302 Mass. 425 | Mass. | 1939
This is an action of contract in which the plaintiff, as she is executrix of the will of the residuary legatee under the will of Edward L. Eagleston, late of Barnstable, deceased, seeks to recover from the defendant $8,000 bequeathed to the defendant by Edward L. Eagleston in his will, which was allowed on September 20, 1913. He will hereinafter be referred to as the testator.
The declaration is in three counts. The material allegations of the first and second counts may be summarized as follows: Under the tenth paragraph of his will the testator made the following bequest: “To the Hyannis Free Public Library Association I give and bequeath the sum of eight thousand dollars ... for the purchase of a lot of land and the erection of a Library Building in the Village of Hyannis upon the express condition that the Library Building so erected shall be called and designated the Eagleston Library. While the Trustees of said Library Association may in their
The residuary legatee is now deceased and the plaintiff is executrix of his will. In accordance with the tenth paragraph of the testator’s will, the executors thereunder paid to the defendant $8,000 on or about January 6, 1915. The defendant “has neither purchased a lot of land nor erected a library building in the village of Hyannis which is designated as the Eagleston Library, as required by said bequest of said Edward L. Eagleston, although it has had a reasonable time to do so.”
The third count was a common count for money had and received by the defendant to the plaintiff’s use.
The judge sustained the demurrer filed by the defendant on five of the grounds stated, to the effect that the plaintiff has no standing to bring her action against the defendant “in the matters set forth in her declaration,” and that the matters contained in the several counts of the declaration are insufficient in law to enable the plaintiff to maintain the action, and do not set out a legal cause of action. In the order sustaining the demurrer the judge stated that count 3 was a common count and that no bill of particulars was filed with the writ when entered. See G. L. (Ter. Ed.) c. 231, § 14; Brocklehurst & Potter Co. v. Marsch, 225 Mass. 3, 11.
The defendant is a public charitable corporation, and the legacy is one for public charitable uses. Drury v. Natick, 10 Allen, 169. Bartlett, petitioner, 163 Mass. 509, 515. Minns v. Billings, 183 Mass. 126. Since the gift created a valid trust for charity the plaintiff’s testator had
It is also settled that it is the exclusive function of the Attorney General to “enforce the due application of funds given or appropriated to public charities within the commonwealth, and prevent breaches of trust in the administration thereof.” G. L. (Ter. Ed.) c. 12, § 8. The rule whereunder this function resides exclusively in the Attorney General “has been held applicable to cases of donors or grantors of property devoted to charitable uses . . . [(and] to heirs or other representatives of such donors or grantors.” Dillaway v. Burton, 256 Mass. 568, 573-574, and cases cited.
The cases cited by the plaintiff concern writs of entry to obtain possession of land for breach of conditions subsequent set up by grantors or others and have no application to the facts in the case at bar.
Order sustaining demurrer affirmed.
Judgment for the defendant.