Article published in the Dickinson "Law Review" Volume - 93 No.1 Fall 1988

James B. O’Hara

In 1894, Sir Frederick Pollock asked his American friend Oliver Wendell Holmes. "Have you such a thing as a corporation sole still about you?" The future Justice replied, "I don’t know of any corporation sole."

. Introduction

Blackstone begins his treatment of corporations with the following classification:

The first division of corporations is into aggregate and sole …Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, 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 corporation 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 reference suggest two contradictory conclusions. On the one hand, the sources indicate the corporation sole is "not common," "almost obsolete," or "obsolescent."’ The standard casebooks and hornbooks of corporation and property law do not usually treat the topic. 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.’ At least one author equates it with the modern "one person" corporation,’ although the two have completely distinct origins.

On the other hand, further research reveals functioning corporations sole in at least one-half
of the states, with explicit statutory provisions for corporations sole in about a third. In many
jurisdictions, this is the manner of incorporating Roman Catholic dioceses, or more accurately, the
bishops of those dioceses. From this perspective, the corporation sole is a useful, even commonplace, legal reality.

The apparent discrepancy is not real. The old common law corporation 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. The transformation from the old to the new is a fascinating story, well worth the telling.

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 fundamentally American, with English sources serving as points of reference and prologue. Moreover, the English side of the story has already 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 definition is the series itself and the seriatim succession.

For example, Queen Elizabeth II, as a corporation sole, is identical to Victoria; the present
Archbishop of Canterbury in his corporate form is one with his predecessors, Laud, Benson or Lang. 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." There are, however, four legal characteristics unique to it:

1. All corporations sole are "either public officers or dignitaries of the established church." 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."

4. The corporation sole lacks the usual trappings of a corporation. It does not have a board of directors, officers, stock, bylaws, official minutes, seal, or corporate name. The older corporations sole are also devoid of a royal charter or other formal authorization, "characteristics that are required in later corporations."

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
corporation 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.

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