Opinion
No. 3688.
Decided November 4, 1947.
A petition for instructions concerning the specific use of a testamentary trust fund, bequeathed by a non-resident, may be maintained here where both the corporate trustee and the funds are within this state and the trust functions here in accordance with the terms of the trust. Where the income from a testamentary trust fund, bequeathed for the "support of suitable and proper teachers for the only and sole instruction of females," is no longer sufficient to maintain a female seminary, established in compliance with the terms of the trust, such income may properly be appropriated, to more effectively accomplish the testator's purpose and within his intention, to such part of the cost of instruction as may be equitably apportioned to the education of females in a municipal co-educational system. Where the primary intention of the testator can be accomplished without change of beneficiaries by a deviation, from the express terms of the trust, affecting only the machinery, management and method of administration, resort to the doctrine of cy pres is not necessary and will not be permitted.
PETITION by the town of Exeter, as trustee, for advice concerning the use of the income from a testamentary trust established by William Robinson in his will executed in 1853 and probated in Richmond County, Georgia, in 1864. The petition is brought in behalf of the town by the trustees of Robinson Female Seminary, appointed by authority of a special legislative act (Laws 1867, c. 96), and a committee on co-education constituted by the Exeter School District. The defendants are the heirs of the said William Robinson, a guardian ad litem appointed "for all minors, all persons interested and as a representative of the heirs of William Robinson," the Attorney-General of the state of New Hampshire and the state of Georgia.
The pertinent clause of the will of William Robinson reads as follows:
"Fourth: The residue or balance of my property, I give and bequeath to the town of Exeter in the State of New Hampshire and County of Rockingham, being the place of my nativity; the income of said property, and no more, to be appropriated forever to the support of suitable and proper teachers for the only and sole instruction of females; and I most respectfully suggest, that in admitting applicants, all other things being equal, always to give the preference to the poor and the orphan.
"I expect the town of Exeter will provide a suitable building for a Female Seminary, and that the interest on the amount of money it will receive from my Estate will be appropriated to the payment of suitable teachers, contemplated by me to be employed in instructing females. If the inhabitants of the town of Exeter act in accordance with my suggestion, they will in a few years have a flourishing Female Seminary.
"In my poor opinion there is altogether too much partaking of the fancy in the education that females obtain, and I would most respectfully suggest such a course of instruction as will tend to make female scholars equal to all the practical duties of life, — such a course of education as will enable them to compete, and successfully too, with their brothers throughout the world, when they shall have to take their part in the actual of life.
"I have given my mite for this purpose, and, if good comes of it, I shall not have lived in vain."
A comprehensive report by the Master (Hon. Elwin L. Page) was approved by the Presiding Justice (Goodnow, C. J.) who found all facts in the Master's report to be "true and correct" and decreed: (1) "that the predominate purpose of the will was to give girls an equal education with boys and that William Robinson had no intention of saddling on his native town a separate secondary educational system," and (2) "that the will of William Robinson can better be carried out by the abandonment of separate education of the sexes and by the adoption of co-education."
The court transferred without ruling the following questions together with the recommendations of the Master thereon:
"1. Under the will of the late William Robinson may males and females be educated in a co-educational system and the money from the Robinson Fund be used to support teachers solely instructing females.
"2. Under the will of the late William Robinson may the income from the Robinson Fund be used to support teachers on a pro rata or other basis instructing both males and females.
"3. Under the will of the late William Robinson may the income from the Robinson Fund be used to support teachers in a co-educational system rather than a female seminary.
"4. Under the will of the late William Robinson may the income from the Robinson Fund be used for general educational purposes in a co-educational system."
Other pertinent facts appear in the opinion.
John W. Perkins (by brief and orally), for the plaintiffs.
Ernest R. D'Amours, Attorney-General, and Edward J. Reichert, Law Assistant, pro se.
The remaining defendants filed no briefs.
