Sargent v. Cornish , 54 N.H. 18 ( 1873 )

Foster, J.

Municipal corporations may be the objects of public and private bounty. Legacies of personal property, directly to the corporation for benevolent or public purposes, are valid in law, in the absence of disabling or restraining statutes. Dillon Muu. Corp., sec. 436.

Towns in this state “ may purchase and hold real and personal estate for the public uses of the inhabitants.” Gen. Stats, ch. 34, sec. 3. Not only may municipal corporations take and hold property in their own right, by direct gift, conveyance, or devise, but such corporations, at least in this country, are capable, unless specially restrained, of taking property, real and personal, in trust, for purposes not foreign to their institution, and not incompatible with the objects of their organization. And equity will compel such corporations to execute any lawful trusts which may be reposed in them. 2 Kent’s Com. *279, *280; Dillon Mun. Corp., sec. 437 and 443, and cases cited in notes; Perry on Trusts, secs. 42, 43; Vidal v. Girard's Executors, 2 How. 127; Perin v. Carey, 24 How. 465; Trustees v. Peaslee, 15 N. H. 331; Chapin v. School District, 35 N. H. 445; The Dublin case, 38 N. H. 459.

In the Girard will case, before cited, Mr. Justice Story remarks, — “If the purposes of the trust be germane to the objects of the incorporation; if they relate to matters which will promote and perfect those objects; if they tend (as the charter of the city of Philadelphia expresses it) ‘ to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness,’ where is the law to be found which prohibits the corporation from taking the devise upon such trust, in a state where the statutes of mortmain do not exist, the corporation itself having a legal capacity to take the estate as well by devise as otherwise ? We know of no authorities which inculcate such a doctrine, or prohibit the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government, and regulation, and powers. If, for example, the testator by his present will had devised certain estate of the value of $1,000,000 for the purpose of applying the income thereof to supplying the city of Philadelphia with good and wholesome water, for the use of its citizens, from the river Schuylkill, why, although not specifically enumerated among the objects of the charter, would not such a devise, upon such a trust, have been valid, and within the scope of the legitimate purposes of the corporation, and the corporation capable of executing it as trustees ?” The learned judge further observes, — “ Neither is there any positive objection, in point of law, to a corporation taking property upon a trust not strictly within the scope of the direct purposes of the institution, but collateral to them.”

These remarks indicate the views of that eminent jurist that the scope of the purposes of a municipal organization is exceedingly broad and comprehensive. It is manifest that a municipal or other corporation should not be permitted to take and execute trusts for objects “ utterly dehors the purposes of the incorporation ; ” but we fail to recognize any reason why its capacity in this respect should be limited to objects technically denominated charities or pious uses, or to religious or educational purposes; or,indeed, why it should be circumscribed by any other limitations than such as should exclude inconsistent, incompatible, and improper objects.

It would seem to be impossible to prescribe in definite terms the almost innumerable objects of a liberal bounty, with which a town might be advantageously and happily endowed, directly or in trust. It wpuld probably be agreed by all, that a town in this state may hold property in trust for educational purposes. And what are they ? Not merely the means of instruction in grammar, or mathematics, or the arts and sciences, but all that series of instruction and discipline which is intended to enlighten the understanding, correct the temper, purify the heart, elevate the affections, and to inculcate generous and patriotic sentiments, and to form the manners and habits of rising 'generations, and so fit them for usefulness in their future stations.

And the means of education are not solely books and printed rules and maxims, but representations and symbols and pageantry, it may be. And it may be questioned if the youth of the land do not derive more of instruction in the holy duty of patriotism and love of country from bonfires and illuminations and the display of the old flag of our Union, than from books on the science of government or political economy, or commentaries on the constitution.

Generous men endow our towns with funds for the maintenance of soldiers’ monuments; and every “ decoration day ” we place flowers upon soldiers’ graves; and, suspended in the capitol, the flags of noble regiments from their tattered folds drop eloquent eulogy for the dead, and lessons from their example for the instruction and emulation of the living; and we do not regard any of these things as foreign to the purposes of, nor inconsistent with, our state or municipal organization or policy.

The purpose declared by the testator was the perpetuation in his native town of the “ United States flag,” to “ remind the inhabitants of their bounden duty, to themselves and their fellow-citizens of the whole United States, to so act in harmony with right and justice that no occasion will occur to disturb oxu’ peace and tranquillity in all coming-time.”

This purpose is certainly patriotic and good. The intention of the testator seems to have been “ to educate the rising generation of Cornish to patriotic impulses.” The legal status of a charity is not determined by its practical results, which can seldom be foreseen, and “ this, court cannot say, judicially, that the means adopted by the testator are: not adapted to effect his patriotic purpose.”

Though not directly within the scope of the more appropriate duties, and powers of towns, this bequest and trust, certainly, is not repugnant to the general object of such corporations, and with slight change of phraseology the language of Perley, C. J., in the Dublin case, may well be applied to the present: “ Towns in this state are to be regarded as a coordinate branch of the government, established to advance the general good of the people; and under our constitution no one can entertain a doubt that to maintain [and cherish love for the Union of the states] is an object quite consistent with the general purposes for which towns are created, and that towns have, at least, an indirect interest in promoting [patriotism] within their limits.”

Our conclusion is, that the town of Cornish possesses legal capacity to take and-hold the testator’s bounty in trust for the purposes declared by his will.

We are of the opinion that the case discloses a practical and substantial compliance, by the town, with the condition, upon the performance of which the vesting in it of the legacy depends.

Since the town, though capable of holding the fund for the purpose designated, has not the power of raising money by taxation for the purpose of executing the trust, it can only make the fund available by appropriating a portion of the income to expenses necessarily incidental to the use, and without which the legacy and the trust must fail.

The testator, knowing the law, and intending, of course, to make a valid bequest, must have also understood and intended (since he provided no additional fund for the purpose) that the government tax should be paid out of the fund, and that a portion of its income should be appropriated to the furnishing of the indispensable appurtenances and paraphernalia without which the flags could not be displayed. If the bequest here is a charity, or analogous thereto, it must receive that liberal construction which courts, whether of law or of equity, employ in such cases — Snell’s Equity 90; and perhaps, if it were necessary in order to support the testator’s design, the doctrine of cy pres might be put in requisition. At any rate, the will is to have a reasonable and not necessarily an exactly literal construction, to effectuate the manifest intention of the testator.

With these views, it becomes unnecessary to consider the question whether the plaintiffs, in their own names, and without the intervention of the executor, could maintain the action, if any cause of action belonged to them. Upon this question, the remarks of Shaw, C. J., in Lawrence v. Wright, 23 Pick. 128, would seem to be pertinent: “ The remedy of any party, in such circumstances, is very simple, — that of taking out letters of administration; and the law arms the administrator with ample powers to obtain the property, in whose custody soever it may be placed. If the property is not of sufficient value and importance to be the subject of an administration, it may, at least, be doubtful whether it is worth litigating about in any other form.”

Case discharged.