318 Mass. 518 | Mass. | 1945
This petition was brought in a Probate Court on July 8, 1944. Any jurisdiction in that court had to be based upon G. L. (Ter. Ed.) c. 215, § 6, as amended, giving to that court concurrent jurisdiction in equity "of all cases and matters relative ... to trusts created by will or other written.instrument.” Jones v. Jones, 297 Mass. 198, 203, 205. Lord v. Cummings, 303 Mass. 457. Only if jurisdiction already exists under § 6 (Wellesley College v. Attorney General, 313 Mass. 722, 731) can a Probate Court exercise the power granted by § 6B (St. 1935, c. 247, § 1)
The petitioner, a charitable corporation (hereinafter called the association) chartered by special act of the Legislature, contends that the charity fund in controversy, created by the association, still forms part of its general assets subject to its corporate control for the purposes set forth in its statutory charter. It was held in Wellesley College v. Attorney General, 313 Mass. 722, 727, 728, that a statutory charter is not a “written instrument” within the meaning of § 6. To that extent, and to that extent only, we are bound by authority. The respondents, the trustees of the charity fund and the Attorney General, contend to the contrary that the charity fund is held by its individual trustees, not as officers or agents of the association, but independently of it, upon trusts to be determined by an interpretation of the written by-laws and recorded votes of the association by which the charity fund was created. That such by-laws and votes are not “written instruments” within § 6 was not decided in the Wellesley College case. Such by-laws and votes may well be classified with wills, or with deeds and indentures, rather than with the legislation of the sovereign held not to constitute a “written instrument” in that case. The same words “written" instrument” in the grant of power to other courts to enter a declaratory judgment interpreting a “written instrument” pretty plainly include the written by-laws and recorded votes of a corporation or voluntary association.
We think that the Probate Court was right in sustaining a demurrer on the ground of want of jurisdiction and dismissing the petition.
Interlocutory decree sustaining demurrer affirmed.
Final decree dismissing petition affirmed.
See now G. L. (Ter. Ed.) e. 231A, as inserted by St. 1945, c. 582.
G. L. (Ter. Ed.) c. 213, § 3, Tenth A. Equity Rule 36 (313 Mass. 787). Rule 101 of the Superior Court (1932). Rules of the Supreme Court (England) Order 54A. Borchard, Declaratory Judgments (2d ed. 1941) 220. Mason v. Schuppisser, 81 L. T. (N. S.) 147. Evling v. Israel & Oppenheimer, Ltd. 118 L. T. (N. S.) 99. Morgan’s Brewery Co. v. Crossbill, [1902] 1 Ch. 898. Cope v. Crossingham, [1909] 2 Ch. 148. Cyclists’ Touring Club v. Hopkinson, [1910] 1 Ch. 179. In re Amalgamated Society of Railway Servants, [1910] 2 Ch. 547. Oram v. Hutt, [1914] 1 Ch. 98. In re William Thomas & Co. Ltd. [1915] 1 Ch. 325. In re National Union of Seamen, [1929] 1 Ch. 216. Whether a statutory charter is a “written instrument” within such grant of power to other courts need not be decided in this case.