Society for Promoting theological Education v. Attorney General

• Decision Date: 03 July 1883
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Society for Promoting Theological Education v. Attorney General & others

135 Mass. 285

Society for Promoting Theological Education v. Attorney General & others

Supreme Court of Massachusetts

July 3, 1883

Suffolk.

Decree for the plaintiff.

E. R Hoar & G. S. Hale, for the plaintiff.

C. A Welch, for the defendants.

Morton C. J. Field & W. Allen JJ., absent.

OPINION

Morton, C. J.

The principal question presented by this bill in equity is as to the construction of the codicil to the will of John D. Williams, who died in 1848, and by the codicil devised to the plaintiff two stores in Boston, to have and to hold the same to it, its successors and assigns forever, in trust "to apply from time to time all the net rents and income to the maintenance and support of such indigent students in theology, while resident at Cambridge, as shall be preparing themselves for the ministry, who shall be by said corporation deemed most meritorious and worthy of assistance, in sums not exceeding at the rate of from one hundred to one hundred and fifty dollars per annum to each student (depending on the value of money at the time), and that limited to the period of three years of such students' residence. Provided, however, that no student shall be debarred of this charity by reason of not having had a degree at a college, or being educated at any other college or embracing or entertaining any peculiar modes of faith, it being always understood he must be a Protestant." He also devised certain real estate to "the Boston Asylum and Farm School for Indigent Boys," and to the "Massachusetts General Hospital," upon certain specified trusts. The codicil then contains the following provision: "I do hereby annex to the several bequests herein before made to the Society for the Promotion of Theological Education at Cambridge, the Boston Asylum and Farm School, and to the Massachusetts General Hospital, the conditions following, to wit: that neither of said stores or warehouses so given and bequeathed as aforesaid shall be subject to sale, alienation, transfer, mortgage, pledge, lien or incumbrance, created by such corporation or corporations, their agents or creditors, and that any violation of this condition shall be considered as a renunciation or surrender of the same by such corporation in favor of my other devisees in my said will mentioned; and moreover that in case of the dissolution or insolvency of either of said corporations, or the refusal of either to accept the bequests herein made upon the terms and conditions herein expressed, or in case of accepting said bequests and afterwards applying or appropriating said rents and income to any other or different purpose or object than that hereinbefore expressed, then said bequests or devises from that time shall become null and void to all intents and purposes, so far as regards such corporation or corporations so violating the conditions aforesaid, and the said store or stores, so given and bequeathed as aforesaid, shall from thenceforward revert to and become a part of my estate, to be distributed, divided and disposed of under the provisions of my said last will and testament, in the same way and manner as if the aforegoing devises to the said three institutions or corporations before named had never been made."

It cannot be doubted that the words of this devise are apt, and sufficient to create a fee in the plaintiff. The first question in the case is, whether it creates an estate upon condition simply, or an estate upon a condition followed by a limitation over to a third person in case of a breach of the condition, that is, a conditional limitation. If the codicil had merely provided that, upon a breach of the condition, the store or stores should revert to the estate, it might have created a condition simply. But it goes further, and makes provision as to the disposal of them in case of a breach of the condition. They are to be disposed of under the provisions of the will, in the same manner as if no devises had been made to the corporation. The will disposes of the residue of his property by giving one sixth to each of two sons, and four sixths to trustees for the benefit of his other children and their descendants. The legal effect of the codicil is the same as if it had expressly provided that, "in case of a breach of the condition, I give the stores as follows, one sixth to each of my two sons George and David, and four sixths to the trustees named in my will." This is a conditional limitation.

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