(1860) 28 Beav. 39, 54 E.R. 280 (Rolls Court)

[*39] In the Matter of Michel’s Trust. March 3, 1860

[S. C. 29 L. J. Ch. 547; 2 L. T. 46; 6 Jur. (N. S.) 573; 8 W. R. 299.

See In re Fleetwood, 1880, 15 Ch. D. 609]

The 8 & 9 Vict. C. 59, s. 2, legalizing Jewish charities, &c., is retrospective in its operation.

A bequest by a Jew who died in 1821 of £10 per annum to be paid to three persons to learn, in their Beth Hammadrass, or college, two hours daily, and on every anniversary of the testator’s death to say the prayer called in Hebrew “Candish,” and which is a short Hebrew prayer in the praise of God and expressive of resignation to His will, is valid.

This was a special case seeking the opinion of the Court under the following circumstances:—

The testator, Abraham Michel, a Jew, by his will, made the following bequest, which was to take effect on the death of his widow.

“I give and bequeath unto my executors so much money as will produce in Government securities the sum of £10 sterling, per annum, upon this special trust and confidence (that is to say), upon trust to invest the same in Government securities, as they shall think best, and to pay the interest thereof or dividends, yearly or half-yearly, so as they my executors shall think proper, unto the parnosim or wardens of the congregation of Ostrovesy, near Opateir in Little Poland, for the time being; but my will and mind is, that the said parnosim or wardens do pay the said sum of £10 to three qualified persons, chosen by them from and out of my family, to learn, in their Beth Hammadrass or college, two hours daily for ever, and on every anniversary of my death, to say the prayer called in Hebrew Candish; and in case there should be no one of my family qualified thereto, then or in such case my will and mind is, that the said parnosim or wardens pay the same to three persons qualified.” He directed the residue to be divided between his brother’s and sister’s children.

The testator died in 1821, and his widow in 1822.

The executors appropriated the sum of £300 £3 per cent. consolidated annuities to answer the above trust, and for some years after such investment had taken [*40] place, the dividends were remitted to the parnosim or wardens of the congregation in Ostrovesy, but many years since, the remittance was discontinued, in consequence of its being considered that bequest was invalid.

The stock, not having been dealt with, had been carried over to the Commissioners of the National Debt, but it had recently been retransferred. The surviving executor presented the present petition seeking the opinion of the Court on the following points:—

First, whether the legacy to the parnosim and wardens of the congregation of Ostrovesy was a valid charitable legacy, either wholly or to any and what extent.

Secondly, if and so far as such legacy is valid, how the stock and cash representing such legacy, and in particular how the sums representing arrears of dividend and the accumulations thereof, ought to be paid and applied.

It was stated that the term “learn in the Beth Hammadrass or college for two hours daily,” signified to study either the Bible or the Talmud, and that the “Candish” [**281] was a short Hebrew prayer in the praise of God, and expressive of resignation to His will. That both were acts of piety, and that the prayer was generally said by the sons of the deceased, during the year of mourning and on the anniversary of the death, but if there were none, it was either said by the relatives or by some other person.

Mr. Waley, for the Petitioner.

Mr. Jessel, for the parnosim or wardens. The bequest is now perfectly valid. The 8 & 9 Vict. C. 59, s. 2, provides, “That from and after the commencement of this Act, Her Majesty’s subjects professing the Jewish religion [*41] in respect to their schools, places for religious worship, education and charitable purposes, and the property held therewith, shall be subject to the same laws as Her Majesty’s Protestant subjects dissenting from the Church of England are subject to and not further or otherwise.” This and the next section are in the same terms as the 2 & 3 Will. 4, c. 115, relating to Roman Catholic charities, the operation of which has been held to be retrospective; Bradshaw v. Tasker (2 Myl. & K. 221). Such a charity as the present would be valid in regard to Protestant Dissenters, and is now equally so in regard to Jews, and the circumstances that the testator died previous to the Act is immaterial, as its operation is retrospective.

