58 N.H. 566 | N.H. | 1879
The condition upon which the legacy was given to the defendants has not been performed. A contingent interest in the legacy vested in the plaintiffs, and the contingency upon which their interest depended happened by the neglect of the defendants to begin the school in the time prescribed by the will. They appropriated the money to their own use by using it to pay their debts. Their right to the legacy having become forfeited by their non-compliance with the conditions attached to it, the money which they had received became the plaintiffs' money, which in equity the defendants ought to pay. Wiggin v. Berry,
The defendants are liable for interest from the time they used the money to pay their debts. It is a fund held in trust for a specific purpose, out of which they are not entitled to make a profit. If the money had remained in the executor's hands until the end of the five years from the death of the testatrix, it is reasonable to suppose interest would have accumulated thereon, and would have become a part of the residue to he paid to the plaintiffs. It was not the testatrix's will that the town should have the benefit of the use of the money, equivalent to the interest of it, if the school was not established. It was her intention that the benefit derived by the town from the legacy should be educational. For any other than the specific educational purpose of the will the town had no more right to take and retain a profitable use of the money, than it had to lease the money and keep the interest, or to keep the principal. The town received the money *568
as trustee; and the trustee should make no profit out of the trust-fund by diverting it to the payment of the trustee's debts. In Clapp v. Stoughton, 10 Pick. 463, where the defendants had forfeited a devise of real estate for non-performance of a condition subsequent, it was held that an action for the rents and profits of the real estate might be maintained by the heirs of the residuary legatee. See, also, Jackson v. Smith,
The defendants claim that they are not liable for interest, because they had the title and rightful possession of the fund till the end of five years from the decease of the testatrix, and that she intended they should have till the end of the five years in which to decide. They also claim, that, if the town had no right to the legacy until they had established and commenced a school, they are liable to the executor and not to the plaintiffs. If the defendants had the legal title and rightful possession of the fund until the end of the five years, their title then passed to the plaintiffs, and the defendants are liable for interest; not because they had, or had not, title or possession, but because they derived from the fund a benefit equivalent to interest, in violation of the trust. If the defendants never had any title to the fund, nor any right to the possession of it, this suit may as well be maintained by the plaintiffs as by the executor. Davis v. Bradford,
The plaintiffs are entitled to judgment for $3,519.11, and interest from the time the defendants paid the debts of the town with the money.
Case discharged.
STANLEY, J., did not sit: the others concurred.
