State v. Rand

• Decision Date: 08 November 1976
• Citation: 366 A.2d 183
• Parties: STATE of Maine v. Clarence W. RAND et al.
• Court: Maine Supreme Court

Page 183

366 A.2d 183

STATE of Maine v. Clarence W. RAND et al.

Supreme Judicial Court of Maine.

Nov. 8, 1976.

Lester A. Olson, Asst. Atty. Gen., Dept. of Transportation, Augusta, Ronald M. Roy, Chief Counsel, Land Damage Board, Winslow, for plaintiff.

Jensen Baird Gardner Donovan & Henry by George S. Isaacson, Kenneth M. Cole, III, Portland, for Clarence and Miriam Rand.

William J. O'Brien, Jr., Charles A. Lane, Portland, for City of portland.

Before DUFRESNE, C. J., and WEATHERBEE, ^* POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WERNICK, Justice.

The State of Maine, acting through its Department of Transportation (Department), took by eminent domain-for use in the construction of Interstate 295-a triangular parcel of land at Winslow Street and Forest Avenue in the City of Portland which the City had held, and maintained, as 'Winslow Park.' Following a 'blanket' award by the Land Damage Board of $30,000 as just compensation for the taking, the Department brought a civil action of interpleader (Rule 22 M.R.C.P.) in the Superior Court (Cumberland County) for an adjudication of the proper distribution of the award. ¹ Named as defendants were the City of Portland, grantee under a 1903 deed conveying the property to the City for use as a park, and Clarence W. Rand and Miriam D. Rand stipulated to be the sole surviving heirs of Miriam Winslow, the grantor of the 1903 deed.

The Justice presiding in the Superior Court decided: (1) the 1903 conveyance created a charitable trust, (2) the Department's exercise of eminent domain had caused failure of the trust, and (3) there could be no cy pres administration of the trust because the donor had no general charitable intent.

Judgment was entered, pursuant to the order of the presiding Justice, adjudicating that defendants Rand were entitled to the $30,000 fund. The City has appealed from the judgment. ²

We sustain the appeal.

The following facts are stipulated.

In early January, 1903, Miriam Winslow, then of Woodstock, Vermont, conveyed to the City of Portland by quit claim deed the triangular parcel of land which became 'Winslow Park.' Miriam Winslow's parents were James N. and Ella M. Winslow who had resided in the neighborhood in which the 'Winslow Park' land was situated. Miriam Winslow herself had lived in the vicinity of the 'Winslow Park' land during her parents' lifetime.

The deed recited that Miriam Winslow conveyed the parcel

'in further consideration of my love and affection for my . . . parents, and to perpetuate their memory, . . ..'

It also contained the following proviso:

'Provided, however, that this conveyance is made upon the condition that the premises herein described shall be forever held and maintained by said City of Portland as a public park to be named Winslow Park, the same to be improved and cared for under the direction and supervision of the Park Commissioners of said City of Portland, the work of improvement of said premises to be begun on or before June 1st. A.D. 1903, and completed within two years from said date, otherwise, said premises shall revert to the grantor. And it is my wish that there shall be placed and forever maintained at some suitable point within said park a tablet of stone or bronze bearing an inscription in substance as follows:

'Winslow Park. Presented to the City of Portland January 1, 1903, by Miriam Winslow in Memory of her parents James N. Winslow and Ella M. Newhall Winslow.'

By resolve of its Council dated January 5, 1903, the City of Portland accepted the conveyance and complied with its directions until the date of condemnation. Should the City receive the $30,000 fund, it will construct a new 'Winslow Park' at the intersection of Baxter Boulevard and Preble Street Extension (within a mile of the original location) and there install the original commemorative plaque in honor of Miriam Winslow's parents.

The City contends that the Winslow deed effected a conditional gift under which the City became the holder of a fee simple determinable with a possibility of reverter in Miss Winslow (and her heirs). ³ On this theory the City claims that it should be paid the entire condemnation award because the interest held by the Rands is too remote and speculative to be compensable. See, e. g., United States v. 53 1/4 Acres of Land, 139 F.2d 244 (2nd Cir. 1943); Restatement of the Law, Property § 53(b). In the alternative, the City views the Winslow deed as creating a charitable trust and maintains that the presiding Justice erred in holding that there could be no cy pres administration of the trust.

