Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1884-05-03
STATE SUPREME COURT.
Case Involving Church Property, in
Which tie Catholic Church
at Lexington is In
History Of h case and the Issues.

at IS In
terested.
History Of the Case and the Essues.
Especial to the ST. Louis Republican,
CITY, April 2S.-The supreme
court convened this morning, all the judges
present.
Among the eases heard to-day was that of
The Catholic church, at the City of Lexing-
ton. in the state Of Missouri. respondent,
against Catharine TObbein ct nj, appellants,
from Livingston circuit. This case is one of
the most important on the docket, involving
as 1t does the right of churches and church
corporations, under the constitution Of this
state, to take and hold under devise, or other
wise. real estate, except as is prescribed by
law for church edifices, parsonsges and GEM
etertes.
HISTORY OF THE CASE.
The following is a condensed history OF the
case and the points relied on:
On the 18th of March, 1868, Ilett Tobbein
Of Caldwell county executed a will bequeath-
ing to his wife, CatharIne, Il life interest and
estate In all his property, real and personal,
&C., with power to manage and control, use
and occupy the same during her lifetime, and
at her death one-half of all the estate to 90
to her legal heirs and representatives and the
oAO-A0ik W IN hluoI SAulCu ~
Lexington. The will further provides that in
event of the wife dying before the ~testator,
then, on his death, the estate should be divid-
ed between her heirs or legal representatives
appears the terms Of this will were unknown
until after the death Of the ~testator, who died
without issue, Sept. %, 1879, when the will
was discovered and taken by one of the COLA
teral heirs to the probate court, where q
newspaper account of Its being presented and
Of Its terms was noticed by Father Lilly,
pastor Of the Lexington church, who at once
gave the matter attention In the interest of
the church. TIT church for q number of
years prior to the date of the will existed as
der Its present title, but on the 9Th of May,
1850, 1t incorporated as o religious associa-
ton. under the laws Of this state. The pro-
bate court OF CALDWELL county refused to adj
commenced in the Caldwell circuit court by
the church against Catharine Tobbein, widow
Of t%estator, and other parties, as heirs, for the
purpose of compelling the probate court to
ed on plaintiffs application during that term
to the circuit court Of Livingston county. At
the September term, 1881, Of that court Cath
srine Tobbefn, the widow, and one of the de-
PENDANTS, filed Q separate answer, admitting
the allegations in plaintiffs petition, and af-
terward appeared, by her attorney, and dis
claimed all interest in the matter in contro-
versy, and stated she had no desire to partici-
pate IN any manner whatever in said sui, and
asked to be relieved Of all liability to pay
costs or expenses of said suit, which dis
clalmer was, by order OF the court, spread
upon the record. At the January term, 1882.
OF said circuit court, the court found for the
plaintiff, and ordered and adjudged that the
VIII be established and confirmed as Ilett
Tobbeinls last will and testament, etc. To
this finding the defendants excepted and filed
motions for q new trial and in arrest, which
being overruled, they filed their bill of ex-
eeptfons and an appeal was granted to the
supreme court.
On the trial in the circuit eourt it was in
evidence that prior to the commencement OF
the suit the defendant, Caiharine TObbein,
ren0unced the provisions of the will md
made her election under the statutes to take
one part, and that Ilett Tobbein died without
issue.
The plaintif, upon its part, asked the court |
to declare the law as follows:
If the court, sitting as a jury, shall believe
from the evidence that the paper writing pro-
duced In evidence before it was signed by |
llett Tobbein in his own proper handwriting; |
that he was at the time Of sound mind; that
he declared It to be, and that he signed it as
and for his last will and testament. and in the |
presence and hearing of Solomon Musser and
}. c. Lillard; and that said Musser and Lii |
ard signed their names to it ut his request and
by bis directions, and in his presence as at
testing witnesses, then the court, sitting as q |
Jury. will ind on the issue submitted to it |
LnaI saiu paper WrlCng Is the Will Oh llett |
Tobbein, deceased.
The defendants, on their part, amongst
other things, asked the court to declare the
law a. follows:
The attempted incorporation of the plaintiff
as q corporations was void. |
The statute under which the plaintiff claims
to have become and to exist as q corporation
does not authorize 1t to maintain this action,
or to take the alleged devise in the paper
writing sought to be established in this pro-
ceeding made to 1t.
Tn constitution of this state prohibits the.
plaintiff from maintaining this action and
from taking under the alleged devise to it.
The pleading and evidence in this case show
that at the date Of the death of Ilett Tobbein
mere was no corporation in existence au-
thorlzed to take under the devise in question.
Therefore the said devise was and Is void and
could not be validated by the subsequent at
tempted incorporation of the plaintiff and
cannot be established in this proceeding.
PLAINTIFFS CLAIM.
In Its petition herein plaintiff claims TO be
entitled to take under the will In remainder
after the expiration Of the life estate thereby
vested In the widow, and as such life estate
was destroyed BY her remuneration of the pro-
visions Of said will, the remainder under
which plaintiff CLAIMS, having no interesting
estate to support it, can never take effect but
was thereby destroyed and rendered inoper-
tive.
The devise in the instrument sought to be
in this proceeding, and under
which the plaintiff claims, does not declare
or create q valid trust for a charitable use,
and %s cannot be upheld or probated a, such.
struct1ons. to which action they excepted and
appealed the case as above stated.
The points relied and insisted upon by the
appellants IN the argument of the case to-
day were the same as given above in instruc-
lions asked by defendants.
RESPONDENTS ANSWER.
The respondent contested strongly the point
raised by appellant that section eight Of ar
ttcle two of the constitution prohibits the
holding by a religious corporation of more
real estate than necessary for church edifices,
parsonages and cemeteries, and insisted that
prohibition does not extend to requests
to the churches, and that even if 1t did and
such devise was contrary to the organic law.
the defendants had no legal right to bring that
before a court and there contest it;
that power resting alone with the state. who
might, through her attorney general, by pro- !
ceedings IN quo warranto, inquire into the
legality Of such matters. Ia
The property involved in the case consists
of 972 acres of land in Caldwell county and
1000 in money. In event the case il de- {
clded in favor Of the respondent the church :
1t Lexington will be entitled to O~ne-Lalf the I
property.
ARGUMENT
The case was ably and eloquently argued on r
both sides. L
The argument for the appellant was made !
~ Hon. Louis G.. krauthOh, and for the 1
church by Hon. Alex. Graves, NJ. c., and I
hon. Chas. H. Mansur of Livingston. l
Mr.. Krauthoff opened for the appellant by +
making Il clear and concise statement of the
'ase and Of the points involved, and follow
ID In an earnest and incisive argument on the
aw of the case, In which a large number of s
of the courts in support of his
were cited and their application
iwelt upon. n
He was followed by MIR. Graves for the re- d
Mr.. Graves came on from WASH y
ngton for the sole purpose of making an o
for the chure In this case, in
which he takes the deepest interest, and
brought to bear In behalf of his client, dur d
ng his argument, every available power of a
and oratory he possessed, and ex- =,
;rted every energy to present to the court in :,
he clearest and most concise terms every IL
,oint Of law and equity involved in the suit. n
His argument was exhaustive, although con- :
uming but ihree-fourths OF an hour IN its de-
livery.
Mr.. Graves was followed BY Col. Mansur,
Who made q very short but able argument for =
he respondent In support mainly Of the posi- r
taken by bis brother counsel, Mr.. Graves, !
8 to the law and the facts. =