Gagnon v. Wellman , 78 N.H. 327 ( 1917 )

If the language the testator used is given its ordinary meaning, his controling purpose in making this bequest was to dispose of his property in such a way that it would prove a "lasting benefit" to the inhabitants of the parish and in that way perpetuate his memory and that of his family. The provision that the money be used to build a church to be known by his name is merely the scheme he devised to effectuate that purpose. The property therefore was not given to the parish on condition that it build a church to be known by the testator's name, but was given to it in trust to be used for the benefit of the inhabitants. Such a bequest, — one intended to benefit the inhabitants of the world, Fernald v. Church, 77 N.H. 108, or those of a particular state, Haynes v. Carr, 70 N.H. 463, or those of a particular city, Keene v. Eastman, 75 N.H. 191, constitutes a public trust. Since this is so, the bequest will not fail even if the plaintiffs' contention that the parish church cannot be known by the testator's name is sound; for it is the court's duty, whenever a testator's intention can be ascertained and is legal, to effectuate it. This is as true when the scheme the testator devises for that purpose breaks down, or is for any reason illegal, as when his scheme is both legal and workable. Adams Academy v. Adams, 65 N.H. 225; Edgerly v. Barker, 66 N.H. 434; Haynes v. Carr,70 N.H. 463; Haywood v. Spaulding, 75 N.H. 92; Adams v. Page, 76 N.H. 96; French v. Lawrence, 76 N.H. 234; Smart v. Durham, 77 N.H. 58; Fernald v. Church, 77 N.H. 108; Wentworth v. Wentworth, 77 N.H. 400. If, therefore, the parish finds that the church cannot be known as the "Camille Gagnon Church," it will be its duty to apply to the court for relief, and the court will formulate a plan for administering the trust, by which the property can be used in such a way that it will at one and the same time "prove a lasting benefit to the people of said parish" and perpetuate the testator's memory and that of his family for many generations.

Case discharged.

All concurred.