USA > Massachusetts > Middlesex County > Lincoln > Town Report on Lincoln 1946-1950 > Part 26
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have contended that it was impossible to formulate a plan without knowing the amount of available income. The B trustees have never agreed among themselves as to any program of educational and recreational activities or as to how they would exercise the discretionary powers conferred upon them by the will. The negotiations resulted in "an impasse." No agreement was reached as to the repairs necessary, or their cost, or the amount of income to be paid to the town by the B trust, or as to the educational and recreational activities, or the amount to be spent therefor. The trustees have not agreed among themselves as to these matters, and the town has submitted no budget. The town desired that all the net income of the B trust should be paid to it, but a majority of the trustees took the position that part of it should be accumulated, though they were not in agreement as to how much. The director of the Museum of Fine Arts in Boston has notified the town that the trustees of that museum have decided that it would be improper for the director to take the responsibility of selecting an expert to approve disposals and acquisitions of objects of art as required in the deed and will. With matters in this state the present petition was filed.
Other findings of a general nature, but not stated to be merely conclusions from the findings hereinbefore set forth. are these: ". .. it is impracticable literally to carry out the testator's intention under the procedure and machinery set up in the deed of November 29, 1930, and in the will and codicil, because of the divided control between the town of Lincoln and the B trustees which will continue during the twenty year period immediately following the testator's decease, and because of the restrictions and uncertainties, hereinbefore referred to, which have led to the present im- passe and prevented the opening of the museum and park to the public since the testator's death on November 23, 1945. This impasse is not the result of a conflict of per- sonalities. Nor is it due to any lack of honesty or good faith on the part of the trustees or the representatives of the town. It is due chiefly to the fact that while the town has the legal and equitable title to the real estate and
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personal property described in said deed, with full power to govern, manage and control the museum and park ex- actly as it sees fit (provided it complies with the provisions of the deed), the trustees of the B trust have control of the purse strings. The town can dispose of any or all of said personal property, erect new buildings, alter any of the ex- isting buildings, determine the type or kind of museum and park it shall operate, the nature and extent of the activi- ties to be conducted upon the premises, and in general can manage and operate its property as it pleases. However, it cannot legally appropriate money for such purposes and must look to the income from the A trust and the B trust, if it is to carry out the intention of the testator. The result is that the B trustees, by virtue of their right to pay or to withhold income from the B trust during said period of twenty years after the testator's decease, can prevent the town from carrying out de Cordova's general charitable in- tent." To operate the museum properly, "it is essential that a long range program be adopted," but "it is not prac- ticable for the town to formulate such a program unless it can be assured of a definite, annual income from the B trust fund. Under the present provisions of the B trust, the town officials cannot determine what portion of the in- come will be made available to them during said twenty year period expiring in 1965. And with the best of good will, the trustees of that fund cannot assure the town on this score. Even if unanimous action on all proposed pay- ments to the town may not be necessary, the trustees cannot exercise their discretionary powers in futuro so as to bind their successors in trust who will have the same discretion- ary powers during said twenty year period. The uncer- tainty is further increased by the fact that neither the town nor the present trustees of the B trust can know in advance what portion of the income therefrom will be expended by the trustees during said period, for additions to the art col- lection authorized by paragraph 14 of the will or for edu- cational and recreational purposes under the codicil. These difficulties are inherent in the provisions contained in the will and codicil."
