Piper v. Moulton

• Decision Date: 10 March 1881
• Citation: 72 Me. 155
• Parties: BENJAMIN PIPER and another, in equity, v. LORENZO MOULTON, executor of the last will of ELISHA PIPER, and others.
• Court: Maine Supreme Court

72 Me. 155

BENJAMIN PIPER and another, in equity, v. LORENZO MOULTON, executor of the last will of ELISHA PIPER, and others.

Supreme Judicial Court of Maine.

March 10, 1881

BILL in equity.

Heard on bill, answer and proof.

The opinion states the case.

J H. Hobbs, for the plaintiffs, upon the question of perpetuity, cited: 1 Perry on Trusts, 472, 480-483; Smith v Dunwoody, 19 Ga. 237.

The one hundred dollars bequest was void. A secondary bequest depending upon a void bequest, fails. Corlyes v. French, 4 Ves. 418; 1 Jarman Wills, 248; Rose v. Rose, 6 Abbott's Dig. 178; 2 Redfield Wills, 565, 574, 531, 523; 22 Wend. 483.

The large bequest was not a public charity. Attorney General v. Soule, 28 Mich. 153.

A corporation cannot be trustee for purposes foreign to its institution. 15 N.H. 330.

The town of Parsonsfield has no authority to support or aid in supporting a free high school. Hooper v. Emery, 14 Me. 375; Bussey v. Gilmore, 3 Me. 191; 14 Allen 585; Gove v. Epping, 41 N.H. 545; Perkins v. Milford, 59 Me. 315.

The attesting witnesses to the will were disqualified. Hawes v. Humphrey, 9 Pick. 357.

That question is now open to us. Bent's Appeal, 35 Conn. 523; Dickinson v. Hayes, 31 Conn. 424.

Ira T. Drew, for the defendants, cited: 12 Mass. 358; 10 Allen 153; 47 Me. 474; Hawes v. Humphrey, 9 Pick. 350, Warren v. Baxter, 48 Me. 193; 22 Pick. 215; 68 Me. 380; Drury v. Natick, 10 Allen 176; Dexter v. Gardner, 7 Allen 243; Att'y General v. Greenhill, 33 Bea. 193.

APPLETON C. J.

Elisha Piper on September 19, 1876, made and executed his last will and testament. He died March 22, 1877. On the first Tuesday of June, 1877, his will was presented for probate and proved and allowed.

After referring to his heirs at law and declaring in the first item, that he shall not give them anything, the will proceeds as follows:

" All my estate is the result of my own earnings and of economy in the care and management of the same, and I feel that my relatives should not question my right to carry out what has been a well considered and settled purpose with me, viz: To dispose of my property in such a manner as will in my judgment do the most good and be of the greatest benefit in promoting popular education, and whereas the town of Parsonsfield, in the county of York, aforesaid, is my native town, in which I have always felt a great interest, and the inhabitants thereof are interested in the maintenance of good schools, I feel safe in the creation of the trust hereinafter provided.

Second, I give and bequeath to the inhabitants of Parsonsfield, in the county of York and State of Maine, the sum of one hundred dollars to have and to hold the same forever, in trust, for the following purposes, namely: to expend the interest and income as may be necessary to keep my lot in the Piper burying ground, situate at South Parsonsfield in good order and condition and an iron fence around the same in good repair and painted.

Third, I give, bequeath and devise all of the rest and residue and remainder of my estate, both real and personal, after the payment of all my just debts and burial expenses to the inhabitants of the aforesaid town of Parsonsfield, to have and to hold the same in trust forever, and to be called the ‘ Piper school fund’ to and for the uses and purposes hereinafter mentioned and declared, namely, that the interest and net income thereof shall be annually expended in aid of the support of a free high school in said Parsonsfield, that is to say, a school which shall be open and free to all residents of said Parsonsfield without charge for tuition, not intended, however, to restrict the right of said inhabitants to charge tuition for scholars admitted to said school, who are not residents of said Parsonsfield; that no part of said money shall ever be expended in the erection or repair of school buildings, but the entire use, income and interest, arising and accruing from the estate hereby bequeathed, shall be forever expended for instruction and payment of incidental expenses, necessary for the support of said school.

The expenditures of said money shall be under the direction and control of the superintending school committee of said Parsonsfield or such officers as may be by law provided in their stead; this devise is upon the express and certain condition that the inhabitants of said Parsonsfield shall accept and perform the conditions named in the second article of this will."

