THE FRANKLIN FOUNDATION vs. ATTORNEY GENERAL & others. [Note 1]

GREANEY, J. A single justice has reserved and reported this case based on the pleadings and a statement of agreed facts and exhibits. The underlying action brought by the

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plaintiff, The Franklin Foundation (Foundation), is in the nature of interpleader and seeks a declaratory judgment and instructions concerning the appropriate distribution of the corpus of the so-called 200 Year Franklin Accumulation Trust, a trust established in accordance with a codicil to the will of Benjamin Franklin.

The facts relevant to this case are as follows. [Note 2] Franklin died on April 17, 1790, and his will was proved and allowed on April 23, 1790. In a codicil to his will, Franklin left "One thousand Pounds Sterling" to the inhabitants of the city (then a town) of Boston (city). The codicil provided that the fund was to be used to grant loans at five per cent annual interest "to assist young married Artificers in setting up their Business." The codicil further provided:

"If this Plan is executed and succeeds as projected without interruption for one hundred Years, the Sum will then be one hundred and thirty-one thousand Pounds of which I would have the Managers of the Donation to the Town of Boston, then lay out at their discretion one hundred thousand Pounds in Public Works which may be judged of most general utility to the Inhabitants such as Fortifications, Bridges[,] Aqueducts, Public Building[s], Baths, Pavements or whatever may make living in the Town more convenient to its People and render it more agreeable to strangers, resorting thither for Health or a temporary residence. The remaining thirty-one thousand Pounds, I would have continued to be let out on Interest in the manner above directed for another hundred Years, as I hope it will have

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been found that the Institution has had a good effect on the conduct of Youth, and been of Service to many worthy Characters and useful Citizens. At the end of this second Term, if no unfortunate accident has prevented the (B. Franklin) operation the sum will be Four Million[ ] and Sixty one thousand Pounds Sterling of which I leave One Million Sixty one Thousand Pounds to the Disposition of the Inhabitants of the Town of Boston and Three Millions to the disposition of the Government of the State, not presuming to carry my views farther."

In March, 1791, funds were transferred from Franklin's estate to the city, as trustee, in satisfaction of the bequest. The first loan was made from the fund in May, 1791, and the last loan to a married apprentice was made about 1886. The loans ceased because of, among other things, changing economic conditions and the marked reduction in the number of articled apprentices.

In 1893, the managers of the fund "laid out" $322,490.20, as the one hundred year distribution pursuant to the terms of the bequest (this distribution had been due and payable on July 1, 1891). In 1905, the managers voted to spend a portion of those monies to create the Franklin Union, a technical school designed to train young people for supervisory positions in industry. The city was authorized by statute to maintain the school. St. 1905, c. 488. The school's name was thereafter changed to the Franklin Technical Institute (in 1941), and to the Franklin Institute of Boston (Institute) (in 1961).

In 1957, a special commission was established to study needs and problems facing the school and the Foundation, [Note 3] including what to do with the fund in light of the fact that

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one stated purpose of Franklin's bequest (to assist young, married artificers) was no longer applicable. The commission issued its report in February, 1958.

In September, 1958, the Legislature enacted St. 1958, c. 596, which provided in full as follows:

"SECTION 1. That portion of the fund bequeathed by Benjamin Franklin to the inhabitants of the town of Boston in trust which is distributable to the commonwealth on termination of the trust shall be paid over to The Franklin Foundation for the maintenance, extension or otherwise for the benefit of the Franklin Technical Institute, and as to said portion said trust shall thereupon terminate; provided, however, that such payment shall not be made and said trust as to said portion shall not terminate unless and until a decree of the supreme judicial court authorizes such payment and termination.

"SECTION 2. That portion of the fund bequeathed by Benjamin Franklin to the inhabitants of the town of Boston in trust which is distributable to the city of Boston on termination of the trust shall be paid over to The Franklin Foundation for the maintenance, extension or otherwise for the benefit of the Franklin Technical Institute, and as to said portion said trust shall thereupon terminate; provided, however, that such payment shall not be made and said trust as to said portion shall not terminate unless and until a decree of the supreme judicial court authorizes such payment and termination.

"SECTION 3. The provisions of section two shall take effect upon the acceptance thereof during the current year by vote of the city council of the city of Boston approved by the mayor of said city."

On December 29 and 31, 1958, the Boston city council and the mayor, respectively, accepted and approved Section 2 of St. 1958, c. 596, as contemplated by Section 3.

