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SJC-11801

WALTER E. FERNALD CORPORATION vs. THE GOVERNOR & others.

1

Suffolk. February 5, 2015. - May 29, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,

& Hines, JJ.

Corporation, Charitable corporation. Real Property, Ownership. 

Governmental Immunity. Agency, Public agent.

Civil action commenced in the Land Court Department on 

September 8, 2010.

The case was heard by Keith C. Long, J., on a motion for 

summary judgment.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Joseph Callanan, Assistant Attorney General (John M. 

Donnelly, Assistant Attorney General, with him) for the 

defendants.

Thomas J. Frain (C. Alex Hahn with him) for the plaintiff.

LENK, J. The Walter E. Fernald Corporation (corporation), 

 

1 Department of Developmental Services and Division of 

Capital Asset Management.
2

established in 1850, is a charitable organization devoted to 

serving the needs of the developmentally disabled. The 

corporation brought an action in the Land Court, seeking, among 

other things, a declaration under G. L. c. 231A, § 1

(declaratory judgment act), that it is the owner of certain 

parcels of recorded land. The parcels are located on Norcross 

Hill in Templeton (Templeton parcels). As defendants in its 

suit, the corporation named the Governor, the Department of 

Developmental Services, and the Division of Capital Asset 

Management (collectively, the Commonwealth); the Commonwealth 

had asserted ownership of the Templeton parcels by, among other 

things, naming several of them in a statute designating an 

expanse of land for conservation and public recreational 

purposes. See St. 2002, c. 504.

A judge of the Land Court denied the Commonwealth's motion 

to dismiss the corporation's suit on grounds of sovereign 

immunity. Subsequently, the judge allowed the corporation's 

motion for summary judgment. The judge concluded that there 

could be no genuine dispute that, although a school established 

by the corporation became an agency of the Commonwealth in the 

early Twentieth Century, the corporation itself remained 

independent of the Commonwealth, and purchased the Templeton

parcels on its own behalf. The judge therefore entered judgment 

declaring the corporation's ownership of the parcels.
3

We affirm, holding that sovereign immunity does not apply 

to the particular type of action brought here and adopting the 

same analysis of the facts taken by the judge below.

1. Background. We outline the facts that gave rise to 

this litigation, reserving the details for later discussion.

The corporation was created by a special act of the 

Legislature, at a time when no general framework had been 

enacted for the establishment of corporations.

2 See St. 1850, 

c. 150. The incorporating statute gave the corporation the 

name, unfortunate by today's lights, "the Massachusetts School 

for Idiotic and Feeble-minded Youth." St. 1850, c. 150, § 1. 

As soon as it was created, the corporation established a school, 

also named "the Massachusetts School for Idiotic and Feebleminded Youth" (school). In addition, the corporation devoted 

resources to conducting and publishing research.

Over the years, the corporation changed its name several 

times. In 1883, as the school began to accept adults as well as 

children, the corporation took the name "the Massachusetts 

School for the Feeble-Minded." Other name changes were made in 

1925 ("the Walter E. Fernald State School") and 1987 ("the 

Walter E. Fernald State School Corporation"). The corporation 

assumed its current name ("the Walter E. Fernald Corporation") 

 

2 See Larcom v. Olin, 160 Mass. 102, 104 (1893) (discussing 

subsequent enactment of St. 1851, c. 133).
4

in 2006. Walter E. Fernald, for whom the corporation eventually 

was named, served as the school's longtime superintendent in the 

early Twentieth Century.

From the start, the Commonwealth made appropriations to 

help support the school, both annually and for specific 

purposes. See, e.g., Resolves 1851, c. 44; St. 1901, c. 303. 

In several instances, the Commonwealth provided funding to 

purchase land for the school. See Resolves 1887, c. 64; 

Resolves 1897, c. 64. The corporation purchased the Templeton

parcels with its own money, in a series of transactions 

conducted between 1923 and 1969. This land was used by the 

school at various times, particularly for farming.

In 2002, the Legislature enacted a statute designating

enumerated parcels of land for "conservation and public 

recreational purposes." St. 2002, c. 504. Five of the six 

Templeton parcels were included among those listed in the 

statute.

3 The corporation brought an action in the Land Court,

seeking, among other things, a declaration that the Templeton 

parcels are owned by the corporation.

Portions of the corporation's complaint were dismissed by a 

Land Court judge in an order issued on February 14, 2011. The 

 

3 Although the sixth parcel was not listed in St. 2002, 

c. 504, the Walter E. Fernald Corporation (corporation) included 

it in its complaint "out of an abundance of caution."
5

judge determined, in that decision, that the Governor was not a 

necessary or proper party, and that the relief sought by the 

corporation other than declaratory relief was not within the 

Land Court's jurisdiction. The judge did not, however, agree 

with the Commonwealth that the corporation's suit was barred 

altogether by the doctrine of sovereign immunity.

