Proprietors of White School House v. Post , 31 Conn. 240 ( 1862 )

Dutton, J.

In 1792 thirteen residents of the society of Gilead in the town of Hebron, built a school house called “ the white school house,” of which of course they were the proprietors. In 1811 John Curtiss, a resident of the society, by his will, executed on the 10th of May, 1810, made the following bequest: — “ I give for the purpose of supporting a common winter school in the white school house standing near Wells’ land in Gilead, one hundred pounds lawful money, the interest of which shall be annually applied to the support of such school in said house or some other house on or near the same place. And I order my executors to retain said hundred pounds and pay the interest thereof annually for the purpose aforesaid.” He also appointed David Post and Diodate Post, who were father and son, his executors. They accepted the trust and applied the interest for the benefit of the school. In 1814, on the application of the proprietors of the school house, they were made a corporation, capable of receiving, holding and managing the said donation, as a corporation for that purpose only.” Three of the proprietors were appointed a committee “ to receive said donation of said executors, and give suitable receipts and discharges therefor, to hold the same, they and their successors in office, forever, to and for the use and purpose aforesaid.” Provision was also made for holding meetings of the corporation, choosing officers, and especially appointing successors to the committee. The interest was regularly applied as directed, sometimes through the agency of the committee and sometimes otherwise, until the death of David Post in 1840, who, after making certain legacies, devised the residue of his estate both real and personal to his three sons, DiodatePost, JedediahPost and Elijah Post, equally, and made this further provision with regard to the Curtiss fund in his hands: — “ And furthermore my will is that the fund given by Mr. John Curtiss deceased to the proprietors of the white school house so called, be paid to said proprietors by my son Diodate Post, out of the legacy given to him, and not out of my other estate.”

W e think that in the absence of any proof to the contrary this shows sufficiently that Diodate Post, after the death of his father, held this fund; and he evidently so regarded it himself, as he annually paid the interest, so that it was applied to the support of the school, until his death in 1860. He made a will appointing Ichabod Post the respondent his executor, and giving to him as residuary legatee more than four thousand dollars. The committee of the corporation, and certain heirs at law of the original proprietors, presented a claim against the respondent as executor of Diodate Post, for the one hundred pounds and the interest that had accrued. He admitted the claim for interest up to the death of Diodate Post, and tendered that amount, but denied all further liability and gave notice to that effect. No suit was brought within the time limited by the statute as to claims which are thus disallowed.

The grounds of defense in the case, with the exception perhaps of the statute of limitations, are chiefly of a technical character. The facts which have been stated, and many others found by the court which it has not been thought necessary to detail, show beyond any reasonable doubt that the respondent holds in his hands over three hundred dollars, to which he has not a shadow of claim, and which ought to be sacredly preserved and applied for the benefit of education in the white school house, according to the benevolent purpose of the donor.

We should entertain a strong feeling of regret if we were compelled by the strict rules of law to allow the respondent to divert this donation from its object and enjoy it himself. Still, if we found the objections to granting relief insuperable, we should not feel warranted in over-riding well established rules and principles, to do justice in a particular case.

The general grounds taken by the respondent are, that the petitioners have no right to sue for this money, and if they have,, that their only remedy was in a form of action which they have neglected to bring until it is too late. In the first place, he says that the petitioners have no standing in court; that, as to the principal petitioner, the corporation, it was not in existence when the gift took effect; that no title ever passed, even prospectively to any such body; and that if the corporation has any right to sue, it is to recover the principal as well as interest, and not the interest alone.

We think that this corporation can bring this suit. The trustees under the will of John Curtiss had no personal interest whatever. The discharge of the duty of taking care of this fund and applying the interest, was apparently a mere burden. The whole beneficial interest was vested, either in the proprietors of the white school house or in the public at large. If it was in the proprietors, it could be treated like any other trust fund. Nothing is more common than for a court of chancery to change trustees, or to supply them if necessary to carry out the purposes of the trust. In 1814 the legislature exercised various chancery powers, and no question has ever been made of their ability so to do prior to the adoption of the constitution in 1818. Besides, the corporation was created at the request of the proprietors and was constituted chiefly or wholly of them. The application to the legislature may be regarded therefore as one made by them to have the legislature, acting as a court of chancery, remove the old trustees and appoint a new one. As this would be within the undisputed powers of a court of chancery, it is un-' necessary to inquire whether there were or were not sufficient reasons for the change. Luke v. DeLambert, 4 Ves., 592.

