Bowditch v. Attorney General

Crosby, J. This is a bill for instructions brought by the plaintiff as trustee under the will of James Jackson who died January 31, 1890. The will was executed in 1873, and was admitted to probate in Suffolk County on February 24, 1890. The residue of the estate is given to William I. Bowditch in trust, and, after the payment of certain annuities, the balance of the income is to be divided by the trustee as follows: “into three equal parts and expended by bim or given away by him in such manner as will in his judgment best promote the causes (1) of womens rights (2) of temperance and (3) the best interests of Sewing Girls in Boston — and if for any reason the Courts have held or shall hold that a devise, bequest or a trust for either of these causes is invalid, I give the share of the balance of the net income of my estate which would otherwise be paid or expended for such cause to my friends Wm. I. Bowditch, Wendell Phillips and Mrs. Lucy Stone and the survivors and last survivor of them, to his, her or their sole use and behoof wholly free from all trusts and so that he, she or they may keep to his, her or their own use or expend or give away said sums as he, she or they shall think expedient.” On the death of the last annuitant the residue of the estate is given to the above named William I. Bowditch, Wendell Phillips and Lucy Stone and the survivors and last survivor of them in trust “to divide the same among such charitable and reformatory institutions and movements as he, she or they shall think most judicious and in accordance with my wishes. And if he, she or they shall deem it wise to aid the cause of woman’s rights or any other similar reformatory movement which has not as yet received the sympathy of the Courts, and any objection shall be made by any person or persons to such disposition of my estate, so that the Court may hold or be likely to hold such appropriation of my estate to be invalid, I give the whole residue of my estate to said Bowditch, Phillips and Stone and the survivors and last survivor of them in fee simple wholly free of all trusts whatever. . . .” Wendell Phillips pre-deceased the testator. At the time of the testator’s death Lucy Stone was married to Henry B. Blackwell; she died October 18, 1893, and the defendant Alice Stone Blackwell was appointed executrix of her will. William I. Bowditch was appointed trustee under the will of James Jackson on March 17, 1890, and died in January, 1909. The plaintiff, Frederick C. — 172 — Bowditch, was appointed his successor as such trustee, and was also appointed executor of the will of William I. Bowditch and as such executor is a defendant. AH the annuitants have died except Grace, the daughter of Abby Copeland. The bill alleges that the trustee has until recently divided the balance of the income of the trust into thirds and distributed it among certain persons and corporations to be used in the furtherance of woman’s rights, temperance and the best interests of sewing girls in Boston. 1. The first bequest in question is that which directs that one third of the balance of the net income be distributed by the trustee to promote the cause of “women’s rights.” The words “women’s rights” must be construed in the usual and ordinary sense in which those words were intended to be used by the testator at the time of his death when his will took effect. Jackson v. Phillips, 14 Allen, 539, 560. It is to be observed that the will is si|ent as to the manner and means by which “women’s rights” are to be promoted or secured. The question therefore of the lawfulness of the gift must be determined from the words themselves unaided by any other provision "of the will. When the testator executed his wiH in 1873 no right of suffrage had been extended to women in this Commonwealth. The following year by St. 1874, c. 389, it was provided that “No person shall be deemed to be ineligible to serve upon a school committee by reason of sex.” And by St. 1879, c. 223, it was provided that every woman who is a citizen of this Commonwealth of twenty-one years and upwards who has the educational qualifications required by the Twentieth Article of the Amendments to the Constitution, with certain exceptions, and upon stated conditions, was given the right to vote for members of school committees; the right of women to vote in this Commonwealth was so limited until the Nineteenth Amendment to the Federal Constitution was ratified in 1920. The amendment declares that “The right of citizens of the United States to vote shall not be denied or abridgéd by the United States or by any State on account of sex.” For many years before and after the testator’s death in 1890 the phrase "woman’s rights” had a definite and well defined meaning. In common parlance it was understood as being the right of women to vote, to hold