King v. Fleming.

There is no evidence as to when the other maker signed his name. In the absence of proof, it will be presumed it was done on a day when it was lawful to do secular labor. It is proven appellee had no knowledge, when he received the note, it had been executed on Sunday by either maker.

In Reynolds v. Stevenson, 4 Ind. 619, it was held, the making of a promissory note on Sunday was "common labor," within the meaning of the statute of that State which forbids the transaction of all secular business on Sunday.

A replevin bond executed on Sunday was declared to be void, its execution being in violation of the statute which forbids " common labor" on that day. Link v. Clemmens, 7 Blackf. 479.

In a later decision of that court, it was declared a sale of goods made on Sunday was void, as being against the statute, yet it was held the parties, by subsequently acting upon the contract as a valid and subsisting agreement, might ratify it, on the principle that contracts made on Sunday form an exception to the general rule that void contracts are not susceptible of ratification. Banks v. Werts, 13 Ind. 203; Adams v. Gay, 19 Vt. 358.

In Love v. Wells, 25 Ind. 503, it was held a deed, though signed and acknowledged on Sunday, if delivered on another day, is valid, whatever may be the effect on the acknowledgment, for the reason it did not take effect as a deed until after delivery.

The execution of a promissory note is not complete until it is delivered to the payee, or some one for him. The decisions seem to be, promissory notes will not be void, though signed on Sunday, if delivered on another day. The principle is, such contracts are not tainted with any general illegality, but are illegal only as to the time in which they are entered into. It is not sufficient to avoid them, that they may have grown out of a transaction on Sunday. They must be finally closed on that day.

The weight of authority seems to be, although such contracts be entirely closed up on Sunday, yet, if ratified by the parties upon subsequent day, they are valid. Adams v. Gay, supra; Commonwealth v. Kendig, 2 Penn. St. 448; Clough v. Davis, 9 N. H. 500; Hilton v. Houghton, 35 Me. 143; Lovejoy v. Whipple, 18 Vt. 379.

In the case at bar, the note, though signed by one of the makers on Sunday, was delivered to the payee on Monday, the day it bears date. The payee was ignorant of the fact the note had been signed on Sunday. The delivery was made by one of the makers. This

Starkweather v. The American Bible Society.

was a subsequent ratification, and brings the case clearly within the principles of the cases cited.

It is objected appellant did not himself deliver the note; that parol authority to deliver it upon another day is within the statute, and, therefore, void.

The case, in our judgment, is not affected by the principle insisted upon. In this instance, the note was delivered by one of the makers, in pursuance of an arrangement previously made, upon a day on which it was lawful to perform "common labor."

Although the note was signed by one of the makers on Sunday, it was within their control until Monday, when it was delivered to the payee. The possession of one of the joint makers must be regarded as the possession of both.

No error appearing in the record, the judgment must be affirmed. Judgment affirmed.

STARKWEATHER V. THE AMERICAN BIBLE SOCIETY.

(72 Ill. 50.)

Foreign corporation

devise to— conflict of laws —cy pres

▲ corporation which cannot take real estate by devise in the State where it was incorporated cannot take by devise in another State.

Where real estate is devised to a corporation which has no authority to take by devise, a court of equity has no power to convert such real estate into money and direct the payment thereof to such corporation.

ILL in equity to establish the appellee's title to real estate. The opinion states the facts.

BILL

Miller & Frost, for appellants.

Lawrence, Winston, Campbell & Lawrence, for appellee.

WALKER, J. Appellants, as devisees and heirs at law of Charles R. Starkweather, deceased, filed their bill in the Circuit Court of Cook county, to establish their title to the real estate owned by testator in his life-time under what is known as the "Burnt Record Statute," and, amongst others, the American Bible Society was made a defendant. The society appeared and claimed an interest

Stark weather v. The American Bible Society.

in the property under the fifth clause in his will. Its right was contested, and the court below rendered a pro forma decree in favor of the Bible Society, to reverse which this appeal is prosecuted.

There is no question raised as to the proper execution and probate of the will, nor is it disputed that the will contained a devise of the interest claimed by appellee. The clause in the will is this: "I give and bequeath to the trustees of the American Bible Society, established in 1816, an undivided eighth of my estate, to have and to hold the same for the use of said society; provided, that said Bible Society is not to be entitled to the same, or to the income of the same, till my youngest child becomes of age."

The society was incorporated by a statute of the State of New York, passed on the 25th of March, 1841, for the purpose of publishing and promoting the general circulation of the scriptures, without note or comment. It was vested by its charter with the powers granted to corporations in that State by their Revised Statutes, amongst which is this power: "To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter." The Statute of Wills in that State, adopted in March, 1813, authorizes persons having real estate to devise the same to any person or persons, except bodies corporate and politic, by their last will and testament. Again, in 1822, in revising the statutes, it was provided that corporations might take, purchase and hold real estate, but it was declared that no devise to a corporation should be valid unless such corporation be expressly authorized by its charter to take by devise.

