Howe v. Morse

Barker, J. While the purpose of the association is to hold, use, and sell land, and the scheme of organization closely follows that of a corporation, and corporations to buy and sell land can be chartered only by special act of the Legislature, this is not a proceeding to restrain or to put an end to the usurpation of corporate franchises. Indeed, as was said in Phillips v. Blatchford, 187 Mass. 510, “ It is too late to contend that partnerships with transferable shares are illegal in this Commonwealth.” Is the trust void as creating a perpetuity, or imposing an illegal [503] restraint upon alienation ? The right of a shareholder to convey his own shares, or interests, under the trust is in no way restricted, but it is contended that illegality is found in the circumstance that no sale of the corpus of the trust, and no termination of the trust, will necessarily occur within the period of a life or lives in being at the time of the creation of the trust and twenty-one years, and that the provision that the certificate holders shall not have partition of the land, and. can compel its sale only by a three fourths vote, works an illegal restraint upon alienation. The trustees take the legal title to allow the association through its directors to manage the land and to enjoy its rents and income, and to sell the land free of trusts at the will of the association, with a further provision for the termination of the trust by vote of the association at any time after July 1,1895. Leases fpr more than five years, and sales, can be made only in accordance with an affirmative vote of three-fourths of the shares, and a like vote is necessary to terminate the trust. The substance of the situation is that the shareholders for the time being have the whole equitable estate in the corpus of the trust, and can at all times sell and transfer their equitable estates at their own pleasure; and the trustees hold the legal title in fee in trust to do with the land whatever may be required by the owners of the equitable estate, which owners have full capacity, at all times and at their own option, to require a sale of the land discharged of the trust, or the immediate termination of the trust after a period of five years and a few days, the owners of the equitable estate being a voluntary association, the beneficial interests in which are represented by shares, and the association acting by vote of the shareholders. That the directions of the association to the trustees are to be given by three fourths votes, rather than by majority votes, is immaterial, since it cannot be said that one is more improbable than the other: either is a reasonable way of declaring the will of the association, and there is no provision that a vote to sell or to end the trust must be passed within any stated period, or at all. Such a trust for the convenience of an unincorporated association in renting and selling land, under which the land is held for no other purpose, and where the income is not accumulated but [504] is distributed as it accrues, and where the land is to be sold free of trusts at the will of the association, and where the' whole equitable interest in the trust is at every moment vested absolutely in those who at that moment are shareholders, and never can become vested in any other persons save by act of the absolute owners or by operation of law upon their property, and not by force of any limitation contained in the deed of trust, the equitable interests so vested being also constantly vendible by their several owners without let or hindrance, as well as subject to their debts and passing like other property upon death by virtue not of the deed of trust but of the general laws governing the disposition of the property of decedents, withdraws no property from commerce, and is not within the reason or the terms of what is called the rule against perpetuities. The trust involves no future limitations, no restraint upon alienation, and no accumulation either of income or of principal. The provisions by which the trust fund may be at some time held for the benefit of persons not shareholders at its inception, and who may become such at a period more remote than that allowed by the rule, are not future limitations made by the trust deed in the sense in which the word “limitation” is used in speaking of the operation of the rule. If there shall ever be a shareholder other than those in whom the whole equitable estate was absolutely vested at the inception of the trust, that shareholder will not take his interest by virtue of a limitation in the trust deed, but because of his succession by virtue of the general principles of law to the property of the original shareholder. The new shareholder, with reference to the rule, is in the same situation as a person who, after the expiration of all lives which were in being when a fee or an estate tail was created, and of a further period of twenty-one years, takes the fee by the operation of the law which makes property vendible by or descendible from the owner, and not by virtue of a limitation in the instrument which created the fee. The entire ownership is never for a moment uncertain, nor unvested, and at every moment each owner can freely dispose of his property, and at each moment it can be transferred to his creditor by the ordinary processes of the law, and at each moment the trust can be terminated at the will of the owners of the equitable interest. [505] The case is not like any of those relied on by the plaintiffs. The statement that “ it is impossible to take in succession for ever without a capacity; and a capacity to take in succession cannot be without incorporation,” quoted from the case of Sutton’s Hospital, 10 Co. 26 b, is there made of a corporation administering a public charity, it being contended that the incorporation was void because the foundation was not made before the grant of the letters patent incorporating the hospital, and the statement does not import that perpetual succession cannot exist save in cases of holding by corporations. We see no proper application to the present case of the statement quoted. Carne v. Long, 2 De G. F. & J. 75, In re Dutton, 4 Ex. D. 54, and Carrier v. Price, [1891] 3 Ch. 159, were gifts to societies whose members took no personal beneficial interest in the property, which must be kept for the purposes of the society, and could not be disposed of by the members for the time being. These cases, there being no public charity, were simply private trusts, and the gifts were bad because the members of the society for the time being did not have power to alienate the estate. Gray, Perpetuities, § 409, note 2. Marsden, Perpetuities, 300. It is said that in the case of voluntary societies for whose use land is in effect held in perpetuity, as in the case of the Inns of Court, that whenever the number of the benchers to whom the fee of the land is conveyed as joint tenants is considerably reduced, the survivors cause the land to be conveyed to all the then living benchers. But the benchers are not expected to use these lands for their personal benefit. The plain purpose is to keep the lands forever for the use of the voluntary association as a society charged with certain duties and enjoying certain rights connected in a general way with the administration of the law, and which are inconsistent with any personal interest in or control over the land on the part of the individual benchers. Such cases are therefore like those already examined. So, too, the present case is clearly distinguishable from Winsor v. Mills, 157 Mass. 362. The provision in the present trust, that the shareholders are not to have any interest ol1 title in the trust property itself, and no right to call for partition, and that the share shall be personal property, is not a restraint upon alienation, since the alienation of the legal and the equitable owner [506] ships are provided for. It does not appear, and cannot be assumed, that the persons who organized the association and became its shareholders had title to the land held by the trustees. Their whole interest comes through the shares which are vendible without restraint. In Winsor v. Mills, Philbrick, who held the title, owned two undivided thirds of the land, and held the remaining undivided third in trust for Mills, under an explicit agreement that no sale or conveyance of the land, or of any part thereof, or of any interest therein, should be made by Phil-brick, his heirs or assigns, except upon the written consent of Mills, his heirs or assigns; and there was also a provision by which a part of the land might be purchased by Mills or his heirs or assigns at a specified price, at any time before the land should be otherwise sold or disposed of. These were restraints upon alienation, and were held void because they might continue too long. The purpose of the trust was to prevent the alienation of the land, and to keep it out of commerce. Neither of the owners could convey his own share in the property, and the land was intentionally tied up. We express no opinion upon the contentions that the interests of the shareholders are real estate, and that an agreement not to make partition may be open to objection under the law as to perpetuities and restraints upon alienation. These are matters which upon any theory cannot make the whole trust illegal.- A majority of the court are of opinion that the ruling at the hearing was correct, that the trusts set forth were not void as creating a perpetuity, or imposing an illegal restraint upon alienation, and that the plaintiffs are not entitled to a winding up of the trust and a sale of the property as prayed. They are entitled upon the findings of the report to an account and also to receive regular accounts in the future ; and a decree accordingly should be entered. So ordered.