EDWARD H. MASON v. MASSACHUSETTS GENERAL HOSPITAL & others.

BILL IN EQUITY , filed in the Probate Court on February 28, 1910, seeking instructions as to the residuary clause, quoted in the opinion, of the will of John Ashton, late of Newton.

The proceedings in the Probate Court are described in the opinion.

On appeal to this court, the case was heard by Hammond, J. Besides the facts stated in the opinion, the single justice found that the testator made his will on December 17, 1863, and that he died on May 14, 1867. The will contained many bequests and then left the residue of the estate, after the death of the testator's wife, to trustees with directions as to the disposition of the income. After the death of the survivor of the testator's children under twenty-one years of age or without issue, the trustees were to make certain specific payments, and then to dispose of the residue according to the clause quoted in the opinion. The testator's last surviving child was Kate Ashton, who died on January 13, 1908, without issue.

The single justice also found that the testator and Governor Claflin and Mrs. Claflin were neighbors and intimate, and that in 1867, 1868 and 1869 Mrs. Claflin was one of the managers and officers of the Discharged Soldiers' Home. He also found that "at the time this will was made the Massachusetts General Hospital was, and for some years had been, known and called as well the Massachusetts Hospital as the Massachusetts General Hospital. I find that at the time this will was made, provision had been made there for the care of diseased and wounded soldiers, — not as a Home for Discharged Soldiers, but as a place where wounded and diseased soldiers should be treated, and that that was generally known, — that a wounded soldier could go there as any other patient could. But I do not find that this institution made any provision for the care of discharged soldiers as such or that it was intended as a Home for Soldiers."

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The single justice reserved the case upon certain facts found by him for determination by the full court.

A. Hemenway, (J. Abbott with him,) for the Massachusetts General Hospital.

B. B. Jones, (N. N. Jones with him,) for the Trustees of the Soldiers' Home in Massachusetts.

MORTON, J. This is a bill in equity by the surviving trustee under the will of one John Ashton for instructions as to the construction of the following residuary clause in said will: "7th. All the residue and remainder of my property shall be given to the Massachusetts Hospital for diseased and wounded soldiers." The plaintiff has upwards of $20,000 in his hands to be disposed of under the clause in question. Various parties were made defendants. The Massachusetts General Hospital, the Massachusetts Homoeopathic Hospital, the Trustees of the Soldiers' Home in Massachusetts, Mary G. Rustemeyer and the Attorney-General appeared in the Probate Court. The others were all defaulted. The Probate Court [Note p421-1] ordered and decreed that the plaintiff "pay over said residue and remainder ... to the Trustees of the Soldiers' Home in Massachusetts aforesaid, to receive and expend for the benefit of diseased and wounded soldiers in Massachusetts." The Massachusetts General Hospital appealed. The single justice was of opinion upon the facts found by him that the Massachusetts General Hospital was the legatee intended by the testator, but at the request of the parties reserved the case upon the facts found by him for the full court. The heir at law did not appear at the hearing in this court, and it is not contended by her, or any one else, that the contingency upon which the residuary clause was to become operative has not occurred.

The single justice found that the Trustees of the Soldiers' Home in Massachusetts was not in existence when the will was made, and that the Massachusetts Homoeopathic Hospital was incorporated in 1851, and its first hospital was not established until 1871; and he found that neither of these institutions was intended by the testator. Counsel for the Trustees of the Soldiers' Home do not contend that it was the institution intended by the testator. Their contention is that the institution intended by

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the testator was an Association on Springfield Street in the city of Boston, known as the Discharged Soldiers' Home, which had been established a short time before the will was made, for the purpose of providing a home for sick and wounded soldiers who had been honorably discharged from the army of the United States. That association or institution has admittedly ceased to exist; but it is contended by the Trustees of the Soldiers' Home in Massachusetts that the gift constitutes a charitable trust, that the case is one for the application of the cy pres doctrine, and that the fund should be handed over to them to administer.

We interpret the words "for diseased and wounded soldiers" in the clause in question, not as descriptive of the institution which is to take, but of the purpose to which the gift is to be devoted. That, it seems to us, is the natural construction of the language used. The question then is, What institution or corporation did the testator mean by the words "Massachusetts Hospital"?

In the effort to ascertain whom the testator meant it is proper to consider the circumstances existing at the time when the will was made. And if in the light of those it is plain what corporation or institution was intended, then such corporation or institution is to take regardless of the fact that there may be another institution or corporation which would better carry out the testator's purpose. See Tucker v. Seaman's Aid Society, 7 Met. 188.

The single justice found that the Massachusetts General Hospital was incorporated in 1810, and that "at the time this will was made . . . [it] was, and for some years had been, known and called as well the Massachusetts Hospital as the Massachusetts General Hospital." He further found that at the time the will was made "provision had been made there for the care of diseased and wounded soldiers — not as a Home for Discharged Soldiers, but as a place where wounded and diseased soldiers should be treated, and that that was generally known." He found that the testator was a hair dresser doing business on Spring Lane in Boston; that he was sixty-three years of age when the will was made; that he was a man of intelligence and "had the knowledge of men of that age moving about the city ordinarily." But there was nothing in the case, he says, upon which he could

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find that the testator had had his attention called one way or another to either the Massachusetts General Hospital or the Discharged Soldiers' Home on Springfield Street, "or that he knew anything about them, except what may be presumed to be known by a man who lived and worked here as he did."

It is apparent from the findings of the single justice that the principal if not the sole purpose of the institution on Springfield Street was to care for sick and wounded soldiers, differing in that respect from the Massachusetts General Hospital, and it may well have appealed for sympathy and support to the patriotic feelings which so profoundly stirred all classes in this and other communities at the North at the time when the will was made. The Legislature for several years made appropriations for its support and maintenance, at first with the condition that an equal amount should be raised by private subscription, and later without that condition. It is possible, of course, that the testator knew of the existence of that institution. But it is hardly conceivable that if he had intended to make that institution the object of his bounty he would not have described it by some fitting name. The only institution to which the name which he has chosen naturally applies is the Massachusetts General Hospital. It is expressly found that that corporation was as well known by the name of the Massachusetts Hospital as by its corporate name at the time when the will was made. It had existed for a long time, and it is not unreasonable to suppose that the testator knew of it. Indeed it would seem that he must have known or heard of it. The name which he has used to describe the legatee describes that institution and no other; and we think the conclusion to which the single justice came that the Massachusetts General Hospital was the legatee intended was correct, and that a decree should be entered ordering the fund to be paid to it, to be held and administered by it for the purposes named in the will.

So ordered.