City of Providence v. Payne

• Decision Date: 30 June 1926
• Docket Number: No. 713.,713.
• Citation: 134 A. 276
• Parties: CITY OF PROVIDENCE v. PAYNE et al.
• Court: Rhode Island Supreme Court

134 A. 276

CITY OF PROVIDENCE

v. PAYNE et al.

No. 713.

Supreme Court of Rhode Island.

June 30, 1926.

Case Certified from Superior Court, Providence and Bristol Counties.

Suit by the City of Providence against Mary Dexter Payne and another to construe the will of Ebenezer Knight Dexter, deceased. Bill certified to Supreme Court for determination. Decree advised.

Elmer S. Chace, City Sol., and Ellis L. Yatman and Francis D. McManus, Asst. City Sols., all of Providence, for complainant.

Thomas A. Jenckes, of Providence, for Mary Dexter Payne and George Robert Payne.

Greenough, Easton & Cross, of Providence, for certain respondents freemen of Providence.

SWEETLAND, C. J. This is a bill in equity asking for the construction of certain provisions of the will of Ebenezer Knight Dexter, deceased, late of the town of Providence, and for instructions relative thereto. In accordance with the provision of the statute the bill as amended has been certified to this court for determination.

The respondents named in the bill are the collateral heirs of the testator, and the "freemen" of Providence. Answers to the amended bill have been filed in behalf of said heirs and by certain of the "freemen" of Providence. At the hearing before us oral arguments were made and briefs filed in behalf of said respondents.

The testator died a resident of the town of Providence August 10, 1824, and his will was duly probated in said town on August 30, 1824. After making a number of private bequests, the testator in the sixteenth paragraph of the will devised to the town of Providence a large tract of land lying in the town for use as a "training field." This tract is still maintained in accordance with the provisions of the will, and is known as the Dexter Training Ground.

The provisions of the will with regard to which construction is now sought are contained in the seventeenth and eighteenth paragraphs thereof and read as follows:

"Seventeenth. Feeling a strong attachment to my native town, and an ardent desire to ameliorate the condition of the poor, and to contribute to their comfort and relief, I give, grant and devise to the aforesaid town of Providence, in fee simple forever, my Neck farm, in said Providence, lying southerly of the Friends' Yearly Meeting School estate, together with all the buildings thereon, to be appropriated to the accommodation and support of the poor of said town, in manner hereinafter mentioned, and for no other use or purpose whatever. Provided, however, and this devise is upon condition, that said town shall, within five years after my decease, erect a building or buildings on said farm, suitable for the use and accommodation of the poor of said town, and shall, under their own management and direction, keep and maintain the same for that sole use and purpose forever; and provided, also, and this devise is upon this further condition, that said town shall within twenty years after my decease, erect all around upon the exterior lines of said farm, leaving, however, suitable passage ways into the same, a good permanent stone wall, at least three feet thick at the bottom, and at least eight feet high, and to be placed upon a foundation made of small stones, and as thick as the bottom of the wall and sunk two feet deep in the ground. I hereby authorize said town, however, to exchange at any time before the building of said wall, such parts of said farm as they may think best, for other lands adjoining, for the purpose of straightening the lines of said farm, or throwing it into better shape, but for no other purpose.

