Argued: February 14, 2019
Circuit Court-Dover Probate Division
Atwood LLP, of Portsmouth (Michele E. Kenney on the brief),
DLA Piper LLP, of Wilmington, Delaware (Stuart Brown on the
brief and orally), and Foehl & Eyre, PC, of Glenside,
Pennsylvania (Robert B. Eyre on the brief), for the Second
Church of Christ, Scientist, Melbourne (Australia).
& Hatfield, LLP, of Concord (Russell F. Hilliard, James
F. Raymond, and Michael P. Courtney on the brief, and Mr.
Hilliard orally), for the Trustees of the Clause VI Trust and
Clause VIII Trust.
J. MacDonald, attorney general (Thomas J. Donovan, director
of charitable trusts, and Charles D. Shockley, assistant
director of charitable trusts, on the brief, and Mr. Donovan
orally), for the Attorney General, Director of Charitable
Second Church of Christ, Scientist, Melbourne (Australia)
appeals an order of the Circuit Court (King, J.),
denying it standing to request affirmative relief and enforce
certain charitable trusts created by the will of Mary Baker
Eddy. We affirm.
Factual and Procedural Background
relevant facts follow. Mary Baker Eddy founded The First
Church of Christ, Scientist, and, upon her death in 1910, her
will established two testamentary trusts, known as the Clause
VI Trust and Clause VIII Trust. The Clause VI Trust
bequeathed to the "Christian Science Board of Directors
of The Mother Church" $100, 000 in trust "for the
purpose of providing free instruction for indigent, well
educated, worthy Christian Scientists." Clause VIII of
Mrs. Eddy's will devised "all the rest, residue and
remainder of [her] estate . . . to The Mother Church ―
The First Church of Christ, Scientist, in Boston,
Massachusetts, in trust," for certain "general
purposes." She directed, inter alia, that
"such portion of the income of [her] residuary estate as
may be necessary shall be used for the purpose of keeping in
repair the church building" and her former home in
Boston and that "the balance of said income, and such
portion of the principal as may be deemed wise," shall
be used "for the purpose of more effectually promoting
and extending the religion of Christian Science as taught by
previous litigation concerning these trusts, we upheld the
validity of the trusts and established that the bequest in
Clause VIII was to be held in trust for two purposes, church
building repair and "promoting and extending the
religion of Christian Science as taught by [Mrs. Eddy]."
Glover v. Baker, 76 N.H. 393, 400-01 (1912); see
also Fernald v. Church, 77 N.H. 108, 109 (1913). The
Massachusetts Supreme Judicial Court reached a similar
conclusion in Chase v. Dickey, 99 N.E. 410 (Mass.
1912), wherein the court held that the construction of the
Clause VIII Trust manifests a purpose to make the promotion
and extension of the religion of Christian Science the
"dominating and real residuary purpose" of Mrs.
Eddy. Chase, 99 N.E. at 415. As a result of this
litigation, court oversight of the trusts commenced, and
annual accounts for both trusts, and requests for
appointments of trustees, have been filed in the Concord
Probate Court (now, Circuit Court) for over one hundred
trustees of the Clause VIII Trust were comprised of the Board
of Directors of the Mother Church and Josiah Fernald, the
administrator of Mrs. Eddy's estate, until Mr.
Fernald's death in 1949. At that time, Judge Lord of the
probate court, in a letter to the trustees, concluded that it
was "not necessary to fill the vacancy [of Mr.
Fernald]" and that the "five members of the
Christian Science Board of Directors who are the surviving
trustees . . . shall constitute the sole trustees" of
the Clause VIII Trust. Since the 1949 letter, the trustees of
the Clause VIII Trust have all been members of the Mother
Church Board of Directors.
1993, following an investigation by the New Hampshire
Director of Charitable Trusts (DCT) into a five million
dollar loan from the Clause VIII Trust to the Mother Church
to be used to fund a failed television venture, the Probate
Court (Cushing, J.) approved a stipulation between
the DCT and the trustees of the Clause VIII Trust. The
stipulation provided, inter alia, that: (1) the
Mother Church agreed to repay the loan to the Clause VIII
Trust; (2) the Clause VIII Trust income was to be used to
repair the church, with any available, remaining income to be
applied to the promotion and extension of Christian Science,
at the discretion of the trustees; (3) further loans from the
trust were prohibited; and (4) the principal of the Clause
VIII Trust could only be invaded with court approval.
current litigation commenced in 2015, when Second Church, an
alleged qualified beneficiary of the Clause VIII Trust,
sought to review, and potentially object to, the annual
accounting filed by the trustees. Although the DCT assented
to Second Church's motion, the trustees objected on the
basis that Second Church, as a "branch church,"
lacked standing to sue. Second Church responded by arguing
that it had standing under the special interest doctrine. The
court scheduled a hearing to address the issue of standing.
However, the court did not rule on Second Church's motion
or the standing issue because the parties agreed at the
hearing that Second Church would withdraw its motion and the
DCT, Second Church, and the trustees would cooperate to
resolve concerns raised by Second Church and the DCT.
prior to the court's scheduling order, the DCT had not
responded to the concerns voiced by Second Church.
