This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
Formerly, in England, the only charitable uses which could be created were those in favor of the established church. A much more liberal rule prevails in America, and property may be left in trust for any religious sect. This question was discussed by the Supreme Court of Illinois in the case of Hoeffer vs. Clogan,3 as follows:
"The doctrine of charitable uses has been repeatedly held to be a part of the law of this state. The equitable jurisdiction over such trusts was not derived from the statute of charitable uses (43 Eliz., Chap. 4), but prior to and independent of that statute charities were sustained irrespective of indefiniteness of the beneficiaries, or the lack of trustees, or the fact that the trustees appointed were not competent to take (Vidal vs. Girard, 2 How., 127; Heuser vs. Harris, 42 I11., 425). The statute, however, became a part of the common law of this state. Heuser vs. Harris, supra; Andrews vs. Andrews, 110 I11., 223; Hunt vs. Fowler, 121 111., 269, 12 N. E., 331, and 17 N. E., 491. The statute of charitable uses of Elizabeth has, since its passage, been considered as showing the general spirit and intent of the term 'charitable,' and the objects which come within such general spirit and intendment are to be so regarded. The definition given by Mr. Justice Gray in the case of Jackson vs. Phillips, 14 Allen, 539, was adopted and approved by this court in the case of Crerar vs. Williams, 145 I11., 625; 34 N. E., 467. It is as follows: 'A charity in a legal sense, may be more fully defined as a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burthens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature.' Any trust coming within this definition for the benefit of an indefinite class of persons sufficiently designated to indicate the intention of the donor, and constituting some portion or class of the public, is a charitable trust. Among such objects are the support and propagation of religion, and the maintenance of religious services (Andrews vs. Andrews, supra); to pay the expense of preaching and salary of rectors (Alden vs. St. Peter's Parish, 158 I11., 631, 42 N. E., 392), or the preaching of an annual sermon in memory of the testator (Duror vs. Motteaux, 1 Ves. Sr., 320). The doctrine of superstitious uses arising from the statute (1 Edw. VI, Chap. 14), under which devises for procuring masses were held to be void, is of no force in this state, and has never obtained in the United States. In this country there is absolute religious equality, and no discrimination, in law, is made between different religious creeds or forms of worship. It cannot be denied that the bequests for the general advancement of the Roman Catholic religion, the support of its forms of worship, or the benefit of its clergy, are charitable, equally with those for the support or propagation of any other form of religious belief or worship. The nature of the mass, like preaching, prayer, the communion, and other forms of worship, is well understood. It is intended as a repetition of the sacrifice on the cross, Christ offering Himself again through the hands of the priest, and asking pardon for sinners as He did on the cross; and it is the chief and central act of worship in the Roman Catholic Church. It is a public and external form of worship - a ceremonial which constitutes a visible action. It may be said, not for any special purpose, but from a liturgical point of view every mass is practically the same. The Roman Catholic Church believes that Christians who leave this world without having sufficiently expiated their sins are obliged to suffer a temporary penalty in the other, and among the special purposes for which masses may be said is the remission of this penalty. A bequest for such special purpose merely adds a particular remembrance to the mass, and does not, in our opinion, change the character of the religious service, and render it a mere private benefit. While the testator may have a belief that it will benefit his soul or the souls of others doing penance for their sins, it is also a benefit to all others who may attend or participate in it. An act of public worship would certainly not be deprived of that character because it was also a special memorial of some person, or because special prayers should be included in the services for particular persons. Memorial services are often held in churches, but they are not less public acts of worship because of their memorial character; and in Duror vs. Motteaux, supra, the trust for the preaching of an annual sermon in memory of the testator was held to be a charitable use. The mere fact that the bequest was given with the intention of obtaining some benefit, or from some personal motive, does not rob it of its character as charitable. The masses said in the Holy Family Church were public, and the presumption would be that the public would be admitted, the same as at any other act of worship, of any other Christian sect. The bequest is not only for an act of religious worship, but it is an aid to the support of the clergy. Although the money paid is not regarded as a purchase of the mass, yet it is retained by the clergy, and, of course, aids in the maintenance of the priesthood.
3 171 I11., 462, 49 N. E, 527.
