Attorney General v. Clark

Barker, J. While equity will enforce a valid trust, charitable or otherwise, it does not do so upon an information filed by the Attorney General, if the trust is in effect a private one, nor unless there appears to be “ some benefit to be conferred upon, or duty to be performed towards, either the public at large or some part thereof, or an indefinite class of persons.” Old South Society v. Crocker, 119 Mass. 1, 23. When the trust is for the whole public, or for some part of the public, or for an indefinite class of persons, the Attorney General is evidently the proper officer to bring the case before the court, and to represent and act for the public, or for the persons who, because they constitute an indefinite class, cannot themselves appear in person or constitute an attorney. Trusts connected with religious work have been not infrequently considered by this court, and in the case cited it was held that, while “ gifts for the erection of a house for public worship, or for the use of the ministry, may constitute a public charity, if there is no definite body, for whose use the gift was intended, capable of receiving, holding, and using it in the manner intended, . . . when there is a body, or a definite number of persons, ascertained or ascertainable, clearly pointed out by the terms of the gifts to receive, control, and enjoy its benefits, it is not a public charity, however carefully and exclusively the trust may be restricted to religious uses alone.” These principles are decisive of the present case upon the demurrer. It appears by the amended information that the Twelfth Baptist Church is an unincorporated religious society established in Boston for the purpose of maintaining religious worship in accordance with the faith and usages of the Baptist denomina [204] tian, having trustees who hold the title to the real estate occupied by the society, and who are the proper custodians of all its property. It also appears that the funds represented by the deposits in the defendant savings banks, and the amount withdrawn for legal expenses, had been raised by a building association which has now ceased to exist, by membership fees and contributions from various persons for the purpose of assisting the church to obtain funds, either for erecting a new church edifice, or for renovating and repairing the structure then occupied by it, and upon which extensive improvements are now in progress, for the expense of which the funds so raised are needed. Under the provisions of Pub. Sts. c. 39, § 9, the Twelfth Baptist Church, as an unincorporated religious society, has power to use and employ, according to its terms and conditions, any donation or gift made to it, and may sue for any right which may vest in it in consequence of such donation or gift. If then the fund now in question consists of moneys given for the purpose stated in the information, the Twelfth Baptist Church is a definite body for whose use the gift was intended, and which body is capable of receiving, holding, and using the gift in the manner intended, and which has power to sue for the right to use the fund in accordance with the purpose for which it is alleged to have been raised. The case, therefore, is not one in which it is necessary for* the Attorney General to intervene, upon the ground that those who are entitled to the benefit of the donation are incapable of asserting their own rights. Because the Twelfth Baptist Church is a definite body, capable of enforcing whatever rights it may have in the fund in controversy, the Attorney General cannot be permitted to have the disposition of the fund determined in this proceeding, which is an information brought by himself; and for this reason the demurrer was rightly sustained. Old South Society v. Crocker, ubi supra. See also Going v. Emery, 16 Pick. 107, 119; Parker v. May, 5 Cush. 336, 338; Jackson v. Phillips, 14 Allen, 539, 579; Attorney General v. Tudor Ice Co. 104 Mass. 239, 244; Attorney General v. Federal Street Meeting-House, 3 Gray, 1, 50. Pecree affirmed.