office and be placed upon an — 173 — equality with men in a political sense by appropriate legislation. The will does not in express terms provide that the trust is created for the advancement or betterment of the social, business, industrial or economic condition or status of women, nor can it be inferred from the words used. So to hold manifestly would be contrary to the intention of the testator, in view of the language which he employed in creating the trust. This conclusion is strengthened by the circumstance that he undoubtedly had in mind the decision in Jackson v. Phillips, supra, which construed the will of his father and held that a bequest “to secure the passage of laws granting women, whether married or unmarried, the right to vote, to hold office, to hold, manage and devise property, and all other civil rights enjoyed by men” cannot be sustained as a charity. In that case, with reference to the bequest above quoted, it was said by this court, speaking through Mr. Justice Gray, at page 571:' “This bequest differs from the others in aiming directly and exclusively to change the laws; and its object cannot be accomplished without changing the Constitution also. Whether such an alteration of the existing laws and frame of government would be wise and desirable is a question upon which we cannot, sitting in a judicial capacity, properly express any opinion. Our duty is limited to expounding the laws as they stand. And those laws do not recognize the purpose of overthrowing or •changing them, in whole or in part, as a charitable use. This bequest therefore, not being for a charitable purpose, nor for the benefit of any particular persons, and being unrestricted in point ■of time, is inoperative and void.” And at page 555: “Gifts for purposes prohibited by or opposed to the existing laws cannot be upheld as charitable, even if for objects which would otherwise be deemed such. The bounty must, in the words of Sir Francis Moore, be 'according to the laws, not against the law,’ and 'not given to do some act against the law.’ Duke, 126, 169. ... In a free republic, it is the right of every citizen to strive in a peaceable manner by vote, speech or writing, to cause the laws, or even the Constitution, under which he lives, to be reformed or altered by the Legislature or the people. But it is the duty of the judicial department to expound and administer the laws as they exist. And trusts whose expressed purpose is to bring about changes in the laws or the political institutions of the country are not chari — 174 — table in such a sense as to be entitled to peculiar favor, protection and perpetuation from the ministers of those laws which they are designed to modify or subvert.” The gift under consideration cannot be distinguished from that which was held to be invalid in Jackson v. Phillips, supra. The principles enunciated in that case have been for more than half a century the settled law of the Commonwealth. It has been widely recognized in other jurisdictions as a leading case. As it was unlawful and invalid ab initia, and as the testator has provided that if the court should hold that the trust for woman’s rights was invalid the entire estate so divided should vest in said Bowditch, Phillips and Stone and the survivors and last survivor of them in fee simple free from the trust, the cy pres doctrine is not applicable. Jackson v. Phillips, supra, at pages 584, 585, and cases cited. Bullard v. Shirley, 153 Mass. 559. Teele v. Bishop of Derry, 168 Mass. 341. Gill v. Attorney General, 197 Mass. 232. Bowden v. Brown, 200 Mass. 269. In re White’s Trusts, 33 Ch. D. 449. Corbyn v. French, 4 Ves. 418, 421. In re Rymer, [1895] 1 Ch. 19. Attorney General v. Bishop of Chester, 1 Bro. C. C. 444. Catt v. Catt, 118 App. Div. (N. Y.) 742. See Thomas v. Howell, 18 Law Rep. (Eq.) 198, 207, 208. Nor can it be sustained as a private trust. The persons to be benefited are not determined: after the death of the last annuitant, the third article of the will provides as follows: “I give to each of my heirs at law the sum of One dollar if demanded and I direct the payments under the second article to cease, and I give all the rest and residue of my estate . . . to . . . William I. Bowditch, Wendell Phillips and Mrs. Lucy Stonp and the survivors and last survivor of them in trust to divide the same among such charitable and reformatory institutions and movements as he, she or they shall think most judicious and in accordance with my wishes.” It is plain from this provision that the beneficiaries of the trust are undetermined. There is no certainty that any portion of the residue will be distributed to any institution^ or movements for the cause of “ woman’s rights.” The selection of the recipients of such residue rests solely in the discretion of the trustees. Neither the objects to which the trust is to be