the donors of property given for that purpose were upheld in England, but during that year a statute was passed provitling that thereafter all uses declared of land, except leaseholds of twenty years, to the in- tent to have perpetual or the continued service of a priest, or other like uses, should be void. In the reign of Edward VI (1547), another statute was passed declaring the king entitled to all real and certain spnilir.l pcTsniial property theretofore dis- posed of fill- ihc pri-jHtual finding of a priest or main- tenance of ;ui y aiiiii\ iTsary or obit, or other like thing, or any light or lamp at any church or chapel. These statutes did not make disposition of personal property to such uses void, and the statute of Henry VIII was prospective and applied only to assurances of land to churches and chapels, and that of Edward VI was limited to dispositions of property, real and personal, theretofore made. But the English chancellors and the English judges, in the absence of any express stat- ute, determined all dispositions of property, whether real or personal, given or devised for uses specified in the two statutes, to be absolutely void as contrary to public policy, being for superstitious uses. The de- cision covered legacies such as to priests to pray for the soul of the donor or for the bringing up of poor children in the Roman Catholic faith.
It has been expressly decided that these statutes and the doctrine of superstitious uses as enunciated by the English judges do not apply in the United States, although the first colonies from which the States grew were established subsequently to the dates of the adoption of the statutes referred to, and this, not^ withstanding the fact that in some of the states statutes were passed adopting the common law and statutes of England so far as the same might be ap- plicable to the altered condition of the settlers in the colonies. It has been pointed out that it is a maxim of law in the United States that a man may do what he will with his own, so long as he does not violate the law by so doing or devote his property to an immoral purpose; consequently, since there is a legal equality of sects and all are thus in the eyes of the law equally orthodox, to discriminate between what is a pious and what a superstitious use would be to infringe upon the constitutional guarantee of perfect freedom and equal- ity of all religions (see opinion of Tuley, J., in the case of Kehoe v. Kehoe, reported as a note to Gilman v. McArdle, 12 Abb. N. C, 427 New York). In none of the states of the Union, therefore, are bequests or de- vises of property for Masses for the dead invalid on the ground of being superstitious, but there is a diversity among the decisions as to the circumstances under which such be(|uests or devLses will be sustained.
In New York the law of England on the subject of charitable and religious trusts has been completely abrogated by statute, it being intended that there should be no system of public charities in that state except through the medium of corporate bodies. The policy has been to enact from time to time general and special laws specifying and sanctioning the particular object to be promoted, restricting the amount of property to be enjoyed, carefully keeping the subject under legislative control, and always providing a com- petent and ascertained donee to take and use the charitable gifts (Levy v. Levj', 33 N. Y., 97; Holland V. Alcock, 108 N. Y., 312). In accordance with this policy a general act was passed regulating the incor- poration of religious bodies, and empowering the trustees to take into their possession property, whether the same has been given, granted or devised directly to a church, congregation or society, or to any other person for their use (Laws of 1813, c. 60, s. 4, III; Cummings and Gilbert, "Gen. Laws and other Statutes of N. Y.", p. 3401). By the provisions of other statutes Roman Catholic churches come under this act (Laws of 1802, c. 4.5; Cummings and Gilbert, loc. cit., p. 3425). Therefore a bequest of real property X.— 3
for Masses will be upheld if it comply with the statu- tory requirements, which are (1) that the gift be to a corporation duly authorized by its charter or by statute to take gifts for such purpose and not to a pri- vate person; (2) that the will by which the gift is made shall have been properly executed at least two months before the testator's death (Cummings and Gilbert, loc. cit., p. 4470; Laws of 1848, c. 319; Laws of 1860, c. 360: Lefevre v. Lefevre,59N. Y.,4;M),and (3) that if the testator have a wife, child, or parent, the be- quest shall not exceed one-half of his property after his debts are paid (ibid., see Hagenmeyer's Will, 12 Abb. N. C, 432). Every trust of personal property, which is not contrary to public policy and is not in conflict with the statute regulating the accumulation of interest and protecting the suspension of absolute ownership in property of that character, is valid when the trustee is competent to take and a trust is for a lawful purpose well defined so as to be capable of being specifically executed by the court (Holmes v. Mead, 52 N. Y., 3.32). "If then a Catholic desire to make provision by will for saying of Masses for his soul, there is not the shadow of a doubt but that every court in the State [New York], if not in the Union, would up- hold the bequest if the mode of making it were agree- able to the law" (see careful article written in ISSOI^vF. A. McCloskey in "Albany Law Journal", XXXII, 367).
For similar reasons in Wisconsin, where all trusts are abolished by statute except certain specified trusts with a definite beneficiary, a gift for Masses, to be good, must not be so worded as to constitute a trust. Thus a bequest in the following language: "I do give and bequeath unto the Roman Catholic Bishop of the Diocese of Green Bay, Wisconsin, the sum of $4150, the said sum to be used and applied as follows: For Masses for the repose of my soul, two thousand dollars, for Masses for the repose of the soul of my de- ceased wife, etc., etc." The court held that a trust was created by this language, and says: "It is evident that such a trust is not capable of execution, and no court would take cognizance of any question in respect to it for want of a competent party to raise and liti- gate any question of abuse or perversion of the trust." But it adds: "We know of no legal reason why any person of the Catholic faith, believing in the efficacy of Masses, may not make a direct gift or bequest to any bishop or priest of any sum out of his property or estate for Masses for the repose of his soul or the souls of others, as he may choose. Such gifts or bequests, when made in clear, direct, and legal form, should be upheld; and they are not to be considered as im- peachable or invalid under the rule that prevailed in England by which they were held void as gifts to superstitious uses" (72 N. W. Rep., 631).
The same view was taken by the Supreme Court of Alabama, where a bequest to a church to be used in solemn Masses for the repose of the soul of the ti-sta- tor was held invalid inasmuch as it did not respond to any one of the following tests: (1) that it was a direct bequest to the church for its general uses; (2) that it created a charitable use; or (3) that it created a valid private trust. It was not a charity inasmuch as it was " for the benefit alone of his own soul, and camiot be upheld as a public charity without offending every principle of law by which such charities are support ed ", and it was not valid as a private trust for want of a living beneficiary to support it (Festorazzi v. St. Joseph's R. C. Church of Mobile, 25 Law. Rep. Ann., 360).
In Illinois an opposite conclusion is reached, it being held distinctly that a devise for Masses for the repose of the soul of the testator, or for the repose of I he souls of other named persons, is vahd as a charitable u.se, and the devi.se for such purpose will not be allowed to fail for want of a competent trustee, but the coui-t will appoint a trustee to take the gift and apply it to the purposes of the trust. Sucli a bequest is distinctly