City of Bangor v. Merrill Trust Co.

• Decision Date: 24 August 1953
• Citation: 149 Me 160,99 A.2d 298
• Parties: CITY OF BANGOR v. MERRILL TRUST CO. et al.
• Court: Maine Supreme Court

Page 298

99 A.2d 298

149 Me. 160

CITY OF BANGOR v. MERRILL TRUST CO. et al.

Supreme Judicial Court of Maine.

Aug. 24, 1953.

Abraham Stern, Bangor, for plaintiff.

Keith & Keith, James M. Gillin, Michael Pilot, Benjamin W. Blanchard, Bangor, David B. Soule, Deputy Atty. Gen., for defendants.

Before MERRILL, C. J., and THAXTER, FELLOWS, MURRAY, WILLIAMSON and TIRRELL, JJ.

WILLIAMSON, Justice.

This is a bill in equity brought by the City of Bangor for the construction of the will and codicils of Joseph P. Bass and for equitable relief dependent upon such construction. The case was heard on bill, answers, replications and proof, and is before us on report to the Law Court, 'which Court shall, upon Bill, Answers, Replication and so much of the evidence as is legally admissible, render such final decision as law and equity require.'

The plaintiff seeks:

(1) That we determine whether or not the purposes of the Bangor Recreation Center set forth in P. & S.L.1951, Ch. 90, § 1, fall within the meaning of the phrase 'Public Park purposes including, if the City sees fit, semi-public purposes such as circuses, fairs, the City charging rental for such uses at its option', found in Article 12 of the will;

(2) that if we answer (1) in the affirmative, we give instructions in the manner and extent to which the City of Bangor may go in renting, leasing or conveying to the Bangor Recreation Center such of the land area of Bass Park as may be reasonably required for its purposes; and

(3) that a successor trustee be appointed under the will to execute and deliver to the City of Bangor the deed called for under Article 12 of the will.

Joseph P. Bass, late of Bangor, died in March 1919, and his will with two codicils was approved and allowed in the following month. The provisions of the will which require construction are stated below.

In Article 11 the testator places certain property in trust, and in the final paragraph states:

'All of said income not needed to meet the payments called for in the preceding paragraphs of this Article of my will, said Trustee shall allow to accumulate until January 1, 1933, and if the City of Bangor shall accept a conveyance of the premises known as Maplewood Park and upon the conditions hereinafter specified in this will, then in that event, my said Trustee shall pay all of my said accumulated income to said City and thereafter shall, each year, pay to said city all said income not needed to make the other payments called for by the preceding paragraphs of this Article of my will, said income so to be paid to said City to be by it applied as hereinafter specified in this will.'

The testator in Article 12 leaves all of the remainder of his property in trust for certain individual beneficiaries with the exception of Maplewood Park, so-called, and states in the last paragraph the following:

'Provided the City of Bangor shall on or before six months from January 1, 1933, vote to accept a deed of said Park and shall vote that said Park shall be forever used only for and devoted to Public Park purposes including, if the City shall see fit, semi-public purposes such as circuses, fairs, the City charging rental for such uses at its option; and the City shall vote that said Park shall be forever known as 'Bass Park'; and the City shall vote to apply all the money which it may receive under the provisions of the trust created under Article 11 of this will only for improving, beautifying and adding to said 'Bass Park' from time to time and at any time; thereupon said Trustee shall convey to said City said Park, if not already conveyed, to have and to hold to said City so long as said Park shall be used for and devoted to one or some or all of said purposes and those purposes only, and so long as said park shall be called Bass Park, and so long as said moneys to be received by said City as aforesaid shall be applied only for the aforesaid purposes or some or one of them and no longer.'

The only other provision directly relating to the City of Bangor is set forth in Article 20 of the second codicil to the will, reading:

'In regard to the provision for the City of Bangor, I further provide that my trustee shall deliver to said City of Bangor to be held in trust forever, unless forfeited, a deed of the real estate which I may own at the time of my decease, situated between Buck and Dutton Streets, and the Park and Main Street, said property to be held by said City of Bangor for the benefit of the Eastern Maine Musical Association subject to the control of said association so long as said association shall exist for the purpose of conducting a musical festival or other purposes incidental to promoting the musical or other public interests of said city except that a right of way over said property shall always be available to the park property situated westerly thereof. If said Eastern Maine Musical Association shall cease to exist or shall fail to use said property for the purposes hereinbefore mentioned, said property shall revert back to the City of Bangor to be added to the Bass Park so-called created in my will and subject to the conditions and provisions in regard thereto contained in said will.'

