MASSES FOR THE DEAD.

Dominion, Volume 4, Issue 950, 18 October 1910, Page 6

MASSES FOR THE DEAD.

LEGAL ASPECTS. VALIDITY OF A BEQUEST. JUDICIALLY AFFIEMED. An interesting question' which is of actual importance to a .large section of. tho community was dealt with in a judgment delivered by Mr. Justice Cooper in tho Supreme Court yesterday morning. Tho case was the first in, which a judge in this. country had been asked to decide whether a bequest of money to pay for masses to be performed for the repose, of tho soul of a deceased person is void in law. . His Honour's' answer to this question was. in the negative,. au'd the special trust with which .the case was concerned is thus legally confirmed. The plaintiff, was .Michael Corriganj executor of tho iwill of the. late Mary Sellars, and" the defendants. were Archbishop Eedwood and 'the Eev.., Father Quealey, Eoman Catholic parish priest of Palmerston North. 'At the' hearing, at Palmerston last, month, Mr. J. P. Innis appeared: for the'plaintiff, Mr. P. E. Baldwin ( for Archbishop Eedwood:and Father Quealey; and Mr.,D- ,M. Findlay for the Public Trustee, representing the next of Mn of the deceased.' .- The testatrix, after disposing ' of onb half,,of her property, bequeathed, the other half -to her 'executor arid trustee, with the following: trust, and:direction:— "AndVas to the other, half thereof,' -I direct that.-my. trustee- shall .'expend the samein having .masses" offered, up /for my.: soul in the parish : of , Palmerston North each- week, until.. such portion of my said. estate ■• shall (have; been so ex-; pended.':'And'T desire that- my trustee shall have'-' such'.',masses announced publicly from', the .altar, land that, the prayers of the- people 'of,the Palmerston North-Eoirian Catholic/Parish, be asked for me.": : /:; .' ' -." '.V ■ -. Would be Void in England. ~; His'; Honour, /in ' his; judgnierit,. stated that" in .'England; such 'a-: trust,arid direc : tion would -be viiid -as a; superstitious use, for. a-gift of jjroporty.;secured or .appointed for "and; towards "(inter aBa); the mairifenance'bf ,a priest or other man to pray .'for tho soul of any dead i hi an in a. church "or, .elsewhere,.or..to ' mairitaifl perpetual. obits, "lariips,."torches, etc., ito .be"used at certain, times to; .save/,.the souls of; men out 'of; prirgatory; had been by a, long liiie/of decisions, of. the'Eng-' lish; Courts :,'bf' Chancery; and ;. Coinmon Law held to be void, arid to bo what was .termed-; a "superstitious; use." Tho illegality'of -such. ; uses, appeared .to.". :haye 'arisen;.', not'.,'from, the-;.common law.. ;'of England; but .'.'from; certain: statutes lof Henry.Vlll: arid: Edward -YI:. The result .of.'a/long'.scries; of /'decisions was that, a' class, 'ofVtrrist'•which 'had Jbeen," called trusts for • "supErstitious'.uses" had been prohibi ted. ! by. these statutes.. The tnist"--contained:, in this will;was pno of. shch class... The geneiic definition;of a "superstitious.: use", might,'-'however, be said-'.to: be "a usb;':whic:E,;has:fPr ats'object.;the: propagation;of .the"rites of a' riot tolerated by.-,law;/'/; ': ;.:. : -■ • ..' ; /.'.;, / |MJnde'r''Th.a Ban.", ,'"- By .analogy ;to ; ' thb; statutes, of' Henry arid bf Edward 1 many;rises,and"trusts now, enforceable/were for/ a long.p'eriod.held;to -be;. l illegal. -.Dissenters-from' the./ State' Church,' arid Roinari,.Catholics, arid Jcws, ; and other "sects, .were .for; a 'long/period under .the ban of ;the law, - and bequests for the; maintenance /or.assistance of their, ■places of worship; school's, .'and institu-. tions, arid.'for .the support. of ! their; ministers and/priests'were;'at- one; time,held; to; be 'vbid;as;suporstitipns u|ses.. In 'Ehg"land the': rigour; 'of; the/'law had; been -gradually /relaxed..; The/'disabilities'. of .Di'ssenterS'i bf E'omari;Catholics, of Jews,, and 1 of'bther.sects,'.had.by;vai'ipus Toler-: atiori Acts been, mainly reriioved, but : :'in ■ England/ a' gift; to -a 'priest;of' the Eoman. Catholic Church;for/masses-:for the soul :of /the - donor; was' still void,/ and' was, declared-, to be. so as recently as' 1891, : by llr.-Justice North.: In Iroland'these gifts, were now valid. ' They were one time void, not because;of the. statutes of Henry and : Edward, for' these' Acts were", .-never in; operation''in Ireland;'".but", because,:until" 1793 -the": practice of ; the Eoman/ Catholic, religion in' that' country '.was .proscribed," by statute..-When in that year, the penal statutes'werb;repealed, ;the'.reason for' the, illegality, of.' such, gifts.Ceased, and : since then there was a series "of decisions, in the Irish Courts'upholding such/gifts..;,; ;; '; -/English Law :i|i: New ; Zealand;; : ; The Irish cases had,' however, only' an indirect bearing upon • the question whether tho statutes of' 23 Hen.. .8, • and ■ 1 Edw.' 6,':. were. in force : iri; New Zealand; for by,our English Laws-Acts (now consolidated .'in-the .EriglishXaws: Act, ,1908) the' laws of : England;/ as existing - on, Jari.uary: 14, 1810, "so far ;as tho .same wore in force in New - Zealand' on 1908, and so''far as they "are applicable to the circumstances of New.Zealand, are in* force iri: Now Zealand,' and. shall tinue-to ;ho applied therein in the: adriiinistration of. justice.",' The. expression 'laws of England" l included so: much, of, the English statute'.law existing ori.'Jan-, uary 14,': .1810,.' as was"; then applicable, to' the circumstances, of/the colony;,and;as the statutes referred .to; were with, certain ■' modifications still, existing .statutes,: the question was whether, ;these statutes, asinlerpreted by the English Courts,, apZealand.. ;■•■; ;. .;■;::._.:,:. . "Can it then be/said,,, asked' his' Honour,: after a further review: o f. the. historical "position in. England, "that: a statute, the existence of ..which, is, even; I" in '-■ England, where 'there is ;a _ State Church, an- anomaly .since the passing: of theActsxif Toleration, was applicable to the circumstances,of .New Zealand when the -colony: .was founded, "or -is suitable; to the: Dominion now;. or that its provisions oUght' to be applied here in. the. adminis-, tration: of justice?:' •;.":.. ,-. '■--;;-. -

