Nelan v Downes [1917] HCA 51; (1917) 23 CLR 546 (1 October 1917)

Nelan and Another Defendants, Appellants; and Downes and Others Plaintiffs and Defendants, Respondents.

The question in this appeal arises upon the will of Bridget Childs, who died in 1916. The subject of controversy is a passage in the following words: "I give and bequeath to the Reverend Father Neylan Roman Catholic priest of Colac the sum of fifty pounds for masses for the repose of the souls of my late husband Arthur Joseph Childs and myself." The priest at Colac was really Father Nelan, but the identity was undisputed.

The appellants are Father Nelan's executors. Of the respondents, the first two are the executors of the testatrix, and the third a legatee appointed to represent her class. The respondents Downes took out an originating summons, upon which Hood J. decided that the gift was not charitable, and we have to express our opinion upon that decision. His Honor pointed out that there is a conflict between the English and the Irish decisions, and he held himself bound to follow the former.

The sum involved is not large, but the principle at stake is of the utmost importance in view of the frequency of such testamentary gifts.

The English decisions seem to have gone primarily upon the conclusion that gifts for masses for the repose of souls are gifts for superstitious uses, and therefore void. "It is truly observed by Sir William Grant in Cary v. Abbot17 Ves., 490., that there was no Statute making superstitious uses void generally, and that the Statute of Edw. VI. related only to superstitious uses of a particular description then existing; and it is to be observed that that Statute does not declare any such gift to be unlawful, but avoids certain superstitious gifts previously created. The legacies in question, therefore, are not within the terms of the Statute of Edw. VI., but that Statute has been considered as establishing the illegality of certain gifts, and, amongst others, the giving legacies to priests to pray for the soul of the donor has, in many cases collected in Duke (p. 466), been decided to be within the superstitious uses intended to be suppressed by that Statute." That passage is from the judgment of Sir C. Pepys M.R., afterwards Lord Cottenham, in West v. Shuttleworth[2]. A gift to Roman Catholic priests "for the benefit of their prayers for the repose of my soul, and that of my deceased husband" was accordingly held to be void as for a superstitious use. That decision, given in 1835, has been followed ever since in the English Courts in relation to similar gifts.

In Heath v. Chapman[3], decided in 1854, trusts declared for certain Roman Catholic chapels, for saying masses and requiems for the soul of the donor and for other souls, were held superstitious and void. Kindersley V.C. intimated that he entirely subscribed to the correctness of the reasoning in West v. Shuttleworth[4].

In 1861 Sir John Romilly M.R., in the case of In re Blundell's Trusts[5], said that he was clear that he must follow West v. Shuttleworth to its full extent. There trustees had executed a deed declaring that it was their trust to pay the income of certain funds of the donor to certain officiating Roman Catholic priests for ever, upon condition of their saying masses for his repose. And in In re Fleetwood[6] Hall V.C. held a gift of ten pounds for masses void on the authority of the preceding cases.

But I do not think that the law of England as to superstitious uses applies in Victoria, or elsewhere in Australia. Of course, the express terms of the Statute 1 Edw. VI. c. 14 relate to circumstances which do not apply in this country, and the English decisions which have followed it in this regard are founded on analogy. This is a country without any established Church. Within its bounds, all religions are on an equal footing. The Act of Edw. VI. was clearly passed in the interests of the Reformed Church as against those of the Roman Catholic, the previous State Church of England. There, I agree with Hodges J. in the case of In the Will of Purcell[7], as I also agree with his reasons for holding that the Act mentioned is inapplicable here. In the case of Condon v. Harnett[8] Simpson C.J. in Eq. adopted and followed the opinion of Hodges J. in the case of In the Will of Purcell. A passage from the judgment in the case of Yeap Cheah Neo v. Ong Cheng Neo[9] is instructive on this question, although it relates to a very different country. Their Lordships said:—"It is really immaterial to consider whether ... Penang should be regarded as ceded or newly-settled territory, for there is no trace of any laws having been established there before it was acquired by the East India Company. In either view the law of England must be taken to be the governing law, so far as it is applicable to the circumstances of the place, and modified in its application by these circumstances. This would be the case in a country newly settled by subjects of the British Crown; and, in their Lordships' view, the charters referred to, if they are to be regarded as having introduced the law of England into the colony, contain in the words as far as circumstances will admit the same qualification. In applying this general principle, it has been held that Statutes relating to matters and exigencies peculiar to the local condition of England, and which are not adapted to the circumstances of a particular colony, do not become a part of its law, although the general law of England may be introduced into it. Thus it was held by Sir W. Grant that the Statute of Mortmain was not of force in the island of Grenada (Attorney-General v. Stewart12 Mer., 143.)."

Of course the generality of this statement must be modified in relation to Australia by the fact that each of the States has self-governing power, and can make and alter its own laws. But so far as such legislation does not extend, the passage cited is applicable. That it meets the present case is made more apparent by a further passage on p. 394, approving of a decision that the English Statutes relating to superstitious uses "ought not be imported into the law of the colony," meaning Penang. There can be no doubt that the same thing is true as to Australia. In this country the charters referred to by their Lordships find their counterpart in sec. 24 of the Imperial Statute 9 Geo. IV. c. 83.

The rule against perpetuities, however, is imported (see the same case). For the object of it is "to prevent the mischief of making property inalienable, unless for objects which are in some way useful or beneficial to the community." Their Lordships go on to point out that "the law of England has ... made an exception, also on grounds of public policy, in favour of gifts for purposes useful and beneficial to the public, and which, in a wide sense of the term, are called charitable uses; and this exception may properly be assumed to have passed with the rule into the law of the colony." And it is the law of Australia.

The case of Yeap Cheah Neo v. Ong Cheng Neo[11] decided that certain devises and bequests were void as tending to create perpetuities, in accordance with the opinion that the rule was one of those which passed to colonial possessions upon their settlement. Of these the most relevant to the present case is a direction "that a house ... for performing religious ceremonies to my late husband and myself be erected." This was held void, being in perpetuity, and, of course, not to a charitable use. Their Lordships said that the observance of it "can lead to no public advantage and can benefit or solace only the family itself. The dedication ... bears a close analogy to gifts to priests for masses for the dead." The authority of West v. Shuttleworth[12] was cited, and the judgment proceeded thus:—"The learned Judge was therefore right in holding that the devise, being in perpetuity, was not protected by its being for a charitable use. It is to be observed that in this respect a pious Chinese is in precisely the same condition as a Roman Catholic who has devised property for masses for the dead, or as the Christian of any Church who may have devised property to maintain the tombs of deceased relatives. All are alike forbidden on grounds of public policy to dedicate lands in perpetuity to such objects."

