Sherman v. Baker

• Decision Date: 07 April 1898
• Citation: 20 R.I. 446,40 A. 11
• Parties: SHERMAN v. BAKER et al.
• Court: Rhode Island Supreme Court

40 A. 11

20 R.I. 446

SHERMAN

v. BAKER et al.

Supreme Court of Rhode Island.

April 7, 1898.

Bill by Alfred E. Sherman, administrator, against Mary Baker and others, for the construction of a will.

Herbert Almy and James M. Gillrain, for complainant.

David S. Baker, Charles E. Gorman, and Lewis A. Waterman, for certain respondents.

STINESS, J. This is a bill for the construction of the will of John Baker. After providing for his burial and the erection of a monument, the testator at once goes on to say that all the residue of his estate, real and personal, shall be converted into money and disposed of according to the remaining clauses of the will. The tenth and eleventh clauses give to the parish priest of St. Patrick's Church at Valley Falls $100 "to say masses for me." and $100 "the income of which to be used in ornamenting and keeping in proper repair my burial lot in said St. Patrick's cemetery."

The strife of the time of the Reformation naturally found vent in statutes. Among them was that of 1 Edw. VI. c. 14, for vesting in the crown property devoted to "superstition and errors in Christian religion," which specified "vain opinions of purgatory and masses satisfactory, to be done for them which were departed." From this came the English doctrine of superstitious uses, and even now, after the statute of 2 & 3 Wm. IV. c. 115, which legalizes bequests for the support of the Roman Catholic religion, a legacy to priests and chapels for the benefit of their prayers and masses is held to be void on account of the superstitious purpose attached to them. West v. Shuttleworth, 2 Mylne & K. 684; Heath v. Chapman, 2 Drew. 417; In re Blundell's Trusts, 30 Beav. 360.

In this country, where all forms of religions belief stand upon equal legal rights, the doctrine of superstitious uses has never been recognized, and bequests for masses are now generally admitted to be legal, but there is a diversity of opinion as to their execution. One class of cases holds that they are good as charitable trusts, being for religious services. Another class holds that they are private trusts, which are void because there is no living beneficiary to enforce the trust. A third class holds that they are good as outright gifts for a specified legal object.

Of the first class is In re Schouler, 134 Mass. 426, in which the court says: "Masses are religious ceremonials or observances of the church, of which she (the testatrix) was a member, and come within the religious or pious uses which are upheld as public charities." In Re Rhymer's Appeal, 93 Pa. St. 142, it was held that a gift for masses was a gift to a religious use, and so void under a statute declaring that no gift in trust for charitable or religious uses should be made, except it should be done at least one month before the testator's death. The opinion says that the mass is a prominent part of the religious service of the Catholic Church, and that the service is the same in kind, whether it be designed to promote the spiritual welfare of one or many. See, also, Seibert's Appeal (Pa. Sup.) 6 Atl. 105; Seda v. Huble, 75 Iowa, 429, 39 N. W. 685.

Recent examples of the second class may be found In Festorazzi v. St. Joseph's Catholic Church (Ala.) 18 South. 394; Holland v. Alcock, 108 N. Y. 312, 16 N. E. 305, and McHugh v. McCole (Wis.) 72 N. W. 631. In this last case the court held a gift of this kind to be invalid because its form Implies a trust, but, at the same time, it said this: "We know of no legal reason why any person of the Catholic faith, believing in the efficiency 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 to be void as gifts to superstitious uses."

The third class of cases is like those which this court referred to in Williams v. Herrick, 19 R. I. 197, 32 Atl. 913, relating to something to he done and ended, such as erecting a monument or a building, as to which we said that we made no question that a devise with such a simple direction would be good.

The essential distinction between these classes of cases is not the legality of the purpose of the gift, but the creation of a perpetuity. A charitable trust may be in perpetuity, but a private trust cannot be. If a gift is a charitable trust, it will be good, whenever it is to be executed. If it is not a charitable trust, it will be good if it has the proper elements of a trust and is to be executed within the limit allowed by law; or it will be good if it is an outright gift for a specified legal object, although it may not have all the elements of a trust, but may be only what has been called an honorary trust —an expression of a desired purpose rather than an imposed condition, for present execution, and not in perpetuity.

This will presents an example both of a gift in perpetuity for a private trust, i. e. for the care of the testator's burial lot, and an outright gift for masses. The former is invalid. Kelly v. Nichols, 17 R. I. 306, 21 Atl. 906; Williams v. Herrick, supra. The latter, the gift for masses, is valid, as one which takes effect at once, like any personal bequest for a legal object. It is evidently not intended to be a trust, as it is for the parish priest himself, for his own service in saying masses. A gift to one for a mourning ring would not be a trust, and this is the same in principle. In each case the testator would seek a posthumous benefit,—a memorial of his personality in one case, and a benefit to his soul in the other. In both cases the substance of the gift would go to the legatee, and one is not a trustee for himself. It is not precisely like the gift for a monument, for that is not intended to go to the legatees,...