Sims v Quinlan

• Jurisdiction: Ireland
• Judgment Date: 03 November 1864
• Date: 03 November 1864
• Court: Rolls Court (Ireland)

SIMS

and

QUINLAN.

Rolls.

General v. GuiseENR 2 Vern. 266.

Da Costa v. De Pas 1 Ambl. 228.

Attorney-General v. BaxterENR 1 Vern. 248.

Rex v. PortingtonENR 1 Salk. 162.

Moggridge v. Thackwell 7 Ves. 75, 76.

Mills v. Farmer 19 Ves. 432.

Attorney-General v. DOwning Ambl. 571.

De Garcia v. Lawson 4 Ves. 433.

In Cary v. Abbott 7 Ves. 490.

Attorney-General v. Crooke 1 Keene, 121.

Attorney-General v. GladstoneENR 13 Sim. 7.

Walsh v. GladstoneENR1 Phil. 290.

Thornber v. Wilson 3 Dr. 245; 4 Dr. 351.

Attorney-General v. RupertENR 2 P. Wms. 245.

Attorney-General v. Hechs 2 Sm. & St. 76.

West v. Shuttleworth 2 M. & K. 698.

Heath v Chapman 2 Dr. 417.

Carbery v. CoxUNK 3 Ir. Ch. Rep. 235.

Daly v. The Attorney-GeneralUNK 11 Ir. Ch. Rep. 47.

Da Costa v. De pas 1 Ambl. 228.

Bowes v. Booth 2 W. Bl. 1226

Hide v. CoganENR 2 Dougl. 206.

Chop v. CollettENR 26 Beav. 105.

In re Blundell's Trusts 8 Jur., N. S. 5.

Peppershaw v. Varden 4 D. & Sm. 467.

De Themmines v. De BonnevalENR 5 Russ. 288.

Wheyatly Church case 4 Ves. 418.

Carbery v. Cox 3 Ir. Ch. Rep.

Cherry v. Mott 1 M. & Cr. 123.

Attorney-General v. LawesENR 8 Hare. 32.

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

Phelan v. RussellUNK 4 Ir. Eq. Rep. 701.

The Commissioners of Donations v. WalshUNK 7 Ir. Ch. Rep. 34. note.

Read v.HodgensUNK 7 Ir. Eq. Rep. 17.

Attorney-General v. DowningENR Wilm. 32.

Attorney-General v ToddENR 1 Keen. 803.

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

Chop v. CollettENR 26 Beav. 105.

De Themmines v. De BonnevalENR 5 Russ. 228.

Sir B. Read's caseUNK 4 Rep. 113.

The King v. Larwood 1 Lord Ray. 30.

Evans v. CassidyUNK 11 Ir. Eq. Rep. 249, 250.

Gates v. Jones 2 Ver. 266.

Smart v. Prujean 6 Ves. 567.

De Garcia v. Lawson 4 Ves., 2nd ed. 433, n.

Cary v. Abbott 7 Ves. 490.

Sir B. Read's caseUNK Referred to in 4 Rep. 113.

Middleton v. CaterUNK 4 B. C. C. 409.

Chapman v. Brown 6 Ves. 404.

Cary v. Abbott 7 Ves. 490.

Moggridge v. Thackwell 7 Ves. 75.

Attorney-General v. VintENR 3 De G. & Sm. 704.

Da Coata v. De PasENR Ambler, 228; S. C. 2 Swanst. 484.

De Garcia v. LawsonENR 4 Ves. 433, 2nd ed. : S. C., 1 Mer. 100.

Gates v. JonesENR 2 Vern. 266.

Cary v. Abbott7 Ves. 490.

Attorney-General v. VintENR 3 De G. & Sm. 704.

West v. Shuttleworth 2 M. & K. 698.

Tee v. Ferris 2 Kay. & J. 357.

Daly v. The Attorney-GeneralUNK 11 Ir. Ch. Rep. 45, 46.

