Worcester City Missionary Society v. Memorial Church

Knowlton, C. J. The first question of importance between the plaintiff and the' defendants is whether the will gives the plaintiff, as trustee, a right to control the disposition and man [538] agemenfc of the property of which it holds the title, or whether the deacons referred to in the will can act independently of the holder of the title in all matters involved in the care, custody and management of the property. Looking first to the real estate devised, we think it pretty plain that the deacons are to act independently in a relation of trust, in all the matters of which, under the will, they are to have the management. Although the first statement of the trust under which the plaintiff holds the property, requires the plaintiff to “ suffer and permit ” the estate “ to be under the care custody and management ” of the deacons designated, the language is imperative, and gives these deacons authority in the management of the trust estate, of which the corporation cannot deprive them. Their relation to the scheme of the testator is similar to that of the managers of the library in Cary Library v. Bliss, 151 Mass. 364, and the selectmen and ministers under the will of Dr. Franklin, as appears in the suit of Boston v. Doyle, 184 Mass. 373. As managers they stand in a relation of trust to the property whose legal title is held by another as trustee. The legacy of $5,000 given for the support of an industrial school, is bythe express terms of the will, “ to be held and managed by the same persons, as are to hold and manage the trusts in respect to said chapel.” The powers and duties of the deacons in regard to this legacy are similar to their powers and duties in regard to the chapel. • There is more room for doubt about the legacy of $20,000 given to defray “the expenses of maintaining a minister and public worship,” and if necessary to be applied “ toward rebuilding said house if destroyed.” In making this gift the testator does not in terms refer to the deacons as managers; but this is one of the trusts in respect to the chapel, mentioned in a later clause, and in reference to the methods of management it is there put in the same clause with the devise of the real estate, and is spoken of as held and managed by the same persons. The close connection of this legacy with the devise of the real estate brings us to the conclusion that the testator intended the three gifts to be held and managed by the same persons. We are therefore of opinion that the first three propositions embodied in the order and decree of the Probate Court establishing the respective rights of the plaintiff and of the deacons in the three gifts are correct. [539] Ifc is also plain that the directions in the will as to the investment of the fund of $20,000 should be literally followed by the trustees, as declared in the decree. The fifth and sixth of the instructions stated in the decree, are also correct. The requirements there stated are just and equitable, and in accordance with the decisions of this court. Parsons v. Winslow, 16 Mass. 361. New England Trust Co. v. Eaton, 140 Mass. 532, 534. Stone v. Littlefield, 151 Mass. 485. The plaintiff objects to the finding stated in the decree as a preliminary to the substantive parts of the decree, that “the trusts were established for the benefit of Memorial Church and an industrial school to be maintained therewith,” and' contends that they were established for the benefit of people in Worcester who would enjoy their privileges. Undoubtedly they were established for the benefit of the people; but as the church and the school are public charitable institutions which are acting as agencies in dispensing the charity, it is not incorrect to say that the trusts are for the benefit of these institutions. The plaintiff, in its bill, asked the court to give instructions as to whether the proper parties were joined in the suit. This is not a proper subject for instructions, but is proper for determination as a part of the procedure in the case. The finding, “That all necessary parties have been joined as respondents to the petition,” stated as a preliminary in the decree, is unnecessary ; but as it appears before that which is ordered and decreed, it is not so irregular as to call for a change of the decree. The objection to the fifth instruction is now waived as it is agreed that a loss has occurred. We perceive no such inconsistency between the present decree and the former decrees of the Probate Court in reference to this trust as should preclude the court from giving these instructions. Decree affirmed.