The Right Hon. The Attorney-General for Ireland, Informant; The Rev. John Hall and Patrick Byrne, Defendants

• Jurisdiction: Ireland
• Judgment Date: 21 February 1896
• Date: 21 February 1896
• Court: Exchequer Division (Ireland)

The Right Hon. The Attorney-General For Ireland

Informant

and

The Rev. John Hall And Patrick Byrne

Defendants.

Ex. Div.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1896.

Charitable bequest — Masses for the repose of testator's soul — Celebration publicly in Roman Catholic Church — Purpose merely charitable—5 & 6 Vict. c. 82, s. 38 — Legacy duty — Exemption.

A bequest to a Roman Catholic priest, to be applied for masses to be celebrated publicly in a specified Roman Catholic Church in Ireland for the repose of the testator's soul, is a valid charitable bequest, and exempt from legacy duty under the 38th section of the 5 & 6 Vict. c. 82.

Information to obtain a declaration that the defendants were bound to pay legacy duty on each of the following sums bequeathed by the will and codicil thereto, both next hereinafter referred to, of Christopher Cusack, now deceased, viz.:—(a) A sum of £50 to the Superior for the time being of the Society of Roman Catholic clergymen connected with the Roman Catholic Church in Clarendon-street, to be applied for masses for the repose of the testator's soul and of his wife's soul, to be celebrated publicly in said church; (b) a sum of £50 to the Superior for the time being of the Society of Roman Catholic clergymen connected with the Roman Catholic Church in Whitefriar-street, to be applied for masses to be celebrated publicly in said church for the repose of the testator's soul and of the soul of his wife; (c) a sum of £50 to the Rev. Father Walshe or other the Roman Catholic Parish Priest for the time being of SS. Michael and John's Roman Catholic Chapel, to be applied for masses to be celebrated publicly in said chapel for the repose of the testator's soul and of the soul of his wife; (d) a sum of £100 to the Superior for the time being of the Carmelite Church, Clarendon-street, to be devoted to the cleansing of the church; and (e) a sum of £100 to the Superior for the time being of the Carmelite Church, Whitefriar-street, to be devoted to the cleansing of the church.

Christopher Cusack, late of No. 30 Clarendon-street, in the city of Dublin, duly made and published his last will, dated the 7th February, 1884, whereby he bequeathed the following amongst other pecuniary legacies, viz.:—“To the Superior for the time being of the Society of Roman Catholic clergymen connected with the Roman Catholic Church in Clarendon-street, £50, to be applied for masses for the repose of my soul and my wife's soul, to be celebrated publicly in said church; to the Superior for the time being of the Society of Roman Catholic clergymen connected with the Roman Catholic Church in Whitefriar-street, £50, to be applied for masses to be celebrated publicly in said church for the repose of my soul and the soul of my wife; to the Rev. Father Walshe or other the Roman Catholic Parish Priest for the time being of SS. Michael and John's Roman Catholic Chapel, £50, to be applied for masses to be celebrated publicly in said chapel for the repose of my soul and the soul of my wife.” And testator thereby appointed the defendants his executors.

The testator made a codicil dated the 25th December, 1885, to his said will, and he thereby directed his executors to pay the entire income derivable from his property to his wife for life, in addition to the legacy he had given her, and out of the residue of his property to pay the following, amongst other additional bequests, viz.:—“To the Superior for the time being of the Carmelite Church, Clarendon-street, the sum of £100 to be devoted to the cleansing of the Church; to the Superior for the time being of the Carmelite Church, Whitefriar-street, the sum of £100 to be devoted to the cleansing of the church.”

By his said codicil the said Christopher Cusack directed his executors, the defendants, out of the residue of his property to pay the legacy duties on the respective legacies bequeathed by his said will and codicil.

The said testator died on or about the 9th March, 1887, without having previously revoked or altered his will and codicil; and probate of the said will and codicil was, on the 1st April, 1887, granted to the defendants, the Rev. J. Hall, and P. Byrne.

