Wellesley Coll. v. Attorney Gen.

Decision Date24 May 1943
Citation49 N.E.2d 220,313 Mass. 722
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Reservation and Report from Probate Court, Norfolk County; J. F. Reynolds, Judge.

Suit by Wellesley College against the Attorney General and another for instructions as to whether petitioner is subject to the meal tax law. The Attorney General filed an answer to the effect that he submitted his rights to the determination of the court and the commissioner of corporations and taxation filed a demurrer and answer, and the demurrer was overruled and the petition was heard on the merits. The probate judge, without entering a decree, reported and reserved the suit for the determination of the Supreme Judicial Court.

Demurrer sustained.

Petition dismissed.


H. S. Davis, of Boston, for petitioner.

M. A. Westgate, Asst. Atty. Gen., for respondent.

RONAN, Justice.

This is a petition in equity filed in the Probate Court of Norfolk County by Wellesley College, which was incorporated by St.1870, c. 85, for the purpose of establishing and maintaining ‘an institution for the education of youth’ and which, pursuant to the said statute and subsequent statutes in amendment thereof, has maintained an institution for the higher education of young women. The petitioner seeks instructions as to whether or not it is subject to the provisions of St.1941, c.729, § 17, inserted in G.L.(Ter.Ed.) as c. 64B, which by section 2 imposes a tax on meals amounting to $1 or more that are ‘furnished at any restaurant, eating house, hotel, drug store, club, resort or other place at which meals or food are regularly served to the public.’ The respondents are the Attorney General and the commissioner of corporations and taxation. The former filed an answer to the effect that he submitted his rights in the matter to the determination of the court. The commissioner filed a demurrer and an answer. The demurrer was overruled, and the petition was then heard on the merits. The judge, without entering a decree, reported and reserved the suit in accordance with G.L.(Ter.Ed.) c. 215, § 13, for the determination of this court.

The college is a charitable corporation and all its property is held in trust in furtherance of the purpose for which it was organized. Harvard College v. Attorney General, 228 Mass. 396, 117 N.E. 903;Amory v. Amherst College, 229 Mass. 374, 118 N.E. 933;Massachusetts Institute of Technology v. Attorney General, 235 Mass. 288, 126 N.E. 521;Trustees of Andover Seminary v. Visitors, 253 Mass. 256, 148 N.E. 900;Judkins v. Hyannis Public Library Association, 302 Mass. 425, 19 N.E.2d 727. It has received large donations by will and otherwise. The donors in many cases have directed that the principal be invested and the income used for the general purposes of the college, while others have limited the application of the income to some particular purpose within the general objects of the college. Some gifts have been made for the benefit of the college generally and without restrictions or conditions as to the expenditure of the principal or income. Whether the gifts were made for some specified purpose of the college or unconditionally for any general purpose of the college, the petitioner holds the property in trust to carry out the terms and conditions under which it was given and accepted. Where no conditions were imposed by the donor, then it holds and must apply the property in carrying out the charitable object for which it was incorporated. Hubbard v. Worcester Art Museum, 194 Mass. 280, 80 N.E. 490, 9 L.R.A.,N.S., 689, 10 Ann.Cas. 1025;Read v. Willard Hospital, 215 Mass. 132, 102 N.E. 95, 45 L.R.A.,N.S., 574; St. Michael's Ukrainian Greek Catholic Church of Woonsocket v. St. Michael's Ukrainian Orthodox Church of Woonsocket, 288 Mass. 258, 192 N.E. 628. Nothing in this case depends on whether the college holds the property conveyed to it as owner or as trustee under a testamentary trust, as in Animal Rescue League of Boston v. Assessors of Bourne, 310 Mass. 330, 37 N.E.2d 1019, 138 A.L.R. 110, where it became necessary for the appellant to prove it was the owner within G.L.(Ter.Ed.) c. 59, § 5, Third, of the property taxed in order to show that it was entitled to an exemption.