The Rands counter with alternative contentions. Should the transfer be deemed a conditional gift, they maintain that circumstances peculiar to this case give them a compensable interest in the condemnation proceeds. Even more strenuously, however, the Rands assert the Winslow deed created a charitable

trust of a nature precluding cy pres administration. I-The

Scope of the City's Authority to Receive the Winslow Conveyance

Two sets of statutes ⁴ in effect in 1903 precipitate a preliminary question whether there can be merit in the alternative 'charitable trust' contention presented both by the City of Portland and the Rands. These statutes indicate, at least facially, that only if Miriam Winslow's proffered gift of land was a 'conditional gift' would there have been lawful authority in the City to take and maintain it.

The earlier of these statutory sets, codified in 1903 as R.S.1883, Chapter 3 §§ 51-54, (hereinafter the 'money . . . in trust' statute) was enacted in substantially the same form as P.L.1873, Chapter 92 §§ 1-4. It provided:

'Sec. 51. Any city or town may receive money by donation or legacy in trust for benevolent, religious, or educational purposes, for the erection and maintenance of monuments, and for the benefit of public cemeteries and lots therein; provided, that the city or town lawfully consents.

'Sec. 52. Interest shall be allowed if the fund is used by the city or town; otherwise it shall be placed at interest or income, the city or town being responsible for its security.

'Sec. 53. The city or town, by its officers or agents, shall apply the fund or its income in accordance with the written directions of the donor or testator, made known at the time when the fund was accepted.

'Sec. 54. If the city or town fails to apply the fund or its income at the times and for the purposes prescribed in said directions, it reverts to the donor, if living; otherwise, to his heirs.' (emphasis supplied)

Also in effect in 1903 was P.L.1887, Chapter 11 §§ 1-2, as amended by P.L.1899, Chapter 44 §§ 1-2 (hereinafter the 'conditional gift' statute). ⁵ This statute stated:

'Section 1. Whenever the municipal officers of any city or town are notified in writing by the executors of any will, or by the trustees created by virtue of the terms thereof, that a devise or bequest has been made upon conditions by the testator of said will or by and individual, that he intends to make a conditional gift, in behalf of said city or town the municipal officers of said city or town, shall, within sixty days after said notice to them, call a legal meeting of the inhabitants of said city or town qualified to vote upon city or town affairs. Said municipal officers shall give public notice in their warrants, of the objects of said meeting, and such other notice as said municipal officers shall deem proper. At such meeting, the said inhabitants shall vote upon the acceptance of said devise or bequest or conditional gift, and if a majority of the legal voters present, then and there vote to accept said devise or bequest or conditional gift, in accordance with the terms contained in said will, and upon the conditions made by the testator or by said individual, said municipal officers of said city or town, shall forthwith notify said executors or trustees, or individual, in writing, of said acceptance by said city or town aforesaid, or the non-acceptance thereof.

'Section 2. Whenever the executors or trustees or said individual, under any will have fully discharged their duties respecting the payment, delivery or otherwise or any devise or bequest, or conditional gift, to said city or town; and said city or town have accepted said devise and bequest or conditional gift in accordance with the conditions of said will or the terms of said conditional gift as set forth in section one of this chapter, then said city or town shall perpetually comply, and strictly maintain and keep all the conditions and terms contained in said will or said conditional gift by virtue of which said devise or bequest or conditional gift was so made, and any city or town so accepting said devise or bequest, or conditional gift and receiving the same, or enjoying the benefits therefrom, is hereby authorized to raise money to carry into effect the requirements and terms of said will or said conditional gift by virtue of which said devise or bequest or conditional gift was so accepted and received. The provisions of this chapter shall apply only to devises and bequests and gifts, devised and bequeathed or given to cities and towns for educational, benevolent and charitable purposes and objects, or for the care, protection, repair and improvement of cemeteries owned by said cities or towns.' (emphasis supplied)

It is plain from the words underscored that the former of the above statutes mentions only 'money' as the proper subject-matter of a gift in 'trust' (emphasis supplied) whereas the latter authorizes any kind of property as the proper subject-matter of a 'conditional gift.' If, therefore, by these statutes the Legislature intended to delineate the exclusive methods by which municipalities were authorized to receive gifts of land, the City of Portland had lawful authority in 1903 to accept Miriam Winslow's conveyance of land only

if it was a conditional gift rather than the establishment

of a trust. I-A. The Legal Framework Which

Existed...