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

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judgment Date: 24 January 1897
• Date: 24 January 1897

The Right Hon The Attorney-General For Ireland

Informant

and

The Rev John Hall and Patrick Byrne

Defendants (1).

Appeal.

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.

1897.

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

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.

Appeal by the informant from the decision of the Exchequer Division, reported [1896] 2 I. R. p. 291, where the facts are fully set out.

The Attorney-General and The Solicitor-General (with them Charles MacDermot), for the appellant:—

The question is whether, if a testator bequeaths a certain sum to a clergyman to have Masses said for the repose of his soul, the bequest becomes a charity by reason of the testator directing the masses to be said in public. The Commissioners of Charitable Donations and Bequests v. Walsh (2) decides that such a bequest is not invalid, i. e. that it is not a superstitious use. In The Attorney-General v. Delaney (3) Palles, C.B., suggested for the first time, that if a bequest for having Masses said were coupled with a direction that the masses should be said in public, the bequest would become charitable, inasmuch as it would thus tend to public edification. In that case, however, there was no such direction, and as the Masses might be said in private, without departing from the testator's will, the Chief Baron held that the bequests in that case were not charitable. Fitz Gerald, B., concurred in the judgment of the Chief Baron, but desired not to be understood as

expressing any opinion that in the case of a bequest for Masses to be said in public for the souls of the dead, the decision of the Court would have been different. Dowse, B., also guarded himself against being supposed to decide the question so raised by the Chief Baron. Indeed, Palles, C.B., himself said:—“It is not necessary, for the purpose of our judgment in the present case, to pronounce any decision on that question, and I expressly guarded myself against being understood as doing so. I merely stated that which is, at present, the leaning of my opinion on the question; but I hold myself perfectly free to alter that opinion, if the case should ever come before me.” In Beresford v. Jervis (1) there was a bequest for Masses, without an express provision that they were to be said in public, though there was something which came very near it, viz. a direction that they were to be said in the chapel at Wexford at particular times. The case came before Sullivan, M.R., who referred to The Attorney-General v. Delaney (2) as a decision of the greatest weight. He pointed out that, on the terms of the will before him, the testatrix intended to create a perpetuity; that the only distinction which could be drawn between the will before him and that before the Exchequer was that the testatrix directed the Masses to be said in the chapel at Wexford, and he held that this was no substantial distinction, and that therefore the bequest was not charitable. With reference to the question suggested by Palles, C.B., he says:—“I hold myself free to determine, when the question arises, whether if a testatrix directs Masses to be said for individual souls, and directs them to be said in public, that, as a charitable gift, stands or falls. That question will be decided when the point is properly raised.” M'Court v. Bennett (3) is also a decision by Sullivan, M.R., on a bequest for Masses, which was held void as attempting to create a perpetuity, without being a charity. The bequest there was to the clergymen of a cathedral church, as trustees, who were to apply the income of the trust fund “in having three Masses offered up in the said cathedral church on each Sunday in the year” for the repose of the souls of the testator, his wife, and brother. This was plainly a direction that the Masses were to be said in public: yet the Master of the Rolls held the bequest was not a charitable bequest. There is a distinction between that case and the present. The clergymen named there were trustees who were to invest the legacy and apply the income not for their own benefit, but in having the Masses offered in the cathedral church. In the present case it is a bequest to a particular individual to say Masses, and on the authorities the gift is good to him as a beneficiary. In Kehoe v. Wilson (1) there was a bequest for Masses, which it was provided should be said in public. Chatterton, V.-C., held that the bequest was not charitable. [Fitz Gibbon, L. J.: But there the Masses were directed to be said for the benefit of the members of the Third Order of Franciscans. Does not that make a difference?] No. The decision of the Vice-Chancellor went directly on the point whether the direction to say the Masses in a public church open for public worship at the time rendered the bequest charitable by reason of the opportunity it afforded for public edification. The decision of the Vice-Chancellor is that such a direction does render the bequest a charity. The case is therefore an express authority on the question now before the Court. We admit that Perry v. Tuomey (2) is an authority the other way, because there Porter, M.R., said that but for the decision of Chatterton, V.-C., in Kehoe v. Wilson (1) he would have held that the direction to say the Masses in public appended to a bequest for Masses made the bequest a valid charity. The same question had again come before the Vice-Chancellor in Reichenbach v. Quinn (3). The Vice-Chancellor again decided that a bequest to a priest for Masses to be said in public for the testator's soul was not a charity, but that it was a valid gift as to the beneficiary, which it would not be if he got it only as trustee. Lastly, in Brannigan v. Murphy (4) the Master of the Rolls followed his previous decision in Perry v. Tuomey (2). Such was the state of the authorities bearing on this question when the present case was argued in the Exchequer Division. The Chief Baron had suggested that the direction to say the Masses in public might make the bequest charitable; but he had guarded himself against being supposed to decide the question and he had stated that he held himself quite free to decide against the suggestion if the case ever came before him. Fitzgerald and Dowse, BB., had guarded themselves against being supposed to have decided the point. Sullivan, M.R., treated the point as quite open. The Vice-Chancellor had decided the question in the negative, and the Master of the Rolls, though following the Vice-Chancellor, had intimated that his own opinion was in favour of holding such a bequest coupled with the direction for public celebration of the Masses a valid charitable bequest. Yet a great part of the judgment of the Chief Baron in the Court below (1) is taken up with showing that he is not entitled to the credit of having suggested the importance of the distinction created by the direction for public celebration, that when he and Fitzgerald and Dowse, BB., and Sullivan, M.R., referred to the question as still open and undecided, they were all in blank ignorance it had been decided fifty years before in The Commissioners of Charitable Donations and Bequests v. Walsh (2): that the decision of the Vice-Chancellor in Kehoe v. Wilson (3) was at variance with Lord Manners' decision in Walsh'sCase (2), so that the Master of the Rolls, when yielding his own opinion in Perry v. Tuomey (4) and Brannigan v. Murphy (5) to that expressed by the Vice-Chancellor in Kehoe v. Wilson (3), was not aware that the point was actually decided in favour of the view he himself held by the prior authority of Lord Manners' decision in Walsh'sCase (2).

