Stratton v. Physio-medical College

• Decision Date: 20 June 1889
• Citation: 21 N.E. 874,149 Mass. 505
• Parties: STRATTON et al. v. PHYSIO-MEDICAL COLLEGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 505

21 N.E. 874

STRATTON et al. v. PHYSIO-MEDICAL COLLEGE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1889

June 20, 1889

HEADNOTES

COUNSEL

A.A Ranney, for plaintiffs.

Joseph Wilby, for Physio-Medical Institute.

OPINION

HOLMES, J.

This is a bill brought by the son and widow of John Stratton to obtain a decree that one- fourth of the income of the residue under John Stratton's will, directed by him to be paid to the trustees of the Physio-Medical College of Cincinnati, Ohio, be paid to the plaintiffs on the ground that there is no such institution. The words of the will are: "One-quarter part of the net income is to be paid semi-annually to the trustees of the Physio-Medical College of Cincinnati, Ohio, to be used by the college for the promotion of the medical art, as favored and believed in by me during my lifetime, and in support of that institution, as the trustees thereof shall from time to time determine, the same to be paid to the treasurer of the institution duly authorized." The master reports that the testator supposed that there was a corporation of the name used by him, of which one Curtis, at whose instance he gave the legacy, was president or director; that there was no such corporation in existence at the testator's death but that Curtis lectured and taught, alone or with others, under that name, and that Curtis' medical school was the one meant. This school ceased to exist at Curtis' death, in 1881. The income is claimed by a corporation called the "Physio-Medical Institute." Assuming that it would be possible for that corporation to take a gift to the Physio-Medical College, (Hinckley v. Thatcher, 139 Mass. 477, 1 N.E. 840; Tucker v. Society, 7 Metc. 188, 209,) it could not do so in the absence of evidence appropriating to it a name which, on its face, denotes a different body, (Minot v. Farm School, 7 Metc. 416; Society v. Pratt, 9 Allen, 109.) But the evidence has not that effect, and the master finds that the name in the will does not mean the Physio-Medical Institute.

We do not think that the claim of this defendant had sufficient ground to warrant the allowance of its costs out of the fund.

The plaintiff has argued that the income should not be applied cy pres. The attorney general makes no argument that it should be so applied. The attempt of the Physio-Medical Institute to raise the question by an amendment to its answer was disallowed, and it did not seek to reopen the matter at the hearing before us. In the absence of argument, we see no sufficient reason for directing a scheme to be framed.

In the first place, it does not appear that the will creates a public charity. It does not purport to found an institution, as in Tainter v. Clark, 5 Allen, 66; Attorney General v. Lonsdale, 1 Sim. 105; Russell v. Allen, 107 U.S. 163, 2 S.Ct. 327,--but to give the fund to one already in existence, and having a determinate character. It would seem that Mr. Curtis' medical school in fact, and the supposed corporation in the mind of the testator, were neither of them free or public schools, as in Society v. Harriman, 125 Mass. 321, and Morville v. Fowle, 144 Mass. 109, 10 N.E. 766, (see McIntire v. Zanesville, 17 Ohio St. 352;) but were both private pecuniary enterprises, to the support of which the trustees--that is to say, the party interested--had power to apply the whole income. Such an enterprise is not a public charity, even if indirectly it serves charitable ends. Attorney General v. Hewer, 2 Vern. 387; Attorney General v. Newcombe, 14 Ves. 1, 7; Attorney General v. Haberdashers' Co., 1 Mylne & K. 420. See Drury v. Natick, 10 Allen, 169, 180; Carne v. Long, 2 De Gex. F. & J. 75, 79; Thomson v. Shakespear, 1 De Gex, F. & J. 399, 406, 408. If the will allowed the fund to be applied to purposes not charitable, the gift fails as a charity. Rotch v. Emerson, 105 Mass. 431, 433; Saltonstall v. Sanders, 11 Allen, 446, 464; Morice v. Bishop of Durham, 9 Ves. 399, 406; Ellis v. Selby, 1 Mylne & C. 286, 299.

In the next place, we think that it appears from the facts that the gift is primarily to the trustees of the college, and that the college is in another state; that the income is to be used by the college, and that the whole of it may be used for its own support, in the discretion of the trustees,--as well from the circumstances under which the will was made, that the main object is the support of the particular institution which the testator had in mind, and that the promotion in Ohio of Thomsonism--the form of medical art believed in by the testator--was to be accomplished as incidental to that object. It is immaterial to this conclusion whether the name described an existing beneficiary or not. At least, it described an institution which was supposed by the testator to exist, and of which his friend was supposed to be an officer. The testator's belief as to facts has the same effect upon the construction of his language whether his belief was right or mistaken. Then if the gift were to a public charity, and but one construction of the will, which is not too strict, probably the gift would fail upon the failure of the donee. The main doubt, if it were conceded that the gift was charitable, would arise on the question of construction. In such cases courts have gone very far in discovering and sustaining a general charitable intent, distinct from the means indicated for carrying it out, or the immediate object. Society v. Price, 1 Jones & La T. 498, 7 Ir.Eq. 260, and other cases cited in Jackson v. Phillips, 14 Allen, 539. Thus, in case of a simple gift to an institution, if the institution is in its nature, and by its name appears to be, a mere trustee or conduit for the application of its funds to charitable purposes, the gift will not fail upon failure of the donee. Winslow v. Cummings, 3 Cush. 358; Bliss v. Society, 2 Allen 334; Society v. Crocker, 119 Mass. 1, 24. See In re Maguire, L.R. 9 Eq. 632. So, a fortiori, if the objects of the charitable trust are declared by the will, and and it appears that the discretion of the particular societies named is not of the essence of the gift. Reeve v. Attorney General, 3 Hare, 191, 197; Marsh v. Attorney General, 2 Johns. & H. 61. But, if the construction of the will is settled in the sense in which ...