93 Mass. 446 | Mass. | 1865
The general principles upon which the parties respectively rely are not controverted. It is not doubted that a bequest in trust for such charitable uses as the trustees may think fit is valid, although declared to be perpetual. On the other hand, it is admitted that a trust, which may by its terms endure forever, for undefined purposes, not charitable in the view of a court of chancery, is void, and results to the heirs of the donor; and that a bequest to trustees, to apply the income in their discretion to charitable purposes or other purposes not charitable, is void, at least in part.
The question to be determined is whether the residuary bequest in the will of Charles Sanders is limited to charitable purposes. After providing for the payment of his debts and funeral expenses, and various legacies and bequests, including one to the town of Gloucester, the place of his ancestors, and one to the city of Cambridge, the place of bis residence, of ten thousand dollars each, to be held as a permanent fund, and the interest paid quarterly, “ as long as the vice of drunkenness there exists,” “to some worthy man in each place, who has discretion and zeal for the cause, to be constantly employed as a missionary in the cause of temperance, in reforming old drunkards and preventing young drunkards, and abolishing, as far as possible, the use of all intoxicating articles,” the testator gives the residue of his estate to his executors and the survivor of them, their and his executors, administrators and assigns, “ as trustees, in trust to hold and invest the same and the income thereof, in such manner as may seem to them expedient; and so much or the
First, “ to the furtherance and promotion of the cause of piety and good morals, or ”
Secondly, “ in aid of objects and purposes of benevolence or charity, public or private, or ”
Thirdly, “ temperance,” (which is shown by the previous clause, above quoted, to have been used by the testator in its modern and limited sense of restraining the abuse of intoxicating liquors,) “ or ”
Fourthly, “ for the education of deserving youths.”
He then adds, “ And I give my said trustees, or the survivor of them, and their successors in said trust for the time being, full power, discretion and authority to appropriate and expend said income or capital in such manner as in their judgment may best promote the objects above mentioned.”
The learned counsel for the plaintiffs admit the advancement of religion and morality, the prevention of vice, and the education of youth, as contemplated in the first, third and fourth of these classes of objects, to be charitable uses; and seek to maintain their bill only upon the ground that the words describing the second class are so vague as to permit the trustees to expend the fund for purposes of an undefined character which are not charitable, and that the whole residuary bequest is therefore void. The specific objections made are two; that the trustees may apply the property to private charity; or to benevolent purposes which are not charitable at all.
But after deliberate advisement, and careful examination of the authorities cited, the court is unanimously of opinion that neither of the objections is well taken, and that the aim of the clause in question is the general relief of the poor, which all admit to be a charitable use. We have therefore no occasion in this case to consider the source and extent of the principles and jurisdiction of chancery in the matter of charities before the St. of 43 Bliz.
This bequest is to receive such an interpretation, if possible,
To say that a trust cannot be administered by a court of chancery, and therefore is not a charity, is to reason backwards, or in a circle. The jurisdiction of a particular court is not the test of what is a charity; but any trust which is charitable, although too indefinite in its terms to be sustained if it were a private trust, may be controlled and administered by a court of full equity jurisdiction. Even the want of any court vested with jurisdiction to enforce it does not affect the validity of a charitable trust. Bartlet v. King, 12 Mass. 544, 545. King v. Parker, 9 Cush. 81. Vidal v. Girard, 2 How. 196.
The assistance of the poor is required not only by the moral and religious duty of every citizen, but by a sound public policy and a regard for the interests of the whole community. A gift “ to the poor ” generally, or to the poor of a particular town, parish, age, sex or condition, is a good charitable gift. It is the number and indefiniteness' of the objects, and not the mode of relieving them, which is the essential element of a charity. It maltes little difference to the contributors, the poor, or the public, and none in the nature of the charity, what is the mode of distributing relief. In the eye of the law, as of Christianity, almsgiving in secret is not less meritorious or charitable
The St. of 43 Eliz. c. 4, to which we are accustomed to recur for the most familiar examples of charitable uses, enumerates many which consist in the first instance, if not chiefly, in the benefit conferred on individuals. Such certainly are “ relief of aged, impotent and poor people,” “ maintenance of sick and maimed soldiers and mariners,” “ education and preferment of orphans,” “ marriages of poor maids,” “ supportatiou, aid and help of young tradesmen, handicraftsmen and persons decayed,” and “ relief or redemption of prisoners and captives.”
