HARRISON v. MARCUS, 396 Mass. 424 (1985)

486 N.E.2d 710

Supreme Judicial Court of Massachusetts. Barnstable.September 13, 1985.
December 18, 1985.

Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, O’CONNOR, JJ.

Trust, Construction. Deed, Construction. Real Property,
Determinable fee. Rule Against Perpetuities. Charity.

In an instrument conveying title to a parcel of real property, which embodied both a deed and a declaration of trust, the words “[t]o have and to hold all and singular the above granted premises unto the said . . . [trustees] and their successors forever, but in Trust NEVERTHELESS, and to and for the purposes herein declared” conveyed title to the trustees in fee simple absolute, and the language following that sentence constituted a declaration of trust for the benefit of a designated troop of the Boy Scouts of America, subject to a duty on the part of the trustees to convey title to the grantor’s heirs when the charitable trust terminated; the words “so long as said Troop . . . shall continue its organization” operated to fix the duration of the charitable trust, and did not reduce the trustees’s interest to a fee simple determinable, with a possibility of reverter in the grantor and his heirs. [428-432]

CIVIL ACTION commenced in the Land Court Department on December 28, 1982.

The case was heard by Marilyn M. Sullivan, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Thomas C. Paquin for the plaintiffs.

Thomas I. Elkind (Nicholas C. Theodorou with him) for Rosamond Marcus others.

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ABRAMS, J.

The plaintiffs brought suit to quiet title to two parcels of land in South Yarmouth. At issue is the title granted to the trustees of the two parcels. The plaintiffs argue that the trustees acquired a fee simple determinable. The defendants argue that the trustees acquired a fee simple absolute. A judge in the Land Court allowed the defendants’ motion for summary judgment and held that the conveyance created a charitable trust, the purpose of which had failed, and ordered the trustees to convey the parcels to the heirs. The Appeals Court summarily reversed Harrison v. Marcus, 19 Mass. App. Ct. 1103 (1984).[3] We granted further appellate review. We affirm the judgment of the Land Court.

The judge found the following undisputed facts. By deed and declaration of trust dated November 14, 1936, and recorded in the Barnstable County registry of deeds, Irving K. Taylor conveyed in trust a parcel of land on the shore line of James Pond in South Yarmouth to Harold E. Hallett, Fred M. Angus, and Hervey L. Small, for the use of Troop 59, Bass River, Boy Scouts of America. Relevant portions of the deed and declaration of trust are set out in the margin.[4] Taylor died in

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New York in 1939 and devised a second parcel of land in South Yarmouth to the same trustees under the same terms and conditions. By deed and declaration of trust dated February 6, 1940, William L. Taylor, as executor of the will of Irving K. Taylor, conveyed the second parcel of land to the trustees “for the purposes declared in and by [the] deed and declaration of trust dated November 14, 1936, and subject to all the same conditions therein set forth, with like effect as though the granted premises had been conveyed to said grantees in and by said deed, all pertinent provisions of which shall be deemed to be herein incorporated and made a part hereof.”

Troop 59, Bass River, Boy Scouts of America, is no longer in existence.[5] The trustees and Cape Cod and Islands Council, Inc., successor in interest to Troop 59,[6] brought suit to quiet title to the parcels. The defendants are the heirs of Irving K. Taylor, the executor of Taylor’s estate and of the estate of his deceased daughter (the defendants), and the Attorney General. See G.L.c. 12, § 8 (1984 ed.).[7]

The parties agree that Taylor created a charitable trust. The point of controversy is the nature of the estate granted to the trustees, see Selectmen of Provincetown v. Attorney Gen., 15 Mass. App. Ct. 639, 643-644 (1983), and the future interest in the heirs. The plaintiffs argue that the trustees took title in

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fee simple determinable, which left a possibility of reverter in the heirs. Under G.L.c. 184A, § 3,[8] a fee simple determinable becomes a fee simple absolute if the specified contingency giving rise to the possibility of reverter does not occur within thirty years from the date the fee simple determinable interest becomes possessory. General Laws c. 260, § 31A,[9] bars proceedings on any possibility of reverter created before January 2, 1955, unless a written statement was recorded in the registry of deeds on or before January 1, 1964. Apparently, no such statement was filed with respect to the land in question. The

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plaintiffs argue that, based on the provisions of G.L.c. 184A, § 3, and G.L.c. 260, § 31A, Cape Cod and Islands Council, Inc., as the successor in interest to Troop 59, is vested with title in fee simple absolute.

The defendants argue that the trustees originally were vested with title in fee simple absolute, subject to a duty to convey title to the grantor’s heirs when the charitable trust terminated. The defendants argue that the trustees held the legal interest, while both Troop 59 and the heirs had equitable interests.

