
    Caleb E. Nourse vs. Asaph Merriam & others.
    A will contained the following provisions: “ I give, bequeath, and devise unto part of the inhabitants of the town of B. and unto a part of those persons who may become inhabitants of said town of B., to wit, all that are now, cr may become, inhabitants of said town of B., excepting” nine persons named, “and their descendants,” a certain sum of money, “ upon the following conditions, to wit, said town of B. is to loan said sum and secure the payment of the principal and interest by a mortgage or mortgages upon real estate, the principal is to be kept as a permanent fund, the interest is to be expended yearly after two years from my decease, in the support of one school, to be kept near the centre of said B., in which such academical instruction shall be given, as said town shall decide to be most useful,” “ said school is to be free to all persons who are now or may become inhabitants of the town of B., excepting such persons as do not conform to proper rules and regulations that shall be established in said school by said town, and such persons as said town shall determine to be of an unsuitable age, and the aforesaid ” nine persons “ and their descendants, who are excluded from attending said school for the term of one hundred years, and after the expiration of said term of one hundred years, the school is to be free to all the inhabitants of said town of B. who comply with the rules of said school.” “ Said town of B. is to be paid, by my executors, the aforenamed sum within two years from my decease with interest on the same from the day of my decease.” “ Whenever the town of B. shall fail to fulfil the above conditions, the said” sum of money “ shall become the property of my legal heirs.” “ I also give, bequeath, and devise unto the same aforenamed inhabitants of the town of B., to whom I bequeathed ” the money, certain land described, upon condition that “ said land is to be used for the purpose of erecting a school-house upon it for the use of the school aforenamed, and to become the property of my heirs, whenever said land shall be used for any other purpose, after the expiration óf two years from my decease.” It was held, that these provisions constituted a valid legacy and devise to the town in its corporate capacity, for the support of a public school for the benefit of all the inhabitants; and that the condition, excluding certain persons and their descendants from the school, being repugnant to the nature of the grant, and contrary to law and public policy, was inoperative and void.
    This was a petition for a writ of mandamus, dated the 6th of March, 1850, and brought by Caleb E. Nourse, a minor of the age of eighteen years, and Caleb Nourse, his father and next friend, against the school committee of the town of Bolton.
    The petition set forth that Joseph Houghton, late of Bolton, deceased, made his last will and testament, which was duly proved and allowed in December, 1847, and by said will among other devises and bequests, made the following: “ Item. I give, bequeath, and devise unto a part of the inhabitants of the town of Bolton, and unto a part of those persons who may become inhabitants of said town of Bolton, to wit, all that are now inhabitants of said town or may become inhabitants of aid town of Bolton, excepting Joseph Sawyer, John E. Fry, Henry Jewett, Christopher C. Moore, Oliver Barrett, Jr., Caleb Nourse, Nathaniel A. Newton, Thomas Houghton, and Samuel Nourse, and their descendants, the sum of twelve thousand dollars upon the following conditions, to wit, said town of Bolton is to loan said sum of twelve thousand dollars, and secure the payment of the principal and interest by a mortgage or mortgages upon real estate. The principal is to be kept as a permanent fund, the interest is to be expended yearly, after two years from my decease, in the support of one school to be kept near the centre of said Bolton, in which such academical instruction shall be given as said town shall decide to be most useful; said school is to be continued through the whole of each year, excepting necessary vacations; said school is to be free to all persons who are now inhabitants of the town of Bolton, or may become inhabitants of said town, excepting such persons as do not conform to proper rules and regulations that shall be established in said school by said town, and such persons as said town shall determine to be of an unsuitable age, and the aforenamed Joseph Sawyer, Henry Jewett, John E. Fry, Christopher C. Moore, Oliver Barrett, Jr., Caleb Nourse, Nathaniel A. Newton, Thomas Houghton, and Samuel Nourse, and their descendants, who are excluded from attending said school for the term of one hundred years, and after the expiration of said term of one hundred years, the school is to be free to all the inhabitants of said town of Bolton, who comply with the rules of said school. No person is to be considered eligible for a teacher in said school for more than two years. Whenever the said town of Bolton, shall fail to fulfil the above conditions, the said twelve thousand dollars shall become the property of my legal heirs. I also give, bequeath, and devise unto the same aforenamed inhabitants of the town of Bolton, to whom I bequeathed twelve thousand dollars, eighty rods of land, [described,] upon the following conditions, to wit, said land is to be used for the purpose of erecting a school-house upon it, for the use of the school aforenamed, and to become the property of my heirs, whenever said land shall be used for any other purpose, after the expiration of two years from my de cease. Said town of Bolton is to be paid, by my executors hereafter named, the aforenamed sum, twelve thousand dollars within two years from my decease, with interest on the same from the day of my decease.”
