Brooks v. City of Belfast

• Decision Date: 29 May 1897
• Citation: 90 Me. 318,38 A. 222
• Parties: BROOKS et al. v. CITY OF BELFAST et al.
• Court: Maine Supreme Court

38 A. 222

90 Me. 318

BROOKS et al.

v. CITY OF BELFAST et al.

Supreme Judicial Court of Maine.

May 29, 1897.

(Official.)

Report from supreme judicial court, Waldo county.

Bill in equity by John G. Brooks and others, executors of the will of Mary E. S. Southworth, deceased, against the city of Belfast and others, to obtain a construction of the residuary clause of the will. The case was heard upon bill, answer, and the additional fact that at the date of the will there were 16 school districts in the city of Belfast, inclusive of the "Central District," so called, named in the will as one of the objects of testatrix's bounty. Submitted on report.

W. P. Thompson, for plaintiffs.

N. Wardwell, City Sol., for defendant city of Belfast.

WHITEHOUSE, J. In this bill in equity the plaintiffs seek to obtain a judicial construction of the residuary clause of the last will and testament of Mary E. Simpson Southworth. The will is as follows:

"I, Mary Emeline Simpson, of Belfast, in the county of Waldo, and state of Maine, make this, my last will and testament.

"I give and bequeath to Dana B. Southworth, of said Belfast, the sum of thirty thousand dollars.

"I give and bequeath to Elizabeth Chapman, daughter of Mrs. Mary E. Merrill, of Toledo, Ohio, the sum of one thousand dollars.

"I give and bequeath to the First Parish (Unitarian) Society of said Belfast the sum of three thousand dollars.

"I give and bequeath to the city of Belfast, in trust forever, the sum of five hundred dollars for the purpose following: The income and accrued interest thereon to be used to keep the Josiah Simpson lot in Grove Cemetery in good order and condition by having the grass properly cut in the summer, the monument and stones kept upright and free from moss, and by doing such other things as are necessary to be done for accomplishing the purpose specified above.

"All the rest, residue, and remainder of my estate and of which I may die possessed I give, bequeath, and devise to the Central school district of said Belfast, for the purpose following:

"1st. The amount of this bequest shall be invested, or put at interest, so that an income may accrue and so kept until a sufficient sum shall be accumulated by increase from interest or profit, by subsequent bequests or gifts, or in some other way, to provide for the erection of a school house within said district suitable to accommodate at least four of the schools.

"2d. When the sum becomes sufficient for the above purpose, the money shall be used for the building such a school house as is indicated above.

"I hereby appoint Dana B. Southworth and John G. Brooks executors of this, my last will and testament."

The testatrix executed this will on the 17th of December, 1889, subsequently married Dana B. Southworth, and died on the 21st day of July, 1895. At the date of the will there were 16 school districts in the city of Belfast, including Central school district, named in the will, which comprised the city proper. Each of these districts was then a body corporate, competent to take and hold property by bequest or devise. But before the decease of the testatrix, by section 1 of chapter 216 of the Public Laws of 1893, the school districts in all towns in this state were abolished, and on the 1st day of March, 1894, when the act took effect, Central school district in Belfast ceased to have a corporate existence for the purpose of 'taking property by bequest or devise.

It is provided in section 2 of the same act that: "Immediately after this act shall become a law, towns shall take possession of all schoolhouses, lands, apparatus and other property owned and used by the school districts hereby abolished, which districts may lawfully sell and convey. The property so taken shall forthwith be appraised by the assessors of said towns, and at the first annual assessment thereafter a tax shall be levied upon the whole town, or such part thereof as is included within the districts abolished, equal to the whole of said appraisal, and there shall be remitted to the tax payers of each said districts the said appraisal value of its property so taken." Section 4 declares that: "The corporate powers of every school district shall continue under this act so far as the same may be necessary for the meeting of its liabilities and the enforcing of its rights; and any property held in trust by any school district, shall continue to be held and used according to the terms thereof."

