Payne v. Superior Court for Providence County, 973

• Decision Date: 20 April 1951
• Docket Number: No. 973,973
• Citation: 78 R.I. 177,80 A.2d 159
• Parties: . M. P. Supreme Court of Rhode Island
• Court: Rhode Island Supreme Court

Page 159

80 A.2d 159

78 R.I. 177

PAYNE et al. v. SUPERIOR COURT FOR PROVIDENCE COUNTY.

M. P. No. 973.

Supreme Court of Rhode Island.

April 20, 1951.

Reargument Denied July 20, 1951.

Everett D. Higgins, Harold E. Staples and Edwin H. Hastings, all of Providence, for petitioners.

William E. Powers, Atty. Gen., Robert A. Coogan, Asst. Atty. Gen., for State.

William E. McCabe, City Solicitor, James J. Corrigan, Asst. City Sol., Providence, for City of Providence.

CONDON, Justice.

This is a petition for certiorari to review the action of a justice of the superior court in ordering petitioners to be added as parties respondent in the suit of City of Providence v. John H. Nolan, Attorney General, Equity No. 19527, after the trial justice had heard the case but before he had rendered a decision, and after another justice of that court had previously ruled that the attorney general was the only necessary and proper party respondent.

Petitioners claim that the second justice was without jurisdiction or that he exceeded his jurisdiction substantially on the grounds that the ruling of the first justice rendered the question of additional parties either res judicata or that it had established the law of the case; and also that the city, having opposed the intervention of additional parties respondent, was estopped from taking a contrary position in the same suit and asserting a wholly inconsistent contention. They also urge that by being compelled to defend the suit after it had been fully heard they would be placed at a grave disadvantage and in effect would be denied equal and impartial justice. In view of petitioners' claim coupled with the peculiar circumstances which gave rise to the city's reversal of its position in the premises we granted certiorari.

In response to the mandate of the writ the clerk of the superior court has duly made return here of all the records of the proceedings in the cause. It appears from such return that on November 13, 1947 the city of Providence, as trustee under the will of Ebenezer Knight Dexter, brought a bill in equity for the administration of the trust cy pres on the ground that it had become impracticable to carry it out in the particular manner prescribed by the testator. Relying upon its claim that this court in the case of City of Providence v. Payne, 47 R.I. 444, 134 A. 276, had found that in setting up the trust the testator had evinced a general charitable intent and that the trust was a public charity, the city brought its bill solely against the attorney general of the state as the only necessary and proper respondent in a suit for administration of a public charity cy pres. However, soon after the bill was filed in the superior court it became evident that other persons claiming a contingent interest in the event of failure of the trust were of a contrary mind.

On December 2, 1947, a group of such persons, not however including the petitioners in the case at bar, alleging themselves to be lineal descendants of Ebenezer Knight Dexter and claiming an interest in the city's suit which they should be allowed to litigate therein, petitioned the superior court for permission to intervene as parties respondent in their own behalf and in behalf of all others who might have an interest. Their petition was duly heard and denied by a justice of that court. He held substantially that the trust was a public charity; that this court had so found in City of Providence v. Payne, supra, and had indicated that the doctrine of cy pres was applicable thereto; that in a suit for the application of that doctrine the attorney general acting on behalf of the state, that is, the public, was the only necessary and proper party respondent; and therefore that the petitioners before him had no right to come in and assert their alleged rights in the pending suit but must be left to their own remedies.

A decree denying and dismissing their petition was entered on January 7, 1948. No appeal was taken therefrom and thereafter the cause was fully heard on bill, answer and oral proof before another justice of the superior court. On January 30, 1950 at the conclusion of the evidence before him he reserved decision and held the case for further consideration. In the meantime the city had become a defendant in a civil action brought by the instant petitioners in the federal district court concerning the same subject matter.

