dispositions; but there is nothing in the Act to prevent every acre of land in the kingdom from being vested in trustees for charitable purposes. No part of the evidence produced before us shows that any unreasonable or improper amount of landed property is vested in such trustees, or that there is any danger of this occurring. 66 24. Your Committee observe, that one of the most important witnesses, the Right Honourable Thomas Pemberton Leigh, says, that the statute 9 Geo. II. is attended with extreme inconvenience; and he gave his opinion against extending to the bequests and donations of personal property the same restrictions which prevail in respect to real property; and Mr. Bunting, in his evidence, shows the great practical evils resulting from that statute. “25. An opinion has, however, been expressed by some of the witnesses examined before your Committee, that while it is beneficial for the country generally that a testator should not be restricted in disposing of his property, it is necessary that the exercise of such discretion in måtters of charity should be subject to some interference of the legislature. "26. The witnesses who have given expression to this opinion have supported it on one or both of the following grounds : "1st. The example of foreign countries. "2nd. The alleged frequency of undue influence being exercised over persons on their deathbeds. "27. With reference to the first argument, your Committee desire to remark, that the policy of the foreign countries referred to, with regard to the power of testators, is different in principle from that which obtains in this country. "28. By the provisions of the Code Napoleon, a testator is permitted to dispose only of one child's portion of his property; for instance, if he have five children, four-fifths of his property go in equal portions to each of his children, and neither for charitable nor any other purposes, is he permitted to dispose by will, of more than the remaining one-fifth. "29. The law of Spain does not allow the testator, if he has children, grand-children, and their descendants, to dispose by will, of more than onefifth of his property. And the law generally of foreign countries is founded on the principle shortly thus expressed by an eminent French jurist, La loi faisait les héritiers, non volonté de l'homme. "30. On the other hand, the law of this country has been formed upon the opposite principle, that voluntas hominis constituit heredem. It is lawful for every person to devise, bequeath, or dispose of by will, all real and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law; and the result of this system is, as stated by one of the witnesses examined before your Committee, that a person possessed of considerable estates, and having a dozen children, may leave those children utterly unprovided for, and bequeath the whole of his property to a prostitute. 31. Your Committee do not feel themselves called upon to pronounce an opinion as to the comparative merits of these two opposite systems. 66 '32. As to the alleged frequency of undue influence being exercised over persons on their deathbeds, your Committee have directed their anxious attention to this matter. "33. It may here be convenient to state what the law is (apart from any statutes), as to undue influence in the case of a devise or testament; premising that it applies not only to realty but also to personalty, as to which there is at present no restraint with regard to gifts or bequests for charitable purposes. Not only is a will invalid if obtained by fraud, but by any undue influence which any law can possibly reach; thus over-persuasion by a wife is sufficient, and the courts are peculiarly jealous of any influence acquired by a 'spiritual adviser' or by 'superstitious terrors', and the testator must moreover be of sound disposing mind; a will, impeachable on any of these grounds, can either be prevented from probate in the ecclesiastical courts, or may be set aside by bill in equity. "34. Your Committee have endeavoured to test the efficiency of the existing law by experience. "35. Among other witnesses, they have examined Mr. Wale, who stated to the registrar of the Consistorial Court in Dublin, his wish to find out any wills in which the death of the testator took place immediately after the date of the will. The registrar of the court, of which Mr. Wale's father-inlaw was the judge, selected such wills as he thought bore most upon this point. In most of the forty to seventy or eighty so selected, Mr. Wale saw there was a considerable lapse of time between the date of the will and the date of the death. He therefore put them aside, and procured copies only of those in which the time between the death of the testator and the date of the will was short. "36. Those wills, so selected, Mr. Wale submitted to your Committee. "37. In every instance in which they have had the opportunity of examining evidence as to the circumstances under which those wills were made, it appears clearly that not the slightest trace of undue influence is to be found.