AMORY v. ATTORNEY GENERAL

Devise, Construction, Charitable trust, Administration cy pres, Limitation of power of sale.

A testatrix, having by her will directed that all her real estate, consisting of an estate called Seven Oaks, should be devoted to a certain charitable use, and that the trustees should have no power to sell any part of Seven Oaks, made in a codicil the following provision: "I hereby cancel everything in my said will, which limits the charitable uses to which my real estate and other property in B. shall be put by the beneficiaries therein named and described; and I now direct that said beneficiaries may use such estate and the income of the trust fund, for all and any such purposes as shall be approved and sanctioned by the trustees holding for them," and authorized the trustees to lease or sell any portion of the real estate with the assent of the beneficiaries and to use the proceeds "for improvements or other needs of same charity." Held, that the above directions in the codicil did not mean that the fund might be used for any purpose, whether charitable or not, which the trustees might approve, but only that it might be used for such charitable uses as they approved, the words "any such purposes" referring back to the words "charitable uses."

A testatrix left an estate called Seven Oaks to the Sisters of St. Margaret, a Protestant Episcopal charitable and religious society, to be used for the maintenance of a temporary home for poor and invalid women, only so long as these sisters should choose to occupy and use it for these or similar purposes, or on the termination of such use then to any similar religious or charitable association of sisters of the Protestant Episcopal faith in the United States that will use and occupy the estate for the above named charitable purposes, and, if none such be found, then to the Massachusetts General Hospital for the above named or similar charitable purposes. The Sisters of St. Margaret, other associations of sisters and the Massachusetts General Hospital successively declined to accept the estate for the purposes named in the will. Other charitable and religious corporations, not associations of sisters or of the Protestant Episcopal church offered to accept the property and administer the trust under the terms of the will. Seven Oaks was upon the seashore, and the establishment of a seashore home was a prominent feature of the plan of the testatrix. If Seven Oaks could be sold and about a third of the proceeds invested in a house and lot at the seashore, the Sisters of St. Margaret were willing to put one of the sisters in charge of such house and to use the income of the remainder of the proceeds in carrying out the wishes of the testatrix so far as they could with this and such other funds as they could obtain. The Massachusetts General Hospital was willing, in case Seven Oaks was sold, to accept the proceeds for the purpose of applying the income in the maintenance of its Convalescent Home at Waverly, where men as well as women are admitted. Upon a bill filed by the trustees under the will for instructions, it was held, that there was a good gift to charity, that it had not failed, and that a sale was necessary, and the following scheme reported by a master was approved by the court, namely, that Seven Oaks be sold and the trustees invest the proceeds and pay the net income therefrom to the Sisters of St. Margaret to be by them devoted to their general charitable work; provided, that the trustees may invest not more than a certain sum named, in the purchase of a house and land on or near the seashore, and hold it for the sisters, whenever the trustees are satisfied, that, with the aid of the income of the remainder of the fund and such other resources as the sisters may have, the sisters are able and willing to establish and maintain there a temporary home for women in accordance with the directions in the will of the testatrix. This scheme was approved by the court on the ground, that, having money to deal with instead of land, the order of preference of beneficiaries established by the will for the land should be followed in dealing with the money.

Semble, that a provision in a will, that the trustees thereunder shall have no power to sell any part of certain land devised for a charitable use, would not be construed as an attempt to limit the power of the court to authorize a sale, even if it is possible to limit it and thus make specific land inalienable forever. Per HOLMES, C.J.

HOLMES, C.J.

The first question raised in this case is whether the trust created by the will and codicil is a good charitable trust and has not failed. It is not disputed that the object declared in the will is a good charity. Plainly it is. Then the codicil cancels everything in the will "which limits the charitable uses to which my Real Estate and other property in Braintree shall be put by the beneficiaries," and now directs "that said beneficiaries may use such Estate and the Income of the Trust Fund, for all and any such purposes as shall be approved and sanctioned by the Trustees holding for them." These words do not mean that the fund may be used for any purpose, whether charitable or not, which the trustees may approve, but only that it may be used for such charitable uses as they approve. The word "such" refers to "the charitable uses," as further appears from the authority to sell and to use the proceeds for "needs of same charity." The contrary is not argued for the heirs.

