Samuel Nelson

“ But if the court should come to the conclusion that the legal estate vested in the society, and not in the trustees, we insist that the heirs at law of the testator, by virtue of a condition against alienation, would not in that case, before condition broken, have an interest in the property beyond the control of the legislature. ”

“ It is true that the word 'proviso' is an appropriate one to constitute a common law condition in a deed or will, but this is not the fixed and invariable meaning attached to it by the law in these instruments. On the contrary, it gives way to the intent of the parties as gathered from an examination of the whole instrument, and has frequently been thus explained and applied as expressing simply a covenant or limitation in trust. ”

“ The heirs cannot recover, unless they can show that the devise was upon some condition, or that there was some limitation made in the will in their favor.
It is not sufficient to show that the lands have been diverted from the use for which they were devised, or that they had not been enjoyed by the beneficiaries in the particular manner described by the testator; for where lands have been devised to a charitable use in fee simple, the heir has no more interest in and no more right to the lands than he has when they are devised to an individual in fee simple, either directly or in trust. ”

“ The only active duties of the society-the beneficiaries-is to receive the rents and profits for their own use and benefit. Of course, the trustees, subject to the limitations and restrictions annexed to the enjoyment of the estate, possess all the power and dominion over it that belongs to an owner, and are bound to take the same care of it and exercise the same attention, skill, and diligence in its management that a prudent and vigilant owner would exercise over his own. ”

“ Admitting that the power of the legislature is so far limited and restricted by general principles of law that it cannot, by any act of legislation, destroy or impair a vested and beneficial right in property, it would not follow that the act in question was void. ”

“ Formerly courts of law did not recognize or admit the power of the court of chancery to enforce the performance of covenants and the execution of trusts, and therefore words which would not now be construed to import a strict condition were allowed to have that effect when such a construction was necessary to give a remedy. [66]
Charities are favored in law, and they have always received a more liberal construction than the law will allow in gifts to individuals; and the same words in a will, when applied to individuals, may require a different construction when applied to a charity. ”

“ On the other hand, if these limitations are to be regarded as regulations to guide the trustees, and explanatory of the terms upon which the devise has been made, they create a trust which those who take the estate are bound to perform; and, in case of a breach, a court of equity will interpose and enforce performance. The estate is thus preserved and devoted to the objects of the charity or bounty of the testator, even in case of a violation of the limitations annexed to it. A fraudulent or unfaithful trustee will be removed, and another appointed to his place. ”

“ On the face of this will, it is plain that the Second or South Ecclesiastical Society were the objects of the testator's bounty, in respect to this land, and that he intended this bounty to be perpetual. ”

“ Private acts authorizing tenants for life and trustees to support remainders, to sell real estate devised, and convert the same into personal estate, to be held subject to the same provisions and trusts as the land, are numerous, and have always been sustained, though in opposition to the will of the testator ”

“ In 1689, John Liveen, of New London, died, leaving a will made just before his decease, by which he bequeathed and devised the greater part of his estate to the 'ministry of New London,' to be improved for them by his executors, who were General Fitz John Winthrop and Major Edward Palms. The executors treated the devise as void, on the ground that it was within the English statutes of mortmain, and they contended that the Connecticut statute of 1684 was void, because in conflict with the laws of England. ”

“ The court held the devise conditional, and found that there had been a breach, and thereby the estate was forfeited and went to the claimants. [60]
It may be argued that even if the society have broken the condition of the devise, the land is not thereby forfeited, but that a court of chancery, either under the principle of cy pres or its authority over trusts, is the only power that can interfere with the sale. But in Connecticut the courts of chancery have not adopted and do not apply the principle of cy pres. ”

“ Charities are under the perpetual guardianship of the sovereign power. The general superintendence of them in England is delegated to the Court of Chancery. [79]
In Connecticut this superintendence is mainly exercised by the legislature. In Connecticut, as in England, it is a rule of public policy to require trustees for a charity to obtain the assent of the public authority exercising this guardianship to a sale of charity estates, in order to protect the charity against imprudent sales. ”

