Festorazzi v. St. Joseph's Catholic Church , 104 Ala. 327 ( 1893 )

HEAD, J.

The validity of the bequest brought to our view, in this case, must be upheld, if at all, upon one of three propositions, viz. :

1. That it is a direct bequest to the church for its general uses.

2. That it creates a charitable use.

3. That it creates a valid private trust.

First: The form of the bequest repels the idea that a gift to a church for its own general uses was intended. The bequest is to the church, “to be used iu solemn masses for the repose of my soul.” Similar bequests have been many times before the courts, in England and this country, and in all the cases, so far as .our research extends, they were treated as having the form and nature of the declaration of a use or trust, and not as direct gifts to, and for the.general uses of, the church. An application of the fund to other uses than securing masses to be said for the repose of the donor’s soul would contravene the intent and purpose of the testator. In England, by statute, as well as the general policy of the law, uses or trusts like this were denounced as superstitious, and held void accordingly. Under our political institutions which maintain and enforce absolute separation of Church and State, and the utmost freedom of religious thought and action, there is no place for the English doctrine of superstitious uses, and if such dispositions could be otherwise supported, under recognized rules of law, they would not be assailed here as giving effect to the religious superstitions of the donor. But the authorities, whether English or American, are potent to show that these bequests partake of the nature of trusts, and cannot be treated as gifts to the churches themselves.

Second: Charitable uses, whether arising out of the English statute of Charitable Uses, in force, in a qualified sense, in Alabama, or sustained upon the general principles of equity, (Williams v. Pearson, 38 Ala. 307), do not include dispositions of the kind in question. To constitute a charitable use it must confer a public benefit open to an indefinite number of persons. — 3 Am. & Eng. Encyc. of Law, pp. 123, 126, 127, 130; 2 Perry on Trusts, (3dEd.), §§ 693, 697, 710. In an extended note to the case of Dashiell v. Attorney General, 9 Am. Dec. 577, will be found a full discussion of the whole subject, collating the authorities. We need only to refer to what is there said. The bequest, in the present case, is, according to the religious belief of the testator, for the benefit alone of his own soul, and can not be upheld, as a public charity, without offending every principle of law by which such charities are supported.

Third : It is not valid as a private trust, for the want of a living beneficiary. A trust in form, with none to enjoy or enforce the use, is no trust. Argument is unnecessary to show that there is no imaginable being possessing power to enforce the use declared in this bequest. The executor can not do it, for he succeeds only to the property rights of the testator. His powers and functions do not, and can not, extend to the well being of the soul of his testator. As said by appellants’ counsel, ‘ ‘If the church should receive this bequest and apply it to paying its debts, repairing its building, supporting its priests and paying the expenses of their ceremonies, the purpose of the bequest y^ould be clearly violated. But what living person is authorized to call the trustee to an account for the misuse of the fund?”

The authorities upon the several propositions discussed will be found in the briefs of counsel which will be reported.

Upon no principle are we able to sustain this bequest. The decree of the chancellor must be reversed and the cause remanded.

Reversed and remanded.

Bkickell, C. J., dissenting.