323 Mass. 261 | Mass. | 1948
This suit in equity is brought by ten taxpayers of the town of Lincoln under G. L. (Ter. Ed.) c. 214, § 3 (11), and by the town itself, against The Merchants National Bank of Boston (hereinafter called the bank) as trustee of
Consideration of a demurrer contained in the answer of the B trustees was reserved until the hearing on the merits. No separate discussion of the demurrer is required, since if the facts established by the master’s report make a case for relief, the petition sufficiently states such a case as against any of the grounds set forth in the demurrer.
Julian de Cordova died November 23, 1945, at the age of ninety-five. On November 29, 1930, he had conveyed to the town, and the town had accepted, about twenty-nine acres of land on Sandy Pond. On this land were located his residence, a building known as the art gallery, and some incidental buildings. The conveyance also included the collections of pictures and of other objects of art and interest contained in the buildings. The grantor reserved a life estate to himself and also provided that after his death the town should hold the property in trust to maintain the land as a public park for the benefit of its inhabitants and the resi-. dence and art gallery for their benefit as a public museum under the name “The de Cordova and Dana Museum.” It was provided that new buildings might be added or substituted, but that any of the objects of art might be disposed of only with the approval of an expert selected by the di
By the twelfth article in his will de Cordova gave to the bank $150,000 in trust to pay the income to the town “for the upkeep, maintenance and improvement of the de Cordova-Dana museum and park in said Lincoln, which I have already given the town, subject to a life estate for myself.” This is the A trust.
By the thirteenth article he gave the residue of his property to Webber and others in trust, with the provision that they might pay to the town from the income “such sum or sums as my said trustees from time to time may think necessary ... to make up any deficiency in the income of the trust fund, hereinbefore created [the A trust], for the upkeep, maintenance and improvement of said museum and park . . ..” It is provided that the balance of income is to be accumulated and added to the principal for a period of twenty years after the death of the testator. At the end of the twenty years the entire trust fund with its accumulations is to be paid over to the bank to be held by it in trust and the income paid to the town to be expended “solely in making up any deficiency in the income . . . [of the A trust] and for the use, improvement and additions to the said art collection, and the buildings in which they [sic] are housed,” with the restriction that the town may make expenditures for additions to the art collection and may dispose of any parts of it only with the approval of
By a codicil the testator authorized the “trustees named in said will” to use “such parts of the income, but none of the principal, for such educational and recreational purposes, which in their discretion, will be helpful in the fulfillment of the main purpose expressed in paragraph 13 of said will, and in the furtherance of the deCordova-Dana museum and park . . .,” their discretion in the use of income for such purposes to be final.
It will be observed that the situation brought about by the deed and the creation of the two trusts in the will of the testator is that the town now owns and is in complete possession and control of the land, buildings, and collections and must use them for the park and museum; that the bank holds the A trust fund of $150,000 in perpetuity to pay the income to the town for the upkeep, maintenance and improvement of the museum and park; that Mr. Webber and others hold the much larger B trust fund to use so much of the income as they think necessary to make up any deficiency in the income of the A trust and to accumulate the remainder of the income and at the end of twenty years to turn over the entire fund to the bank to hold in perpetuity and to pay the income to the town for the purposes of the park and museum; that during the twenty year
It now becomes necessary to summarize certain of the findings in the exhaustive report of the master. The art gallery, which is connected with the residence by an enclosed arched bridge, resembles a Norman chateau with round towers. The residence also has a tower and is surmounted by battlements. Both buildings are situated on a knoll fifty to seventy-five feet above the pond in the midst of fine old trees and well kept lawns. The quality of the collections is uneven, ranging from objects of real importance to others of little value. They were painstakingly acquired by the testator over a long period of years. According to the standards of great museums many of the objects cannot be rated as museum pieces, but, “taken as a whole, the collections have artistic, cultural and educational value and should be a source of interest and instruction to the inhabitants of the town, particularly to youth of school age.” The value of the museum lies in the means it affords of studying art, ethnology, and to some extent archeology. “It should be an important cultural asset to the town.” To these findings we may add as matter of common knowledge that Lincoln is a small town of about two thousand inhabitants lying within commuting distance of Boston in a broad belt devoted largely to country residences. In short, it appears that the park and museum are attractively located in a beautiful
But further findings show that this object is not now being attained and under present conditions has little or no chance of ever being attained. Although the art gallery was open to the public in July and August of each year before the testator died, neither building has been open since his death. The difficulty has its roots in the money arrangements and divided authority of the present trusts. To begin with, structural changes must be made in both buildings, so that they will comply with State and municipal regulations pertaining to buildings used by the public, and immediate repairs are needed upon these buildings and other structures. The minimum amount for alterations and repairs required to open the museum and park to the public was found by the master in his report filed February 16, 1948, to be about $25,000. To put both buildings into first class condition would cost about $40,000. The condition of the residence is such that it would be unwise to economize on repairs. In addition to the sum immediately required to put the plant in condition, in order properly to operate it, without expending anything for educational and recreational activities, the town should be assured an annual income of not less than $25,000. But the only assured income the town has is the income of the A trust which will be no greater than from $4,500 to $5,200 a year.
