March 6, 1951.
Where by the terms of a will funds were provided "to pay for and establish" a set of chime bells to be installed on the Keene public library or some other building in the city, such provision constitutes a charitable trust. The fact that the amount to be spent for such chime bells was not specified does not render the gift indefinite or invalid as a charitable trust. A petition by a city for advice and instructions concerning its rights and duties in administering a trust fund may be maintained, although the city has not yet voted to expend the funds for the particular purpose, where such advice will avoid delay and subsequent litigation. While a decree permitting a deviation from the provisions of a bequest protects the fiduciary as to action already taken thereunder it does not preclude a subsequent decree which will carry out the original purpose of the bequest. Where the testator provided a fund "to pay for and establish on said building [public library building in Keene] or some other in the city, a set of chime bells" such bells may properly be installed on a church building in the city. The installation of carillonic bells, in such case, is a sufficient approximation to "a set of chime bells" where consideration is given to the amount of the fund available.
PETITION, for instructions and advice concerning the third clause of the will of the late John Symonds, probated in 1885. Pursuant to an agreed statement of facts, the Court (Wescott, J.), transferred all questions of law arising from the petition and from the denial of a motion to dismiss filed by the trustees of the Keene public library.
The third clause of the will, after providing for certain life estates, left money to the city of Keene for the following purposes: "To build a public library building and purchase land therefor, and to provide books and reading matter, and to take care of the same, and this further may be used in connection with any city appropriation for the same purpose; and to pay for and establish on said building, or some other in the city, a set of chime bells." In 1898, the city of Keene was conveyed certain property known as the Thayer Library building which has been used to house the public library in the city of Keene since that date. In 1909, the city of Keene petitioned the Superior Court to use the Symonds fund for alterations and repairs of the existing Thayer Library building, inasmuch as "it was impractical and not in the best interests of the public to maintain two libraries in the city of Keene." The Superior Court granted the petition and decreed that the income of the Symonds fund should be used for "the care and maintenance of its public library in said Thayer Library building or in the purchase of books therefor or for both said purposes. "The decree made no reference to "a set of chime bells."
In 1947 and 1948, the Grace Methodist Church of Keene formed "The Carillonic Bells Committee" to raise money by public subscription for the installation of carillonic chimes in its church building as a memorial to the men and women in the armed forces. After raising some funds toward its goal, the committee requested the city councils of Keene to appropriate $3,000 from the Symonds fund for the installation of carillonic bells in the Grace Methodist Church building. The city solicitor of Keene, pursuant to the direction of the city councils, filed the present petition requesting a decree that the city has authority to direct the trustees of city trust funds to pay over to said committee $3,000 for a set of chime bells on the church building.
The present amount of the Symonds fund is approximately $16,000. There has been no accumulation of income since 1934, as the yearly income has been used in the operation of said Keene public library.
Kenneth J. Arwe, city solicitor, for the city of Keene, filed no brief.
Harry C. Lichman (by brief and orally), for the Carillonic Bells Committee.
Philip H. Faulkner and Francis F. Faulkner (Mr. Francis F. Faulkner orally), for the trustees of Keene public library.
The trustees of trust funds for the city of Keene, filed no brief.
Ernest R. D'Amours, Director of Charitable Trusts, for and in behalf of the Attorney General, filed no brief.
The provision in the third clause of the Symonds will for "a set of chime bells" on the public library building "or some other in the city" constitutes a charitable trust. 2 Bogert, Trusts, s. 375, n. 50. The failure of the testator to specify the amount to be spent for the chimes or the kind to be acquired did not render the gift indefinite or invalid as a charitable trust. Crawfordsville Trust Co. v. Elston Bank Trust Co., 216 Ind. 596.
Although a valid charitable gift was made in 1885, no chimes have yet been established on any building in the city of Keene. Several reasons are advanced why the problem cannot be reviewed in this court at this time: (1) The city of Keene has taken no vote to expend $3,000 for that purpose; (2) the petition is a collateral attack on the Superior Court decree of 1909 and cannot be permitted; (3) the chime bells must be established on a public building and cannot be placed on a church; (4) the carillonic bells are not such "chime bells" as were intended by the testator. While the first objection is the only one that has any substantial merit, it follows that this opinion has only the force of dicta until such time as the city authorities vote to expend $3,000 from the Symonds fund for the purpose of establishing carillonic chimes on the church building.
In Keene v. School District, 89 N.H. 477, 482, the rule was laid down that a municipal fiduciary could obtain judicial instructions only in respect to a vote "for an expenditure of the fund or some part of it for some purpose designated by the vote." The primary purpose of this rule is to require the fiduciary to exercise his discretion as to the use of the trust fund in the first instance before obtaining approval in advance of exercising the discretion. If the rule was applied literally in all cases, it might compel the fiduciary to exercise its discretion in doubtful cases before having any idea whether the proposed expenditure was valid. The practical difficulty of this rule was mitigated in part by Reed v. School District, 91 N.H. 209, which permitted a municipal fiduciary to make the vote subject to a ruling of the court that it was legal. The rule was further relaxed in Petition of Simpson, 89 N.H. 550, where the municipal fiduciaries were allowed to obtain instructions concerning the mechanics of administering the trust even though no vote had been taken for any expenditure of money. The avoidance of delay and subsequent litigation constitutes sufficient reason to pass on the questions presented in this case, although they are not strictly permitted by the first School District case, supra.
While the city is protected by all actions taken under the 1909 decree (Duncan v. Bigelow, ante, 216), the decree does not preclude the proposal set forth in the present petition. It is doubtful "if the principle of res judicata" is "strictly applicable" (McAllister v. Elliot, 83 N.H. 225, 227) to decrees allowing a deviation or a cy pres application of charitable trusts. Manufacturers Nat. Bank v. Woodward, 141 Me. 28. When conditions change, the former decree may be modified to meet the changed circumstances even though the fiduciaries are protected by all actions taken under the former decree. See Pittsfield Academy v. Attorney General 95 N.H. 51, 53. In the present case, the decree of 1909, which constituted a deviation from the provisions of the Symonds bequest, does not preclude a present decree which will carry out the original purpose of the bequest. It is doubtful if the 1909 decree was intended to pass on the question of establishing chimes, inasmuch as no reference was made to it in the decree. At that time, it appears that the library building was not structurally adapted to the installation of chimes but this does not prevent installation of such chimes on a building suited for that purpose.
The testator did not specify that the chimes should be on a public building in the event they were not placed upon the library building. There appears to be no objection to their installation on the church building which meets the requirements of the will that it be within the city.
The installation of carillonic bells is a sufficient approximation to "a set of chime bells" considering the present amount of the bequest. Any other type of chimes would practically deplete the present Symonds fund and prevent its use for public library purposes in accordance with the testator's directions.
As we understand the case, the municipal officers of the city of Keene have taken no position on the present petition. The Director of Charitable Trusts has filed no brief but concurs in the arguments set forth by the Carillonic Bells Committee. If there is a vote of the municipal authorities to expend $3,000 from the Symonds fund, it will effectuate the original purpose of the donor and be a legal expenditure from the fund. Whether or not the city decides to make this expenditure is one that lies in its discretion or that of its trust officers, since there is no proceeding, pending or contemplated, to compel such expenditure of money. Cf. Hills v. D'Amours, 95 N.H. 130, 150.