City of Boston v. Doyle
| Decision Date | 25 November 1903 |
| Citation | 184 Mass. 373,68 N.E. 851 |
| Parties | CITY OF BOSTON v. DOYLE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas M. Babson, for complainants.
Boyden Bradlee & Twombly, for respondent Eells.
F. H Nash, Asst. Atty. Gen., Matthews, Thompson & Spring, and W G. Thompson, for aldermen of Boston.
The legacy to the inhabitants of the town of Boston, given in the codicil of the will of Benjamin Franklin, with the provision for the disposition and management of it, constitutes a public charity. It was the intention of the testator that within a year after his death benefits should begin to accrue from it to a large class of worthy young men in Boston through the creation of a fund from which they could borrow on easy terms small sums for their advancement. He provided that at the expiration of 100 years a large proportion of the accumulated fund should be expended in building or procuring public works of general utility which should promote the convenience and comfort of the people of Boston or of others temporarily abiding there. He provided for the investment and accumulation of the balance for 100 years more, at the end of which period a part of it is to be subject to the disposition of the people of Boston and a part to the disposition of the government of the state. The plan was stated by the testator with considerable elaboration, and the method of carrying it into effect appears in the codicil. This is by a board of managers, to consist of the selectmen of the town and the ministers of the oldest Episcopalian, Congregational, and Presbyterian churches in the town. The gift was in such a form as to raise a question whether the legal title to the fund was in the inhabitants of Boston or in the managers. Similar questions arose in Drury v. Natick, 10 Allen, 169, and Cary Library v. Bliss, 151 Mass. 364, 25 N.E. 92, 7 L. R. A. 765. In the first of these cases it was held that the legal title was in the town, while the entire management of the property was in a board of trustees provided by the will. In the other case it was said in the opinion that the legal title to the fund was in the trustees, and that, after the library was established, the title to the library was in the town; but in this, as in Drury v. Natick, the management of the property, both before and after the establishment of the library, was in the trustees created by the founder. In regard to the present case it was decided by a majority of this court that the legal title to the fund was in the town of Boston so long as Boston was a town, and is now in the city of Boston. Higginson v. Turner, 171 Mass. 586, 51 N.E. 172. But this decision was not intended to nullify and could not nullify the provisions of the codicil as to the management of the fund. Cary Library v. Bliss, 151 Mass. 364, 25 N.E. 92, 7 L. R. A. 765. In Drury v. Natick, ubi supra, where the title to the property was in the town, it was said that the authority given to the trustees was 'not a mere naked power, but a power coupled with a trust.' In Cary Library v. Bliss the same was held to be true of the power of the trustees after the establishment of the library as the property of the town. The provisions in regard to the management of the fund were doubtless deemed important by Dr. Franklin, and they must be given effect, so far as possible, according to his purpose and intention. The following language from the opinion in Cary Library v. Bliss is applicable to the present case: It seems plain, therefore, that the board of managers created by the codicil, acting in a fiduciary relation under the instrument, are to have the charge and management of the fund, and are to lay out in public works that part of it which is so to be used. See, also, Ex parte Blackburn, 1 J. & W. 299; Fellows v. Miner, 119 Mass. 541; Sohier v. Burr, 127 Mass. 221; Bullard v. Chandler, 149 Mass. 532-541, 21 N.E. 951, 5 L. R. A. 104.
When the town of Boston became a city, its board of selectmen went out of existence, and for more than 80 years there has been no such board. At the time of Dr. Franklin's death the selectmen were nine in number, and until the change from a town to a city they constituted a large majority of the managers. This board, as constituted by the managers, ceased to exist in 1822, and only the two clerical members of it remained eligible to continuance in the administration of the trust. The selectmen, while in the performance of their duties as managers, were not acting as public officers of the town. They were acting as appointees under the codicil, precisely as the ministers were acting; their only official relation in that field being their relation to the trust. The testator selected his appointees from two classes, and the reference in the will to the public office of the lay members was only a mode of designating the persons appointed to act during their respective terms of office as selectmen. While, under St. 1822, p. 734, c. 110, the mayor and alderman became their successors in most particulars as officers of the city, they did not become their successors as managers of the Franklin fund. The will contained no provision in regard to the persons who should act as managers if the office of selectmen of Boston should be abolished. But the general purpose of the testator that the fund should be in charge of a board of managers remained unchanged, and in such a case, when it becomes impossible to administer a public charity precisely according to the directions of the founder, it is the duty of a court of equity to carry out his general purpose as nearly as practicable. American Academy v. Harvard College, 12 Gray, 582; Weeks v. Hobson, 150 Mass. 377, 23 N.E. 215, 6 L. R. A. 147; Darcy v. Kelley, 153 Mass. 433, 26 N.E. 1110; Sears v. Chapman, 158 Mass. 400, 33 N.E. 604, 35 Am. st. Rep. 502; Attorney General v. Briggs, 164 Mass. 561, 42 N.E. 118; Amory v. Attorney General, 179 Mass. 89, 60 N.E. 391. The will being silent as to the persons who are to act as managers with the ministers when there are no longer selectmen, it is for a court of equity on application, by virtue of its general jurisdiction over the administration of trust, to appoint other managers. Without such an appointment, no one is legally authorized to act in the place of the selectmen. For many years the mayor and aldermen, and more lately the aldermen alone, acted as managers with the ministers without objection. It seems that until lately no controversies have arisen, nor any important differences of opinion as to the conduct of the business. It is only since the expiration of the first 100 years, when it is time to lay out money in public works, that it becomes important to look sharply at the legal rights of the persons assuming to act as managers.
From what we have already said it appears that, in the absence of any appointment by a court, no person succeeded to the powers and rights of the selectmen in the execution of this trust. Long acquiescence by the clerical managers and others in the action of members of the board of aldermen does not give members of that board a right to act in the disposition of this fund. It follows that the votes of May 21, 1902, passed by the affirmative action of 11 persons, all of whom were members of the board of aldermen, against the negative vote of 2 ministers, members of the board of managers, and 2 persons who were members of the board of aldermen, were without legal authority, and void.
We are asked for instructions upon the question whether the respondents Mr. Eells, Mr. Duane, and Mr. McLennan are authorized to act as managers under the codicil. Upon the facts stated this question should be answered in the affirmative as to each of them. The persons designated in this part of the will were 'the ministers of the oldest Episcopalian, Congregational, and Presbyterian churches in that town.'...
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