92 Mass. 1 | Mass. | 1865
“ Relief of aged, impotent and poor people ” is the first charitable use mentioned in the St. of 43 Eliz. c. 4; and il is not denied that the declared purpose of this testator “ to provide and sustain a home for respectable, destitute, aged, native-born American men and women ” was strictly charitable, in the eye of the law. But it has been strongly and ably argued that the accumulation directed by the will would prevent the money bequeathed for this object from being used for any purpose whatever until a period more remote than the policy of the la w will allow, and that the bequest is therefore void.
The law of perpetuities and accumulations, as applied to individuals, is well settled. By the common law of England
At common law, the power of controlling the rents and profits was coextensive with the power to dispose of the estate which produced them, the limit of the accumulation of annual income was the same as the limit of the creation of future estates, and the enjoyment of the profits could not be suspended for a longer period than the full power of alienating the estate itself. Thellusson v. Woodford, 4 Ves. 227; S. C. 11 Ves. 112. Hooper v. Hooper, 9 Cush. 122. Thorndike v. Loring, 15 Gray, . Accumulation even to this extent has been found so inconvenient as co have been still further restrained by statute in England and in some of the United States. The St. of 39 & 40 Geo. III. c. 98, occasioned by the case of Thellusson v. Woodford, just cited, and therefore commonly called the Thellusson Act, established narrower limits beyond which no person should by any deed, will, “ or otherwise howsoever, settle or dispose of any real or
The rule of public policy, which forbids estates to be indefinitely inalienable in the hands of individuals, does not apply to charities. These, being established for objects of public, general and lasting benefit, are allowed by the law to be as permanent as any human institution can be, and courts will readily infer an intention in the donor that they should be perpetual. 1 Spence on Eq. 588. Mayor, &c. of Bristol v. Whitson, Dwight’s Charity Cases, 171. Magdalen College v. Attorney General, 6 H. L. Cas. 205. Perin v. Carey, 24 How. 465. King v. Parker, 9 Cush. 82. Dexter v. Gardner, 7 Allen, 246. If an alienation of the estate becomes essential to the beneficial administration of the charity, it may be authorized by a court of chancery. Tudor on Charitable Trusts, 298, and cases cited. Shotwell v. Mott, 2 Sandf. Ch. 55. Wells v. Heath, 10 Gray, 27.
Many charitable devises have been defeated in England under the St. of 9 Geo. II. c. 36, prohibiting alienations or dispositions of land to charitable uses, unless by deed made twelve months and enrolled in chancery six months before the donor’s death. But that statute, like some earlier mortmain acts, was wholly English, dictated by considerations of local policy, and did not extend to Scotland, Ireland or the Colonies. Ib. § 6, ad fin. Tudor on Charitable Trusts, 94, 96, and cases cited. 4 Dane Ab. 5, 238, 239. 2 Kent Com. (6th ed.) 282, 283. Perin v Carey, 24 How. 500. The similar provision in the Prov. St. of 28 Geo. II. c. 9, passed in the Province of Massachusetts Bay at a time when the influence of England was strongest, was re. pealed immediately after the Revolution, and has not been reen. acted in this commonwealth. St. 1785, c. 51. Bartlet v. King 12 Mass. 545. The reasons for maintaining and perpetuating
If a devise in fee for the benefit of a charity is accompanied by an executory devise over to individuals upon the happening of a contingency which may possibly not occur within the time prescribed by the rule against perpetuities, the devise over is void, for the reason that until the contingency happens it cannot be ascertained in whom the title will be. Wells v. Heath, 10 Gray, 25, 26. And if a gift is made in the first instance to an individual, and then over, upon a contingency which may not happen within the prescribed limit, to a charity, the gift to the charity is void, not because the charity could not take at the remote period, but because it tends to create a perpetuity in the individual who is the first taker, by making the estate inalienable by him beyond the period allowed by law. Company of Pewterers v. Christ’s Hospital, 1 Vern. 161. Commissioners of Donations v. De Clifford, 1 Drury & Warren, 254. Within the same class fall cases of gifts of an annuity to A, and his heirs, or of personal property to' A. and the heirs of his body, and then over to a charity,, in which the gifts over have been held void as too remote. Attorney General v. Gill, 2 P. W. 369. Attorney General v. Hall, W. Kel. 13. The decision in Attorney General v. Gill indeed can hardly be maintained upon the facts stated in the report, inasmuch as in that case A. died before the testator, so that the estate, according to modern decisions, would seem to have vested immediately in the charity. Burbank v. Whitney, 24 Pick. 146. 1 Jarman on Wills, (4th Amer. ed.) 256, 257.
