
    GILMAN v. McARDLE.
    
      N. Y. Superior Court, Special Term,
    
    
      July, 1883.
    Husband and Wine.—Husband’s ridht to Administer.—Executors and Administrators.—Trust or Agency as to Fund. —Superstitious Uses.
    A husband’s right to administer upon the estate of his deceased wife, confers upon the husband’s legal representative, capacity to sue for a chose in action which belonged to her at the time of her death, and was not reduced to possession by him in his lifetime.
    The husband’s omission to take out letters during his lifetime does not1, under 2 R. 3. 74, §27 (same stat., 3 R. S. Oth ed. 77, §31), preclude his executor or administrator from suing for such purpose.
    Where one, with no intention of parting absolutely with the title and control of a fund, places it in the hand of another to be used by the latter, after the death of the former, to have masses said by a priest for the repose of his soul, no valid trust is created; and, after his death, his executor or administrator may recover back so much of the fund as has not boon expended in good faith, pursuant to such directions.
    
      It seems, that a trust for the same purpose, or an absolute gift, coupled with a request to use the fund for such a purpose, would be valid.
    
    Trial by the court.
    Michael Gilman, as administrator of James Gilman, deceased, brought this action against Henry McArdle, to have a certain alleged trust declared null and void, and to compel the defendant, as the alleged trustee, to account.
    On August 23, 1882, Margaret Gilman, then about eighty-five years old, placed about $2,300 of money belonging to her in the hands of the defendant, with the direction and upon the condition that after the death of herself and her husband, who was then over ninety years of age, the defendant should use the money, in the first place, to pay funeral expenses and erect a suitable monument to their memories ; and, in the second place, to have masses said by a Roman Catholic priest for the repose of their souls.
    About eight days after the delivery of the money to the defendant—viz., September 1, 1882—Margaret Gilman died intestate and without issue, and on October 13 following, James Gilman, the husband, also died intestate.
    The plaintiff, as next of kin of J ames Gilman, took out letters of administration on the estate of James Gilman, and, as such administrator, demanded that the defendant account for and pay over the money received by him, and upon defendant’s refusal to do so brought this action.
    
      Wm. L. Snyder (John Brice, attorney), for plaintiff.
    
      Richard L. Sweezey (C. W. Bennett, attorney), for defendant.
    
      
       See note at the end of this case;
    
   Freedman, J.

[After stating the facts.]—The theory of the action is that at least the second use or purpose of the trust is contrary to public policy and wholly illegal and void.

The first question that presents itself is whether the plaintiff has legal capacity to maintain the action. Its determination depends upon the correct solution of the further question, whether the right of_ James Gilman to adminster upon the estate of his deceased wife conferred upon the plaintiff, as his legal representative, the capacity to sue for a chose in action belonging to the wife at the time of her death, and not reduced to possession by the surviving husband in his lifetime

At common-law, marriage was an absolute gift to the husband of the personal property of which the wife was actually possessed and of such as came to her during coverture.

As to choses in action, marriage was only a qualified gift, conditioned that the husband reduce them to possession during the existence of the marriage relation.

As to all personal property possessed by the wife at the time of the marriage and such as came to her during coverture, and also such choses in action as the husband reduced to possession during coverture, the title was vested in the husband, and upon his death, such personal property and choses in action went to his representatives and not to tlie wife; and if the wife died first, they were his after, as they were before, her death, and no administration was necessary.

As to choses in action not reduced to possession during marriage, if the' wife survived the husband, they went to her, and, upon her death, to her representatives ; but if the husband survived, he had the sole right to administer for his own benefit and enjoyment in preference to the next of kin.

These common-law rights of the husband, and the consequences flowing from them, are still recognized in this State in the case of a wife dying intestate, leaving no descendants, and a husband surviving.

