Higginson v. Turner

• Decision Date: 30 August 1898
• Citation: 171 Mass. 586,51 N.E. 172
• Parties: HIGGINSON et al. v. TURNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 586

51 N.E. 172

HIGGINSON et al. v. TURNER.

Supreme Judicial Court of Massachusetts, Suffolk.

August 30, 1898

The following is the bill of complaint: "(1) Benjamin Franklin, late of Philadelphia, in the county of Philadelphia and state of Pennsylvania, died in said Philadelphia, on April 17, 1790. On the 17th day of July 1788, he executed his last will and testament, and on June 23, 1789, a codicil thereto; and said will and codicil were duly proved and allowed in the orphans' court in and for the city and county of Philadelphia, on April 23, 1790. A duly-authenticated copy of the will and codicil was duly filed and recorded in the registry of probate of said county of Suffolk, in this commonwealth, on March 26, 1896. (2) By said will and codicil said testator gave certain personal property to be held in trust for the benefit of the inhabitants of the town of Boston, in Massachusetts, for the uses, interests, and purposes mentioned and declared in said will, and provided that said trust estate should be managed under the direction of the selectmen of the town, united with the ministers of the oldest Episcopal, Congregational, and Presbyterian churches in that town. A copy of said will and codicil is hereto annexed. (3) The town accepted said bequest, and the executors of the will of Benjamin Franklin paid the amount thereof to the town of Boston; and thereupon until Boston became a city, in the year 1822, the trust fund was managed by the selectmen, nine in number, united with the ministers of the Old Brick Church as the first Congregational one, and the minister of King's Chapel as the first Episcopal Church, there being no Presbyterian church in the town. Said trust estate is now in this commonwealth. There are no longer any selectmen in said Boston, and there have been no such officers since the town of Boston became a city in 1822. No trustees under said will were appointed by any court in this commonwealth until March 18, 1897, and from 1822 until the 18th day of March, 1897, there was a failure of trustees of said fund. By a decree of the probate court of the county of Suffolk and commonwealth of Massachusetts, made on the 18th day of March, 1897, Henry L. Higginson, Francis C. Welch, Abraham Shuman, Charles T. Gallagher, Charles W Duane, Stopford W. Brooke, and Alexander K. MacLennan plaintiffs herein, were duly appointed trustees to manage said trust and trust fund. (4) Said trust estate now in this commonwealth, as aforesaid, amounts to a large sum, to wit, to the sum of six hundred thousand dollars, and the plaintiffs are entitled to possess and manage the same. (5) After the act incorporating Boston as a city went into effect, in 1822, and until the adoption of the revised charter of the city in 1854, the said fund was managed by the mayor and aldermen of the city, eight in number, together with the two ministers above referred to, except that, King's Chapel having ceased to be an Episcopal church, its minister was superseded as manager by the minister of Christ Church on Salem street, that being then the oldest Episcopalian church. After the adoption of the revised city charter, in 1854, the aldermen, then being twelve in number, together with the aforesaid ministers, to whom the minister of the first Presbyterian Church was at some time added, and without the mayor, acted as managers of the fund, until the year 1893; and since and including the year 1893 the aldermen, twelve in number, with the ministers of the three churches designated in Franklin's will, have acted as such managers. Different persons have acted as treasurers of the fund. Mr. William Minot was such treasurer from 1811 until 1866. In 1866, Frederick U. Tracey, then the treasurer of the city of Boston, was elected treasurer of the fund, and continued to be such treasurer until 1876, when he was succeeded in the office of treasurer by Samuel F. McCleary, who was then the city clerk. Mr. McCleary acted as treasurer of the fund, and also as city clerk, until 1885, when he ceased to be city clerk; and since that time he has acted as treasurer of the fund in his personal capacity. (6) On December 28, 1893, at a meeting of the persons acting as managers of the Franklin fund held in city hall in the city of Boston, the following persons being present, Aldermen Lee, Dever, Folsom, Fottler, Maguire, Mitchell, and Sanford, and Reverend Charles W. Duane, rector of Christ Church, the following vote was unanimously passed: 'Ordered that the sum set apart from the general Franklin fund, as due to the city of Boston, on July first, 1893, viz. three hundred and twenty-two thousand, four hundred and ninety and 20/100 dollars ($322,490.20), with its accumulations, be paid by the treasurer of the fund in January next to the city treasurer, to constitute a special fund for the purchase of land, and for the erection thereon of the Franklin Trades School and the equipment of the same; said expenditures to be made under the direction of such department as may for the time being be charged by the statutes and ordinances with the duty of erecting and furnishing public buildings in the city of Boston. The location of and plans for said school to be approved by the managers of said fund.' (7) Thereupon said McCleary paid over to Alfred T. Turner, then and now city treasurer of Boston, a large portion of said fund, to wit, the sum of three hundred and twenty-two thousand four hundred and ninety and 20/100 dollars ($322,490.20), and also certain accumulations of interest, the entire amount paid over to said Turner, amounting in all to the sum of three hundred and twenty-nine thousand three hundred and 48/100 dollars ($329,300.48); and said Turner now holds in his possession said sum, with its accumulations accruing before and after the payment thereof to him. (8) And the plaintiffs say that the vote passed on December 28, 1893, by those assuming to act as managers of the fund set forth in the sixth paragraph of this bill of complaint, was invalid and inoperative, and had no legal effect, and did not lawfully affect or dispose of said fund; and the plaintiffs say that they are entitled to the possession, management, and control of said fund and its accumulations, and have requested said Turner to pay to them the portion thereof held by him; but said Turner refused so to do, and claims to hold the same upon special trusts, of the nature whereof the plaintiffs are ignorant. The plaintiffs therefore pray: (1) That said Turner be enjoined from paying over or disposing of the fund held by him in any manner except by payment to the plaintiffs. (2) That until such...