The City of Bangor on three separate occasions has voted to accept the provisions of the will and codicils. Albert E. Bass, the trustee named to convey property to the city died in 1930, and no successor trustee has been named.

The city has never received a deed to Maplewood Park, so-called, or a deed to the adjoining property described in Article 20 of the second codicil. The Eastern Maine Musical Association ceased to exist in 1943 and the property known as the Bangor Auditorium has been added to and used in connection with Bass Park.

The Bangor Recreation Center was created by P. & S.Laws 1951, Ch. 90, which became effective upon acceptance by the voters of Bangor in December 1951. Section 1 reads:

'Sec. 1. 'Bangor Recreation Center' created. The inhabitants of and the territory within the city of Bangor, in the county of Penobscot shall be and hereby are constituted a body politic and corporate under the name of 'Bangor Recreation Center' for the purpose of acquiring property within said city of Bangor for recreational and municipal purposes, erecting, enlarging, repairing, equipping and maintaining on said property a building and related athletic, recreational and municipal facilities. Said district is hereby authorized to acquire land or buildings for said purposes by purchase, gift or lease and construct thereon, building or buildings for said purposes on land acquired and above. Property of said district shall be tax exempt.'

The Trustees of the Bangor Recreation Center have indicated to the City of Bangor that Bass Park is their first choice for the location and erection of a recreation building, if a site in that location can legally be made available. Bass Park, including the five acres formerly occupied by the Eastern Maine Musical Association, is approximately forty-one acres in extent. The proposed building of the Recreation Center, with adequate parking facilities, would occupy about fifteen acres within what was formerly known as Maplewood Park.

At the present time there are outstanding leases of the Bass Park Fairgrounds, so-called, from the Trustees of Bass Park, who are officers of the city, to Thomas D. Mourkas, in which it appears that for a period ending in 1961 Mourkas has a lease of Bass Park, so-called, 'for a period of three weeks, in each year, the first week for preparation, the second week for the Fair proper, and the third week for cleaning up', and also under amendments to the original lease of May 31, 1951, the right to conduct night racing for a stated rental per night. Under the amendments for night racing the city agrees 'that the fairgrounds will not be rented to any other person for the conduct of night racing during the period of this lease', with a provision that 'if the lessee fails to conduct two weeks of night racing in any year, the city will have the right to rent the fairgrounds for this purpose to any other person in that year.' There are provisions in the lease and amendments calling for improvements by the city to the premises, in particular for the erection of stables to accommodate 250 horses, and for installation of a lighting system on the race track by the lessee.

In 1950 the city leased Bass Park to Maine State Raceways for three weeks in each year through 1963 for purposes of a fair. There is now pending an action in equity between the Don-Al Corporation, as assignee of this lease, plaintiff, and Mourkas, the Bangor Fair, the Trustees of Bass Park and the City of Bangor, defendants, relating to the several leases for fair and racing purposes. We are not here interested in the merits of the litigation.

It is urged by certain of the defendants that the leases to Main State Raceways and Mourkas are, and the use of the park for night racing would be, in violation of the conditions expressed by the testator in his will, and that therefore no trustee should be appointed, as prayed for, to convey the property to the city. We must determine then at the outset: (1) what estate the city acquired or had a right to acquire under the will; and (2) whether or not such estate has been forfeited or lost. Unless the city has an interest in the property and is entitled to a deed, it obviously would be meaningless to consider the problems relating to the Recreation Center.

The record shows that many years ago the city, having accepted the provisions of the will, was entitled to deeds of both Maplewood Park and of the Musical Association property.

For the moment we turn our attention to Maplewood Park. The terms of the proposed deed are stated in Article 12 of the will. The conveyance to the city is 'to have and to hold to said City so long as' the property shall be devoted to the particular purposes, and 'so long as said park shall be called Bass...