    The petition further stated, that the town of Bolton, on the 11th of September, 1848, voted to accept the legacy; and on the 5th of December, 1848, voted that the school be carried into effect in two years from Houghton’s decease; that a school-house be built upon the land devised, and that the town treasurer be authorized to obtain a loan of $600, on the credit of the town for that purpose; chose a building committee, and a committee to receive the legacy and loan the same upon the conditions named in the will; and voted to appoint the school committee, that should be chosen at the annual meeting in March, 1849, to take charge of said school, and report a code of rules and regulations for the government thereof, to be acted upon by the town ; and that, on the 8th of January, 1849, the town voted that the town treasurer be authorized to obtain a loan of $1,000, upon the credit of the town, to be used in payment of the expense of said schoolhouse, and that the town reserve $100 yearly, from the interest accruing from the $12,000, until the reservation should amount to enough to pay the loan of $1,000 and interest: That the school-house was afterwards erected by the town, and used and occupied for the purposes of the school at and for three months previous to the date of the petition : That the town, on the 10th of September, 1849, adopted a code of by-laws for the regulation of said school, (which were set forth in the petition,) regulating, among other things, the times of keeping the school, the age, scholarship, and character required for admission into the school, and the powers and duties of the school committee: That on the 8th of December, 1849, at a meeting called, among other things, “ to see whether, in the management of the Houghton school, the town will abide by a provision in the will of the late Joseph Houghton, by excluding certain individuals, named in said will, and their descendants from said school, or disregard said provisions by voting said school free to all the inhabitants of the town,” the town, on motion, that the town disregard the" provision in the will of the late Joseph Houghton, whereby certain individuals are excluded, and vote it a free school,” voted in the negative ; and further voted, “ that the school committee be instructed not to receive the children of the rejected ones into the Houghton school: ” That the school committee had employed a teacher of said school, and had examined many of the children of the inhabitants of Bolton for admission, and had admitted them into the school, and had taken the school under their charge; but had refused to examine, or admit into the school, any of the persons excluded by the will; and that the petitioners believed that they were unjustly and unlawfully deprived of the advantages, which, as inhabitants of said town, they ought to share and enjoy in the public school education designed for all the inhabitants thereof: That on the 4th of March, 1850, the respondents were chosen the superintending school committee of the town for the current year, and accepted the trust: That the petitioners by a written application represented to the school committee, that the minor petitioner was above the age prescribed by the by-laws, being eighteen years of age, and that, as they believed, he was able to sustain a fair examination in all the requisite branches of education, and requested that he might be examined accordingly, and, if found qualified, be permitted to attend said school; which application was rejected by the committee, only because he was the son of one of the persons excluded by the will: That this was not a valid and sufficient reason, first, because the restriction and limitation by the will of the enjoyment of the advantages of said school were void; and, second, because the school was a public one, established in part by taxes levied upon the inhabitants of the town, managed by them, and ought to be open for the instruction of their children, irrespective of the names of their parents. The prayer of the petition was, that a mandamus might issue to the school committee, commanding them to examine Caleb E. Nourse for admission into said school, and, if found qualified in scholarship and character, to issue a certificate authorizing him to receive instruction in said school.
    