Now, the question whether a gift for masses, held void for what were called superstitious uses, was to be dealt with as a charity, arose in the two cases of West v. Shuttleworth[13] and Heath v. Chapman[14]. For when the uses were declared to be superstitious and void a question remained as to the title to the amount of the legacies. If the legacies were given to charities which could not take effect on the ground of their superstitious object, it fell to the Crown to apply the amount to other charitable purposes; but if the superstitious gift was not charitable, the money which it was attempted to dispose of in a manner not sanctioned by law would go to the next of kin where it was itself a gift of residue, or to the residuary legatees where there was a residue into which it could fall. Accordingly, in West v. Shuttleworth the next of kin were held entitled, and in Heath v. Chapman the residuary legatees took the money. For in both cases it was held that the purpose for which the money was bequeathed was not charitable. In the first-named case, the Master of the Rolls said: "According to the construction I have put upon these legacies, there was nothing of charity in their object; the intention was not to benefit the priests, or to support the chapels, but to secure a supposed benefit to the testatrix herself." And in Heath v. Chapman the Vice-Chancellor came to a similar conclusion on the ground that the uses were neither such as are enumerated in the Statute 43 Eliz. c. 4 nor of an analogous character.

In neither of the reports of these two cases do I find that any evidence was given as to the exact nature of the Mass, or the doctrine of the Church of Rome with regard to it. Nor does such evidence appear to have been given in any other of the English cases.

In the present case I do not say whether the gift tended to a perpetuity, because the argument proceeded upon the assumption, expressly raised by both parties, that it did so tend. Consequently it must fail unless it is a charitable gift, and to that question I regard the matter as now narrowed.

In one of the Irish cases, Attorney-General v. Delaney[15], the Court expressed during the argument a wish to be informed as to the exact nature of a mass, and evidence on that head was supplied by the defendant, the Roman Catholic Bishop of Cork, by way of supplemental answer. It was taken to be the evidence in that case, and in the present case, when in the Court below, counsel agreed that it should be used as evidence. The nature of that evidence, which was also agreed to be evidence in two other Irish cases which I shall presently cite, was in its most material parts as follows:—It is a doctrine of the Roman Catholic Church that the Mass is a true and real sacrifice offered to God by the priest, not in his own person only, but in the name of his Church. Whensoever said, it is offered to God in the name of the Church to propitiate his anger, to return thanks for his benefits, and to bring down his blessings upon the whole world. It is invariable that the Mass contains a prayer to God to receive "this unspotted Host, which I Thy unworthy servant offer unto Thee ... for my own innumerable sins, offences and negligences, and for all here present, as also for all faithful Christians both living and dead, that it may avail both me and them unto eternal life." The sacrifice is offered with a prayer for peace, the preservation, unity, and government of the Church throughout the world, together with the Pope, the Bishop, and "also all orthodox believers and Catholic professors of the Catholic and Apostolic faith." There are prayers for the commemoration of the living and the commemoration of the dead, for deliverance from all evils "past, present and to come," for "peace in our days, that through the assistance of Thy mercy we may be always free from sin and secure from all disturbance." Dr. Delaney's affidavit identified a missal containing the whole of the Mass as said by the priest, with the rubric, and all portions of the Mass which are invariable in addition to some portions which vary. He went on to testify, and this is most material, that "it is impossible, according to the doctrine of the Roman Catholic Church, that a mass can be offered for the benefit of one or more individuals living or dead to the exclusion of the general objects intended by the Church and before mentioned; over and above such general objects, a mass may be offered up by a priest with the intention of obtaining from God some special favour, such as to obtain his mercy for the soul of an individual living or dead." He said that when an honorarium is given to a priest that he may say mass for the departed soul of any person, he is bound to say the mass or masses, with the intention of obtaining God's mercy for that soul; which obligation he discharges by a mental act intending to apply the mass to that particular purpose. It was not necessary to pronounce aloud the name of the person. The honoraria for masses, said Dr. Delaney, were part of the ordinary income and livelihood of priests. Those entrusted with their distribution distributed them amongst priests who stood in need of the assistance so offered. On certain occasions mass with certain special prayers for the dead was celebrated, which was termed a requiem mass; but when an honorarium was received for saying mass for a departed soul the priest was not bound to say a requiem mass unless by special arrangement. Mass for a departed soul might be said in private; but in practice generally, and in Ireland almost universally, it was said in a public church. An ecclesiastic to whom a sum of money was given or bequeathed for the purpose of having a certain number of masses said was bound to expend the whole sum in honoraria for masses, and could not obtain a personal benefit for himself by getting the masses said at a lower rate. I may say at this point that there is a similarity in the cases of Ireland and Australia in the fact that the Statute of Edw. VI. never applied in Ireland.

In Delaney's Case[16] Palles C.B. used some words which, having regard to the fact last mentioned, are worthy to be remembered in discussing the present case. They are these:—"Assuming the bequests not to be illegal, and considering them in a country in which there is now" (1876) "no established Church, the acts directed to be procured are, according to the faith which the testatrix professed, sacrifices to God in the most proper sense and of the most solemn kind, on behalf of all the faithful, living and dead, including a particular memorial of the deceased person specified... There is no doubt that, according to the Roman Catholic faith, each celebration of the Mass involves the most perfect act of charity." But the Lord Chief Baron was, in this case, of opinion that the bequests were not "merely charitable" within the meaning of the Act 5 & 6 Vict. c. 82, sec. 38, and that therefore the legacy duty claimed in the suit was payable in respect of them. That opinion seems to have been partly founded on the fact that the masses were not necessarily to be said in public. But his judgment was supported by other reasons not necessary to be dealt with here. In those reasons the other members of the Court concurred, but they reserved their opinion as to whether a bequest for masses to be said in public for the souls of the dead would have led to a different decision, and at the end of the report the Chief Baron pointed out that it was not necessary for the purpose of the case to pronounce any decision on that question; that he had merely expressed the leaning of his opinion on it, but held himself perfectly free to alter the opinion if the case should ever come before him.

