
    The Inhabitants of East Sudbury versus Belknap et al.
    
    Property was bequeathed to the town of F., the annual interest of which was to be applied, under the direction of the selectmen for the time being, for the support of the testator’s children, grandchildren and great-grandchildren, if any of them should stand in need of support; otherwise, for the support of the poor of the town. A great-grandchild was furnished with necessary support by the plaintiffs, the town of E., where he had his settlement. The plaintiffs requested the selectmen of F to reimburse the expenses, and provide for the future support of the pauper, and afterwards sued the pauper and recovered a judgment, which remained unsatisfied. Held, that the plaintiffs were entitled to be reimbursed from the trust fund, upon a bill in equity; that the town of F., and the selectmen for the time being, should be made parties to the bill, but that the pauper need not be ; and that this Court had chancery jurisdiction of the case, by virtue of St» 1817 > 87.
    This was a case in equity, under St. 1817, c. 87,»against Belknap and others, selectmen of the town of Framingham.
    The bill alleges, that one Micah Stone, in August 1813, made his will, by which, after providing for the payment of his debts, &c., he gave and bequeathed the principal of all the vemain¿er 0f his estate to the inhabitants of the town of Framingham, and vested all the income and interest of the same in the selectmen of the town, legally chosen, at the time of his decease, and in their successors forever, in trust for the support of any of his children, grandchildren and great-grandchii dren, if any of them should stand in need of support; or, otherwise, the trustees were ordered to apply the same to the support of the poor of the town ; and that afterwards, on the 26th of September of the same year, the testator died, and on the 13th of October following the will was proved and allowed.
    The bill further states, that Edward Goodenow, a minor, is a great-grandchild of the testator, and that, on the 10th of August, 1819, he, having his lawful settlement in East Sud-bury, was in indigent circumstances and stood in need of sup port; that the plaintiffs furnished him with necessary support from that time until April 1820, at the expense of 36 dollars, 52 cents ; and on the 9th of September, 1819, they by their overseers of the poor gave notice to the respondents, then, and at the time of the filing of the bill, being selectmen of Framingham, and requested them to reimburse the expenses, and provide for the future support of Goodenow, which the respondents refused. They also allege that they had, on a suit against Goodenow, recovered judgment against him for the amount of the expenses and costs, but that the judgment had never been satisfied ; of which they allege due notice to the respondents, and a request to them to pay the judgment. They then allege that the respondents became trustees of the fund provided in the will, and that they accepted the trust. The bill concludes with interrogatories to the respondents, and a prayer for such relief as is suitable to the case.
    At a former term the respondents demurred to the bill, but the demurrer being overruled, an answer was put in, which ad-mils the will as stated in the bill, and that the respondents viere selectmen of Framingham ; but they deny that they have accepted the trust under the will, unless certain facts which they state amount to an acceptance ; and they set forth that the town- of Framingham had chosen agents to settle with the ex ecutor of the will and receive of him all the money and proceeds of the estate of the testator, which, pursuant to the will, belonged to the town, and that the agents had, pursuant to their authority from the town, taken possession of the real and personal estate devised and bequeathed, and had delivered over all the money and securities and proceeds of the estate, which had come to their hands, to the treasurer of the town; and that nothing thereof had come to the hands of the respondents. They state, also, that they have frequently drawn orders on the town treasurer in favor of the creditors of the town; but not upon any particular fund, excepting a certain fund called pew money, which has no relation to the subject of this bill; and that the town has annually chosen a committee to audit the treasurer’s accounts, and that the committee have annually settled the accounts ; which sums have been credited as accruing from the testator’s legacy, and been charged by the treasurer as paid towards the support of the poor. They admit that the pauper is a great-grandchild of the testator, and that his settlement is in East Sudbury, but deny any knowledge of his circumstances,, except from the information of the plaintiffs or of the overseers of the poor of that town.
    The cause was argued in the vacation in writing.
    Tyler, for the plaintiffs.
    A legal estate or right in the prop erty vested in the defendants, and they are bound to apply the income, upon the happening of the contingency, and upon their having notice of it from any man or body of men that "as incurred the expenses contemplated in the last will of the tt stator. The plaintiffs stand in the relation of cestuis que trust tc the defendants, although Goodenow is to have the ultimate benefit of the legacy. Bartlett v. King, 12 Mass. Rep. 537. And there must be many bequests in trust, where from their nature individuals or corporations are to enforce the execution of t.1 e trust, as standing in that relation, although others are designed to have the ultimate benefit of the bequest, who have no power to interfere in enforcing the execution of it, and are not known in any other way than by a certain existing description. Attorney-General v. City of London, 3 Bro. Ch. Cas. 171 ; Moggridge v. Thackwell, ibid. 517 ; Attorney-General v. Clarke, Amb. 422. There is no difference in principle between this case and the cases cited, except that here the plaintiffs have advanced the money, which they were obliged to do, which gives them a stronger claim in equity to be reimbursed. It would have been improper, then, to have made Goodenow a party to the bill; or to have alleged collusion between him and the respondents ; the want of which allegation was assigned as one of the grounds of demurrer. Every selectman, duly chosen in Framingham, and having accepted the office, became a trustee ex officio ; .and it appears by the respondents’ answer, in which they deny receiving the income of the property, that they had the control of it ; which is a coming to their hands, within a reasonable construction of the terms. They had the power of drawing upon the treasurer, who in respect to the effects of the testator was the servant of the selectmen as a board of trustees, and no doubt can be entertained that they have actually applied the income to the support of the poor of the town of Framingham. It could answer no purpose to make the treasurer a party, who could answer only that the property was in his hands subject to the order of the selectmen. The inhabitants of Framingham have no interest in the suit. Their interference with the property was wrong. They have no right to dispose of the capital stock nor of the income. The trustees have a discretion unlimited by any act of the town. The answer of the respondents is, in short, that they have stood by, and yielded to intruders, which has rendered them unable to discharge the duties of their trust.
    Hoar, contra.
    
