*315.* _Statutes, Wills._—In some States a religious society can not take
under a will, and a bequest of money to a church is void.(560) In
Connecticut any devise to a religious corporation not expressly authorized
by statute, is void.(561) In Maryland leave to devise land to a religious
society must be obtained from the Legislature.(562) In all the States it
is safest to consult and carefully follow the statute in drawing a will.
*316.* _Masses, Alabama._—Formerly as a rule of the English common law, it
was held that bequests and devises for the purpose of having Masses said
for the soul of the deceased, were void as superstitious uses; but under
Article 1 of the Amendments to the United States Constitution, and under
similar provisions in the constitutions of the several States, the English
rule does not prevail in the United States. However, Alabama adopted the
English rule.(563) By reading the foot-note to the Alabama case, it will
be found that a majority of the States hold that such bequests are
lawful.(564) Even in Alabama if the bequest had been to a clergyman or a
certain person and accompanied by a request to say Masses, the court might
have allowed it.(565)
*317.* _Name, Bequest, Corporation._—A mistake in a name does not render a
bequest or a gift void if the person intended can be identified.(566)
Also, a devise may be made to a corporation not yet organized and when it
is organized the gift or devise will vest. During the interim, it will
remain in abeyance.(567)
*318.* _Clergyman, Undue Influence._—A clergyman who is a grantee in a
deed from a parishioner, although deriving no benefit therefrom, has the
burden of showing good faith in the transaction as the law presumes that
he is guilty of undue influence. This presumption is further strengthened
by proof of the enfeebled condition of the grantor by age and illness and
his susceptibleness to influence. Where the property conveyed in trust for
the parish was greatly in excess of its needs, the deed was set
aside.(568)
*319.* _Contest, Secession._—In case of a devise to a church which is
claimed by two societies, it is the duty of the court to decide in favor
of those who adhere to the ecclesiastical government of the church which
was in operation at the time the trust was declared.(569) However, to
maintain such action it must be brought by the proper parties.(570)
*320.* _Bequests, Membership._—Bequests left to individuals on condition
that they shall remain members of a certain church, can be obtained only
by complying with such condition.(571)
*321.* _Conditions, Religious Tenets._—In order to determine the
conditions of a trust the religious tenets of the donor may be shown to
aid in construction of ambiguous provisions.(572)
*322.* _Name, Uncertainty._—A bequest to Georgetown University, in the
District of Columbia, which was incorporated under the name of “The
President and Directors of Georgetown College,” is not void for
uncertainty, as the only institution of learning in the District of
Columbia is Georgetown College.(573)
*323.* _Future Uses, Uncertainty._—A devise to a foundling or eleemosynary
institution, whenever the Christians should create one which the trustees
approved, is valid.(574) And a devise to the “First Christian church
erected or to be erected in the village of Telfairville, in Burke county,
or to such persons as may become trustees of the same,” is good as a
charitable bequest.(575) A bequest to a priest to hold in trust and pay
over to the Sisters for the Poor, is valid.(576) A bequest for the care of
a tombstone is valid in some States and not in others without a statutory
provision.(577) A bequest to the bishop “to be by him used for Roman
Catholic charitable institutions in his diocese,” sufficiently describes
the beneficiaries and is good.(578) Also, a bequest to Bishop England “in
trust for the Ladies of the Ursuline Order residing in Charleston in the
State of South Carolina,” was held for “The Ladies of the Ursuline
Community of the city of Charleston.”(579) A bequest for Masses “to a
Roman Catholic priest that shall succeed me in this place,” was held void
for uncertainty.(580) A bequest in trust to a bishop by name to sell and
give the proceeds to a society named, is not a devise to the society, but
to the bishop in trust.(581)
*324.* _Education, Priesthood._—A devise or bequest to a clergyman of
property to be used for the education of poor Catholic boys for the
priesthood, was sustained in court as sufficiently definite for
performance.(582)
*325.* _Charitable Trust, Cy-Pres._—Equity will not allow a charitable
trust to fail for want of a trustee, but will appoint one.(583) The
doctrine of _cy-pres_ as applied to charitable gifts and trusts, is not in
force in Alabama, Connecticut, Delaware, Indiana, Maryland, Iowa, New
York, North Carolina, nor Wisconsin; but seems to prevail in California,
Illinois, Massachusetts, Missouri, Pennsylvania, and Rhode Island.
*326.* _Error, Ambiguity._—Great latitude is allowed in charitable
bequests, devises, and gifts, in proving _aliunde_ the beneficiary
intended where there is error in the name or a latent ambiguity.(584) The
religion of the testator will be considered in proving intention.
*327.* _Dissolution, Resulting Trust._—On dissolution of a religious
society, the money collected or derived from the sale of property goes
back as a resulting trust to the contributors.(585)
*328.* _Charity, Institutions._—To determine what is a charitable trust,
devise, or gift, it is necessary to particularly bear in mind the most
comprehensive definition of charity. Legacies for schools, churches,
libraries, cemeteries, the poor, hospitals, and numerous other
eleemosynary institutions, have been sustained under charitable bequests
when they otherwise would have failed.(586)