Richardson v. Essex Inst.

• Decision Date: 03 March 1911
• Citation: 94 N.E. 262,208 Mass. 311
• Parties: RICHARDSON et al. v. ESSEX INSTITUTE et al. SAME v. HARVARD COLLEGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 311

94 N.E. 262

RICHARDSON et al.

v.ESSEX INSTITUTE et al.

SAME

v.HARVARD COLLEGE et al.

Supreme Judicial Court of Massachusetts, Essex.

March 3, 1911.

Report from Supreme Judicial Court, Essex County.

Petitions by Charles W. Richardson and others, executors under the will of Eliza O. Ropes, deceased, against the Essex Institute and others, and by Charles W. Richardson and others, administrators of the estate of Mary P. Ropes, deceased, against Harvard College and others, for instructions as to the construction of a will. On report to the full court upon an agreed statement of facts. Decree of probate court affirmed.

Dana Malone, Atty. Gen., and Fred T. Field, Asst, Atty. Gen., for the Attorney General.

Louis D. Brandeis, Edward F. McClennen, and Austin T. Wright, for Urbana New Church University.

MORTON, J.

The principal question in these cases is whether the gifts constitute a public charity. The Essex Institute, which was named as trustee, has declined to accept the trust. But there is nothing to show that the continuance of the trust, if there is one, was in any way dependent on the acceptance of it by the Essex Institute. And it is well settled that in such a case a charity will not be allowed to fail for want of a trustee to administer it. Fellows v. Miner, 119 Mass. 541;Hubbard v. Worcester Art Museum, 194 Mass. 280, 290, 80 N. E. 490,9 L. R. A. (N. S.) 689.

There is another preliminary question. So far as these cases are concerned, each will disposes of what was almost wholly an undivided half interest in property held by the two as tenants in common. There is no reference in either will to the other and there is no provision in either will for acquiring the remaining half interest, or any part thereof. But we think that there can be no doubt, if that is material, that a joint scheme was contemplated by the signers of the two wills. Each provided for the appointment of the same trustee, and each, with a few trifling verbal differences, made the same disposition of this portion of her estate. What the result would have been if the joint purpose had failed as to one-half of the property by reason of the incapacity of one of them to make a will, for instance, or from some other cause, we need not now consider. As the cases stand, if the gifts constitute a public charity we do not see any such impossibility of performance as to defeat it. The fact that one half of the property is or may be in the hands of one trustee and the other half in the hands of another trustee does not, it seems to us, present insuperable difficulties of administration. The probate court can appoint one or more trustees and remove them and appoint others in their stead, as circumstances and a due regard to the interests and objects of the trust may seem to require.

If the question were whether, as stated in their brief by counsel for the Urbana New Church University, ‘a bequest to the Essex Institute of an undivided half interest in a homestead to ‘stand forever as a memorial to the family of Nathaniel Ropes,’ is a valid gift to charitable uses,' we should have a great deal of difficulty in discovering anything in the gift which constituted a public charity. But while the motive of the gift was no doubt the establishment of ‘a memorial to the family of Nathaniel Ropes,’ we cannot say that the manner in which the purpose was carried into effect did not impress upon the gift the character of a...