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Society for Propagation of Faith of Diocese of Wilmington v. Joswick

Court of Chancery of Delaware, New Castle County

May 9, 1962

The SOCIETY FOR the PROPAGATION OF the FAITH OF the DIOCESE OF WILMINGTON, Little Sisters of the Poor, Incorporated, Catholic Welfare Guild, Inc., Seton Villa, Inc., and The Roman Catholic Male Protectory, Incorporated, a Religious Corporation of the State of Delaware, and The Society for the Propagation of the Faith, a Corporation of the State of New York, Plaintiffs,
v.
Edward JOSWICK and Mary Joswick, Defendants.

[40 Del.Ch. 261] Alfred Fraczkowski, Wilmington, for plaintiffs.

Anthony F. Emory, Wilmington, for defendants.

Page 618

SHORT, Vice Chancellor.

Plaintiff seek specific performance of a contract for the sale of a parcel of land situate at 1124 West Fourth Street in the City of Wilmington. Defendants have refused to accept a deed of the premises mentioned on the ground that plaintiffs can not convey to them a good and marketable fee simple title thereto.

On December 19, 1958, Anna C. Crotty, a resident of the City of Wilmington, died. By her last will and testament bearing date September 6, 1957 Anna C. Crotty devised and bequeathed the residue of her estate to 'The Society for the Propagation of the Faith, 2400 Lancaster Avenue, Wilmington, Delaware, Little Sisters of the Poor, 5th and Bancroft Parkway, Wilmington, Delaware, Catholic Welfare Guild, 418 Orange Street, Wilmington, Delaware, Sisters of Charity, 601 West Street, Wilmington, Delaware.' Included in the residue of testatrix' estate was the parcel of real estate, improved by a dwelling, which is the subject matter of this action. The Society for the Propagation of the Faith, 2400 Lancaster Avenue, Wilmington, Delaware, one of the devisees named in the residuary clause of the last will and testament of Anna C. Crotty was, at the time of the execution of said will and at the time of the death of said Anna C. Crotty, an unincorporated association of persons. [1] It has since been incorporated under the name of 'The Society for the Propagation of the Faith of the Diocese of Wilmington' (hereinafter Delaware Society), such incorporation having been effected under the laws of this state on September 16, 1960. The complaint alleges and the answer admits that the several Delaware corporate plaintiffs including [40 Del.Ch. 262] the Delaware Society, are 'organized and maintained to effectuate religious and charitable works.'

It appears that The Society for the Propagation of the Faith is a world-wide organization whose purpose is to spread the faith and teachings of the Roman Catholic Church. The Delaware Society, both prior to and since its incorporation, has carried on this purpose. The affairs of the world organization within the United States are carried on and administered through The Society for the Propagation of the Faith, a New York corporation, incorporated in 1898 (New York Society), of which Bishop Fulton J. Sheen is President. Bishop Sheen is also National Director of the world society. Local societies within the several dioceses, of which the Delaware Society is an example, are affiliates of the national organization which conducts its affairs through the New York Society. They are required to report to the national organization all funds and gifts received. These are allotted to missions, both home and foreign, by the national body. The Diocese of Wilmington, being designated as a 'Mission Diocese', receives such allotments. By stipulation the parties have agreed that under New York law the New York Society 'has the power to acquire real property by devise or otherwise and to dispose of the same by deed or otherwise.'

By written agreement dated August 29, 1960 defendants agreed to buy the property situate at 1124 West Fourth Street in the City of Wilmington for the price of $5600, of which $200 was deposited with plaintiffs' agent and the balance was to be paid on the delivery of a deed. The agreement called for final settlement to be completed on or before October 12, 1960. It is signed by defendants and by the several residuary devisees of Anna C. Crotty, including the Delaware Society. The date or dates on which the several residuary devisees executed the sales agreement does not appear, but it is fair to say that the agreement was not signed on behalf of the Delaware Society

Page 619

until sometime after September 16, the date of its incorporation. By deed dated September 19, 1960 the New York Society conveyed to the Delaware Society all of the right, title and interest of the New York Society in and to the premises situate at 1124 West Fourth Street in Wilmington. This deed was recorded in the office of the [40 Del.Ch. 263] Recorder of Deeds in and for New Castle County, Delaware, on January 5, 1961.

Defendants contend that since The Society for the Propagation of the Faith, 2400 Lancaster Avenue, Wilmington, Delaware, was an unincorporated association at the date of the death of Anna C. Crotty and on the date of the contract here sought to be enforced, such society was incapable of taking and holding the title to the parcel of land involved and can not, therefore, convey good title. Defendants rely upon the provisions of 27 Del.C., Sections 110 and 113.

Section 110 of Title 27 provides:

'Every religious corporation may take and hold by gift, devise, will, deed or lease, real-estate or monies, securities or other things of value, to be laid out in real-estate, and personal property of all kinds, and may alien, mortgage or otherwise encumber and dispose of the same at pleasure, unless restricted by the provisions of such gift, devise, will, deed or lease.'

Section 113 of Title 27 provides:

'No grant, conveyance, devise or lease of any real estate, dedicated or appropriated, or intended to be dedicated or appropriated, to purposes of religious worship for the use of any congregation or society, shall vest any right, title or interest in any person or persons to whom such grant, conveyance, devise or lease is made unless such grant, conveyance, devise or lease shall be made, both in form and in fact, to a corporation organized according to the provisions of the laws of this State, as contained and provided in and by this chapter.'

Defendants' contention that the unincorporated association could not take and hold title is, of course, meritorious, though I fail to see the applicability of § 113 of Title 27. That section pretends to deal only with grants, devisees or leases dedicated or appropriated, 'to purposes of religious worship for the use of the congregation or society.' No such dedication or appropriation is evidenced by the language of the residuary clause of the will of Anna C. Crotty. But plaintiffs contend that since there was a corporation existing at the [40 Del.Ch. 264] date of the will and at the time of testatrix' death which was capable of taking the devise, namely, the New York Society, the court should not permit the devise to fail. By the express terms of § 110 of Title 27, Del.C., every religious corporation is empowered to take and hold by will real estate and personal property and to dispose of the same unless restricted by the provisions of such will. This statute does not pretend to confine its applicability to corporations of this state. It is clear, therefore, that since the New York corporation is capable, under New York law, of taking and holding title to real estate, the gift here involved should not be permitted to fail if it can fairly be said that the testatrix intended to benefit the New York Society.

In determining the intention of the testatrix certain well-recognized rules of will construction must be borne in mind. It is the stated policy of our courts to liberally construe charitable bequests in order to carry into effect the testator's intention and 'every presumption consistent with the language used will be indulged to sustain them.' Trustees of Protestant Episcopal Church of Diocese of Delaware v. Equitable Trust Co.,26 Del.Ch. 427, 24 A.2d 327. Moreover, there is a strong presumption that a testator who has purported ...


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