234 Mass. 389 | Mass. | 1920
This is a suit in equity wherein it is alleged that the heirs at law and next of kin of Thomas S. Peirce seek to have declared null and void the gift in the residuary clause of his will. That gift is of the residue of the testator’s estate to trustees “to be held as a special trust fund forever, the net income whereof to be paid semi-annually or oftener in the discretion of said Trustees to the use and benefit of the Town of Middleborough, in such manner as said Trustees or their successors shall determine.”
As matter of construction these testamentary words constitute the town of Middleborough as a municipality in its corporate capacity the beneficiary of the fund. There is no uncertainty or indefiniteness in this particular.
The question to be decided is whether by the will a valid gift is made for a public charity. There are numerous expressions in opinions, some of them written by justices eminent for their learning in this branch of law, to the effect that gifts for the benefit of municipalities are for charitable objects. Such expressions occur frequently in cases where gifts for improving a city or town have been enumerated as among valid charities. American Academy of Arts & Sciences v. Harvard College, 12 Gray, 582, 594. Jackson v. Phillips, 14 Allen, 539, 552. Burbank v. Burbank, 152 Mass. 254, 256. Goodman v. Saltash, 7 App. Cas. 633, 642. In Drury v. Natick, 10 Allen, 169, at page 178, in discussing the effect of the St. of 43 Eliz. c. 4, which is a part of the common law of this Commonwealth, it was said that the “only public buildings or works named . . . [therein] are bridges, ports, havens, causeways, churches, sea-banks and houses of correction. Yet there are high authorities, English and American, in favor of holding any gift for the benefit of all the inhabitants of a town to be charitable.” '
In New Castle Common v. Megginson, 24 Del. 361, it was decided in an elaborate opinion that a gift “for the use of the inhabitants of the town of New Castle,” constituted a charitable trust. In Hargreaves v. Taylor, [1905] 2 Ch. 400, .a bequest “Upon trust for such charitable, educational,.or other institutions of the town of ICendal and also for such other general purposes for the benefit of the town of Kendal or any of the inhabitants thereof as my trustees shall in their absolute uncontrolled discretion think fit,” was held to be a good charitable trust. In Dolan v. Macdermot, L. R. 5 Eq. 60, it was said by Lord Romilly, ‘M. R., “Suppose, for instance, the testator had made the gift in
It has been argued that there are divers purposes for which under our statutes a city or town may expend money which cannot be considered as charitable. See R. L. c. 25, §§ 15, 20, 21; c. 26, § 28; Sts. 1914, c. 707, § 9; 1908, c. 290. It is not necessary to discuss these statutes in detail. It has been held again and again that under our Constitution money raised by taxation can be expended only for uses which are wholly public. Money held by towns, except under some unusual provision, must likewise be affected with a public interest and must be devoted exclusively to public purposes. Duffy v. Treasurer & Receiver General, ante, 42, and cases there collected. Allen v. Marion, 11 Allen, 108. It follows that the authority of the trustees under the testator’s will, in determining the manner in which the net income shall be applied for the use and benefit of the town, extends to the selection of those objects which are strictly public and therefore charitable.
Decree must be entered sustaining the demurrer and dismissing the bill. This is a strictly adversary proceeding and not a bill for instructions as to the meaning of the will. One set of costs - may be allowed against the plaintiffs.-
So ordered.