The heirs of Mrs. Southworth claim that the bequest to Central school district, in the residuary clause of the will, was an absolute gift to that body corporate; and, inasmuch as the district was abolished and ceased to have a corporate existence before the death of the testatrix, the legacy must be held to have lapsed, and the residue of her estate should now be distributed among her heirs as intestate property. On the other hand, it is contended that the clause of the will in question evinces a charitable purpose on the part of the testatrix to aid in the erection of a school house on the territory comprised within the limits of Central district, that the district was only named as the instrument—a trustee— for the carrying out that intention, and that the city of Belfast, which, under the act of 1893, succeeded to the rights and obligations of the district respecting the erection of school houses and the maintenance of schools, should now become the beneficial recipient of the bequest.

1. Whether the bequest be denominated an "absolute gift" or a gift in trust for a definite purpose is of little or no practical importance with respect to the decision of the question here presented. It has been seen, however, from the language of the residuary clause, that the bequest to the Central district was not an unqualified and unrestricted gift of a fund to be used for any and all purposes to which the district might elect to appropriate it. The purposes of the gift were clearly specified by the terms of the will, and were not co-extensive with the general purposes and full authority of the district. The fund could in no event be made available for the payment of teachers' salaries or other ordinary expenses involved in the support of the public schools in the district. It was limited to the specific purpose of "erecting a school house within said district, suitable to accommodate at least four of the schools." And it would seem to be entirely appropriate to say that it was left to the district in trust for that purpose. The school district was at once the trustee and the beneficiary.

Thereupon it is contended in behalf of the heirs that it is manifest from the terms of the trust directing an accumulation of the fund for an uncertain and indefinite time, that the bequest might not become available for the purpose designed within a life or lives in being and 21 years, and hence would become obnoxious to the rule against perpetuities.

2. The general rule against perpetuities is undoubtedly "imperative, and perfectly well established. * * * The limitation, in order to be valid, must be so made that the estate, or whatever is devised or bequeathed, not only may, but must necessarily, vest within the prescribed period. If by any possibility the vesting may be postponed beyond this period, the limitation over will be void." Fosdick v. Fosdick, 6 Allen, 41; Brattle Square Church v. Grant, 3 Gray, 142. But the rule against perpetuities concerns itself only with the vesting or the commencements of estates, and not at all with their termination. It makes no difference when such an estate terminates. Pulitzer v. Livingston, 89 Me. 359, 36 Atl. 635.

It is suggested in reply, however, that trusts for public charitable purposes are upheld under circumstances under which private trusts would fail (Russell v. Allen, 107 U. S. 163, 2 Sup. Ct, 327); and the statement is often found in the books that the law against per petuities does not apply to public charities But the statement is misleading. It is undoubtedly true that the principle of public policy, which declares that estates shall not b; indefinitely inalienable in the hands of individuals, is held inapplicable to public charities. Odell v. Odell, 10 Allen, 1. But it must be remembered that the rule against perpetuities in its proper legal sense, has relation only to the time of the vesting of an estate, and in no way affects its continuance after it is once vested. The perpetual duration of a charitable trust, after it has become vested, is one of its distinctive characteristics. It is the possibility that the estate left in trust for a charitable purpose may not vest or begin within the limits of a life or lives in being and 21 years that offends against the rule of "perpetuity" or "remoteness." In this respect a gift in trust for charity is "subject to the same rules and principles as any other estate depending for its coming into existence upon a condition precedent. If the condition * * * is so remote and indefinite as to transgress the limits of time prescribed by the rules of law against perpetuities, the gift fails ab initio." Chamberlayne v. Brockett, 8 Ch. App. 206. It is well settled, for instance, that if a gift is made in the first place to an individual and then over to a charity upon a contingency which may not happen within the prescribed limit, the gift to the charity is void. Merritt v. Bucknam, 77 Me. 253; Perry, Trusts, § 736, and cases cited.

But in the case at bar it is conceded by the learned counsel for the heirs that, if Central school district bad been in existence as a corporate body at the death of the testatrix, the legacy would have vested in the district for a charitable purpose, and thus been removed from the operation of the rule against perpetuities, and sustained as a valid gift, even if the directions in the bequest for an indefinite accumulation could not be allowed. Odell v. Odell, supra.

In the case cited, the will contained the following...