Luques v. Inhabitants of Dresden

Dankobth, J. The answers to the first three questions propounded in this bill, depend upon the construction of the item in the will which is as follows : "I give, bequeath and devise unto the town of Dresden, in the county of Lincoln, to have and to hold forever in trust, and upon the conditions hereafter stated, all my real estate situated in the town of Dresden, and all meeting house property in said town owned by me. Also in addition to the above, the sum of five thousand dollars, provided that the said town of Dresden shall create and establish a fund of three thousand dollars, to be known as the Lithgow Pine Grove cemetery fund, to be kept in trust, and held (in trust) by said town, the interest of which shall be paid annually to the owners or proprietors of said cemetery forever, to be by them applied to keeping the same in good order and condition, with a good fence around the w'hole lot. Provided further, also that [190] twelve dollars of said interest shall be expended annually, for the purpose of decorating with flowers, &c., for putting and for keeping in perfect order and condition forever, the small lot owned and occupied by my brother, Alfred G. Lithgow, and myself, in said cemetery. This legacy and devise, if accepted by said town of Dresden, upon the conditions aforesaid, a copy of the vote of acceptance shall be filed with my executors, on or before two years from the time of my decease. ” A further provision is that " should any one of the aforesaid devisees or legatees refuse to accept the devised estate upon the conditions named in said devise, then such parts, together with the remainder of my estate, I then give, bequeath and devise one-half to the said town of Dresden, and the remaining half to the city of Augusta. ” That the testator intended by the above named legacy and devise, to secure the establishment of a fund, the income of which was to be appropriated to the repair of Pine Grove cemetery, is clearly enough expressed; the amount of that fund is left in uncertainty. On the one hand, it is claimed that it was to be the real estate with the five thousand and three thousand dollars, and on the other, that it was but three thousand dollars. There are serious difficulties in either view. If the former is correct, then' the town has rejected the legacy. The acceptance of the " legacy and devise” in the manner designated in the will, is a condition precedent, without the performance of which, the town would not be entitled to receive it. There was an attempted performance, but the vote of the town filed distinctly rejected the " devise” of real estate. If that constituted a part of the fund from which the income was to come, whether much or little, it was a virtual rejection of the legacy given. It certainly was not an acceptance as required by the condition. The town could not elect a part to accept and a part to reject, but must treat it as a whole. This might be doubtful perhaps, if the real estate was not a part of the fund, for in that case its rejection would not diminish the income, and the testator, or his intended beneficiaries would have no cause of complaint. Was it then a part of the legacy given to the town upon the condition named ? In other words did the testator intend that [191] the land and live thousand dollars should be a part of the fund ■to be established to which the three thousand dollars were to be added by the town, or was the three thousand to be the whole fund which the town might establish from the five thousand dollars and the land ? The latter view is clearly sustained by the language used in the will in the immediate connection with the establishment of the fund. But the whole item in the will must be taken together. The land and the money must be treated as one, as given upon the same trust and the same conditions. Both were given in trust and both upon a condition. That trust was to continue forever. This was recognized by the town for it was on that ground that the land was rejected, that the trust imposed burdens too heavy to be borne. Hence the land would be inalienable, the money must be kept for all time. Whatever is to be done with the income the town could receive no benefit from it, for that which is given in trust is not for the use of the trustee but for that of the cestui que trust, and here no cestui que trust is named except the cemetery. It could not therefore have been given to operate as an inducement, upon the town to create or establish a fund of three thousand dollars, for that which produces no benefit can be no inducement. Besides no apt words to show such an intention on the part of the testator are used. To enable that inference to be drawn there must be something to show that the trust as to the legacy must cease when the fund was established. The language used imposing the burden upon the town tends to the same conclusion. It is that the town shall "create and establish a fund of three thousand dollars to be known,” &c. If the fund was to be taken from the legacy it would be the creation of the legacy rather than that of the town. Certainly the town could in no proper sense be said to have created and established a fund which was given to it by another. It is true that with this construction of the will the legacy was one which the town could not legally accept and perform the condition attached. It will be noticed that the income of the fund is to be "paid to the owners or proprietors of said cemetery.” Hence we must [192] infer, and this inference is confirmed by the answer of the town, that the cemetery is not the property of the town, but of individuals, or a private corporation. Although a cemetery may be one of those things which a town may provide at its own expense, it cannot for that purpose make an assessment for the benefit of one over which it has no control and which operates as a gratuity for the benefit of individuals who may or may not be inhabitants of the town. So too, while the statute R. S., c. 15, § 14, authorizes a town to accept and hold forever a legacy for the benefit of any burial lot or ground, it does not authorize the town to create a fund or a part of a fund for any such purpose. It may seem incredible that any person of so much intelligence, as was the testator in this case, should have made a legacy, not only with conditions which could not legally be complied with, but also such, as in this case, to make it more profitable for the legatee to reject than to accept, and thereby hold out a strong temptation to the legatee to thwart his intention by a refusal to accept. But we are not to construe this, or any other written instrument, in accordance with what we might think it proper to be done, but the-intention must be learned from the language used, and if we are to give this will any other construction than that above indicated, we must omit words that are used and insert others of a very different import. If the testator had intended that the three thousand dollars was to be taken from the five thousand dollars and be the limit of the fund in amount, it would certainly have been easy to have used apt words to express that intention. But he has not done so, and we cannot disregard the language used, and impute to him an intention he has not expressed. It is, however, creditable to the town that at the risk of a considerable pecuniary sacrifice it has made all the efforts possible to accept the legacy, and carry out the known wishes of the testator so far as the law will allow. Under this conclusion that the town has rejected a legacy which it could not legally accept, the next question is what is to bo done with the property so devised ? Upon this point we find no difficulty. The legacy having failed, whether from rejection or illegality is immaterial, the property so devised tails into the [193] residuum. It is clear that the testator intended to dispose of all his property by his will, and that which failed of disposition in any other item must, of necessity be included in the residuary clause. That the residuary devise does not depend upon the acceptance or rejection of any legacy is apparent from the reading of the will. That condition applies only to the legacy rejected, and settles the question as to whether that shall go into the residuum. While, therefore, it may affect the amount disposed of by the residuary devise, it does not affect the validity or force of that devise. The result is, that the city of Augusta and the town of Dresden are the residuary legatees under the will, and are entitled to all the residue including the devise and legacy referred to in the first three questions. As we find no authority given in the will to sell any real estate, the fourth question must be answered in the negative. The two legatees become tenants in common of the real estate disposed of by the residuary clause, and take the personal property in severalty. Decree accordingly. Costs to be a charge upon the estate. Peters, C. J., Walton, Libbey, Emery and Poster, JJ., concurred.