In re President and Fellows of Harvard College

• Decision Date: 04 May 1945
• Docket Number: No. 4021.,4021.
• Citation: 149 F.2d 69
• Parties: In re PRESIDENT AND FELLOWS OF HARVARD COLLEGE.
• Court: U.S. Court of Appeals — First Circuit

149 F.2d 69 (1945)

In re PRESIDENT AND FELLOWS OF HARVARD COLLEGE.

No. 4021.

Circuit Court of Appeals, First Circuit.

May 4, 1945.

Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.

Walter A. Edwards and Edward T. Richards, both of Providence, R. I. (Edwards & Angell, of Providence, R. I., and Edward O. Proctor and Ropes, Gray, Best, Coolidge & Rugg, all of Boston, Mass., of counsel), for petitioner.

Francis D. McManus, Irving Winograd, and William E. McCabe, all of Providence, R. I., for City of Providence and Treasurer of City of Providence, intervenors.

MAGRUDER, Circuit Judge.

The case is before us upon an original petition by Harvard College for a writ of mandamus directed to the Honorable John P. Hartigan, United States District Judge for the District of Rhode Island, requiring him to vacate an order staying proceedings in a case pending before him and to hear and decide the same.

On January 28, 1942, Harvard College filed its complaint in the United States District Court for the District of Rhode Island against the City of Providence, its City Treasurer, and the Attorney General of Rhode Island. Jurisdiction was based upon diversity of citizenship, the President and Fellows of Harvard College being a corporation incorporated under the laws of the Commonwealth of Massachusetts. The complaint set forth that Charles H. Smith, a resident of the City of Providence, died on September 4, 1900, leaving a will devising and bequeathing the residue of his estate to the City of Providence in perpetual trust to apply the net income therefrom: "in the purchase and planting of trees, plants, vines, shrubs, bulbs or seeds, native or foreign, in the discretion of said Superintendent, officer, officers, or Committee, — the same to be grown in Roger Williams Park in said City of Providence, or in the additions that may hereafter be made to said Park; or in the discretion of said Superintendent of Parks or other officer or officers or Committee so designated or appointed, in the construction, improvement and equipment of green-houses in said Park; provided, however, that the income from said trust estate shall be so applied in the construction of green-houses only upon the express condition that the green-houses which may from time to time be in said Park, shall, at reasonable hours, be open to the public every day in the week."

The will further provided that if the City of Providence "shall fail for any reason at any time to apply the income from said trust estate in the manner hereinbefore provided, the said estate so given to said City by this clause of my will shall thereupon be forfeited; and in that event I give, devise and bequeath said estate, real and personal, given to said City, by this clause of my will, unto Harvard College * * *" for certain described purposes. The complaint went on to allege, as follows: "The defendant, the City of Providence, has failed to apply the net income received by it from the residuary trust estate under said will in the manner provided in and by said will, and has applied the same, or a substantial part thereof, for purposes not authorized by said will. By reason thereof said defendant has forfeited said trust estate, and the same has under the provisions of said will vested in the plaintiff."

The prayer of the complaint was that the court take an account of the principal and income received by the City of Providence under the trust; that it declare that the city "has forfeited said trust estate and the same is now vested in the plaintiff"; that it determine the date of such forfeiture and direct the defendants to pay unto the plaintiff "an amount equivalent to the sum of all moneys constituting principal or income of said trust estate in their hands and possession on said date or received by them subsequently thereto, whether heretofore or hereafter, together with such interest thereon as may lawfully be due."

On September 21, 1942, the defendants, the City of Providence and the City Treasurer, filed their answer denying generally the doing of any acts constituting a forfeiture of the trust estate.

In answer to interrogatories propounded by the defendants, Harvard College set forth the following as the facts upon which it proposed to rely on the issue of forfeiture: (1) that the city had failed to expend all net income received from the trust estate; (2) that, of the money that was expended on the park, a far higher proportion was expended for labor than could have been done if such expenditures had been confined to purposes defined in the will; (3) that part of the income had been spent for the covering of bulbs, roses, and other plants during the winter, and also for the heating of green-houses, which expenditures were in large part for purposes not authorized by the will.

On May 7, 1943, over seven months after its answer had been filed in the federal court, the City of Providence filed in the Superior Court for the State of Rhode Island for the County of Providence a bill of complaint against Harvard College, with the Attorney General of the State joined as codefendant, alleging that "the net income from the trust estate has increased to such an extent that it has become impracticable or impossible to apply the entire net income as directed by the testator `in the purchase and planting of trees, plants, vines, shrubs, bulbs or seeds, native or foreign, * * * or in the construction, improvement and equipment of greenhouses in said Park * * *' if a strict and literal construction of the language of the testator is adopted, and there may remain a surplus of such net income, as to the application of which the testator has given no direction by said will and codicil." Wherefore, the city prayed the court to construe the will and to answer certain questions formulated in the bill. The questions thus propounded may be summarized as follows: (1) May the income be applied to the payment of labor costs and the purchase of materials and supplies necessary and incidental to the purchase and planting of trees, plants, vines, shrubs, bulbs or seeds, native or foreign, in Roger Williams Park; (2) may the income be used for the payment of necessary costs for the care and maintenance of trees, plants, etc., in Roger Williams Park; (3) if the income is more than may be expended under a literal and strict construction of the will, may it be used for the general maintenance of Roger Williams Park; (4) may such excess income be used for the purchase and planting of trees, etc., and/or in the construction, improvement, and equipment of green-houses in city parks other than Roger Williams Park; (5) if any of the preceding questions is answered in the affirmative, and if there still exists excess income from the trust estate, may such excess income be expended for the payment of labor costs and the purchase of materials and supplies necessary and incidental to the purchase and planting of trees, etc., in city parks other than Roger Williams Park; (6) if there still remains surplus income, may the same be expended for the payment of necessary costs for the care and maintenance of trees, etc., in city parks other than Roger Williams Park; (7) may the city expend such excess income for materials, labor, and supplies in the general care and maintenance of city parks other than Roger Williams Park; and (8) if the answers to any or all of the above questions are in the negative, what applications shall be made of such excess income?

After the city filed the foregoing bill of complaint in the State Superior Court, Harvard College sought to remove that case to the United States District Court on the ground of diversity of citizenship. The Superior Court denied the petition for removal, whereupon Harvard College filed in the United States District Court a certified copy of the record in the case. But on July 17, 1944, Judge Hartigan ordered the case remanded to the Superior Court.

Meanwhile, on July 29, 1943, Harvard College had filed a plea in the Superior Court alleging that, because of the pendency of the complaint which it had brought in the United States District Court, the rights of the city in the trust estate were uncertain, and that, by reason of such uncertainty, the city was not entitled to a construction of the will or to instructions on the points requested; wherefore it prayed that the said suit in the Superior Court be dismissed. At the same time, Harvard College filed in the Superior Court a motion praying that further proceedings in the said suit be stayed until the issue of forfeiture raised in the suit pending in the federal district court had been determined by that court. So far as appears in the record, the said plea and the said motion are still pending in the Superior Court.

On July 17, 1944, the federal district court, upon motion of the City of Providence, entered an order staying further proceedings under the pending complaint filed by Harvard College. This order read as...