Sherman v. Shaw

• Decision Date: 02 December 1922
• Citation: 243 Mass. 257,137 N.E. 374
• Parties: SHERMAN v. SHAW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 257

137 N.E. 374

SHERMAN

v.SHAW et al.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 2, 1922.

Appeal from Probate Court, Bristol County.

Proceeding by Allen Sherman, administrator de bonis non, with the will annexed, of Lizzie F. Gibbs, deceased, against Ida M. Shaw and others, for instructions as to the disposition to be made of a fund under the will of the testatrix. From the decree, the defendant named appeals. Affirmed.

The provision of the will, with respect to which the administrator desired instructions, is quoted in the opinion. The defendnat Ida M. Shaw, residuary legatee, alleged in her answer that the legacy in question was an attempt to create a public charity, and was absolutely void, and that the amount thereof fell into the residuum of the estate. The Attorney General, by answer, alleged that the gift was a valid charitable bequest, and should be administered as such, and submitted his rights to the determination of the court. The decree adjudged that a trust was created or would be implied, that the selection of the individuals to be benefited could be made by a trustee other than the executor, that the petitioner's administrator de bonis non, with the will annexed, had no authority to carry out the trust, but that on appointment of a trustee to carry out the trust and upon his qualification, the petitioner should pay over the fund to him.

Geo. F. Tucker, of Boston, and Nathan Washburn, of Middleboro, for appellant.

J. Weston Allen, Atty. Gen., and Charles R. Cabot, Asst. Atty. Gen., for the Commonwealth.

JENNEY, J.

The will of Lizzie F. Gibbs, dated May 30, 1910, and duly allowed on January 6, 1911, contained the following bequest:

‘To my executor hereinbefore named one thousand dollars to be by him applied in shares of one hundred dollars each at his discretion for the benefit and advancement of ten poor boys to be selected by him.’

The executor paid $100 to a poor boy whom he selected, and died without making any disposition of the remainder. The main question is whether the will created a valid public charitable trust.

In order to create ‘a public charity there must appear to be some benefit to be conferred upon, or duty to be performed towards, either the public at large, or some part thereof, or an indefinite class of persons.’ Old South Society v. Crocker, 119 Mass. 1, 23,20 Am. Rep. 299;Jackson v. Phillips, 14 Allen, 539, 556;Bullard v. Chandler, 149 Mass. 532, 21 N. E. 951,5 L. R. A. 104. Unquestionably the relief of poverty by a gift for the benefit and advancement of poor boys is authorized. Jackson v. Phillips, supra; Attorney General v. Trinity Church, 9 Allen, 442;Darcy v. Kelley, 153 Mass. 433, 26 N. E. 1110;Attorney General v. Goodell, 180 Mass. 538, 62 N. E. 962. However, it is strongly contended that the bequest considered as a charity is void because the amount is to be expended in shares of $100 each for ten such boys.

The bequest, being for a charitable purpose public in its nature, should be supported unless the stated limitation of its bounty is construed as rendering its beneficiaries definite and certain, and thus depriving it of the attributes necessary to create a charity as distinguished from a mere trust. Saltonstall v. Sanders, 11 Allen, 446;Nichols v. Allen, 130 Mass. 211, 39 Am. Rep. 445;In re Schouler, Petitioner, 134 Mass. 426;Kent v. Dunham, 142 Mass. 216, 7 N. E. 730,56 Am. Rep. 667;Minot v. Baker, 147 Mass. 348, 17 N. E. 839,9 Am. St. Rep. 713; Bullard v. Chandler, supra.

A limitation as to the amount to be disbursed for each person does not invalidate a bequest for charitable purposes otherwise enforceable. Theological Education Soc. v. Attorney General, 135 Mass. 285;Sears v. Attorney General, 193 Mass. 551, 79 N. E. 772,9 Ann. Cas. 1200; Attorney General v. Wax Chandlers Co., L. R. 6 H. L. 1.

The will in effect directs the executor to select poor boys, ten in number, from all such who may be in existence. No person can claim as a matter of law that he is entitled to participate. Those who are to share are not designated by reference to family, residence, organization, or otherwise; the limitation in numbers does not relate to or aid in their identification. The selection of persons to be benefited is a part of the ordinary administration of gifts of the character considered, and a specific direction as to the number ought not to strike down the bequest.

It was said by this court, in Bullard v. Chandler, supra, 149 Mass. at page 540, speaking through Devens, j.:

‘But a gift of a nature such as that of the testatrix does not cease to be a charity because certain persons are named as of the class to be assisted, or even because provision is made that a preference shall be accorded them in the distribution of her bounty. When they are thus provided for as a part of the poor who are to receive the benefit of the donation, its public object and purpose continue, and it is still invested with the character of a public charity.’

The contention that the bequest is void is mainly based upon Thomas v. Howell, L. R. 18 Eq. 198. The will of Thomas Howell contained this paragraph:

‘And I give to each of ten poor clergymen of the Church of England, whether holding benefices or not, to be selected by my friend Joseph Butterworth Owen, if alive, or, if dead, then by the acting executors or exectuor of my will, * * * £200.’

It further directed that legacies to charitable institutions, or for charitable purposes, should be paid only out of the testator's estate legaly applicable for such purposes. The case was heard before Malin, V. C., who states:

‘The only question is, whether this legacy is a charity which would come within the meaning of the Act of 9 Geo. II, c. 36. It appears that there is abundance of property to pay all the legacies, but the pure personalty is not sufficient to pay the charitable legacies. If therefore the case comes within that statute, then these legacies must be paid out of that portion of the estate which is pure personalty, and the charity legacies will have to abate.’

The reasoning of the opinion is not wholly clear; it is evident that the statute of mortmain (9 Geo. II, c. 36) played a considerable part. The Vice Chancellor thus states his conclusion:

‘I decide that these are general legacies and must be paid out of the general estate of the testator.’

Whatever may be the correct interpretation of this decision, it is certain that the legacy did not wholly fail. If it is considered as deciding that the will did not create a charity under the statute of Elizabeth (43 Eliz. c. 4), we do...