The statutes of this State give to the wife t'he control of her separate estate during her life, and she may dispose of it by will. In case of a will, the testamentary disposition stands. In the absence of a will, if there are descendants, the succession is regulated by the Statute of Distribution. But in case a married woman dies intestate and leaves no descendants, the common-law right of the surviving husband to administer his deceased wife’s estate, and through such administration to acquire the title to her personal property and choses in action not reduced to possession during coverture, subject only to the payment of her debts, still exists. This has been expressly decided in Barnes v. Underwood (47 N. Y. 351.); And in all cases it is now provided by statute, that in the case of a married woman dying intestate, her husband shall be entitled to administration in preference to any other person (3 R. S. 6 ed. p. 7, § 31 [27]); that if he shall not take out letters of administration on her estate, he shall be presumed to have assets in his hands sufficient to satisfy her debts, and shall be liable therefor, and that if he shall die leaving any assets of his wife unadministered, they shall pass to his executors or administrators as part of his personal estate, but shall be liable for her debts to her creditors in preference to the creditors of the husband (Id. § 33.[29]).

From the foregoing it is clear that if, upon the death of Margaret Gilman, her husband, James Gil-man, had taken out letters of administration upon her estate, his right of action against the defendant now here would, upon his death, have passed to the present plaintiff, as administrator. But as James Gilman did not do so,. it is necessary to determine whether that omission affects the standing of the plaintiff in court. From what has been said in Squib v. Wyn (1 P. Wms. 378); Elliot v. Collier (1 Wils. 168); and 2 Kent Com. (136), it would seem that, it is not. At any rate, my judgment is, that under the true construction of what formerly was the twenty-ninth section of the statute above referred to, it is not; because, above the conflict of judicial expression in the books as to whether the husband in a case like the present upon the death of his wife takes a chose in action not reduced to possession by him during converture, as husband or as administrator, there stands forth the universally conceded fact that, in some way or other, he is entitled to the ultimate benefit to be derived therefrom, because he sustains the relation of husband. From this it follows, as a logical and necessary sequence, that Ms right in this respect, at least by force of the statute, passes to his personal representatives. That in a case like the present the administrator or executor of the estate of the husband, in his representative capacity as such, may have letters of administration upon the estate of the wife, was decided in Matter of Harvey (3 Redf. 214), affirmed by the general term of the supreme court; but that such letters are not necessary to enable him to maintain an action, was also decided in Roosevelt v. Ellithorp, 10 Paige, 415 ; and Lockwood v. Stockholm, 11 Paige, 87.

Whether, therefore, the fund in suit be regarded, for the purposes of determining the question'of plaintiff’s capacity to sue, as a chose in action, or as property legally in the wife’s possession at the time of her death (upon the theory that the possession by the defendant as the wife’s trustee or agent under a void trust was not adverse, but in the eye of the law was still her possession), the plaintiff, in either case, has legal capacity to sue for it.

This brings me to the consideration of the second question—viz., the validity or invalidity in law of the disposition of the money made by Margaret Grilman.

Such disposition constituted neither a gift inter vivos, nor a gift causa mortis, for the requisites of a gift were wanting. There was no intention of parting absolutely with the title and control, but specific uses were enumerated to which, after the death of Mrs. Grilman and her husband, the money was to be appropriated. By such a disposition Mrs. Grilman sought to create a trust for the uses specified.

In so far as the trust thus attempted to be created has been executed by the payment of* funeral expenses and the erection of monuments, the plaintiff does not seek to hold the defendant liable. The controversy relates to that part- of it which directs the saying of masses, and the discussion will hereafter be confined to that point.

In England, this use would be held void as a superstitious one. In that country, when land is given, secured or appointed for or toward the maintenance of a priest or chaplain to say mass ; for the maintenance of a priest Or other man to pray for the soul of any dead man; to have and maintain perpetual obits, lamps, torches, &c., to be used at certain times to help to save the souls of men out of purgatory, the King or Queen, by force of certain statutes, is authorized to direct and appoint all such uses to such purposes as are truly charitable (23 Hen. VIII., chap. 10; 1 Edw. VI., chap. 14 ; Bac. Ab., Charitable Uses and Mortmain, D ; Duke on Char. Uses, 105). These statutes are aimed at such usages of the Roman Church as were condemned by the Protestant Reformation. There is no express English statute, however, making superstitious uses in general void, and the 23 Hen. VIII. relates in terms only to assurances of land to churches and chapels. But, although there is no present English statute rendering the disposition of personal property for superstitious uses void, the courts of England have, nevertheless, in all such dispositions of property, whether real or personal, held the uses to be void upon general principles of public policy.

