CONGREGATIONAL CHURCH UNION OF BOSTON AND VICINITY, trustee vs. ATTORNEY GENERAL & another.

PIERCE, J. This is a petition to register title to land in Charlestown, held by the petitioner "as trustee under deed of The First Parish in the Town of Charlestown to petitioner as trustee as in said deed recited, and under power given under a decree entered in case No. 47,516 Equity, Supreme Judicial Court for the county of Suffolk, entitled First Parish in the Town of Charlestown vs. Arthur K. Reading, Attorney General and others." The petition to register title, answers of the respondents, interrogatories propounded to the petitioner by the respondent city of Boston, and answers of the petitioner to said interrogatories, are referred to in the bill of exceptions, and copies of the said decree of the Supreme Judicial Court for the county of Suffolk, said deed of The First Parish in the Town of Charlestown to the petitioner as trustee, the petitioner's requests for rulings and the decision entered by the Land Court are annexed to and made a part of the bill of exceptions.

The petitioner is a charitable corporation, chartered on April 22, 1896, under the provisions of Pub. Sts. c. 115, and acts in amendment thereof and in addition thereto. The above named grantor (The First Parish in the Town of Charlestown) was incorporated by an act passed on March 5, 1803 (St. 1802, c. 107, vol. 3, Massachusetts Special Laws, page 156). "It has maintained continuous existence as a corporation from date of its incorporation to date of its said deed to petitioner as trustee and to the present time."

Of the petitioner's requests for rulings [Note p2] the Land Court

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has granted the first, second and fourth, which relate to the said decree of the Supreme Judicial Court for the county of Suffolk and the relation of the Attorney General thereto, and no appeal nor exception has been taken by the Attorney General; and has granted the fifth and eighth, which relate to the claim of the city of Boston, and no appeal nor exception has been taken by that respondent. The Land Court has refused the third, sixth and seventh requests and upon them has adopted, in substance, the contentions of the Attorney General. The questions of law raised by said refusal to grant the third, sixth and seventh of the petitioner's requests are the only questions covered by the bill of exceptions, and they relate to the petitioner's powers of alienation contained in said decree of the Supreme Judicial Court for the county of Suffolk, [Note p3] to the powers of alienation

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of said The First Parish in the Town of Charlestown and to the petitioner's powers of alienation as successor in trust to the title of said parish.

As is recited in the preamble to the decree of the Supreme Judicial Court for the county of Suffolk, quoted in the margin, and in the opinion in Curtis v. First Church in Charlestown, 285 Mass. 73, 76-78, referred to in the decision of the Land Court, a voluntary, unincorporated religious association had been associated with The First Parish in the Town of Charlestown for many years in the dual form of organization then commonly used in

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Congregational churches, the title to the "temporalities" used by the voluntary religious association being in the corporate body. Under St. 1913, c. 84, the voluntary religious organization became incorporated, and another church corporation was merged with and conveyed to it all its property, including its church edifice in the same general locality as was the edifice owned by The First Parish in the Town of Charlestown. By § 4 of that statute, the parish corporation was authorized to convey its property to the new corporation. It, however, did not do so, but filed the bill in equity in the Supreme Judicial Court for the county of Suffolk, there numbered 47516 Equity, which resulted in the decree quoted supra in the margin. There followed the deed from The First Parish in the Town of Charlestown, which was duly recorded at Suffolk registry of deeds, book 4881, page 2, and reads in part as follows: "First Parish in the Town of Charlestown, a corporation duly organized and existing under the laws of the Commonwealth of Massachusetts, and having its usual place of business in the Charlestown District of Boston, Suffolk County, Massachusetts, for consideration paid, and by virtue of, and in execution of, the power to it given under a decree entered in Case No. 47516 Equity, Supreme Judicial Court of Suffolk County, entitled First Parish in the Town of Charlestown vs. Arthur K. Reading, Attorney-General and Other Parties, Respondent, and by virtue of, and in execution of, every other power and authority said First Parish enabling, hereby grants to the Congregational Church Union of Boston and Vicinity, a corporation duly organized and existing under the laws of said Commonwealth, and having its usual place of business in said Boston, as Trustee as in said decree set forth, a certain parcel of land with the brick meeting-house thereon situated on Harvard Square, formerly Town House Hill, in the Charlestown District of said Boston, and bounded: Westerly by Harvard Street, and Northerly, Easterly and Southerly by said Harvard Square, and containing thirteen thousand four hundred (13,400) square feet of land, more or less; or however otherwise bounded, measured

