Borchers v. Taylor

• Decision Date: 02 April 1929
• Citation: 145 A. 666
• Parties: BORCHERS et al. v. TAYLOR et al.
• Court: New Hampshire Supreme Court

145 A. 666

BORCHERS et al.

v. TAYLOR et al.

Supreme Court of New Hampshire. Rockingham.

April 2, 1929.

Transferred from Superior Court, Rockingham County; Burque, Judge.

Bill in equity by Charles H. Borchers and others, trustees, against Elbridge B. Taylor and others, in which there was a trial by the court. On exceptions. Decree for plaintiffs.

Bill in equity for directions by the trustees of trust funds of the town of Salem. Trial by the court. Transferred by Burque, J., upon the plaintiffs' exceptions to the admission of evidence and the exceptions of both sides to alternative findings of the court.

This case turns upon the construction of the seventh clause of the will of Enoch Taylor, late of Salem, who died in 1881. By his will, which was dated November 16, 1880, he made certain specific bequests, and devised the income from the residue of his property to his two daughters and the survivor of them for life, with the remainder to their surviving children, if any. The will then continued as follows:

"6. If my daughters die without any children, I give to Elbridge B. Taylor and his heirs the sum of one thousand dollars.

"7. If my daughters die without leaving issue, I give to the Town of Salem, New Hampshire all the rest, and residue of my property to be holden as a fund, the income to be spent for a high school the tuition to be free to all scholars of the town over twelve years of age. The fund to be managed by the selectmen of the town and to be held by the Town Treasurer. This school is to be kept within one hundred rods of the present Town House."

The court finds that this will was drawn by "a layman and local justice of the peace and a grocer by trade and occupation." Both daughters having died without issue, the town voted, upon March 9, 1920, "to accept the trust fund willed to the town by the late Enoch Taylor," and thereafter the trustees under the will turned over to the trustees of trust funds of the town the residue of the estate, amounting to about $10,000. Subsequently, in 1924, the town accepted from one Levi Woodbury another gift of $50,000 for the erection of a high school upon a lot where it had already commenced the erection of a grammar school, and as a result, the present high school building, which is known as the Woodbury school, was erected and completed in 1925. It is located 283.5 rods from the town house referred to in the will, and approximately halfway between the two largest villages in the town, Salem Center and Salem Depot. Tuition in this school is free to all scholars residing in the town of Salem. The prayer of the plaintiffs is: "That they may be empowered to pay over the income of said trust fund to the treasurer of the Salem School District for the maintenance of the high school where it is now located."

Subject to exception by the plaintiffs, Thomas M. Taylor, a witness called by the defendants, was permitted to testify that Enoch Taylor was "a very set man" and "very strong in convictions"; that when the will was drawn he at first "wanted to put in forty rods," but finally agreed with the scrivener "to increase it to one hundred rods from the present Town House"; that he then said, "That is near the center of the town and will accommodate the whole town"; and that when his attention was called to the fact that the village of Salem Depot was growing pretty fast, he replied, "Well, if they want a separate school let them build it." Ellen L. Taylor, another witness called by the defendants, also testified, subject to exception, that the deceased was "a very set man," and that upon a prior occasion when a new school was built in district No. 3, the testator "was very much opposed to having it located where it now is. He wanted it on the old school house site where it was before." The alternative findings of the court were as follows:

"If the Thomas M. Taylor and Ellen L. Taylor evidence is competent and material and properly to be considered in the interpretation of the will, the Court finds that it was a material condition of the proposed gift by Enoch Taylor that the proposed high school should be placed within one hundred rods of the Town House, and that the gift consequently cannot be used for the upkeep and maintenance of the Woodbury High School, for the reason that such use would be defeating the intention of the testator. To this finding the plaintiffs except.

"If on the other hand the said Thomas M. Taylor and Ellen L. Taylor evidence is incompetent and immaterial, the Court then finds that the controlling and principal purpose of the testator was to create a fund to maintain a high school and locate the same at a point in the Town of Salem as near as practical to the center of population; that said fund is a charitable one created by the testator for the benefit of high school pupils in general in said Town, and that it can be more effectually administered by its use to help maintain the Woodbury High School, and can and should be so applied by the Trustees. To this finding the defendants except."