On October 21, 1948 the instant petitioners, being nonresidents and having learned of the city's suit in the superior court and the first decision therein, that the only necessary and proper party respondent in such suit was the attorney general, brought a civil action against the city and others in the United States district court for the district of Rhode Island, hereinafter called the district court. In such action they alleged that they were the sole heirs of Ebenezer Knight Dexter; that the trust under his will had failed; that the trustee has so acknowledged by its suit in the superior court in which it seeks permission to sell the land which constituted the corpus of the trust; and that therefore there arose a resulting trust to them of such land and that the city should be compelled to convey to them. The city moved to dismiss the action on the ground that the decision of this court in City of Providence v. Payne, supra, had settled the construction of the testamentary trust as a public charity to which the cy pres doctrine could be applied by the superior court where a suit for such purpose was then pending. The district court agreed with such contention and dismissed petitioners' complaint.

Petitioners appealed to the United States court of appeals for the first circuit and on June 19, 1950 said court reversed the district court and ordered it to proceed to adjudicate petitioners' claims. Payne v. City of Providence, 182 F.2d 888, 891. But in its opinion that court observed that 'the entwining of the issue here with that of cy pres (the latter belonging to the state court) suggests that integrated judicial action might, initially at least, have been desirable.' Apparently in line with that observation it then went on to say: 'This does not mean that should circumstances hereafter develop suggesting a welcome for these plaintiffs in the state court litigation and an opportunity there for the definite adjudication of their claims, the district court may not then have discretion to act. Unless or until such development occurs, the district court must proceed to adjudication without reference to the state action which, as presently proceeding, cannot bind these plaintiffs.'

In coming to its conclusion the court of appeals disagreed with the city's interpretation of this court's opinion in City of Providence v. Payne, 47 R.I. 444, 134 A. 276, namely, that the court had found that the testator had a general charitable intent. It construed the language of the opinion with reference to the nature of the trust and the application of the doctrine of cy pres thereto as merely dicta and that this court decided only the questions propounded in the bill, namely, whether the city as trustee had the power to sell or lease the land under certain conditions specifically stated and also to remove a portion of the wall around the land.

Whether the testator had such a general charitable intent is the issue which must be determined before there can be any application of the cy pres doctrine. If the controversy were to proceed in the district court that court would have to determine that question itself since the court of appeals has now held that it cannot rely on City of Providence v. Payne, supra, as an adjudication of that issue. On the other hand if the petitioners can be welcomed into the pending suit in the superior court with the opportunity to litigate their claims with definiteness and completeness, as stated in the opinion of the court of appeals, the ultimate decision as to whether or not the testator evinced a general charitable intent will rest with this court where it more appropriately belongs.

Acting upon its understanding of the opinion of the court of appeals the city hastened to obtain from the superior court a welcome for the petitioners in the pending suit in that court, notwithstanding that theretofore it had contended that the question of whether the testator had a general charitable intent was not in issue therein and that the attorney general was the only necessary party respondent. In the changed circumstances resulting from the decision of the court of appeals, however, the city was confronted with a dilemma. Either it must contest in the district court petitioners' contentions that the testator did not have a general charitable intent which is a necessary prerequisite to the application of the doctrine of cy pres to the trust or it must accede to those contentions being adjudicated in its suit in the superior court. Apparently preferring to have 'integrated judicial action,' to use the expression of the court of appeals, in the courts of this state rather than piecemeal determination in the federal and state courts, it chose to formally request a welcome for the petitioners in the state court.

On July 21, 1950 the city, ex parte and without notice to the petitioners, filed a petition in the superior court to reopen the pending equity suit and permit Mary Dexter Payne and George R. Payne to defend the same as parties respondent. On the same day the justice of the superior court, who was holding the case for decision, heard such petition ex parte and granted it. Thereupon a decree was duly entered reopening the case and providing that such new parties respondent may appear and answer or demur within twenty days from service upon them of a certified copy of the decree. Instead of appearing after such service, they filed the instant petition for...