All but fifty or sixty students live in the college dormitories. The resident students pay a fixed fee, which includes board, room and tuition. No part of this fee is allocated to any one of these three items. Board and rooms are included in the lump sum contracts made with the resident members of the faculty. Nonresident students may purchase lunch tickets and obtain luncheon in one of the dormitory dining rooms. The only person, other than students and members of the faculty, who may be served food in any of the dormitory dining rooms is one who has been invited by the head of the house, by a member of the faculty or by a resident student. Arrangements to care for such an invited guest must be made with the head of the dormitory and a slip is made out and paid for by the one who invited the guest. Over a million meals are served in the dormitory dining rooms during the year and very few include meals to guests. The college maintains a place known as the ‘Well’ where sandwiches and carbonated beverages are sold almost entirely to students, to some particular guest of theirs and other people on the campus. An effort is made to confine that service to students. The charge for food and drink served there is comparatively small and is apparently much less than $1. Three apartment houses of the college are occupied by members of the faculty and their families. Persons living in these apartments have the privilege of using the dining room in the Horton House. One must be a member of the Horton Club to dine in the Horton House. There is an annual fee of $3 for membership in this club. Persons who lease apartments for the full year may sublet their apartments during the summer, and the college may sublet apartments for the summer where they have been leased only for the academic year. Those who occupy these apartments for the summer may use the dining room in the Horton House. The college charges them a fixed weekly rate for board. During the summer vacation, various outside groups hold conferences at the college. The association holding the meeting pays a fixed daily rate for meals, room and the use of lecture halls for each person attending the conference. No meals have been served at the college since January 1, 1942, the effective date of the meal tax statute, for which a charge of $1 or more has been made. This is a temporary arrangement adopted by the college pending a determination of the question of the application of the meal tax to it.

The first question presented is whether the Probate Court had jurisdiction to decide whether the college was subject to the tax. Probate Courts are not courts of general equity jurisdiction but have conferred upon them equity jurisdiction only over such cases and matters as have been named by statutes. Sullings v. Richmond, 5 Allen 187,81 Am.Dec. 742;Abbott v. Gaskins, 181 Mass. 501, 63 N.E. 933;Jones v. Jones, 297 Mass. 198, 7 N.E.2d 1015;Lord v. Cummings, 303 Mass. 457, 22 N.E.2d 26;MacLennan v. MacLennan, 311 Mass. 709, 42 N.E.2d 838. The petitioner, however, contends that the Probate Court has power to hear and determine the petition by virtue of G.L.(Ter.Ed.) c. 215, § 6, as most recently amended by St.1939, c. 194, § 2, which, in so far as material, provides that ‘Probate courts shall have jurisdiction in equity, concurrent with the supreme judicial and superior courts, of all cases and matters relative * * * to trusts created by will or other written instrument.’ The petition, however, is not based upon any specific trust established by the will of some particular testator. The terms and provisions of no testamentary trust are set forth, and no issue is presented as to the powers and obligations of the college in reference to any such trust. Nothing whatever touching any testamentary trust is involved in the present proceeding. The contention of the petitioner is that it is seeking instructions as to its duties under the trust created by is charter, which was a written instrument. The incorporation of the college brought into being an entity that was eligible to receive and hold property in trust for the accomplishment of the objects for which it was formed. A trustee is one who holds property in trust. Am.Law Inst.Restatement: Trusts, § 3(3). The creator of a trust is ordinarily the person who conveys his property to another for the benefit of a third person, or to a charitable corporation, or who, without a conveyance, holds the property charged with a trust for the benefit of another by virtue of a declaration of trust made by the owner, or who has made a promise to another as trustee. Scott, Trusts, § 17. The transferee is not usually considered as the creator of a trust. A valid charitable trust may be created where a general charitable intent is manifested by the owner of the property, even though the person or corporation named to receive and administer the trust is incapable of taking the property. Such a trust does not fail for want of a trustee. Sherman v. Shaw, 243 Mass. 257, 137 N.E. 374;Reilly v. McGowan, 267 Mass. 268, 166 N.E. 766;Kirwin v. Attorney General, 275 Mass. 34, 175 N.E. 164. A trust is created when the owner has done enough in reference to his property to start it on its journey of transmission from him to the charitable purpose intended by him. In determining the function of a charitable trust we are more concerned with the conduct of the donor than with that of the transferee. Of course, a grantee might create a trust although the property was conveyed to him without any obligation to hold it in trust, as was the case in O'Loughlin v. Prendergast, 269 Mass. 41, 168 N.E. 96.


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