Rogers v. Attorney General

• Citation: 347 Mass. 126,196 N.E.2d 855
• Parties: Caroline S. ROGERS et al., Trustees, v. ATTORNEY GENERAL et al.
• Decision Date: 04 March 1964
• Court: United States State Supreme Judicial Court of Massachusetts

Page 855

196 N.E.2d 855

347 Mass. 126

Caroline S. ROGERS et al., Trustees, v. ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Nov. 6, 1963.

Decided March 4, 1964.

H. Erik Lund, Boston (Brooks Potter, Boston, with him), for Gardner Sutton and another, executors.

Henry D. Winslow, and Frederick H. Free, Jr., Boston, for Merchants, Nat. Bank of New Bedford and another, administrators.

William B. Welch, Salem, for Naumkeag Trust Co., trustee.

James J. Kelleher, Asst. Atty. Gen., for the Attorney General.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, and REARDON, JJ. KIRK, Justice.

This is a petition for instructions brought in the Probate Court by the trustees under the will of Catherine Johnson (Catherine) against the Attorney General, the representatives of the residuary legatees under Catherine's will, and the executor and trustee under the will of Sarah L. Phelps (Sarah). The facts now to be stated are derived from facts admitted in the pleadings and from a statement of agreed facts, indorsed by the judge as findings of fact, which incorporates by reference the wills of Catherine and Sarah. In her will and codicils, Catherine made a number of bequests and devises to individuals, both relatives and nonrelatives, as well as to specified charities. To her three closest relatives she gave the residue of her estate generally. In article SECOND she devised to certain persons 'in trust, my Homestead in said North Andover as now owned by me, to establish a home for aged women of said town, to be called 'The Johnson Home for Aged Women.' I also give and devise to the said trustees the sum of twenty thousand dollars to help support, and finish furnishing the house. These Trustees to fill all vacancies in their board, and I request that no women under sixty-five years of age, or who smokes or drinks be admitted as a member. I do not restrict as to nationality.' In article ELEVENTH she further provided: 'I give to the before mentioned Trustees of the 'Johnson Home for Aged Women' for said home all carpets, rugs, stoves, books, tables, chairs, bureaus, crockery cooking utensils &c not mentioned in a Memorandum of even date with this will.' In 1913, four years after making the will, Catherine executed a codicil devising certain land to the 'faithful man on my farm' and providing that '[t]he seventeen acres of land on which my house stands, of course goes to the 'Old Ladies Home."

Catherine died a single woman at the age of eighty-six in 1918, nine years after making her will. The will and codicils were proved and allowed in 1918. Her brothers and sisters, all childless, had predeceased her. The homestead, situated on sixteen acres of land, was built 210 years prior to her death by one of her ancestors and has ever since remained in the Johnson family. 'The Johnson Home for Aged Women' (Johnson Home) has never been established. The property is now in nearly total disrepair, and it is impossible or impracticable to establish the home because of the inadequacy of the funds held by the trustees.

Five years after Catherine died, Sarah, who like Catherine had resided in North Andover, executed a will. She bequeathed certain sums of money to a friend and to a cemetery association for the upkeep of her family lot, and set up a trust of the residue. The trust provided a fixed income for life to a cousin, the remaining income to go to her brother for life. The brother had a right, on his request, to use the principal. Upon her brother's death, legacies were to pass to five named charities, all to be described as memorials to a named aunt and a named uncle. One of these charities was the Johnson Home. The bequest (article FIFTH, paragraph 3) reads: 'To the trustees of the Johnson Home for Aged Women in North Andover, referred to in the will of Kate Johnson, deceased, late of North Andover, the sum of Three Thousand Dollars.' This money was paid to the Johnson trustees in 1937. The market value of the investment of the money is now in excess of $11,300. After the charities were taken care of, the trustee was authorized to buy a house for Sarah's nephew and his wife.

The remaining income was to be paid to Sarah's nephew, and upon his death to his wife and their children. Upon the death of the last survivor, the principal was to be divided into four equal parts and paid over to four named charities, one being the Johnson Home. The provision relating to the home (article EIGHTH, paragraph 2) reads: 'One-fourth of said trust fund shall be paid to the Johnson Home for Aged Women provided for by the will of Kate Johnson hereinbefore mentioned, should such Home have become a reality in North Andover at said time, or if by receiving said one-fourth * * * it be possible to establish said Home; but if said Home has not been established at said time and if in the opinion of my said Trustee it cannot be properly established upon receiving the one-fourth * * * then I authorize my said trustee to pay the same to some home for the aged regardless of sex, which is situated in some section of Massachusetts not remote from North Andover, preferably away from a city or populous town, to which the aged of North Andover shall have entrance; my said Trustee having full authority to select such home for the aged as under the circumstances it thinks proper.'