applied nor the persons who are to take it are capable of ascertainment. Jackson v. Phillips, supra, at page 550. Minot v. Attorney General, 189 Mass. 176, 180. — 175 — The contention of the defendant Alice Stone Blackwell, that, if any of the trusts in the will are held to be void, she as executrix of the will of Lucy Stone Blackwell takes a vested interest in one half of the residue as her testatrix, and William I. Bowditch survived the testator, is untenable; because the testator devised the whole of the residue “to said Bowditch, Phillips and Stone and the survivors and last survivor of them in fee simple wholly free of all trusts whatever. . . .” The three persons named were joint tenants: Wendell Phillips deceased before the testator, who was survived by Lucy Stone and William I. Bowditch. As the latter survived Mrs. Stone, one third of the income of the residue of the estate subject to the annuity to Grace Copeland is to be paid to the defendant Frederick C. Bowditch as executor of his will. G. L. c. 184, § 7. Simonds v. Simonds, 168 Mass. 144. The residuary clause created a joint tenancy and related to a contingent interest which became vested in the last survivor, and he having deceased, it passed to the executor of his will. Cummings v. Stearns, 161 Mass. 506. See Dingley v. Dingley, 5 Mass. 535; Emerson v. Cutler, 14 Pick. 108, 115, 116; Minot v. Purrington, 190 Mass. 336. 2. The bequest to promote the cause of temperance is a valid charitable trust. The adoption of the Eighteenth Amendment to the Federal Constitution does not affect its validity. It is not a gift for a political purpose; the adoption of the amendment has not fully accomplished the purpose of the testator, which was to better the condition of people who suffer from the injurious consequences of intemperance caused by the use of intoxicating liquors. Jackson v. Phillips, supra, at page 595. 3. The trust to promote "the best interests of Sewing Girls in Boston” is for a charitable purpose. It applies to an indefinite number of a particular class and the purpose of the testator is sufficiently certain and defined: manifestly it is a valid charity. Sewing girls are handicraftsmen, and the word “girls” implies youth. The clause “best interests” includes not only the. relief of poverty and distress, but has a broader signification, and well may comprehend within its spirit and intendment whatever adds to their welfare and advancement and enables them to establish themselves in life. “A gift dictated by a general benevolent purpose is to be liberally construed and, if reasonably possible, up — 176 — held as a valid charity.” Thorp v. Lund, 227 Mass. 474, 477. Charitable uses are favorites with courts of equity. The construction of all instruments where they are concerned is liberal in their behalf. Saltonstall v. Sanders, 11 Allen, 446. Quid v. Washington Hospital for Foundlings, 95 U. S. 303, 313. Jones v. Habersham, 107 U. S. 174, 185. “Such uses had indeed been previously recognized as charitable, and entitled to peculiar favor, by many acts of Parliament, as well as in the courts of justice.” Jackson v. Phillips, supra, 552. Re Dudgeon, 74 Law Times (N. S.) 613. Attorney General v. Comber, 2 Sim. & Stu. 93. Loscombe v. Wintringham, 13 Beav. 87. Thompson v. Corby, 27 Beav. 649. A gift to a public use is not unlawful as a charity because it is not for the purpose of relieving poverty. Such gifts may extend to the rich as well as to the poor; it was said in New England Sanitarium v. Stoneham, 205 Mass. 335, 342: “It is not confined to mere almsgiving or the relief of poverty and distress, but has a wider signification, which embraces the improvement and promotion of the happiness of man.” Drury v. Natick, 10 Allen, 169. Mount Herman Boys’ School v. Gill, 145 Mass. 139. Dexter v. Harvard College, 176 Mass. 192. Franklin Square House v. Boston, 188 Mass. 409. Thornton v. Franklin Square House, 200 Mass. 465. Molly Varnum Chapter D. A. R. v. Lowell, 204 Mass. 487. Conklin v. John Howard Industrial Home, 224 Mass. 222. Thorp v. Lund, supra. Ould v. Washington Hospital for Foundlings, 95 U. S. 303. The trustee is instructed that as the gift for the promotion of “woman’s rights” is invalid, he cannot hereafter make any payments out of the fund for that purpose, but is required to pay over to the executor of the will of William I. Bowditch one third of the income of the residuary estate, subject to the annuity to Grace Copeland. He is further instructed that the gifts to promote temperance and the best interests of sewing girls in Boston are valid charities and he may expend for each, one third of the income of the residuary estate subject to the annuity to Grace Copeland. The terms of the decree, including all questions of costs as between solicitor and client, may be settled by a single justice. Ordered accordingly.