324 Mass. 632 | Mass. | 1949
Stephen G. Train died on May 6, 1920, leaving a will which was duly proved and allowed. In the seventh article of his will the testator left the residue of his estate to his trustees in trust to pay the income for life to several persons. This article provided that on the death of the survivor of the life beneficiaries the trustees were to apply the principal to the payment of fourteen charitable legacies and, after these had been satisfied, they were to pay over “15. All the rest and residue to the town of Brook- • line as a fund or part of a fund for the purpose of establishing and maintaining a public general hospital in the town, the income from the same, until the establishment of such a hospital, to be used for the relief of sickness among the poor.”
All of the life beneficiaries have died and all of the legacies have been paid with the exception of that to the town of Brookline, hereinafter called the town. The residue of the estate, including accrued income, now in the hands of the trustees amounts to approximately $370,000. The trustees notified the town that all life interests under the trusts created in the will had been terminated and asked it whether it would accept the legacy. At the annual town meeting in March, 1946, the matter of the acceptance of the legacy was considered, and it was voted to refer the matter to a committee which was to make a report of its recommendations at the next town meeting. Such a committee was appointed and made a report, and at the next annual meeting held on March 25, 1947, the town voted to accept the committee’s report and to adopt, with an exception not here material, the recommendations therein contained. The town voted to accept the bequest “provided that a court having jurisdiction shall first decide: (1) that under the terms thereof the town, upon such acceptance, shall be
The present petition
The judge entered a decree declaring that the town is not obligated to establish and maintain a public general hospital until it deems it expedient to do so “but subject however at any time to the direction ... of a court of equity”; that the town is not obligated to make up any “deficiency in funds necessary for the establishment and maintenance of such a hospital” beyond the amount of the bequest and such others as might be accepted by the town for that purpose; “that no declaration is made concerning subsection of paragraph two of the vote of the petitioner of March 25, 1947, to wit: ‘to establish and maintain a public general hospital — for either acute or nonacute cases etc.’ in that the present situation does not render it expedient to do so”; that the will manifested a general charitable intent “to create a fund to be used solely or as part of other funds to furnish hospital service in the town of Brookline of a type usually extended to the public by a general hospital, its application however cy pres to be subject to further direction ... of a court of equity”; and that the residuary bequest in question is payable to the town and is to be held by it in accordance with the charitable uses and purposes set forth in the will. Appeals from this decree by the executor under the wills of the testator’s widow and two sisters, and by Edwin J. Pratt, bring the case here.
At the outset it is necessary to decide whether there has been an acceptance of the legacy by the town. In deciding that question it is also necessary to determine what obligations would be incurred by the town in accepting the legacy. By the vote of March 25, 1947, the town’s acceptance of the legacy was conditioned on an adjudication by a court either that it was under no obligation to establish and maintain a public general hospital until it deemed it expedient to do so, or that it was not required to make up any deficiency in funds necessary for the establishment and maintenance of such a hospital, beyond the amount received from the bequest in question and from others which
We are of opinion that these conditions could not properly be imposed. The fund in question, as the parties concede, is far from adequate to carry out the purposes of the testator. The testator could not reasonably have supposed that the fund would be adequate within any period that he could foresee and must have contemplated that contributions by the town or others would be necessary. His use of the words “fund or part of a fund” in the bequest furnishes support for this conclusion. It is fair to assume, therefore, that he realized that a considerable time might elapse before the hospital was established. But because the testator may have contemplated some delay in the establishment of the hospital, it does not follow, as the decree provides and as the town and Attorney General contend, that the town upon accepting the legacy would be under no obligation to establish and maintain a public general hospital until it should determine it expedient to do so. Under such a construction the town would be under no obligation to build the hospital even if it had sufficient funds to do so. The standard is expediency, and what is expedient is to be determined by the town. Moreover, even if the town would be under an obligation to establish a hospital when it had sufficient funds, there is no assurance that this would occur within a reasonable time, and it might never happen. The qualifying words in the decree, “subject however ... to the direction ... of a court of equity,” do not save the condition. Obviously supervision by a court of equity becomes virtually meaningless if full discretion with respect to the establishment of the hospital is vested in the town. We are of opinion that the testator did not intend to confer such discretion on the town.
The validity of the alternative condition imposed by the
Since it is not possible to carry out literally the terms of the gift, it remains to consider whether the fund can be administered under the doctrine of cy pres. The governing principles of this doctrine have been frequently set forth in our decisions. See Sanderson v. White, 18 Pick. 328, 333; American Academy of Arts & Sciences v. Harvard College, 12 Gray, 582; Jackson v. Phillips, 14 Allen, 539, 580; Attorney General v. Briggs, 164 Mass. 561, 568-569; Teele v. Bishop of Derry, 168 Mass. 341, 343; Bowden v. Brown, 200 Mass. 269; Bragg v. Litchfield, 212 Mass. 148, 150-151; Judkins v. Hyannis Public Library Association, 302 Mass. 425, 427; Holmes v. Welch, 314 Mass. 106, 109-110; Milton v. Attorney General, 314 Mass. 234, 238-239; Trustees of Putnam Free School v. Attorney General, 320 Mass. 94, 98-99. In general it may be said that the applicability of the doctrine depends on the presence of a general charitable intent as distinguished from an intent to devote the property to a specific charitable purpose. It is easier to state the doctrine than to apply it, for generally, as in the case at bar, the question becomes one of construction — to ascertain the intention of the testator. We are of opinion that the testator had a general charitable intent with respect to the bequest in question. After providing for his widow and sisters, the testator left the entire residue of his estate to various charities. See Norris v. Loomis, 215 Mass. 344, 346. There
The decree of the court below is reversed, and the case is remanded to the Probate Court for the framing and settling of a scheme, either with or without the aid of a master, for the application of the fund cy pres. Costs and expenses of appeal are to be in the discretion of the Probate Court.
So ordered.
The following were named as respondents: the trustees named in the will, the executor under the wills of the widow (Mabel "W. Train) and two sisters (Sarah B. and Minna Train) of the testator, the residuary legatees named in their wills (The First Church of Christ, Scientist, in Boston, and Edwin J. Pratt), and the Attorney General.
The town does not contend that the third condition, namely, “that the bequest may be administered by the town under a cy pres scheme approved by the court and acceptable to the town,” was proper.