168 Mass. 341 | Mass. | 1897
We think 'that the bequest to trustees for the purpose of purchasing a lot and building a chapel in Carndrine, Ireland, to “ forever be used for purposes of public worship under the auspices of the Roman Catholic Church,” was a gift for a public charitable use. Attorney General v. Briggs, 164 Mass. 561, 567. Bartlett, petitioner, 163 Mass. 509, 514. McAlister v. Burgess, 161 Mass. 269. Sears v. Chapman, 158 Mass. 400. The fact that the charity would be administered in a foreign country does not of itself render the gift void, and there is nothing to show that it would not be a good public charity by the law of Ireland. Fellows v. Miner, 119 Mass. 541, 546. Washburn v. Sewall, 9 Met. 280. Burbank v. Whitney, 24 Pick. 146,154. Chamberlain v. Chamberlain, 43 N. Y. 424, 432. Neither does the fact that the bequest is in the nature of a public charity require of itself that the court should frame a scheme to carry out as nearly as may be the purpose of the testatrix, if, for any reason, that has become impossible of performance in the manner which she has provided. “ Assuming that the object is a charity, still there is no universal principle that the testator’s particular intentions must be sacrificed by reason of that general object.” Bullard v. Shirley, 153 Mass. 559, 560.
The difficulty in this case, and generally in cases like it, is
But if the charitable purpose is limited to a particular object or to a particular institution, and there is no general charitable intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, and possibly in some cases after it has taken effect, the doctrine of cy pres does not apply, and, in the absence of any limitation over or other provision, the legacy lapses. There are many cases which, it has been held, fall within this rule. Bullard v. Shirley, 153 Mass. 559. Stratton v. Physio-Medical College, 149 Mass. 505. Easterbrooks v. Tillinghast, 5 Gray, 17. Clark v. Taylor, 1 Drew. 642. Corbyn v. French, 4 Ves. 418. Russell v. Kellett, 3 Sm. & Giff. 264. Fisk v. Attorney General, L. R. 4 Eq. 521. In re Ovey, 29 Ch. D. 560. In re White’s trusts, 33 Ch. D. 449. In re Rymer, [1895] 1 Ch. 19. Carbery v. Cox, 3 Ir. Ch. 231. Attorney General v. Bishop of Chester, 1 Bro. C. C. 444. Cherry v. Mott, 1 Myl. & Cr. 123.
The latest case in this Commonwealth in which the doctrine of cy pres has been applied is Attorney General v. Briggs, ubi
From this it appears, we think, as already observed, that the leading purpose in the mind of the testatrix was the purchase of a lot and the building of a chapel at Carndrine for the benefit of those living there, and that to divert the bequest to repairing the parish church, or for a parish house, or to enlarging the parish graveyard at Aughayarron, which are the schemes suggested, would be devoting it to purposes inconsistent and at variance with those designated by the testatrix and not in furtherance of any general charitable intent on her part. We think that a general intent to advance religion in the parish hardly can be
It is found that it will be impracticable to carry out the scheme which the testatrix had in mind, and that it will be a wasteful expenditure of the trust fund to purchase a lot and build a chapel at Carndrine. The population is small, not over one hundred, of whom about four fifths are Roman Catholics, and is diminishing. The people are too poor to support a chapel, and the Bishop refuses to assist in maintaining a chapel or supporting a priest, and without his help the people could do neither.
The purpose which the testatrix had in view has failed, therefore, and the case not being one in which the doctrine of cy pres properly can be invoked, it follows that the bequest must be held to have failed, and to pass under the residuary clause. See New v. Bonaker, L. R. 4 Eq. 655.
Decree accordingly.