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A test of will

Little Neck trustees, homeowners seek changes in 17th-century bequest to Ipswich schools

Trustees of the 27 acres known as Little Neck and homeowners renting there want a judge to change a 1660 will that forbids sale of the land. Trustees of the 27 acres known as Little Neck and homeowners renting there want a judge to change a 1660 will that forbids sale of the land. (John Blanding/Globe Staff)
By Kathy McCabe
Globe Staff / March 21, 2010

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IPSWICH — When William Paine died in 1660, he left his mill in Watertown and home in Boston to his wife. He gave shillings and pounds to three grandchildren, clergy members and the “Colledge at Cambridge,’’ better known as Harvard.

And to the schoolchildren of Ipswich, Paine bequeathed “the little neck of land,’’ which today is called Little Neck, 27 acres rising over the Ipswich River and the sea. Today 167 cottages dot the wind-swept land that is owned by a trust called the Feoffees of the Ipswich Grammar School. Residents own their cottages, but rent the land from the Feoffees, a medieval term for trustee.

In his handwritten will, Paine also stated Little Neck should not be sold. The land “. . . is to bee and remaine to the benefit of the said scoole of Ipswitch for ever . . . and therefore the sayd land not be sould nor wasted,’’ he wrote.

Now, 350 years after Paine penned his will in Old English, Little Neck could go condo.

An agreement between the Feoffees and cottage owners calls for the land to be sold for $29.1 million. A total of 165 of the 167 homeowners signed purchase and sale agreements earlier this month to form a condominium association to purchase Little Neck, according to according to a spokesman for the homeowners. The land trust requires that rental income be donated to Ipswich schools. The condo proposal calls for sale proceeds be put into an endowment to benefit the schools.

But a probate judge must first decide if Paine’s will should be changed. And despite being more than three centuries old, the Colonial-era document could still pass legal muster, one legal scholar said.

“Judges are very reluctant to set aside, or change, the words of a will,’’ said David Seipp, a professor of English legal history and property law at Boston University School of Law. “It has always been a bedrock principle of common law, that instructions about what is to be done with property at the time of a death . . . our wishes are obeyed.’’

A judge also will be most con cerned about how the change would impact the Ipswich schools, as the beneficiary of Paine’s will. “A court will look out for the future generations of schoolchildren in Ipswich,’’ Seipp said. “They would not take into consideration the economic relations of the renters.’’

Relations recently between the Feoffees and tenants have been as rocky as the Ipswich shore at low tide.

Since 2006, the two sides have been locked in a legal tussle over rents, leases, and even threats of eviction. The Feoffees proposed more than doubling rents, from $5,000 to $9,700 per year for seasonal residents. For the 24 year-round residents, rent would increase from $5,500 each year, to $10,800. Most tenants balked at the increase, and sued the Feoffees in Essex Superior Court.

The Feoffees sent eviction notices to the tenants who refused to pay the rent increases in early 2007, but the action was put on hold while the two sides worked to resolve their dispute. Since then, tenants who opposed to the rent hikes have agreed to put into escrow the difference between the rent they had been paying, and the proposed increase. The condo plan, if approved by the court, would also settle the tenants’ lawsuit over rent hikes.

The Feoffees paid more than $1.4 million in rental income to the schools from 2003 until 2006, according to the settlement proposal. But since the tenants filed their lawsuit, the group said it has had to suspend payments to the schools. As the schools face a $500,000 deficit for the next school year, the dispute is starting to hurt, a school official said.

“We’re missing out,’’ said Jeff Loeb, chairman of the Ipswich School Committee. “We’re laying off next year . . . Are we getting hit by the economy, and the Feoffees? Yes, we are.’’

William Sheehan, a lawyer representing the Feoffees, said he will speak with lawyers from the School Committee this week before returning to Probate Court. “Hopefully, we’ll move forward with the assent of the School Committee,’’ he said. “I believe this [plan] will benefit all.’’

The condo agreement states that investment income from the proposed endowment, funded with the $29.1 million sale price, could generate as much as $1 million annually for the Ipswich schools.

“It would be a more certain, and sustainable income for the community,’’ said Mark S. DiSalvo, a spokesman for the Little Neck Legal Action Committee, which represents homeowners.

But there are skeptics.

The town Finance Committee plans to hire an outside appraiser to determine if the $29.1 million reflects the fair market price for Little Neck.

“The value of the land as a season cottage versus year-round is something we want determined,’’ said Jamie Fay, the committee’s chairman. “What they [homeowners] are essentially buying is the right for a year-round home . . . The conversion could create economic stress on the town, for more police and fire coverage, trash pickup. That should be considered.’’

The School Committee filed a counterclaim to the condo settlement, seeking to reformulate the makeup of the Feoffees.

Currently, the Feoffees consist of four members appointed for life by their board, and the three longest-serving members of the Board of Selectmen.

The School Committee proposes to have a majority of the Feoffees appointed by the town. A similar request, to have the state Legislature amend the makeup of the Feoffees, was approved by Town Meeting, but never acted on in the Legislature. The Feoffees have been criticized for keeping rents low at Little Neck, at the expense of income for the schools.

“Regardless of what asset the Feoffees hold in the future, be it cash or real estate, we thought it was important to get the trust straightened out,’’ Loeb said.

Since the schools are the beneficiary of the trust, Loeb said, the School Committee will have to vote to decide if it will support changing Paine’s will in court. “We are also not going to agree just to restore cash flow. It has to be good for the community,’’ he said.

No date has been set yet for a Essex Probate and Family Court judge to consider the proposed settlement and the counterclaim. If the settlement is not approved, DiSalvo said, homeowners will continue their Superior Court lawsuit over rent increases.

“If the courts choose to not allow the land to be sold, the lawsuit will be reactivated,’’ he said. Because the Feoffees are organized as a charitable trust, the state attorney general’s office must also approve the condo agreement, lawyers said.

A big fight over Little Neck probably was the last thing on William Paine’s mind when he wrote his will. A wealthy English settler, Paine owned mills and was an early investor in the Saugus Iron Works. He lived in Ipswich for 14 years, before moving to Boston.

“He was terribly entrepreneurial,’’ said Bob Weatherall, a native of England and a former Ipswich School Committee member, who studied Paine’s life. “He was a public- spirited man. One of his last good deeds was to leave the land at Little Neck to the Ipswich schools.’’

Kathy McCabe can be reached at kmccabe@globe.com.