Moore deceased; Moore v The Pope

• Jurisdiction: Ireland
• Judgment Date: 17 June 1919
• Date: 17 June 1919
• Court: Chancery Division (Ireland)

Moore v. The Pope.

In re MOORE, Deceased. MOORE

and

HIS HOLINESS POPE BENEDICT XV

Will - Uncertainty - Charitable Bequest - Bequest to the Pope "to use in

the carrying out of the sacred office."

Bequest of "£10,000 to His Holiness . . . the Pope . . . to use and apply at his sole and absolute discretion in the carrying out of the sacred office."

Held, void, as being applicable to purposes not strictly charitable and possibly illegal.

Originating Summons.

Andrew Moore died on the 1st of July, 1917, having made his last will, which contained the following:—"I bequeath the following legacies, that is to say, £10,000 to His Holiness Pope Pius X, or in the event of his death during my lifetime, his successor who shall be Pope at the time of my death, or should there be an interregnum, to the Pope who shall be then next elected within five years after my death, to use and apply at his sole and absolute discretion in the carrying out of the sacred office; and I hereby declare that the receipt of His Holiness entitled to the said legacy, or of the Cardinal Secretary of State at the Vatican, for and on behalf of His Holiness, shall be a sufficient discharge to my said trustees."

The executor brought the present summons for the determination of the questions as to the validity or otherwise of the bequest.

Cur. adv. vult.

Powell J.:—

This is an application on the part of Christopher Moore, the executor of Andrew Moore, late of Church Street, Athlone, in the county of Westmeath, merchant and farmer, that certain questions arising in the administration under the will and codicil of the deceased may be determined.

1. The first question is whether a legacy of £10,000 bequeathed by the testator's will to His Holiness the Pope, to which I shall particularly refer in a moment:—"£10,000 to His Holiness Pope Pius the Tenth, or in the event of his death during my lifetime, his successor who shall be Pope at the time of my death, or should there be an interregnum, to the Pope who shall be then next elected within five years after my death, to use and apply at his sole and absolute discretion in the carrying out of the sacred office; and I hereby declare that the receipt of His Holiness entitled to the said legacy, or of the Cardinal Secretary of State at the Vatican, or and on behalf of His Holiness, shall be a sufficient discharge to my said trustees,"is a legacy to His Holiness Pope Benedict the Fifteenth, who was the Pope at the time of the testator's death, for His Holiness's own absolute use and benefit, or a legacy to His Holiness upon a trust.

2. If the said legacy is a legacy upon a trust, is the trust created by the said will a valid trust?

3. That the defendants Margaret Moore and John Moore may, if necessary, be appointed to represent the interest of the persons entitled to the residue of the testator's estate. At the hearing I made an order to this effect.

The affidavit of the executor, Mr. Christopher Moore, states that his brother, the deceased, Andrew Moore, late of Church Street, Athlone, in the county of Westmeath, died on the 1st July, 1917, his will being dated the 1st August, 1911, and a codicil thereto dated the 27th October, 1914, probate whereof was granted to him, as executor, on the 12th October, 1917. He states that His Holiness Pope Pius the Tenth predeceased the testator, and that Pope Benedict the Fifteenth, the present supreme pontiff, was Pope at the death of the testator. He states that the persons contingently interested in the £10,000, the amount of the legacy, in case the gift in the will failed, included four minor children, namely, Mary Renahan, formerly Mary Moore, Catherine Moore, Thomas Moore, and Joseph Moore, children of the deceased's brother, William Moore, mentioned in the residuary bequest in the codicil dated the 27th October, 1914.

The gross value of the personal estate of the deceased for the purposes of estate duty appears to have amounted to £23,179 18s. 10d. The pecuniary charitable legacies bequeathed by the will, irrespective of the legacy in question in this matter, amount to the sum of £6,700 (about).

The bequest upon which the opinion of the Court is asked is as follows:—"I bequeath the following legacies, that is to say, £10,000 to His Holiness Pope Pius the Tenth, or in the event of his death during my lifetime, his successor who shall be Pope at the time of my death, or should there be an interregnum, to the Pope who shall be then next elected within five years after my death, to use and apply at his sole and absolute discretion in the carrying out of the sacred office; and I hereby declare that the receipt of His Holiness entitled to the said legacy, or of the Cardinal Secretary of State at the Vatican, for and on behalf of His Holiness, shall be a sufficient discharge to my said trustees."

