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Bequests for Masses (England)
Before the Reformation dispositions of property, whether real or personal, for the purposes of Masses, were valid, unless where, in the case of real property, they might happen to conflict with the Mortmain laws by being made to religious congregations. There was a tenure of land known as tenure by divine service, an incident of which was the saying of Masses and of prayers for the dead. The Statute of Westminster, 31 Edward III, c. 11, contained a provision that the administrators of an intestate should be able to recover by action debts due to the intestate and that they should administer and dispense for the soul of the dead. The wills of various great people who lived in those ages contain bequests for Masses. Henry VII left £250 for 10,000 Masses to be said for his and other souls. The will of Henry VIII, made on 30 December, 1546, contains a provision for an altar over his tomb in St. George's Chapel in Windsor where daily Mass shall be said "as long as the world shall indure", and it sets out a grant to the dean and canons of the chapel of lands to the value of £600 a year for ever to find two priests to say Mass and to keep four obits yearly and to give alms for the King's soul: and it contains other provisions for requiem masses and prayers for his soul. But in A. D. 1531, by the statute 23 Henry VIII, c. 10, all subsequent assurances or dispositions of land to the use of a perpetual obit (i. e. a service for the dead to be celebrated at certain fixed periods) or the continual service of a priest were to be void if the use was to extend over more than twenty years, but if the use was limited to that or a less period the dispositions were to be valid. That even private Masses, were at that time approved by the state is shown by the six articles passed in A. D. 1539 (32 Henry VIII, c. 14), which constituted the denial of their expediency a felony. Henry VIII died 28 January A. D. 1547. The change of religion became much more marked in the following reign, and the government fostered the establishment in England of the Protestant doctrines which had begun to spread on the continent. In the same year the Six Articles were repealed and the Statute of Chauntries (1 Edward VI, c. 14) was passed from which the invalidity of bequests for requiem Masses has been deduced. The preamble to the statute recites that "a great part of the superstition and errors in the Christian religion hath been brought into the minds and estimation of men by reason of the ignorance of their very true and perfect salvation through the death of Jesus Christ and by devising and phantasying vain opinions of purgatory and masses satisfactory to be done for them which be departed, the which doctrine and vain opinion by nothing more is maintained and upholden than by the abuse of trentals, chauntries and other provisions made for the continuance of the said blindness and ignorance." The statute, after further reciting that the property given to such uses ought to be devoted to the founding of schools and other good purposes, enacted that property given to such uses, which had been so used within the preceding five years, should be given to the king. The statute only applied to past dispositions of property and it did not declare the general illegality of bequests for requiem Masses, nor has any other statute ever so declared (Cary v. Abbot, 1802, 7 Ves. 495). Nevertheless, the establishment of that principle has been deduced from it (West v. Shuttleworth, 1835, 2 M. & K. 679; Heath v. Chapman, 1854, 2 Drew 423).
The statute was not repealed under Mary, and by 1 Eliz., c. 24, all property devoted to such uses in Mary's reign was given to the crown. There is a series of cases on the question decided under Elizabeth, notably that of Adams v. Lambert, decided in 1602, in the report of which the other cases are cited. Some of these decisions are slightly conflicting, but the main points to be drawn from the series are, first, that uses for Masses or prayers for the dead were held to be superstitions and unlawful, but, second, that the question of their unlawfulness was considered according as they came within the provisions of the Statute 1 Edward VI, c. 14. In that and the following century the Catholic religion was proscribed and any devise or bequest for the promotion of it was illegal and, as regarded the purpose thereof, void (Re Lady Portington 1692, 1 Salk 162). In the report of that case, as also in other later cases, the terms "superstitious" and "unlawful" appear to be applied indifferently to purposes for the maintenance of the Catholic religion. But dispositions for Catholic poor or Catholic schools or other Catholic purposes which might come under the general construction of "charity", passed to the crown to be devoted to other lawful charitable purposes (Cary v. Abbot above). In 1829 the Roman Catholic Relief Act was passed, which contained, however, in some of its sections still unrepealed, certain penal provisions against members of religious orders of men by reason of which the status of these orders in the United Kingdom is illegal. In 1832 the Roman Catholic Charities Act (2 and 3 William IV, c. 115) was passed. By it Catholics were, as regards their charitable purposes, put in the same position as that of Protestant dissenters. Therefore now, seemingly, a bequest for the celebration of Masses with no intention for souls departed would be valid, and, moreover, it would constitute a good charitable bequest, and so, it would be valid though made in perpetuity (Re Michel's Trusts, 1860, 28 Beav. 42). But it has been held that the act has not validated bequests for requiem Masses, that the law still regards them as "superstitious" (West v. Shuttleworth above), that they do not constitute charitable bequests and that, accordingly, the property given under them passes to the person otherwise entitled (Heath v. Chapman above).
