Bullard v. Town of Shirley

• Decision Date: 19 May 1891
• Citation: 153 Mass. 559,27 N.E. 766
• Parties: BULLARD et al. v. TOWN OF SHIRLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 559

27 N.E. 766

BULLARD et al. v. TOWN OF SHIRLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1891

Report from supreme judicial court, Suffolk county; OLIVER W HOLMES, JR., Judge.

HEADNOTES

Charities 20(5)

75 ----

75I Creation, Existence and Validity

75k20 Capacity of Trustees or Donees to Take

75k20(5) Municipal Bodies or Corporations.

Bequest to town on condition that it permanently support Unitarian clergyman, income to be used for clergyman's salary failing which, bequest should revert to testator's heirs held invalid as town could not lawfully support clergyman.

COUNSEL

J.W Willard, G.P. Langer, and G.L. Clark, for heirs at law.

Warren H. Atwood, for town of Shirley.

S.K. Hamilton, for first parish in Shirley.

OPINION

HOLMES, J.

This is a bill for instructions, brought by the trustees under the will of Mary D. Whitney, touching the disposition of the fund given by the second clause of the will. That clause is as follows:

"Secondly. I give and bequeath to my friend, Rev'd Seth Chandler, of Shirley, the sum of five thousand dollars, ($5,000,) which after his death shall revert to the town aforenamed strictly on this condition, namely, that said town shall support fairly and permanently a Unitarian clergyman, in which case all interest accruing on above sum shall be used to aid in payment of his salary, failing which it shall revert to my heirs at law." Seth Chandler died after the testatrix. It is admitted by all parties that the town cannot lawfully support the clergyman as required, and the question is whether the gift fails on that account.

We are of opinion that support by the town, and not merely in the town, is of the essence of the condition. The words require it. They are explicit "that said town shall support." Any latitude of interpretation based on conjectures as to what the testatrix would have done had she known of the difficulty raised by her language, is excluded by the introductory and governing phrase, "strictly on this condition." We must take her condition strictly as she wrote it, and, taking it so, it cannot be performed. Again, we are of opinion that, although the act of supporting a minister need not begin until after the receipt of the legacy, a capacity to do the act is a condition attached to the gift itself. The case is not like one where it is attempted to impose an illegal restriction on the use of the thing granted. Here that which by our construction is contemplated by the testatrix as the consideration and inducement of her gift fails altogether. It is true that the testatrix may be assumed to have acted from religious or charitable motives, but she says very plainly that the motive is not sufficient unless the terms of her bargain are complied with. The question is one of construction,...