318 Mass. 447 | Mass. | 1945
By this petition the executor of the will of
The evidence is reported, but no report of material facts was made by the judge. Material facts disclosed by the evidence may be summed up as follows: Patience A. Hogan died December 5, 1941. Her will, executed in December, 1938, was admitted to probate and the executor was appointed on January 9, 1942. The pertinent provisions of the will are": "After the payment of my just debts and funeral expenses, I give devise and bequeath all the property of which I may die seized or possessed, in the following percentages of all that remains; ... 23. I give to the Huntington Memorial Hospital 695 Huntington Avenue, Boston, Massachusetts, Six and one quarter (6.25) percent; . . . Should any of the legatees or devisees named in this will be not living at the time of the probate of this will, I direct that his or her gift go to his or her legal heirs or to the successors of the charitable institution mentioned.”
For many years prior to January 1, 1942, the President and Fellows of Harvard College, hereinafter called the corporation, had a department of the college denominated “The Cancer Commission of Harvard University and Collis P. Huntington1 Memorial Hospital.” About the year 1912 the corporation caused to be erected and furnished, at 695 Huntington Avenue in Boston, a hospital building called the Collis P. Huntington Memorial Hospital. Its activities consisted of cancer research and the treatment of sufferers from cancer. The hospital was administered under the
Counsel for the appellants properly makes no contention that the purpose to which the Huntington Memorial Hospital was devoted did not constitute a public charitable purpose. He makes no contention that, if the legacy made by the testatrix under that description had taken effect prior to January 1, 1942, it would not have been payable
We do not concur in the foregoing contentions. We are of opinion that the particular location in which the activities of the department of cancer commission and Collis P. Huntington Memorial Hospital are conducted is of no materiality. So long as those activities are conducted as before, no matter where, for the same purposes, and under the same control, and at the expense and under the supervision of the department of the corporation established for those purposes, it cannot be said properly that the Huntington Memorial Hospital as conceived by the testatrix has ceased to exist. Accordingly no question arises as to a successor. No question of cy pres is presented. The testatrix in making her bequest to the agencies known to her as the Huntington Memorial Hospital must be taken to have had as her principal object the aid of the charitable purposes of the study and treatment of those afflicted with cancer. That the object of her benefaction was known generally to the public, many of whom were there served, may be inferred from the evidence..
In the instant case there is no change in the legal entity, that is, the corporation. Its department of cancer commission and Collis P. Huntington Memorial Hospital was never and is not now a separate legal entity. .It has never had existence apart from its departmental existence. That exists today just as it did when the testatrix made her will, when she died and when her will was allowed. Its purposes remain the same as those for which the legacy in question was given under the designation of the hospital. They are, as they always were before, under the supervision of the corporation’s department, and the cost is met out of the funds donated to the corporation for the purposes of the department. In the present case there has been no consolidation of the department in question of the corporation
Counsel for the appellants has also argued that the judge erred in directing that the costs and expenses that be allowed to counsel for the corporation and to counsel for the respondents who have appealed be paid out of the residue of the estate of the testatrix, and that these allowances should have been charged to the "fund.” There was no error in this respect. The petition was brought by the executor of the will of the testatrix. It may be assumed properly that the respondent corporation did not raise the issue but was cited in. The costs and expenses incurred therein are properly a charge of administration payable out of the general estate of the testatrix. There is nothing in the cases cited by counsel for the appellants in conflict with this conclusion.
Counsel for the respondent corporation and counsel for
Decree affirmed.