Charity. Devise and Legacy. If a gift is made by will to a certain charitable, benevolent, literary or educational corporation and the gift constitutes a public charity irrespective of whether the corporation designated accepts it or not, the charity will not be allowed to fail for want of a trustee to administer it.
Each of two sisters owned a one half interest in certain real estate and personal property. Each made a will, which, without mentioning the will of the other, gave all of her property to her sister for life, and, after her sister's death, by a paragraph containing over seven hundred words which excepting for trifling variations were identical with the words used in her sister's will, gave her one half interest in the real estate and personal property above mentioned to a certain corporation for charitable purposes. After the death of both sisters, in suits in equity by the executor of the will of one and the administrator with the will annexed of the estate of the other for instructions, it was held, that there was no doubt that a joint scheme was contemplated by the two sisters, and that it was not impossible to administer the separate gifts as one public charity.
The mere fact that a gift for a charitable purpose is intended by the donor also as a private memorial to members of his family does not impair its public character or legal validity.
The owner of a house, which, although to some extent remodelled, was a good example of the architecture of the Revolutionary period, which stood in the midst of ample grounds and gardens and was furnished with many articles constituting a collection of household antiques, the house and its contents being of educational interest and value as a kind of museum and the grounds being so situated and of such character as to be adapted for use as a small park or open space and, so used, of substantial benefit to the public, by his will gave the house and grounds, gardens and contents of the house to a corporation, directing that "the house may not in the least degree be dismantled, but stand forever as a memorial to the family of" an ancestor of the testator, that it be kept open to visitors who might wish to see the collection of household antiques, with a custodian and caretaker in charge, that there be no public meetings or crowded receptions, that the gardens be used for the cultivation of what might be useful in the study of botany and that the grounds be kept open for the enjoyment of the public so far as practicable and be freely used by all students of botany whether in public or private schools. Provision was made for a possible extension of the grounds by purchase of land adjoining, and for the employment of an instructor and for free lectures in botany subject only to such rules and conditions as might be deemed necessary for the best interests of the classes. Held, that the gift was for educational and other purposes and came within the scope of what constitutes a public charity, although the motive in making it was to establish a perpetual memorial to the testator's family.
Gifts for public educational purposes constitute public charities.
MORTON, J.
The principal question in these cases is whether the gifts constitute a public charity. The Essex Institute, which was named as trustee, has declined to accept the trust. But there is nothing to show that the continuance of the trust, if there is one, was in any way dependent on the acceptance of it by the Essex Institute. And it is well settled that in such a case a charity will not be allowed to fail for want of a trustee to administer it. Fellows v. Miner, 119 Mass. 541. Hubbard v. Worcester Art Museum, 194 Mass. 280, 290.
There is another preliminary question. So far as these cases are concerned, each will disposes of what was almost wholly an undivided half interest in property held by the two as tenants in common. There is no reference in either will to the other and there is no provision in either will for acquiring the remaining half interest, or any part thereof. But we think that there can be no doubt, if that is material, that a joint scheme was contemplated by the signers of the two wills. Each provided for the appointment of the same trustee, and each, with a few trifling verbal differences, made the same disposition of this portion of her estate. What the result would have been if the joint purpose had failed as to one half of the property by reason of the incapacity of one of them to make a will, for instance, or from some other cause, we need not now consider. As the cases stand, if the gifts constitute a public charity we do not see any such impossibility of performance as to defeat it. The fact that one half of the property is or may be in the hands of one trustee and the other half in the hands of another trustee does not, it seems to us, present insuperable difficulties of administration. The Probate Court can appoint one or more trustees and remove them and appoint others in their stead, as circumstances and a due regard to the interests and objects of the trust may seem to require.
If the question were whether, as stated in their brief by counsel for the Urbana New Church University, "a bequest to the Essex Institute of an undivided half interest in a homestead to `stand forever as a memorial to the family of Nathaniel Ropes,' is a valid gift to charitable uses," we should have a great deal of difficulty in discovering anything in the gift which constituted a public charity. But while the motive of the gift was no doubt the establishment of "a memorial to the family of Nathaniel Ropes," we cannot say that the manner in which the purpose was to be carried into effect did not impress upon the gift the character of a charitable use. The mere fact that a charity is also intended as a private memorial does not impair its public character or legal validity. Jones v. Habersham, 107 U.S. 174, 189.
The will (we speak of the two as one) provides that the house shall be kept open to visitors wishing to see the collection of household antiques, though the testatrix directs that no public meetings or crowded receptions shall be held in the house, and that visitors shall not be admitted in crowds. But admission is free. So far as these directions are concerned there is nothing in them inconsistent with a public charity. It is also provided that the garden attached to the house shall be used for the cultivation of such flowers, plants, shrubs, trees, etc., as may be useful in the study of botany, and the grounds shall be kept open for the enjoyment of the public so far as practicable, and shall be freely used by all students of botany whether in public or private schools. Provision is also made for the employment of an instructor in botany in order to encourage the study of botany in Salem, and that the lectures shall be free to all subject only to such conditions and rules as may be deemed necessary for the best interests of the classes. There is likewise provision for a possible extension of the grounds by the purchase of adjoining property. In addition to the above it is found that though the house has to some extent been remodelled, it is a good example of the architecture of the Revolutionary period; and it is further found that the house and its contents, as it stands now, "would have an educational interest and value as a kind of museum"; and that "the grounds are so situated and of such character as to be adapted for use as a small public park or open space and so used would be of substantial benefit to the public."
It is well settled that gifts for public educational purposes constitute public charities (Drury v. Natick, 10 Allen, 169), and we do not see how it can be said that the gift in this case was not for educational and other purposes coming within the scope of what constitutes a public charity though the motive in making it was, as already observed, to establish a perpetual memorial to the Ropes family. Free classes for instruction in botany are provided for and a botanical garden is also provided for the free use of all students of botany whether in public schools or private classes. The gifts are none the less public and charitable because the benefits are in part to be enjoyed only by residents of Salem, if they are so limited, which we do not decide. Bartlett, petitioner, 163 Mass. 509. The house itself and its contents, it is found, have an educational value and interest as a kind of museum. There is no limit to the way in which instruction may be given or useful information may be imparted, and no rule can be laid down for all cases as to what shall or shall not be regarded as educational in the sense in which that word is used in connection with public charities. We cannot say that the maintenance of the house and its contents, as a kind of museum open to free public admission would not have such educational value as to constitute it a public charity, though if the case stood on that alone we should regard it as open to more question. In addition it is to be observed that the grounds are to be used as an open space or public park, and it is well settled that a gift for a public park constitutes a public charity. Bartlett, petitioner, supra.
The result is that we think that the decree of the Probate Court should be affirmed.
So ordered.