O'Hanlon v Logue

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 05 February 1906
• Date: 05 February 1906

O'HANLON

and

LOGUE

Appeal

Charity — Gift to — Charitable purposes — Masses — Gift in perpetuity — No direction for celebration in public.

Adams and Lambert's CaseUNK 4 Rep. 104 (b).

Adams and Lambert's CaseUNK 4 Rep. 96, 116.

Cocks v. MannersELR L. R. 12 Eq. 585.

Commissioners of Income Tax v. PemselELR [1891] A. C. at p. 583.

Da Costa v. De Paz 2 Swanst. 487, note.

Durour v. MotteuxENR 1 Ves. Sen. 320.

Farquhar v. DarlingELR [1896] 1 Ch. 50.

Felan v. Russell 4 Ir. Eq. R. 701.

Grieves v. Case 1 Ves. Jun. 546.

Hall's CaseIR [1897] 2 I. R. 433, 448, 499.

Hoare v. OsborneELR L. R. 1 Eq. 585.

In re FovenauxELR [1895] 2 Ch. 501. See concluding words of judgment of Chitty, J.

Incorporated Society v. Richards 1 Dr. & War. 258, 300.

Incorporated Society v. Richards 1 Dr. & War. 325.

Incorporated Society v. Richards 1 Dr. & War. at pp. 319-324.

Joyce v. OsborneENR Nelson, 40.

Kendall v. GrangerENR 5 Beav. 300.

Lea v. CookeELR 34 Ch. D. 528.

Michel's TrustsENR 28 Beav. 39.

Moggridge v. Thackwell 7 Ves. 69.

Morice v. Bishop of Durham 9 Ves. 399; 10 Ves. 522.

Morice v. Bishop of Durham 9 Ves. 399; 10 Ves. 541.

Neo v. NeoUNK L. R. 6 P. C. C. 381.

Ommaney v. Butcher Turn. & Russ. 260.

Pember v. The Inhabitants de Kington Ibid.

Penstred v. PavierENR Tothill, 34.

Powerscourt v. PowerscourtUNK 1 Molloy, 616.

Read v. HodgensIR 7 I. Eq. R. 17.

Read v. Hodgens 7 Ir. Eq. R. 31.

Read v. Hodgens 7 Ir. Eq. R. 34.

Richardson v. MurphyIR [1903] 1 I. R. 227.

Robb and Reid v. DorrianUNKIR I. R. 11 C. L. 292.

Straus v. GoldsmidENR 8 Sim. 614.

The Attorney-General v. CockENR Amb. 201.

The Attorney-General v. DelaneyUNKIR I. R. 10 C. L. 104.

The Attorney-General v. Fowler 15 Ves. 85.

The Attorney-General v. HallIRIR [1896] 2 I. R. 291; [1897] 2 I. R. 426.

The Attorney-General v. HallIR [1896] 2 I. R. at p. 303.

The Attorney-General v. HallIR [1897] 2 I. R. 426, 442.

The Attorney-General v. HallIR [1897] 2 I. R. 426, at p. 449.

The Attorney-General v. HallIR [1897] 2 I. R. 436.

The Attorney-General v. HerrickENR 2 Amb. 712.

The Attorney-General v. ToddENR 1 Keen, 803.

The Commissioners of Charitable Donations and Bequests v. WalshIR 7 I. Eq. R. 34, note.

Thornber v. WilsonENR 3 Drew, 245.

Townsend v. CarusENR 3 Hare, 257.

Turner v. Ogden 1 Cox Ch. C. 316.

Webb v. OldfieldIR [1898] 1 I. R. 431. Lord Ashbourne, at pp. 446, 447; Walker, L.J., at pp. 449-451.

West v. ShuttleworthENR 2 My. & K. 698.

West v. Shuttleworth 2 Myl. & K. 684.

