Allen v. Trustees of Nasson Inst.

• Decision Date: 27 September 1910
• Citation: 77 A. 638,107 Me. 120
• Parties: ALLEN et al. v. TRUSTEES OF NASSON INSTITUTE.
• Court: Maine Supreme Court

77 A. 638

107 Me. 120

ALLEN et al.

v. TRUSTEES OF NASSON INSTITUTE.

Supreme Judicial Court of Maine.

Sept. 27, 1910.

Report from Supreme Judicial Court, York County.

Bill by Harmon G. Allen and others against the trustees of Nasson Institute. On report. Decree directed.

Argued before EMERY, C. J., and SAVAGE, PEABODY, SPEAR, CORNISH, and KING, JJ.

Foster & Foster and George A. Goodwin, for plaintiffs.

Howard Frost, for defendant.

CORNISH, J. This is a bill in equity brought to obtain a judicial construction of the residuary clause of the will of George Nasson, late of Sanford, who died on September 17, 1882. This clause is as follows:

"Seventeenth: I give, devise and bequeath unto Asa Low, Esq., Irving A. Butler and Charles H. Frost and to their successors, all the rest and remainder of my real estate in trust for the following purposes, to wit: They shall hold, lease and manage said real estate according to the best of their discretion, during the lives of my two sisters Julia and Joanna, and each year after deducting the expenses of said property and trust, shall pay over to my said sisters in equal shares during their joint lives one half of the net income of said real estate, and after the death of either of them shall pay said half to the survivor. The other half of the net income of said real estate shall be safely and carefully invested and the same and the interest and income thereof shall be held until the death of both of my sisters. Then all said real estate except a suitable lot for the building and purposes hereinafter mentioned and situate in my field back of Ridley lot and entrance on Main Street in Springvale, Maine, shall be sold and the fund derived from such sale or sales together with the previous income from said real estate and interest, thereon, shall be used to establish and maintain an Institute for the education of young ladies to be known as the Nasson Institute, which shall be carried on to promote the moral, intellectual and physical instruction and education of young women. My said trustees for the time being are to have full power and authority to prescribe such fees, terms and rules of admission to said Institute as they may think proper, it being however my wish and direction that female teachers only be employed in said Institute. One half of the fund aforesaid may be used in erecting a suitable building for said Institute and laying out the grounds therefor and the remaining half shall be safely Invested and the income thereof only used toward the expenses of said Institute. I advise my trustees to keep the funds invested in bonds of the United States or some Northern State, and to make no other investment without the consent of the Hon. Judge of Probate for the time being. If either of the trustees named shall decline to serve or whenever either of said Trustees shall move away from the State or shall resign or die, I wish the Hon. Judge of Probate to appoint some suitable person to fill such vacancy."

The will was dated March 24, 1881, was admitted to probate November 7, 1882, and other trustees have succeeded to those named in the will. Both the sisters Julia and Joanna have long since deceased, and the amount of the trust fund is now about $32,000, $12,000 of which consists of real estate and $20,000 of personal property. The paragraph in question is neither indefinite nor ambiguous. The testator's intention could hardly have been expressed with greater precision or clearness. The purpose of this bill, therefore, is not so much to obtain judicial construction of a doubtful bequest as to obtain the authority of the court to use the fund in assisting the town of Sanford to maintain a high school in that part of the town known as Springvale.

It is apparent that the testator had no such intention when he made his will. He was himself a resident of Springvale, and presumably acquainted with the school system of the town and its needs. That system is supported by taxation, and evidently he did not desire to make donations to the town schools which would afford relief to the taxpayers of the town, but would not necessarily tend to the improvement of the schools themselves. His sole purpose was to establish a different type of institution from any existing in the town or perhaps in the state, "an institute for the education of young ladies to be known as the Nasson Institute, which shall be carried on to promote the moral, intellectual and physical instruction and education of young women." The institution was to be of a higher type than a high school, with a wider patronage, designed for pupils of maturer age, confined to the female sex, and preferably with only female teachers employed. It was to bear his name. It was in his mind to become in time what many similar institutions in other states have become—a prosperous young ladies seminary.

This being the testator's intention, clearly and unequivocally expressed, we fail to see on what ground this court can justify itself in diverting the trust property to a purpose so radically different as the assistance of a town high school. It is the province of the court to construe a will not to construct one.

We are urged, however, to do this first on the ground that, when the will was made, coeducation was an experiment, while now it is an established fact, and it is argued that, had the testator realized this, he would not have even advised that an institution be established for the exclusive education of young ladies. The contention is unsupported by the facts. In 1881, when the will was made, all the academies and three of the colleges in the state were open to women and had been for many years. No educational doors then closed to women have been opened since. Conditions have not changed since the will was made, and, even if they had, such change, while it might tend to prove the unwisdom of the bequest in the light of subsequent...