Sec. 1403 of the Code is as follows:-
Sec. 1403. Quantity of real and personal estate they may hold.
Such trustees shall not take or hold at any time more
than two acres of land in a city or town, nor more than
seventy-five acres out of a city or town; and they shall not
take or hold at any one time money, securities, or other
personal estate exceeding in the aggregate, exclusive of the
books and furniture aforesaid, the sum of thirty thousand
dollars.
After a careful analysis of the foregoing authorities,
I am of the opinion that the Church cannot take the lot
devised to it under the will, but under the provisions of
Sec. 1398 as amended, the trustees can take the $10,000.00
"Bequest", provided such taking by them will not be in contravention
of the provisions of Sec. 1403 above set out.
The rule laid down by our Court of Appeals in St.
Stephens Church v. Morris, 115 Va. 225, has no application
here, as the testator merely expresses a wish that a memorial
be erected to his parents, and does not specifically direct
it to be done.
| Board of Visitors minutes April 19, 1917 | |