Thus it will be seen that the charter of this company does not prohibit it from taking property by devise, but the Statute of Wills does expressly declare that no devise to a corporation shall be valid unless such corporation is authorized by its charter or by statute to take in that manner. These provisions, thus found in different chapters of the statutes of New York, have given rise to litigation in that State to obtain a construction of these acts. The courts of last resort in New York have held that a devise to a corporation not thus expressly authorized to so take real estate in that State was void, and that such corporations have no power to so receive and hold real estate. See Downing v. Marshall, 23 N. Y. 366, Mc Cartes v. Orphan Asylum, 7 Cow. 437. In these cases it was

Stark weather v. The American Bible Society.

held that these statutes must be regarded as being in pari materia and should be construed together, and we have seen the result at which their courts arrived.

At the common law it is believed that no such devise could be made, and the 32 Hen. 8, ch. 1, and the 34 Hen. 8, ch. 5, commonly called the Statute of Wills, gave power to every person having sole estates in fee of manors, etc., "to give, dispose, will or devise to any person or persons, except to bodies politic or corporate, by his last will and testament, such lands," etc. Thus it will be seen that New York adopted this enactment in substance, and the policy of these statutes was, undoubtedly, to prevent gifts to these bodies in mortmain. It is also said that "where the Statute of Wills excepts bodies politic as competent devisees, the usual power given to corporations by charter or act of incorporation to purchase lands, etc., has been construed not to qualify them to take by devise, the word 'purchase' being understood in its ordinary and not in its legal and technical sense." Angell & Ames on Corp. 111, and in support of the text they refer to Jackson v. Hammond, 2 Caines' Cases, 337; McCartee v. Orphan Asylum, supra; Canal Co. v. Railroad Co., 4 Gill & Johns. 1, which sustain the rule.

We, then, find a corporation created and located in New York, incapable, by devise, of taking and holding real estate there, claiming to hold real estate here, devised to it by a citizen of this State. Appellee contends that the Statute of Wills in New York only operates as a disability upon all persons in that State to become devisors of real estate to this company, and that the charter does not prevent them from receiving lands in other States, by devise, from persons beyond the limits of the State, and hence this devise is valid and binding. We have seen that the courts of New York have held that such companies are not authorized to so take and hold property in that State; and if incapable of doing so there, how, it may be asked, can it exercise powers and discharge functions beyond the limits of that State which it is not capable of doing under the laws of the State which created and endowed it with its powers and functions? Such bodies have such powers only as are conferred upon them by the laws of the State in which they are created.

It does not matter whether this body is prohibited by its charter or by the Statute of Wills in New York from taking lands by devise. Whether the one or the other statute creates the disability, the effect is the same, as it goes to the power of so taking and holding.

Stark weather v. The American Bible Society.

When this body was incorporated, the Statute of Wills was in force, and the courts of New York hold that it controlled the powers of the company as though both provisions had been contained in the same enactment. If so, the disability is fundamental. It operated to create a corporation that might perform the acts and exercise the privileges conferred, but without power to receive lands by devise. Such a prohibition goes to the power of the body, as well as to persons disposed to devise lands to them. If, then, the corporation was created without power to so take, it is incapable of doing 30, no matter where the devisor may reside or the lands are situated. The reasons operating on the legislature when they refused to endow this and other similar organizations with such capacity, grew out of considerations of sound public policy in thus preventing them from receiving and holding lands in mortmain — and this was effectually accomplished by their Statute of Wills.

We can perceive no difference whether the disability or prohibition is contained in the one or the other enactment, inasmuch as it operates on the body, as the New York courts hold, with the same effect and produces the same results. It carries out the policy of the State as effectually in the one mode as in the other, and goes to the power to thus take real estate, and operates as a prohibition and a want of power; and the power not existing in the body to so take, all such devises to it must be held ineffectual to pass title, without reference to where the devisor may reside or the lands may be situatod.

We are aware that other courts of the highest respectability have held that the laws of New York cannot prevent this corporation from taking land out of that State by devise, so that the devisor does not reside there; but we are unable to concur with them in so holding, as we think the inhibition is fundamental, and goes to the power to thus receive real estate.

It may be said that the lands not being in New York, it can in nowise affect the policy of that State for the company to hold lands in another State. Such bodies can only exercise their privileges and functions in other States by permission, expressed or implied. When by implication, it is denominated comity between States. For such bodies to hold property or transact business in a State different from that of their creation, they must have such permission. This being so, New York has no power to create a body incapable of taking lands by devise in that State, and yet with power to do