Attorney General v. Briggs

Knowlton, J. The will of Abner Pease contains a provision as follows: “ After the decease of my wife, or when she ceases to be my widow, I give to my said executors during their lives, or the life of the survivor, and after their decease, or should they decline the trust, to the selectmen of Fairhaven in trust, and to their successors in that office, as a fund forever, five thousand dollars, the income of which to be appropriated for the purpose of supporting a school in school district No. 19 in said Fair-haven, called the Pease District. This sum is in addition to a lot of land and schoolhouse thereon which I have already given said district.” It is too clear for discussion that this creates a good public charitable bequest, to the administration of which this court will give all necessary aid. Boxford Religious Society v. Harriman, 125 Mass. 321. Sears v. Chapman, 158 Mass. 400. Russell v. Allen, 107 U. S. 163. The schoolhouse referred to and the lot of land on which it stands have been recovered from the district by the heirs at law of Abner Pease, under a writ of entry brought on account of a breach in a condition in the deed of gift which required that the schoolhouse should be kept and maintained by the inhabitants [568] of the district for the use of a school. It is found by the master, for satisfactory reasons which are stated in his report, that it is impracticable to use the fund in question for the maintenance of a school in this district, and thus a case is presented in which the purpose of a testator cannot be accomplished in the manner prescribed. The question arises whether the charity must altogether fail, or whether it is a case for the application of the doctrine of cy pres, whereby the general purpose of the testator may be carried out in a way differing from that which he contemplated. He meant to have the money used in the support of a school in school district Ho. 19 for the benefit of that part of the public who might from time to time reside within the district, or so near it as to use the school established there. He had an interest in the education of children, and particularly in the education of children residing in that district. But we should undoubtedly do him injustice if we should interpret his purpose so narrowly as to make the continuance of the charity depend upon the maintenance of a school within the limits of the district, the entire area of which was only about twenty-five acres. When he made his will he thought the continuance of a school there was the best way of promoting education in that vicinity. The promotion of education in that neighborhood was his object, and the charity is of such a kind that his general purpose must be carried out as nearly as possible in accordance with his design, even though the result reached differs in minor particulars from that intended. Jackson v. Phillips, 14 Allen, 539. Weeks v. Hobson, 150 Mass. 377. Sears v. Chapman, 158 Mass. 400. Attorney General v. Glyn, 12 Sim. 84. Biscoe v. Jackson, 35 Ch. D. 460. Birchard v. Scott, 39 Conn. 63. It is contended in behalf of the residuary legatees, that inasmuch as the bequest cannot be used exactly as provided by the will, and as the residue is given to a charity, it should be held that this bequest has failed, and that the fund should go to them for the charitable uses mentioned in the residuary clause. But the fact that the residue is given to a charity does not defeat the application of the doctrine of cy pres to another charitable bequest which it becomes impracticable to administer precisely according to the terms of the will. This rule is established by the highest authority in England, and it is founded upon the [569] same principles of interpretation as the general doctrine of cypres itself. The residuary clause is to be considered only as other parts of the will are considered, to aid in ascertaining the general purpose of the testator in regard to the gift in question. Ironmongers’ Co. v. Attorney General, 10 Cl. & Fin. 908. Mayor of Lyons v. Advocate General of Bengal, 1 App. Cas. 91. Upon the facts found by the master it is the duty of the court to frame a scheme which shall accomplish the general purpose of the testator as nearly as possible according to the terms prescribed by his will. It may be difficult, if not impracticable, to use the income of the fund in such a way as to give the inhabitants of the territory which was formerly school district No. 19 any greater benefits from it than others have who are accommodated by the Rogers School; but even if the benefits from it should be shared by all the inhabitants of the town it would not be extending the effect of the gift beyond the proper scope of the doctrine of cy pres in its application to a case of this kind. If the gift could be administered precisely as the testator intended, its principal effect would be to relieve the inhabitants of the district from an expenditure which they would otherwise be obliged to make in the performance of their public duties. After the abolition of the school districts under the St. of 1869, c. 110, until the school was discontinued upon the opening of the Rogers School in 1885, the school in the district was maintained by the town, and the practical effect of the gift was merely to relieve the town from taxation yearly to the amount of the annual income of the fund. In another part of his will the testator has given property to two other school districts in the town of Rochester, the benefit of which since the abolition of the school districts has been enjoyed by all the inhabitants of that town. It was plainly within his general intent that the town of Fair-haven as a whole should share his bounty if it could not otherwise be made available by those residing in district No. 19, Upon the facts found by the master it seems that the income of the fund should be applied in some way towards the support of the Rogers School, or used in furnishing instruction of some kind in connection with that school. The case must be further heard by a single justice, who will frame a scheme, either with or without the aid of a master, for applying the income of the [570] fund to educational purposes for the benefit of persons living within the territory which was formerly school district No. 19, and in that vicinity, and of such other persons in the town as in the exercise of their legal rights may incidentally derive advantage from it. So ordered.