Trustees of the South Newmarket Methodist Seminary v. Peaslee

| Superior Court of New Hampshire | Jul 15, 1844

Gilchrist, J.

The bequest in this case is to “ The Franklin Seminary of Literature and Science, Newmarket, N. H.” It appears that in the year 1834 a public school was commenced in South Newmarket, also called Newfields Tillage, the land having been purchased and a building erected by twenty-eight persons, who subscribed money for that purpose. The school was taught for about two years by Mr. Buck, a Methodist clergyman, and was encouraged by the Methodists generally, but when Mr. Buck ceased to instruct it, it was discontinued for a few months.

On the 7th day of January, 1837, the plaintiffs were incorporated by the name of the “ Trustees of the South Newmarket Methodist Seminary.” On the 30th day of June, 1837, the subscribers requested the persons who held the legal title to the land, to convey it to the plaintiffs, which was accordingly done. There has been no other public school in Newmarket than the school referred to.

The will was dated on the 12th day of August, 1839, and the testator, who was a Methodist clergyman, resident at Plaistow, died on the 29th day of January, 1840.

The testator has made a bequest to a seminary at Newmarket. There was but one seminary there, and that bore a name resembling the name used in the will, only in the use of the words “ Seminary” and “ Newmarket.” Whether this be the seminary intended, or not, is ambiguous, and the question arises whether the ambiguity be latent or patent ?

Every claimant under a will has a right to require that a court of construction, in the execution of its office, shall, by means of extrinsic exidence, place itself in the situation of the testator, the meaning of whose language it is called upon to declare. Wigram on Ex. Ev. 59, 138. A latent ambiguity is that which seems certain, and without ambiguity for anything that appears upon the instrument, but there is some collateral matter out of the deed that breeds the ambiguity. Sugden on Vendors 101, (1st Am. Ed.) This is perhaps the clearest definition of a latent ambiguity to be found in the books. There are other definitions, more complex, and therefore not so practically useful. In all cases in which a difficulty arises in applying the words of a will to the thing which is the subject matter of the devise, or to the person of the devisee, the difficulty, or ambiguity which is introduced by the admission of extrinsic evidence, may be rebutted and removed by the production of farther evidence upon the same subject, calculated to explain what was the estate or subject matter really intended to be devised, or who was the person really intended to take under the will. "Where an estate is devised to a person whose description is imperfect or inaccurate, parol evidence is admissible to show who was the devisee intended to take, provided there is sufficient indication of intention appearing on the face of the will to justify the application of the evidence. Tindal, C. J., Miller vs. Travers, 8 Bingh. 244.

There it nothing ambiguous in this bequest on the face of the will. It is found upon inquiry that there is a seminary at New-market, but it is not called by the description given in the will. The extrinsic evidence raises a difficulty in the application of the words of the will, and makes it doubtful whether that be the seminary intended by the testator. This ambiguity thus raised, is a latent ambiguity; and as it is caused by the introduction of extrinsic evidence, so it may be removed in the same manner. Now if the evidence in this case, in the words of Lord Coke, 8 Rep. 155, “ stands well with the words of the will,” it is competent, and will aid us in ascertaining the meaning of the testator.

There was only one public school at Newmarket, and this was taught by, and under the control of Methodists, although it does not appear that it was a sectarian school. The testator was a Methodist clergyman, and once asked another Methodist clergyman to what institution he should make a donation, and was told, “the Franklin Seminary at South Newmarket.” This name was written down by the testator’s wife, at his request, and placed by him in his pocket book. The evidence tends strongly to show that he did not know that the name of the school had been changed. He inquired how the school at South Newmarket prospered, and often spoke about it.

