Wellesley College v. Attorney General

• Citation: 49 N.E.2d 220,313 Mass. 722
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 24 May 1943
• Parties: WELLESLEY COLLEGE v. ATTORNEY GENERAL & another.

313 Mass. 722

49 N.E.2d 220

WELLESLEY COLLEGE v. ATTORNEY GENERAL & another.

Supreme Judicial Court of Massachusetts, Norfolk.

May 24, 1943

April 5, 1943.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & RONAN, JJ.

Probate Court Jurisdiction, Equity proceeding. Equity Jurisdiction Instructions, Interpretation of written instrument. Trust Taxation. Corporation, Charitable. Taxation, Meal tax. College. Wellesley College. Words, "Written instrument." A Probate Court has no jurisdiction in equity, either under Section 6 of G.

L. (Ter. Ed.) c. 215, as amended, or under Section 6B, inserted in c. 215 by St. 1935, c. 247, to instruct an incorporated college, holding property in trust for the purposes for which it was organized, with reference to its liability and duties under G. L. (Ter. Ed.) c. 64B, inserted by St. 1941, c. 729, Section 17, imposing the "meal tax," or to render a declaratory judgment as to such subject matter.

A statute incorporating a charitable corporation is not a "written instrument" within the provision of G. L. (Ter. Ed.) c. 215, Section 6, as amended, giving the Probate Courts jurisdiction in equity of matters relative to "trusts created by will or other written instrument."

Determination of the question, whether a trustee is subject to G. L. (Ter.

Ed.) c. 64B, inserted by St. 1941, c. 729, Section 17, imposing the "meal tax," is not a proper object of a bill in equity by the trustee for instructions.

It was stated that Wellesley College, in the circumstances in which it served meals to its students and faculty and to certain groups of outsiders, was not subject to G. L. (Ter. Ed.) c. 64B, inserted by St.

1941, c. 729, Section 17, imposing the "meal tax."

PETITION, filed in the Probate Court for the county of Norfolk on December 31, 1941.

A demurrer was overruled by Reynolds, J., who then heard the case on its merits and reserved and reported the evidence and all questions of law under G. L. (Ter. Ed.) c. 215, Section 13.

H. S. Davis, for the petitioner. M. A. Westgate, Assistant Attorney General, for the respondents.

RONAN, J. This is a petition in equity filed in the Probate Court of Norfolk County by Wellesley College, which was incorporated by St 1870, c. 85, for the purpose of establishing and maintaining "an institution for the education of youth" and which, pursuant to the said statute and subsequent statutes in amendment thereof, has maintained an institution for the higher education of young women. The petitioner seeks instructions as to whether or not it is subject to the provisions of St. 1941, c. 729, Section 17, inserted in G. L. (Ter. Ed.) as c. 64B, which by Section 2 imposes a tax on meals amounting to $1 or more that are "furnished at any restaurant, eating house, hotel, drug store, club, resort or other place at which meals or food are regularly served to the public." The respondents are the Attorney General and the commissioner of corporations and taxation. The former filed an answer to the effect that he submitted his rights in the matter to the determination of the court. The commissioner filed a demurrer and an answer. The demurrer was overruled, and the petition was then heard on the merits. The judge, without entering a decree, reported and reserved the suit in accordance with G. L. (Ter. Ed.) c. 215, Section 13, for the determination of this court.

The college is a charitable corporation and all its property is held in trust in furtherance of the purpose for which it was organized. Harvard College v. Attorney General, 228 Mass. 396 . Amory v. Amherst College, 229 Mass. 374 . Massachusetts Institute of Technology v. Attorney General, 235 Mass. 288 . Trustees of Andover Seminary v. Visitors, 253 Mass. 256. Judkins v. Hyannis Public Library Association, 302 Mass. 425 . It has received large donations by will and otherwise. The donors in many cases have directed that the principal be invested and the income used for the general purposes of the college, while others have limited the application of the income to some particular purpose within the general objects of the college. Some gifts have been made for the benefit of the college generally and without restrictions or conditions as to the expenditure of the principal or income. Whether the gifts were made for some specified purpose of the college or unconditionally for any general purpose of the college, the petitioner holds the property in trust to carry out the terms and conditions under which it was given and accepted. Where no conditions were imposed by the donor, then it holds and must apply the property in carrying out the charitable object for which it was incorporated. Hubbard v. Worcester Art Museum, 194 Mass. 280 . Read v. Willard Hospital, 215 Mass. 132. St. Michael's Ukrainian Greek Catholic Church of Woonsocket v. St. Michael's Ukrainian Orthodox Church of Woonsocket, 288 Mass. 258 . Nothing in this case depends on whether the college holds the property conveyed to it as owner or as trustee under a testamentary trust, as in Animal Rescue League of Boston v. Assessors of Bourne, 310 Mass. 330 , where it became necessary for the appellant to prove it was the owner within G. L. (Ter. Ed.) c. 59, Section 5, Third, of the property taxed in order to show that it was entitled to an exemption.

