Wardens, Etc., of St. Paul's Church v. Attorney General

• Decision Date: 17 July 1895
• Citation: 41 N.E. 231,164 Mass. 188
• Parties: WARDENS, ETC., OF ST. PAUL'S CHURCH v. ATTORNEY GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 188

41 N.E. 231

WARDENS, ETC., OF ST. PAUL'S CHURCH v. ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 17, 1895

COUNSEL

J.C Gray, for wardens, etc., of St. Paul's Church.

G.C Travis, Asst. Atty. Gen., for Attorney General.

Trask & Simes, for Trinity Church.

R Olney, for F.R. Sears. J.L. Thorndike, for David Sears.

R.S. Gorham, for proprietors of St. Paul's Church.

OPINION

LATHROP, J.

This is a bill in equity, filed on August 7, 1891, to obtain the instructions of the court in relation to certain trusts created by David Sears. The defendants are the attorney general of the commonwealth, the proprietors of St Paul's Church in Boston, the surviving executor of the will of David Sears, the trustees under his will, his eldest grandson, his heirs at law, and Trinity Church. On March 1, 1821, David Sears conveyed, by six separate deeds, six pews in St. Paul's Church in Boston to the wardens and vestry of said church, and their successors in office, in trust to lease the pews, and invest the rents thereof to form a permanent fund. The deeds then provided as follows: "And the said wardens and vestry and their successors in office shall make a statement of said fund, and of the income thereof, and shall pay over to said Sears, or his nearest heir by the name of Sears, for the time being, who shall demand it, the one-half of said income, for his or her use and benefit; that is to say, any heir of said Sears, of his name, who may demand the said one-half of said income, shall be entitled to receive it, but his or her right to it shall be superseded and annulled whenever a nearer heir of the same name shall make a similar demand. And provided neither said Sears, nor any of his heirs as above, nor any person authorized by him or them, shall demand said income within six months after it shall have been due and paid over to said wardens and vestry, then the said wardens and vestry shall invest said income in stock, etc., as above, to increase and accumulate the fund aforesaid. And the remaining half of said income arising from said fund as aforesaid the said wardens and vestry shall either invest in stock, etc., as above, to increase and accumulate the fund aforesaid, or shall and may expend, from time to time, on any charitable or benevolent object or objects, in such manner and under such regulations as to their wisdom may seem advisable. It being the intention of said Sears to give to said wardens and vestry and their successors in office the uncontrolled liberty of appropriating from time to time the remaining half part of said income from said fund." On March 5, 1821, this gift was formally accepted by the plaintiffs as a gift "in trust for charitable uses." At some time previously to November 12, 1822, Mr. Sears delivered to the plaintiffs a deed (known as the "deed in the parchment envelope") bearing date March 1, 1821. By this deed he assigned to the plaintiffs, for the term of 19 years (or for his life should he not live so long), all his right, title, and interest to his half part of the income arising from the fund by this deed, and by the deeds of the pews, to be expended for sacred music. The previous deeds were referred to as deeds "in trust to form a fund for charitable and other uses." It was further declared that this deed and the previous deeds were to be operative only on the condition that the plaintiffs should be governed by the definition of the phrase "nearest heir" set out in this deed. This definition was, in general, to the effect that the eldest of male descendants should be preferred. This deed was formally accepted by the plaintiffs on January 13, 1823. On November 9, 1822, Mr. Sears made a gift of $100, to be appropriated for the foundation of the trust fund established on March 1, 1821, by the deed just referred to. This was formally accepted on November 18, 1822, by the plaintiffs as a "donation *** towards a fund for charitable uses." Up to January 1, 1824, one-half of the income of the trust fund was expended in sacred music, and the other half expended for charitable objects, or accumulated. On January 1, 1824, Mr. Sears conveyed a parcel of land adjoining the church to the plaintiffs as "actuaries of the Sears fund," "subject to the following conditions, limitations, and restrictions," namely, that one-half of the income of the fund should be paid "over to the parties being issue of said Sears," as before designated, "and provided, if at any time hereafter it should so happen, from any cause whatever, that said income cannot be so paid over, or that any of said parties should in any way be prevented, excluded, or prohibited, or should in any manner be debarred from their several successive rights, or if any of said parties as they may become