Attorney General v. Rector & Churchwardens of Trinity Church

Dewey, J.^*

The questions in the present case arise upon the wil of William Price, made in 1770, devising to the rector and churchwardens of King’s Chapel, and to their successors in office, in trust forever, certain real estate, situate in Boston, for certain uses and purposes particularly set forth in the will, and which estate so devised, upon non-performance of certain conditions named therein as to the acceptance of the same, was b) the further provisions of the will devised to the minister and churchwardens of Trinity Church, upon the like conditions and for the like trusts. Among these trusts charged upon the property which was thus devised, and from the income of which payments were required annually to be made by the devisees, there are three which are particularly the subject of consideration :

1. “ That there shall be paid yearly out of the rents and profits of my said house and land and premises after the death of my said wife and dieces the sum of forty shillings sterling to the last mentioned church [King’s Chapel] forever by the wardens of said church for the time being which shall be kept entire as a fund for said church and be placed out at interest upon good security, and the interest only appropriated to the use of said church.”

2. “ The churchwardens of the same church for the time being out of the rents of said house and appurtenances shall pay sixteen pounds sterling annually for the support of a course of sermons to be preached annually in said King’s Chapel,” under certain regulations prescribed in the will.

3. “ That the churchwardens of the same church for the time being pay forty shillings sterling annually out of the rents and profits of my said house and appurtenances for the use of the poor in manner also as is hereinafter mentioned.”

The two latter gifts are clearly of the nature of public charities, while the first seems to be a private gift or charity, to the use of King’s Chapel. The second and third gifts are of a character to justify the intervention of the attorney general to secure their due execution, if there has been a failure in that respect.

Assuming these to be public charities, the inquiry is as to any neglect or want of proper discharge of duty by the devisees, as to any funds given to these objects. The case, as presented by the bill, answer and' statement of facts, shows that as to the specific provisions of this will, directing certain payments to be annually made in behalf of these charities, the will has been fully carried into effect. The sums ordered to be thus annually paid have been paid. The only alleged neglect of duty in which the relators have any interest is the failure to invest and apply properly the surplus income that has remained, after discharging the specific payments required by the will. This is the whole case, and the whole subject of inquiry arising on this bill. The relators assume that such surplus was, by force of this will, appropriated to public charities, and that it ought to have been regularly invested as such, and the income appropriated to an enlargement of the sums directed to be paid to the public char ities named, and, if the same amounted to a greater sum than could be usefully applied for those purposes, that the same be applied to the support the poor of other Episcopal churches in Boston. The defendants, on the other hand, insist that such surplus enures to the benefit of the church named as devisee in trust, being originally given to King’s Chapel, and, in case of their not accepting the same, then to Trinity Church. It is not contended that there is any gift of the surplus, as such, in direct terms; but it is insisted that it results from the whole will and declared purpose of the testator, applying to them the well settled principles of law and equity governing such cases. As a distinct proposition, it is further contended that, in the absence of sufficient evidence of the particular purpose declared on the face of the will to give the surplus income to King’s Chapel, yet the same effect must result, inasmuch as, no gift over of a surplus being found in the will, the devisee to whom the estate was given charged with certain specific trusts would take the same.

In behalf of the relators it is urged that where there is a manifest intention on the part of the testator to devote the whole property to public charity, it would carry the whole income, including any surplus not directly devised, and the same should be appropriated to the charities named, notwithstanding certain specific devises requiring the payment of particular sums in aid of such charities. Numerous authorities have been cited bearing upon this point, and apparently sanctioning it, as a rule applicable to cases where no controlling circumstances require a different result. But upon their application to the present case the parties are at issue, and the case has been very fully and ably presented upon the briefs, and by the extended arguments of the counsel of the respective parties, and all the learning of the books bearing upon the questions here raised has been brought to our notice. To restate the cases, or enter upon a minute review of them, would extend this opinion beyond its proper length. Upon the great and leading principles governing this class of cases, there will, we apprehend, be found no great discrepancy, and the difficulty here and in other cases lies in the proper application of those principles to the facts of the particular case under consideration.

