Second Religious Soc. v. Harriman

• Decision Date: 05 September 1878
• Citation: 125 Mass. 321
• Parties: Second Religious Society of Boxford v. Daniel F. Harriman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

125 Mass. 321

Second Religious Society of Boxford v. Daniel F. Harriman

Supreme Court of Massachusetts

September 5, 1878

Argued November 8, 1877 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Essex. Contract for money had and received. Writ dated April 29, 1875. The answer set up the statute of limitations. The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on agreed facts in substance as follows:

The will of Ephraim Foster of Boxford, dated January 3, 1835, contained, besides other provisions, the following:

"And further at the decease of my said wife Orissa, all of the above property left in trust for her benefit shall be disposed of as follows, that is, fifteen hundred dollars of the same shall be given to the West Parish in Boxford to build and support a public school for the education of children as the law now directs. Said school-house to be located as near the meeting-house where the Rev. Dr. Eaton now preaches, as a piece of land for that purpose can be purchased at a reasonable price." The testator died on February 5, 1835, and the will was admitted to probate on March 10, 1835. His widow died in May, 1864.

The records of the Second Parish in Boxford, which was the West Parish, contain no mention of this legacy, until the warrant dated May 27, 1864, for a legal meeting of the voters of the parish, on June 6, 1864, which contained the following article:

"5th. To see if the parish will vote to accept the legacy given to the West Parish in Boxford, by the will of Ephraim Foster, late of Boxford, and appropriate the same for the purposes for which it was given, and, if so, to choose a committee and authorize them to receive said legacy, and cause the same to be expended, agreeably to the conditions specified in said will." At this meeting duly held on June 6, it was voted: "To accept the legacy given the West Parish in Boxford, by the late Ephraim Foster, and to choose a committee to receive and expend the same as the parish shall instruct;" and Daniel F. Harriman, John F. Kimball, and Joshua T. Day, were chosen a committee. Of this committee, Harriman is the defendant. Kimball has not resided in the parish for five years and has no interest in the society, and Day is dead.

The next mention of said legacy in the parish records is in the warrant, dated May 11, 1865, calling a meeting of the voters of the parish on May 19, and containing the following articles: "2d. To see if the parish will vote to appropriate the legacy bequeathed the West Parish in Boxford, by the late Ephraim Foster, for educational purposes, in what has been known as the Seventh School District in Boxford, or take any order on the subject when assembled. 3d. To see if the parish will allow the income of the legacy bequeathed the West Parish in Boxford, by the late Ephraim Foster, for educational purposes the past year, to be expended in the above named school district the present school year. 4th. To see what further instructions the parish will give their committee in relation to the bequest of the late Ephraim Foster to the West Parish in Boxford for educational purposes."

At this meeting held on May 19, 1865, it was voted "To instruct the committee to purchase the land and house according to the letter of the will." "That the parish relinquish the legacy bequeathed by the late Ephraim Foster to the West Parish in Boxford for educational purposes to what has been known as the Seventh School District in Boxford." "That the parish relinquish, to what has been known as the Seventh School District in Boxford, the interest which has accrued upon the fund bequeathed by the late Ephraim Foster to the West Parish in Boxford for educational purposes."

The Seventh School District was the nearest to the meeting-house named in the will.

A warrant dated June 24, 1865, called a meeting of the voters of the parish on July 1, 1865, to act upon, among others, the following articles: "2d. To see what action, if any, is necessary to authorize by proper limitations the Seventh School District in Boxford (said district being a part of said parish) to use and expend said legacy in accordance with the views of said Foster as expressed in his will, and to authorize said school district to use and expend said legacy. 3d. To reconsider, if deemed necessary for the purposes expressed in the above article, any votes passed at a meeting of said parish held on said 19th day of May, 1865. 4th. To give definite and specific instructions to the committee having in charge said legacy as to what they shall do in the matter of said legacy, and to authorize said committee to take such action and do such things as may be necessary to carry out the objects set forth in the second article above. By request of D. F. Harriman and others."

At this meeting duly held on July 1, 1865, the following votes were passed:

"Voted, That whereas the parish deeming that the views of Ephraim Foster, in reference to the legacy bequeathed by him to the parish for educational purposes, will be best carried out by transferring the expending and use of said legacy to what has been known as the Seventh School District in Boxford, said school district being a part of said parish, therefore, it is voted, that the expending of said legacy, with the interest accrued thereon, be given to said Seventh School District, with the right upon the part of said district to use said legacy in repairing, enlarging or rebuilding their school-house, and for the instruction of the scholars within the limits of said district at such place as shall best carry out the intentions of said Foster as expressed in his will."

"Voted, That the votes of the parish passed at the meeting held on the 19th day of May, 1865, whereby said committee having in charge said legacy were directed to purchase a lot of land and house, is hereby reconsidered and annulled."

"Voted, That the committee of the parish having in charge said legacy be instructed to deliver the money received by them under said legacy, with the interest accrued thereon, to such committee as the said Seventh School District shall appoint to receive the same."

Nothing further was done in reference to the fund by the parish, nor was the committee ever discharged, nor did they ever make a report to the parish, after the date of the last mentioned meeting.

At a legal meeting of the voters of the parish held in pursuance of a warrant, "to see what action the parish will take in regard to fund left by the late Ephraim Foster for the support of a school," held on April 6, 1875, it was

"Voted, That a committee of three be chosen by the parish to take all necessary steps for the legal procurement and acceptance of the fund bequeathed the parish by Ephraim Foster for educational purposes now in the hands of Daniel F. Harriman;" and M. S. Jenkins, Isaac W. Archer, Nathaniel Gage, were chosen as the committee. On April 29, 1875, this committee by its chairman demanded, in behalf of the parish, the fund of the defendant, and the defendant declined to pay it, except upon a decree of the court as to whom it belonged.

At a town meeting called and held in Boxford, on March 6, 1865, "to see if the town will vote to unite the fifth, sixth and seventh school districts, or to unite either the fifth or sixth school district with the seventh, or take any action on the subject; by request of Daniel F. Harriman and others," it was voted "to unite the fifth and seventh school districts."

At a town meeting called and held on March 22, 1865, "to see if the town will make null and void the vote whereby the fifth and seventh school districts were united at the last annual town meeting," it was voted "to make null and void the vote, whereby the fifth and seventh school districts were united at the last annual town meeting."

The fifth, sixth and seventh school districts were contiguous, and the only districts in the West Parish.

The records of the Seventh School District in Boxford show that a warrant dated July 1, 1865, for a meeting of the voters in the district, contained the following articles: "2d. To see if the said district will vote to accept the legacy devised to the West Parish in Boxford for educational purposes by the late Ephraim Foster, and transferred by the said parish to what has been known as the Seventh School District in said Boxford. 3d. To choose a committee to...