Mary Read and Mary Moran v Robert Hodgens

• Jurisdiction: Ireland
• Judgment Date: 07 November 1844
• Date: 07 November 1844
• Court: Rolls Court (Ireland)

Rolls.

MARY READ and MARY MORAN

and

ROBERT HODGENS.

Adams and Lambert's caseENR 4 Coke, 104, b.

West v. ShuttleworthENR 2 My. & K. 684.

The Attorney-General v. The Fishmongers' CompanyENR 2 Beavan, 151.

De Themmines v. De BonnevalENR 5 Russ. 288.

Ommany v. Butcher 1 Tur. & Russ. 260.

Attorney-General v. JohnstoneENR Ambler, 577.

Porter's caseENR 1 Coke, 28, a.

Adams v. Lambert 4 Co. 113, a.

Smart v. Prujeam 6 Ves. 560.

Cary v. Abbott 7 Ves. 490.

The King v. Lady PortingtonENR 1 Salk. 162.

West v. ShuttleworthENR 2 My. & K. 684.

Felan v. RusselUNK 4 Ir. Eq. Rep. 701.

Attorney-General v. Power 1 B. & Bea. 145.

Cook v. OakleyENR 1 P. Wms. 302.

Trafford v. Berrege 1 Eq. Ca. ab. 201.

Timewell v. PerkinsENR 2 Atk. 103.

Rawlings v. Jennings 13 Ves. 39.

Easum v. ApplefordENR 5 My. & Cr. 59.

Mary Shelmer's case Gilb. Eq. Rep. 200.

Asgill v. Asgill 1 Tur. & Russ. 265, n.

Gallini v. NobleENR 3 Mer. 691.

Gosden v. DotterillENR 1 My. & K. 56.

Cavendish v. CavendishENR 1 Cox, 77.

Trafford v. Berrege Eq. Ca. Abr. 201.

Timewell v. PerkinsENR 2 Atk. 103.

Rawlings v. Jennings 13 Ves. 39.

Davers v. DewsENR 3 P. Wms. 40.

Attorney-General v. JohnstoneENR Amb. 577.

De Themmines v. BonnevalENR 5 Russ. 288.

Lady Portington's caseENR 1 Salk. 162.

Hogan v. Jackson Cowp. 299.

Campbell v. Prescott 15 Ves. 507.

Michell v. MichellUNK 5 Mad. 71.

Parker v. Marchant 1 Y. & Col. V. C. Rep. 290.

Saumarey v. SaumareyENR 4 My. & Cr. 340.

Church v. Mundy 15 Ves. 406.

Hotham v. Sutton 15 Ves. 319.

Hearne v. WiggintonUNK 6 Mad. 119.

Walsh v. Gladstone 1 Philips, 290.

