author: BOND, J. GRAVES, J.

text:
    SOCIETY OF THE HELPERS OF THE HOLY SOULS v. ERNEST LAW et al., Appellants.
    In Banc,
    May 15, 1916.
    1. RELIGIOUS CORPORATION: Not to Hold Title, Etc. Neither the Legislature nor the courts can establish a religious corporation except its charter shows that it is created only to hold title to real estate for church edifices, parsonages and cemeteries; and a corporation organized for purposes other than those alone is not a religious corporation within the meaning of the Missouri Constitution.

      Held, by GBAVES, X, dissenting, that if the circuit court in entering a pro forma decree attempted to and did organize a religious corporation, its act was futile, and the chartered company has no standing in a court to recover real estate devised to it; and to determine whether it is a religious corporation resort should be made, first, to its charter, and if that is ambiguous or uncertain in meaning, then, to extraneous proof.
    2. -: Valid Benevolent Corporation. Held, under the facts stated in the opinion, that the plaintiff is not a religious corporation, but is a valid benevolent corporation under Ahe statutes -of Missouri. And that the fact that, in addition to the primary purposes and objects of practical benevolence set forth in its charter, it had the incidental right to impart religious instruction did not prevent this suit for property devised to it, since this particular franchise could only be attacked in a direct suit hy the State.

      Held, by GBAVES, X, dissenting, that a corporation whose charter recites that “the purpose and object of said corporation shall be to maintain the establishment now under our charge in said city known as ‘The Society of the Helpers of Holy Souls’ and also others that we may hereafter establish; and in connection with same, to gratuitously visit the sick poor daily, irrespective of creed or color, rendering them every assistance in our power by nursing them in their homes; to orgánize our convent, meetings and sewing classes for the working class and poor children and impart religious instruction to same,” etc., and which “is composed, exclusively, of members of the religious order of the Roman Catholic Church known as ‘The Helpers of the-Holy Souls in Purgatory,’ ” the purpose of said “religious order’’ being an exemplification of the tenets and doctrines of the church concerning souls in Purgatory, is a religious-corporation, and cannot be held to be a mere benevolent association.
    3. -: Devise to Unincorporated Society. There is no principle of law which forbids a charitable gift to an unincorporated religious body or any of its orders. Even if an attempted •incorporation must be held to be a religious corporation and a devise to it of real estate for that reason be invalid, yet if the unmistakable devise is to a known unincorporated society which has the same name as that of the attempted incorporation, it will be upheld, and the property can be recovered by the society’s trustees.
    Appeal from St. Louis City Circuit Court. — Hon, George C, Hitchcock, Judge.
    Appirmed.

      James L. Minnis, Goodbar S Tittmamn, Claude Hardwicke and Busby <& Withers for appellants.
    (1) The court erred in finding or holding that the plaintiff corporation was organized, incorporated and existed for benevolent and charitable purposes, and not for religious purposes. It is a religious corporation. Sec. 8, art. 2, Const. 1875; Sec. 3432, E. S. 1909 (Sec. 1394, E. S. 1899); Proctor v. Board of Trustees, 225 Mo. 56;' Klix v. St. Stanislaus Parish, 137 Mo. App. 355; In re St. Louis Institute of Christian Science, 27 Mo. App. 633; Catholic Church v. Tobbein, 82 Mo. 423; Lilly v. Tobbein, 103 Mo. 477; State ex rel. v. Board, 175 Mo. 56; Kenrick v. Cole, Exr., 61 Mo. 577; Boycé v.. Christian, 69 Mo. 492; Schmucker’s Estate v. Reel, 61 Mo. 601; Atty.-Gen. v. St. Cross Hospital, 17 Beavan’s Reports (Eng. Chancery), 465; Pack v-; Shanklin, 27 S. E. (W. Va.) 393; St. Peter’s Roman Catholic Congregation v. ■Germain, 104 111.-440. (2) The court erred in divesting the legal title to the real estate out of the heirs of the deceased and vesting it in the plaintiff. The attempted devise to the plaintiff, a religious corporation, was void, and did not and could not vest in. the plaintiff. Secs. 7, 8, art. 2, Constitution 1875; Proctor v. Board of Trustees, 225 Mo. 56; In re McGraw, 111 N. Y. 66, 2 L. R. A. 387; Decamp v. Dobbins, 31 N. J. Eq. 690; Trustees v. Hilken, 84 Md. 170; Kennett v. Kidd, 87 Kan. 652, 44 L. R. A. (N. S.) 544; U. S. v. Utah, 15 Pac. 473; Hansher v. Hansher, 8 L. R. A. 558; 3 Ency. of Ev., p. 635. (3) The heirs of Mrs. Bailey may contest the right of plaintiff to take the devise. Tlfey do not attack the corporate existence of plaintiff, or ask a forfeiture of its charter, but simply contend that as the plaintiff was legally incapable of taking and holding the property, the attempted devise was void, never took effect, and the property descended to the heirs. Proctor v. Board of Trustees, 225 Mo. 56; 2 Underhill on Wills, sec. 841.

      J. L. Hornsby for respondent.
    (1) Defendant’s charge that plaintiff is a religious corporation, constitutes an attack on the validity of plaintiff’s incorporation, for the reason that in this State no religious corporation can be created except for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries. Constitution 1875, art. 2, sec. 8. And if plaintiff’s corporate organization was an attempt to create a religious corporation, it not being for any of purposes provided ir the Constitution, the incorporation was void, and plaintiff has no corporate existence. Atty.-Genl. v. Lorman, 59 Mich. 157; Thompson on Corporations, sec. 171; Note to People v. "Water Co., 33 Am. St. 178. The validity of plaintiff’s incorporation cannot be questioned, by defendants, but only by the State in direct proceedings. St. Louis v. Shields, 62 Mo. 252; Catholic Church v. Tobbein, 82 Mo. 418-424; Church Soe. v. Branch, 120 Mo. 243. (2) Plaintiff is not a religious corporation. The character of a corporation is to be determined by the objects of its creation and its purposes as expressed in its charter. State ex rel. v. Westminster College, 175 Mo. 53-58; Sherer v. Mendenhall, 23 Minn. 93; Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 1; Átty.-Genl. v. Lorman, 59 Mich. 157; Hamsher v. Hamsher, 8 L. R. A. 556. The primary objects of a corporation control its character. State ex rel. v. Westminster, 175 Mo. 52; Colonization Society v. Hennessy, 11 Mo.* App. 555; In re institute of Christian Science, 27 Mo. App. 638. A corporation cannot, by its articles of association, obtain greater powers than the Constitution or statutes permit. If a lawful purpose is specified, but the articles also assume for the corporation the existence of a power which it is not permitted to exercise, then this additional and unauthorized assumption may be treated as surplusage and the corporation treated as entitled to exercise the lawful powers only. Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 1; Hamsher v. Hamsher, 8 L. R. A. 558; Eastern P. R. Co. v. Vaughn, 14 N. T. 546; Beckett v. Union-town Assn., 88 Pa. St. 211; 1 Thompson, Corporations (2 Ed.), p. 182; Lighting Co. v. Massey, 56 S. W. 35. The fact that the persons constituting plaintiff corporation are members of a religious order in the church does not constitute a corporation which they organize-a religious corporation. Colonization Society v. Hennessy, 11 Mo. App. 555; State ex rel. v. Westminster College, 175 Mo. 53; Pranta v. Bohemian Union, 164-Mo. 304.
   I.

BOND, J.

Seven ont of seventeen members of a religious order in the Roman Catholic Church, residing in St. Louis, were incorporated under the statutes providing for the formation of benevolent, religious, scientific, fraternal, beneficial and educational corporations by a decree of the circuit court of that city on the nineteenth of October, 1905.

Mrs. Anna Hamilton Bailey, who died the twenty-first of September, 1910 (without any descendants), devised, among a large number of other charities, a lot of ground fifty feet wide on Randolph street to “The Order of the Little Helpers.” Plaintiff took possession of this lot and brought the present action against the next of kin of the said testatrix, stating in the petition that the term “Little Helpers” was the name by which the plaintiff was known in St. Louis, and praying a decree vesting title to the lot in the plaintiff corporation.

The answer of defendant, as far as material, averred that plaintiff was organized as a religious corporation in violation of the Constitution of Missouri, article 2, section 8, to-wit:

“Religious corporation may be established for one purpose only. That no religious corporation can be established in this State, except such as may be created under a general law for the purpose only of holding the title to such real estate as may be prescribed by law for church edifices, parsonages and cemeteries. ’

That plaintiff could not take the real estate devised, and also that the terms of the devise were too uncertain to give it effect, and prayed the court to adjudge defendant as next of kin to be entitled to the property.

The case was submitted to the court upon an agreed statement of facts (subject to objections as to materiality and relevancy of the evidence), which disclosed in substance that the plaintiff corporation was known in St. Louis as “The Little Helpers;” the terms and devises of Mrs. Bailey’s will and that she meant and intended by clause 7 thereof to give ito the plaintiff corporation the lot described in the petition ■ and that plaintiff was in possession ■ of it. The remaining clauses of the agreed statement were introduced by defendants (plaintiffs objecting to their materiality) and disclosed the kinship of the defendants to Mrs. Bailey; the doctrine of the Roman Catholic Church as to purgatory; that the reason for the adoption by its founders of the name: ‘ ‘ The Society of the Helpers of the Holy Souls in Purgatory,” was that said Society performed good works, offered prayers to shorten the suffering of the souls in purgatory “and hasten their entrance into heaven.” That the Society was organized in Prance about 1854, and has branches extending throughout the civilized world, including the one established in St. Louis in 1903; that their “main object is, by spiritual and corporeal works of mercy” done for no remuneration whatever and for religious charity, to relieve and deliver the souls in purgatory; that all of the seventeen members are engaged in works of charity, especially in nursing the sick poor in their own homes and by such visits alleviating bodily misery and giving spiritual assistance and aid; that the sisters organize meetings for the working class and popr children who then receive familiar instruction, and young women employed during the week in business hours, find protection, amusements and friendly assistance at the convent and have the benefit of a free circulating library. That on July 21,1905, certain members of said society (the Society of the Helpers of the Holy Souls in Purgatory) filed in the circuit court of the city of St. Louis a petition, constitution and articles of agreement for a pro forma decree of incorporation under the provisions of article 11, chapter 12, of the Revised Statutes of Missouri of 1899, and thereafter on October 19, 1905, a decree was entered purporting to incorporate the plaintiff by the name of “The Society of the Helpers of the Holy Souls.”

