
    Calvin H. Weeks & others vs. John L. Hobson & others.
    Essex.
    November 7, 1889.
    January 1, 1890.
    Present: Field, Devens, W. Allen, C. Allen, & Knowlton, JJ.
    
      Trust for Charitable Purposes — Cy Pres.
    
    A testator, by his will, gave in trust a parcel of land for a site for a hospital, as well as money to construct necessary buildings therefor and to pay its current expenses. A bill in equity was filed by the trustees, alleging that the site was not suitable, and a decree was made authorizing its sale and the investment of the proceeds in other land for the same purpose. Subsequently, before the land was sold, other land with the buildings thereon, both suitable for a hospital, was given to the trustees, and they then brought a supplemental bill in the nature of a bill for a review for leave to sell the land devised to them and to invest the proceeds in income-bearing securities for the support of the hospital. Held, that the erection of the hospital on the land devised was not an essential condition of the gift, and that it might properly be sold and the proceeds used in defraying the current expenses of the hospital.
    Supplemental " bill in equity, in the. nature of a bill of review, by the trustees of the Haverhill City Hospital, against the trustees under the will of Ezekiel J. M. Hale and the Attorney General. The defendants demurred to the bill for want of equity. Field, J., overruled the demurrer; and the defendants appealed to the full court. The facts appear in the opinion.
    
      H. 6r. Nichols, (F. A. Brooks with him,) for the defendants.
    
      F. R. Hoar, ( W. H. Moody with him,) for the plaintiffs.
   Knowlton, J.

The will of Ezekiel J. M. Hale, late of Haverhill, deceased, contains the following provision : “ It is my will, and I hereby direct that my executrix and executors and trustees shall convey to the corporation of the Haverhill City Hospital, when established, the lot of land, with the buildings thereon, situated in said Haverhill in the county of Essex and Commonwealth, of Massachusetts, between Kent and Moore Streets, adjoining the land of J. B. Swett arid formerly owned by J. Howard Nichols, together with the sum of fifty thousand dollars ($50,000)'in money. Said lot of land to be used as a site for a hospital, and such portion of said fifty thousand dollars to be used and expended as may be deemed necessary for the construction of said hospital buildings,as the wants of the city may require, the remaining portion of said fifty thousand dollars to be held in trust, and the income therefrom to be applied to defraying the current expenses of said hospital." The will also provides for the creation of a board of trustees to manage and control the hospital property, six of whom are to be chosen by the mayor and city council of Haverhill, each to hold office for life, and the seventh is to be the acting mayor of the city for the time being, who is to be chairman ex officio. The trustees have been chosen, and have since been incorporated by the St. of 1888, c. 356, the property has been conveyed to them, and they now hold both the real estate and the money, according to the directions of the will. About March 1, 1886, they filed a bill in this court, representing that the land, by reason of its location, its sloping surface, and from other causes, was not a suitable site for a hospital building, and praying for leave to sell and convey it free from all trusts, and to reinvest the proceeds in such manner as should best effect the objects for which it was given by the will. After due notice and a hearing, no one objecting, a decree was entered authorizing a sale of the real estate and an investment of the proceeds of the sale in other real estate in the city of Haverhill, to be held upon the same trusts as that to be sold. This decree remains in force, and no sale has been made under it.

The plaintiffs have now, by leave of court, filed a supplemental bill in the nature of a bill of review, setting forth that since the entry of this decree a deed of conveyance has been made to them as trustees of the Haverhill City Hospital, covering certain land and the buildings thereon, situated in Haverhill, to be held for the use of the Haverhill City Hospital, and upon the trust that the buildings thereon shall be used and occupied as the hospital buildings for said city hospital; that said conveyance was by way of gift; and that the land and the buildings thereon are adapted to the purposes of a hospital, and the buildings are now being used by them as hospital buildings, and the land is all that is needed as a site for a hospital. They pray that the suit may be revived, and that the decree may be reviewed and modified, and that they may have leave to sell the land devised by said Hale, and to invest the proceeds of the sale in proper securities, in trust to use them and the income of them for the general purposes of the Haverhill City Hospital. The case comes before us on the demurrer of the defendants, and the only question argued is whether, upon these facts, the court can properly grant the relief prayed for.

The will bears date February 3, 1880. The original bill alleges that the land devised is not a suitable site for a hospital building. We can think of causes which may have come into • existence since the will was made, or even since the death of the testator, which, combined with other causes originally inherent in the land, make it now an unsuitable place for a hospital, even though the. testator might well have thought it suitable when he made his will. We must treat this allegation, and the decree founded on the evidence in support of it, as establishing the proposition, that it is now impracticable to carry out the purpose of the testator in the precise mode which he contemplated. Since the trustees cannot properly build a hospital on the land devised, the question presented to the court is whether the charity must fail, and the property revert to the residuary legatees, or whether the court can apply the doctrine of cy pres, and change the mode of disposing of the property so as to carry out the general purpose and intent of the testator. That depends upon what we find to have been his intent in making the devise. It is to be noticed, first, that he makes a single gift of land and money, to be used for the establishment and maintenance of a hospital. The land is to be used as a site, and the money is to be expended in the erection of buildings and in defraying the current expenses of the hospital. His obvious purpose was to provide, and, to the extent of his gift, to maintain a hospital for the sick and maimed of the city of his residence. We cannot believe that he intended to make his gift dependent on the occupation of a particular lot as a site for the buildings, so that if it became impracticable or impossible to use that lot he would utterly fail to accomplish his purpose. His language indicates that he had in mind a charitable scheme of great importance to the people of the neighborhood, which involved the occupation of a lot by hospital buildings, but to which the location of the buildings in the place named, instead of some other proper place, was of no consequence.

At the hearing on the original bill, the court, having found that the use of the land devised in the manner intended by the testator was impracticable, applied the doctrine of cy pres so far as to hold that the erection of the hospital in the place named was not an essential condition of the gift; and that the land might be sold, and the proceeds used for the purchase of a suitable lot in another place. We think that decree was well warranted by the terms of the will; and the principle then applied governs the case in its present aspect. If the use of that lot was only a mode in which the testator expected that his general purpose would be accomplished, and not of the essence of the charity, so that the court could properly allow a sale of that and a use of the proceeds in purchasing land elsewhere, it naturally follows, when the land becomes no longer available for the use for which it was intended, that the proceeds of it, if not needed for the purchase of another lot, may be saved for the charity, without being kept separate from the money which was a part of the same gift.

We are of opinion that the land may properly be sold, and the proceeds used in defraying the current expenses of the hospital. Jackson v. Phillips, 14 Allen, 539. American Academy v. Harvard College, 12 Gray, 582. Loscombe v. Wintringham, 13 Beav. 87. Attorney General v. Craven, 21 Beav. 392. Biscoe v. Jackson, 35 Ch. D. 460.

Demurrer overruled.  