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).

SECTION III.

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 Guardians of the Asylum, Jac. R.

180.

(v) Doe d. Thompson v. Pitcher,

3 Maule & S. 407; S. C. 2 Marsh. 61; 6 Taunt. 359. See Gravenor v. Hallum, Ambl. 643; Durour v. Motteux, 1Ves. sen. 320; ante, p. 72.

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 (x).

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 (ƒ).

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 Reformation, a charitable foundation for saying mass, or praying for the souls, &c., is adjudged to be performed by saying the service according to the Liturgy. Co. Litt. 95 b.; 1 Ves. sen. 50.

(r) 4 Rep. 104; Bridg. 105; Cro. Jac. 51; Porter's case, 1 Rep. 22 b.; Bac. Abr. tit. Charitable Uses, &c. (D); Duke, 106. (y) 1 Salk. 162.

(z) Adams v. Stakes, Duke, 89 (468); 4 Rep. 116; Pele's case, Duke, 95 (469); 4 Rep. 113.

(a) Duke, 107, pl. 10.

(b) Gates v. Jones, cited 2 Vern. 266.

(c) Walpole's case, Duke, 95 (469); 4 Rep. 113 b.; Tate's case, Duke, 94 (468); 4 Rep. 113, 106, b.

(d) Whetstone's case, Duke, 89 (466); Colborn v. Dale, ibid; 4 Rep. 116.

(e) Wickham v. Wood, Duke, 93 (473); Lane, 112, 113.

(f) Attorney General v. Vivian, 1 Russ. 226.

(g) Doe d. Wellard v. Hawthorn, 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 (h).

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. 3 July, 1798, 4 Ves. 433, 2nd ed. n. (h) Smart v. Prujean, 6 Ves. 567; see 1 Ball & B. 150. The statute for the relief of the Roman Catholics, contains provisions for the suppression or prohibition of religious orders or societies of the church of

Rome, bound by monastic or religious vows; see 10 Geo. IV. c. 7, ss. 28-36: but the 37th section of that act excepts any religious order, community or establishment, consisting of females bound by religious or monastic vows. See 2 & 3 Will. 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 37867. 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).

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 for the time being, or the trustees selected from the said university, college or society, if any should have been appointed, should from thenceforth stand possessed of the said sum of 37867. 10s. 4d. three per cent. Consol. Bank Annuities, and of

such part of the dividends arising therefrom as had not been applied in execution of the trusts therein stated, in trust for the executors and administrators of the plaintiff, and to be paid and transferred to them accordingly. See 5 Russ. 289 -292.