The heirs at law bring this bill to determine the construction of and the effect to be given to the trusts declared in the will, at the same time denying the will to have been duly attested by competent witnesses.

1. It is objected that the will was not properly executed, because the attestation of the testator's signature was by interested witnesses.

The wife of the executor was one of the attesting witnesses. But the executor was a competent witness at the time of the attestation of his wife. He might legally have been an attesting witness. Jones v. Larrabee, 47 Me. 479. The husband not being then interested his wife was not " beneficially interested" under the will and was a " credible attesting witness."

The other attesting witnesses were inhabitants of Parsonsfield. But that fact would not prevent their being attesting witnesses. In Eustis v. Parker, 1 N.H. 273, this precise question arose in a case where the attesting witnesses were inhabitants of a town to which a bequest for the support of schools had been made and they were held competent. Their interest, as inhabitants was not direct and certain. If they might be benefitted by the reduction of taxes, which might thereafter be assessed, they might die, or move from the town and cease to be inhabitants of the same, at the time of a subsequent assessment. Their interest was contingent. State v. Stuart, 23 Me. 111. The increased privileges of education do not constitute a disqualifying interest. Warren v. Baxter, 48 Me. 195; Hawes v. Humphrey, 9 Pick. 350.

But if it were otherwise and the witnesses were to be deemed interested, the objection is not open to the complainants. The probate court had jurisdiction. If it erred, the error might be corrected on appeal. Whether the questions arising in the probate court were correctly or incorrectly decided as to the competency of evidence can never be made a matter of inquiry in a court of common law to affect that adjudication. Patten v. Tallman, 27 Me. 17. The probate of a will is final and conclusive upon all parties. Dublin v. Chadbourn, 16 Mass. 433. The decisions of the judge of probate in all cases within his jurisdiction are conclusive against all the world unless vacated by an appeal. Tibbetts v. Tilton, 4 N.H. 121; McLean v. Weeks, 65 Me. 411.

A trust for the support of schools or of a particular school as a high school, or for any purpose of general public utility is a valid trust. So towns can hold property in trust for purposes within the general scope of their corporate existence. Thus, towns and cities may hold property in trust for the purpose of educating the poor, and the relief of those who are poor and not paupers. Sutton v. Cole, 3 Pick. 232; Webb v. Neal, 5 Allen 575; Everett v. Carr, 59 Me. 325; Vidal v. Gerrard, 2 How. 188; Drury v. Natick, 10 Allen 169; Second Religious Society in Boxford v. Harriman, 125 Mass. 321; Attorney General v. Butler, 123 Mass. 305; stat. 1873, c. 92.

But the devise to the inhabitants of Parsonsfield was " upon the express and certain condition that the inhabitants of said Parsonsfield shall accept and perform the conditions named in the second article of this will."

Those conditions are that said inhabitants should have and hold forever the sum of one hundred dollars in trust to expend the interest and income as may be necessary to keep the testator's lot in the Piper burying ground in South Parsonsfield in good order and condition and an iron fence around the same in good repair and painted.

Here is provision for a perpetuity. The amount devised is to be held forever in trust for certain purposes. Whether the amount thus to be held be great or small is immaterial. The true question is whether this is a gift for a charitable use.

A charity is a gift to any general public use, extending to all rich or poor. " Indeed, it is said that vagueness is in some respects essential to a good gift for a public charity and that a public charity begins where uncertainty in the recipient begins. So, if a gift for a private purpose tends to create a perpetuity, it will be void; but a gift for a public charity is not void, although in some forms it creates a perpetuity." 2 Perry on Trusts, § 687. " Charity is defined to be a general public use." 1 Jarman on Wills, 192. Courts have been exceedingly liberal in not restricting the objects to be regarded as charitable. " But," observes GRAY, C. J. in Drury v. Natick, 10 Allen 169, " the gift must be expressly or by necessary implication for the public benefit. Therefore a private museum or a library established by private subscription for the use of subscribers, has been held not to be a charity." In Carne v. Long, 2 De Gex, Fisher & Jones, 75, the devise was to the trustees of the Penzance public library, an institution established and kept on foot by the subscription of certain inhabitants of Penzance for purchasing books for the use of the subscribers; the books to be vested in trustees for the use of the institution, to continue as long as there were ten subscribers. It was held that this was not a charity. " The devise," says Lord CAMPBELL, " is for the benefit of a subsisting society, and one which is intended to subsist so long as ten members remain, and the property is to be taken out of commerce and to become inalienable,...