Now, these facts clearly show that the testator had in his mind the school which was afterwards incorporated by its present name. What its peculiar designation was, must have been indifferent to him, for it was the institution, by whatever name it was known, which he desired to patronize and benefit. It is a strong argument for the plaintiffs, that they possess every substantial claim to his favorable notice, whether arising from their location, them purposes, or their general religious views. No other institution is alluded to in the case, which he can be supposed to have desired to benefit. It cannot, of course, be expected that authorities or cases can be found in the books where circumstances, precisely similar to those in the present case, exist, but the decisions and the reasoning in numerous cases go far enough to authorize the admission of this evidence.

In the case of Selwood vs. Mildmay, 3 Ves. 306, the testator devised to his wife part of his stock in the four per cent, annuities of the Bank of England; and it was shown by parol evidence that at the time he made his will he had no stock in the four per cent, annuities, but that he once had some, which he sold out, and had invested the produce in long annuities. It was held that the bequest was in substance a bequest of stock, using the words as a denomination, not as the identical corpus of the stock; and as none could be found to answer the description but the long annuities, that stock should pass rather than the will be altogether inoperative. In Day vs. Trig, 1 P.Wms.286,there was a devise of all the testator’s freehold houses in Aldersgate street, where in fact he had no freehold houses, but had leasehold houses. The devise was held in substance and effect to be a devise of his houses there ; and as there wore no freehold houses there to satisiy the description, the word freehold should rather be rejected than the will be totally void. A devise to the “ may- or, jurats, and town council of the ancient town of Rye,” was held to be good, though they were incorporated as the mayor, jurats and commonalty. Attorney General vs. Rye, 7 Taunt. 546. Gibbs, C. J. said that the intent was to give to a corporation, and that there was no other corporation of any similar description. A testator created a trust for the payment of an annuity to his brother, Edward Parsons, for life, and after his death the same to go equally among his children by his present wife. At the time of mating the will the testator had no brother living except Samuel Parsons, who had a wife and children; but, four or five years before, ho had had a brother named Edward, who was then dead, and legacies were given by the will to his wife and children. The testator had been in the habit of calling his brother, Samuel, Edward and Ned. It was held that the children of Samuel wore entitled. Parsons vs. Parsons, 1 Ves. jr. 266.

These authorities are sufficient to show the propriety of admitting the parol evidence in this case. Perhaps the case may more properly come within the operation of the rule,/afea demonstratío non oioeet. It is characteristic of the cases within that principle, that there is a sufficient description of the object or subject intended, independent of the erroneous description. In the case of Miller vs. Travers, 8 Bing. 244, Lord C. J. Tindal says that the cases of Selwood vs. Mildmay, and Day vs. Trig, above cited, properly come within this rule. In Connolly vs. Pardon, 1 Paige 291, Mr. Chancellor Walworth says, “ if a legacy was-given by a testator to his brother John, and it turned out in evidence that he had but one brother, whose name was James, there could be no doubt that the latter would be entitled, because the description of brother in that case would alone bo sufficient, and the name would be rejected as surplusage.” Enough of certainty must remain, after rejecting the falsa demonstratio, to ascertain the object or subject matter intended. Kenyon, C. J., Thomas vs. Thomas, 6 T. R. 676. “If the testator does err in the name but not in the person, such error shall not hurt.” Swinburne on Testaments 389. If in this case the devise had been to “ the Seminary at Newmarket,” as there was one seminary only, the plaintiffs would undoubtedly have been entitled to the benefit of it. And we think that, both upon this ground, and because the extrinsic evidence clearly shows that such was the intention of the testator, the plaintiffs are entitled to recover in this action. Jackson vs. Clark, 7 Johns. 217; Jackson vs. Sill, 11 Johns. 212; Jackson vs. Loomis, 18 Johns. 84; 19 Johns. 450.

As to the evidence of the testator’s declarations at the time of making the will, the authorities are that they are admissible to show who he meant by the description of the devisee. Hodgson vs. Hodgson, 2 Vernon 593; Harris vs. Bp. of Lincoln, 2 P. Wms. 135; Duke vs. Duchess of Rutland, 2 P. Wms. 215; Thomas vs. Thomas, 6 T. R. 671; Whitaker vs. Latham, 7 Bingham 628; Farrar vs. Ayres, 5 Pick. 409. But declarations made after or before the time of making the will, are said to be incompetent. But it is unnecessary to settle the point in this case. Our opinion is that the legacy was intended for the benefit of the plaintiffs, and that they are entitled to recover the legacy of five hundred dollars.

