O'Hanlon v Logue

CourtCourt of Appeal (Ireland)
Judgment Date05 February 1906
Date05 February 1906
Logue (2).












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

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

lives, and for the lives and life of the survivors and survivor of them, and after the death of the survivor, upon trust to sell and invest the proceeds, and “to pay the income thereof from time 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, K.C. (with him J. H. Pigot), for the appellant:—

The question for decision is whether a gift simply for the celebration of Masses for the souls of the dead is a valid charitable

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 analogous 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. Powerscourt (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-smid (9); Michel'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 an 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 religious 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 in 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, sess. 3, c. 1, after enumerating several

classes of charitable uses, contains the general words “or for any other like lawful and charitable use and uses, warranted by the laws of this realm now established and in force,” and treats 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, previously to the Reformation, have been held to be charitable and not merely pious, for these gifts created perpetuities; and unless they were held to be charitable, and therefore exceptions to the rule against perpetuities, they must have been held to be void, for the law abhorred perpetuities: Co. Litt., 223a; 2 Vern., 164.

The common law as to Masses for the dead was altered in England by the Statute of Chauntries, 1 Edw. 6, c. 14, which declared uses for the celebration of Masses and for prayers for the souls of the dead to be superstitious, and declared the lands limited to such uses forfeited to the King. The statute applied only to such uses: Adams and Lambert'sCase (2). After the Reformation a charitable foundation for saying Mass is adjudged to be performed by saying the service according to the Liturgy: Co. Litt., 95b; Bacon's Abr. Charitable Uses and Mortmain (D).

The decision in West v. Shuttleworth (3) and the other English cases in which gifts for Masses were held to be superstitious and therefore illegal, were founded either on the express enactment of the statute 1 Edw. 6 or on the analogy of that statute. The 1 Edw. 6 did not extend to Ireland. By the repeal of the penal laws subsequently passed, the charitable character of gifts for

Masses, which the law recognised before the Reformation, was revived, and gifts for Masses in Ireland were again held to be charitable. The decision in The Commissioners of Charitable Donations and Bequests v. Walsh (1) establishes this. That case not merely decided that gifts for Masses are valid; it also involved the decision that gifts for Masses are charitable, irrespective of the mode in which the Masses are to be celebrated. There is no indication that the decision which held the gifts for Masses to be charitable at all depended upon a direction, express or implied, that the Masses should be celebrated in public. The Master of the Rolls in Read v. Hodgens (2) held that the question was concluded by the decision in The Commissioners of Charitable Donations and Bequests v. Walsh (1), and on the authority of that decision he upheld a bequest of residue which the testator directed “to be expended for Masses for my soul's sake.” In neither case was any importance attached to the mode of celebrating the Masses. It was first suggested in the judgment in The Attorney-General v. Delaney (3), though not actually decided in that case, that the charitable purpose in a gift in Ireland for Masses is to be found in the edification of the public congregation attending an act of public worship; and that to make such a bequest charitable, there must be a direction for the celebration of the Masses in public. In The Attorney-General v. Hall (4) this Court decided that a bequest for Masses to be publicly celebrated in Ireland is a valid charitable bequest. In his judgment, Lord Justice Fitz Gibbon considered the foundation of the law that bequests for Masses are valid in Ireland “in order to see whether it is possible to base their validity upon any principle which will not also establish their charitable character, irrespective of the mode of celebration”: The Attorney-General v. Hall (4). When dealing with the decision of Lord Manners in The Commissioners of Charitable Donations and Bequests v. Walsh (1), and of Blackburne, M.R., in Read v. Hodgens (2), the Lord Justice says (p. 444):— “I cannot believe that the charitable or non-charitable character of the bequests was regarded by either of these Judges as depending upon the mode of celebrating the Masses; and I am almost forced to the conclusion that both Judges upheld the bequests as being charitable. If Lord Manners did so, I think it clear that Blackburne, M.R., thought he was doing likewise.” Lord Justice Walker held that the decree of Lord Manners is framed on the assumption that the bequests were not only legal but charitable. These judgments are inconsistent with the ratio decidendi in The Attorney-General v. Delaney (1). There is in a bequest for Masses a charitable purpose other than...

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    • Melbourne University Law Review Vol. 35 No. 3, December 2011
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