Wiggin v. Berry

22 N.H. 114 | Superior Court of New Hampshire | 1850

Gilchrist, C. J.

The will in this case provided, that after the decease of David Wentworth the farm should go to the present and future inhabitants of the district provided they would pay the taxes thereon, and annually appropriate ti» or net profits thereof for the purpose of keeping a school for the benefit of the inhabitants. By the codicil the land is devised to the inhabitants of the district, to be under the sole direction of the district, to be solely appropriated to keeping a school in the district.

In the month of April, 1825, the legal voters of the district joined in a lease of the farm to Jacob Wentworth for the term of nine hundred and ninety-nine years. Wentworth died, and his widow and children remained in possession of the premises. Mrs. Wentworth married Berry, who is now the tenant in possession. The codicil provides, that if the conditions thereof shall not be complied with, 'or if the property or the use thereof should be prevented from the use therein mentioned, the land should revert and go to his nephews, their heirs and assigns forever, for the purposes aforesaid. In other words, if the trust should not be performed by the district, the nephews of the testator should hold the farm in trust for the purposes contemplated by the will. This, in our opinion, was the intention of the testator, which is to guide us in ascertaining the rights of the parties. Whatever interest the testator’s nephews took under the will. they had power to assign by the express language of the will. Upon what terms, if any, the assignee would take the property, whether charged with the trust or not, it is unnecessary here to determine. But the condition was not complied with, which required the annual profits of the farm to be appropriated for the purpose of keeping a school in the district for the benefit of the inhabitants. By the provision, then, of the will, the legal estate of the property became vested in the testator’s nephews, and such estate as they had, and could convey, is now held by the demandant by virtue of their conveyances. What duty devolves on the demandant need not now be decided. It is sufiicient for this case that the nephews could transfer some interest which is now held by the demandant.

But the legal voters in the district could convey no title whatever to the demanded premises. The legal estate was in other persons, who held it for the benefit of the inhabitants of the disTffiufc. _ mu® labboi, cvuBcquciibiy, were merely cestwis que trust. The legal voters are not mentioned in the will, and the inhabitants are not designated by the will as the holders of the property. The lease by the legal voters could convey no legal interest and is no answer to this suit.

Yarious questions as to the execution of this trust may arise hereafter, which it would be premature to consider at present, and upon them we give no opinion. But the demandant, having a deed from the trustees under the will, may recover the land against the tenant.

Judgment for the demandant.