Granting to the relators their premises, and the conclusions they would have us adopt properly follow. If we found upon the face of this will that it was the clear intention of the testator that this whole estate should be devoted to certain public charities named by him, it would well authorize the relators to insist that the surplus income, after reserving the amount necessary to pay the particular sums named, should be invested, and the income thereof applied, either in augmentation of the particular bequests named in the will, or to other charities of the like general character. But we do not find this fact to exist. The testator did not so declare, either in direct terms, or by any provisions in the will leading necessarily to that inference. Nor does the present case fall within that other class of cases, cited or the part of the relators, where, although on the face of the will the whole income is not devoted to public charity, yet upon applying to the case the surrounding facts, such inference of as entire appropriation may be properly made; as where an estate had a fixed rent, and the testator in his specific bequests had exactly appropriated the .entire sum received therefrom, making no allusion to any possible surplus, and there being nothing either in the will or in the surrounding circumstances indicating any intent to benefit any other party. Of the cases upon this point, the leading one is that of Thetford School, 8 Co. 130 b. But the court there found that it was the manifest intention of the testator to appropriate the whole estate to certain public charities named. In the present case no such inference can be drawn from the will, nor can it be assumed that a surplus was unexpected by the testator. It was directly referred to, and although not directly given to any one as a gift of the surplus income, yet provisions are made by the testator requiring the rector and churchwardens of the church named as devisees to place such surplus annually at interest, and directing to some extent occasions on which it was to be used.

It is urged, as a further ground of objection fatal to maintaining the position taken by the defendants as authorizing them to succeed to the whole estate and income thereof after discharging the two public charities charged thereon, that the fact that a legacy of £2 annually was directly given to King’s Chapel from the income of this estate by the testator excludes the inference that any further portion of the income was intended for the use of that church and society. • This objection is certainly entitled to be considered, in searching for the proper construction to be given to this will. It is a fact entitled to its proper influence, and to be weighed with the other portions of the will. It might be that the testator intended to secure in any event a certain smal. donation to the church with which he was connected, to be invested annually for the use of the church, and to make that particular donation to abate only .in common with the other specific bequests, in case the income was not large enough to discharge the entire sums. Had there been in terms, a genera, residuary clause in the will in favor of King’s Chapel, this specific donation clearly would not have avoided it. So here if we find upon the whole will that King’s Chapel occupies the place of residuary devisee of this estate thus given, then the specific donation to them of the £2 does not deprive them of their rights to so much of the income as may exceed the ¿£20 specifically devised.

In the case of a specific bequest to an executor, as in some of the cases cited, it would be properly held as a reason why he should not take the surplus, in cases where otherwise he would formerly have been so entitled. So if the estate were given in trust to a private individual, to be held for certain declared uses and purposes, among which was the payment, out of the rents and profits, of certain sums of money to various persons, and among others to the devisee in trust, and no such relation existed between him and the testator, and no declaration of any purpose to benefit him beyond the specific legacy to him, or to show an intended bequest to him of the surplus income, the fact of such specific legacy might have a controlling effect upon his claims to hold the surplus.

The relators urge upon us the consideration that, as these public charities may be decreased by a diminution in the income to an amount less than the stated sums required to be paid by the will, they should also have the benefit of the increase arising from an enlarged income. The principle is often stated in the cases cited by the relators. It is very sound, where the case shows that the whole income of the estate was by the testator appropriated to public charity, as was the case of the Thetford School, and other cases referred to, but can have no effect where the court find from other parts of the will that the testator has ' not appropriated the whole income to public charity. One of the counsel for Trinity Church denies that the payment of the sums given to public charities in this will does depend upon the fact of there being a sufficient sum received from the income by'the trustee, and insists that Trinity Church has become bound, by accepting the devise in trust, to pay these sums at all events; and raises an argument thereupon, supported by numerous authorities, that such obligation thus assumed does of itself operate to vest in the devisees the surplus income. As it seems to us. the devisees in trust have not absolutely assumed to pay to these public charities the full sums named, unless the income of the estate devised in trust produces so much; and the case to be considered is that of an appointment or direction to pay the sums out of the annual rents and income of the estate.

Cases have been cited on the part of the defendants having certainly some tendency to sustain the rights of Trinity Church to the entire surplus income, even in the absence of any particular purpose to that effect expressed on the face of the will. Thus in the case of Mayor &c. of Beverley v. Attorney General, 6 H. L. Cas. 310, it was held that where a testator gives to A. an estate or rents, in trust to make certain payments to charities, and refers to the matter of a surplus, and does not specifically bequeath the same, if there should be an increase in the profits of the estate A. will be entitled, after making the specific payments required by the will, to take the surplus. The rule upon the subject, as stated in Tudor on Charitable Trusts, (2d ed.) 230, is thus : “ Where, however, there is no general intention shown of devoting the whole income, or if the existing income is not given to charitable purposes, and particular payments only are directed to be made to certain charitable objects, the devisees in trust will take the surplus beneficially.” In Attorney General v. Dean & Canons of Windsor, 8 H. L. Cas. 405, Lord Cranworth says: “ Where the founder of a charity conveys lands to persons for the purpose of securing through their agency certain pecuniary benefits of specified amounts to various objects of charity, and the sums so devoted to charity do not exhaust the whole revenue, there is no rule of law which says that the surplus rents may not have been intended as bounty to the persons in whom the estate has been vested.”

