Winthrop v. Attorney General

• Decision Date: 24 January 1880
• Citation: 128 Mass. 258
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Robert C. Winthrop & others, trustees, v. Attorney General & another

128 Mass. 258

Robert C. Winthrop & others, trustees, v. Attorney General & another

Supreme Court of Massachusetts

January 24, 1880

Argued November 21, 1879

Suffolk.

Bill dismissed.

E. R Hoar, (C. A. Williams with him,) for the plaintiffs.

No counsel appeared for the defendants.

Morton J. Endicott, J., did not sit. Soule, J., absent.

OPINION

Morton, J.

By this bill in equity, brought against the Attorney General and the President and Fellows of Harvard College, the plaintiffs, as trustees under a deed of trust executed by the late George Peabody, seek the instructions of the court as to their right to carry into effect an agreement which they desire to make with the last-named defendant.

By the deed of trust the donor gives to the trustees "the sum of one hundred and fifty thousand dollars, to be by them and their successors held in trust, to found and maintain a Museum of American Archaeology and Ethnology in connection with Harvard University." He directs, that of this sum the trustees shall invest forty-five thousand dollars as a fund, the income of which shall be applied to forming and preserving collections of antiquities and objects relating to the earlier races of the American continent; that the income of a further sum of forty-five thousand dollars shall be applied by the trustees to the establishment and maintenance of a professorship of American Archaeology and Ethnology in Harvard University, the professor to be appointed by the authorities of the University upon the nomination of the said trustees; and that the remaining sum of sixty thousand dollars be invested and accumulated as a building fund until it shall amount to at least one hundred thousand dollars, when it may be employed in the erection of a suitable fire-proof museum building upon land of the college, which building when completed is to become the property of the college for the uses of this trust and none other. He further directs that the trustees shall keep a record of their doings, and shall annually prepare a report setting forth the condition of the trust and funds and the amount of the income received and paid out, to be presented to the president and fellows of the college. After making provisions for filling vacancies occurring in the board of trustees by death, resignation or otherwise, the donor further directs that the trustees shall have "the liberty to obtain from the Legislature an act of incorporation if they deem it desirable; to make all necessary by-laws, to appoint a treasurer, and to enter into any arrangements and agreements with the government of Harvard College, not inconsistent with the terms of this trust, which may in their opinion be expedient."

By the proposed agreement, a copy of which is set out in the bill the three trust funds are to "be invested and managed by the President and Fellows of Harvard College, through their treasurers and other financial officers and agents, as a part of the general fund of Harvard College, in such manner that there may be credited in each year to each of said three trust funds, by said corporation, such proportion of the income divided by said corporation among all the funds forming said general fund, as shall be proportionate to the ratio which the capital of each of said three trust funds in such year bears to the whole amount of all the funds forming said general fund; and that the income annually credited to the two funds first above mentioned may be annually paid to said trustees or their treasurer; and that the annual income of the third of said trust funds may be annually added by said corporation to the principal of said third trust fund, in order that the same may accumulate until such...