The defendants by their answer stated “that the Roman Catholic Church in Clarendon-street in the city of Dublin, the Roman Catholic Church in Whitefriar-street, and SS. Michael and John's Roman Catholic Chapel in the said will and codicil specified are public churches and places of worship in the city of Dublin, and are daily open and are used for the purposes of public worship, and while so used are open for all members of the public. And the defendants stated that they refused to pay legacy duty on the said sums of £50, £50, and £50, or any of them, on the grounds that the said legacies are legacies ‘given for a purpose merely charitable’ in Ireland within the meaning of the statute 5 & 6 Vict. c. 82, s. 38, and as such are not chargeable with legacy duty, and that they refuse to pay the legacy duty claimed on the said sums of £100 and £100, respectively bequeathed by the said codicil to the will of the said Christopher Cusack deceased, on the grounds that the said legacies of £100 and £100 bequeathed by the said codicil are legacies given for a ‘purpose merely charitable’ in Ireland within the meaning of the statute 5 & 6 Vict. c. 82, s. 38, and are as such not chargeable with legacy duty.”

The defendants submitted that legacy duty is not payable in respect of the said legacies or any of them.

The Attorney-General (the Right Hon. J. Atkinson, Q. C.), (with him The Solicitor-General (Kenny, Q.C.), and C. E. Mac Dermot), in support of the information:—

[Counsel stated that the Inland Revenue did not propose to contest the question of legacy duty in respect of the bequests (d) and (e).]

The question for the Court was, Were the bequests (a), (b) and (c), in the nature of charities within the meaning of the statute 5 & 6 Vict. c. 82, s. 38, so as to exempt them from the payment of the duty? The Inland Revenue Commissioners submitted that these bequests were not charities, and that accordingly they were liable to payment of the duty. It was not contended that a bequest for masses was invalid, nor that such a bequest was in the nature of a “superstitious use,” nor that a bequest to promote any form of Christian religion was not charitable; but it was submitted that a bequest for masses to be said for the repose of the soul of a particular individual was not a charity, and therefore liable to duty like any ordinary bequest. To make a bequest charitable it must be shown that some public advantage to mankind was contemplated by the testator. In The Attorney-General v. Delaney (1) the Lord Chief Baron suggested that if the bequest were for masses to be celebrated in public, he might hold that such a bequest was charitable. But in that case there was no direction that the masses were to be said publicly; and it was held that the bequest was not charitable. The other members of the Court did not express any opinion on the point suggested. In Beresford v. Jervis (2) and M'Court v. Burnett (3) the late Sir E. Sullivan, M.R., held that certain bequests for masses for the repose of the souls of particular individuals were void. In Kehoe v. Wilson (4) the Vice-Chancellor held that a bequest for masses to be said publicly was void. That decision is distinctly applicable here. It was followed by the Master of the Rolls in Perry v. Tuomey (5), an identically similar case; though the Master of the Rolls in his judgment suggested that were it not for Kehoe v. Wilson (4) he might have decided otherwise. The offering of the mass for the repose of the soul of a deceased individual involved an intention on the part of the priest celebrating it; and it was therefore a merely mental act. A mental act could not be enforced by any legal process; and therefore it could not be a charity, one of the essential ingredients of which was that it could be enforced by process of the Court of Chancery. [Counsel read the supplemental answer of Right Rev. Dr. Delaney in The Attorney-General v. Delaney (1).] The Court of Chancery could not enforce the trust; for although it could ascertain whether the masses were said or not, it could not ascertain whether they were said with a particular object and intention in the mind of the celebrant. [Counsel cited Burke's Estate (6).] The main and paramount purpose of the testator was to have masses said for the benefit of his own soul and the soul of his wife: his primary intent was to effect a private benefit, and his secondary intent was to effect his primary intent in such a way that the public could assist at the services; but there was no legal means of enforcing the primary intent. The history of the matter appears to have commenced with The Commissioners of Charitable Donations and Bequests v. Walsh

(1). But after the suggestion thrown out by the Lord Chief Baron in The Attorney-General v. Delaney (2) conveyancers added the clause requiring public celebration to drafts of wills. A charity, recognizable by Courts of Equity, implied a trust; and a trust was something which could be enforced; but the trust for the saying these masses in public could not be enforced, for everything depended on the mental act of the priest. Therefore this bequest could not be a charity. The doctrine of cy pres did not apply. As to the failure of a trust, see Fisk v. The Attorney-General (3).

A gift for any form of religious devotion or public edification would be charitable, provided it was expressly dedicated to the public interest; but such was not the intention of the testator in this case. A bequest to build a church would be charitable, for that would be distinctly in the interest of the public. But the testator expressed no...