Dexter v. President, Etc., of Harvard College

• Decision Date: 18 May 1900
• Parties: DEXTER et al. WARREN v. PRESIDENT, ETC., OF HARVARD COLLEGE et al. WARREN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 192

57 N.E. 371

DEXTER et al. WARREN v. PRESIDENT, ETC., OF HARVARD COLLEGE et al. WARREN v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1900

COUNSEL

J. C. Gray, for defendants President and Fellows of Harvard college.

H. W Putnam and J. F. Burke, for defendants J. D. Ellis and others.

OPINION

KNOWLTON J.

The first question in these cases arises under a provision in the will of Calvin Ellis which is as follows: 'My trustees shall pay to the President and Fellows of Harvard College fifty thousand dollars, or, if the said property do not amount to fifty thousand dollars in value, they shall pay over the whole thereof to the said president and fellows, to hold the same as a permanent fund, and apply the net income thereof, and of all substituted property, after first deducting and accumulating in every year five per centum of such net income as an increase of the fund, as follows: To pay the fees of tuition and instruction, the cost of text-books, room rent, and reasonable board, of such descendants of David Ellis and Buelah Newell, formerly of Dedham, and John Ellis and Hannah Ellis, formerly of Walpole as may be students in Harvard College, whether as graduates or undergraduates. Every one of such descendants shall be entitled thereto upon application therefor, provided his or her morals and scholarship are such as to allow him or her to remain a member of the college; but the period during which any student shall enjoy the benefit of this provision shall not exceed the time usually allotted to students in the several departments with which such student may be connected, unless the president and fellows, by an express vote, extend the same. And if the whole or any part of such income, after accumulating five per centum thereof as aforesaid in any year, remains unexpended from the failure of persons entitled as above declared to receive the same upon application, then the same shall be expended, upon the close of such year, for such general purposes of the college as the president and fellows shall deem most useful.' Considering this in its different parts to ascertain its meaning, we find that it is a gift to a public charitable corporation, which is to be held as a permanent fund, and the income of which, less 5 per cent. to be accumulated, is to be expended for such general purposes of the corporation as the president and fellows shall deem most useful, unless it is all expended in a certain department of the charitable work which the testator designates, and for which he directs a preference by the officers of the college in the administration of the proceeds of the fund. That a gift for the promotion of education in Harvard College is a public charity is a proposition too plain to need discussion. In St. 43 Eliz. c. 4. 'schools of learning, free schools and scholars in universities' are mentioned as charitable objects Such a public charity need have no special reference to the poor. In American Academy of Arts & Sciences v. President, etc., of Harvard College, 12 Gray, 582, 594, Chief Justice Shaw says: 'That a gift designed to promote the public good by the encouragement of learning, science, and the useful arts, without any particular reference to the poor, is regarded as a charity, is settled by a series of judicial decisions, and regarded as the settled practice of a court of equity. Such is a bequest for the improvement of a city; * * * to establish new scholarships in a college; * * * to found and endow a college.' In Perin v. Carey, 24 How. 465, 506, 16 L.Ed. 701, 711, is this language: 'A charity is a gift to a general public use which extends to the rich as well as to the poor. Jones v. Williams, Amb. 651. General devises and bequests having for their object establishments of learning are considered as given to charitable uses under the statute of Elizabeth. Atty. Gen v. Earl of Lonsdale, 1 Sim. 105.' From very early times the founding of scholarships in universities has been favored by the law, and such scholarships are none the less public charities that they are open to the rich as well as the poor. Payment of the 'fees of tuition and instruction, and costs of textbooks and room rent, and reasonable board of students in universities,' is a strictly educational object, and is an ordinary purpose of the founders of scholarships. There is no ground for the contention that in making this charitable gift the testator was precluded by law from directing that it should be devoted primarily to the establishment of scholarships.

Nor have we been referred to any case which holds that in providing for the administration of such a charity the founder is precluded from directing that preference shall be given to his kin or to any other class of persons that he favors. The only persons to be preferred under this provision are the lineal descendants of the testator's grandparents. The testator contemplated a probability that in some of the years, and perhaps most of them, there will be a failure of persons who are entitled to be preferred in the expenditure of the income. At all such times there is no limitation upon the discretion of the officers of the college in using the money as they think best.

The right of a founder to give such directions in regard to the management of a charity is generally recognized, and, so far as we know, is not denied by any court. A direction requiring such a preference is assumed to be a lawful exercise of his rights and powers. Flood's Case, Hob. 136; Spencer v. All Souls College, Wilm. 163; Attorney General v. Sidney Sussex College, 34 Beav. 654, 4 Ch. App. 722; Franklin v. Armfield, 2 Sneed, 305; Perin v. Carey, 24 How, 465, 16 L.Ed. 701; Kent. v. Dunham, 142 Mass. 216, 7 N.E. 730; Darcey v. Kelley, 153 Mass. 433, 26 N.E. 1110; Atty. Gen. v. Duke of Northumberland, 7 Ch. Div. 745; Ingraham v. Ingraham, 169 Ill. 432, 464, 467...