This is the position of the law today with the exception made by the Roman Catholic Charities Act, 1860, which provides that no lawful devise or bequest to any Catholic or Catholic Charity is to be invalidated because the estate devised or bequeathed is, also, subject to any trust deemed to be superstitious or prohibited through being to religious orders of men, but such latter trust may be apportioned by the Court or the Charity Commissioners to some other lawful Catholic charitable trust. Thus, a trust for requiem Masses is as such invalid, and where no question of apportionment can arise, for instance, where there is a specific legacy of money for the purpose only of such Masses, the estate which is subject to the trust does not pass to any charity but to the person otherwise entitled to it (Re Fleetwood, Sidgreaves v. Brewer, 1880, 15 Ch. D. 609). Also, a legacy for requiem Masses is invalid even though the legacy be payable in a country where it would be legally valid (Re Elliot, 1891, 39 W. R. 297). The grounds on which this position of the law is based appear rather unsatisfactory. Admittedly, there is no direct statutory illegality. In the case of Heath v. Chapman (above) Kindersley V. C. stated that the Statute I Edward VI, c. 14, assumed that trusts for Masses were already illegal - that they were in fact so - and that the statute has stamped on all such trusts, whether made before or since it, the character of illegality on the ground of being superstitious. Seeing that the statute was passed in the year of the death of Henry VIII, within eight years of the passing of the Six Articles, and that during that time there had been no statutory abolition of the Mass or condemnation of the doctrine of purgatory, it is not easy to discern how the legal invalidity of such bequests had already become established. In West v. Shuttleworth (above), which is the leading case on the subject, Pepys M. R. stated that it was by analogy to the statute that the illegality of these bequests had become established. This would seem to mean that their illegality was based upon the general policy of the law and upon principles resulting from such a change in the national system as must have arisen in that age from the complete change in the national church. In that case, since the policy applied to the whole realm including Ireland, where Protestantism became the established church and an even more vigorous anti-Catholic policy was pursued by the legislature, one would expect to find the illegality of bequests for Masses established in Ireland also, though the statute itself did not apply to Ireland. Thus, in the case of the Attorney-General v. Power, 1809 (1 B. & Ben. 150) Lord Manners, Irish Lord Chancellor, in giving judgment with regard to a bequest to a school by a Catholic testator, stated that he would not act upon the presumption that it was for the endowment of a Catholic school, and that such a bequest would by the law of England be deemed void either as being contrary to the provisions of the statute of Edward VI or as being against public policy. Yet the same Lord Chancellor, in the case of the Commissioners of Charitable Donations v. Walsh, 1823, 7 Ir. Eq. 32, after a prolonged argument before him, held a bequest for requiem Masses to be good.
The ground of public policy in respect of this question seems no longer to hold good. There is no longer any public policy against Catholicism as such. As mentioned above, seemingly, a bequest for the mere celebration of Masses with no intention for souls departed would be valid. Moreover, seemingly, a bequest for the propagation of the doctrine of purgatory would be a good charitable bequest (Thornton v. Howe, 1862, 31 Beav. 19). Thus, since the Roman Catholic Charities Act 1832, putting Catholics as regards "their . . . charitable purposes" in the same position as other persons, the holding a bequest for Masses for the dead to be invalid appears necessarily to imply that the bequest is not to a charitable purpose and thereby to involve the inconsistency that it is not a "charity" to practise by the exercise of a "charity" the doctrine which it is a "charity" to propagate. Yet this is so even though, by the bequest being for Masses to be said for the departed generally, there is evidence of an intention on the part of the testator of promoting more than his own individual welfare. Thus, apparently, the real basis of the legal view of these bequests is that the law may not recognize the purpose of a spiritual benefit to one's fellow-creatures in an after existence intended by a person believing in the possibility of such a benefit. But such an attitude, apart from the inconsistency mentioned, seems to be opposed to the present policy of the law with regard to religious opinions, especially when the act of worship directed by the bequest, when viewed apart from the particular believed effect, is approved by the law as a charity. Doubt as to the soundness of the present law on the subject was expressed by Romilly M. R. in the case Re Michels Trusts (above), where he upheld a bequest for a Jewish prayer to be recited on the testator's anniversary in perpetuity, there being no evidence that the prayer was to be recited for the benefit of the testator's soul, and in the case re Blundell's Trusts, 1861 (30 Beav. 362), where he considered himself compelled, in compliance with the judgment in West v. Shuttleworth (above), to disallow a bequest by a Catholic testator for requiem Masses, stating that the law declaring such bequests to be invalid had now become so established that only a judgment of the House of Lords could alter it. It would be desirable that the decision of that tribunal should be obtained on this question.
