The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1883-07-04
Mrs. Gilman's Trust to a Fricnd bc'

MASSES FOR THE REPOsE OF HER SOUL CAM
NOT BE PAID FOR WITH THE MONEY SIZE
LEFT FOR THAT PURPOSE.
New York TIme..l
In August last Margaret Gilman, eighty.
five years Of age, placed $1,000 In trust
with Henry McArdle, the money to be
used in paying the funeral expenses OF her
self and her husband. James Gilman, ninety
wears OF age. TO erect monument to their
memory, and to pay a Roman Catholic
prjest for saving masses for the repose
of their souls. Shortly after the creation
OF the trust both died interstate, MI.
Gilman dying after his wife. His nephew:
Michael Gilman, became administrator OF
the property. and brought suit in the SUI
perior Count to compel the trustee, Henry
McArdle. to account for the money placed
with him, on the ground that the trust was
invalid. Judge Freedman, before whom
the case was tried, decided yesterday in
favor OF the plaintiff, handing down an
elaborate opinion. "The controN ersy,"
he says, "relates to that part OF it 1.-THE
trust which directs the saying OF masses;
In England this use would be held void as
superstitious one" The decisions OF the
English courts are summarized to show
that il has been held that the disposition Of
property. either real or personal, for such
superstitious uses, is void upon general
principles Of public policy. In the States
OF the United States, where there is no
established state religion, there is no such
statute and no such policy. The Judge
says: 81 do not hesitate TO say that the
doctrine OF superstitiOus uses, rs enforced
by the courts Of England, is against the spi-
rit of our institutions, and should not
be adopted by our courts. IL Is Il
fundamental principle Of our law that
a man may do with his own as he
pleases, provided he does not violate
the law nor devote his property to an i'm
moral USE" The question OF policy hav-
ing been disposed Of, in so far as it rests
uLon religious grounds, the Judge then
discusses the validity OF the trust created.
He decides that the trust is clearly not a
charitable one, as it is not gift for general
public use. Neither is il for a pious use,
as pious uses are known in this country.
"The difficulty with the defendants case"
he says, "is that the trust sought to be Gre
ated by Mrs. Gilman is no trust at all
known to law or equity, because there is
no beneficiary or Cestui que trust IN eX-
istence or capable OF coming into eX-
istence, under the trust, and that
il, for the reason stated, the trust fails,
the disposition made OF the money
cannot stand because it amounted neither
to gift nor TO disposition by last will or
testament. Our statutes prescribe how the
personal property OF person dying intes-
tate shall be distributed. They disclose q
well-defned policy upon that point. They
apply TO personal property and chooses in
action OF every description not actually and
finally disposed OF by the intestate in his
lifetime in some mode recognized by the
law, and they permit no other disposition.
Consequently, as there was no will or a gift,
unless 4 valid trl;st was created, amounting
to an actual and final disposition OF the
money in suit, the law steps in and directs
where the money shall 20. Now, as essen
tial to the validity OF every trust, there
must be four things: ~ a subiect-matter;
(2) q person competent to create it,; (3) one
capable OF holding it as a trustee; and
(4) one to whose benefit the trust is held.
In the present case the first three exist, but
the fourth does not. The Denef-
ciaries are both dead and beyond the reach
oi human law. Their souls are intended
as tue beueficiaries, and the money is
TO be expended for the repose OF
their souls. But the soul OF one who has
departed this life is incapable OF taking an
interest in the property left behind, nor is
it in ANY sense subject to the jurisdiction
OF any legal tribunal. A court Of equity
protects the rights Of the living. 1t can
not extend its jurisdiction to beings which
cannot be apprehended within the bounda-
rics OF the realm. For the reason stated the
trust sought to he created iaile6 for want
OF 4 beneficiary. That being so, and there
having been neither q gift nor tesla
mentary disposition, ii resulting trust arises,
by implication OF law, under the cir
cumstances Of this case, in favor Of the
plaintiff, as the legal representative Of the
husband Of the donor, against the defend
ant, and the defendant must account. The
plaintiff is entitled to judgment declaring
the invalidity Of the trust, and adjudging
the defendant liable to account for all mo-
ney still in his hands. AS to all payments
made by the defendant in good faith, he is
entitled to claim protection"