in re Bartlett

Citation163 Mass. 509,40 N.E. 899
PartiesIn re BARTLETT et al.
Decision Date24 May 1895
CourtUnited States State Supreme Judicial Court of Massachusetts
COUNSEL

Mr York, for town of Rockport and trustees of Rockport Library.

G Cunningham, for Female Charitable Association of Gloucester.

Chas A. Russell, Atty. Gen., for city of Gloucester.

A Hemenway, for F.H. Sawyer, Samuel J. Sawyer, Agnes H. Coffin, and Sarah H. Powers.

Nichols & Cobb, for Temporary Home for Working Women.

Mr. Flaherty, for Chas. A. Sawyer, L.M. Sawyer, Ex'x, B.F. Turpin, and L.M. Sawyer.

Hurlburt & McCarthy, for First Parish Unitarian Society, John E. Thurston, William H. Jordan, William A. King, Isaac A. Smith, and James Mansfield.

W.P. Fowler, for Benevolent Fraternity of Churches.

W.G. Russell, for the Boston Art Club, King's Chapel Emp. Society, Massachusetts Charitable Eye and Ear Infirmary, Massachusetts Society for Prevention of Cruelty to Animals, Boston Humane Education Society, Homeopathic Medical Dispensary, the Society for Relief of Aged and Destitute Clergymen, and Parent Band of Mercy of America, and certain other respondents.

S. Lincoln, for Gloucester Lyceum, Sawyer Free Library & Trustees.

The City Solicitor, for City of Boston.

OPINION

FIELD C.J.

It is convenient to consider the questions in the order in which they arise in the will itself, using for convenience the numbering of the paragraphs made by the petitioners:

In the first paragraph the testator gives the burial lot to his executors and trustees, "who will also have charge of the Homestead Fund, the income of which in part, shall be used to keep the lot and the monument always in good order," etc. This homestead fund appears, by the fourth paragraph, to be a sum of $12,000, given to the executors and trustees "to be securely invested in first mortgages on Real Estate at about fifty per cent of a fair valuation, Government, State, City or Town bonds, or any other substantial securities, undoubted, and the income thereof only to be paid over to Captain Charles Abram Sawyer, my nephew, his heirs and assigns, semi-annually January and July if practicable. It being intended that the income of this legacy shall be exclusively used for the purpose of keeping the old Homestead and the other buildings always in good repair and the grounds in good order and condition, as well as the Cemetery Lot as before mentioned. The buildings to be kept constantly insured."

By the fifth paragraph the Brookbank estate is given to the executors and trustees in trust, "to be conveyed in fee simple to my nephew Capt. Charles A. Sawyer of Gloucester, and his descendants, together with the income of 'Homestead Fund,' which is to be used exclusively for the purpose as before stated, it being my earnest desire and request that the Old Sawyer Homestead, which has been in our family, one hundred and seventy-five years with all the land now belonging to it, in one lot, shall be kept in good repair as before requested and thus be handed down from generation to generation unincumbered by lien or mortgage as a precious heirloom of the Sawyer Family." The Brookbank estate, which we understand to be the homestead estate, has been conveyed by said executors and trustees to Charles A. Sawyer, in his lifetime. He has since deceased, and the executrix of his will is a party to these proceedings. It is obvious that this trust of $12,000, so far as it is intended for the purpose of keeping the old homestead always in good repair, cannot be carried into effect. It is an attempt to create a private, perpetual trust. The homestead estate, having been conveyed to Charles A. Sawyer, became absolutely his property; and the $12,000, the income of which was to be paid to him, his heirs and assigns, also, we think, became absolutely his property, so far as it is a sum intended to be used in keeping in good repair the old homestead. Smith v. Harrington, 4 Allen, 566; Harlow v. Cowdrey, 109 Mass. 183; Bent v. Cullen, 6 Ch.App. 235. The only question that requires consideration is whether so much of this $12,000 as is necessary to keep the burial lot and the monument always in good order can be separated from the remainder, and sustained as a perpetual trust. We think that a trust to keep the burial lot and the monument of the testator always in good order is, under our statutes, a good perpetual trust, and that, as it is conceded that $500 is sufficient for the purpose, the executors should retain in their own hands $500, or deposit this sum with the treasurer of the town of Gloucester, the income of which should be used to keep the burial lot and monument always in good order. The remainder of this legacy of $12,000 should be paid to the executrix of the will of Charles A. Sawyer. Green v. Hogan, 153 Mass. 462, 27 N.E. 413; Sears v. Hardy, 120 Mass. 524.

Of the real estate given to the executors and trustees by the sixth paragraph, some is plainly intended to be cut up into "smaller lots, and sold for pleasant homes," and the large Stone wharf and the old Webber wharf seem to be intended to be sold or to be let to the persons who shall build on the lots first mentioned. As to this there is no charitable trust; it is merely a trust for sale of real estate. The Chapel lot is a vacant lot in that part of the city of Gloucester called "Cove Village." The language of the will is: "The Chapel Lot, having a frontage of about seventy feet on Western Avenue is to be retained and used when the growth of the village population, will justify the building of a larger and more pretentious Village Chapel."