The agreed statement of facts then recites that a pamphlet attached, entitled “Helpers of the Holy Souls in Purgatory,” was published by plaintiff and contained true statements of the objects and duties of that society and that the same are also disclosed in an article by Mrs. Morrison, which also correctly gives information, data and statistics of that society in St. Louis. The constitution and articles of agreement of the plaintiff, the decrees of incorporation, were read in evidence, article 3 of which is as follows, to-wit:

“Article (3): The purpose and object of said corporation shall be to maintain .the establishment now under our charge in said city of St. Louis, known as ‘The Society of the Helpers of the Holy Souls,’ and also others that we may hereafter establish in said city or in the State of Missouri, and in Connection with same, to gratuitously visit the sick poor daily, irrespective of creed or color, rendering them every assistance in our power by nursing them in ■their own homes; to organize in our convent, meetings and sewing classes for the working class and poor children and impart religious instruction to same, and assist said classes and children as best we can; to maintain a free circulating library and perform various other gratuitous works of charity and benevolence. ’ ’

The trial court rendered a judgment for plaintiff, from which defendant duly appealed.

II.

The plaintiff in this case is not a “religions corporation” in the constitutional sense of those terms (Constitution 1875, art. 2, sec. 8, and art. 10. sec 21); for neither the Legislature nor the courts can a religious corporation except its charter shall show that it is created only to hold title to real estate for church edifices, parsonages and cemeteries. Any other form of “religious incorporation” is a nullity on its face. Hence if the persons who organized the plaintiff corporation designed in so doing to create a “religious corporation,” their purpose was not effectuated for the reason that their articles of association or charter do not show that the corporation in question was established “for the purpose only” of taking title to the property specified in the constitution.

The only inquiry, therefore, is not as to ■ its character as a “religious corporation,” but whether or no the plaintiff was validly incorporated for “benevolent, scientific or educational purposes.” [State ex rel. v. Lesueur, 99 Mo. l. c. 558; R. S. 1899, sec. 1397, now R. S. 1909, sec. 3435.] The determination of this' question is decisive of the rights of the parties. The statute regulating this subject, so far as it pertains to the formation of corporations for benevolent purposes, is, to-wit:

“Sec. 3435. What Associations May Be Incorporated. Any association formed for benevolent purposes, including any purely charitable society . . . or any association whose object' is to promote temperance or other virtue conducive to the well-being of the community and, generally, any association formed to provide for some good in the order of benevolence, that is useful to the public, may become a body corporate and politic under, this article; . . . and in general, any association, society, company or organization which tends to the public advantage in relation to any or several of the objects above enumerated, or, whatever is incident to such objects, may be created a body corporate and politic by complying with sections 3432 and 3433. [R. S. 1899, sec. 1397.] ”

The corporate powers and purposes of the plaintiff hereinbefore set out are, in brief: the maintenance of the society denoted by the corporate name of the plaintiff in St. Louis and Missouri, and in connection with same (a) “to gratuitously visit the sick poor daily, irrespective of creed or color, rendering them every assistance in our power by nursing them in their homes;” (b) “to organize in our convent meetings and sewing classes for the working class and the poor children and impart religious instruction to same, and assist said classes and children as best we can;” (c) “to maintain a free circulating library and perform certain other gratuitous works of charity and benevolence.”

Taking the foregoing alphabetical-subdivisions in order, by the first the plaintiff corporation was empowered to maintain an organized society of the same name and in cooperation with it (for that is the meaning of the terms “in connection with same”) to gratuitously visit the sick poor daily, etc., as indicated in the language of subdivision “a”; and in the same way to do the things specified under the subdivisions marked “b” and “c,” with no other reward for any of such acts or deeds than the sense of having done good to others in need, regardless of their faith or race. These specific duties imposed by its charter on "the members of the plaintiff corporation are of the essence of practical benevolence.' This is indisputable., nor do we conceive this to be gainsaid, by counsel for appellant. We gather that their attack upon the charter of the plaintiff is directed, first, to the clause empowering it to maintain an unorganized society in St. Louis or elsewhere. The answer to this objection is twofold: first, there is no principle of law which forbids a charitable gift to ail unincorporated religious body or any of its orders, whether it be Protestant or Catholic; second, the fair intendment and signification of the language referring to the maintenance of the religious order to which the incorporators of the plaintiff belong is, that it was to be done in the manner and mode set forth in the remaining clauses of the charter. Now acts of that sort are benevolences, pure and simple, and it could not be held that a charter authorizing them, transcends the power granted by statute to any citizens of whatever church or faith to organize themselves into a body politic for benevolent purposes.

The second objection of appellant relates to the expression under subdivision “b” of the powers given to the plaintiff to provide meetings and sewing classes for the working class and poor children and impart religious instruction to same, etc., it being claimed that these underlined words embraced a power which could not have been included in the charter. If, as is inferable from the agreed facts, these underlined terms, considered apart, implied the inculcation of a particular faith by .teaching its tenets, then they are not an object for which, a legal corporation may be exclusively formed under the Constitution of this State, and if the present corporation had been chartered for that purpose alone, or is carried on only for that object, then its franchise would.be a nullity or subject to revocation at the suit of the State. [St. Louis v. Shields, 62 Mo. l. c. 252; Haskell v. Worthington, 94 Mo. l. c. 569; Black v. Early, 208 Mo. l. c. 303; Klix v. St. Stanislaus Parish, 137 Mo. App. l. c. 357.] But an inspection and analysis of the powers granted in plaintiff’s charter do not sustain the position that it was only created to teach and propogate the Roman Catholic religion, nor that this has been its only employment. The specific powers and active duties prescribed in the charter of plaintiff, as has' been shown, provide for the doing daily of many acts of diverse nature in helping the helpless and alleviating the sufferings that come from human poverty and want, purely from motives of charity and the sense of duty on the part of the doers of these acts. It is to such services that the corporation seems to have devoted its practical efforts. The fact that another expression in the charter authorizes occasional religious instruction, might in a direct attack by the State afford ground for the annulment or withdrawal of that particular franchise (State ex inf. v. Trust Co., 144 Mo. 562; State ex rel. v. Gas & Oil Co., 153 Ind. 483; State ex rel. v. Railroad, 47 Ohio St. 130; State ex rel. v. Standard Oil Co., 49 Ohio St. 137; Yore v. Superior Court, 108 Cal. 431; State ex rel. v. Topeka, 30 Kan. 653; Commonwealth v. Canal Co., 43 Pa. St. l. c. 301); but it affords no basis in the present action for a judgment, that a charter giving to the corporators many other diverse powers wholly benevolent and strictly within the purview of the law providing for corporations of that nature, should be abrogated or annulled in a suit by the corporation for the enforcement of its property rights against third parties. The record shows that it is admitted that it was. the intention of the testatrix in this case to give this little lot of ground to these human helpers engaged in daily work of practical help for the helpless of whatever race or religion “which tends to the public advantage” and is done “for benevolent purposes ” and is consequently embraced within the very words of the statute on this subject. And if it be that these acts are believed by the doers to be’ vicariously helpful to souls in purgatory, such a belief does not alter or transform the actual character or nature of the acts themselves, nor deprive them of their essential qualities of unselfish and unpaid kind-' nesses and assistances to the poor and needy, and hence in' the truest sense to he deemed acts of practical benevolence. With the particular faith or prayers of these charity workers the law is not concerned. In such instances the law gives the fullest freedom of conscience. But it does commend their works and deeds and will grant them authority to visit the sick, the poor and the needy and to relieve their sufferings, and does not inquire if these good deeds are done with the expectation, hope, faith and prayer that their performance will avail the repose of the dead. In other words, the peculiar religion of the actors cannot alter the benevolénce of their work and it is but a corollary to this: that the fact that all of the corporators are members of a particular church does not affect their right to incorporate for a statutory object. [Franta v. Bohemian Rom. Cath. Cent. Union, 164 Mo. l. c. 313; State ex rel. v. Board of Trustees, 175 Mo. 52; St. Louis Colonization Assn. v. Hennessy, 11 Mo. App. l. c. 558.]

III.

Appellant relies upon the case of Proctor v. Board of Trustees, 225 Mo. 51. In that case there was a devise eo nomine to a religious corporation chartered in Tennessee, to hold in trust property for the Methodist Episcopal Church, South. By the terms of the devise the Tennessee corporation was to control the property for the use of the Scarritt Bible and Training School, a Missouri corporation. It was ruled that both these corporations fell under the' ban of the Constitution of this State (Art. 3, sec. 8) and that the Tennessee corporation,, the devisee, was not saved by the doctrine of comity, because the observance of that rule, would never he carried to the extent of contravening the public policy of this State by giving to foreign corporations any advantage over a similar domestic corporation, and that neither of the corporations conld take the devise made to them in their corporate name. In arriving at its conclusions the ■ court considered the charters of the two corporations and concluded therefrom that their “primary object and purpose of organization was for religious purposes.” In fact, they seem to have had no other (Id. pp. 63, 67).

The charter in the instant case discloses “that the primary purpose and object” of the plaintiff corporation are the daily duties of its members to. visit and assist the sick poor “irrespective of creed or color,” while the imparting of religious instruction is only mentioned as incidental to the occasional meetings of sewing classes and poor children. The present charter is not one void under the Constitution as having been granted only to teach a particular religion, but is one that is valid in so far as it authorizes deeds approved as benevolent by secular as well as Christian standards. Hence, the point ruled in the Proctor case has no bearing on the different charter shown in the present record.

Appellant also relies on the case of Fishing Club v. Kessler, 252 Mo. 424. Nothing ruled in that case bears upon the constitutional validity of the charter presented in the present record. In that case the charter of the plaintiff corporation was assumed to be valid, but it was ruled that the plaintiff corporation could not compel its president to turn over an investment in four hundred and twenty-six acres of land which he had fraudulently taken in his own name while acting on behalf of the plaintiff and which he sought to sell to the corporation at an advance of six dollars per acre, the theory being that the corporation in question was not authorized to acquire that sort of property. Obviously that ruling throws no light on the question of the validity of the plaintiff corporation in the present case, under the statute providing for the corporations for benevolent purposes; for if the present plaintiff was lawfully established under that statute, it would be entitled to take the devise in accordance with Mrs. Bailey’s will and apply it or its proceeds to the benevolent purposes specified in its charter.

