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 MASSES

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MASSES

purpose in question as being lor superstitious uses, has always been treated as inapplicable. The vahdity of such bequests was maintained in an elaborate judg- ment of Hodgins, Master of the Rolls, in an unreported case of Gillis and Gillis in Prince Edward Island in

1894. ChAS. J. DOHERTY.

Masses, Bequests for (England). — Before the Reformation dispositions of property, whether real or personal, for the purposes of Masses, were valid, unless where, in the case of real property, they might happen to conflict with the Mortmain laws by being made to religious congregations. There was a tenure of land known as tenure by divine service, an incident of which was the saying of Masses and of prayers for the dead. The Statute of Westminster, 31 Edward III, c. 1 1, contained a provision that the administrators of an intestate should be able to recover by action debts due to the intestate and that they should administer and dispense for the soul of the dead. The wills of various great people who lived in those ages contain bequests for Masses. Henry VII left £250 for 10,000 Masses to be said for his and other souls. The will of Henry VIII, made on 30 December, 1546, contains a provision for an altar over his tomb in St. George's Chapel in Windsor, where daily Mass shall be said " as long as the world shall indure", and it sets out a grant to the dean and canons of the chapel of lands to the value of £600 a year for ever to find two priests to say Mass and to keep four obits yearly and to give alms for the King's soul: and it contains other provisions for requiem masses and prayers for his soul. But in a. d. 1531, by the statute 23, Henry VIII, c. 10, all subse- quent assurances or dispositions of land to the use of a perpetual obit (i. e. a service for the dead to be cele- brated at certain fixed periods) or the continual ser- vice of a priest were to be void if the use was to extend over more than twenty years, but if the use was lim- ited to that or a less period the dispositions were to be valid. That even private Masses were at that time approved by the state is shown by the six articles passed in a. d. 1539 (32 Henry VIII, c. 14), which con- stituted the denial of their expediency a felony. Henry VIII died 28 January a. d. 1547. The change of religion became much more marked in the following reign, and the government fostered the es- tablishment in England of the Protestant doctrines which had begun to spread on the continent. In the same year the Six Articles were repealed and the Stat- ute of Chauntries (1 Edward VI, c. 14) was passed from which the invalidity of bequests for requiem Masses has been deduced. The preamble to the stat- ute recites that " a great part of the superstition and errors in the Christian religion hath been brought into the minds and estimation of men by reason of the ignorance of their very true and perfect salvation through the death of Jesus Christ and by devising and phantasying vain opinions of purgatory and mas.ses satisfactory to be done for them which be departed, the which doctrine and vain opinion by nothing more is maintained and uphold en than by the abuse of tren- tals, chauntries and other provisions made for the con- tinuance of the said blindness and ignorance." The statute, after further reciting that the property given to such uses ought to be devoted to the founding of schools and other good purposes, enacted that prop- erty given to such uses, which had been so used within the preceding five years, should be given to the king. The statute only applied to past dispositions of prop- erty and it did not declare the general illegality of be- quests for requiem Masses, nor has any other statute ever so declared (Gary v. Abbot, 1802, 7 Ves. 495). Nevertheless, the establishment of that principle has been deduced from it (West v. Shuttleworth, 1835, 2 M. & K. 679; Heath v. Chapman, 18.54, 2 Drew 423).

The statute was not repealed under Mary, and by 1 Eliz., c. 24, all property devoted to such uses in Mary's

reign was given to the crown. There is a series of cases on the question decided under Elizabeth, nota- bly that of Adams v. Lambert, decided in 1602, in the report of which the other cases are cited. Some of these decisions are slightly conflicting, but the main points to be drawn from the series are, first, that uses for Masses or prayers for the dead were held to be superstitions and unlawful, but, second, that the question of their unlawfulness was considered accord- ing as they came within the provisions of the Statute 1 Edward VI, c. 14. In that and the following oen- ttiry the Catholic religion was proscribed and any de- \'ise or bequest for the promotion of it was illegal and, as regarded the purpose thereof, void (Re Lady Por- tington 1692, 1 Salk 162). In the report of that case, as also in other later cases, the terms "superstitious" and "unlawful" appear to be applied indifferently to purposes for the maintenance of the Catholic religion. But dispositions for Catholic poor or Catholic schools or other Catholic purposes which might come under the general construction of "charity", passed to the crown to be devoted to other Imojul charitable pur- poses (Gary v. Abbot above). In 1829 the Roman Catholic Relief Act was passed, which contained, how- ever, in some of its sections still unrepealed, certain penal provisions against members of religious orders of men by reason of which the status of these orders in the United Kingdom is illegal. In 1832 the Roman Catholic Charities Act (2 and 3 William IV, c. 115) was passed. By it Catholics were, as regards their charitable purposes, put in the same position as that of Protestant dissenters. Therefore now, seemingly, a bequest for the celebration of Masses with no inten- tion for souls departed would be valid, and, moreover, it would constitute a good charitable bequest, and so, it would be valid though made in perpetuity (Re Michel's Trusts, 1860, 28 Beav. 42). But it has been held that the act has not validated bequests for re- quiem Masses, that the law still regards them as " su- perstitious" (West V. Shuttleworth above), that they do not constitute charitable bequests and that, accord- ingly, the property given under them passes to the person otherwise entitled (Heath v. Chapman above). This is the position of the law to-day with the ex- ception made by the Roman Catholic Charities Act, 1860, which pro\ades that no lawful devise or bequest to any t'atholic or Catholic Charity is to be invalidated because the estate devised or bequeathed is, also, sub- ject to any trust deemed to be superstitious or pro- hibited through being to religious orders of men, but such latter trust may be apportioned by the Court or the Charity Commissioners to some other lawful Catho- lic charitable trust. Thus, a trust for requiem Ma.sses is as such invalid, and where no question of apportion- ment can arise, for instance, where there is a specific legacy of money for the purpose only of such Masses, the estate which is subject to the trust does not pass to any charity but to the person otherwise entitled to it (Re Fleetwood, Sidgreaves v. Brewer, 1880, 15 Ch. D. 609). Also, a legacy for requiem Mas.ses is invalid even though the legacy be payable in a country where it would be legally valid (Re Elliot. 1891, .39 W. R. 297). The grounds on which this position of the law is based appear rather un.satisfactory. Admittedly, there is no direct statutory illegality. In the case of Heath v. Chapman (al)ove) Kindersley V. C. stated that the Statute I Edward VI, c. 14, assumed that trusts for Masses were already illegal — that they were in fact so — and that the statute has stamped f)n all such trusts, whether made before or since it, the char- acter of illegality on the ground of being snijcrstitious. Seeing that the statute was passed in the year of the death of Henry VII 1, within eight years of the passing of the Six Articles, and that during that t ime t here had been no statutory abolition of the Mass or condenma- tion of the doctrine of purgatory, it is not ea.sy to dis- cern how the legal invalidity_of such befpiests had al-