Amory v. Trustees of Amherst Coll.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: 229 Mass. 374,118 N.E. 933
• Parties: AMORY et al. v. TRUSTEES OF AMHERST COLLEGE et al.
• Decision Date: 04 March 1918

229 Mass. 374
118 N.E. 933

AMORY et al.
v.
TRUSTEES OF AMHERST COLLEGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1918.

Case reserved from Supreme Judicial Court, Suffolk County.

Bill by Francis I. Amory and others, trustees, against the Trustees of Amherst College and others. On reservation for the full court. Bill dismissed.

Tyler, Corneau & Eames, Wm. [229 Mass. 377]E. Tucker, and Wm. C. Rice, all of Boston, for plaintiffs.

John E. Hannigan, of Boston, guardian ad litem.

Arthur H. Wellman and Chas. M. Rogerson, both of Boston, for Trustees of Amherst College.

CROSBY, J.

This is a bill in equity brought by the plaintiffs, who allege that they are the successors in title of the trustees of the residue of the real estate under the will of David Sears, to compel conveyance to them of an undivided half interest in each of two parcels of land in the city of Boston, alleged to be held by the defendants under a trust resulting in favor of David Sears (and the plaintiffs as his successors in title), by reason of the invalidity of certain provisions in the deeds conveying to the trustees of Amherst college the two parcels of land above referred to. The bill also prays for an accounting for one half of the rents received from one of the parcels; but no question is before the court on this prayer of the bill, as the order to the master by whom the case was heard limited the hearing to the questions of title.

The deed of the first parcel above referred to from David Sears to the Trustees of Amherst College, is dated July 1, 1844, and conveys what will hereinafter be called the Leverett Street property, together with a lease thereof given to one Luther for one hundred years which will expire in the year 1928. The habendum clause of the deed is as follows:

‘To have and to hold the same, to the said Trustees of Amherst College, and their successors forever, for the objects, nevertheless, and upon the conditions hereinafter written,-that is to say, to and for the following uses and purposes. In the first place the said Trustees of Amherst College, and their successors, shall collect and receiver the rents and profits of the above described estate, and shall annually during the continuance of the above mentioned lease to Philip Luther, and no longer, invest the same in the purchase of Books of General Literature, for the establishment, foundation, and increase of a Library appurtenant to this present endowment, and for the use and benefit of the students [229 Mass. 378]of Amherst College. And on the termination of said lease to Philip Luther, in the year of our Lord 1928, the said Trustees of Amherst College, and their successors, shall invest, and forever keep invested the rents and profits of said estate, in the manner and for the purposes hereinafter described, and declared, namely: In some funded, or bank, or insurance, or railroad stock, or in other corporate property, or public securities, or in mortgages, or in productive real estate, to increase and accumulate the permanent capital of a literary and benevolent fund, which the said David Sears does by these presents create, found and establish. And to give immediate activity to said fund, and in addition to the grant of the above described estate the said David Sears with these presents also gives and pays over to

[118 N.E. 935]

the said Trustees of Amherst College the sum of five thousand dollars, which they hereby acknowledge to have received, and to by the acceptance of these presents promise to invest as the commencement and foundation of said fund, subject to the conditions and limitations, and for the uses and objects in this deed recited and declared, and for the following uses, trusts and objects, namely. The said Trustees of Amherst College will immediately invest the said five thousand dollars in some of the above named securities, and the same with its income and accumulations again invest, and keep invested, so as to constitute and make together with the above described Leverett and Barton Street Estate a permanent fund under the above name of Literary and Benevolent Fund. And the annual income of said fund is to be invested and added to the principal annually, between the months of July and January, to form a new permanent capital of said fund, and when invested is not afterwards to be expended or used. But in any year before the annual income is so invested, the parties who have the right, may demand, and shall receive their part of said income to be expended in such objects as to them may be most desirable,-without appeal,-and in such years, that half only of said annual income, not demanded, shall be funded.