The trust fund established by William Robinson was accepted and received by the town of Exeter and the state of New Hampshire (Laws 1867, c. 96) and has been administered continuously in this state in accordance with the will since that time. The objection of one of the heirs, Malcolm T. Curtis, Jr., to the jurisdiction of this state over the administration and construction of the trust is overruled. Fernald v. Church, 77 N.H. 108, 109; Restatement, Conflict of Laws, ss. 298, 299; Greenough v. Osgood, 235 Mass. 235; Cadbury v. Parrish, 89 N.H. 464. Since both the corporate trustee and the fund are within this state and function therein in accordance with the intent of the testamentary trust, there is no question of the jurisdiction of this court to entertain the petition. "This only court which may supervise a trust and give instructions to a trustee is the court at the seat of the trust." 2 Beale, Conflict of Laws, s. 299.1; Harvey v. Fiduciary Trust Co., 299 Mass. 457. Presumably the Georgia court would reach the same conclusion. See Fain v. Nix, 189 Ga. 772, 776.
William Robinson, as stated in his will, was born in Exeter (1793); attended Phillips Exeter Academy and was employed therein until 1817, when he left Exeter and began a successful business career in Georgia. He "made his will with regard solely to the circumstances in Exeter as he had known them in the first two decades of the nineteenth century as youth and young man — that Exeter had an academy for the secondary education of boys and no provisions for girls." In the will itself or the record "there is no evidence to attribute to him hostility to co-education." His paramount intention and predominant purpose was to give girls a practical education equal to that received by boys. The Master has found and the court has decreed that he "had no intention of saddling on his native town a separate secondary educational system." In the light of these competent surrounding circumstances the Female Seminary building "is properly to be regarded merely as a subordinate detail of his larger educational project." Borchers v. Taylor, 83 N.H. 564, 570. The predominant purpose of the trust and his larger educational project is well stated by the testator: ". . . such a course of instruction as will tend to make female scholars equal to all the practical duties of life, — such a course of education as will enable them to compete, and successfully too, with their brothers throughout the world, when they shall have to take their part in the actual of life."
The income from this trust fund ($16,000) is now sufficient to pay only slightly over one-half the cost of instruction alone and less than one-half of the total costs of operation, and therefore the buildings are inadequate, obsolete, in disrepair and constitute a fire hazard. Correlation of these facilities with those of the Exeter High School, limited to boys, has been ineffective, unnecessarily expensive and retards the present and future development of secondary education in Exeter as appears from studies made by the town and school district of Exeter as well as the State Board of Education. It thus appears that the use of the seminary buildings is no longer an effective means of accomplishing the testator's purposes. It further appears that in view of the limited income insistence upon separate education, by teachers restricted to "the only and sole instruction of females," will substantially impair accomplishment of the purpose to give them an "equal education with boys." The passage of time and changes in circumstances allow a court of equity to permit a deviation in the manner of accomplishing the main purposes of the testator (3 Scott, Trusts s. 381) or, if necessary, to apply the doctrine of cy pres. 3 Scott, Trusts s. 399.
"The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if owing to circumstances not known to the settler and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purpose of the trust." Restatement, Trusts, s. 381, comment d. The abandonment of separate education of females in the seminary and the adoption of co-education can be accomplished under this rule without resort to the doctrine of cy pres so long as the Robinson trust income is devoted solely to the instruction of females. 3 Bogert, Trusts (Part 1) s. 561; Restatement, Trusts, supra, comment f. If the income of the trust fund were to be used for the instruction of boys or for general educational purposes, that would be an application to a different charitable purpose and would be cy pres. 3 Scott, Trusts s. 399. Under the circumstances such a use of the fund is not necessary and is not permitted. The beneficiaries of this fund are females and there is to be no change of beneficiaries in order that the primary intention of the testator may be accomplished. It is only the machinery management and methods of administering the trust wherein a deviation is permitted. Such a deviation is particularly warranted since the will contains no forfeiture or reverter clause. Keene v. Eastman, 75 N.H. 191; Petition of Rochester Trust Co., ante, 207.
The findings and recommendations of the Master and the findings and decree of the court are affirmed. The first question is answered in the affirmative. The second and third questions are answered in the affirmative, subject to the restriction that the income shall be appropriated to such part of the cost of instruction as may be equitably apportioned to the education of females. The fourth question is answered in the negative.
Case discharged.
All concurred.