Norris v. Loomis

• Decision Date: 18 June 1913
• Citation: 102 N.E. 419,215 Mass. 344
• Parties: NORRIS v. LOOMIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 344

102 N.E. 419

NORRIS v. LOOMIS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 18, 1913

SYLLABUS

The material clauses of the will were as follows:

'I give my present residence 4 Lewis Ave. Arlington, Mass. for an Old Folks' Home, both male and female, of Evangelical creed, most of the furnishings of the said house to go with the house and land of said estate for the use of the old folks.'

'I give the house and land 14 Prospect St. Malden, Mass. for to be sold for funds to carry on the Old Folks' Home. If it should be sold previous, then the funds received to be used for the carrying on of the Old Folks' Home.'

'What is in the Five Cent S. Bk. School St. Boston, and also in the Union S. Bk. 216 Tremont St. Boston and the Wildey S. Bk. 52 Boylston St. Boston, Mass. I give for the carrying on of the Old Folks' Home, to be called the Tabor Home, 4 Lewis Ave. Arlington, Mass.'

'I give what is in the Arlington S. Bk. and National Bk Arlington for the Tabor Old Folks' Home.'

'What is in the Malden Trust Co., after all debts are paid, I give for to carry on the Old Folks' Home, as Maud Smith the child I mostly brought up will lose her home by my death, I wish for to have a home whenever she wishes, at the Tabor Old Folks' Home.'

COUNSEL

Arthur J. Plummer, of Boston, for petitioner.

Samuel E. Perry, of Atlantic City, N. J., and F. W. Fosdick, of Boston, for respondent.

James M. Swift, Atty. Gen., and Henry M. Hutchins, Asst. Atty Gen., for the Commonwealth.

OPINION

RUGG C.J.

There is no doubt, under the general principles of charitable trusts, of the validity of the provisions of the will of the testatrix for the establishment of an 'Old Folks' Home, both male and female, of Evangelical creed.' The relief of the poor of a particular church and the amelioration of the condition of the aged of a specified religious belief is a charitable use. Even though the gift is limited to a certain class, the number to be benefited is indefinite and the purpose has always been regarded as charitable. Attorney General v. Old South Society in Boston, 13 Allen, 474; Sohier v. Burr, 127 Mass. 221; Sears v. Attorney General, 193 Mass. 551 79 N.E. 772, 9 Ann. Cas. 1200; Masonic Education & Charity Trust v. Boston, 201 Mass. 320, 325, 87 N.E. 602; Little v. Newburyport, 210 Mass. 414, 96 N.E. 1032, Ann. Cas. 1912D, 425. The heirs at law rely upon Troutman v. De Boissiere Odd Fellows' Home, 66 Kan. 1, 71 P. 286. But we cannot follow that case, which is contrary to our own decisions and the great weight of authority. See cases in 6 Cyc. 924, 925.

The facts are that the house referred to in the will is not suitable in size or arrangement for such a home as the will of the testatrix contemplated. The entire property devoted to this charity by the will amounts to about $23,000, which it is agreed is insufficient to establish and maintain such a home, 'and it is altogether problematical and uncertain how much money will be required and how long it would take to accumulate the funds necessary for such a purpose.' It is therefore impossible at present to carry out the terms of the will precisely according to the intent of the testatrix. The questions to be decided are: First, does the gift fail? Second, shall the property be held to accumulate until sufficient in amount to establish a home? or third, shall it be administered according to the doctrine of cy pres or distributed among the heirs at law of the testatrix? The will is informal, but on the whole we are inclined to think it manifests a general charitable intent as to the founding of the Old Folks' Home, and that it is not so limited to the particular building or place as to disclose an intention that it be devoted to no other purpose. It is apparent that the testatrix intended to dispose of her entire...