All but fifty or sixty students live in the college dormitories. The resident students pay a fixed fee, which includes board, room and tuition. No part of this fee is allocated to any one of these three items. Board and rooms are included in the lump sum contracts made with the resident members of the faculty. Nonresident students may purchase lunch tickets and obtain luncheon in one of the dormitory dining rooms. The only person, other than students and members of the faculty, who may be served food in any of the dormitory dining rooms is one who has been invited by the head of the house, by a member of the faculty or by a resident student. Arrangements to care for such an invited guest must be made with the head of the dormitory and a slip is made out and paid for by the one who invited the guest. Over a million meals are served in the dormitory dining rooms during the year and very few include meals to guests. The college maintains a place known as the "Well" where sandwiches and carbonated beverages are sold almost entirely to students, to some particular guest of theirs and other people on the campus. An effort is made to confine that service to students. The charge for food and drink served there is comparatively small and is apparently much less than $1. Three apartment houses of the college are occupied by members of the faculty and their families. Persons living in these apartments have the privilege of using the dining room in the Horton House. One must be a member of the Horton Club to dine in the Horton House. There is an annual fee of $3 for membership in this club. Persons who lease apartments for the full year may sublet their apartments during the summer, and the college may sublet apartments for the summer where they have been leased only for the academic year. Those who occupy these apartments for the summer may use the dining room in the Horton House. The college charges them a fixed weekly rate for board. During the summer vacation, various outside groups hold conferences at the college. The association holding the meeting pays a fixed daily rate for meals, room and the use of lecture halls for each person attending the conference. No meals have been served at the college since January 1, 1942, the effective date of the meal tax statute, for which a charge of $1 or more has been made. This is a temporary arrangement adopted by the college pending a determination of the question of the application of the meal tax to it.

The first question presented is whether the Probate Court had jurisdiction to decide whether the college was subject to the tax. Probate Courts are not courts of general equity jurisdiction but have conferred upon them equity jurisdiction only over such cases and matters as have been named by statutes. Sullings v. Richmond, 5 Allen, 187. Abbott v. Gaskins, 181 Mass. 501 . Jones v. Jones, 297 Mass. 198 . Lord v. Cummings, 303 Mass. 457 . MacLennan v. MacLennan, 311 Mass. 709 . The petitioner, however, contends that the Probate Court has power to hear and determine the petition by virtue of G. L. (Ter. Ed.) c. 215, Section 6, as most recently amended by St. 1939, c. 194, Section 2, which, in so far as material, provides that "Probate courts shall have jurisdiction in equity, concurrent with the supreme judicial and superior courts, of all cases and matters relative . . . to trusts created by will or other written instrument." The petition, however, is not based upon any specific trust established by the will of some particular testator. The terms and provisions of no testamentary trust are set forth, and no issue is presented as to the powers and obligations of the college in reference to any such trust. Nothing whatever touching any testamentary trust is involved in the present proceeding. The contention of the petitioner is that it is seeking instructions as to its duties under the trust created by its charter, which was a written instrument. The incorporation of the college brought into being an entity that was eligible to receive and hold property in trust for the accomplishment of the objects for which it was formed. A trustee is one who holds property in trust. Am. Law Inst. Restatement: Trusts, Section 3 (3). The creator of a trust is ordinarily the person who conveys his property to another for the benefit of a third person, or to a charitable corporation, or who, without a conveyance, holds the property charged with a trust for the benefit of another by virtue of a...