CHARLES W. ELIOT & others vs. TRINITY CHURCH & others.

RUGG, C. J. This is a suit in equity brought by surviving members of a citizens' committee of thirty-one appointed by the vestry of Trinity Church in 1893 to receive contributions of money and therewith to procure and erect a monument, to be placed in or near Copley Square in Boston, to the memory of Phillips Brooks, one-time rector of said church and later bishop of the Protestant Episcopal Church in the diocese of Massachusetts. Generous contributions were received from a large number of people, collections and organizations. The committee then employed the late Augustus St. Gaudens to construct such a monument, who died before finishing the work, but by an arrangement with his widow it was completed about 1909. In that year the committee presented a petition in equity to the Supreme Judicial Court setting forth these facts and further alleging that it had in its hands a considerable sum of money in excess of the amount required for the completion and erection of the monument, that it proposed to erect the monument on land belonging to Trinity Church and to convey the monument to said church in trust and to transfer to said church the balance of the money contributed after paying the expenses of completing and erecting the monument, to be held as a permanent trust fund for the purpose of providing for the maintenance, repair and restoration of the monument, with power to expend such portion of the income as was not needed for such purposes for such charitable objects not connected with an ecclesiastical body or corporation as to the rector, wardens and vestry of the church should seem meet. To that petition in equity was annexed a copy of the indenture between a committee, acting for the contributors, and Trinity Church, setting forth in detail the arrangements proposed to be entered into, its obligations being conditioned upon its approval by the Supreme Judicial Court. Upon that petition a decree was entered to the effect that "the plaintiffs dispose of the funds in their hands in accordance with the provisions of the indenture between themselves and Trinity Church, dated January 9, 1909, a copy of which is set out in Exhibit B of the bill and which is approved by this Court." The terms of the indenture thereupon were performed. The monument was erected and is still standing upon the site selected, which is near Copley Square, and the trust fund was transferred to Trinity Church, which now holds

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it and has continued to execute the trusts thereby required of it.

Further allegations of the petition are that "In the year 1915 there had been prepared by Bela Pratt, a Boston sculptor of distinction, a model in clay of heroic size of the statue of Phillips Brooks. This model having been brought to the attention of many of the original contributors and being regarded by them as one of remarkable dignity and as being strikingly characteristic of the man, they were of the opinion and desirous that such memorial to him should be erected in the city of Boston, and a large number of said contributors united in a request to your petitioners to present a petition to this honorable court asking that the respondent Trinity Church be authorized and empowered to expend from such trust fund now in its hands a sum not to exceed thirty-five thousand dollars ($35,000) to procure the reproduction of said model in bronze and a suitable erection thereof on some site in the city of Boston which may be approved by said Trinity Church." Petition to that end was brought and a decree was entered in accordance with its prayers. The petition further alleges: "Thereupon and under said decree your petitioners, with others selected by them and approved by the wardens and vestry of Trinity Church, proceeded to procure the completion of said statue in bronze, and it and its pedestal are now completed and are ready for erection in the city of Boston. Your petitioners believe that the most appropriate site for said statue, which represents Phillips Brooks in a characteristic attitude as a preacher, is the triangle of land belonging to the city of Boston in Copley Square directly in front of said Trinity Church, and the art commission of the city of Boston has informally expressed its willingness that the statue should be there placed if such site should be approved, under said decree of the court, by said Trinity Church acting through its wardens and vestry. Your committee has applied to said wardens and vestry for an approval of said site, but said wardens and vestry have been unwilling to take action thereon so long as the said monument of Phillips Brooks made by St. Gaudens shall remain upon the land of the church, and they feel, and have so expressed their opinion, that Trinity Church is so far bound by the terms of said trust that it is unable to remove said St. Gaudens monument to any other

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location, and that there is even grave doubt whether the terms of said trust can be legally modified so as to permit such removal." The prayer is that the terms of the trust indenture between the committee of the contributors and Trinity Church, which was referred to and approved by the decree of 1909, be so modified that Trinity Church "shall not be required to maintain said St. Gaudens statue upon its own grounds, but may be directed or permitted to return said statue to this committee to be placed by it in some other location or to place it upon such other site or sites as may be selected and approved by the wardens and vestry of said Trinity Church, with full power to change such location from time to time if they deem it advisable, and to use the trust fund in the hands of said Trinity Church so far as may be necessary for the moving, maintenance, repair, and restoration of said monuments, including the pedestal and other accessories, whenever the same may be at any time necessary."

