Briggs v. Merchants Nat. Bank of Boston

• Decision Date: 01 October 1948
• Citation: Briggs v. Merchants Nat. Bank of Boston, 323 Mass. 261, 81 N.E.2d 827 (Mass. 1948)
• Parties: BRIGGS et al. v. MERCHANTS NAT. BANK OF BOSTON et al.
• Court: Supreme Judicial Court of Massachusetts

323 Mass. 261

81 N.E.2d 827

BRIGGS et al.

v.MERCHANTS NAT. BANK OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 1, 1948.

Reservation and report from Supreme Judicial Court, Suffolk County.

Suit by Charles V. Briggs, and others, taxpayers of the Town of Lincoln, and by the Town of Lincoln against the Merchants National Bank of Boston, trustee, and others to secure a modification, under the doctrine of cy pres, of some of the terms of certain trusts. On reservation and report.

Decrees in accordance with opinion.

Before QUA, C. J., and LUMMUS, DOLAN and WILLIAMS, JJ.

F. B. Wallis of Boston, L. Wheeler, Jr., of Boston, and N. C. Fitts, of Cambridge, for petitioners.

A. C. Webber, of Boston, for ‘B’ trustees.

W. J. Speers, Jr., of Boston, for Merchants National Bank-‘A’ Trustee.

C. A. Barnes, Atty. Gen. and M. A. Fredo, Asst. Atty. Gen., of Boston, for Commonwealth.

QUA, Chief Justice.

This suit in equity is brought by ten taxpayers of the town of Lincoln under G.L.(Ter.Ed.) c. 214, § 3(11), and by the town itself, against The Merchants National Bank of Boston (hereinafter called the bank) as trustee of a trust (hereinafter called the A trust) created by the will of Julian de Cordova, late of Lincoln, Mr. Webber and four others as trustees under another trust (hereinafter called the B trust) created by the same will, and the Attorney General. The principal purpose of the suit is to secure modification by the court under the doctrine of cy pres of some of the terms of the A and B trusts and of still another trust upon which the town holds certain real estate conveyed to it by de Cordova in his lifetime. All three trusts are related to each other and are parts of one scheme or plan designed by de Cordova for the purpose of setting up in Lincoln a perpetual charity for the maintenance, in memory of himself and his deceased wife, of an art museum and park for the benefit of the inhabitants of the town. Further objects of the suit are to secure certain interpretations of the A and B trusts and directions to the trustees designed to remove doubts and to clarify their duties.

Consideration of a demurrer contained in the answer of the B trustees was reserved until the hearing on the merits. No separate discussion of the demurrer is required, since if the facts established by the master's report make a case for relief, the petition sufficiently states such a case as against any of the grounds set forth in the demurrer.

Julian de Cordova died November 23, 1945, at the age of ninety-five. On November 29, 1930, he had conveyed to the town, and the town had accepted, about twenty-nine acres of land on Sandy Pond. On this land were located his residence, a building known as the art gallery, and some incidental buildings. The conveyance also included the collections of pictures and of other objects of art and interest contained in the buildings. The grantor reserved a life estate to himself and also provided that after his death the town should hold the property in trust to maintain the land as a public park for the benefit of its inhabitants and the residence and art gallery for their benefit as a public museum under the name ‘The de Cordova and Dana Museum.’ It was provided that new buildings might be added or substituted, but that any of the objects of art might be disposed of only with the approval of an expert selected by the director or similar officer of the Museum of Fine Arts in Boston. To induce the town to accept this conveyance, de Cordova executed a sealed instrument wherein he covenanted with the town that he had deposited with the bank $250,000 in securities as a guaranty that if the town should accept the conveyance he would provide by will $150,000 for the benefit of the town for the upkeep, maintenance, and improvement of the premises and would make a further substantial provision for the town which, ‘subject to such reasonable discretions' as he might ‘interpose,’ would allow the income to be used in case of need for the upkeep,maintenance, or improvement of the park or museum. He did make these two provisions in his will in the form of the A trust and the B trust next hereinafter described.