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Other difficulties confront the town. There are objects in the collections which should be disposed of as not being worthy museum exhibits, but this cannot be done because of the refusal of the authorities of the Museum of Fine Arts in Boston to permit its director to select the required ex- pert. The same difficulty exists with respect to the discre- tionary power of the B trustees to make additions. More- over the town is wholly dependent upon the discretion of the B trustees for additions within the twenty year period. While the B trustees are authorized to use income for edu- cational and recreational purposes during the twenty year period, no authority is given the town to use income of either the A or B trusts for such purposes either during or after the termination of the twenty years. Time "has demonstrated that it is impracticable, and perhaps impos- sible, to carry out literally the provisions of the deed, will and codicil. The town should be assured of the payment of income from the B trust sufficient in amount to meet the cost of alterations and repairs necessary in order to open the museum and park to the public; and also of the annual payment of a definite amount of income from the B trust, to be used for the upkeep, maintenance and im- provement of the museum and park, and for additions to the art and other collections in the museum and for educa- tional and recreational purposes during said twenty year period following the testator's decease. Authority should also be given the town to use income from the B trust, after the expiration of said twenty year period, for such educa- tional and recreational purposes in connection with the operation of the museum and park as it may decide to be necessary or desirable."
The master, having concluded within the broad scope of the interlocutory decree referring the case to him that it is a proper one for application of the doctrine of cy pres, pro- ceeded in accordance with the decree to frame a scheme. In general outline this scheme provides:
(1)1 That the B trustees make certain payments to the
1 The subdivisions numbered in parentheses are those made by the master.
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town to reimburse it for expenditures for upkeep in the years 1945, 1946, and 1947.2 This recommendation need not be considered, since we are informed in the brief for the petitioners that the trustees have already made these pay- ments.
(2) That the B trustees be authorized and directed to pay to the town out of net income accumulated prior to January 1, 1948, a sum or sums not to exceed $40,000 in all to be used by the town, in its sole discretion, for such alterations and repairs as the town may consider necessary or desirable in order to open the museum and park to the public, and to be paid upon the presentation by the town of estimates of cost. No part of this sum is to be used by the town for the purpose of demolishing the residence or art gallery or for additions to the present collections.
(3) That the B trustees and their successors be authorized and directed to pay to the town beginning January 1, 1948, and continuing during the twenty year period following the testator's death seventy per cent of the net income of the B trust, to be used by the town in its sole discretion for the upkeep, maintenance, and improvement of the museum and park, for additions to the collections, and for educational and recreational purposes.
(4) That neither the town, nor any corporation organized as its agent, nor the trustees of the B trust acting under paragraph 14 of the will shall add to or dispose of any part of the collections unless the town or its agent or said trustees shall have first received written approval of such addition or disposition from an art expert selected or recommended by the director of the Museum of Fine Arts in Boston or by the officer or board exercising similar authority, or in the event of the refusal to act of such director, officer, or board, then by an art expert selected or recommended by the corresponding officer or officers of any one of several other named art museums.
(5) and (6) That the net income of the B trust remaining in the trustees' hands after making the payments required
2 These expenditures were made by the town out of the sum of $20,000 given to it by the testator to which reference was made in a preceding footnote.
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by (1), (2), and (3) above be disposed of by the trustees according to the will and codicil.
(7) That after the expiration of the twenty year period the town may use income from the B trust for such educa- tional and recreational purposes in connection with the operation of the museum and park as it may decide to be necessary or desirable.
Numbers (8) and (9) do not in our opinion involve any change in the terms of any of the trusts and will be dealt with later in this opinion as matters of construction merely.
(10) and (11) That the town be authorized to cause a charitable corporation to be organized to act as its agent and instrumentality in carrying out the trust imposed upon the town by the deed of November 29, 1930, and, if the town shall so elect, to receive payments from the A and B trusts, with power to accept gifts from other sources, the officers and members of which corporation are to be voters of the town, and the directors of which are to be divided into classes chosen respectively by the voters of the town, by the selectmen, by the school committee, and by the trustees of the public library. Title to the property is to remain in the town.
Objections to the master's report filed by the B trustees, in so far as they raise genuine questions, will be hereinafter covered in dealing with the merits.
We have carefully examined the motion of the B trustees to recommit the case to the master, and we are satisfied that there was no error in its denial. Discussion of its details would prolong this opinion to no purpose.
The evidence heard by the master, which must have been extensive, has not been reported. The master's findings of fact must stand and will govern the disposition of the case.