; / Churches, Equal Hflre,/ // : ''There as' no: State. Church hereJ:■ The.; Anglican Church, is in'Now-Zealand in no. sense' a State/ Church; it: is ;6ne :of> tho' numerous religious'denominations existing in.'the Dominion,' aid, although no doubt it has,'a very .-largo.-.membership, it stands, legally on, no higher, .ground, than any of the other religious denominations : in/ New ■ Zealand; ■-■' As wris :s'aid by' the Judicial ,Committee;of ,'the. % Privy Council in Long v. the Bishop of .Cape Town,;'tho Church ;bf .England, in .places where there is no' Church established •: by law, is- in' the same: situation with '.anyother religious body—in : no-better, but in no worse position/ The, Roman Cath-. olic .Church" is,/therefore, in New Zealand: in the same legal .position as, the Anglican Church ,or any other religious Its adherents have always been present in considerable numbers'm New 'Zealand. It has. its'.churches in every considerable town • in the: Dominion, • and- its forms of'worship, .'its creed.ahd tenets are not in any way, under the ban of the law. Bequests to and for, the support of. -this' Church ' ought to : stand on the/same footing; as bequests to .any other religious; denomination recognised' by law. :• If, as' it appeal's ,to me,is..the ca'sei the ■ true ground upon, which what is called a '.'superstitious use'.is in Eng 7 land void, is that such a bequest has for its object: the propagation of a religion not.tolerated by law, then, as that reason originated in ancient English statute law passed under circumstances which couldnot have had any application save' in England, and under conditions which could never . at any time .arise'.in/New Zealand; where one .religious body can have no legal predominance over another religious body, such a statute can never have been reasonably applicable' or suitable to the circumstances: of New Zealand.' Tho tenets of the Roman Catholic Church are not illegal, and the saying of masses for the reposo of the soul; of a dead person cannot, in my opinion, be said toDe'against public policy,'or im-. moral.- Protestants do not behove in the efficacy of such masses, or subscribe to the doctrino of purgatory, but members of the Roman Catholic Church do, and there are many thousands in New Zealand." ./■-.:.".■' [ Mass as a Public Benefit. Tho statutes forbidding such trusts as that in question in' this case not being (in his Honour's opinion) in force in New Zealand, the fomaining question was whethere Che bequest was'a good olmritable U c o An effective charitable use might bo'defined to be (inter .aim) ,a bequest for tho advancement < of. rollgKm. 'Religion " of course, meant- a religion which was not contrary to tho law of the land. "Every celebration of mass/' pursued his Honour, "is offered up for all the faithful, living and dead. It is the tmcet'Solenui'officiai actrof worship jUKtho^

Eotnan Catholic Church; it can only be celebrated by ordained priests of the Church, and, according to tho creed of every member of that' .Church, tho Mass, whenever and wherever regularly celebrated in accordance with the law of the Church, results in benefit and deification to all, the faithful. According, therefore, to tho religious belief of Boman Catholics, the celebration of the Mass, whether or not it includes, prayers for the repose.of the soul of,a particular person,' is an act of religion done by a public minister of their Church, and is for'the spiritual advantage of all, and, according to their belief,, confers a public benefit on all who hear it. As the Roman Catholic Faith is a lawful religion, and its tenets are : lawful tenets, a bequest to that Church, or to a particular priest of that Church, for masses for the dead, is, therefore, where, such bequest is not prohibited by statute, in my opinion, an effective pharitable use, the priest receiving the gift for and on account of and for. the benefit of tho Church.' .;.. ;.

A Valid Gift. . ..';.- "This being the belief cherished by the members of the Kbman Catholic. Church, the Court must act'upon it./It is not; unlawful, though its soundness is .disunited by other sections,of the Christian Church, and the bequest is consequently a. valid .gift"; . •-, As- the proceedings were necessary, to determine the legality of the bequest, his Honour made the ; usual order allowing the costs of all parties, including; .the costs of the Public Trustee, '.'to be, taxed ;as' between solicitor and client,, and directing them to bo paid out of. the estate of the .deceased. ~.. - .; '