President & Fellows of Harvard College v. Weld

• Decision Date: 18 May 1893
• Citation: 34 N.E. 175,159 Mass. 114
• Parties: PRESIDENT AND FELLOWS OF HARVARD COLLEGE v. WELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 114

34 N.E. 175

PRESIDENT AND FELLOWS OF HARVARD COLLEGE v. WELD.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1893

Action by the President and Fellows of Harvard College against Stephen M. Weld to enforce the specific performance of a contract for the sale of land. The defense was that the plaintiff had no power to sell. The land formerly belonged to Benjamin Bussey, and he devised it to certain trustees, "to have and to hold the same, to them and their assigns, and the survivors of them and their assigns, and to the survivor of them, his heirs, executors administrators and assigns; but in special trust and confidence to hold, manage, and dispose of the same, and the rents, income, and profits thereof, as herein directed." The will directed the trustees to pay certain annuities, and then provided as follows: "I do further order and direct that after the payment or security or payment of all the several sums of money and annuities hereby ordered to be paid by my said trustees, and after all the purposes of said trusts, so far as respects my family, and all annuities herein mentioned, shall have been secured and accomplished all the residue of said trust property and estates, real personal, and mixed, with the proceeds and accumulations thereof, shall be conveyed and transferred by my said trustees to the President and Fellows of Harvard College." Defendant obtained judgment. Plaintiff appeals. Reversed.

COUNSEL

Russell &amp Putnam, for appellant.

Lowell, Stimson & Lowell, for appellee.

OPINION

HOLMES J.

The direction in Mr. Bussey's will that certain real estate including that in question, "be not sold or alienated, but reserved for the purposes of this will," is inserted in the midst of the provision for his family and for annuitants, which are to be made or secured before the final transfer to Harvard College. It is surrounded by other directions, addressed, in terms, to the trustees, who hold only until that transfer. The reason expressed for the direction is the testator's opinion that such real estate is the safest property from which "to raise a permanent fund for the accomplishment of the purposes of my will." The trustees are authorized to let the land in question for a term not longer than 99 years, but no similar power is given to Harvard College when the land comes to its hands. In the third codicil the trustees are empowered to sell some of the land ordered...