ARTHUR C. HILLMAN & others [Note 1] vs. ROMAN CATHOLIC BISHOP OF FALL RIVER & others. [Note 2]

KASS, J. In 1951, four members of the Hillman family, without consideration, gave a release deed to the Roman Catholic Bishop of Fall River (Bishop) of a seven and one-half acre parcel of land in North Attleborough. The deed read: "We . . . release to the . . . Bishop . . . for the use of St. Mary's Parish for educational, religious or recreational purposes, all our right, title, and interest in the land. . . ." The question on appeal is whether that language and circumstances attending the conveyance in 1951 impressed a charitable trust limited to specific charitable purposes upon the Bishop's title.

At the time of its conveyance to the Bishop, the locus was regarded by the Hillmans (Oscar Hillman and his three sons, of whom Arthur is the sole survivor) as something of an albatross. So long as St. Mary's parish school remained open, the locus served as a playground. In 1981, the school closed, and the locus was once again an albatross, this time to the Bishop. He sold the property on March 29, 1984, for $59,000 to real estate entrepreneurs who shortly thereafter resold the locus to the defendant Broad Street Construction, Inc., for $250,000. The albatross had turned into a swan. The swan has undergone a further metamorphosis into a condominium.

The Hillman position is that the purpose of the 1951 conveyance was to provide land on which the Bishop could build a Catholic school and that the conveyance, therefore, was a limited charitable gift in trust. Upon failure of that trust, the plaintiffs say, a resulting trust arose in their favor as to all owners of the locus with knowledge of the breach of trust. See, e.g., Selectmen of Provincetown v. Attorney Gen., 15 Mass. App. Ct. 639, 648 (1983). The plaintiffs concede that, if the gift in 1951 was made with a general charitable intent, their case is defeated. A judge of the Land Court ruled that the 1951 deal conveyed a fee simple and imposed no charitable trust, i.e., the 1951 gift was made with a general charitable intent. [Note 3]

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See Sullivan v. Roman Catholic Archbishop of Boston, 368 Mass. 253, 257 (1975). We affirm.

Quite correctly the judge construed the instrument of conveyance by considering its language as illuminated by the circumstances attendant upon its drafting and delivery. See Bass River Sav. Bank. v. Nickerson, 303 Mass. 332, 334-335 (1939); Groden v. Kelley, 382 Mass. 333, 335 (1981); Harrison v. Marcus, 396 Mass. 424, 429 (1985). The principal source of evidence about attendant circumstances was Arthur Hillman, to whose testimony the judge gave little weight because, as the judge found, his memory was "demonstrably lacking." Questions of credibility are quintessentially within the province of the trial judge. Matsushita Elec. Corp. of America v. Sonus Corp., 362 Mass. 246, 253-254 (1972); Wang Labs., Inc. v. Docktor Pet Centers, Inc., 12 Mass. App. Ct. 213, 220 (1981). Compare Springgate v. School Comm. of Mattapoisett, 11 Mass. App. Ct. 304, 310 (1981). The judge's finding that the Hillmans did not in 1951 intend a restriction beyond the use of the land for the general purposes of St. Mary's parish is not clearly erroneous and was solidly supported by the record. See Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974); Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 159-160 (1977); C.C. & T. Constr. Co. v. Coleman Bros. Corp., 8 Mass. App. Ct. 133, 135 (1979). Contrary to the plaintiffs' suggestion, the judge did not make findings which used his disbelief of Arthur Hillman's testimony as proof of facts to

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the contrary. Cf. Levine v. Amber Mfg. Corp., 6 Mass. App. Ct. 840, 841 (1978).

In two respects, the language of the 1951 deed is inconsistent with the grant of a title limited to a specific charitable purpose. First, the ordinary consequence of a release covenant in a deed is to convey a fee simple. Kaufman v. Federal Natl. Bank, 287 Mass. 97, 101 (1934). Park & Park, Real Estate Law Sections 12-13 (2d ed. 1981). See also G. L. c. 183, Appendix form (4). Second, the words "for the use of St. Mary's Parish," without more, do not establish a limitation on the estate granted. MacDonald v. Street Commrs. of Boston, 268 Mass. 288, 291, 295 (1929) ("for the purposes of a public street"). Loomis v. Boston, 331 Mass. 129, 130, 132 (1954) ("for the purposes of a public park"). Opinion of the Justices, 369 Mass. 979, 981 n.4, 985 (1975) ("The premises hereby conveyed are to be used . . . as a part of a Public Park and Playground now in process of development").

No magical incantation, e.g., "in trust," is required to create a trust. White v. Ditson, 140 Mass. 351, 352-353 (1885). Sullivan v. Roman Catholic Archbishop of Boston, 368 Mass. at 256. Selectmen of Provincetown v. Attorney Gen., 15 Mass. App. Ct. at 642-643. Restatement (Second) of Trusts Section 351 comment b (1959). To create a charitable trust limited to specific charitable purposes, however, requires a more definite expression of intention in the way of granting language or attendant circumstances than here appears. See MacDonald v. Street Commrs. of Boston, 268 Mass. at 295. An example of sufficiently definitive language appears in Salem v. Attorney Gen., 344 Mass. 626, 627 (1962): "`to the City of Salem to be used forever as Public Grounds for the benefit and enjoyment of the citizens of said City, under such regulations as may seem best for the proper care of the same . . .' ." See also Newhall v. Second Church & Soc. of Boston, 349 Mass. 493, 496 (1965). See and compare Russell v. Russell, 18 Mass. App. Ct. 957, 959 (1984). The judge was warranted, on the record made before him, in concluding that the grant to the Bishop (who is a corporation sole) was for general charitable purposes and that the phrase "for the use of St. Mary's Parish

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for educational, religious or recreational purposes" was inserted to differentiate the grant as a gift to benefit St. Mary's in particular from a gift to the Bishop (i.e., the entire Fall River diocese) in general. The charitable asset given, land, could be turned into another form of asset more useable by the designated charity, viz., cash. See Sullivan v. Roman Catholic Archbishop of Boston, 368 Mass. at 258-259. It is uncontroverted that the cash so generated was applied for the benefit of St. Mary's.

That the Bishop knew that prospective buyers were concerned about the state of the title to the locus because of the words of grant did not constitute an admission by the Bishop that he did not foresee a fee simple absolute. Cf. Abbott v. Walker, 204 Mass. 71, 73 (1910). The Bishop, as we know from the record, was not without legal advice, and it did not require an exceptionally clairvoyant conveyancer to foresee that purchase of the locus from the Bishop might carry with it purchase of a law suit.

Judgment affirmed.