In Ireland bequests for requiem Masses have long been regarded as valid, and, by a recent decision given upon exhaustive consideration of the question by the Irish Court of Appeal, the law is settled that such bequests, even when the Masses are to be said in private, constitute good charitable gifts and so may be made in perpetuity (O'Hanlon v. Logue, 1906, 1 Ir. 247). But in Ireland, also, religious orders of men are illegal and any bequest for Masses to such an order which is to go to the benefit of the order is illegal and void (Burke v. Power, 1905, 1 Ir. 123). But such a bequest was allowed in one recent case, and in cases where the bequest for Masses contains no indication that the money is to go to the order itself the Court will allow the bequest (Bradshaw v. Jackman, 1887, 21 L. R. Ir. 15). The decisions show a strong general tendency to seek any means of escaping those penal provisions of the Catholic Relief Act, 1829, which, though never actively enforced, still remain on the statute book. This statutory illegality of any bequest to a religious order of men to go to the benefit of the order applies, of course, equally to England and to Scotland, where these provisions against religious orders are also law, but there does not appear to be any report of any decision on the point in either of these countries.
In Scotland the position seems, otherwise, to be as follows: though, in the centuries succeeding the Reformation the public policy was distinctly anti-Catholic and there was legislation (like the anti-Popery Act passed in 1700, which, amongst other provisions, penalized the hearing of Mass) directed against the Catholic religion, yet there seems to have been no Statute which has given rise to the question of "superstition" on the special point of gifts for prayers for the dead. By an Act passed in 1793 Catholics in Scotland, who had made a declaration now no longer required, were put upon the same footing as other persons. The Catholic Charities Act, 1832, applied also to Scotland. The term "charity" is even rather more widely interpreted in Scottish law than in English law. Thus, in Scotland through the repeal of the legislation against Catholics and the legalization of bequests to their charitable purposes, legacies for requiem Masses seem to pass unquestioned. There is little doubt that, if they were to be challenged, the Courts would uphold them. In a recent case where there was a bequest for the celebration of Mass in perpetuity (there was no mention of any intention for the dead) the validity of the bequest was not in any way called in question (Marquess of Bute's Trustees v. Marquess of Bute, 1904, 7 F. 42). The law as to superstitious uses prevailing in England is not taken to be imported into the laws of British colonies or possessions (Yeap v. Ong, 1875, L. R. 6 C. P. 396). In Australia, though by an Act of the British Parliament passed in 1828, all the laws and statutes in force in England at that date were, as far as possible, to be applied to the administration of justice in the Courts of the new Australasian Colonies, the law as to superstitious uses has been held by the Supreme Court of Victoria not to apply there (In the Will of Purcell, 1895, 21, V. L. R. 249). This decision was followed in the Supreme Court of New South Wales in 1907 (Re Hartnett, 7 S. R. 463). There is little doubt that the law which these cases declare would be followed in all other Australian Colonies and in New Zealand. In India bequests for requiem Masses are valid (Das Merces v. Cones, 1864, 2 Hyde 65; Judah v. Judah, 1870, 2 B. L. R. 433).
COKE on Littleton 96 (b); NICHOL, Wills of the Kings and Queens of England and of members of the Blood Royal from William the Conqueror to Henry VII (London, 1780); Will of King Henry the Eighth from an authentic copy in the Hands of an Attorney (London, 1793); DUKE on the Law of Charitable Uses, edited by BRIDGMAN (London, 1805).
R. S. NOLAN.