New England Merchants National Bank v. First Church

Appeal dismissed. This is a petition for instructions filed in the Probate Court by the trustees under the will and codicil (the will) of Wilhelmina W. Jackson, late of Swampscott. The respondent, The First Church in Swampscott _(Congregational), appeals from a decree ruling inter alla that the doctrine of cy pres was not applicable, that the respondent is not entitled to the legacy referred to in the petition, and that the trustees shall retain said legacy and continue to administer it under the provisions set forth in the will. The parties filed a “Statement ox Agreed Facts.” It is stipulated therein that the will was allowed by [781] a decree of the Probate Court dated May 25,1926, that under its provisions a Protestant church corporation is to be organized in a particular neighborhood within one year of the death of the testatrix’s sister, that the sister is still living, that there is a bequest to said church corporation in the amount of $75,000, and that the will contains a residuary clause under which this bequest will be disposed of if the gift to the church corporation is frustrated. In no way was the respondent named as a recipient of the legacy in question. The trustees have filed a “Motion to Dismiss Appeal” on the grounds that the respondent is not a “person aggrieved” under G. L. c. 215, § 9. It is the settled rule in this Commonwealth that an institution hoping to be the beneficiary of the application of the cy pres doctrine has no legally recognized interest in the fund which it seeks; consequently, it has no right of appeal. Bolster v. Attorney Gen. 306 Mass. 387, 390. First Christian Church v. Brownell, 332 Mass. 143, 147. Worcester Memorial Hosp. v. Attorney Gen. 337 Mass. 769, 770. George B. Rowell (Winslow A. Robbins & Franklin N. Cunningham with him) for the respondent. James J. Kelleher, Assistant Attorney General, for the Attorney General. Daniel O. Mahoney for the petitioners.