“ The public have an interest in the execution of public charities, and the beneficiaries have an interest, and if the directions contained in the will of the testator, either as to the manner of enjoyment or the objects who are to be benefited by his bounty, are departed from, either the public or the beneficiaries, if they are sufficiently certain, and have a sufficient vested interest, may have a remedy. ”

“ It declares the sale is to be made 'with the assent of the heirs of the said Eunice;' and the act authorized the heirs to release a condition in the deed, in the presence of witnesses; and such release, it was enacted, 'shall operate to forever estop said heirs, and all claiming under them.' This is the right way; and in no other way, assuredly, in a case like the present, could a sale be authorized and the right of property in the heirs be duly respected.
It will be argued that a legislature has power as parens patrioe to interfere and authorize a sale of land in cases like the one at bar ”

“ There a devise of land was made to an orphan asylum, with a provision that the land be never sold, but the rents and profits only be applied to the use of the asylum. The legislature, by a special act, directed that part of the land be sold. ”

“ The possibility of reverter, being a vested interest in real property, is capable at all times of being released to the person holding the estate on condition or his grantee, and if so released vests an absolute and indefeasible title thereto. The grant or devise of a fee on condition does not therefore fetter and tie up estates so as to prevent their alienation, and thus contravene the policy of the law, which aims to secure the free and unembarrassed disposition of real property.'
This view was again taken by the same court in Austin v. ”

“ The estate is not to be divided in the event of a division of the society; and—
4. It is to be managed and directed exclusively by trustees who are appointed in the will, and by their successors; the surviving trustees to appoint when a vacancy happens.
The question is, whether these are strict common law conditions annexed to the estate, a breach of which, or of any one of them, will work a forfeiture, defeat the devise, and let in the heir ”

“ From the authorities already cited it appears that it is the constant practice of the legislature where the power has not been delegated by the legislature to the courts, and of the courts where the power has been delegated, to authorize a sale of the lands of infants, idiots, lunatics, and others, who are not sui juris. ”

“ The words of perpetuity employed in it are those only which in substance are employed in all deeds and grants, and such as it is customary and proper to employ where titles are to be confirmed by statute, and where natural or artificial persons incapable of holding lands are authorized by law to do so. ”

“ So a private act of the legislature, divorcing a woman from her husband, was held to be valid, though its effect was to deprive a creditor of the husband of a vested estate in the lands of the wife acquired by the previous levy of an execution on the husband's estate therein. ”

“ After appointing the three trustees, he adds: 'I do give authority and power to nominate their successors to said trust, which is to be done in the manner following: That immediately after my decease they . . . shall appoint some meet persons, . . . as the occasion may require, into said trust or office, so be it that at no time more than three persons shall act in said trust or office ”

“ III. This devise being upon condition that the society should not sell and convey this land, and they having broken the condition, what is the effect of such violation?
Of course, that the heirs of the devisor may enter, declare the devise forfeited by the breach, and recover the property devised.
In Hayden v. Stoughton, [57] already cited, and affirmed in Brigham v. Shattuck, [58] and again in Austin v. Cambridgeport, [59] land was given for a school-house, provided it was built in a certain spot. ”

“ Moore, [36] a Kentucky case, the court say:
'We do not admit that the commonwealth as parens patrioe can rightfully interfere, unless there has been an escheat to her, and then she can become absolute and beneficial owner. ”

“ This the plaintiffs cannot show.
It cannot be maintained that the legislature of Connecticut has any less power to unfetter estates by cutting off remote and contingent interests of this character than the Court of Chancery in England.
Yet in Platt v. Sprigg, reported by Vernon, [86] trustees were ordered to join in cutting off a contingent remainder to the heir at law. Again: In Fruwin v. Coulton, in 1st Equity cases Abridged, [87] also in Winnington v. Foley, in 1st Peere Williams. [88] Tipping v. Piggot, in 1st Equity Cases Abridged, [89] is a very strong case. ”