SULLIVAN, JUSTICE, FOR THE COURT:
By will dated December 15, 1954, Mrs. Georgie Hodges devised certain real property in Jackson to appellee's predecessor, The Methodist Conference, in trust "for the benefit of needy colored children" . Mrs. Hodges' will directed that the property not be sold for ten years, with the income therefrom to be used as a scholarship fund for the education of colored children. The will stated that if it should appear to be in the best interest of the purpose of the trust that the property be sold, then it may be sold by decree of the Chancery Court of Hinds County, with the proceeds to be invested and "the income therefrom used as an educational fund for colored children, or for some similar use or purpose for the betterment of the members of the colored race."
On August 18, 1965, Mrs. Hodges entered into a ground lease and agreement with Joe Dehmer Distributor, Inc., covering the property in question. The lease was for a primary term of five years, and contained an option to renew for four successive five year terms. The lease contemplated the construction by Dehmer of a gasoline service station, which structure would become the property of the lessor upon termination of the lease, except for equipment installed by the lessee. On March 5, 1966, Willard Johnson entered into a sublease from Dehmer for the gasoline station and surrounding premises.
On February 12, 1967, Mrs. Hodges died and her will was probated on February 20th. In the decree probating the will, the court found that Mrs. Hodges left surviving her as her sole and only heirs at law: Laura Walker Connor, Charles Walker and Johnnie Walker, all cousins of Mrs. Hodges. Pursuant to Mrs. Hodges' will, the property in question was devised in trust to The Mississippi Annual Conference of the Methodist Church, appellee's predecessor. The devisee held
the property subject to the lease and the rent proceeds from this lease were administered as a trust to provide scholarships for black students in accordance with the terms of her will.
In 1980, Willard Johnson began to negotiate with the church to purchase clear title to the property for himself for $26,000. When title was examined, the title company raised questions about the mortmain statute and the deal was not closed because the question arose as to who owned the property. Instead, on September 10, 1980, Johnson obtained a quitclaim deed from the heirs of Mrs. Hodges, mentioned above, for which he paid $14,000.
Johnson then filed a bill to confirm title, to remove cloud on title, and for other relief against the appellee. Johnson claimed that the mortmain statute applied to the trust in Mrs. Hodges' will and the appellee's retention of title to the property for over ten years caused title to revert to the heirs and through the quitclaim deed to him. He asked that title be confirmed in him and that the appellee's claim of title be canceled. Finally, he asked for an accounting and delivery to him of all monies received under the Dehmer lease after February 12, 1977.
The appellee's answer claimed non-possessory or incorporeal rights, namely the right to collect rents under the lease and will of Mrs. Hodges which would mature into full title at the termination of the lease. They denied that this arrangement violated the constitutional and statutory mortmain prohibitions. Next, the defendants relied upon the provision in Mrs. Hodges' will directing the chancery court to apply the "cy-pres doctrine" in the event that the trust was invalidated by a court so that, nevertheless, the subject property would be disposed of in trust for "the betterment of the members of the colored race" and not for heirs or assignees of the alleged heirs such as Johnson. The appellee also alleged that Johnson had no standing to bring this suit, not being an heir nor a devisee of the testatrix, as such rights as those parties have under mortmain law are personal and not assignable. Last, the appellee alleged that the trust in Mrs. Hodges' will is not one prohibited by the mortmain law since the appellee was selected to administer a trust wherein for ten years the proceeds of the rental income from the property would be used for a scholarship fund for the education of black students and thereafter the income from the property was to be used as "an educational fund for colored children or for similar use or purpose for the betterment of members of the colored race" .
The trial court rendered an opinion denying all relief requested by Johnson. The court was of the opinion that the devise became effective on the date of Mrs. Hodges' death. The court found that the argument that the plaintiff lacked standing to bring the suit was without merit, based on Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 (1959). Finally, the court found that the trust established under Mrs. Hodges' will was not a trust prohibited by the constitutional and statutory mortmain provisions. The court noted that in Mississippi College v. May, supra, the trustee and the beneficiary were one and the same. Also, the court relied upon Crook v. Commercial National Bank and Trust Co., 375 So.2d 1006 (Miss. 1979), in which the Supreme Court upheld a trust administered by a bank for the benefit of testator's brother and upon his death for the benefit of The East Mississippi Insane Asylum. Applying the test set forth in Crook, the chancellor concluded that the trust in Mrs. Hodges' will did not violate the mortmain statute because the appellee does not share in the income or benefit therefrom since the income is used as an educational fund for black students. Johnson appealed and the appellee has filed a cross-appeal.
