Old Colony Trust Co. v. Third Universalist Society of Cambridge
285 Mass. 146
Mass.
1934
Check Treatment
Rugg, C.J.

These two petitions raise an identical issue as to the person entitled to a legacy of a specified sum in the will of each of two distinct persons to the “Third Universalist Society of Cambridge,” hereafter called the society. From the allegations of the petitions and the answers of the society, it appears that the society for a great many years prior to 1929 occupied a church in Cambridge, that in the early part of 1929 the society voted to transfer its assets to the Massachusetts Universalist Convention (hereafter called the convention), and that, pursuant to vote, the society conveyed the real estate then owned by it to the convention. It was admitted that the society is a religious corporation, organized and existing under the laws of the Commonwealth. That society contends that it is entitled to the legacy. The convention, a Massachusetts corporation, also asserts claim to the legacy. The society admits that it executed and delivered to the con*149vention a bill of sale of all its personal property of every kind, nature and description owned by it, whether used in the church property or located elsewhere, and that it has temporarily suspended the holding of religious services. The society has not been dissolved but continues to exist as a corporation. There is nothing in the record to indicate that any steps have been taken toward the dissolution of the society.

1. There is no doubt about the identity of the legatee. The society is precisely and accurately described in each will. It continues to exist with full corporate powers. It has not been dissolved. It is capable of accepting such legacies as here are in question without overstepping the bounds of its corporate competency. Nonuser by the corporation of its corporate powers works no forfeiture of them and does not operate as a surrender of its charter. Essex Co. v. Commonwealth, 246 Mass. 242, 248. Opinion of the Justices, 237 Mass. 619, 623. There is nothing in the record to impair the right of the society to receive the legacies. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 475.

The purpose of the legacies does not appear to have failed. They are general in character and are not restricted to any special object. No question is raised on the record as to misappropriation of the legacies or failure to apply them to the general charitable uses implied by a gift to such a corporation as the society.

2. The convention offered the records of the society. There was no adequate offer to show what those records contain. In particular, there is nothing to show that the meeting of the society in question in January, 1929, was legally called, or that there were articles in the warrant for the meeting sufficient in nature to direct the attention of the members of the society to the question whether the corporation should be dissolved. Meader v. West Newbury, 256 Mass. 37, 40. In the absence of adequate offer of proof, there was no error in excluding the records.

If, however, it be assumed that the record of votes offered although kept by the clerk pro tempore who was not sworn *150(see Stebbins v. Merritt, 10 Cush. 27) was admissible, it fails to show any impairment of right by the society to receive the legacies. The votes offered went no further than to indicate a sense of the meeting to close the church doors, to give up “active services,” to transfer the real and personal property of the society to the convention, and to instruct the “Trustees” “to take all necessary steps for the dissolution of the Society.” Votes of this nature do not extinguish the society nor weaken its right to receive legacies. Syrian Antiochean Church v. Ghize, 258 Mass. 74, 80-81. There is nothing to justify the conclusion that any effective action has been taken pursuant to the alleged votes.

Finally, each of the testators died subsequently to the proffered votes. The legacies were not then vested in the society, and cannot have been intended to have been within the purview of the votes. The right of the society to receive the legacies is not vitiated by the votes.

The case at bar is distinguishable from Easterbrooks v. Tillinghast, 5 Gray, 17, where it does not appear that a corporation was involved, or anything more than a volutary unincorporated association; and also from Stone v. Framingham, 109 Mass. 303, where, pursuant to a special legislative act accepted by the corporation, a dissolution was held to have been effectuated. The proffered evidence was excluded rightly and in any event its exclusion did the convention no harm.

No reason is disclosed on this record requiring the reversal of that part of each decree which ordered the convention to pay to the counsel for the society $100 as costs and expenses. Power to do this is conferred by G. L. (Ter. Ed.) c. 215, § 45. Willard v. Lavender, 147 Mass. 15. Burrage v. County of Bristol, 210 Mass. 299, 300. Pepper v. Old Colony Trust Co. 268 Mass. 467, 471. For this reason the case at bar is distinguishable from costs in general equity practice illustrated by Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 262. Compare Burroughs v. Wellington, 211 Mass. 494, 496, Densten v. Densten, 280 Mass. 48, 50, and Ahmed’s Case, 278 Mass. 180, 185. Costs *151are not commonly taxed against a losing party under our probate practice. Collis v. Walker, 272 Mass. 46, 49. The award of such costs generally rests in sound judicial discretion. In equity the general rule is that a report, Harris v. Mackintosh, 133 Mass. 228, 231, as well as an appeal, Wright v. Wright, 13 Allen, 207, 209, Mulrey v. Carberry, 204 Mass. 378, 381, brings to this court for review questions of discretion. So far as costs in probate and equity are in the discretion of the trial judge, the award or denial may be presumed to be right and ordinarily ought not to be disturbed. Newton v. Consolidated Gas Co. of New York, 265 U. S. 78, 82, 83. The case at bar is distinguishable also from cases like Barnes v. Springfield, 273 Mass. 283, 286, and cases cited, where the allowance of costs is placed by special statute in the discretion of the judge. We are not inclined to revise the action of the trial judge on this point. Boynton v. Tarbell, 272 Mass. 142, 146. See Donald Campbell & Co. Ltd. v. Pollak, [1927] A. C. 732; Taylor v. Dowlen, L. R. 4 Ch. 697; Bew v. Bew, [1899] 2 Ch. 467. No such order is made as to the costs and expenses of this appeal.

In each case the entry may be

Decree affirmed.