Chase v. Dickey

• Decision Date: 09 October 1912
• Citation: 99 N.E. 410,212 Mass. 555
• Parties: CHASE et al. v. DICKEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

212 Mass. 555

99 N.E. 410

CHASE et al. v. DICKEY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 9, 1912

Oct. 9 1912.

COUNSEL

Elder Whitman & Barnum, of Boston, Streeter, Demond & Woodworth, of Concord, N.H. (Wm. A. Morse and Leon M. Abbott, both of Boston, of counsel), for plaintiffs.

James M. Swift, Atty. Gen., and Fred T. Field, of Boston, for the Commonwealth.

Choate, Hall & Stewart, of Boston, for respondents.

Wm. E. Chandler, of Concord, N. H., John D. Long, Herbert Parker, and Henry H. Fuller, all of Boston (Hannis Taylor, of Washington, D. C., De Witt C. Howe, of Concord, N. H., and John W. Kelley, of Portsmouth, N. H., of counsel), for petitioners for leave to intervene.

Streeter, Demond & Woodworth, of Concord, N. H., for executor.

OPINION

RUGG, C.J.

This is a suit in equity, in which the plaintiffs aver that they are 'the 'Christian Science Board of Directors' in charge of all the spiritual and temporal affairs and of the property of the First Church of Christ, Scientist, in Boston, Mass., also known as the 'Mother Church,' an unincorporated religious society in said Boston maintaining regular religious services in its church edifice, and that their duties are similar to those of deacons or wardens of churches or religious societies, and that they as such, with their successors, constitute a corporation under section 1 of chapter 37 of the Revised Laws.' The original respondents were the executor of the will of Mary Baker G. Eddy, and Dickey, McLellan and Fernald, trustees under deeds from the testatrix.

Mrs. Eddy, the founder of 'Christian Science,' so called, conveyed certain real estate, the net annual value of which is largely in excess of $2,000, to the respondents, Dickey, McLellan and Fernald, to hold in trust for certain uses during her 'earthly life and at the termination thereof to dispose of the same in accordance with the provisions of' her 'last will and the codicils thereto.' She has deceased, and her last will and codicils have been allowed in New Hampshire, the state of her domicile, and admitted to ancillary probate in this commonwealth. The language of the residuary clause of her will now material is: 'I give, bequeath and devise all the rest, residue and remainder of my estate of every kind and description to the Mother Church, the First Church of Christ, Scientist, in Boston, Massachusetts, in trust for the following general purposes: I desire that such portion of the income of my residuary estate as may be necessary shall be used for the purpose of keeping in repair the church building and my former house at number 385 Commonwealth avenue in said Boston, which has been transferred to said Mother Church, and any building or buildings which may be by necessity or convenience substituted therefor, * * * and I desire that the balance of said income and such portion of the principal as may be deemed wise shall be devoted and used by said residuary legatee for the purpose of more effectually promoting and extending the religion of Christian Science as taught by me.'

The bill alleges a request upon the trustees for a conveyance to the plaintiffs of the real estate, a willingness on their part to make it, but a refusal without an order of court on the ground that the petitioners are incapable of holding it by reason of R. L. c. 37, § 9. The language of this section is: 'The income of the gifts, grants, bequests and devises made to or for the use of any one church shall not exceed two thousand dollars a year exclusive of the income of any parsonage land granted to or for the use of the ministry.' The prayer of the bill is for a conveyance of this real estate to the petitioners as entitled thereto under the will of Mrs. Eddy. The respondent trustees admit the allegations of the bill and pray the instructions of the court. The executor avers that the personal estate of the testatrix is amply sufficient to pay all debts and legacies, and that there will be no occasion to sell the real estate here in question for that purpose, and otherwise adopts the answer of the trustees.

The Attorney General became a party, and demurred on the ground that the next of kin of Mrs. Eddy were necessary parties. This demurrer was overruled.

The Attorney General then answered, admitting the substantial allegations of fact in the bill, but setting up R. L. c. 37, § 9, as a bar to its maintenance.

