Gilman v. Burnett

• Decision Date: 27 October 1917
• Citation: 102 A. 108,116 Me. 382
• Parties: GILMAN. v. BURNETT et al.
• Court: Maine Supreme Court

102 A. 108

116 Me. 382

GILMAN.

v. BURNETT et al.

Supreme Judicial Court of Maine.

Oct. 27, 1917.

Report from Supreme Judicial Court, Kennebec County, in Equity.

Proceedings for the construction of a will by Jennie Gilman, trustee, against Helen Burnett and others. On report. Decree rendered.

Argued before CORNISH, C J., and KING, BIRD, HALEY, HANSON, PHILBROOK, and MADIGAN, JJ.

M. S. Holway, of Augusta, for plaintiff.

Leroy L. Hight, of Augusta, for defendant.

CORNISH, C. J. The plaintiff asks the construction of the following clause in the will of Mina Perry, who died January 13, 1916:

"Tenth. I give, bequeath and devise to my beloved aunt, Lydia B. Pickett, of Hyde Park, Massachusetts, the farm owned by me in Augusta, Maine, which is situate on the Eight Rod Road, so-called, on the west side of the Kennebec river, and about two and one-half miles north of the Kennebec Bridge in said Augusta; said farm containing fifty acres, more or less, with the buildings thereof; also my wood lot situate in Sidney in said county of Kennebec and state of Maine, and all the remainder of my estate, real, personal or mixed, wherever found or however situated, to said Lydia B. Pickett, in trust for the following purposes, to wit:

"That said farm shall be occupied by my dear aunt, Lydia B. Pickett and that she shall afford a home for one or two, or more, if it may be arranged, of the unmarried women who have been employed in the straw industry of Massachusetts; that having been my occupation, and knowing the many worthy and deserving cases in the employ of that industry I desire that my accumulations, however limited they may be, shall be so intrusted as to afford to my sisters in this line of work a place of refuge and comfort; trusting that others may feel like enlarging and endowing this beautiful spot where my said farm is situated in order to afford them the necessary comforts and enjoyments. Said trust to be carried on perpetually, and at the decease of my dear aunt, Lydia B. Pickett, or should I survive her, then I nominate and appoint my dear friend, Miss Jennie Gilman, of Readfield, Maine, her successor; and at the decease of my dear friend, Miss Jennie Gilman, then I nominate and appoint my dear friend, Mrs. Cora I. Morse of said Medway, Mass., her successor; and her successor or successors in carrying on this trust shall be appointed by the judge of probate for said county of Kennebec, upon the recommendation of my executor hereinafter named, if alive, otherwise upon the recommendation of the mayor of said city of Augusta. This trust shall not take effect until October 1, 1908, and this provision is made so that the present occupant of the farm, William B. Smith, shall not be disturbed until that period, but shall enjoy the privileges and emoluments of said premises until that time. Said William B. Smith not to be allowed to cut any wood on said premises. Whatever funds may remain at the time of my decease I hereby give and bequeath to said trust above mentioned, the income to be used in the maintenance and carrying on of the object of the aforesaid trust."

The entire property disposed of under this will consisted of the real estate specified in item 10 appraised at $2,360, and personal property appraised at $629.20. The debts, legacies, and expenses of administration will exhaust all the personal property, leaving for the trust estate the farm of 50 acres, the wood lot and a small amount of furniture and furnishings in the farm house. Lydia B. Pickett, the aunt of the testatrix, the trustee named in the will, died prior to the death of the testatrix. The plaintiff, Jennie Gilman, named as her successor, has been duly appointed and qualified. She alleges in the bill that it is impossible to carry out the terms of the trust; that the farm has neither stock nor implements, and there is no money with which to purchase any or to pay the ordinary running expenses; that the income of the unfilled land is very small and the property is steadily depreciating in value; that she is unable to live upon the premises and afford a home to one or more of the designated beneficiaries; that no other trustee would be able to do this without assistance apart from the property; and that no outside party has shown a disposition to endow the farm so as to fulfill the purposes of the trust. All these allegations are admittedly true.

What are the power and the duty of the court when confronted with this situation? The plaintiff trustee asks us to find that she is a devisee for life, charged with a trust, that Cora I. Morse may be decreed to have a succeeding life estate, charged with the same trust, that the doctrine of cy pres shall be applied by the court in directing the execution of the trust and some plan be devised which will carry out the alleged general charitable intent of the testatrix. No suggestions are made as to what that plan might be. The established rules of law, however, as applied to the construction and execution of charitable trusts, will not permit this course to be pursued.

That the clause in the will under consideration created what is known in law as a public charity is assumed by counsel on both sides, and we will follow the assumption without determining the question. Such determination is unnecessary. Granting that a public charity was created, must it lapse under the facts presented here? This question we are constrained to answer in the affirmative.

It is conceded that the trust is so impracticable that it is impossible of execution for the uncontradicted reasons recited by the trustee in the bill. The real estate is grossly insufficient for the contemplated purpose. It is not even self-supporting. There is no additional endowment. There is no provision by which the property can be sold and the proceeds converted into a fund which could be allowed to accumulate, and if accumulations were permitted, the principal is so meager that the time of enjoyment would be postponed so far into the future that the purpose of the testatrix, which was intended to be executed in a short time after her decease, would be thwarted.

In this respect this case differs from Allen v. Nasson Institute, 107 Me. 120, 77 Atl. 638, where, after the termination of certain...