    The respondents have sufficiently answered the bill, by alleging that they have never accepted the trust, and that they have no funds in their hands. It is not easy to see the reason for asserting, that, by accepting the office of selectmen, the respondents accepted the office of trustees, as neither they, nor their predecessors, ever interfered with the property of the testator. If they are hoi den liable in this case. they may be obliged to commence a suit against the town of Framingham for the money. The Court will require all who are interested in the property to be made parties, that perfect equity may be done. 2 Mad. Chan. 143, 144, 147 ; Russell v. Clark's Executors, 7 Cranch, 98.
    If the respondents were trustees, still they are not liable to pay the money claimed. The trustees of this fund ought to be consulted as to the manner of expending it by the cestui que trust. Application should have been made to them by Goodenow. Besides, the plaintiffs have elected to consider Goodenow as their debtor, and have sued him and obtained judgment. The difference between the right of the plaintiffs, and that of any other judgment creditor of Goodenow, supposing the debts to have been both originally contracted for necessaries, is not very apparent. It will be observed by the Court, that no collusion between the respondents and Goodenow is alleged in the bill. Cooper’s Eq. PI. 175, 176. If, therefore, the respondents are holden to pay the money now demanded, it should seem that they are bound to pay all the debts which Goodenow and the other descendants of the testator may contract, to the extent of the property bequeathed. A creditor to the estate of a bankrupt cannot sue one of the bankrupt’s debtors, until the assignees have refused to bring the suit. Cooper ubi supra. So a creditor must sue an executor, but cannot sue a debtor to the estate. It should seem, therefore, that unless the plaintiffs show that they have requested Goodenow to demand this money of the respondents, and that he has refused, they cannot sustain this action against any person holding this trust money.
    Tyler, in reply.
    It must have been the intention of the testator to provide for his family, so as to meet any possible emergency. They may fall into distress in any town, and the town where they have a settlement may not know of the fact, until expenses are incurred which it is by law obliged to reimburse. It would be impossible in such a case to consult with the trustees as to the expenditures. But it is not competent for the respondents to make any point of this nature. They should have pleaded it, and the plaintiffs would have had an opportunity of stating facts in reply. The plain tiffs sued the pauper himself by virtue of St. 1817, c. 186, § 5, whjcjj js a cumulative remedy. The judgment, if unsatisfied, could not be pleaded in bar to a suit upon another remedy against the same person ; Storer v. Storer, 6 Mass. Rep. 890 , a fortiori it cannot in this suit, which is against a different party. It is said, that if the trustees are holden to pay in this case, they should seem to be bound to pay all the debts which the descendants of the testator may contract, to the extent of the property bequeathed. They truly are bound to pay to that extent for the support of his descendants, if they stand in need , for his descendants have the priority of the poor of the town of Framingham. The principles laid down at the close of the argument on the other side do not apply. The plaintiffs are the cestuis que trust to enforce the execution of the trust for the benefit of Goodenow, a pauper and an infant, who has no agency or interference at all in the concern.
    
