Volume 93

Issue 1 Dickinson Law Review - Volume 93,

1988-1989

10-1-1988

The Modern Corporation Sole

James B. O'Hara

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James B. O'Hara, The Modern Corporation Sole, 93 DICK. L. REV. 23 (1988).
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The Modern Corporation Sole

James B. O'Hara*

In 1894, Sir Frederick Pollock asked his American friend

Oliver Wendell Holmes, "Have you such a thing as a corpora-
tion sole still about you?" The future Justice replied, 'Idon't
know of any corporation sole."'

I. Introduction
Blackstone begins his treatment of corporations with the follow-
ing classification:
The first division of corporations is into aggregate and sole
. . . .Corporations sole consist of one person only and his suc-
cessors, in some particular station, who are incorporated by law,
in order to give them some legal capacities and advantages, par-
ticularly that of perpetuity,
2
which in their natural persons they
could not have had.
He then proposes two conspicuous examples of corporations sole, one
civil ("the king is a sole corporation"); the other, ecclesiastical ("so
is a bishop . . .and so is every parson and vicar").'
In the period prior to the rise of the modern business corpora-4
tion and the legal evolution and development that accompanied it,
the corporation sole was a fixture in every tier of English society.
The corporation sole was as distant from the ordinary peasant and
tradesman as the Crown, but as near as the parish clergy.
A modern Holmes attempting a reply to a modern Pollock
might initially be perplexed, since the usual sources of ready refer-
ence suggest two contradictory conclusions. On the one hand, the
* Director of Executive Graduate Programs in Management, Loyola College in Mary-
land. A.B., St. Mary's Seminary and University (1957); S.T.B. Pontifical Gregorian Univer-
sity, Rome (1959); S.T.L., Pontifical Gregorian University, Rome (1961).
1. 1 HOLMES-POLLOCK LETTERS 52-53 (M. Howe ed. 1941).
2. 1 W. BLACKSTONE, COMMENTARIES *469. In the literature, the terms "Corporation
Sole" and "Sole Corporation" are interchangeable, but "Corporation Sole" is far more
common.
3. Id. at *469.
4. The earliest corporations were all civil or ecclesiastical, rather than for business or
profit. See generally Laski, The Early History of the Corporation in England, 30 HARV. L.
REv. 561 (1917); Williston, History of the Law of Business Corporations Before 1800 (pts. I
& II), 2 HARV. L. REV. 105, 149 (1888).
 93 DICKINSON LAW REVIEW FALL 1988

sources indicate the corporation sole is "not common,.... almost obso-

lete," or "obsolescent." The standard casebooks and hornbooks of
corporation and property law do not usually treat the topic. 7 Cases
cited in legal literature are often very old, and the only full-length
journal article devoted exclusively to the subject is from the turn of
the century. 8 At least one author equates it with the modern "one-
person" corporation, 9 although the two have completely distinct
origins.1 0
On the other hand, further research reveals functioning corpora-
tions sole in at least one-half of the states, with explicit statutory
provisions for corporations sole in about a third. In many jurisdic-
tions, this is the manner of incorporating Roman Catholic dioceses,
or more accurately, the bishops of those dioceses. From this per-
spective, the corporation sole is a useful, even commonplace, legal
reality.
The apparent discrepancy is not real. The old common law cor-
poration sole, which was transported to American shores in colonial
days, is indeed almost dead. However, a modern version, which bears
the same name, has evolved and is widely used today.1 ' The transfor-
mation from the old to the new is a fascinating story, well worth the
telling.

5. 18 C.J.S. Corporations § 15 (1939).

6. 1 W. FLETCHER, CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 52 (rev.
perm. ed. 1983).
7. An exception is H. HENN & J.ALEXANDER, LAWS OF CORPORATIONS § 6 (3d ed.
1983).
8. Maitland, The Corporation Sole, 16 L.Q. REV. 335 (1900), reprinted in F.
MAITLAND, SELECTED ESSAYS 73 (1936). There is, however, a biography entitled CORPORA-
TION SOLE, a life of Cardinal Mundelein of Chicago. See E. KANTOWiCZ, THE CORPORATION
SOLE (1983).
9. "For practical purposes, the modern one-man corporation ... is the equivalent of the
corporation sole." H. OLECK, NONPROFIT CORPORATIONS, ORGANIZATIONS, AND ASSOCIA-
TIONS 33 (4th ed. 1980). While these two corporate forms do arise from completely different
origins, under certain circumstances a modern one-person nonprofit corporation would resem-
ble a corporation sole in practice. Oleck's conclusion, however, is far too broad.
10. The modern "one-person" corporation is increasingly permitted by state law. The
MODEL BUSINESS CORP. Act §§ 1.42, 2.01, 8.03 (1984) allow for one shareholder, one incorpo-
rator or one director, respectively.
11. "The office of bishop in most dioceses in the U.S. is a corporation sole." 4 NEw
CATHOLIC ENCYCLOPEDIA Corporation 337 (1967). A current review suggests that approxi-
mately one-third of diocesan bishops are corporations sole. The remainder of the dioceses have
small boards, usually appointed by the bishop.
12. The distinction between the "old" common law form, and the "new" American form
of corporation sole was first proposed by Carl Zollmann, who pioneered the study of church
corporations in American law. His trilogy of articles, Zollmann, Classes of American Reli-
gious Corporation, 13 MICH. L. REV. 566 (1915); Zollmann, Powers of Americn Religious
Corporations,13 MICH. L. REV. 646 (1915); Zollmann, Nature of American Religious Corpo-
rations, 14 MICH. L. REV. 37 (1916), later appeared as chapters in C. ZOLLMANN, AMERICAN
CIVIL CHURCH LAW (1917).
 MODERN CORPORATION SOLE

The present study proposes: 1) to define the classic common law

corporation sole; 2) to trace its development in America; and 3) to
describe the present status of the corporation sole in the United
States with analysis of its modern forms. The emphasis will be fun-
damentally American, with English sources serving as points of ref-
erence and prologue. Moreover, the English side of the story has al-
ready been told."

