William Paine’s Will

How long should the provisions of a person’s will be enforced? And should those wishes be enforced literally as written, or should a court be able to interpret them very broadly? Such is the problem posed by the will of William Paine of Ipswich, Massachusetts. The will was the subject of a years-long dispute in Ipswich- some 350 years after Paine died.
When William Paine died in 1660, the United States did not yet exist. Only forty years had passed since the Mayflower landed. The Salem witch trials were still decades off. But Paine was thinking of the future.
Paine had come to New England in 1635, and quickly acquired a large portfolio of property. At his death, he left an estate valued at over £4000, quite large for the day. Paine's will, in many respects, looked like most others: he left money and household items to his wife and several grandchildren, money to a college and to the pastors of several churches, and the bulk of his estate to his son. 
But he also did something a bit more interesting: he made a gift of land to the Ipswich school, and he wanted that gift to last forever.
I giue vnto the free scoole of lpswitch, the little neck of land at Ipswitch, commonly knowne by the name of Jeferrys neeck. The which is to bee, and remaine, to the benifitt of the said scoole of Ipswitch, for euer, as I haue formerly Intended, and therefore the sayd land not to bee sould nor wasted. (Source)
The spelling is obviously old, but the meaning seems clear: Paine left a plot of land to be held in trust for the public school in Ipswich (a trust for that purpose had been created by the town in 1652), and he did not want the land to be sold. By the early part of this century, the land, approximately 30 acres, was covered with summer cottages. The land upon which the cottages were built was rented from the trust, which then made distributions to the School Committee for use in the schools. (The trust contained other gifts throughout its history, but by the turn of this century Paine’s gift was the only property remaining in the trust.)
In 2001, spurred by suspicions around town that the trust was not being managed properly, the town of Ipswich launched an investigation of the trustees. The probe found that some trustees were also residents of the property, the rents being charged were below market rate, and the trustees had not turned over any money to the schools at all in several recent years. In response to the investigation, the trustees raised the rents significantly, and the residents of Little Neck sued
The court case that followed lasted for nearly six years. Because Paine’s will stated specifically that he did not want the land to be sold, the residents, who wished to purchase the land on which their homes were built, had to argue that the restriction in the will should be broken. The sale proceeds, after all, would be held and invested for the benefit of the schools. 
So what then? Courts like to enforce a testator’s intent. In this case, Paine intended for the land to benefit the students of Ipswich, and the students were still there to receive that benefit. However, by the time the lawsuit arose, it had been almost 350 years since Paine had given the land at Little Neck to the the trust. Trust law generally limits the period of time for which a trust can exist, because the law does not favor so-called Dead Hand Control: that is, a person should not have unlimited control of their property when they are no longer living. However, charitable trusts can exist for as long as they are accomplishing their purpose. And in Ipswich, there were many citizens who thought that the trust should continue to own and manage Paine’s land, since it was still being used to benefit the schools.
When the residents of Little Neck asked the probate court for its approval to their purchase of the land, a group of citizens sued to prevent the sale, which they argued was not in the best interests of the school. Paine, they argued, had intended that the land be held in trust forever, and therefore the sale would violate the provisions of the trust. They further argued that the proposed sale price- which hovered in the $30 million range- was below the market value of such a large piece of oceanfront property. (The group’s website is still up and has some great information and links to the major relevant documents.)
So- a court case in 2012 centered on whether the wishes of a man who had died 350 years ago should still be enforced. After much wrangling, the probate court agreed to dissolve the trust to sell the Paine property- by then the only property left in the trust- to the cottage owners for $31.4 million.
The probate court ruling allowing deviation from the clause of the will stating that the land should not be sold noted that the costs and delays of litigation had prevented the trust from making distributions to the School Committee for several years, and the litigation was preventing the trust from fulfilling its purpose, which was to support the schools. 
The citizens’ group appealed, but were denied. The land at Little Neck is now managed, not by a trust, but by a condominium association. The sale price was put into a new trust, with terms approved by the court, and the money is still used to benefit the schools, as William Paine wanted.
I wonder what William Paine would have thought of the whole situation. He clearly wanted to benefit the schools for as long as he could, but I wonder how long “for euer” was for him. And I wonder how he’d feel about the sale; surely his intention was to benefit the schools, and the sale netted a large trust fund that will continue to do so for years to come. Paine lived in a world where land was the best form of wealth, and his will was very clear in stating his wishes, but could he possibly have foreseen modern investment trusts? How can we say that he wouldn’t have preferred it? This is the problem, then, with allowing dead hand control: it’s hard to know what someone intended when the world they lived in was so wholly different from our own. The world changes, and so must trusts. 
I do not know whether the sale was right or not; I suspect there is no correct answer. But I do know this: I admire William Paine for his dedication to education, and the trustees for keeping his gift alive for so many years. No matter whether the trust holds land or invests money, William Paine’s gift is now well into its fourth century of benefitting the town of Ipswich, and that’s a heck of a legacy.
(For more on dead hand control in charitable trusts, see Ronald Chester’s article in ACTEC Journal.)

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