The nineteenth paragraph of the will is as follows:

"I give and bequeath to my Executors and Trustees, the sum of Four Thousand Dollars in trust, to be safely invested as aforesaid and the income be allowed to accumulate until such time, when it would seem to be advisable to erect a more commodious Village Chapel in Fresh Water Cove, a portion of the income may be used in purchasing Sabbath School Books; to keep the building and the grounds in good order, and for its general support."

We understand that Fresh Water Cove is the cove in which is situated Cove village, in which is the chapel lot, and that it appears that in this village, although not on the chapel lot, there was at the date of the will, and still is, a schoolhouse sometimes used by the inhabitants of the village for religious meetings and a Sunday school. We think it evident that the testator intended to give this chapel lot and this $4,000 for the purpose, ultimately, of erecting upon the chapel lot a chapel to be used by the inhabitants of Cove village for religious meetings and a Sunday school. This, we think, is a good public charitable gift. McAlister v. Burgess, 161 Mass. 269, 37 N.E. 173; Fairbanks v. Lamson, 99 Mass. 533; Tainter v. Clark, 5 Allen, 66.

The seventh article of the will is as follows:

"None of the numerous Wood Lots now owned by me, or hereafter purchased, are to be sold, or in any way disposed of, but to be retained by my Executors and Trustees for the protection and beauty of the Cove Village now so called but sometime in the near future, to be laid out handsomely with driveways and pleasant rural walks, and then dedicated in the name of 'Ravenswood Park' and then I hope the village will also be called 'Ravenswood.' "

The fifteenth paragraph is as follows:

"I give and bequeath to my executors and trustees the survivors and survivor of them and their successors in the office the sum of Sixty Thousand Dollars in trust, to be safely invested as heretofore directed, and the income only to be used in developing and beautifying the present 'Ravenswood Park' grounds by clearing away the dead wood and other incumbrances, and for the purchasing of other contiguous wood-lands, that may be essential in perfecting its present form and completion."

These wood lots are all within the limits of the city of Gloucester. A gift of real and personal property for a public park is, we think, a good public charitable gift. Attorney General v. Abbott, 154 Mass. 323, 28 N.E. 346; Pub.St. c. 116, §§ 35, 36; St.1882, c. 154.

The first clause of the thirteenth paragraph is as follows:

I give and bequeath to my Executors and Trustees, the survivors and survivor of them and their successors in the office, to be held by them in trust, the sum of One Hundred and twenty Thousand Dollars including the note of Twenty Thousand Dollars now held by them on demand, to be safely invested, as heretofore directed, and the income only of said sum, to be paid semi-annually to the Board of Trustees of the Gloucester Lyceum, and Sawyer Free Library as part of the endowment fund for its support."

It appears that on July 1, 1884, "said testator executed and delivered to the treasurer of the Gloucester Lyceum & Sawyer Free Library, a corporation, a promissory note signed by the said testator, payable on demand to the order of the board of trustees of said corporation and their successors in office, for $20,000, with interest at the rate of 6 per cent per annum, payable semi-annually, and being the same note referred to in paragraph 13 of said will. The interest was regularly paid by the testator on said note down to the time of his death. Said corporation claims said note was delivered by the testator as a gift inter vivos. There never was any consideration for said note, and the same is still held by said treasurer, who, in behalf of said board of trustees and said corporation, claims interest thereon according to the terms of said note." The note, being a note signed by the testator, could not be the subject of a gift. Parish v. Stone, 14 Pick. 198. It was simply a written promise of the testator, without consideration, and could not be enforced against his estate. The language of...

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3 cases
  • Heinlein v. Elyria Sav. & Trust Co.
    • United States
    • United States Court of Appeals (Ohio)
    • February 9, 1945
    ...50 R.I. 385, 148 A. 189, 74 A.L.R. 664; Richardson v. Essex Institute, 208 Mass. 311, 94 N.E. 262,21 Ann.Cas. 1158;In re Bartlett, 163 Mass. 509, 40 N.E. 899;Nocl v. Olds, 78 U.S.App.D.C. 155, 138 F.2d 581;Jones v. Habersham et al., Ex'rs, 107 U.S. 174, 2 S.Ct. 336, 27 L.Ed. 401;Noice v. Sc......
  • Heinlein v. Elyria Sav. & Trust Co.
    • United States
    • United States Court of Appeals (Ohio)
    • February 9, 1945
    ......229; Allen, Adm'r v. City of Bellefontaine, 47 Ohio App. 359, 191 N.E. 896;. Rhode Island Hospital Trust Co. v. Williams, 50 R.I. 385, 148 A. 189, 74 A.L.R. 664; Richardson v. [75. Ohio App. 368] Essex Institute, 208 Mass. 311, 94. N.E. 262, 21 Ann.Cas. 1158; In re Bartlett, 163. Mass. 509, 40 ......
  • In re Bartlett
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 24, 1895

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