The law upon this matter appears very clearly in the judgments of Lord Hardwicke, which are of the highest authority, both from his unsurpassed mastery of the principles of equity jurisprudence, and as having been delivered before the separation of the United States from the crown of Great Britain.
The earliest case reported is one in wdiich a testator, after fixed pecuniary legacies to a certain number of ministers and clergymen, poor decayed families, poor widows, maidens and boys, to be performed at the discretion of his executors, the qualifications of the persons to be relieved being duly weighed and considered; and bequests to persons and charitable institutions, to be paid as his executors should judge best; gave the surplus “ to be distributed to widows or poor orphans of nonconformist ministers, not being at the time worth upwards of £100 a year, and widows being upward of fifty years of age,” “ to be paid in such proportions and to such numbers only, be the same more or less
The next case more conclusively shows that a gift to poor individuals of a particular class, though to be distributed by a private hand, is still a charity and a public charity. Mrs. Squire by her will gave legacies to her servants and other persons; to certain charity schools and hospitals; “ to poor housekeepers, to be distributed to such of them and in such a manner as Mrs. Northcote and Mrs. Green should appoint; ” “ to the Parish of South Morlton; ” and “ to the Parish of Sunny-hill, to be distributed amongst those that were at that time lame or visited with sickness; ” and made Mrs. Northcote her executrix. After Mrs. Squire’s death, Mrs. Northcote made a will by which she gave “to all the public charities to which dear Mrs. Squire has given any legacies by her will ¿6100 a piece.” Mrs. Northcote’s residuary legatees insisted that Mrs. Squire’s legacies to be distributed to such poor housekeepers as Mrs. Green and Mrs. Northcote should appoint, and to the sick and lame of Sunnyhill, were, private charities, and therefore not, like those to charity schools and hospitals, to be increased by Mrs. Northcote’s bequest to “ all the public charities ” named by Mrs. Squire. But Lord Hardwicke held both of them to be public charities, saying, “ The charter of the crown cannot make a charity more or less public, but only more permanent than it would otherwise be; but it is the extensiveness which will constitute it a public one. A devise to the poor of a parish is a public charity. Where testators have not any particular person in their contemplation, but leave it to the discretion of a trustee to choose out the objects, though such person is private, and each particular object may be said to be private, yet in the extensiveness of the benefit accruing from them they may very properly be called public charities. A sum to be disposed of by A. B. and his executors, at their discretion, among poor
In another case, in which a testator, in case of his son’s dying under age, gave to his executors his real estate “ for such charitable uses and purposes as I shall direct by codicil or otherwise,” and his personal estate to “ be disposed of among widows and orphans of dissenters and to my poor relations, in such proportion as they shall think fit; ” and by a codicil, expressed to be made pursuant to the first clause in the will, directed the real estate to be sold or held by the trustees, and the purchase money or income applied or distributed among such persons or to and for such uses and purposes and in such manner as the testator should in writing appoint, and, for want of such appointment, as the trustees should judge fit and convenient; Lord Hardwicke held that, taking the will and codicil together, there was no resulting trust for the heir, but a good disposition to charitable uses; and said, “ The expression in the codicil 1 upon such persons and to and for such uses’ are common words in devises to charity.” Cook v. Duckenfield, 2 Atk. 562, 567. Again ; where a testator gave out of certain property specific sums, amounting to its then income, to various charities, including thirty shillings yearly on certain days to be disposed of in bread among the poor of the parish, and £5 10s. more to “ be yearly disposed of forever in relieving the distressed and poor about Guerendue in meat and drink and clothing, at the discretion of his executor forever,” Lord Hardwicke held that the whole income of the estate was well given to charitable uses. Attorney General v. Johnson, Ambl. (2d ed.) 190, & note. He also established as public charities trusts of unlimited duration to be applied for the benefit of poor relations of the testator at the discretion of his executor, than which it would be hard to imagine anything more private in the class of individuals benefited or in the mode of distribution. Attorney General v. Bucknall, 2 Atk. 328. Isaac v. De Friez, 17 Ves. 373, note ; S. C. Ambl. 595.
