Burke v Power

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 21 November 1904
• Court: Chancery Division (Ireland)
• Docket Number: (1904. No. 613.)
• Date: 21 November 1904

Burke

and

Power.

M. R.

(1904. No. 613.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1905.

Will — Construction — Gift for Masses, validity of — Pious use — Perpetuity — Charge on land — Chattel real — Personalty — Death of testator within three months next after execution of will — Charitable Donations and Bequests Act (7 & 8 Vict. c. 97), s. 16 — Catholic Relief Act (10 Geo. 4, c.7).

A testator (who died within three months from the date of the execution of his will) directed his interest in a farm of land to be sold, and out of the proceeds of the sale a sum of £200 to be set apart and given to the parish priest and curates of Cahir Roman Catholic Church to be invested by them; the principal to remain invested for all time in the names of the successive parish priests and curates of Cahir, the interest thereof to be applied in saying Masses for the repose of testator's soul. After bequeathing a pecuniary legacy, the testator gave the rest, residue, and remainder of his property to the Abbot of M., and the Franciscan Friars in C. in equal shares for the purpose of having Masses said for the repose of his soul in M. and C.

At the dates of the execution of the will, and of the death of the testator, the same person was Abbot of M., and the same three Franciscan Friars were resident in C.:—

Held, (1) that the legacy of £200 was void as a charge upon lands under sect. 16 of the Charitable Donations and Bequests Act (7 & 8 Vict. c. 97).

Held, (2) (in reference to the gift of the residue so far as it consisted of pure personalty) (a) that there was a gift of one-half to the person who filled the office of Abbot of M. at the date of testator's death in his individual capacity for the offering up of Masses, and that same was valid; (b) that there was a gift of the other half for the offering of Masses to a specified body, because they were members of the Order of Franciscan Friars bound by monastic vows, which was void as contrary to the policy of the Catholic Relief Act (10 Geo. 4, c. 7).

Originating Summons.

Thomas Tobin, by will dated 5th February, 1904, directed that his interest in a certain farm should be sold by his executors, and that out of the proceeds of the sale a sum of £200 should be “set apart and given to the parish priest and curates of the parish of Cahir Roman Catholic Church, to be invested by them, the principal of the sum so invested to remain for all time in the names of the successive parish priests and curates of Cahir, the interest thereof to be applied yearly in saying Masses for the repose of my soul in the Roman Catholic Church at Cahir. I give all the rest, residue, and remainder of my...