We begin our analysis by considering the nature and quality of the legal estate created by the instruments. Proprietors of the Church in Brattle Square v. Grant, 3 Gray 142, 146 (1855). In the 1936 deed and declaration of trust,[10] Taylor granted the first parcel to the trustees “[t]o have and to hold all and singular the above granted premises unto the said Harold E. Hallett, Fred M. Angus, and Hervey L. Small, and their successors forever, but in Trust NEVERTHELESS, and to and for the purposes herein declared. First To permit and allow Troop 59-Bass River-Boy Scouts of America to enjoy the unrestricted use of the same for Boy Scout purposes so long as said Troop 59 shall continue its organization, and to function as a boy scout troop under the rules, regulations, and practices of similar Boy Scout organizations as now existing and to pay or discharge, all taxes, assessments, betterments and all other levies or liens of like nature levied upon said property, when due and payable.”

As we read the 1936 instrument, the deed portion begins with the description of the property and ends with the sentence of conveyance, “[t]o have and to hold all and singular the above granted premises unto the said Harold E. Hallett, Fred M. Angus, and Hervey L. Small, and their successors forever, but in Trust NEVERTHELESS, and to and for the purposes herein declared.” The portion of the instrument following that sentence constitutes the declaration of trust. Under this construction, there is no question but that the deed conveyed the

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property in fee simple absolute to the trustees. All the terms and conditions are in the trust instrument. The words of the deed convey a fee simple absolute. Neither the parties nor the judge read the instrument as bifurcated. We therefore turn to the arguments of the parties.

The instrument in question is both a deed and a declaration of trust. The rules of construction are similar. Trust instruments must be construed to give effect to the intention of the settlor as ascertained from the language of the whole instrument considered in the light of the attendant circumstances. Groden
v. Kelly, 382 Mass. 333, 335 (1981). Deeds should be so “construed as to give effect to the intent of the parties, unless inconsistent with some law or repugnant to the terms of the grant.” Bass River Sav. Bank v. Nickerson, 303 Mass. 332, 334 (1939), and cases cited. When land is conveyed in trust, the trustees generally take such an estate as is necessary to enable them to perform the trust. 1 A. Scott, Trusts § 88, at 751 (3d ed. 1967). See Richardson v. Warfield, 252 Mass. 518, 520 (1925). Under the terms of the trust, the trustees must hold the land for the use and enjoyment of Troop 59. The trustees must also decide whether any of the conditions have been broken, and, if they so decide, then they must convey title to the heirs.[11] To carry out all these responsibilities, the trustees needed to hold title in fee simple absolute.

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The plaintiffs focus on the words “so long as” and argue that those words indicate that the trustees took title in fee simple determinable. See Brown v. Independent Baptist Church, 325 Mass. 645, 646 (1950); Institutions for Sav. v. Roxbury Home for Aged Women, 244 Mass. 583, 586 (1923); First Universalist Soc’y v. Boland, 155 Mass. 171, 174 (1892). The plaintiffs misconstrue the deed. Typically, the words “so long as” do create a fee simple determinable when used to define the nature of the interest granted. See, e.g., Brown v. Independent Baptist Church, supra; G.G. G.T. Bogert, Trusts and Trustees § 419, at 481 (2d ed. rev. 1977); Restatement of Property § 44 comment a, illustration 1 (1936). However, “particular forms of expression standing alone and without resort to the purpose of the instrument in question are not determinative.” Oldfield v Stoeco Homes, Inc., 26 N.J. 246, 256 (1958). See Simonds v Simonds, 199 Mass. 552, 557 (1908).

Examining the instrument as a whole, we find no intent to grant a fee simple determinable. If Taylor had so intended, he could simply have deeded the parcel to the trustees “so long as Troop 59 exists.” Instead, Taylor created an express trust and recorded it. He required the trustees and their successors to record their appointments. He charged the trustees with the responsibility to determine the existence of a breach of conditions and on such determination to convey title to the heirs. By these provisions, Taylor sought to eliminate any uncertainty in the chain of title.[12] Title would always be in the trustees until, in their sole discretion, they determined that the charitable trust had failed, and then the trustees would convey the property

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to the heirs.[13] This elaborate mechanism is inconsistent with an estate in fee simple determinable in which a breach of conditions would cause title automatically to revert to the heirs, without any action of the trustees. Thus, we conclude that the trustees took title in fee simple absolute.[14]

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Finally, if the trustees had acquired title in fee simple determinable, that would not compel the conclusion that Cape Cod and Islands Council, Inc., of the Boy Scouts now is entitled to the property. As we read G.L.c. 184A, § 3, title in fee simple absolute would vest in the original grantees of the fee simple determinable — the trustees. The trustees, of course, must carry out the intent of the settlor of the trust. See note 11, supra.
A statute cannot extinguish the terms of a trust. General Laws c. 184A, § 3, does not purport to do so. Thus, when Troop 59 ceased to exist, the trustees as holders of a fee simple absolute by virtue of § 3 would have been obliged to convey the property to Taylor’s heirs.

Judgment of the Land Court affirmed.

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