(Supreme Court of Pennsylvania, 1860. 35 Pa. 373.)

Error to district court, Philadelphia county.

Scire facias by Mary Ruby, John Ruckstool, and Eliza A. Ruckstool against Charles Still and Sarah K., his wife, on a mortgage given by the defendants to the female plaintiffs of the Heart & Hand Female Beneficial Society of Philadelphia.

The following affidavit of defence was filed by one of the defendants: "Charles Still, one of the above-named defendants, and on behalf of his codefendant, being duly sworn, etc., saith: That they have a just and legal defence to the whole of plaintiffs' claim in the above case, the nature and character of which is as follows: That the said Eliza A. Ruckstool, one of the above-named plaintiffs, before and at the time of the commencement of this suit, and at the time of the execution of the mortgage on which said suit is brought, was and still is married to one John Ruckstool, then and yet her husband, who is still living, to wit, at Philadelphia aforesaid, in the county aforesaid; and this deponent for himself and his codefendant further says, that they have not, nor has either of them, any knowledge of John Ruckstool joined as a party plaintiff in this suit, except as the reputed husband of the said Eliza A. Ruckstool; his name does not appear in the mortgage on which this suit is brought. Nor have this deponent and his codefendant, or has either of them, at any time, had any transactions of business. or otherwise with him. All of which the deponent expects to be able to prove on the trial of the case."

Judgment was rendered for want of a sufficient affidavit of defence.2

WOODWARD, J. The affidavit disclosed no defence whatever.
Mrs. Ruckstool, as appeared on the face of the mortgage, was only
trustee for the Heart & Hand Female Beneficial Society, in whom
the beneficial interest of the mortgage was vested. Femes covert,
like infants, lunatics, and others non sui juris may be trustees, sub-

1 For discussion of principles, see Eaton on Equity (2d Ed.) § 162.
2 The statement of facts is abridged.

ject, of course, to their legal incapacity to deal with the estate vested
in them: Hill, Trustees, 49. The incapacity of Mrs. Ruckstool
to sue in her own name was obviated by her husband joining with
her. The mortgagors must pay the money as they agreed to do.
The judgment is affirmed.

und demanded

II. Who may be a Cestui Que Trust

HOEFFER v. CLOGAN et al.

3

(Supreme Court of Illinois, 1898. 171 Ill. 462, 49 N. E. 527, 40 L. R. A. 730, 63 Am. St. Rep. 241.)

Appeal from circuit court, Cook county; O. H. Horton, Judge.

Bill by Patrick Clogan against the Holy Family Church and others for the construction of a will, and to determine the validity of a devise and bequest made by such will. From a decree declaring the clauses of the will containing such devise and bequest void, defendants James F. K. Hoeffer and others appeal. Reversed and remanded.

CARTWRIGHT, J. Andrew Clogan, of Chicago, died June 6, 1892, leaving a last will and testament, which was admitted to probate, and letters testamentary were issued to the executor, James Clogan. The fourth and fifth clauses of the will are as follows: "Fourth. I give and devise unto the Holy Family Church (on West Twelfth street), its successors and assigns, lot 56 in Sharp & Smith's subdivision of block 42, in the Canal Trustees' subdivision of the west one-half (W. 12) of the west one-half (W. 1⁄2) of the northeast quarter (N. E. 1⁄44) of section seventeen (17), town thirty-nine (39) north, range fourteen (14) east of the third principal meridian, in Chicago, Cook county, Illinois, together with the building and improvements thereon, in trust for the following purposes: To sell the same, and expen! the proceeds of said sale in saying masses for the repose of my soul and the souls of my deceased wife, Margaret Clogan, my mother-in-law, Ellen Hurley, and my brother-in-law, James Hurley. Fifth. I give and bequeath unto the Holy Family Church (on West Twelfth street), the sum of $1,000, in trust to be expended in saying masses for the repose of my soul and the soul of my deceased father, Patrick Clogan, mother, Julia Clogan, and sister, Margaret Clogan." By the will the testator also directed the expenditure of $250 in erecting a monument on his lot in Calvary Cemetery, bequeathed $500 to his sister Mary Daly, and devised certain real estate to his brother, Patrick Clogan, and his nephew, the executor, James Clogan, and by the seventh clause said James Clogan was made residuary devisee.

