City of Keene v. Eastman

• Decision Date: 02 February 1909
• Citation: 75 N.H. 191,72 A. 213
• Parties: CITY OF KEENE v. EASTMAN, Atty. Gen., et al.
• Court: New Hampshire Supreme Court

72 A. 213

75 N.H. 191

CITY OF KEENE

v. EASTMAN, Atty. Gen., et al.

Supreme Court of New Hampshire. Cheshire.

Feb. 2, 1909.

Transferred from Superior Court, Cheshire County; Stone, Judge.

Bill by the City of Keene against Edwin G. Eastman, Attorney General, and others. There was a demurrer to the bill, and the case was transferred without a ruling from the Superior Court. Demurrer sustained, and case discharged.

The material facts alleged in the bill are as follows: In 1874 the Keene Public Library Association, a voluntary association, gave to the city of Keene its library and other personal property, upon the agreement that the city should keep the library in suitable apartments for the use of its inhabitants, and thereupon the city entered upon the performance of its agreement. Afterward, and before 1890, one Symonds gave by will to the city certain property for the following purposes: "To build a library building and purchase land therefor, and to provide books and reading matter, and to take care of the same, and this fund may be used in connection with any city appropriation for the same purpose." This fund has not been devoted to the purposes of the trust, but has been allowed to accumulate. In 1890 one Coolidge conveyed to the city a certain lot of land in Keene, upon the following condition: "Provided, however, and this deed is made upon the express condition, that said premises shall be forever held and used for the purpose of erecting and maintaining a public library building thereon and for utilizing so much thereof as is not used for library purposes for a public park and for no other purpose whatever, said grantee to take and enjoy the rents and income therefrom until such reasonable time as the same shall be devoted to the purposes aforesaid." The city has not devoted this property to the purposes mentioned in the deed. In May, 1898, one Thayer submitted to the city a proposition in writing, in which he offered to convey to the city a lot of land and the buildings thereon in Keene, after having made such changes in the buildings as were necessary for library purposes, reading rooms, an art room, a museum, and a lecture room, provided that the use of the property should be limited to the purposes named, and that the present city library should be established in said buildings. It was also provided that the government of the library should be vested in a board of 12 trustees, 6 of whom should be appointed by Thayer and be empowered to name their successors, and the other 6 to be elected by the city. The city councils by vote accepted this trust. Thayer died before conveying the property, but in December, 1898, his widow and his only heir by deed conveyed it to the city "upon condition that said city of Keene shall forever maintain and keep in repair a city library, with reading rooms, art room, museum, and lecture room * * * upon said premises, and shall use the same for no other purpose whatever, agreeably to the provisions of a certain proposition made to the said city of Keene, signed by Edward C. Thayer, on May 31, 1898." The city took possession of the property. Its public library was moved into the library building thereon, and its control was turned over to a board of 12 trustees. It was believed that some arrangement could be made to use the Coolidge lot for some other public purpose than that of a public library. It is alleged that the action of the city in accepting the Thayer deed was ultra vires and illegal, and the prayer is that that deed be canceled.

John E. Allen, for plaintiff. Edwin G. Eastman, Atty. Gen., pro se. Cain & Benton, for trustees.

WALKER, J. The property held by the city under the Symonds will and under the Coolidge and Thayer deeds is devoted to charitable uses by the terms of those instruments. The general controlling purpose of the donors was to promote the welfare of the people living in the vicinity of Keene by the establishment and maintenance of public library accommodations. The underlying purpose of all the donors was substantially the same, while the methods suggested for carrying out their ideas arc somewhat dissimilar. Nor are there any conditions imposed, the literal observance of which is declared to be essential to the continuance of the charities. A forfeiture of the funds or estates created is not expressly provided for, and it is a principle adopted by courts in the construction of charitable trusts that the absence of a provision for forfeiture is evidence that the donor did not intend the estate should revert while the carrying out of his general purpose is practicable. Ashuelot National Bank v. Keene, 74 N. H. 148, 153, 65 Atl. 826, 9 L. R. A. (N. S.) 758. In the case cited it was expressly held that the Coolidge deed created a charitable trust, and not an estate upon condition subsequent. In consonance with this principle, and perhaps in consequence of it, the doctrine of cy pres in the construction of charitable trusts has been evolved. When the gift cannot be carried out in the precise mode prescribed by the donor, effect has been given to his general purpose by adopting a method which seemed to be as near his intention as existing conditions would permit. Such a construction is not the result of an arbitrary power exercised in disregard of the donor's wishes for the public benefit, but is as truly based upon a judicial finding of his intention as applied to new conditions, as is the construction of a will, deed, or other written contract. The mere making of a gift for charitable purposes, which is unlimited as to the length of time it may continue, presupposes a knowledge on the part of the donor that material change in the surrounding circumstances will occur which may render a literal compliance with the terms of the gift impracticable, if not impossible, and it is not unreasonable to infer that under such circumstances the nearest practicable approximation to his expressed wish in the management and development of the trust will promote his intention to make his...