In the State of New York, and in all the States of the United. States, where there is no established state religion, where all religious opinions are free, and the right to exercise them is secured to the people by constitutional guarantees, there is no such statute and no such policy, and I do not hesitate to say that the doctrine of superstitious uses, as enforced by the courts of England, is against the spirit of our institutions, and should not be adopted by-our courts. It is a fundamental principle of our law that a man may do with his own as he pleases, provided he does not violate the law, nor devote his property to an immoral purpose. Similar views have been expressed by Judge Tuley of Chicago, in Kehoe v. Kehoe, and by the surrogate of Kings County, N. Y., in the matter of the probate, &c., of the will of Maria Hagenmeyer, deceased. In these two cases, however, the question presented itself upon a testamentary disposition.

The question of policy having been disposed of, in so far as it rests upon religious grounds, it remains to be seen whether the trust sought to be created is invalid for any reason known to law or equity as administered in this country.

It clearly cannot be upheld as a trust for a charitable use. According to the English law, based upon certain prerogatives of the Crown and the statutes of 43 Elizabeth, chap. 4, the court of chancery in England exercised a certain peculiar jurisdiction over charitable trusts, in" determining and applying gifts to charity where the donor had failed to define them, and in framing schemes of approximation near to or remote from the donor’s true design. Where, therefore, there was a gift for a general and indefinite charitable purpose, either the king under his sign manual, or the court representing him, disposed of the subject donated.

The Statute of Elizabeth was repealed by the legislature of this State in 1788, and the prerogative of the crown had, of course, no effect in this State ; but the powers and jurisdiction of the English court of chancery, as they existed in England at the time of the American Revolution, were supposed to have followed and remained with courts of equity in this State, and the law of charities, it was claimed, independent of the Statute of Elizabeth, was in force prior to that statute and continued after its abolition. In the consideration of this subject by the courts of this country, it was, however, determined that the English dootfine with respect to charitable trusts, as it existed at the time of the Revolution, according to the common law, irrespective of statutory enactment, was only to be considered in force here so far as it was applicable to our circumstances and conformable to our institutions and not repugnant to them. With this determination the power exercised by the English court of chancery to declare a trust void on the ground that it was for a superstitious use, and to direct the use to a purpose truly charitable, wholly ceased to exist in this country. But a charity must still be a gift—1, either for the promotion of science or learning or useful knowledge ; 2, or for the relief of the sick, lame or infirm; 3, or for the relief of the poor or redemption of prisoners or captives ; 4, or for the building or repairing of bridges, ports, highways, churches or other public structures. In short, a charity is a gift for a general public use, extending to the poor as well as to the rich, which is free from any personal, private or selfish taint. The disposition made by Mrs. Gilman of her money cannot be. brought within this definition.

Nor can it be said that such disposition created a trust for a pious use. Such a trust consists of a gift for the dissemination of moral or religious teaching, or for the promotion of public worship or morality. All gifts falling within this description are regarded as pious uses, and by a broad and liberal construction are enforceable as such in equity. Since the Revolution, pious uses have been upheld in this country without regard to sect or denominational distinction. The disposition made by Mrs. Gilman does not fall within this class of cases.

' On the other hand, it will be found that the purpose of the trust sought to be established by Mrs. Gilman, is open to no legal objection, because the trust, if it is one, relates solely to personal property, and, as such, is not within the Statute of Uses and Trusts of this State. A trust of personal estate may be created for any purpose which is not illegal, so far as relates to the mere vesting of the legal title to the property in the trustee (Gott v. Cook, 7 Paige, 521; Bucklin v. Bucklin, 1 Abb. Ct. App. Dec. 242; Perry v. Foster, 62 How. Pr. 228). So, if the trust were otherwise valid, it would not be a fatal objection that it was not declared in writing (Martin v. Funk, 75 N. Y. 134; S. C., 31 Am. R. 446).

But the difficulty with the defendant’s case is, that the trust sought to be created by Mrs. Oilman is no trust at all known to law or equity, because there is no beneficiary or cestui que trust in existence, or capable of coming into existence, under the trust, and that, if for the reason stated, the trust fails, the disposition made of the money cannot stand, because it amounted neither to a gift nor to a disposition by last will and testament. ' Our statutes prescribe how the personal property of a person dying intestate shall be distributed. They disclose a well defined policy upon^ that point. They apply to personal property and choses in action of every description not actually and finally disposed of by the intestate in his lifetime by some mode recognized by law, and they permit no other disposition. Consequently, as there was no will nor a gift, unless a valid trust was created amounting to an actual and final disposition in suit, the law steps in and directs where the money shall go.

