ROBERT W. MORVILLE, JR. vs. GEORGE W. FOWLE & others.

DEVENS, J. If a final decree of a justice of this court is appealed from, without any report or request for a report of the evidence or facts, the only question presented is whether the decree is warranted by the allegations and prayer of the bill. O'Hare v. Downing, 130 Mass. 16.

The plaintiff and the two individual defendants were trustees under a deed, by which certain land was conveyed "in trust for the uses of a Sabbath school and for the diffusion of Christian

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principles as taught and practised by Christian Evangelical denominations, with power to erect, repair, and renew from time to time all buildings necessary to carry out the object and purposes of the trusts herein described." This constituted a public charity. There was no definite body, for whose use the gift was intended, capable of receiving, holding, and using it in the manner provided, and there was a duty to be performed towards such part of the public as should desire instruction in Christian principles as taught and practised by what are known as the Evangelical denominations. Old South Society v. Crocker, 119 Mass. 1.

The deed to the trustees contained a clause, by which they were invested "with full power to sell or exchange said land and improvements, whenever, in the judgment of said trustees or of their successors, another location would better subserve the objects and purposes of said trusts." A building having been erected on the premises by the trustees, and having been occupied and used beneficially for a Sabbath school, and for the uses and purposes named in the trust deed, the defendant trustees, without the consent and against the wishes of the plaintiff trustee, conveyed the premises to the defendant corporation on March 21, 1884, discharged from all trusts named in the trust deed. On the same day, without the knowledge or consent of the plaintiff, they received from the defendant corporation a deed purporting to convey to themselves and the plaintiff as trustees, to be held upon the trusts stated in the original trust deed, a certain other parcel of land, it being recited to have been given as an exchange for the premises conveyed to the defendant corporation. On March 25, 1884, without the knowledge or consent of the plaintiff trustee, the defendant trustees reconveyed to the defendant corporation the parcel of land which had been conveyed to themselves and the plaintiff trustee by it, as above stated. This deed was without consideration other than the conditions stated therein, which bound the defendant corporation to erect upon the premises a building suitable for Sabbath school work, and, in substance, to perform and execute all the trusts imposed upon the trustees by the original trust deed. These conveyances must be treated as one transaction, and their intended purpose was to exchange the original trust

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property for other premises, to substitute a new trustee for those named in the trust deed and their successors, who should execute the trust upon such other premises, so far as the trust was to be locally executed, and to release the trustees from all duties as trustees, or control over the trust property in its ordinary administration. This latter deed was made "upon the condition that when these premises or some other which may be substituted for them shall cease to be used in accordance with the foregoing conditions, the same shall revert to the grantors or their successors, to be held under the original trust," &c. All therefore that was left to the trustees was a right of entry upon the premises for condition broken.

Regarding these deeds as constituting but a single transaction, even if the plaintiff had concurred in it, we do not see how it could be sustained. The donor had selected the trustees for his gift, had provided how vacancies in the board of three trustees should be filled, and directed that the trust should be administered by them and their successors as thus selected. He had given no authority to transfer this property, or the administration of the trust, to an individual, or to a corporation which acts as a unit. The large discretionary powers with which the trustees were invested were to be exercised only after the consideration and discussion which would be given by the trustees composing the board, and as the result of their judgment. To confide all these to a corporation acting as a unit, and to reserve to themselves only a right of entry in case they were not properly exercised, was to attempt to impose upon another duties they were bound themselves to perform, and to violate the trust they had accepted. However honorable their motives may have been, even if all the trustees had concurred, they had no authority to make such a conveyance.

It is the contention of the defendants that this transaction may be separated into distinct parts; and that, even if the deed to the defendant corporation must be pronounced invalid, the other two deeds may be sustained. We do not think the transaction is susceptible of this division. To convey the trust property, with the buildings thereon necessary for the execution of the trust, discharged from all trusts, and to receive in exchange a lot of land without buildings, which would be comparatively

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valueless for the purposes of the trust but for the agreement and conditions contained in the subsequent deed to the defendant corporation, by which it bound itself to erect suitable buildings thereon, would appear plainly a violation of the duties of the trustees. But, assuming that the transaction could be divided, we are not of opinion that the power to sell or exchange the trust property given by the deed is one that could be exercised by two of the trustees without the consent of the third. A distinction has certainly been drawn between the powers of a majority of the trustees where a private and those where a public trust has been created, it having been held that in the latter many powers of the trustees may be exercised by a majority. Ward v. Hipwell, 3 Giff. 547. It will be seen, upon examination, that in most, if not all, of these cases, the powers thus exercised are those of administration only, as in the selection of an agent, a schoolmaster, or a clergyman, or in the performance of purely incidental matters, such as provision for buildings or the care of them. Wilkinson v. Malin, 2 Tyrw. 544. The King v. Beeston, 3 T. R. 592. Withnell v. Gartham, 6 T. R. 388. Even if some of them may go further than this, there are none which permit to the majority the exercise of the powers conferred on trustees, where the character of the instrument, or the nature of the trust, fairly shows that all should join. The power to sell or exchange quoted above was a special and peculiar one, to be used whenever, in the judgment of the trustees, another location would better subserve the purposes of the trust. The land originally granted was designed as the location of the charity by the donor; nor was it intended to be changed but upon the concurrent and collective judgment of the trustees, unless authorized by a court of competent jurisdiction. Chapin v. Chicopee Universalist Society, 8 Gray 580. Austin v. Shaw, 10 Allen 532. Attorney General v. Federal Street Meeting-House, 3 Gray 1. Sloo v. Law, 3 Blatchf. 459. In re Smethwick Congregational Church, W. N. 1886, 196.

Decree affirmed.