Sheldon v. Town of Stockbridge
| Decision Date | 04 February 1895 |
| Parties | N. L. SHELDON ET AL v. TOWN OF STOCKBRIDGE |
| Court | Vermont Supreme Court |
OCTOBER TERM, 1894
Bill for the construction of a will by the executors. Heard at the December term, 1893, Windsor county. THOMPSON, Chancellor decreed, among other things, that the town of Stockbridge was entitled to the bequests given to it by the will. The heirs of Whitcomb appeal.
Decree affirmed and cause remanded.
J J. Wilson for the orators.
Samuel E. Pingree for the Whitcombs.
Start J., did not sit, having been of counsel for one of the parties in interest. Taft, J., doubting and Munson, J., dissenting on the first point.
There are six points made in the brief in behalf of the defendants Whitcomb.
I. That the cemetery bequest is void for the reason that it is subjected to a condition precedent, which cannot be performed. The testator gives the town one thousand dollars, directing that the interest be expended annually; one-half in cultivating flowers on his burial lot in the cemetery at Stockbridge common, improving and beautifying it, the other half in fencing, improving and beautifying the cemetery.
The condition annexed to the bequest reads:
"In accepting this gift of a thousand dollars, the town of Stockbridge shall agree to keep good this amount through all coming time. "
It is argued that the town has no power to bind itself by an agreement to keep the fund intact; that the statute does not empower it to enter into such an obligation.
It is true the town possesses limited powers only, such as are given it by statute, and those necessarily implied, in order to carry out its express powers. It can raise money to carry out the powers expressly given it, and for expenses incident to such purposes; it can always vote to raise money to pay expenses incurred in discharging duties imposed upon it by law.
Under R. L., s. 3192, towns have power to raise money to buy and keep burial grounds in repair and to fence them, and the selectmen may make all necessary regulations for the purpose of keeping them in proper order.
These duties, in respect to cemeteries, may be executed at the expense of the town, and for that purpose towns may vote to raise money.
It is for such purposes that the testator requires the interest of the one thousand dollars to be expended annually. A cemetery may be kept in repair and in proper order by cultivating flowers, improving and beautifying lots and the cemetery, and fencing the cemetery.
A town having power to raise money for the purposes specified in the gift, a majority of the court hold that it may accept a gift, the interest of which is required to be expended for that purpose, even if the gift is coupled with the condition to keep the principal sum intact or good through all coming time. We think the vote of the town accepting the bequest binds it to the performance of the condition. It cannot accept the gift except upon the terms upon which it is given.
II. The second point is raised upon the bequest of twenty thousand dollars to the town of Stockbridge for the support of common schools.
The testator directs that the income of the fund shall be annually divided among the school districts of said town, each district to receive an amount in proportion to the number of scholars attending school; no fractional district to receive the benefit of the bequest.
At the time of the execution of the will, and at the death of the testator, the law in relation to school districts in the town was R. L., s. 499, reading as follows:
"When the inhabitants of a town can not be conveniently accommodated in one district, such town shall, at a meeting warned for the purpose, divide the town into several districts and determine their limits."
At that time nearly every town in this state had what is called the School District System, and was divided into several districts, generally from two to twenty, each district being a corporation by itself. Whether, at that time, there were more than one school district in the town of Stockbridge is not alleged in the bill, unless argumentatively in the averment that No. 20, Acts 1892, was passed, in effect consolidating all school districts in the town of Stockbridge into one school district. By s. 1, No. 20, Acts 1892, each town was constituted a single district for school purposes, and the division of towns into school districts theretofore existing was abrogated, except for the settlement of their pecuniary affairs; but school districts organized under special acts of the Legislature, were not affected by the act, unless they voted to become a part of the town system. The defendants Whitcomb contend that the then school districts having been consolidated, there was no one to take under the will, and that the distribution of the income of the fund cannot be made in consonance with the requirements of the will, and therefore the bequest is void, as it is coupled with a condition impossible of performance. The gift is not made in terms to the school districts; the testator says:
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