Attorney General v. Garrison
101 Mass. 223
Mass.
1869
Check Treatment
Chapman, C. .1.

The object of the information is, to enforce the execution of a charitable trust in conformity with a decree of the court. The defendants have received the trust fund, and it has been in their hands since January 1, 1868. They were directed by the decree “ to pay it over, at such times and in such sums as they in their discretion might think fit, to the treasurer of the New England branch of the American Freedmen’s Union Commission, to be by them expended in promoting the education, support and interests generally of the freedmen (late slaves) in the states of the Union in which slavery has been abolished, either by the proclamation of the late President Lincoln or the amendment of the Constitution.” The society is engaged in maintaining schools for the freedmen, and the court are unanimously of opinion that the decree requires that the money, when received by the treasurer of the society, should be applied to the enterprise which it is now prosecuting.

*239Two of the trustees named in the will declined to accept the trust. Four of the other seven, namely, Messrs. Phillips, Jackson, Bowditch and Whipple, think that not more than five thousand dollars should be appropriated to the schools; but that the balance should be appropriated to secure to the negro the right of suffrage. They believe that such appropriation would be more in conformity with the wishes and feelings of the testator, if he were alive. But we cannot go behind the decree, and the trust must be executed according to its terms; and if we were at liberty to modify the decree, we could not sanction the proposed appropriation, because it would be for a purpose of a political nature, and not within any proper definition of a charitable trust. These trustees are so unwilling to execute the trust in conformity with the decree thus interpreted, that they prefer to be removed rather than be the agents of its execution. As the trust has been entirely unexecuted for a long time, and the society has constantly been in pressing need of the money, and there is no reason to believe that these trustees will change their opinions, it becomes necessary to remove them. Of the power of the court to do this, there is no doubt. The other three trustees, namely, Messrs. Garrison, Quincy and May, are willing and ready to execute the trust by paying over the whole fund to the treasurer of the society. No reason is suggested why such an execution of the trust would not be discreet, if the whole fund is to be appropriated to the enterprise in which the society is engaged.

It is not necessary to notice the past doings or language or motives of the several members of the board of trustees, except so far as they show that the trust has been in no part executed and is not likely to be executed by the present board, and that there is a necessity for removing those who are unwilling to execute the trust in conformity with the decree, and for appointing others in their place.

Decree for the removal of the four trustees, and for the nem ination of persons to fill vaca/ncies.