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05/25/78 FIRST CHURCH SOMERVILLE (UNITARIAN) &

May 25, 1978

FIRST CHURCH IN SOMERVILLE (UNITARIAN) & ANOTHER
v.
ATTORNEY GENERAL & OTHERS



Suffolk. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 20, 1976. The case was heard by Wilkins, J.

Hennessey, C.j., Braucher, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Trust, Charitable trust. Charity. Devise and Legacy, Charitable trust.

The opinion of the court was delivered by: Hennessey

Under a will which established a restrictive trust for the benefit of the First Congregational Society of Somerville and provided that if the Society declined to accept the trust or "at any subsequent time in the future . . . change its religious tenets and cease to inculcate a Liberal Religion," then the trust should be paid over equally to Harvard University and the Massachusetts General Hospital, there was no general intent to benefit religion which would authorize the application of the doctrine of cy pres on dissolution of the Society, and such dissolution effectuated the gift over contemplated by the testator. [333-338]

This proceeding is in the nature of a complaint for instructions and, if necessary, for application of the doctrine of cy pres concerning the Tyler Fund, a charitable trust established in 1881 under the will of Columbus Tyler. It was brought by the First Church in Somerville (Unitarian) -- hereafter First Church -- and the Unitarian Universalist Association (Association). The plaintiffs named as defendants the Attorney General of the Commonwealth, the Massachusetts General Hospital (MGH), the President and Fellows of Harvard College (Harvard), and the Boston Safe Deposit and Trust Company, successor trustee under Tyler's will. The case was heard by a single Justice of this court on the pleadings and on a statement of agreed facts. The single Justice concluded that the dissolution of the First Church in 1975 was an occurrence that prompted a gift over to MGH and Harvard equally, in trust for charitable purposes specified in the will. *fn1 We affirm that judgment.

Only the Association and the Attorney General have appealed. The Attorney General's position is that judgment should have been entered for the Association by the single Justice. In a previous case, the real estate of the dissolved corporation and seven restricted funds held by it had been transferred to the Association by order of a single Justice of the Supreme Judicial Court. The Association now prays that the Tyler Fund similarly be transferred to it, the income to be paid to the First Universalist Church of Somerville so long as it continues to offer Unitarian Universalist services, then to the Association itself. The Association argues that this may be accomplished either by recognizing the Association as a "successor" or "assign" of the First Church, within the meaning of the will and then permitting deviation from the testator's stated intent, or else by applying the fund cy pres.

As will be seen (infra), we conclude that the details of Tyler's will can no longer be carried out, but that this is not an appropriate case for deviation or cy pres. Construing the gift-over provision liberally to prevent the charitable trust from failing and the fund from passing by intestate succession, we conclude that the dissolution of the First Church prompted a gift over to MGH and Harvard.

Columbus Tyler died testate in 1881. A founding member of the First Congregational Society of Somerville, Massachusetts (Society), Tyler devised his home, subject to certain life interests to the Society, and he also left the residue of his estate in trust to the "Society its successors and assigns forever."

Article Sixteenth of the will detailed the purposes of the residuary trust. Tyler directed that the trust be used; (a) to encourage attendance at Sabbath School by providing an annual deposit into a savings bank for each boy or girl who regularly attended Sabbath sessions; (b) to establish a "Flower Mission" which might spend up to $250 a year to distribute flowers to the sick and to decorate the church; (c) to apply a maximum of $100 annually to discharge the debts of the Society or to repair the church buildings; and (d) to apply such remainder of income, after the above expenditures, as is necessary "to lessen the taxes upon the Pews of those persons who cannot afford to pay them."

No part of the principal was to be spent. Moreover, should there be an "accumulation of income greater than the expenditure by will required," then Article Sixteenth provides for the payment of such excess equally to Harvard "for the benefit of indigent students in the Theological department of that Institution," and to MGH as "a part of the Appleton Fund."

Tyler also provided in Article Sixteenth that "f the . . . decline to accept this trust with the obligations imposed, or if at any subsequent time in the future shall change its religious tenets and cease to inculcate a Liberal Religion then I declare these bequests annulled in [ sic ] inoperative and this estate hereby bequeathed with its accumulations both real and personal shall accrue" equally to Harvard and MGH, for the purposes quoted above.

The Attorney General argues that Tyler could not have meant his gift to the Society to fail on dissolution of the corporation and transfer of its assets to the Association, because he devised his residuary estate to the "Society its successors and assigns forever." The language of the will, however, indicates that Tyler used the phrase in question as a term of art in creating a continuing fiduciary relationship. *fn2 The phrase in question reflects an acceptable manner of conveying a fee to a corporation. See 3 American Law of Property § 12.76, at 344 (A.J. Casner ed. 1952). In such transactions, it is customary, although not necessary, to use words of succession, paralleling the use of words of inheritance in private deeds. Id. Moreover, a law stating that technical terms such as "assigns" are not necessary to convey an estate in fee simple was not enacted in Massachusetts until 1912. G. L. c. 183, § 13, inserted by St. 1912, c. 502, § 19. We do not find the quoted phrase to be probative of Tyler's intent concerning Disposition of the trust property on dissolution of the First Church.

We also find no merit in the Attorney General's argument that this court should permit deviation from Tyler's specific mandates, which are now incapable of fulfilment. This is not a case where the trustee could continue to carry out the settlor's stated intent if permitted to deviate from administrative provisions of the gift which have become burdensome or impossible to carry out. See Trustees of Dartmouth College v. Quincy 357 Mass. 521, 533 (1970). See also Millikin v. Littleton, 361 Mass. 576, 581 n.7 (1972). The limited purposes for which the Society, while in existence, was obliged to use the trust income indicate that the restrictions imposed by Tyler were not merely subordinate details. See Trustees of Dartmouth College v. Quincy, supra. Rather, these ...


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