Other findings of a general nature, but not stated to be merely conclusions from the findings hereinbefore set forth, are these: "... it is impracticable literally to carry out the testator’s intention under the procedure and machinery
Other difficulties confront the town. There are objects in the collections which should be disposed of as not being worthy museum exhibits, but this cannot be done because of the refusal of the authorities of the Museum of Fine Arts in Boston to permit its director to select the required expert. The same difficulty exists with respect to the discretionary power of the B trustees to make additions. Moreover the town is wholly dependent upon the discretion of the B trustees for additions within the twenty year period. While the B trustees are authorized to use income for educational and recreational purposes during the twenty year period, no authority is given the town to use income of either the A or B trusts for such purposes either during or after the termination of the twenty years. Time “has demonstrated that it is impracticable, and perhaps impossible, to carry out literally the provisions of the deed, will and codicil. The town should be assured of the payment of income from the B trust sufficient in amount to meet the cost of alterations and repairs necessary in order to open the museum and park to the public; and also of the annual payment of a definite amount of income from the B trust, to be used for the upkeep, maintenance and improvement of the museum and park, and for additions to the art and other collections in the museum and for educational and recreational purposes during said twenty year period following the testator’s decease. Authority should
The master, having concluded within the broad scope of the interlocutory decree referring the case to him that it is a proper one for application of the doctrine of cy pres, proceeded in accordance with the decree to frame a scheme. In general outline this scheme provides:
(1)
(2) That the B trustees be authorized and directed to pay to the town out of net income accumulated prior to January 1, 1948, a sum or sums not to exceed $40,000 in all to be used by the town, in its sole discretion, for such alterations and repairs as the town may consider necessary or desirable in order to open the museum and park to the public, and to be paid upon the presentation by the town of estimates of cost. No part of this sum is to be used by the town for the purpose of demolishing the residence or art gallery or for additions to the present collections.
■ (3) That the B trustees and their successors be authorized and directed to pay to the town beginning January 1, 1948, and continuing during the twenty year period following the testator’s death seventy per cent of the net income of the B trust, to be used by the town in its sole discretion for the upkeep, maintenance, and improvement of the museum and park, for additions to the collections, and for educational and recreational purposes.
(4) That neither the town, nor any corporation organized as its agent, nor the trustees of the B trust acting under
(5) and (6) That the net income of the B trust remaining in the trustees’ hands after making the payments required by (1), (2), and (3) above be disposed of by the trustees according to the will and codicil.
(7) That after the expiration of the twenty year period the town may use income from the B trust for such educational and recreational purposes in connection with the operation of the museum and park as it may decide to be necessary or desirable.
Numbers (8) and (9) do not in our opinion involve any change in the terms of any of the trusts and will be dealt with later in this opinion as matters of construction merely.
(10) and (11) That the town be authorized to cause a charitable corporation to be organized to act as its agent and instrumentality in carrying out the trust imposed upon the town by the deed of November 29,1930, and, if the town shall so elect, to receive payments from the A and B trusts, with power to accept gifts from other sources, the officer's and members of which corporation are to be voters of the town, and the directors of which are to be divided into classes chosen respectively by the voters of the town, by the selectmen, by the school committee, and by the trustees of the public library. Title to the property is to remain in the town.
