Hubbard v. Worcester Art Museum
| Decision Date | 27 February 1907 |
| Citation | 80 N.E. 490,194 Mass. 280 |
| Parties | HUBBARD et al. v. WORCESTER ART MUSEUM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Supreme Judicial Court, Suffolk County.
Petition by Benjamin W. Hubbard and others for leave to file an information in the nature of quo warranto against the Worcester Art Museum. Case reported. Petition dismissed.
J. Laurence Campbell, for Eleanor C. Hubbard.
John C. Gray, T. H. Gage, Jr., and Roland Gray, for respondent Art Museum.
Boyd B. Jones and Frederick P. Cabot, for Gorham Hubbard and others.
Charles A. Snow, for Benjamin W. Hubbard and others.
The is a petition brought by the heirs of Stephen Salisbury, late of Worcester, deceased, for leave to file an information in the nature of a quo warranto against the respondent, under Rev. Laws, c. 192, §§ 6-13. The Worcester Art Museum is a corporation, established under the provisions of Pub. St. 1882, c. 115 (Rev. Laws, c. 125), whose purposes, as set forth in the agreement for its organization, are By the will of Mr. Salisbury this corporation is made his residuary legatee, and if the intention of the testator is carried out, it will receive, under the will, real and personal estate amounting in value to between $2,000,000 and $3,500,000. By Rev. Laws, c. 125, § 8, such corporations are authorized to ‘hold real and personal estate to an amount not exceeding one million five hundred thousand dollars.’ By St. 1906, p. 278, c. 312, enacted after the probate of the will, the right of this respondent to hold real and personal estate was enlarged to an amount not exceeding $5,000,000. The petitioners contend that, by reason of the limitation in the statute, the gift was void; that, as heirs at law of the testator, their rights in this part of his estate became vested on the probate of the will; that St. 1906 is prospective in its operation, and does not affect the right of the respondent to hold property under this will, and that, if it were construed as applying to property devised by this will, it would be unconstitutional and void.
The statute under which the petition is brought has been considered in Goddard v. Smithett, 3 Gray, 116, in Hartnett v. Plumbers' Supply Association, 169 Mass. 229, 47 N. E. 1002,38 L. R. A. 194, and in other cases. We will assume in favor of the petitioners without deciding, that if they were right in their view of the questions of substantive law involved, it would be available to give them the remedy which the seek. We come directly to the effect of the residuary clause in the will.
The attack upon its validity may be considered from two points of view: First, in reference to the rights of testators, as against their heirs, to dispose of their property for charitable or other purposes; secondly, in reference to the provisions of the law giving this kind of corporations a right to hold property to an amount not exceeding a certain sum.
From the first point of view this gift is perfect and complete. Except for the protection of the statutory rights of a husband or wife, the power of a testator in this commonwealth to dispose of his estate by a will is unlimited. There is nothing in our law to restrain one from giving free course to his charitable inclinations, up to the last moment of his possession of a sound, disposing mind. Making charitable gifts in this commonwealth is not against public policy, and we have no legislation, such as has long existed in England, and in New York and some of the other American states, putting obstacles in the way of such testamentary acts. The only ground of objection to this part of the will is not from the point of view of the testator or of his heirs, but on account of the provision of the statute regulating the rights of corporations as to the holding of property. We must, therefore, determine the meaning and effect of this statute on which the petitioners rely.
They contend that it is by implication an absolute prohibition against the holding, at any time, in any form, for any purpose, of a greater amount of property than that stated, and that any attempt of a corporation to hold more, or of any person to put more, into the ownership of a corporation, is illegal and absolutely void. The respondent contends that this implied limitationof the right to hold is made on grounds of public policy; that it is a provision only in favor of the state, which the state may enforce or not, as it chooses; that grants or devises in excess of the amounts stated are not void, but only voidable; that third persons cannot question the validity of such grants or devises, but that they are legal so long as the state leaves them undisturbed, and, that the state may at any time by a legislative act or in some other proper way, completely waive its right of enforcement.
