Woman's Seaman's Friend Society v. Boston Young Women's Christian Ass'n

DeCourcy, J. This is a petition to register the title to a parcel of land on Main. Street, north of the middle line of Horton’s Lane, in the town of Tisbury. The judge of the Land Court dismissed the petition without prejudice; and the case is here on exceptions to certain of his rulings and refusals to rule. All the parties claim title under the will and codicils of George Wales Soren, late of New York City, who died November 27, 1911. Article 2 of the second codicil, which affects the title to the land in controversy, is as follows: “Second. — Whereas, by the seventh clause of the codicil of November 25, 1902, I have given, devised and bequeathed to the Women’s Educational and Industrial Union (hereinafter in this codicil designated as W.E.I.U.) and the Young Women’s Christian Association (of Berkeley Street, Boston), (hereinafter in this codicil designated as Y.W.C.A.) in fee, in equal shares, all my land in Vineyard Haven, but subject to a life estate in said land — 527 — to my sister Grace Soren, and as is in said clause more fully set forth, I do now cancel and revoke such devise and gift, and do give, devise and bequeath to the Y.W.C.A. and its successors, in fee and for the authorized and general purposes of said corporation, all my land at Vineyard Haven, Massachusetts, lying north of the middle line of Horton lane, together with the buildings thereon and such of their furniture and equipment as shall remain in them on the termination of my sister’s life estate, but subject to such life estate as more fully declared later in this clause, and I give and devise to the W.E.I.U. and its successors in fee, and for the authorized and general purposes of said corporation, all my land at Vineyard Haven lying south of the middle line of Horton lane, but subje'ct to an estate for her life in such land of my sister Grace, as is more fully declared later in this clause. But each of the above-named gifts, devises and bequests is hereby made subject to an estate in the respective parcels so given and devised, for and during her life, to my sister Grace Soren, and to all the conditions, terms and provisions relating to the use and enjoyment of such life estate or otherwise, which are fully set forth in said seventh clause of said codicil, beginning with the words ‘but subject to an estate in all said lands for and during her life,’ in the ninth line and continuing to the end of the said seventh clause, all of which passage and its terms and provisions I hereby re-declare and confirm as to, and charge upon, each of the devises and parcels by this clause severally made and described, it being my sole intent in this revising said seventh clause to separate the one devise of the whole land to the above-named corporations in equal shares, into two several devises of separate parcels to each of the two; and without intending to 1 change any other of the provisions of said seventh clause. The holding of absolute titles and fees simple in said devised lands by said corporations respectively is subject to the conditions set forth in the following paragraphs, to wit: “As I have by my will and former codicil given to the W.E.I.U. and Y.W.C.A. certain funds on the expiration of life estates, with the design that such funds or their income or parts of either should be used by said corporations in connection with the lands here devised, for such charitable purposes as are described in this paragraph, I make the devises of land as afore — 528 — said severally conditional upon the sole and exclusive use of . such lands by said devisees respectively after they shall have come into possession thereof by the termination of the life estate, and into possession of the funds so bequeathed to them for the maintenance and equipment of buildings thereon, to be employed by them for at least three months in each year forever for the use and benefit at all times during said three months of at least ten (10) women or girls who are pecuniarily unable to pay at least in full for such benefit, and without expense to them, as resorts for rest or recreation, or for such other charitable purposes for girls or women as said corporations may adopt. The maintaining and carrying on of such resorts in such manner in each year to be at the expense of said corporation respectively, and wholly or in part out of the funds bequeathed by me to them, and as memorials, and in the name of my mother, Fanny Wales Soren, and I direct that an agreement in writing, legally binding the W.E.I.U. and the Y.W.C.A. and their successors respectively, to perform the conditions and requirements aforesaid, be delivered by each of said corporations to my executors within one year after the probate of my will, and if, first, either of said corporations shall fail to so deliver such agreement; or if, second, having delivered it, it shall at any time after having come into possession of the devised land and of such bequest from me, violate or fail to perform such agreement for two successive years, then on the occurrence of either event the title of such corporation to the land shall be divested; and if either of such events shall occur in the case of the Y.W.C.A., I thereupon give and devise the land and buildings devised to it, but subject to the same life estate therein of my sister, all as set forth in the first paragraph of this . clause, to the Salvation Army, Incorporated (of 120 West Fourteenth Street, New York city), and its successors to be used by it for the same purposes and in the same manner as above set forth in this paragraph; and if either of such events shall occur in the case of the W.E.I.U., I thereupon give and devise the land devised to it, but subject to the same life estate therein of my sister as is fully set forth in the first paragraph of this clause, to the town of Tisbury, or to the town, whatever its name, which contains Vineyard Haven, to be used by it forever, and solely as a public park, and if the said Salvation Army, Incorporated, — 