Wilbur v. University of Vt., No. 139

• Docket Nº: No. 139
• Citation: 129 Vt. 33, 270 A.2d 889
• Case Date: September 10, 1970
• Court: United States State Supreme Court of Vermont

Page 889

270 A.2d 889 129 Vt. 33 Martha C. WILBUR and James B. Wilbur, III
v.
The UNIVERSITY OF VERMONT and State Agricultural College, Defendants,
The United States of America and The Library of Congress
Trust Fund Board, Intervenors. No. 139. Supreme Court of Vermont. Sept. 10, 1970.

[129 Vt. 35]

Page 891

Fitts & Olson, Brattleboro, for plaintiffs.

Black & Plante and George W. Ray, Jr., White River Junction, Latham & Eastman, Burlington, for The University of Vermont and State Agricultural College.

George F. W. Cook, U. S. Atty., for the United States and The Library of Congress Trust Fund Board, intervenors.

Before [129 Vt. 33] HOLDEN, C. J., SHANGRAW, SMITH and KEYSER, JJ., and GREGG, District Judge.

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[129 Vt. 35] HOLDEN, Chief Justice.

The purpose of this action in chancery is to terminate a charitable trust and compel the reversion of its assets to the residuary estate of the deceased donor. The cause comes to this Court for the second time, as an appeal before final judgment. As before, we are asked to reject the appeal for procedural reasons.

When the case was previously here, it was remanded to allow the chancery court to hear and determine the petition of the United States of America and the Library of Congress to intervene. The defendant was granted a limited time from the chancellor's order on the intervention 'to procure proper certification of specific questions of law for determination by this Court according to the provisions of 12 V.S.A. § 2386.' Wilbur v. University of Vermont, 127 Vt. 283, 286, 247 A.2d 897, 899.

The directives in the remand have been accomplished. However, the plaintiffs now contend that the appellants have not [129 Vt. 36] procured proper certification of the questions arising from the lower court's refusal to dismiss the complaint. The impropriety is claimed in that there has been no hearing on the drafting of questions of law and the plaintiffs received no notice of the questions proposed by the defendants for our review.

Neither the statute nor rule of court, governing appeals before final judgment, require such notice and hearing. 12 V.S.A. § 2386, supra; 12 V.S.A. App. I, Pt. I, R. 2, § 2. Beyond that, the plaintiffs were heard on whether the cause should be certified as an interlocutory appeal. See, Wilbur v. University of Vermont, supra, 127 Vt. at 284, 247 A.2d 897. The cause was returned to the chancellor for hearing on the motion to intervene. Our examination of the record fails to disclose any request by the plaintiffs to be heard in the matter of the context of the specific questions for review until after the cause was returned to this Court. On this state of the record there is no justification to reject the appeal on the grounds stated.

The plaintiffs further object, contending that the facts which underlie some of the questions presented have been put in issue by the defendants' answer. But this is no obstacle. The responsive pleading concludes with a challenge to the sufficiency of the complaint and seeks to dismiss the action for failing to state a claim upon which relief can be granted. This is consistent with 12 V.S.A. § 1034(6). This aspect of the motion raises the same questions of law formerly reached by demurrer. In reviewing the order of the lower court, in refusing to dismiss, the facts alleged and exhibited with the complaint are taken to be true. Price v. Rowell, 121 Vt. 393, 395, 159 A.2d 622. In the same way, the answers to the questions certified are to be given in the context of the facts as stated in the complaint.

The subject of the complaint is the University of Vermont Trust, founded by James B. Wilbur by his indenture of March 5, 1928. The donor died testate August 28, 1929. His last will, executed in 1927, makes no reference to the trust. The donor was survived by his son James B. Wilbur, Jr., to whom he bequeathed his residuary estate.

The junior Wilbur died in 1933. The plaintiff, Martha C. Wilbur, is the widow of James, Jr. Her co-plaintiff James B. [129 Vt. 37] Wilbur, III, is his son. They are life tenant and remainderman, respectively, in the residuary estate of James B. Wilbur, Jr. The plaintiffs, as heirs of the donor's residuary legatee, claim there has been a violation of the terms of the University of Vermont Trust which entitle them to the trust property.

The trust instrument of March 5, 1928, directed the trustee, Bankers Trust Company of New York City, to hold the trust property and pay the income to the donor during his lifetime. At his death the trustee was directed to set aside certain portions

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of the total fund to establish five separate trusts for the benefit of five designated beneficiaries for and during their respective lives. James B. Wilbur, Jr., was one of the life beneficiaries so designated.

Each of these trusts had a common provision that upon the death of the beneficiary-'* * * the Trustee shall pay and transfer the moneys and securities constituting said trust fund to the Trustee as Trustee of the trust hereinafter described as the 'UNIVERSITY OF VERMONT TRUST' or if that trust be not then in existence, such trust fund shall be disposed of as provided in article SEVENTH hereof.'

Article SEVENTH of the supplemental indenture provides:

The University of Vermont Trust, hereinabove referred to shall not be created unless the Legislature of Vermont pass a law limiting the number of students attending the University of Vermont in any one year to one thousand, and no students from outside the State to be admitted until after native born Vermont students, who apply and qualify, are admitted, or the Trustees of the University of Vermont, if they have the authority to do so, pass a similar resolution. This number of one thousand may be added to at the rate of two hundred and fifty for every one hundred thousand increase in the number of inhabitants of the State over the United States census taken in 1920, as determined by the best available information obtainable in the State of Vermont.

As soon as this provision is carried out by the Legislature of Vermont or the Trustees of the University, the Trustee shall constitute and set up the trust to be known as the 'UNIVERSITY OF VERMONT TRUST' for the purposes and in the manner and on the conditions set [129 Vt. 38] forth in this indenture. The income of the trust fund is to be paid over to said Trustees of the said University of Vermont to be expended by them as hereinafter directed, and after the expiration of a period of ten (10) years from the date of the setting up of this trust, the Trustee or any Substituted Trustee shall deliver and pay over to the Trustees of the said University of Vermont the assets then constituting the principal of the trust. If by reason of any law of the State of New York, or for any other reason, the Trustee under this deed of trust cannot carry out the terms of the trust herein provided, or if it or any Substituted Trustee declines to carry out the provisions of this article numbered SEVENTH (providing the above-mentioned conditions have been complied with by the State Legislature or the Trustees of said University), it shall nevertheless turn over to the Trustees of the University of Vermont the securities and funds composing said University of Vermont Trust, and the function of this trust shall thereupon devolve upon the said Trustees of the University of Vermont, who shall expend the income of said trust fund as herein directed.

The Trustees of the University of Vermont are to use the income of said trust in defraying the reasonable living expenses and cost of education, of such character as is hereinafter mentioned, of pupils of the public schools of the State of Vermont, in accordance with the directions hereinafter given.

The pupils constituting the class so to be benefited by the use of the income of said trust as herein described, are to be such pupils, either male or female, as shall be residents of the State of Vermont. The said pupil shall be certified by the principal or teacher of the school which said pupil has attended with reasonable regularity during a consecutive period of not less than six months within the two years...