Old South Society v. Crocker

119 Mass. 1 | Mass. | 1875

Wells, J.

We find no public charity created by either of the three instruments under which title to the premises in question was derived from Mary Norton.

By her deed of April 1, 1669, the legal estate in the land therein described passed to and became vested in the ten persons named as grantees. A trust was declared, however, the beneficiaries of which were the grantees themselves with “ such as they should associate to themselves.” The further limitation to “ their heirs and successors ” indicates that the grantor contemplated a permanence of association of the cestuis que trust, and intended to convey the fee in the land.

The purposes, of the trust, as set forth in the deed, were, 1st, “ for the erecting of a house for their assembling themselves together publiquely to worship God; ” 2d, “ the erecting of a dwelling-house for such Minister or Ministers as shall be by them and their successors from time to time orderly and regularly admitted for the Pastor or Teacher to the said Church or Assembly ; ” and they are further guarded by the restriction “ and foi nae other intent, use or purpose whatsoever.”

Gifts for the erection of a house for public worship, or for the use of the ministry, may constitute a public charity, if there is no definite body, for whose use the gift was intended, capable of receiving, holding and using it in the manner intended. To give it the character of a public charity there must appear to be some benefit to be conferred upon, or duty to be performed towards, either the public at large or some part thereof, or an indefinite class of persons. Going v. Emery, 16 Pick. 107, 119. Perry on Trusts, § 710. Saltonstall v. Sanders, 11 Allen, 446. But when there is a body, or a definite number of persons, ascertained or ascertainable, clearly pointed out by the terms' of the gift to receive, control and enjoy its benefits, it is not a public charity, however carefully and exclusively the trust may be restricted to religious uses alone. Attorney General v. Federal Street Meeting-house, 3 Gray, 1, 49. Parker v. May, 5 Cush. 336.

The deed of Mary Norton clearly contemplated that the grantees and their associates then formed, or were about to form, a voluntary religious society; and it was for the use and benefit of such society, in the promotion and convenience of the religious exercises and public worship to be maintained and conducted by and for themselves, that her gift was made to aid in providing a house for those religious exercises, and also a house for the residence of such person as should at any time serve them as their minister. Attorney General v. Merrimack Manuf. Co. 14 Gray, 586, 602.

The cestuis que trust were indeed an indefinite number of persons, in the sense that there was no fixed number to whom the designation of “ associates ” would apply; and they were doubtless intended to include all who should, in accordance with what might be adopted as the rules of association or organization, at any future time become members of the society; and thus the enjoyment would be continued perpetually. A trust so constituted is capable of serving these shifting interests in the beneficiaries ; Second Congregational Society in North Bridgewater v. Waring, 24 Pick. 304; King v. Parker, 9 Cush. 71, 82; and is jot obnoxious to the rule of law against perpetuities which prevent alienation; because the entire interest at any time is represented by known persons living; to wit, the legal estate by the trustees, there being always power in the court, in case of necessity, to supply trustees in whom the estate will vest; the equitable interest by those persons who then constitute the body of the associates or the society, who may be ascertained according to its roles governing membership.

• The character and purposes of the association named as cestui que trust, and the designation of the religious uses for which the property was given, do not necessarily indicate an intent to create a public charity. Such an implication sometimes arises from the character of the body to which the gift is made, or from the publicly avowed purposes of its organization and action; as in the case of Tucker v. Seaman's Aid Society, 7 Met. 188; Concord Female Charitable Society in New Hampshire, Washburn v. Sewall, 9 Met. 280 ; American Board of Commissioners for Foreign Missions, Bartlet v. King, 12 Mass. 536; American Education Society and American Bible Society, Burbank v. Whitney, 24 Pick. 146 ; Bliss v. American Bible Society, 2 Allen, 334.

Property held in trust for a Monthly Meeting of Friends seems to have been regarded as a public charity in Earle v. Wood, 8 Cush. 430, and in Dexter v. Gardner, 7 Allen, 243 ; and for a lodge of Freemasons, in King v. Parker, 9 Cush. 71. But neither of those cases was a proceeding which concerned the administration of a charity, as such. They were suits in equity relating to trusts, in which the rights of private parties alone were represented. There was no public charity declared in either case, and no adjudication which necessarily involved or was based upon the existence of a charitable trust.

A fund, to be dispensed exclusively by way of mutual benefit or aid among the members of an association, is a private and not a public charity. 3 Gray, 50. 11 Allen, 464. It may well be questioned, therefore, whether all the conditions requisite for a technical public charity were present in the case of King v. Parker, cited above.

Conceding that “ monthly meetings,” embracing as they do the entire community of people called “ Friends,” are so indefinite and general, and the purposes of their organization such that gifts in trust for their use will constitute strictly a public charity, still there is a marked distinction between such bodies and a congregational poll parish or society of defined, regulated, and, therefore, limited membership.

Property devoted to the support and maintenance of public, worship, which is public only in the sense that it is open to the public by courtesy, in accordance with the usual practice of al! churches in this Commonwealth, does not thereby become a public charity. 3 Gray, 50. 14 Gray, 602. Attorney General v. Trinity Church, 9. Allen, 422. Perry on Trusts, § 732. The deed of Mrs. Norton undoubtedly contemplated public worship of that character, but she entrusted its administration and limited the legal right of enjoyment to those who should become associated with her grantees, and their successors, and thus constitute a poll parish or religious society.