The following questions are raised:
DID THE COURT ERR IN HOLDING THAT THE DEVISE TO APPELLEE'S PREDECESSOR WAS NOT SUBJECT TO THE MORTMAIN REQUIREMENT THAT THE DEVISED LAND BE SOLD WITHIN TEN YEARS OF THE EFFECTIVE DATE OF THE DEVISE?
Involved are the constitutional and statutory mortmain provisions of Mississippi law. Section 270 of the Mississippi Constitution (1890) provides:
Section 270. No person leaving a spouse or child, or descendants of child shall, by will, bequeath or devise more than one-third of his estate to any charitable, religious, educational or civil institutions, to the exclusion of such spouse or child, or descendants of child, and in all cases the will containing such bequest or devise must be executed at least ninety days before the death of the testator, or such bequest or devise shall be void.
Provided, however, that any land devised, not in violation of this section, to any charitable, religious, educational, or civil
institution may be legally owned, and further may be held by the devisee for a period of not longer than ten years after such devise becomes effective, during which time such land and improvements thereon shall be taxed as any other land held by any other person, unless exempted by some specific statute.
Section 270 of the Constitution is codified almost verbatim in Mississippi Code Annotated Section 91-5-31 (1972), with the addition of the following paragraph:
Provided further, that within said period of ten years during which such land may be held, the charitable, religious, educational, or civil institution holding the same shall have the power and right to sell and convey the said lands so held, or any part thereof; and its deed of conveyance may be treated as passing such title thereto as was possessed by the testator, or the said land, or any part thereof, may be leased for a length of time not extending beyond the expiration of the period during which it may be legally held by the lessor institution. If such land be not sold and disposed of within the said period of ten years, then in that event, at the expiration of the said period of ten years, it shall revert to the heirs at law of the testator under whose will it was devised to the institution holding it, or to the devisees under such will, as the case may be.
More particular, the application of the ten year limitation on a proscribed institution's holding of land and the accompanying reverter clause is at issue.
The crux of Johnson's argument is that the lower court misinterpreted Crook, supra. We agree. Two other cases dealing with Mississippi's mortmain law lay the foundation for this holding.
The first is Mississippi College v. May, 235 Miss. 200, 108 So.2d 703 (Miss. 1959). In this case, Dr. May had died testate in 1940 with no spouse, children or grandchildren surviving him. His will devised to Mississippi College a 465 acre farm. The will further provided that at the proper time the farm was to be converted into cash which was to be held as a "perpetual trust fund or endowment" for the support of Christian education at Mississippi College. Ten years
expired but Mississippi College had not sold the land. The heirs of Dr. May filed a complaint charging that, upon expiration of the ten years, the land immediately reverted to them pursuant to the mortmain statute. General demurrers filed by the College and the other defendants were overruled, from which an interlocutory appeal was taken.
The Court, speaking through Justice Ethridge, held that the second paragraphs of the constitutional and statutory mortmain provisions, "prevent[ed] Mississippi College from owning and holding the lands devised to it by Dr. May for more than ten years. We think this is their clear intent and purpose." 108 So.2d at 708.
The Court interpreted the second paragraph of section 270 of the Constitution as creating in the devisee an "estate for ten years" . 108 So.2d at 708. Later in the opinion, in response to a presently unrelated argument, the Court further explained the estate created in the "institutional devisee" , Mississippi College: "The Constitution and the statute, read together, create in the College an estate for ten years, with a power of disposition in the College. The heirs or devisees of the estator (sic) have a vested remainder, subject to defeasance by the College exercising its power of disposition." 108 So.2d at 711.
In response to the argument that Section 270 was not applicable since the devise to Mississippi College was in trust, the Court held the following:
In brief, although Item IV has terms indicating a trust in the College for the benefit of students at the College obtaining scholarships, the creation of a trust in land to an institution within the prohibition of the Constitution Sec. 270, where the proceeds are to be used for some of the purposes for which the institution was created, does not take the devise out of Sec. 270. The manifest purpose of the Constitution is to the contrary. . . . Otherwise the objective of Sec. 270 could very easily be nullified.
It should not be assumed, without the Court expressly holding, that the inverse of the above is the law of this state, that is, that a devise of land in trust to a proscribed institution, where the proceeds are not to be used for ...