529 — or said town shall fail to deliver within one year after occurrence of the event entitling it to possession of the land, a written and legally binding agreement to use the land for the purpose, as above prescribed and required of them respectively, to the Woman’s Seamen’s Friend Society, now of Congregational House, Boston; or, if having delivered such agreement, it shall thereafter violate it or fail to perform it, then on the occurrence of either event the title of said Salvation Army, Incorporated, or of said town, as the case may be, shall be divested, and I thereupon give and devise the land devised to it to the Woman’s Seaman’s Friend Society. The gifts and devises of land to the Y.W.C.A. and the W.E.I.U. and the Salvation Army, Incorporated, and said town are severally made, in their creation and inception, subject to the conditions as above declared, and the titles given by and vesting under such gifts and devises are subject to being divested, for failure to perform said conditions subsequently, and all are to be so construed.” The will and codicils were duly allowed by the Surrogate’s Court of New York on May 3, 1912, and J. Wales Soren was appointed executor. They were ordered to be filed by the Probate Court of our county of Suffolk on October 3, 1912. The executor died on September 28,1914. Walter Soren was appointed administrator de bonis non by the surrogate of New York on May 26, 1915; and by the Suffolk Probate Court on July 12, 1917. Grace Soren, the life tenant of the parcel in question, died January 6, 1910, nearly two years before the testator. The funds referred to in said article 2, amounting to $10,000, were paid to the Young Women’s Christian Association on June 30, 1920; and under the will and codicils said association may receive other funds on the death of Lucy Boone Buffington without issue. The testator, after providing for his brothers and sisters, who were his next of kin, and making many bequests to other relatives and friends, gave substantial legacies to certain charitable organizations. While the codicils indicate changes of mind on his part with reference to the charities he desired to benefit, his interest in the Young Women’s Christian Association of Boston apparently remained constant. This is emphasized by his last codicil, dated January 29, 1909, in which he revoked the gifts to the — 530 — Women’s Educational and Industrial Union; to which organiza-, tian he had by said codicil devised the land adjoining the locus. It is obvious from the language of the article now under consideration, that he intended to vest an estate in fee in said association. The conditional provision attached thereto was at most a condition subsequent, and not a condition precedent, — as in Brennan v. Brennan, 185 Mass. 560, and other cases cited by the petitioner. See First Universalist Church of North Adams v. Boland, 155 Mass. 171. The controlling question is, whether the title became divested by the failure of the association to deliver to the executor, within one year after the probate of the will, a written agreement to perform the requirements specified in said article two of the second codicil. It seems to us, as it did to the Land Court, that the primary intention of the testator was to have this parcel of land go to the Young Women’s Christian Association. In addition to the reason already indicated, he must have known that the association was qualified and equipped to carry on a resort fqr the rest and recreation of poor girls and women; he left to this organization not only the land and the buildings, but also the furniture and equipment; and in addition he gave them certain funds (of which $10,000 has been paid), which are to be used only for maintaining and carrying on said specified charity. The will contains no express direction that notice of the gift and its conditions should be given to the association; and it was in another State than that of his domicil, where it was not likely to learn the contents of the instrument. As matter of fact it did not have actual notice of the will and codicils until on or about February 2, 1915, or almost three years after the will was allowed in New York; and at that time there was no executor, as J. Wales Soren had died in September, 1914, and his successor had not been appointed. We cannot believe that the testator intended to vest the title in the association, with the expectation that it would be divested before the association could have an opportunity to learn of the gift and to duly accept it. Bradstreet v. Clark, 21 Pick. 389. This view is confirmed by the fact that the agreement itself, even if given, could add little or nothing to the provisions of the will, which provide for forfeiture of the estate if the association, after coming into possession of the — 531 — devised land, fails to perform such agreement for two successive years. The question whether it was the duty of the executor to give the devisee notice of the devise and of the requirement of its acceptance is not controlling. See In re Mackey [1906] 1 Ch. 25; Giles v. Boston Fatherless & Widows’ Society, 10 Allen, 355. Having ascertained the intent and purpose of the testator from the entire will and codicils, we must so construe the instrument as best to give effect to that intent and to accomplish that purpose, unless prevented by some positive rule of law. Ware v. Minot, 202 Mass. 512, 516. The devise to the Boston Young Women’s Christian Association has not lapsed, nor become divested. It was agreed by all the parties that the rule against perpetuities has no application here. Although the association did not deliver to the administrator the document accepting the devise until May 2, 1916, we concur in the conclusion of the Land Court that the conditional provision of the devise was sufficiently complied with. What has been said disposes of the questions raised by the petitioner’s exceptions. The conclusion reached renders it unnecessary to consider the exceptions of the association. Exceptions overruled.