Wells v. Heath

Merrick, J.

The premises demanded in these suits constitute the farm formerly owned by Daniel Bixby. By his will he devised 'the same, subject to the life estates of his wife and nephew, and also to certain specified directions and restrictions, to the selectmen of the town of Topsfield, on the special trust and confidence that they should yearly and every year appropriate and pay all the rents, income and profits of the farm for the support of a gospel minister or ministers in that town of the Congregational denomination. The demandant Wells is one of the heirs at law of the testator, and claims to be entitled in that capacity to maintain this action. He insists that the devise to the selectmen of Topsfield was wholly inoperative and void, or that it was a devise to them of a life estate only, or that it was a devise upon certain conditions which have not been kept, and that by the breach thereof the devisees have forfeited their estate, and that the title thereto has consequently become vested in the heirs at law of the testator. The demandant Prince contends that, by force of the residuary clause in the will, the estate was devised to Ruth Bixby, under whom, as one of her heirs at law, he endeavors to establish a title to it in himself.

There is no difficulty in ascertaining from the language and provisions of the will the meaning of the testator, or what was his intent and purpose in the devise to the selectmen of Tops-field. He obviously intended to afford permanent assistance to the inhabitants of that town in the support of a religious teacher of the Congregational denomination. The devise was in substance a gift to them ; they were the cestuis que trust, and were to enjoy exclusively the benefits and advantages of the estate devised, for whose sole use and advantage it was taken and held by the devisees. It was thus given to the inhabitants of the town, and not to those who for the time being were there the minister or ministers of the gospel. Emerson v. Wiley, 10 Pick. 317. This is apparent from the provision that the selectmen are always to be accountable to the town for their conduct and proceedings in their management of the farm, and are to render annually to the town, and as much oftener as the town shall require it to be done, a true and faithful account of all matters pertaining to the trust estate. And that it was the intention of the testator that the real and substantial interest in the estate devised should be in the town is apparent also from his express declaration in another part of the will, that as soon as the two persons in the nearest degree of kindred to him should take possession of the estate under the executory devise to them, the term of the town, as well as of the selectmen, should thenceforth and forever cease and expire.

But the devise was to the selectmen to hold the estate devised to them in trust for the town in its parochial capacity. At the time of the execution of the will there was but one religious society in the town of Topsfield, and according to the well settled principles of law pertaining to those matters, the town was then obliged to maintain and support public worship and perform all parish duties; and was in all respects in relation to the support and maintenance of public worship to be considered a parish until the formation of a new one within its territorial limits. When the Congregational Parish in Topsfield was organized on the 29th of March 1824 under the St. of 1823, c. 117, it succeeded to all the parochial property, rights, duties, and lia bilities of the town. Dillingham v. Snow, 5 Mass. 547. First Parish in Brunswick v. Dunning, 7 Mass. 445. Austin v. Thomas, 14 Mass. 333. First Parish in Shrewsbury v. Smith, 14 Pick. 297. Dudlow v. Sikes, 19 Pick. 317. Lakin v. Ames, 10 Cush. 198. The trustees thenceforward held the "devised estate in trust for the newly incorporated parish.

The devise to the selectmen of the town of Topsfield was a good and sufficient description of the persons who were to take the estate as devisees. It is clear that any words which are sufficient to denote the persons meant by the testator, and to distinguish them from .all others, will secure to them the property or estate which may be given them in a will. 6 Cruise Dig. tit. 38, c. 10, §27 & seq.

But it is objected by the demandants that if the individuals designated as the selectmen of Topsfield could take the estate devised to them, they took it only for life and not in fee, because there were no words of inheritance annexed to the gift. The devise is, in terms, to the selectmen of the town of Topsfield and their successors in office forever. It is certainly true, as contended by the demandants, that the selectmen of a town do not in any sense constitute a corporation, and that a gift or conveyance, in general terms, to them and their successors in office, whether by deed or devise, does not create an estate in fee, but for life only. But this devise under the will of Bixby to the selectmen of Topsfield was not a gift to them to their own use, but in trust for others. And it is an established rule of law that where an estate is granted to one or more persons in trust, with out words of limitation to heirs and assigns, and the trust is of such a nature that, to support and carry it into effect, a legal estate in the trustee, which will or by possibility may exceed the life or lives of the trustee or trustees, is required, the law will construe the estate to be in fee. Attorney General v Federal Street Meeting-house, 3 Gray, 48. Cleaveland v. Halleft, 6 Cush. 406.

