| Me. | Mar 2, 1888
The executors of the will of Abner Coburn, quod vide, 79 Maine, 25, ask a construction of that will. Most of the respondents have answered, and a general replication has been filed.
The bill does not call for answers on oath, and after replication they are not evidence of the facts stated in them. Clay v. Towle, 78 Maine, 86. After answer filed in an equitj^ cause, the orator may elect to set the cause for hearing upon bill and answer,' or traverse the truth of the answer by replication, thereby raising an issue of fact to be settled by evidence. If the cause be set for hearing upon bill and answer, the facts stated in the answer are to be taken as true, because the orator elects to so treat them ; precisely as a plaintiff' in an action at law, by demurrer to a defendant’s plea, admits all the facts stated in it that are well pleaded.
In the cause before the court, the orators filed a replication to the respondents’ answers, and thereafterwards moved to set the cause for hearing upon bill and answer only, and the motion was granted.
By filing the motion, the orators must be held to have waived their replication ; otherwise the respondents can neither have the benefit of their answers as true, nor a chance to prove them true, and would be deprived of their defense. On motion, a replication may be withdrawn and the cause set for hearing upon bill and answer. Rogers v. Goore, 17 Ves. 130; Brown v. Ricketts, 2 Johns, ch. 425. So for questioning the sufficiency of a plea. Greene v. Harris, 9 R. I. 401.
I. The three several legacies of $50,000 to the Maine Insane Hospital, "the income only to be expended annually;” of $100,000 to the Maine State College of Agriculture and Mechanic Arts, " the same to be funded and the income only to be expended annually,” of $200,000 to Colby University, "$150,000 of which to be funded and the income only to be expended annually,” are of like legal import and may, therefore, be considered together.
But if these legacies are treated as gifts of perpetual income, the result must be the same. A gift of the perpetual income of either real or personal estate is a gift of the property. That has always been the doctrine of this court. Andrews v. Boyd, 5 Maine, 199 ; Butterfield v. Haskins, 33 Maine, 392 ; Earl v. Rowe, 35 Maine, 414; Stone v. Worth, 41 Maine, 265 ; Sampson v. Randall, 72 Maine, 109.
Payment of these legacies to the donees will relieve the executors from further liability in the premises.
II. Two hundred thousand dollars is bequeathed to the American Baptist Home Mission Society, (" one-half of which to be applied in aid of Freedmen’s schools other than the Wayland Seminary,”) and $50,000 to the Wayland Seminary at Washington, D. C.
The case shows that the Mission Society is a New York corporation, chartered for "promotion of the preaching of the gospel in North America,” with authority "to establish and maintain schools in connection with its missionary work among the colored population of the United States, now generally known as freedrnen, . . . and for that purpose to take and hold necessary real estate, and receive, accumulate, and hold in trust endowment funds for the support of such schools that the society has established arid is maintaining fourteen " freedmen’s schools,” one in each of thirteen formerly slaveholding- states, and one, Wayland Seminary, in the District of Columbia.
The clear intention of the testator was that $150,000 of this donation should be applied to the support of these and such other schools of the same class as the society may establish or see fit to patronize; but that $50,000 of the same, and no more, should be applied to Wayland Seminary, one of these ''freedmen’s schools.”
The society is authorized by its charter to take and hold the legacy, and its purpose is so manifestly charitable and meritorious that further consideration of it is unnecessary. Everett v. Carr, 59 Maine, 325; Simpson v. Welcome, 72 Maine, 496; Tappau v. Deblois, 45 Maine, 122 ; Drew v. Wakefield, 54 Maine, 291.
III. Thirty thousand dollars is bequeathed " to the trustees of Bloomfield Academy, to be appropriated at their discretion in founding a free public library in the town of Skowhegan.”
This legacy is certain and specific and for a charitable purpose, and should be paid to the donees according to its tenor. The authorities already cited establish its validity.
IV. Twenty thousand dollars is bequeathed " to the town of Skowhegan for the worthy and unfortunate poor, and to save them from pauperism, to be funded, and one-half of the income of the same to be expended by a Woman’s Aid Society formed for that purpose.”
A. trust is created for the worthy and unfortunate poor. Clearly a charity. The direction that one-half the income shall be expended by a " Woman’s Aid Society formed for that purpose ” does not invalidate the legacy. Whether such society exists or shall be hereafter formed makes no difference. The beneficiaries are named. " For ye have the poor always with you.”
A gift to a corporation not in esse for a charity is valid; Swasey v. American Bible Society, 57 Maine, 523 ; a fortiori when the income only is to be expended under the direction of a society formed for that purpose.
The questions put by the heirs at law in their answer, and not already considered, have not been argued by their learned counsellor, and may therefore be considered as waived. State v. Craig, 80 Maine, 85.
Bill sustained. Decree below according to this opinion.