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to control the general right incident to property, of disposing of it, either in the party's lifetime, or after his death, as he may think proper; and though the sum which that testator had devoted to the erection of his monument might be disproportioned to his station in life, the court could not on any such grounds extend the construction of the statute of mortmain (u).
A conveyance of lands in fee, upon condition to repair a vault and tomb standing upon part of such lands, and if need be to rebuild it, and to permit the same to be used as a family vault for the grantor and any of her family who might desire to be interred therein, is not a charitable use so far as concerns the grantor's own interment, but the trust, so far as it relates to her family, must be considered of that kind (v).
Of Superstitious Uses and Trusts. 1. Definition of Superstitious Uses. 2. Statute of 1 Edward VI. c. 14, and construction
thereof, p. 93. 3. Protestant Dissenters, p. 100. 4. Jews, p. 105. 5. Unitarians, p. 108. 6. Roman Catholics, p. 109.
1. Definition of superstitious uses.] A SUPERSTITIOUS use is described to be where any manors, lands, tenements, rents, annuities, profits, hereditaments, goods or chattels, are given, secured, or appointed for and towards the main
(u) Mellick v. The President and 3 Maule & S. 407; S. C. 2 Marsh. Guardians of the Asylum, Jac. R. 61; 6 Taunt. 359. See Gravenor 180.
v. Hallum, Ambl. 643 ; Durour v. (v) Doe d. Thompson v. Pitcher, Motteux, 1 Ves. sen. 320; ante, p. 72. (d) Whetstone's case, Duke, 89 (*) 4 Rep. 104; Bridg. 105; (466); Colborn v. Dale, ibid ; 4 Rep. Cro. Jac. 51; Porter's case, 1 Rep. 116. 22 b.; Bac. Abr. tit. Charitable (e) Wickham v. Wood, Duke, 93 Uses, &c. (D); Duke, 106.
tenance of a priest to say mass (w), for the maintenance of a priest or other man to pray for the soul of any dead man in such a church or elsewhere, or to maintain perpetual obits, lamps, torches, &c., to be used at certain times to save the souls of men out of purgatory, or to maintain an anniversary or obit, or any light or lamp in any church or chapel, or any like intent (2).
Gifts for the following purposes were decided to be superstitious: for the good of the soul (y), or for praying for the soul of the testator (z), or for the dead, whether in or out of a chapel or church (a); for the maintenance of popish priests (b); for finding priests (c) or obits even for eight years (d); for hiring a priest to say mass for the souls of the feoffor and his friends (e). So,“ to find, support and maintain for evermore a taper of wax of a pound weight, to stand and burn before the image of our Lady in the chancel of a parish church, at all divine service to be done and said within the same church in the honour of our God, our Lady, and all saints,” is a superstitious use (f).
In a recent case, Lord Tenterden seems to have been of opinion, that a trust for supporting a chapel for a congregation of Protestants assembling under the patronage of Lady Huntingdon's College, was a superstitious use within the statute 23 Henry VIII. c. 10 (g).
(w) It is said, that since the Re- (a) Duke, 107, pl. 10. formation, a charitable foundation (6) Gates v. Jones, cited 2 Vern. for saying mass, or praying for the 266. souls, &c., is adjudged to be per- (c) Walpole's case, Duke, 95(469); formed by saying the service accord- 4 Rep. 113 b.; Tate's case, Duke, 94 ing to the Liturgy. Co. Litt. 95 b.; (468); 4 Rep. 113, 106, b. i Ves. sen. 50.
(473); Lane, 112, 113. (y) i Salk. 162.
(f) Attorney General vi Vivian, (2) Adams v. Stakes, Duke, 89 1 Russ. 226. (468); 4 Rep. 116; Pele's case, Duke, (g) Doe d. Wellard v. Haw95 (469); 4 Rep. 113.
thorn, 2 Barn. & Ald. 96.
A bequest of legacies to several Roman Catholic establishments in foreign countries and in this kingdom-viz. to each superior for the time being of the Benedictine Monks of the south and north provinces (an establishment in this kingdom); to the English Black Nuns at Paris; to the establishment of the Benedictine Nuns at Cambray; to the English Benedictine Monks of
in Lorraine ; to J. Bolton, for the maintenance of a Roman Catholic minister for ever—were held to be void; those to the foreign establishments, some of which had ceased to exist, being contrary to the policy of the law; and others, being either given to individuals in characters in respect of which they could not claim, or for an illegal establishment (g).
A legacy for such purposes as the superior of a convent, or her successor, should judge most expedient, being given in that character, would, it seems, be deemed a superstitious use (1).
It is against the policy of this country to encourage, by the establishment of a charity, the publication of any work which asserts the absolute supremacy of the pope in ecclesiastical matters over the sovereignty of the state; and although the words of the deed are so large, that it may be argued that the purposes of the charity may be effectually carried on in other parts of the world without infringing in any manner on the policy of this kingdom, yet it has been held, that such a trust is a superstitious use, and against public policy.
