The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-07-05
MASSES FOR THE SOUL.
Money Bequeathed for That Purpose Is an
Illegal Trust, and of No Force.

lHeSaI trust, ana OF NO Force
New York Times
In August last Margaret Gilman eighty
five years OF age, placed 81, 300 in trust with
Henry McArdle, the money to be used in
paying the funeral expenses of herself and
her husband, James Gilman, ninety years OF
age, to erect monument to their memory,
and to pay a Roman Catholic priest for say
ing masses for the repose of their souls.
Shortly after the creation of the trust both
died intestate, Mr., Gilman dying after his
wife. His nephew, Michael Gilman, became
administrator of the property, and brought
suit in the Superior Court to compel the
trustee Henry McArdle, to account for the
money placed with him, on the ground that
the trust was invalid, Judge Freedman, be-
fore whom the case was tried, decided yester-
day in favor of the plaintiff, handing down
an elaborate opinion. Tine controversy"
he says, relates to that part of 1t (the trust)
which directs the saying OF masses. =
In England this use would be held void, as a
superstitious one." The decisions of the
English courts are summarized TO show that
it has been held that the disposition OF prop
erty, either real or personal, for such super
stitOus uses is void upon general principles of
public policy. IL the States of the United
States where there is no established S tate re-
Hsion there is no such statute and no such
policy The Judge says: II do not hesitate
to say that the doctrine of superstitious uses,
as enforced by the courts of England, is
against the spirit of our institutions and
should not be adopted by our courts. it is
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 immoral use." The question
of policy having been disposed of, in so far
as it rests upon religious grounds, the Judge
created. He decides that the trust
is clearly not charitable one, as
it is not a gift for general public
use. Neither is it for pious use as pious
uses are known in this country. "The diff
Guilty with the defendants case" he says, 'is
that the trust sought to be created by Mrs.
Gilman is no trust at all known to law or
equity, because there is no beneficiary or
cestui que trust iii existence or capable of
coming into existence under the trust, and
that if, for the reason stated, the trust fails
the disposition made of the money cannot
stand because it amounted neither to u gift
nor to a disposition by last will tesla
ment, Our statutes prescribe how the per-
sonal property OF person dying intestate
shall be distributed. They disclose a we'll
defined policy upon that point. They apply
to personal porperty and chooses in action of
every description not actually and finally
disposed of by the interstate in his lifetime
in some mode recognized by the law, and
they permit no other disposition Conse-
quently as there was no will or gilt, unless
a valid trust was created amounting to an
actual and final disposition of the money in
suit the law steps in and directs where the
money shall go. Now, as essential to the
validity of every trust, there must be four
things: 1) A subject matter; (2) 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
benefciares are both dead and beyond the
reach OF human law, Their souls are in
tended as the beneficiares, and the money is