Shattuck v. Wood Mem'l Home, Inc.

• Decision Date: 01 May 1946
• Citation: 319 Mass. 444,66 N.E.2d 568
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SHATTUCK et al. .v WOOD MEMORIAL HOME, Inc., et al.

319 Mass. 444

66 N.E.2d 568

SHATTUCK et al..vWOOD MEMORIAL HOME, Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 1, 1946.

Proceeding by Mayo A. Shattuck and another, succeeding trustees under the will of Frank Wood, late of Boston, deceased, against the Wood Memorial Home, Inc., a Massachusetts charitable corporation, and others, for the restoration of assets and for an accounting, or for alternative relief. From the decree, Wood Memorial Home, Inc., and some of the others appeal.

Decree affirmed as modified.Appeal from Probate Court, Suffolk County; Dillon, Judge.

Before FIELD C. J., and LUMMUS, RONAN, WILKINS, and SPALDING, JJ.

M. A. Shattuck, W. Powers, and J. B. Dolan, all of Boston, for petitioners.

H. D. McLellan, of Boston, for executors of will of Robert F. Herrick.

R. C. Evarts, of Boston, and J. D. Hanify, of Belmont, for Wood Memorial Home, Inc.

WILKINS, Justice.

This is a petition in the Probate Court by succeeding trustees under the will of Frank Wood, late of Boston, deceased, against the respondent Wood Memorial Home, Inc., a Massachusetts charitable corporation, for the restoration of assets and for an accounting; or, in the alternative, against the respondent executors of the will of Robert F. Herrick, deceased, and against ‘the estate of Lillian Neale (Wood) Bradway, late of Pasadena, California,’ Robert F. Herrick and Lillian Neale (Wood) Bradway having been the original trustees under the will of Frank Wood, for the payment of an amount equal to the value of the property held by the corporation and the total of all sums expended by it. The Attorney General was also a party respondent. No service could be made upon representatives of the Bradway estate. The judge entered a decree, which ordered the corporation ‘to restore all assets now held by it,’ and to account for its expenditures, to the petitioners. The decree made no reference to the executors of the Herrick will or to the Bradway estate. The corporation and the executors of the Herrick will appealed. The judge made a report of the material facts found by him, and the evidence is reported. G.L. (Ter.Ed.) c. 215, §§ 11, 18. We are not limited to the facts found by the judge, but from the evidence may find other facts, and may draw our own inferences, whatever may have been those drawn by the judge. Lowell Bar Association v. Loeb, 315 Mass. 176, 178, 52 N.E.2d 27;Malone v. Walsh, 315 Mass. 484, 490, 53 N.E.2d 126;Counelis v. Counelis, 315 Mass. 694, 696, 54 N.E.2d 177;Cooperstein stein v. Bogas, 317 Mass. 341, 345, 58 N.E.2d 131;Jurewicz v. Jurewicz, 317 Mass. 512, 513, 58 N.E.2d 832;Ziegler v. McKinlay, 318 Mass. 765, 767, 64 N.E.2d 15. There is no question of credibility of witnesses, as the facts are undisputed. MacLennan v. MacLennan, 316 Mass. 593, 595, 55 N.E.2d 928;Kerwin v. Donaghy, 317 Mass. 559, 565, 59 N.E.2d 299. See Webber v. Rosenberg, 318 Mass. 768, 64 N.E.2d 98.

The testator died March 27, 1914. His will, which was executed January 15, 1914, and was allowed April 16, 1914, provided: ‘Nineteenth: I give, devise and bequeath to Lillian Neale Wood and Emma J. Fitz the sum of Twenty-five Thousand (25,000) dollars, but in trust nevertheless for the following purposes, namely: To safely invest and reinvest the same and to pay over the net income therefrom for the benefit of the Children's Home located on North Street, Walpole, Massachusetts, but should the said Home at any time cease to exist, I direct that said principal sum shall be paid over to the trustees named in the Twentieth clause of this my will, to be held by the said trustees in the same manner and for the same uses and purposes set forth in said Twentieth clause. Twentieth: Believing that great good can be accomplished by the establishment of a home for needy and indigent convalescents and a home for incurables, it is my desire to found such institutions in my life time, but should I for any reason fail in the accomplishment of this purpose, I hereby give, devise and bequeath to said Lillian Neale Wood and Robert F. Herrick, of Milton, Massachusetts, all my land on Morton Street in Dorchester aforesaid containing forty acres more or less, and the sum of Fifty Thousand (50,000) dollars in money, but in trust nevertheless for the following purposes, namely; To carefully and thoroughly consider the practicability of such organizations, and if, after full and careful consideration, they deem it practicable and desirable, they are to use said money in founding and establishing institutions providing a home for destitute convalescents and a home for needy incurables, or either of them, upon the land above devised on Morton Street, under such rules and regulations as they deem wise and expedient, to be known as the Convalescents Home and the Home for Incurables. * * * Should said trustees deem it inexpedient and impracticable to establish such Home or Homes as above provided, after taking time for full consideration of the matter but not to exceed three years, I hereby direct them to divide the land and money given them for said purpose among such beneficiaries of this will in such amounts as they may in their judgment deem advisable and expedient. Twenty-first: All the rest and residue of my property and estate, real, personal or mixed, of which I shall die seized and possessed or to which I may be entitled at the time of my decease, I give, devise and bequeath to the Convalescents Home and the Home for Incurables, if either or both of them are established as above provided, but should my trustees deem it inadvisable to found one or both of said Homes, then to the trustees herein-before named, to be divided among such beneficiaries herein named in such amounts as they in the exercise of their discretion may deem advisable.’

