Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-07-14
TWO SOULS DEFEATED IN CoURT-A
VERY INTERESTING CASE.

A strange case has just been decided in
New York, which agitates legal and church
circles to an unwonted extent. 1t has
aroused the especial anger of the Catholic
clergy, and not without what to us seems
good cause. In one view of the matter,
The question of liberty of conscience is in
volved, though that does not appear to
have been considered by either counsel or
Court. Yet to US it seems to be the real
issue Of law in the case. Margaret Gilman
died recently. She gave into the hands of
friend before death sum of money, the
income of which she directed him to ex-
pend for the payment of priests to have
masses said for the repose Iof her soul and
that of her deceased husband. Her next
of kin sued this trustee for an account,
on the ground that the trust sought to be
created was superstitious, and against
public policy. These two points the Court
disposes of at once. In this country,
where there is no State religion, unlike the
practice in England, the Courts of equity
will not hold such trust to be supersti-
tious. Nor is it against public policy.
since the spirit of our institutions and our
laws give to each the liberty to do with
his own as ne will, so long as it is not con-
trary to law and public policy and is not
for an immoral purpose. But. says the
Court, the requisites of gift were want.
ing, for there was not parting absolutely
with the title and control, but specific uses
were enumerated to which the money was
to be applied. Is it charitable use :?
No; for to be such it must, under the rule
governing Courts OF equity, be either for
the promotion of science, the teaching
of useful knowledge, the relief of the
sick, lame, or infrm, or poor, or
che redemption of prisoners, or the
erection Of churches, bridges, ports or
other public structures. A gift may Gre
ate a trust that will be enforced. Now,
this trust relates, says Judge Freedman,
solely to personal property, and as such
does not fall within the statute of uses and
trusts of the State of New York, for there
is no beneficiary, or cestay que trust in
existence, or capable OF coming into exist
ence who can enforce the execution of the
trust, or take under it. There was no will
in this case, and the laws of New York
provide how the property of an inestate,
not disposed of by gift before death, shall
be distributed, and there can be no other
disposition Of it. AS there was no will,
and no gift, for the reasons stated, there
was no trust, and the law steps in and dis
poses of the property. An essential ele-
ment in valid trust is that there shall
be a person known to the law for
whose benefit the trust is created.
A Court of equity will supply the lack Of
trustee, but, as is obvious. no power can
supply the lacking beneficiary. A bene6-
ciary must be either a natural or an artiti-
.cial person known to the law, capable Of
coming into existence under the trust.
Even if such one can be identified, the
law will not require it to be specifically
named. Now, any one capable of taking
IN interest in property, may, to the extent
Il his legal capacity, and no further, be