The following is the text of the letter about the "Afghans" painting, recently from the attorney general's office, which was addressed to State Rep. Elizabeth Poirier, R-North Attleboro.

I am writing in response to your letter dated April 17, 2008 on behalf of the North Attleboro Board of Selectmen regarding the "Afghans," a painting donated to the town. The question is whether the "Afghans" was given subject to a charitable trust. While this office is not allowed to give legal advice, I understand that the selectmen are asking for clarification with respect to this gift, particularly whether the gift was given upon a public charitable trust and if so, what are their duties and responsibilities.

The gift language accompanying the "Afghans" creates a public charitable trust. The language states that the purpose of the gift is to make the painting available for viewing by North Attleboro students and North Attleboro residents to inspire appreciation of the painting, fire arts and North Attleboro. A classic definition a charity is set forth in Jackson v. Phillips, 96 Mass. (14 Allen) 539, 556, (1867): A charity, in the legal sense, may be more fully defined as a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves in life or by erecting or maintaining public buildings or works otherwise lessening the burdens of government.

The "Afghan" gift instrument certainly meets the criteria for a public charitable gift.

In Attorney General v. Weymouth Agricultural & Industrial Society, 400 Mass. 475, 482 (1987), the Supreme Judicial Court stated that a public charity "is an entity which has a legal obligation to apply some or all of its funds for purposes that are charitable." Scott on Trusts at section 37.2.2 Intention to Create a Trust, states that a charitable trust arises if the settler properly manifests and intention to create it. The settlor need not use any particular language to create a charitable trust. Nor does the settlor need to use the word "trust" or "trustee". It is sufficient that the settlor shows and intention that the property is to be held subject to a legal obligation to devote it to purposes that are charitable.

The painting "Afghans" is held as a public charitable trust. The most important obligation of the trustees of the "Afghan" painting is to carry out the intent of the donors. As I understand the current status, the donors of the painting are alive. They have expressed their wish that the painting remain in the town of North Attleboro for the benefit of viewing by the public. I also understand that there is no impediment to the public charitable purpose being carried out by the trustees. The donors have offered to re-gift the painting for the benefit of the town of North Attleboro to the selectmen and have offered to convey a $50,000 gift for use by the town to carry out the trust.

I have reviewed the donors' agreement and I am satisfied that the document presented to selectmen is in keeping with donors' intent. Although I offer no opinion, I will say that the selectmen would do no wrong by agreeing to the terms of the agreement, thus allowing the painting to remain available for viewing by the residents of North Attleboro.

Turning now to the issue of selling, it is my understanding that the painting is being held by an auction house at this time. Should the selectmen attempt to sell the painting, they will have to meet the criteria set forth by the "cy pres" doctrine and make their argument for selling in a court pleading for approval by a judge, usually in probate court. The criteria for "cy pres" are that the gift be given with a general charitable intent; that it has become impossible or impracticable to carry out that intent and that any proceeds from the sale will be used for a similar charitable purpose.

Also, the town should consider the following in deciding whether or not to sell the painting: The painting will be held by the town in trust once the re-gifting takes place between the donors and the town. Should the town decide to make a "cy pres" case for selling the painting, the pleasing would name the Attorney General as a necessary party. "Cy pres" is a judicial doctrine and that means that the attorney general can make a recommedation to the court, but the court need not follow that recommendation. Also, should the town decide to make a "cy pres" case, the town must also be aware that 10 taxpayers have the right to intervene and enforce the trust on its original terms.

I trust that this letter serves to clarify the status of the painting as a public charitable gift. Also, I trust that the selectmen, with the aid of this letter, understand their responsibilities with respect to this painting given on a public charitable trust.

Very truly yours,

Johanna Soris

Assistant Attorney General