In Attorney-General v. Hall[17], which was an appeal from the Exchequer Division, and arose under the same enactment, a bequest to a Roman Catholic priest, to be applied for masses to be celebrated publicly in a specified Roman Catholic church in Ireland for the repose of the testator's soul, was held to be a valid charitable bequest, and exempt from legacy duty. In that case the evidence given by the Bishop of Cork in Delaney's Case[18] was, by consent, made available to show the character of a bequest for masses so far as it depends upon the nature of the Mass itself as understood by Roman Catholics, and Ashbourne L.C. pointed out that a religious purpose may be a good charitable purpose; that the act of carrying out the service confers a public benefit on the members of a religion by tending to their religious edification. He said that the current of decisions in Ireland supported the view that legacies like that in question should be upheld as charitable; and he reviewed the cases. So did FitzGibbon L.J. His interpretation of the judgments in Attorney-General v. Delaney was that it was held that the celebration of masses for the repose of the testatrix, and of her deceased brother, did not tend, directly or indirectly, to the benefit of the public. But he went on to say: "We cannot conjecture whether the difficulty in seeing to the execution of the trust; its being mixed up with general moral duty; its not being of such a tangible nature as that the Court can deal with it, its being merely pious; or that the benefits which, according to the Roman Catholic creed, would flow from its execution, being spiritual, were not public benefits in the sense in which such benefits render a trust or purpose charitable, formed the ratio decidendi in the mind of any one or more of the eminent Judges who concurred in the decision." His opinion was that the Act of Edw. VI. "must be the sole ground of the difference between the decisions in England and in Ireland." He said: "It is proved that bequests and donations for the celebration of masses form a recognized form of remuneration, or endowment, for the maintenance of Roman Catholic clergymen, and I cannot think that the temporal courts are to compare, or to contrast, the public benefit involved in the religious ministrations of clergy of different denominations, where those ministrations, according to the creed and ritual of the Church concerned, edify and benefit those who participate in them." Further: "It is enough to say that where, according to the religious belief of a body of persons recognized as part of the public, an act of religion done by a public minister of their Church, is for the spiritual advantage of them all, a bequest for the benefit of a minister of religion to perform that act must be deemed charitable. We have not now to decide whether Attorney-General v. Delaney is or is not law, because the edifying effect of the masses which our testator has directed to be celebrated in public cannot, in Roman Catholic belief, be confined to the testator, and they are of necessity essentially acts of public worship, open to, and benefiting, all who participate, or who have the opportunity of participating in them. ... I can add nothing to the arguments and authorities given by the Chief Baron" (in his judgment then under appeal) "to show that the motive of the testator being, to some extent, that of securing a spiritual benefit for himself cannot deprive the ceremony of the charitable character which it derives from its edifying effect on others. ... A gift, of which the necessary result is altruistic public benefit, does not fail to be merely charitable, because it originates in an egoistic motive. ... If nothing could be charitable which was done with the motive of obtaining a personal benefit, here or hereafter, few charitable acts could stand the test, and unless we hold that a self-interested motive is necessarily uncharitable"—I think the learned Lord Justice meant "not charitable"—"we cannot deprive public benefits of a charitable character by inquiring into the motive which dictated them." Barry L.J. concurred; and Walker L.J. delivered a concurring judgment in the course of which he quoted the words of Wickens V.C. in Cocks v. Manners[19]: "Religious purposes are charitable, but that can only be true as to religious services tending directly or indirectly towards the instruction or the edification of the public." The Lord Justice added:—"Prayers for named sick persons, and thanksgiving for named convalescent persons, constantly form a part of the public service of the Irish Church, and are a part of an edifying whole; so, prayers for named dead, when added, cannot alter the public religious character of the Mass, which always includes as an edifying part, prayers for all faithful dead. It seems to me, therefore, that once we are driven to reject the motive of the giver as a factor in the case, the character of the Mass, whether it does or does not include the prayer in question, alone remains, and it must determine the validity of the gifts." This was said just after he had pointed out that to determine the character of the purpose by the motive of the giver would invalidate a large proportion of charitable gifts. His opinion was that "It is in the form of the gift, and its direct or indirect results, that the purpose must be found," and it was in support of that view that he quoted the judgment of Wickens V.C. Dr. Delaney's evidence of the character of the Mass was again used as applicable. No such evidence was given in the English cases, and the sound reasoning which is based on that evidence demands very grave consideration. The Lord Justice did not admit the objection that the Court could not see to or enforce the carrying out of the donor's intentions. He said that the Court could supply a remedy for a proved violation of the obligation, and, if necessary, acquire knowledge by examination whether it had been carried out in fact.

The case of Attorney-General v. Hall[20] carried the matter to the point of holding the bequest valid where the masses were directed to be celebrated publicly in a specified Roman Catholic church in Ireland.