II. The "Old" Common Law Corporation Sole

"Legal nomenclature is for once its own interpreter. A member
of a corporation sole is one of a series of single persons succeeding
one another in some official position.""' The crux of this description
is not that the corporation sole is composed of a single person.
Rather, it is really composed of a number of persons who, one after
another, hold the same office. The really crucial element of this defi-
nition is the series itself and the seriatim succession.
For example, Queen Elizabeth II, as a corporation sole, is iden-
tical to Victoria; the present Archbishop of Canterbury in his corpo-
rate form is one with his predecessors, Laud, Benson or Lang. 5 The
corporation sole, unlike its business counterpart, is only vertical in
time.
"There are very few points of corporation law applicable to a
corporation sole," according to Kent.' 6 There are, however, four le-
gal characteristics unique to it:
1. All corporations sole are "either public officers or digni-
taries of the established church. 1' 7 In short, the corporation sole
is the incorporation of an office.
2. At common law, the corporation sole can claim title to
real property only."
3. Property and powers of a corporation sole are transferred
on the death of an incumbent to successors in the office, not to
heirs or through executors. 1"

13. Maitland, supra note 8.

14. C. CARR, THE LAW OF CORPORATIONS 14 (1905 & photo. reprint 1984).
15. William Laud (1573-1645) was Archbishop from 1633 to 1645; Edward White Ben-
son (1829-1896) from 1883 to 1896; Cosmo Gordon Lang (1864-1945) from 1928 to 1942.
16. 2 J. KENT, COMMENTARIES *273.
17. Recent Cases, Corporations Sole, 12 MINN. L. REV. 295 (1928) [hereinafter Recent
Cases].
18. I S. KYD, THE LAW OF CORPORATIONS 77 (1793 & photo. reprint 1978); 2 J. KENT,
COMMENTARIES *273; Overseers of the Poor v. Sears, 39 Mass. (22 Pick.) 122, 127 (1839).
19. Common law authorities held a gift to a corporation sole without the word "succes-
sors" to be legally insufficient. I KYD, supra note- 18, at 105. But see McCloskey v. Doherty,
97 Ky. 300, 30 S.W. 649 (1895). During a vacancy, the fee was "in abeyance." Terrett v.
 93 DICKINSON LAW REVIEW FALL 1988

4. The corporation sole lacks the usual trappings of a corpo-

ration. It does not have a board of directors, officers, stock, by-
laws, official minutes, seal, or corporate name.20 The older cor-
porations sole are also devoid of a royal charter or other formal
authorization, characteristics that are required in later
corporations."1
Historically, both the king and a variety of clergy qualified as
corporations in their official capacities. However, the ecclesiastical
form is older, dating to the mid-fifteenth century. Initially, the cor-
poration sole grew out of the efforts of judges to solve title problems
that arose from the passage of real property to a church. Although
the early common law of property was elaborate and intricate, it
sometimes lacked the sophistication to deal with these problems. At
that time, legal forms did not exist that allowed the devise of real
property to a church in fee simple absolute.
The law struggled with this problem in amusing ways. For ex-
ample, property was sometimes devised to the saint after whom a
parish was named, or to the four walls of a church building. Under
these circumstances, the local bishop or priest was the agent or ad-
ministrator. Therefore, it was only a short leap in logic to incorpo-
rate the agent.2
The hierarchical polity of the English church was well suited to
this type of corporate structure. However, it was still another one
hundred fifty years before a civil corporation sole appeared when
Lord Coke ascribed corporateness to the crown.' Blackstone confi-
dently called this development uniquely English. 5 In one sense, he is
correct, but modern scholarship also finds a powerful Roman Catho-
lic Canon Law influence on the process.26

Taylor, 13 U.S. (9 Cranch) 43, 47 (1815); Town of Pawlet v. Clark, 13 U.S. (9 Cranch) 292,
329 (1815).
20. Overseers of the Poor v. Sears, 39 Mass. (22 Pick.) 122, 128 (1839).
21. Since state authorization later became a requirement, a theory had to be developed
to justify the corporate existence of the ancient churches. One such theory was based on the
fiction that some earlier king had issued a charter subsequently lost, or at least that the Crown
had no objection to continuing corporate existence. See Williston, supra note 4, at 113-14.
22. The earliest mention of an incorporated cleric dates to 1448. Maitland, supra note 8,
at 337.
23. For a concise summary of this problem and imaginative efforts to solve it, see I F.
POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW 486-511 (2d ed. 1898).
24. Maitland, The Crown as Corporation 17 L.Q. REV. 131 (1901), reprinted in F.
MAITLAND, SELECTED ESSAYS 104 (1936).
25. 2 W. BLACKSTONE, COMMENTARIES *469.
26. C. CARR, supra note 14, at 16. For more specific background on the complex rela-
tionship between English law and the Roman Canon law, see generally F. MAITLAND, ROMAN
CANON LAW INTHE CHURCH OF ENGLAND (1898); Re, The Roman Contribution to the Com-
mon Law, 29 FORDHAM L. REV. 447, 458-62 (1961).
 MODERN CORPORATION SOLE

