
    Estate of Julia Howard.
    (Surrogate’s Court—Westchester County,
    October, 1893.)
    A testatrix gave a legacy to each of two priests to say masses for the repose of her soul. One of the priests died before testatrix. Held, that the legacy to him was void and passed to the residuary legatee; and that the surviving priest was entitled to his legacy on showing a future performance of the condition to say the masses.
    The deceased left a will bearing date July 30, 1889, by which she bequeathed to the Rev. Thomas McLoughlin of Hew Rochelle, the sum of $300 to say masses for the repose of her soul, in this language: “ I direct my said executor to pay over unto Rev. Father McLoughlin of Hew Rochelle, Westchester county, H. Y., the sum of three hundred dollars for the purpose of masses. The said amount I give Rev. Father McLoughlin for that purpose.” A like bequest. of $300, in like language and for the like purpose, was given to the Rev. James T. Coles of Mount Vernon, in said county. She then bequeathed a legacy to Katie Sengelin, a friend, of $300, and the residue to Mary Sengelin, wife of Michael Finnegan.
    The testatrix died August 12, 1889, and the will was admitted to probate in October following. McLoughlin is still alive, but Coles died in July, 1890, and William H. Coles and Mary A. Brady were duly appointed administrators of his estate, and are made parties to this accounting, as is also McLoughlin.
    
      
      H. C. Henderson, for executor.
    
      Russell Frost, for Katie Sengelin and the residuary legatee.
   Coffin, S.

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 on condition that they should say masses, they are conditional legacies, and are not, therefore, payable unless the condition shall have been performed. Formerly, in England, an executor was entitled to no commissions as compensation for his services, so, where a legacy was given to him as such, it was held that it was so given upon the condition that he undertook the office, and if, therefore, he refused to act, he could not claim the legacy. Abbott v. Massie, 3 Ves. 148 ; Freeman v. Fairlie, 3 Mer. 24. So where a testator, as an encouragement to his executors to accept the trust, had given to each of them 100 pounds sterling and twelve pounds sterling apiece for mourning, and to each of them a ring and ten pounds sterling a year for their trouble, the lord chancellor said that notwithstanding the condition of the acceptance might seem to run to all the legacies, the executors, though they did not act, should have their rings and mourning, these being intended them immediately and not to wait their time of acceptance; but that they should not have their 100 pounds sterling and an annuity of ten pounds sterling each, unless they accepted the trust. Humberston v. Humberston, 1 P. Wms. 332. So, a legacy to a woman for and towards her marriage with any particular specified person is conditional, and fails if she die before marriage. Swinb. p. 4, § 17. And it would seem to be equally clear that if a testator were to bequeath a sum of $300 to a person for the purpose of erecting an iron fence to inclose his burial plot, or the like sum to build a cottage on his village lot, the legacy would be conditional upon his doing the work, and would fail if the work were not done, either because of his death or because of his mere neglect. In the former event, his legal representatives could not enforce payment to them. And even if he had done the work in his lifetime the burden of proof to establish the fact would be upon him, and, of course, on his legal representatives in case of his death. To recover, it must be shown that the condition has been performed.

There is no evidence that the provisions of the will were known to the priests, or that they have said the masses, so that the soul of the deceased has not had the solace and comfort, for four years, supposed by some to be derivable therefrom. At the time of proving the will the law did not require that they should be nor were they cited. No time was specified within which the masses were to be said, and they would not be likely to be so said in the absence of any knowledge of the request. I think the Rev. Mr. McLoughlin may still be entitled to his legacy on showing a future performance of the condition, but as that is impossible in so far as the Rev. Mr. Coles, is concerned, the legacy to him is held to be void, and it will, therefore, fall into the residuum and belong to the legatee, thereof.  