I now come to the case of O'Hanlon v. Logue[21]. This was an appeal from the Master of the Rolls. The direction of the testatrix was to pay the income of her estate upon conversion, after certain life estates, "from time to time to the Roman Catholic Primate of all Ireland for the time being, to be applied for the celebration of masses for the repose of the souls of my late husband, my children, and myself." There was no direction that the masses must be said in public. The question arose on a summons by the executor for the construction of the will. The Master of the Rolls had considered himself bound to follow the decisions in Attorney-General v. Delaney[22] and Attorney-General v. Hall[23], and had therefore held that the gift for masses was void, as creating a perpetuity. He was bound, he said, to take it that to make the bequest a charitable one the celebration must be directed to take place in public. On the appeal there was a very learned argument, in the course of which the previous cases, both English and Irish, were closely reviewed. The evidence of Dr. Delaney in the case to which he was party (3) was again adopted as applying to O'Hanlon v. Logue. The first judgment was delivered by Walker L.C., who as Lord Justice had taken part in the decision of Attorney-General v. Hall. It is interesting to refer to the outline which the Lord Chancellor gave of the decisions in Delaney's Case and in Hall's Case. He remarked that in the former case Palles C.B. had expressed the opinion that a gift simply for the celebration of masses would be valid if it contained a direction that the celebration should be in public. That opinion, he said, passed into decision in Hall's Case, and in the Court of Appeal, which gave the decision, it did not become necessary to go beyond that point. After remarking that he at that time thought there was no valid reason for differentiating between the two classes of cases, and that FitzGibbon L.J. did not shrink from considering the larger question on principle, he announced that further consideration had satisfied the Chief Baron that the validity of the gift as a charitable one depended on a principle which is irrespective of the mode of celebration, and he concurred with the Chief Baron in that result, having read the elaborate judgment which the latter would then deliver. That which made the celebration charitable, he said, was "the performance of an act of the Church of the most solemn kind, which results in benefit to the whole body of the faithful, and the results of that benefit cannot depend upon the presence or absence of a congregation." He stated some legal propositions germane to the case for which, he said, it would be mere pedantry to cite authority. They were these[24]: "(a) That in speaking of what is charitable we use the word in the artificial sense, which is derived from the Statute 43 Eliz. c. 4 (Eng.), and 10 Car. I., sess. 3, c. 1 (Ir.); (b) That included amongst charitable objects is one which, according to the ideas of the giver, is for the public benefit; (c) That a gift for the advancement of religion is a charitable gift; and that in applying this principle, the Court does not enter into an inquiry as to the truth or soundness of any religious doctrine, provided it be not contrary to morals, or contain nothing contrary to law. All religions are equal in the eye of the law, and this especially applies since the abolition in this country of a State Church. Whether the subject of the gift be religious or for an educational purpose, the Court does not set up its own opinion. It is enough that it is not illegal, or contrary to public policy, or opposed to the settled principles of morality." He instanced the decision in In re Cranston; Webb v. Oldfield[25]. There the gift held charitable was for the spread of vegetarian principles—"ideas that might be in the view of many erroneous and visionary." He referred to the settled law that in Ireland a gift for masses is not illegal as a superstitious use, and was evidently of opinion, an opinion which I respectfully adopt, that the evidence of Dr. Delaney, which he recapitulated, brought the case within the propositions which he had stated.

The judgment of Palles C.B. followed. It contains a most learned and critical analysis of the cases and the principles involved. It would take up too much space to quote it as extensively as I should wish to do. Of the case of Attorney-General v. Delaney[26] he expressed the feeling that had he pressed to its legitimate conclusion the difference of opinion which existed there between him and his learned brothers, he would have found that the opinion he had then expressed, that the public celebration of a mass was charitable, necessarily led to the conclusion that the celebration, although not in public, was of the same character, and that, too, upon the basis on which the judgment proceeded—that the public benefit necessary to charity must be one which the Court itself could ascertain and declare. He considered that his error had been in thinking "that the only public benefit the law could recognize as flowing from its celebration was the edification of the congregation, and that, as the presence of a congregation was not essential"—i.e., not directed to be necessary,—"the gift was not charitable." After examining the various old tenures with religious incidents, such as frankalmoyne and tenure by divine service, and the effect upon these tenures of the Statutes passed in Reformation times (which exempted the tenure in frankalmoyne), together with the alterations in the services required, he considered it established that after the Reformation such gifts as that in question would have remained charitable, were it not that they were illegal, and he went on to say that when, in 1793, "all laws prohibiting or discouraging the practice of the Roman Catholic religion were repealed, the illegality determined, and they resumed the character they enjoyed in pre-Reformation times, and once more become charitable—(1) because of their piety; (2) because they were devoted to the support and maintenance of the clergymen, the celebrants." Having come to this conclusion, he added that in the case then under appeal "the motive and purpose of the gift are similar to those in frankalmoyne, and are consequently charitable."

He did not consider the money to be the price of the celebration. Such a bargain would be simoniacal. The true nature of the bequest was that of an alms to the clergyman, just as in frankalmoyne the gift was in the nature of alms; but the gift of alms was accompanied by a request for the celebration, "and according to our equitable doctrines the clergyman, by accepting that gift, binds himself to fulfil the request. He cannot accept the benefit, and disappoint the expectation." He therefore discarded what he called the narrow view taken by him in Attorney-General v. Delaney[27]. As to the effect of the Reformation, he remarked that by the Act of Edw. VI. the new service is identified as being in law the divine service of the Mass as altered. All would admit, he said, that the divine service of the Reformed Church was, by virtue of its spiritual efficacy, a charitable act, so long as it remained the established Church, and he proceeded:—"Now knowing, as does the common law, that the old service contains in substance all of that which renders that new service charitable, together with something else, that old service, at least since 1869 (when the Roman Catholic and the Reformed Church became equal in the sight of the law"—as they are in Australia) "must, too, be charitable, unless those elements which it contains, and which are absent in the new service, prevent the legal result which otherwise would flow from that which is common to both. But such prevention could result only from illegality; and there is now no illegality in the essential differences between the two services. Therefore, because the new service is charitable, so also must be the old."

Further, he maintained that the divine service of a particular religion must be defined by the doctrines of its own religion, without which it could not exist as a divine service. Without a knowledge of those doctrines the spiritual effect of the service could not be understood. It followed that the effect of the divine service could not be known otherwise than from the doctrines of its religion, coupled with a hypothetical admission of their truth. But the advancement of any theistic religion is charitable, and such advancement may result from an increased number of the celebrations of its divine services. Therefore the charitable nature of a divine service must (when the religion is not an established one) depend upon the character of the act, not objectively, but according to the doctrines of the religion in question. After putting the proposition in a different form he said:—"Further, the knowledge that it is a divine service necessarily involves a knowledge of those doctrines but for which it would not exist as a divine service, and therefore renders admissible evidence of these doctrines. But when it" (the law) "knows those doctrines, although it knows that, according to them, such an act has the spiritual efficacy alleged, it cannot know it objectively and as a fact, unless it also knows that the doctrines in question are true. But it never can know that they are objectively true, unless it first determines that the religion in question is a true religion. This it cannot do. It not only has no means of doing so, but it is contrary to the principle that all religions are now equal in the law. It follows that there must be one of two results: either—(1) the law must cease to admit that any divine worship can have spiritual efficacy to produce a public benefit; or (2) it must admit the sufficiency of spiritual efficacy, but ascertain it according to the doctrines of the religion whose act of worship it is. The first alternative is an impossible one. The law, by rendering all religions equal in its sight, did not intend to deny that which is the basis of, at least, all Christian religions, that acts of divine worship have a spiritual efficacy. To do so would, virtually, be to refuse to recognize the essence of all religion. The other result must, therefore, necessarily ensue. It must ascertain the spiritual efficacy according to the doctrines of the religion in question; and if, according to those doctrines, that divine service does result in public benefit, either temporal or spiritual, the act must, in law, be deemed charitable."