IV.

If the plaintiff was not (which it is) a benevolent corporation, but was an abortive effort to create a religious corporation and, therefore, claiming to act under a charter void on account of the prohibition of the Oonstitution, yet the result would equally defeat the purpose of the defendants to obtain the title to the lot in controversy. This, for the reason, that the langauge of the will of Mrs. Bailey as to this devise is, viz.:

“Seventh: ,1 give .and bequeath to the order of the ‘Little Helpers’ my lot in the city of St. Louis, State of Missouri, on the north side of Randolph Street, fronting fifty feet on Randolph Street,” etc.

And the attempted incorporation of plaintiff did not destroy the independent and continued existence of “The Order of Little Helpers” whose name as a religious society was used as the corporate- name of plaintiff. This proposition was established in the case of Catholic Church v. Tobbein, 82 Mo. l. c. 424, where the facts were that Tobbein devised one-half of his estate to the Catholic church at Lexington, Missouri, whereupon that church incorporated itself by that name and brought suit for the probate of the will and obtained judgment below, which was reversed on appeal. Said this court: “The Catholic church at Lexington did not lose its existence or organization in the incorporation of the plaintiff by the same name.” This court then quoted the constitutional provision and held that the plaintiff corporation could not take the property, hut added, whether the Catholic church at Lexington as distinguished from the corporation of that name can receive and hold property “can be determined only in a suit instituted by that church.” Upon this hint a new .suit was brought by the unincorporated body, and, after demurrer, its petition was amended by the substitution of certain members of the church as plaintiffs, from which an appeal was again taken to this court (Lilly v. Tobbein, 103 Mo. l. c. 483), where Black, J., held that the church did not lose its existence by its attempted incorporation and that its suit could well be maintained by some of its individual members suing on behalf of themselves and of others, and, as to the rights of the church to recover the devise, added: “But it is well settled law that a charitable devise or bequest will be upheld and enforced, though it is made to a voluntary, unincorporated association,” citing Schmidt v. Hess, 60 Mo. 591; 2 Perry on Trusts (3 Ed.), sec. 730.

Now clause 4 of the agreed statement of facts is to-wit:

“(4) The name ‘The Little Helpers’ is not the name of any corporation, nor of any order or society, and is only the name by which plaintiff and the members of the society of the Helpers of the Holy Souls in Purgatory are commonly known and designated in the City of St. Louis.”

This language and that contained in clause 7 of the will, make it certain to a common intent that the testatrix devised this lot either to an order imincorporated, or to the plaintiff, since both are known in St..Louis by the name “The Little Helpers.” It necessarily follows under the equitable principle which conserves a charitable devise, that the one made by Mrs. Bailey became effective either in the unincorporated society denoted by the terms' “Little Helpers” or in the incorporated society equally denoted by the same terms, and if therefore the plaintiff corporation had been held by us to be void under the Constitution, we would have been compelled to hold, further, that the devise, in question was valid as to the unincorporated society of the same name. And we would have taken the course in the two cases last cited and would have sent the case back, in order that the individual members of the unincorporated order, on their own behalf and on behalf of all others, might assert its title to the devise, based on the terms of the will giving the lot to a name “Little Helpers,” which term designated both the incorporated and the unincorporated order; the one composed of seven members and the other having seventeen. In case of such new suit the unincorporated body would not be prejudiced by any agreements made in this case to which it is not a party.

It follows that the defendants can have no interest in the little lot alleged in their briefs to be assessed at $3500. Other clauses of the will of Mrs. Bailey devised real estate of great value to the Episcopal, Protestant and Catholic charities, and included specific bequests of money and stock to different personal friends, not omitting a thousand dollars given to a faithful colored servant. The names of the defendants in this suit are excluded from any mention in any of the clauses of her will, all of which bears internal evidence of just discrimination and impartiality in the selection of the objects of her bounty. The competency of the testatrix to execute the instrument is incontrovertible. The terms of the gift preclude the possibility of its failure, for one of the two devisees by a common name must take as against the defendants.

The judgment in this case is affirmed.

PER CURIAM. — The foregoing opinion of Bond, J., in Division, is adopted by the Court in Banc!

All concur except Graves, J., who dissents in separate opinion; Blair, J., not sitting.

GRAVES, J.

(dissenting). — I cannot concur in the majority views in this case, and the question involved being one of more than passing interest I feel .that my reasons for dissenting should be assigned.

Able counsel for respondent, with commendable frankness (in oral argument), said that if the “Society of the Helpers of the Holy Souls” was in fact an attempted religious corporation, then the judgment nisi was wrong. In different language the matter may be thus expressed: If the circuit court in entering the fro forma decree attempted to and did organize a religious corporation, when it chartered the respondent, then the act of such court was futile in view of constitutional inhibitions, and respondent has no standing in this case.

To determine the character of a corporation we should go to its charter first. If, however, the language used in the charter is ambiguous and uncertain of meaning, I know of no rule of law which would preclude a court in construing such ambiguous written instrument, from invoking the assistance of extraneous proof in reaching the meaning of the instrument. Nor should we in determining the character of the charter emphasize one portion thereof to the exclusion of other portions. The charter should be read and construed from its four corners. Its real purpose can only be gathered in that way. My learned brother has omitted some of the matters in. this charter, which to my mind tend to characterize the corporation, and has emphasized minor matters in dis-. cussing the enumerated powers in section three of the charter, and omitted a discussion of the first, principal object of tbe corporation, as in said section 3, stated.

The very first object and purpose of this corporation, as expressed in article 3 of its charter is to maintain “tbe Society of tbe Helpers of tbe Holy Souls” in St. Louis, and other similar societies to be thereafter organized in tbe city of St. Louis and tbe State. Tbe language of tbe charter in this respect is:

“The purpose and object of said corporation shall be to maintain the establishment now under our charge in said city of St. Louis known as ‘the Society of the Helpers of the Holy Souls/ and also others that we may hereafter establish in said city or in the State of Missouri.”

This article cannot be read in full without reaching tbe conclusion that tbe maintenance of these societies in tbe city and tbe State is the prime object and purpose of tbe corporation. All other things are, by tbe very words of tbe article, made subsidiary thereto. Note tbe language just following the quota-’ tion, supra:

“And in connection with same, to gratuitously visit tbe sick poor daily, irrespectively of creed or color, rendering them every assiátance in our power by nursing them in their homes; to organize in our Convent, meetings-and sewing classes for tbe working class and poor children and impart religious instruction to same, and. assist said classes and children as best we can; to maintain a free circulating library and perform various other gratuitous works of charity and benevolence.”

There is much significance in tbe words “and in connection with same” as used here. Tbe use of this clause, as it is used, points unerringly to tbe fact that tbe prime purpose of tbe corporation is to maintain these societies, and tbe other matters mentioned in said article 3, including tbe imparting- of religious instruction to poor children, are hut incidents do the main purpose. It is well, however, to note that even these incidental matters authorize the corporation to give religious instruction. At this point, however, we do not desire to further elaborate upon this matter. Let us get back to the question, that even by article 3 of the charter the prime purpose and object of this corporation is to foster and maintain these societies- in the city of St. Louis and the State. No amount of ingenuity can change the plain reading of this article 3. Said article 3. is very peculiarly worded. It uses the words, “purpose and object” in the singular, and not in the plural. Ordinarily the clause of a corporate charter granting the powers and specifying the purposes and objects of the corporation, usually has these words in the plural, but not so here. This corporation had but one- “purpose and object” and that purpose was to maihtain the society already in St. Louis, and such others of like character as might be thereafter organized either in the city or the State. All other matters mentioned are mere subsidiary acts to this one “purpose and object.”

The character of the corporation, whether religious or benevolent, is therefore dependent upon the character of these societies it is chartered to support and maintain. -Had the charter said that the “purpose and object” of the corporation was to support and maintain the Catholic Church, the Methodist Church, or the Presbyterian Church, there would be no question as to the character of the corporation. But isn’t this charter just as plain when it is read from its four corners?

It is declared in the charter that this society, for the maintenance of which this corporation was chartered (or rather attempted to be chartered), is a religious organization. Note the language from the charter:

“WHEREAS: We, the undersigned members ■ Professed of a Religious Order of the Roman Catholic Church, known as ‘the Society of the Helpers of the Holy So.uls/ and whose Mother House is in Paris, France, 16 Rue de la Baronlilere, do desire to incorporate under the Provisions of article 11, chapter 12, of the Revised Statutes of the State of Missouri, same being an Act for the incorporation of ‘Benevolent, Religious, Fraternal, Beneficial, Educational and Miscellaneous Associations,’ in order to better ,perpetuate the usefulness of the Society, we have already for two years successfully conducted in the city of St. Louis, and all others that we may hereafter establish in said city or in the State of Missouri, do hereby by these articles of agreement associate ourselves in writing for said purpose of incorporation.” '

So, when we take the several portions of this -charter, we have (1) this corporation organized for-the one “purpose and object” of maintaining societies known and to be known as “The Society of the Helpers of the Holy Souls,” and (2) that such societies are religious societies. This much is written in bold English on the face of this charter. Prom the face of its charter it is clear that there has been a futile attempt to organize a corporation for religious purposes, and this contrary to the Constitution of the State. The judgment of the circuit court granting the pro forma decree is void upon its face. Like all other void judgments it can be attacked collaterally in this or any other proceeding.

II. But if it.be said that it does not clearly appear from the charter that there was an attempted incorporation of a body for religious purposes, then the ambiguities of the charter may be made plain by extraneous evidence. This was done in this case. The exact character of the societies which the plaintiff corporation was chartered to maintain is made to appear from this record. By an agreed statement of facts certain admissions ■ were made, and among ^ them were that a little pamphlet published by the society truly stated its objects, as did also a published report by Mrs. W. K. Morrison. From the agreed statement of facts we gather the following:

“(1) Plaintiff corporation is composed, exelu-' sively, of members of the religious order of the Roman Catholic Church known as ‘The Helpers of the Holy Souls in Purgatory.’ ”

This paragraph of the agreed facts was introduced and read in evidence by the plaintiff (respondent) in this case. They therefore characterize ■ this society which this corporation was formed to maintain, as a “religious order.” This is the solemn agreement made in the court nisi and it would be hard for this court, in the face of this admission, to say that the society is one for benevolence or charity and not religion. That it is a most worthy society there can be no question. That the world is made better by the teachings and works of those devoted Sisters, there cán be no question. But unfortunately for them and for us, these are not the questions involved in this lawsuit. The question here is whether of not there has been a futile attempt to charter a religious corporation. This plaintiff was chartered, (more correctly speaking attempted to be chartered) for the one “purpose and object” of maintaining this society and other similar societies. If then this society is a religious order, as is admitted in the agreed facts, then we have a corporation the one “purpose and object” being to maintain a “religious order.” We use the expression one purpose advisedly, because the charter uses the words “purpose and object” in the singular^ thereby’ clearly showing that all other things mentioned in the charter, are pure incidents, as will appear more clearly as we reach other admissions in this record.

