Bradbury v. Birchmore

• Decision Date: 14 May 1875
• Citation: 117 Mass. 569
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Samuel A. Bradbury & others v. John W. Birchmore & another

117 Mass. 569

Samuel A. Bradbury & others v. John W. Birchmore & another

Supreme Court of Massachusetts

May 14, 1875

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Norfolk. Bill in equity, by the wardens and vestry of Christ Church in Hyde Park, a duly incorporated religious society, against John W. Birchmore and John E. White, praying that the defendants should show cause why they should not be ordered to convey a parcel of land with a rectory building thereon, in Hyde Park, to the plaintiffs. The bill also prayed for an account, an injunction to restrain the defendants fro disposing of the land except to the plaintiffs, and for further relief. The case was reserved by Morton, J., on the bill and answer, and the report of a master, and was as follows:

On April 15, 1870, Reuben A. Richards conveyed the land described in the plaintiffs' bill to the defendants in fee, upon the following uses and trusts: "For the purpose of having and erecting thereon a house for the use of the rector of Christ Church in Hyde Park, and for the use of the successors of the said rector in said office, so that the rector of said church and his successors in said office may have the use and benefit of said lands and of the buildings which may be constructed on said premises, during such time as said rector or his successors in said office may be respectively incumbents of said office, for their use, occupation and enjoyment; and it is hereby stipulated and agreed that said trustees first named are authorized and empowered, in their capacity as trustees, to execute a mortgage on said premises in the sum of $ 3000, to secure a loan for said amount, which loan is to be applied to erect and finish the buildings on the premises, or in aid of such erection; but in the execution of said mortgage, no personal liability is to be incurred by said Reuben A. Richards, or by said trustees or either of them, for or by reason of the making or executing such mortgage; but said mortgage will constitute a valid incumbrance upon the estate and premises aforesaid, and said trustees are empowered to secure said loan by deed of mortgage upon said premises. And said premises are holden also upon this special trust, that in case said trustees or their successors shall determine to sell and dispose of said premises, they are authorized to sell and convey the same, in fee or otherwise, or in mortgage or otherwise, the consent of the rector, for the time being, being thereto in writing first obtained; but upon sale, the net avails and proceeds of such sale shall be reinvested by said trustees for the time being in a lot and house for a parsonage for said church, and so that the uses and interests and purposes of the trust aforedeclared may be performed and fulfilled. And upon this further trust, that when said lot shall be improved and the buildings aforesaid erected for the uses designated, the said trustees shall make, execute, deliver and acknowledge a deed of conveyance, release and quitclaim of all said property and estate (subject nevertheless to said mortgage, if subsisting, and subject to all incumbrances, liens and mortgages thereon) to the rector, wardens and vestry of Christ Church in Hyde Park, in Massachusetts, for like uses as are hereinbefore designated, to wit, for the use of the rector of Christ Church and his successors in said office as aforesaid, free from the payment of rent therefor, either on the part of the rector or of said church. But in case said rector, wardens and vestry shall, upon the completion of said buildings, decline to accept the deed of said premises from said trustees, subject to the mortgage existing thereon, then this trust is to remain and continue until such time as the mortgage and incumbrances aforesaid shall be removed and discharged, and the estate shall be free from debt and incumbrance, and upon said premises being relieved and freed from mortgage, debt or incumbrance, upon trust that said trustees shall convey, quitclaim and release said premises, clear from incumbrances as aforesaid, to the rector, wardens and vestry of said Christ Church, for like uses as are hereinbefore designated, to wit, for the use of the rector of Christ Church and his successors in said office as aforesaid, free from the payment of rent, either on the part of the rector or of said church; and in case any vacancy shall occur in the trust, the church aforesaid, by its duly authorized officers or members, is authorized to appoint a trustee or trustees to fill such vacancy. And said trustees covenant that they will execute and perform said trusts, but they are not to be subjected personally to any cost or expense, but all costs and expenses are to be chargeable upon said estate. And upon said premises being vested in the rector, wardens and vestry aforesaid, they are to have full power to control, direct and apply said estate and the proceeds thereof, in such manner as in their judgment shall best promote and effectuate the charitable uses hereinbefore specified."

The defendant Birchmore was at the date of the execution of the trust deed, and had been for some time before, the rector of said church, and continued to hold that office until May 15, 1872. The trustees named in the trust deed accepted the trust and proceeded at once to improve the lot of land and to build a house thereon in accordance with the requirements of the deed. Before the execution of the trust deed, it had been the understanding of the parties that the conveyance would not be made by the grantor until Birchmore should raise the sum of $ 1000 in aid of the building to be erected on the premises. The sum of $ 1008 was so raised by Birchmore, and was subsequently expended by the trustees on the building.

In accordance with the provisions contained in the trust deed, a mortgage of the premises was executed by the trustees to the Weymouth and Braintree Institution for Savings, in the sum of $ 3000, and this sum was received by the trustees and expended by them, in building the rectory and in the improvement of said lot of land.

A second mortgage of the premises was on May 9, 1872, executed by the trustees to Julius W. Tilson, reciting the terms of the trust in the deed from Richards, and further reciting that "whereas sundry debts are due, and owing to sundry persons, which have been contracted in the erection and construction of the buildings named in said indenture, and in the performance and execution of said trusts so far as said work has progressed." The habendum was, "To have and to hold said premises to said Tilson, trustee, his heirs and assigns, upon this special trust; that is to say, for the securing to the persons and firms hereinafter named, the sums respectively due and owing them from said White and Birchmore, the said trustees first named." [Then followed a description of the debt, amounting to $ 1139.54.] "Provided, that if the grantors, their heirs, &c., shall pay unto the said grantee, his executors, &c., the sums of money hereinbefore named for whose use and benefit, and to secure said sums to said persons, said Tilson holds this security on demand from the day of this date hereof, with interest on said sums at the rate of eight per centum per annum," "then this deed shall be void." The grantor Birchmore, as rector of the church, gave his consent to the conveyance. No money was received by the trustees as a consideration, for such conveyance, and such conveyance was made to secure the debts therein named, incurred by the trustees in building the rectory. The entire sum of money received by the said trustees and expended by them in the building of the rectory, and the improvement of the land, was $ 4011.

The defendant Birchmore, being rector of the church, took upon himself the principal charge of the work of building the house. His co-trustee, the defendant White, consulted with Birchmore in relation thereto, examined the accounts, was occasionally upon the grounds as the work went forward, and had full knowledge of all matters connected with the building of the rectory and the improvement of the land. The entire work was done, both as regards the building of the house and the improvement of the grounds, under the supervision of a person named Dalrymple, who was recommended to the trustees as a fit and suitable person by the grantor named in said trust deed and some of the principal donors contributing money in aid of the rectory. The building was erected and the land improved, so that the said Birchmore moved into and occupied the house as a rectory on December 1, 1871, although the work upon the building and grounds was not at that time entirely completed.

The amount of debts incurred by the trustees in the execution of the trust and still unpaid is $ 1137.04.

The master reported that it was not seriously disputed on the part of the plaintiffs that the amount of money was expended and debts incurred by the said trustees in the sums set forth in their answer; "but it was contended, and evidence was offered to prove, that the trustees were guilty of gross negligence in the discharge of their duty, and that the amount expended by them in the execution of the trust was largely in excess of what could reasonably be required for such a purpose; and from the evidence and an inspection of the building and premises, I am satisfied that a building of the same general class could have been erected for a sum much less than the sum which has been expended by these trustees upon these premises, and I am also satisfied that there were errors in judgment in the supervision of the work, in consequence of which the building has settled, and the embankment wall in...