Mr. M'Cann and Mr. Pigot, on behalf of His Holiness the Pope, contend that this is a good charitable legacy to him in his official capacity as supreme pastor of the Church, whose paramount duty and aim, as Mr.M'Cann puts it, is the spread of the Gospel, to which end, he says, there are various ancillary means, including teaching, organization, and discipline. He says that even if the words "to use and apply at his sole and absolute discretion in the carrying out of the sacred office" were absent, and that the gift were "to His Holiness the Pope," it would be a good charitable gift, the overriding purpose being the promotion of religion. It is not contended that the gift is one for the personal benefit of the particular successor of Pope Pius the Tenth who should be Pope at the time of the death of the testator, and who in fact was Pope Benedict the Fifteenth, the present Pope; and indeed it is quite apparent that the Pope was not intended to take any personal benefit, but was designated as the holder of the office of supreme pontiff.

Mr. O'Brien and Mr. Bacon, for the residuary legatees, contend that this is a bequest to His Holiness in trust; that the object and purpose of the trust is, as stated in the will, "the carrying out of the sacred office" of Pope; that the bequest is void as tending to create a perpetuity for a non-charitable purpose; that it is void for uncertainty; that it is void as being contrary to public policy, because it might be devoted to objects contrary to public policy.

Extremely able arguments were put forward by counsel on both sides. The case is in every aspect a most important one. I have given every consideration to the arguments, to the cases cited by counsel, and to many other decided cases, and I fear I must deal with the question which I have to determine at some length. In the first instance, I will deal with the principal authority cited by Mr. M'Cann in support of the validity of the bequest: Attorney-Generalv. Gladstone(1). In that case the testator gave to the Rev. Thomas Robertson £15,000, to be by him applied for the use of Roman Catholic priests in and near London at his absolute discretion. The Rev. Thomas Robertson died in the testator's lifetime, and it was held that the legacy was not void for uncertainty, and did not lapse by reason of the Rev. Thomas Robertson's death in the testator's lifetime, but was good as a charitable legacy, and that it must be applied for the benefit of persons filling the character of Roman Catholic priests in and near London at the testator's death, and afterwards according to a scheme to be approved of by the Master. It was contended by counsel for the defendant in that case that the testator intended to benefit only Roman Catholic priests existing in and near London at his death, and that the word "near" was so indefinite that it was impossible for the Court to say judicially what it meant; that the subject of the bequest was to be applied according to the absolute discretion of the Rev. Thomas Robertson, which it could not be, as that gentleman had died in the testator's lifetime.

The argument of counsel for the relators was that the testator

intended the legacy to be a permanent endowment for the support of the clergy of the Roman Catholic Church in London and its neighbourhood, the benefit of which was ultimately to enure to their congregations; and it was so held by Shadwell V.-C., and being a gift for a charitable purpose, it was held that any difficulty with regard to its application could be solved by directing a scheme to be approved by the Master.

It will be seen that the decision in this case turned entirely upon the particular words of the legacy in question and other legacies contained in the same will. It was not disputed that the legacy was a charitable one. In the present case one of the matters which I have to decide is whether this is a charitable legacy within the legal definition of the words. The bequest is not an endowment for the Pope, the benefit of which was ultimately to enure for a congregation, but it is for the purpose of the carrying out of the office of the Pope.

In Corcoran v. O'Kane(1) the bequest was as follows:—"At my wife's demise I desire that the two houses become the property of the parish priest of Urney on condition of paying £10 yearly to my brother's son Patrick, and also £1 yearly for Masses for the repose of the souls of the deceased members of the family."The testator died two days after the execution of the will. He was the owner in fee of the devised property. His widow died twenty-three years afterwards, on the 22nd February, 1911. At that date the priest of the parish of Urney was the third in succession in charge of the parish since the testator's death. It was held by Mr. Justice Barton that the devise of the freehold house property to the parish priest was a charitable devise, and therefore void as contravening the provisions of sect. 16 of the Charitable Donations and Bequests Act, the testator having died within three months from the date of the will. It was argued there that the devise was not a charitable...