69 A. 720 | N.H. | 1908
The heirs concede that the words used in the residuary clause of the will are sufficiently definite in themselves to create a charitable trust; but they contend, first, that they were not permitted at the trial in the superior court to be heard or to cross-examine witnesses upon the question of the practicability of *494 establishing another general hospital at Manchester, — that if they had been, they could have shown that it was impracticable to do so, and that the trust attempted to be created was void, — and, second, that all the evidence that was introduced at the trial was to the effect that it was impracticable to establish another general hospital in that city, and that there was no evidence to the contrary.
The answer to the first contention is that it is without foundation in fact, for the case finds that the heirs, the trustees, the attorney-general, and others appeared and were heard. If the fact was as the heirs now claim, they should have had it so stated in the case.
The answer to the second contention is of a similar nature. If there was no evidence upon which the trial court could have found, as it did, that it was practicable to establish another general hospital at Manchester, endowed according to the scheme outlined in the will, the heirs, if they desired to avail themselves of an exception to the finding, should have had the evidence that was introduced at the trial transferred as a part of the case. This they omitted to do. It is therefore to be presumed that the evidence was sufficient to warrant the finding.
Before it was established that a valid trust was created by the will, no question as to its execution could arise. After that was done and it was determined that the trust was charitable, it became the duty of the attorney-general to see that the rights of the public in the trust were protected and that it was properly executed. The heirs had no interest in the question apart from the general public, whose rights were represented by the attorney-general. Haynes v. Carr,
Exceptions overruled.
All concurred. *495
