Attorney General v. Barbour

121 Mass. 568 | Mass. | 1877

Gray, C. J.

By the Gen. Sts. e. 113, § 8, any party, aggrieved by a final decree óf a single justice in equity, may take an appeal, within thirty days, by entering a claim of appeal upon the docket, and such appeal shall thereupon be pending before the full court. By § 10, “ from all interlocutory decrees made by a single justice, any party aggrieved may appeal, in like manner, to the full court.” By § 11, “ all interlocutory decrees not appealed from shall be open to revision on appeals from final decrees, so far only as it appears to the full court that such final decrees are erroneously affected thereby.” And by § 13, “a party, having by accident or mistake omitted to claim an appeal from "any final decree, within the time allowed for that purpose,” may obtain leave to appeal by petition to the full court within one year after the entry of the decree.

Whether the decree of a single justice is final or interlocutory, an appeal therefrom does not depend upon his allowance or discretion, but is a matter of right. The time for claiming an appeal cannot be extended by consent of parties or by the justice whose decree is appealed from. North British Railway v. Wauchope, 4 Macq. 352. Callan v. May, 2 Black, 541. Garrison v. Cass County, 5 Wall. 823. Gardner v. Dudley, 12 Gray, 430. If an appeal is not taken within the time prescribed, the full court cannot acquire jurisdiction thereof, otherwise than upon a petition for leave to appeal according to the statute.

The appeal, in this case, not having been claimed within thirty days after the decree appealed from, must therefore be dismissed for want of jurisdiction; and we have no occasion to consider whether that decree is final or interlocutory only; or whether interlocutory decrees are subject to appeal on leave obtained from the full court upon petition, in like manner as a final decree, or, if not appealed from within thirty days, are conclusive, except so far as they may erroneously affect the final decree and be included in an appeal from that decree.

Appeal dismissed.

On January 13, 1877, Ames, J., made a decree rescinding the former decrees, the attorney general filed a general replication, and the judge made two new decrees precisely like the former ones; and the defendant appealed from the new decrees. The decree which rescinded the former decrees was not appealed from. The case was argued by the same counsel.

Gray, C. J. It is within the general equity jurisdiction of this court to remove or appoint trustees under wills or other written instruments, upon sufficient cause shown. Gen. Sts. o. 100, §§ 8, 9; g. 113, § 2. Bowditch v. Banuelos, 1 Gray, 220. In re Eastern Railroad, 120 Mass. 412.

The testator by his will named three executors, and devised and bequeathed the residue of his estate to them, “ and the survivors or survivor of them, their successors in said trust, their heirs and assigns forever,” in trust to constitute a perpetual fund, to be held and invested by the trustees, with power'to sell and reinvest, and the net income thereof to be managed and dispensed for certain charitable purposes by a corporation to be established by the Legislature, and to be composed of said trustees and their successors, and such persons as they should associate with themselves in the act of incorporation, or as should be afterwards elected out of contributors to the fund; and provided that, in case of a vacancy in the board of trustees, the place should be filled by an election by the corporation.

The permanent trust, to hold, sell, invest and reinvest for the benefit of the charity, was not annexed to the office of executor, but was a distinct trust, although at first vested in the same persons who were named as executors. Tainter v. Clark, 13 Met. 220. Clark v. Tainter, 7 Cush. 567. Carson v. Carson, 6 Allen, 397.

Two of the persons named in the will have resigned, leaving the defendant sole executor and sole trustee. An act of incorporation not having yet been obtained, no provision is made in the will for filling the vacancies in the office of trustee. The will manifests the intention of the testator that the board should constantly consist of three trustees, and the words “ the survivors and survivor of them ” express no more than would have been effected by law, and do not restrict the power of the court to appoint new trustees in accordance with that intention. Gen. Sts. e. 89, | 14; e. 100, § 9. Dixon v Homer, 12 Cush. 41. The magnitude and importance of the trust, and the facts that there is now but a single trustee and that his fitness is in controversy, afford peculiar reasons for exercising this power.

Decrees affirmed.