      The inhabitants of Bolton and the school committee- answered, admitting that the petition set forth correctly the devise and legacy given in Houghton’s will, the acceptance thereof by the town of Bolton, the votes and measures adopted by the town, and by the school committee acting under the authority and instructions of the town; and that the minor petitioner was of suitable age, and that he made application to them to be examined for admission into the school so established, and that they declined to examine him on the ground that he was the son and descendant of Caleb Nourse, named in the will, and for no other reason. The answer further stated, that since the adoption of the votes and resolutions mentioned in the petition, the town at a legal meeting instructed the school committee to adopt all honorable measures to have the children of the persons named in the will share in the benefits of said school, if it might be done without a forfeiture of the devise and legacy of Houghton: That the respondents, regretting the provisions of Houghton’s will, excluding any inhabitants of Bolton from the benefits of said school, had yet felt themselves constrained in the execution of the trust, to follow with exactness the provisions of the will. And the school committee, “ desirous of executing with fidelity the trust committed to them, and also of admitting, if they may lawfully so do, the said Caleb E., and the descendants of all other persons named in the will of said Houghton, to the benefits of said school,” submitted themselves to the direction of the court.
    This case was argued at the October term, 1850, by
    
      E. Washburn, for the petitioners.
    
      B. F. Thomas, for the respondents,
    submitted the case without argument.
   Shaw, C. J.

Seldom has the court been called upon to put a construction upon a will of so peculiar a character as that on which the present case depends. It attempts to make a donation to a municipal corporation, with a view of promoting an object substantially common and general to all; and yet to exclude certain persons named, and their descendants, from all participation in its benefits, for one hundred years. Several questions arise, which it is necessary to consider, all of which depend upon the construction of the will of Joseph Houghton; and it will be necessary to cite all those parts of it, which can have any bearing upon those questions. [Here the chief justice read that part of the will set forth, ante., 12, 13, 14.]

The first material question is, who were the legatees and devisees under this will? Were the legacy and devise to the inhabitants in their corporate capacity, excluding a certain number named; or were they to individuals, in their natural capacities ? The testator seems to have supposed, that he could give land and money to a part of the inhabitants, by a special designation, and exclude others. It is perhaps possible so to frame a donation of money or personal property, as to vest it in all the inhabitants of a town or other territorial district, excluding certain persons named. It might be possible, though extremely difficult, to ascertain all the inhabitants; then, by excepting those named, there might be a sufficient descriptio personarían to enable them to take aliquot parts, in their natural capacities. But were such a course admissible in any case, it would not be applicable in this. If such a right of property once took effect, and vested in the donees individually, it would not be devested, though they should cease to be inhabitants the next day. The gift, in the present case, is not only to those who are actual inhabitants, when the will is made, or at the decease of the testator, but to all those who may become inhabitants of a growing town, during the next hundred years. Such a transmission of property, either real or personal, cannot be effected by will; it is contrary to the rules of law. It is manifest, we think, that it was the expectation of the testator, that the property should be taken and held by the inhabitants of Bolton, present and future, and go to them in succession. This could not be done, treating the will as a donation to individuals to take and hold in their individual capacities. The property, on that theory, so far as it was real, must go to them and their respective heirs, in fee; and so far as it was personal, would be absolute in the first taker.

But whatever vague notion the testator may have had, about giving to a part of the inhabitants; taking the whole will together, as we must, to ascertain the meaning of anyone clause, we think it quite manifest that the property was to vest in the town, as a corporation. The first clause, designating a part of the inhabitants, if it stood alone, might lead to a contrary conclusion. But it is controlled by other clauses, showing that the donee was the town. The money is to be paid by the executors to the town, within two years. The town is to lend the money, to be secured by a mortgage. A mortgage to whom ? To the town, a body politic, capable of taking a mortgage to itself? Or to many hundreds, perhaps thousands, of inhabitants? Again; the interest is to be a perpetual fund to support a school in the centre of the town, where such instruction is to be given as the town shall decide to be most useful. If the town shall fail to fulfil the conditions, the gift is to be forfeited to the heirs of the testator.

There is nothing peculiar in the devise of real estate; it is only of a lot for the school-house, incidental to the principal gift, and to be forfeited if the land shall be used for another purpose after two years. Now, if the money is to be forfeited on the failure of the town to comply with the conditions, the holding or forfeiture of the land must depend upon the act or failure of the town. We think it very clear, that it was not the intent of the testator, to give the property to one set of persons, to hold in trust for the benefit of another; because the donees and the beneficiaries, who are to have the advantage of the school to be established, are described and designated in the same terms. Taking the whole will together, then, notwithstanding the formal words of gift are to a part of the inhabitants of Bolton, described afterwards to be all the inhabitants of the town, with the exception of nine persons named, and their descendants, for one hundred years, after which the school should be for the benefit of all the inhabitants,— which is the true designation of the town as a corporation,—we are of opinion that the gift was to the town, in its corporate capacity, with an intent, for a limited time, to exclude certain persons and families, both from taking the gifts and from enjoying the benefits. This was the view taken of it by the town, who accepted the gifts, received the money, and proceeded to establish the school.