The fact that it is carefully restricted to religious uses, as already suggested, does not alone give it the character of a public charity. Wells v. Heath, 10 Gray, 17. As a trust, the whole estate passed from the grantor. There is reserved no right of defeasance and reverter or limitation over in case of a disregard of the restriction ; and if there were, it would not avail to transfer the use or to convert it from a private to a public charity. Brattle Square Church v. Grant, 3 Gray, 142. Wells v. Heath, 10 Gray, 17. Drury v. Natick, 10 Allen, 169, 183.

The deed of June 30,1677, does not give rise to any materially different question. It conveys an adjoining estate to the six survivors of the trustees named in the previous deed, and to such as have been “ or shall be associated, to them and to their heirs and successors forever, for the ends and purposes in the first above mentioned deed of April the first, 1669, is fully and amply declared,” with the house already erected thereon, “ for the use of their ministers or ministry orderly chosen by the said society, being the Third Church of Christ in Boston, from time to time and at all times forever.” This is not a provision for a ministry at large, or a ministry independent of the society; but is for the benefit of the society by enabling them to provide for the support and convenient residence of such persons as they might employ to serve them as their minister. Wells v. Heath, 10 Gray, 17, 23.

The will devises her own house to the “ Third Church of Christ in Boston,” naming, as trustees, two only of the persons who were trustees under her previous deeds. The devise is manifestly intended to be in furtherance of the same objects as the conveyances by deed, aúd for the use of the same beneficiaries, although differently designated. It is declared to be “ for the use of the ministry in the said church successively forever,” The reasons for making the gift, assigned by her, especially in connection with the previous deeds, show that it was intended, like the convexanees, for the benefit of the religious society formed by her trustees, their associates and successors, and exclude the idea of a more general public charity.

By the St. of 1845, c. 229, the proprietors of pews in the " Old South Meeting-house ” and their successors were made a corporation, and authorized to take and hold, to the use of said corporation, in fee simple, the property then “known as the estate belonging to the Old South Church and Society.” It is not disputed that these corporators were the proper successors of Mary Norton’s grantees and devisees and their associates who constituted the “Church or Assembly” designated by her as the “ Third Church of Christ in Boston.” They therefore represented the eestuis que trust, and were entitled to the beneficial interest in the estate. Precaution not having been taken to preserve a succession in the trustees for the transmission of the legal title, that remained nominally in the heirs of the survivor of the original trustees named by Mary Norton. By the act of incorporation, that title also was made to vest in the corporate body. It was manifestly not the intention of the Legislature that an absolute merger of the two interests should result so as to discharge the estate from the trusts with which it had been impressed. It was accordingly declared that it should continue to be held “ for the support of public worship, for parochial and charitable purposes in this Commonwealth, and for paying the debts of said corporation.” But this declaration of u£es does not define a public charity, even if it were competent for the Legislature to constitute or declare one out of a trust where it did not exist before. Perry on Trusts, § 711.

We cannot doubt that lands so held may be sold by authority of the Legislature; Stanley v. Colt, 5 Wallace, 119, 169; or of this court as a court of equity, charged with the supervision and enforcement of trusts, under the Gen. Sts. c. 100, § 16. We do not find, in the special circumstances and character of the authority conferred by the charter to hold this particular real estate, any inhibition of the usual power of sale by leave of the court, which attaches to trust estates generally. And the special authority to apply to this court, contained in the St. of 1874, c. 270 . would seem to remove any inhibition which* might otherwise be implied from the character of the original act or charter. But we think it is equally clear that the vote of a majority of the pewholders or members of the society is not of itself a sufficient authority to enable the corporation to make the sale, nor a sufficient reason to justify this court in authorizing it to be made. The trust is one in which each individual member of the society has an interest as an intended beneficiary, and a right to be heard upon the question of the proper administration of the trust in reference to its original character and purpose, and the effect of the proposed change upon all the members, the minority as well as the majority. It is incumbent upon those who seek to make the change to satisfy the court that it is reasonably required for the accommodation of the society as a whole, and that the proposed change will not subject the minority to an unreasonable sacrifice of interest or convenience, or in any way work injustice to them. The respective rights of the corporation and of its individual members in respect of such property are so fully set forth in the case In re New South Meeting-house in Boston, 13 Allen, 497, as to require no further discussion here, in advance of the hearing which must be had to devolop the grounds that may exist for or against the proposed sale.

Upon that hearing, the alleged abuse by the corporation, or by the majority, in using the trust funds to build a meeting-house elsewhere, and in resorting to that house for the meetings of the society for public religious worship, will have such weight as it is entitled -to have. If, as the minority contend, it deprived the majority of all standing as members of the society and beneficiaries of the trust, so that those who desire to remain and continue the maintenance of public worship in the house upon the original site may be regarded as constituting the body of the society, entitled both to the corporate franchise and the beneficial enjoyment of the trust estate; or if it warrants and requires that the court should remove the trustee and place the estate in the charge of new trustees, to secure the accomplishment of the original purpose of the donor, neither of these results can be reached by either of the present suits: not by the information by the attorney general, because that is based exclusively upon the supposed character of the trust as a public charity, which is not sustained; not by the bill in equity, because no decree in favor of the minority can be made in that, except to refuse to authorize the sale or declare a rignt to sell.

The objection that no right was shown to institute the bill in equity in the name and behalf of the corporation was not urged at the argument, and we regard it as waived. That to the nonjoinder of the attorney general fails, of course, with the information itself.

The result is that the information by the attorney general must be dismissed, and the bill in equity must stand for hearing before a single justice. Ordered accordingly.