For all its singularity, the sole corporation had many detractors.
In fact, Maitland and Pollock particularly thought it was an anom-
aly, a "strange conceit," a "juristic abortion,"" an "unhappy freak
of English law," 8 and a "useless figment of shreds and patches."' 9
Some of the criticism came from theorists who objected to the
philosophical underpinnings of the fictitious personality of the corpo-
ration sole."0 But practical problems were also evident. The courts
accepted some officers as corporations, yet resisted the corporate
claims of others similarly situated."1 This inconsistency may explain
why the corporation sole was not widely extended to other civil
officers.
Other practical questions were also raised. What claims on cor-
porate property might arise from the heirs of a deceased incumbent?
What limits on fraudulent transfer by a dishonest incumbent? Is a
separate accounting required for the incumbent as a corporation and
as a private person? Is there a quasi-fiduciary relationship between
the corporation sole and his successors?
Added to these questions are several other crucial problems:
What happens to the corporation during the illness or absence of the
incumbent; and who manages the property, and with what legal
force, during an interregnum? These practical considerations were
more difficult than the theoretical questions. Yet for all the inconsis-
tency of application and the eccentricity of the concept, the corpora-
tion sole has endured in some form for more than five centuries.

III. Transition from "Old" to "New"

"At a very early period the religious establishment of England
seems to have been adopted in the colony of Virginia, and, of course,
the common law upon that subject, so far as it was applicable to the
circumstances of that colony."82 Justice Story went on to count the
corporation sole as among the "general rights" of the Episcopal
Church "growing out of the common law." 33 After the revolution,
"the Episcopal Church no longer retained its character as an exclu-

27. Maitland, supra note 24, at 131.

28. 1 F. POLLOCK & F. MAITLAND, supra note 23, at 488 n.l.
29. F. POLLOCK, THE GENIUS OF THE COMMON LAW 4 (1967).
30. Of the dozens of articles on this subject, John Dewey's classic study is still widely
cited. Dewey, The Historic Background of Corporate Legal Personality, 35 YALE L.J. 655
(1926). See also Pollock, Has the Common Law Received the Fiction Theory of Corpora-
tions?, 27 L.Q. REv. 219 (1911).
31. C. CARR, supra note 14, at 15.
32. Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 46 (1815).
33. Id. at 46.
 93 DICKINSON LAW REVIEW FALL 1988

sive religious establishment,"" but the Supreme Court still recog-

nized the rights of the parson as a corporation sole to continue in full
force.3 5
After the Declaration of Independence, early case law indicated
that the corporation sole lived on. However, sometimes it was found
in its pure common law form, other times in a variant form."' In
New England, title to the real property of territorial parishes was
occasionally vested in the resident clergyman. 7 In the South the
Episcopal glebe was usually held by the minister-in-charge
(whatever his title), just as in England. 8 "The most numerous group
of private corporations in the colonies comprises those which were
concerned with religious worship."3 9
The corporation sole, however, applied only to the clergy of the
churches that were or had been legally and formally established. In
another early opinion written by Justice Story, the Supreme Court
voided a royal grant of land to the Episcopal Church in New Hamp-
shire. The decision was based on the grounds that no one was legally
competent to accept title, since that state had never had an estab-
lished church, even in colonial days.41
The link with church establishment sealed the fate of the com-
mon law corporation sole in America. The first amendment techni-
cally did not require states to disestablish a church. By implication,
however, establishment was doomed by the Bill of Rights and with-
42
out religious establishment, the rights of establishment were moot.
The civil form of the corporation sole never really took hold in
the United States. The king was the most obvious civil corporation
sole in colonial days. After the Revolution, however, only a few mi-
nor officers in some states were accorded a corporate identity: pro-

34. Id. at 48.

35. Id. at 54-55.
36. Statutes are occasionally mentioned in the early cases. Weston v. Hunt, 2 Mass.
500, 501 (1807); Inhabitants of the First Parish in Brunswick v. Dunning, 7 Mass. 445, 447
(1811).
37. Inhabitants of Bucksport v. Spofford, 12 Me. 487, 488 (1835). For background ma-
terial on the legal aspects of the territorial parish, see Kauper & Ellis, Religious Corporations
and the Law, 71 MICH. L. REV. 1499, 1505-07 (1973).
38. Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 47 (1815); Beckwith v. Rector of St.
Philip's Parish, 69 Ga. 564 (1882).
39. 1 J. DAVIS, ESSAYS IN THE EARLIER HISTORY OF AMERICAN CORPORATIONS 75-76
(1917).
40. Recent Cases, supra note 17, at 297.
41. Town of Pawlett v. Clark, 13 U.S. (9 Cranch) 292 (1815).
42. Zollmann, Classes of American Religious Corporation, 13 MICH. L. REv. 566, 571
(1915).
 MODERN CORPORATION SOLE

bate judges,' 3 and town supervisors."" The governor of a state was

regarded as a corporation only in Tennessee.'8 For the most part, the
powers and duties of public officers were adequately defined by stat-
ute. Incorporation was not necessary to guarantee bonds or con-
tracts,4 6 or to continue lawsuits.'7
Beginning in the first half of the nineteenth century, however,
new social and religious forces gave a revived impetus to the sole
corporation. The chief thrust came from a most unlikely source.
When John Carroll was chosen as the first Roman Catholic bishop in
the United States in 1789, gaining secure title to the property of his
church in the various states and territories was one of his most press-
ing tasks. This task was by no means easy.
Roman Catholicism had no legal standing in England, and its
position in the new nation was awkward. Although Catholicism
shared the fruits of the first amendment, it had a structure that
many Americans judged to be autocratic and monarchical. At that
time, congregational ownership of church property was natural to
many denominations in America, but was contrary to long-estab-
lished Roman Catholic policy.
Sometimes, for want of a better method, church property was
held in fee simple by the local priest or by a pious layman. This
system, however, led to endless difficulty. There was a constant fear
that church property held in a private name might be claimed by a
relative of the holder. Worse yet, the possibility existed that some
unworthy claimant with a plausible story could make out a case for
ownership. In one lawsuit, an unfrocked priest claimed to be heir to
land that a deceased predecessor had purchased to build a church. 48
Bishop Carroll won that suit, but for the next seventy years the
Roman Catholic hierarchy struggled to find a legally sufficient and
canonically suitable manner for its church to own property. Vesting
title in a board of elected or appointed trustees was one obvious pos-
sibility. In fact, that is the way Carroll originally incorporated in
Maryland . 9 But "trusteeism" itself became an issue when the trust-
ees in some areas used their property ownership to pressure the bish-

