Long v. Simmons Female College

Sheldon, J. This case very probably might have been disposed of on the ground of the loches appearing on the face of the bill. But we prefer to deal with it on the merits. The fundamental contention of the plaintiffs is that the part of the decree of the Probate Court which, after authorizing the giving of the mortgage by the trustees, directed them to reserve a stated portion of the income of the property as a fund for the payment of the principal of the debt, was invalid, and ought not to have been complied with at all by the trustees. If this contention fails, the bill cannot be maintained. The decree was made on a petition filed by the trustees in 1873, after the destruction of the buildings by fire. The petition asked for leave to mortgage the real estate for the purpose of erecting a new building, and prayed that the court fix the amount of the principal to be paid out of the income of the mortgaged estate. Other similar petitions were filed by the trustees as to other estates, but we take the one first mentioned as a type of them all. The petitions are not before us, but the averments of the bill with regard to them are admitted by the demurrer. The petitions did not set forth the provisions of the fourth and sixth articles of the will, nor call attention in any way to the question as to how the provision for the payment of the principal of the mortgage out of the income would affect the rights of the several beneficiaries. No notice of the petitions was given except a general notice by publication. No guardian ad litem was appointed to represent the interests of the minor or unborn children of Mrs. Rowe. No persons other than the trustees were actually represented in or made parties to the proceedings. We assume that the law in force in 1873, when the decree of the Probate Court was made, was as stated by Shaw, C. J., in [140] Peters v. Peters, 8 Cush. 529, 543 et seq., — that is, that if the Probate Court, even though it had general jurisdiction over the subject matter, exceeded its powers or acted in a manner prohibited by law, its decrees were not merely irregular and voidable and so good until reversed in due course of law, but absolutely void and of no effect, and capable of being set aside in any collateral proceeding by plea and proof. But this case does not come within that principle. The property held by the trustees included real estate. In the great Boston fire of 1872, the buildings thereon, like many others, were totally destroyed. It well may be that the land then could not have been sold, except at a sacrifice; it could yield no income unless new buildings should be erected; the money needed for this purpose could be obtained only by mortgaging the property. A building lease, so called, might be impracticable. As this trust (and many others) might be of long and undefined duration, and as buildings to be erected on the land might be subject to depreciation, and as it could not be expected that there would be any individual responsibility upon an indebtedness to be secured by a mortgage, the Legislature in enacting St. 1872, c. 370, and the Probate Court in passing decrees thereunder, might see plainly that the requisite amount could not be borrowed upon a mortgage, without some arrangement for its gradual reduction out of net income, instead of leaving it to be a final charge upon the corpus of the estate at some future time. It certainly was for the interest of life tenants, no less than of those in remainder, that the property should be put in condition to yield some net income rather than to be a charge upon the estate for its taxes. It was to meet such a state of affairs that the statute was passed. It provides a remedy which ordinarily will be for the advantage of all persons interested. The petition filed in the Probate Court by the trustees in 1873 was like a proceeding in rem for the conservation of the estate as a whole for the benefit of all persons interested. Not only did the court have jurisdiction of the subject matter of the petition, but it had power to act and to make a decree, although no personal service of notice had been made upon those who were interested in the estate and although no guardian ad litem had been appointed to represent persons who were unborn or were under any disability. The trustees themselves represented all parties in interest. The [141] notice given generally by publication was sufficient. This was so held after careful consideration in Warren v. Pazolt, 203 Mass. 328, 345. Such notice was given; and not even this part of the decree of the Probate Court now is open to attack. . It is not necessary to discuss the other questions which have been argued. The validity of the decree having been established, nothing is left but questions of accounting, as to which the jurisdiction of the Probate Court was and is exclusive. We see no reason to doubt the constitutionality of St. 1872, c. 370, now included in R. L. c. 147, § 18. It comes within the reasoning of Sohier v. Trinity Church, 109 Mass. 1, 17, and Old South Society v. Crocker, 119 Mass. 1, 26. As it is manifest that the bill cannot be maintained, the entry must be Demurrer sustained and bill dismissed with costs.