Now, as essential to the validity of every trust, there must be four things: 1, a subject matter; 2, a person competent to create it; 3, one capable of holding as a trustee; and 4, one for whose benefit the trust is held.

In the present case the first three' exist, but the fourth does not. The trustee might be supplied if necessary, for it is a welbsettled principle in equity that a trust once properly created, shall never fail for want of a trustee, and the court can always appoint a person to execute it. But the court cannot supply a beneficiary or cestui que trust. Beneficiaries may be natural or artificial persons, but they must be persons in existence, or capable of coming into existence, under the trust. If they answer that requirement and can be ascertained and identified, it is not necessary that they should be named specifically. In general, any person who is capable in law of taking an interest in property, may to. the extent of his legal capacity, and no further, become entitled to the benefits of the trust.

In the case at bar the beneficiaries are both dead, and beyond the" reach of human law. Their souls are intended as the beneficiaries, and the money is to be expended for masses for the repose of their souls. But the soul of one who has departed this life is incapable of taking an interest in the property left behind, nor is it in any sense subject to the jurisdiction of any legal tribunal. A court of equity protects the rights of the living. It cannot extend its jurisdiction to beings which cannot be apprehended within the boundaries of the realm.

For the reasons "stated, the trust sought to be created, failed for want of a beneficiary. That being so, and there having been neither a gift nor a testamentary disposition, a resulting trust arises by implication of law, under the circumstances of this case, in favor of the plaintiff as the legal representative of the husband of the donor, against the defendant, and the defendant must account.

The plaintiff is entitled to judgment declaring the invalidity of the trust, and adjudging the defendant liable to account for all the moneys still in his hands. As to all payments made by the defendant in good faith, he is entitled to claim protection.

When the cause came up, on a motion for settlement of findings and an award of costs, and for interlocutory judgment accordingly, the following further opinion was delivered.

Freedman, J.

To correct misapprehension as to the scope of the opinion heretofore filed by me in this case, and to prevent misunderstanding hereafter, 1 restate the position taken by me.

In entering upon the discussion of the questions relating to the validity of the disposition made by Mrs. Gilman of her money, I commenced "by pointing out that, according to the law of England, every disposition of property, real and personal, for the purpose of having masses said, &c., though in form the title is passed, is held void by the courts of that country— namely, a disposition of real property by force of certain statutes directed against so-called superstitious uses, and a disposition of personal property upon general principles of public policy enforced by the courts.

I then held, that in the United States there is no such statute or policy, and that such á policy should not be adopted by the courts.

If, therefore, Mrs. Gilman had made a will, and bequeathed her money to her executor for the purpose of having masses said for the repose of her soul, or that of her husband, or both, or to a particular church or priest for such purpose, I would certainly have upheld the bequest, because under the testamentary disposition the title would have passed.

So, if in her lifetime she had given the money absolutely to a particular church or priest, with the request to have masses said, I should not have hesitated to uphold the gift, because the title would have passed.

So, if she had given the money to the defendant in this action in such a way that the title passed to him unconditionally and beyond recall, and merely requested him to have masses said, but left it to him whether he would do it or not, I would still have upheld the gift.

But she did none of these things. She attempted to create a trust by parol instructions and a bare delivery pursuant to such instructions, and yet retain the title to the money. The defendant, who is an undertaker, was to have no interest or benefit in it.

In discussing the supposed trust, and noticing the points of counsel made in this connection, I showed that, though it was not a trust for a charitable use nor a trust for a pious use, within the meaning of these terms as known to the law of trusts, the purpose of the trust—viz., to have masses said—was nevertheless open to no legal objection, but that the difficulty was that the supposéd trust was no trust at all, which the law can recognize, because there was no longer any person in existence or capable of coming into existence under the trust that could call the alleged trustee to an account in a legal tribunal if he should refuse to execute the trust and convert the money to his own use. I should have added here, as an additional reason why it was no trust at all, that there had been no gift or other disposition by which the title passed, for every trust must be founded upon such a gift or disposition. But as I had previously disposed of that question, I supposed the reiteration was unnecessary.

