creed or sect of religion," it was considered a valid charitable use, and held to constitute the executors of the will trustees for its application, although they were not named trustees in the residuary clause.26

A penitentiary has been held to be a charitable institution.27 A gift to build and maintain a life saving station;28 for the increase and encouragement of good servants;29 "to give shelter to homeless people at night irrespective of creed, color, or condition",30 to the American Peace Society to be expended in the cause of peace;31 for the maintenance and extension of a botanical garden;32 for the relief of the great suffering, distress, famine, and want caused by the destruction of life and property by storms, floods, fires, and other accidental and natural causes,33 and for the best essays in statistics with reference to the testator's writings on the subject,31 have all been held to be for charitable purposes.

§ 1125. Superstitious Uses and Trusts: English Rule.

At one time, in England, a gift to promote a religious faith contrary to statute, was void.35 Bequests in favor of the Roman Catholic religion were unlawful.36 About

26 Claypool v. Norcross, 42 N. J. Eq. 545, 9 Atl. 112.

27 State v. Board of Comrs. of Laramie County, 8 Wyo. 104, 55 Pac. 451.

28 Richardson v. Mullery, 200 Mass. 247, 86 N. E. 319.

29 Loscombe v. Wintringham, 13 Beav. 87, 51 Eng. Reprint 34.

30 In re Croxall, 162 Pa. St. 579, 29 Atl. 759.

31 Tappan v. Deblois, 45 Me. 122.

32 Lackland v. Walker, 151 Mo. 210, 52 S. W. 414.

33 Kronshage v. Varrell, 120 Wis. 161, 97 N. W. 928.

34 Thompson v. Thompson, 1 Coll. 381, 63 Eng. Reprint 464.

85 De Themmines v. De Bonneval, 5 Russ. 288; Da Costa v. De Pas, Ambl. 228.

See, also Lusk v. Lewis, 32 Miss. 297; Finley v. Hunter, 2 Strob. Eq. (S. C.) 208, 218; Johnson v. Clark. son, 3 Rich. Eq. (S. C.) 305.

36 Cary v. Abbot, 7 Ves. Jun. 490.

Catholics were placed on the same footing as Protestants by

the time of the Reformation, statutes were enacted to prevent the disposition of property to uses which were then held to be superstitious.37 Such uses were not, however, within the letter of the statute, but were held to be contrary to the policy of the law.38 Thus, bequests to be expended in having masses said for the repose of the testator's soul, maintaining obit lamps, or for similar purposes, are held void.39

40

In Ireland, while bequests for masses for the benefit of the testator have been held valid, they are not charitable and therefore must not contravene the rule against perpetuities.11

§ 1126. Masses for Repose of Souls of the Dead: American Rule. In the United States, under our political institutions which maintain and enforce absolute separation of church and state and the utmost freedom of religious thought

the statute of 2 & 3 Wm. 4, ch. 115, and Jews by the statute of 9 & 10 Vict., ch. 59.

37 By the statute of 23 Hen. VIII, ch. 10, gifts "thereafter" made of lands declared to such uses, as having perpetual obits or the continual services of a priest, or similar uses, were void.

The statute of 1 Edw. VI, ch. 14, forfeited to the king all real property and certain corporate personal property "theretofore" disposed of for the perpetual finding of a priest, or for the maintenance of an obit or lights or similar matters of ceremony.

38 Cary v. Abbot, 7 Ves. Jun. 490, 495.

See, also, Attorney General v.

Baxter, 1 Eq. Cas. Ab. 96, pl. 9;
Attorney General v. Pearson, 3
Mer. 353.

39 Adams v. Lambert's Case, 4
Coke 104b; Hart v. Brewer, Cro.
Eliz. 449; West v. Shuttleworth, 2
Myl. & K. 684; Attorney General v.
Fishmonger's Co., 2 Beav. 151;
Blundell's Trusts, 30 Beav. 360,
8. c. 31 L. J. Ch. 52; Yeap v. Ong.
L. R. 6 P. C. 381, 396.

