Wilcox v. Wheeler

Bellows, J. This cause is heard upon bill and answer. The defendants claim under William Simpson, alleging that by his deed to Mr. Britton only an estate for life was granted. The substance of that deed is, that, in consideration of one hundred dollars paid by said Britton, agent for the Proprietors of Orford Bridge, Simpson conveys to him for the use of that corporation, and to his assigns, two parcels of land, one being described as a road four rods wide from the bridge to the main road, and the other apparently for a toll house; to have and to hold the same to said Britton in trust, as aforesaid, and to his assigns. By this deed, by force of the statute of uses, the title vested at once in the corporation, as it had full capacity to take ; and nothing indicates any purpose that the legal estate should be kept on foot in Mr. Britton. The conveyance was made to him, probably, because conveyances directly to corporations had not then become quite familiar. Had it been conveyed to the corporation directly, then, as a corporation aggregate never dies, it would be a fee simple without words of succession or inheritance. Had it been a sole corporation, words of succession would have been necessary. This general doctrine is well settled; 4 Greenl. Crim. Dig. 279 ; 4 Kent’s Com. 7 ; where it is said that the reason, why, in deeds to corporations aggregate, the word heirs or successors is not necessary, is, "because in judgment of law a corporation never dies, and is immortal by perpetual succession.” So is Co. Lit. 9, 6. Such being the law where the grant is directly to a corporation aggregate, it would seem not to be unreasonable to apply the same doctrine' to a grant to a trustee for the use of such a corporation, when it is of such a character that the whole title at once vests in the corporation, making it substantially a grant to the corporation. Upon this point the law is well established, that if there be a conveyance to a trustee, and the nature of the trusts is such as to require a fee, then by necessary implication the trustee will take an estate of inheritance, although there be no words of limitation. In the case of devises this has long been the law, and even where the purposes of the trust might probably be accomplished without a fee; • or, in other words, if by possibility the purposes of the will might not be answered without the trustee had a fee, the will would be so construed. Shaw v. Weigh, 2 Str. 798 ; Willis v. Lucas, 1 P. Wms. 472; Collin’s Case, 6 Co. 16; and Ackland v. Ackland, 2 Vern. 687; Gibson v. Montfort, 1 Ves. Sen. 485 ; Oates v. Cooke, 3 Burr. 1684. So the interest to give a fee would be inferred from the fact, that, by possibility, a fee might be necessary to effectuate the trusts, and the leaning of the courts was very strong so to construe a devise. [491] The same rules are applied to grants, and it was so distinctly laid down in Cleveland v. Hallet, 6 Cush. 403, by Shaw, C. J., as an exception to the rule requiring the use of the word heirs as well established as the rule itself, viz: that when a conveyance is in trust, and the trusts are of such nature that they do, or by possibility may, require a legal estate in the trustee beyond that of his own life, then without words of limitation in the conveyance to the trustee, he shall take a fee. In Newhall v. Wheeler, 7 Mass. 189 — 198, it was held, Parsons, C. J., that though no words of limitation are used, the estate of the trustee shall be commensurate with that of the cestui que trust. So is Stearns v. Palmer & al., 10 Met. 32, where the grant was in trust for the use of "the inhabitants of the first parish in Springfield, and their heirs, forever, for a burying yard.” So is Gould & al. v. Lamb & al., 11 Met. 84,.where the conveyance is to A. B., to have, ¡fee., as he is trustee under an indenture tripartite, which showed the intention to be to give more than a life estate; and so it was held that a fee passed without words of limitation. So in Brooks & al. v. Jones, 11 Met. 191, which was a mortgage to W., treasurer of a corporation, to have and to hold, &c., to him, the said treasurer, and his successors in office, to his and their use and be-hoof forever, the condition was to pay a sum of money to the treasurer and his successors in office, and it was held that W. took a fee in trust for the corporation, although the word heirs was not used; but the intention. was plain, and no stress was put upon the term forever. The same doctrine is laid down by Chancellor Kent, in Fisher v. Fields, 10 Johns. 494, 505. So is Villiers v. Villiers, 2 Atk. 72. In Welch v. Allen & al., 21 Wend. 147, it is held that where lands are granted to a trustee without words of perpetuity, he will, by implication of law, take a fee, if such estate be necessary to fulfil the objects of the trust. So the doctrine of Cleveland v. Hallett, before cited, is confirmed in Attorney General v. Prop. Federal St. Meeting House, 3 Gray 1. The conveyance to Glen, Hall, Shaw & al., for themselves, as a committee chosen and appointed by the congregation of the Presbyterian Meeting House in Long Lane, &c., to have and to hold the land in their said capacity, and to their successors forever, but to and for the only proper use, and benefit, and behoof of the said congregation, forever, and for no other use; and it was held that the trustées took a fee upon the principle before mentioned, and no stress is put on the word forever, and the corporation was not incorporated. So in King v. Parker & al., 9 Cush. 78, where the grant was to B., "in trust to and for the use of the Free Masons Lodge in Boston, known by the name, &c., to their only proper use, benefit and behoof forever,” it was held that this proved the fee. The question, then, is, whether this conveyance to Mr. Britton, agent of the bridge corporation, to be held in trust for the corporation, passed the fee without words of limitation; that is, whether the intention to give the corporation the fee can be gathered from the grant. Had it