The facts alleged in the petition are admitted by the answers. Trinity Church raises the question of law whether the removal of the St. Gaudens monument can be authorized by the court. That is the issue to be decided.

The erection of a noble work of art as a monument or memorial to a great spiritual leader is a public charity. It is a means of education and a source of inspiration. The citizens' committee of thirty-one in receiving contributions for the procurement of a suitable monument to the memory of Phillips Brooks were trustees of a valid charitable trust. The terms of that trust, as disclosed and manifested by the words of the circular inviting contributions and by the subscriptions themselves, were explicit both as to the object and place of location. Those terms were, "to erect a statue of Phillips Brooks, to be placed in or near Copley Square." There was no doubt or uncertainty about their meaning. There was no impediment about the complete execution of those terms. There was no room for the application of the doctrine of cy pres in these particulars. Whether the committee of thirty-one as trustees would have had authority to erect the St. Gaudens statue on the grounds of Trinity Church need not be inquired, because one effect of the suit in equity of 1909 was to substitute Trinity Church as trustee in place of that committee for the execution of so much of the original trusts as remained

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unperformed, and Trinity Church was the owner of the site near Copley Square where the statue was erected. The express and unequivocal terms of the trust thus were fully administered by the procurement and erection of a statue upon the designated site. The St. Gaudens monument as erected is a complete compliance with that trust. The decree of 1909, so far as concerns the statue itself and its location, does not depend in any degree upon the cy pres doctrine. So much of that decree as relates to the disposition of the surplus of moneys contributed more than needed for the procurement and erection of the St. Gaudens statue, rests upon the doctrine of cy pres. The decree authorizing the Bela Pratt statue of Phillips Brooks rests also upon the doctrine of cy pres. But neither of these decrees purported to modify in any particular the unmistakable terms of the main original trust. Those terms were plain at the outset, they have remained unobscured by any subsequent decree of court, and they have not been qualified in any respect by any intervening event and they have been fully executed according to their accurate meaning.

Under these circumstances and upon all the allegations of the bill, there is no authority to warrant the removal of the St. Gaudens statue in order to render feasible the erection of the Bela Pratt statue upon a site nearby. The donors of the contributions were founders of the charity. They manifested their charitable scheme in unambiguous phrase. They selected their trustees, by whom that scheme has been given effect. The court is not at liberty to alter that scheme thus consummated. When charitable gifts can be administered according to the directions of the donors, the court "is not at liberty to modify it upon considerations of policy or convenience." Jackson v. Phillips, 14 Allen 539, 591, 592. American Academy of Arts & Sciences v. Harvard College, 12 Gray 582, 595. Fellows v. Miner, 119 Mass. 541. Winthrop v. Attorney General, 128 Mass. 258, 261. Harvard College v. Attorney General, 228 Mass. 396, 410.

It follows that the doctrine of cy pres has no application to the facts revealed on this record. That doctrine can be invoked only in cases of exigency when it has become impracticable reasonably to execute the terms of the trust. There has been no failure of the object of this trust, no uncertainty as to the mode of its application, and no occasion to resort to the aid of a court for the removal of defects or impediments lying in the way of the execution of the trust. Smith Charities v. Northampton, 10 Allen 498. Baker v. Smith, 13 Met. 34, 41. Crawford v. Nies, 224 Mass. 474, 490.

Bill dismissed.