153 Mass. 433 | Mass. | 1891
It is not expressly stated in the bill that the plaintiffs’ mother, Elizabeth Darcy, died intestate, and that they succeeded to her rights in real estate. But they allege that, if the trust is void for uncertainty, or for want of proper parties, they are entitled to share in the premises as heirs at law of Patrick Lane. This they could not do otherwise than as heirs at law of their mother, and perhaps it may fairly be inferred, on all the allegations of the bill and answers, that the plaintiffs succeeded to their mother’s real estate, and that they are entitled to be heard on the question whether the real estate held by the trustee under the will of Patrick Lane passed to the testator’s heirs at law. Their right to sue has not been questioned by the defendants.
The third clause of the will is as follows: “ Upon the decease or marriage of my wife, I give and bequeath and devise all my said property and estate to the parish priest who may then be in charge of the Catholic church in Fall River (now St. Mary’s), in trust to be disposed of as follows, to wit: the said parish priest shall put the said property and estate, or the proceeds thereof, into the hands of the Sisters of Charity, for the purpose of a relief fund for the poor; and the same shall be devoted and appropriated in the first place to the aid of my poor relatives, if any such there be, according to the discretion of the Sisters of Charity; afterwards, the said property and estate, and
The greater part of the testator’s property was real estate, and this is now held by the defendant Kelley, as trustee under this clause of the will. In interpreting the will, we must first endeavor to ascertain the intention of the testator, and then see whether it can be carried out. After the death of the widow, the property was to be used as “ a relief fund for the poor,” and was to be appropriated, in the first place, to the aid of his poor relatives, according to the discretion of the Sisters of Charity, and afterwards was to be bestowed, in such sums as they should deem proper, upon proper objects of charity. Did the testator intend this as a private trust for the benefit of his poor relatives living at the time of his death, or at the time of the death of his widow, or did he intend to establish a public charity ? If it is a private trust, his poor relatives, inasmuch as there has been no selection by the trustees mentioned in the will, are those who would take under the statute of distributions, although the trustees in making a selection might have chosen from a larger class. Brownv. Higgs, 4 Ves. 708, 719, notes 4, 5, 6. Longmore v. Broom, 7 Ves. 124. Cole v. Wade, 16 Ves. 27. Supple v. Lowson, Ambl. 729. Salusbury v. Denton, 3 Kay & Johns. 529, 539. But it seems evident that the testator did not intend to limit his bounty to so small a class. This property is given “ for the purpose of a relief fund for the poor.” This broad statement completely describes the general nature of the gift. It includes all the poor, and opens to the discretion of the trustees a field as broad as the world. He then provides more specifically that a preference shall be given to bis poor relatives, “if any such there be,” meaning such persons as may at any time in the future, while the trust continues, be related to him by blood. The charity is obviously of a public nature, and it is in its terms within the familiar definitions of a public charity. Saltonstall v. Sanders, 11 Allen, 446. Jackson v. Phillips, 14 Allen, 539. White v. Ditson, 140 Mass. 351. Bullard v. Chandler, 149 Mass. 532.
It is alleged and admitted that there was no such organization as the Sisters of Charity, and there is no one else designated in the will to exercise discretion in the administration of the trust,
In such a case the court will appoint a master to investigate the facts, and report a plan to carry out the general purpose of the testator, as nearly as possible in the mode originally contemplated, and will make such a decree on the whole case as will establish the trust, and make it effectual in the best way.
It is contended by the plaintiffs in the present case, that the decree entered in a former suit in reference to this trust conclusively determines that the testator’s heirs at law are the only relatives who can receive any benefit from the trust, and that, as private beneficiaries, they are entitled to the whole fund. It does not very clearly appear on what ground the court proceeded in making that decree, and we are not inclined to give it effect as settling anything beyond the right of Elizabeth Darcy and Mary Ann Nolan to receive the sums which were awarded to them respectively at that time, and their right afterwards to be considered as members of the class to be benefited. A master was appointed to hear the parties and report all the facts as to their condition and the condition of the property, and the doings of the trustee in regard to it; and it appeared by his report that both of them were poor and in needy circumstances, and that Elizabeth Darcy was being supported by the charity of a son in law. Upon the facts found, it was proper that each of them should receive a part of the proceeds of the fund, and the decree, although not in accordance with the usual practice of the court in dealing with a public charity, is not necessarily inconsistent with a finding that this was a public charity, and that the court, on the facts reported, would make an order for a payment to each of two persons of the preferred class to be benefited, and for payments by the trustee from time to time of “further sums, according to their needs and in his discretion, with liberty to either or both to apply to this court, or justice thereof, in term time or vacation, for other and further relief, or to
The case must be referred to a master, to report the facts and a scheme for the administration of the trust. So ordered.