Knowlton, C. J.
The legacy to the inhabitants of the town of Boston, given in the codicil of the will of Benjamin Franklin, with the provision for the disposition and management of it, constitutes a public charity. It was the intention of the testator that, within a year after his death, benefits should begin to accrue from it to a large class of worthy young men in Boston, through the creation of a fund from which they could borrow on easy terms small sums for their advancement. He provided that at the expiration of one hundred years a large proportion of the accumulated fund should.be expended in building or procuring public works of general utility which should promote the convenience and comfort of the people of Boston or of others temporarily abiding there. He provided for the investment and accumulation of the balance for one hundred years more, at the end of which period a part of it is to be subject to the disposition of the people of Boston and a part to the disposition of the government of the State. The plan was stated by the testator with considerable elaboration, and the method of carrying it into effect appears in the codicil. This is by a board of managers to consist of the selectmen of the town, and the ministers of the oldest Episcopalian, Congregational and Presbyterian churches in the town. The gift was in such a form as to raise a question whether the legal title to the fund was in the inhabitants of Boston or in the managers. Similar questions arose in Drury v. Natick, 10 Allen, 169, and Cary Library v. Bliss, 151 Mass. 364. In the first of these cases it was held that the legal title was in the town, while the entire management of the property was in a board of trustees provided by the will. In the other case it was said in the opinion that the legal title to the fund was in the [381]*381trustees, and that after the library was established the title to the library was in the town ; but in this case, as in Drury v. Natick, the management of the property both before and after the establishment of the library was in the trustees created by the founder. In regard to the present case it was decided by a majority of this court that the legal title to the fund was in the town of Boston so long as Boston was a town, and is now in the city of Boston. Higginson v. Turner, 171 Mass. 586. But this decision was not intended to nullify, and could not nullify the provisions of the codicil as to the management of the fund. Cary Library v. Bliss, 151 Mass. 364. In Drury v. Natick, ubi supra, where the title to the property was in the town, it was said that the authority given to the trustees was “ not a mere naked power, but a power coupled with a trust.” In Cary Library v. Bliss the same was held to be true of the power of the trustees after the establishment of the library as the property of the town.
The provisions in regard to the management of the fund were doubtless deemed important by Dr. Franklin, and they must be given effect, so far as possible, according to his purpose and intention. The following language from the opinion in Cary Library v. Bliss is applicable to the present case: “ That part of the donor’s scheme which relates to the management and control of the fund and of the library cannot be disregarded as unimportant. It prescribed the method of administering the charity which she thought best adapted to the accomplishment of her purpose. She chose to give her money to be used in that way. She did not authorize the use of it in any other way, unless for some reason it should become impracticable to pursue the course which she prescribed. It is fair to presume that, before founding this charity, she carefully considered the subject of its administration, and thought it wise to select for her board of trustees those officers who have in their special charge the business interests of the town, and those whose duty it is to superintend the education of children, together with such reverend gentlemen as regularly minister in the churches, and are expected earnestly to desire the moral and religious welfare of all the people.” It seems plain, therefore, that the board of managers created by the codicil, acting in a fiduciary relation [382]*382under the instrument, are to have the charge and management of the fund, and are to lay out in public works that part of it which is so to be used. See also Ex parte Blackburne, 1 J. & W. 297; Fellows v. Miner, 119 Mass. 541; Sohier v. Burr, 127 Mass. 221; Bullard v. Chandler, 149 Mass. 532, 541.
When the town of Boston became a city its board of selectmen went out of existence, and for more than eighty years there has been no such board. At the. time of Dr. Franklin’s death the selectmen were nine in number, and until the change from a town to a city they constituted a large majority of the managers. This board of managers, as constituted by the testator, ceased to exist in 1822, and only the two clerical members of it remained eligible to continuance in the administration of the trust.
The selectmen while in the performance of their duties as managers were not acting as public officers of the town. They were acting as appointees under the codicil, precisely as the ministers were acting, their only official relation in that field being their relation to the trust. The testator selected his appointees from two classes; and the reference in the will to the public office of the lay members was only a mode of designating the persons appointed to act during their respective terms of office as selectmen. While under the St. 1821, c. 110, the mayor and aldermen became their successors in most particulars as officers of the city, they did not become their successors as managers of the Franklin fund. The will contained no provision in regard to the persons who should act as managers if the office of selectman of Boston should be abolished. But the general purpose of the testator that the fund should be in charge of a board of managers remained unchanged, and in such a case, when it becomes impossible to administer a public charity precisely according to the directions of the founder, it is the duty of a court of equity to carry out his general purpose as nearly as practicable. American Academy v. Harvard College, 12 Gray, 582. Weeks v. Hobson, 150 Mass. 377. Darcy v. Kelley, 153 Mass. 433. Sears v. Chapman, 158 Mass. 400. Attorney General v. Briggs, 164 Mass. 561. Amory v. Attorney General, 179 Mass. 89.
