(dissenting) Mr. Justice Kirk and I agree with the majority that the “plain obligation of the members of the Corporation” was to use the trust assets “for the express purposes of the trust,” but we do not agree that “the findings show that they did so act.” Although the Corporation may have “believed the removal to be consistent with the Corporation’s obligations,” belief does not constitute compliance. The Corporation did not use the trust assets “within the express trust purposes.” It palpably misinterpreted those purposes. The majority, it seems to us, have chosen to accept the Corporation’s mistaken conception that the purpose of the trust is the establishment and support of an instrument “to be used in the development of Botany as a whole and in the over-all interests of the .University.”
The majority admit that the “express intent” of the Indenture is “to benefit the public through the establishment and maintenance by Harvard University of an arboretum as described, and a professorship in the university,” but the majority say that “ [c] ertain other purposes are implicit.” One such purpose, they say, was “to create a specific subdivision of scientific or cultural activity of the university (that is, broadly, a department).” It is this holding, which apparently serves as a major premise upon which the reasoning of the opinion is based, that results, in our view, in an erroneous conclusion.
In writing this dissent we are constantly confronted with the “implications” which the majority create. The unadorned language of the “express trust” is brushed aside and the opinion rests on a fragile foundation of “implications.”
We agree with the majority that “the Corporation’s trust obligations are not changed by a reference to the Arboretum as a department.” The employment of this concept in administering the trust does not change the obligation; it violates it. The Indenture provides for the support of an Arboretum. It does not provide for the Arboretum to be one of the “parts” of the university or a *148“department” of the university or a “subdivision of scientific or cultural activity of the university.”
If the purpose of the Indenture was to make the Arboretum just another of the many departments of Harvard, the Arboretum’s library and herbarium could have been removed, for example, to the Harvard administered Atkins Garden in Cuba solely on the basis of a trustee’s decision that such a move would give “that department and the trust assets used therein their greatest usefulness.”
The majority state that the term “department” is merely “descriptive” of an activity “managed by the Corporation.” A department is defined in Webster’s Second New International Dictionary in the context of education as ‘ ‘ [a] division within a college or school, giving instruction in a branch of the arts and sciences” (emphasis supplied). This may be descriptive of the Arboretum after the move, but it is not descriptive of the Arboretum envisioned by the Indenture.
In our judgment the Arboretum is not, as the majority say, a “subdivision of scientific or cultural activity of the university (that is, broadly, a department).” It is, as the footnote to the majority opinion states, “a place where trees, shrubs, and herbaceous plants are cultivated for scientific and educational purposes” (emphasis supplied). Under the terms of the Indenture, the “place” is in West Eoxbury (now Jamaica Plain). A fund for “the establishment and support of an Arboretum” may be expended to enable persons to make proper use of the “place,” such as by creating and maintaining related libraries and herbaria; but not for anything which does not advance the operations of that “place.” It should be noted that when the Indenture was made the university was engaged in similar work at the Bussey Institution and the Botanic Gardens. That the donor intended the Arboretum to have a separate and independent identity is shown by the specific provision that the funds “shall not be diminished by supplementing any other object, however meritorius, or kindred in its nature.” Plants might be taken for the use *149of the college only if they could be spared without injury to the Arboretum. These provisions indicate to us that the intent of the donor was not to create a peripheral “appendage” to the botany department at Harvard but to create as a distinct entity a “place” for the cultivation and study of plants and shrubs.
In 1879 (seven years after the Indenture), the year in which the Arboretum was established, the first Arnold Professor stated that “without a herbarium of specimens . . . and without a library ... it would be impossible either to carry on the current operations of the Arboretum or to make it what, in his judgment, it should be, a center of dendrological investigation and research.” In 1924 he wrote “such an institution [as the Arboretum] must consist of three departments: First, the herbarium: second, the library; third, the collection of living trees and shrubs. . . . The value of this [latter] department is dependent on the first department or collection of dried plants, and this is dependent on the second department, the collection of books.”