Applying this principle to the devise of the farm to the selectmen of Topsfield, when considered in reference to all the provisions in the will concerning it, there can be no doubt but that the estate in fee simple vested in the trustees. All the provisions in the will show that it was the intention of the testator that the devised estate should be permanently appropriated to the sole and exclusive use of the cestuis que trust. The farm is given to the selectmen and to their successors in office forever. They are yearly and every year to appropriate and pay over the rents, income and profits of it for the support of a gospel minister; and they are annually, forever, without any limitation of time, to render just and faithful accounts of their proceedings in relation to the estate to a corporation which has perfect existence. And in order to secure to the cestuis que trust, who are the objects of his bounty, the uninterrupted and perpetual enjoyment of the estate devised, and of all the income and profit which may be derived from it, the testator endeavors to make certain the fidelity of the trustees by exposing them to prescribed penalties if they should fail to perform their duty according to the directions and instructions particularly specified in his will.

To the same end and for the same purpose also are all its provisions in relation to the executory devise over to the two persons nearest to him in kindred who shall be living in the county of Essex when his directions shall cease to be observed. It is true that this executory devise is wholly ineffectual and inoperative, because the estate will not necessarily come to vest in the executory devisees within the time prescribed as the rule to prevent the creation of perpetuities ; for it would be impossible of course to foresee, when the estate was taken by the trustees, within what time any of these contingencies would occur, upon the happening of which the executory devise was to take effect. It might not happen until after many generations should have passed away. 6 Cruise Dig. tit. 38, c. 18, §§ 20, 21. Brattle Square Church v. Grant, 3 Gray, 142. But this provision, like everything else contained in the will, evinces clearly the intention of the testator to make the devise in favor of the cestuis que trust a perpetual benefit, and shows that an estate which may, and in the contingencies provided for necessarily must, exceed the life or lives of any designated trustee or trustees, is indispensable to carry the trust fully into effect. The devise therefore in the will of Bixby to the selectmen of Tops-field gave to them the estate in fee simple.

It is a mistake to suppose that the estate thus devised was given, as the demandants contend, upon any condition, the nonperformance of which might cause a forfeiture of the estate of the devisee. No such condition was annexed, or attempted to be annexed, to the estate by the testator. A condition, or the benefit of a condition, can be reserved only to the donee, feoffee, devisee or his heirs. 2 Cruise Dig. tit. 13, c. 1, § 15. Hayden v. Stoughton, 5 Pick. 528. The testator, so far from reserving or attempting to reserve the benefit of any condition to himself or to his heirs at law, makes a special and particular provision for the express purpose of preventing the estate from returning to or becoming vested generally in his heirs. That is to say, he prescribes upon the occurrence of certain contingencies that it shall be taken possession of by the two persons nearest in kindred to him who shall then happen to be residents in the county of Essex, and shall thenceforward descend to them and their heirs as absolute owners in equal shares. As it thus appears that the whole estate was devised; that there was no condition annexed to it; that the executory devise over was inoperative and void ; and that the full execution of the trust created by the will required an estate exceeding in duration the lives of the trustees named ; the conclusion is inevitable, that no forfeiture has been incurred, but that the selectmen of the town of Topsfield took an estate in fee simple in the farm devised to them.

From these considerations it appears that neither of Cíe demandants ever had or acquired any title whatever to the demanded premises; and it would therefore seem to be quite unnecessary to inquire whether the proceedings under which the tenant claims to be the lawful owner thereof were regular and correct. It is sufficient to defeat these actions, that he is in possession claiming title under a deed of conveyance, and that the demandants show no right to the estate in themselves. But we may add very briefly that we perceive no want of lawful authority in the grantors to make the conveyance. By the St. of 1847, c. 231, a new mode of appointing trustees is provided for. That mode has been strictly pursued, and it is not suggested that the provisions upon this subject have in any particular been disregarded. In all other respects the statute leaves the rights of the parties in interest just as they existed under the will. After the new trustees were appointed, they, being by virtue of the provisions of the statute the owners in fee of the demanded estate, but in trust under the will of Bixby for the then existing Congregational Parish in Topsfield, did, at the request of that parish and in pursuance of its votes in relation thereto, apply to this court for license to'make sale of the real estate, and to hold the proceeds of such sale in lieu thereof and upon the same trust as they held said estate. Due proceedings were had upon that application, and the license prayed for was granted. This was a judicial decree upon a subject within the proper jurisdiction of the court; and therefore it is to be regarded as an adjudication conclusive upon all parties. St. 1846, c. 242. The trustees, deriving their right under the license thus given them, and acting with the express consent and in conformity to the expressed wish of the cestuis que trust, sold and conveyed the estate to the tenant, and he thereby acquired a complete and perfect title to it.

Pursuant to the agreement of the parties, judgment must be entered for the tenant, as it is .apparent from the views already taken that the further facts which the demandants offered to prove are immaterial to the issue, and, if established, could not in any degree affect its determination.

Judgment for the tenant.