43. Overseers of the Poor v. Sears, 39 Mass. (22 Pick.) 122, 126 (1839).
44. Jansen v. Ostrander, I Cow. 670, 683 (N.Y. Sup. Ct. 1824).
45. Polk v. Plummer, 21 Tenn. (2 Hum.) 500 (1841); Governor v. Allen, 27 Tenn. (8
Hum.) 176 (1847).
46. 1 W. FLETCHER, supra note 6, at § 53.
47. The many tax cases involving "The Commissioner" are not unlike the citations of a
corporation sole acting as party to a suit.
48. Browers v. Fromm, I Add. 362 (Pa. 1798).
49. 1792 Md. Laws 55.
 93 DICKINSON LAW REVIEW FALL 1988

ops in doctrinal or disciplinary disputes.5"

The internal problems of the Catholic Church were exacerbated
and complicated by the rise of a national social and political phe-
nomenon called the "Know-Nothing" movement. 51 In addition to
their many other objections to Catholicism, these opponents had par-
ticular objections to control of church property by the clergy, and
strenuously battled the church on this issue. 5' The bishops battled
back, in what they saw as a defense of the doctrine and practice of
their religion against bigots on the outside and recalcitrants on the
inside. Over time, the corporation sole became a major weapon. 53
Beginning in 1829, a series of national bishops' meetings was
held to address the problems of Catholicism in America. Invariably,
property problems were on the agenda." Soon after the first of these
gatherings, Archbishop Whitfield of Baltimore sought a charter in
the form of a corporation sole from the Maryland General Assem-
bly. In 1832, it was granted. 55
The link between Roman Catholicism and the legal concept of a
corporation sole was surprising for two reasons. First of all, in Eng-
land, this mode of incorporation was limited to the Anglican
Church. 56 In fact, the Roman Catholic hierarchy was not reinstated
in England until 1850.51 Second, Catholic Canon Law did not envi-
sion a one-person corporation. The minimum number required to
constitute a "collegiate moral person" was three.58 Even the Pope
was not a corporation sole. 59 Even though bishops of dioceses have
great autonomy in church law, favorable action by a board of consul-

50. See generally I A. STOKES, CHURCH AND STATE IN THE UNITED STATES 808-18
(1950); Guilday, Trusteeism (1814-1821), 18 HIsT. REC. & STUD. 7 (1928); McNamara,
Trusteeism in the Atlantic States, 1785-1863, 30 CATH. HIST. REV. 135 (1944); Stritch, Trus-
teeism in the Old Northwest, 1800-1850, 30 CATH. HIST. REV. 155 (1944).
51. See generally R. BILLINGTON, THE PROTESTANT CRUSADE (1938).
52. A. STOKES, supra note 50, at 808.
53. P. DIGNAN, HISTORY OF THE LEGAL INCORPORATION OF CATHOLIC CHURCH PROP-
ERTY IN THE UNITED STATES 1784-1932 (1933).
54. P. GUILDAY, A HISTORY OF THE COUNCILS OF BALTIMORE 1791-1884 (1932). The
1829 meeting was attended by Roger B. Taney, a prominent Catholic layman, later Chief
Justice of the United States from 1836 to 1864. Taney's role at this meeting of bishops is
unclear, but possibly he was serving as legal counsel. Id. at 89.
55. 1832 Md. Laws 308.
56. Recent Cases, supra note 16, at 295-96.
57. There were a few Roman Catholic bishops ministering to congregations before 1850,
but there were no dioceses until the hierarchy was reestablished in that year with the appoint-
ment of Cardinal Wiseman as Archbishop of Westminster.
58. This long-standing policy was formally codified in 1917 Code c. 100, § 2. For an
exceptionally clear short explanation of the canonical concept of moral personality, see A.
MAIDA, OWNERSHIP. CONTROL AND SPONSORSHIP OF CATHOLIC INSTITUTIONS 10-22 (1975).
59. C. CARR, supra note 14, at 16 n.l.
 MODERN CORPORATION SOLE

tors is still required on major property decisions to this day.60

As Roman Catholicism spread geographically and grew in num-
bers in the last decade of the nineteenth century, new dioceses were
created as new areas of the country were settled. Where they could,
the bishops incorporated as corporations sole.6 In some states, this
required a private act of special incorporation; in others, a general
incorporation statute was utilized.
The effort was not successful everywhere. On at least one occa-
sion, a legislature defeated a bishop's request for sole incorporation
on the grounds that Catholicism would thus acquire a legal right not
held by other religious denominations.62 Slowly, Roman Catholics
won the battle for their church to be incorporated in a manner con-
sistent with church polity.6s During this struggle, the old common
law corporation sole was gradually transformed. There was no longer
any link with an established church. Although legislative action was
often the result of activity by one church, .the laws passed were usu-
ally broad enough for others.
In the courts, judges began to require specific legislative author-
ization for a corporation sole. The common law was not invoked to
create sole corporations in states where the legislature had not ac-
ted. 4 Finally, at the beginning of this century, the Supreme Court,
in an opinion by Justice Holmes, confirmed what was already an al-
most universal judicial stance: "Apart from statute the law does not
recognize the bishop as a corporation sole . . ."6.