CHANCERY REPORTS. 191 1864. SIMS v. QUINLAN. (In the Rolls.) tholomew Thomas Russell, of St. Saviour's Roman Catholic church, be carried out Dublin, or the survivors of them, to be applied as they shall deem eY-pres. But, if the bequest be best, for the maintenance and education of two priests of the order void, as being contrary to the of St. Dominick in Ireland." policy of the laws be- "I bequeath £500 to the Rev. Patrick Thomas Conway, of quest will irs gel be car St. Mary's priory, Cork, Roman Catholic clergyman." riednera out cylegatee,- The testator appointed James Richard Sims his residuary legatee, Pres. If a, testator and Jeremiah Quinlan and John Egan his executors, - show an in tention, not of The petition was filed by J. R. Sims, for the administration of general cha rity, but to the testator's assets, and was referred to Master Brooke under the give to some particular in- 1850. The Rev. R. White, the Rev. B. T. Russell, and the Rev. 15th section of the Court of Chancery (Ireland) Regulation Act issatoirmt uet ion in place, p a r t iacuud- P. T. Conway filed charges claiming the legacies bequeathed to sena cuhu eitntbeen ie et orn ied out, the them. The evidence applicable to the first bequest was shortly as rCourt will not follows :-The order of St. Dominick is a religious order of the hold that the gift is appli cable to cha rity generally; it will fail altogether. a will made in 1861, a testator bequeathed £500 to two Roman Catholic priests, and the survivor of them, to be applied, as they should deem best, for the education and maintenance of two priests of the order of St. Dominick in Ireland. Held, first, that the bequest was void, as contrary to the policy of the Roman Catholic Relief Act (10 G. 4, c. 7). Secondly ; that the bequest was for a general charitable purpose, and should by- carried out cy-pres under the sign manual. The testator bequeathed a legacy to a Roman Catholic priest, upon a secret trust, to apply it towards the redemption of the rent of a Roman Catholic church, held by certain Dominican monks as trustees, subject to a rent of £60, and which was very largely frequented, and was one of the ordinary and principal places of Roman Catholic worship in the city of Cork. Held-That the bequest was void, as contrary to the policy of the 10 G. 4, c. 7, and that, being confined to a particular charitable purpose, it could not be carried out cy-pres. 192 CHANCERY REPORTS. Church of Rome, bound by religious and monastic vows, and having establishments in Ireland consisting of members, some of whom were such on the 23rd of April 1829, the day when the Roman CaÂtholic Relief Act (10 G. 4, c. 7) came into operation. Mr. White and Mr. Russell, and a considerable number of other Dominican monks, delivered to the Clerks of the Peace of the several counties where the establishments to which they belonged were situated, the notice or statement required by the 28th section of the Catholic Relief Act (10 G. 4, c. 7), and the schedule annexed to the said Act. As to the legacy of £500 to the Rev. Thomas Patrick Conway, it was admitted by Mr. Conway that it was left to him on a secret trust. He stated that, in a conversation with the testator, the latter informed him that he had bequeathed, or would bequeath to him the sum of £500, and that the said sum was or would be so bequeathed to him to be applied in or towards the redemption of the rent of the Roman Catholic church or chapel known as St. Mary's church on Pope's-quay, in the city of Cork. It appeared that the church of St. Mary's is held by certain clergymen as trustees, subject to a yearly rent of £60, or thereabouts ; that Mr. Conway and the trustees were Dominican monks, and that the church is very largely frequented by the Catholics of Cork, and is one of the ordinary and principal places of Roman Catholic worship in the city of Cork. The Master, by an order of the 4th of March 1864, declared that the said bequests were void under the 10 G. 4, c. 7; and, being so void by the Statute Law, the sums thereby bequeathed formed part of the residuary fund of the testator. The legatees appealed from the Master's order. Argument. Mr. S. W. Flanagan, in support of the appeal. There is nothing in the express terms of the 10 G. 4, c. 7, or the Charitable Bequests Act (7 & 8 Vic., c. 97, s. 15), to invalidate these legacies. The former statute merely imposes disabilities on future members of religious orders, and subjects them to certain penalties and punishments ; but it contains no provision which incapacitates them from taking property. Therefore, to determine CHANCERY REPORTS. 193 the validity or invalidity of such a bequest, the Court must revert to 1864. Rolls. the law as it stood before the statute. A bequest to a popish priest was invalid in England, as contrary to the general policy of the law SIMS against superstitious uses : Gates v. Jones, cited in the Attorney- QUINLAN. General v. Guise (a). Gates v. Jones also establishes another Argument. proposition, viz., that where a devise or bequest is void as a superstiÂtious use, the property does not go to the heir or personal repreÂsentative, but should be applied by the King for charitable purposes. There is no greater invalidity in a bequest for the education of two priests of the order of St. Dominick than there was in the bequest to maintain popish priests in Gates v. Jones. The principle was affirmed by Lord Hardwicke, in Da Costa v. De Pas (b), with this distinction, that, where the devise is to a superstitious use, and made void by statute, or to a charity, and void by the Statute of 11/1orttnain, the property should belong to the heir-at-law or next-ofÂkin ; but where it is in itself a charity, but the mode in which it is to be disposed is such that by the Law of England it cannot take effect, there it is to be applied to a charitable purpose by the Crown under the sign manual. That was the case of a bequest for the maintenance of an assembly for teaching the Jewish law, and for advancing and propagating the Jewish religion ; and it was held void on the same ground as the devise in Gates v. Jones-viz., that it was to a superstitious use. The case is also reported in a note to 2 Swanst., p. 487, from Mr. Coxe's M.SS. The same principle is affirmed in the Attorney-General' v. Baxter (c), Rex v. PortÂington (d), and Moggridge v. Thackwell (e). Lord Eldon, in the latter case, comes to this general conclusion, after reviewing the cases on the subject [7 Yes. fun., p. 86] :-" I have great difficulty in my own mind, and have found great difficulty in the mind of every person I have consulted ; but the general principle thought most reconcilable to the cases is, that, where there is a general•indefinite purpose, not fixing itself on any object, as this in a degree does, the disposition is in the King by sign manual ; but (b) 1 Ambl. 228. (d) 1 Salk. 162. (e) 7 Vea. 75, 76. VOL. 16. 25 194 CHANCERY REPORTS. where the execution is to be by a trustee, with general or some objects pointed out-there the Court will take the administration of the trust." In Mills v. Farmer (a), Lord Eldon also held that the charity should be administered by the Court : Attorney-General v. Downing (b) ; De Garcia v. Lawson (c). In Cary v. Abbott (d), Sir W. Grant refers to and follows Gates v. Jones. There is a general charitable intent manifested in this will, which the Court will carry out cy-pres : Attorney-General v. Crooke (e); Attorney-General v. Gladstone (f); Walsh v. Gladstone (g); Thornber v...