Birchard v. Scott

Poster, J. By the will before us the testator gave the use of his estate to his wife and Arza Smith, during the life of [68] his .wife. After the death of his wife certain pecuniary legacies were to be paid, and if Arza Smith survived her,, the use of the remainder of the estate was then given to him for life. After the decease of his wife and Arza Smith, and after the payment of the money legacies, the testator directs that the remainder of his estate “ be rented out yearly, and the clear avails thereof be forever paid, the one-half to the first trustee of the Uuiversalist society in the town of North Salem, county of-Westchester, and state of New York, for the use and benefit of said society,” and that “the other half of said income be paid to the first committee of the school society in said Ridgebury, for the use and benefit of such families in said society, in their schooling, as shall not exceed in the list of the town for the year the sum of fifty dollars.” The executors named in the will are fully authorized and empowered to execute this trust. The widow of the testator and Arza Smith are now both dead; the legacies have all been paid; no question is made as to the validity of the bequest to the Universalist society, but it is alleged in the bill that the school society in Ridgebury has ceased to exist, and that whatever trust was created for the benefit of said society and of said families has become inoperative, has lapsed and terminated, and that the heirs at law of the testator are entitled to one-half of said estate, and to one-half the income which has accrued thereon since the time when they so became entitled thereto. Has this trust become inoperative ¡ has this bequest for the benefit of certain families in the school society in Ridgebury lapsed and terminated ? The object of this testator — the promotion of education, the diffusion of its blessings among the children of want and poverty — was certainly most laudable, most desirable. A design so noble should not be frustrated, unless there are insuperable obstacles to its accomplishment. We do not think the changes in our law respecting school societies, made since the probate of this will, materially affect this question. This gift is not to the school society, but to certain families within the limits of the society. Though the society be abolished, the territory remains, and the families remain. The mode of taxation also is changed. When this [69] will took effect, land went into the assessment list at three per cent, of its value; now, at its value. Families whose lists did not exceed fifty dollars a year might be beneficiaries under this will. Applying the same rule under the existing law, families whose amount in the list of the town does not exceed $1,665 may be beneficiaries. Schools, it is said, are now free, and the object of the testator therefore being accomplished, the trust should cease. Happily our schools now are substantially free; but we can have no assurance that they will continue so. Even if they should, there is still room for this gift to work out most beneficent results, without perverting the benevolent intent of the donor. Children of parents without means, or with very limited means, cannot avail themselves of the benefits of a free school without fur ther help and additional facilities. Books and other things ■must be procured. We do not propose to give a definition of the term “ schooling” as used in this will, or to decide whether it is confined to common schools or not, deeming it unnecessary to do so. We think however that it has a broader and more comprehensive meaning than the mere payment of school bills, as contended for by the petitioner. We see no grounds for believing that the moiety of the income of this estate has been, or now is, perverted from the original purpose had in view by this testator. On the contrary, it seems to us that his intention is being fairly and literally carried into effect, and, for aught that we can discern, this may be continued for an indefinite period of time. It would be unjust alike to the living, and to the memory of the dead, were we to take this estate out of the hands in which this testator placed it to effect a most desirable object, which object it is now effecting, and divert it into other channels. It would seem to contradict the remark of Sir Edward Coke in Porter's Case, 1 Rep., 24 ; “No time was so barbarous as to abolish learning and knowledge,.nor so uncharitable as to prohibit relieving the poor.” The Superior Court is advised to dismiss the- bill. In this opinion the other judges concurred; except Carpenter, J., who was absent.