* "38. As the witness stated, that his motive for instituting the inquiry he made, was the feeling that, if there were any wills of the same description as the first he examined, viz, that of Marcella Ayres, such a discovery would certainly lead to the necessity of extending the Statute of Mortmain to personalty as well as real property. Your Committee think it important to observe, that the object of the Rev. Dr. Yore, in inducing Marcella Ayres, shortly before her death, to make a will, was to prevent the whole of her property from falling absolutely into his hands, as it would have done if she had died intestate. "32. Your Committee, on this matter, draw attention only to the evidence of Mr. Wale, as he is the only witness examined before them who has investigated any large number of cases, for the purpose of discovering instances in which undue influence might be suspected; and it must be evident, that no law can provide against isolated cases of carelessness or injustice. "Your Committee, influenced by these considerations, therefore agree with the Right Hon. Thomas Pemberton Leigh, the highest legal authority who has appeared before them, that the inconveniences arising from gifts of personalty in favour of charities, are not such as to require legislative interference. "41. Your Committee have had evidence given to them concerning the prevalence of what have been inaccurately called secret trusts and spiritual wills; that is to say, gifts and devises of property which are legally absolute and free from any trust whatever, but which are accompanied by some declaration of the intention of the donor or testator, in such a form as to be binding upon the conscience of the person to whom the property is given, and to constitute him, by a conscientious obligation in the nature of a debt of honour, a trustee for particular specified objects. In such cases, these intentions are not submitted to the court on probate, or in any other way disclosed, either when the gift takes effect, or subsequently in the course of the administration of the property. In some instances, these instructions appear to be communicated verbally, or, if expressed in writing, are care * What can be thought of the fairness or justice of the Committee in refusing to insert this paragraph? fully framed so as not to constitute a trust within the rules of a court of equity. "42. This state of things seems to be the obvious and inevitable result of that code and that policy by which Roman Catholic property, instead of being protected by law, was attacked by law. An alteration of the law in this respect, would greatly diminish the frequency of such dispositions by Roman Catholics. "43. But the obligations arising from the wishes of a testator, are not within the province of municipal law, for no law can prevent a legatee or an heir from holding himself bound in conscience to execute those wishes, to which, indeed, the opinion of mankind attaches a peculiar sacredness; and cases of this description are of daily occurrence, in one form or other, among all religious denominations.* No. III. COURT OF CHANCERY IN IRELAND, TRINITY TERM 1852, Carberry v. Coxt-This was an ordinary suit to administer the estate of the late Richard Keatinge, Esq., of Dungarvan. The usual decree for an account of the debts, legacies, &c., had been obtained. The case now came before the court on exceptions taken by the residuary legatee, Mr. Cox, to a portion of Master Henn's report, finding, in the usual manner, amongst others, a variety of bequests for charitable and religious purposes to the parish priest of Dungarvan, to the convent at Dungarvan, and to the monks of Mount Melleray, and of the monastery of Shandon, county Waterford. The first exception stated that, inasmuch as the said master (Henn) had found that the said testator, Richard Keatinge, by his last will and testament, bearing date the 8th of January 1844, devised and bequeathed the sum of £20 yearly to the monks of Shandon, near Dungarvan, to provide clothing for the poor children attending their school, whereas the said master should have found such devise and legacy as void and inoperative, same being given to a body not recognized by law and incapable of taking the same, and that there was no * The remainder of the draft did not differ from the Chairman's as agreed to, ante, p. 238. A case showing that the old mortmain laws cannot apply to Catholics, (as their religious houses are not recognized as corporations with perpetual succession,) and that they cannot take bequests in any legal capacity, but that the "emancipation" act practically confiscates such bequests. evidence before the said master of any legal body being in existence and known as the monks of Shandon, and no sufficient evidence to sustain said finding. There was a similar exception to that portion of the report of the master, finding in the usual course, a similar bequest of £20 a-year to the monks of Mount Melleray, near Cappoquin, in the county Waterford, for the repairs and improvement of their chapel and lands. Mr. BREWSTER, Q.C., on behalf of Mr. Cox, the residuary legatee and the party excepting, stated the exceptions. The learned counsel submitted, that the