Minot v. Baker

• Citation: 17 N.E. 839,147 Mass. 348
• Parties: MINOT v. BAKER et al.
• Decision Date: 10 July 1888
• Court: United States State Supreme Judicial Court of Massachusetts

147 Mass. 348

17 N.E. 839

MINOT v. BAKER et al.

Supreme Judicial Court of Massachusetts, Norfolk.

July 10, 1888

COUNSEL

Stephen H. Phillips, for the Commonwealth.

I am requested by the attorney general to confine my argument in his name chiefly to suggesting, that indeterminate charities can be maintained by the peculiar agencies of a court of chancery through the intervention of a trustee. This court need not be reminded that recently, and in this very controversy, it has emphasized the sufficiency of such agencies, and has indicated the practicableness of giving force and direction to manifestations of charitable purposes exceptionally vague. White v. Ditson, 140 Mass. 353 4 N.E. 606. See, also, Loring v. Marsh, 2 Cliff. 469, 6 Wall. 337; Marsh v. Renton, 99 Mass. 132; Bliss v. Society, 2 Allen, 334; Washburn v Sewall, 9 Metc. 280; Tud.Char. Trusts, 212. By the residuary clause of the will, a trust for charitable uses is created, which, although indeterminate, a court of chancery is competent to administer. Saltonstall v. Sanders, 11 Allen, 453; Tud.Char. Trusts, 212; Const.Mass. c. 6, art 6; Jackson v. Phillips, 14 Allen, 567. By the law of England, as set forth in Lord HARDWICKE'S decisions there is no doubt that "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." Attorney General v. Gleg, 1 Atk. 356; Attorney General v. Pearce, 2 Atk. 87; Cook v. Duckenfield, Id. 567; Jemmit v. Verril, Amb. 585; Attorney General v. Johnson, Id. 190; Attorney General v. Bucknall, 2 Atk. 328. And this is the general doctrine of a long line of English cases. The same doctrines have been sustained in the subsequent cases of Attorney General v. Whitchurch, 3 Ves. 144; Bishop v. Adams, 7 Ves. 324; Howse v. Chapman, 4 Ves. 542; Paice v. Archbishop of Canterbury, 14 Ves. 364; Powell v. Attorney General, 3 Mer. 48; Curtis v. Hutton, 14 Ves. 539; Attorney General v. Price, 17 Ves. 371; Isaac v. De Friez, Id. 373, note; Waldo v. Caley, 16 Ves. 206; Attorney General v. London, 3 Brown, Ch. 171, 1 Ves. Jr. 243; Mills v. Farmer, 19 Ves. 483; Legge v. Asgill, Turn. & R. 265, note; Moggridge v. Thackwell, 7 Ves. 36; Attorney General v. Lonsdale, 1 Sim. 105; Mills v. Farmer, 1 Mer. 94; Sorresby v. Hollins, 9 Mod. 221; Horde v. Earl of Suffolk, 2 Mylne & K. 59; Baker v. Sutton, 1 Keen, 224; Attorney General v. Comber, 2 Sim. & S. 93; Mitford v. Reynolds, 1 Phil.Ch. 192; Nash v. Morley, 5 Beav. 177; Attorney General v. Gladstone, 13 Sim. 7; Edwards v. Hall, 6 De Gex, M. & G. 79; Attorney General v. Stepney, 10 Ves. 22; College v. Attorney General, 6 H.L.Cas. 205; Kirkbank v. Hudson, 7 Price, 213; Hill v. Burns, 2 Wils. & S. 80; Crichton v. Grierson, 3 Bligh, (N.S.) 434; Mayor v. Ryder, 5 De Gex, M. & G. 353; Powerscourt v. Powerscourt, 1 Moll. 616; Whicker v. Hume, 14 Beav. 511; Philpott v. Hospital, 6 H.L.Cas. 338. No American lawyer can thoroughly investigate the law of charities without observing the Smithsonian Case, cited in Whicker v. Hume, 7 H.L.Cas. 124. The general English rule is that a "bequest is not void if by law it can possibly be made good." Sorresby v. Hollins, 9 Mod. 221; Curtis v. Hutton, 14 Ves. 539; Mayor v. Ryder, 5 De Gex, M. & G. 353; Edwards v. Hall, 11 Hare, 12; Whicker v. Hume, 7 H.L.Cas. 154. There is some criticism in English cases as to the use of the word "benevolent," as distinguished from "charitable." Williams v. Kershaw, cited in 5 Clark & F. 111; James v Allern, 3 Mer. 17; Ommanney v. Butcher, Turn. & R. 260; Morice v. Bishop, 10 Ves. 521; Nash v. Morley, 5 Beav. 183; Ellis v. Selby, 1 Mylne & C. 286; Kendall v. Granger, 5 Beav. 300. But none of these difficulties can be suggested where the word "charitable" is also employed, for courts will save the charity if possible; and, where the charitable intent clearly appears, if the terms are broad enough to include a lawful and unlawful use, the courts will hold it valid, and restrict it to a lawful use. Sorresby v. Hollins, supra; Attorney General v. Whitchurch, 3 Ves. 144; Philpott v. Hospital, 6 H.L.Cas. 338; Dent v. Allcroft, 30 Beav. 340. The English law of charities, therefore, is in force as part of an inherent equity jurisdiction. It is older and much more comprehensive than the redoubtable statute of 43 Eliz. c. 4, and obtains whenever the common law prevails, except in five or six states, in all of which it is admitted that, but for special legislation, it would now be recognized. Association v. Hart, 4 Wheat. 