‘And it is hereby declared to be the intention of the Donor, that the said Trustees of Amherst College, and their successors shall be one party, and that David Sears, the founder of said [229 Mass. 379]fund, and his representatives shall be the other party to the benefits of said fund. And the Trustees of Amherst College, and their successors, are hereby authorized and empowered to receive and expend the one half part of said annual income of said fund in such purposes of Literature, without restriction, as they may deem most desirable, and including a right to build at their pleasure, for the use and benefit of the fund. Provided always, and they are entitled to half the income on this condition, that they pay over the other half part of said annual income, when demanded, to said David Sears, and his representatives designated and described in certain deeds of said David Sears to the wardens and vestry of St. Paul's Church in Boston, dated in the year 1821, and establishing a fund for charitable and other uses. And if any time hereafter it should so happen from any cause whatever that said income cannot be so paid over, or that any of said parties should be prevented or prohibited, or in any was debarred from their several rights, or if any of said parties as they become entitled to said income from said fund should not receive the same within one year after demand thereof, then, and in each or either of said cases, the property conveyed by this deed, and the fund herein referred to and established, together with all the property of every sort and description which said fund now has, or may hereafter become possessed of, shall thereupon be immediately forfeited to, revert to, and be reinvested in said David Sears and his heirs forever.’

The deeds from Sears to the wardens and vestry of St. Paul's Church, dated 1821 and above referred to in the deed from Sears, provided that the rentals of the pews conveyed by these deeds should be applied to the accumulation of a permanent fund; and that the wardens and vestry ‘shall pay over to said Sears, or his nearest heir, by the name of Sears, for the time being, who shall demand it, the one half of said income (i. e., the income of the St. Paul's Church fund), for his, or her use and benefit, that is to say, any heir of said Sears, of his name, who may demand the said one half of said income, shall be entitled to receive it, but his or her right to it shall be superseded and annulled, whenever a nearer heir of the same name shall make a similar demand.’ By a subsequent deed to the same grantees he defined the phrase ‘nearest heir’ as used in that and previous deeds, as being in [229 Mass. 380]general to the effect that the eldest of male descendants should be preferred.

The second deed from Sears to the trustees of Amherst College is dated September 1, 1847, and conveys a parcel of land situated in the city of Boston, hereinafter called the Brattle Street property. It also conveys and assigns to the grantees a lease of the land described to one Hinckley for one hundred years which will expire in the year 1919. This deed referred to the earlier deed and to the undertaking of the grantees ‘to perform the several conditions and comply with the several restrictions and limitations, and execute the several trusts, uses, and objects contained in this deed, in addition to, and in completion of their contract with said Sears, as the same appears recorded in said deed of the first of July, 1844. * * * And the annual income received from the estate hereby granted, is forever to be a source, and afford a supply-as a river affords a supply of water to the ocean-by which the capital of said fund is to be annually increased, and subject to the conditions, restrictions, limitations and divisions of income and forfeiture of said fund forever, the same to be deemed and taken as a part of the original trust.’

It will therefore be observed that, by the deed given in 1844, the entire rent received was to be expended by the college in the purchase of books during the term of the lease. This part of the gift is admitted to be valid. After the termination of the lease in 1928, the rents and profits are to be invested in securities to increase the permanent capital of a ‘Library and Benevolent Fund,’ created by this deed and by a gift to the college of $5,000, acknowledged in the first deed to have been received. One half of the income of the fund so established is to be invested and added to the principal annually, between the months of July and January, unless demanded by Sears or his representatives; the college being authorized to expend one half of the fund for the purposes of literature provided it paid over the other half, if demanded, to Sears of his nearest heir by the name of Sears for the time being, as described in the deeds of Sears to the wardens and vestry of St. Paul's Church, dated in the year 1821 and above referred to. The deed of 1844 also provides that if one half the income is not paid over to the parties entitled thereto, [229 Mass. 381]within one year after demand, the property conveyed and the fund established shall be immediately ‘forfeited to, revert to, and be reinvested in said Sears and his heirs forever.’ No claim of forfeiture under the foregoing provision is

[118 N.E...