60. B. BROWN. THE CANONICAL JURISTIC PERSONALITY WITH SPECIAL REFERENCE TO

ITS STATUS IN THE UNITED STATES OF AMERICA 144 (1927).
61. It is not the purpose of this study to create a state-by-state history of this pattern of
incorporation. However, in some of the cases there are occasional references to the history of
this pattern. A few examples will suffice: Illinois had created a corporation sole by private act
in 1845; South Carolina in 1880; Kentucky in (or before) 1888; Massachusetts in 1898. See
Chiniquy v. Catholic Bishop of Chicago, 41 111.148 (1866); Decker v. Bishop of Charleston,
247 S.C. 317, 147 S.E.2d 264 (1966); McCloskey v. Doherty, 97 Ky. 300, 30 S.W. 649
(1895); Searle v. Roman Catholic Bishop of Springfield, 203 Mass. 493, 89 N.E. 809 (1909).
62. Union Church v. Sanders, 6 Del. (I Houst.) 100, 127 (1855).
63. For a summary of the later stages of the trusteeship controversy, see 3 A. STOKES,
supra note 50, at 408-13. The Vatican gave formal approval to the corporation sole as one of
the approved modes of holding title to church property in a private letter sent to the American
bishops in 1911. For the text, see 2 T. BOUSCAREN, CANON LAW DIGEST 443 (1966). The
corporation sole is still the "preferable civil law instrument for the dioceses to use in holding
title to property." See A. MAIDA & N. CAFARDI, CHURCH PROPERTY, CHURCH FINANCES, AND
CHURCH-RELATED CORPORATIONS 129 (1986).
64. See Roman Catholic Archbishop v. Shipman, 79 Cal. 288, 21 P. 830 (1889) (af-
firming action taken by the legislature of California). For other decisions where a court did not
recognize a corporation sole because the legislature had not acted or where a party had not
followed a procedure created by state law, see Dwenger v. Geary, 113 Ind. 106, 14 N.E. 902
(1888); Blakeslee v. Hall, 94 Cal. 159, 29 P. 623 (1892); First Nat'l Bank v. Winchester, 119
Ala. 168, 24 So. 351 (1898).
65. Wright v. Morgan, 191 U.S. 55, 59 (1903).
 93 DICKINSON LAW REVIEW FALL 1988

The transformation of the corporation sole from its common law

form to a legislative format, however subtle, created something alto-
gether new. Zollmann, writing in 1915, called it "a new form . . .
vigorously flourishing" 66 and "American in the true sense of the
word." 67 The tide had turned. Momentum to secure the property
rights of the Roman Catholic Church a century ago left permanent
traces in modern American law. Today at least thirty states have a
corporation sole in one form or another.

IV. The Corporation Sole in Statutory Form

Seventeen states explicitly66 recognize the corporation sole
under statutory law, often in a special section for nonprofit corpora-
tions or in a section on religious societies. 69 At least eight other juris-
dictions have at least one corporation sole created under special or
private charter, sometimes dating to a time before the passage of a
general incorporation statute.70
To understand the corporation sole under both of these catego-
ries, a method of analysis will be useful. For states that recognize
the corporation sole under general law, California's statutes can
serve as a comparative model. For the states with special or private
acts of incorporation, Maryland's private charter for the Archbishop
of Baltimore is a useful example.
The California legislation dates to 1877,71 and comprises part 6
of the title division on nonprofit corporations. Some sections are
technical, and relate to filing provisions, applicability to corporations

66. Zollmann, Classes of American Religious Corporations, 13 MICH. L. REV. 566, 571
(1915).
67. Id. at 573.
68. A law is classified as explicit if the words "corporation sole" are used, or if the
words "and his successors" are employed in a context clearly designating a corporation sole.
69. ALA. CODE §§ 10-4-1 to -9 (1975); ALASKA STAT. § 10.40.060 (1985); ARIz. REV.
STAT. ANN. 88 10-421 to -426 (1977); CAL. CORP. CODE §§ 10000-10015 (West 1977); COLO.
REV. STAT. 88 7-52-101 to -104 (1986); HAW. REV. STAT. §§ 419-1 to -9 (1985); IDAHO CODE
§ 30-304 (1980); MICH. COMP. LAWS ANN. §§ 458.1-.2, 458.271-.273 (West 1983); MONT.
CODE ANN. 35-3-101 to -209 (1985); NEV. REV. STAT. §§ 84.010-.080 (1985); N.H. REV.
STAT. ANN. §§ 306.6-.8 (1984); N.C. GEN. STAT. § 615 (1982); OR. REV. STAT. § 61.055(1)-
(3) (1983); S.C. CODE ANN. § 33-31-140 (Law. Co-op. 1976); UTAH CODE ANN. 88 16-7-1 to
-12 (1973); WASH. REV. CODE ANN. §§ 24.12.010-.040 (1969); WvO. STAT. 88 17-8-109
to -113 (1977).
70. They are the District of Columbia, Illinois,Kentucky, Maine, Maryland, Massachu-
setts,Nebraska, and Rhode Island. The author is unaware of any authoritative listing of the
states which have sole corporations under private law or special incorporation. This list was
drawn from cases citing a corporation sole ina judicial opinion, from examination of sessions
laws, and from a listingof corporate names of dioceses inthe 1987 OfficialCatholic Directory.
71. Prior to the enactment of California's statute, the California Supreme Court had
found the priest of the Mission Dolores to have a position in law "analogous" to that of a
corporation sole in England. Santillan v. Moses, I Cal. 92 (1850).
 MODERN CORPORATION SOLE