But a gift may be made in trust for a charity not existing at the date of the gift, and the beginning of whose existence is uncertain, or which is to take effect upon a contingency Which may possibly not happen within a life or lives in being and twenty-one years afterwards, provided there is no gift of the property meanwhile tc or for the benefit of any individual or *ny private corporation. In the case of Downing College, a gift to trustees to buy ground, obtain a royal charter and
Upon this principle it has been held in England that if a gift is made to one charity in the first instance, and then over to another charity upon the happening of a contingency which may not take place within the limit of the rule against perpetuities, the limitation over to the second charity is good, because no individual is concerned, and no private use involved; the estate is no more perpetual in two successive charities than in one charity; and so the law against perpetuities, and remoteness has
We are thus brought to the question, how far the rule of law limiting the period of accumulation applies to charitable gifts. Any directions for accumulation for the benefit of individuals until the happening of a contingency which by pas sibility may not take place within the period prescribed by the rule against perpetuities are void. But there are' many cases in which the law has been assumed to be different as applied to charities.
In 1788 Ralph Bradley, an eminent lawyer, made his will, by which he gave his personal property in trust to pay ¿6500 a year for twenty years from the end of three years after his death, and then ¿61000 a year until the 5th of January 1860, or seventy years after his death, and then the whole income of the accumulated fund, to purchase such books, to be disposed of in Great Britain or the "British dominions, as might have a tendency to promote the interests of virtue and religion and the happiness of mankind. Lord Thurlow held this too indefinite in its objects to be established as a charity. But neither he, nor Sir William Grant nor Lord Eldon, when expressing grave doubts of the correctness of that decision, ever doubted the lawfulness of the direction for accumulation, although the time of accumulation was mentioned in the argument before Sir William Grant, and Lord Eldon expressly referred to the fact that Mr. Bradley’s intention was that the fund should be accumulated' for many years. Browne v. Yeall, 7 Ves. 50 n.; S. C. cited in 9 Ves. 403, 406, and 10 Ves. 27, 534, 539.
In one case indeed the house of lords, upon the advice of Lord Wynford, held that a gift of property to accumulate until it should amount to the sum of pounds sterling, and then
Count Bumford in 1796 gave the sum of five thousand dollars to the American Academy of Arts and Sciences in trust to pay the interest biennially as a premium to the author of the discovery or improvement on heat or light, most beneficial to mankind, which should be published in America during the two years next preceding, and directed that, as often as there should be no such discovery or improvement deserving the premium in the opinion of the trustees, the amount should be added to the principal, and the subsequent premiums proportionally augmented, without restriction. No discoveries or improvements within the terms of the gift were made for more than forty years, the fund increased to fourfold the original amount, and the donor’s residuary legatees claimed the whole fund, or at least the surplus accumulation. But Chief Justice Shaw held that the American Academy was entitled to the whole fund and its accumulations, and adopted a scheme for promoting the general intent of the donor. American Academy v. Harvard College, 12 Gray, 582.
John Hawes, who died in 1829, by his will devised real estate Li trust to apply the income forever to the support of public schools and of a Congregational religious society in South Boston, and directed that when the income should have so increased and accumulated as in the opinion of the trustees to answer these purposes, the surplus should be appropriated to the establishment of a second Congregational society, the settlement and
Oliver Smith bequeathed money to trustees to be managed as an accumulating fund for the term of sixty years, and then to be paid over to the town of Northampton to establish agricultural institutions for the instruction of farmers. And this court held that that town, by virtue of its right to receive this charitable gift at the end of sixty years, had an interest in the estate, and could appeal from a decree of the judge of probate respecting the probate of the will. Northampton v. Smith, 11 Met. 390.