The corporation moved for summary judgment on the balance 

of its complaint. In another order, issued on December 27, 

2013, the Land Court judge allowed the motion and declared the 

corporation's ownership of the parcels, free of any claims by 

the Commonwealth. The Commonwealth appealed, arguing that the 

judge erred both in his rejection of the Commonwealth's 

sovereign immunity defense and in his resolution of the merits. 

We transferred the appeal to this court on our own motion.

2. Standard of review. We review a grant of summary 

judgment de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 

463 Mass. 635, 637 (2012). We "need not rely on the rationale 

cited and 'may consider any ground supporting the judgment.'" 

District Attorney for N. Dist. v. School Comm. of Wayland, 455 

Mass. 561, 566 (2009), quoting Augat, Inc. v. Liberty Mut. Ins. 

Co., 410 Mass. 117, 120 (1991). Summary judgment is appropriate 

if, viewed "in the light most favorable to the nonmoving party," 

Fuller v. First Fin. Ins. Co., 448 Mass. 1, 5 (2006), the 

materials properly in the summary judgment record "show that 
6

there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law." 

Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

3. Sovereign immunity. The doctrine of sovereign immunity 

provides that the Commonwealth "cannot be impleaded into its own 

courts except with its consent." Randall v. Haddad, 468 Mass. 

347, 354 (2014) (Randall), quoting Woodbridge v. Worcester State 

Hosp., 384 Mass. 38, 42 (1981). Such consent may be provided 

"by statute"; it also may be "implicit[], where 'governmental 

liability is necessary to effectuate the legislative purpose.'" 

Woodward Sch. For Girls, Inc. v. Quincy, 469 Mass. 151, 177 

(2014), quoting Todino v. Wellfleet, 448 Mass. 234, 238 (2007). 

The doctrine applies "both to money judgments and more generally 

to 'interference by the court at the behest of litigants.'" 

Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601 

(2010), quoting New Hampshire Ins. Guar. Ass'n v. Markem Corp., 

424 Mass. 344, 351 (1997).

Sovereign immunity originated in the ancient notion that 

"[t]he king can do no wrong." J.A. Sullivan Corp. v. 

Commonwealth, 397 Mass. 789, 793 (1986). Scholars have for many 

years "suggested that the doctrine is an anachronism in American 

law," given our nation's rejection of the monarchy. See Morash 

& Sons, Inc. v. Commonwealth, 363 Mass. 612, 618 (1973) (Morash 

& Sons), citing K.C. Davis, 3 Administrative Law § 25.01, at 435 
7

(1958). Many courts and legislatures have agreed; "[t]he courts 

in some jurisdictions have abolished the doctrine of 

governmental immunity entirely," and "[a]ll other jurisdictions 

have eroded the immunity by both statutory exceptions and judge 

made exceptions." Morash & Sons, supra at 618-619, and cases 

cited. See H.J. Alperin, Summary of Basic Law § 17.132, at 870

(4th ed. 2009).

Our own view has been that "there should be limits to 

governmental liability and exceptions to the rule of liability."

Morash & Sons, 363 Mass. at 623. Yet we also have recognized 

that an overly comprehensive rule of sovereign immunity is 

"unjust and indefensible as a matter of logic and sound public 

policy." Whitney v. Worcester, 373 Mass. 208, 209 (1977)

(Whitney). We have explained that sovereign immunity creates an 

"inversion of the law," shielding the government from liability 

for wrongs that ordinarily would be redressed. See Morash & 

Sons, supra at 621. Although this "inversion of the law," id.,

is financially beneficial to the general public, "it can hardly 

be termed sound public policy that some persons contribute only 

tax revenues to the commonweal while from others additional 

contribution is exacted in the form of uncompensated injuries." 

Whitney, supra at 215.

We have "long recognized that 'sovereign immunity is a 

judicially created common law concept,' . . . and, as such, is 
8

subject to judicial abrogation or limitation." Randall, 468 

Mass. at 356, quoting Morash & Sons, 363 Mass. at 615, and 

citing Whitney, 373 Mass. at 212. In 1977, we announced our 

intention to abrogate sovereign immunity in tort cases. See 

Whitney, supra at 210. Soon thereafter, the Legislature enacted 

the Tort Claims Act, G. L. c. 258, which permits recovery,

subject to certain exceptions and limitations, for torts 

committed by the Commonwealth, its subdivisions, and its agents. 

No similar legislative action was needed with regard to actions 

in contract, since the law has long been settled that "a State 

consents to jurisdiction by voluntarily entering into a 

contract." J.A. Sullivan Corp. v. Commonwealth, 397 Mass. at 

793.