For these reasons, which I have merely outlined, this eminent Judge was of opinion that the celebration of the Mass, whether in private or in public, is charitable.

FitzGibbon L.J. came to the same conclusion. I regret that I must quote only one passage from his judgment. It is in these words[28]:—"Tridentine Dogma, Anglican Doctrine, and the Non-Conformist Conscience, are all phases of the religion of The Holy Catholic Church to which every one who professes the Apostles' Creed claims to belong. Not only all these, but also non-Christian religions, and possibly the religion of some Christian sects also, being warranted by the laws of this realm, must stand equal before the secular Courts in a country ..., where no particular religion is established by law, and no particular faith has ever been declared superstitious by Statute. In determining whether the performance of any particular rite promotes any particular religion, and benefits the members of the Church or denomination, or body, who profess it, the secular Court must act upon evidence of the belief of the members of the community concerned. It can have no other guide upon that subject."

In the present case, as in the three Irish cases cited, the secular Court has "evidence of the belief of the members of the community concerned." I agree that it can have no other guide in determining whether the performance of a particular rite promotes a particular religion and benefits those who profess it.

In my view the judgments in O'Hanlon v. Logue[29], and particularly that of Palles C.B., are unanswerable, because they proceed upon evidence as to the doctrine of those who profess the faith in question, and because the judgments, acting upon that evidence, proceed to their conclusion upon reasons which are irresistible. Such evidence was apparently not before the English Courts in any of the cited cases in which the question as to the charitable nature of a bequest for masses was involved.

In the case of Yeap Cheah Neo v. Ong Cheng Neo[30] evidence of the doctrine of the Roman Catholic Church could not, from the nature of the questions considered, be before the Privy Council; and therefore the reference to a Roman Catholic who has devised property for masses for the dead (p. 396), which was no part of the decision, has no authoritative bearing upon the present case. It is true that their Lordships said of the Chinese gift there in question that "the observance of it can lead to no public advantage, and can benefit or solace only the family itself." This observation certainly closely resembles those as to the bequest for masses in West v. Shuttleworth[31] and Heath v. Chapman[32]. But in the absence of the evidence which existed in the Irish cases, and exists also in this case, as to the nature of the Mass and of the Roman Catholic doctrine, it is only natural that such conclusions should have been arrived at. Still they are conclusions as to the effect of a doctrine as a matter of fact, and upon such a matter of fact I cannot but hold myself free to come to a conclusion upon material which apparently was not afforded to the English Courts. In matters of law we are bound, and are glad to be bound, by the decisions of the Privy Council arrived at as conclusions of law upon the facts presented to that tribunal. But where facts are before us which were not before them it is open to us to come to conclusions which vary from theirs so long as we do not differ from the principles of law which they hold. Consequently we are bound to the principle of law which holds that a use is not charitable where the observance of it "can lead to no public advantage, and can benefit or solace only" the donor or the donor and his family. But as I find incontrovertible evidence here that the observance of the use or trust is primarily for the benefit of the whole of those who are within the faith of the donor, a benefit from which it is no detraction that the donor expects particular spiritual advantage to himself and a deceased relative, I come to the conclusion that elements are present which constitute the bequest a charitable gift.

The amount of money directly affected by this appeal is insignificant. But the principles involved are of great importance. Bridget Childs, a widow, died in 1916 leaving a will governed by Victorian law, by which after a number of bequests to various individuals she proceeded to declare as follows: "I give and bequeath to the Rev. Father Neylan Roman Catholic priest of Colac the sum of fifty pounds for masses for the repose of the souls of my late husband Arthur Joseph Childs and myself." The question to be determined is whether that is a valid bequest or not.

It is necessary to state, first of all, that both in the Court of first instance and in this Court all parties have construed and regarded the bequest as one which is not a private or personal gift to the donee, but as a gift to him in trust for masses as directed in the bequest, and as a trust which, if not of a general charitable nature, would fail. That construction has been taken to be the true one, having regard to the whole will. Upon that assumption the gift is impeached upon two grounds, which are separate and distinct. The first is that it is for a superstitious use and void. The second is that it is not charitable in the legal sense and therefore is not saved from the rule against perpetuities.

1. Superstitious Use.—The question as to this branch is whether the law applicable to this will regards the office of the Mass as superstitious and a trust for that purpose as therefore void. I am very clear it does not. As to Statute law, the case of Yeap Cheah Neo v. Ong Cheng Neo[33] is an authority, if any were wanting, for the position that the Statute of 1 Edw. VI. c. 14 is not in force here. That is the only Statute that could really have any influence on the bequest. The inapplicability of the Statute of Edw. VI. has already been declared by the Supreme Courts of Victoria and New South Wales, and those decisions are not challenged, and are plainly right.

But it is said that the common law regards the Mass as superstitious. That is an error. The argument was supported by reference to the words of Kindersley V.C. in Heath v. Chapman[34]. But the words of that learned Judge must be read as a whole; and when they are so read, and understood by the light of the history of the subject, the position is very plain. That history is well traced in the well-known works of Boyle and Tyssen on Charities. The essence of it is that before the Reformation a trust for masses or for the benefit of the testator's soul was recognized as good in law, as shown by Coke upon Littleton, secs. 135, 167 and 383. In note (2) to sec. 169 it is pointed out that the giving of money to the Church was very common in Littleton's time and "then not inconsistent with any law." In the commentary to sec. 135 it is observed that, since Littleton wrote, the liturgy was altered, and that the tenure of frankalmoigne was then satisfied by substituting the authorized prayers for the mass. Indeed, in the case of Bond's Charity (decided in 1553) it appeared that a licence was granted by Henry VII. in 1508 to the testator's son and others to grant lands to support a priest to sing mass, and twelve poor men and one woman to say prayers and obsequies for the King, the brothers and sisters of the guild, and for their souls, especially for the soul of the testator, Thomas Bond, in the then newly erected chapel at Borblock (see the various cases quoted in the judgment in Holland v. Alcock[35]).