The law seems to have been understood in the same way by the highest legal authorities in the Province of Massachusetts before the American Revolution. In 1760 John Alford made a
In Washburn v. Sewall, 9 Met. 280, this court held that a gift to an unincorporated voluntary association of women, having for its objects the providing of groceries for the sick and infirm, and clothing and fuel for the helpless and needy was a good charitable gift. See also King v. Parker, 9 Cush. 82. And Chancellor Kent, adopting as his guide Lord Hardwicke’s judgment, in Attorney General v. Peirce, above cited, says, “ It is the
The English decisions of the greatest weight since our Revolution maintain the same principles.
Lord Eldon established and carried out a bequest of ¿630,000 to trustees, to be invested forever, and the income paid “ unto and amongst such number of the poor inhabitants of” certain parishes,61 at such times and in such proportions, and either in money, provisions, physic or clothes, as his said trustees or the major part of them for the time being shall from time to time think fit, for the better support and maintenance of such poor inhabitants.” Bishop of Hereford v. Adams, 7 Ves. 324. He also held that the general residue of an estate was given to charitable purposes by the following words: “ All the remainders of my different bequests I give and bequeath to the Archbishop of Canterbury and to the Archbishop of York for the time being, in trust for charitable purposes, and anything not specified
I commit to the discretion of my executors. I desire my executors to make some donation out of my property to the poor of the different places where I have estates.” Paice v. Archbishop of Canterbury, 14 Ves. 364.
Sir William Grant sustained as charitable a residuary bequest II to the widows and orphans of seamen belonging to the town of Liverpool; ” and ordered it to be paid to the rectors of Liverpool and their successors, to be by them invested, and the interest paid and distributed unto and amongst such poor sailors’ widows and orphans, inhabitants of Liverpool, as should in their judgment be deserving objects of charity. Powell v. Attorney General, 3 Meriv. 48. He also followed Lord Hardwicke’s decisions as to permanent trusts for the assistance of poor relations, saying of such a bequest in one case, “ It is to have perpetual continuance in favor of a particular description of poor, and is not like an immediate bequest of a sum to be distributed among poor relations.” Attorney General v. Price, 17 Ves. 371. White v. White, Boyle c.i Charities, 34, 35 ; S. C. 7 Ves. 423.
Sir John Leach also held a bequest to trustees “ for the benefit of such public or private charities as they in their discretion might think fit ” to be a valid charitable donation. Johnston v. Swann, 3 Madd. R. 457. And after he had become master of the rolls, he sustained a bequest of an annuity to +he testator’s wife, “ to be by her distributed in charity according to her own discretion and judgment, either to private individuals or public institutions, in such sum or sums, way and manner as she shall from time to time choose, without limitation or control from any person whomsoever; ” and a residuary bequest to trustees, to be continued at interest, and the dividends “ given away in charity either to individual persons or to public institutions,” with like unlimited discretion. Horde v. Earl of Suffolk, 2 Myl. & K. 59.
The decision which goes farthest to support the position of the plaintiffs as to the meaning of the words “ private charity” is that in Ommanney v. Butcher, Turn. & Russ. 260. There a testator, after legacies to certain individuals, and to various schools, hospitals, and other religious and charitable institutions of which he was a governor or trustee, added, “ In case there is any money remaining, I should wish it to be given in private charity.” Sir Thomas Plumer, M. R., held this last bequest too indefinite to be carried out, either by the sign manual of the crown, or by the ordinary jurisdiction in chancery. The opinion does not show that degree of thought and research which
There is a species of organization, sometimes called a “ private charity,” which is not a public or general charity in the view of the St. of Eliz. or of a court of chancery; and that is an association, for the mutual benefit of the contributors and of no other persons. But such a case wants the essential element of indefiniteness in the immediate objects, if not that of gratuity in the contribution. Anon. 3 Atk. 277. Attorney General v. Haberdashers’ Co. 1 Myl. & K. 420. Carne v. Long, 2 De Gex, Fisher & Jones, 75. Attorney General v. Federal Street Meeting-house, 3 Gray, 44-52. Upon no reasonable construction can a bequest to “ private charity,” still less one to “ charity, public or private,” be brought within that class.
