Rhymer's Appeal

Mr. Justice Sterrett

delivered the opinion of the court. March 1st 1880.

By the residuary clause of his will, executed fifteen days before his death, the testator bequeathed “ all the rest, residue and remainder” of his estate “to St. Mary’s Catholic Church, to be expended in masses for the benefit and repose of” his soul.

It is contended that the bequest is void under the Act of 1855, the 11th section of which declares that “ no estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will attested by two credible and at the same time disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin or heirs according to law.”

While the propriety of legislation which thus limits the right of giving for religious or charitable purposes may sometimes have been questioned, it has never been doubted that the act is constitutional, and the only question presented for our consideration is whether the residuary bequest is for either a religious or charitable use, and therefore falls within the prohibition of the statute.

The testator has clearly declared the use or purpose to which his bequest shall be applied. It is to be expended in masses for the benefit and repose of his soul. While this may not be regarded as a charitable use within the accepted meaning of the word, it is certainly in every proper sense of the term, and according to the obvious intendment of the act, a religious use. In the denomination with which the testator appears to have been identified the mass is regarded as a prominent part of the religious service and worship. According to the Roman Catholic system of faith there exists an intermediate state of the soul, after death and before final judgment, during which guilt incurred during life and unatoned for must be expiated; and the temporary punishments to which the souls of the penitent are thus subjected may be mitigated or arrested through the efficacy of the mass as a propitiatory sacrifice. Hence the practice of offering masses for the departed. It cannot be doubted that in obeying the injunction of the testator and offering masses for the benefit and repose of his soul the officiating priest would be performing a religious service, and none the less so because intercession would be specially invoked in behalf of the testator alone. The service is just the same in kind whether it be designed to promote the spiritual welfare of one or many. Prayer for the conversion of a single impenitent is as purely a religious act as a petition for the salvation of thousands. The services intended to be performed in carrying out the trust created by the testator’s will, as well as the objects designed to be attained, are all essentially religious in their character.

It appears to us that the bequest to St. Mary’s Catholic Church was clearly for a religious use, and therefore void according to the express terms of the statute. It follows that the schedule adopted by the auditing judge should have been confirmed by the court.

The decree of the Orphans’ Court is reversed at the costs of the appellee, and it is now adjudged and decreed that the residuary fund, viz., $643.79, be distributed as follows, to wit: To Timothy Kelly, administrator of Mary Power (widow), $214.59; to Anastatia Power, $143.06;. to Charles E. Stewart, guardian of John Power, $143.07 ; to Mary Power, $143.0-7.