Chapter XXIII. Bequests, Devises, And Gifts
315. Statutes, Wills.—In some States a religious society can not take under a will, and a bequest of money to a church is void.[560] In Connecticut any devise to a religious corporation not expressly authorized by statute, is void.[561] In Maryland leave to devise land to a religious society must be obtained from the Legislature.[562] In all the States it is safest to consult and carefully follow the statute in drawing a will.
316. Masses, Alabama.—Formerly as a rule of the English common law, it was held that bequests and devises for the purpose of having Masses said for the soul of the deceased, were void as superstitious uses; but under Article 1 of the Amendments to the United States Constitution, and under similar provisions in the constitutions of the several States, the English rule does not prevail in the United States. However, Alabama [pg 170] adopted the English rule.[563] By reading the foot-note to the Alabama case, it will be found that a majority of the States hold that such bequests are lawful.[564] Even in Alabama if the bequest had been to a clergyman or a certain person and accompanied by a request to say Masses, the court might have allowed it.[565]
317. Name, Bequest, Corporation.—A mistake in a name does not render a bequest or a gift void if the person intended can be identified.[566] Also, a devise may be made to a corporation not yet organized and when it is organized the gift or devise will vest. During the interim, it will remain in abeyance.[567]
318. Clergyman, Undue Influence.—A clergyman who is a grantee in a deed from a parishioner, although deriving no benefit therefrom, has the burden of showing good faith in the transaction as the law presumes that he is guilty of undue influence. This presumption is further strengthened by proof of the enfeebled condition of the [pg 171] grantor by age and illness and his susceptibleness to influence. Where the property conveyed in trust for the parish was greatly in excess of its needs, the deed was set aside.[568]
319. Contest, Secession.—In case of a devise to a church which is claimed by two societies, it is the duty of the court to decide in favor of those who adhere to the ecclesiastical government of the church which was in operation at the time the trust was declared.[569] However, to maintain such action it must be brought by the proper parties.[570]
320. Bequests, Membership.—Bequests left to individuals on condition that they shall remain members of a certain church, can be obtained only by complying with such condition.[571]
321. Conditions, Religious Tenets.—In order to determine the conditions of a trust the religious tenets of the donor may be shown to aid in construction of ambiguous provisions.[572]
322. Name, Uncertainty.—A bequest to Georgetown University, in the District of Columbia, which was incorporated under the [pg 172] name of “The President and Directors of Georgetown College,” is not void for uncertainty, as the only institution of learning in the District of Columbia is Georgetown College.[573]
323. Future Uses, Uncertainty.—A devise to a foundling or eleemosynary institution, whenever the Christians should create one which the trustees approved, is valid.[574] And a devise to the “First Christian church erected or to be erected in the village of Telfairville, in Burke county, or to such persons as may become trustees of the same,” is good as a charitable bequest.[575] A bequest to a priest to hold in trust and pay over to the Sisters for the Poor, is valid.[576] A bequest for the care of a tombstone is valid in some States and not in others without a statutory provision.[577] A bequest to the bishop “to be by him used for Roman Catholic charitable institutions in his diocese,” sufficiently describes the beneficiaries and is good.[578] Also, a bequest to Bishop England “in trust for the Ladies of the Ursuline Order residing in Charleston in the State of South Carolina,” was held for “The Ladies of the Ursuline [pg 173] Community of the city of Charleston.”[579] A bequest for Masses “to a Roman Catholic priest that shall succeed me in this place,” was held void for uncertainty.[580] A bequest in trust to a bishop by name to sell and give the proceeds to a society named, is not a devise to the society, but to the bishop in trust.[581]
324. Education, Priesthood.—A devise or bequest to a clergyman of property to be used for the education of poor Catholic boys for the priesthood, was sustained in court as sufficiently definite for performance.[582]
325. Charitable Trust, Cy-Pres.—Equity will not allow a charitable trust to fail for want of a trustee, but will appoint one.[583] The doctrine of cy-pres as applied to charitable gifts and trusts, is not in force in Alabama, Connecticut, Delaware, Indiana, Maryland, Iowa, New York, North Carolina, nor Wisconsin; but seems to prevail in California, Illinois, Massachusetts, Missouri, Pennsylvania, and Rhode Island.
326. Error, Ambiguity.—Great latitude is allowed in charitable bequests, devises, and gifts, in proving aliunde the beneficiary [pg 174] intended where there is error in the name or a latent ambiguity.[584] The religion of the testator will be considered in proving intention.
327. Dissolution, Resulting Trust.—On dissolution of a religious society, the money collected or derived from the sale of property goes back as a resulting trust to the contributors.[585]
328. Charity, Institutions.—To determine what is a charitable trust, devise, or gift, it is necessary to particularly bear in mind the most comprehensive definition of charity. Legacies for schools, churches, libraries, cemeteries, the poor, hospitals, and numerous other eleemosynary institutions, have been sustained under charitable bequests when they otherwise would have failed.[586]