successively entitled to said income from said fund and said account of said fund, should not receive the same within one year after demand thereof," then the whole fund should "be immediately forfeited to, revert to, and be reinvested in" David Sears and his heirs. Power was given to the wardens and vestry to exchange or sell the lot of land if it should be found advantageous or expedient, "provided, always, that the proceeds of such exchange or sale shall be reinvested in real estate for the use and benefit of said fund." The deed further stated that the wardens and vestry, by their acceptance, declared "that the above are the terms, conditions, limitations, and restrictions and tenure" of the said fund as understood by them in addition to, and in explanation of, the previous deeds; and that the wardens and vestry, by their acceptance, promised that half of the "remainder of said income" should be invested in buying books for a library, to be open to the proprietors of the church, to all clergymen, men of letters, and members of government, and to be used by the public generally under such rules as might be deemed expedient, "the wardens and vestry reserving the other half part of said remainder of said income to be appropriated" as expressed and authorized in the former deeds. From January 1, 1824, to February 27, 1854, the plaintiffs received the rents from the pews, and invested the same as part of the trust fund. One-half of the income thereof was, in accordance with the provisions of the deed of March 1, 1821, expended for sacred music until 1840, and thereafter it was added, by the direction of David Sears, as an accumulation to the trust fund. One quarter part of said income was expended in the purchase of books for the library, in accordance with the provisions of the deed of January 1, 1824. The remaining quarter part of said income was expended by the plaintiffs for charitable objects, or added by them as an accumulation to the fund. On May 1, 1843, David Sears executed and delivered a deed, witnessed and recorded, by which he, for himself and his heirs, "having a right of forfeiture," purported to assign to Trinity Church, in Boston, or, in certain contingencies, to the Protestant Episcopal Churches in Boston, "the contingent and conditional interest" in the fund and the real estate. The provisions of this deed will be more fully stated later. On May 10, 1847, David Sears, by a letter to the wardens and vestry of St. Paul's Church, released them from any obligation to appropriate one-quarter part of the income to the purchase of books for the "public library," and authorized them to appropriate to such purpose so much only of the income as they might deem judicious, and to apply the remainder of such part of the income in their judgment to any honorable purpose. This letter also contained a reiteration of the trust, and approved the accounts of the plaintiffs. It does not appear that this letter was acted on by the plaintiffs, except to request a deed of confirmation. On February 25, 1854, David Sears executed, and on February 27th acknowledged and delivered, a deed to the wardens and vestry in confirmation of this letter. After reciting the letter, the trusts, etc., the grantor gave certain directions as to the management of the fund, and authorized the wardens and vestry to expend the one-half part of the income of the fund in "their discretion, in such objects of utility, benevolence, or expediency as they in their judgment may from time to time see fit for the benefit of the church"; discharging them from the obligation of investing one-quarter part of the income in books, and from all responsibility as to errors, omissions, etc., as to past acts and appropriations, with the proviso that the grantees were entitled to one-half part of the income on the condition that they paid over the other half of said income to David Sears and his heirs who may demand the same, according to the provisions of the deed dated March 1, 1821, and delivered at some time before November 12, 1822, if not demanded to be accumulated according to the terms of the trust. The deed further authorized "the use of the hall originally intended for the library in the vestry building" for any purpose the wardens and vestry should see fit. The deed closed by declaring that it was to be regarded as affirmative only, and that nothing therein contained was to be so construed as to alter or diminish in any degree the rights reserved to the donor and his heirs by the original deeds, nor the tenure of the trust, nor the claims of the parties to his benefits hereafter. From February 27, 1854, to the present time, the plaintiffs have continued to receive and invest the pew rents as a part of the trust fund. No income has ever been received from the real estate. Up to April, 1860, one-half the income of the fund was accumulated, as no demand was made for it by David Sears. On that date, a demand having been made by him, and thereafter ...