43 Vt. 556 (Vt. 1871), Village of Brattleboro v. Mead
| Date | Invalid date |
| Citation | 43 Vt. 556 |
| Docket Number | . |
| Parties | [a1]THE VILLAGE OF BRATTLEBORO AND OTHERS v. LARKIN G. MEAD, FREDERICK Z. DICKINSON, AND MARY JANE DICKINSON. |
| Court | Vermont Supreme Court |
Page 556
Will. Limitations. Charity. Parties .
Under a provision in a will in respect to the property in dispute, as follows: " I give, devise and bequeath the same to my son Frederick Zelotes Dickinson, to have and to hold the same to him the said Frederick Zelotes, his lineal heirs and assignees forever; provided, however, if the said Frederick Zelotes shall die without lineal heirs, or upon the failure of his and my lineal heirs," that it be appropriated for the establishment and support of an industrial school in the village of Brattleboro, & c.; it was held that the limitation over for the establishment of the school is too remote, and is void both as to the personal property and real estate.
Whether the state's attorney would have been a proper party complainant or not, the orators, being the said village of Brattleboro and two parents of vagrant children in that vicinity, sufficiently represented the charity to warrant a decision of the case on the merits.
BILL IN CHANCERY. The bill alleges that the orators are the Village of Brattleboro, a corporation duly established under the laws of the state of Vermont, and situated in the town of Brattleboro, in Windham county, and James Herney and John Flood, parents of poor and vagrant children of said village of Brattleboro and vicinity, who bring this bill in behalf of themselves and all others interested in the establishment and support of an industrial school in the east village of said Brattleboro, as hereinafter particularly mentioned; that Zelotes Dickinson, late of said Brattleboro, but now deceased, in his life-time made and duly executed his last will and testament, in and by which, after disposing of a certain share of his property, real and personal, the rest and residue of the same was bequeathed by the testator in the words and figures following, viz:
" As to all the rest and residue of my property, real and personal, wheresoever and howsoever situated, I give, devise, and bequeath the same to my son Frederick Zelotes Dickinson, to have and to hold the same to him the said Frederick Zelotes, his lineal heirs and assignees, forever; provided, however, if the said Frederick Zelotes shall die without lineal heirs, or upon the failure of
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his and my lineal heirs, it is my will that all the above property herein devised and bequeathed to said Frederick Zelotes shall be appropriated for the establishment and support of an industrial school in the east village of said Brattleboro, to be under the care and control of three trustees to be appointed by the court of chancery for the county of Windham; and said trustees shall have power to appropriate a sum not exceeding four thousand dollars for the purchase of a farm and erecting the necessary buildings, in the vicinity of said village, for the purpose of said school; but after the expenditure of said four thousand dollars, they shall be at liberty to expend the annual interest of said fund for the purpose of said industrial school; and said trustees shall from time to time receive into said school such poor and vagrant children of the village of Brattleboro and vicinity as they may deem proper, and clothe, board and educate them and fit them to be useful members of society. But the principal sum, after said expenditures of said four thousand dollars for the establishment aferesaid, shall be forever kept entire and unexpended, and the interest only used for said purpose; provided, however, it is my will that in case of the failure of my lineal heirs during the life-time of my said wife, she shall be entitled to the use of one half of the amount that is set apart for said industrial school during her natural life. And in order to prevent the exercise of sectarian influence in the management of said school, it is my desire that the trustees above provided for be appointed, one from the Unitarian society, one from the Congregational society, and one from the Episcopal society, in said village, and that said three societies be forever represented in said board of trustees."
