35 N.W.2d 287 | Minn. | 1948
The proposed answer of respondent, Legion Post No. 321, alleges that the real estate involved was owned by one Edward J. Scofield, a resident of Elbow Lake, prior to his death on May 10, 1926. By his last will and testament he devised the property to the village of Elbow Lake to be used for a public park. Said last will and testament was duly admitted to probate, and the final decree of the probate court of Grant county, in the administration of said estate, assigned the property to the village of Elbow Lake "for park purposes." It was accepted by the village and so used for a number of years. The proposed answer further alleges that prior to the commencement of this action the village authorities conspired with plaintiff to sell the property, contrary to the purposes for which it was given to the village, and that the village secretly agreed to refrain from defending this action in order that it might be divested *261 of title, and that the property was sold to plaintiff pursuant to this conspiracy.
The only question before us is whether respondent is a proper party defendant.
Prior to the passage of L. 1927, c. 180, now M.S.A.
The donor in this case died prior to the effective date of L. 1927, c. 180. Consequently, that act cannot apply. M.S.A.
"Any city or village may receive, by grant, gift, devise, or bequest, and take charge of, invest, and administer, free from taxation, in accordance with the terms of the trust, real or personal property, or both, for the benefit of any public library, or any public cemetery, or any public park, located in, or within ten miles of, such city or village, or for the purpose of establishing or maintaining a kindergarten or other school or institution of learning therein."
Under L. 1927, c. 180, the attorney general is entrusted with the duty of representing the beneficiaries of a charitable trust, and it is his duty to enforce such trusts. This provision is in accord with authorities in general and the common law. See, Restatement, Trusts, § 391; 2 Bogert, Trusts and Trustees, § 411, p. 1255; 12 Minn. L.Rev. 653.
While this provision is not applicable here, for the reason that the trust could not have been created under this statutory provision, it does serve to demonstrate the policy of the legislature to leave to the attorney general the power of enforcing a charitable trust. We held in Longcor v. City of Red Wing,
Respondent cites M. St. L. R. Co. v. Lund,
No showing has been made in this case that the attorney general has refused or will refuse to perform his legal function. If that situation arises, we shall have another question before us. See, State ex rel. Town of Stuntz v. City of Chisholm,
Reversed. *263