Paulmier v. Howland. It is to be noted that this statute not only makes general mention of the property of the several parts of the district, but specifies, as though reaching towards the property here in question, land "held by any of said districts for school purposes under deed" to the district, or to persons as trustees for the district, and that it provides that the conveyance by "the trustees of the consolidated district shall vest in the purchaser the same title which the original deed to such district or its trustees was intended to convey to them." This statute, taken literally and applied to the case in hand, appears to be designed to substitute trustees, and to permit those substituted trustees to part with the legal title. They are to give to the purchaser merely the title which the deed from Childs gave to the trustees of School District No. 17-that is, the land in trust, to permit it to be used by the inhabitants of the township of Morris for a public school, and for no other purpose. But the statute contains a proviso that the proceeds of the sale shall be devoted to the erection of a building for educational purposes within the new consolidated district. This provision conveys the idea that substantial value is to be had for the property. That such value cannot be had for the mere legal title is patent. The legislature must have had in contemplation the sale of more than the naked legal title. Did it contemplate a destruction of the trust? It has not been made to appear that the land in question was purchased with public funds. The proofs do not disclose the source from which the payment for it came, and the recitals of the deed do not assist in an inquiry upon this subject. They are * to "In consideration of the sum of one hundred and fifty dollars * * them in hand well and truly paid and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged and the said parties of the first part therewith fully satisfied and contented and paid." There is no recital that the consideration came from the public, or from the grantees, and I am not prepared to say that any presumption arises, from the character of the grantees, that the con Paulmier v. Howland. sideration was paid from public funds. If it were otherwise procured it could not be changed or destroyed by legislative act, for though the township might be nominal cestui que trust, its inhabitants were the real beneficiaries of the trust, with equitable rights entitled to protection. If, in such case, by reason of changed circumstances, it was fitting to alter the condition of the trust property, application should have been made to a court of equity and not to the legislature. Newark v. Stockton, 17 Stew. Eq. 191. It is perceived that the legislative act does not proceed upon equitable principles, for if it contemplates a conveyance free from the trust it takes the use from the whole body of the inhabitants of the township, and, by putting it into the school-house of a district which does not comprehend the entire township and includes a portion of another township having no interest in the trust, it deprives a portion of the inhabitants of the township of the benefit secured to them by the trust, providing no equivalent or compensation for their loss. But, if it be considered that the fee is in the township by action of the statute upon a mere passive trust, what is the situation? The legislative act did not, in express terms, authorize the sale of township property; it authorized a sale of property held by any of the small districts for school purposes, under any deed or deeds of conveyance to such district, or to persons as its trustees. Did such language authorize a body foreign to the township to convey its property? This interrogation presents a question of statutory construction by no means free from difficulty. When the deed to Bates was made, the title presented four questions: Whether a charitable use for the lives of the trustees named in the conveyance from Childs and the then inhabitants of the township was created? Whether an active trust in fee was created? Whether the use in fee was converted into a legal estate in the township? and whether the deed to Bates, under the statute, passed more than an estate in trust for the original purposes declared in the deed from Childs? And it is to be noted that if the first question is answered in the affirmative, and only a life estate was created, the heirs at law of Francis Childs will take the remainder when the life estate Paulmier v. Howland. -expires; and if an active trust was created for a charitable use in fee, that the attorney-general may intervene to protect it; and if the corporate township took a fee, that it may question the legality of the legislative appropriation of its property. The conveyance to Bates was in 1869-twenty-two years before the filing of this bill and fifteen years after the trustees of the consolidated district took possession of the property under authority of the act of 1854. Until the deed to Bates, the property was occupied as a school-house lot, in accordance with. the provisions of the original trust. The proofs are silent as to the character of the occupation since that time. It is insisted that the complainant either has title by adverse possession or will be protected in possession of the property by a court of equity, because of the acquiescence of those who might have disputed his title, in his and his grantor's expenditures in their purchases of the land and their acts of ownership over it. The difficulty I experience at this point is, that the manner in which the complainant and his grantor have held possession has not been proved; nor has it