Objections to the master’s report filed by the B trustees, in so far as they raise genuine questions, will be hereinafter covered in dealing with the merits.
We have carefully examined the motion of the B trustees
• The evidence heard by the master, which must have been extensive, has not been reported. The master’s findings of fact must stand and will govern the disposition of the case.
All three trusts, that of the tangible property held by the town, the A trust, and the B trust, are public charitable trusts in all their aspects, including the park, the museum, and the proposed recreational and educational activities in connection therewith. American Academy of Arts & Sciences v. Harvard College, 12 Gray, 582, 594. Drury v. Natick, 10 Allen, 169, 179-180, and cases cited. Burbank v. Burbank, 152 Mass. 254, 255-256. Bartlett, petitioner, 163 Mass. 509, 514. Dexter v. Harvard College, 176 Mass. 192, 194-195. Hubbard v. Worcester Art Museum, 194 Mass. 280, 289. Richardson v. Essex Institute, 208 Mass. 311, 318. Boston Symphony Orchestra, Inc. v. Assessors of Boston, 294 Mass. 248, 254-255. The town could accept these gifts for these purposes, whether or not the town could expend its own tax raised money for similar purposes. Higginson v. Turner, 171 Mass. 586, 591. City Bank Farmers Trust Co. v. Carpenter, 319 Mass. 78, 79-80.
The facts clearly disclose de Cordova’s dominant purpose to establish his home place and its contents as a public museum and park for the benefit of the town. To this purpose he devoted in one form or another all that he had, except a few legacies of comparatively small amount. No other object whatever is mentioned or provided for in any of the trusts as a possible alternative or otherwise. It also clearly appears that because of the mechanism of the several trusts and their relation to each other this primary purpose has so far wholly failed of accomplishment, and that its accomplishment in the future has “become impracticable” (the words used in G. L. [Ter. Ed.] c. 214, § 3 [11]), and indeed practically impossible. Equity will not permit charitable gifts to fail in this manner. It will presume that the donor would attach so much more importance to the object of the gift than to the mechanism by which he intended to accom
The plan submitted by the master seems to us in general adequate and proper to carry out the esssential purpose of the donor and at the same time to preserve as far as reasonably practicable the details of his original scheme. The principal departure from the donor’s terms is that involved in superseding the discretion of the B trustees as to seventy per cent of the net income of the B trust and requiring them to pay it to the town. We are naturally reluctant to interfere with a discretion reposed by the testator in men of his own choice, but there is no positive rule forbidding reasonable modification of discretionary provisions where necessary to save the charity. See Minot v. Baker, 147 Mass. 348, 352; Chase v. Dickey, 212 Mass. 555, 567. At this point the master strikes at the root of the whole difficulty. The amount required to be paid to the town, when added to the income of the A trust, will hardly exceed by much more than a reasonable margin of safety the minimum amount required to operate the museum in a reasonably satisfactory manner. It seems likely that, unless conditions prove altogether favorable, no very considerable amount will remain for the acquisition of new exhibits or for educational or recreational activities. The town must be assured of this money, or it cannot operate the museum. The trustees will not and cannot give the assurance. There is no other source from which the money can be obtained. It would seem
Equally indispensable to the opening of the museum is the payment of $40,000 from accrued income of the B trust for necessary alterations and repairs.
At the request of the petitioners and in accordance with the apparent intent of the testator as found by the master, with whose finding we agree, and in order to reassure the trustees upon a point which seems to have disturbed them,
The provisions of the proposed plan relative to the disposal and acquisition of exhibits seem necessary to successful operation of the museum. The testator contemplated that changes would be made in the collections from time to time, and indeed it would seem that this must occur in any properly managed institution of the kind. The plan makes this possible with a minimum, of conflict due to divided authority and removes the obstacle encountered in the re'fusal to act of the Museum of Fine Arts in Boston, while at the same time endeavoring to carry out the testator’s intent that changes in the exhibits should be made only upon the advice of competent experts.