"Eighteenth. I also give, grant, devise and bequeath to the aforesaid town of Providence, in fee simple forever, for the use of the poor of said town, as hereinafter mentioned, all the rest, residue and remainder of my estate, both real and personal, not herein otherwise disposed of, the said town paying thereout, or out of the rents, profits or income thereof, at their discretion, the annuities aforesaid; and for the payment of which said annuities, all the real estate herein devised to said town, except the said Neck farm and said lot devised for a training field, is to stand charged and chargeable. And I do hereby give said town full power and authority to sell, if they judge it best, the whole, or any part of the real estate herein devised to them, except the said Neck farm and the said lot devised for a training field and to invest the proceeds of the sales thereof in bank or other stocks—the whole of said property and estate herein devised and bequeathed to said town to be kept together and to constitute a permanent fund for the benefit of the poor of said town, and to be preserved entire forever; and until the said town shall have erected a building or buildings on said Neck farm in the manner and for the purpose as is hereinbefore mentioned, the rents, profits and income of all the property and estate herein given and devised to said town, including the rents, profits and income of said Neck farm to be added to said permanent fund and to constitute a part thereof; and when said town shall have so erected such building or buildings, and placed the same in suitable condition and under proper regulations to receive the poor of said town, then and from that time, all the rents, profits and income of all the property and estate herein given and devised to said town, including the rents, profits and income of said Neck farm to be applied by said town to the support and maintenance of the poor of said town, in such way and manner as said town from time to time, at any meeting legally holden, shall in their discretion direct, and for no other use or purpose whatever; provided, however, that no vote of any town meeting in relation to any part or portion of the property or estate herein devised and bequeathed to said town, or in relation to the management of the same, or of the rents, profits or income thereof, shall be of any force or effect, unless forty freemen, at least, be present at the time of passing such vote."

The town at a special town meeting held on November 24, 1824, accepted the "donation" of the testator by resolutions, of which the following is a part:

"Resolved, that the conditions under which the said donation to the town of Providence is in & by the said last will & testament devised & bequeathed, are altogether judicious and just, and as such, are accepted & ought to be performed by said town; and the faith of the said town of Providence is hereby solemnly pledged to the true and just performance of the said conditions in every particular thereof, according to the provisions of said last will & testament."

In 1828 the town of Providence, at its own expense, erected an asylum building upon the Neck farm, and immediately devoted it to the use and accommodation of the poor of the town. This asylum building, together with other buildings erected upon the farm since that time, has continued to be devoted solely to that use. The town also at its expense erected a wall around the farm in exact compliance with the specifications of the testator contained in the seventeenth paragraph of his will. This farm, surrounded by its high stone wall, has continued down to the present time as one of the landmarks of the town and the city of Providence, and is known as the Dexter Asylum. By reason of the growth of Providence, it is now surrounded by a valuable residential section of the city. Until the incorporation of the town of Providence as a city in 1831, the Dexter donation, so-called, was managed in accordance with the directions of the town meeting of the freemen of the town and the "rents, profits and income thereof" applied solely to the support and maintenance of the poor of the town.

In the act of incorporation of the city of Providence, it was provided that the inhabitants of the town of Providence by the name of the city of Providence "shall have, exercise and enjoy all the rights, immunities, powers, privileges and franchises and shall be subject to all the duties and obligations now appertaining to or incumbent upon the freemen and town council thereof." It was further provided—

"that it shall at all times be lawful for the freemen of the city of Providence or any number of them, not less than forty, to hold town meetings in said town for the purpose of transacting business in relation to the property and estate devised to the town of Providence by the last will and testament of Ebenezer Knight Dexter and denominated the Dexter donation and the asylum and other town or city property connected therewith."

Since the incorporation of the city of Providence, the freemen of that city have held town meetings at least once in every year, and at said town meetings have conducted, controlled, and administered the property known as the Dexter donation. It appears in the agreed statement of facts that in every respect the town and the city of Providence have with great care administered the Dexter donation, including the Neck farm, known as the Dexter Asylum, in strict conformity with the provisions of the devises under the seventeenth and eighteenth paragraphs of the will.

A large portion of the asylum property has, up to the present time, been conducted for profit as a farm. It is stated that now by reason of existing conditions in the farming industry that portion of the asylum property cannot longer be so operated with profit in these circumstances, at the instance of the city council of Providence, this bill has been instituted for the construction of the seventeenth and eighteenth paragraphs with particular reference to the following questions stated in the bill:

"First. May that portion of the said Neck farm shaded red upon the plat hereto annexed and marked Exhibit C be platted into house lots, sold under proper restrictions for residential purposes, and the proceeds invested in some other manner, the income thereof to be devoted to the uses and purposes by said...