In interpreting the act the history of earlier kindred provisions may be helpful. At common law, corporations were authorized to acquire and hold both real and personal property without limit. Matter of McGraw, 111 N. Y. 66-84, 19 N. E. 233,2 L. R. A. 387. ‘The creation of a corporation gives to it, amongst other powers, as incident to its existence ans without any express grant of such powers, that of buying and selling.’ Banks v. Poitiaux, 3 Rand. (Va.) 136, 15 Am. Dec. 706. ‘A corporation has, from its nature, a right to purchase lands, though the charter contains no license to that purpose.’ Leazure v. Hillegas, 7 Serg. & R. (Pa.) 313. See, also, Page v. Heineberg, 40 Vt. 81, 94 Am. Dec. 378;Mallett v. Simpson, 94 N. C. 37-41, 55 Am. Rep. 595.
Under the feudal system, when land was given to a corporation, the chief lords of whom the land was held, and the king as ultimate chief lord, lost their chances of escheat, and various other rights and incidents of military tenure. During the Middle Ages, the accumulation of land in the ecclesiastical corporations was so great as to be thought a national grievance. Hence the English mortmain acts, which go back for their origin to Magna Charta, St. 9 Hen. III, c. 36, and which have continued with various modifications to this day. See St. 7 Edw. I, c. 2, St. 15 Rich. II, c. 5; Shelford on Mortmain, 2, 6, 8, 16, 25, 34, 39, 809, 812; Tyssen on Charitable Bequests, 2, 383. Under these acts the alienations were not void, so as to let in the grantors and their heirs; but they merely operated as a forfeiture which gave a right to the mesne lord and the king to enter after due inquest. This right to enter was often waived by a license in mortmain. See citations above, and Tyssen on Charitable Bequests, 383; St. 7 & 8 Wm. III, c. 37. In form these licenses commonly authorized a holding of property ‘not exceeding’ a certain value. In later years this authority sometimes has been inserted in the charter, and this limited power of purchase has, it is said, been exceeded by almost all corporations. Shelford on Mortmain, 55. See, also, pages 10, 44, 49, 56, 891; Tyssen on Charitable Bequests, 393, 394, 396.
Another act, St. 9 Geo. II, c. 36, which is usually called the ‘Mortmain Act,’ but is called by Tyssen the ‘Georgian Mortmain Act,’ is of a very different nature. One of its purposes, as declared in the preamble, is to avoid ‘improvident alienations or dispositions made by languishing or dying persons to uses called charitable uses, to take place after their deaths, to the disherison of their lawful heirs.’ Considered in reference to its purposes, it is not properly called a mortmain act. It applies only to gifts for charitable uses; and under it all such gifts, unless made as the statute allows, are absolutely void.
We never have had any real mortmain acts in Massachusetts. The nearest approach to one was the provincial statute of 28 Geo. II. Acts 1754, c. 12 (January 12, 1755); 3 Prov. Acts, p. 778. This made deacons a corporation to take gifts for charitable purposes, limited the grants to such as would produce an income not exceeding £300 a year, and provided that they should be made by deed, three months before death, and that all bequests, devises or later grants should be void. This statute related only to gifts to deacons, and was repealed by St. 1785, p. 532, c. 51 (February 20, 1786); 1 Mass. Laws, p. 282-which re-enacted a part of the law, but omitted the provision that gifts not authorized by the act should be void. Bartlet v. King, 12 Mass. 536-545,7 Am. Dec. 99. See Rev. Laws, c. 37, § 1.
The significance of this reference to English law and to our legislation is, first, that, except for this short period, we have never had in Massachusetts any legislation prohibiting charitable gifts to trustees or corporations, or providing that any kind of conveyances, devises or bequests to corporations shall be void. On the other hand, the policy of the commonwealth, as expressed both by legislation and the decisions of its courts, has been exceedingly liberal to testators and public charities. Sanderson v. White, 18 Pick. 328, 333, 334,29 Am. Dec. 591;American Academy v. Harvard College, 12 Gray, 582, 595, 596;Saltonstall v. Sanders, 11 Allen, 446;Jackson v. Phillips, 14 Allen, 539-550.Secondly, the implied limitations upon the power of corporations to hold property, which appear in numerous enactments, have been made not in the interest of grantors or devisors or their heirs, but...
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