Osgood v. Rogers

• Decision Date: 23 June 1904
• Citation: 71 N.E. 306,186 Mass. 238
• Parties: OSGOOD et al. v. ROGERS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

186 Mass. 238

71 N.E. 306

OSGOOD et al. v. ROGERS et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 23, 1904

COUNSEL

S. P. Haldey and J. F. Haskell, for High Street Church et al.

John J Pickman, for Rogers Hall.

Frederick H. Nash, Asst. Atty. Gen., for the Attorney General.

Chas H. Conant, for John Z. Rogers.

OPINION

MORTON, J.

This is a bill in equity by the deacons of the John Street Church of Lowell, praying to be instructed as to the disposition of a fund alleged to be held by them as trustees under and by virtue of the second clause of the will of Benjamin P. Rogers. The case was reserved for the full court by a single justice upon the bill and answers. The clause is as follows: '(2) At the death of my said Sisters & Brother I do give devise and bequeath all my interest in my said real estate in two parts to the Pastor & Deacons of High Street Church and to the Pastor & Deacons of John Street Church to be by them disposed of for the support the said churches in their religious worship to be equally divided between the said churches--by creating a permanent fund, the interest and income of which whether in the improvement of the said lands or converting the same into funded securities yielding interest thereon--to the said Pastor & Deacons of High St. Church & to the said Pastor & Deacons of John St. Church and their successors forever--the division and injoyment thereof to be in peace and harmony between the said churches.' By a previous clause the testator gave to his brother and sisters a life interest, coupled with a power of sale, in his real estate. After the death of the testator the pastors and deacons of the two churches joined in conveying their interest in the real estate to the life tenants in consideration of $6,000, one-half of which was paid to the pastor and deacons of the John Street Church, and the other half to the pastor and deacons of the High Street Church. The funds received by the pastor and deacons of the John Street Church were invested by them and known as the 'Rogers Fund,' and from time to time the income has been paid over by them to the John Street Comgregational Society, which owned the meetinghouse where the John Street Church worshiped. Most of the members of the society were also members of the church. The John Street Church has ceased to exist, and the meetinghouse has been sold, and the church and the society have both voted to discontinue religious worship, and to make proper disposition of their funds and other property. The brother and sisters of the testator have deceased; one sister (Elizabeth) dying testate, and the brother and other sister intestate, and all without issue. The only next of kin is a nephew, a son of a deceased brother. Due notice has been given to all parties interested, and they have appeared and answered.

The fund held by the complainants represents what was supposed to be the interest of the John Street Church in the bequest. No contention is made that the fund is not to be held in the same manner, and is not impressed with the same trusts, as the real estate, though it is contended by the pastor and deacons of the High Street Church that the principal of the gift was improperly divided, and that they are entitled to the whole fund. But we think that the bequest was to the...