40 Read v. Hodgens, 7 Ir. Eq. 17; Charitable Donation Comrs. V. Walsh, 7 Ir. Ch. 24.

The rule is the same in Canada, see Elmsley v. Madden, 18 Grant Ch. (U. C.) 386.

10.

41 Kehoe v. Wilson, L. R. 7 Ir.

and action, the English doctrine as to superstitious uses has never obtained. If a bequest to be expended for such a purpose as having masses said for the repose of the souls of the dead, can otherwise be supported under recognized rules of law, it will not be assailed as giving effect to the religious superstitions of the donor. Such bequests, however, partake of the nature of trusts and can not generally be treated as gifts to the churches themselves.48

45

Gifts to procure masses to be said for the souls of the dead are held valid." There is, however, a diversity of opinion as to the nature of such trusts, one line of cases holding them to be good as charitable trusts, 15 another holding them to be private trusts;16 and still another holding them to be good as outright gifts for a specified legal object.17

Where the bequest is to be expended only for masses for the repose of the testator's soul, it can not be a gift to charity since the beneficiary is specified, and a charity is for the benefit of an indefinite number. It may, how

ligious ceremony, and is therefore a religious or pious use and is a public charity as distinguished from a private charity, which it might be if restricted to the masses for the souls of designated persons.-Ackerman V. Fichter,

179 Ind. 392, Ann. Cas. 1915D, 1117, 46 L. R. A. (N. S.) 221, 101 N. E. 493.

44 Ex parte Schouler, 134 Mass. 426; Hagenmeyer v. Hanselman, 2 Demar. (N. Y.) 87; In re Hagenmeyer's Will, 12 Abb. N. C. (N. Y.) 432.

45 Hoeffer v. Clogan, 171 Ill. 462, 63 Am. St. Rep. 241, 40 L. R. A. 730, 49 N. E. 527; Ackerman v. Fichter, 179 Ind. 392, Ann. Cas. 1915D, 1117, 46 L. R. A. (N. S.) 221, 101 N. E. 493; In re Schouler, 134 Mass. 426; Webster v. Sughrow, 69 N. H. 380, 48 L. R. A. 100, 45 Atl. 139; Kerrigan v. Tabb, (N. J.) 39 Atl. 701.

In construing a bequest for masses "for the repose of all poor

souls," the court says: "The beneficiaries are all poor souls, not the souls of the poor; but as we understand it, all souls are regarded as poor souls, objects, or subjects of mediation in their behalf, and if so all come within the classification, indefinite both as to persons and numbers, and this brings the devise within the doctrine of pious or charitable uses, or a public charity, if otherwise sustainable." -Ackerman v. Fichter, 179 Ind. 392, Ann. Cas. 1915D, 1117, 46 L. R. A. (N. S.) 221, 101 N. E. 493.

46 Moran v. Moran, 104 Iowa 216, 65 Am. St. Rep. 443, 39 L. R. A. 204, 73 N. W. 617; McHugh v. McCole, 97 Wis. 166, 65 Am. St. Rep. 106, 40 L. R. A. 724, 72 N. W. 631.

47 Estate of Lennon, 152 Cal. 327, 125 Am. St. Rep. 58, 14 Ann. Cas. 1024, 92 Pac. 870; Harrison v. Brophy, 59 Kan. 1, 40 L. R. A. 721, 51 Pac. 883; Sherman V. Baker, 20 R. I. 446, 40 L. R. A. 717, 40 Atl. 11.

1

ever, be valid as an ordinary trust and be enforced as such.48

§ 1127. Religious and Pious Uses,

Bequests for religion and religious purposes go back in judicial history, and it has been universally held that a religious purpose is a charitable purpose. Promotion of religious opinions, circulation of religious literature, maintenance of the clergy, preaching and spread of the gospel are charitable.""