In the month of October, 1854, the said testator deceased, leaving surviving him his wife, Mary Jane Dickinson, and the said Frederick Zelotes, his lineal heir, then under twenty-one years of age, and on the 29th day of November, 1854, the will aforesaid was duly probated, and the said Mary Jane was duly appointed sole executrix of the same, and accepted said appointment, and entered upon the duties thereof. Larkin G. Mead, of said Brattleboro, was duly appointed guardian of said Frederick, which appointment the said Mead duly accepted. The provision made in said will for the said Mary Jane, in lieu of dower, was waived by her, and she took dower in the real estate of the testator, and an assignment of her portion of the personal estate. Said Mead, guardian of Frederick, has now in his hands personal
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property amounting to about the sum of six thousand dollars, and real estate in his charge as guardian of about ten thousand dollars, situated in Brattleboro, which was conditionally bequeathed by the testator to Frederick, and which, by the terms of said will, would become the absolute property of Frederick's lineal heirs, at his, Frederick's decease, provided such heirs survived him. Frederick has now arrived at the age of twenty-one years, and claims that under and by virtue of said will he is entitled to said personal property and said real estate, with the right of disposing of the same, and has demanded of Mead, guardian as aforesaid, said property, and has commenced a suit against Mead to recover said personal property, which is now pending in Windham county court.
PRAYER:
That the said Mead, or some other suitable person, be appointed to receive and manage said property under the order of this court, accounting for and paying out the proceeds thereof as this court shall direct & c., and that the principal of said property, so conditionally bequeathed to the said Frederick, be kept and preserved, so that upon the happening of the contingency which shall justify its appropriation for the establishment and support of an industrial school as hereinbefore set forth, it shall be paid over to trustees for that purpose to be appointed by this court; and that this court will appoint three suitable persons to officiate as trustees, under the aforesaid will, of said industrial school; and that, in the mean time, the said Mead be enjoined from parting with any property now in his hands or subject to his control, which comes to his hands or is subject to his control by reason of his being guardian of the said Frederick, until the further order of this court; and that the said Frederick, his servants, agents and attorneys, be enjoined from prosecuting his present or any other suit to recover any portion of said property from said Mead, and from making any transfer of his title to any of said real or personal estate, until the further order of this court.
Frederick Z. and Mary J. Dickinson demurred to the bill; and Larkin G. Mead filed an answer submitting himself to such order as the court should make as to the disposal of the funds in his hands, and took no further part in the litigation.
At the September term, 1867, BARRETT, Chancellor, it was adjudged, pro forma , that said will did not give to and vest in the
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said Frederick Z. the ownership and title of the property named in that part of said will above recited, but entitled him to have the income thereof.
It was therefore ordered that said Mead hold said property as trustee under this court, and manage and invest the same, & c., and that he pay over to said Frederick Z. such income as said Mead shall be chargeable with on an account to be taken, & c., said Mead to give a bond, & c., and that said suit remain open in this court for such orders as from time to time may behoove, and ultimately for a final order and decree for carrying into effect the provisions of said will, by the appointment of tustees and putting said property into their hands for the purposes specified in said will. And that said Frederick Z. be perpetually enjoined, & c., according to the prayer of the bill; and no costs allowed to either party unless on final hearing and decree it be made chargeable on said property.
From this decree the defendants appealed.
I. The limitation over for the establishment of the school is too remote and void, and no one is entitled to claim anything under it. The testator could, by will, limit and control the disposition of his property during a life or lives in being, and twenty-one years and a fraction longer, and he could do no more; and all that he undertook to do more is void. 2 Black. Com., 174; 4 Kent 266; 2 Wash. R. P., 359; Nightingale v. Burrill , 15 Pick. 111; 2 Redfield on Wills, 845. In providing for this school he undertook to do more, both as to his real and his personal property. The two kinds of property stand on different footings in this respect, on account of our statute relating to entailments. A limitation over of real estate, after an estate which, but for the statute, would be an estate tail, is good, because the statute makes the estate a fee simple in the second taker in tail, if there be one, so that the limitation would either take effect or entirely fail at the death of the first taker, which would be within the legal limit; but a limitation over of chattels after an estate tail, or an indefinite failure of issue, which is the same thing, is
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void because the limitation might neither take effect or entirely fail for centuries, so that the property might be tied up much beyond the legal limit, to await the happening of the...
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