organized prior to the implementation of the law, and procedures for

voluntary dissolution.7 The key sections are those dealing with who
may incorporate, the corporate powers, and the questions of vacancy
and succession.
The California statutory system indicates that a corporation sole
may be formed by a "bishop, chief priest, presiding elder, or other
presiding officer of any religious denomination, society, or church." 7
The corporate powers specified in the California law are comprehen-
sive. In California, a corporation sole may:
(a) Sue and be sued, and defend, in all courts, and places,
in all matters and proceedings whatever.
(b) Contract in the same manner and to the same extent as
a natural person, for the purposes of the trust.
(c) Borrow money, and give promissory notes thereof, and
secure the payment thereof by mortgage or other lien upon
property, real or personal.
(d) Buy, sell, lease, mortgage, and in every way deal in real
and personal property in the same manner that a natural person
may, without the order of any court.
(e) Receive bequests and devises for its own use or upon
trusts to the same extent as natural persons may, subject, how-
ever, to the laws regulating the transfer
7
of property by will.
(f) Appoint attorneys in fact. 4
The most complex issue regarding the old corporation sole was
that of continuing operation during a vacancy in the office. Califor-
nia deals with this issue in two ways: 1) at the time of incorporation,
the manner of filling a vacancy is to be specified, 75 and 2) the law
makes clear that the corporation has perpetual existence even during
76
a vacancy.
In contrast with the common law corporation sole, the Califor-
nia statute, like almost all its modern counterparts, is far more pre-
cise. A comparison will be useful. The common law or "old" corpo-
ration sole applied to some unspecified officers, and not to others of

72. All references to the California code are to CAL. CORP. CODE §§ 1000010015
(West 1977). Filing procedures: Id. at §§ 10003 to 10005; applicability to earlier corporations:
Id. at §§ 10000 to 10001; dissolution: Id. at §§ 10012 to 10015.
73. Every other state with a codified corporation sole reserves it to specified clergy, ex-
cept Alaska ("any person and a successor in office") and Arizona ("scientific research institu-
tions"). See ALASKA STAT. § 10.40.060 (1985); ARIZ. REV. STAT. ANN. §§ 10-421 to -422
(1977).
74. CAL. CORP. CODE § 10007 (West 1977). A few other states add the power to have a
corporate seal. See, e.g., NEv. REV. STAT. § 84.050 (1985).
75. CAL. CORP. CODE § 10003(d) (West 1977).
76. Id. at 10008.
 93 DICKINSON LAW REVIEW FALL 1988

similar origin. The statutory or "new" corporation sole, in contrast,

applies to those who are designated at the time of their incorpora-
tion. The old corporation sole was "in abeyance" at the time of a
vacancy, whereas the new corporation sole continues through tempo-
rary agents. The old corporation sole could hold title to real estate
only, and alienation of the property was difficult and legally ques-
tionable. The new corporation sole has the same power over its prop-
erty as any other corporation, and is not limited in the type of prop-
erty it can own. In short, the new statutory corporation sole removes
the vagaries of the old.
Private charters have a parallel history and similar content. The
Maryland legislation incorporating the Archbishop of Baltimore
dates to 1832. The law permits church property held by trustees to
be deeded to the Archbishop and his successors. However, such prop-
erty is limited to two acres, must be real property, and can only be
used for a church, parsonage, or burial ground."
In 1868, the Maryland legislature amended the act. The acre-
age designation was enlarged to five acres, and "school house" was
added to the list of uses. 8 Up to this point, the Maryland law did
not mention the alienation of property. A later amendment, in 1874,
granted the power "to dispose of, lease, sell and convey from time to
time . . . to the same extent, [as] any private person or other corpo-
rate body." 7' 9
Two subsequent amendments completed the law. In 1894, the
restriction to real property was removed. The Archbishop, as a cor-
poration sole, was given the power to exercise rights over property
"real, personal or mixed." 80 Finally, in 1927, the acreage restriction
was completely removed. 81
This original 1832 legislation, with its four amendments, re-
mains the charter of the Archbishop of Baltimore as a corporation
sole. No further change can now be made, because the Maryland
code prohibits the General Assembly from amending the charter of a
religious corporation even if it was previously incorporated by special
act. 2 Furthermore, the code now contains modern provisions for

77. 1832 Md. Laws 308.

78. 1868 Md. Laws 268.
79. 1874 Md. Laws 398.
80. 1894 Md. Laws 50. Strangely enough, on the very day this amendment was passed,
the Maryland Court of Appeals upheld the validity of the original 1832 statute. See Gump v.
Sibley, 79 Md. 165, 29 A. 977 (1894).
81. 1927 Md. Laws 397.
82. MD. CORPS. & ASS'NS CODE ANN. § 5-313 (1985).
 MODERN CORPORATION SOLE

