Dillaway v. Burton

• Decision Date: 30 June 1926
• Citation: 153 N.E. 13,256 Mass. 568
• Parties: DILLAWAY v. BURTON et al. ROBERT B. BRIGHAM HOSPITAL FOR INCURABLES v. ATTORNEY GENERAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 568

153 N.E. 13

DILLAWAY

v.BURTON et al.

ROBERT B. BRIGHAM HOSPITAL FOR INCURABLES

v.ATTORNEY GENERAL.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1926.

Report and Case Reserved from Supreme Judicial Court, Suffolk County.

Bill in equity by William E. L. Dillaway, trustee under the will of Elizabeth F. Brigham, deceased, against Hiram M. Burton and another, trustees under said will, and others, to enjoin defendants from continuance of alleged unlawful acts in administering estate contrary to terms of will; and bill by the Robert B. Brigham Hospital for Incurables against the Attorney General of the Commonwealth of Massachusetts for instructions as to administration of a charity, in which William E. L. Dillaway, trustee under the will of Elizabeth F. Brigham, moved to intervene. Interlocutory decree entered in first case, sustaining demurrers to bill and case reported. Interlocutory decree entered in second case, denying motion for leave to intervene, and case was reported and questions reserved. Interlocutory decree in first case sustained; interlocutory decree in second case, denying motion to intervene, affirmed. Plaintiff in second case instructed in accordance with opinion.D. L. Smith, of Boston, for Dillaway.

A. D. Hill, of Boston, for Robert B. Brigham Hospital for Incurables.

M. F. Weston, Asst. Atty. Gen., for the Attorney General.

CROSBY, J.

The first case, a suit in equity, is brought by the plaintiff as one of the three trustees under the will of Elizabeth F. Brigham, and also as a member of the defendant corporation Robert B. Brigham Hospital for Incurables, against his cotrustees under said will, the three trustees under the will of Robert B. Brigham, the Robert B. Brigham Hospital for Incurables, Joel E. Goldthwait and the Attorney General. The bill was filed September 3, 1925, and alleges that the above-named hospital, a charitable corporation organized under the terms of the will of Robert B. Brigham, is being conducted, and that the charity is being administered, in a manner contrary to the terms of Mr. Brigham's will. The prayers of the bill are that the defendants be enjoined and restrained from the continuance of such alleged unlawful acts, and for other relief. The bill alleges that all the facts recited therein were presented to the Attorney General, who was requested to intervene and make application to this court for the relief of the alleged mismanagement and abuses set forth in the bill, but that the Attorney General declined to comply with the request.

The will of Robert B. Brigham provided for the establishment of a charitable corporation, and on February 11, 1903, a corporation was organized under R. L. c. 125, for the following purposes as set forth in its charter:

‘For the purpose of maintaining an institution for the care and support and medical and surgical treatment of those citizens of Boston who are without necessary means of support and are incapable of obtaining a comfortable livelihood by reason of chronic or incurable disease or permanent physical disability, and for the purpose of managing and expending such moneys and other property as said corporation may receive for the above purposes, and of doing all other acts incidental to the maintenance of the charity herein described.’

By the thirteenth paragraph of the will three persons were named as trustees, to whom all the rest and residue of the testator's estate was devised in trust for the purposes therein described. By the fifth clause of this paragraph it was provided as follows:

‘All the rest and residue of the net income of my said estate, after the payment of the legacies hereinbefore recited, I direct my said trustees to pay to a corporation which shall be organized by them in the following manner and for the charitable purposes hereinafter described.’

The will then describes the manner in which and the purposes for which the corporation shall be conducted and maintained. The rest and residue of the income has been paid over to the corporation since its organization.

By the second section of the twelfth paragraph of the will of Elizabeth F. Brigham (who was a sister of Robert B. Brigham), she provided as follows:

‘I direct that all the rest, residue and remainder of the net income of my estate shall be paid to the Robert B. Brigham Hospital for Incurables of said Boston to the uses and purposes of said corporation forever. In making this disposition of my estate, I take into consideration the fact that the greater part of my property was given me by my late brother, Robert B. Brigham, and I consider it my duty to leave the same for the uses and purposes of the Hospital established under his will.’

