Bequests for Masses

"The efficacy of prayers for the dead", remarks the Court of Appeals of the State of New York in Holland v. Alcock, 108 New York Court of Appeals Reports, page 312, "is one of the doctrines of the Roman Catholic Church . . . and those professing that belief are entitled in law to the same respect and protection in their religious observances thereof as those of any other denomination" (p. 329). But the court held to be of no effect a bequest by a testator to his executors of money "to be applied by them for the purpose of having prayers offered in a Roman Catholic Church to be by them selected for the repose of my soul and the souls of my family and also the souls of all others who may be in purgatory". And following this decision the same court, in a later case, declared to be of no effect a bequest by a testator to his executors of a sum of money "to be expended in having masses said for the repose of his soul" (see O'Conner v. Gifford, 117 New York Court of Appeals Reports, p. 276), or, as rather infelicitously expressed by the judge writing the opinion of the court, "disposed of in the purchase of masses" (p. 283). Notwithstanding "respect and protection" due to "Roman Catholic" religious observances, these legacies failed, because "religious or pious uses were, when the Roman Catholic religion prevailed in England, recognized as charities" (108 ibid., p. 325), and the court held that the English legal doctrine on which the validity of charitable uses and trusts depended was not a part of the law of the State of New York. And, since in that state the bequests could not be upheld as charities, their validity was deemed to be open to an objection fatal to the validity of any trust not charitable, namely, "absence of an ascertainable beneficiary" (108 ibid., p. 329; Fosdick v. Town of North Hempstead, 125 ibid., p. 591).

The court in the Holland case calls attention to the circumstance that its decision adverse to the existence in New York of the English legal doctrine of charities is a denial of the correctness of the Court of Appeals in the previous case of Williams v. Williams, decided in 1853 (8 New York Court of Appeals Reports, p. 525), the doctrine of that case being that charitable trusts are a part of the law of the state, "that they came to us by inheritance from our British ancestors and as part of our common law" (108 ibid., p. 336). The Holland case was decided in 1888, the O'Conner case in 1889. The highest court of the state having thus decided that the legal doctrine of the same court in 1853 was erroneous and to be no longer adhered to, the legislature of the state enacted in 1893 a statute (Laws of 1893, chapter 701), which has been declared by the Court of Appeals "to restore the ancient doctrine of charitable uses and trusts as a part of the law of this State" (Bowman v. Domestic and Foreign Missionary Society, 182 Court of Appeals Reports, p. 498, decided in 1905), "the law of charitable trusts as declared in the Williams case" (Allen v. Stevens, 161 ibid., p. 141, decided in 1899). As if to approve legislatively what is thus declared judicially, the legislature, by laws becoming effective in 1909 (see Personal Property Law, section 12; Real Property Law, section 113) has re-enacted (with changes immaterial for our present purposes) the statute of 1893.

The reason on which Holland v. Alcock was based having thus ceased to exist, we might, perhaps, doubt whether the law of that case could be deemed to survive. But in this connexion a case decided in 1907 ought to be noticed. This case (Johnston v. Hughes, 187 New York Court of Appeals Reports, p. 446) involved the validity of a bequest of proceeds of real estate to a hospital conducted by a corporation, "The Sisters of the Poor of St. Francis" incorporated for "the gratuitous care of the sick, aged, infirm and poor", the testator adding to the bequest these words "for the benefit and use of the Blessed Virgin Mary purgatorial fund of said hospital". There had never been maintained any such fund in the hospital. But there was "a chapel", observes the court "connected with the hospital in which they have morning Mass and religious devotions during the day; in which prayers are offered for departed souls" (p. 452). And the court surmises that from knowledge of the observance of these religious practices, persons under the charge of the Sisters may derive "comfort and peace of mind", conducive to the physical welfare which the corporation had been chartered to promote (p. 453). The court holds that "an imperative intent on the part of the testator not to make the gift absolute" does not appear (p. 451), and that "the gift was absolute and valid", for the legal purposes of the corporation (p. 454). The Sisters, as individuals and apart from regard for the inmates of the hospital, might feel morally bound to pray for the dead; but the corporation was held to take the bequest for the purposes of the corporate charter, and these were certainly limited to the welfare of the living, "the sick, aged, infirm and poor". The bequest being thus sustained because deemed to be for purposes within the corporate functions of the legatee, the court intimates that if the legatee had not been a corporation, the decision might have been that the bequest was invalid, and invalid on the authority of the Holland case. "In this case", remarks the court, "the bequest was to a corporation duly organized, and it is not therefore subject to the objection that was made in the case of Holland vs. Alcock" (p. 453). The fact is not alluded to that the reason for sustaining this objection was the nonexistence in New York of the English law of charities, a reason no longer tenable under the statute of 1893 as construed by the court. We may well regret that this recognition in 1907 of Holland vs. Alcock was unaccompanied by any reference to this intervening statute.

Incorporation of "Roman Catholic" Churches has been provided for by the statutes of New York since the year 1863 (see Laws of 1863, chapter 45; and Religious Corporations Law, in effect 1909). The views expressed in the Holland case, in conjunction with the statute of 1893, seem favourable to the legal competency of a church thus incorporated to accept a testamentary gift charged with a trust of offering public masses for the dead (In re Davidson, English Law Reports, 1 Chancery page 572, anno 1909; cf. Bowman v. Domestic and Foreign Missionary Society sup.). By chapter 732 of the Laws of 1911, "any property devised or bequeathed for religious ceremonies, observances or commemorative services of or for the deceased donor" is exempted from transfer tax. This exemption seems to embrace devises and bequests whether to individuals or to corporations, and Masses for the repose of his soul might, perhaps, be considered to be "commemorative services . . . for the deceased donor" (chapter 795, Laws of 1913). And, possibly, some case involving a question of liability to payment of this tax may cause the Court of Appeals to settle the question whether, notwithstanding the Statute of 1893, bequests and devises for Masses are to be deemed void in the State of New York in accord with the rulings of the Court in the Holland case and the O'Conner case.

CHARLES W. SLOANE