Middlebury College v. Town of Hancock
| Decision Date | 07 October 1947 |
| Citation | 55 A.2d 194,115 Vt. 157 |
| Parties | MIDDLEBURY COLLEGE v. TOWN OF HANCOCK |
| Court | Vermont Supreme Court |
May Term, 1947.
Trusts.
1. When a trustee accepts a trust he agrees to carry out its provisions and bring to pass the results which the settlor desired; the trustee has a duty to protect the trust property against injury or destruction; he is obligated to the cestuis que trustent to do all acts necessary for the preservation of the trust res which would be performed by a reasonably prudent man employing his own like property for ends similar to those of the trust.
2. Ordinarily, when a trustee cannot properly protect and preserve the res without at least a technical deviation from some direction of the trust instrument, he should apply to the court for instructions; but there may be circumstances under which a trustee has power to depart from the terms of the trust, in order to save the trust property from destruction and to accomplish the ultimate object of the trust.
3. A charitable trust cannot be destroyed by the trustee, unless it be by conveyance to a bona fide purchaser.
4. The exception of timber land from the exemption from taxation of lands owned by colleges, P. L. 590, IV, refers to timber lands owned by colleges beneficially, and not to timber lands of which they have the bare legal title as trustee.
5. It is the primary use as distinguished from an incidental use of property that determines whether it is exempt from taxation.
BILL to enjoin collection of taxes. In Chancery, Addison County December Term, 1945, Blackmer, Chancellor. Decree for the plaintiff.
Decree affirmed.
Asa S. Bloomer and Christopher A. Webber for the defendant.
Wayne C. Bosworth for the plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.
The plaintiff in this chancery suit seeks an injunction restraining the defendant from further prosecution of a pending action in Addison County Court for the collection of taxes assessed upon certain tracts of land in the defendant town which were devised to the plaintiff as trustee in trust as a park by Joseph Battell, deceased. The devise was made by the third paragraph of the Battell will which is set forth in full in Middlebury College v. Central Power Corporation of Vermont, 101 Vt. 325, 332, 143 A. 384, that case being hereafter referred to as the Central Power Corporation case. An injunction is also prayed against other attempts to collect taxes assessed on this land which is claimed to be non taxable because granted, sequestered and used continuously for public and charitable uses.
Findings of fact were made and decree rendered by the chancellor granting the relief prayed for. Defendant comes to this court on exceptions to the 7th, 8th and 9th findings and to the decree, one ground of exception to each finding being that it was not supported by the evidence.
Finding No. 7 reads: "These Hancock lands were dedicated perpetually by Joseph Battell as a public park for the benefit of the citizens of Vermont and visitors within her borders." It is claimed to be erroneous because not in accordance with the true facts as found in finding number four. It is true that the Battell will, quoted in part in finding No. 4, contains language from which, considered alone, it could readily be found that the lands in question were devised in trust for the benefit of Middlebury College and the students thereof, upon condition that citizens of Vermont and visitors within her limits be allowed access thereto. However, the same devise of the same lands was fully considered in the Central Power Corporation case, supra, and it was held from a consideration of the whole clause together with other clauses of the will, and in view of the disfavor with which conditions subsequent are held in the law, together with the absence here of words of determination or reverter, that it was not the intention of the testator to affix a condition to the devise but rather to state the terms upon which the declaration of a trust to the public was made. It was further held that there was a dedication of the lands to a public use and that the public use is primary and characterizes the devise. This exception is not sustained.
Finding No. 8 is as follows: "These Hancock lands are and have been at all material times held and managed by Middlebury College as trustee under the will of Joseph Battell." That the plaintiff received the lands and has since continued in possession thereof under the Battell will and the decree of the probate court is not questioned, it being contended only that the plaintiff has not held and managed the land as trustee in accordance with the terms of the trust. Some of the evidence disclosed by the transcript which tends to show compliance with those terms is as follows: Certain principles were early adopted by the trustees of the College which were to govern in the administration and management of the land which was to be called "Battell Park." In the management thereof all money received from the sale of lumber or other products went into a separate fund and was used only for park expenses and improvements or held in reserve for that purpose. Ski trails were laid out in the park which the public were permitted to use; also an area was laid out therein known as the "snow bowl." As many as 200 skiers and spectators have been seen in the park on one day. Pleiad Lake in the park was kept stocked with trout, fishing being permitted to the public upon payment of a small fee. Hunting and hiking were permitted and indulged in by the public. Shelters have been erected for the benefit of hikers over the Long Trail which crosses the park.
Defendant's claim of mismanagement rests on the evidence tending to show that extensive lumbering operations from which a profit resulted were carried on over a number of years, alleged to be in violation of the requirement in the Battell will that the trustee "should neither cut nor permit to be cut thereon any trees whatsoever except such as are dead or down and such as it may be necessary to cut in making and repairing needful roads." The chancellor has found that during the two years ending March 30, 1945, these operations grossed $ 18,808.21 and that the park showed a net operating profit of $ 4,918.53 during this period, including the lumbering operations. The evidence relative to plaintiff's management of the park discloses that it could be found that such lumbering operations were carried on with some regularity after about the year 1937, and that the revenues therefrom have been credited to the plaintiff's Battell Park account, resulting in a credit balance in that account of $ 14,324.69 in December, 1945, as against a debit balance of $ 33,166.32 on July 1, 1937. We find no evidence that any profit accrued to anyone other than the plaintiff's Battell Park account. From the evidence as to management it could also be found that any cutting of trees in excess of those permitted by the Battell will was done upon expert advice to prevent the spread of infestation by certain insects which destroyed the trees attacked, the trees cut being those already infested or situated so near to infested trees as to be in danger of becoming infested.
When a trustee accepts a trust he agrees to carry out its provisions and bring to pass the results which the settlor desired. 3 Bogert on Trusts and Trustees, § 581, p. 1832. And the trustee has a duty to protect the trust property against injury or destruction. He is obligated to the cestuis que trustent to do all acts necessary for the preservation of the trust res which would be performed by a reasonably prudent man employing his own like property for ends similar to those of the trust. Idem, § 582, [115 Vt. 161] p. 1833. Nevitt v. Woodburn, 190 Ill. 283, 60 N.E. 500; In re Dreier's Est., 83 N.J.Eq. 618, 92 A. 51; In re Gurlitz' Will, 235 N.Y.S. 705, 134 Misc. 160. Obviously it will sometimes happen that the trustee cannot fully perform this duty of protecting the res without at least a technical deviation from some direction of the trust instrument. Ordinarily, of course, application should be made to the court in such a case for instructions. But it would seem that there may be circumstances under which a trustee would have power on his own initiative and without risk to himself to depart from the terms of the trust, in order to save the trust property from destruction and to accomplish the ultimate object of the trustor. 54 Am Jur 234 Trusts, § 295. See Restatement of Trusts, § 167 (2).
Petition of Conference of Churches, 352 Pa. 470, 43 A.2d 1, is in point, although it does not involve the power of a trustee to deviate from the terms of a trust instrument. In that case a condition in a gift deed forbade the cutting or removal from the land of any standing green timber except for necessary driveways. It was apparent there as here that the main...
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