It, therefore, will be seen that the case really came down to this : No title passed by either a bequest or gift or legal trust: There was only a mere naked deposit of money in the hands of an agent with certain instructions concerning the employment arid payment from time of a third person, namely, a Catholic priest, for services to be rendered. In such a case it is a fundamental principle of the law of this State that the principal may at any time revoke the instructions and recover his property, and that if he does not do so in his lifetime and dies intestate, his death revokes the authority of the agent, and that, as the title must go somewhere, it goes to the administrator of the intestate. In such a case the character of the instructions is wholly immaterial. From the moment the administrator'objects, the agent must cease paying out. He can no more pay for the erection of monuments than he can pay for having masses said. But up to that time he will be protected for acts done in good faith.

Thus it will be seen that if, instead of calling for the saying of masses, the instructions of Mrs. Gilman had been that the defendant, as her agent, should from time to time employ and pay a suitable person to hoist the American flag on the 4th day of July in each and every year over the house in which she died, I would have been bound to render precisely the same decision which I did render.

The findings submitted are settled in strict conformity with these views, and the interlocutory judgment to be entered must also correspond therewith. As to all acts done by the defendant in good faith before-the administrator demanded the money, he must be protected. But all questions arising in this connection should be determined upon the accounting.

As to costs, I can only decide at present that none are to be awarded against the defendant personally. Under the circumstances of the case, not only was he almost under a moral obligation tq have his rights passed upon by a court of competent jurisdiction, but the "question of plaintiff’s legal capacity to sue was also a very complicated question. For these reasons I deem it a wise exercise of the discretion vested in me not to inflict costs upon him. All other questions pertaining to costs to be paid out of the fund should stand over without prejudice until the coming in of the report upon the accounting.

In conclusion, I wish to state, that in consequence of the imperfect newspaper report which I had of the case before Judge Tüley, I referred to that case as one arising under a will. I have since ascertained, though I have not been able to procure an authentic report, that it was a case of conveyance by deed absolute upon-its face, which passed the title as effectually as a will would have done. 
      
       See note at the end of this case.
     
      
       In Schouler v. Williams (Sup’m. Jud. Ct. Mass. March, 1883, 16 Reporter, 79), it appeared that a testator by his will authorized a person named to withdraw the contents of the testator’s bank-book from a certain bank after his death; 1 ‘ said money to be disposed of as follows, part for my burial and funeral expenses and the residue for charitable purposes, masses, &c.” Held, that the nominee was not to take the estate for his own use; that the will created a valid trust “for charitable purposes, masses or other charitable uses; ” and that, the nominee having died without qualifying as trustee, the court might appoint a successor, who should administer the trust as directed by the will.
      The opinion of Judge Tuley referred to in the preceding case was delivered in the case of Richard J. Kehoe v. Kehoe, in Chancery in the Circuit Court of Cook county, 111.
      
        R. W. Clifford, for complainant.
      
        A. Tripp, for respondent.
      Tuley, J.—Richard J. Kehoe files his bill to obtain the instruction of the court as to his duty as trustee in reference to certain funds now remaining in his possession.
      John W. Kehoe, a few weeks prior to his decease, made a deed to complainant of certain personal property, upon oral directions or trusts, which were in substance, that the funds should be devoted to the purpose of procuring masses to be said for the soul of the said John W., and for the soul of his mother, now also deceased.
      The complainant is ready to carry out the wishes of the donor, but the defendants—who would take as legal representatives of the deceased, if no such disposition thereof had been made—contend that the trust is void beca.use ii is not wholly in writing; and if it is not void for that reason, that it is void because the funds were given for a superstitious purpose or use.
      The statute of frauds is relied upon to sustain the first objection, but as that statute does not embrace trusts as to ■ personal property, but only as to realty, the point is not well taken.
      