The provisions of the proposed plan relative to the use by the town of income for educational and recreational purposes both during and after the twenty year period are a considerable departure from the provisions expressed by the testator. Yet we are of opinion that they do not go too far. Since it is necessary to make changes in the machinery of the trusts under the cy pres principle, it would seem that we ought not to circumscribe these changes so narrowly as needlessly to weaken the institution which the testator intended to establish, but rather that we should leave open for efficient exercise all powers fairly comprehended within his dominant object in order that the insti
The proposal for the establishment of a corporation merely as an agency of the town to manage the museum and park involves only the most technical, if any, departure from the testator’s terms. This provision is made optional with the town. A vote of the town would be required in order to establish a corporation.
There are no valid constitutional objections to the proposed plan. Once the postulate is accepted that the charitable trusts will fail unless reconstructed, constitutional difficulties vanish. The findings of the master compel us to accept that postulate. The doctrine of cy pres is not unconstitutional. The gifts were originally made subject to the law embodied in that doctrine. No property is taken. On the contrary the beneficial use of the property is secured to those for whom it was intended. The obligation of no contract is impaired. Boston v. Curley, 276 Mass. 549, 560. There is nothing in Cary Library v. Bliss, 151 Mass. 364, or in Adams v. Plunkett, 274 Mass. 453, contrary to what is here decided.
It remains to deal with certain matters of construction which, while not strictly a part of a cy pres scheme, should nevertheless be considered and covered by the decree in order that the scheme may be freed from possible hampering doubts and for the protection of the trustees in connection with it. These matters are contained in the three next following paragraphs.
(1) We agree with the master that the guaranty agreement hereinbefore mentioned, with its amendments, has been fully carried out, and that the A trust fund is now held by the bank “without reference to, or restriction by,” said agreement or its amendments.
(2) Neither the bank nor the B trustees are required in paying income from either trust to the town or to the proposed corporation, if formed, to see to the application of such income, unless the money is paid in such circumstances as amount to participation with knowledge in a breach of trust. Andrews v. Sparhawk, 13 Pick. 393, 400-402. Goodrich v. Proctor, 1 Gray, 567, 570. Ashton v. Atlantic Bank, 3 Allen, 217. Newburyport v. First National Bank, 216 Mass. 304. Eastern Mutual Ins. Co. v. Atlantic National Bank, 260 Mass. 485, 488. Ogden v. Atlantic National Bank, 276 Mass. 130, 133. Scott on Trusts, §§ 321, 321.1, 321.2. See Dillaway v. Burton, 256 Mass. 568, 573.
(3) The bank is to pay the net income of the A trust either
We must not be understood as necessarily intending to decide that every point here considered could be raised in a suit brought solely by ten taxpayers under G. L. (Ter. Ed.) c. 214, § 3 (11). To this suit the town is also a party plaintiff, and the bank has inserted prayers for relief in its answer. The court at the instance of the town has general equity jurisdiction, apart from the statute last mentioned, over application of the doctrine of cy pres. G. L. (Ter. Ed.) c. 214, § 1.
An interlocutory decree is to be entered overruling the demurrer.
The interlocutory decree denying the respondents’ motion to recommit, overruling their exceptions to the master’s report, and confirming the report is affirmed.
A final decree is to be entered by the single justice in accordance with this opinion.
Expenses, including a reasonable sum for counsel fees, may be allowed to the petitioners in the discretion of the single justice, to be charged upon the B trust, out of which the substantial issues have arisen. The trustees of the A and B trusts will be entitled to reasonable allowances in their respective accountings. National Shawmut Bank v. Morey, 320 Mass. 492, 503, and cases cited.
So ordered.
This statement is subject to an exception as to any exhibits acquired by the testator after the deed and before his death.
We do not overlook the fact that de Cordova in his lifetime gave the town a total sum of $20,000 to accumulate until his death and then to be used in the sole discretion of the selectmen for repairs or improvements to, and for maintaining and operating, the museum and park. Even if the town were under some sort of obligation to use this money first, there would not be a really adequate amount to put the museum into operation, to say nothing of keeping it in operation, and the. money would be expended without substantial accomplishment.
The subdivisions numbered in parentheses are those made by the master.
These expenditures were made by the town out of. the sum of $20,000 given to it by the testator to which reference was made in a preceding footnote.
A vote authorizing the establishment of a corporation was adopted by the town at a town meeting held March 3, 1947.