174 Mass. 491 | Mass. | 1899
While the purpose of the association is to hold, use, and sell land, and the scheme of organization closely follows that of a corporation, and corporations to buy and sell land can be chartered only by special act of the Legislature, this is not a proceeding to restrain or to put an end to the usurpation of corporate franchises. Indeed, as was said in Phillips v. Blatchford, 187 Mass. 510, “ It is too late to contend that partnerships with transferable shares are illegal in this Commonwealth.”
Is the trust void as creating a perpetuity, or imposing an illegal
The trustees take the legal title to allow the association through its directors to manage the land and to enjoy its rents and income, and to sell the land free of trusts at the will of the association, with a further provision for the termination of the trust by vote of the association at any time after July 1,1895. Leases fpr more than five years, and sales, can be made only in accordance with an affirmative vote of three-fourths of the shares, and a like vote is necessary to terminate the trust. The substance of the situation is that the shareholders for the time being have the whole equitable estate in the corpus of the trust, and can at all times sell and transfer their equitable estates at their own pleasure; and the trustees hold the legal title in fee in trust to do with the land whatever may be required by the owners of the equitable estate, which owners have full capacity, at all times and at their own option, to require a sale of the land discharged of the trust, or the immediate termination of the trust after a period of five years and a few days, the owners of the equitable estate being a voluntary association, the beneficial interests in which are represented by shares, and the association acting by vote of the shareholders. That the directions of the association to the trustees are to be given by three fourths votes, rather than by majority votes, is immaterial, since it cannot be said that one is more improbable than the other: either is a reasonable way of declaring the will of the association, and there is no provision that a vote to sell or to end the trust must be passed within any stated period, or at all.
Such a trust for the convenience of an unincorporated association in renting and selling land, under which the land is held for no other purpose, and where the income is not accumulated but
Carne v. Long, 2 De G. F. & J. 75, In re Dutton, 4 Ex. D. 54, and Carrier v. Price, [1891] 3 Ch. 159, were gifts to societies whose members took no personal beneficial interest in the property, which must be kept for the purposes of the society, and could not be disposed of by the members for the time being. These cases, there being no public charity, were simply private trusts, and the gifts were bad because the members of the society for the time being did not have power to alienate the estate. Gray, Perpetuities, § 409, note 2. Marsden, Perpetuities, 300.
It is said that in the case of voluntary societies for whose use land is in effect held in perpetuity, as in the case of the Inns of Court, that whenever the number of the benchers to whom the fee of the land is conveyed as joint tenants is considerably reduced, the survivors cause the land to be conveyed to all the then living benchers. But the benchers are not expected to use these lands for their personal benefit. The plain purpose is to keep the lands forever for the use of the voluntary association as a society charged with certain duties and enjoying certain rights connected in a general way with the administration of the law, and which are inconsistent with any personal interest in or control over the land on the part of the individual benchers. Such cases are therefore like those already examined.
So, too, the present case is clearly distinguishable from Winsor v. Mills, 157 Mass. 362. The provision in the present trust, that the shareholders are not to have any interest ol1 title in the trust property itself, and no right to call for partition, and that the share shall be personal property, is not a restraint upon alienation, since the alienation of the legal and the equitable owner
We express no opinion upon the contentions that the interests of the shareholders are real estate, and that an agreement not to make partition may be open to objection under the law as to perpetuities and restraints upon alienation. These are matters which upon any theory cannot make the whole trust illegal.-
A majority of the court are of opinion that the ruling at the hearing was correct, that the trusts set forth were not void as creating a perpetuity, or imposing an illegal restraint upon alienation, and that the plaintiffs are not entitled to a winding up of the trust and a sale of the property as prayed. They are entitled upon the findings of the report to an account and also to receive regular accounts in the future ; and a decree accordingly should be entered.
So ordered.