        As to the second point, the defendants contend that, as our State has adopted the common law and statutes of England prior to 4th year of James L, excepting certain specified statutes concerning usury and frivolous suits (see Revised Stat. chap. 28), that the decisions of the English courts" based upon the statute, 1 Edward VI., holding that gifts or devises for procuring masses, etc., are void, as being for superstitious uses, will be followed by the courts of this country.
      Redfield, in his learned treatise on the law of wills, after stating the doctrine, as above, of the English courts says, “ We understand this to be the general view of the law in the American States” (2 liedfleld, § 3, ch. 5, etc.; Story Eg. § 1168).
      Other text writers take the opposite view, and hold that the American courts should not follow the English courts in their decisions as to what are superstitious uses (Perry on Trusts, §715; llillon Trustees, 455; Williams on Executors, 1055).
      No American decisions of courts of last resort have been cited by any of the text writers, and the researches of counsel in this case, as well as my own, have failed to find any.
      How did this doctrine of superstitious uses originate, and upon what is it founded ?
      Two English statutes were passed about the period of the reformation, concerning the disposition of property for uses then considered superstitious. The first was that of 23 Henry VIII., A. D. 1532, which was about four years after the clergy had acknowl edged Henry VIII. to be the supreme head on earth of the church, which provided that all uses thereafter declared of land (except leaseholds of twenty years) to the intent to' have perpetual, or the continual service of a priest, or other like uses, to be void; and the 1st Edward VI., chap. 14, A. D. 1547, declared the king entitled to all real and certain specified personal property theretofore disposed of for the perpetual finding of a priest or maintenance of any anniversary or obit, or other like thing, or any light or lamp at any church or chapel.
      These statutes were passed at a very troubled period of English history in religious matters. Henry VIII. had just severed the connection between the English church and the pope at Rome, and had united to the kingly power, that of the head of the church.
      While these two statutes were aimed at the practices of the Catholic church, yet the Catholic who denied the supremacy of the king as the head of the church, and the non-conformist were alike persecuted, not only by religious edicts, but by all the power that parliament could exercise in favor of the newly established church.
      It will be noticed that there was no statute making dispositions of personal property to such uses void; that while the 33d of Henry VIII., was prospective, it' only applied to assurances of land to churches and chapels, and that of 1st Edward VI., was limited to dispositions of property real and personal theretofore made.
      Nevertheless, the English chancellors, many of the earlier of whom were ecclesiastics, and the English judges being always adherents of the established church, and undoubtedly imbued with that religious feeling which had induced such legislation, easily found in the absence of any express statute, what they termed “a public policy ” or “a policy of the law,” which enabled them to declare absolutely void all dispositions of property, whether real or personal, given or devised for the uses specified in the two statutes—or for uses which they deemed to come within the spirit of the statutes—such as “ legacies to priests to pray for the soul of the donor,” “ for the bringing up of poor children in the Roman Catholic faith,” etc. (Att’y Gen’l v. Powers, 1 Ball & B. 145; West v. Shuttleworth, 2 M. & K. 684; In re Blundell’s Trust, 31 L. J. Ch. 52; Cary v. Abbott, 7 Vesey, 490; Rex v. Lady Portington, 1 Salk. 162; De Themmines v. Bonneval, 5 Russell, 288.
      When judges undertake to decide cases not upon the law, but upon what they consider “ public policy,” or the “policy of the law,” they stand upon very slippery ground. This is strikingly exemplified by the strange inconsistency of the English decisions as to what are superstitious uses.
      One vice-chancellor, upon the ground of public policy, holding a devise for the purpose of aiding in the publication and circulation of “ Baxter’s Call to the Unconverted,” to be void because for a superstitious use; while Lord Romilly held upon the like ground of public policy, that a trust for propagating the sacred writings of Joanna Southcote valid, and not for a superstitious use, notwithstanding these writings averred that Joanna Southcote was with child by the Holy Ghost (Att’y Gen’l v. Baxter, 1 Vern. 248; Thornton v. Howe, 31 Beav. 14).
      The Irish chancery courts, uninfluenced by any consideration of a “public policy” to oppose Catholicism, have not followed the English courts, but have held, in two cases, devises of personal property, to procure masses to be said for the soul of the donor, to be valid (Read v. Hodgens, Com. v. Walsh, 7 Irish Eq. 17 and note).
      The history of this statute of ours, adopting the common tow and statutes of England, and of the country at the time of its adoption, should also be considered in determining whether or not the statutes 33d Henry VIII. and 1st Edward VI., ever became a part of our law; and. if they did, whether or not the decisions of the English courts as to superstitious uses should be followed in this country.
      In May, 1776, the people of Virginia assembled in a convention to sever the political relations that bound them to the mother country.
      The celebrated bill of rights and constitution of the commonwealth of Virginia was then adopted. The convention adopted several ordinances deemed necessary to the changed relations, and among others, one adopting the common law and statutes of England prior to 4th year James L" The reason why that date was fixed upon was, I presume, because in that year, 1607, the first permanent settlement of Virginia was made, at Jamestown; the theory being that the colonists brought with them the common law and statutes as they then existed.
      “Prom the first, the colonists of America claimed the benefit of the common law. . . The acts of parliament passed after the settlement of a colony, were not in force therein unless made so by express words or by adoption." Cooley Con. Lim. 23, and note.
      Although the established church of England was by law that of Virginia from its earliest colonial days, the same convention that adopted the ordinance also adopted a provision in the bill of rights which declared “ that all men are equally entitled to the free exercise of religion according to the dictates of conscience, and that it is the mutual duty of all to practice Christian forbearance, love and charity toward each other.”
      It is apparent that the sentiment of the convention was in favor of absolute freedom in religion.
      The history of the colonies and of the then passing events, teach us that it was the sentiment and policy of the country. The war for independence was raging, and Catholic Maryland and Episcopal Virginia were then fighting, side by side, the great battle for both civil and religious liberty.
      This statute, Revised Statutes, ch. 38, was first adopted in 1807, by the territory of Indiana, which then embraced the now States of Illinois and Wisconsin. The Northwestern Territory, once a part of Virginia, was largely settled by that people, and that fact probably is the reason why the Virginia statute w-as adopted. Illinois was then an almost uninhabited wilderness, and the 23 Henry VIII. and 1 Edward VI. could have no applicability. The present statute was adopted in Illinois in 1819.
      It may, “upon authority,”be contended that because of inapplicability and inconsistency -with our institutions, the statutes referred to never became a part of our law. Jarman on Wills [Rand. & T. ed.] 386, note; Carter v. Balfour, 19 Ala. 814.
      