The will being silent as to the persons who are to act as managers with the ministers when there are no longer selectmen, [383]*383it is for a court of equity on application, by virtue of its general jurisdiction over the administration of trusts, to appoint other managers. Without such an appointment no one is legally authorized to act in the place of the selectmen.
For many years the mayor and aldermen, and more lately the aldermen alone, acted as managers with the ministers without objection. It seems that until lately, no controversies have arisen, nor any important differences of opinion as to the conduct of the business. It is only since the expiration of the first hundred years, when it is time to lay out money in public works, that it becomes important to look sharply at the legal rights of the persons assuming to act as managers.
Free access — add to your briefcase to read the full text and ask questions with AI
Knowlton, C. J.
The legacy to the inhabitants of the town of Boston, given in the codicil of the will of Benjamin Franklin, with the provision for the disposition and management of it, constitutes a public charity. It was the intention of the testator that, within a year after his death, benefits should begin to accrue from it to a large class of worthy young men in Boston, through the creation of a fund from which they could borrow on easy terms small sums for their advancement. He provided that at the expiration of one hundred years a large proportion of the accumulated fund should.be expended in building or procuring public works of general utility which should promote the convenience and comfort of the people of Boston or of others temporarily abiding there. He provided for the investment and accumulation of the balance for one hundred years more, at the end of which period a part of it is to be subject to the disposition of the people of Boston and a part to the disposition of the government of the State. The plan was stated by the testator with considerable elaboration, and the method of carrying it into effect appears in the codicil. This is by a board of managers to consist of the selectmen of the town, and the ministers of the oldest Episcopalian, Congregational and Presbyterian churches in the town. The gift was in such a form as to raise a question whether the legal title to the fund was in the inhabitants of Boston or in the managers. Similar questions arose in Drury v. Natick, 10 Allen, 169, and Cary Library v. Bliss, 151 Mass. 364. In the first of these cases it was held that the legal title was in the town, while the entire management of the property was in a board of trustees provided by the will. In the other case it was said in the opinion that the legal title to the fund was in the [381]*381trustees, and that after the library was established the title to the library was in the town ; but in this case, as in Drury v. Natick, the management of the property both before and after the establishment of the library was in the trustees created by the founder. In regard to the present case it was decided by a majority of this court that the legal title to the fund was in the town of Boston so long as Boston was a town, and is now in the city of Boston. Higginson v. Turner, 171 Mass. 586. But this decision was not intended to nullify, and could not nullify the provisions of the codicil as to the management of the fund. Cary Library v. Bliss, 151 Mass. 364. In Drury v. Natick, ubi supra, where the title to the property was in the town, it was said that the authority given to the trustees was “ not a mere naked power, but a power coupled with a trust.” In Cary Library v. Bliss the same was held to be true of the power of the trustees after the establishment of the library as the property of the town.
The provisions in regard to the management of the fund were doubtless deemed important by Dr. Franklin, and they must be given effect, so far as possible, according to his purpose and intention. The following language from the opinion in Cary Library v. Bliss is applicable to the present case: “ That part of the donor’s scheme which relates to the management and control of the fund and of the library cannot be disregarded as unimportant. It prescribed the method of administering the charity which she thought best adapted to the accomplishment of her purpose. She chose to give her money to be used in that way. She did not authorize the use of it in any other way, unless for some reason it should become impracticable to pursue the course which she prescribed. It is fair to presume that, before founding this charity, she carefully considered the subject of its administration, and thought it wise to select for her board of trustees those officers who have in their special charge the business interests of the town, and those whose duty it is to superintend the education of children, together with such reverend gentlemen as regularly minister in the churches, and are expected earnestly to desire the moral and religious welfare of all the people.” It seems plain, therefore, that the board of managers created by the codicil, acting in a fiduciary relation [382]*382under the instrument, are to have the charge and management of the fund, and are to lay out in public works that part of it which is so to be used. See also Ex parte Blackburne, 1 J. & W. 297; Fellows v. Miner, 119 Mass. 541; Sohier v. Burr, 127 Mass. 221; Bullard v. Chandler, 149 Mass. 532, 541.
When the town of Boston became a city its board of selectmen went out of existence, and for more than eighty years there has been no such board. At the. time of Dr. Franklin’s death the selectmen were nine in number, and until the change from a town to a city they constituted a large majority of the managers. This board of managers, as constituted by the testator, ceased to exist in 1822, and only the two clerical members of it remained eligible to continuance in the administration of the trust.
