Cary Library v. Bliss

Decision Date01 May 1890
Citation151 Mass. 364,25 N.E. 92
PartiesCARY LIBRARY v. BLISS et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Robinson & Blaney, for petitioner.

Wm Gaston, (F.E. Snow, of counsel,) for respondents.

OPINION

KNOWLTON J.

The foundation of the Cary Library in Lexington was a gift of $1,000, made by Maria Cary in accordance with the terms of her letter of December 10, 1867. Upon compliance by the town with the condition named in the letter, her gift was to go to the inhabitants of the town to be held by a board of trustees consisting of the selectmen and school committee of the town for the time being, and the settled ministers of the place who were to invest it, and expend the accruing interest in their best discretion for such books as they should deem suitable for the library, and were to have the general supervision of the library, and to make such rules and regulations for the management of it as they should consider most conducive to the public interest, such rules and regulations to be submitted to the town for approval. Her scheme contemplated the establishment of a public library for the benefit of all the inhabitants of Lexington supported in part by the income of a fund furnished by her, and in part by moneys supplied by the town. It is perhaps not of much consequence in the consideration of this case, or in the practical management of the trust, whether the legal title to the fund, or to the library itself, was in the trustees or in the town. In either case the trustees had the management and control of the fund and of the library. They had not a mere naked power, but a power coupled with a trust. Drury v. Natick, 10 Allen, 169. We are of the opinion that they had the legal title to the fund contributed by Mrs. Cary, and that the interest of the inhabitants was merely beneficiary. The considerations which induced the court to make a similar decision as to the legacy referred to in Attorney General v. Parker, 126 Mass. 216, apply equally to this case. There the legacy was to the town "for the benefit of all the youth of the town." It was said in the opinion that the powers given to the trustees were inconsistent with the idea that the town was to be the owner of the legal title to the money. It is true in this case also that the rights and duties of the trustees in the management and disposition of the fund show that they have the legal title. The principal reason for holding in Drury v. Natick, ubi supra, that the town took the fee in the property devised, is wanting in the case at bar. See, also, Hadley v. Hopkins Academy, 14 Pick. 262. It seems to have been intended that the legal title to the library itself should be in the town. The letter required the town, as a condition precedent to receiving the gift, to "vote to establish a free public library," and to provide a sum of money towards the establishment and support of it. It was nowhere said that the title to the money supplied by the town, or to the books procured with it, should pass to the trustees, but it was rather implied that the library should be the property of the inhabitants, although under a trust that it should be supervised and managed by the trustees.

By another communication, on April 6, 1870, Mrs. Cary made another gift of $6,000, on precisely the same terms as the first, except that the trustees were directed to expend $1,000 of it in appropriately fitting up and furnishing the library rooms. On her death, $5,000 more passed by her will to the Cary Library without a particular designation of the trust. It may be doubtful, and it is immaterial, whether that sum went to the trustees as holders of the legal estate, or to the town. At all events it was to be held solely for the support and maintenance of the library, and the proceeds of it were to be used and expended under the supervision of the same trustees. That part of the donor's scheme which relates to the management and control of the fund and of the library cannot be disregarded as unimportant. It prescribed the method of administering the charity which she thought best adapted to the accomplishment of her purpose. She chose to give her money to be used in that way. She did not authorize the use of it in any other way, unless for some reason it should become impracticable to pursue the course which she prescribed. It is fair to presume that, before founding this charity, she carefully considered the subject of its administration, and thought it wise to select for her board of trustees those public officers who have in their special charge the business interests of the town, and those whose duty it is to superintend the education of children, together with such reverend gentlemen as regularly minister in the churches, and are expected earnestly to desire the moral and religious welfare of all the people. This part of Mrs. Cary's proposal was carefully regarded by the town in all its proceedings, and was treated as an important element in the agreement which resulted from the acceptance of her offer. The statute of 1888, c. 342, by which the plaintiff was incorporated, and under which it claims title, purports to authorize the town to vote to transfer to the plaintiff all the funds and property held by the town for the purposes of a public library, or for the Cary Library then existing, and also the books, pamphlets, and other property constituting the Cary Library, and to vote to assent to a taking by the plaintiff of all the funds and property held by the trustees of the Cary Library under the terms of the gifts and bequests of Maria Cary. The town voted to make the transfer, and to assent to the taking, and the plaintiff filed a statement of a taking, in accordance with the provisions of the statute. The principal question now before is whether by these proceedings the plaintiff acquired a valid title. The statute to which we have referred undertakes to materially change the execution of the trust. It allows the town by a single act to divest itself of all property in the library, and of all connection with it, and of all right to have reports as to its condition, or the investment of its funds. A transfer and taking, under the statute, place the library and the funds given by Maria Cary and acquired from other sources in the hands of a corporation, which, besides the school committee and the selectmen of the town for the time being, is to consist of not less than 30 nor more than 50 members, of whom 9 are named in the act, and the others are to be chosen by these. It vests the management and control of the property, subject to the by-laws of the corporation, in a board of nine trustees to be elected by the corporation from its members. The settled ministers of the town are not made corporators. While the selectmen and school committee are ex officio members of the corporation, they cannot be upon the board of trustees unless they chance to be elected to that place by their associates. No one of the board of trustees created by the acceptance of Mrs. Cary's gift is left upon the managing board, under this statute. Without the consent of the donor, such a change in the execution of a charitable trust has never been authorized by the courts in England, when it was practicable to execute the trust according to the original intention. In Attorney General v. Boultbee, 2 Ves.Jr. 380, 387, it is said by the master of the rolls that "the court will not decree excution of a trust in a manner different from that intended, except so far as they see that the intention cannot be executed literally." It is only when it becomes impracticable to administer a charitable trust according to its terms that a court of chancery will apply the doctrine of cy pres. Attorney General v. Hartley, 2 Jac. & W. 382; Attorney General v. Earl of Mansfield, 2 Russ. 520; Attorney General v. Whitchurch, 3 Ves. 141; Attorney General v. Whiteley, 11 Ves. 241; Attorney General v. Dedham School, 23 Beav. 350, 357. This subject has repeatedly been considered by this court. In Winthrop v. Attorney General, 128 Mass. 258, the trustees under a deed of trust, who held a large sum to be used in founding and maintaining a museum of American archaeology and ethnology in connection with Harvard University, sought to make an agreement whereby the fund would be placed under the control and management of the president and fellows of Harvard College to be held as a part of their general funds, and a part of the income bearing the proportion to the whole which this part of the fund bore to the whole fund to be paid over to the trustees. The court said that such a departure from the directions of the donor could be justified, if at all, only upon proof of the most pressing exigency, and that the court cannot alter the scheme of a donor, "either as to the objects of the charity or the agents by which it is to be administered, unless it appears to be impossible to carry out the scheme according to its terms." A similar decision was made in Harvard College v. Society, 3 Gray, 280. In Fellows v. Miner, 119 Mass. 541, a bequest was made by a testator residing in this state to the town of Kinderhook in New York, in trust for the charitable uses declared in the will. Under the laws of the state of New York a town could not take such a charitable bequest without express authority from the legislature, and, an act having been passed giving the town authority to receive the bequest, it was held that the money could not be paid over, because the act authorized the appointment of the persons who were to collect and distribute the income of the fund to be made by the supervisors and justices of the peace of the town, while the will directed that they should be appointed by the town itself. See, also, Baker v. Smith, 13 Metc. 34, 41...

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