Charity. Devise and Legacy, Charity. Trust, Charitable. Where by a provision in a will a legacy of $5,000 is given to a certain private charitable corporation, which, although in existence at the time of the testator's death, refuses the gift and waives its claim thereto, the legacy does not vest in such corporation, nor does it lapse; but it is a valid charitable gift, and, if there is another private charitable corporation which is established and carried on for substantially the same purpose and which apparently is the only such private institution in existence in the Commonwealth, a decree may be made, in a bill in equity by the executor for instructions, directing that the legacy be paid to the second corporation to be held by it in trust for the same purpose for which it would have been used if the first corporation had accepted it.
SHELDON, J.
The Willard Hospital never accepted this legacy, and now waives its claim thereto. Accordingly the legacy did not vest in it, and never became its property. Ward v. Ward, 15 Pick. 511, 525. Burr v. Boston, 208 Mass. 537, 538. So the disposition thereof could not have been determined in the former suit of the Willard Hospital, in which only the assets of the plaintiff in that suit were brought in question. According to the agreement in that suit, the present question properly was left to be passed upon in this proceeding.
But the legacy did not lapse. It was given to a charitable corporation, which could apply it only for the specific charitable purpose for which the corporation had been organized, the hospital treatment of dipsomania and narcomania. It was given, and if accepted would have been taken in trust for that purpose, just as if it had been so recited in the will. Hubbard v. Worcester Art Museum, 194 Mass. 280, 290. It was a valid charitable gift; and the only difficulty is that the trustee to which it was given, though in existence at the death of the testatrix, did not accept the trust and has since ceased to exist. All that is necessary is to appoint a new trustee, as in Richards v. Church Home for Orphan Destitute Children, 213 Mass. 502.
If the cy pres doctrine were to be applied, it might be necessary to remit the case to a single justice or to a master to frame a scheme. But that is not so. All the facts have been agreed; and the case comes before us upon a reservation by the terms of which a proper decree is to be entered. The fund is small, and further expense ought to be avoided. The whole matter should be now determined, as was done in the case last cited.
The purpose for which the Washingtonian Home was established and is carried on, though described in different words, is substantially the same as was that of the Willard Hospital. Apparently it is the only private institution of which that can be said. The testatrix preferred a private institution to be the almoner of her bounty; and as there is no reason to the contrary, we respect her preference.
We see no sufficient reason for not following the usual rule as to costs and allowances.
A decree is to be entered instructing the petitioner to pay the fund to the Washingtonian Home, to be held by it in trust for the hospital treatment of dipsomania and narcomania.
So ordered.