Sovereign immunity remains in place in other areas of the 

law. See Randall, 468 Mass. at 357. We have identified three 

"reasons of justice and public policy" (citation and quotation 

omitted), id. at 358-359, that, in some contexts, support 

continued application of the doctrine: sovereign immunity may 

serve "to protect the discretionary functions of a public 

official, . . . or to prevent the unauthorized actions of a 

public official, . . . or to shield the public fisc from the 

specter of virtually unlimited liability" (citations omitted). 

Id., quoting Bates v. Director of the Office of Campaign & 

Political Fin., 436 Mass. 144, 174 (2002) (Bates). We have 
9

indicated our reluctance to apply the sovereign immunity 

doctrine where it would not serve these goals. See Randall, 

supra at 358-359 (purposes of sovereign immunity not served 

where, in violation of court order, public employee deposited 

funds in State retirement account); Bates, supra (purposes not 

served where Legislature failed to appropriate funds to effect 

law enacted by ballot measure). See also Morash & Sons, 363 

Mass. at 619.

The Commonwealth's argument that the surviving portion of 

the corporation's complaint is barred by sovereign immunity 

rests largely on our one-half century old decision in Executive 

Air Serv., Inc. v. Division of Fisheries & Game, 342 Mass. 356 

(1961) (Executive Air). There, the Commonwealth purchased two 

parcels of registered land and obtained certificates of title 

from the Land Court. Id. at 357. The Commonwealth's deeds were 

subject to leases held by the plaintiff, which operated an 

airport on the land. Id. The plaintiff sought a declaratory 

judgment invalidating the Commonwealth's deeds and certificates 

of title. Id. The theory put forth by the plaintiff, so far as 

our brief opinion reveals, was that the enactment of the 

declaratory judgment act ended the Commonwealth's immunity as to 

any suit brought under that act. See id. at 358. We rejected 

that view, stating that the declaratory judgment act "relates to 

procedure," and that, as other jurisdictions have held, 
10

"sovereign immunity is not affected by declaratory judgment 

procedure." Id. at 357-358.

We since have reiterated that the Legislature did not 

intend to waive sovereign immunity for the universe of actions

brought under the declaratory judgment act. See, e.g., Sullivan

v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 

Mass. 15, 24 (2006) (declaratory judgment act "includes only a 

limited waiver of sovereign immunity"). See also Fathers & 

Families, Inc. v. Chief Justice for Admin. & Mgmt. of the Trial 

Court, 460 Mass. 508, 509-510 (2011) (judicial department is not 

subject to declaratory judgment procedure). That is to say, we 

have continued to maintain that a plaintiff cannot sidestep the 

common-law shield of sovereign immunity, to the extent that that 

shield remains intact, by using the procedural device of an 

action for declaratory judgment.

We now hold, however, that our common-law sovereign

immunity doctrine does not reach the specific type of suit at 

issue here, namely, one in which a plaintiff asserts its own 

ownership of specified parcels of recorded land.

4 This brand of 

suit differs in two important ways from the one addressed in 

 

4 As discussed infra, if a plaintiff seeking to vindicate 

its ownership of recorded land were to initiate land

registration proceedings, those proceedings would in any event 

bind the Commonwealth. See G. L. c. 185, § 45 (judgment of 

registration "shall be conclusive upon and against all persons, 

including the [C]ommonwealth").
11

Executive Air: the plaintiff here asserts its own ownership of 

the land, rather than the ownership of a third party, and the 

land at issue here is not registered to the Commonwealth. See 

Executive Air, 342 Mass. at 357. We do not now reexamine our 

conclusion in Executive Air that the suit brought there was 

barred by sovereign immunity.

Our reasons for holding that sovereign immunity does not 

encompass actions by which a plaintiff seeks to vindicate its 

ownership of specified parcels of recorded land are the 

following. First and foremost, actions of this type do not 

implicate the concerns that support the continued application of 

sovereign immunity. Disputes concerning a plaintiff's ownership 

of specified parcels of recorded land do not tend to concern 

"the discretionary functions of a public official." Randall,

468 Mass. at 358, quoting Bates, 436 Mass. at 174. In other 

words, these actions are unlikely to be rooted in conduct 

"characterized by the high degree of discretion and judgment 

involved in weighing alternatives and making choices with 

respect to public policy and planning," Whitney, 373 Mass. at 

218, where judicial inquiry "might 'jeopardiz(e) the quality and 

efficiency of government itself.'" Id., quoting Spencer v. 

General Hosp., 425 F.2d 479, 481 (D.C. Cir. 1969).