"In the case of Schouler, Petitioner, 134 Mass., 426, it was held that a bequest of money for masses was a good, charitable bequest of the testatrix, and the court said: 'Masses are religious ceremonials or observances of the church of which she was a member, and come within the religious or pious uses which are upheld as public charities.' So, in Pennsylvania, it has been held that a bequest to be expended in masses for the repose of souls is a religious or charitable bequest under the statute. Rhymer's Appeal, 93 Pa. St., 142; Seibert's Appeal, 18 Wkly. Notes Cas., 276. A recent case, decided in the Irish courts, January 24, 1897, is Attorney General vs. Hall. It was held unanimously, both in the exchequer and the courts of appeals, that a bequest for saying masses for the soul of a deceased person was a good, charitable bequest. In New York and Wisconsin it has been held that a trust of this character is void for the want of a definite beneficiary to enforce its execution. Holland vs. Alcock, 108 N. Y., 312, 16 N. E., 305; McHugh vs. McCole (Wis., decided October 22, 1897), 72 N. W., 631. But the decisions in those states are readily distinguishable from the rule in this state. In New York charitable uses were abolished by legislation, and in all valid trusts there must be a definite and certain beneficiary to take the equitable title, unless the act of 1893, which is said to have resulted from the decision in Tilden vs. Green, 130 N. Y., 29, 28 N. E., 880, has enlarged or relaxed the rule as to a definite beneficiary. In Wisconsin all trusts are abolished by statute, except certain specific trusts, where there is certainty in the beneficiaries, and in that state bequests have been held to be void which have been uniformly sustained in this court as for charitable purposes. The decision in McHugh vs. McCole, supra, was upon the ground that the doctrine of charitable uses was not in force in that state, and that a trust, to be sustained, must be of a clear and definite nature, and the beneficiary interest to every person therein must be fully expressed and clearly defined upon the face of the instrument. The will in that case gave a certain sum of money to the Roman Catholic Bishop of the diocese of Green Bay, Wis., to be used and applied in specified amounts for masses for the repose of testator's soul and the souls of certain named persons. It was held invalid solely on the ground that the provision amounted to a trust which, under the statutes of that state, was invalid. It was said that, if the testator had made a direct bequest of the sum in question to Bishop Messmer, or to any bishop or priest, for masses for the repose of the souls of persons named in his will, it would be valid, and the court said: 'We know of no legal reason why any person of the Catholic faith, believing in the efficacy of masses, may not make a direct gift or bequest to any bishop or priest of any sum out of his property or estate for masses for the repose of his soul or the souls of others, as he may choose.' The court expressed regret that the intention of the testator could not be given effect because he had put it in the form of a trust provision. So, also, in New York, it has been held in several cases that a bequest to a named priest for the saying of masses for the repose of the souls of specified persons is valid. Ruppel vs. Schlegel (Sup.), 7 N. Y. Supp., 936; In re Howard's Estate (Suit.), 25 N. Y. Supp., 1111; Vanderveer vs. McKane (Sup.), 11 N. Y. Supp., 808. The case of Festorazzi vs. Catholic Church, 104 Ala., 327, 18 South, 394, holds that a bequest to that church in the city of Mobile, to be used in solemn mass for the repose of testator's soul, could not be supported as a charitable bequest. The decision seems to be on the ground that the testator's own soul was the exclusive object and beneficiary of the trust, and that no public benefit was to be derived from it, and no living person was able to call the trustee to account. We are not able to agree with the conclusion that there is no benefit to the church or public in such case, and, as we have seen, the ceremonial of the mass is a public action, which can be seen and taken cognizance of, so that there is no more difficulty in procuring a mass to be said than there is in securing the public delivery of a sermon or lecture. A bequest for the erection of a public statue or monument to a distinguished person is a good charitable bequest, and yet such person, if deceased, could not enforce its execution, but the courts could and would do it. We think the devise and legacy charitable, and a rule applicable to trusts is that they will not be allowed to fail for want of a competent trustee. The court will appoint a trustee or trustees to take the gifts and apply them to the purposes of the trust. Heuser vs. Harris, supra. The decree of the circuit court is reversed, and the cause is remanded, with directions to proceed in conformity with the views herein expressed. Reversed and remanded."
A trust for the propagation of a religious belief, however, which is in violation of the criminal laws of the State or country would be void; and the same is probably the law in the case of property left in trust for the purpose of promoting infidelity.4