1. In this case, held in Wheeler v. Smith, 9 How. 55, to have been anomalous, decided under peculiar Virginia law, Chief Justice MARSHALL remarks: "That such a legacy would be sustained in England is admitted." See, also, Inglis v. Trustees, 3 Pet. 129; Shotwell v. Mott, 2 Sandf.Ch. 46; Williams v. Williams, 8 N.Y. 525; Wright v. Church, 1 Hoff.Ch. 202; Rose Will Case, 4 Abb.Dec. 108; Power v. Cassidy, 54 How.Pr. 9; Heiss v. Murphey, 40 Wis. 293; Ruth v. Oberbrunner, Id. 238, 257; Gallego's Ex'rs v. Attorney General, 3 Leigh, 450; Com. v. Levy, 23 Grat. 21; Dashiell v. Attorney General, 5 Har. & J. 392, 6 Har. & J. 1; Society v. Pendleton, 7 W.Va. 87; Carpenter v. Miller, 3 W.Va. 174; Venable v. Coffman, 2 W.Va. 310; Gass v. Wilhite, 2 Dana, 170; Church v. Church, 18 B.Mon. 635. To recur to Massachusetts law, adopted from England in all its purity and vigor, introduced into our constitutional design, never modified, qualified, or limited in any way, illustrated by a long series of learned and interesting decisions, none of which are inconsistent with Judge GRAY'S proposition in Saltonstall v. Sanders, but many of which recognize it. Odell v. Odell, 10 Allen, 6; Saltonstall v. Sanders, 11 Allen, 446; Jackson v. Phillips, 14 Allen, 550. "There is a wide distinction between a gift to charity and a gift to a trustee to be by him applied to charity. In the first case the court has only to give the fund to charitable institutions, which is a ministerial and prerogative act; in the second case the court has jurisdiction over the trustee, as it has over all trustees, to see that he does not commit a breach of his trust, or apply the funds in bad faith, or to purposes that are not charitable." 2 Perry, Trusts, § 719; Estate of Hinckley, 58 Cal. 457; Saltonstall v. Sanders, ut supra; Mitford v. Reynolds, 1 Phil.Ch. 185; Nightingale v. Goulburn, 5 Hare, 484; Going v. Emery, 16 Pick. 107; Wells v. Doane, 3 Gray, 201; Paschal v. Acklin, 27 Tex. 197; Derby v. Derby, 4 R.I. 414; Fontain v. Ravenel, 17 How. 392; Lorings v. Marsh, 6 Wall. 337; Witman v. Lex, 17 Serg. & R. 89; Griffin v. Graham, 1 Hawks, 96; Miller v. Atkinson, 63 N.C. 537; Attorney General v. Jolly, 1 Rich.Eq. 99; 2 Perry, Trusts, § 731, and cases cited. Nothing in the legacy to Mrs. Gasset is inconsistent with the residuary clause, and no residuary interest accrues to the heirs by force thereof, or any part thereof. Ward v. Railway Co., 108 Mass. 332; Reed v. Reed, 114 Mass. 372; Montgomery v. Pickering, 116 Mass. 227; Newton v. Baker, 125 Mass. 30. The only question of law involved is whether an alleged adopted daughter, who came of age before the recent legislation, has any rights, as an omitted or forced heir, under Pub.St. c. 127, § 21, which no lawyer will assert for a moment. Dawes v. Boylston, 9 Mass. 352; Hutchins v. Bank, 12 Metc. 425; Pub.St. c. 135, § 3; 2 Perry, Trusts, § 731. The intention of a testator is to be gathered from a whole will. Hawley v. Northampton, 8 Mass. 3; Gifford v. Choate, 100 Mass. 343; Barrett v. Marsh, 126 Mass. 215. A clearly indicated charity, especially in a residuary clause, cannot be defeated by the addition of equivocal clauses, or words of uncertain meaning. Williams v. Bradley, 3 Allen, 270. Finally, all wills are to be construed to avoid intestacy, if possible, (Paice v. Archbishop, 14 Ves. 371;) especially where a clear intent appears in the residuary clause to divest all interest of the heirs, ( Moggridge v. Thackwell, 7 Ves. 36;) and, where a charitable trust seeks enforcement, the courts will never assume the discretion of a particular trustee to be of the essence of the gift, (Inglis v. Trustees, 3 Pet. 99; Walsh v. Gladstone, 1 Phil.Ch. 290; Hayter v. Trego, 5 Russ. 113.) The great question is, "Has a charitable use been established by any authoritative dedication?" If it has once vested, all unlawful conditions, limitations, trusts, or restraints in relation thereto, not of the essence of the gift, fall away, and become void, leaving the estate to be managed in a legal manner for the purposes of the charity. Williams v. Williams, 8 N.Y. 538; Philadelphia v. Girard, 45 Pa.St. 1; Nourse v. Merriam, 8 Cush. 11; Hawley v. James, 5 Paige, 458. If this trust be too imperfect for execution by ordinary proceedings in chancery, it is a universal charity, more comprehensive than a general charity,--certainly much more than a specific charity,--whose administration pertains to the parens patrioe, the paternal authority of the state, which, perhaps, in this commonwealth, is wielded by the legislature, (Sohier v. Hospital, 3 Cush. 497,) although such a function, being part of the prerogative of grace, may pertain to the governor and council. Under a monarchy it would have been an attribute of kingly power. At any rate it does not concern the heirs. Girard v. Philadelphia, 7 Wall. 14.

E.H. Bennett, for Mary Percival Townsend and Fanny A. Percival Safford.

The clause in the will is: "All the rest and residue of my property and estate, real, personal, and mixed, of which I shall die seized, or...