been shown to what extent acquiescence has gone. If the land was granted for charitable use, can there be an acquiescence or an adverse possession which will destroy it? If a life estate was granted by Francis Childs, the proofs do not show that it has terminated, but they do exhibit that Mr. Childs died in 1858, leaving children, and that in 1869 there were infants and femes covert among his heirs at law, who have emerged from disability within the last twenty years. There are so many perplexing questions presented in this case, which threaten the complainant's title to this property and depend for solution, not only upon proofs that are not before me, but also upon the construction which is to be given to the limitations in the deed from Childs and the terms of the legislative act of 1854, both of which appear to be badly expressed and inartificial instruments, that, in the exercise of the discretion allowed me in this form of action, I feel constrained to deny the prayer of the bill. In doing so, I intend that it shall be distinctly understood that I do not affirm invalidity of the title. Paulmier v. Howland. I simply recognize that the title is burdened with difficult and unsettled questions, which rise above mere speculation, theory and possibility, and so stand in the way of a free alienation of the land that the land should not be forced upon the defendant. It is to be remembered that the judgment in this case is in personam and not in rem, and that the decree I may make for the complainant will not settle the questions suggested as to those who are not parties to this suit. It is urged that it is clear that the heirs of Childs have nointerest, and that the only parties who may possibly question the title are the attorney-general, in case there be a charitable use, and the township of Morris, if the fee vested in it, and that, as the proceeds of the sale to Bates have been devoted to the use that was contemplated in the deed from Childs, there is no reasonable probability that either of those parties will intervene. I cannot yield to this suggestion. I think danger of question from one or the other of these sources is to be apprehended, from the fact that the original grant was to the inhabitants of the township of Morris, while those who presently enjoy the proceeds of sale of the property are the inhabitants of a district. which, while it does not include the whole of Morris township, extends its limits and benefits into another township. It can hardly be said to be improbable that some day the excluded inhabitants of Morris township may insist upon a solution of the unsettled questions. It is said in Fry Spec. Perf. § 862: Though every title must in itself be either good or bad, there must be many titles which the court cannot pronounce with certainty to belong to either of these categories in the absence of the parties interested in supporting both alternatives, and without having heard the evidence they might have to produce, and the arguments they might be able to urge; and it is in the absence of these parties that the question is generally agitated in proceedings for specific performance. The court, when fully informed, must know whether a title be good or bad; when partially informed, it often may and ought to doubt." The decisions in our own state accord with my conclusion. Johnson v. Hubbell, 2 Stockt. 332, 334; Dobbs v. Norcross, 9 C. Crane v. Bolles. E. Gr. 327; Tillotson v. Gesner, 6 Stew. Eq. 313; Cornell v. Andrews, 8 Stew. Eq. 7; S. C. on appeal, 9 Stew. Eq. 321, and the cases cited by them. I would reach my conclusion with greater reluctance if the complainant is in quiet possession of the land, so that he cannot test his title by ejectment, were it not for the act to compel the determination of claims to real estate and quiet the title to the same (Rev. p. 1189), which affords him the means to set at rest the doubts which induce the result I reach. The bill will be dismissed, with costs. 49 373 52 AUGUSTUS CRANE and THOMAS N. BOLLES, executors of the 53 will of Nathan Bolles, deceased, V. 14 53 690 49 373 60 123 60 124 60 125 60 127 60 128 49 373 d61 256 EZRA B. BOLLES et al. 1. Where a will imperatively required the executors thereof to sell real estate in fee after a short time, and during that time to control the property by leasing it, collecting the rents, paying the taxes, insurance and repairs, and incidental expenses in its management, and made no other disposition of the property-Held, that the fee went to the executors in trust for the purposes aforesaid. 2. Where a testator imperatively provided that his real estate should be sold by his executors, and that the sale should take place upon the request or by the consent of a majority of his "said children," he having previously named his children-Held, (a) that a majority of the whole number of children, although some are dead, must unite in the request or consent; (b) that the provision for the request or consent of the children, in view of the scheme of the will, did not confer upon them discretion to defeat a sale. 3. If the spirit of the whole direction of the will clearly exhibits that the testator intended that his real estate should, in all events, be converted into money, then, notwithstanding discretion may have been given to his children as to the time when the sale would take place, the real estate must be considered as converted into money from the testator's death. 4. A testator having directed divisions of moneys among his children from time to time after his death, provided that the issue of any child "who may hereafter decease" should "receive the share or portion" to which their 61 635 49 373! 64 324 |