Opinion
January 17, 1929.
May 29, 1929.
Present: RUGG, C.J., CROSBY, CARROLL, SANDERSON, JJ.
Charity. Trust, Charitable. Devise and Legacy.
A provision of a will, devising land to one for life and thereafter "to such charitable uses and purposes as . . . [the life tenant] shall appoint," is sufficient to create a valid charitable trust; and the devisee under such provision took a life estate with the power to dispose of the remainder to charity.
PETITION, filed in the Land Court on August 31, 1926, for registration of the title to land.
The petition was heard by Smith, J. Material facts found by the judge in his decision and decrees therein ordered by him are described in the opinion. The petitioner appealed from his decision.
H.C. Thorndike, for the petitioner.
No argument nor brief for the respondents.
This petition is to register title to five parcels of land in Brockton. The judge of the Land Court found that James Reilly, father of the petitioner, died in 1898, leaving the petitioner and a daughter Susan as heirs at law. In 1921 Susan conveyed to the petitioner "all interest as an heir-at-law of James Reilly, and all interest under his will, `in and to any and all real estate of which' he died seised." The judge found that the petitioner had a good record title to parcel "4" and to that part of parcel "3" lying between the land of the respondent and the Salisbury River; and that the balance of the land of which James Reilly died seised was subject to the terms of his will. He ordered that a decree be entered that the petitioner had a proper title for registration of parcel "4" and of that part of parcel "3" conveyed to James Reilly by Isaac Kingman in 1870. He further ordered that a decree be entered covering the remaining land, which was to state that the petitioner had a life estate with the power and subject to the obligations imposed by the will of James Reilly with the right to dispose of this property by her will for "such charitable uses and purposes" as she may appoint. The petitioner appealed, her contentions being that the testator did not dispose of the remainder to any trustee, that he died intestate as to this remainder; that the disposition was not a valid gift to a charity; and as no charitable trust was created which can be administered by the cy pres doctrine the petitioner is the owner in fee.
James Reilly in his will gave all his property to his wife for life. In the second paragraph he disposed of the so called Clinton Street property. On the death of his wife and after the death of Susan, his son Bernard, and Mary, it was given "to such charitable uses and purposes as Mary shall appoint." In the third paragraph the testator gave the land on Gleason Street after his wife's death to the petitioner in trust for the support of her brother Bernard; and on his death the land was given "to such charitable uses and purposes as Mary shall appoint." In the fourth paragraph certain land was given to Mary for life, with a provision that on her death it was to go to such charitable uses as she should appoint. The residuary clause contained a similar provision.
The will of James Reilly shows that he intended to give the estate in question on the death of his wife and children to charity. This property was donated to charitable uses with authority given to Mary to designate the particular charities. See Lamb v. Jordan, 233 Mass. 335, 340. A public charity was created. Minot v. Baker, 147 Mass. 348. Sherman v. Shaw, 243 Mass. 257, and cases cited. The fact that no specific class of charities was mentioned does not prevent the gift from being a charity; and it was not necessary to designate by name a particular devisee under this devise. See Gill v. Attorney General, 197 Mass. 232. It was not essential that a trustee should be named. Where land is devised for a public charity and no trustee is named, a court of equity will appoint a trustee, if necessary, to hold the estate for the purposes for which it was devised. Missionary Society of the Methodist Episcopal Church v. Chapman, 128 Mass. 265, 268. Darcy v. Kelley, 153 Mass. 433, and cases cited. See Nichols v. Allen, 130 Mass. 211, 215; Schouler, petitioner, 134 Mass. 426, 427. The words "to such charitable uses and purposes as Mary shall appoint" are sufficient to create a valid charitable trust. Going v. Emery, 16 Pick. 107. Brown v. Kelsey, 2 Cush. 243. Winslow v. Cummings, 3 Cush. 358. White v. Ditson, 140 Mass. 351. The devise to Mary of the legal estate for life would support the charitable use. She could dispose of the remainder to charity as she might appoint. The question of the disposition of the remainder in case of Mary's death without exercising the power need not now be decided. See Schouler, petitioner, supra; White v. Ditson, supra; Minot v. Baker, supra. The Land Court was right in deciding that Mary had a life estate in the land in question. The case is governed by Schouler, petitioner, supra, Minot v. Baker, supra, Bullard v. Chandler, 149 Mass. 532, Sherman v. Shaw, supra. See Jackson v. Phillips, 14 Allen, 539, 556. The petitioner relies on Langley v. Conlan, 212 Mass. 135, Bragg v. Litchfield, 212 Mass. 148, French v. Heywood, 214 Mass. 582, and Montague v. Silsbee, 218 Mass. 107. None of these cases is in conflict with what is here decided.
It follows that the decision is affirmed.
So ordered.