The decisions of Lord Langdale, to which the plaintiffs have referred, were as follows : In one of them he held a bequest to executors to receive the interest half-yearly “ and divide it among poor pious persons, male or female, old or infirm, as they see fit, not omitting large and sick families, if of good character,” to be a valid charitable bequest for the poor. Nash v. Morley, 5 Beav. 177. In the other, of a bequest to trustees, to be applied at their discretion “ for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging undertakings of general utility,” Lord Langdale said that if the sentence had ended with the word “ individuals,” it would have been a good charitable purpose; but he felt himself bound by the decisions to hold that the words “ general utility ” (which do not occur in the will before us) were large enough to include purposes which were not charitable, and that the whole bequest was therefore void. Kendall v. Granger, 5 Beav. 300.
In Ellis v. Selby, 7 Sim. 352; S. C. 1 Myl. & Cr. 286, the only-point decided was that a bequest in trust for “ charitable or other purposes ” as the trustee should think fit, was void. The correctness of that decision cannot be doubted ; for the testator could hardly have expressed more clearly an intention to allow the fund to be applied to purposes which were not charitable, as
We are therefore of opinion that, upon principle and authority, a bequest for 44 objects and purposes of charity, public or private,” is a valid charitable gift. The effect of the. use of the word 44 benevolence ” in connection with the word 44 charity ” remains to be considered.
The earliest case cited for the plaintiffs upon this point is that in which Sir William Grant, and Lord' Eldon on appeal, held that a bequest to the Bishop of "Durham in trust to be applied 14 to such objects of benevolence and liberality as the Bishop of Durham in his own discretion should most approve of,” was too indefinite to be executed. Morice v. Bishop of Durham, 9 Ves. 399; S. C. 10 Ves. 521. But 44 liberality ” might include gifts
Vice Chancellor Leach used “ general benevolence ” as equiv aient to charity. He held a bequest “ to the widows and orphans of the Parish of Lindfield ” to be a charitable gift for the poor widows and orphans of that parish, because it “ could not in its nature have proceeded from motives of personal bounty to particular individuals; it must have proceeded from general benevolence towards two classes of persons who were suffering under a common circumstance of destitution or privation, and is necessarily to be confined to such of those two classes who are within the scope of general benevolence.” Attorney General v. Comber, 2 Sim. & Stu. 93. And he upheld a bequest to trustees, to be applied and disposed of “for such charitable and benevolent purposes ” as one of them should direct and think proper. Jemmit v. Verril, Ambl. 585, note.
By far the strongest case in favor of the plaintiffs is that of Williams v. Kershaw, which is not to be found in any of the regular reports, but is reported by Mr. Beavan in 5 Law Journ. (N. S.) (Ch.) 84, and an abstract of it printed in 5 Clark & Fin. Ill
But that decision is directly opposed to the construction given to like words in earlier and later judgments of the house of lords upon appeal from the courts of Scotland. In Hill v. Burns, 2 Wils. & Shaw, 80, a bequest was held valid, by which a testatrix appointed the residue of her estate “ to be applied by my said trustees in aid of the institutions for charitable and benevolent purposes, established or to be established in the city of Glasgow or neighborhood thereof; and that in such way and manner, and in such proportions of the principal or capital, or of the interest or annual proceeds of the sums so to be appropriated, as to my said trustees shall seem proper; declaring, as I hereby expressly provide and declare, that they shall be the judges of the appropriation of the said residue for the purposes aforesaid.” That case was cited as authority by Lord Lyudhurst in Crichton v. Grierson, 3 Bligh Ñ. R. 434; S. C. 3 Wils. & Shaw, 341. In a later case, in which Williams v Kershaw was cited, the house of lords established a residuary bequest to trustees to be applied “ to such benevolent and charitable purposes as they think proper,” recommending them, if it should amount to ¿6600, to hold the principal, and pay out the income annually ‘ to faithful domestic servants, settled in Glasgow or the neighborhood, who can produce testimonials of good character and morals from their masters and mistresses after ten years’ service; ” but if less than that amount*
It was indeed said in the two cases last cited that the law ol England as to charitable bequests was more strict than the law of Scotland. But the decisions of the English courts since our Revolution are of no binding authority in this court; and, upon such a question as the interpretation of the word “ benevolence,” as connected with “ charity,” of no peculiar weight, when opposed to the well settled meaning of those words in our own law.