      
       The words of the will were, “ I give and bequeath to the town of Framingham all the remainder of my estate, of wnat name or nature soever, under the following regulations and restrictions ; —the annual interest to be applied, under the direction of the selectmen of the said town for the time being, for the support of my children, grandchildren or great-grandchildren, if any of them shall stand in need of support; otherwise, it may be applied to the support of the poor of said town; but no part of the principal shall ever be expended. — Reporter,
      
    
   The opinion of the Court was delivered at this term, by

Parker C-. J.

At a former term the respondents demurred to the bill, because other parties interested in it were not inserted, and because, as they alleged, the Court had no jurisdiction, there being a plain and adequate remedy at law. But the demurrei was overruled, the bill being amendable, if the Court should be of opinion that others ought to be made parties, at any time before a final decree, and because the relief sought is clearly within the jurisdiction given to the Court by statute ;' there being, according to the facts stated in the bill, a trust arising under a will, which is one of the few subjects distinctly committed to the chancery jurisdiction of the Court ; and it also being doubtful whether any remedy exists at law ; and, if any, it being certain that all parties interested can be heard, and their rights protected, better in this form, than in a common law action.

Several questions arise out of the facts which may be considered as proved or admitted by the bill and answer. That there was a trust created by the will for the benefit of the lineal descendants of the testator, and of the poor of the town of Framingham, there can be no doubt. Such was the manifest intention of the testator, and it is well enough expressed by the words of the will. His object seems to have been, to prevent any of his descendants, for several generations, from becoming subjects of public or municipal charity. The income of the fund is to be applied to the support of any of his children, grandchildren, or great-grandchildren, who should stand in need of'support. Considering the terms made use of by the testator as descriptive of the situation of those for whom he meant to provide ; the disposition of the capital of the funds which he charged with this trust; and the public character of those he selected for the care and appropriation of the income; and also the contingent application of the funds to the poor in general of the town ; — it is very clear that the degree of necessity, which he contemplated as entitling his posterity to relief from this fund, must be such as would, if this relief were not applied, entitle them to support from the town, according to the obligation imposed upon it by the laws of the Commonwealth. The real intent of the testator was to lighten the burden of the town in the support of its poor; and he first provides for those of his own blood who might fall into that unhappy condition, supposing, no doubt, that any such who might become chargeable would have their settlement in the town of Framingham ; though, for want of a limitation in this particular, other towns may derive a benefit from a provision probably not intended for them ; for we can have no doubt, that, from the words of the will, the descendants of the testator within the degrees limited by him, wherever they may be, would be entitled to aid from this fund, when they should become subjects of public charity.

Such being the nature of the trust, we are to inquire who are the trustees appointed by the will. The fee of the real and the capital of the personal estate are by the will vested in the inhabitants of the town of Framingham ; but the income and interest of both are given to the selectmen of that town, who should be in office at the testator’s decease, and to their successors in office for ever, on the trusts above described. This separation of the capital and income, giving to one body the control of the former, and to another of the latter, creates some difficulty in ascertaining which of them, according to the real intent of the testator, is to be considered the trustee, liable to a process for a compulsory execution of the trust; but we must determine this question so as best to effectuate the intention of the testator, conformably to the principles and rules of equity decisions in analogous cases.