The majority state that “ [t]here is no implication that, to promote those purposes [the express purposes of the Indenture], the library and herbarium could not be maintained at Cambridge.” The express purposes of the trust require the trustee to find that the removal of the library and herbarium from the Arboretum to Cambridge would be in “support” of the Arboretum and not of the university. This the trustees did not do.
The majority argue that “ [t]he separation of this activity [the growing of trees, shrubs and herbaceous plants] does not imply a requirement that the Arboretum be managed as though it were unrelated to an institution having other divisions with similar activities.” “There is a vast distinction between a related activity and a subordinate one. We find no implication in the Indenture that the Arboretum was to become a division and, therefore, a subordinate part of the university.
The purposes of the trust limit the power of the trustee. ‘ ‘ The extent of the duties and powers of a trustee is deter*150mined ... by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney. . . . [The trustee] can, however, escape liability by submitting the matter to the court for instructions.” Scott, Trusts (2d ed.) § 201, p. 1510.
We note with special interest that “a legal opinion entitled ‘Report on the Questions Raised by the Bailey Plan,’ prepared, at the request of the Visiting Committee, by Robert Gr. Dodge, Esquire, and the law firm of Herrick, Smith, Donald, Farley & Ketchum, of which J. Wells Farley, Esquire, was a member, was submitted to the Visiting Committee.” This report contained the following conclusions: “ . . . that carrying out the Bailey Plan would involve the Corporation in various breaches of trust arising from its administrative proposals and its alleged diversion of Arboretum income to purposes foreign to the purposes of the Arboretum trust, and that its effect would be to destroy the Arboretum as a separate identifiable institution ; . . . that the proposed removal of the greater part of the library and herbarium to Cambridge was not in the interests of the Arboretum . . . and that, whether or not the Corporation and its counsel agreed with the Farley-Dodge conclusions, the Corporation should seek a judicial determination of the matter.”
Thus it is certain, that at least after the receipt of the Farley-Dodge report, the Corporation knew that serious legal questions were raised concerning the purposes of the trust, and also knew that it could seek a judicial determination of the issues in controversy. Vet it chose not to follow such a course. On the other hand, the opponents of the Corporation’s plan wanted to get a judicial decision through the only channel of approach to the court, without avail. Ames v. Attorney Gen. 332 Mass. 246.
The failure to ask for a judicial determination when one was patently called for makes inapplicable to the Corporation’s decision the principle of Trustees of Andover Seminary v. Visitors, 253 Mass. 256, 298, that “ [t]he practical *151construction put upon a charitable foundation of doubtful meaning by those charged with its administration through many years is entitled to great weight in ascertaining its right construction.” Instead, this principle directs our attention to the status of the Arboretum prior to the controversy.1 As the majority admit, and as the master found, “ [t]he Arnold Arboretum, growing under able leadership, acquired many of the characteristics of an independent institution, and it came to be so regarded.” The master found “The Arboretum prior to the removal of the main portion of its library and herbarium to Cambridge had a reputation of its own as a botanical institution and this reputation was separate and distinct from the reputation of Harvard University or of the other botanical enterprises administered by Harvard.”
The majority, at one point, admit that “the Indenture did not give a fund to the Corporation to be used for general botanical purposes.” However, the majority appear to modify this holding by adding that “the Corporation, in the course of determining what management of the assets of the Arboretum would reasonably and appropriately serve the direct purposes of the Indenture, was entitled to give consideration to the effect of the move on other departments and botany as a whole at Harvard and the possible general advantages to result. Such consideration cannot mean, however, that those other ends are to be regarded as purposes of the Indenture.” If the majority statement means that after having determined that any of several different actions would serve the direct purposes of the Indenture the trustee may then consider related matters in selecting the action to be taken, we would agree. But if this statement means that in the making of that determination the trustee may consider matters other than the direct purposes of the trust, we would disagree. Such a holding we believe to be a violation of the basic principle *152of the law of trusts, that the trustee must administer the trust “solely with a view to the accomplishment of the purposes of the trust.” Scott, Trusts (2d ed.) § 379, p. 2735. In addition, such a holding would permit “general advantages” or great benefit to “other departments” or to “botany as a whole at Harvard” to override even great harm to the Arboretum. On such a theory the fund could be used not merely for general botanical purposes, but for any purpose whatever which would benefit the university. We know of nothing in the law of trusts to justify such a gross departure from the terms of the Indenture. The Corporation, however, seems to have taken precisely this view. The master found “The Corporation acted in the bona fide belief that it was entitled, in determining whether to cause removal, to give controlling weight to” the promotion of “the science of botany at Harvard from an overall standpoint.” Another indication of the basic misunderstanding by the Corporation of its responsibility is found in the statement of the Chairman of the Coordinating Committee on the Biological Sciences “that the real beneficiary was the public which would benefit from education, and that the trustee has an obligation to use the funds for those purposes which it deems will best promote educational ends and as much of a duty to use them for those purposes as to use them for the benefit of the Arboretum and like any trustee must exercise its best judgment as to the balance between the two purposes.” We do not accept this subordination of the basic purpose of the trust.