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In 1959, in furtherance of the legislation, the Foundation filed a bill in equity in the Supreme Judicial Court for Suffolk County seeking "to implement St. 1958, c. 596." Franklin Found. v. Attorney Gen., 340 Mass. 197, 198 (1960). In this action, the Foundation claimed that the trust should be terminated because it was no longer possible to find loan recipients who met the requirements of Franklin's codicil. The case was reserved and reported to the full court, which declined to exercise its power to terminate the trust. In so ruling, the following was said:

"We are of opinion that the record does not disclose facts sufficient to cause us to exercise our authority in equity to terminate the trust. We need not speculate as to any other possibilities not now presented. In stating one ground for our opinion we do not intimate that there may not be other serious objections to the plan projected in St. 1958, c. 596. The plaintiff argues as though the making of loans to young artificers was the sole purpose of the testator. We are unable to agree with this contention, as we think that Franklin had another purpose, which was to make a gift to the city at the centennial of the fund, and to the Commonwealth and to the city at the two hundredth anniversary of the fund. . . . We are not convinced that his charitable objectives have ceased to be in accord with the public interest or have become so unreasonable under current conditions that we should exercise our undoubted equitable power of termination even if the loan program has ceased all usefulness." (Footnote omitted.)

Id. at 204. [Note 4]

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The 1958 legislation has not been repealed or changed. The parties agree that the trust term (the second hundred years) expired on June 30, 1991. As of the date of the parties' agreement in the facts and exhibits, the trust corpus was $4,646,613.48 ($89,688.49 in cash, $1,052,459.74 in treasury bills, and $3,504,465.25 in loans receivable).

The principal antagonists in this case are, on the one hand, the Institute, which contends that St. 1958, c. 596, although held ineffective by the 1960 decision in Franklin Found. v. Attorney Gen., supra, should now be given effect to require distribution of the trust funds to it, and, on the other hand, the city and the Commonwealth, which maintain that St. 1958, c. 596, has no present applicability. [Note 5]

1. We conclude that St. 1958, c. 596, expresses an intent to effect early termination, and that it cannot be reasonably interpreted to take effect now. Both Sections 1 and 2 of the statute contemplate immediate distribution of the corpus of the trust to the Foundation for the benefit of the Institute and termination of the trust ("as to [each] portion said trust shall thereupon terminate"). This language envisions accelerated payment and termination, and the language is not consistent with expiration at the end of the full term of the trust. Section 3 of the statute states that the provision relating to the city "shall take effect upon the acceptance thereof during the current year" through legislative and executive action. This

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language indicates that the statute was designed to be implemented immediately, and that it was not to have effect thirty-three years later. [Note 6] Although a trust, even one of fixed term, generally does not terminate until the corpus is distributed by the trustees, see Rothwell v. Rothwell, 283 Mass. 563, 570 (1933), if the statute had been intended to be effective after the trust's normal term, there would have been no need to provide for termination. Termination would have occurred as a matter of course on the distribution of the funds. Id.

More significantly, St. 1958, c. 596, provides that the "trust . . . shall not terminate unless and until a decree of the supreme judicial court authorizes such payment and termination." The court authorization spoken of would have been entirely unnecessary had the statute been intended to take effect after the expiration date for the trust stated in the codicil. At the present time, after the expiration of the two hundred year period established by the codicil, distribution of the trust's funds and its termination can take place according to the provisions of the codicil. Neither distribution nor termination requires court authorization. The provision in St. 1958, c. 596, for court authorization thus strongly indicates that the statute was not intended to operate in the manner suggested by the Institute.

The Institute acknowledges the language pointed out earlier, and it recognizes the anomaly of the statute's provision for court authorization. [Note 7] On the latter point, the Institute

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does not argue that court authorization would be necessary to effect the distribution of the trust funds at the present time. Instead, it contends that the provision in St. 1958, c. 596, for court authorization is merely a "procedural contingency." Although what is meant by the Institute's characterization of the court authorization term as a "procedural contingency" is not entirely clear, it describes that circumstance as "a certain and predictable event which, when it actually happens, occurs, or has been performed, triggers off the legal effectiveness of the statute and transforms a dormant statute into an active statute." Our role with regard to this "procedural contingency," according to the Institute, is "to give effect to the terms of the statute by confirming that the contingency has taken place." We are unpersuaded by this argument. The court authorization provision, as discussed above, has relevance only to the context of St. 1958, c. 596, as a whole, and the provision serves to support the statute's thrust to effect immediate termination of the trust.

