Worcester v. Kelley , 119 Mass. 575 ( 1876 )

Gray, C. J.

By the terms of the deed executed by Gecrge Jaques and accepted by the city, the city took the land for the purpose of building a hospital thereon; the city was to make an appropriation of twenty-five thousand dollars for the purpose, and was to build a hospital, or part of a hospital, of a certain size, upon the land, within three years, or, failing to do so, to pay to the grantor or his legal representative the sum of two hundred dollars a month; the land was not to be sold for twenty-five years, and then only upon the opinion of three fourths of the board of trustees that it was unsuitable for a city hospital, and upon the setting apart of a sum of money equal to the value of the land, as then ascertained by three appraisers, as a permanent fund for the benefit of the Worcester City Hospital.

The right to the monthly sum of two hundred dollars, payable by the terms of the deed to the grantor or his legal representative, vested, upon his death, in his executor or administrator. Cox v. Curwen, 118 Mass. 198. By virtue of the residuary clause in his will, it would pass to the city; yet not as absolute property, but in trust for the benefit of the Worcester City Hospital.

There is nothing in the will, which manifests any intention to vary the provisions of the deed, or to authorize a sale of the land except at the time and under the restrictions therein stated. The donor may well have considered that if a hospital should -not be erected on the land granted, the land would increase in value so much during twenty-five years, that his charitable purpose would be best promoted by not selling the land before the expiration of that time. But whatever his reasons were, the terms of his grant, to which the city, by accepting it, assented, are plain. Even if, as the city now alleges, the land is an unsuitable place for a hospital, whatever weight that consideration may have upon the question whether a hospital shall be immediately built there, it has no tendency to show that the alternative undertaking of the city to pay two hundred dollars monthly cannot be carried out.

The object of the present bill is to release the city from the obligation of building a hospital upon the land, and of appropriating twenty-five thousand dollars for that purpose, or, tailing so to build, of paying two hundred dollars monthly; and to enable the city to sell the land immediately, in violation of the terms of its contract with the donor, and thus to avail itself of the whole value of the gift, without performing its part of the contract, or paying any of the sums of money which it had bound itself to pay out of its own funds.

The only reasons alleged are that the city has made other provisions for a suitable and convenient city hospital elsewhere; that it would be inexpedient and unnecessary to erect a hospital on this land; and that “ said land, on account of its situation, its northern exposure and the nature of its soil, is not a suitable, convenient or wholesome place for the erection of a hospital for the reception and care of sick persons.”

It does not appear that there are any facts which did not exist or were not known to the city at the time of accepting the deed of the donor, and no case is shown for inducing a court of equity to assist the city in violating its contract with him.

Bill dismissed.