25 N.Y.S. 1111 | N.Y. Sur. Ct. | 1893
It is objected that the legacies for masses are void, because made for the benefit of the testatrix after her death and not for a person in existence at the time of the inception of what counsel appears to consider a trust. But it does not seem that the will creates a trust. It gives the legacies to the priests for a designated purpose. It is also objected that the Rev. Mr. Coles being dead, and, therefore, incapable of performing the services designated, the legacy fails.
Under what was known as the “ Toleration Act,” passed during the reign of William and Mary, a bequest for the purpose of having masses said for the repose of the soul of the deceased, was held to be valid ; but under an act passed under the brief reign of Edward VI, A. D. 1541, and the act 43 Elizabeth, chapter 4, it was held to be void. West v. Shuttle-worth, 2 My. & K. 684; Adams and Lambert's Case, 4 Rep. 104; Smart v. Prujean, 6 Ves. 560. A provision for saying prayers for the dead was held to be for a superstitious use and, therefore, void. Duke Charit. 105 ; Adams and Lambert's Case, 4 Co. Rep. 104; Smart v. Prujean, 6 Ves. Jr. 560; Story’s Eq. Juris. § 1164. In this state, however, it is held to-be valid, where given to a person or corporation capable of taking. Holland v. Alcock, 108 N. Y. 312, and cases cited. In the remarkably learned opinion of Judge Rapallo in that case, he stated that it had been alleged that the act of 43 Elizabeth had been repealed by our legislature in 1188. At all events it has been steadily disregarded. In this country all species of worship, their observances and practices, whether called superstitious or otherwise, so long as they do not disturb the peace of communities or the welfare of states, are freely tolerated..
While we find, therefore, that in this case the beneficiaries were named, known and capable of taking, the bequests were valid in their inception, but that they were given to the priests
There is no evidence that the provisions of the will were known to the priests, or that they have said the masses, so