But we forbear to enter into a more elaborate review of the various cases cited upon this point, inasmuch as, in the view we have taken of the present case, there are controlling expressions found in the will itself, strengthened by the facts and surmnding circumstances legitimately connected with it, that will require us to hold that the gifts in this will to public charities are limited to the sums therein stated, and that no case is shown requiring the application of the surplus income to an augmentation of those special charities, or to any new scheme of public charities to be prescribed by this court. The strong indications from the leading cases cited are, that we are upon questions of this nature to regard the intention of the testator. “ What were the intentions of the testator, legitimately to be collected from the words of his will,” is said by the Lord Chancellor, in Mayor &c. of Southmolton v. Attorney General, 5 H. L. Cas. 1, to be the inquiry. In Attorney General v. Mayor of Bristol, 2 Jac. & Walk. 317, Lord Eldon remarked, after referring to several adjudicated cases, as follows: “ The construction in these cases, I take it, must be considered to go upon intention, and the different rules furnished by the cases I have mentioned are to be considered as indicia of the intention.”

If the leading object of the 'devise was to benefit King’s Chapel or Trinity Church, as the case might be, the application of the surplus income to that object will give effect to that purpose. The testator had been a member, and for a long period an officer, of the religious society worshipping in King’s Chapel. The devisees in trust were an association founded for the purpose of promoting the cause of piety and religion, and the use of the surplus income by them would be an appropriation of it in a way entirely consistent with what may be supposed to be the general purposes of the testator. But the more decisive consideration is the fact that the testator has strongly impressed upon this will, by the language he has used therein, that his leading purpose was to benefit King’s Chapel In reference to the devise of this estate in trust to King’s Chapel, he denominates it “ this my donation which I intend for the benefit of said church.” Again, the testator describes this devise as “ my estate herein given in trust to the use of King’s Chapel.” When speaking of the same, in reference to a transfer of such devise Lo Trinity Church, in case the rector and wardens of King’s lhapel should not signify their acceptance of the same in the manner indicated in the will, he describes the estate as “ all hereinbefore given to and for the benefit of King’s Chapel” frisa his appointment “ of all the gentlemen composing the vestry of King’s Chapel his trustees forever, to inspect and if need be to call to account the minister and wardens for all and any of the income of said estate,” and his requiring semi-annual meetings of the vestrymen for that purpose, and assuming that in so doing they will be serving said church and society, indicate the same purpose. These features of the will, and its numerous provisions in reference to this fund, its object and purposes, seem to us properly to withdraw it from those rules of construction which have been applied to naked devises in trust to a trustee disconnected from the administration of the proposed objects of a devise, and where it must necessarily be assumed that the estate given in trust was devoted wholly to public charity.

We have dealt with this case as if the devise to King’s Chapel had been fully accepted by them, and all the benefits of the will attached to that society. Under the will of Mr. Price, as already stated, upon - certain contingencies all the benefits of this devise made in the first instance to King’s Chapel passed to Trinity Church, and they in fact have succeeded to all the rights which would have vested in King’s Chapel, had they accepted the trust. If this surplus income may properly be held under this will by Trinity Church to its own use, the question as to the proper disposition and management of the same by Trinity Church, and whether there has,been a failure in this respect, is not open on this bill, and would not warrant the interposition of the attorney general. Parker v. May, 5 Cush. 336. Attorney General v. Federal Street Meeting-House, 3 Gray, 49.

We have not thought it necessary particularly to consider wnether the clause in the will directing the rector and wardens of the church to place the surplus of the money annually arising from the rents of his house at interest upon good security, to be called in as there might be occasion for repairing, enlarging or rebuilding said house, and for keeping his tomb in good and decent repair, would, of itself, present any case of a public charity, and authorize this bill by the attorney general, as, irrespective of this provision, there are the other gifts tnat have been named which sufficiently raise the question as to the appropriation of the surplus income, and as, in the state of this property and the large income that has been annually raised therefrom for a long period, there is no ground for anticipating any possible deficiency in the requisite funds to pay annually the £20 specifically directed to be paid out of the same.

The result is that this bill must be dismissed, as, upon the case shown, no occasion exists for the intervention of this court. In coming to this result, we leave the parties in the exercise of their rights as to this property and the enjoyment of the same as they have existed for more than forty years. While we are fully aware that long adverse enjoyment will not be allowed to prevail in contravention to the clearly expressed intention of the donor, yet in a doubtful case as to the construction of a will, such fact is not to be wholly overlooked. Attorney General v Mayor of Bristol, 2 Jac. & Walk. 321. Bill dismissed.

* Bigelow, C. J. did not sit in this case.