Ordinarily, we would agree with the statement in the opinion that “ [T]he duty to consider the overall welfare of the university and the ultimate purposes of all its foundations . . . did not disqualify the members of the Corporation in respect of the decision of the Indenture.” We say, “ordinarily,” because we would expect the Corporation to correctly determine the purpose of the Indenture and if there was doubt as to its purpose we would expect the Corporation to have that doubt resolved by judicial decree. But, in the instant case we are considerably con*153cerned about a possible conflict of interest. This has nothing to do with the issue of good faith. The difficulty here is that the Corporation, mistakenly we believe, “accepted as sound the view . . . that the Arboretum should be regarded as an instrument ... ‘to be used in the development of Botany as a whole and in the over-all interests of the University’ ” (emphasis supplied).
The holding of the majority that the Corporation acted properly because it believed its action would advance the purposes of the trust rests on the unsupported assumption that the Corporation properly understood the purposes of the trust. The belief of the Corporation is not proof that it correctly interpreted the purpose of the Indenture. This is true even though that belief was sustained by the legal opinion of its counsel. Because President Conant gave “various reasons in support of the position ‘that the work of the Arnold Arboretum may be carried on more effectively’ if the move” to Cambridge were made does not vindicate the position of the Corporation if it misinterpreted the purpose of the Indenture.
Further, the Corporation can receive no support from the opinion of outside scientists consulted “at least as a matter of record” after the Corporation had decided to transfer the library and herbarium to Cambridge. They were asked whether the move would be “the best way of carrying out the terms of the trust.” Their affirmative answer to this query is of no significance in interpreting the purposes of the Indenture. It is obvious that this required legal knowledge. We observe, too, that the master found that “ [t]hey were not asked whether the move would be in the best interests of the Arnold Arboretum.” We note with interest that one of these scientists, when asked as to the effect on the Arboretum, “pointed out . . . what he considered to be the disadvantages of the move from the Arboretum’s standpoint.”
In fact, the Corporation did not accept the view that “the general and ultimate purpose” of the Indenture was, as expressly stated therein, for “support of an Arboretum.” *154Instead “ [t]he Corporation . . . accepted as sound the view . . . that the Arboretum should be regarded as an instrument . . . ‘to be used in the development of Botany as a whole and in the over-all interests of the University. ’ ’ ’ It is precisely because “ [t]he master’s report is well organized, clear, and complete,” as the opinion states, that we are able to show that the Corporation failed to properly consider the purpose of the trust. As the majority state, “ [i]mplicit in the master’s findings is the conclusion that if the Corporation had accepted ‘the best interests of the Arboretum’ as an important criterion, its members . . . must have decided against the move.”
The master found that “At the time of the move . . . the Arboretum library contained about 48,600 bound volumes and 15,400 pamphlets, of which all except approximately 7,000 volumes, including pamphlets, were moved.” In addition, “ [a]ll but about 4% of the wild specimens were removed from Jamaica Plain to Cambridge, and except for wild specimens in two categories, that is, wild herbaceous weed specimens and wild crataegus specimens, only about 1% of the wild herbarium specimens of the Arboretum were retained in Jamaica Plain.”
