Fitz Gerald v. City of Big Rapids

• Decision Date: 13 March 1900
• Citation: 123 Mich. 281,82 N.W. 56
• Court: Michigan Supreme Court
• Parties: FITZ GERALD v. CITY OF BIG RAPIDS et al.

82 N.W. 56

123 Mich. 281

FITZ GERALD v. CITY OF BIG RAPIDS et al.

Supreme Court of Michigan

March 13, 1900

Appeal from circuit court, Mecosta county, in chancery; Lewis G Palmer, Judge.

Bill by John C. Fitz Gerald against the city of Big Rapids and others to obtain a construction of a will. From a decree in favor of the city of Big Rapids, defendants Wellman and others appeal. Affirmed.

Rood & Hindman, for appellants Wellman and others.

Joseph Barton and M. Brown, for appellee city of Big Rapids.

Edmund D. Barry, for appellee Fitz Gerald.

MONTGOMERY C.J.

This is a bill filed to obtain a construction of the will of Harriet C. Phelps, deceased. The principal question arises over the eleventh clause of the will, which reads as follows: 'All the rest, residue, and remainder of my estate, except the house and grounds on which I now reside, known as my homestead (the same being a lot of land one hundred and fifty feet square, on the northeast corner of Elm street and Stewart avenue, and bounded on the south by Elm street and on the west by Stewart avenue, in the city of Big Rapids Michigan), I order and direct my executor to sell and convert into money or interest-bearing securities, and then, if the city of Big Rapids will, in due and legal form, agree to accept the same upon the terms and conditions herein expressed, and, in such form and manner and substance as shall meet the approval of my executor, to expend upon the buildings upon said lot and putting such other buildings thereon as shall be necessary in his opinion, a sufficient amount to properly accommodate and maintain, as to room, a public library thereon, and out of the balance of said fund to purchase a library, at an expense of such sums as he shall deem best, but not exceeding two-thirds of the balance of the money then remaining in his hands; and the remainder of said money he shall invest in interest-bearing securities, and the income arising therefrom, after paying all costs and charges shall be paid to said city, to be used by it in the purchasing and keeping up new books for said library and for other purposes, and upon the completion of the repairs, changing of said buildings, and the building additional buildings, if necessary, and after and upon the said city of Big Rapids agreeding to accept the same, and to forever thereafter maintain a free public library thereon, to be known as the 'Phelps Free Library'; to keep the buildings insured, as well as the library, for at least three-fourths of their value. And, in case of destruction or injury by fire or otherwise, that the said city will within two years thereafter after rebuild or repair such buildings, and purchase and place therein a library of as much value as the one destroyed, and costing at least as much as they are to have the same insured therefor,--then and upon such condition I direct my said executor to convey to said city the premises above described, and the library therein so purchased as aforesaid. Said conveyance to said city is to expressly provide that said premises are to be forever used for the purpose of maintaining such free public library thereon, and for no other purpose whatever; and should the same be used for any other purpose, or should the city cease to use the same for said purpose for the term of three years consecutively, then the same shall revert to and become the property of the legatees named in the fifth section of this will, as well as the income of said jund above expressed. Should said city not agree to accept said provisions and trust, and should it not accept the same as above provided, as to terms and conditions, then it is my will, and I order and direct my said fund above expressed. Should said city the proceeds thereof, and said fund, as well as all the rest and remainder of my estate, to pay over to the legatees named in the 5th section above, in proportion that their respective legacies bear to the whole amount of such sum.'

The residuary legatees contend that this clause is invalid, as in contravention of sections 8796 and 8797, Comp. Laws 1897 which prohibit the suspension of the absolute power of alienation for a longer...