The latter portion of section 2 of the act of 1872, constituting the town of Greenville from a part of the territory of the town of Mason, which is not recited in the bill, provides that “ if said towns cannot agree upon the division of any such property, the county commissioners for the county of Hillsborough, for the time being, upon the request of either town, may make division of the same, or assign the same or any part thereof to either of said towns, and may order the town to which such property may be assigned to pay over such sums of money to the other town as in their opinion is equitable, according to the foregoing proportion, and may fix the time of payment.”
This makes it sufficiently plain, we think, that, so far as regards the division of property owned by the town of Mason at the time the new town of Greenville was constituted, this court has no jurisdiction, exclusive jurisdiction in that matter being expressly conferred by the act upon the county commissioner’s.
Does the bill present any question which we may finally decide ? Undoubtedly, if it had been brought by the trustees of the fund asking the direction of the court as to its disposition, we might give construction to the conditions upon which it was received, and ascertain whether, if it were divided according to the provisions of the act, those conditions would be broken so as to revest the property in the donor or his representatives. The bill is brought by the new town against the old town and the trustees of the fund, to compel a division. Whether a division can lawfully be made under the act is certainly a question for the court, and that question is as clearly raised as though it were for the court instead of the county commissioners to make the final order of division in case it should be held that such a division can lawfully be made. We, therefore, have no doubt but the construction of the trust is before us on this bill, and have accordingly considered the questions arising thereon.
The act provides for the division of all property belonging to the original town of Mason in a certain definite proportion, that is, in the proportion of seven to Mason to thirteen to Greenville. Treating this fund as property belonging to Mason within the meaning of the act, the first question is, whether it could be so divided without a forfeiture, according to the condition on which it was received; and we think it could not. The condition was, that the interest or income should annually forever be applied by said town of Mason to the support of *518district or public schools in said town in proportion to the number of scholars in such districts or schools between the ages of five and fifteen years. The act provides and requires an entirely different basis of division, having no relation whatever to the number of scholars. To divide the income, or the fund itself, in the fixed proportion of seven to thirteen, would be, we think, a manifest departure from the intention of the donor, and a plain breach of the condition resulting in a forfeiture of the fund itself.
The next question is, Has the legislature constitutional power to do this ? — and this question, we think, must be answered in the negative. It not only defeats the intention of the donor by restoring to him, or his representatives, against his will, what he had devoted to education in a particular way, but, so far as the object of his bounty is concerned, it has the practical effect of working an utter annihilation of the fund itself. Such a result certainly was not intended by the legislature, and cannot be desired by the plaintiff town.
It might, perhaps, be held, without any great stretch, that this fund does not come within the terms of the act; but whether that be so or not, we are satisfied the act cannot be given the effect of making a disposition of the fund, or the income arising from it, so plainly at variance with the condition upon which it was received, thus working a forfeiture, because of the natural right of possessing and protecting property guaranteed to all persons by the second article of our own laill of rights, and also because of the provision in the federal constitution which forbids state legislatures from passing laws which impair the obligation of contracts.
It follows that as to this fund no provision is made for dividing it between the two towns.
But it is said by the plaintiff, in argument, that it is a fundamental principle of the law of charitable uses and trusts that the intention of the donor shall be carried out if possible; that it is evident the donor here meant to bestow his bounty upon all the schools within the territory of the town of Mason as constituted in 1856, and therefore, it is argued, the court has power to decree to the schools of Greenville their equitable proportion of the fund, whatever that may be; but this argument loses sight of the principle established in this state as well as in other jurisdictions, that, when a town is divided, either by creating a new corporation or by separating and annexing part of its territory and inhabitants to another town, it still retains all its property, real and personal, the title thereto being unaffected by the change, unless a different provision is made in the act authorizing the separation. Union Baptist Society v. Candia, 2 N. H. 20, and cases cited; South Hampton v. Bowler, 52 N. H. 225, and cases cited. The provisions of this act, with respect to the division of the fund in controversy, being in our judgment invalid, provided the fund comes within the terms of .the act, it is the same as though there were no provision on the subject at all. The equitable interest in the fund and the right to *519tlie income remain, therefore, where they were in the first place, in the town of Mason, and the trustee's were right in paying over the income to the treasurer of Mason, according to the act of 1857 under which they were elected. Bill dismissed.