Decided December 3, 1940.
A gift to a school district "to be used by it in the support, maintenance and general welfare of the public schools" may by vote of the district be wholly expended for the construction of a new high school building.
The vote in such case is valid though made conditional upon the determination of its legality by the Supreme Court.
The treasurer of a school district may maintain a petition against the district to the proper application of a gift to the district.
PETITION, by the treasurer of the defendant school district for instructions. A testatrix left her residuary estate to the district "to be used by it in the support, maintenance and general welfare of the public schools" in Pittsfield.
The district duly voted to appropriate and use the entire amount of the fund received under the gift for the construction of a new high school building, provided such use should be held legal by this court.
The legal issues arising were transferred without ruling by Connor, J.
Richard F. Upton and Robert W. Upton, for the plaintiff.
Frank R. Kenison, Assistant Attorney-General, for the State.
I. The petition may be maintained. Keene v. District, 89 N.H. 477, 482.
II. The vote was valid. Its condition that its legality should be determined before it became operative was not an undertaking to delegate legislative power. No question of the wisdom or expediency of the vote was sought to be assigned for determination by others, as in State v. Hayes, 61 N.H. 264.
Since the terms of the gift are broad and general with no restriction of the use of the fund to its income or to any special branch or feature of public school education in the district, the voters had power to say for what special purpose or purposes, and in what manner, the fund should be applied for such education. The testatrix employed language clearly showing her intention that the voters should have free hand in passing upon any particular use of the fund within the comprehensive scope of her benefaction. See Haynes v. Carr, 70 N.H. 463; Clark v. Cummings, 83 N.H. 27.