Sch. Dist. No. 3 of Town of Bethel v. Sheldon

• Decision Date: 03 October 1898
• Citation: 41 A. 1041,71 Vt. 95
• Parties: SCHOOL DIST. NO. 3 OF TOWN OF BETHEL v. SHELDON et al.
• Court: Vermont Supreme Court

41 A. 1041

71 Vt. 95

SCHOOL DIST. NO. 3 OF TOWN OF BETHEL

v. SHELDON et al.

Supreme Court of Vermont. Windsor.

Oct. 3, 1898.

Appeal in chancery, Windsor county; Tyler, Chancellor.

Bill by school district No. 3 of the town of Bethel against N. L. Sheldon and others. From a decree sustaining a demurrer to the bill, orator appeals. Affirmed.

Hunton & Stickney, for orator.

Wm. Batchelder, for executors. M. M. Wilson, for Guy Wilson, trustee.

START, J. This cause was heard on the defendants' demurrer to the orator's bill. It is alleged in the bill that the orator was incorporated as a graded school district by No. 166 of the Acts of 1886; that Albert Whitcomb deceased at Bethel, leaving a will by which he gave the orator "thirty thousand dollars, the principal to be safely in vested, and the income only to be used each year for the current expenses of the school," and which provided that if the gift was not accepted, or if its conditions should be violated, the same should be given to and divided among the three grandchildren of his brother, the late Elias K. Whitcomb; that the will was duly probated, and the gift accepted, with its conditions, by the orator; that on the 12th day of February, 1897, the probate court for the district of Hartford appointed the defendant Guy Wilson trustee of the fund so bequeathed to the orator, and ordered the same paid to him, and that he should hold the same in trust for the benefit of the orator, according to the terms of the will; and that the orator had no notice of any application, petition, or motion for the appointment of a trustee of said fund. The orator asks to have the legacy paid to it, and insists that the probate court, in appointing a trustee not named in the will, has exceeded its authority, and that its order in that respect is absolutely void and a nullity.

By the will the sum of $30,000 is given to the orator in trust. The purpose of the trust is declared in the will, and we think the testator intended the trust should be executed by the orator. The gift is direct to the orator, in trust. The principal is to be safely invested, and the income only used for the current expenses of the school. it is clear that the testator intended that the orator should accept the trust and perform the conditions attached to the gift, for he provides that if the gift is not accepted, or if its conditions are violated, the same shall be divided among his brother's grandchildren. The orator was incorporated for the...