These types of actions also do not typically stem from 

"unauthorized actions of a public official," Randall, 468 Mass. 
12

at 358, quoting Bates, 436 Mass. at 174, namely, attempts to 

circumvent the ordinary procedures by which the Commonwealth 

expends its funds. See George A. Fuller Co. v. Commonwealth, 

303 Mass. 216, 119-220, 222-224 (1939) (sovereign immunity 

successfully asserted to bar building contractor's suit for 

payment approved ultra vires by emergency public works 

commission). And the adjudication of a plaintiff's ownership of 

specified parcels of recorded land would not subject the public 

fisc to a "specter of virtually unlimited liability." Randall, 

supra, quoting Bates, supra. The Commonwealth's potential 

liability in such cases is, rather, limited to losing control of 

properties that it does not truly own. In sum, in the words of 

the Supreme Judicial Court of Maine, the type of action we 

consider here "implicates none of the modern day considerations 

that would justify the State's invocation of sovereign 

immunity." Welch v. State, 853 A.2d 214, 216 (Me. 2004).

As in Randall, 468 Mass. at 356 n.21, we need not decide

here whether our common-law doctrine of sovereign immunity is 

unconstitutional, in whole or in part. Nevertheless, in drawing 

the boundaries of that doctrine, we recognize that it strains 

against constitutionally protected values. Article 1 of the 

Massachusetts Declaration of Rights protects "the right of . . . 

acquiring, possessing and protecting property." The Declaration 

of Rights provides also that the "officers of government . . . 
13

are at all times accountable to [the people]," art. 5, and that

"[e]very subject of the commonwealth ought to find a certain 

remedy, by having recourse to the laws, for all injuries or 

wrongs which he may receive in his person, property, or 

character," art. 11. Sovereign immunity diminishes the degree 

to which our laws protect property rights, provide recourse to 

legal proceedings, and hold government officers accountable to 

the people.5 See Welch v. State, 853 A.2d at 217 (constitutional 

protections of property and due process "would lose considerable 

meaning if the doctrine of sovereign immunity prohibited the 

people from bringing quiet title actions to settle ownership 

disputes with the State"); GAR Assocs. III, L.P. v. State ex 

rel. Texas Dep't of Transp., 224 S.W.3d 395, 401 (Tex. App. 

2006) (inferring waiver of sovereign immunity from takings 

provision of Texas Constitution).

The Commonwealth suggests that its claim to sovereign 

immunity in the present circumstances is supported by Block v. 

North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273 

(1983) (Block), a case concerning a land dispute between a State 

and the Federal government. Under the Federal Quiet Title Act 

 

5 As a matter of degree, this is true in the current context 

even though, as discussed infra, a plaintiff engaged in a 

dispute with the Commonwealth over recorded land could turn also 

to the relatively onerous process of land registration. See 

note 4, supra.
14

of 1972, 28 U.S.C. § 2409a (2012), actions to quiet title 

against the United States are subject to various restrictions, 

including a twelve-year statute of limitation. See 28 U.S.C. 

§ 2409a(g) (2012). The United States Supreme Court held in 

Block, supra at 281, 284-285, that a plaintiff cannot circumvent 

this limitation by directing its suit against Federal officials 

rather than the Federal government. The Commonwealth points out

that the process of land registration, under G. L. c. 185, 

§§ 26-45, binds the Commonwealth. See G. L. c. 185, § 45. 

Proposing an analogy to Block, supra, the Commonwealth asserts

that "the availability of a land registration action reinforces 

the conclusion that the Commonwealth is immune from [declaratory 

judgment act] claims." This argument admits of at least two 

readings, neither of which persuades us that it would be 

appropriate for sovereign immunity to apply here.

First, the Commonwealth may be asserting that the 

Legislature did not endeavor, in the declaratory judgment act or 

the land registration statute, to waive its common-law sovereign 

immunity in cases like the current one. This premise does not, 

however, compel the conclusion that sovereign immunity bars the 

corporation's suit, because we have long disclaimed the notion 

that the Commonwealth "cannot be sued without legislative 

consent." Morash & Sons, 363 Mass. at 619. To the contrary, as 

we have explained both here and previously, because sovereign 
15

immunity is "a judicially created common law concept," it is 

subject to judicial limitations of the kind we describe today. 

See Randall, 468 Mass. at 356, quoting Morash & Sons, supra at 

615. See also Bates, 436 Mass. at 173 n.33; Whitney, 373 Mass. 

at 212.

