Attorney Gen. v. Barbour

• Decision Date: 22 January 1877
• Parties: Attorney General v. John N. Barbour
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 568

Attorney General v. John N. Barbour

Supreme Court of Massachusetts

January 22, 1877

Argued January 11, 1877 [Syllabus Material] [Syllabus Material]

Middlesex. Information in equity, filed August 10, 1876, by the attorney general, at the relation of Isaac Adams, alleging that Seth Adams, of Newton, in the county of Middlesex, brother of the relator, died on December 7, 1873, leaving a will, which was admitted to probate on January 13, 1874, a copy of which was annexed to the information, and the residuary clause of which was as follows:

"I give, devise and bequeath to my said executors, and the survivors or survivor of them, their successors in said trust, their heirs and assigns, forever, all the rest and residue of my estate and property, whether real, personal or mixed, and wherever or however situated, of which I shall die seised or possessed, including any or all of the foregoing bequests which may lapse, if any, in trust, for the following uses and purposes, viz.: the same is to constitute a perpetual fund, the net income of which is to be managed and dispensed by a corporation to be established for the benefit of such indigent, debilitated, nervous people, who are not insane, inhabitants of the Commonwealth of Massachusetts, as may be in need of the benefit of a curative institution, in the following manner, viz.: my said executors and trustees with such others as they may associate with them, shall, as soon after my decease as practicable, obtain from the government of said Commonwealth authority to organize and act as a corporation, under the title of 'The Adams Nervine Asylum,' for the legitimate purposes of this bequest.

"Said curative institution shall be established in the Roxbury district, or in one of the towns of West Roxbury, Brookline Brighton, Newton or Watertown, in said Commonwealth, and shall be distant not more than fifteen miles from said city of Boston, and shall comprise not less than ten acres of land. And the chief curative principles relied on shall be the 'movement cure,' hot and cold bathing, good air, gymnastic and other exercises, with great attention to diet, genial association and religious exercises. The architectural style of the buildings of said institution shall be plain, substantial and simple, and great attention shall be paid to convenience, comfort, good sized rooms, and good air. When any person or persons, receiving the benefit of this institution, shall have so far recovered their health, or when, for any other reason, it is deemed advisable by said managers to discharge them, they shall do so, and admit others in their stead.

"Said corporation shall be composed of my said executors and trustees and their successors, and the persons associated with them in the act of incorporation, of such persons as may at any legal meeting be nominated and elected members by ballot, of such persons as shall at one time pay to the trustees, as an addition to the fund hereby created, the sum of one hundred dollars or more each; and also of such persons as pay into said fund the sum of twenty-five dollars, as an initiation fee, together with an annual subscription of three dollars; said last mentioned persons to be considered members while they shall continue the payment of said annual subscription of three dollars, and no longer.

"Whenever any one of the trustees of this fund and corporation shall die or resign, or from any cause become incompetent to perform this trust, another trustee in his stead shall be elected by ballot at a legal meeting of said corporation, duly notified for the purpose; but no person so elected shall have power or authority to act as trustee of said fund, until approved by some Probate Court in said Commonwealth, or a corresponding jurisdiction.

"The officers of said corporation shall consist of the aforesaid trustees under my will, and their successors, a president, and vice-president, a treasurer, a secretary, a medical professional man, and a board of not less than nine managers; also of three supervisors, whose duty it shall be to examine into the affairs of said corporation as often as once in three months, and to report the general result of such examination through two of the leading newspapers of said Boston annually.

"All the officers of said corporation, other than the trustees, the manner of whose election is mentioned above, are to be elected annually by ballot at a legal meeting of said corporation called for the purpose.

"And my said executors and trustees are hereby requested and directed to dispose of and convey, by proper deed or deeds, under seal or otherwise, any and all property and estate of which I shall die seised or possessed, as soon after my decease as may be by them deemed wise; and, after paying the legacies hereinbefore given, to prudently invest the residue, and hold it in trust, and pay the net income thereof to the treasurer of said corporation semi-annually, to be held by him subject to be disposed of by regular legal action of said corporation for the purposes of establishing and carrying on said 'Adams Nervine Asylum' in said Commonwealth.

"Said fund, together with any accumulation thereof, to be reinvested as often as the same may be proper, and the net income to be used as aforesaid, forever, I meaning by 'accumulation' any money or property received from contributions or otherwise.

"My said executors are hereby fully empowered and authorized to sell and convey in fee simple, for the purposes and in execution of this my last will and testament, and to execute and deliver deeds of conveyance, under seal or otherwise, of all the real estate of which I may die seised or possessed, excepting my homestead aforesaid, without applying to any court or tribunal for license so to do; but, as far as practicable and satisfactory, I recommend dividing it.

"I nominate and appoint my brother, Isaac Adams, John N. Barbour, of Cambridge, and Charles Wells Cook, of Boston, to be executors and trustees of this will; and, having entire confidence in their faithfulness, I desire that no sureties be required of them in their probate bonds."

The information also alleged that the persons named as trustees in the will had done nothing for the erection of the public charity contemplated by the will, and had permitted two sessions of the Legislature to pass without applying for the charter which by the will it was made their duty to apply for as soon as practicable; that the relator Adams had resigned his office of executor and...