Richards v. Church Home for Orphan & Destitute Children

Sheldon, J. This case has been reported to the full court by a single justice upon the pleadings, the agreed facts and his own findings. The statement of facts agreed gives power to draw inferences therefrom. The question is as to the bequest in the fourteenth clause of the will of Sarah E. Cazenove of two thirds of the residue of a trust fund “to the Massachusetts Hospital Life Insurance Company, to be used only, so far as the same will go, to provide free treatment for the insane in the asylum of the corporation.” This was upon its face a good charitable gift to the legatee named for the purpose specified by the testatrix. And in our opinion it sufficiently appears that by the words “the asylum of the corporation” the testatrix meant the McLean Asylum, now called the McLean Hospital, which was then and still is maintained as an asylum for the insane by the Massachusetts General Hospital. That was not merely the only charitable corporation in this Commonwealth for the treatment of the insane, but it was one with which the insurance company named as the legatee had a direct connection. The insurance company, by the terms of its charter (St. 1817, c. 180, §§ 7, 8), was obliged to pay a certain share of its profits from the insurance business to the Massachusetts General Hospital, and thus to contribute to the maintenance of this asylum. It was not wholly an inaccurate description of the asylum to call it the asylum of the insurance company; for it was the asylum, and the only asylum, which for its support might be dependent in part upon the contribution which the insurance company would be required to make. Certainly this description could be applied to no other asylum for the insane. That is enough. We have then a bequest made to a designated trustee for a definite charitable purpose; but the trustee declines to accept the bequest or to carry out the trust, and indeed has not by its charter [506] the power to do so. The trust can however as well be administered by any other trustee as by the one whom the testatrix selected. In such a case the charitable purpose should not be defeated by the failure or inability of the trustee to act, but a new trustee should be appointed to administer the trust in the manner appointed by the testatrix. It is not like the cases relied on by her next of kin, in which the charitable purposes cannot be carried out and must be either abandoned or administered on the cy pres doctrine; and those decisions are not applicable here. It is merely necessary to appoint a new trustee. The case at bar resembles more nearly Richardson v. Mullery, 200 Mass. 247, than Bowden v. Brown, 200 Mass. 269, though it differs from both of them in the fact that here the charitable purpose of the testatrix can be fully and exactly carried out by another trustee than the one nominated in the will. Under these circumstances it is eminently fitting that the legal title should be taken and the trust administered by the Massachusetts General Hospital, the owner and maintainer of the asylum in question. The finding of the single justice was not, as has been claimed by the next of kin, that the testatrix did not intend to make a gift for the benefit of the McLean Asylum, but merely that the bequest was not made to the Massachusetts General Hospital. We agree with the finding. The bequest was made to the insurance company, though in'trust for the benefit of the asylum, as has been said. It is plain, and has not been disputed, that the other one third part of this fund should be paid to the Chinch Home for Orphan and Destitute Children. The petitioner is to be instructed that one third part of this fund should be paid to the Church Home just mentioned, and two thirds thereof to the Massachusetts General Hospital; to be used only, so far as it will go, to provide free treatment for the insane in the McLean Asylum or Hospital. Decree accordingly.