Alternatively, the Commonwealth may be suggesting that, by 

enacting the land registration statute, the Legislature replaced 

common-law sovereign immunity with a statutory scheme that 

funnels all land disputes involving the Commonwealth to land

registration proceedings. In this vein, in Block, 461 U.S. at 

285-286, the United States Supreme Court described the Federal 

Quiet Title Act as "a precisely drawn, detailed statute" 

intended by Congress "to provide the exclusive means by which 

adverse claimants could challenge the United States' title to 

real property." We do not think that our land registration 

statute likewise seeks to "preempt[] more general remedies."

See id. at 285. The Quiet Title Act was created specifically 

for the purpose of defining the parameters within which actions 

for title to land may be brought against the United States. See 

id. at 282-284. By contrast, "[t]he intent of [our land

registration] statute was to simplify land transfer and to 

provide bona fide purchasers with conclusiveness of title." 

Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 43 (1980). 

The rule that a judgment of registration "shall be conclusive 
16

upon and against all persons, including the [C]ommonwealth, 

whether mentioned by name in the complaint, notice or citation, 

or included in the general description 'to all whom it may 

concern,'" G. L. c. 185, § 45, is one among myriad provisions 

devoted to achieving conclusiveness of title. We discern no 

indication that this provision was intended to displace our 

traditional doctrine of common-law sovereign immunity. This 

second version of the Commonwealth's argument by analogy from 

Block, supra, is therefore equally unavailing.

Having concluded that sovereign immunity should not bar 

actions in which a plaintiff asserts ownership of specified 

parcels of recorded land, we are not constrained to defer 

"judicial action . . . to provide an inducement to the 

Legislature to abrogate the immunity on its own." See Randall, 

468 Mass. at 358, quoting Bates, 436 Mass. at 174. It is true 

that, as discussed supra, we refrained for a time from 

abrogating sovereign immunity in the tort law setting, even 

after we had determined that the existing doctrine was 

"indefensible." See Morash & Sons, 363 Mass. at 619. But the 

jurisprudential shift that we anticipated in that context was

complex in its doctrinal detail and far-reaching in its 

practical effect. Consequently, we reasoned that "comprehensive 

legislative action was preferable to judicial abrogation 

followed by an attenuated process of defining the limits of 
17

governmental liability through case by case adjudication." See 

Whitney, 373 Mass. at 209, and cases cited. By contrast, where 

we have held only that sovereign immunity does not reach a 

narrow, well-defined type of suit, we have applied those 

holdings without delay. See Randall, supra; Bates, supra;

Morash & Sons, supra. We follow the same course today.

4. Ownership of the parcels. We thus arrive at the 

merits. As mentioned, the Templeton parcels were purchased by 

the corporation in a series of transactions between 1923 and 

1969. The Commonwealth argues that, by the time of these 

transactions, the corporation had become a State agency. The 

Commonwealth itself obtained title to the parcels, in its view, 

by virtue of St. 1980, c. 579, § 10, which transferred "[t]itle 

to real property held in the name of a state agency . . . to the 

name of [the C]ommonwealth." The Land Court judge disagreed, 

determining, based on facts not in genuine dispute, that the 

corporation had at all times remained an entity separate from 

the Commonwealth.

The history of the corporation and the school that it 

founded is not easy to parse. As the Commonwealth has conceded, 

the corporation and the school came into being separately from 

each other. But the school was essentially the corporation's 

raison d'être for many years; it was only natural, therefore, 

that the corporation's reports and other records did not in 
18

every instance draw careful distinctions between the 

undertakings and achievements of the school and those of the 

corporation itself. To further confuse matters, for most of the 

life of the corporation, the law did not require that a 

corporation's name contain a term identifying it as such (as 

G. L. c. 156D, § 4.01 [a] [1], does today). As a result, the 

three names borne by the corporation from 1850 through 1987 were 

identical to the school's names at the corresponding times. It 

is sometimes difficult to identify whether documents using one 

of these names intended to refer to the corporation or to the

school.

In the face of these challenges, the Land Court judge 

conducted a thorough and thoughtful examination of the documents 

in the record. On our independent review of the documents, we 

agree with his analysis and conclusions.

a. Early years. There is no dispute that, when the 

corporation was originally created, it was an entity independent 

of the Commonwealth, with the capacity to acquire and hold its 

own property.

6 The incorporating statute subjected the 

 

6 The Commonwealth asserts that the corporation was 

established as a "public charitable corporation." See McDonald

v. Massachusetts Gen. Hosp., 120 Mass. 432, 432 (1876), 

overruled on another ground by Colby v. Carney Hosp., 356 Mass. 