been directly to the corporation, being a corporation aggregate, the fee would [492] have passed; and in all such cases where the conveyance is through a trustee to hold for the use of such corporation, the intention to make it perpetual is to be inferred, and so are the Massachusetts cases already cited, we think. Here the grant was of two pieces of land, for a road and toll house, both essential to the use of the bridge, as much so as the land upon which stands the ^federal street church; and it is impossible to suppose that it was intended to grant an estate for the life of Mr. Britton only, which might have ended in one year. Such being the case it must be considered that the fee passed, and at once vested in the corporation. In respect to some of the Massachusetts authorities, which hold that where the purposes of the trust cannot be answered without a greater estate than for life, then by implication a fee will pass, it is urged by defendants’ .counsel, that the intention to give a greater estate is manifested by the use of the term forever, which in this case is wanting. It is obvious, however, that this term is not one of limitation, and only bears upon the question of intention, and if that is ascertained by the nature of the grant, or the language used, whatever it may be, the law will give effect to that intention, and in this case we think the intention to grant a fee is very clearly to be inferred from the nature of the grant itself. At the argument upon the bill and answer, the defendants contend that the bill should be dismissed for want of equity, upon the ground that the plaintiffs have not established their title at law, and no case of irreparable injury is disclosed. The bill alleges that, for many years, something like fifty, four or five families upon the bridge road have been, and still are, supplied with water by the plaintiffs, and those under whom they claim, by means of the pipe laid in this road, for which the plaintiffs and their predecessors have received a yearly rent, and this is substantially admitted by the answer, at least as to some of these families. The bill also alleges that, during all this period of fifty years, the plaintiffs and their predecessors have so used this pipe in said road under a claim of right, and in that way have acquired a valid title to the easement by prescription. The bill then alleges that the defendants threaten to cut off this pipe and so interrupt the supply of water to these .families, to the great and irreparable injury and damage of the plaintiffs, and the occupants of the houses upon'the said bridge road. The bill also alleges that the defendants pretend to have acquired a right to do the acts so threatened by virtue of a quitclaim deed from one Simpson, of the land over which said road runs, but the bill alleges that said Simpson had no right or title to said land. The answer says that, whether the plaintiffs and their ancestors claimed a right to lay and continue their said pipe in this road, against all persons, they do not know, but they allege they have no such knowledge or belief; and they set up a title to the land by the deed of the heirs of Mr. Simpson, who were entitled to it on the death of Mr. Britton, upon the ground that only an estate for the life of Mr. Britton was conveyed. A copy of Simpson’s deed is by agreement made part of the [493] answer, and they allege that no right by prescription was, or could be, acquired against the heirs of said Simpson, or these defendants, during the continuance of the life estate. And this is the defence set up, namely, a title to the road derived from the heirs of Mr. Simpson, claiming that his deed only gave to Mr. Britton a life estate, but not directly denying the jurisdiction of the court, or the allegation in the bill that irreparable damage would be caused to the families on the bridge road, and to the plaintiffs by cutting off the pipes. It may be assumed, then, that, by cutting off the pipe, these families would be deprived of water for their houses, and that the plaintiffs would be injured as alleged in the bill, and it is apparent that the injury would be serious, and in respect to these families, at least, would, in its nature, be irreparable. On the other hand, the restraining of the defendants from cutting this pipe can cause them no injury whatever, and this may properly be considered in many cases in determining whether equity will exercise its summary power. It is true that the persons occupying these houses are not, formally, parties to this suit; but we think the plaintiffs may fairly be regarded as representing them in this proceeding. They have undertaken to supply them with water; the legal title to the aqueduct is in the plaintiffs ; and although they may not be legally bound to continue the supply of water for any fixed period, still they are interested to do so, and have provided all the money to accomplish it. If, then, the defendants cut off this aqueduct, they not only deprive these families of water for the time being, but may compel them to seek a supply from other sources, and thus cause a permanent injury to the plaintiffs by diminishing the value of their spring. Looking at it upon a larger scale, where a whole village or city is supplied with water in a similar manner, we should not hesitate to hold the injury caused by destroying the aqueduct used for such supply, as causing an injury which might well be deemed irreparable ; nor should we hesitate to decide that the proprietor of the aqueduct might well be regarded as entitled to represent the persons so supplied by him, so far as to maintain a bill in equity to prevent such injury- Especially would it be so where, as in this case, there had been by such proprietor an uninterrupted use of the aqueduct for many years, and the claim of the other party was to be determined by the legal construction of a deed. We are of the opinion, therefore, that this objection cannot prevail, and that the plaintiffs are entitled to a decree. Perpetual injunction decreed.