Holland v. Smyth , 47 N.Y. Sup. Ct. 372 ( 1886 )

Dykman, J.:

The third clause in the will of Thomas Gunning, deceased, is as follows:

“ Third. All the rest, residue and remainder of my estate I give and oequeath to my executors, to be applied by them for the purpose of having prayers offered in a Roman Catholic church, to be by them selected, for the repose of my soul and the souls of my family, and also the souls of all others who may be in purgatory.”

This action was brought by the testator’s heirs-at-law to have that clause declared void and their title to the residuary estate established. The defendant Alcock demurred to the complaint.

It cannot be said that this clause suspends for more than two lives the absolute ownership of the residuary estate. The evident intendment is that the prayers shall be offered at once, and if the executors select the church, and the prayers are offered and paid for, there will be no perpetuity. The objection to the clause more seriously urged is, that it creates a trust which is void for indefiniteness. But we do not think this view can be supported, and we think the rule was correctly stated by Mr. Justice CulleN, who passed on this will and upheld this clause. (See N. Y. Daily Reg., Jan. 29, 1886.)

We do not pass on the question whether this gift could be sustained as one to a charitable use. We rest our decision on the doctrine enunciated by Judge CulleN, “ that there is a certain class of testamentary dispositions, the object of which is solely the benefit, real or supposed, of the testator, or the gratification of his desires, which, if trusts are not charities, nor do they have any beneficiary, yet, nevertheless, are unquestionably valid. The precise legal doctrine on which they rest, the cases do not state. I think a provision for masses for the benefit of the testator’s soul is exactly akin to a provision for his funeral or monument. While decent burial is given by the law out of even an insolvent’s estate, 1 think the monument is no more an adjunct or concomitant of burial than the masses. * * * I think all the directions are of the same general character, and equally good in law.” There is nothing contrary to this doctrine in the cases to which the respondent refers.

The O’Hara Case (95 N. Y., 418) was decided on the theory that the testatrix attempted to create a pernetuitv. In Prichard v. Thompson (95 N. Y., 76) the fund was to be divided among charities of all denominations within two States. If this case were of the same class it would rather fall within the rule of Power v. Cassidy (79 N. Y., 602), upholding a-gift to all schools;, etc., of the Roman Catholic faith.

We think the gift' for masses valid, and that the judgment should be reversed, with costs.

Barnard, P. J., concurred.

Order overruling defendant’s demurrer and judgment thereon reversed, and demurrer sustained, with leave to plaintiff to plead over on payment of costs.