VOL. 1.] CHANCERY DIVISION. 217 the validity or effect of these documents, I should hold that an Appeal. action for specific performance ought to be brought and a decree 1906. obtained; but no one suggests that Lord Ruthven has any defence In re RUTRVEN' S whatever, and I bring in the Scotch decree as strong evidence of TRUSTS. the absence of all defence. That being so, I have to see if there Holm,, L.J. is any authority to prevent a vesting order being made, to avoid the expense of unnecessary litigation and delay, in a matter where it would be for the benefit of all parties to make it. The authorities show that such an order can be made in a plain and clear case under section 26, and if there can be a case both plain and clear, the present is of that character (1). Solicitors for the Master of Ruthven and the trustees : O'Kearney 8f Barrington. Solicitors for Lord Ruthven : Longfieg Kelly, 8f Armstrong. R. D. M. 0'11.A.NLON v. LOGUE (2). Charity—Gift to—Charitable purposes—Masses—Gift in perpetuity—No direction for celebration in public. Appeal. 1905. Nov. 27, 28. 1906, Feb. 5. A bequest for Masses in perpetuity is a good charitable gift, whether there is a direction that the Masses should be celebrated in, public or not. The Attorney-General v. Delaney (I. R. 10 C. L. 104) overruled. The Attorney-General v. Hall ([1897] 2 I. R. 426) considered. By her will, dated the 10th July, 1891, Ellen M'Loughlin devised and bequeathed all her property to the Rev. Bernard O'Connor and Felix O'Hanlon, whom she appointed executors and trustees, upon certain trusts for her son John James M'Loughlin, until he should marry, and, if he die unmarried, on trust for her sisters Catherine and Mary Quinn, her brother Francis Quinn, and her nephew Charles Quinn, for their joint (1) See also Re General Accident Assurance Corporation, Limited ([1904] 1 Ch. 147), and. Re No. 9 Bomore Road ([1906] 1 Ch. D. 359).—[Rar.]. (2) Before WALKER, C., PALLES, C.B., and. FirzGuisoN and HOLMES, L.JJ. 248 THE IRISH REPORTS. [1906. Appeal. lives, and for the lives and life of the survivors and survivor of 1905. them, and after the death of the survivor, upon trust to sell and 0' HANLON invest the proceeds, and " to pay the income thereof from time V LOGUE. to time to the Roman Catholic Primate of all Ireland for the time being, to be applied for the celebration of Masses for the repose of the souls of my late husband, my children, and myself." The testatrix died on the 25th April, 1893. By deed poll, dated the 14th June, 1893, the Rev. Bernard O'Connor disclaimed the trusts of the will, and probate was granted to Felix O'Hanlon. The said John James M'Loughlin died on the 2nd November, 1898, unmarried, and Mary Quinn, Catherine Quinn, Francis Quinn, and Charles Quinn, the brother and sisters and nephew of the testatrix had died, or were presumed to be dead, having left Ireland, and not having been heard of for many years. The plaintiff, the executor, issued a summons for the construction of the will against Cardinal Logue, the Roman Catholic Archbishop of Armagh. The property consisted chiefly of house property in the town of Portadown, held under freehold tenure, and by order dated the 1st February, 1904, Sir Augustine Baker was appointed to represent the person who by devise, descent, or otherwise would be entitled to represent the real estate, as it was not known who the heir of the testatrix was. On the 13th July, 1905, Porter, M.R., considering that he was bound to follow the decisions in The Attorney-General v. Delaney (1) and The Attorney-General v. Hall (2), held that the gift for Masses was void, as creating a perpetuity. By an order in the action made on consent the answer of Dr. Delaney in The Attorney-General v. Delaney (1) was admitted in evidence. The defendants appealed. D. F. Browne, S. C. (with him J. H. Pigot), for the appelÂlant :— The question for decision is whether a gift simply for the celebration of Masses for the souls of the dead is a valid charitable (1) I. R. 10 C. L. 104. (2) [1897] 2 I. R. 426. VOL. I.] CHANCERY DIVISION. gift. The decision of this question involves the reconsideration of the principle on which the case of The Attorney-General v. Delaney (1) was decided. A gift for the advancement of religion is a gift for a charitable purpose within the meaning of the term " charitable " in the statute 43 Elizabeth, c. 4, and the analoÂgous Irish statute, 10 Car. 1, sess. 3, c. 1, enacted " for the advancement of pious intentions and the better execution of charitable uses and trusts." In its enumeration of charitable trusts, the Irish statute includes trusts " for the maintenance of any minister and preacher of the Holy Word of God," which were purposely omitted from the statute of Elizabeth (Duke 125). Of the numerous decisions in which gifts for the advancement of religion or for religious purposes have been upheld as charitable The Attorney-General v. Herrick (2), Powerscourt v. Pou'erscourt (3), Townsend v. Carus (4), Farquhar v. Darling (5), are typical examples. Trusts for the advancement of religion are included in Lord Macnaghten's enumeration of charitable trusts in the Commissioners of Income Tax v. Pemsel (6). A gift for the maintenance of religious worship is a gift for the advancement of religion : Durour v. Motteux (7) ; Turner v. Ogden (8) ; Straus v. Gold-mid (9) ; s Trusts (10). In Michel's Trusts (10) there was no direction that the prayer " Candish " was to be said in public ; the prayer was au essential part of the testator's purpose, and the gift cannot be regarded as an educational charity. A gift for the celebration of Masses is a gift for the maintenance of the reliÂgious worship of a religion which, since the Irish Toleration Act, 33 Geo. 3, c. 21, has been declared to be legal in Ireland, and such a gift is therefore charitable. The supplemental answer iu The Attorney-General v. Delaney (1) states the nature of a Mass, which was known to the Common Law, and it also states the doctrine of the Catholic Church as to the Sacrifice of the Mass. The statute 10 Car. 1, Bess. 3, c. 1, after enumerating several (1) I. R. 10 C. L. 104. (6) [1891] A. C. at p. 583. (2) 2 Amb. 712. (7) 1 Yes. Sen. 320. (3) 1 Molloy, 616. (8) 1 Cox Ch. C. 316. (4) 3 Hare, 257. (9) 8 Sim. 614. (5) [1896] 1 Ch. 50. (10) 28 Beay. 39. 250 THE IRISH REPORTS. [1906. Appeal. classes of charitable uses, contains the general words " or for any 1905. other like lawful and charitable use and uses, warranted by the O'HANLON laws of this realm uow established and in force," and treats Loo Ur. those uses and trusts as pre-existing and valid : Incorporated Society v. Richards (1). Gifts for Masses not directed to be celebrated in public were, prior to the Reformation, charitable. The Statute of Westminster first enabled persons deputed by the ordinaries to recover debts due to those who died intestate " to administer and dispend for the souls of the dead." The Spiritual tenures in Frankalmoigne and by Divine Service recognised the validity of gifts for Masses : Co. Litt., 94a, 95b ; Perkins' Conveyancing, ss. 541, 563. Where a tenant, holding by Divine Service, failed to perform: the Services, a writ of cessavit lay for not doing the Services : Fitzherbert, Natura Brevium, ii. 209. Gifts for Masses not directed to be said in public must, preÂviously to the Reformation, have been held to be charitable and not...