
    In the Matter of the Will of Katherine Backes, Deceased.
    
      (Surrogate’s Court, Erie County,
    
    
      Filed August, 1894.)
    Wmr, — Bequest fob masses.
    A direction in the will of a Homan Catholic that the executor cause masses to he said for testatrix and her deceased husband for any balance left after payment of debts and funeral expenses is valid, and authorizes the expenditure of a reasonable amount for that purpose.
    Probate of will.
    
      Frederick W. Ely, for petitioner; George T. Hogg, for JacoF Backes; Frederick G. Bagley, for Peter, Nicholas and Joseph Backes, Barbara Neuner and Margaret Beyer.
   Stern, S.

Katherine Backes died in Buffalo-, N. Y., on the 2d day of January, 1894, aged seventy years. She left surviving seven children, the youngest of whom is over thirty years of age. Prior to the making of her will she divided $1,200- among her children. After making such division, she had left about $250 cash. She made her will in August, 1891. It provides that her daughter Katherine should take the-property, excepting her cash money. It directs her executors “to cause masses to be read in a German Catholic church in the-city of Buffalo, for herself and her deceased husband, for any balance of cash money which might be left after the payment of her just debts, doctor bills and funeral expenses.” The will further makes it known that prior to the execution thereof she had paid to each of her seven children $1'71.40. All her children except Katherine object to the probate of the will. The-evidence shows that all the formalities required by law were, complied with, and that at the time of the execution of the instrument the testatrix was of sound mind, memory and understanding. The objections must, therefore, be overruled and the-will admitted to probate.

In Gilman v. McArdle, 99 N. Y. 451, Judge Rapaixo saysr “In this case the agreement was to expend the surplus, if any should remain after providing for the support of Mrs. Gilman and her husband, and their funeral expenses and monument, in procuring certain masses to be solomnize-d according to the ritual of the Roman Catholic church, of which they were members, a duty quite definite and easy of performance on payment of the customary charges. We concur with the court below in holding that there was nothing illegal in the purpose, nor can any person rightly complain that it involved any injustice. The-money was her own. She disregarded no ties of kindred, for-she had none, and she undertook to devote her little accumulations to the benefit of herself and her aged husband so long as they might live, and so securing them a becoming burial, to be followed by those religious ceremonies which, according to their belief, were important.”

In Holland v. Alcock, 108 N. Y. 329, the same judge says: “The efficacy of prayers for the dead is one of the doctrines of the Homan Catholic church, of which the testator was a member, and those professing that belief are entitled in law to the same respect and protection in their religious observances thereof as those of any other denomination. These observances cannot be condemned by any court, as matter of law, as superstitious,, and the English statutes against superstitious uses can have no effect here. Const. U. S. Amendment, art. 1; Const. of N. Y., art. 1, sec. 3.”

Judge Cullen, in a case before him, reported in the N. Y. Daily Reg., January 29, 1886, and quoted in 40 Hun, 372, says: “I think a provision for masses for the benefit of the testator’s soul is exactly akin to a provision for his funeral or monument. While decent burial is given by law out of even an insolvent’s estate, I think the monument is no more an adjunct or concomitant of burial than the masses.”

It would bet useless to cite other authorities on this question; the views above expressed are ample and sufficient.

Had the testatrix died leaving only the $250 cash to pay her debts, doctor’s bills, funeral expenses and masses for the repose of her and her deceased husband’s souls, it is not likely that her children Would or could have made any objections, because the appropriation would have been in accordance with her station-in life. But it now happens that, instead of the last-mentioned amount, she had $900 cash. The intention of this was very plain. Having-reached the age allotted to mankind, and being warned of approaching death, she divides her property among her children, retaining about $250, enough in her judgment to pay her debts and funeral expenses and to defray the charges for the solemnization of masses for herself, and remembering her husband, who has gone before her, she has the sacred rites of the church administered in his behalf. The intent of the testator is the rule of construction. Whenever the expressed intention can be ascertained the court must carry it into effect, provided it can be done without doing violence to some rule of law.

In Emans v. Hickman, 12 Hun, 425, the testator gave to his executor all his property, amounting to about $1,200, for his funeral expenses and monument. The court, in construing the effect of this appropriation, held that the deceased did not intend to give all, but only such an amount to be expended for a monu-> ment as would be reasonable, and accordingly allowed $150 for that purpose.

In Matter of Boardman, 46 St. Rep. 444, the testator provided that after the payment of his debts the balance of his real and personal property should be expended in the building and erecting of a monument, together with suitable fence and fixtures. The surrogate held the true construction to be that a reasonable amount should be expended for that purpose, and allowed $500. It is fortunate that her property increased, otherwise the litigation of her children over her will would undoubtedly have swallowed up the money and the court would have been unable to carry out the intentions of the deceased, which are always more sacred than the wishes of the living.

The testatrix was a member of St. Mary’s Roman Catholic church. She had a right to appropriate a reasonable amount of her money in offering masses for the remission of her and her deceased husband’s sins. The direction to her executor to have the masses said in a German Catholic church in Buffalo is not indefinite. The deceased could not have intended any other than a German Roman Catholic church. There is no difficulty in carrying out the direction of the testatrix.

I decide tbat tbe direction, contained in the will for tbe masses is valid. That tbe executor expend for masses tbe amount intended by tbe testatrix, which is the difference between tbe sum of $250 and tbe amount of ber debts and funeral expenses. Tbe residue of ber cash money, amounting, to about $650, must, after tbe payment of tbe necessary expenses of tbe administration of ber estate, be distributed as though she died intestate.

Decreed accordingly.  