Drury v. Sleeper

• Decision Date: 04 June 1929
• Parties: DRURY et al. v. SLEEPER et al.
• Court: New Hampshire Supreme Court

146 A. 645

DRURY et al.

v. SLEEPER et al.

Supreme Court of New Hampshire. Grafton.

June 4, 1929.

Transferred from Superior Court, Grafton County; Sawyer, Judge.

Petition by Arthur H. Drury and others, trustees, for instructions as to their rights and duties with respect to certain fund, opposed by Perley H. Sleeper and others, was transferred without ruling upon the petition and answer. Case discharged.

Petition, by the trustees of the trust funds of Alexandria, for instructions as to their rights and duties in respect to a fund derived under the seventeenth clause of the will of James Crawford, late of said town, probated July 17, 1884, which reads:

"I give and bequeath to the Town of Alexandria the income, forever, of ten Shares of the Northern Rail Road Stock, which is to be expended in keeping the hurrying ground, lying on the highway leading from Crawford's Corner, so-called to Alexandria Meeting House, in said Alexandria fenced and the Hearse House in good repair and whatever remains of said income not expended as above annually, at the expiration of each four years is to be expended for School purposes in School Dictrict where I now live. I order and direct that the Selectmen of said town of Alexandria have the control and custody of said Rail Road Stock and the power to draw and receive said incomb and expend it as above for said Town of Alexandria and said District—

"And in the event said Town does not accept and expend the income as above stipulated, for the term of four years—I give & bequeath said Stock and income to my nephew William C. Kelly."

The plaintiffs are the statutory custodians and administrators of all trust funds held by the town. The defendants are the heirs at law of said William C. Kelly. Transferred without ruling by Sawyer, C. J., upon the petition and answer; The issues presented are stated in the opinion.

Murchie & Murchie, of Concord, for petioners.

James W. Remick, of Concord, for defendants.

SNOW, J. The bequest created a charitable trust. Academy v. Adams, 65 N H. 225, 18 A. 777, 23 A. 430, 6 L. R. A. 785; Keene v. Eastman, 75 N. H. 191, 72 A. 213; Borchers v. Taylor (N. H.) 145 A. 666. No question is made as to the authority of the town to act. G. L. c. 49, § 7; P. L. c. 42, § 18.

The gift was to the town, as trustee, in perpetuity. The provision naming the selectmen as custodians of the fund and distributors of the income was merely directory. It must be presumed that the testator had in mind officers of the town having legal authority to hold and administer such a trust, whatever their successive official titles might be. Since the decease of the testator, the custody, reinvestment, and expenditure of trust funds held by cities and towns have, by legislative act, been imposed upon elective boards of trustees, who are subject to bond and limited in their investments. Laws 1915, c. 162, §§ 2, 3; P. L. c. 42, §§ 21, 22, 23. The transfer of the fund to the plaintiffs, as such trustees, was not a breach of any material condition of the gift. The change in the title and powers of the trust officers operated merely in affording a safer and more efficient medium of administration, and not in derogation of the trust.

The primary purpose of the trust is for keeping the designated cemetery "fenced" and "the Hearse House in good repair." There is no claim that there has been any failure in the object, or any forfeiting default in the administration of the trust in this respect, and no advice is sought in regard thereto. The controversial issues presented and the requests for advice all relate to the surplus income beyond the annual requirements for such purposes. The disposition of such surplus is provided for as follows: "Whatever remains of said income not expended as above annually, at the expiration of each four years is to be expended for School purposes in School District where I now live. I order and direct that the Selectmen of said town of Alexandria have the control and custody of said Rail Road Stock and the power to draw and receive said incomb and expend it as above for said Town of Alexandria and said District—"

By act approved August 13, 1885, the division of towns into school districts theretofore existing was abolished and a town system of schools established by which each town was constituted a single district for school purposes. Laws 1885, c. 43, § 1; P. L. c. 119, § 1. The petitioners aver that because of this change they and their predecessors in office have been in doubt as to their legal authority to apply the unexpended balance, and inquire whether they may pay the same to the school district of Alexandria, and, if not, whether they may apply it to the general care of the cemetery which they assert is in a state of disrepair. The defendants, by answer, deny the right of the plaintiffs to make application of such balance to either of the suggested purposes for the double reason, as they allege: (1) That the object of the trust, in so far as applicable to school purposes, failed upon the abolition of the local district where the testator lived; and (2) that the trust has been forfeited by the neglect of the town to currently apply the accumulating balance of the income in accordance with the requirements of the will.

1. In appraising the effect of the abolition of local districts upon trusts, the parties have evidently overlooked a saving clause in the act of 1885, and its interpretation in the codification of 1891. Section 7 of the abolishing statute read: "The provisions of this act shall not be applied to school districts holding funds for school purposes, in such manner as to prevent said districts from retaining and enjoying the benefit of said funds." This provision, is incorporated in the revision of 1891, with verbal changes only (Com'rs Report 1890, c. 88, § 24, p. 250), reads: "The corporate powers of a district [upon dissolution] shall continue for the purpose of * * * holding, managing, and enjoying any property held by it in trust, notwithstanding its dissolution; but the school board of the district of which it forms a part shall be its agents to expend the income of any such trust property that is devoted to the support of schools." P. L., c. 119, § 40. Laws 1885, c. 43, § 4 provided that the duties theretofore performed by "the superintending and prudential committies," the governing bodies of the districts, should thereafter be performed by a town school board. It follows that, in so far as the continued existence of the local district as a governmental unit may be regarded as an essential factor in the administration of the trust, it must be considered that such district has never been abolished and is now represented by the school board of the town district of which it forms a part.

The political subdivisions of the state for governmental purposes are creatures of the Legislature. Their form of government, within constitutional limits, is subject to modification without the necessary consent of the individuals resident thereof. It must be assumed that the testator made his will in contemplation of such legislative changes therein as the requirements of the times should dictate. It was therefore within the presumed intent of the testator that the town school board, upon the adoption of the town system, should succeed to any duties which his will imposed upon the officers of the local district.

The gift, however, was not to the local district as a political school unit. The district was named primarily to define the territory for the benefit of whose school inhabitants the surplus income of the trust was bestowed (Academy v. Adams, supra, 65 N. H. 227, 23 A. 430), and only incidentally (Greeley v. Society, 77 N. H. 455,...