The selectmen while in the performance of their duties as managers were not acting as public officers of the town. They were acting as appointees under the codicil, precisely as the ministers were acting, their only official relation in that field being their relation to the trust. The testator selected his appointees from two classes; and the reference in the will to the public office of the lay members was only a mode of designating the persons appointed to act during their respective terms of office as selectmen. While under the St. 1821, c. 110, the mayor and aldermen became their successors in most particulars as officers of the city, they did not become their successors as managers of the Franklin fund. The will contained no provision in regard to the persons who should act as managers if the office of selectman of Boston should be abolished. But the general purpose of the testator that the fund should be in charge of a board of managers remained unchanged, and in such a case, when it becomes impossible to administer a public charity precisely according to the directions of the founder, it is the duty of a court of equity to carry out his general purpose as nearly as practicable. American Academy v. Harvard College, 12 Gray, 582. Weeks v. Hobson, 150 Mass. 377. Darcy v. Kelley, 153 Mass. 433. Sears v. Chapman, 158 Mass. 400. Attorney General v. Briggs, 164 Mass. 561. Amory v. Attorney General, 179 Mass. 89.
The will being silent as to the persons who are to act as managers with the ministers when there are no longer selectmen, [383]*383it is for a court of equity on application, by virtue of its general jurisdiction over the administration of trusts, to appoint other managers. Without such an appointment no one is legally authorized to act in the place of the selectmen.
For many years the mayor and aldermen, and more lately the aldermen alone, acted as managers with the ministers without objection. It seems that until lately, no controversies have arisen, nor any important differences of opinion as to the conduct of the business. It is only since the expiration of the first hundred years, when it is time to lay out money in public works, that it becomes important to look sharply at the legal rights of the persons assuming to act as managers.
From what we have already said it appears that, in the absence of any appointment by a court, no person succeeded to the powers and rights of the selectmen in the execution of this trust. Long acquiescence by the clerical managers and others, in the action of members of the board of aldermen, does not give members of that board a right to act in the disposition of this fund. It follows that the votes of May 21, 1902, passed by the affirmative action of eleven persons, all of whom were members of the board of aldermen, against the negative vote of two ministers, members of the board of managers, and two persons who were members of the board of aldermen, were without legal authority and void.
We are asked for instructions upon the question whether the defendants Mr. Eells, Mr. Duane, and Mr. MacLennan, are authorized to act as managers under the codicil. Upon the facts stated this question should be answered in the affirmative as to each of them. The persons designated in this part of the will are “the Ministers of the oldest Episcopalian, Congregational and Presbyterian Churches in that Town.” This means three ministers in all, representing the three denominations mentioned, each one representing the oldest church of his denomination in Boston. There seems to be little if any real dispute upon this part of the case. Upon the facts stated we are of opinion that King’s Chapel ceased to be an Episcopalian church within the meaning of the term used by the testator, and that Christ Church is the oldest Episcopalian church in Boston. The Reverend Doctor George A. Gordon, pastor of the Old South Congrega[384]*384tional Church, averring that he was made a defendant against his will, declares that the church of which he is pastor is not the oldest Congregational church in Boston within the meaning of the words in the codicil, and disclaims any rights-or interest in these proceedings, and in the matter to which they relate. The bill states that at the time of Dr. Franklin’s death the church of which Mr. Eells is the pastor was the oldest Congregational church in Boston. It further states that the minister, and probably a majority of the members of this church, then entertained opinions about the doctrine of the Trinity and other matters of dogma which were substantially the same as the opinions which later became known under the distinctive name of Unitarian, in contradistinction to Congregational, or Orthodox Congregational. It is stated that the line of demarcation between these two branches of the Congregational church was distinctly drawn about the year 1815. Both branches of the church have continued Congregational in government since that date, and many, if not most of the churches in whose name the word “ Congregational ” appears, even if Unitarian in doctrine, have retained their name unchanged. The leading American lexicographers make the primary meaning of the word “ Congregational ” pertain to church government, although a secondary and popular meaning relates to doctrine. Doubtless many of the ministers and people of so-called Orthodox Congregational churches entertain doctrinal opinions very different from those most prevalent in the same churches one hundred years ago. We are of opinion that the testator, in using this word, did not have in mind any nice shades of distinction in regard to the doctrine of the Trinity, or other kindred doctrines, but that he meant to include churches of a kind well known in Boston and elsewhere in Massachusetts, which were not exactly alike in their doctrines, but which, chiefly by reason of their polity, were called Congregational. The ease does not show that the so-called “ First Church in Boston ” has ceased to be a Congregational church within the meaning of the will.
The Supreme Court of New Hampshire in The Dublin case, 38 N. H. 459, gave an elaborate decision which fully covers the question before us, and which is in accordance with the view we have stated. Decisions in this Commonwealth recognize the [385]*385distinguishing features of Congregational churches. Baker v. Fales, 16 Mass. 488, 515. Weld v. May, 9 Cush. 181, 184. Attorney General v. Federal Street Meeting-house, 3 Gray, 1, 57.
