Bolster v. Attorney Gen.

• Decision Date: 27 June 1940
• Citation: 306 Mass. 387,28 N.E.2d 475
• Parties: BOLSTER et al. v. ATTORNEY GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 387

28 N.E.2d 475

BOLSTER et al.

v.ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1940.

Petition for Instructions from Probate Court, Suffolk County; Prest, Judge.

Proceeding by Wilfred Bolster and others, trustees under the will of Henry O. Peabody, deceased, for instructions as to their duty respecting a certain fund, in which Paul A. Dever, the Attorney General, and others appeared and Simmons College intervened as a respondent. From a decree dismissing intervener's appeals from a decree instructing petitioners to pay the income of the fund to the Town of Norwood and an order refusing intervener's request for a report of material facts, intervener appeals.

Appeals dismissed.

H. S. Davis, of Boston, for Simmons College.

R. Clapp, of Boston, for Attorney General.

G. T. Bolster, of Boston, for petitioners.

LUMMUS, Justice.

The trustees under the will of Henry O. Peabody petitioned for instructions as to their duty with respect to a fund of about $750,000 in their hands, being the residue of the estate, which was given by the will ‘to found and endow an institution to be called the ‘Henry O. Peabody School for Girls,’ for the purpose of furnishing instruction to girls by teaching the various branches of art, science and industry best calculated to enable the scholars to acquire an independent livelihood.' The will provided that the school be located upon a farm owned by the testator, if owned by him at his death. But in 1910, after his death, the farm was sold by the trustees under a decree of the Probate Court, and thereby the execution of the trust in the manner intended by the testator was made impossible. Some of the heirs and next of kin of the testator appeared, and sought to have the fund distributed as intestate property. The Attorney General appeared and answered, in opposition to any such distribution.

Upon its petition, Simmons College, a corporation established by St.1899, c. 395, was permitted to intervene as a respondent, and to file an answer setting forth that the purposes for which it was organized more closely resemble the purposes of the trust under the will of Henry O. Peabody than do the purposes of any other existing institution and praying that in the application of the cy pres doctrine the fund be applied to furnish additional instruction in Simmons College.

The decree, entered on December 20, 1938, did apply the cy pres doctrine by instructing the trustees in substance to pay the income of the fund annually to the town of Norwood, provided the town shall construct and equip a new school building to be known as the Henry O. Peabody School for Girls and shall maintain it for the purpose of providing instruction which shall conform to the purposes declared in the will.

On January 9, 1939, Simmons College claimed an appeal. On January 10, 1939, it requested from the judge of probate a report of material facts under G.L. (Ter.Ed.) c. 215, § 11. See, also, c. 214, § 23. On March 23, 1939, the judge refused the request on the ground that Simmons College is not a party in interest. On March 27, 1939, Simmons College claimed an appeal from such refusal. On April 14, 1939, on motion of the petitioning trustees, both appeals were dismissed ‘for want of interest in the appellant.’ From that dismissal Simmons College on April 14, 1939, appealed to this court.

In equity in this court or the Superior Court a refusal of a judge to perform his statutory duty by reporting the material facts upon request under G.L. (Ter.Ed.) c. 214, § 23, is not appealable, for such refusal is neither an interlocutory nor a final decree. Carilli v. Hersey, Mass., 20 N.E.2d 492. There is a remedy by exceptions. Snow v. Boston Blank-Book Manuf. Co., 153 Mass. 456, 26 N.E. 1116; G.L.(Ter.Ed.) c. 231, §§ 113, 144. The appellant contends that the statute as to appeals from probate courts, G.L. (Ter.Ed.) c. 215, § 9, is broader than the statute as to appeals in equity, because it extends to any ‘order, decree or denial of a probate court,’ and consequently extends to the denial of a request to report the facts. This, it is urged, ought to be so, since there is no such thing as a bill of exceptions in a probate court. Petition of Mackintosh, petitioner, 246 Mass. 482, 141 N.E. 496;Spilios v. Papps, 288 Mass. 23, 28, 192 N.E. 155;Jenkins v. Jenkins, Mass., 23 N.E.2d 405. We assume in favor of the appellant that the refusal of a probate judge to report the material facts is appealable.

The broader question is: Had Simmons College any standing to appeal from any ‘order, decree or denial’ of the Probate Court in this proceeding? The statute gives a right of appeal only to ‘a person aggrieved’ by the ‘order, decree or denial.’ G.L. (Ter.Ed.) c. 215, § 9. Simmons College was under no duty or responsibility as to the disposition of the fund. See Monroe v. Cooper, 235 Mass. 33, 34, 126 N.E. 286;Doane v. Bigelow, 293 Mass. 406, 409, 200 N.E. 121;Weston v. Fuller, 297 Mass. 545, 9 N.E.2d 538. As an institution that hoped to be the beneficiary or active agency of the application of the cy pres doctrine, Simmons College had no legally recognized private interest in the disposition of the fund. It had no interest different in kind from that of the public generally, which is represented exclusively by the Attorney General. Consequently it could not, legally speaking, be aggrieved by any disposition of the fund that may have been made, and has no right of appeal. Burbank v. Burbank, 152 Mass. 254, 25 N.E. 427,9 L.R.A. 748;Krauthoff v. Attorney General, 240 Mass. 88, 92, 132 N.E. 865;Dillaway v. Burton, 256 Mass. 568, 573, 574, 153 N.E. 13;Judkins v. Hyannis Public Library Association, Mass., 19 N.E.2d 727;...