There can be no doubt, that it was intended to vest the property in the inhabitants of the town in their corporate capacity ; the beneficial end and purpose of the bequest being eventually and substantially for their interest ; and it is not improbable that he, or the person who drew the will, was doubtful whether the selectmen, not being a corporate body, nor yet considered as private individuals, were capable of taking and holding property in trust. Indeed, they could only take-as individuals, and that was not his intention, for he evidently had regard in his confidence, not towards the members of that body individually, for he did not know who from time to time would compose it, but towards the body politic or town, which he trusted would always have discretion enough to depute substantial and careful men to that office. He intended that the selectmen from time to time should be the distributors of this bounty as agents for the town, they being ex officio overseers of the poor, when the town should omit to choose other persons specially for that office ; and he probably thought they would be the best judges of the occasions which might arise for the application of the fund 'to the support of any of his descendants. Vesting the income in them was, then, nothing more than giving them authority to receive it, when there should be occasion, and appropriate it according to his will, the town itself being the trustee or legal owner of the property, and having the custody of it and of the income of it until called for by them to execute the provisions of the will; and the town so construed the will, as appears by the manner in which the property has been managed. It is therefore necessary, that the inhabitants, in their corporate capacity, should be made parties to any suit in relation to this trust, and no decree can be passed until they have opportunity to be heard. But it is also necessary, that the present parties should remain in the bill, for, in their capacity of selectmen, they have a power over, and an interest in, the income of the fund, and without their approbation it could not be applied to the uses of the will. It is like those cases in which principals and agents are both made parties, in order that the decree may reach and affect both, and also protect each from the claims or demands of the other.

There can be no doubt, we think, that, when all the parties are before us, we have, by virtue of the statute which confers equity powers on the Court, jurisdiction over the subject so as to compel an execution of the trust; for it is a trust created by will, which is expressly comriiitted to this Court by that statute, and there is not a perfect remedy at law, for the selectmen are to exercise their discretion in appropriating the proceeds uf the fund, and it is only a court of equity which can control that discretion, or compel a proper exercise of it; besides which, the peculiar state of this fund, the capital being in the hands of the town and the income under the care of the selectmen, renders it necessary that a tribunal should be resorted: to, which can order all parties in interest before them and, make such a decree as will bind and proteo all.

^But there is another question in the case, ant- nat is, whether the present plaintiffs have such an interest in the fund, in consequence of having supported the great-grandchild of the testador, as will entitle them to a decree in their favor for indemnify. We have not been able to find any case sufficiently like this to serve as a precedent. The subject matter of a trust under a will being before us, we are authorized by the statute to investigate and adjudicate upon it according to the principles and practice which govern other courts of chancery.

Bills are brought in England and in New York by creditois who are interested in any fund of their debtor which may be placed in trust, it being required as a preliminary to the filing of the bill, that judgment shall have been obtained against the debtor. M’Dermutt v. Strong, 4 Johns. Ch. Rep. 687 ; Brinkerhoff v. Brown, ibid. 671 ; Williams v. Brown, ibid 682 ; Bayard v. Hoffman, ibid. 450.

In the case before us, the plaintiffs have obtained judgment against Goodenow, the great-grandchild, for the amount of supplies which they were obliged by law to furnish him, he having fallen into distress, and having a settlement in the town of East Sudbury. This is an expense which the defendants ought to have relieved them from, out of the funds committed to them by the testator, upon notice given to them as stated m the bill and not-, denied. The pauper is their debtor by judgment of court, a\d they have no other means of being reimbursed. They certainly have strong claims in equity ; and we think they m:y be enforced by a decree of this Court.

We had some question whether Goodenow should not be made a party to the bill5 we think, however, that it is not necessary.

Let the bill be amended.  