Old Colony Trust Co. v. Third Universalist Soc. of Cambridge

• Decision Date: 13 January 1934
• Citation: 285 Mass. 146,188 N.E. 711
• Parties: OLD COLONY TRUST CO. v. THIRD UNIVERSALIST SOC. OF CAMBRIDGE et al. HOGARTH-SWANN et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 146

188 N.E. 711

OLD COLONY TRUST CO.

v.THIRD UNIVERSALIST SOC. OF CAMBRIDGE et al.

HOGARTH-SWANN et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 13, 1934.

Appeal from Probate Court, Middlesex County; Leggat, Judge.

Petitions for instructions by the Old Colony Trust Company, executor of the will of Charles F. Shourds, late of Newton, and by H. W. Hogarth-Swann and another, executors of the will of Irving H. Niles, late of Cambridge, against the Third Universalist Society of Cambridge, the Massachusetts Universalist Convention, and others. From adverse decrees entered in the Probate Court by the order of the judge, the Massachusetts Universalist Convention appeals.

Decrees affirmed.

H. L. Burnham, of Boston, stated the first case.

R. M. Robinson, of Boston, stated the second case.

R. M. Ammidon, of Boston, for Massachusetts Universalist Convention.

R. F. Barrett, of Boston, for Third Universalist Society of Cambridge.

RUGG, Chief Justice.

These two petitions raise an identical issue as to the person entitled to a legacy of a specified sum in the will of each of two distinct persons to the ‘Third Universalist Society of Cambridge,’ hereafter called the society. From the allegations of the petitions and the answers of the society, it appears that the society for a great many years prior to 1929 occupied a church in Cambridge, that in the early part of 1929 the society voted to transfer its assets to the Massachusetts Universalist Convention (hereafter called the convention), and that, pursuant to vote, the society conveyed the real estate then owned by it to the convention. It was admitted that the society is a religious corporation, organized and existing under the laws of the Commonwealth. That society contends that it is entitled to the legacy. The convention, a Massachusetts corporation, also asserts claim to the legacy. The society admits that it executed and delivered to the conventiona bill of sale of all its personal property of every kind, nature and description owned by it, whether used in the church property or located elsewhere, and that it has temporarily suspended the holding of religious services. The society has not been dissolved but continues to exist as a corporation. There is nothing in the record to indicate that any steps have been taken toward the dissolution of the society.

1. There is no doubt about the identity of the legatee. The society is precisely and accurately described in each will. It continues to exist with full corporate powers. It has not been dissolved. It is capable of accepting such legacies as here are in question without overstepping the bounds of its corporate competency. Nonuser by the corporation of its corporate powers works no forfeiture of them and does not operate as a surrender of its charter. Essex Co. v. Commonwealth, 246 Mass. 242, 248, 141 N. E. 38,Opinion of the Justices, 237 Mass. 619, 623, 131 N. E. 29. There is nothing in the record to impair the right of the society to receive the legacies. Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 475, 456 N. E. 885.

The purpose of the legacies does not appear to have failed. They are general in character and are not restricted to any special object. No question is raised on the record as to misappropriation of the legacies or failure to apply them to the general charitable uses implied by a gift to such a corporation as the society.

2. The convention offered the records of the society. There was no adequate offer to show what those records contain. In particular, there is nothing to show that the meeting of the society in question in January, 1929, was legally called, or that there were articles in the warrant for the meeting sufficient in nature to direct the attention of the members of the society to the question whether the corporation should be dissolved. Meader v. West Newbury, 256 Mass. 37, 40, 152 N. E. 315. In the absence of adequate offer of proof, there was no error in excluding the records.

If, however, it be assumed that the record of votes offered although kept by the clerk pro tempore who was not sworn (see Stebbins v. Merritt, 10 Cush. 27) was admissible, it fails to show any impairment of right by the society to receive the legacies. The votes offered went no further than to indicate a sense of the meeting to close the church doors, to give up ‘active services,’ to transfer the real and personal property of the society to the convention, and to instruct the ‘trustees' ‘to take all necessary steps for the dissolution of the society.’ Votes of this nature do not extinguish the society or weaken its right to receive legacies. Syrian Antiochean Church v. Ghize, 258 Mass. 74, 80, 81, 154 N. E. 839. There is nothing to justify the conclusion that any effective action has been taken pursuant to the alleged...