It is argued, however, that the charity has failed. The ground is that the governing intention is the actual occupation of Seven Oaks, the specific estate devised, as a temporary home, and, subject to that, that it should be occupied by the Sisters of St. Margaret or some other Protestant Episcopalian sisterhood. There is no doubt that the scheme in the will which has proved impracticable was only second in the mind of the testatrix to her general charitable intent. But if not accepted by a sisterhood, the whole property is to be conveyed by the trustees of the will to the Trustees of the Massachusetts General Hospital, "to be used for the above-named or similar charitable purposes"; and this clearly shows that the general charitable intent was not to fail with the failure of the testatrix's scheme so far as the occupation by a sisterhood is concerned. The words already quoted from the codicil tend to the same conclusion with regard to occupation of the estate, and the perusal of both documents makes it plain that, as might be expected, the creation of a charitable fund is the leading purpose expressed, and is not subordinate to or conditional upon the keeping up of the estate to which the testatrix seems so attached. Weeks v. Hobson, 150 Mass. 377, 380. Sherman v. Congregational Home Missionary Society, 176 Mass. 349, 352. It follows that the heirs can base no claim upon the master's finding that the purposes of the testatrix cannot be attained in the mode particularly described in the will and codicil, but that those purposes must be carried out, as nearly as may be, by a scheme framed under the sanction of the court.

With some hesitation we are of opinion that the scheme reported by the master should be adopted by the court. It is true that institutions can be found willing to carry out the trust, but they are not within the class mentioned by the testatrix, and the will shows the importance attached to management by a sisterhood, not only by the eleventh paragraph but by the gift to the Massachusetts General Hospital if no Protestant Episcopalian sisterhood would occupy and use the land. The doubt raised by the physician and trustees of the Hospital as to the salubrity of the spot furnishes a reason for not regretting the failure of this part of the testatrix's intent.

If the land cannot be occupied as intended by the testatrix, it is proper that it should be sold. The provision in the will that the trustees shall have no power to sell any part of Seven Oaks hardly would be construed as an attempt to limit the power of the court to authorize a sale, assuming that it is possible to limit it and thus to make specific land inalienable forever. See Stanley v. Colt, 5 Wall. 119; Mercer Home, Fisher's Appeal, 162 Penn. St. 232, 239; St. Mary Magdalen v. Attorney General, 6 H.L. Cas. 189, 205; Attorney General v. Newark-upon-Trent, 1 Hare, 395; In re Clergy Orphan Corporation, 3 Ch. 145, 154; Sugden, Law of Property as administered by the House of Lords, 535. But however this may be, the codicil authorizes and directs the trustees to sell any portion of the real estate which cannot be used advantageously; and taking this with the will we are of opinion that a sale may be made.

If a sale is to be made and the use of the place given up, a question might be raised whether the Massachusetts General Hospital is not entitled under the will. The Hospital declined the offer of the trustees, evidently on the assumption that acceptance would mean an undertaking to use the place; but it would be willing to accept money and to apply the income to its convalescent home for both sexes. We are of opinion that the construction of the will implied in its declining the offer was correct. That is to say, we are of opinion that the gift to the Hospital, although made only in the event of the failure of the desired plan, still adhered to the intent that the specific land should be kept and used. It was not an out and out gift of the property, with no other restriction than that it should be used for charity. Therefore when the occupation of the place, even by the Hospital, fails, the disposition of the proceeds is left untouched by the will except so far as the instrument affords indications of what the testatrix would have been likely to prefer in a case for which she did not provide.

Having money instead of land to deal with, we start again on a new plane, and there seems no sufficient reason why for this new fund we should not follow the order established in the will for the old. It is true that an unscrupulous beneficiary might reject the management of an estate which it was in its power to accept, because it saw a chance to get free money in place of it. But no absolute rule can be founded upon the mere possibility of fraud. The findings of the master establish that this is an honest case. By giving the expenditure of the income to the Sisters of St. Margaret, we give it into the hands which the testatrix preferred, and the scheme contemplates such a home as she wished, although in a different place, whenever the whole fund is sufficient to warrant it.

Decree accordingly.