Grace Episcopal Church of New Bedford v. Nichols , 341 Mass. 736 ( 1961 )

Decree affirmed. Costs and expenses in the Probate Court and of the appeal may be allowed to the petitioner out of the principal of the fund prior to its application cy pres. A house was devised to the church by the will of Mattie A. Haskins, “as a memorial to . . . [her] late nephew.” She also bequeathed by the same article of the will $7,000 to the church “as a permanent fund . . . for the payment of taxes and repairs” upon the house. The house could not be used for church purposes and was leased until rental use also became impracticable. With the consent of the person entitled to the residue of the estate, the proceeds of the sale of the house have been applied for general church purposes. The devise shows a general charitable intent. The $7,000 bequest was in support of the devise. The probate judge, under the doctrine of cy pres, correctly decreed application of the $7,000 fund for the general purposes of the church, with an appropriate provision for perpetuating the fund’s memorial aspect.

Edward Morley, for the respondent Nichols. George G. Perkins, for the petitioner. Richard N. Gens, Assistant Attorney General, for the Attorney General joined in the brief for the petitioner.