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or described. Said parcel of land was granted and conveyed to said Parish by the Town of Charlestown in Town Meeting held October 27, 1782. Said Town Meeting Record is contained in Charlestown Archives 1629-1847, Volume 25, Town Records, deposited with the Records of the City of Boston. In Witness Whereof, said First Parish in the Town of Charlestown has caused the seal to be hereto affixed which it hereby adopts as its corporate seal, having no other corporate seal, and has caused these presents to be executed in its name and behalf by Gardner Bates, its Treasurer, thereunto duly authorized by vote of said First Parish, dated March 7, 1927, a copy of which is hereunto annexed. This instrument is dated this 19th day of March, 1927." At an annual meeting of the corporation, The First Parish in the Town of Charlestown, held on March 7, 1927, the foregoing deed of release having been read and considered, the following vote was passed: "Voted: That the treasurer, Gardner Bates, is hereby authorized and instructed to execute, acknowledge and deliver, in the name and behalf of the said corporation, the deed of release which has just been read."

From 1927 to 1929 occasional services and meetings were held in the edifice on the locus, but thereafter the condition of the building became so unsafe that no meetings have been held and all access by the public has been excluded. Acting under the advice of competent contractors and of the building inspector of the city of Boston that repairs were impracticable and that as a matter of public safety it should be taken down, the meeting house itself, with the exception of the tower containing the chime of bells, has recently been demolished.

The judge of the Land Court ruled that the trust under which the property was held was a public charitable trust, whether by express terms or not, and that the petitioner "without the aid of the court could not make a good title," and that the decree of the Supreme Judicial Court for the county of Suffolk did not contemplate, and was not intended to contemplate, a mortgage or sale of the property itself;

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and stated: "If and when the necessity for a mortgage or sale should arise, it will be a simple matter to obtain, on notice to the Attorney General, a decree of a court of equity in regard thereto. The decree, and certificate of title issued in pursuance thereof, is not to contain the words 'with power to sell' or 'power to mortgage.'"

Respecting the contention of the city of Boston "that inasmuch as the use of the meeting house as a house for the public worship of God has ceased, the grant by the town of Charlestown is voided, the right of the petitioner to the use and occupancy of the estate has ceased and the possession of the fee is now vested in the city of Boston as successor to the town of Charlestown," the Land Court ruled, in substance, that the grant in 1782 to a parish in Charlestown to which The First Parish in the Town of Charlestown was successor under the provisions of St. 1802, c. 107, was not "a grant of an estate on conditional hmitation, with possibility of reverter in the respondent city as successor to the grantor"; and that it was not "a grant upon condition," citing Rawson v. School District in Uxbridge, 7 Allen 125, and Battelle v. New York, New Haven & Hartford Railroad, 211 Mass. 442. No exception was taken to these rulings; they must stand.

The petitioner, as we understand its brief, does not dispute that the general rule governing public charitable trusts is that property held in such trusts is inalienable apart from an act of the Legislature or a decree of a court of equity, Gray, Rule Against Perpetuities (3d ed.) § 590 and note 3, but contends that The First Parish in the Town of Charlestown possessed "full powers of alienation without the enabling decree of any court to that end" and that the decree quoted in the footnote "conferred upon" the petitioner "the same powers of alienation which under the law were possessed by" said parish; and also contends that the decree, "independently of any powers possessed by the said parish, contained full powers of alienation in the petitioner as trustee" thereunder, and "that the concluding paragraph [(f)] of the decree has no application and no meaning and is rendered useless unless the interpretation

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of the decree is that under the trust which it created the petitioner has power to sell and power to mortgage," citing Eustace v. Dickey, 240 Mass. 55, 72. Equity has no authority to destroy a charitable trust, but it can order a sale of the property and reinvestment. Gray, Rule Against Perpetuities (3d ed.) § 590, note 3, and cases there collected. If the authority of a trustee rests upon its power to authorize a sale or mortgage of the trust property for reinvestment, it is plain that the authority for such reinvestment can be granted when the need therefor is adjudged by the court to exist presently, and that a power to sell or mortgage charitable trust property cannot be conferred on the trustee to be exercised in the future as he alone shall determine to be wise or necessary. We agree with the Land Court that "it will be a simple matter to obtain, on notice to the Attorney General, a decree of a court of equity in regard thereto," and that it is not desirable to change the general rule.

Exceptions overruled.