Payne v. City of Providence

• Decision Date: 19 June 1950
• Docket Number: No. 4471.,4471.
• Citation: 182 F.2d 888
• Parties: PAYNE et al. v. CITY OF PROVIDENCE et al.
• Court: U.S. Court of Appeals — First Circuit

182 F.2d 888 (1950)

PAYNE et al. v. CITY OF PROVIDENCE et al.

No. 4471.

United States Court of Appeals First Circuit.

June 19, 1950.

Edwin H. Hastings, Providence. R. I. (Everett D. Higgins and Harold E. Staples, Providence, R. I., with him on the brief), for appellants.

James J. Corrigan, First Assistant City Solicitor, Providence, R. I. (William E. McCabe, City Solicitor, Providence, R. I., with him on the brief), for City of Providence et al., appellees.

Robert A. Coogan, Assistant Attorney General (William E. Powers, Attorney General, with him on the brief), for the Attorney General of Rhode Island, appellee.

Before MAGRUDER, Chief Judge, and CLARK¹ and WOODBURY, Circuit Judges.

CLARK, Circuit Judge.

"Feeling a strong attachment to my native Town & an ardent desire to ameliorate the condition of the poor & to contribute to their comfort & relief," Ebenezer Knight Dexter in 1824 devised this "Neck-farm" to the Town of Providence in fee simple forever, "to be appropriated to the accommodation & support of the poor of said Town in manner herein after mentioned & for no other use or purpose whatever." He then proceeded to set forth certain provisos and conditions for the erection and maintenance of suitable buildings, of which one required the erection, within twenty years after his death, of a "good permanent stone wall," eight feet high and three feet thick upon a foundation of small stones sunk two feet in the ground, to encircle his farm upon its exterior lines. These and other pertinent provisions of the Dexter will are quoted in full in the opinion of Chief Justice Sweetland for the Supreme Court of Rhode Island in City of Providence v. Payne, 47 R.I. 444, 134 A. 276, in rendering the court's decision in 1926 upon the city's bill against the Dexter heirs (the present plaintiffs) for construction of the will. It there appeared that the town, and later the city, had carried out the provisions of the will, even to the building of the ponderous wall, but that the farm could no longer be operated at a profit and the city desired to sell off, or to lease, a portion as building lots. The court considered this devise extensively, held that it created a charitable trust rather than an estate upon condition subsequent, concluded with "no hesitation" that it was not within the testator's intention that the town should sell any portion of the Neck farm or — particularly emphasizing the "massive barrier" of the wall as a "monument" disclosing his intent — lease any portion for house lots for residential purposes.

The meaning of that opinion and the extent of the adjudication then made has become the primary issue of this appeal. For the city has found it more difficult than ever to maintain this walled-in tract of 38.847 acres, mostly "vacant, unused land," as a poor farm and has brought a bill in equity in the state superior court representing that this trust for the maintenance of the poor is outmoded and inadequate and no longer useful or practical and asking for authority to sell the Neck farm free of the trust. Since the only respondent there named was the Attorney General of Rhode Island, the testator's heirs have now brought this action in the district court, accepting the city's view that the trust has failed, or is about to fail, but praying for a decree of conveyance from the city to them on the basis that the failure leads to a resulting trust of the premises in their favor. The district court accepted the view of the defendants herein — the City, Mayor, and Freemen of Providence and the State Attorney General — that the earlier decision settled both the interpretation of the will and the applicability of cy pres and hence that the plaintiffs have no standing for the relief they prayed. Accordingly it dismissed the complaint on the city's motion and denied a further motion by the plaintiffs to amend. This appeal followed.

It is the position of the plaintiffs that the only issue before the court below and here is whether the will permits of the application of the equitable doctrine of cy pres or requires a return of the property to the testator's heirs on failure of the trust and that this issue was not determined by the state supreme court in the earlier action. Consequently as they are citizens of New York and New Jersey respectively, they are entitled to seek its adjudication in the diversity jurisdiction of the federal court. And, as they urge, it must be decided, under applicable law, upon the resolving of the problem whether the testator has disclosed a "general charitable intent" beyond that for the particular purpose stated, in which event only may it be carried out cy pres, or whether he had only the specific charitable intent for the particular object, upon the failure of which there must be a resulting trust for the heirs. Gladding v. St. Matthew's Church, 25 R.I. 628, 57 A. 860, 65 L.R.A. 225, 105 Am.St. Rep. 904, 1 Ann.Cas. 537; Wood v. Trustees of Fourth Baptist Church, 26 R.I. 594, 61 A. 279; Rhode Island Hospital Trust Co. v. Williams, 50 R.I. 385, 148 A. 189, 74 A.L.R. 664, 666, with annotation at 671; 2 Restatement, Trusts, § 413, 1935. Moreover, if the will "is not entirely clear, extrinsic evidence is proper to show the circumstances under which the will was executed and testatrix's knowledge of, and relationship to, the objects of her bounty." Rhode Island Hospital Trust Co. v. Williams, supra, 50 R.I. 385, 388, 148 A. 189, 190. Hence they seek a trial at which they may introduce such evidence and have the issue thus presented adjudicated. We are constrained to agree with their contention.

It will be noted that the earlier action sought only a construction of the testator's intent without presentation at that time of any issue as to the failure of the trust. The city did then seek a power of sale or lease of a part of the premises, and lost decisively. But the plaintiffs do not assert that this settled the issue of sale upon failure of the trust. They do say that the court expressly declined to pass upon it. And the words of the opinion appear to make this quite clear. For the court has this to say:

"At the hearing some reference was made to certain changes in conditions which have resulted in a reduction of the income from the asylum property. That is a circumstance which has no bearing upon the questions before us. The superior court under its chancery powers has jurisdiction over the administration of the trust created in the testator's Neck farm. If through change in circumstances the particular mode or scheme of the testator for carrying out his primary paramount intent has failed, or has ceased to be useful, the superior court, upon evidence establishing that fact, and after full consideration of the matter, has power to modify the testator's secondary plan that his general intent may be better effectuated. By section 9, c. 303, Gen.Laws 1923, the superior court is specifically given power to make a cy pres application of property held upon charitable trust, a power which it probably would have had without such statute under its plenary jurisdiction as a court of chancery. Pell v. Mercer, 14 R.I. 412. These matters are not involved in the case before us. We are called upon to...