In a very recent case, a testator gave a piece of land and one thousand dollars, after the death of his wife, in trust to maintain a school-house and school, and added, “ In order to accomplish said object, said trustee and his heirs shall have reasonable time to bring the same about with the funds left for that purpose.” Twenty years after the death of the testator, and eight after the ieath of his widow, the school not having been established, the
Dr. Franklin, who died in 1790, left legacies of ¿61000 sterling to each of the cities of Boston and Philadelphia to be lent to young married artificers, with sureties, and to be repaid by yearly instalments of one tenth, with interest, and directed that this should go on for one century, and with a part of the fund for another century, at the expiration of which he gave the principal to the city and the commonwealth. In 1827 Chief Justice Gibson spoke of this bequest of money to the city of Philadelphia, to be lent to young mechanics, as belonging to a class of charities, the validity of which bad never been questioned. Witman v. Lex, 17 S. & R. 91. Many years afterwards the same learned judge expressed an opinion that a similar bequest was void, upon the ground that charities were subject to the ordinary rule limiting accumulations. Hillyard v. Miller, 10 Penn. State R. 326. This opinion excited surprise in Pennsylvania ; and it has since been overruled in the same court, and the decision of the case in which it was delivered sustained upon the ground that such loans constituted no charity. Hill on Trustees, (3d Amer. ed.) 455 n. Philadelphia v. Girard, 45 Penn. State R. 1. It is not within the scope of our present inquiry to consider whether this last position can be maintained. See St. 43 Eliz. c. 4, § 1; Duke, (Bridgman’s ed.) 131; Attorney General v. Ironmongers’ Co. Coop. Pract. Cas. 283; Zimmerman v. Anders, 6 Watts & S. 220, 221.
In this state of the authorities, and in the absence of any legislation upon the subject, we are not prepared to say that accumulation for a charitable purpose can in no case be allowed for a fixed period of more than twenty-one years, or for a contingent period beyond a life or lives in being and twenty-one years afterward. In principle, the uncertain duration of a life tr lives in being would seem to have no natural relation to a
The duties imposed by the testator upon his executors in this regard are to pay annually out of the income of the real estate two hundred dollars to the widow of his deceased brother for life, and one hundred dollars to the trustees of the Salem Savings Bank for fifty years, and after deducting these payments annually, to divide the remaining income among his brother’s children, and at the expiration of the fifty years to divide the remainder of the estate among his brother’s grandchildren. The annuity of one hundred dollars yearly for fifty years is payable at fixed times, subject to no contingency, and, independently of the direction for accumulation, would be open to no legal objection if the annuitant were an individual. The intention to devote these sums to the charitable purpose of supporting aged and destitute persons is manifest. Each sum paid is separated from the bulk of the estate, and vested in the trustees appointed to receive it, as soon as the payment is made, and before the intended accumulation of the interest upon it begins,
Even a gift to an individual, which on a fair construction
It was contended for the heirs at law that no title, legal or equitable, would vest in the charity until the expiration of the fifty years. But we think such is not the true construction of the will. The clause relied on is as follows: “ At the expiration of fifty years the sum which shall have accumulated shall be appropriated by a society of ladies from all the Protestant religious societies in Salem to provide and sustain a home for respectable destitute aged native-born American men and women.” Here are no words of transfer of title, and the ladies mentioned are not a corporation capable of taking the legal estate. The more reasonable interpretation is that the testator intended to continue the title of the fund in the hands of the trustees to whom he gave it in the first instance, and to clothe the proposed
Neither is it necessary to consider whether the trustees of the Salem Savings Bank are authorized by law to hold a fund for this purpose; inasmuch as they have declined the trust, and asked to have another trustee appointed in their stead, which there is no doubt of the authority of the court to do. Bliss v. American Bible Society, 2 Allen, 337. Reeve v. Attorney General, 3 Hare, 191. Upon the appointment of such a trustee, it will be the duty of the executor to pay to him the annuity of one hundred dollars annually for fifty years, according to the will. If, acting with good fidelity and discretion, the funds accumulate in his hands, the accumulations will certainly belong to the charity. Aylet v. Dodd, 2 Atk. 238. Attorney General v. Bowyer, 3 Ves. 728, 729 n.; S. C. 5 Ves. 301. Society for Propagating the Gospel v. Attorney General, 3 Russ. R. 142. Forbes v. Forbes, 18 Beav. 552. American Academy v Harvard College, above cited. Tainter v. Clark, 5 Allen, 69 Any question of law which may hereafter arise in the administration of the charity may be determined upon a bill filed by the trustee to obtain the instructions of the court, or upon an information by the attorney general, if necessary, in behalf of the public.
Decree accordingly.