The Portland daily press., 1888-03-03
THE coRuRn WILL.
The Opinion of the Law Court Sus-
tanning the Bill.

The opinion has been received from the
ct ais. in equity VS.. Erastus w. Marston ct
ais, and is as follows:
Haskell THE executors of the will Of
Abner Coburn, quod ride, 70 Me-, 25, ask a
construction of that will. Most of the re-
spOndents have answered, and general
replication has been filed.
The bill does not call for answers ON oath,
and after replication they are not evidence
of the facts stated in them. Clay VS.. TOwle
7S Me. Sc. After answer filed in an equity
cause, the orator may elect to set the cause
for hearing upon bill and answer, or
traverse the truth Of the answer by replica
tion, thereby raising an issue OF fact TO be
settled by evidence. IL the cause be set for
hearing upon bill and answer, the facts
stated in the answer are to be taken as true,
because the orator elects to so treat them,
precisely as a plaintiff in an action at law, by
demurrer to defendants plea, admits all
the facts stated in it that are well pleaded,
In the cause before the court, the orators
filed replication to the respondents
answers, and thereafterwards moved to set
the cause for hearing upon bill and answer
only; and the motion was granted.
BY filing the motion the orators must be
held to have waived their replication other
wise the respondents can neither have the
benefit of their answers as true, nor chance
to prove them true, and would be deprived
of their defense. On motion, a replication
may be withdrawn and the cause set for
hearing upon bill and answer. Rogers VS..
Cove II yes. 100; Brown VS.. Ricketts, 2 Johns,
ch. 425. So for questioning the suffieiency of
plea. Green VS.. Harris, X. l., 401.
1.-The three seyeral,legacies Of $4,000 to
the Maine Insane Hospital, 'the income only
to be expended annually" OF 100000 to
the Maine State College of Agriculture and
Mechanic Arts, "the same to be funded and
the income only to be expended annually"
of 100000 to Colby University, $4,000 Of
which to be funded and the income only to
be expended annually" are Of like legal inn
port, and may therefore be considered to-
gether.
These donations are absolute, to enable
each d0nee to compass certain specific OBJ
jects within the scope and purpose of its
charter and incident to the benehcent design
of its foundation. No other intent can be
gathered from the will and the intent Of the
testator therein expressed must govern.
Turner VS.. Hallowell Savings Institution, rs
Me-, 527.
But if these legacies are treated as gifts of
perpetual income the result must be the
same. A gift of the perpetual income, of
either real or personal estate is gift OF the
property. That has alway been the doctrines
of this court. Andrews Us. Boyd. Me-,
199; Butterfeld VS.. Haskins, 80 Me- 1872;
Earl VS.. Rowe, 35 Me-. Ala; Stone VS.. North,
Al Me-. 265; Sampson VS.. Randall, ~ Me-,
100.
Payment of these legacies to the donees
will relieve the executors from further liza
bility in the premises.
II-S2OO,0OO is bequeathed to the Ameri-
can Baptist Home Mission Society, Cone
half of which to be applied in aid of Freed
mems schools other than the Wayland Sem
marry and $4,000 to the Wayland Seminary
at Washington, ID. C..
The case shows that the Mission Society is
a New York corporation chartered for ''Pro-
motion of the preaching of the gospel in
North America, with authority to establish
and maintain schools in connection with Its
missionary work among the colored popula-
tion OF the United States, now generally
purpose to take and hold necessary real es-
tate, and receive, accumulate, and hold IN
trust endowment funds for the support OF
such schools; that the society has estab-
lished and Is maintaining fourteen freed
mems schools" one in each Of thirteen for,
merly slaveholding States, and one, Wayland
Seminary. in the District of Columbia.
The clear intention Of the testator was
that S150,000 OF this donation should be ap-
piled to the support of these and such other
schools of the same class as the society may
establish or see fit to patronize but tnat SoO,-
600 of the same, and no more, should be ap-
piled to Wayland Seminary, one OF these
'freedmen's Schools"
whole S250,0OO; but S150.000 it takes in trust
for the support or aid of "freedmen's
schools" according to the tenor of the lega-
cy. To this society the whole legacy should
be paid. ~
take and hold the legacy, and its purpose Is
SO manifestly charitable and merit0riOus
that further consideration Of 1t Is unneces-
sary. Everett VS.. Carr, SO Me-, 325; Simpson
VS.. Welcome. ~ Me-. 496; Tappan VS.. Deb
lois, 45 Me-, 122; Drew VS.. Wakefield, 81 Me-,
291.
III.-S30,OO0 is bequeathed ''to the trustees
of Bloomfield Academy, to be Appropriated
at their discretion in founding free public
library In the town of Skowhegan."
This legacy is certain and specific, and Tor
a charitable purpose, and should be paid to
the dOnees according to its tenor. The author
ities already cited establish its validity.
IV.-S20,O0O is bequeathed ito the town Of
Skowhegan for the worthy and unfortunate
poor, and TO save them from pauperism, to be
funded, and one half of the income of the
| same to be expended by woman's aid socie-
| ty formed for that purpose"
A trust is created for the worthy and un-
| fortunate poor. Clearly charity. The di-
rection that one-half the income shall be ex.
! pended by ''womans aid society formed
| for that purpose" does not inyalidate the
| legacy. Whether such society exists or shal
be hereafter formed makes no difference
| The beneticiaries are named. For We have
the poor always with you"
A gift to corporation not in eSse for a
charity is valid; Swasey VS.. American Bible
Society, 81 Me-, 523. a fortiori when the in
come only is to be expended under the di
rectlon OF society formed for that 2ur
| pose.
The questions put by the heirs at law il
their answer. and not already considered
have not been argued by their learned coun
sell0r, and may therefore be considered a
waived. State VS.. Craig, so Me.
"Bill sustained" Decree below according
to this opinion.
| Peters. q. Il Walton. Virgin. Libbey an,
Foster, j. j., concurred.