Trustees of Pembroke Academy v. Epsom School District

The plaintiffs' first position is that the words of the bequest are merely precatory, and therefore there is no enforceable obligation to carry out the wish expressed by the testator concerning the application of the income of the fund. "The words `desire,' `request,' `recommend,' `hope,' `not doubting,' that the executor will conduct in a specified manner, when they come from a testator who has the power to command, are to be construed as commands, clothed merely in the language of civility; and they impose on the executor a duty which courts have in repeated instances enforced." Erickson v. Willard, 1 N.H. 217, 229. "Precatory words in a will, equally with direct fiduciary expressions, will constitute a trust. `Technical language is not necessary to constitute a trust. It is enough if such intention is apparent.' 1 Per. Tr. (3d ed.), s. 114, note." Foster v. Willson, 68 N.H. 241, 242. These authorities seem applicable here. The intent of the testator was to direct the disposition of the income of the fund. It was a command "clothed merely in the language of civility."

What disposition shall be made of the income under the changed circumstances? The plaintiffs suggest that they should apply it to their general purposes, wherein the intended beneficiaries may have a share, as was done in Adams Female Academy v. Adams, 65 N.H. 225. The Epsom school district claims that the income should be applied according to the strict letter of the bequest, thereby relieving its taxpayers, while but slightly, if at all, aiding those the testator had in mind. No brief has been filed in behalf of the "poor boys in Epsom." But their interest is here paramount, and the fund is to be so administered as to aid them, rather than the trustee designated in the will, or those who pay taxes in Epsom. It seems that this can easily be done by applying the income to scholarships for boys designated in the manner pointed out in the will. Free tuition will not always enable a poor and deserving boy to attend an academy. He may need further assistance. Furnishing this will comply exactly with the wish of the testator.

It does not appear that this plan has been considered by the parties. They may apply to the superior court for further findings, if such course is deemed essential to the final disposition of the case. As the matter is now presented, only the general outline of what is to be done can be determined.

Case discharged.

All concurred.