Higginson v. Turner

Allen, J. There can be no doubt that the title to the fund now in question was at the outset in the town of Boston. The gift was to the inhabitants of the town, in trust for the purposes specified, and was to be accepted by them. It is afterwards spoken of in the codicil as the donation to the town of Boston, and again as the donation to the inhabitants of Boston. It is now well settled that a town may, in its. corporate capacity, accept a gift of real or personal estate left to it in trust for charitable purposes, and may act as trustee and execute the trust. Drury v. Natick, 10 Allen, 169, 182. Webb v. Neal, 5 Allen, 575. Nourse v. Merriam, 8 Cush. 11, 19. Green v. Putnam, 8 Cush. 21. Worcester v. Eaton, 13 Mass. 371. Vidal v. Philadelphia, 2 How. 127, 190. Dillon Mun. Corp. (4th ed.) §§ 567-573. The city of Boston is the same municipal corporation as the inhabitants of the town of Boston were. By being incorporated as a city, the identity of the municipal corporation was not lost. Property held by the inhabitants of the town in trust would pass to the city on the same trust. No action of any court was necessary in order to vest the title to such property in the city; and the same duties would rest upon the city as rested upon the town. This was clearly established in Girard v. Philadelphia, [592] 7 Wall. 1, where the granting of a new city charter and the repeal of the old one, and the enlargement of the area of the city from two square miles to nearly one hundred and twenty-nine, were held not to affect the city’s title to property held in trust, or its capacity to execute the trusts. Again, in Broughton v. Pensacola, 93 U. S. 266, it was held that rights of creditors were not lost by a change of charter, the court saying, “ It will be presumed that the Legislature intended a continued existence of the same corporation, although different powers are possessed under the new charter, and different officers administer its affairs.” See also Mobile v. Watson, 116 U. S. 289; Shapleigh v. San Angelo, 167 U. S. 646; Hill v. Kahoka, 35 Fed. Rep. 32; Devereaux v. Brownsville, 29 Fed. Rep. 742; State v. Natal, 39 La. An. 439; Amy v. Selma, 77 Ala. 103; Dillon, Mun. Corp. (4th ed.) §§ 171, 172. It is however contended by the plaintiffs that, even although the city may hold the title to the fund in trust, and be in that sense a trustee, yet the duties of the persons referred to in the will as managers are such as also to constitute them trustees, with a right of possession and control of the fund. Some of the provisions of the will tend to support this view, but an examination of the whole of the provisions relating to this bequest and to the similar bequest to the city of Philadelphia leads us to the conclusion that the managers were not intended to be trustees. After making detailed provisions in respect to the gift to Boston, Dr. Franklin says: “ All the directions herein given respecting the disposition and management of the donation to the inhabitants of Boston I would have observed respecting that to the inhabitants of Philadelphia; only as Philadelphia is incorporated, I request the corporation of that city to undertake the management agreeable to the said directions.” The distinction in his mind appears to have been that Philadelphia, being a city, could manage the fund through its existing officers or boards, while the inhabitants of the town of Boston assembled in town meeting could not well pass upon the details of the management, and hence he provides, in the first instance, that the fund “ shall be managed under the direction of the selectmen, united with the ministers of the oldest Episcopalian, Congregational, and Presbyterian churches in that town.” Afterwards he says that “ it is presumed that there [593] will always be found in Boston virtuous and benevolent citizens willing to bestow a part of their time in doing good to the rising generation by superintending and managing this institution gratis.” A provision follows that “ there may in time be more [money] than the occasions in Boston shall require, and then some may be spared to their neighboring or other towns in the said State of Massachusetts who may desire to have it, such towns engaging to pay punctually the interest and the portions of the principal annually to the Inhabitants of the Town of Boston.” And still later he adds: “ I hope, however, that if the inhabitants of the two cities should not think fit to undertake the execution they will at least accept the offer of these donations as a mark of my good will, a token of my gratitude, and a testimony of my earnest desire to be useful to them even after my departure. I wish, indeed, that they may both undertake to endeavor the execution of the project.” There could be no pretence that the corporation of Philadelphia, or any boards of officers of that city, were intended to be trustees, as distinct from the city itself ; and we think there was no intention to make the selectmen of Boston, or the three designated ministers, or the virtuous and benevolent citizens who might aid in superintending and managing the fund, or institution as it is called in the codicil, trustees of the property in a legal sense. They are nowhere called trustees. Ho provision is made for any formal appointment or succession to the title when new persons of the classes described should act as managers. Formerly, on the appointment of a new trustee, a conveyance of the property to him was necessary, but now the vesting of title without such conveyance is often provided for by statute. It may be that the founder of a trust could provide for the succession to the title without a formal conveyance; but the absence of all provision for such succession, or for any formal appointment or ascertainment of the ministers who were expected to serve, and the provision respecting the other persons who might take part in the superintendence and management, tend to negative the idea that any of the persons so designated or referred to were intended to be trustees. The case in this particular is quite different from Drury v. Natick, 10 Allen, 169, where it was expressly provided that the town should choose five trustees at the first annual [594] meeting after the decease of the testatrix, and every fifth year thereafter, who should hold office for the term of five years. In the present case, the duties of the managers, though in some respects like those usually exercised by trustees, are not such as necessarily to imply technical trusteeship. These duties bear some relation to those of visitors of a charity. The managers were probably intended to assist rather than to supplant the inhabitants of the town in the administration of the fund. It is not necessary at this time to define the extent and limits of their authority. It is enough to say that the city of Boston is the trustee, as successor to the inhabitants of the town of Boston, and that there is and has been no vacancy in the office of trustee. The Probate Court assumed to appoint the plaintiffs as trustees on the theory that there was a vacancy. It did not assume to appoint them as managers, and the statutes confer upon that court no jurisdiction to appoint such managers; and the power of a court of equity to appoint such managers, under its general jurisdiction over charities, need not now be considered. The plaintiffs assert no' title except under their appointment as trustees, and this title fails. The selectmen and the ministers were never as individuals entitled to the possession and control of the fund, as against the town ; nor are the plaintiffs entitled to such possession and control, as against the city. For these reasons, in the opinion of a majority of the court, the entry must be, Petition dismissed. * Footnotes [*] After the decision in this cause an application was filed by the plaintiffs for compensation for their services and expenses. The rescript was modified so as to read as follows: “ Petition dismissed, without costs. The application of the plaintiffs to be allowed costs as between solicitor and client out of the fund to be determined by a single justice.”