327 (1968). We need not dwell on this assertion, as it carries 

little, if any, significance as to the question whether the 

corporation eventually became a State agency.
19

corporation to the laws then in effect concerning both 

corporations in general and "manufacturing corporations" in 

particular. See St. 1850, c. 150, § 1, referencing Rev. Stat. 

cc. 38, 44 (1835). The provisions concerning "manufacturing 

corporations" envisage commercial entities that, among other 

things, pay dividends to their stockholders and limit their 

liability. See Rev. Stat. c. 38, §§ 23, 26. By comparison, at 

least some civic-minded corporations founded contemporaneously 

were subjected only to the laws concerning corporations in 

general. See, e.g., St. 1850, c. 95 (Charitable Association of 

Roxbury Fire Department); St. 1850, c. 166 (Tremont Street 

Medical School). Recognizing the corporation's status as an 

independent body, a resolve of the Legislature in 1855 spoke of 

it as "[a]n incorporated institution . . . enjoying the 

patronage of the Commonwealth." Resolves 1855, c. 58 (emphasis 

added).

Fifty-nine years after the corporation was created, in 

1909, its status as an independent entity was reaffirmed by the 

Legislature. A statute enacted that year overhauled the laws 

concerning treatment of the "insane, feeble-minded and 

epileptic, and . . . persons addicted to the intemperate use of 

narcotics or stimulants." St. 1909, c. 504, § 1. Such 

individuals were to be cared for by both "public and private 

institutions," all of which were to be overseen by the State 
20

Board of Insanity. See St. 1909, c. 504, §§ 2, 7. The chapter 

of the statute devoted to the "feeble-minded" addressed two 

institutions: the Massachusetts School for the Feeble-Minded --

then the name of both the corporation and the school -- and the 

Wrentham State School. See St. 1909, c. 504, §§ 59-65. The 

statute also contained a list of "state institutions"; this list 

included the Wrentham State School, but not the corporation or 

the school. See St. 1909, c. 504, § 14.

b. Later developments. The Commonwealth argues that the 

corporation became a State agency as a result of events that 

took place from 1917 through 1921. This history is as follows.

The corporation's board of trustees had always been 

composed of twelve members. The trustees' responsibilities 

encompassed both the "subscriptions, donations and bequests to 

the corporation" and "all the interests and concerns of the 

school." During the first decades of the corporation's 

existence, several of the trustees -- originally eight, later 

six -- were elected by the corporation's members, i.e., its 

general assembly. The rest of the trustees were appointed by 

the Governor and Council. See Resolves 1851, c. 44; 

Resolves 1861, c. 26.

In 1917, the "anti-aid amendment" to the Massachusetts 

Constitution was passed. This amendment prohibited the 

appropriation of public money for "maintaining or aiding any 
21

school . . . which is not publicly owned and under the exclusive 

control, order and superintendence of public officers or public 

agents authorized by the Commonwealth." Art. 46, § 2, as 

amended by art. 103 of the Amendments to the Massachusetts 

Constitution. In order for the school to be eligible to receive 

public funding after the anti-aid amendment, the trustees 

petitioned for legislation providing that each trustee "on the 

part of the corporation" would "hold office" as trustee of the 

school only after being "confirmed by the [G]overnor and 

[C]ouncil." The Legislature granted the trustees' request. See 

St. 1918, Special Acts c. 119 (1918 statute).

Subsequently, in 1919, the Legislature established the 

Department of Mental Diseases. See St. 1919, c. 350, § 79. The 

"state institutions" to be controlled by that department were 

listed in a provision of the first edition of the General Laws, 

enacted in 1921. This time, the "Massachusetts school for the 

feeble-minded," still the name both of the school and of the 

corporation, was named as a "state institution." G. L. c. 123, 

§ 25 (1921 ed.).

As the Land Court judge perceived, the developments of 1917 

through 1921, while modifying the management of the school, did 

not diminish the status of the corporation as an independent 

entity. To begin with, it is true that the 1918 statute granted 

the Governor and Council the power to approve the corporation's 
22

trustees before they could serve the school. But the 

corporation and the trustees had long recognized the trustees'

separate functions in service of the corporation, on the one 

hand, and the school, on the other. The corporation's bylaws of 

1907, for instance, drew detailed distinctions between the 

powers and duties of the trustees concerning the corporation and 

those concerning the school (also referred to as the 

"institution"), stating that the trustees

"shall have power to take any measures which they may 

deem expedient for encouraging subscriptions, donations and 

bequests to the corporation; to take charge of all the 

interests and concerns of the school; to enter into and 

bind the corporation by such compacts and engagements as 

they may deem advantageous . . . . [A]t every annual 

meeting they shall make a report in writing on the accounts 

of the treasurer of the corporation and of the treasurer of 

the institution, and of the general state of the 

institution . . . and an inventory of all the real and 

personal estate of the corporation."

