Amory v. Attorney General

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 [105] 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 Rome 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, [1894] 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 ac [106] ceptance would mean an undertaking to use tlie 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.