Mr. Key, for the residuary legatees, argued, first, that this gift was void as a superstitious use, as an anniversary or obit, and was similar to praying for the testator’s soul; 23 Hen. 8, c. 10; 1 Edw. 6, c. 14; Adam’s and Lambert’s case (4 Rep. 104 b.); Jarman on Wills (vol. 1, pp. 170, 174, 2d ed.); West v. Shuttleworth (2 Myl. & K. 684); Heath v. Chapman (2 Drew. 417).

Secondly, that the gift was invalid as tending to a perpetuity; and, thirdly, that it was void for uncertainty.

The Master of the Rolls [Sir John Romilly]. I have no doubt of the validity of this bequest, and it is therefore the duty of this Court to carry it into effect.

The state of the case with regard to Jewish charities is this:—They are now placed in the same situation as those of Protestant Dissenters. A similar operation by Act of Parliament was formerly effected with regard to Roman Catholic charities, and in the case of Brad-[*42]-shaw v. Tasker (2 Myl. & K. 221), and West v. Shuttleworth (Ibid. 684), it was held that such similar Act as regards Roman Catholic charities was retrospective in its operations, and I should be much grieved if anything occurred to shake that decision. I apprehend that the ground was this: that the Act placed Catholic charities in the same situation as Dissenters’ charities, and being good as regarded Dissenters, it was equally so as to Roman Catholics. This construction is also supported by the 3d section of the Act, providing against the Act affecting any property then in litigation. However, it has been well established by Bradshaw v. Tasker, which was subsequently followed in West v. Shuttleworth, that these Acts are retrospective.

I see nothing in the bequest which is superstitious. It was attempted to shew that it was so, by importing into it the assumption that the prayer offered up on the anniversary of the death of the testator must be intended to be for the benefit of the soul of the testator. The case of Adams v. Lambert was cited, but that case principally relates to what estates devoted to superstitious uses are forfeited to the Crown under the statute. There are many cases of superstitious uses unconnected with prayers for the soul; but in regard to West v. Shuttleworth and Heath v. Chapman, I have always felt this difficulty:—So far as relates to their places for religious worship and the property held therewith, Roman Catholics and Jews are now placed in the same position as Protestant Dissenters; and if it be part of the forms of their religion that prayers should be said for the benefit of the souls of deceased persons, it would be difficult to say that, as a religious ceremony practiced by a dissenting class of religionists, it could be deemed superstitious in the legal sense in which these words [*43] were used prior to the passing of the statutes in question, which practice ally have authorized them. In the time of Edward the Sixth and Elizabeth the ceremony of mass was considered superstitious, and I do not know that the law made any distinction between masses generally and masses for souls, or any distinction between those said for the general purpose and object of their religion in the worship of God and those which are for more limited objects, which were formerly considered superstitious [**282] and which the Court now, considering them in a Protestant point of view, still regards as superstitious. I express no opinion on this point, however, as no such case arises here.

Here, nothing is said as to praying for the soul of anyone. Three persons are to learn in their Beth Hammadras or college, and to say a prayer called Candish, and from the information given to the Court, it appears that this means that they are to study either the Bible or the Talmud, and with respect to the Candish, that it is nothing but a short Hebrew prayer in the praise of Almighty God. This has no reference to praying for souls of the founders, and I do not know that there would be anything superstitious in a bequest by members of the Church of England to wardens to select a scholar to learn the Greek Testament two hours daily, and on a certain day to repeat the Lord’s Prayer, although the day selected may be the anniversary or birthday of the founder.

There is nothing here to shew that this was to be done under the notion that the soul of the testator would derive any benefit from it. I think that this is a valid gift for the benefit of a Jewish charity, and that the executor must pay over the dividends to the parnosim or wardens, who are to select the three qualified persons as directed by the will.

In re Michel's Trusts