The will devised all the rest and residue of the estate to three trustees in trust for the uses and purposes therein set forth. The plaintiff was named as one of the trustees and is now acting as such. The trustees have paid over to the hospital corporation the rest and residue of the net income of the estate as provided in the will of Elizabeth F. Brigham until this time. After describing various alleged abuses in the management of the hospital, the bill in the eleventh paragraph alleges that the plaintiff is in doubt as to his duty in the premises as a trustee, particularly as to whether he should pay over or permit the payment of the income of the trust to the hospital corporation ‘while it uses the said income or any of its funds for purposes other than those described in both said wills or in the manner hereinbefore set forth.’

The defendants severally demurred to the bill, alleging as grounds of demurrer: (1) That it is multifarious; (2) want of equity; and (3) that the plaintiff has no interest or standing to maintain it either as trustee under the will of Elizabeth F. Brigham or as a member of the hospital corporation. The case was heard before a single justice of this court who ordered an interlocutory decree to be entered sustaining the demurrers and reported the questions raised thereby for determination by this court.

The bill is multifarious. In one bill the plaintiff seeks relief against his cotrustees under the will of Elizabeth F. Brigham, and against the trustees under the will of Robert B. Brigham, on the ground that the hospital corporation is being maintained in violation of the terms of its charter and the respective wills of the donors, and also that the defendant Goldthwait, a physician, is a member of the defendant corporation and its board of directors and its executive and medical committees, and is in practical control of the corporation, and with the defendants Schirmer and Burton is exploiting the corporation for their personal advantage. The bill also alleges that the trustees under the will of Robert B. Brigham have failed to file in the probate court, as required by law, accounts of their trusteeship; that in violation of their duties they have made sales of real estate held by them as trustees; and that they have invested funds of the corporation without adequate and sufficient security. The three allegations last above referred to are matters respecting which the trustees are responsible to the probate court. The charges against Dr. Goldthwait are matters for the corporation itself or for the Attorney General to deal with. The various allegations relate to several distinct and wholly unrelated matters. It follows that the bill is multifarious. Davis v. Peabody, 170 Mass. 397, 49 N. E. 750;Saltman v. Nesson, 201 Mass. 534, 539, 88 N. E. 3;Reno v. Cotter, 236 Mass. 556, 563, 129 N. E. 300;Krauthoff v. Attorney General, 240 Mass. 88, 92, 132 N. E. 865.

G. L. c. 12, § 8, provides that the Attorney General ‘shall enforce the due application of funds given or appropriated to public charities within the commonwealth, and prevent breaches of trust in the administration thereof.’ The plaintiff and his cotrustees under the will of Elizabeth F. Brigham are trustees of a charitable trust, and it is their duty to pay over to the hospital corporation the income which they receive in accordance with the terms of the will. When the income has been so paid their duties in connection therewith are at an end. The plaintiff has no interest in the trust fund after it has been paid to the hospital, other than that of the general public. It is well settled that it is the exclusive function of the Attorney General to correct abuses in the administration of a public charity by the institution of proper proceedings. It is his duty to see that the public interests are protected and to proceed in the prosecution or to decline so to proceed as those interests may require. Sanderson v. White, 18 Pick. 328, 339,29 Am. Dec. 591;Parker v. May, 5 Cush. 336;Burbank v. Burbank, 152 Mass. 254, 25 N. E. 427,9 L. R. A. 748;Attorney General v. Bedard, 218 Mass. 378, 385, 105 N. E. 993;Crawford v. Nies, 224 Mass. 474, 490, 113 N. E. 408; Krauthoff v. Attorney General, supra.

In this connection it was said in Burbank v. Burbank, supra, at page 256 (25 N. E. 428):

‘But the law has provided a suitable officer to represent those entitled to the beneficial interests in a public charity. It has not left it to individuals to assume this duty, or even to the court to select a person for its performance. Nor can it be doubted that such a duty can be more satisfactorily performed by one acting under official responsibility than by individuals, however honorable their character and motives may be.’

The decision in Eustace v. Dickey, 240 Mass. 55, which holds at pages 85 and 86, 132 N. E. 852, that this court has jurisdiction, in the absence of the Attorney General, in a suit concerning respective powers of persons who have direct interests and duties to perform in the management of a charity, is not at variance with the general rule, hereinbefore stated. That rule has been held applicable to cases of donors or grantors of property devoted to charitable uses. Kemper v. Trustees of Lane...