(Emphasis added.) The 1918 statute did not purport to disturb

the role of the trustees in service of the corporation. Indeed, 

it was only the school, rather than the corporation, that needed 

to maintain eligibility for funding from the Commonwealth in the 

wake of the anti-aid amendment; while the Legislature's 

appropriations had always been dedicated to the needs of the 

school, the corporation, as it stated in a 1917 report, had its 

own "private funds . . . consist[ing] of carefully invested sums 

received from time to time from friends of the school."
23

Similarly, the historical record reveals, particularly in 

the corporation's annual reports, that the "Massachusetts school 

for the feeble-minded" named as a "state institution" in 1921 

was the school, not the corporation. The corporation and the 

school had had separate treasurers since 1907. From 1917 

onward, each of the corporation's annual reports, among those in 

the summary judgment record, contains an accounting prepared by 

the treasurer of the corporation, listing the corporation's 

income, expenditures, and assets; and a separate accounting 

prepared by the treasurer of the school. The school, but not 

the corporation, was reported to receive much of its income from 

the treasury of the Commonwealth. This entire system of 

accounting would have been senseless if the corporation had by 

then become a State agency.

The substance of the trustees' reports, too, details their 

sometimes discrete decision-making concerning the finances of 

the corporation, alongside their supervision of the school. For 

instance, in a 1929 report, in addition to recounting news of 

the school, the trustees wrote that they had "passed a 

resolution that it is their policy to increase the principal of 

the Corporation Funds . . . having due regard to the emergency 

needs of the Institution, to the end that the income of the 

Funds may be available for research purposes."
24

There is no question that the Commonwealth was aware of the 

corporation's understanding that its corporate status and 

finances were separate from those of the school; each of the 

trustees' annual reports was addressed "To the Corporation, His 

Excellency the Governor, the Legislature, and the Department of 

Mental Diseases."

Thus, the corporation remained an entity independent of the 

Commonwealth notwithstanding the tumult that 1917 to 1921 

brought to the school. After 1921, the administrative 

structures of both the school and the corporation remained 

unchanged until 1987. Control of the school was then 

transferred to the Department of Mental Retardation, and the 

Governor was charged with appointing all of the school's

trustees. See St. 1986, c. 599, § 9. That the corporation 

remained independent of the Commonwealth throughout the period

from 1921 to 1987 is illustrated by the following incident. In 

1978, after the last of the Templeton transactions had taken 

place, an attorney requested an opinion from the Attorney 

General as to whether his law firm permissibly could perform 

services in connection with two contracts that were planned to 

be made between the corporation and agencies of the 

Commonwealth. See Attorney General Conflict of Interest Opinion 
25

No. 829 (1978).7 These contracts would not have been envisioned

if the Commonwealth had then regarded the corporation as a State 

agency.

The history and character of the corporation are materially 

different from those of corporations that our past decisions

have characterized as agencies of the Commonwealth. See, e.g., 

Trustees of Worcester State Hosp. v. Governor, 395 Mass. 377, 

380-381 (1985) (discussing hospital established as State 

entity). See St. 1832, c. 163, and St. 1833, c. 95); Spence v. 

Boston Edison Co., 390 Mass. 604, 607-608 (1983) (discussing 

housing authority, defined by G. L. c. 121B, § 3, as "[a] public 

body politic and corporate," notwithstanding certain

"characteristics" of private corporation); Benton v. Trustees of 

City Hosp. of Boston, 140 Mass. 13, 17 (1885) (discussing city 

hospital).8 We agree with the Land Court judge, in short, that 

 

7 The attorney was a trustee of the corporation and of the 

school. On the facts described to him, the Attorney General 

concluded that the law firm was permitted to provide the 

services in question, because the corporation was "not a 'state 

agency,'" and its anticipated contracts were "not within [the 

attorney's] official responsibility as a trustee of [the 

school]."

8 We decline the Commonwealth's invitation to address the 

conditions that may cause a charitable corporation to be viewed 

as a State agency. Suffice it to say that, as already 

discussed, although the school established by the corporation 

was supported largely by Commonwealth funds and was subject to 

some control by the Governor, the same was not true of the 

corporation.
26

the summary judgment record does not support the Commonwealth's 

theory that the corporation, at some point, became a State 

agency.

c. Purchases. The Templeton parcels were last conveyed in

the following transactions: (a) in 1923, the "Cowick" parcel

was granted, by three separate deeds, to the "Massachusetts 

School for the Feeble-Minded, a corporation"; (b) in 1929, the 

"Dyer" parcel was granted to the "Walter E. Fernald State 

School, a Massachusetts corporation"; (c) that same year, the 

"Thompson" parcel was granted to the "Commonwealth of 

Massachusetts";9 (d) also that same year, the "Norcross" parcel

was granted to the "Walter E. Fernald State School"; (e) in 

1939, the "Gardner Savings Bank" parcel was granted to the 

"Walter E. Fernald State School"; and (f) in 1969, the 

 

9 The Thompson parcel was not named in the corporation's 

complaint. The Land Court judge explained, however, that both 

parties had addressed that parcel in their summary judgment 

briefs, and that the Commonwealth had reproduced the deed to the 

parcel in its record appendix. The judge therefore determined

that the parcel presented an "issue[] not raised by the 

pleadings [but] tried by express or implied consent of the 

parties," which, by rule, is to be "treated in all respects as 

if [it] had been raised in the pleadings." Mass. R. Civ. P. 

