Prior to the period of the Reformation in England in 1532, Masses for the repose of the souls of the donors of property given for that purpose were upheld in England, but during that year a statute was passed providing that thereafter all uses declared of land, except leaseholds of twenty years, to the intent to have perpetual or the continued service of a priest, or other like uses, should be void. In the reign of Edward VI (1547), another statute was passed declaring the king entitled to all real and certain specified personal property theretofore disposed of for the perpetual finding of a priest or maintenance of any anniversary or obit, or other like thing, or any light or lamp at any church or chapel. These statutes did not make disposition of personal property to such uses void, and the statute of Henry VIII was prospective and applied only to assurances of land to churches and chapels, and that of Edward VI was limited to dispositions of property, real and personal, theretofore made. But the English chancellors and the English judges, in the absence of any express statute, determined all dispositions of property, whether real or personal, given or devised for uses specified in the two statutes, to be absolutely void as contrary to public policy, being for superstitious uses. The decision covered legacies such as to priests to pray for the soul of the donor or for the bringing up of poor children in the Roman Catholic faith.
It has been expressly decided that these statutes and the doctrine of superstitious uses as enunciated by the English judges do not apply in the United States although the first colonies from which the States grew were established subsequently to the dates of the adoption of the statutes referred to, and this, notwithstanding the fact that in some of the states statutes were passed adopting the common law and statutes of England so far as the same might be applicable to the altered condition of the settlers in the colonies. It has been pointed out that it is a maxim of law in the United States that a man may do what he will with his own, so long as he does not violate the law by so doing or devote his property to an immoral purpose; consequently, since there is a legal equality of sects and all are thus in the eyes of the law equally orthodox, to discriminate between what is a pious and what a superstitious use would be to infringe upon the constitutional guarantee of perfect freedom and equality of all religions (see opinion of Tuley, J., in the case o Kehoe v. Kehoe, reported as a note to Gilman v. McArdle, 12 Abb. N. C., 427 New York). In none of the states of the Union, therefore, are bequests or devises of property for Masses for the dead invalid on the ground of being superstitious, but there is a diversity among the decisions as to the circumstances under which such bequests or devises will be sustained.
In New York the law of England on the subject of charitable and religious trusts has been completely abrogated by statute, it being intended that there should be no system of public charities in that state except through the medium of corporate bodies. The policy has been to enact from time to time general and special laws specifying and sanctioning the particular object to be promoted, restricting the amount of property to be enjoyed, carefully keeping the subject under legislative control, and always providing a competent and ascertained donee to take and use the charitable gifts (Levy v. Levy, 33 N. Y., 97; Holland v. Alcock, 108 N. Y., 312). In accordance with this policy a general act was passed regulating the incorporation of religious bodies, and empowering the trustees to take into their possession property whether the same has been given, granted or devised directly to a church, congregation or society, or to any other person for their use (Laws of 1813, c. 60, s. 4, III; Cummings and Gilbert, "Gen. Laws and other Statutes of N. Y.", p. 3401). By the provisions of other statutes Roman Catholic churches come under this act (Laws of 1862, c. 45; Cummings and Gilbert, loc. cit., p. 3425). Therefore a bequest of real property for Masses will be upheld if it comply with the statutory requirements, which are;
Every trust of personal property, which is not contrary to public policy and is not in conflict with the statute regulating the accumulation of interest and protecting the suspension of absolute ownership in property of that character, is valid when the trustee is competent to take and a trust is for a lawful purpose well defined so as to be capable of being specifically executed by the court (Holmes v. Mead, 52 N. Y., 332). "If then a Catholic desire to make provision by will for saying of Masses for his soul, there is not the shadow of a doubt but that every court in the State [New York], if not in the Union, would uphold the bequest if the mode of making it were agreeable to the law " (see careful article written in 1886 by F. A. McCloskey in "Albany Law Journal", XXXII, 367).
For similar reasons in Wisconsin, where all trusts are abolished by statute except certain specified trusts with a definite beneficiary, a gift for Masses, to be good, must not be so worded as to constitute a trust. Thus a bequest in the following language: "I do give and bequeath unto the Roman Catholic Bishop of the Diocese of Green Bay, Wisconsin, the sum of $4150, the said sum to be used and applied as follows: For Masses for the repose of my soul, two thousand dollars, for Masses for the repose of the soul of my deceased wife, etc., etc." The court held that a trust was created by this language, and says: "It is evident that such a trust is not capable of execution, and no court would take cognizance of any question in respect to it for want of a competent party to raise and litigate any question of abuse or perversion of the trust." But it adds: "We know of no legal reason why any person of the Catholic faith, believing in the efficacy of Masses, may not make a direct gift or bequest to any bishop or priest of any sum out of his property or estate for Masses for the repose of his soul or the souls of others, as he may choose. Such gifts or bequests, when made in clear, direct, and legal form, should be upheld; and they are not to be considered as impeachable or invalid under the rule that prevailed in England by which they were held void as gifts to superstitious uses" (72 N. W. Rep., 631).
