Town Of Bristol v. Nolan, 1740.

• Citation: 53 A.2d 466
• Decision Date: 08 May 1947
• Docket Number: No. 1740.,1740.
• Parties: TOWN OF BRISTOL v. NOLAN, Atty. Gen., et al.
• Court: United States State Supreme Court of Rhode Island

53 A.2d 466

TOWN OF BRISTOL

v.NOLAN, Atty. Gen., et al.

No. 1740.

Supreme Court of Rhode Island.

May 8, 1947.

Case Certified from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Bill in equity by Town of Bristol against John H. Nolan, Attorney General, and others, to obtain construction of a deed as a gift creating a charitable trust. Testimony taken and cause and certain questions of law certified to Supreme Court upon motion of complainant.

Decision in accordance with opinion.

Ernst T. Voigt, Lucien Capone, and Voigt, Wright & Clason, all of Providence, for complainant.

John H. Nolan, Atty. Gen., James F. McCoy, of Pawtucket, and James J. Fogarty, Jr., of Providence, for respondents.

FLYNN, Chief Justice.

This bill in equity is before us on a certification under General Laws 1938, chapter 545, § 7. It was brought by the town of Bristol primarily to obtain a construction of a deed executed by Nathaniel Byfield, late of Bristol, Rhode Island, deceased, on the ground that such deed was a gift creating a charitable trust. The respondents are the heirs of the grantor Nathaniel Byfield and the attorney general of this state.

Service by publication was ordered and made upon the heirs; and after none of them had filed appearance, demurrer or answer, a decree pro confesso was entered in the superior court against all of them.

A guardian ad litem was duly appointed to represent unknown and unascertained persons having any possible interest in the land, and he and the attorney general each filed an answer submitting to the protection of the court the interests represented by them.

Testimony was then taken and when the cause was ready for hearing for final decree, the cause and certain questions of law of doubt and importance were certified to this court, upon motion of the complainant, under G.L.1938, chap. 545, §§ 6 and 7.

The bill of complaint alleges the following facts, which are undisputed: The deed in question was executed by Nathaniel Byfield on August 31, 1714, and was duly recorded on June 8, 1715. It conveyed to ‘John Nutting the present grammer Schoolmaster of the said Town of Bristol & to the grammer Schoolmaster of the said Town for the time being’ several large tracts of land therein described which were situated in the county of Bristol in the province of Massachusetts Bay in New England. These tracts, however, are now within the limits and control of the town of Bristol in the state of Rhode Island. The consideration recited in the deed is as follows: ‘* * * for and in consideration of a due regard which I have for the advancement of Learning & good education of children, and more particularly to encourage the same within the Town of Bristol * * *.’

The habendum clause shows a conveyance to ‘John Nutting & to the present grammer Schoolmaster of the said Town of Bristol for the time being forever for their support for the instruction of the children of the said Town of Bristol in good Literature & Education * * *.’ Following this language and the usual covenants such clause continues as follows: ‘Provided always, and it be the meaning and intent hereof that if the said Town shall neglect to place a good sufficient grammer Schoolmaster in the said Town at the death or removal of any schoolmaster for the time being for the space of twelve months after the said death or removal, that then the aforesaid granted commonage & house lots with the appurtenances shall revert to me the said Nathaniel Byfield & my heirs as fully & effectually as if this present deed of gift had not been made & executed.’ Thereafter appear the attestation, signature, seal and acknowledgment.

At the time of the conveyance there were approximately three hundred freemen and no public school system in the town of Bristol. The education of the young children was accomplished by a schoolmaster for the time being who came to live there and to tutor the children in their homes. From 1714 to date the advancement of learning and good education in said town has been carried out continuously through the schoolmaster grantee, through his successors in that position, and later through other duly appointed agents of the town who performed the duties formerly discharged by the schoolmasters as required by the deed.

The land conveyed by the deed has been leased and the income therefrom has always been kept by the town in a special trust account. This income has been expended solely for the education of the children in the town in accordance with the provisions of the deed. The present income from such leasing is approximately $1200 a year. The town, however, alleges that more income and hence greater aid to education could be realized if the land were to be sold and the proceeds were invested in a trust fund to be administered by the town as trustee for the purposes set forth in the deed. To that end the present bill in equity was brought and, according to complainant, seeks primarily a construction of the deed and instructions to the town as the alleged trustee thereunder.

At the outset it should be noted that these certifications, purportedly made under §§ 6 and 7 of chap. 545, cannot both be valid in this cause. Certification under § 7 is properly made only when the bill in equity is brought solely for the construction of a will or deed, or for instructions to a trustee thereunder. Maddalena v. Masso, 48 R.I. 92, 94, 135 A. 601; Gaboriault v. Gaboriault, 68 R.I. 435, 28 A.2d 744. Under that section, when the cause is ready for hearing for final decree, the superior court must certify the whole cause for determination by this court. United States Trust Co. v. Tax Assessors of City of Newport, 47 R.I. 420, 133 A. 802; Gould v. Trenberth, 59 R.I. 220, 194 A. 736. Under section 6 certain questions of law of doubt and importance, when properly brought upon the record, may be certified. But in general such questions must be raised prior to the trial thereof on its merits, or upon a motion in arrest of judgment; and they must be necessarily involved in the ruling or decision upon the particular issue then pending for decision by the superior court. Fletcher v. Board of Aldermen of City of Newport, 33 R.I. 388, 81 A. 193; Easton v. Fessenden, 63 R.I. 11, 6 A.2d 714; Spaulding v. Martin, 66 R.I. 367, 19 A.2d 305.

Thus these two sections deal with different matters and from their nature both cannot validly come up on a bill brought solely for the construction of a trust deed that must be certified under § 7 for determination by this court. However, where a bill in equity was brought primarily for such a construction of a will or trust deed, this court ignored as surplusage the allegations or prayers for other relief and treated the cause as certified under § 7; and we shall treat this proceeding accordingly. Horton v. Horton, 46 R.I. 492, 129 A. 499; Ortman v. Streeter, 67 R.I. 325, 23 A.2d 189.

Five questions appear in the certification as made upon the motion of the complainant, and these will be quoted as they are discussed. The first question reads: ‘Does the gift of Byfield create a charitable trust?’ In our opinion the deed in question was a gift and created a public charitable trust. It is true that technical words such as trust, trustee, or charity do not appear anywhere. Nor are particular directions given to the grantee in connection with his carrying out the purpose of the gift, excepting as they are necessarily to be implied from the clearly expressed intent appearing in the deed. The use of such technical words, though usual and advisable, are nevertheless not always essential to create a public charitable trust. Such a trust may be given effect if the language in a deed makes clear the grantor's intent to provide a gift in trust for a public charitable purpose. City of Providence v. Payne, 47 R.I. 444, 134 A. 276.

The language of the deed in question makes it clear that the grantor intended to make a gift to be held and used for the purpose of promoting public education among the children in the town of Bristol. The land was not given to the grantee and his successors for their use without qualification; but it was given to them only as schoolmasters for the time being for their support for the express purpose of thereby enabling them to bring educational instruction to the children of the town. In other words, this use of the land by a schoolmaster for the time being was indispensable to the accomplishing of the object of the gift.

This court has held that a gift to promote free public school education among the inhabitants of a district is to be considered as one for a public charitable use that is highly favored in the law. Town of South Kingstown v. Wakefield Trust Co., 48 R.I. 27, 134 A. 815, 48 A.L.R. 1122. The same substantial principle seems to run generally through the cases on this subject, which are collected in the annotation in 48 A.L.R. 1126-1137.

In our opinion the intent of the grantor and the object of the gift are clearly expressed in...