Nelson v. Inhabitants of Georgetown

Hammond, J. 1. The letter of the donor is addressed to “ the inhabitants of the town of Georgetown,” that is, to the town by its proper corporate name. In it the donor states that in accordance with a promise theretofore made by him he had [228] “caused a building to be erected for the purpose of a public library for the benefit of yourselves and your successors ” ; that he takes “ great pleasure in presenting it to you, together with about twenty-four hundred volumes of standard works which . . . are now in the hands of the Library Committee”; and that he had also placed in the hands of the finance committee of the library the balance of the $12,000 which he had originally promised. He then states that $8,000 of this balance “ shall be always kept invested and the income thereof applied to the increase and care of the library ”; that “ the remainder shall be kept invested and accumulate until it shall amount, either by itself or in connection with other donations (if such there shall be) to the sum of not less than twenty thousand dollars, when it may be used for the erection of such a building as may then be necessary to furnish suitable accommodations for the library”;, and that “the building which has been erected, is to be absolutely the property of the town, for the purpose of a library building, and so long as it shall be used for such purpose, it may stand on the site it now occupies on the Memorial Church lot.” Then, after a paragraph not here material, comes the following: “ If the building now erected should at any time within the space of twenty years from the 1st inst. (January 1,1869,) be considered not sufficient to accommodate the library and inhabitants who resort to it, and the sum of $20,000, (named) has accumulated and on hand, the voters of the town, assembled by legal notice, may by a vote of three-fourths of such legal voters fully empower the inhabitants oi the town to have the present building sold for removal and a new one of brick, as stated, erected on the same site, and no other site shall be used for a library building before the 1st of January, 1889; after which time the inhabitants of the town by a vote of two-thirds of the legal voters shall act as they think best for the good of the people of the town : if the present edifice is sold and removed, the proceeds may be added to the capital on hand and be considered a part of the $20,000 required as herein stated.” It is manifest that the gift both of the building and of the remaining fund is to the town in its corporate capacity, with certain limitations and restrictions as to the manner in which the fund shall be expended, and as to the erection of a new build [229] ing. We are of opinion that so far as respects the erection of any new building the authority in the town after January 1, 1889, by a two thirds vote of the legal voters to “act as they think best for the good of the people,” extended not only to the selection of a site for the new building but also at least to the question of its cost. The town by such a vote had the power to fix the cost as well as the site, and the vote of March 12, 1904, was binding upon the trustees. In so far, therefore, as the trustees exceeded this authority, their action was not originally binding upon the town. But that is now of no consequence, because it appears that the town, at its annual meeting on the first Monday of March, 1905, with knowledge of the contracts which had been made by the trustees “ and of the amount to be paid by the terms thereof, accepted and approved the report of the . . . [trustees] ... in which payment on account of said contracts to an amount of about $10,000 was shown.” It was not contended before us, and we do not understand it to be contended by any of the parties to this suit, that the vote in favor of this action was less than a two thirds vote. Under these circumstances the vote of the town must be regarded as a ratification of the act of the trustees, and the contracts are binding upon the town the same as if originally authorized. It follows that all the contracts are now binding upon the town. Arlington v. Peirce, 122 Mass. 270, and cases cited. 2. Although the details of the management and regulation of the fund so far as respects its use for library purposes (except as to the site and cost of the library building) are in the trustees, yet the fund is the property of the town and should be in the custody of the town, to be drawn upon by the action of the trustees as needed from time to time. It therefore should be delivered up to the treasurer of the town or such other officer as the town may direct. Inasmuch however as the trustees in making the contracts seem to have acted in good faith, and fear that they may be held personally liable to the contractor, we think that the fund when paid over should be held charged with a trust in their favor, to the extent necessary to indemnify them against any loss by reason of such personal liability. So ordered.