Thereafter, the DCT filed a memorandum in April 2016
asserting that Second Church did not have special interest
standing, especially in light of the DCT's "plan to
review the Clause VIII Trust's decision making concerning
its distributions." In his memorandum, the DCT
recognized that prior litigation had arisen from the
"tension" between the two beneficial purposes of
the Clause VIII Trust, namely: (1) repair of the Mother
Church building(s); and (2) "promoting and extending the
religion of Christian Science." The DCT also
acknowledged the tension between the 1912 decision in
Chase, 99 N.E. at 415, that devoted the Clause VIII
Trust distributions primarily to promoting and extending the
religion of Christian Science, and the court's approval
of the 1993 stipulation prioritizing distributions for church
repairs. The DCT further opined that "[b]ecause the
trustees of the Clause VIII Trust are also the Board of
Directors of the Mother Church, they have embedded
conflicting fiduciary obligations." In light of these
concerns, the DCT outlined a review plan that he intended to
undertake with the trustees, which included a "review
[of] the distributions made from the Clause VIII
[Trust]." The DCT concluded that because his office had,
and continued to take, an active role in monitoring the
Clause VIII Trust, "special interest standing is not
following the DCT's objection to the trustees'
accounts filed in 2016, the DCT and trustees reached an
agreement and the trustees filed a motion, assented-to by the
DCT, to, among other things, approve an amended account.
Second Church moved for authorization to file an amicus
curiae brief voicing its continuing concerns. The trial
court issued an order requiring the trustees to file accounts
audited by an independent auditor. The court also denied
Second Church's motion, but indicated that Second Church
should share information with the DCT who, by statute,
represents their interests in this matter. See RSA
the trustees submitted an assented-to motion to, inter
alia, amend the 1993 order. Second Church, again, sought
to submit a brief as amicus curiae. The trustees
objected. Second Church filed a responsive pleading as well
as a status report and a request for time to conduct
discovery, despite the fact that its standing to participate
in this matter had not yet been determined. The court
scheduled a hearing for November 2017. Prior to the hearing,
the trustees filed a memorandum concerning the issue of
standing. Second Church responded by moving for the
appointment of an independent trustee and filing a memorandum
March 2018, the trial court issued an order finding that
Second Church failed to satisfy its burden to demonstrate
that it had standing. We note that in making this
determination, the trial court did not identify the standard
by which it decided the standing issue ― i.e.,
whether the trial court considered the challenge to Second
Church's standing as a motion to dismiss.
order, the trial court acknowledged the general rule that
when a trust is determined to be charitable, it becomes the
duty of the attorney general to ensure that the rights of the
public in the trust are protected and that the trust is
properly executed. See Petition of Burnham, 74 N.H.
492, 494 (1908). The court further noted that New Hampshire
law is unclear as to whether a possible beneficiary of a
charitable trust, like Second Church here, has standing.
Looking to other jurisdictions for guidance, the trial court
determined that most jurisdictions have ruled that a possible
beneficiary is generally not entitled to sue for enforcement
of the trust. See Alco Gravure, Inc., v. Knapp
Foundation, 479 N.E.2d 752, 755 (N.Y. 1985); see
also State ex rel. Nixon v. Hutcherson, 96 S.W.3d 81,
83-84 (Mo. 2003). However, the trial court also found that
courts have recognized an exception to this rule "where
an individual seeking enforcement of the trust has a
'special interest' in continued performance of the
trust distinguishable from that of the public at large."
Hooker v. Edes Home, 579 A.2d 608, 612 (D.C. 1990).
considering how other courts have applied the doctrine of
special interest standing, the trial court applied a
five-factor test, often referred to as the Blasko test.
See Mary Grace Blasko, Curt S. Crossley, David
Lloyd, Standing to Sue in the Charitable Sector, 28
U.S.F. L. Rev. 37, 61 (1993) (hereinafter,
"Blasko"). The test is based upon a comprehensive
survey of case law and it sets forth five factors to
determine whether a plaintiff's interest is distinct
enough from the public at large to justify conferring
standing upon the plaintiff in order to enforce a charitable
trust. See generally id. The factors are: (1) the
extraordinary nature of the acts complained of and the
remedies sought; (2) the presence of bad faith; (3) the
attorney general's availability and effectiveness; (4)
the nature of the benefitted class and its relationship to
the charity; and (5) the social desirability of conferring
standing. Id. at 61.
the Blasko test, the trial court found that none of the
factors weighed in favor of granting Second Church standing.
Second Church filed a motion for reconsideration, which the
trial court denied. This appeal followed.
Analysis of Second Church's Claims
appeal, Second Church argues that, even though the trial
court properly adopted the Blasko test, it misapplied the
factors. Second Church asserts that, under the Blasko test,
as one of a limited number of potential beneficiaries under
the trusts, it has a "special interest" in the
Clause VIII Trust sufficient to justify standing. Moreover,
Second Church contends that the trial court improperly
reached its decision without the development of a factual
record, while also faulting Second Church for not developing
sufficient facts to demonstrate standing. Although the DCT
agrees with Second Church that we should "recognize the
standing of certain persons or entities that have a special
interest in a particular charitable trust to enforce that