It will suffice to conclude this paragraph by saying that we have here an attempted corporation for the admitted object and purpose of maintaining a named society, and then we have it admitted in the record that this society is a “religious order.”' This should he- sufficient for a reversal of the judgment nisi.

III. In the admissions made in the agreed statement of facts, but introduced by.'defendants, rather than plaintiff, we have:

“(7) Purgatory, in accordance with the doctrine of the Roman Catholic Church, is a place orcondition of temporal punishment for those who, departing this life in God’s grace, are not entirely free from venial faults or have not fully paid the satisfaction due to their transgressions. #
“The doctrine of the Catholic Church is that souls in Purgatory are aided by the prayers and works of satisfaction of the living, offered in their behalf.
“The name of the religious societies “The Society of the Helpers of the Holy Souls in Purgatory” was adopted by the founders of this religious society, for the reason that the chief purpose of this society is doing good works and offering prayers as a means of satisfaction as the debt due by the souls in Purgatory on account of their previous wrong doings, and thus to obtain by such prayers and good works, the shortening of the duration of their Purgatorial sufferings and hasten their entrance into Heaven.”

We have here the statement of one of the tenets of the Catholic Church, and we refer to it with all due deference. But when we consider this tenet of the church, we can readily see why the society named in the charter of plaintiff corporation is called therein a “religious order.” Its very work is an exemplification of this particular religious tenet. It was organized to teach and amplify this tenet of the church. All other things with this society are hut incidents of this main work and purpose. It is the living, moving exemplification of this tenet and teachings of the church, and to my mind it is clearly religious in character. If the society is a religious order, and the main purpose and object of this attempted corporation is to foster and maintain the society, no reasoning can make the corporation other than a religious corporation, or. a corporation for religious purposes. The society teaches this tenet of the church, and this corporation is the legal guardian and supporter of the society. But going further into this admitted record. It is admitted in the agreed statement of facts that the paper of Mrs. W. K. Morrison truthfully states the facts. Both the pamphlet circulated hy plaintiff, and this paper, shows that the prime purpose of the society is to inculcate this religious tenet of the church. In addition, however, we find that Mrs. Morrison reviews the actual work done and gives the statistics of the society in St. Louis. Among other things reported hy her,' we find:

“Attendance- at conferences and catechism ..............................50,862
Children baptized ..................'... 22
Adults baptized....................... 89
Confessions .......'.................... 580
First communions ......•............... 484”

We cannot blind ourselves to the facts shown here. The teaching of the “catechism” is religious teaching, this we must know, or the court knows less than the average individual. Likewise we must know that baptizing infants and adults, taking confes-' sions and attending, to communions are all church or religious matters. It is therefore apparent that this society was not only organized to exemplify the tenet of purgatory as taught by the Catholic Church, but its actual work is largely along religious lines.

By the charter, the corporation is made the sponsor and supporter of the society. Its purpose is therefore religious, rather than benevolent or charitable. It follows that the action of the circuit court in attempting to charter plaintiff was a void act. Under the agreed facts in the case it is admitted that the testator had in mind this corporation, when she made the bequest. Under these facts the trial court should have found for defendants, rather than for plaintiff. After going through this entire record I have no doubt that the circuit court made a futile attempt to incorporate a religious organization for an object and purpose not permitted by the Constitution, and to the end that all the facts may appear, I make the 'entire agreed statement of facts and the written instruments referred to therein a part of this dissent, by requesting the reporter to attach the same as an appendix to this opinion. The facts, in unvarnished hues, will then appear for themselves. The judgment nisi should be reversed, and the cause remanded.

APPENDIX.

In compliance with the request of Graves, J., in the foregoing opinion, the Agreed Statement of Facts and the instruments referred to therein are hereto subjoined.

Agreed Statement op Facts.

“It is hereby stipulated and agreed that the following statement of facts may be offered at. the trial ■of this cause and taken by the court as evidence of the facts therein contained, subject, however, to the right of either party, plaintiff or defendant, to object to any statement of fact therein contained on the ground of irrelevancy or immateriality; and subject further to the right of either party, plaintiff or defendant to introduce further testimony or evidence provided that such further testimony or evidence shall not be contradictory to any statement of fact herein agreed upon; and subject further to plaintiff’s, right to object to the introduction of any evidence by defendants under their answer.

“(1) Plaintiff corporation is composed, exclusively, of members of the religious order of the Roman Catholic Church known as ‘The Helpers of the Holy Souls in Purgatory.’

“(2) The said corporation is commonly known in the city of St. Louis as ‘The Little Helpers.’

“(3) Anna Hamilton Bailey died in the city of St. Louis on or about the twenty-first day of September, 1910, testate, and seized and possessed, in fee simple, of the following described real estate in said city, to-wit: A lot in City Block 1708, fronting fifty feet on the north side of Randolph street by a depth, northwardly, of equal width between parallel lines of one hundred and twenty feet, two and one-fourth inches to a twenty-foot alley, and being, bounded on the east by a line parallel to and fifty-eight feet east of the east line of Twenty-third street; and that said premises are the same as those described in Cláuse 7 of the last will of said Anna Hamilton Bailey, as follows: ‘My lot in the city of St. Louis, State of Missouri, on the north side of Randolph street, fronting fifty feet on Randolph street, with a depth of one hundred and twenty feet, two and a quarter inches to a twenty-foot alley, being fifty-eight feet east on Twenty-third street, being in City Block 1708.

“(4) The name ‘The Little Helpers’ is not the name of any corporation, nor of any order or society, and is only the name by which plaintiff and the members of the Society of the Helpers of the Holy Souls in Purgatory are commonly known and designated in the city of St. Louis.

“(5) Anna Hamilton Bailey meant and intended, by her last will and by clause 7 thereof, in naming the order of the Little Helpers as devisee of the real estate in said clause 7 described, to give plaintiff corporation the said parcel of real estate in plaintiff’s petition described.

“After the death of Anna Hamilton Baileyr plaintiff took possession of said real estate above-described, as devisee thereof under the last will of Anna Hamilton Bailey, deceased, and has continued in possession thereof to the present time.

“(6) Plaintiff admits the truth of the allega-tions set out in paragraphs three, four, five and six of the second amended answer of defendants, Lawrence K. Kinsey, Ernest Law, Walter A. DeMilly,. Augusta Horton Gedney and Arthur L. DeMilly,. herein filed.

“ (7) Purgatory, in accordance with the doctrine-of the Roman Catholic Church, is a place or condition of temporal punishment for those who, departing this, life in God’s grace, are not entirely free from venial faults or have not fully paid the satisfaction due to-their transgressions.

“The doctrine of the Catholic Church is that souls in Purgatory are -aided by the prayers and works of satisfaction of the living, offered in their-behalf.

“The name of the religious Society ‘The Society of the Helpers of the Holy Souls in Purgatory’ was. adopted by the founders of this religious society, for the reason that the chief purpose of this society is doing good works and offering prayers as a means of.' satisfaction as the debt due by tbe souls in. Purgatory on account of tbeir previous wrong doings, and thus to obtain, by sucb prayers and good works, the shortening of tbe duration of tbeir Purgatorial sufferings and hasten tbeir entrance into Heaven.

“(8) Tbe religious Society of tbe Helpers of tbe Holy Souls in Purgatory is a community of religious women wbicb was organized in Paris, France, about tbe year 1854, and wbicb now has branches or convents in virtually all tbe civilized countries of tbe world. The branch or convent of this religious society In the city of St. Louis was established in 1903 by twelve sisters of tbe order who came here from France at that time, and at present tbe society here numbers seventeen sisters, tbeir convent being located •at 4012 Washington Boulevard, St. Louis. Tbe main ■object of this community of sisters is the relief and deliverance of the souls in Purgatory by means of ■spiritual and corporal works of mercy. These works •are performed from motives' of religious charity and no remuneration, of any kind whatever, is accepted. Tbe society is supported by voluntary offerings, gifts, of benefactors who are interested in tbe work, and contributions of honorary members. All tbe seven- ■ teen members in this religious community are engaged In--works of charity, either at or outside tbe convent. Tbe sisters are especially active in tbe nursing of tbe sick poor, irrespective of creed or nationality, in tbeir own homes. By means of these visits to tbe homes of the sick and the invalid, tbe sisters are -enabled, not only to alleviate bodily misery, but may •assist them spiritually by aiding them to prepare worthily for tbe sacraments, etc. Both home and •abroad, tbe sisters undertake numerous works of charity wbicb vary according to tbe needs of tbe country and tbe diocese to wbicb they may be called, but ■all are consecrated to tbe same aim — tbe relief and deliverance of the souls in Purgatory. They visit the sick poor daily, rendering them every assistance in their power and nursing them in their own homes. Out of these visits to the sick and the poor arise many .opportunities for doing good.

“In their convents, the sisters organize meetings for the working class and poor children who there receive familiar instruction. Young women employed during the week in business houses find protection, amusements, and friendly assistance at the convent, and have the advantage of a free circulating library.

“One of the works of the Helpers is the preparation of children and adults for the reception of the sacraments .and the reception of newly received converts. All the work of the sisters is gratuitous, no-other recompense being sought than the consolation of saving the souls of members of the Church and the alleviation of the souls suffering in Purgatory.

“The sisters have the assistance of lay-helpers, Catholic women who aid them in this field of Christian charity, especially on their errands of charity about the city, their visits to poorhouses and hospitals, and in the work of instructing the young in schools, missions, and churches in various parts of the city. These lay-helpers may be enrolled as honorary members. The social side and the recreational features are recognized in the works of the society. Illustrated lectures, musicales, and entertainments are given for the benefit of the children and girls at the meeting in the convent, and for those enrolled in the various sodalities or societies before referred to as ‘The Society of the Helpers of the Holy Souls in Purgatory;’ that ‘The Society of the Holy Souls’ mentioned in Article III of said constitution and articles of agreement is the same society hereinbefore mentioned as ‘The Society of the Helpers of the Holy Souls in Purgatory;’ and at the time of the entering of said decree of incorporation there was not in the city of St.. Louis a society known as ‘The Society of the Helpers of the Holy Souls’ as distinguished from ‘The Society of the Helpers of the Holy Souls in ( Purgatory’ hereinbefore mentioned.