The language of Lord St. Leonards in the case of Incorporated Society v. Richards (6) shows that the statutory law defining charitable uses, 43 Eliz. c. 4 (Eng.) and 10 Chas. 1, s. 3, c. 1 (Ir.), is virtually the same in England and Ireland, with one important exception, viz. that the Act of Charles provides “for the maintenance of any minister and preacher of the Holy Word of God,” which was purposely omitted from the Statute of Elizabeth. This view of the law is adopted by Lord Halsbury, C., in The Commissioners, &c., of Income Tax v. Pemsel (7). The English cases

on charities, therefore, apply in Ireland so far as they do not turn on the law against superstitious uses: 1 Ed. 6, c. 14 (Eng.), there being no analogous statute in this country.

The provision in the statute of Charles “for the maintenance of any minister or preacher of the Holy Word of God” is of importance in this case, especially having regard to Bishop Delaney's affidavit, where he says:—“Such honoraria for Masses form portion of the ordinary income and means of livelihood of priests, and are generally in Ireland distributed by those to whom the distribution is entrusted, amongst priests whose circumstances are such that they stand in need of the assistance so offered.” The Chief Baron asks: “What difference do you make between this and a bequest to maintain public worship?” The answer is: A bequest to say Masses, per se, without a provision that they are to be said in public, has never been held to be a charity within the meaning of the words, “For the maintenance of any minister and preacher, &c.” That the bequest is not a charity under these words in the statute is plain from the cases cited in which bequests for Masses have been held void; a bequest of money to a priest or a body of priests, for the...