George W. Glover and Ebenezer J. Foster [Eddy], being all the next of kin and heirs at law of the testatrix, have petitioned for leave to intervene, reciting the appearance of the Attorney General and his contention under the statute, and further setting up (1) that the residuary clause in the will is of no effect by reason of the statute; (2) that it is in contravention of the public policy of the commonwealth; and (3) that it is 'vague, indefinite and incapable of enforcement as a valid testamentary disposition.' Wherefore, they say, the legacy has failed, and the property is intestate and vested in them as the sole heirs at law of Mrs. Eddy.

The complainants and all the respondents, except the Attorney General, objected to the allowance of the petition to intervene, on the ground that the heirs at law made what are termed 'family settlements' with Mrs. Eddy during her life, according to which they each received from her and still retain large sums of money and other valuable rights, and in consideration thereof released and extinguished all claims as heirs against her estate, and covenanted not to contest any disposition of her property that she might make.

The case was heard upon the pleadings before a single justice, who reserved 'all questions raised by the record * * * for the consideration and determination' of this court.

1. It is not necessary to consider the demurrer of the Attorney General. All the heirs at law have petitioned to be made intervening parties, which presents the questions of substance raised by the demurrer.

2. The heirs at law should be allowed to intervene to the extent of being heard upon the validity of the trust. If for any reason the residuary clause of the will is ineffective, the estate must go somewhere. It is either intestate property or, possibly, liable to escheat to the commonwealth. It is not necessary to decide its devolution. In any event the subject is one in which the heirs at law are interested, and hence are entitled to a hearing. It may be assumed that if the commonwealth had not become a party, the heirs at law alone would not be parties in interest as to the effect of the inhibition of the statute against the gift to a church. It would not be for them to raise that question, for the reason that the commonwealth alone has a right to challenge such a gift. Hubbard v. Worcester Art Museum, 194 Mass. 280, 80 N.E. 490, 9 L. R. A. (N. S.) 689, 10 Ann. Cas. 1025. But here the Attorney General has been made a party. He has raised expressly the point that the petitioners are not entitled to a conveyance because of the invalidity of the residuary clause. Hence the hostile attitude of the state is disclosed. This gives the heirs at law a standing, because if the contention of the Attorney General is sustained, it is possible that the heirs may take.

Their kinship is not extinguished by their so-called family settlement agreement. They are not of necessity precluded by their covenants and the advancements to them from presenting arguments as heirs at law touching intestate property or from showing that in truth the property is intestate. It may be assumed that a covenant not to contest a will or to release all claim to share in the estate of an ancestor based upon an adequate advancement freely made with sufficient knowledge of the facts and without fraud would be enforced. Quarles v. Quarles, 4 Mass. 680. But this principle fails when all the heirs have joined in a similar covenant and there is intestate estate. While it might be insisted upon for the benefit of heirs who had not covenanted in like manner, when all heirs are in this regard on the same footing, there is no one in whose behalf the covenant may be invoked. This is not an initial contest touching the execution of the will, testamentary capacity or other grounds for opposing the allowance of the will, as to which different rules of law would arise. It is a question whether the instrument, allowed as the will, disposes of the estate in a valid way, or whether it is inoperative in law.

The heirs at law commonly are necessary parties to any proceeding where the inquiry is whether a good charitable trust is created. Cassidy v. Shimmin, 122 Mass. 406, 411; Jackson v. Phillips, 14 Allen, 539, 571; Packard v. Marshall, 138 Mass. 301, 303; Kent v. Dunham, 142 Mass. 216, 7 N.E. 730, 56 Am. Rep. 667; Whitwell v. Bartlett, 211 Mass. 238, 98 N.E. 98. This principle also applies under the circumstances of this case. The heirs at law are necessary parties in the determination of the question whether the trust is so contrary to public policy that it cannot be carried out, or so indefinite and vague as to be incapable of administration as a public charity.

3. The validity of the residuary clause, so far as dependent upon the church statute (R. L. c. 37, § 9) is open upon this record. A gift like the present to a corporation beyond its power to take can be questioned in the first instance by the commonwealth alone. It is good against everybody else. The restrictions upon the powers of a corporation to hold property imposed either by the terms of its charter or by general law can be taken advantage of only in a direct proceeding by the creating sovereign power. Jones v Habersham, 107 U.S. 174, 188, 2 S.Ct. 336, 27 L.Ed. 401; Davis v. Old Colony R. R. Co., 131 Mass. 258, 273, 41 Am. Rep....