Assume the citizen of a municipality donates his art collection to the municipality, not outright but in charitable trust, for display in a public museum. The city council constitutes a six-citizen “board” and delegates to the board the task of administering the trust. When it comes to a true charitable trust, the state’s judiciary is in charge, not the mayor, not the city council, not the state’s legislature, and not the governor. The board is merely an agent of the municipality, that is of the common law title-holding trustee. As the fiduciary-based culture of a trust company and the political culture of a city hall are very different, it is critical, assuming enforcing donor intent is to be a priority, that the governing trust documentation unambiguously makes clear, particularly to government officials serving from time to time and to the public at large, that the board is never to morph into an “instrumentality of government executing public policy.” See, e.g., Trustees of Walters Art Gallery, Inc. v. Walters Workers United, 340 A.3d 786, 809 (Md. 2025). In other words, the donation is not to become a political football, the saga of the Franklin Trust being a cautionary tale in this regard. See https://www.jdsupra.com/legalnews/reliving-the-200-year-saga-ofbenjamin-f-807851/. Rather, the lodestar of those directly or indirectly involved administratively in this true fiduciary relationship shall be donor intent.
In the case of property truly entrusted to a municipality, the state’s attorney general would have standing and the duty to seek judicial enforcement of its provisions. The practical, political, and legal realities are, however, that an AG, even if so inclined, would find it politically awkward advocating for judicial removal of the municipality from the trusteeship and for the appointment of a nongovernmental entity as successor trustee. See generally Woodward Sch. for Girls, Inc. v. City of Quincy, 469 Mass. 151, 177 (Mass. 2014). Political influence and press oversight are typically the only practical means of getting municipalities to cease maladministering their trusteeships. The Restatement (Third) of Restitution and Unjust Enrichment, specifically §17, illus. 1, however, proffers an optimistic illustration of a municipality being judicially compelled in a taxpayer suit to honor its fiduciary responsibilities as a charitable trustee, litigation in which the state’s attorney general’s division of public charities, which should have been advocating for the charitable trust’s very existence and for judicial enforcement of its charitable purposes, is AWOL from the illustration altogether:
“City holds Blackacre under a perpetual charitable trust for public park purposes. Acting with the consent of the mayor and city council, as subsequently ratified by the State legislature, City conveys Blackacre to Developer for use as a parking lot. Taxpayers (as trust beneficiaries) sue City and Developer to compel rescission of the conveyance. City argues that (i) the original conveyance to City did not create a public trust, (ii) if a trust was created it has since become impossible to carry out, (iii) using Blackacre as a parking lot is justified under the doctrine of cy pres, and (iv) any breach of trust was eliminated when the State legislature enacted a statute authorizing the conveyance to Developer. The court rejects each of these arguments, concluding that the conveyance was made in breach of trust and that Developer had notice of the relevant facts. Taxpayers are entitled to an order rescinding the conveyance and to injunctive relief enforcing City’s duties as trustee.
For the challenges, both legal and practical, of having a true trust enforced against the United States or one of her states, see §9.8.2 of Loring and Rounds: A Trustee’s Handbook (2026), the relevant portions of which are set forth in the appendix below
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