ready become established. In West v. Shuttlewortli (above), wliicli is tlie loading case on the subject, Pepys M. U. stated that it was by analogj' to the stat- ute that the illegality of these becjuest-s had become es- tablished. This wimUl seem to mean that their ille- gality was based upon the general policy of the law and upon principles resulting from svich a change in the national .system as must have arisen in that age from the complete change in the national church. In that case, since the policy applied to the whole realm in- cluding Ireland, where Protestantism became the es- tablished church and an even more vigorous anti- Catholic policy was pursued by the legislature, one woukl expect to find the illegality of bequests for Masses established in Ireland also, though the statute itself did not apply to Ireland. Thus, in the case of the .\ttorney-General v. Power, l.SOit 1 1 B. it Ben. 150) Lord Manners, Irish Lord Chancellor, in giving judg- ment with regard t« a bc(|uest to a school by a Catho- lic testator, stated that he would not act upon the pre- sumption that it was for the endowment of a Catholic school, and that such a betpiest would by the law of England be deemed void either as being contrary to the pro\isions of the statute of Edward VI or as being against public policy. Yet the same Lord Chancellor, in the case of the Commissioners of Charitable Dona- tions v. Walsh, 1823, 7 Ir. Eq. 32, after a prolonged argument before him, held a bequest for requiem Masses to be good.
The ground of public policy in respect of this ques- tion seems no longer to hold good. There is no longer any pul)lic policy against Catholicism as such. As mentioned above, seemingly, a bequest for the mere celebration of Masses with no intention for souls de- parted would be valid. Moreover, seemingly, a bequest for the propagation of the doctrine of purgatory would be a good charitable bequest (Thornton v. Howe, 1862, 31 Beav. 19). Thus, since the Roman Catholic Charities Act 1832, putting Catholics as regards "their . . . charitable purposes" in the same position as other persons, the holiling a bequest for Masses for the dead to be invalid appears necessarily to imply that the bequest is not to a charitable purpose and thereby to involve the inconsistency that it is not a "charity" to practise by the exercise of a "charity" the doctrine which it is a "charity" to propagate. Yet this is so even though, by the bequest being for Masses to be said for the departed generally, there is evidence of an intention on the part of the testator of promoting more than his own individual welfare. Thus, appar- entlj', the real basis of the legal view of these bequests is that the law may not recognize the purpose of a spiritual benefit to one's fellow-creatures in an after existence intended by a person believing in the possi- bility of such a benefit. But such an attitude, apart from the inconsistency mentioned, seems to be op- posed to the present policy of the law with regard to religious opinions, especially when the act of worship directed by the bequest, when viewed apart from the particular believed effect, is approved by the law as a charity. Doubt as to the soundness of the present law on the subject was expressed by Romilly M. R, in the case Re Michels Trusts (above), where he upheld a Ix'tjuest for a Jewish prayer to be recited on the testa- tor's anniversary in perpetuity, there being no evidence that the prayer was to oe recited for the benefit of the testator's soul, and in the case re Blundell's Trusts, 18G1 (30 Beav. -362), where he considered himself com- pelled, in compliance with the judgment in West v. Shuttleworth (above), to disallow a bequest by a Catholic testator for recjuiem Masses, stating that the law declaring such bequests to be invalid had now l)e- come so established that only a judgment of the House of Lords could alter it. It would be desirable that the decision of that tribunal should be obtained on this question.
In Ireland bequests for requiem Masses have long
been regarded as valid, antl, by a recent decision giveti upon exhaustive consideration of the question by the Irish Court of Appeal, the law is .settled that sucn be- quests, even when the Masses are to be said in private, constitute good charitable gifts and so may be made in perpetuity (O'Hanlon v. Logue, 190(i, 1 Ir. 247). But in Ireland, also, religious orders of men are illegal and any bequest for Masses to such an order which is to go to the benefit of the order is illegal and void (Burke v. Power, 1905, 1 Ir. 123). But such a be- quest was allowed in one recent case, and in cases where the bequest for Masses contains no indication that the money is to go to the order itself the Court will allow the bequest (Bradshaw v. Jaekman, 1887, 21 L. R. Ir. 15). The decisions show a .strong general tendency to seek any means of escaping those penal provisions of the Catholic Relief Act, 1829, which, though never actively enforced, still remain on the statute book. This statutory illegality of any be- quest to a religious order of men to go to the benefit of the order applies, of course, equally to England and to Scotland, where these provisions against religious orders are also law, but there does not appear to be any report of any decision on the point in either of these countries.
In Scotland the position seems, otherwise, to be as follows: though, in the centuries succeeding the Ref- ormation the public policy was distinctly anti-Catho- lic and there was legislation (like the anti-Popery Act passed in 1700, which, amongst other provisions, penalized the hearing of Mass) directed against the Catholic religion, yet there seems to have been no Statute which has given rise to the question of "super- stition " on the special point of gifts for prayers for the dead. By an Act passed in 1793 Catholics in Scotland, who had made a declaration now no longer required, were put upon the same footing as other persons. The Catholic Charities Act, 1832, applied also to Scotland. The term "charity" is even rather more widely inter- preted in Scottish law than in English law. "rhus, in Scotland through the repeal of the legislation against Catholics and the legalization of bequests to their charitable purposes, legacies for requiem Masses seem to pass unquestioned. There is little doubt that, if they were to be challenged, the Courts would uphold them. In a recent case where there was a bequest for the celebration of Mass in perpetuity (there was no mention of any intention for the dead) the validity of the bequest was not in any w-ay called in question (Marquess of Bute's Trustees v. Marquess of Bute, 1904, 7 F. 42). The law as to superstitious uses pre- vailing in England is not taken to be imported into the laws of British colonies or possessions (Yeap v. Ong, 1875, L. R. 6 C. P. 396). In Australia, though by an Act of the British Parliament passed in 1828, all the laws and statutes in force in England at that date were, as far as possible, to be applied to the administration of justice in the Courts of the new Australasian Colonies, the law as to superstitious uses has been held by the Supreme Court of Victoria not to apply there (In the Will of Purcell, 1895, 21, V. L. R. 249). This de- cision was followed in the Supreme Court of New South Wales in 1907 (Re Hartnett, 7 S. R. 463). There is little doubt that the law which these cases declan' would be followed in all other Australian Colonies and in New Zealand. In India bequests for requiem Masses are valid (Das Merces v. Cones, 1864, 2 Hyde 65; Judah v. Judah, 1870, 2 B. L. R. 433).
Coke on Littleton 96 (b); Nichol. II'?7/s of the Kings and Queens of England and of members of the Blood Royal from Wil- liam the Conqueror to Henry I'// (London, 1780); Will of Kum Henry the Eighth from an authentic copy in the Hands of an Attor- ney (London, 1793); Duke on the Law of Charitable Ust.^, edited by Bridgman (London, 1805),
R. S. Nolan.
Masses, Devises and Bequests for (United States). — Prior to the period of the Reformation in England in 1532, Masses for the repose of the souls of