But with the Reformation came an entire change. That change, however, did not mean that the common law itself was altered, and now inherently regarded as superstitious and void what it before regarded as pious and lawful. The case of R. v. Lady Portington[36], decided by the Court of Exchequer in 1693, perhaps puts the matter as strongly as it can be put for the respondent. Discovery was there sought as to a secret trust on which the land was said to have been devised, namely, that the testatrix "did it for the good of her soul, and that the devisee owned that this estate was not hers, but belonged to God and his saints." The second resolution of the Court in that case was "that the King, as head of the Commonwealth, is obliged by the common law, and for that purpose entrusted and empowered to see that nothing be done to the disherison of the Crown, or the propagation of a false religion, and to that end entitled to pray a discovery of a trust to a superstitious use." That is what Boyle (p. 273) calls the "general principle" of the matter. The Reformation had made the Protestant religion the established faith, and therefore the Courts regarded other faiths as false religions and that it was a matter of public policy to refuse to carry out trusts opposed to the established faith. The common law did not change, but it had henceforth to operate on changed conditions.

Until the Toleration Acts, this "general policy of the law," as Manners L.C. called it in Attorney-General v. Power[37], prevailed. The Act of 1 Edw. VI. c. 14, as Tyssen points out (p. 38), was enacted directly with reference only to matters as then existing, and said nothing about trusts thereafter to be created. Consequently, none of the cases decided under that Act, many of which were quoted from Adams and Lambert's Case[38], bear directly on the present question. But the Statute bore strongly though indirectly on the general question, and the Court of Chancery, therefore, adopting the common law principle laid down in Lady Portington's Case[39], and finding an established religion, recognized and supported by the Act of Edw. VI., applied, for the purpose of enforcing the policy of that Statute or its equity as it was termed, the common law principle to the existing state of things, and by that combined means held that such a trust as we are considering was superstitious and void. Thus it has come about that a superstitious use has been defined by Boyle (p. 242) as "one which has for its object the propagation or the rites of a religion not tolerated by the law." The learned editors of Tudor on Charities (4th ed., at p. 4) have adopted this definition and so also in Halsbury's Laws of England, vol. iv., p. 120, and it has been adopted in an Ontario case to be presently mentioned. That position was largely met in England from time to time by relieving legislation, though not entirely.

West v. Shuttleworth[40] must not be misunderstood. When carefully examined it clearly exhibits the principle as it existed in 1835. There a testatrix had created two classes of trusts. One was to promote the knowledge of the Roman Catholic religion among the poor inhabitants of a certain district; and the other class of trust was to priests and chapels for prayers for the repose of the soul of the testatrix and her deceased husband. The first class of trust was upheld, because the Act of 2 & 3 Will. IV. c. 115 relieved Roman Catholics of disabilities in respect of such matters, which were charitable, and had ceased to be regarded by the law as superstitious. But the Act said nothing about prayers for the repose of souls, and so they were left to the law as it existed since the Act of Edw. VI. And, at p. 697 of the report, the learned Master of the Rolls (afterwards Lord Cottenham) said: "The legacies in question ... are not within the terms of the Statute of Edw. VI., but that Statute has been considered as establishing the illegality of certain gifts, and, amongst others, the giving legacies to priests to pray for the soul of the donor has, in many cases collected in Duke, been decided to be within the superstitious uses intended to be suppressed by that Statute."

It consequently appears that, but for the fact that there was in England an established religion the tenets of which were opposed to the class of trusts in question, and that there was an Act of Parliament declaring a public policy with respect to them, the Courts would not have taken up the attitude they did with respect to those trusts. On this basis the Court of Chancery in Ontario in 1871, in the case of Elmsley v. Madden[41], held that a bequest of money by a testator for masses for his soul was not void in that province as being for a superstitious use.

In Australia, the Act of Edw. VI. is not in force, there is no established State religion, and all religious faiths stand equal before the law. It is not unimportant that the people of the Commonwealth have declared their public policy on the subject by sec. 116 of the Constitution, which so far as material, provides that "the Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion," &c. That does not, of course, determine the internal law of the State with regard to trusts, but, in the absence of any controlling enactment, it is a strong indication of public policy which runs directly counter to the contention that the celebration of the Mass should be held in law to be a superstition. I therefore unhesitatingly reject that contention.

2. Charitable Use.—The second objection to the bequest is that being in conflict with the rule against perpetuities it is bad, because it is not a "charity" as that word is to be technically understood. The law as to perpetuities is, of course, part of our common law, and of general application, and unless the present gift is a "charity" in the required sense, the objection is sound, and must prevail. The learned primary Judge felt the pressure of the conflicting decisions in England and Ireland, and as a Court of first instance felt constrained to follow the English decisions, and leave it to an appellate Court to consider the matter on its legal merits. This Court is at liberty and bound to consider the question for itself.

In West v. Shuttleworth[42] the Master of the Rolls certainly considered whether the gifts for masses were charities or not. But he did not do so for the purpose of seeing whether the trusts as declared could be carried into effect. They could not, because they were declared to be superstitious. But if besides being "superstitious" they had been also "charitable," then the Court would have devoted them, according to the opinion of the Master of the Rolls, to other charitable purposes that were legal. As his Honor found they were superstitious, but not charitable, he held the next of kin were entitled. The destination of the gift was the only object of the inquiry there as to charity.

Here, as already stated, we are free from the difficulty as to superstitious uses. So in Ireland. The question of superstitious use does not arise there, and West v. Shuttleworth[43] has no application on that branch of the case. Palles C.B. very clearly pointed that out in Attorney-General v. Delaney[44]. In Ireland, as here, however, though the object of inquiring whether the gift is a technical charity or not is different, that inquiry is determined by the same considerations. Is the gift, then, charitable? Lord Cottenham held, as to the legacies before him, that "there was nothing of charity in their object; the intention was not to benefit the priests, or to support the chapels, but to secure a supposed benefit to the testatrix herself." No doubt, if the trust is simply to benefit even through charitable means specific individuals, it is not charitable in a legal sense. On the other hand, if it is to benefit, in a manner technically charitable, the public or any section of the public not confined to specific individuals, then it is a charitable purpose within the meaning of the law. There must be indefiniteness as to the number of persons who are to be benefited.