The other question in the case is, whether the plaintiffs are entitled to recover the sum of $2000.00, bequeathed to them in trust, that the income should be paid to the Methodist Ejfiscopal Church.

The weight of authority seems to be that corporations cannot be seized as trustees for purposes foreign to their institution. A corporation has no powers other than such as are specifically granted by the' charter, or are necessary for the purpose of carrying into effect the powers expressly granted. The People vs. Utica Ins. Co., 15 Johns. 358. They have no powers but such as are granted expressly or incidentally; such powers and capacities as are given them and none other. The People vs. Trustees of Geneva College, 5 Wend. 217. A corporation is a mere political institution, a creature of the legislature, having no other powers than such as are given to it by its creator, or such as are incidental or necessary to carry into effect the purposes for which it was established. Fire Ins. Co. vs. Ely, 2 Cowen 678. They cannot act as trustees in any matters in which they have no interest. In the matter of Howe, 1 Paige 214. Neither the supervisors of a county, who are a corporation for special purposes, and with special powers only, nor any other corporation, can hold land in trust for any other purpose than that for which the corporation was created. Jackson vs. Hartwell, 8 Johns. 420. A corporate body is the mere creature of law', and derives all its power from the act of incorporation. Head vs. The Providence Ins. Co., 2 Cranch 128. The act of incorporation is to them an enabling act. It gives them all the power they possess. Marshall, C. J., Ibid. 169. That a corporation is strictly limited to the exercise of those powers which are specifically conferred on it, will not be denied. The exercise of the corporate franchises, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the charter. 4 Peters 168, Beatty vs. Lessee of Knowler; McLean, J. From the marginal note to the case of the Trustees of Phillips Academy vs. King, 12 Mass. 546, it might be inferred that the powers of corporations to act as trustees were not limited, as the above authorities would seem to indicate. The note is, “ an aggregate corporation is capable of taking and holding property as a trustee.” But that decision is consistent with the others. By the provisions of the original deed of the donors, it was made the duty of the master of the seminary to instruct students not only' in the truths of Christianity, but upon certain doctrinal points. The grantees were afterwards incorporated, and were prohibited from acting contrary to the design of the donors. A donation was subsequently made, for the purpose, among other things, of educating students for the ministry. The trustees were invested with farther powers by the legislature to receive additional donations for the support of a theological institution, and a devise was made to tbe trustees for tbe use and benefit of tbe theological institution. But it was held that as tbe plaintiffs were trustees to execute tbe will of tbe donors, as set forth in tbe deeds of conveyance, and that as tbe charter gave them powers to enable them to execute tbe intent, they might lawfully perform tbe trust. And such was tbe view taken of this decision in tbe First Parish in Sutton vs. Cole, 3 Pick. 240. In commeúting on that case, it was said by Parker, C. J., that “it was considered, that as tbe trust created was consistent with tbe purposes of tbe original institution, tbe corporation might be trustees of tbe property so bestowed.”

In tbe present case, tbe corporation are authorized to estabbsb an institution in tbe town of Newmarket, “ for tbe instruction of youth.” Receiving and paying money for tbe support of missionaries is certainly an object foreign to tbe purposes of tbe corporation. Tbe advancement of missions and tbe instruction of youth in Newmarket are different fields of action. These objects are pursued in different modes, and tbe operations are carried on in places far distant from each other'. We are of opinion that tbe plaintiffs cannot execute tbe trust declared by tbe will. Tbe verdict must be amended, by reducing it to tbe sum of $500.00 and tbe interest thereon,'and for that sum tbe plaintiffs are entitled to

Judgment on the verdict, as amended.