subsidiary or separate Roman Catholic corporations. 8

The contrast between the California and Maryland laws is very
apparent. The California legislation consists of more formal and
highly structured general statutes, whereas the Maryland private
charter is rather informal, the product of patchwork amendment.
The California code carefully establishes a process for creating or
dissolving a corporation sole, whereas the Maryland law barely goes
beyond the simple statement that a corporation is deemed to exist.
Clearly, the general statutes represent a later stage in the evolution-
ary process.
Although differences exist, the corporations sole created under
general corporation laws and those established by special acts or pri-
vate charters have several common features. They both deserve to be
classified under the heading of "new" or "modern" corporations sole,
because both are more than merely modes of holding title to prop-
erty. Both are meant to provide a framework for the operation of a
continuing concern. They are also both meant to provide a structure
for the planning, financing, direction and management necessary for
an organization existing and working in a sophisticated business
environment.
The Achilles heel of the "old" corporation sole was that the cor-
poration itself was a person holding an office. When the incumbent
died, the common law could only hold the corporate life and activity
in suspension, or "abeyance", until the office was filled again. In re-
gard to the "old" corporation sole, Maitland said, "Our corporation
sole is a man who dies."" Carr added, "That is the difficulty. The
artificial personality of the corporation is not strong enough to com-
pel us to ignore the natural personality of the sole incorporator. The
office has not been completely personified if the death of the office-
'8 5
holder can cause such a deadlock."
The modern corporation sole, created under legislative auspices,
solves the succession problem quite satisfactorily in one of two ways.
Either a specified structure of continuing operation is created in stat-
utes, as in California, 6 or the statutes specify some external set of
canons, practices or rules to deal with an interregnum, as in
87
Maryland.

83. Id. at §§ 5-314 to -320.

84. Maitland, supra note 24, at 145.
85. C. CARR, supra note 14, at 32-33.
86. CAL. CORP. CODE § 10008 (West 1977).
87. Maryland uses the phrase "according to the discipline and government of the Ro-
man Catholic Church." 1832 Md. Laws 308.
 93 DICKINSON LAW REVIEW FALL 1988

The fact that the modern American corporation sole works sat-
isfactorily is, perhaps, best illustrated by the relative absence of re-
cent cases carried to the appeal level.88 Corporate structure is seldom
at issue, but the cases tend to run the gamut: torts,89 contract, 90 civil
procedure, 1 piercing the corporate veil, 9a workman's compensation,"
taxation, 9" eminent domain, 95 estates "6 and simple fraud. 9 Property
disputes are relatively rare, perhaps because there would be first
amendment implications for most corporations sole.' 8
The corporation sole seems to have a settled existence. There
has been no rash of new legislation, nor have there been any repeals
of earlier laws.
V. Special Circumstances
Eight additional states have circumstances meriting comment.
The constitutions of Virginia and West Virginia specify that no
charter of incorporation can be granted to any church or religious
denomination." At least one commentator attributes this prohibition
to the influence of Thomas Jefferson and James Madison.100 Al-
though the tradition of church-state separation in Virginia may in-
deed be traced to the two former presidents, the constitutional provi-
sion in Virginia dates to 1851,101 long after the deaths of both. 10U
88. The author speculates that most legal disputes involving a corporation sole would be
simple torts resolved in insurance settlements or at the trial level. There may also be a certain
reluctance for potential plaintiffs to sue an officer of a church or for officers of a church to
permit disputes to go to trial.
89. See, e.g., Decker v. Bishop of Charleston, 247 S.C. 317, 147 S.E.2d 264 (1966);
Barabasz v. Kabat, 86 Md. 23, 37 A. 720 (1897).
90. See, e.g., Hurley v. Werly, 203 So. 2d 530 (Fla. Dist. Ct. App. 1967).
91. See, e.g., Zani v. Phandor Co., 281 Mass. 139, 183 N.E. 500 (1932).
92. See, e.g., Roman Catholic Archbishop v. Superior Court, 15 Cal. App. 3d 405, 93
Cal. Rptr. 338 (1971). In this rather amusing case, the Archbishop of San Francisco was sued
for damages when a California citizen had a dispute with a Swiss monastery about delivery of
a dog bred at the monastery. The court held that the Archbishop could not be held responsible
as "alter ego" for a monastery he had never heard of. Id. at 411, 93 Cal. Rptr. at 341.
93. See, e.g., Roman Catholic Archbishop v. Industrial Accident Comm'n, 194 Cal. 660,
230 P. 1 (1924).
94. See, e.g., People ex rel. Pearsall v. Catholic Bishop, 311 Ill. 11, 142 N.E. 520
(1924).
95. See, e.g., City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968).
96. See. e.g., In re Estate of Zabriskie, 96 Cal. App. 3d 571, 158 Cal. Rptr. 154 (1979).
97. See, e.g., Baldwin v. Commissioner, 309 N.W.2d 750 (Minn. 1981).
98. See Note, Judicial Intervention in Disputes over the Use of Church Property, 75
HARV. L. REV. 1142 (1962); Note, Judicial Intervention in Church Property Disputes-Some
Constitutional Considerations, 74 YALE L.J. 1113 (1981); Oaks, Trust Doctrines in Church
Controversies, 1981 B.Y.U. L. REV. 805.
99. VA. CONST. art. IV, § 14(20); W. VA. CONST. art. 6, § 47.
100. Kauper & Ellis, supra note 37, at 1529.
101. 1 A. HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 545 (1974).
102. Thomas Jefferson died in 1826; James Madison in 1836.
 MODERN CORPORATION SOLE

The West Virginia courts have acknowledged that the provision in

that state is descended from Virginia.1"' While these constitutional
provisions pose no problems to the titles of church property in either
state, they obviously preclude a corporation sole. 104 An article in the
Kansas constitution, which required title to property of religious cor-
porations to be vested in elected trustees, was repealed in 1974.105
Connecticut has a provision in its corporation code that gives
the local archbishop or bishop special powers in trust if a Catholic
parish corporation violates or surrenders its charter. 1°6 The courts
have interpreted this provision to mean that, if a charter is surren-
dered, "all the property vests in the bishop and his successors, as a
corporation sole." 10 7 This section provides emergency powers that
are not normally required.
Oklahoma allows for trust succession in the name of an ecclesi-
astical office.108 Vermont, in contrast, specifically forbids any such
succession.109
Finally, case law in Arkansas and Florida also deserves atten-
tion. The Supreme Court of Arkansas, in dicta, has recognized the
Roman Catholic Bishop of Little Rock as a corporation sole without
any special act of the legislature.1 10 The Florida situation is even
more unique. The Supreme Court of Florida has repeatedly held that
the common law corporation sole is in full force in Florida. 1 1 The
court relies on the fact that the common law has been adopted in
Florida and remains in force unless expressly or impliedly repealed
by organic or statutory law. This unique position initially attracted
journal comment, 2 perhaps because it seemed contrary to the ear-
lier United States Supreme Court position. 3

