Coleman v. Whipple

One purpose of Section 269 of the Constitution may be to prevent the accumulation of wealth in "dead hands," but a more effective way of accomplishing this purpose would be to simply prohibit religious and charitable institutions from receiving or holding property, within limitations if desired, without reference to the method (will, deed or parol gift) by which property can be transferred from one to another. The main purpose of the section is to limit testamentary capacity, the limitation being directed to testators and not devisees or legatees. Blackbourn v. Tucker, 72 Miss. 735, 17 So. 737, and Greely v. Houston, 148 Miss. 799, 114 So. 740, which override any statement to the contrary, in Barton v. King, 41 Miss. 288, decided prior to the adoption of this section of the Constitution, and on sections of the Code of 1857, "the purpose of the constitution is to prevent one who will not be charitable at his own expense from being so at the expense of his heir at law. One may yet `sell all that he hath and give to the poor,' but he may not keep his grip on his estate until death relaxes his grasp, and then, at the expense of wife and child, devote it to religious uses." Blackbourn v. Tucker, 72 Miss. 735, 17 So. 739. This being true, the limitation is not on the State's power to receive property but on the power of testators to devise property for the forbidden purposes.

Moreover, devises to the State, in trust, for religious or charitable purposes, are clearly within the mischief intended to be limited by the section, and if the devise here is valid, the purpose of the section could always have heretofore been and hereafter may be circumvented by the simple device of devising land to the State, in trust, for the benefit of a religious or charitable institution — a device that has not heretofore suggested itself to attorneys called on to draft wills containing devises to religious and charitable institutions, and which, if generally adopted, would render Sections 269 and 270 of the Constitution and the recent amendments thereto of no efficacy whatever. The constitutional purpose cannot be effectually accomplished unless Section 269 thereof applies to devises to the State for religious uses, and consequently to that extent the State is clearly within the section's implications which is sufficient to make it apply thereto.

I am therefore of the opinion that the devises here in question are void, in which I am requested by Justice ANDERSON to say that he concurs.