Re Greene, Deceased; Fennelly v Cheator and Others

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 17 July 1914
• Court: Chancery Division (Ireland)
• Docket Number: (1914. No. 351.)
• Date: 17 July 1914

In Re Greene,

Deceased;

Fennelly

and

Cheator and Others.

M. R.

(1914. No. 351.)

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.

1914.

Charity — Bequest to monastic order — Validity — Bequest or the decoration or improvement of the Roman Catholic Church of the Carmelite Fathers — Roman Catholic Relief Act, 1829 (10 Geo. 4, c. 7).

Held, that the bequest was a valid charitable bequest, and was not void under the Roman Catholic Relief Act, 1829.

Carbery v. Cox, 3 Ir. Ch. R. 231;Sims v. Quinlan, 16 Ir. Ch. R. 191, 17 Ir. Ch. R. 43;Kehoe v. Wilson, 7 L. R. Ir. 10;Liston v. Keegan, 9 L. R. Ir. 539;Roche v. M'Dermott, [1901] 1 I. R. 394;Hearn v. Donnellan, [1901] 1 I. R. at p. 402, note;Murphy v. Hynes, [1906] 1 I. R. 505—considered.

Originating Summons.

The testatrix, Mary Eleanor Greene, by her will, dated the 27th October, 1913, directed that the residue of her estate, after providing for pecuniary legacies and for the payment of her debts, and funeral and testamentary expenses, should be

invested, and the income thereof paid to Isabella Molloy during her life, and that after her death the said investments should be realized and applied in equal shares for the decoration or improvement of the Roman Catholic Church of the Carmelite Fathers at Clarendon Street, in the city of Dublin, and the Roman Catholic parish church of St. Alphonsus, Ballybrack, in the county of Dublin. By a codicil dated the 28th October, the testatrix declared that all such parts of her property that should be subject to any devise or bequest that should be declared void or inoperative by reason of the same being declared illegal, or by reason of her death within three months of executing her will, should become the absolute property of the Most Reverend William J. Walsh, Roman Catholic Archbishop of Dublin. The testatrix died on the 31st October, 1913, and her will was proved by the plaintiff, who was one of the executors and trustees therein named, on the 15th January, 1914.

This summons was taken out by the plaintiff for the determination (inter alia) of the question whether or not the above bequest was void as to the moiety thereof bequeathed for the decoration or improvement of the church of the Carmelite Fathers at Clarendon Street, under the policy of the Roman Catholic Relief Act, 1829.

A. E. Clery, for the plaintiff:—

Pigot, K.C., for the Carmelite community, Clarendon Street:—

A gift of a sum of money to decorate and improve a church, Attorney-General v. Ruper (1), or for the perpetual repair of ornaments in a church, Hoare v. Osborne (2), is charitable within the Statute 43 Eliz. c. 4. At common law a gift to a monastic church in the form, e.g. of a gift “to God, and St. Benet of Ramsey Abbey, and the Abbot Walter and the monks of St. Benet,” was pious, and therefore charitable, unless illegal: Pollock and Maitland, History of English Law, vol. i, 222, cited by Palles, C.B., in O'Hanlon v. Logue (3).

The test of illegality is the object of the donor to benefit, directly or indirectly, the members of a monastic community as such: see Sims v. Quinlan (4), where Brady, C., says, “Is

not then a devise or bequest, which is intended to operate for the purpose of enabling a person to commit a misdemeanor, within the provisions and scope of the Act by which that misdemeanor is created, and as such prohibited as the crime itself? It appears to me that the bequest in the present case has naturally the effect of aiding and encouraging another person to violate the law, and is within the doctrines applicable to such offences.” The bequest to which the Lord Chancellor refers was one of £500 “to be applied for the maintenance and education of two priests of the order of St. Dominick in Ireland.” In Carbery v. Cox (1) the first gift of £20 yearly to the monks of Shandon, “to provide clothing for the poor children attending their school,” was held good on the ground that “the school … and the children who should attend it, were those in the contemplation of the testator”: per Blackburne, C., Carbery v. Cox (2). See also Cussen v. Hynes (3), judgment of FitzGibbon, L.J.

But an illegal community may take a bequest expressly devoted to a lawful purpose: per FitzGibbon, L.J., in Cussen v. Hynes (4).

