Attorney General v. Briggs

• Decision Date: 27 November 1895
• Parties: ATTORNEY GENERAL ex rel. TOWN OF FAIRHAVEN v. BRIGGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 561

42 N.E. 118

ATTORNEY GENERAL ex rel. TOWN OF FAIRHAVEN v. BRIGGS et al.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1895

COUNSEL

W. Clifford and A.B. Collins, for petitioner.

E.L Barney, G.F. Tucker, and A.E. Perry, for respondents.

OPINION

KNOWLTON J.

The will of Abner Pease contains a provision as follows "After the decease of my wife, or when she ceases to be my widow, I give to my said executors during their lives, or the life of the survivor, and after their decease, or should they decline the trust, to the selectmen of Fairhaven, in trust, and to their successors in that office, as a fund forever, five thousand dollars, the income of which to be appropriated for the purpose of supporting a school in school district number nineteen in said Fairhaven, called the 'Peace District.' This sum is in addition to a lot of land and schoolhouse thereon which I have given said district." It is too clear for discussion that this creates a good public charitable bequest, to the administration of which this court will give all necessary aid. Sears v. Chapman, 158 Mass. 400, 33 N.E. 604; Society v. Harriman, 125 Mass. 321; Russell v. Allen, 107 U.S. 163, 2 Sup.Ct. 327.

The schoolhouse referred to, and the lot of land on which it stands, have been recovered from the district by the heirs at law of Abner Pease, under a writ of entry brought on account of a breach in a condition in the deed of gift, which required that the schoolhouse should be kept and maintained by the inhabitants of the district for the use of a school. It is found by the master, for satisfactory reasons, which are stated in his report, that it is impracticable to use the fund in question for the maintenance of a school in this district, and thus a case is presented in which the purpose of a testator cannot be accomplished in the manner prescribed. The question arises whether the charity must altogether fail, or whether it is a case for the application of the doctrine of cy-pres, whereby the general purpose of the testator may be carried out in a way differing from that which he contemplated. He meant to have the money used in the support of a school in school district No. 19, for the benefit of that part of the public who might from time to time reside within the district, or so near it as to use the school established there. He had an interest in the education there. He had an interest in the education of children, and particularly in the education of children residing in that district. But we should undoubtedly do him injustice if we should interpret his purpose so narrowly as to make the continuance of the charity depend upon the maintenance of a school within the limits of the district, the entire area of which was only about 25 acres. When he made his will he thought the continuance of a school there was the best way of promoting education in that vicinity. The promotion of education in that neighborhood was his object, and the charity is of such a kind that his general purpose must be carried out as nearly as possible in accordance with his design, even though the result reached differs in minor particulars from that intended. Weeks v. Hobson, 150 Mass. 377, 23 N.E. 215; Sears v. Chapman, 158 Mass. 400, 33 N.E. 604; Jackson v. Phillips, 14 Allen, 539; Attorney General v. Glyn, 12 Sim. 84; Biscoe v. Jackson, 35 Ch.Div. 460; Birchard v. Scott, 39 Conn. 63.

It is contended in behalf of the residuary legatees that inasmuch as the bequest cannot be used exactly as...