All three trusts, that of the tangible property held by the town, the A trust, and the B trust, are public charitable trusts in all their aspects, including the park, the museum, and the proposed recreational and educational activities in connection therewith. American Academy of Arts & Sciences v. Harvard College, 12 Gray, 582, 594. Drury v. Natick,
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10 Allen, 169, 179-180, and cases cited. Burbank v. Bur- bank, 152 Mass. 254, 255-256. Bartlett, petitioner, 163 Mass. 509, 514. Dexter v. Harvard College, 176 Mass. 192, 194-195. Hubbard v. Worcester Art Museum, 194 Mass. 280, 289. Richardson v. Essex Institute, 208 Mass. 311, 318. Boston Symphony Orchestra, Inc. v. Assessors of Boston, 294 Mass. 248, 254-255. The town could accept these gifts for these purposes, whether or not the town could expend its own tax raised money for similar purposes. Higginson v. Turner, 171 Mass. 586, 591. City Bank Farmers Trust Co. v. Carpenter, 319 Mass. 78, 79-80.
The facts clearly disclose de Cordova's dominant purpose to establish his home place and its contents as a public museum and park for the benefit of the town. To this pur- pose he devoted in one form or another all that he had, ex- cept a few legacies of comparatively small amount. No other object whatever is mentioned or provided for in any of the trusts as a possible alternative or otherwise. It also clearly appears that because of the mechanism of the several trusts and their relation to each other this primary purpose has so far wholly failed of accomplishment, and that its accomplish- ment in the future has "become impracticable" (the words used in G. L. [Ter. Ed.] c. 214, § 3 [11]), and indeed prac- tically impossible. Equity will not permit charitable gifts to fail in this manner. It will presume that the donor would attach so much more importance to the object of the gift than to the mechanism by which he intended to accom- plish it that he would prefer to alter the mechanism to the extent necessary to save the object. We agree with the master that this is a proper case for application of the doc- trine of cy pres. Sanderson v. White, 18 Pick. 328, 333. Harvard College v. Society for Promoting Theological Educa- tion, 3 Gray, 280. Jackson v. Phillips, 14 Allen, 539, 574- 596. Cary Library v. Bliss, 151 Mass. 364, 374. Judkins v. Hyannis Public Library Association, 302 Mass. 425, 427. Milton v. Attorney General, 314 Mass. 234. Trustees of the Putnam Free School v. Attorney General, 320 Mass. 94. Scott on Trusts, §§ 399, 399.2, 399.4. Many cases from our reports and elsewhere illustrating various applications
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of this doctrine have been cited in the briefs. Citations need not be multiplied here.
The plan submitted by the master seems to us in general adequate and proper to carry out the esssential purpose of the donor and at the same time to preserve as far as reason- ably practicable the details of his original scheme. The principal departure from the donor's terms is that involved in superseding the discretion of the B trustees as to seventy per cent of the net income of the B trust and requiring them to pay it to the town. We are naturally reluctant to inter- fere with a discretion reposed by the testator in men of his own choice, but there is no positive rule forbidding reason- able modification of discretionary provisions where neces- sary to save the charity. See Minot v. Baker, 147 Mass. 348, 352; Chase v. Dickey, 212 Mass. 555, 567. At this point the master strikes at the root of the whole difficulty. The amount required to be paid to the town, when added to the income of the A trust, will hardly exceed by much more than a reasonable margin of safety the minimum amount required to operate the museum in a reasonably satisfactory manner. It seems likely that, unless conditions prove altogether favorable, no very considerable amount will remain for the acquisition of new exhibits or for educational or recreational activities. The town must be assured of this money, or it cannot operate the museum. The trustees will not and cannot give the assurance. There is no other source from which the money can be obtained. It would seem that the town has no authority to appropriate money raised by taxation to the operation of a museum. See Ducey v. Webster, 237 Mass. 497, 498; Attorney General v. Lowell, 246 Mass. 312, 320; G. L. (Ter. Ed.) c. 40, § 5, as amended. But even if it has such authority, we do not find that any- where in the circumstances or documents connected with its acceptance of the gifts it has bound itself to do so. On the contrary it insisted upon and obtained a guaranty from the donor that he would provide for maintenance. Milton v. Attorney General, 314 Mass. 234, 237. Compare Adams v. Plunkett, 274 Mass. 453, 464. The museum is the kernel of the whole enterprise. If the trustees are not required to
