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Cape case shows educational trusts can be altered

By Kathy McCabe
Globe Staff / March 21, 2010

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As the Feoffees of the Ipswich Grammar School and Little Neck homeowners prepare to ask a Probate Court judge to change William Paine’s will, they might look to changes made to a similar educational trust in another Bay State town.

Enoch T. Cobb was a Cape Cod merchant whose 1867 will created a fund to buy books for children in the Barnstable public schools. Rent collected from 8 wooded acres in Hyannis, a village in Barnstable, was to be placed in a trust that would be managed by two trustees appointed by school officials.

At first, wood chopped from the land was sold to buy textbooks. But soon the state required school districts to buy textbooks. And the market for firewood wasn’t quite the same as in the 19th century. So trustees decided to rent Cobb’s land for other uses, including a municipal airport. Over the years, the Cobb trust grew into a sleepy fund, with little money going to Barnstable schools.

But that changed in 1981, when lawyer David Cole wondered why the Cobb fund wasn’t generating more income for the schools. He petitioned Barnstable Probate and Family Court to change the terms of the trust fund and appoint him as its trustee. The court granted Cole’s petition in 1982.

“He believed the town was not getting the best return possible, ’’ said William Butler, legal counsel for the Barnstable School Committee. “He went to Probate Court and got the trust fund changed, to broaden what the fund could invest in, and how it could disperse the funds.’’

Along with textbooks, the fund can pay for all kinds of educational enrichment, such as field trips to Boston or school performances by the Cape Cod Symphony. “It’s really a gift,’’ said Marie McKay, assistant superintendent of Barnstable public schools. “It allows us to provide things above and beyond our budget.’’

Cole died last year. A new trustee is being appointed by the court, Butler said.

The Probate Court also allowed the trust to renegotiate leases, to charge fair market rent.

The trust’s assets, said to be minimal in 1981, have grown to between $3 million and $4 million, according to McKay. Interest is distributed annually to the schools, which last year received $100,000 from the fund, McKay said.

One legal scholar noted that trust law does allow for changes, but usually only if a person’s original wishes can no longer be fulfilled.

“A charitable trust can always be modified,’’ said David Seipp, a professor of property law at Boston University School of Law. “But the beneficiary would have to seek to have the trust modified, so that it could go on as near as possible, to fulfill the donor’s original intent.’’