The word “ benevolent,” without the addition of any synonymous or explanatory words, has been often, if not uniformly used in the statutes of the Commonwealth, as equivalent to “ charitable.” The Si. of 1790, c. 19, incorporating and establishing the Humane Society of the Commonwealth of Massachusetts, had this preamble: “ Whereas it is the duty of government at all times to countenance and support its citizens in their exertions for alleviating the distresses of their fellow-men : And whereas divers persons have petitioned this court for an act of incorporation, whereby they may more effectually carry into execution their benevolent designs.” “ The end and design of the institution of the said society,” as declared in the fifth section of that act, “ is for the recovery of persons who meet with such accidents as produce in them the appearance of death, and for promoting the cause of humanity, by pursuing such means from time to time as shall have for their object the preservation of human life, and the alleviation of its miseries.” 1 Special Laws, 388, 389. The St. of 1818, c. 77, incorporating the Newburyport Howard Benevolent Society, provided that “ the funds of said society shall always be improved and appropriated to the humane purposes of relieving the distresses of the poor, the sick and the aged.” The St. of 1833, c. 133, incorporated the United States Naval Benevolent Association, “ for the purpose -of affording relief to the widows, orphans, parents or maiden sisters of the members of said association, and such other persons as saicj
From the early part of this century, at least, the word “ benevolence,” as coupled with “ charity,” has been constantly used in the legislation of Massachusetts to signify purposes strictly charitable, and especially the relief of the poor. By SL 1802, c. 69, the Portland Benevolent Society were incorporated to relieve and assist the poor, “ and generally to exercise such acts of charity, hospitality and benevolence, as the funds of the society shall allow.” 3 Special Laws, 85. By St. 1808, c. 58, the Beverly Charitable Society were incorporated for the purpose of raising a fund in order to relieve and assist the poor inhabitants of Beverly, widows and orphans, “ and generally to perform such acts of charity and benevolence, as the funds of the society may allow; ” and were authorized to take and hold property, “ to be used and improved for the purposes aforesaid, or such other benevolent purposes as the donor may particularly direct.” By St. 1816, c. 22, incorporating the Franklin Charitable Society, “the funds of the said society shall be always improved and appropriated to benevolent and humane purposes.” By St. 1819, c. 52, incorporating the Trustees of the Ancient Landmark Charity Fund, they were to employ the income of their estate “ in acts of charity and benevolence, and not otherwise.” By St. 1819, c. 102, incorporating the Trustees of Saint Peter’s Charity Fund in Newburyport, they were vested with the powers and privileges, and made subject to the duties and liabilities, “ incident to other charitable institutions; ” and might employ their income “ in acts of charity and benevolence, and for no other use whatever; ” and make rules and by-laws “ for the better management and administering the said charity.” By St. 1831, c. 18, the Massachusetts Charitable Fire Society were authorized to appropriate part of their funds “ to any other charitable purpose or purposes than those mentioned in their act of morporation, and to such benevolent institutions within this
The general tax law of the Commonwealth, in enumerating the classes of property exempted from taxation, inserts, between the property of the United States and of the Commonwealth, and the property of common school districts the income of which is appropriated to the purposes of education, “the personal property of literary, benevolent, charitable and scientific institutions incorporated within this Commonwealth; and the real estate belonging to such institutions, occupied by them or their officers for the purposes for which they were incorporated.” Gen. Sts. c. 11, § 5, cl. 3. This clause in its present shape was inserted by the legislature thirty years ago in the Rev. Sts. c. 7, § 5, cl. 2.
Whatever therefore may be the meaning, in the law of Massachusetts, of the word “ benevolence ” by itself, there can be no doubt that when used in connection with “ charity,” as in this will, it is synonymous with it; and the connecting “ or ” must be taken in the sense of defining and limiting the nature of the charity intended, and of explaining one word by the other. Copulatio verborum indicat quad accipiuntur in eodem tensu.
The testator-, in authorizing the trustees to expend at their discretion, for the charitable purposes specified, any part or the whole of either the capital or the income of the trust fund, evidently expected the income at least to be ordinarily paid to such purposes, and cannot be supposed to have contemplated an indefinite accumulation. The possibility of accumulation of the income does not defeat or impair the charitable gift. Odell v. Odell, 10 Allen, 1, and cases cited.
If at any time hereafter doubts should arise as to the mode of distribution, or the trustees should exercise their discretion illegally or unreasonably, this court, upon bill or information, may control and regulate the administration of the charity.
Demurrer sustained; bill dismissed.
This case was argued at the end of this term before all f he judges but Colt, J