Then supposing these gifts of personal and real estate are to the town as a corporation, excepting therefrom nine inhabitants by name, and their descendants, for the support of a school for all the inhabitants, except the nine mentioned and their descendants, is such a will valid ? Can it be carried into effect according to its terms ? If it cannot, shall it be judicially held that the will, in this respect, is wholly inoperative and void; or how otherwise shall it be construed ? We have no doubt that a municipal corporation, a town, in Massachusetts, is competent to take and hold real and personal estate in its corporate capacity, for the promotion and advancement of any of the purposes, for which these corporations are established ; not only those for which such town may raise and assess money on the inhabitants by taxation, but to analogous purposes, or those of like kind; such as are for the common convenience and accommodation of the inhabitants, though not required by law. Vidal v. Girard, 2 Howard, 128. And it has been held, in this commonwealth, that, as one of the great functions of a town is to maintain and support schools, their power in this respect is not limited to the schools specially required by law to be supported, but they may voluntarily raise money to support schools of a higher character, and where education is carried to a higher degree than in the common town schools. Cushing v. Newburyport, 10 Met. 508.

These gifts, therefore, were valid, so far as the power of the town of Bolton to take and hold is concerned, and so far as the purpose is to support a school, under the authority and direction of the town, for the common benefit; and the objection lies in the attempted exclusion of some of the inhabitants. If the force of the objection lay in the difficulty, not to say the impracticability, of carrying it into execution, it would be certainly very great. Taking nine inhabitants, already, for aught that appears, at mature life, and taking the average number of those who may live to be married, and the average number of children to a marriage, it is hardly too much to say, that at the expiration of a hundred years, they would form a large proportion of the inhabitants. Then is to be considered the difficulty, after four or five generations, of ascertaining, when a child is offered for the school, whether one of his remote ancestors, through either a male or female, was not a Sawyer, a Fry, or a Jewett, and if so, whether a descendant of one of the proscribed individuals. But formidable as this objection is, it does not form the ground upon which we decide. The court are of opinion, that this part of the will is inoperative and void, and cannot be carried into effect; because it is repugnant to the nature of the grant; in violation of the fundamental principles of equality, upon which the rights and privileges, as well as the duties and burdens, of citizens of towns are regulated; contrary to good morals and public policy.

Equality in burdens and in privileges is the great regulating principle of these bodies, without which they run into infinite confusion, and tend to the grossest injustice. Should any question arise in regard to the title to this property, suits must be prosecuted or defended by the town; the expenses would be a charge upon the treasury of the town, and so upon the tax-paying inhabitants, including those who are excluded from all benefit in the property. Should a person in early life marry a wife, a descendant of one of the excluded persons, and have children, then lose his wife, marry another and have other children, the children of the same family, in going to school, must separate at the dividing point, one set being allowed to go to the privileged high school, whilst the others must be content to go to the inferior common school. The effect would be to impose unequal duties, and to grant unequal privileges, to those who stand, in the eye of the law, on a footing of entire equality. Were the only alternative, between holding that this part of the will must be carried into effect, or declared wholly void, we should be strongly inclined to hold it void. But we think the case does not present that alternative. It is a valid grant to the town, for a purpose within the scope of their authority. The object of the testator was to establish a public school, ultimately for all the town. But for a term of one hundred years, the children of certain inhabitants ar? excluded. What the motive of the testator was does not appear; and perhaps it would not be profitable to inquire. But this intent, whatever it is founded on, was secondary to the main purpose of establishing a public school, strictly and properly a town • school. Then the restriction, being repugnant to the nature of the grant, and contrary to law and public policy, is itself inoperative and void, and leaves the grant to the town as a grant for all the inhabitants, as if no such exclusion had been inserted.

Writ of mandamus grcmted.  