VI. A Federal Corporation Sole

Only rarely has there been mention of a federal charter for a

103. See Powell v. Dawson, 45 W. Va. 780, 32 S.E. 214 (1899).

104. Kauper & Ellis, supra note 37, at 1530.
105. KAN. CONST. art. 12, § 3 (repealed 1974).
106. CONN. GEN. STAT. ANN. § 33-281 (West 1987).
107. State ex rel. Barry v. Getty, 69 Conn. 286, 289, 37 A. 687, 688 (1897).
108. OKLA. STAT. ANN. tit. 18, § 563 (West 1986).
109. VT. STAT. ANN. tit. 27, § 703 (1975).
110. City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968).
Ill. See Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927); Willard v. Barry, 113 Fla. 402,
152 So. 411 (1933); Hurley v. Werly, 203 So. 2d 530 (Fla. 1967); 8 FLA. JUR. 2d, Business
Relationships, § 6 (1978).
112. See Note, The Corporation Sole, 26 MICH. L. REV. 545 (1928); Recent Cases,
supra note 17, at 296-97.
113. Wright v. Morgan, 191 U.S. 55, 59 (1903).
 93 DICKINSON LAW REVIEW FALL 1988

religious or quasi-religious organization."" When Congress voted, in

1811, to incorporate an Episcopal church in the District of Colum-
bia, President Madison vetoed it." 5 In his veto message, the Presi-
dent implied that a charter of incorporation was in some sense an
approval of a religion, in violation of the Constitution.
More than a century later when incorporation was so common,
the Congress and the President took another view. In 1948, the Vati-
can completely severed the Archdiocese of Washington from the
Archdiocese of Baltimore. The new Archbishop of Washington, with
the help of President Truman, sought to have a corporation sole es-
tablished as a framework for the new ecclesiastical territory."' Con-
gress complied by passing a private law that established the Arch-
bishop of Washington and his successors as a corporation sole."1

VII. A Yet More Modern Form?

A number of authorities warn against confusing the corporation
sole with the modern one-person corporation."" In fact, courts have
held that a stock corporation is not automatically transformed into a
corporation sole simply because one person has purchased all of the
stock." 9
It is possible, however, to structure a one-person corporation in
such a way that it closely resembles a corporation sole in operation.
In fact, the Roman Catholic Diocese of Wilmington is so structured
under the general corporation laws of Delaware."10 The Wilmington
diocese is not incorporated under the terms of the Delaware Code for
Religious Societies and Corporations. 2 ' Rather, the diocese is incor-
porated under the General Corporation Law, which already contains
provisions for a board of one, for non-stock operation, and for forma-
tion of a close corporation. 22 By carefully writing the by-laws, and

114. For a brief history of "The Question of Federal Incorporation," see 3 A. STOKES,
supra note 50, at 413. Stokes was not aware of the 1948 legislation incorporating the Archdio-
cese of Washington.
115. Id.at 414.
116. Telephone interview with Rev. Godfrey Mosley, Vice Chancellor of the Archdio-
cese of Washington (Sept. 16, 1987).
117. 62 Stat. 355 (1948).
118. See H. HENN & J. ALEXANDER, supra note 7, at 697 n.1; I W. FLETCHER, supra
note 6, at § 54.
119. See, e.g., Louisville Banking Co. v. Eisenman, 94 Ky. 83, 21 S.W. 531 (1893).
120. Telephone interviews with Rev. Msgr. Joseph F. Rebman, Chancellor of the Dio-
cese of Wilmington (Nov. 2, 1987) and with Rev. Msgr. Paul J. Schierse, Former Chancellor
(Oct. 30, 1987).
121. DEL. CODE ANN. tit. 27, §§ 115-17 (1975).
122. The General Corporation Law of Delaware is found in DEL. CODE ANN. tit. 8, §§
101-398 (1984 & Supp. 1986). The number of directors is treated in § 141; section 242 deals
 MODERN CORPORATION SOLE

by addressing the problems of succession, the Roman Catholic Dio-

cese of Wilmington has fashioned a corporation that contains all the
advantages of the corporation sole in a state that has no regular pro-
vision for one.' 2 3

VIII. Summary
From its quaint beginnings in English law, the corporation sole
has established a modest, yet solid, foothold in the United States. To
churches with a hierarchical structure, and particularly to the Ro-
man Catholic Church, it has been a secure method for both owner-
ship of property and daily operation.' " In a society characterized by
religious and ethnic pluralism, the corporation sole has provided a
useful legal option, well adapted to the needs of certain groups. The
corporation sole has, arguably, made a greater contribution in the
United States than in its native land. The corporation sole is des-
tined to be a continuing part of American law for years to come.

with non-stock corporations; and Subchapter XIV, beginning with § 341, addresses close
corporations.
123. The Diocese was so incorporated on December 2, 1972. Telephone interview with
James P. Collins, Esq., Legal Counsel of the Diocese of Wilmington (Nov. 3, 1987).
124. Most dioceses today incorporate each parish and institution separately to limit in-
surance liability. The corporation sole thus becomes a holding company with multiple
subsidiaries.