The same view was taken by the Supreme Court of Alabama, where a bequest to a church to be used in solemn Masses for the repose of the soul of the testator was held invalid inasmuch as it did not respond to any one of the following tests:
It was not a charity inasmuch as it was "for the benefit alone of his own soul, and cannot be upheld as a public charity without offending every principle of law by which such charities are supported and it was not valid as a private trust for want of a living beneficiary to support it (Festorazzi v. St. Joseph's R. C. Church of Mobile, 25 Law. Rep. Ann., 360).
In Illinois an opposite conclusion is reached, it being held distinctly that a devise for Masses for the repose of the soul of the testator, or for the repose of the souls of other named persons, is valid as a charitable use, and the devise for such purpose will not be allowed to fail for want of a competent trustee, but the court will appoint a trustee to take the gift and apply it to the purposes of the trust. Such a bequest is distinctly held to be within the definition of charities which are to be sustained irrespective of the indefiniteness of the beneficiaries, or of the lack of trustees, or the fact that the trustees appointed are not competent to take; and it is not derived from the Statute of Charitable Uses (43 Elizabeth, c. 4), but existed prior to and independent of that statute. The court quotes with approval the definition of a charity as given by Mr. Justice Gray of Massachusetts : "A charity in a legal sense may be more fully defined as a gift, to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting and maintaining public buildings or works, or otherwise lessening the burthen of government. It is immaterial whether the purpose is called charitable in the gift itself, if it be so described as to show that it is charitable in its nature " (Jackson v. Phillips, 14 Allen, 539). The court proceeds to show that the Mass is intended to be a repetition of the sacrifice of the Cross, and is the chief and central act of worship in the Catholic Church ; that it is public. It points out the Catholic belief on the subject of Purgatory, and holds that the adding of a particular remembrance in the Mass does not change the character of the religious service and render it a mere private benefit; and further, that the bequest is an aid to the support of the clergy (Hoeffer v. Clogan, 49 N. E. Rep., 527).
In Pennsylvania bequests and devises for Masses are distinctly held to be gifts for religious uses, the Supreme Court of that state having expressed the same view of the law subsequently adopted in Illinois. The court uses the following language: "According to the Roman Catholic system of faith there exists an intermediate state of the soul, after death and before final judgment, during which guilt incurred during life and unatoned for must be expiated; and the temporary punishments to which the souls of the penitent are thus subjected may be mitigated or arrested through the efficacy of the Mass as a propitiatory sacrifice. Hence the practice of offering Masses for the departed. It cannot be doubted that, in obeying the injunction of the testator, intercession would be specially invoked in behalf of the testator alone. The service is just the same in kind whether it be designed to promote the spiritual welfare of one or many. Prayer for the conversion of a single impenitent is as purely a religious act as a petition for the salvation of thousands. The services intended to be performed in carrying out the trust created by the testator's will, as well as the objects designed to be attained, are all essentially religious in their character " (Rhymer's Appeal, 93 Pa., 142). In Pennsylvania care must be taken to observe the provisions of the Act of 26 April, 1855, P. L., 332, which prohibits devises or legacies for charitable or religious uses, unless by will executed at least one month before the death of the testator. A gift to be expended for Masses, being a religious use, would come within this statute. The provisions of the law relating to attesting witnesses, requiring two credible and disinterested witnesses when any gift is made by will for religious or charitable uses, should also be noted.
In Iowa the Supreme Court has sustained a bequest "to the Catholic priest who may be pastor of the R. Catholic Church when this will shall be executed, three hundred dollars that Masses may be said for me", as being valid, though it contains no element of a charitable use. The court says: "We have said that this bequest, if the priest should accept the money, is a private trust : and we think it possesses the essential elements of such a trust, as much as it would if the object were the erection of a monument or the doing of any other act intended alone to perpetuate the memory or name of the testator. But even if there is a technical departure because of no living beneficiary, still the bequest is valid. We have also said that it is not a charity, and we can discover no element of a charity in it. It seems to be a matter entirely personal to the testator. In one or more cases the courts have felt the necessity in order to sustain such a bequest, to denominate it a charity because charitable bequests have had the sanction of the law. We know of no such limitation on testamentary acts as that bequests or devises must be in the line of other such acts, if otherwise lawful" (Moran v. Moran, 73 N. W. Rep., 617).
It follows then that there is no legal inhibition on bequests for Masses in any of the United States either on the ground of public policy or because they offend against any inherent principle of right. But care must be taken in drafting the will to observe the statutes, where any exist, in relation to devises or bequests in trust for any purpose as well as the current of decisions where cases have arisen. The language should be clear and drawn in accordance with legal rules. It should not be left to the chances of interpretation.
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