City of Providence v. Powers

• Citation: 83 R.I. 512,120 A.2d 811
• Decision Date: 17 January 1956
• Docket Number: No. 2286,2286
• Parties: CITY OF PROVIDENCE v. William E. POWERS, Atty. Gen., et al. Eq. . Feb. 28 as of
• Court: United States State Supreme Court of Rhode Island

Page 811

120 A.2d 811

83 R.I. 512

CITY OF PROVIDENCE v. William E. POWERS, Atty. Gen., et al.

Eq. No. 2286.

Supreme Court of Rhode Island.

Feb. 28 as of Jan. 17, 1956.

William E. McCabe, City Sol., James J. Corrigan, Asst. City Sol., Providence, for complainant.

William E. Powers, Atty. Gen., Albert J. Hoban, Adm'r and Joseph A. Bevilacqua, Acting Adm'r of Charitable Trusts, Providence, for State.

Everett D. Higgins, Tillinghast, Collins & Tanner, Harold E. Staples, Edwin H. Hastings, Eldridge H. Henning, Jr., Swan, Keeney & Smith, Francis B. Keeney, Jr., Frank H. Swan, Jr., Charles H. Drummey, Providence, for various respondents.

FLYNN, Chief Justice.

This is a bill in equity, under General Laws 1938, chapter 487, § 1, seeking to have the superior court authorize the city of Providence as trustee to sell certain property which had been devised to it as a charitable trust under the will of Ebenezer Knight Dexter, deceased, and thereupon to apply the proceeds in accordance with the doctrine of cy pres. Originally the attorney general of the state was the only respondent, but subsequently the heirs of the testator were added as parties.

It will be unnecessary to describe in detail the numerous complicated proceedings in both the state and federal courts. Much of the important travel has been stated in Payne v. Superior Court, 1951, 78 R.I. 177, 80 A.2d 159, 82 A.2d 167, to which reference is hereby made. However, we may note: (1) That after the opinion of the United States Court of Appeals for the First Circuit in Payne v. City of Providence, 182 F.2d 888, the superior court of this state granted the petition of the complainant city to add the heirs of the testator as parties respondent in the case pending therein; (2) that such case was then reopened, cross-examination of previous witnesses was permitted, and further proceedings and hearings were held on the amended bill, which included a prayer for a construction of the will and also allegations and prayers for an application of cy pres; (3) that thereupon a decision was rendered by the superior court finding in substance that the will disclosed a general as distinguished from a special charitable intent and that cy pres should be applied in accordance with the evidence; and (4) that a decree to such effect was entered granting all the prayers of the amended bill under certain conditions therein set forth. From this decree the respondent heirs have prosecuted the instant appeal to this court.

The complainant city concedes that it never intended to bring a bill solely for a construction of the will and that the amended bill under consideration is not of that character. Apparently its theory is based on its own interpretation of this court's opinion in City of Providence v. Payne, 1926, 47 R.I. 444, 134 A. 276. It claims that the issue as to the nature of the testator's intent was thereby determined; that this court decided therein that the testator had a general rather than a special charitable intent; and that, at least by implication, the superior court could proceed to apply cy pres whenever efficient administration of the trust became impracticlal because of material changes in circumstances. Apparently this view is shared by the attorney general of the state, the original respondent.

On the other hand the respondent heirs contend that in the above-mentioned Payne case in 1926 the court did not settle the question whether the testator had exhibited a general or special charitable intent; that such issue must still be determined by this court before the superior court would have a right under the statute to decide whether the cy pres doctrine may be applied; and that, specially in view of the decision of the United States Court of Appeals and the existing doubts as to the effect of City of Providence v. Payne, 47 R.I. 444, 134 A. 276, their pleas and demurrer to the original and amended bills should have been sustained. On that view they argue that a new proceeding solely for the construction of the will should have been commenced and certified to this court in accordance with G.L.1938, chap. 545, § 7.

However, they also urge in substance that if the amended bill is to be considered we should hold that the charitable intent of the testator as disclosed by the will is clearly special and not general; that the gift under paragraph Seventeenth was intended and was made as a defesaible fee or as one on a condition subsequent which has been breached; and that in any event the city, on its allegations and evidence of a practical failure of the trust, now holds the property under a resulting trust created by operation of law for the benefit of the respondent heirs.

The original bill was subsequently amended with the approval of the court. Ordinarily when an amended declaration in a law action is filed with the court's approval the original pleading is eliminated from the record for all practical considerations. Conway v. Marsh, 79 R.I. 254, 87 A.2d 499; Neri v. Rhode Island Co., 42 R.I. 229, 107 A. 84; Wilson v. New York. New Haven & Hartford R. R., 18 R.I. 598, 29 A. 300. A similar rule has been followed in equity pleading. Solomon v. Siperstein, 73 R.I. 65, 54 A.2d 25. Therefore we need not consider the plea or arguments concerning the original bill of complaint.

But the respondent heirs also filed a demurrer and plea to the amended bill. In our judgment their view of the law as argued under these pleadings is correct, at least to the extent that a construction of any will, if it is ambiguous, is reserved to the jurisdiction of this court. There is no authority in this state for a bill of complaint to have the superior court in the first instance make a construction of such a will and then to proceed on that basis to apply the cy pres doctrine. Jurisdiction over the construction of a will made by a domiciled resident of Rhode Island and duly probated in the courts of this state is vested exclusively in the supreme court. Provision for obtaining a construction thereof is made by G.L.1938, chap. 545, § 7. Under that statute a bill in equity solely for the construction of a will must be certified by the superior court for our determination whenever the pending case is ready for hearing for final decree.

It is true there are some cases, as contended by complainant, wherein the superior court apparently has interpreted a will. Newport Hospital v. Harvey, 47 R.I. 382, 133 A. 648; Id., 49 R.I. 40, 139 A. 659; Maddalena v. Masso, 48 R.I. 92, 135 A. 601; Garner v. Sisson, 49 R.I. 504, 144 A. 669. But those cases invoked primarily the exercise by that court of its specific and well-established jurisdiction, where the interpretation of a will was only incidental and collateral, or where the will was not ambiguous and where the bill of complaint did not suggest any need for construction and contained no prayer therefor.

However, here the intent of the testator and the effect of the opinion in City of Providence v. Payne, 47 R.I. 444, 134 A. 276, are in doubt, and the bill does contain a prayer for an initial construction of the will. In the circumstances, jurisdiction of the superior court to apply cy pres as prayed for depended essentially upon a predetermination of the existence of a testamentary general charitable intent. Consequently the ascertainment of such an intent here is the primary and basic issue rather than merely a collateral or incidental question. Therefore the cases cited by complainant are distinguishable.

Ordinarily our view in this respect as...