Amory v. Trustees of Amherst College

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation229 Mass. 374
PartiesFRANCIS I. AMORY & others, trustees, v. TRUSTEES OF AMHERST COLLEGE & others.
Decision Date27 February 1918

229 Mass. 374

FRANCIS I. AMORY & others, trustees,


Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1918

December 3, 4, 1917.


Trust, Construction, Validity, Resulting. Rule against Perpetuities. Deed, Construction. Estates on Condition. Evidence, Extrinsic affecting writings, Competency. Equity Jurisdiction, Statute of limitations, Laches. Limitations, Statute of. Agency, Scope of authority. Corporation, Officers and agents. Words, "On this condition."

The owner of certain real estate conveyed it to a college corporation in trust to use the income for the increase and benefit of a literary and benevolent fund of the college, previously established by the donor, subject to certain trusts, among which were requirements that one half of the income of the fund should be used for purposes of literature and that the other half of the income should be paid over to the grantor "or his nearest heir" of his name "for the time being, who shall demand it."

Held, that the provision as to payment of one half of the income to the donor "or his nearest heir . . . for the time being" was void because in violation of the rule against perpetuities. Following St. Paul's Church

v. Attorney General, 164 Mass. 188 .

It also was held that the deed created two distinct trusts, one for the benefit of the college and the other for the benefit of the grantor and certain of his descendants; that the first trust remained valid although the second was invalid, and that, because of the invalidity of the second trust, the beneficial interest therein resulted to the grantor.

A deed of certain real estate to a college corporation with a direction that the income should be used for the increase of a certain fund contained recitals that it was in consideration in part of the grantee assenting to, agreeing and undertaking to execute "the several trusts hereinafter mentioned," and that the grantee was to hold "for the following uses and purposes" and "for the following uses, trusts, and objects," and "it is hereby declared to be the intention of the Donor, that the" college and its "Successors, shall be one Party, and that" the grantee "and his Representatives shall be the other party to the benefits of said Fund." There also were recitals to the effect that the college was entitled to one half of the income of the fund "on this condition," that it paid over the other one half to the donor or a designated heir, and that, if upon demand such payments were not made, then the fund and the property "shall thereupon be immediately forfeited to, revert to, and be reinvested in" the grantor "and his heirs forever." Upon a reading of the entire deed it was held, that it was the intention of the grantor to convey the real estate to the college corporation in fee simple in trust, and not to create an estate upon a condition subsequent.

Conditions subsequent are not favored in the law, and a deed will not be construed to create an estate on condition unless the language used necessarily [229 Mass. 375] imports a condition or the intent of the grantor to create an estate on condition is indicated clearly and unequivocally.

Declarations and conduct of the officers of the college corporation and of the grantor in the deed above described made after the delivery of the deed and before the death of the grantor were considered in determining what was the meaning of the provisions of the deed which upon their face were doubtful.

In further construction of the deed above described, it was held that it plainly appeared that the parties did not intend that a mere use should be created to be executed under the statute, but that the college corporation should take an estate in fee in trust imposing active, diligent and continuing duties upon the trustee.

The statute of limitations will not begin to run to bar the rights of a beneficiary under a resulting trust as against the trustee until the trustee has repudiated the beneficiary's claim openly and notoriously.

In the case of the resulting trust above described, the statute of limitations did not begin to run in favor of the trustee and against the beneficiary at the time of the delivery of the deed creating the trust.

Upon the evidence before a master to whom was referred a bill in equity to enforce a resulting trust in land which had been conveyed to a trustee upon trusts, part of which were invalid, and upon certain facts found by the master, it was held, that the trustee to the knowledge of the beneficiary had repudiated the rights of the beneficiary about thirty-nine years before the beginning of the suit and had remained steadfast in that position, and therefore that the suit could not be maintained.

At the hearing by a master of a suit in equity against a college corporation to enforce a resulting trust, in which one of the issues was, whether the defendant had acknowledged the trust within the period of the statute of limitations, the master admitted in evidence letters written by the defendant's treasurer, bookkeeping entries made by him and statements sent by him to a representative of the beneficiary. It appeared that the authority of the treasurer was limited, and that he merely was custodian of the moneys and securities of the college, was empowered to collect term bills and other bills, to pay salaries and, incidentally, to keep proper books in connection therewith. Held, that the treasurer had no authority to bind the corporation by his letters, accounts, statements or bookkeeping entries, and that the evidence should not have been admitted.

In the suit above described, it appeared that the defendant repudiated all claims of the beneficiary in 1873 and ever thereafter treated the income of the fund as its own, that no assertion of a claim was made by the beneficiary until 1909 and no suit was brought until 1912. There was no evidence of any disability on the part of the plaintiff or of any of his predecessors in title nor was there apparent any reason for the delay in seeking his rights. Every one familiar with the facts relating to the trust had died. Held, that the suit was barred by laches.

By a deed containing many of the same provisions as those above described, a second parcel of land was conveyed to the college corporation with the provision that its income should be used entirely for the purchase of books for the college library until the termination of a lease to which the land was subject, which did not expire until 1928, at which time the income should be divided, one half being directed toward a valid object, and the other half toward one which was invalid. Held, that, as to the resulting trust arising under this deed, the statute [229 Mass. 376] of limitations had not begun to run because the time had not yet arrived for the plaintiff to have possession.

It also was held that, the plaintiff not yet having a right to possession of this property last referred to, the bill must be dismissed as to that property also.

BILL IN EQUITY, filed in the Supreme Judicial Court on October 1, 1912, against the corporation, the Trustees of Amherst College (hereinafter called Amherst College), David Sears and the Attorney General of the Commonwealth by the trustees under a declaration of trust, known as the David Sears Real Estate Trust, who claimed an undivided one half interest in two parcels of real estate and alleged that they were entitled to an accounting as to rents under the circumstances hereinafter described, as successor to David Sears, by virtue of the twentieth paragraph of his will, placing the residue of his real estate in trust, and a conveyance in 1889 by the trustees under the will through one Minot as a conduit to themselves.

David Sears was the common source of title of both the plaintiffs and the defendant college. The defendant college claimed under two deeds, dated, respectively, 1844 and 1847. The 1844 deed conveyed to Amherst College the legal title of certain property on the corner of Leverett and Barton Streets in Boston, together with the lessor's interest in a lease of that property expiring in 1928. The 1847 deed conveyed to Amherst College the legal title of certain property on Brattle Street in Boston, together with the lessor's interest in a lease of that property expiring in 1919. The plaintiffs contend that the conveyances made by these deeds of 1844 and 1847 to Amherst College were upon certain trusts, that those trusts were invalid in part by reason of an interest in the income given therein to David Sears or his nearest heir by the name of Sears for the time being who shall demand it, which was a violation of the rule against perpetuities, and that a trust resulted to David Sears and his heirs as to an undivided half of the fee of the Leverett Street property, subject to the lease expiring in 1928, and as to an undivided half of the fee of the Brattle Street property, including an undivided half of the lessor's interest in the lease expiring in 1919.

The suit was referred to a master upon the issues other than those relating to an accounting for rent. The material findings of the master, the evidence reported by him and the objections [229 Mass. 377] and exceptions to his report by the defendant Amherst College are described in the opinion. The suit was reserved by Crosby, J., upon the pleadings, the master's report and the exceptions thereto, for determination by the full court.

A. H. Wellman & C.

M. Rogerson, (S.

H. Wellman with them,) for the Trustees of Amherst College.

J. E. Hannigan, guardian ad litem, submitted a brief.

B. Corneau, (W.

E. Tucker with him,) for the plaintiffs.

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...

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