Ware v. City of Fitchburg

• Decision Date: 21 October 1908
• Parties: WARE et al. v. CITY OF FITCHBURG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 61

85 N.E. 951

WARE et al. v. CITY OF FITCHBURG et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 21, 1908

COUNSEL

Gardner K. Hudson, City Sol., for city of Fitchburg.

Charles F. Choate, Jr., for Burbank Hospital.

OPINION

SHELDON J.

In order to understand rightly the provisions of St. 1890, p 385, c. 422, it is necessary to have in mind the circumstances under which that act was passed.

Gardner S. Burbank, by his last will, had bequeathed the residue of his estate, subject to the contingency of his daughter's leaving children and to certain conditions stated in his will and codicils, to the city of Fitchburg for the founding and maintaining of a hospital. The result of this disposition was of course, upon the taking effect of the legacy, to create a charitable trust. Burbank v. Burbank, 152 Mass. 254, 255, 256, 25 N.E 427, 9 L. R. A. 748; Jackson v. Phillips, 14 Allen, 539, 551, et seq., and cases there cited. And the city of Fitchburg was made the trustee of this fund, and charged with the duty of administering it. But the testator did not do as the creator of the charitable trust considered in Cary Library v. Bliss, 151 Mass. 364, 25 N.E. 92, 7 L. R. A. 765, had done, by prescribing any particular method of administering the charity which he proposed to found. He expressly declared that he did not 'wish to embarrass this gift with provisions and restrictions, but desired that the city' should 'carefully and considerately carry' his 'plan into execution'; and he simply expressed a desire that a substantial and commodious hospital building should be erected at a cost of at least $100,000, that a moderate and reasonable charge should be made to those who were able to pay for the services to be rendered to them in the hospital, but that those who were in poverty and sickness should be received and cared for kindly and tenderly, 'without money and without price, and without regard to color or nationality.' All the details of the management of the fund were left to the untrammelled discretion of the city as trustee.

But he was of course aware of the fact that the city of Fitchburg could act as the trustee of this fund and could exercise the wide discretion which he had given to it only through the medium of its officers and agents. The charter of the city (St. 1872, p. 64, c. 81) provided in section 2 that the administration of all its 'fiscal, prudential and municipal affairs,' together with its government, should be vested in its mayor, board of aldermen and common council, and in section 12 that the city council should have care and management of all city property. Apart from the principle that the testator must be regarded as acquainted with all the general laws of this commonwealth, the presumption is strong that as a citizen of Fitchburg and the founder of this charity he was familiar with these provisions. And he knew of course that the full control over the city in its character of a municipal corporation and one of the instrumentalities of government was vested in the state; and that the Legislature at any time, at its mere will and pleasure, as it might deem to be for the public good, could alter the frame of the city government, abolish existing offices and substitute new ones, and change the duties, burdens and responsibilities and the mode of election or appointment of all its officers and agents. Stone v. Charlestown, 114 Mass. 214, 224, 228; Com. v. Plaisted, 148 Mass. 375, 383, et seq., 19 N.E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; Kingman, Petr., 153 Mass. 566, 572, 27 N.E. 778, 12 L. R. A. 417; Prince v. Crocker, 166 Mass. 347, 44 N.E. 446, 32 L. R. A. 610; Hodgdon v. Haverhill, 193 Mass. 406, 410, 79 N.E. 830. He doubtless considered that the safety of his charity was sufficiently guaranteed by the fact that it could not constitutionally be undone or destroyed, and that if the city of Fitchburg should lose its corporate existence or become by law incapable of administering the trust, the courts would preserve the existence of the charity and if necessary new trustees would be appointed for its management. Mt. Hope Cemetery v. Boston, 158 Mass. 509, 33 N.E. 695, 35 Am. St. Rep. 515; Hubbard v. Worcester Art Museum, 194 Mass. 280, 288, 80 N.E. 490, 9 L. R. A. (N. S.) 689; Montpelier v. East Montpelier, 27 Vt. 704; Id., 29 Vt. 12, 67 Am. Dec. 748.

But there were some manifest inconveniences in the administration of a trust like this by the officers of a city government, chosen for different purposes, perhaps merely for political reasons, and subject to change at every municipal election. There were, so far as appears, no officers of the city who, without interference with their other duties, could receive and manage this fund or properly carry on and administer the hospital. There was no department of the city government authorized and adapted to take charge of this matter. It may be that the mayor and the city council, under their general powers of administration could have provided for the creation of such a department and for the appointment or election of such officers; but this was not attempted to be done. Instead of this, the Legislature, acting under its general powers of control over all municipal governments, passed the statute now under consideration.

The preamble of this statute, after reciting the bequest of Mr Burbank which then amounted to more than $430,000, declares its purpose to be 'to enable the inhabitants of said city of Fitchburg to receive the benefits of said generous bequests of said testator and effectually to realize and meet the benevolent intention expressed in his said will.' For this purpose it created a corporation, by the name of the Burbank Hospital, composed of 15 citizens of Fitchburg, who are named, and who, with the mayor, the president of the common council, and the city treasurer, during the terms of their respective offices, were made the trustees of the corporation. The 15 incorporators were to fill all vacancies in their own number; and if they failed to do so, such vacancies were to be filled by the city council of Fitchburg. The third section of the statute then proceeded as follows: 'And the city of Fitchburg is hereby authorized and empowered to place in trust in the hands of the trustees of said corporation all funds, gifts and bequests, which are or may be held by it for the purpose of establishing and maintaining said hospital, especially all sums it may from time to time receive from the trustees appointed under the will of Gardner S. Burbank, late of said Fitchburg, deceased. And said corporation shall, upon the acceptance of this act by the city council as hereinafter provided, receive and hold all past and future bequests and gifts that may be made for the maintenance of said hospital, and the same shall be appropriated, held and used by said corporation for the sole use and purpose aforesaid as a trust in behalf of and for the inhabitants of said city, and to such other persons as may be permitted to enjoy the benefits of said hospital in pursuance of the provisions of said will. And said trustees shall render to the city council annually in the month of January a report of their proceedings, with a statement of the condition of the hospital, the property and funds pertaining to the same, with an accurate account of all receipts and expenditures, together with such other information or suggestions they may deem desirable or the city council may at any time require. And said trustees shall in behalf of said city carefully and considerately carry into execution the generous plan of the testator as contemplated by the said will.' It was further provided in section 7 that the trustees should safely and securely invest or hold invested the trust funds, and should have regard at all times to all the provisions of Mr. Burbank's will and his desire as expressed therein, and especially to the suggestions made by him in his will with respect to this hospital and its management, an extract from the will being quoted at length in this section. Section 9 of the statute reads in part as follows: 'Nothing in this act contained shall be held to alter or impair any trust created by said will. And the corporation hereby created, acting through its trustees and proper officers, shall be deemed the agent of said city of Fitchburg for the proper execution of all...