15 (b), 365 Mass. 761 (1974). We discern no error in that 

decision.
27

"Doucette" parcel was granted to the "Walter E. Fernald State 

School, a Massachusetts corporation."10

Each of these parcels was purchased with the corporation's 

own funds. The trustees were openly cognizant of the fact that 

they were using the corporation's funds rather than drawing on 

those of the Commonwealth. When they contemplated purchasing 

the Norcross parcel, for instance, the trustees wrote that "due 

to the biennial session of the Legislature and our small 

appropriation the State could do nothing," and that, therefore, 

"it was voted to have the Corporation acquire said land."

After the parcels were purchased, they were listed in the 

corporation's reports as assets of the corporation, not the 

school. By contrast, when, on earlier occasions, the 

Legislature had provided funds for the purpose of purchasing 

land for the school, the appropriating enactments stated that 

the land would be purchased "in the name and on behalf of the 

Commonwealth," Resolves 1897, c. 64, or that the deed to the 

land would be "deliver[ed] to the treasurer of the 

Commonwealth," St. 1897, c. 98, § 2.

 

10 The deeds to these six parcels are recorded in the 

Worcester County registry of deeds at book 2289, pages 336-337 

(three deeds to Cowick parcel); book 2487, page 188 (Dyer 

parcel); book 2487, page 59 (Thompson parcel); book 2499, page 

475 (Norcross parcel); book 2746, page 399 (Gardner Savings Bank 

parcel); and book 4952, page 389 (Doucette parcel). The 

corporation, in its brief, mistakenly counts seven parcels, for

reasons that are apparent but unimportant here.
28

For purposes of our analysis, the deeds to the parcels fall 

into three categories. First, the deeds to the Cowick, Dyer, 

and Doucette parcels explicitly name the "corporation" as 

grantee. Given our conclusion that the corporation was not a 

State agency, there remains no question that these deeds bestow

title on the corporation only.

The second category of deeds contains those to the Norcross 

parcel and to the Gardner Savings Bank parcel. These deeds did 

not state specifically that the grantee was a "corporation"; but 

the grantee named in them, the "Walter E. Fernald State School,"

was the corporation's formal name when the deeds were made. The 

meaning of a deed "is to be ascertained from the words 

used . . . construed when necessary in the light of the 

attendant circumstances." Patterson v. Paul, 448 Mass. 658, 665 

(2007), quoting Sheftel v. Lebel, 44 Mass. App. Ct. 175, 179 

(1998). The circumstances surrounding these deeds reveal that 

the corporation was the intended grantee. The funds used for 

these purchases belonged to the corporation; the Commonwealth 

did not reimburse the corporation for the purchases; the 

corporation never expressed an intent to make a gift of the land 

to the Commonwealth; and, after each parcel was conveyed, it was 

listed in the corporation's reports as an asset of the 

corporation.
29

The same circumstances attended the third category of 

deeds, which includes only the deed to the Thompson parcel. 

Although that deed names the Commonwealth as grantee, the 

Thompson parcel, too, was purchased by the corporation with its 

own funds, and it, too, thereafter was counted among the 

corporation's assets in the corporation's annual reports. In 

the absence of any suggestion that the corporation intended to 

gift this land to the Commonwealth, we agree with the Land Court 

judge that the deed's reference to the Commonwealth as grantee 

can only have been inadvertent.11

Judgment affirmed.

 

11 The Commonwealth argues that, even if we determine that 

the corporation holds title to all of the parcels, further 

proceedings are necessary to determine the character of that 

title, and specifically whether the corporation holds the 

parcels in trust for the Commonwealth. We deem the argument 

waived, as it was not made below. See Weiler v. PortfolioScope, 

Inc., 469 Mass. 75, 86 (2014), citing Canton v. Commissioner of 

Mass. Highway Dep't, 455 Mass. 783, 795 n.18 (2010). Although 

the case was decided on the corporation's motion for "partial" 

summary judgment, that motion was partial -- as the Land Court 

judge explained -- only insofar as portions of the complaint had 

been dismissed on the defendants' motion.