        But even admitting that they did become by adoption a part of our law, yet it must be conceded, considering the history of this statute adopting the statutes of England, and of contemporaneous events in Virginia and Illinois at the time of its passage, that neither Virginia nor Illinois intended to adopt the doctrine of the English courts as to superstitious uses as a part of their laws.
      The question being freed from the force of “ precedents,” must be decided upon principle.
      In the United States, where no discrimination is made in law between the professions of any particular religious creed; where there is an absolutely free toleration of all religious opinions and modes of ■worship, can any such thing as a superstitious use be said to exist ?
      Who is to decide whether or not a use as connected with the religious belief of the donor, is or is not superstitious ? Must it be decided according to the sectarian views of the chancellor ?
      Mor is the question here, whether or not the doctrine of a purgatory is well or ill founded; or whether or not masses for the souls of the departed are efficacious. Who can penetrate the life beyond and say that there is no purgatory ?
      This property was appropriated by the donor to a use in accordance with his religious belief.
      That there is a purgatory, and that masses for the souls therein are efficacious, is a part of the belief of those professing the Catholic religion. In the formulary of faith of Pius IV., which is still that of the unchangeable church, and which' persons becoming members of the church are expected to give their adhesion to, I find the following:" “ I profess likewise that in the mass there is offered to God a true, proper and propitiatory sacrifice for the living and the dead. I firmly hold that there is a purgatory, and that the souls therein detained are helped by the suffrages of the faithful.”
      This being the donor’s belief, why should not his desires oe carried out ? It has become a maxim of the law that a man may do what he will with his own. The only limitations are that he does not violate the law in so doing, nor devote his property to an immoral purpose. A person may gratify any whim or caprice, religious or irreligious, that he may desire.- With.the wisdom of his act the law has no concern. The legislature has not declared such a disposition of this property illegal.
      Meither the legislature nor the court has the power to declare that any religious use is a. superstitious use.
      With us there is a legal equality of all sects, all are equally orthodox. To discriminate and say what shall be considered a pious use, and what a superstitious use would be to infringe upon the constitutional guarantee of perfect freedom and equality of all religions. The right of a person to devote his property to any purpose which he believes to be a religious purpose, is just as necessary to the religious liberty guaranteed by the constitution, as is the right to believe and worship according to the dictates of one’s own conscience.
      The wish of the donor must be followed, and the funds appro printed to the procuring of masses to be said in accordance with hi’» instructions.
     