“(10) It is further agreed that the pamphlet hereto annexed entitled ‘Helpers of the Holy Souls in Purgatory’ was published by plaintiff and that the statements therein with respect to the object and purposes of the Society of the Helpers of the Holy Souls in Purgatory are true. • , .

“ (11) It is further agreed that the four printed pages hereto annexed, marked ‘Exhibit I,’ an article written by Mrs. W. K. Morrison, correctly states the object and purposes of the Helpers of the Holy Souls in Purgatory and under the head of ‘Information and Data’ as amended, correctly states the information there set out in regard to said society; and correctly states under the head of ‘Statistics’ the items there set out; and correctly states, under ‘Division of Works’ the facts there set out.”

The contents of the pamphlet entitled “Helpers of the Holy Souls in Purgatory” mentioned in article 10 of the above Agreed Statement of Facts, are as follows:

“HELPERS OF THE HOLY SOULS IN PURGATORY.
“The Society of the Helpers of the Holy Souls in Purgatory.
“In a celebrated sermon preached by Bourdaloue, one the 2nd of November, he exclaimed: ‘Through- . out all time, people have prayed for the dead, but the work of self-sanctification for them was reserved to our generation. ’ To sanctify themselves, for the souls of Purgatory, is the object that the Religious of the Society of the Helpers of the Holy Souls have in view.
“The Church, ever fruitful, has from time to time raised up many varieties of religious orders to relieve the different miseries of this life; from the cradle to the grave, she has surrounded her children who suffer with angels of peace and consolation. There only remained for her then to extend this same merciful assistance to the souls of the faithful departed.
“God inspired her to do this at a time when the powers of hell were endeavoring to consign the dead to oblivion by relegating to a distance from the abodes of men the hallowed enclosure where their bodies repose in hope; by often depriving their mortal remains of the priest’s blessing; by abolishing the greater number of those pious foundations instituted ' in their behalf by the piety of our ancestors; by drawing the present generation into a vortex of indifference for spiritual things; of feverish agitation and regard for material interests, which, while it leaves’ an affectionate remembrance of those who are no more, deprives them of the efficacious help of the prayers and suffrages of those' by whom they have been loved. The devil, always hostile to God’s glory, , undoubtedly knows how much that glory is augmented by each soul that enters into its eternal 'rest, and his hatred of all who bear our Lord’s image, extends •even to these chosen souls whose deliverance the Sacred Heart desires so ardently. To protest against this selfish forgetfulness of the dead, many pious ■associations have been formed, but a religious institution was necessary that would unceasingly raise its voice, in the name of the Church militant, on behalf of the Church, suffering in Purgatory, and be in this unbelieving age, a living witness to our faith in the realities of the other life. This institution was founded by the good pleasure of God; step by step His Divine Providence guided her whom He had chosen to be its Foundress and Mother. Faithful to an inspiration received during a fervent thanksgiving, this soul did not hesitate to undertake the difficult enterprise of making a foundation. She was without resources and lacked all human help, but neither the trials which established her work on the solid foundation of the Cross, nor her natural repugnance, could shake her courage. She had placed all her hope in Providence, and it was by the name of this Divine attribute, the object of her life’s devotion, that she desired to be henceforth known. (See the life of the Reverend Mother Marie de la Providence, Foundress of the ‘Helpers of the Holy Souls,’ by the late Lady Gr. Fullerton. Burns and Oates, Orchard Street, London.) A virile courage lay hid in that woman’s breast; in her bosom beat a noble heart full of compassion and tenderness. It was to her that Pere Olivaint applied these words: ‘Elle avail une grcmde 'ame, el elle. savail vouloir.’
“Sustained internally by grace, and encouraged externally by the representatives of Divine authority, and the blessings with which Providence surrounded her work, she conceived the generous thought of, founding a House whence prayer and expiation should without ceasing, rise to Heaven, in behalf of the suffering souls of. Purgatory. The Coure’ d’Ars became' for her one of the interpreters of the Divine Will; and, by his counsels and kindly interest, attached himself to this society from its very birth, defining it as ‘A thought of love, coming from the Heart of Jesus.’ It was not long before the rule of St. Ignatius, adopted by the rising foundation, conferred on it the benefit of a firm and excellent religious consolidation, and completed the development of a spirit entirely devoted to the interests of our Lord. In fact, the apostolic zeal of the Institution is not confined to the suffering souls of Purgatory. Works of mercy toward the living are bne of the most efficacious means that the Church recommends to her children for helping the dead. Providence did not delay to point, out this way to the Helpers of the Holy Souls,, and the care of the sick-poor in their own homes was undertaken. This work furnishes them with opportunities of abnegation and mortification, of which the lives of the saints offer examples innumerable, and consequently enables them to amass treasures of satisfaction for the captive souls, so dear to them; while at the same time it affords the means of bringing back to the practice of religion souls that have long forgotten their duties, and lived deprived of its consolations.
“To stretch out a helping hand by means of this self-devotion at one and the same time to the most forsaken souls in this world and in' the next, was the desire of the Holy Foundress, and her daughters strive to realize it. Both at home and abroad they undertake numerous works of zeal and charity, which vary according to the needs of the country and diocese to which they may be called, but all are consecrated to the same end: ‘The relief and deliverance of the Holy Souls.’
“They visit the sick poor daily, rendering them every assistance in their power by nursing them in their own homes. Out of these visits to the sick and the poor arise many opportunities for doing good.
“In their Convents the Helpers organize meetings for the working class and poor children, who receive there familiar instruction. Young women, employed during the week, in business houses, find protection, amusement and friendly assistance at the Convent, and have also the advantage of a free circulating library. One of the most cherished works of the Helpers is the preparation of children and adults for the reception of the Sacraments, and the instruction of newly received converts.
“All these works, however, are gratuitous, for these spouses of our Divine Lord seek no other recompense for their labor and fatigue than the consolation of saving the souls of, the Church militant, for the alleviation of the members of the Church suffering.
“An association of expiation ought, above all things, to be an association of prayer, and for this reason, the Society of the ‘Helpers of the Holy Souls’ attaches great importance to the exercises of interior life, and a great part of each day is devoted to them.
“In addition to the meditations, pious readings, adorations of the Blessed Sacrament obligatory on all, the choir-nuns recite the Office of the Dead. After the example of Blessed Margaret Mary, one of their holy patrons, they have consecrated themselves to a special devotion to the Sacred Heart of our Lord: Every hour they invoke this Sacred Heart, saying the following prayer for the captive souls: ‘0 My God! we offer for the Holy Souls all the acts of love with which the Sacred Heart of Jesus glorified Thee, during this same hour, when he was upon earth.’ The first Friday of every month and the Octave of the Sacred Heart, are observed with special fervor, and the Blessed Sacrament is exposed in the chapel.
“His Holiness the Sovereign Pontiff, Pius IX, honored the Society with two briefs of approbation, and on the 25th of June, 1878, the Religious had the consolation of having their Constitutions approved by his Holiness Leo XIII.
“The Society has now several houses in France,Belgium, England, Italy, America and even China. 'The Mother house is in Paris, 16 Rue de la Barouilliere.
“But the object of the Helpers is not only to labor themselves for the Holy Souls, but also to diffuse as widely as possible their own spirit and example. With a view, therefore, of augmenting the treasure of merit and satisfaction for the sufferers in purgatory, and of obtaining for them a succession of daily increasing prayers, this Society has added to its ranks Honorary Members, Benefactors, Life-Members, and Lady Associates, who, upon enrollment enter into a union of prayer and sacrifice with the Helpers, and participate in their privileges.
“honorary members.
“The Honorary Members conform, as far as they are able, to the motto of the Society of the Religious Helpers of the Holy Souls in Purgatory: ‘Pray, Suffer, Work for the Souls in Purgatory.’
“Pray — They recite every day the acts of Faith,. Hope and Charity, with the aspiration, ‘My J.esus, Mercy! ’ for their deceased relatives, applying to them the indulgences attached to these prayers.*
“Suffer — They offer their daily sufferings and trials for the same intention.
“Work — Ahns-giving, being according to the teaching of Holy Church, one of the most efficacious means of helping the Souls in Purgatory, the Honorary members contribute by a yearly offering (usually in the month 'of November) of a dollar to the support and good works of the Society, exclusively devoted to.works of mercy for the deliverance of the Souls in Purgatory.
—“Any one unable to contribute a dollar annually, yet desirous of assisting this great work of charity, can become affiliated by giving any small alms according to his means, and by reciting the same prayers as the Honorary Members.
“benefactors and life members.
“Make a more considerable offering, once for all, or at several times, to support the work. Their names are inscribed in a book specially kept for the purpose.
“All these share in the good works and prayers, of the Helpers and in the monthly Masses and Communions of Associated Priests and Religions. In the year 1878, when the last calculation was made, 45,600 ■communions and 17,280 Masses were received into the spiritual treasury of the Order.
“The deceased relatives of Honorary Members participate in the prayers and good works of the Society of the Helpers of the Holy Souls, and special suffrages are applied to deceased Honorary members.
“A Register is kept, wherein are inscribed the names of deceased persons, for whom suffrages are requested by Honorary Members.
“lady associates.
“The Lady-Associates take an active and much greater part in the good works of the Helpers. They ■can be received only after a due probation, and are bound to lead in the world a truly Christian life, by the constant practice of their religious duties and by great fidelity to the duties of their State.
“There are meetings held especially for them every week -at the Convent.
“Besides possessing all the advantages of the Honorary Members, the Associates are thus united in a more intimate manner in prayer, in suffering, and in good works, with the Religious Helpers of the Souls in Purgatory, who admit them during life and after death to a participation in all the privileges, merits, and suffrages of their Society.
“priests and religious.
“May become Honorary Members, the former by offering up the Holy Sacrifice once a month, the latter by a monthly Communion according to the intentions of the Society.
“promoters oe the association.
“The Promoters who form bands of Honorary Members are inscribed as Benefactors, and enjoy the same privileges. Thus to the poor and to the rich, to the good and fervent of every condition of life, this pious society addresses a note of invitation. Let us not turn away unheeding while there is one belonging to us numbered among the dead whose love we have not yet forgotten. Let us listen to the voice that cries to us from those realms of suffering holiness: ‘Have pity on me, have pity on me, at least you, my friends!’ How can we better answer its pleading accents, than- by entering into a bond of union with the Order of the Helpers of the Holy Souls 1 Let us help them with our sympathy. Let us help them with our prayers. . Let us help them with our alms to enable them to carry on their work of charity.
“Names for Enrollment and Offerings may be sent to the Convent of the Helpers of the Holy Souls in Purgatory, 4012 Washington Boul., St. Louis, Mo.
“plenary indulgences.
Granted by
HIS HOLINESS POPE PIUS IX.
To the Honorary Members of the Society of the Helpers oí the Holy Souls.
“To the humble petition presented to the Holy Father, asking a Plenary Indulgence for all the Honorary Members.
“1. On the day of Enrollment as Honorary Members.
“2. On November 2, All Soul’s Day. On November 15, Feast of St. Gertrude. On March 19, Feast of St. Joseph. On March 25, Feast of the Annunciation of the Blessed Virgin. On the first Friday after the Octave of Corpus Christi, Feast of the Sacred Heart. On July 31, Feast of St. Ignatius of Loyola.
“3. At the hour of death, by pronouncing with a contrite heart, or, at least, breathing interiorly the invocation: My Jesus, Mercy!
“His Holiness deigned to make the following reply:
“ ‘St. Peter’s. Rome, July 4, 1860.
“ ‘Receiving favorably the petition which has been addressed to us, We grant, HST PERPETUO, by • this present Rescript, and without sending out any Brief, the Indulgences asked for, with the power of applying them by way of suffrage to the Holy Souls in Purgatory. — PIUS IX.’ ”

