
    DENNIS CALLAHAN, PETITIONER.
    Suffolk,
    January, 1907.
    
      Deed to Church — Condition—Charitable Trust — Bale — Cy Pres.
    
   In this case title was conveyed in 1840 by one Nathaniel Minot to certain trustees of the Eirst Baptist Church of Dorchester in trust to hold for the purpose of erecting and maintaining a meeting house for public worship according to the Baptist faith. The deed provided in careful and elaborate terms for the maintenance of worship in the meetinghouse to be erected notwithstanding, and in case of, any disagreement which might arise between the Baptist Society and the Church, the former being the temporal, and the latter the ecclesiastical body, which, together with the pew holders and the congregation, unite to form the ordinary parish under the Baptist form of discipline. American Baptist Miss. Soc. v. First Baptist Soc. of Brookfield, Land Court Decisions, p. 249, ante. The only other provision in the deed which affects the title is that “ in case the legislature of this Commonwealth shall at any time hereafter incorporate a board of trustees with authority to hold the property herein conveyed and appropriated, the proceeds and income thereof, for the support of such ministers as shall be elected and settled in the manner herein prescribed, then said grantees, the survivors, and assigns, and the survivors of them shall convey the property herein granted and the proceeds thereof to such board of trustees when incorporated.” By Chapter 128 of the Acts of 1899 it was provided as follows: “ James H. Goodwin, Hatheway H. Dinsmore and Charles H. For-sayth are hereby empowered to act as trustees of the First Baptist Meeting House of Dorchester situated in Neponset Village.” In 1905 said trustees petitioned the Probate Court claiming to be trustees under said Minot deed, and prayed for leave to sell this estate because of changes in the character and population of the locality, and to invest the proceeds in the purchase of another lot in a suitable locality, together with a suitable meeting house thereon for worship under the terms of the trust set forth in said deed. Upon this petition the court ordered notice by publication and also personally upon the lineal descendants of Nathaniel Minot so far as they could he ascertained, and appointed, as guardian ad litem for all persons not ascertained or not in being who were or might become interested in the proceedings, the learned Judge of Probate for Norfolk County. The guardian reported very fully on the matter, and in favor of the necessity and expediency of the proposed sale and investment. . The Court thereupon ordered such sale and investment, and the petitioner became the purchaser.

It seems clear that the provisions of the Minot deed did not constitute a condition hut did constitute a trust. Hayden v. Stoughton, 5 Pick. 528; Austin v. Cambridgeport Parish, 21 Pick. 215; Brattle Sq. Church v. Grant, 3 Gray 142; Rawson v. Uxbridge, 7 Allen 125; Sohier v. Trinity Church, 109 Mass. 1; Episcopal Mission v. Appleton, 117 Mass. 326; Crane v. Hyde Park, 135 Mass. 147; First Universalist Church, Petitioner, Land Court Decisions, p. 209, ante.

One difficulty found with the title is the lack of any conveyance from the survivors or heirs of the survivors of the original trustees to the present incorporated hoard. It seems to me that the title passed by operation of law under the statutes. By the terms of B. L. c. 147, s. 6, a new trustee . . . appointed in the place of a former trustee in conformity with a written instrument creating a trust shall, upon giving Snell bond as may be required, have tbe same powers, rights and duties, and tbe same title to tbe estate as if be bad been originally appointed.” Tbe present board of trustees was clearly appointed by tbe Act of 1899 in conformity with tbe written instrument creating tbe trust. Tbe original deed provided for tbe transfer of title to tbe incorporated trustees by deed, and prior to 1878 sucb conveyance was probably necessary. Under tbe terms of tbe present statute, however, tbe conveyance is not necessary. Pope, Petitioner, Land Court Decisions, p. 173, ante.

Tbe power of tbe Probate Court to .order tbe sale seems also to be fully covered by statute. By tbe terms of B. L. c. 147, s. 15, “ if tbe sale or conveyance, transfer or exchange of any real or personal property held in trust . . . appears to be necessary or expedient . . . tbe Probate Court may, upon tbe petition of a trustee . . . after notice and other proceedings as hereinafter provided, order sucb sale and conveyance ... to be made, and reinvestment and application of tbe proceeds of sucb sale in sucb manner as will best effect tbe object of tbe trust.” Tbe provisions of tbe statute are very broad. Under it tbe purpose of a trust cannot be entirely disregarded. Davis, Petitioner, 14 Allen 24. PTeither tbe power of tbe Equity Court acting under tbe doctrine of cy pres, nor tbe power of tbe Probate Court under tbe limited statutory authority above quoted, can be exercised in disregard of tbe object of tbe trust, but rather in either case in sucb manner as will best effect tbe object of the trust.” Tb this end tbe Court has full power however. Tbe facts in tbe case at bar bring tbe matter squarely within some of tbe recent cases. Weeks v. Hobson, 150 Mass. 377; Amory v. Attorney General, 179 Mass. 89. (Note. And see Sears v. Attorney General, 193 Mass. 551.)

Decree for petitioner.  