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pay this income to the town the enterprise will fail. They may accumulate or otherwise dispose of the remaining thirty per cent for the benefit of the museum and park in their discretion according to the terms of the will. Under the present form of the trusts the difficulty is not of a kind that can be remedied by instructions or orders to the trustees in specific instances or by a change in the personnel of the trustees. The "impasse" is continuing and will persist through the entire twenty year period unless this court acts. The testator could not have anticipated such a situation. Certainly he did not contemplate that the museum should remain closed and deteriorate during the twenty year period which must elapse before the town acquires complete con- trol of the income. Moreover, on the findings of the master it seems essential to the successful operation of the museum during the twenty year period that the town should be able to use B trust income to acquire additions to the collections, whatever may be the true construction of the will on this point. The proposed scheme provides for this under safe- guards similar to those imposed by the testator.
Equally indispensable to the opening of the museum is the payment of $40,000 from accrued income of the B trust for necessary alterations and repairs.
At the request of the petitioners and in accordance with the apparent intent of the testator as found by the master, with whose finding we agree, and in order to reassure the trustees upon a point which seems to have disturbed them, there should be included in the decree a provision to the effect that none of the B trust income payable to the town shall be used by the town for the erection of any new build- ing to take the place of the residence or art gallery until after the expiration of the twenty year period, but that the town may use such income for the demolition of a garage and boat house the present condition of which makes this necessary, without substituting new buildings. The decree should also contain a provision, in accordance with a find- ing or ruling of the master with which we agree, that the word "deficiency" does not mean deficit, but means an in- sufficiency of the income from the A trust to carry out the
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plans of the town for upkeep, maintenance, and improve- ment of the museum and park. It is plain that such defi- ciency already exists.
The provisions of the proposed plan relative to the dis- posal and acquisition of exhibits seem necessary to success- ful operation of the museum. The testator contemplated that changes would be made in the collections from time to time, and indeed it would seem that this must occur in any properly managed institution of the kind. The plan makes this possible with a minimum of conflict due to divided authority and removes the obstacle encountered in the re- fusal to act of the Museum of Fine Arts in Boston, while at the same time endeavoring to carry out the testator's intent that changes in the exhibits should be made only upon the advice of competent experts.
The provisions of the proposed plan relative to the use by the town of income for educational and recreational purposes both during and after the twenty year period are a considerable departure from the provisions expressed by the testator. Yet we are of opinion that they do not go too far. Since it is necessary to make changes in the ma- chinery of the trusts under the cy pres principle, it would seem that we ought not to circumscribe these changes so narrowly as needlessly to weaken the institution which the testator intended to establish, but rather that we should leave open for efficient exercise all powers fairly compre- hended within his dominant object in order that the insti- tution may realize the complete success which he hoped for it. Educational activities of one kind or another would seem almost an integral part of the operation of an efficient and useful public museum, and recreational activities natur- ally belong to a public park in a country district by the side of a lake. It is clear from the codicil that the testator contemplated both types of activity, although he commit- ted them to the discretion of his trustees and made no express provision for them after the twenty year period. This omission may well have been an oversight. Because of division between control of the premises and control of the money it seems probable that the same difficulties will
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arise in relation to these matters that have made it neces- sary to modify the original provisions in respect to repairs, maintenance, and exhibits. Moreover, it is particularly im- portant that immediately upon the establishment of an institution like that here contemplated plans should be adopted directing its future course and scope and visual- izing the peculiar position which it is to occupy among other more or less similar institutions in the vicinity. Knowl- edge that no funds were to be available for educational or recreational activities after the twenty years would reduce such activities within that period to a temporary status and would tend to prevent the development of a well rounded permanent program suitable for such an enterprise.
