Opinion
Decided May 1, 1934.
Upon the refusal of a town to accept a bequest for the care of a cemetery lot a trustee should be appointed therefor. A testator's expression of the wish that "if she [the legatee] does not need it wish her to give it to the worthy poor" creates a charitable trust. The duties of an administrator c.t.a. with respect to trust funds cease upon his payment thereof to the legally appointed trustee. A bequest having been made "to the home Missionary Society" four years after its merger and the disuse of its name, the bequest was properly payable to another society existing as the successor of the former and in the church of which the testatrix was an attendant and which continued the home missionary work therein.
PETITION, for instructions. The testatrix, Serena P. W. Upton, died in 1928, leaving a will executed in 1908.
The petitioner seeks direction as to the following items.
One hundred dollars was bequeathed to the town of Stoddard, "to have and to hold the same to keep in good condition and repair the Elias Whitney family lot in the new cemetery in said town, using each year, such part of the interest as may be necessary to keep the lot (keeping the ground. wharfed up to the bottom of the iron posts) the tombstones and fence in good repair, painting said fence whenever needed (so that it may not rust). And should it become necessary to get a new headstone for either, I desire such a part of the principal to be used for it, as will be a suitable amount for that purpose, and with the same inscription upon it, as the present one has."
The town of Stoddard refused to accept the legacy.
Forty dollars was bequeathed to the town of Winchendon, Massachusetts, "to have and to hold the same, using such part of the interest of said sum annually as may be necessary to be used to keep the Jacob Whitney lot, situated in the old cemetery at the middle of said town in good condition, keeping said Whitney stone upright. As the stone is ancient and when the lettering becomes indistinct, I desire such a part of the principal and accumulated interest to be used to purchase a desirable gray marble headstone (with the same verse inscribed upon it as is on the present one) as may be thought best, and the interest of what remains of said sum to be thereafter used in keeping said lot and stone in good condition." The town of Winchendon has refused to accept said bequest.
One hundred dollars was bequeathed to Mrs. Felicia H. Bancroft with the statement that "if she does not need it wish her to give it to the worthy poor." Mrs. Bancroft is dead.
One thousand dollars. was bequeathed to the Christian Herald editor, Dr. Klopsch, N.Y. "in trust to have and to hold the same for benevolent uses, among poor suffering humanity, where it will do the most good in the world in accordance with his judgment." Dr. Klopsch died in 1910.
The eighteenth item of the will provides as follows: "In case my property doesn't hold out to pay all that I have willed, I request the amount to Dr. Klopsch be reduced sufficiently to enable the estate to do it, but if there is more than enough to pay, I give and bequeath the balance to the home Missionary Society."
The estate is more than sufficient to pay all legacies.
The testatrix was an attendant at the First Congregational church in Keene. Prior to 1904 there was an organization connected with said church known as the Woman's Home Missionary Society which was commonly called Home Missionary Society. In 1904, the Woman's Home Missionary society was merged with the Every Day club of said church; and that club took over and carried on the local missionary interests formerly the work of the society until 1925, when it united with two other organizations of the church to become the Woman's society of the First Congregational church. This society has continued to the present time to carry on the work and duties formerly performed by the Woman's Home Missionary society.
The foregoing facts being agreed to, the case was transferred without ruling by Burque, J.
Charles A. Madden, pro se.
Chester B. Jordan, for the Woman's society.
Francis W. Johnston, attorney-general, for the state.
The bequests to the towns of Stoddard, N.H., and Winchendon, Mass., respectively for the care of cemetery lots, with provisions for expending the principal, do not fail because of the refusals of the towns to accept the same. A trustee for each trust should be appointed. While the bequests are small, they can be used so as to promote in some degree the objects the testatrix had in mind.
The wish expressed in the fifth item of the will that the legacy, if not needed by the legatee, be given to the worthy poor, created a charitable trust. Trustees of Pembroke Academy v. School District, 75 N.H. 408, and cases cited. A trustee should be appointed.
The same situation exists as to the gift to Dr. Klopsch.
While future doubts as to the correct administration of some or all of these charities may arise, they will not concern the executor. His duties will cease upon payment to the duly constituted trustees. Whatever difficulties they may have will be settled in proceedings brought by them. Haynes v. Carr, 70 N.H. 463.
Upon the facts reported it appears with sufficient certainty that the "Home Missionary Society" named in the will was the society that name formerly existing in the church attended by the decedent. Although this name was abandoned four years before the will was executed, the home missionary work in the church was continued by the successor society. No suggestion has been made of any other society which the testatrix could have had in mind. The residue of the estate goes to the Woman's society of the First Congregational church in Keene.
Case discharged.
All concurred.