Town of Wakefield v. Attorney General

• Decision Date: 09 November 1956
• Citation: 138 N.E.2d 197,334 Mass. 632
• Parties: TOWN OF WAKEFIELD v. ATTORNEY GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 197

138 N.E.2d 197

334 Mass. 632

TOWN OF WAKEFIELD v. ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 11, 1956.

Decided Nov. 9, 1956.

William J. Lee, Town Counsel, Wakefield, for plaintiff.

George M. Poland, Boston, Hugh Morton, Asst. Atty. Gen., and Ella M. Dolan, Boston, for defendants.

Before WILKINS, C. J., and RONAN, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is a bill in equity brought in behalf of the town of Wakefield by a committee appointed at a town meeting to obtain a determination of the nature of the title of the town in the town hall premises which were given to it in 1871 by Cyrus Wakefield. The bill designated 'the heirs of Cyrus Wakefield' as the defendants. They were unknown and service of process was made by publication. They did not appear and the bill was taken as confessed against them. Twenty-one citizens and taxpayers of the town were permitted to intervene. They and the plaintiff agreed upon the facts and the suit was submitted as a case stated and the judge reported it to this court without decision. The Attorney General appeared after the facts were agreed upon and joined in the agreement.

Cryus Wakefield acquired a lot of land upon which he erected a three story brick building designed for municipal purposes. At public exercises held at the site on February 22, 1871, he turned the deed of this land over to the chairman of the selectmen. A preamble in the deed stated that he did so in consideration of his attachment for the place where he conducted his business and in recognition of the honor conferred upon him by naming the town after him and 'with the desire and intent that such portions thereof as are adapted thereto shall be from time to time devoted to use for patriotic, charitable, scientific, military, literary, aesthetic, educational, moral and religious purposes and for meetings, lectures and addresses promotive thereof; and whereas I desire to present the said land and building as a free and unrestricted gift to said Town for its acceptance.' After describing the parcel by metes and bounds the habendum read as follows: 'To Have and to Hold the same to the said Town of Wakefield to its use forever for the uses and purposes above set forth.' In concluding his speech presenting the deed and keys Wakefield stated that 'My only remaining duty * * * is to surrender to your trust and keeping, Mr. Chairman, as a representative of your fellow citizens, in this transaction, the keys of this edifice, and, virtually, the control of its future arrangements.' The chairman of the selectmen replied, 'we accept this noble structure as a sacred trust.' Another speaker stated that 'The purposes to which we trust this fine room will ever be devoted are municipal, scientific, patriotic, industrial, charitable, social and moral.' The town at the meeting of April 3, 1871, accepted the gift and had since used the building for municipal purposes although the building was partially destroyed by fire in 1950 and has not been fully restored. The town now holds $43,120.79 which it has collected from the fire insurance.

The plaintiff, the interveners, and the Attorney General agreed upon all the material facts and stipulated among them that the plaintiff's bill should be considered as a bill for a declaratory decree and that an actual controversy exists among the inhabitants of the town, some contending that the town has an absolute fee which enables it to sell the estate and convey a clear title, while others contend that the deed subjects the town to a restriction or a trust limiting its use to the purposes mentioned in the deed. The 'heirs of Cyrus Wakefield' were made defendants but no service other than by publication was made upon them. None of them appeared. If they had appeared before the court, we do not know whether they would have opposed the contention of the town that it has an unencumbered fee simple or whether they would have argued that the land was subject to a trust, conditions or restrictions. The case stated does not set forth any actual controversy between the town and the heirs of the grantor. A decree would not terminate any such controversy. The remedy by declaratory decree is not available even if the parties before the court so agree. Kilroy v. O'Connor, 324 Mass. 238, 85 N.E.2d 441; Town of Brookline v. Co-Ray Realty Co., Inc., 326 Mass. 206, 93 N.E.2d 581; Sadler v. Industrial Trust Co., 327 Mass. 10, 97 N.E.2d 169; Morgan v. Banas, 331 Mass. 694, 122 N.E.2d 369.

The heirs of the grantor were properly made parties to the suit but no service other than by publication was made upon them. They were entitled to notice of the...