Boston Seaman's Friend Society, Inc. v. Attorney General

• Decision Date: 07 January 1980
• Citation: 398 N.E.2d 721,379 Mass. 414
• Parties: BOSTON SEAMAN'S FRIEND SOCIETY, INC. v. ATTORNEY GENERAL et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 721

398 N.E.2d 721

379 Mass. 414

BOSTON SEAMAN'S FRIEND SOCIETY, INC. v. ATTORNEY GENERAL et al. ¹

Supreme Judicial Court of Massachusetts, Dukes County.

Argued Nov. 6, 1979.

Decided Jan. 7, 1980.

Stuart DeBard, Boston, for plaintiff.

Catherine W. Hantzis, Asst. Atty. Gen., for Attorney General.

James J. Gillis, Jr., Vineyard Haven, for Town of Tisbury & others, interveners.

Before QUIRICO, BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

WILKINS, Justice.

More than thirty days after the entry of judgment in the Probate and Family Court for the County of Dukes County, but within the sixty-day appeal period set forth in Mass.R.A.P. 4, 365 Mass. 846 (1974), the Boston Seaman's Friend Society, Inc. (Society) filed a notice of appeal. A panel of the Appeals Court determined "that the question whether the appeal period applicable to the present case is the thirty-day period found in G.L. c. 215, § 9 (as appearing in St.1975, c. 400, § 57), or the sixty-day period found in the first sentence of Mass.R.A.P. 4" was one of unusual significance bearing on the efficient administration of justice. Accordingly, that panel reported the question to this court. G.L. c. 211A, § 12. ² We have transferred the entire case to this court for decision. We conclude that the appeal was filed on time, but we reject the Society's argument on the merits.

1. The appeal was seasonably claimed. Because the Attorney General was a party to the Probate Court proceedings, the notice of appeal could be filed by any party within sixty days of the entry of judgment. Rule 4 of Mass.R.A.P., prior to its amendment effective July 1, 1979, ³ read as follows: "Unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty days of the date of the entry of the judgment appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within sixty days of such entry."

We read the "but if" language following the semicolon in rule 4 as controlling all circumstances in which the Attorney General is a party to a case. Thus, the thirty-day statutory appeal period set forth in G.L. c. 215, § 9, is not a limitation on the appeal period in rule 4. Section 9 was adopted as part of a comprehensive legislative and judicial effort to coordinate statutes of the Commonwealth and rules of this court which were, respectively, enacted or adopted to be effective on July 1, 1974. See St.1973, c. 1114, § 351. Section 10 of G.L. c. 215 was amended at the same time to provide that the procedure on appeal from a Probate Court "shall be in accordance with the Massachusetts Rules of Appellate Procedure." See St.1973, c. 1114, § 66.

The statute and the rule should be read with the aim of finding consistency rather than conflict. With the background of cooperation between the judiciary and the Legislature, and the general deference of G.L. c. 215, § 10, to the Rules of Appellate Procedure, we do not construe G.L. c. 215, § 9, as intended to conflict with the general purpose of Mass.R.A.P. 4 to provide an enlarged appeal period in cases involving the Commonwealth or an officer or agency of the Commonwealth. ⁴ We thus need not deal with the question whether a rule of court or a statute concerning appellate procedure would prevail when there is an irreconcilable conflict between the two.

2. We turn then to the merits of the appeal by the Society. Article Sixteenth of the will of Harriet Norris Goldberg provided in part that one-third of the residue of her estate be given to the Society "to be held and invested as a permanent fund . . ., the income to be devoted to the maintenance of its Branch" in Vineyard Haven. The Society's corporate purposes include "ministering to seamen by employing such means for their spiritual and temporal welfare as may be deemed advisable by the Society in accordance with Christian Charity." The Society has maintained a chapel and a maritime museum in Vineyard Haven.

The Society brought this petition against the Attorney General seeking instructions and a decree allowing expanded uses for the trust income. Each of the towns on Martha's Vineyard was permitted to intervene in the proceeding. The Society and the interveners agreed on a form of judgment concerning the use of the income from the Goldberg fund. That proposal was adopted by the judge with two modifications which the Society challenges. The judgment states a variety of ways that the trust income may be used for the benefit of needy seamen on Martha's Vineyard, such as expenditures for room and board, burial expenses, medical costs, spiritual needs, and professional guidance. Additionally, the judgment authorizes the use of income for "(e)ducational aid and financial assistance to those Individuals from Martha's Vineyard pursuing educational programs relating to the sea, including but not limited to . . . marine biology, oceanography, maritime studies, fisheries research, sea conservation and all other sea related subject matter" (emphasis supplied). The Society challenges the judge's substitution of the word "individuals" for the word "seamen" in the language quoted above.

This is an appropriate case for the application of the doctrine of cy pres. See 4 A. Scott, Trusts §§ 399.2, 399.3 (3d ed. 1967); Restatement (Second) of Trusts § 399, Comments i, q (1959); G. Bogert, Trusts 529-531 (5th ed. 1973); Richardson v. Mullery, 200 Mass. 247, 249-250 (1908).

The testamentary intent that the income of the fund be devoted to the maintenance of a branch of the Society in Vineyard Haven can no longer practically be fulfilled. The question then is how the general charitable intent can best be effectuated. The Society and the intervening towns substantially agreed on the purposes for which the income could be used. The judgment as to who shall receive distributions is one for the Society to make. See 4 A. Scott, Trusts § 382 (3d ed. 1967). It is not required to apply any income to the...