Masonic Education & Charity Trust v. City of Boston

201 Mass. 320 | Mass. | 1909

Braley, J.

If it were not for the defendant’s express waiver, the plaintiff’s right to maintain the action in its own name would present a serious question. But, this embarrasment having been removed, we are asked to decide whether a certain fund held by the plaintiff is exempt from taxation, and if exempt, whether the tax which has been levied, and has been paid under protest, can be recovered back in an action at law.

The fund is the residue of the estate of William H. Williams, given by his will to the master, wardens and members of the Grand Lodge of Masons in Massachusetts, “to be held and invested by them until such fund, with the increments thereof, and such sums as may be added thereto by said Grand Lodge or other persons, shall amount to the sum of two hundred thousand . . . dollars, at which time, the said sum shall be used for the establishment and maintenance of a home for indigent, and needy masons in Boston and vicinity, to be known as the Williams Masonic Home.” This bequest is made expressly for the benefit of indigent and needy masons within a designated territory, by making provision for their relief and comfortable support at a home to be erected when the fund with accumulations should be sufficient, and which should bear the testator’s name. The object to be accomplished being purely charitable, and the number to be benefited indefinite, even if the gift is limited to a class, these features are sufficient in law to constitute the gift a public charity. Attorney General v. Trinity Church, 9 Allen, 422. Odell v. Odell, 10 Allen, 1, 4. Saltonstall v. Sanders, 11 Allen, 446, 460. Attorney General v. Old South Society, 13 Allen, 474. Jackson v. Phillips, 14 Allen, 539. Fellows v. Miner, 119 Mass. 541. Sherman v. Congregational Home Missionary Society, 176 Mass. 349. Minns v. Billings, 183 Mass. 126. Osgood v. Rogers, 186 Mass. 238, 240. Franklin Square House v. Boston, 188 Mass. 409. Minot v. Attorney General, 189 Mass. 176, 179. Farrigan v. Pevear, 193 Mass. 147.

By the St. 1859, c. 73, § 1, the trustee, which before had been a voluntary association, became incorporated for the purpose of administering the charity funds belonging to the voluntary association, with “ all the privileges, and . . . subject to all the liabilities,” applicable to corporations for charitable purposes, as set forth in Rev. Sts. c. 44. It was to this body that the executor properly turned over the residue in money, and the St. 1884, c. 221, under which by force of § 2, after compliance with enabling preliminaries, the plaintiff became a corporation for certain defined objects, neither changed the nature of the trust, nor substituted the plaintiff for the original trustee. The plaintiff is only a conjunctive or administrative instrument or agency of the governing and controlling body. Having been chartered for the limite^ purpose described in the statute, and holding by gift and in trust the bequest, with any other additional gifts which it may receive for accumulation, the trustee must be deemed a benevolent or charitable institution, charged with the administration of a public charity. If under R. L. c. 12, § 23, cl, 5, ordinarily personal property held in trust is taxable to the trustee in the city or town where he resides, when held as a public charity it is unqualifiedly exempt. Balch v. Shaw, 174 Mass. 144.

But the defendant contends that, no list having been brought in to the assessors as required by R. L. c. 12, § 41, there can be no recovery. By Pub. Sts. c. 11, § 5, cl. 3, if the use of the property was exclusively for charitable purposes, the exemption was absolute. If under the amendatory St. of 1882, c. 217, re-enacted in R. L. c. 12, § 5, cl. 3, and § 41, the assessors in their notice to taxpayers were and are required to include holders of such property, who are notified to bring in a true list of all the real and personal estate held by them in trust for charitable uses, including a statement of the amount of receipts and expenditures, with the further provision, that if a person or corporation “ wilfully omits ” to make return, the estate so held shall not for the current year be exempt, the particular exemption still is to be allowed by the assessors unless the failure to bring in the list is found to have been intentional. While the report is silent upon the point it should be assumed that, being public officers, the assessors have complied with the statute by giving the proper notice. Commonwealth v. Kane, 108 Mass. 423, 424. The power to tax, however, being based upon a precedent condition, the burden of proof rested upon the defendant to show that the fund was taxable even if the list had not been furnished.

The case is before us on report, not upon the agreed statement of facts under which it was submitted to the trial court with the right to draw inferences of fact, and we cannot say as matter of law that, notwithstanding the notice of which the trustee must be presumed to have known, it was not within the power of the judge to decide that, apparently having no other personal property and never having been assessed before, the mere failure of the trustee to make a return was wilful or inexcusable. In finding for the plaintiff he must have reached the conclusion that the omission was not wilful, which having been warranted cannot be revised. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. It accordingly follows that the assessment was not merely voidable, but void, and, the tax being wholly illegal, the ruling that the plaintiff was entitled to recover was correct. Sumner v. Dorchester, 4 Pick. 361. Dorr v. Boston, 6 Gray, 131. Cone v. Forest, 126 Mass. 97, 98. McGee v. Salem, 149 Mass. 238, 242. Oliver v. Lynn, 130 Mass. 143. Ingram v. Cowles, 150 Mass. 155, 157. Barron v. Boston, 187 Mass. 168. R. L. c. 13, § 86.

In accordance with the terms of the report judgment is to be entered for the plaintiff on the finding.

So ordered.