2. While the language of St. 1958, c. 596, appears to state its purpose clearly, we acknowledge that the parties have arrived at diametrically opposed interpretations of it. The general rule of statutory construction is that "a statute must be interpreted according to the intent of the Legislature . . . considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975), quoting Industrial Fin. Corp. v. State Tax Comm'n., 367 Mass. 360, 364 (1975). Even if we were to assume St. 1958, c. 596, to be ambiguous, its legislative background supports the interpretation discussed in part 1 of this opinion.

The first bill proposed to effect the purpose of what eventually became St. 1958, c. 596, stated that "public policy requires the termination of the trust, if lawfully terminable."

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1957 Senate Doc. No. 180, preamble. That bill did not provide expressly for the termination of the trust, but only for the payment of the fund for the benefit of the Institute, and then not "unless and until authorized by a decree of the supreme judicial court." Id. at Section 1. Subsequent to the introduction of the bill, a special commission was appointed to study possible action with regard to the Institute and the funds available from the Franklin bequest. See Res. 1957, c. 111. The commission issued a report in which it recommended that the bill be changed in its preamble to remove the reference to termination of the trust and to indicate only that "the public interest would be better served by presently applying the shares of the fund . . . to the advancement through technical education of . . . young men" (emphasis added). 1958 Senate Doc. No. 635, at 10. The commission described the purposes behind termination, noting that the Institute "is now in dire need of revenues," and that "there is a great need to expand our available supply of skilled technicians in the current [Sputnik-generated] race between Soviet Russia and our own nation in the important field of scientific competition." Id. at 7-8. The commission concluded that distribution of the funds to the Institute would be "of current benefit to the Commonwealth and Nation." Id. at 8.

The report recommended that the requirement in the body of the bill for court authorization be removed and that, instead, an advisory opinion as to the legality of the legislation be sought from this court. Id. at 10-11. The commission's report also included a letter from Mr. Noel Morss, who was, at the time, counsel to, and vice president of, the Foundation. Mr. Morss argued in a letter that the Legislature should not abandon the explicit statutory requirement of court authorization in favor of the advisory opinion procedure. Id. at Exhibit C. Mr. Morss described the purpose of the bill as follows:

"The bill, of course, depends on the proposition that, construing the intent of the codicil as applied to present conditions, the purpose for which the testator directed

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the continuance of the trust for two hundred years cannot be served by such continuance, and therefore the state and the city, as the parties to whose disposition the fund is left after the termination of the trust, are now entitled to have the trust terminate and to dispose of the fund. There are other questions, considerations and arguments, but that is the crux of the matter. We believe this is good law, and are reasonably confident that we can so persuade the court, but are not so overconfident that we consider it safe to forego [sic] the opportunity to present the case fully if it can be helped." (Emphasis added). Id. at 18-19.

Mr. Morss's position was adopted in the bill that was introduced following the commission's report. The new bill retained the language requiring that payment of the shares of the trust fund not be made "unless and until authorized by a decree of the supreme judicial court." 1958 Senate Doc. No. 654, Section 1. The new bill, did, however, adopt the commission's recommendation that the preamble be changed to eliminate the reference to a public policy in favor of termination of the trust. Id. at preamble. Subsequently, a third bill was introduced that omitted the preamble entirely and included in its body explicit provision for termination of the trust. 1958 Senate Doc. No. 827. The third bill continued to provide for court authorization of the statute's operation, including both payment of the fund and termination. Id. It was this bill that was enacted as St. 1958, c. 596.

We are not impressed with the argument by the Institute that the history of the preamble (which originally referred to a public policy "requirement" of termination of the trust, later was changed to state that there was a public interest in immediate distribution of the trust fund, and finally was deleted entirely) indicates that no "present and immediate termination" was called for. The legislative history confirms that the intent of St. 1958, c. 596, was to effect immediate termination of the trust if this court decided that termination was appropriate because the trust's purposes could no longer

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be met. The decision in Franklin Found. v. Attorney Gen., 340 Mass. 197 (1960), denying termination because the trust had continuing efficacy, put an end to the vitality of St. 1958, c. 596, [Note 8] which constituted a special purpose statute not meant to have force thirty-three years later. [Note 9]

3. The case is remanded to the Supreme Judicial Court for Suffolk County for the entry of an appropriate declaratory judgment confirming that the trust terminated on June 30, 1991, and instructing that the distribution of the remainder of the trust funds be made by the city and the Commonwealth in accordance with Franklin's codicil.

So ordered.