On April 16, 1914, Robert F. Herrick and Lillian Neale Wood, the testator's widow, were appointed and qualified as executors. On February 14, 1916, they qualified as trustees under the twentieth and twenty-first clauses. On February 29, 1916, the widow, who had married Charles A. Bradway, and was then known as Lillian N. Bradway, qualified as sole trustee under the nineteenth clause, Emma J. Fitz having declined to serve.

The testator in his lifetime did not found either of the ‘institutions' referred to in the twentieth clause. Before March 26, 1915, Mr. Herrick and Mrs. Wood carefully and thoroughly considered ‘the practicability of such organizations,’ and ‘after full and careful consideration’ deemed it ‘practicable and desirable’ to form a corporation to provide the homes. On that date Wood Memorial Home, Inc., was incorporated. The incorporators were Mrs. Wood, Mr. Herrick, Stewart C. Woodworth and two other law associates of Mr. Herrick, as well as Alice T. Herrick (the wife of Mr. Herrick), and Emma J. Fitz. The charter recites that the corporation was ‘for the purpose of establishing, maintaining and operating a home for incurables, and for the further purpose of establishing, maintaining and operating a home for convalescents. For the purpose of doing all or any other acts necessary or proper in connection with the foregoing purposes, provided that none of the funds or property of the corporation shall be paid to any one as dividends or profits; and for the purpose, upon the dissolution of the corporation, of transferring or conveying any or all of the property of the corporation which may be legally so transferred or conveyed to such other charitable corporation or corporations organized under the laws of Massachusetts, only as may be designated by vote of the members.’

The original board of trustees consisted of Mrs. Wood, Mr. Herrick, Mrs. Herrick, Mr. Woodworth, and Emma J. Fitz. Mrs. Wood (later Mrs. Bradway) was president from the beginning until her death in 1938. Mr. Bradway then became president. Mr. Herrick was treasurer for a time and was succeeded by Mr. Bradway, who early become a member of the board of trustees as well. Mr. and Mrs. Bradway moved to California in 1927, and in that year Edward Kronvall of Springfield become treasurer. Mr. Herrick ceased to be a member of the board of trustees in 1923. Mr. Woodworth served as secretary from the beginning. Other changes in the board and in the officers need not be recited.

On March 31, 1915, Mrs. Wood and Mr. Herrick by quitclaim deed conveyed to the corporation the testator's real estate on Morton Street. Although they had not yet qualified by giving bond, the deed described the grantors as ‘Trustees, as designated by the twentieth and twenty-first clauses of said will.’ Mrs. Wood also executed the deed in her individual capacity. The deed recited, ‘Whereas, Frank Wood of Boston, by his last will admitted to probate by the Probate Court of the County of Suffolk April 16, 1914, did by the twentieth clause of said will specifically devise to Lillian N. Wood, and Robert F. Herrick all his real estate situated on Morton Street, Dorchester, Massachusetts, in trust for the following purposes, viz:-to carefully and thoroughly consider the practicability of the foundation of a Home for Convalescents and a Home for Incurables upon the land devised on Morton Street; and Whereas, the said Lillian N. Wood and Robert F. Herrick have considered the foundation of such a Home, and have deemed it practical, and have in accordance with said will caused to be incorporated and established under the laws of Massachusetts a charitable corporation by the name of ‘Wood Memorial Home, Inc.’ for the purpose of providing a Home for Convalescents and a Home for Incurables to effectuate the intention of the testator. * * *' We treat this as a deed of the grantors as trustees. See Little v. Little, 161 Mass. 188, 202, 36 N.E. 795;Coates v. Lunt, 213 Mass. 401, 404, 100 N.E. 829;Massachusetts Institute of Technology v. Attorney General, 235 Mass. 288, 293, 294, 126 N.E. 521.

Between 1916 and June 7, 1920, the executors transferred direct to the corporation cash and...