Kehoe v. Wilson (5) and Liston v. Keegan (6) are apparently against me; but in the first of these Chatterton, V.-C., decided against the validity of the bequest partly on the ground (see p. 17) that if the legacies had not been given, the monks would have had to provide the money for the chapels out of their own funds. In the present case the object of the bequest is the decoration or improvement of the church, which involves no necessary expense, while in Kehoe v. Wilson (5), the objects of the bequests were, the repair and maintenance of churches belonging to a monastic order, the acquisition of the site of such a church, and the building of such churches. In Liston v. Keegan (6) the point was never argued, the only question discussed being whether the Vincentian Order was “a religious community or society bound by religious or monastic vows,” to whom the prohibition of the Roman Catholic Relief Act (10 Geo. 4, c. 7) applied.

If the object of the bequest is held to be lawful, the Court of Chancery has jurisdiction to see that the money is applied to that object: see per Barry, L.J., in In re Wilkinson's Trusts (1). [He also referred to In re Smith, Johnson v. Bright-Smith (2).]

Murnaghan, for the Most Rev. William J. Walsh, Roman Catholic Archbishop of Dublin:—

I do not wish to dispute the validity of the bequest, but in the event of its being held void by the Court, I claim under the codicil.

Rearden, for the Attorney-General.

Cur. adv. vult.

A testatrix by her will directed that portion of the residue of her estate should be applied “for the decoration or improvement of the Roman Catholic Church of the Carmelite Fathers at Clarendon Street, in the city of Dublin.”

O'Connor, M.R.:—

In this matter a summons was issued for the purpose, among others, of determining whether the bequest contained in the will of Mary Eleanor Greene, dated the 27th October, 1912, of one moiety of her residuary estate for the decoration or improvement of the Roman Catholic Church of the Carmelite Fathers at Clarendon Street, in the city of Dublin, is void.

The church is a public church, in the sense that it is used for public worship. It is, however, the private property of individual priests, who are Carmelites, and are members of a community of men bound by monastic vows.

A bequest for the decoration or improvement of a church is, without doubt, a valid charitable bequest, and the invalidity of the bequest in the present case must arise, if at all, from the fact that the church in Clarendon Street is the property of a monastic community.

Until recently, it would occur to most of us that the last word had been said upon bequests of the character I have mentioned, and that it had been settled by a long line of authorities, beginning with Carbery v. Cox (3), that a devise or bequest for the benefit of a church or chapel belonging to monastics is void as against the policy of the Roman Catholic Relief Act. But a judgment, which has attracted the attention of lawyers, and excited a good deal of interest, has lately been pronounced by Mr. Justice Joyce in the High Court in England in In re Smith, Johnson v. Bright-Smith (2), in which the Irish authorities have

been very adversely dealt with. His judgment is, of course, not binding on this Court; but the opinion of an eminent English judge must always carry weight, and in the present case imposes the necessity of once more investigating the authorities on this branch of the law of charities, which has overshadowed the legal rights of monastic orders of men.

It is scarcely necessary to refer in detail to the sections of the Roman Catholic Relief Act (10 Geo. 4, c. 7) which deal with monastic bodies. Over and over again they have been cited. Suffice it to say that they provided for the “gradual suppression and final prohibition” of such bodies in the United Kingdom, and in order to effect that object they imposed severe penalties—fines, imprisonment, banishment, and transportation—for certain offences enumerated by the statute, viz.:— “Non-registration of members already within the realm, coming into the realm, admitting any person into a monastic order, or entering any such order.” Such are the penal provisions of a statute which is generally called “The Emancipation Act.” These penal provisions are, however, part of the law of the land, and this Court has nothing to say to their justice or injustice. The law, as it is found, must be enforced.

It is, however, a principle of the criminal law that the criminal is only liable to the penalty imposed by the appropriate statute or by the common law. Once he pays that penalty he is free. So, in the enforcement of the penal provisions of the Roman Catholic Relief Act, monastics became liable to the penalties thereby imposed, but to none other. This is the point which is emphasized in the judgment of Mr. Justice Joyce, to which I have referred.

Bearing this in mind, it is difficult to see how in principle a bequest for the decoration or improvement of a church is void by reason of its being the property of a monastic body. No doubt that body is, under the Act, liable to be “gradually suppressed and finally prohibited”; but the ways and means provided for...