On March 17, 1896, said Patrick Clogan purchased from said James. 8 For discussion of principles, see Eaton on Equity (2d Ed.) § 163. THROCKM.EQ.JUR. (2D ED.)-21

Clogan all his interest as residuary devisee in the property mentioned in the fourth clause of the will, and afterwards filed the bill in this case, alleging the above facts, and averring that there was no society or corporation in Chicago, on West Twelfth street, known as the Holy Family Church, but that there was an unincorporated religious society known as the Holy Family Parish, which had a church on West Twelfth street, and that the title to said church was in the appellants, clergymen, who are, respectively, rector, assistant rector, and treasurer of said Holy Family Parish, and their successors, as such, in trust for the purposes of the Society of Jesus, including the maintenance of the church for the benefit of the Holy Family Parish. The Holy Family Church, James Clogan, in his own right and as executor, Mary Daly, and appellants were made defendants. The prayer of the bill was that the will should be construed, and the validity of the devise and bequest to be expended in saying masses for the repose of souls should be determined. James Clogan and Mary Daly answered, admitting the allegations of the bill. The amended answer of appellants admitted the facts alleged in the bill, and averred that the church referred to therein was commonly known as the Holy Family Church, and was the only one in Chicago of that name; that the mass was a solemn act of worship according to the belief and practice of the Roman Catholic Church; that mass was celebrated several times each day at the said Holy Family Church, and that whenever mass was so celebrated the doors of the church were open, and such of the public as might desire to worship at such celebration of mass were admitted to do so. The cause was heard on the bill and answers so filed, and the court decreed the fourth and fifth clauses of the will null and void; that the title to the lot therein described was vested in Patrick Clogan, as grantee of the residuary devisee; and that the $1,000 mentioned in the fifth clause should be paid to the residuary legatee, James Clogan, in due course of administration. An appeal to this court was prayed by appellants and allowed by the court.

Appellee Patrick Clogan has moved to dismiss the appeal for want of jurisdiction, and because appellants have no interest in the cause. The purpose of the bill was to settle the question whether the fee-simple title to the lot described in the fourth clause of the will passed under that clause, or whether the attempted devise was void, and the title passed to the residuary devisee under the seventh clause. The decree of the circuit court held the devise of the freehold by the fourth clause void, and established title in Patrick Clogan. A freehold is involved in the appeal from that decree. Appellants are the officers of the Holy Family Parish, and trustees representing the religious society to which the devise was made. They were made defendants to the bill as representing such society, and their official relation to the parish and church makes them proper parties to represent it in the question of the true construction of the will, and the validity of the devise and bequest. The motion to dismiss the appeal is denied.

The devise and bequest were made to the Holy Family Church, in trust for a specific purpose, which was that the church expend the proceeds of the sale of the real estate and the amount of the bequest in masses for the repose of the souls of the persons named. They were not intended as gifts to the church for its general uses, and any other application than that specified in the will would contravene the purpose. of the testator. This being so, it is claimed that the trust is void, because it is a private trust, with the souls of particular deceased persons as beneficiaries, none of whom can come into court and call the trustees to account or enforce its execution, and also for want of a trustee capable of taking legal title to the property. On the other hand, it is claimed that the devise and legacy are for a charitable use, within the meaning and spirit of the doctrine on that subject, and, if this position is correct, the rules of law which would invalidate them as an express private trust will not affect their validity. 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. c. 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 v. Girard, 2 How. 127; Heuser v. Harris, 42 Ill. 425). The statute, however, became a part of the common law of this state. Heuser v. Harris, supra; Andrews v. Andrews, 110 Ill. 223; Hunt v. Fowler, 121 Ill. 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 v. Phillips, 14 Allen, 539, was adopted and approved by this court in the case of Crerar v. Williams, 145 Ill. 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 v. Andrews, supra), to pay the expense of preaching and salary of rectors (Alden v. St. Peter's Parish, 158 Ill. 631, 42 N. E. 392), or the preaching of an

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annual sermon in memory of the testator (Duror v. Motteux, 1 Ves. Sr. 320).

The doctrine of superstitious uses arising from the statute (1 Edw. VI. c. 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 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 worshipa ceremonial which constitutes a visible action. It may be said 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 v. Motteux, 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.

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