exception to the report for not finding the duration of the bequests, or the period for which they should be paid, was one which ought to be allowed. The second exception, taken on the ground that the master had not ascertained, by legal evidence, the existence of any such persons or bodies as those mentioned by the testator, was one, the validity of which could not be disputed. According to the statute law, all such bequests to such persons or bodies were absolutely and distinctly prohibited. He apprehended that, independent of the primary objections, a devise to such persons or communities chargeable upon real estate, would be open to many serious and fatal objections, but even if they were merely chargeable upon the real estate, the demise would be void and inoperative. He did not intend to contend, that the bequest to the parish priest of Dungarvan, for the purposes specified, was void-neither was it his intention to make any objection to the bequest to the nunnery at Dungarvan; for in the enactments directed against religious orders and communities, exceptions were made for nunneries. But he submitted, that the bequests to the monks of Shandon and of Mount Melleray, according to the authorities upon the subject, were void and inoperative in the eye of the law. In support of this proposition, he would refer to the 28th section of the act of George IV, or, the Catholic Relief Act, which stated: "And whereas Jesuits, and members of other religious orders, communities, or societies of the Church of Rome, bound by monastic or religious vows, are resident within the United Kingdom, and it is expedient to make provision for the gradual suppression and final prohibition of the same therein: be it, therefore, enacted: That every Jesuit, and every member of any other religious order, or community, or society of the Church of Rome, bound by monastic or religious vows, who, at the time of the commencement of this act, shall be within the United Kingdom, shall, within six calendar months after the commencement of this act, deliver to the clerk of the peace for the county, or the place where such person shall reside, or to his deputy, a notice or statement in the form, and containing the particulars re And if quired to be set forth in the schedule to this act annexed. such person shall not do same, he shall forfeit for every month he resides within Her Majesty's dominions after the passing of this act, the sum of £50". The master had received no evidence, as he ought to have done, of the existence of the religious bodies mentioned in the will of the testator; and secondly, of their having been in this country at the time of passing the Catholic Relief Act, and of their having complied with the provisions contained in that act for legalizing their existence. There was no proof of any kind before the court, that all or any of the monks at Mount Melleray, or at Shandon, had been in this country previous to the passing of the act, and of their having complied with its provisions; therefore, the court could not regard them as parties to the cause in a legal sense. The 29th section of the same act provided, "that if any Jesuit, religious order, or community, or society, as aforesaid, should come into the realm after the passing of that act, he should be deemed guilty of a misdemeanour, and on being thereof lawfully convicted, should be sentenced and ordered to be banished from the United Kingdom for the period of his natural life". In other parts of the act, there were provisions for the admission of such persons into the United Kingdom, as, for instance, the permission of one of Her Majesty's secretaries of state. But there was no provision legalising their existence, much less to entitle them to become devisees. The thirty-third section enacted," that if any Jesuit, or member of any religious order, or community, or society, should, after the passing of that act, admit any person to become a regular ecclesiastic, brother, or member of any such order, community, or society, or would aid or assist in administering any oath, vow, or engagement, intended to bind the person taking same to the rules or orders of any such society or community, every person so offending should be deemed guilty of a misdemeanour, and be liable to punishment for such offence". It appeared manifestly from all these sections, that the legislature actually prohibited, in the most absolute manner, the very existence of those religious bodies mentioned in the will of the testator, and to establish whose bequests in their favour the sanction of the law was now sought. As to the question of duration, it was clearly the duty of the master to have found and reported the period for which these bequests were to be paid, for the legacies might depend, in some respect, on that finding. For example, the question to be decided might have been very different from that now before the court, if it turned out that there was a religious body in existence at the passing of the Catholic Relief Act consisting of five or ten persons, and that they had remained in the country ever since, and that they had complied with the provisions |