BEQUESTS FOR MASSES

New Zealand Tablet, 27 October 1910, Page 1769

BEQUESTS FOR MASSES

AN IMPORTANT JUDGMENT According to a judgment given in Wellington last week, bequests for Masses for the repose of the soul of a deceased person are valid in New Zealand. The case over which the question arose occurred at Palmerston North, one Mary Sellars (deceased), in her will, directing her trustee to expend a certain sum in having Masses offered for her soul in the parish of Palmerston North. The question nut to his Honor for decision was whether that trust and direction was valid. In England, said his Honor, such a trust and direction would be void as a superstitious use, for a gift of property secured or appointed for and towards (inter alia) the maintenance of . a priest or other man to pray for the soul of any dead man in a church or elsewhere or to maintain perpetual obits, lamps, torches, etc., to be used at certain times to save the souls of men out of purgatory had been by a long line of decisions of the English Courts of Chancery and common law held to be void and to be what was termed a 1 superstitious use.’ His Honor went on to deal exhaustively with the law of England on the subject. Such bequests were not only legal, but were enforceable before the Reformation and the illegality, and such uses therefore appeared to have arisen not from the common law of England, but from statute, and the original statute was 23 Henry VIII., C 10, the principal Act, however, being the Edward VI., C 14. Why such gifts were invalid in England was because of the statute, but that distinguished judge. Sir John Romilly, found it difficult to give a logical reason for continuing this prohibition. In the case of in re Michels Trust 28, Beav. 39, he said, speaking of West v. Shuttleworth: ‘I have always felt this difficulty so far as relates to their places for religious worship and the property held therewith, that Roman Catholics and Jews are now placed in the same position as Protestant Dissenters, and if it be a part of the forms of their religion that their prayers should be said for the benefit of the souls of deceased persons it would be difficult to say that as a religious ceremony practised by a dissenting class of religionists it could be deemed superstitious in the legal sense in which these words were used prior to the passing of the statutes in question, which practically have authorised them. He added: ‘ln the time of Edward VI. and Elizabeth the ceremony of Mass was considered superstitious, and I do not know that the law made any distinction between Masses generally and Masses for souls or any distinction between those said for the general purpose and object of their religion in the worship of God, and those which are for more limited objects which were formerly considered, and which the court, now considering them in a Protestant point of view, still regard as superstitious.’ ‘ Can it then be said,’ asked his Honor, ‘ that a statute, the existence of which is, even in England, where there is a State church, an anomaly since the passing of the Acts of 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 administration of justice. There is no State church here. The Anglican Church in New Zealand is in no sense a State church. It is one of the numerous religious denominations existing in the Dominion, and although no doubt it has a very large membership it stands legally on no higher ground than any of the other religious denominations in New Zealand. As was said by the Judicial Committee of the Privy Council in Long v. the Bishop of Capetown, the Church of England in places where there is no church established by law is in the same situation with any other religious body, in no better but in no worse position. The Roman Catholic' Church is therefore in New Zealand in the same legal position as the Anglican Church or any other religious denomination. Its adherents have always been present in considerable numbers in New Zealand; it bas its churches in every considerable town in the Dominion, and its forms of worship, its creed, and 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 appears to me is the case, the true ground upon which- what is called a superstitious use” is in England' 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 could not 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 bodv, such a statute can never have been reasonably applicable or suitable to the circumstances of New Zealand. The tenets of the Roman Catholic Church are not illegal and the saying of Masses for the repose of the soul of a dead person cannot, in my opinion, be said to be against public policy or immoral.’ His Honor held that the bequest was a good charitable use, and that it was a valid gift.