Petition of Tuttle

• Decision Date: 04 January 1921
• Docket Number: No. 1703.,1703.
• Citation: 112 A. 397
• Court: New Hampshire Supreme Court
• Parties: Petition of TUTTLE.

112 A. 397

Petition of TUTTLE.

No. 1703.

Supreme Court of New Hampshire. Cheshire.

Jan. 4, 1921.

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

Petition by William S. Tuttle, executor of the will of Henry W. Griffiths, deceased, for advice of the court as to the construction of the will. Transferred from superior court without a ruling. Advice given, and case discharged.

The will provides, first, for the payment of his debts; second, the residue of his estate he gives to the town of Stoddard, N. H.—

"to have and to hold to said town and its successors forever, but this gift is on condition that said town shall care for properly and keep in repair forever the lot in the cemetery, near tire middle of said town, in which my mother lies buried and in which I also expect and desire to be buried, and third; for the appointment of the petitioner as executor."

The executor now has in his hands money and securities of the estate amounting to about $4,100. The sole heir of the testator is one Benjamin H. Griffiths, who is the father of the testator, who claims to be entitled to the residue of the estate. The petitioner asks for instructions whether he shall pay said residue to the town of Stoddard under the conditions of the will, or what disposition he shall make of it.

Philip H. Faulkner, Charles H. Hersey, and Chester B. Jordan, all of Keene, for petitioner and Town of Stoddard.

Branch & Branch and Frederick W. Branch, all of Manchester, for Benjamin H. Griffiths.

WALKER, J. It is contended in behalf of Benjamin H. Griffiths that the bequest to the town of Stoddard is void, because it makes it incumbent on the town, upon its acceptance of the bequest, to forever keep in repair the burial lot described in the will, and that a town cannot perform this service, since it is not within the corporate powers of towns as generally understood. Although by the language of the will the testator gave the remainder of his estate to the town "on condition that it shall care for properly and keep in repair forever" the burial lot in question, it is not open to serious doubt that his intention was to create a trust. He did not intend to limit the estate by a condition subsequent, which, if not performed, would result in a forfeiture. Upon this point extended discussion is unnecessary. Ashuelot National Bank v. Keene, 74 N. H. 148, 65 Atl. 826, 9 L. B. A. (N. S.) 758; Keene v. Eastman, 75 N. H. 191, 72 Atl. 213; Hoyt v. Kimball, 49 N. H. 322; Chapin v. School District, 35 N. H. 445; Rawson v. Uxbridge, 7 Allen (Mass.) 125, 83 Am. Dec. 670.

The principal contention is that, if it is held that the purpose of the testator was to establish a trust, the character of the trust is so far foreign to the powers of towns that the town of Stoddard cannot execute it, and hence that its formal acceptance of the trust was ineffective and ultra vires. But the trust does not require the trustee to perform merely the duties of a private nature as contradistinguished from those of a municipal character. The duties connected with the trust are of a public nature, the performance of which are expressly authorized by the Legislature, and may constitute a charitable trust. "Towns may take and hold in trust, gifts, legacies, and devises made to them for the establishment, maintenance, and care of * * * cemeteries and burial lots." P. S. c. 40, § 5. By an amendment adopted in 1901 (chapter 83) it was provided that—

"Towns and cities are hereby authorized to receive from cemetery associations or individuals funds for the care of cemeteries or any lot therein * * * sinking funds, and pay thereon an annual income not exceeding three and one-half per cent. per annum, and the income thereof shall be expended by said town or city in accordance with the terms of the trust or contract under which the same was received."

In 1907 (chapter 70) the following language was added:

"And towns shall take and hold in trust gifts, legacies and devises made to them for the care of cemeteries and burial lots when the terms of the gift, legacy or devise do not impose any liability...