Attorney Gen. v. President & Fellows of Harvard College

213 N.E.2d 840, 350 Mass. 125, 1966 Mass. LEXIS 696
CourtMassachusetts Supreme Judicial Court
DecidedJanuary 31, 1966
StatusPublished
Cited by8 cases

This text of 213 N.E.2d 840 (Attorney Gen. v. President & Fellows of Harvard College) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attorney Gen. v. President & Fellows of Harvard College, 213 N.E.2d 840, 350 Mass. 125, 1966 Mass. LEXIS 696 (Mass. 1966).

Opinions

Whittemore, J.

This information in equity to enforce a trust, brought by the Attorney General at the relation of members of the Association for the Arnold Arboretum, Inc., challenges the acts of the defendant under a resolution of January 19, 1953, in removing to Cambridge, from the Arnold Arboretum premises in the Jamaica Plain district of Boston, the bulk of the library and herbarium of the Arboretum. The basic issue is whether this removal was a breach of the trust under which the Arnold Arboretum was established and developed. The facts are found in a master’s report.

Interlocutory decrees were entered in the county court, denying the defendant’s motions in respect of the master’s [127]*127report, overruling its exceptions thereto and confirming the report. A reservation and report by the single justice1 presents these decrees for review as well as the substance of the final decree appropriately to be entered. The master’s report is well organized, clear, and complete, and we dispose of the case thereon.

The trust is set out in an Indenture dated March 29,1872, by which the trustees under the will of James B. Arnold of New Bedford gave to the President and Fellows of Harvard College (the Corporation) a fund that, by the will, was to be “applied for the promotion of Agricultural or Horticultural improvements, or other Philosophical or Philanthropic purposes.”

There were negotiations preliminary to the execution of the Indenture. George B. Emerson, one of James Arnold’s trustees, in a letter to the acting president of Harvard, in March, 1869, had stated his desire “if possible, to have an arboretum — and for Harvard College”; also, if land could be found near the college, to establish the arboretum in Cambridge as an appendage to the Botanic Garden. Emerson and the two other trustees, John J. Dixwell and Francis E. Parker, had been closely associated with Harvard.

The 1872 Indenture required that the Corporation should accumulate income until the principal should be $150,000 and until the Bussey land at West Roxbury (now Jamaica Plain) thereinafter described should come into the full and free possession of the Corporation and that thereafter the Corporation should devote ninety-five per cent of “the said nett income in every year, to the establishment and support of an Arboretum,2 to be called the Arnold Arboretum, which shall contain, as far as is practicable, all the trees, shrubs and herbaceous plants, either indigenous or exotic which can be raised in the open air at the said West Roxbury, . . . [128]*128and to the support of a Professor, to be called the Arnold Professor, who shall have the care and management of the said Arboretum, subject to the same control by the said President and Fellows to which the professors in the Bus-sey Institution are now subject, and who shall teach the knowledge of trees in the University which is in the charge of the said President and Fellows, and shall give such other instruction therein as may be naturally directly and usefully connected therewith.” The Indenture further provides : “And as the entire fund, increased by the accumulations above named, under the best management and with the greatest economy, is barely sufficient to accomplish the proposed object, it is expressly provided that it shall not be diminished by supplementing any other object, however meritorious, or kindred in its nature. But the said President and Fellows shall be allowed to obtain from said Arboretum, free of cost, any trees, shrubs, and herbaceous plants, which, in the judgment of the Arnold Professor, can be spared from said Arboretum, without injury thereto; the same to be used for the ornament of the college grounds, at Cambridge or elsewhere.” A following article provided that for “the purpose of ascertaining the said nett income, it is agreed that the fund shall be subject to no charge, except for actual expenses; and in the management of the said fund, it is to be charged only such a part of the actual expense of managing the property of the college, as the said fund bears to the entire property of the College.”

The Corporation by the 1872 Indenture agreed to dedicate exclusively to the purposes of the Arboretum about 137 acres of the land in West Roxbury (now Jamaica Plain) devised to it by Benjamin Bussey for the purpose, as declared in his will, of establishing there as the Bussey Institution a course of instruction in practical agriculture and subservient and connected arts.

The Corporation in due course after 1872 and in the decades following established and maintained the Arnold Arboretum with its physical embodiment, as intended, on the Bussey land in Jamaica Plain, and with related activi[129]*129ties centering in an administration building on the Arbore-grounds.

Charles Sprague Sargent was appointed Director of the Arnold Arboretum in 1873 and was elected Arnold Professor on June 30, 1879. He held these positions until his death in 1927. Oakes Ames and, after him, Elmer Drew Merrill followed Sargent as Arnold Professor, with the position vacant in 1927-1932, 1935-1936, and 1948-1954. Each of these Arnold Professors held other responsible positions in the administration of Harvard’s botanical collections. Sargent in 1879 pointed out to the Corporation the need for both a library and a reference collection of plant specimens. The Corporation promptly, and thereafter from time to time, made appropriations from the trust income for these purposes. The library and herbarium were located in a dwelling house in Brookline until 1892 and thereafter, until the removal to Cambridge in 1954, in the administration building at Jamaica Plain.

Under the guidance of Professors Sargent, Ames, and Merrill, there had been accumulated by 1946 approximately 6,500 species in the living collection, 630,000 sheets of specimens in the herbarium, and 46,000 bound volumes and 14,000 pamphlets in the library. By 1944, or earlier, the administration building had become overcrowded and presented a serious fire hazard.

The Arboretum under Sargent “had more or less followed a ‘policy of isolation.’ ” Professors Ames and Merrill, however, after 1927, departed from this policy by closer cooperation with other botanical departments. At the same time the scientific work of the Arboretum was broadened to include pathology, cytology, genetics, ecology, and other fields. As noted, the 1872 Indenture provided for the living collection to be raised at West Roxbury and the Arnold Professor to teach in the university and contained no other provision limiting the location of scientific work of the Arboretum. Members of the staff conducted explorations in North America, Europe, Africa, Australia, and Asia to bring back living plants and specimens. They used the [130]*130biological laboratories and Gray Herbarium in Cambridge for research and office space and taught courses in the Department of Biology at Cambridge. Research and experimental work were carried on at the Harvard Forest at Petersham and the Case Estates in Weston.3

The Arnold Arboretum, growing under able leadership, acquired many of the characteristics of an independent institution, and it came to be so regarded. It acquired high reputation and prestige. The Corporation received additional gifts and bequests as endowment funds for the purposes of the Arboretum. After 1927, the Corporation raised a fund of $1,000,000 as the Charles Sprague Sargent Memorial to add to the endowment.4

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Attorney Gen. v. President & Fellows of Harvard College
213 N.E.2d 840 (Massachusetts Supreme Judicial Court, 1966)

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Bluebook (online)
213 N.E.2d 840, 350 Mass. 125, 1966 Mass. LEXIS 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-gen-v-president-fellows-of-harvard-college-mass-1966.