The words “ lay out” mean something more than the adoption of a plan for the use of the money in the way directed. They include the actual expenditure of it in the establishment of public works of the kind described, all of which is to be done by the board of managers.
It hardly could be contended that this board could compel the city of Boston to assume any burden of maintenance or otherwise, involving the use of money to be raised by taxation, whatever the city might do voluntarily under the authority of law. In view of our decision in regard to the invalidity of the votes, we do not deem it necessary to consider questions as to the details of the particular expenditure to which the votes relate.
The duties of the managers are not of a kind which require a unanimous vote of the board as a foundation for action. The concurrence of a majority is sufficient to authorize proper proceedings. This board is similar to a board of public officers, or a committee appointed by a public body to perform public duties. Such a board or committee may always act by a majority. Damon v. Granby, 2 Pick. 345. Williams v. Lunenburg School District, 21 Pick. 75. Weymouth Braintree Fire District v. County Commissioners, 108 Mass. 142. It is a board appointed to act in a fiduciary capacity in the administration of the affairs of a public charity. A distinction is made between private agents, or agents or trustees of a private trust, and trustees managing business of a public charity like that intrusted to this board. In the performance of duties of this latter kind, a board may act by a majority. Morville v. Fowle, 144 Mass. 109, 113. Ward v. Hipwell, 3 Giff. 547. The King v. Beeston, 3 T. R. 592. Withnell v. Gartham, 6 T. R. 388.
The final prayer of the bill for special relief is, that if the court takes the view of the law which we have taken, it will appoint some suitable person or persons to act as managers under the terms of the codicil, and will enjoin the defendant Doyle and the other ten defendant aldermen who acted affirmatively in the votes of May 21,1902, from purchasing the land mentioned [386]*386in the vote, and from doing anything concerning the laying out or expenditure of any part of the Franklin fund.
We are of opinion that this prayer should be granted. Before appointing managers to act in the place of the selectmen, it is necessary to ascertain as nearly as possible the general purpose of the testator in selecting his board. Looking at the designation of persons who were to constitute from time to time the lay members of the board, and also at the designation of clerical members, it seems that they were chosen, not for any particular official qualification, or for the possession of any particular doctrinal opinions, but with a view to their representative character, as men together combining the best general qualifications for the administration of such a trust. When the codicil was made the three religious denominations mentioned in it were leading denominations in this part of the United States, and the ministers in charge of leading churches of these denominations held a high place for influence in the community, not only in religious affairs, but in educational, charitable and social matters. Boston was a town of a very small population in comparison with the present population of the city, and the nine persons chosen for selectmen would naturally represent a considerable proportion of the intelligence, integrity, strength and business ability of the town at that time. In a city of the size of Boston to-day, such a board necessarily includes only a comparatively small proportional part of the whole number of able and excellent men who would be willing to serve without pay in charitable work. If there were any peculiar duties pertaining to the official station of the selectmen which were considered by the testator as indicating fitness for service as managers, doubtless they were the important executive and administrative duties performed by these town officers. By the original city charter of Boston (St. 1821, c. 110) these duties were imposed upon the mayor and aldermen, and by the amendatory statute of 1854, c. 448, most of them were left to be performed by the board of aldermen alone, of which the mayor was no longer to ^ be a member. By the later statute of 1885, c. 266, § 6, the Legislature took from the board of aldermen all its executive power and conferred it upon the mayor, and by § 12 forbade action by the board in any administrative or executive business [387]*387of the city, putting all this power into the hands of the mayor and certain boards in charge of special departments. So far as the exercise of executive and administrative functions by the selectmen was evidence of their qualifications and a reason for their appointment as managers of this charity, the reason is not applicable to the aldermen of Boston under existing laws. The mayor is the official representative of executive power in the city, and if the performance of executive duties in the city government should be considered in the selection of the managers of this charity, he is the only officer of distinction in this department. In regard to the administration of the charity the testator said in the codicil, “ It is presumed that there will always be found in Boston virtuous and benevolent Citizens willing to bestow a part of their Time in doing good to the rising Generation by Superintending and managing this Institution gratis,” etc. We are of opinion that managers should be appointed by the court from this class of citizens, chosen by reason of their qualifications, intellectual and moral, for this important service. We deem it proper that the mayor ex officio should be a member of the board, and that the whole number of lay members to act with the clerical members should be the same as the number of selectmen at the time of Dr. Franklin’s death.
The provisions of the R. L. c. 149, § 1, in relation to the giving of bond by trustees appointed by the Probate Court under a will, are not applicable to these managers. Drury v. Natick, 10 Allen, 169, 176. Lowell, appellant, 22 Pick. 215. The case is to be heard before a single justice of this court, for the appointment of nine managers, of whom the mayor of the city shall be one, to act with the ministers in accordance with this opinion, and an injunction is to be issued as prayed for.
So ordered.