The proposal for the establishment of a corporation merely as an agency of the town to manage the museum and park involves only the most technical, if any, departure from the testator's terms. This provision is made optional with the town. A vote of the town would be required in order to establish a corporation. 1 The testator must have known that some board or agency of the town would handle the property and the payments. He prescribed no method by which the town must act. The case is distinguishable on this ground from Adams v. Plunkett, 274 Mass. 453. The town could doubtless create a board to manage the museum and park and could select its members in the same manner as the officers of the proposed corporation would be selected and could charge them with the same duties. Adams v. Plunkett, 274 Mass. 453, 462. See G. L. (Ter. Ed.) c. 40, § 3, last sentence. There seems to be no objection to the creation of an agency in corporate form where one is pro- vided for in the will or authorized by the appropriate court, and there may well be advantages which are pointed out in Ware v. Fitchburg, 200 Mass. 61, where the creation of a corporation to act as an agency of the city in receiving and administering a fund given by will to the city for purposes of a hospital was held not inconsistent with the bequest. See Nelson v. Cushing, 2 Cush. 519; Burr v. Massachusetts
1 A vote authorizing the establishment of a corporation was adopted by the town at a town meeting held March 3, 1947.
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School for the Feeble-Minded, 197 Mass. 357, 359; Boston v. Curley, 276 Mass. 549, 557-559; Curtis v. First Church in Charlestown, 285 Mass. 73, 80; Boston v. Dolan, 298 Mass. 346, 349. The court in framing a scheme cy pres possesses power to permit the formation of such a corporation where it believes that such a course may strengthen the scheme for carrying out the object for which the charity was established. It was said in Codman v. Brigham, 187 Mass. 309, 314, "That the hospital is to be established and maintained by a corporation, rather than by personal trustees, is not of the essence of the gift." Cases like Harvard College v. Attorney General, 228 Mass. 396, and Shattuck v. Wood Memorial Home, Inc. 319 Mass. 444, where there had been no failure of the charity in its original form, are distinguishable.
There are no valid constitutional objections to the pro- posed plan. Once the postulate is accepted that the chari- table trusts will fail unless reconstructed, constitutional difficulties vanish. The findings of the master compel us to accept that postulate. The doctrine of cy pres is not unconstitutional. The gifts were originally made subject to the law embodied in that doctrine. No property is taken. On the contrary the beneficial use of the property is secured to those for whom it was intended. The obligation of no contract is impaired. Boston v. Curley, 276 Mass. 549, 560. There is nothing in Cary Library v. Bliss, 151 Mass. 364, or in Adams v. Plunkett, 274 Mass. 453, contrary to what is here decided.
We realize that in drafting the decree to put in effect the · proposed scheme questions of detail not now anticipated may arise. The single justice is therefore to be at liberty to supply additional necessary detail or even, if necessary, to modify the scheme proposed by the master in minor particulars in a way not inconsistent with its main pro- visions. It is intended, however, that the scheme as re- ported by the master shall, in general, be adopted as the basis of the decree on this part of the case, with the slight modifications expressly indicated in this opinion. The decree may provide that the cause be retained for a reason- able time for such alterations in the scheme as experience
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with it may prove to be required for successful operation of the charity. See Drury v. Natick, 10 Allen, 169, 184.
It remains to deal with certain matters of construction which, while not strictly a part of a cy pres scheme, should nevertheless be considered and covered by the decree in order that the scheme may be freed from possible hampering doubts and for the protection of the trustees in connection with it. These matters are contained in the three next following paragraphs.
(1) We agree with the master that the guaranty agree- ment hereinbefore mentioned, with its amendments, has been fully carried out, and that the A trust fund is now held by the bank "without reference to, or restriction by," said agreement or its amendments.
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