But the legislature had full power to create this corporation and vest it with the authority to receive and hold, and of course sue for and collect this money, independent of any chancery powers. The legislative department has full jurisdiction over all merely remedial proceedings. In Hine v. Belden, 27 Conn., 384, it was held that it was competent for the General Assembly to change a pending suit from a criminal to a civil one. The statute regarding estates authorizes suits to be brought in the name of the judge of probate to collect debts and legacies. Doubtless an act authorizing all civil suits to be brought in the name of some public officer would be constitutional, and might be made to apply to past as well as future causes of action. In the present case the legislature has merely authorized a suit to be brought for the benefit of the cestuis que trust of this legacy, in the name of this corporation.

One or two objections which have been raised require to be noticed, although of but little weight. One is, that the act in question did not constitute a corporation. It is, to say the least, very late in the proceedings to raise such an objection. But it is clearly without foundation. The whole object of the proceeding was to create a body able to hold property. Besides, by the very language of the act, the grantees were to act as a corporation.

It is further insisted that the suit should have been brought by the committee, as it is provided that they are to call for and receive the donation. There can be no reasonable doubt however that they were to act merely as a committee, that is, as agents of and in the name of the corporation.

It is further claimed, and probably correctly, that this is a charity or public trust; that in England in such cases the Attorney.General is the person to bring suits to enforce the trust, and that by .analogy this suit should have been brought by the attorney for the state. We think this probably would have been the proper course in the absence of any action of the legislature in this particular case. In England the Attorney General brings the suit because he represents the king, the guardian of the rights of the public. But there can be no doubt that Parliament, of which the king is a constituent part, could authorize some other person to do it in all cases or in some particular case. Here the legislature of this state expressly authorized this corporation to receive this money and impliedly to sue for it, and it is immaterial whether a suit could be brought by the attorney for the state or not.

It is claimed further that the other petitioners could not be joined with this corporation in bringing this suit for want of interest. We think this claim is unfounded. These other petitioners do not seek to recover the money themselves They ask merely that the court would order that it be. paid to such of the petitioners as the court may find to be entitied to receive it; in other words, that the corporation may receive it. As descendants of the original proprietors of the white school house, however, they have an interest in that building. The money is to be expended for a school to be kept for the present in that building. Their lights therefore will be affected by the use of the money in the continuance of that school, so far at least as to give them a right to be heard, and if they are to be made parties at all, it is proper that they should if they please be petitioners, because they are in favor of having relief granted by the court. We can not see how the defendant can be prejudiced in the least by the joinder of them as petitioners.

In the second place, it is strongly insisted that the respondent can not be treated as a trustee of this fund. It is admitted that he might have been made liable as executor, if the proper steps had been taken, but it is said that the executor of a trustee is not himself a trustee, unless he voluntarily becomes so. But Ichabod Post is an executor of Diodate Post, and Diodate Post was an executor of John Curtiss. By a familiar rule of law, Ichabod Post is thereby the executor of John Curtiss. As such it is his duty to execute the will of the testator regarding this donation. He might have excused himself by showing that no assets came into his hands, but this he has wholly failed to do. On the contrary the facts found by the court below show that this identical fund has come into his hands with full knowledge of the trust. Enough appears to charge him, even if he has not become the executor of John Curtiss.

In the third place the respondent resorts to the objection that the petitioners had adequate remedy at law. He insists that their right, if ■ any, is to collect the principal as well as the interest, and that they could do this by an action of assumpsit.

We think it is immaterial whether the petitioners could maintain assumpsit or not. The respondent we have seen voluntarily assumed the situation of trustee. It does not lie in his mouth to disclaim that position. All trusts are peculiarly within the jurisdiction of a court of equity.

The corporation in this instance is authorized to manage as well as to receive and hold this money. It can allow the respondent to retain it and account for the interest, although it may have the right to demand and collect the principal. Besides, the most appropriate remedy at law to recover the money would be the action of account, and by statute concurrent jurisdiction is given to courts of equity with courts of law, as to all matters remediable by that action. Acts of 1855, chap. 55.

This view of the case puts an end to the objection that this suit was not commenced within the time limited by statute, where a claim against an estate has been presented to an executor or administrator and payment refused. There was no need of presenting the claim at all. The defendant as executor knew of this trust, and was bound by the principles both of law and morality to carry the will of the donor into effect.

The superior court is therefore advised to decree the payment to the corporation of the interest which had become due when the petition was brought.

In this opinion the other judges concurred.