Smart v. Town of Durham

• Decision Date: 01 April 1913
• Citation: 86 A. 821,77 N.H. 56
• Parties: SMART et al. v. TOWN OF DURHAM.
• Court: New Hampshire Supreme Court

86 A. 821

77 N.H. 56

SMART et al.

v. TOWN OF DURHAM.

Supreme Court of New Hampshire. Strafford.

April 1, 1913.

Transferred from Superior Court, Strafford County; Plummer, Judge.

Writ of entry by Joseph E. Smart and others against the Town of Durham. Case transferred without ruling on agreed statement of facts. Case discharged.

The plaintiffs are heirs at law of Olinthus Doe. The defendants' title is derived from Doe's will, which directs his executors to pay his just debts and funeral expenses, and then provides as follows: "All the rest, residue, and remainder of all the property of which I may die seised, whether real, personal, or mixed, wherever found and however situate, I give, bequeath, and devise unto the town of Durham aforesaid in trust for the following purposes and uses, to wit: To forever hold and improve all of said property and never under any circumstances to expend any portion of the principal thereof, and first, out of the net income, to use and appropriate so much as shall from time to time be needful, fitting, and proper to care for and keep in repair the cemetery or burial place on my homestead farm in said Durham in good and neat condition, including the graves and gravestones in said burial place, and in all respects properly protected; and secondly, all the rest and remainder of the net income of all my said property shall be applied and expended from year to year forever in the support and maintenance of the common schools in said town of Durham; and I especially stipulate, order, and direct that said town of Durham shall in no event sell my homestead farm in said Durham." It will require $50 to put the cemetery into the condition required by the will and $3 annually thereafter to maintain it. Besides the testator's grave, there are in the cemetery ten graves of his ancestors or relatives, all of the name of Doe, and nine unnamed graves.

Foster & Foster, of Portland, Me., and Pierce & Galloway, of Dover, for plaintiffs.

Kivel & Hughes and Robert Doe, all of Dover, for defendant.

PARSONS, C. J. After directing the trustees "first, out of the net income, to use and appropriate so much as shall from time to time be needful, fitting, and proper to care for and keep in repair the cemetery or burial place on my homestead farm in said Durham in good and neat condition, including the graves and gravestones in said burial place, and in all respects properly protected," the testator in imperative terms commands that "all the rest and remainder of the net income of all my said property shall be applied and expended from year to year forever in the support and maintenance of the common schools in said town of Durham." The testator presumably knew the extent of his property, the income probably derivable from it, and the small sum necessary to execute his wishes as to the cemetery. His main purpose, therefore, must have been to benefit the schools in the town of Durham, and to effect that purpose he required that all of the income which should not be expended in the care of the cemetery should "from year to year" be applied for the support of schools. That the latter is a valid gift in charity is conceded.

The plaintiffs claim the land upon the ground that, as they say, the trust for the care of the cemetery and graves is a private trust and void, and that the charitable trust depends upon the former and must fail with it. But there is no such dependence of the trust as to the residue upon the former as to render the latter incapable of execution if the former cannot be carried out. The amount required to be expended in the first trust is ascertainable. It has been found to be $3 a year. Hence the testator's purpose was that of the income of his property $3 each year should be expended for the cemetery and the balance for schools.

The established rule of the English cases, also approved in this country, is: If an ascertainable portion of a fund or an estate be given on a void trust and the residue on a good trust, the residue has the benefit of the failure of the prior trust. St. Paul's Church v. Attorney General, 164 Mass. 188, 196, 41 N. E. 231; Dexter v. Harvard College, 176 Mass. 192, 196, 57 N. E. 371; Chase v. Dickey (Mass.) 99 N. E. 410; Kelly v. Nichols, 17 R. I. 306, 21 Atl. 906; Tyssen, Char. Beq. 87, 88, 468. Judge Gray says in Jones v. Habersham, 107 U. S. 174, 183, 2 Sup. Ct. 336, 344 (27 L. Ed. 401): "In England there has been a difference of opinion upon the question whether the maintenance and repair of the tomb or monument of the donor is a good charitable use. Down to the time of the American Revolution, as by the civil law, it appears to have been held it was. * * * According to the later English cases, it is not." To the same effect is Professor Gray in 15 Harv. Law Rev. 517. See Tyssen, Char. Beq. c. 7. The public purpose served by monuments and gravestones, for the assumed want of which the later cases have deemed gifts for their erection and maintenance private and hence not charitable, is declared in the Third Institute, cited by Judge Gray, where it is said: "These monuments do serve for four good uses and ends. First, for evidence and proof of descents and pedigrees. Secondly, what time he that is there buried deceased. Thirdly, for example, to follow the good, or to eschew the evil. Fourthly, to put the living in mind of their end, for all the sons of Adam must die." 3 Co. Inst. *202, *203. In this country, in the absence of a statute, the decisions appear to have followed the lead of the later English cases. Piper v. Moulton, 72 Me. 155; Bates v. Bates, 134 Mass. 110, 45 Am. Rep. 305; Kelly v. Nichols, 17 R. I. 306, 21 Atl. 906; Coit v. Comstock, 51 Conn. 352, 50 Am. Rep. 29.

It is the duty of the court to give effect to the intention of the testator as to any legal purpose. Adams v. Page, 76 N. H. 96, 79 Atl. 837; French v. Lawrence, 76 N. H. 234, 81 Atl. 705. If the testator knew that coupling a direction to keep the graves of himself and his ancestors "in good and neat condition, * * * and in all respects properly protected," with the main purpose of his will would defeat that purpose and turn all his property over to these plaintiffs, whom, so far as the will shows, he did not intend should have it, his...