Rolfe & Rumford Asylum v. Lefebre

Citation45 A. 1087,69 N.H. 238
Decision Date11 March 1898
CourtSupreme Court of New Hampshire

Bill by the Rolfe & Rumford Asylum against Joseph Lefebre for a construction of the will and codicil of Sarah Thompson, deceased, and for leave to sell certain lands held in trust. Petition granted.

Bill in equity, asking for the construction of the will and codicil of Sarah Thompson, called Countess Rumford, and asking the advice of the court as to the power and duties of the trustees under said will. Facts found by the court. The will and codicil were approved and allowed March 22, 1853. The plaintiffs are a corporation organized as successor to the trustees named in the will, and have all the powers of the original trustees. The will and codicil, so far as material, are as follows:

Will: "I give, devise, and bequest to the said town of Concord, in New Hampshire, the place of my nativity, my real estate in said town, known by the name of the 'Rolfe Estate,' inherited by me from my brother, the late Col. Paul Rolfe. This devise to the said town of Concord is on the express condition * * * that said town shall hold and apply the said property to a charitable purpose, namely, the forming and maintaining an institution for the poor and needy,—particularly young females without mothers,—making my said home and estate known as the 'Rolfe Estate,' the seat of it, and bearing the name of the Rolfe and Rumford Asylum, and with no power of sale by said town during the term of ninety-nine years from and after the time when this will shall be proved and allowed. And in case of the failure of said town of Concord to accept said devise on said terms and conditions within one year after this, my said will, shall be proved and allowed, or to faithfully comply with said terms and conditions after the same shall have been accepted, then I give and devise said estate, subject to the annuity of said Emma Gannell Burgum, to said Joseph Amidie Lefebre, now or hereafter to be called Joseph Amidie Rumford, his heirs and assigns, forever."

Codicil: "I hereby revoke the devise made in my said will to the town of Concord, and instead thereof I give and devise the said real estate in said will devised to said town to Francis N. Fisk, of Concord; James F. Baldwin, of Boston, Massachusetts; Joseph B. Walker, Ebenezer S. Towle, and Samuel Coffin, of said Concord, New Hampshire,—as trustees, in fee simple, together with the sum of fifteen thousand dollars. The said real estate to be held and appropriated by said trustees and their successors in said trust in the same manner and for the same purposes as it would have been held under my said will by said town of Concord. And the said sum of fifteen thousand dollars is to be held and invested and the income thereof appropriated by them to the founding and maintaining of the said institution to be known as the Rolfe and Rumford Asylum. But I farther direct and provide that the said institution shall be confined to children who are natives of said town of Concord. It being my intention with this lastmentioned additional provision merely to substitute trustees as herein named in place of the town of Concord, and to add said bequest for the purpose of better carrying out my intention as to said institution. In all other respects my will is to stand as heretofore declared. I hereby revoke any part of my said will inconsistent with this codicil. In all other respects I confirm the same."

In February, 1890, the Concord & Montreal Railroad condemned a portion of the land included in the Rolfe estate, bequeathed in trust as aforesaid, for side tracks, engine houses, etc., and upon a hearing the plaintiffs were awarded the sum of $1,800 for the land so taken. An appeal from this award was taken by the plaintiffs, which is now pending in the supreme court of this county. Since the appeal was taken, the railroad has offered to pay the plaintiffs the sum of $2,500 for the land so taken, provided they will give to the railroad a quitclaim deed of the land. It is for the benefit of the beneficiaries, and in furtherance of the purposes of the trust, if the plaintiffs are permitted to alienate the condemned land, and to give the railroad a deed thereof. The plaintiffs have been advised that under the trust created by said will and codicil the limitation over to Lefebre in case of the failure of the trustees to faithfully comply with the terms and conditions of said codicil, and not to alienate the property as provided therein, is void, and of no effect, and, by reason thereof, that the trustees are seised of all the trust property in fee, and have a legal right to sell and convey the Same, with the permission of the court, whenever they may deem it for the interest of their cestui que trust. They therefore pray the advice of the court as to their powers and duties under the aforesaid will, and that they may be advised as to their power to give the railroad a quitclaim deed of the land without forfeiting the trust estate; and, in case the court holds that the plaintiffs have such power, then they pray that the court may give their assent and license to such transfer.

Sargent, Hollis & Niles, for plaintiffs.

PARSONS, J. "The subject-matter of the suit being a public charity, no final and conclusive settlement can be made unless the state should be represented. Story, Eq. PI. §§ 8, 49, 69, 222." Orford Union Cong. Soc. v. West Cong. Soc. of Orford, 55 N. H. 463, 467. This objection may be obviated by an amendment making the attorney general a party. The first question is whether the trustees have power under the will to alien the trust property. It is clear that they have not. The gift is to them "as trustee in fee simple," "on the express condition that * * * they shall hold and apply the said property to a charitable purpose" named, "with no power of sale by them during the term of ninety-nine years from and after the time" when the will shall take effect. Upon a view of these provisions most favorable to the plaintiffs, the provisions are "limitations to be regarded as regulations to guide the trustees, and explanatory of the terms upon which the devise has been made. They create a trust which those who take the estate are bound to perform, and, in case of a breach, a court of equity will interpose and enforce performance." Stanley v. Colt, 5 Wall. 119, 165, 18 L. Ed. 502. A gift for a charitable trust is not within the rule against perpetuities, and a general or partial provision against alienation is not invalid. 2 Perry, Trusts, § 736; Gray, Perp. § 589. A direction "that the real estate devised should not be alienated makes no perpetuity in the sense forbidden by the law, but only a perpetuity allowed by law and equity in the cases of charitable trusts." Perin v. Carey, 24 How. 465, 507, 16 L. Ed. 701. That under the terms of their trust the plaintiffs cannot, of themselves, make a valid conveyance of the trust real estate, appears to be conceded by them, for they ask in the bill for the permission of the court to make such conveyance. "In England, and in this country where a court of chancery exists, a charity of the description in question is a peculiar subject of the jurisdiction of that court, and in cases of abuse or misuse of the charity by the trustees or agents...

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