176 Mass. 192 | Mass. | 1900
The first question in these cases arises under a provision in the will of Calvin Ellis, which is as follows: “ My trustees shall pay to the president and fellows of Harvard College fifty thousand dollars, or if .the said property do not
Nor have we been referred to any case which holds that in providing for the administration of such a charity the founder is precluded from directing that preference shall be given to his kin, or to any other class of persons that he favors. The only persons to be preferred under this provision are the lineal descendants of the testator’s grandparents. The testator contemplated a probability that in some of the years, and perhaps most of them, there will be a failure of persons who .are entitled to be preferred in the expenditure of the income. At all such times there is no limitation upon the discretion of the officers of the college in using the money as they think best.
The right of a founder to give such directions in regard to the management of a charity is generally recognized, and, so far as we know, is not denied by any court. A direction requiring
If the provision for the preference of kin of the testator in the administration of this charity were held to be void, the bequest for general uses of the college would still be valid, and would carry the whole of the income under the last sentence above quoted. If there is a failure of persons entitled because under a gift of this kind no such persons legally can be entitled, the amount which otherwise would be expended for their benefit is by the express terms of the will to be used for general purposes of the college. In other words, this is a plain residuary provision which applies to void legacies as well as to legacies which lapse for any other cause. Thayer v. Wellington, 9 Allen, 283. Batchelder, petitioner, 147 Mass. 465. Teele v. Bishop of Derry, 168 Mass. 341. New v. Bonaker, L. R. 4 Eq. 655. In re Rymer, [1895] 1 Ch. 19. Chapman v. Brown, 6 Ves. 404, and some early English cases which follow it are cited in support of the proposition that if the provision preferring the kin of the testator is void, the provision for the general purposes of the college must fall with it, notwithstanding that it purports to dispose of a residue. The doctrine of these cases, as applied to a case like the present, has never been adopted in Massachusetts, and it has been greatly limited if not completely overruled by later decisions in England. Fisk v. Attorney General, L. R. 4 Eq. 521. Hunter v. Bullock, L. R. 14 Eq. 45. Dawson v. Small, L. R. 18 Eq. 114. In re Williams, 5 Ch. D. 735. In re Birkett, 9 Ch. D. 576. Champney v. Davy, 11 Ch. D. 949. In re Vaughan, 33 Ch. D. 187. We are of opinion that on this ground, apart from other considerations, the next of kin and heirs at law of the testator fail to sustain their claim.
The requirement that five' per cent of the annual income shall be reserved for accumulation cannot avail the heirs and next of
It is contended by the heirs at law and next of kin that the residuary clause of the will is invalid. This is as follows : “ All the residue and remainder of the said trust property, my trustees in the event aforesaid shall convey in fee simple, transfer and pay over to the said president and fellows, to hold the same as a permanent fund, and apply the net rents and income thereof, and of all substituted property; in every year, after first deducting and accumulating in every year five per centum of such net income as an increase of the fund towards paying the salary of a professor of pathological anatomy. Provided, however, that if such professor would receive in any one year, if the whole of the said net income remaining after such deduction of five per centum were paid to him, a salary of more than five thousand dollars for such year arising from gifts, legacies and other permanent endowments, including the income of this legacy, then, and in every such year, the amount paid him from the income of this legacy shall be reduced, so that the total income from such sources shall be five thousand dollars and no more. And if the income from gifts, legacies and other permanent endowments, exclusive of the income of this legacy shall amount in any year to five thousand dollars, then, and in every such year, the income from this legacy shall be withheld altogether from such professor. The amount so withheld whether jt be the whole or a part of the net income, after deducting five per centum, shall be applied to the salary of the professor of physiology, with the same provisions and limitations as those herein declared touching the salary of the professor of pathological anatomy; and any amount in every such year still remaining unapplied, shall next be applied to the salary of the professor of anatomy, with the same provisions and limitations as are
The questions raised under the will of Lucy Ellis have all been answered by what we have said in regard to the will of her brother Calvin Ellis. By her reference to her brother’s legacy of $50,000, without reciting at length the provisions of his will in regard to it, she adopts as hers for her property the disposition which he makes of that sum. The funds held by her administrator with the will annexed must also be paid to the president and fellows of Harvard College.
Ordered accordingly.
The will contained two provisions in point, the first, a bequest to the president and fellows of Harvard College, to be held on the same terms as the residue of her brother’s estate, and the second, a bequest of the residue of her estate, “ to be added to and disposed of as part of and in the same manner as the permanent fund and bequest of fifty thousand dollars made and given by my brother Calvin Ellis, by his last will.”