It is necessary, at the outset, to consider the effect on this branch of the case of Yeap Cheah Neo v. Ong Cheng Neo[45]. If in that case the Privy Council decided that a gift for masses is not charitable, that ends the matter for this Court. We should be bound to accept such a decision as final. But in my opinion the Privy Council did not so decide. The case which that tribunal was considering was that of a devise by a Chinese testatrix in Penang by which she directed that a house be erected "for performing religious ceremonies to my late husband and myself." The ceremonies, it will be observed, were to be to the deceased persons, and that, as explained at p. 396 of the report, meant that a monumental tablet to the dead would be erected in the house, food would be placed before the tablet with certain ceremonies, and the savour of the food is supposed to gratify the spirits of the dead. That, as their Lordships said, "can benefit or solace only the family itself," and so did not fall within any definition of a charitable duty or use. That was the decision after the fact had been found, and the facts there existing have obviously not the remotest resemblance to the facts of the present case. It is true the judgment goes on to recognize West v. Shuttleworth[46]; but their Lordships were not considering for themselves the true nature of a mass for the repose of souls, but merely a bare rule of law. Their observations with respect to West v. Shuttleworth therefore do not constitute a decision binding this Court with respect to the matter in issue in this case. We have first to determine the fact for ourselves, and then apply the law to the facts so found. And the conflict between the English and the Irish cases on this point is really, after all, one of fact. That fact resolves itself into what the nature of the Mass really is. In Delaney's Case[47] the Court expressed a wish to be informed as to its exact nature, and the information was supplied by Dr. Delaney, who was the Roman Catholic Bishop of Cork. Dr. Delaney's statement was treated as accurate in the later case of O'Hanlon v. Logue[48], and has been adopted here by the parties as accurate. The English Courts had not the advantage of this statement. That statement leaves no doubt upon my mind that the Irish decision is correct, and that the celebration of the Mass is a "charity" in the strict legal sense. It is a sacrifice offered to God by the priest in the name of the whole Church. It is offered as a propitiation for sin, as a grateful return for benefits, and as a prayer for blessings upon the whole world. It is not wholly invariable, there is a parochial mass, but there are certain features which are invariable, and those features include the sacrifice for the whole Church and for all the faithful both living and dead, and the commemoration of the living and the dead. Dr. Delaney said: "It is impossible, according to the doctrine of the Roman Catholic Church, that a mass can be offered for the benefit of one or more individuals living or dead to the exclusion of the general objects intended by the Church and before mentioned; over and above such general objects, a mass may be offered up by a priest with the intention of obtaining from God some special favour, such as to obtain his mercy for the soul of an individual living or dead." Upon that statement, it is not, in my opinion, open to doubt that a gift for the purpose of saying masses is a gift for religious purposes in the fullest sense, and is a good charitable gift. It is true the animating motive of the testatrix may have been selfish in the sense that the impulse moving her to make the bequest was the desire to benefit her own soul and the soul of her husband; but that motive led her to do something much larger in scope, much wider in import, something which in its inherent nature necessarily goes far beyond the welfare of any individual or any number of specific individuals. What she did was to provide for a religious act that involves the utmost piety towards the Supreme Being on behalf of an indefinite number of His creatures, and the object of which is to bring to them spiritual assistance, consolation and comfort, vastly surpassing the mere physical assuagement of pain or suffering that would incontestably be admitted to rank as an ordinary charity.

On this second branch, as on the first, I am clearly of opinion that the gift must be sustained as a valid charitable trust. The death of Dean Nelan does not of course defeat such a trust.

The question to decide in this case is whether the bequest, under the will in question, of the sum of £50 to a priest of the Roman Catholic Church in trust for masses for the repose of the souls of the late husband of the testator and herself is, or is not, a valid bequest. It is contended (1) that the bequest was for a superstitious use, and therefore void; (2) that it is not "charitable" (legally), and is therefore void. As to the first ground I agree with my learned brothers, and for the reasons so fully stated by them, that the bequest, in Australia, is not void on the ground that it is for a superstitious use. In the Commonwealth all religious faiths are equal before the law, and there is not any State established Church.

The only question left to decide is whether the bequest in question is a "charitable" one in the eye of the law, because the law as to perpetuities is in force in the Commonwealth. On this question I must confess I found a very great difficulty in coming to a decision, after the decisions in the English cases that a bequest for masses for the souls of specified deceased persons was not a charitable one, and after the dicta pronounced in the Privy Council in the case of Yeap Cheah Neo v. Ong Cheng Neo[49]. If the Privy Council had decided in any case that bequests in trust for masses to be said by Roman Catholic priests for the souls of specified deceased persons were void, solely because such bequests were not charitable; I would feel bound to follow that decision. In Yeah Cheap Neo v. Ong Cheng Neo the only question the Privy Council decided was that a devise by a Chinese woman who directed that "a house for performing religious ceremonies to my late husband and myself be erected" was void, being in perpetuity and not a charitable use. The reason given by their Lordships was that "the observance of it can lead to no public advantage, and can benefit or solace only the family itself." The question whether masses for the souls of deceased persons were void was not before that tribunal for decision. The dicta in the case of Yeap Cheah Neo v. Ong Cheng Neo that bequests for masses for the souls of deceased persons were void were clearly based on the assumption that the observance of a mass for the repose of the souls of specified deceased persons could lead to no public advantage and could benefit only specified persons, and such bequests were not therefore bequests for a "charitable" use. If I found in this case that mass and the prayers in the mass were only for the benefit of the souls of the deceased testator and her late husband, I would feel bound by the principle of law laid down by the Privy Council to hold that the bequest was void as not being for a "charitable" use.

In the circumstances this Court can properly examine the facts deposed to in this case, and, if it is proved that the principle of law on which Yeap Cheah Neo v. Ong Cheng Neo[50] was decided by the Privy Council does not apply, this Court is justified in coming to its own conclusion.

My learned brothers have dealt fully with the other English cases referred to, and I agree that the decisions arrived at were either on the ground that the bequests were for superstitious uses and therefore void in England, or because they were bequests which could only benefit specified persons and would "not benefit the public or the priests or support the chapels" and therefore were not "charitable." As this Court is free to consider the question whether the bequest is "charitable," I start with the assumption that bequests for "religious purposes" are charitable if they tend directly. or indirectly towards the benefit, instruction or edification of the public or any section of the public (members of any religion not contrary to public policy or opposed to the settled principles of morality). I also agree with what Pallas C.B. said in O'Hanlon v. Logue[51]: The Court "must ascertain the spiritual efficacy according to the doctrines of the religion in question; and if, according to those doctrines, that divine service does result in public benefit, either temporal or spiritual, the act must, in law, be deemed charitable."