CASES IN EQUITY. 17 1844. MARY READ and MARY MORAN. V. ROBERT HODGENS. THIS suit was instituted by the plaintiffs as next-of-kin of the Rev. N. K. by his will, after be- Nicholas Kearns, late of Rathfarnham in the county of Dublin, Roman queathing i'e Catholic Parish Priest, against the defendant, the acting executor under gaeies and di- recting his the will. debts to be The bill stated that the said Nicholas Kearns was at the time of his paid, ordered all his effects death possessed of considerable personal estate, consisting of household to be sold by and an , auction furniture and effects; cash to the amount of between 200 and 300; such money or Grand Canal and other debentures in his own possession, and in the valuables as he should die possession of the defendant Robert Hodgens in trust for him ; and of possessed of to Royal Canal and Government Stock in his own name, and in that of be handed over to D., to be others in trust for him ; and that he made and published his will in applied to the us M. K. writing bearing date the 5th of September 1827, and after bequeathing toe aof certain several legacies therein particularly mentioned, and after nominating the amount during her life ; and Rev. Patrick Duigenan and the said Robert Hodgens his executors, he if after her de-bequeathed as follows :-" And I further order and direct that all my mise any resi due remained, "effects be sold by auction, and all such money or valuables as I may such residue to be exended in " die possessed of, be handed over to the Rev. Mr. Duigenan of Meath- masseps for his "street aforesaid, to be by him applied to the use and benefit of my soul's sake ; and directed a "sister Mary Kenny, widow, weekly or monthly, a certain sum according security in the "to his judgment and discretion, not exceeding twenty guineas per hands of J. O' N. to be ap " annum or thereabouts, taking care to see the rent of her apartment plied as above directed. "y "regularly paid over and above the said twenty guineas ; and if, after her Royal Canal " demise, there remains any residue, I direct such residue to be expended stock is to be sold ; also, my "form asses for my soul's sake in case of my death in a foreign country.* Grand Canal " I trust Mr. Hodgens will recover any money that may remain of the debentures, as necessity may "letter of credit which he has had the goodness to obtain from John require, at the " O'Neill, Esq., to be applied as above directed ; my Royal Canal Stock discretion of my eeu- "is to be sold; also, my Grand Canal Debentures, as necessity may tors." Held, that the whole "require, at the discretion of my executors or executor above-men- of the residue, " tioned:' including the stock and de That the testator died at Rathfarnham on or about the 17th of May bentures, was 1832, without having altered or revoked his will; and that the said disposed of un- der the resi- duary clause, and passed to the executors on the death of M. K. Held also, that the bequest for masses for the testator's soul was valid, and not void as a superstitions use. There being no punctuation in this part of the will, it did not appear whether this contingency was referable to the preceding or subsequent clause. 18 CASES IN EQUITY. Robert Hodgens (the said Patrick Duigenan having died in the lifetime of the testator) duly proved the will and took upon himself the executorÂÂship thereof, and possessed himself of the entire of the personal estate and effects of the testator ; and which was much more than sufficient to discharge his debts and legacies. The bill charged that after payment of the debts, funeral expenses and legacies, there remained in the hands of the defendant a residue of conÂÂsiderable value ; that the said Mary Kenny died on or about the 20th of May 1840 ; and that after her decease the plaintiffs, as the only next-ofÂÂkin of the testator, were entitled to the residue of the estate and effects of the testator in equal shares and proportions, " inasmuch as the bequest, "in the will of the said testator contained, of the said residue for masses "for the sake of the soul of the said testator in case of his death in a "foreign country, never came into operation in consequence of the said " testator having died at Rathfarnham in the county of Dublin ; and "further, that even independently of the fact of the death of the said " testator in this country, the said bequest of the said residue for masses "for the sake of the soul of the said testator was void and of none effect, "as being a gift for superstitious purposes, and therefore contrary to the "policy of the law ; and that no charitable purpose having been indicated " by the said testator in relation to the said gift of the said residue, that "said gift failed altogether ; and that the said residue having been conÂÂ" sequently undisposed of by the will of the said testator, belonged to "and was divisible between the plaintiffs, as the only next-of-kin of the " said testator." The bill prayed for the usual account of the personal estate and effects of the testator, and that the clear residue might be ascertained ; and the defendant be decreed to pay to each of the plaintiffs a moiety thereof. To this bill the defendant demurred, and the cause now came on to be heard upon the demurrer. Mr. Deasy, for the demurrer.-Two questions are involved in the demurrer. First, upon the words of the will, whether the bequest ever came into operation, inasmuch as it is alleged that the words "in case of my death in a foreign country," are connected with the bequest for masses immediately preceding; and are the condition or event upon the happening of which the bequest was to arise : secondly, if the bequest did come into operation, was it one which the Court would give validity to, or consider as contrary to the policy of the law, and void as being for superÂÂstitious uses?-[Counsel for the plaintiffs having intimated that they did not mean to rely on the first point, it was not further noticed during the arguments.]-As to the second question, we submit that there is nothing to interfere with or render such a gift invalid. There is no statute in this country forbidding such bequests, either expressly or by implication ; and CASES IN EQUITY. 19 there is no principle of the common law which they contravene. There are certainly decisions and dicta of Judges in England, which would apparently lead to the conclusion that such bequests were contrary to the policy of the law : but they have reference to a law which does not exist in this country. The English statute 1 Edw. 6, c. 14, contains in the preamble a recital " That the devising and phantasying of vain " opinions of purgatory, and of masses satisfactory to those who were " dead, was great cause of superstition and error in the Christian " religion ;" and then it prohibits the application of property to certain uses specified therein, and " other like uses." So that by the preamble, the Legislature condemned bequests similar to that now under consideraÂÂtion, although they omitted to include them expressly in the enacting parts of the Act. The first case to be found on the subject of prayers for the soul, is Adams and Lambert's case (a); and it is there resolved (113 a) that, "although the maintenance and sustentation of poor men was good, yet " the maintenance of them to pray for souls was superstitious, and was " prohibited by the said Act ; and although these prayers are not appointed "to be made in any church, chapel, &c., or other public oratory, yet it " was resolved that it was prohibited by the said Act, or (as some held) " directly within the words of the clause concerning obits, scilicet, anniver sary, or obit, or other like thing, intent or purpose, and praying for "souls is a like intent or purpose to an anniversary or obit, for all was "to pray for souls, or (as others held) by the equity of the said Act, which " intended to extirpate all praying for souls." This case is clearly put on the law as then first established by the statute, bringing the case within the words " other like uses ;" and in all the subsequent cases, the Judges refer their decisions to that statute, and not to any general policy of the law against such bequests. In the case of West v. Shuttleworth (b), in which there was, amongst other legacies, a bequest of money to certain Roman Catholic priests...