The article written by Mrs. W. K. Morrison, for the 1912 conference of the Catholic Charities and Social Activities of the city of St. Louis, marked “Exhibit I” mentioned in Article 11 of the above Agreed Statement of Pacts, is as follows:

“HELPERS OP THE HOLT SOULS IN PURGATORY.
“The Society of the Helpers of the Holy Souls in Purgatory is a community of religious women, established in St. Louis since the month of May, 1903. Their convent,, at present, is” at 4012 Washington Boulevard.
“The main object of this religious community, which was founded in Prance about fifty years ago,, is the relief and deliverance of the souls in purgatory by means of spiritual and corporal works of mercy. These works are always performed from motives of religious charity, and no remuneration, of any kind whatever, is ever accepted. Neither does! the society solicit or collect and here this question arises: How is the work supported? By voluntary offerings, gifts of benefactors who are interested in the work, the contributions of Honorary Members, in fine, Trusting to Divine Providence. Prom the object of their society its members are called Helpers of the. Holy Souls in Purgatory.,
“There are at present sixteen members in this religious community, all of them engaged in works of charity either at, or outside the" convent.
“It may be stated that these sisters are especially active in one phase of charitable work, which, before their location in St. Louis, had not yet been taken up to any large extent by the members of any other religious community of women. This is the nursing of the sick poor, irrespective of creed or nationality, in their own homes. By means of these’ visits to the homes of the sick and the invalid, the sister’s are enabled not only to alleviate bodily misery, but may even assist them spiritually, by aiding them to prepare worthily for the reception of the sacrament, etc.
“Perhaps the one great purpose and aim of the Helpers of the Holy Souls in Purgatory can be shown in no better way than by quoting from a booklet which has been prepared for the benefit of those interested in their work. We read: ‘Both at home and abroad ■the sisters undertake numerous works of zeal and •charity, which vary according to the needs of the •country and diocese to which they may be called, but all are consecrated to the same end: The relief and •deliverance of the holy souls.’
“They visit the sick poor daily, rendering them •every assistance in their power by nursing them in their own homes. Out of these visits to the sick and the poor arise many opportunities for doing good.
“In their convents the Helpers organize meetings . for the working class and poor children, who there receive familiar instruction. Young women employed •during the week in business houses, find protection, •amusement and friendly assistance at the convent, and have also the advantage of a free circulating library. One of the most cherished works of the Helpers is the preparation of children and adults for the reception of the sacraments, and the instruction of newly received converts.
“All these works, however, are gratuitous, for no other recompense is sought than the consolation of saving the souls of members of the Church militant, for the alleviation of members of the Church suffering.
“It' will be seen, therefore, that the scope of the religious community is wide. The sisters take this opportunity to plead for a large number of lay-helpers — earnest and devoted Catholic women, who may help them in this broad field of Christian charity, They need such assistance, especially on their errands of charity about town, in their visits to poorhouse and hospitals, and also in the work of instructing the young in schools, missions and churches in various parts of the city. There is here large opportunity for our Catholic women to exercise, in behalf of and together with these religious, the Catholic social and religious Apostolate. In fact, without such help the work of the sisters will, to a large extent, prove ineffective or will, at least, not produce those permanent results which a greater participation of Catholic women in this noble work would bring about. Such lay-helpers, may, if they wish, be enrolled as honorary members.
“The social side and the recreational features are not disregarded in the work of the Helpers of the Holy Souls. Illustrated lectures, musicales and entertainments are given for the benefit of the children and girls attending the meetings at the convent and for those enrolled in the various sodalities. (Not less than fourteen Christmas parties, attended by over five hundred guests, took place in their hall last Christmas.)
“In the summer all the young people, as well as their mothers, are given opportunity to enjoy a day in the country, or at an outing home. A circulating library lias been started with a good collection of religions books and works of fiction.
“One of the more conspicuous works is the Annual Mission, or Retreat, for the benefit of young women employed during the day, which is generally given in the month of October. This Mission gives the sisters opportunity of becoming acquainted with a number of young women who may stand in need of help, and these persons are invited to call at the convent whenever they may be in need of assistance.
“The work of the Helpers of the Holy Souls is not limited to whites, but special classes for instruction and special meetings- have .been arranged at the convent for the benefit of colored persons. These are well' attended, and several conversions have already resulted from the interest shown by the religious in this part of their work.
INFORMATION AND DATA.
“Name: The Helpers of the-Holy Souls in Purgatory.
“Address: 4012 "Washington Avenue, St. Louis, Mo.
“In Charge of: The Helpers of the Holy Souls.
‘ ‘ E stablished: 1903.
“Conducted by: The Helpers of the Holy Souls.
“Purpose: Relief and deliverance of the souls in purgatory by the spiritual and corporal works of Mercy.
‘ ‘ Beneficiaries: Not limited to class, nationality or creed.
“Annual Rent: None — Property, including building, is owned by the religious.
“Sources of maintenance: (a) Donations from benefactors.
“(b) Entertainments and lectures.
“Authorized Public Representative: The Sisterhood of the Helpers of the Holy Souls in Purgatory.
“Salaried Employees Authorized as Collectors or Representatives: None.
“Business Administration: The sisters conduct all business matters, occupying official positions; authorize expenditures, audit accounts and make all payments.
“Employees: Paid employees, giving whole time, none; salaries, none annually. Unpaid assistance, giving part time, ninety-two. Religious, giving whole time, sixteen. Approximate amount of salaries that would be paid for the positions now filled by members of the Order $12,120 annually.
“Annual Report: None published.
“Auxiliary: Ninety-two ladies assist in the works' of charity in the Italian sewing schools, the catechism-classes and Sunday schools, visits to families of the-poor, the hospitals and the quarantine.
STATISTICS.
January 1, 1911, to December 31, 1911.
“Nursing cases ............,........:....... 2^223
Errands of charity and helpful visits..........23,711
Particular instructions given................. 1,641
Attendance at conferences and catechism.-.....50,862
Children baptized.. •.......................... 22
Adults baptized.............................. 89
Confessions ................................. 580
First communions............................ 484
Books issued................................ 7,573
Garments distributed......................... 5,563
DIVISION OK WORKS.
“at the convent.
Sodalities for working-girls and children.....Sunday
Sewing for young girls............................ ...............Tuesday and Thursday evenings
Sewing for children............................... ............................Saturday afternoon
Sewing for Christian mothers.............Thursday
Sewing for colored mothers......Wednesday evening
Sewing for colored children...............Saturday Material for sewing furnished free.
“in the parishes.
Annunciation: Catechism — Sunday, Wednesday, Friday.
Visits to families. Sodality of the Children of Mary.
Nativity: Sunday-school'.and catechism. Wednesday. Visits to families.
St. Paul: Sunday-school.
St. Catherine of Sienna: Sunday-school.
Holy Innocents: Sunday-school.
Our Lady Help of Christians: (Italian Church)
Catechism and sewing for girls...........Saturday Catechism daily during Lent.
Christian Mothers’ meeting...............Thursday Visits to families.
“visiting hospitals.
City and Female Hospitals... .Wednesday and Friday
City Consumptive Hospital (Quarantine)..Wednesday
Children’s Hospital........................ .Friday
Skin and Cancer Hospital...................Friday'
St. Louis Infirmary (Poor House)......Wednesday.’’