In a recent case, it appeared that the Bishop of Blois, in France, and 36 other Gallican bishops, had printed and published a certain book, the object of which was to inculcate the belief, that the pope had, in all ecclesiastical matters, a
(g) De Garcin v. Lawson, in Ch. Rome, bound by monastic or reli3 July, 1798, 4 Ves. 433, 2nd ed. n. gious vows; see 10 Geo. IV. c. 7,
(h) Smart v. Prujean, 6 Ves. 567 ; ss. 28–36: but the 37th section of see 1 Ball & B. 150. The statute that act excepts any religious order, for the relief of the Roman Catho- community or establishment, conlics, contains provisions for the sup- sisting of females bound by religious pression or prohibition of religious or monastic vows. See 2 & 3 Wil. orders or societies of the church of IV. c. 115, s. 4.
supremacy which was paramount even to the authority of the temporal sovereign, and was of so sacred a nature, that it was not competent to any sovereign to impair it, or to any pope to alienate it; and that the concordat alienating it, between Pius VII. and the French government, was inconsistent with the supremacy, and contrary to the fundamental principles of that church. The plaintiff, being desirous of preserving and perpetuating that book in its original purity, did, while residing in England, transfer the sum of 37861. 10s. 4d. three per cent. Consolidated Bank Annuities, into the names of himself and the three defendants, upon trusts after the plaintiff's decease, for promoting the circulation of that work (i).
(By an indenture made subse- nominate and appoint, in manner quently to the transfer of the stock, therein stated, any number of the and executed by all the parties, it members of the said university, colwas declared, that they should stand lege or society, to be trustees for the possessed of the stock upon trust, intents and purposes thereinafter to permit the plaintiff to receive mentioned ; and to pay over, transthe dividends for his own use for fer and assign the said trust monies bis life; and after his death, to lay unto such trustees, who were to out and apply all or any part of hold the same upon trust, from time the dividends of the said stock in to time to apply the dividends of printing, publishing and circulating the 37861. 10s. 4d. three per cent. in any part of the world, either in Consol. Bank Annuities, in printing, the Latin or French language, or publishing and circulating the aforein both, as they might think proper, said book, in such manner as the the book so printed and published; said trustees might think most proand upon further trust, if they the per for promulgating the tenets of trustees should at any time after the said book in its original purity, the plaintiff's decease, discover or according to the spirit of the Gallifind any university, college or so- can church, from its foundation ciety, in any part of the world, down to the solemn act of the 6th which should profess and entertain April, 1803, addressed to Pope Pius the tenets of that book, and be de- VII., as aforesaid. sirous to support the same, and And it was further declared and would agree to establish a chair in agreed between the several parties, such university, college or society, that if at any time thereafter the to support, maintain and promul- several trusts therein mentioned, or gate the said tenets and principles— any of them, should, by any court then that it should be lawful for of law or equity, be adjudged to be the trustees, if they should deem it void, or incapable of being perprudent and advisable so to do, to formed or carried into effect, then On a bill filed by the party who transferred the stock, praying that if necessary the trusts declared by the deed concerning the said stock might, except as to the trust for the plaintiff during his life, be adjudged to be void, and incapable of being carried into effect; and that the defendants, the trustees, might be decreed to transfer the stock to the plaintiff for his own absolute use. Sir J. Leach, M. R., held the charitable trust declared of the stock void, as being contrary to the policy of the law, and observed, “ The policy of the court will not permit the execution of a superstitious use; but the court avails itself of the general intention to give the property to charity, although the particular charities chosen by the founder be superstitious; and it effectuates that general intention by devoting the fund to some other charitable purpose. Here there is no general intention to give to charity; and the court, at the same time that it declares that the particular purpose for which the donor has destined the property is a superstitious use which it will not execute, is obliged to state that the gift is altogether conditional. It is a gift to a particular purpose, provided the purpose be lawful; if not, the property is to revert to the donor. On this principle it seems clear that the condition will prevail; and as the particular purpose fails, by reason of its illegality, the party is restored to his original rights. A condition is not unlawful which looks forward to the possibility of a court deciding that the gift is unlawful; if the condition were in itself illegal, the whole deed would be void; here the unlawful gift will not prevail, but the condition will prevail; as the gift was a gift upon condition, the court has no right to inter
the defendants, or other the trustees such part of the dividends arising for the time being, or the trustees therefrom as had not been applied selected from the said university, in execution of the trusts therein college or society, if any should stated, in trust for the executors have been appointed, should from and administrators of the plaintiff, thenceforth stand possessed of the and to be paid and transferred to said sum of 37861. 10s. 4d. three per them accordingly. See 5 Russ. 289 cent. Consol. Bank Annuities, and of —292.