In recent cases in Ireland (where the Statute of 1 Edw. VI. is not in force) evidence was given which satisfied the Courts that in the eyes of persons of the Roman Catholic faith the masses benefited, not only the souls of deceased persons, but all believers in that religion. In this case both sides agreed to adopt the evidence in the case of Attorney-General v. Delaney[52] as truly describing the Mass and the belief of Roman Catholics in the Mass, and the effect of the Mass on believers in the Roman Catholic Church. My brother Barton has so fully referred to the evidence before the Irish Courts—which evidence has to be considered by this Court—that I do not propose to refer to it, beyond mentioning that that evidence proved that in celebrating the mass in question the prayers said always include prayers "to bring down blessings upon the whole world"; "for all faithful Christians both living and dead, that it may avail both me and them into eternal life"; for "peace in our days, that through the assistance of Thy mercy we may be always free from sin and secure from all disturbance."

I do not see how any Court could, on the uncontradicted evidence before us, come to the conclusion that the celebration of masses for the souls of deceased persons did not "according to the doctrine of the Roman Catholic Church" result in a public benefit to at least a large body of believers in that faith. I have no right as a member of this Court to decide, because of my own personal beliefs, that masses do not confer a public benefit on members of the Roman Catholic faith, for whom they are said. On this question I entirely concur with what was said by FitzGibbon L.J. in Attorney General v. Hall[53]:—"I cannot think that the temporal Courts are to compare, or to contrast, the public benefit involved in the religious ministrations of clergy of different denominations, where those ministrations, according to the creed and ritual of the Church concerned, edify and benefit those who participate in them. ... It is enough to say that where, according to the religious belief of a body of persons recognized as part of the public, an act of religion done by a public minister of their Church, is for the spiritual advantage of them all, a bequest for the benefit of a minister of religion to perform that act must be deemed charitable"; and also with what was said by Walker L.C. in the case of O'Hanlon v. Logue[54]:—"In applying this principle" (viz., that a gift for the advancement of religion is a charitable gift) "the Court does not enter into an inquiry as to the truth or soundness of any religious doctrine, provided it be not contrary to morals, or contain nothing contrary to law. All religions are equal in the eye of the law, and this especially applies since the abolition in this country of a State Church. Whether the subject of the gift be religious or for an educational purpose, the Court does not set up its own opinion. It is enough that it is not illegal, or contrary to public policy, or opposed to the settled principles of morality."

The only evidence in this case is to the effect that a mass is designed to, and does necessarily confer, a public benefit on living members of the Roman Catholic faith as well as on the souls of the deceased, assuming, as they are entitled to, that prayers of a public minister of their faith, to God, are effectual. The members of every religion believe that "the effectual fervent prayer of a righteous man availeth much" (James, c. v., v. 16). The fees and bequests received for masses, on the evidence before us, are regarded as the ordinary income of priests and necessary for their support, and are distributed among priests who are in need of the assistance so offered. I agree with what has already been said by my learned brothers about the other objections to the bequest. I hold that in Australia, where all religions are free and each man is allowed to worship God according to his own conscience and belief, whatever that may be, the bequest is not illegal on either of the grounds alleged, and that the appeal ought to be allowed.

Appeal allowed. Declaration 1 (a) of the order appealed from varied by declaring that the sum of £50 is a charitable gift and should be paid to the parish priest at Colac. Costs of all parties of the appeal as between solicitor and client to be paid out of the estate.

Solicitors for the respondents, L. S. Lazarus for H.I. Crawcour, Geelong; A. Phillips for David Clarke, Ballarat.

[1] 7 Ves., 490.

[2] [1835] EngR 627; 2 My. & K., 684, at p. 697.

[3] [1854] EngR 774; 2 Drew., 417.

[4] [1835] EngR 627; 2 My. & K., 684.

[5] [1861] EngR 945; 30 Beav., 360.

[6] 15 Ch. D., 594, at p. 609.

[7] 21 V.L.R., 249.

[8] 7 S.R. (N.S.W.), 463.

[9] L.R. 6 P.C., 381, at p. 393.

[10] 2 Mer., 143.

[11] L.R. 6 P.C., 381.

[12] [1835] EngR 627; 2 Myl. & K., 684.

[13] [1835] EngR 627; 2 Myl. & K., 684.

[14] [1854] EngR 774; 2 Drew., 417.

[15] I.R. 10 C.L., 104.

[16] I.R. 10 C.L., at p. 121.

[17] (1897) 2 I.R., 426.

[18] I.R. 10 C.L., 104.

[19] L.R. 12 Eq., 574, at p. 585.

[20] (1897) 2 I.R., 426.

[21] (1906) 1 I.R., 247.

[22] I.R. 10 C.L., 104.

[23] (1897) 2 I.R., 426.

[24] (1906) 1 I.R., at p. 259.

[25] (1898) 1 I.R., 431.

[26] I.R. 10 C.L., 104.

[27] I.R. 10 C.L., 104.

[28] (1906) 1 I.R., at p. 279.

[29] (1906) 1 I.R., 247.

[30] I.R. 6 P.C., 381.

[31] [1835] EngR 627; 2 Myl. & K., 684.

[32] [1854] EngR 774; 2 Drew., 417.

[33] L.R. 6 P.C., 381.

[34] [1854] EngR 774; 2 Drew., 417, at pp. 423, 424.

[35] 108 N.Y., 312, at pp. 324, 325.

[36] [1795] EngR 1506; 1 Salk., 162.

[37] 1 Ball & B., 145, at p. 151.

[38] 4 Rep., 96a, at p. 114.

[39] [1795] EngR 1506; 1 Salk., 162.

[40] [1835] EngR 627; 2 Myl. & K., 684.

[41] 18 Grant Upper Canada, 386.

[42] [1835] EngR 627; 2 Myl. & K., 684.

[43] [1835] EngR 627; 2 Myl. & K., 684.

[44] I.R. 10 C.L., 104, at pp. 120, 121.

[45] L.R. 6 P.C., 381.

[46] [1835] EngR 627; 2 Myl. & K., 684.

[47] I.R. 10 C.L., 104.

[48] (1906) 1 L.R., 247.

[49] L.R. 6 P.C., 381.

[50] L.R. 6 P.C., 381.

[51] (1906) 1 I.R., 247, at p. 276.

[52] I.R. 10 C.L., 104.

[53] (1897) 2 I.R., 426, at p. 447.

[54] (1906) 1 I.R., at p. 259.

High Court of Australia

Nelan v Downes [1917] HCA 51; (1917) 23 CLR 546 (1 October 1917)

HIGH COURT OF AUSTRALIA