The Constitution and Articles of Agreement of the plaintiff herein, together with the pro forma decree of the circuit court of the city of St. Louis, Missouri, purporting to incorporate the plaintiff, attached to defendants’ answer, and marked “Exhibit A,” mentioned in Article 9 of the above Agreed Statement of Facts, are as follows:

“CONSTITUTION AND ARTICLES OF AGREEMENT OF
“THE SOCIETY OF THE HELPERS OF THE HOLY SOULS.
“WPIEREAS, we the undersigned members Professed of a Religious Order of the Roman Catholic Church, known as ‘The Society of the Helpers of the Holy Souls,’ and whose Mother House is in Paris, France, 16 Rue de la Baronillere, do desire to incorporate under the provisions of Article 11, Chapter XII, of the Revised Statutes of the State of Missouri, same being an Act for the incorporation of ‘Benevolent, Religious, Fraternal, Beneficial, Educational and Miscellaneous Associations,’ in order to better perpetuate the usefulness of the Society, we have already for two years successfully conducted in the city of St.' Louis and all others that we may hereafter establish in said city or in the State of. Missouri, do here by these articles of agreement' associate ourselves in writing, for said purpose of incorporation.
“Article (1): The name and style of said corporation shall he ‘The Society of the Helpers of the Holy Souls,’ and its main office shall be in the city of St. Louis, Missouri, except that said main office may be removed to any other part of the State of Missouri by a vote of three-fourths of the members of the corporation at- any regular or special meeting of the corporation.
“Article (2): The corporate existence of this Society shall he perpetual and shall endure forever, so long as it performs the object for which it is organized.
“Article (3): The purpose and object of said corporation shall be to maintain the establishment now under our charge in said city of St. Louis, known as ‘The Society of-the Helpers of the Holy Souls,’ and also others that we may hereafter establish in said city or in the State of Missouri, and in-connection with same, to gratuitously visit the sick poor daily, irrespective of creed or color, rendering them every assistance in our power by "nursing them in .their own homes; to organize in our Convent, meetings and sewing classes for the working class and poor children and impart religious instructions to same, and assist said classes and children as best we can; to maintain a free circulating library and perform various other gratuitous works of charity and benevolence.
“Article (4): The officers of said corporation shall be a President, Secretary and a Treasurer, and such other officers as may be provided for, by its bylaws.
“Article (5): Said corporation shall enjoy all the privileges in respect to acquiring and holding property for the purposes of the corporation by gift, purchase, devise, or otherwise, as are made and provided for by the general and special statutes of the State of Missouri concerning corporations.
“Article (6): Said corporation shall make and adopt by-laws and rules for its government and support and the management of its property and affairs, and may provide for. all things necessary and conducive to the good and successful management of the affairs of said Society. Some to be consistent with the laws of the United States and of Missouri, and with these Articles of Agreement.
“Article (7): These Articles of Agreement may be changed or amended at any regular or special meeting of the corporation by a two-thirds vote of those present, provided said Amendment has been in writing at a meeting of the corporation held at least one month previous to the meeting at which said amendment is adopted, and written notice of said proposed amendment has been given by mail or by personal service to each and every member of the ■ corporation not present in person at said previous meeting when said proposed amendment was presentad.
“Witness our hands and seals this 17th day of July, 1905.
Mary Heden. George, (SEAL)
Known in Religion as Mary of the Redemption.
Mary Agatha Fitzgerald, (SEAL)
Known in Religion as Mary of St. Magdalene,
Margaret Agnes Chahlan, (SEAL)
Known in Religion as Mary St. Ethelreda,
Bridgett McDermott, (SEAL)
Known in Religion as Sr. of St. Gregory,
Lily Mary Fitzsimmons, (SEAL)
Known in Religion as Mary of Blessed Emanuel Alvares,
Margaret Pollet, ' (SEAL)
Known in Religion as Mary of St. Gaeton,
Maria Francois, (SEAL)
Known in Religion as Mary of the Y. Joseph Anchista.
“STATE OE MISSOURI, ) ggCITY OE ST. LOUIS. )
“On this 17th day of July, 1905, before me, a Notary Public within and for the city of St. Louis, personally appeared Mary Helen George, Mary Agatha Fitzgerald, Margaret Agnes Chahlan, Bridgett .McDermott, Lily Mary Fitzsimmons, Margaret Pollet and Maria Francois, known in Religion as: Mary of the Redemption, Mary of St. Magdalene, Mary of St. Ethelreda, Mary of St. Gregory, Mary of the Blessed Emanuel Alvares, Mary of St. Gaeton, and Mary of Venerable Joseph Anchista respectively, to me known to be the persons described in and who executed the foregoing instrument and they severally acknowledged to me that they executed the same as their free act and deed, and for the purpose therein mentioned.
“WITNESS my hand and Notarial seal, this 17th day of July, 1905,
(SEAL). Joseph B. Kreikemeir,
Notary Public.
SS.
“in THE CIRCUIT COURT, CITY 03? ST. LOUIS, OCTOBER TERM, 1905.
c i Thursday, October 19th, 1905,
“In the matter of 1875 The Society of the Helpers of the Holy Souls.
“And now at this day come Mary Helen George, as President, Lily Mary Fitzsimmons, as Secretary and Margaret Pollett, as Treasurer, of the Society of the Helpers of the Holy Souls, and submit to the court the articles of agreement of said association, together with a petition praying for a pro forma decree thereon, in manner provided by law, and it appearing to the court that said petition has remained on file in the clerk’s office of the court at least three days since the same was first presented to the court, and the court having duly examined the articles of agreement, and being duly advised in the premises, doth now consider, adjudge and determine that such articles of agreement and the purpose of the association as therein expressed come properly within the purview of article XI, of chapter 12, of the Revised Statutes of the State of Missouri, 1899, entitled ‘Benevolent, Religious, Scientific, Fraternal, Beneficial, Educational and miscellaneous associations,’ and are not inconsistent with the Constitution or Laws of the United States or of the State of Missouri. It is therefore ordered and decreed that the prayer of the petition for a pro forma decree be and the same is hereby granted. ’ ’


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    AUGALA GRUENDER et al. v. ELIZABETH FRANK et al., Appellants.
    Division Two,
    May 31, 1916.
    1. WILL CONTEST: Pleading: Interest of Plaintiff. In a suit to set aside a will the petition must allege such facts as show that the contestant has a financial interest in the estate and one which would be benefited by setting the will aside, unless such facts are admitted by the pleadings of the proponents. Otherwise, the petition will not show a cause of action.
    2. -: -: -: Waiver. A failure to allege in the petition that plaintiff has such a financial interest in the probate of the will as will enable him to institute a suit contesting its validity is not a defect to be classed as a want of “legal capacity to sue,” and one that must therefore be raised by demurrer or answer, and if not so raised is to be considered waived. Lack of “legal capacity to sue,” as used in the statute, has reference to some legal disability of the plaintiff, such as infancy, idiocy, coverture, and has no reference to the fact that the petition fails to state a cause of action.
    3. -: -: -: -: General Denial: Demurrer to Evidence. A petition which fails to state the interest of plaintiff in the probate of the will does not state a cause of action for setting aside the will, and that defect is not waived by failure to make specific objection by demurrer or answer, but a general denial contained in one of the answers is sufficient to raise the issue of fact, and plaintiff is thereby required to prove the existence of such facts as will show him entitled to maintain the suit; and if he fails to do so the court errs in overruling a demurrer to the evidence.
    4. -: -: Stating Interest of Heirs. The body of the petition in a suit to set aside :a will should allege facts showing that plaintiffs are heirs of the deceased testator. It is not enough simply to name them in the caption.
    Appeal from Cole Circuit Court. — Eon. John M. Williams, Judge.
    Reversed and remanded.

      Gove & Davidson and Pope & Lohman for appellants.
    (1) The court erred in not giving .the instructions asked by defendants in the nature of a demurrer to the evidence, for the reason that the petition is fatally defective in failing to allege that plaintiffs were interested in the disposition or devolution of the estate of deceased, and no evidence was given or offered to show such interest. Borland on Wills (Enlarged Ed.), sec. 74; R. S. 1909, sec. 555; State ex rel. v. McQuillin, 246 Mo. 689; Lilly v. Tobbein, 103 Mo. 477; Church v. Tobbein, 82 Mo. 418; ITans v. Holler, 165 Mo. 47; Stowe v. Stowe, 140 Mo. 594; Wells v. Wells, 144 Mo. 198; Kishman v. Scott, 166 Mo. 215; Yaile v. Sprague, 179 Mo. 393; Watson v. Anderson, 146 Mo. 333'; Eddy v. Park, 31 Mo. 518; Stewart v. Ooshon, 238 Mo. 662; Kelley’s Probate Guide (4 Ed.), sec. 86, p. 74, ch. 10. (2) The petition fails to state facts sufficient to constitute a cause of action. Pier v. Heinrichhoffer, 52 Mo. 333; Scott v. Rombard, 67 Mo. 289; Christian v. Ins. Co., 143 Mo. 460; Chitty v. Railroad, 148 Mo. 64; Land v. Live Stock Co., 163 Mo. 342. (3) All interested parties must be before the court in a contested will case, otherwise the case will be dismissed. Eddy v. Park, 31 Mo. 518; Wells v. Wells, 144 Mo. 198; Kishman v. Scott, T66 Mo. 215; Vaile v. Sprague, 179 Mo. 393; Watson v. Anderson, 146 Mo. 333; Scott v. Rom-bard, 67 Mo. 289; Land v. Live Stock Co., 163 Mo. 342.

      Irwin & Peters and D. F. Galfee for respondents. *
    (1) Proceedings in reference to contest of a will are proceedings in rem. The heirs at law and devisees are made nominal parties,- but the proceeding is ex parte. Garvin’s Admr. v. Williams, 50 Mo. 212; Vaile v. Sprague, 179 Mo. 396. In this suit plaintiffs do not seek to establish any right in themselves. The action is in the nature of a proceeding in rem and -any question as to the interest or lack of interest of plaintiffs, relates only to their legal capacity, or incapacity, to sue. Any objection therefore, as to plaintiffs’ supposed lack of interest, if such lack of interest appeared on the face of the petition, should have been taken by demurrer; and if it did not appear on the face of the petition, the question should have been' raised by answer. Defendants having failed to raise the question by either answer or demurrer, the objection is waived. R. S. 1909, sec. 1804. Appellants contend that plaintiffs’ lack of interest (or capacity to maintain the suit), if there was any lack of interest, appeared on the face of the petition; this issue could have been raised only by special demurrer, and appellants having failed to raise it in this manner, the question of plaintiffs’ interest was not in issue and it was not necessary, for plaintiffs to introduce any evidence as to such interest. Baxter v. Transit Co., 198 Mo. 1. Want of legal capacity to sue and the objection that the action is not brought in the name of the real party in interest is waived where the objection is not urged by demurrer where apparent on the face of the complaint and by answer' where not so apparent. 31 Cyc. 737. (2) There was not a total failure to allege plaintiffs ’ interest; such interest was shown by the petition. The body of the petition states that Rev. Gruender left surviving him, as his heirs, certain persons, naming them. The caption shows that plaintiffs were the heirs at law of three of these persons, and the other one of the four was made a party defendant. A pleading must be construed as an entirety, including the caption. 31 Cyc. 83; McCloskey v. Strickland, 7 Iowa, 259. And especially, after verdict, resort may be had to the caption to show interest, or capacity, on the part of plaintiff, where by reasonable intendment a sufficient cause of action can be made out. State ex reh v. Crow, 8 Mo. App. 596; 31 Cyc. 82; Goode v. Coal Co., 167 Mo. App. 173. If defendants desired that the averments of plaintiffs’ petition should be made more definite and certain, the proper mode of correction was motion before the trial. Pomeroy’s- Code Remedies, 596. (3) Admitting that the allegation in plaintiffs’ petition, as to their interest, was defective, such defect was cured by the verdict. R. S. 1909, sec. 2119. By pleading to the merits, defendants waived all objections to mere formal defects; the only objection they can raise in this court is, that 'the petition, when taken altogether, fails to state a cause of action; not that a cause of action is defectively stated. Seékinger v. Mfg. Co., 129 Mo. 598; Reineman v. Larkin, 222 Mo. 172. (4) If the question of the pecuniary interest of the petitioners in a proceeding for the revocation of the probate of a will is not raised before the surrogate, it will not he considered on appeal from a judgment revoking such probate. In re Liddington’s Will, 4 N. Y. Supp.-648; Thompsonv.Farr, 1 Spear’s.L. (S. C.) 100'; In re Robinson, 106 Cal. 496. (5) Plaintiffs’ statement that they were the heirs at law of three of the persons named in the body of the petition as the surviving heirs at law of Rev. Gruender at the time of his death, is a sufficient allegation that plaintiffs would be entitled to share in the distribution of the estate in case of Rev. Gruender’s intestacy, and is therefore a sufficient allegation of such • interest in plaintiffs as enabled them to maintain this suit. Especially is this true after verdict, the petition being aided by all reasonable inferences and intendments. An heir is one on whom the law casts an estate upon the death of the ancestor. Desloge v. Tucker, 196 Mo. 599; Brown v. Bank, 66 Mo. App. 431. The term “heirs at law,” when used with respect to personal property, may properly he regarded as meaning next of kin. Train v. Davis, 98 N. Y. Supp. 820. An heir at law is one who succeéds to the estate of a deceased person. McKinney v. Stewart, 5 Kan. 394; 4 Words and Phrases, 3265.
   WILLIAMS, C.