By the twelfth article in his will de Cordova gave to the bank $150,000 in trust to pay the income to the town ‘for the upkeep, maintenance and improvement of the de Cordova-Dana museum and park in said Lincoln, which I have already given the town, subject to a life estate for myself.’ This is the A trust.

By the thirteenth article he gave the residue of his property to Webber and others in trust, with the provision that they might pay to the town from the income ‘such sum or sums as my said trustees from time to time may think necessary * * * to make up any deficiency in the income of the trust fund, hereinbefore created [the A trust], for the upkeep, maintenance and improvement of said museum and park * * *.’ It is provided that the balance of income is to be accumulated and added to the principal for a period of twenty years after the death of the testator. At the end of the twenty years the entire trust fund with its accumulations is to be paid over to the bank to be held by it in trust and the income paid to the town to be expended ‘solely in making up any deficiency in the income * * * [of the A trust] and for the use, improvement and additions to the said art collection, and the buildings in which they [sic] are housed,’ with the restriction that the town may make expenditures for additions to the art collection and may dispose of any parts of it only with the approval of an expert selected as provided in the similar provision contained in the deed to the town. By the fourteenth article like powers to add to the collection and to dispose of parts thereof are given to the trustees Webber and others, subject to a like restriction. There is also, in the fifteenth article, a provision that the majority of the trustees, if they deem it expedient, may cause a corporation to be formed consisting of the trustees and their successors to which the trustees shall transfer the trust fund to be held upon the same trust with the same powers subject to the same restrictions as when held by the trustees. This trust of the residue given to Webber and others is the B trust. Indications are that when the estate is finally settled the residue that will go into this trust will have amounted to about $1,500,000. The trustees have already received some cash and securities having a book value of over $1,000,000.

By a codicil the testator authorized the ‘trustees named in said will’ to use ‘such parts of the income, but none of the principal, for such educational and recreational purposes, which in their discretion, will be helpful in the fulfillment of the main purpose expressed in paragraph 13 of said will, and in the furtherance of the de Cordova-Dana museum and park * * *,’ their discretion in the use of income for such purposes to be final.

It will be observed that the situation brought about by the deed and the creation of the two trusts in the will of the testator is that the town now owns and is in complete possession and control of the land, buildings, and collections and must use them for the park and museum; that the bank holds the A trust fund of $150,000 in perpetuity to pay the income to the town for the upkeep, maintenance and improvement of the museum and park; that Webber and others hold the much larger B trust fund to use so much of the income as they think necessary to make up any deficiency in the income of the A trust and to accumulate the remainder of the income and at the end of twenty years to turn over the entire fund to the bank to hold in perpetuity and to pay the income to the town for the purposes of the park and museum; that during the twenty year period Webber and others are given certain powers of adding to and disposing of exhibits which in general they cannot exercise except with the consent of the town, since the town owns the exhibits¹ under the deed, which took effect in 1930 and takes precedence over the will, and the town has by virtue of the deed sole possession and control of the place of exhibition; that the B trustees may in their discretion also expend income for educational and recreational purposes ancillary to the main objectof the park and museum; but that any activities for these purposes upon the site of the park and museum must, because of the town's possession and control under the deed, be subject to the consent of the town.

It now becomes necessary to summarize certain of the findings in the exhaustive report of the master. The art gallery, which is connected with the residence by an enclosed arched bridge, resembles a Norman chateau with round towers. The residence also has a tower and is surrounded by battlements. Both buildings are situated on a knoll fifty to seventy-five feet above the pond in the midst of fine old trees and well kept lawns. The quality of the collections is uneven, ranging from objects of real importance to others of little value. They were painstakingly acquired by the testator over a long period of years. According to the standards of great museums many of the objects cannot be rated as museum pieces, but, ‘taken as a whole, the collections have artistic, cultural and educational value and should be a source of interest and instruction to the inhabitants of the town, particularly to youth of school age.’ The value of the museum lies in the means it affords of studying art, ethnology, and to some extent archeology. ‘It should be an important cultural asset to the town.’ To these findings we may add as matter of common knowledge that Lincoln is a small town of about two thousand inhabitants lying within commuting distance of Boston in a broad belt devoted largely to country residences. In short, it appears that the park and museum are attractively located in a beautiful area; that the buildings are of unique design; and...