The master also found that “ [t]he decision to move the bulk of the Library and herbaria was not made for the benefit of teaching in the University by or under the direction of the Arnold Professor.” Further, “ [t]he relief of whatever unsatisfactory housing conditions existed in the Administration Building at Jamaica Plain was not a controlling or significant factor influencing the determination to move the bulk of the library and herbarium to Cambridge.” Instead, “ [t]he Corporation acted in the bona fide belief that it was entitled, in determining whether to cause removal, to give controlling weight to ... [the] consideration” of the promotion of “ the science of botany at Harvard from an overall standpoint.”
The majority conclude that the purposes of the trust could be advanced by the transfer because “ [t]he Arboretum would continue as a part of a group of botanical sci*155ence departments that was expected to attain outstanding preeminence. . . . [Outstanding scientists, scholars and students would be at least as much attracted to association with the Arboretum as before, and, in reasonable likelihood, more so, and that their work on the whole would benefit.”
This conclusion contrasts sharply with the master’s findings that as a result of the move not only have “ [t]he reputation and prestige of the Arnold Arboretum . . . been materially injured,” but also “the Arboretum library and herbarium at Jamaica Plain were materially impaired for taxonomic, horticultural and other scientific work.” It is also in marked contrast with the finding of the master that, despite the advantages to the carrying on of taxonomic research in Cambridge from consolidation of the libraries, “there is ... a marked disadvantage to the carrying on of such research arising from the separation of books and herbarium specimens from the living collections in Jamaica Plain, from the separation of the wild and cultivated specimen collections and from the division of the Arboretum staff resulting from the move.”
When the Corporation between June 7, 1954, and July 9,1954, moved about six-sevenths of the Arboretum’s books and herbarium specimens to Cambridge this could hardly be in the best interests of the Arboretum as a “place” associated with Harvard. This move undoubtedly would result in an increasing number of scholars being attracted to Harvard due to the preeminence of its entire botanical complex. The converse, however, is true of the Arboretum. Its position in the botanical world has been denigrated and it has become a mere adjunct of Harvard. As the majority state, “A decline in the reputation, prestige, and standing of the Arnold Arboretum as a separate institution was, we think, reasonably foreseeable.” Another outcome, however, of the Corporation’s decision, according to the majority of the court, was also foreseeable: “ [T]he creation of ‘a world famous scientific station’ with ‘one of the greatest libraries and herbaria in the world.’ ”
*156The majority say that “ [t]he prestige was not, in our view, a capital asset, which, once accrued, could not be expended.” Perhaps that is so. We maintain, however, that it could not be expended to the detriment of the Arboretum. While prestige is an intangible asset it can hardly be disputed that its value to an educational and scientific institution is inestimable. Harvard itself is a classic example. The prestige achieved by the Arboretum arose out of the application of the trust funds. Whether “prestige” is a “capital asset” or not it had a real value in every sense. To transfer that value to the university, without any quid pro quo, cannot be justified.
Regardless of how altruistic the Corporation’s motives may have been, the unalterable fact is that the Arboretum has served as a “tool”2 for the promotion of “the science of botany at Harvard from an overall standpoint,” rather than a separate, distinct and identifiable entity, associated with Harvard and not a department thereof.
As we bring this dissent to a close we are mindful that the Corporation’s opposition to seeking a judicial decision rested not only on its belief that its position was legally sound, but also because it was “conscious of the fact that there were claims on a believed moral level which a legal decision would not dispose of.” We have presented our views on the legal issues. The moral issues remain. They must be left for the ethical judgment of others.
We think there was a breach of trust. “ [N]o length of time of diversion from the plain provisions of a charitable foundation will prevent its restoration to its true purpose.” Trustees of Andover Seminary v. Visitors, 253 Mass. 256, 298. Accordingly, we would order the Corporation to return to the Arboretum at Jamaica Plain those books and specimens which are not duplicated there and to refrain from using the trust funds for the maintenance of the Harvard University Herbarium in Cambridge.
We cannot fail to observe that in 1892 the library and herbarium were removed from temporary housing in Brookline to Jamaica Plain. The library and herbarium remained there for over sixty years.
See footnote 8 of the majority opinion.