This is a suit to set aside the will of Rev. John Gruender, deceased.

From a verdict and judgment revoking the will, upon trial in the circuit court of Cole County, defendants have duly appealed to this court.

The case was argued and submitted at the April (1915) term of this.court, and was then assigned to the late lamented Judge Brown. His untimely death intervening necessitated a reassignment of the case which was recently done. Hence the delay in delivering an opinion in the case.

The conclusion that we have reached in the case renders it unnecessary that we should burden this opinion with a detailed statement of the facts disclosed by the somewhat voluminous record in the case, but we shall confine the statement to such facts only as shall be necessary to a determination of the case upon this appeal.

That portion of the caption of the petition describing the plaintiffs was as follows:

“Augala Gruender, Henry Behler and Ignatz Gruender, heirs at law of Joseph Gruender, deceased. Ignatz Beller, Frederick Beller, Clara Beller, Joseph Beller, heirs at law of Lissetta Beller, Andrew Amelunsen, Ignatz Amelunsen, Maria Amelunsen, Elizabeth Amelunsen, August Amelunsen, heirs at law of Antoinette Amelunsen, deceased, plaintiffs.”

The petition contained the following allegation:

“Plaintiffs for their cause of action say that John Gruender died testate at the county of Cole and State o'f Missouri on the 20th day of March, 1909, leaving surviving him as his heirs at law, Joseph Gruender, Lissette Beller, Antoinette Amelunsen and Ignats Gruender.”

There was no further allegation in the petition as to the interest of plaintiffs in the estate of the deceased in the event his will should be revoked.

Neither was there any proof offered at the trial to show that, the plaintiffs or either of them would share in the distribution of the testator’s estate in the event the will should be set aside.

Appellants, seeking a reversal of the judgment below, urge among other grounds the following:

(1) That there was no evidence introduced tending to show that the plaintiffs or any of them would share in the distribution of decedent’s estate if the will were revoked and that, therefore, the court erred in overruling the defendant’s demurrer to the evidence which was offered at the close of all the evidence.

(2) That the petition fails to state facts sufficient to constitute a cause of action in that the petition does not allege sufficient facts to show that the plaintiffs were interested in the probate of said will. ■

I. In this State, a suit to contest a will is a statutory proceeding (Sec. 555, R. S. 1909), and the statute requires the contestant to be a person interested in the probate of the will. The interest required by said statute was defined by Court in Banc in the ease of State ex rel. v. McQuillin, 246 Mo. 674, l. c. 691-692, to be “a financial interest in the estate and one which would be benefited by setting the will aside.”

Since it is necessary that the plaintiff have such an interest to enable him to institute the suit to contest the validity of the will, it, necessarily, follows, we think, that such facts must be alleged and proven upon the trial unless admitted by the pleadings of the proponent.

It has long been the rule in this State that in statutory actions- “the party suing must bring himself strictly within the statutory requirements necessary to confer the right [of action], and this must appear in his petition; otherwise, it shows no cause of action.” [Barker v. Hannibal & St. Joseph Ry. Co., 91 Mo. 86; Chandler v. Railroad, 251 Mo. 592, l. c. 600-601, and cases therein cited.]

Respondents insist that this defect in the proof relates merely to the want of the plaintiffs’ “legal capacity to sue.” That it was, therefore, such a matter as should have been raised by demurrer if it appeared upon the face of the petition (Sec. 1800, E. S. 1909), or by answer if it did not appear upon the face of the petition (Sec. 1804, B. S. 1909), and that the defendants having failed to raise it specially, either by demurrer or by answer, thereby waived the objection (Sec. 1804, supra) and relieved plaintiffs of the necessity of making the proof. If the defect is one that relates merely to the ‘ ‘ legal capacity ’ ’ of the plaintiffs to sue, the position taken by respondents is sound. [Baxter v. St. Louis Transit Co., 198 Mo. 1; Crowl v. Am. Linseed Co., 255 Mo. 305, l. c. 327-328, and cases therein cited.]

Was .the defect one which involved the “legal capacity” of the plaintiffs to sue? We think not.

The phrase “that the plaintiff has not legal capacity to sue” found in the Code “has reference to some legal disability of the plaintiff, such as infancy, idiocy, coverture,” etc., or that the person attempting to sue in a representative capacity such as curator, administrator, etc., “has no title to the character in which he sues,” and has no reference to the fact that the petition fails to show a right of action in the plaintiff. [Bliss on Code Pleading (3 Ed.), secs. 407-8; Ward v. Petrie, 157 N. Y. 301; McKinney v. Minahan, 119 Wis. 651; Pence v. Aughe, 101 Ind. 317; Brown, Executor, v. Critchell, 110 Ind. 31; Howell v. Iola Portland Cement Co., 86 Kan. 450; Littleton v. Burgess, 16 Wyo. 58; M. K. & T. Ry. Co. v. Lenahan, 39 Okla. 283.]

We are of the opinion that the defect is one which properly falls within», the sixth clause of section 1800, Revised Statutes 1909, viz., “that the petition does not state facts sufficient to constitute a cause of action,’’ and hence was a matter that was not waived by virtue of failing to comply with the provisions of section 1804, supra.

“It is elementary that a complaint good in law must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff.” [Hunt v. Monroe, 32 Utah, 428.] To the same effect are: Biddle v. Boyce, 13 Mo. 532; State ex rel. v. Dodson, 63 Mo. 451; 31 Cyc. 102, and cases therein cited; Niemi v. Stanley Smith Lumber Co., 149 Pac. 1033, l. c. 1035.

“When the plaintiff is a natural person, under no legal disability to maintain actions, a failure to state a cause, of action in his own favor goes to the sufficiency, in substance, of the petition, not to his legal capacity.” [M. K. & T. Ry. Co. v. Lenahan, supra, l. c. 295.]

In the case of Board of Commissioners of Tipton County v. Kimberlin, 108 Ind. 449, l. c. 452-3, it was said:

“It has always been held by this court, that the second statutory cause for demurrer to a complaint, namely, ‘that the plaintiff has not legal capacity to sue,’ has reference only to some legal disability of the plaintiff, such as infancy, insanity or idiocy, and not the fact, if it be the fact, that the complaint on its face fails to show any cause or right of action in the plaintiff. [Dale v. Thomas, 67 Ind. 570; Dewey v. State ex rel., 91 Inch 173; Traylor v. Dykins, 91 Ind. 229.]
“But we have often held, and correctly so we think, that a demurrer to a complaint for the fifth statutory cause of demurrer, namely, ‘that the complaint does not state facts sufficient to constitute a cause of action,’ calls in question not only the sufficiency of the facts stated to constitute a cause of action, but also the right or authority of the particular plaintiff to bring and maintain a suit upon such cause of action. [Pence v. Aughe, 101 Ind. 317; Wilson v. Galey, 103 Ind. 257; Walker v. Heller, 104 Ind. 327; Frazer v. State to use, 106 Ind. 471.] ”

Since the matter was such as was not waived by failing to make specific objection either by demurrer or answer, we are of the opinion that the general denial contained in one of the separate answers filed was sufficient to raise the issue of fact and that plaintiffs were thereby required to prove the existence of such facts as would show them entitled to maintain the suit. Having failed to do so, the court erred in overruling the-demurrer to the evidence.

II. It is further contended that the petition failed to state facts sufficient to constitute a cause of action in that it failed to allege facts showing that plaintiffs were interested in the probate of the will as required by section 555, Eevised Statutes 1909. The body of the petition does not allege facts that would show that plaintiffs were the heirs of the deceased testator, but gives the names of four persons (other than plaintiffs) who are alleged to have been the heirs of the testator, The caption of the petition describes the three groups of plaintiffs as the respective heirs of persons bearing the same names as three of the heirs alleged in the body of the petition and respondents insist that the petition, in this, regard, may be aided by the matters contained in the caption. Since the case must be reversed and remanded, it becomes unnecessary to determine whether or not the' petition was, in this regard, fatally defective. It is sufficient to say that proper practice would require that matters, of this kind be set forth in .the body of the petition. [Sec. 1794, Revised Statutes 1909.] Since the case must he remanded, however, plaintiffs will have an opportunity to amend their petition and thereby avoid the point upon a retrial of the cause.

The judgment is reversed and the' cause remanded.

Boy, G., concurs.

PER CURIAM. — The foregoing opinion by Williams, C., is adopted as the opinion of the court.

All of the judges concur, except Bevelle, J., not sitting.