In 1925 Sarah died and her will was proved and allowed.

In his answer to the present petition, the Attorney General recommended that the doctrine of cy pres be applied and that the Johnson homestead be sold, the proceeds added to the Johnson trust fund, and the fund given to the Lawrence Home for Aged People. The Lawrence Home, located in Lawrence, Massachusetts, about two and one-half miles from the Johnson property, was organized in 1895 as a public charitable organization for the purpose of furnishing a home and care for the aged of Lawrence, Methuen, North Andover, and later, of Andover. It has a housing capacity for about thirty individuals and is open to persons sixty years of age and older, of good character and disposition, and of reasonably good health. Since 1953, twenty-four of fifty-six applicants have been admitted. Although no one from North Andover resides there now, fourteen women from that town have been admitted since 1917. Only one North Andover resident has applied for admission in the last ten years. There are other institutions which care for the aged in Andover and Methuen.

The court entered a decree on October 2, 1962, instructing the petitioners (1) not to distribute any of the trust property to the residuary legatees, and (2) to present an appropriate procedure for the administration of the trust in accordance with the doctrine of cy pres. Appeals were duly filed by the trustee under Sarah's will and by the representatives of the residuary legatees under Catherine's will.

Since the pleadings and the statement of facts contain all the material facts upon which the rights of the parties are to be determined, we have before us a case stated. Caissie v. Cambridge, 317 Mass. 346, 347, 58 N.E.2d 169. We may therefore draw from those facts any inferences that the trial court could have drawn. G.L. (Ter.Ed.) c. 231, § 126. Hopkins v. Hopkins, 287 Mass. 542, 545, 192 N.E. 145, 95 A.L.R. 1236. Hence, we decide the questions of law involved unaffected by the decision of the judge or by the decree entered in 1944. ¹ Adams v. American Employers Ins. Co., 292 Mass. 260, 261, 198 N.E. 147; Gar Wood Industries, Inc. v. Colonial Homes, Inc., 305 Mass. 41, 45, 24 N.E.2d 767, 126 A.L.R. 591; Fiduciary Trust Co. v. First Nat. Bank, 344 Mass. 1, 4, 181 N.E.2d 6. The standard of review is not altered by the fact that the judge, below the signatures of all counsel on the statement of agreed facts, wrote, 'The facts set forth herein are found to be the facts in the within case.' 'The case must be dealt with on the footing that all of the evidence that was before the court is contained in the agreed statement of facts.' Donahoe v. Turner, 204 Mass. 274, 275, 90 N.E. 549, 550.

Since the parties have conceded that it is impossible to comply literally with the terms of the testamentary trust created in Catherine's will, the central issue is whether the trust fund should be applied cy pres or pass to the representatives of the residuary legatees by way of a resulting trust. The basic rule, frequently applied by this court, was stated by Shaw, C. J., in American Academy of Arts & Sciences v. President, etc., of Harvard College, 12 Gray, 582, 596: 'It is now a settled rule in equity that a liberal construction is to be given to charitable donations, with a view to promote and accomplish the general charitable intent of the donor, and that such intent ought to be observed, and when this cannot be strictly and literally done, this court will cause it to be fulfilled, as nearly in conformity with the intent of the donor as practicable.' Sanderson v. White, 18 Pick, 328, 333; Jackson v. Phillips, 14 Allen, 539, 580; Osgood v. Rogers, 186 Mass. 238, 241, 71 N.E. 306; Judkins v. Hyannis Public Library Ass'n, 302 Mass. 425, 427, 19 N.E.2d 727. 'But, if the charitable purpose is limited to a particular object, or to a particular institution, and there is no general [charitable] intent, then, if it becomes impossible to carry out the object, or the institution ceases to exist before the gift has taken effect, and possibly in more cases after it has taken effect, the doctrine of cy pres does not apply, and, in the absence of any limitation over or other provision, the legacy lapses.' Teele v. Bishop of Derry, 168 Mass. 341, 343, 47 N.E. 422, 423, 38 L.R.A. 629; Holmes v. Welch, 314 Mass. 106, 109-110, 49 N.E.2d 461; Mackey v. Bowen, 332 Mass. 167, 169-170, 124 N.E.2d 254. To ascertain whether the testatrix manifested a general charitable intent, as distinguished from an intent limited to devoting the property to a specific charitable purpose, we turn to a...