Newton v. Healy, Attorney General

Beach, J. We are not able to construe the terms of the trust as authorizing the expenditure by the trustees of any part of the principal of the trust fund for the purpose contemplated; and it is not very confidently contended that such authority can be read into the will by any process of construction merely. The authority given to the trustees as to the remainder of the corpus of the trust after the death of the testator’s widow, is “to hold, exchange, invest and reinvest the remainder thereof, changing the investments from time to time as they may think proper; and to expend the income thereof” for the purposes already stated. It is the income only which is to be so expended. The subsequent provision authorizing the trustees “if at any time a corporation or association shall be formed for the purpose of maintaining an academy or high school ... to commit said trust funds to such corporation or association,” is wholly inapplicable to the town, and contemplates the possible establishment of an endowment for maintenance out of income. As to the expenditure of the income the trustees are given a wide discretion, though always limited to the manner *10 of carrying out the testator’s intent. Stating that intent in the broadest possible way, it was to establish a permanent trust fund of which the income should be expended “to increase the educational facilities for the children.” The main contention of the trustees is that the primary purpose of the testator was that the income should be expended in providing, or assisting in providing, higher educational facilities in that part of Durham north of Mill Bridge; and that because of the condemnation of the present school building, and the inability of the town to provide such facilities in the new building now being erected in that part of the town, the larger purposes of the testator will fail, unless the Superior Court applies the cy pres doctrine, or the doctrine of approximation, and authorizes the trustees to expend principal instead of income in carrying out the testator’s intent. It is now certain that the Superior Court, as a court of equity, possesses the power to carry out the general intent of the donor of a testamentary charitable trust, when clearly manifested, though the particular form or manner pointed out by the testator cannot, because of changed conditions, be followed. Woodruff v. Marsh, 63 Conn. 125, 136, 26 Atl. 846; Hayden v. Connecticut Hospital for Insane, 64 Conn. 320, 324, 30 Atl. 50; Bridgeport Public Library and Reading Room v. Burroughs Home, 85 Conn. 309, 320, 321, 82 Atl. 582; First Congregational Soc. v. Bridgeport, 99 Conn. 22, 31, 121 Atl. 77. “To hold this is in no sense to invoke the English sign manual crown prerogative doctrine of cy pres. It is only to apply the judicial principle of construction to ascertain and effectuate intention, . . . as this court has done in previous cases.” Hayden v. Connecticut Hospital for Insane, supra. The modified doctrine of cy pres, or of approxima *11 tion, which, we have adopted, arises out of and is limited by the necessities of the particular case, and it exists only when, and in so far as, the specific method adopted by the testator for carrying his general intent into effect can no longer be executed. In such cases the necessity of preserving and effectuating the general charitable purpose of the testator justifies the substitution of a method which seems to be as nearly approximate as existing conditions will permit. Keen v. Eastman, 75 N. H. 191, 72 Atl. 213; Philadelphia v. Girards Heirs, 45 Pa. St. 9; Allen v. Trustees of Nasson Institute, 107 Me. 120, 77 Atl. 638; 5 Ruling Case Law, p. 365; In re Weir Hospital, L. R. (1910) 2 Ch. Div. 124; 14 L. R. A. (N. S.) note, pp. 59-65. We are of the opinion that the complaint does not make out a case for the application of this doctrine so as to authorize the trustees to make the contemplated expenditure out of principal. The testator’s directions as to the method of expending the income of the trust fund are not so specific as to warrant the conclusion that they can no longer be carried out. He first directs that it be expended in maintaining or assisting in maintaining any school north of Mill Bridge which shall provide education for advanced scholars; and then, as if contemplating the possibility that no such school might at all times exist, states his intent in more general language, saying: “My intent is not to diminish the amount applied by the. town or any school district for its schools, but to increase the educational facilities for the children; and I direct this trust to be administered by the trustees according to their best judgment for the carrying out of these purposes, but intending to leave the manner of carrying it out to their discretion.” Under this provision, and in the absence of any suitable educational facilities north of Mill Bridge in the town of Durham, it seems that the trustees *12 might, as the complaint itself suggests, continue to expend the income in providing increased educational facilities for the children of the town, by paying for their travel and tuition in the high school of another town. The present financial inability of the town is not necessarily a permanent condition, nor is it certain that the contingency, to which the testator looked forward, of a corporation or association being formed for the purpose of maintaining an academy or high school north of Mill Bridge, may not yet be realized. It is not impossible that the specific intent of the testator as to the application of income may hereafter be carried out, and in the meantime the discretionary powers given to the trustees are sufficient to enable them to carry out the general charitable purpose of the testator. Question D is answered in the negative, and the Superior Court is advised not to authorize the trustees to make the expenditure contemplated. In this opinion the other judges concurred.