Westgate v. Haverhill

Clark, J. The question to be determined is that of appropriation of the income of the fund bequeathed by Samuel F. Southard to the town of Haverhill for educational purposes. A will *595 takes effect as if executed immediately before the decease of the testator, and is to be construed by the law as it then stood (Morey v. Sohier, 63 N. H. 507; Perkins v. George, 45 N. H. 453); but in ascertaining the intention of the testator, a will speaks as of the time it was executed, and account may be taken of all the circumstances surrounding the testator. Jenkins v. Fowler, 63 N. H. 244; Kennard v. Kennard, 63 N. H. 303; Sanborn v. Sanborn, 62 N. H. 631; Kimball v. Lancaster, 60 N. H. 264. The purpose of the testator in making the bequest was to improve the efficiency of all the schools in the town of Haverhill for the benefit of the scholars attending them, and with this object in view he desired to distribute the income of the fund equally among the school districts. He accordingly made the bequest to the town, and authorized an annual distribution of the income thereof equally among the districts for the support of schools, thus conferring upon the town the power of making the annual division. The bequest having been made for the benefit of the scholars, the only equal distribution that can be made ®f the income is a ■division according to the number of scholars in each district. The number of districts is immaterial. The interest of the fund is payable to the school districts because they are charged with the maintenance and management of the schools. If there were now twenty districts in the town, as was the case when the will was executed, the interest of the fund would be divided into twenty parts and distributed among the districts, so that all might share in it. As there have been since March, 1886, but two districts in the town managing all the schools, the income of the fund should be divided equally between them and paid over to the officers of the districts; and it would seem that the only equal division that can be made is one according to the number of scholars in each district resident in Haverhill. This appears to have been the testator’s view of the method to be pursued in making a distribution of the income of the bequest. He was a resident of Haverhill, he was familiar with the changes in the school districts of that town subsequent to the execution of his will, and as he made no alteration in the language of the will relative to the. division of the income of his bequest, it is reasonable to infer that he did not consider it necessary to do so. The Union High School District is clearly a school district in the town of Haverhill. The income of the fund should be divided between the Union High School District of Woodsville and the Haverhill Town School-district, in proportion to the number of scholars in each resident in the town of Haverhill. Case discharged. All concurred.