At the time when the bill was filed, the defendants named therein were the surviving next of kin of Enoch Taylor.

Other facts appear in the opinion.

Chester T. Woodbury, of Salem, and William H. Sleeper, of Exeter, for plaintiffs.

Everett W. Crawford, of Boston, Mass., and George R. Scammon, of Exeter, for defendant Taylor.

Rowell, Clay & Eastham, of Lawrence, Mass., and Arthur O. Fuller and Perley Gardner, both of Exeter, for Taylor's estate and Phillips' guardian.

BRANCH, J. The defendants contend that if the evidence which went in subject to exception is to be considered in the interpretation of Enoch Taylor's will, we are bound by the first of the alternative findings of the trial court set forth above. The argument is that: "The findings of fact, being based upon evidence which would have at least warranted these findings, are not susceptible of review by the Supreme Court." The only authority cited in support of this position is Heywood v. Stiles, 124 Mass. 275, and the argument indicates a misconception of the character of the question before us. While it has frequently been pointed out that the interpretation of any grant, statutory, contractual, or testamentary, consists in the ascertainment of intention, and that the question of intention is one of fact to be determined upon all the competent evidence available (Cram v. Cram, 63 N. H. 31, 33; Burke v. Concord R. R., 61 N. H. 160, 233; Brown v. Bartlett, 58 N. H. 511), still the question of interpretation has always been recognized as one peculiarly within the province of the court as distinguished from the jury; hence it has usually been called and has uniformly been treated as a question of law subject to review by appellate courts. "In one sense, the intention, * * * is a matter of law; it is a question for the court. In another sense, it is a matter of fact; it is to be determined by the natural weight of legal proof." Sanbom v. Sanborn, 62 N. H. 631, 643; State v. Hayes, 61 N. H. 264, 330. "Whatever name is given to the question involved—whether it is called a question of fact determinable by the court upon all the competent evidence, or a question of law determinable by the court, but like a question of fact—the essential proposition concerning it remains. It is a question for the court." State v. Manchester & L. R. R., 70 N. H. 421, 434, 48 A. 1103, 1106. The entire question of interpretation is brought here for determination upon the transfer of the case from the superior court, and it follows, of necessity, that all subsidiary findings of the trial court in regard to the intention of the testator are also open to review. "The interpretation of the deed is a question of law, in that it is reviewable by this court, so that the finding of fact of the trial court as to the intention of the parties may be disregarded." Emery v. Dana, 76 N. H. 486, 84 A. 977; Smart v. Huckins, 82 N. H. 342, 344, 134 A. 520. Hence whatever evidence was properly introduced at the trial, in connection with the construction of the will, is before us now for consideration. Smart v. Huckins, supra.

The portion of the will now in question reads as follows: "7. If my daughters die without leaving issue, I give to the Town of Salem all the rest, and residue of my property to be holden as a fund, the income to be spent for a high school the tuition to be free to all scholars of the town over twelve years of age. The fund to be managed by the selectmen of the town and to be held by the Town Treasurer. This school is to be kept within one hundred rods of the present Town House." The town, for adequate reasons, erected a high school at a point 283.5 rods from the town house mentioned in the will. Tuition in this school is free to all children residing in the town of Salem, and the trustees now seek authority from the court to use the income of the above fund for the purpose of maintaining this school. The parties agreed at the trial that it is not practical to have more than one high school in the town of Salem, and the court properly found that unless the trustees are allowed to expend the income of the fund to maintain the high school where it is now located, the charity will fail. The contention of the defendants is that it was a material conditon of the gift that the proposed high school should be placed within 100 rods of the town house; that the town has committed a breach of this condition by building a high school more than 100 rods from the town house; that the trust, therefore, fails, and the trust fund becomes intestate property which the heirs of Enoch Taylor are entitled to take.

The defendants seem to...