Town of Hamden v. Rice

Ellsworth, J. It has been objected to the plaintiffs’ right to recover, that they have no title to the premises in question, because the property is given in perpetuity, and is inalienable. By our statute, respecting lands, Tit. 29, Ch. 1, § 3, p. 629, it is provided “ that lands, tenements, or other estates, that have been or shall be given, or granted, for the maintenance of the ministry &c., and for any other public and charitable use, shall forever remain to the uses to which they have been or shall be given or granted.” The gift, in this instance, is in these words; “ all the interest of said property to be laid out in repairing highways and bridges annually, and not to be [355] expended for any other use.” We do not stop to consider whether the words “ public,” and “ charitable” as used in the statute, do not mean substantially the same thing; for we are satisfied that this devise is, in its character, both public and charitable. The object of the devise is to confer a public benefit; something beneficial and necessary to all persons indiscriminately, quite as much as gifts to institutions for learning, or religion, or to the poor and helpless. Besides, the word “ charity” had, at the time this statute was passed, a well known and acknowledged meaning in the English courts, for we find its use in statutes as early as Elizabeth, if not before, and certainly earlier than the settlement of this country. Grants to support bridges and highways were held not to be within the statutes of mortmain of Henry VIII., because of their public and charitable' character, as we learn from Porter’s case, 1 Coke, 26, to which case Lord Coke adds this note ; “ that any man at this day may give lands, tenements and hereditaments to any person &c., for the finding of a preacher, maintenance of a school, relief and comfort of maimed soldiers, sustenance of poor people, reparation of churches, bridges, and highways, for education and preferment of orphans,” &c. These are all the classes of uses which the statute names. Whatever obscurity may rest on the law of public charities, before the statute of Elizabeth, that statute is now considered the principal source of legal charities and has become the general rule of charities so that no uses in England are to be considered charitable and entitled, as such, to the protection of the law, except such as fall within the words, or obvious intent, of the statute. Sir William Grant has observed that the word “ charity” in its widest extent, denotes all good affections men ought to bear towards each other, and in its most restricted and common sense, relief of the poor. For in neither of these senses is it employed in the court of chancery ; there, its signification is chiefly derived from the statute of Elizabeth. See a very learned note, inthe appendix to 4 Wheat., § 1. The same [356] doctrine is laid down by the Master of the Rolls in James & wife v. Allen, al. 3 Mer. R., 16—so in Com. Dig., under tit. “ charitable uses,” no. 1. bridges, ports, havens, causeways, churches, sea banks, and highways, are classed, and grants for them are permitted as public charities. The same classification exists in 2 Sto. Eq., p. 390, § 1138—p. 411, § 1161. In Cogshall v. New Rochelle, 7 John. Ch., Chancellor Kent decided, that a legacy for the purpose of erecting a town house for transacting town business, was a charitable bequest. In several of the states, the statute of Elizabeth has been recognized in their courts as the law of public charities, as may be learned from the appendix in 4 Wheat., and from the case of Vidal & al. v. Girard’s Executors, 3 How., 150. Upon the most careful examination and reflection, we cannot entertain a doubt, whether we look at the principle of the cases, or the settled law in England, or the decisions in this country, that the use in question is one of a public and charitable character, which our statute allows to be continued in perpetuity. It is further said, that the statute law of 1840, p. 150, does not extend to an estate, held by such a 'title as the one in question, and therefore the tenant for life is not liable for waste to the remainder man. It is certain, that Mrs. Brooks, under whom the defendant defends, has a clear life estate in the premises and nothing more, and if this were all, the defendant has a perfect defence to the action. But this estate of hers is created by the act of the parties, and is not an estate created by the act of law, as an estate by curtesy, or dower; and therefore it becomes necessary for the defendant to show that Mrs. Brooks is authorized by the devise, under which she has her estate, to do these acts which otherwise would be waste by the statute. But this is not attempted to be done, and the only defence made is, the devise is not a contract, under which she holds her interest; so that a will, which we know, is the most usual mode of creating a life [357] estate, is just the very mode that is not reached by this statute of 1840. This would be strange indeed and, we should exceedingly regret to be compelled to give our sanction to this construction of the law. Besides it is an elementary principle that estates accrue to the owner, by act of the law, or by purchase, and as this estate did not accrue by the former, it did by the latter. We think if Mrs. Brooks does not hold, as a purchaser, she does not hold at all, and if by operation of law, then certainly she cannot commit waste. It is again said, that the case made for the advice of this court, does not show that any injury has been done to the freehold, or the remainder which is vested in the plaintiffs. On this point, it is certain that the facts are not as fully presented as they might and should have been, but the object of appealing to this court is for a totally different purpose, or the case would never have been brought here; for if it be true that the interest in the remainder is not injured, the plaintiff can have no action at all, and why, then, is this point of law raised for the advice of the court? It appears that the defendant has purchased, and cut, and removed from the land, divers forest trees thereon growing, of the value of $253.50. This constitutes an injury to the remainder, and is enough to sustain the allegation of waste and injury to the land. As however, it is possible that the attention of the court was not called to an apportionment of the injury between the two interests in the estate, the life estate, and the remainder, we shall advise the superior court to re-examine this point, and allow the plaintiffs to recover, only to the extent of the injury to their specific interest. We therefore advise the superior court to render judgment for the plaintiffs. In this opinion, the other judges, Storrs, & Hinman, concurred. Judgment for the Plaintiffs.