Morning journal and courier., 1890-06-04

~ may receive under the will only In case OF
the absence Of the institute.
CORPORATION COUNSEL TOWNSEND.
At the afternoon session Corporation Coun-
sci Townsend argued for the city.
Corporation Counsel Townsend again dis.
claimed any desire on the part of the de.
Tense to strike out the name of Young Mems
institute from the will.
"Was the Young Mems institute of such a
character as Philip Marstt wished to bene-
ita" inquired Mr.. Townsend. "This private
corporation, is it such an organization that
he wished to benefit 1t, provided there was
any other society to which he could give for
the benefit of the publica The idea that runs
all the way through the will is that the funds
may 60 for the benefit Of the poor. Here we
twelve gentlemen who issue certificates of
stock that may be transferable. A close cor
poration, for all there 10 in its bylaws.
Why, may II please your honors,
they are not even located in the city of
New Haven, 90 that they may not 60 else
where If they choose. Why, this associa-
.tion might take this Marett money and use
1t for the benefit Of their club and then res
move the society to Hartford. There are
81, 900 people In New Haven and $50 mem
bers of this institute. Why, 275 members
can control this society and direct the use
of the money. It is not long ago since
the institute had notice posted on its door
"This is net free public library" What
IL then to prevent the society from closing
its doors. selling Its stock and moving from
New Haven't And then what would become
of the money of Philip Msretta He realized
the conditions and his will was that he
ehould leave this money to the city of New
Haven as trustee, for the institute perhaps,
or for any public library that from time to
time may exist in New Haven.
There are $500 people in New Haven who
annually draw 10000 books from the city
library. We desire to effeotuate every word
of the will. One-tsnth part is TO
be given to the city OF New Haven in trust.
II he was afraid the institute would fail he
could have named the trustees. Instead of
that he leaves 1t to the city of New Haven in
trust. He desires that the institute may re-
csive the fund II there Is no other society to
receive 1t. We say that the city of New Ha-
ven 10 the trustee for the public of New Ha-
corporation of the city of New Haven to be-
stow the trust. We have everything spsci-
fed and all that 10 required is for the city to
discharge the trust.
But the counsel for the institute claims
that the construction oontended for by the
city would invalidate the bsquest for uncsr-
tainty. II the court will leok at the claim Of
the institute they will and our claim admit
ted by them. They say the public library
contemplated by the testator was any public
library which might exist In said city, not at
any definite time nor a. o definite institution.
This is q complete answer to their own claim.
We do not claim that the testator intended
any specific public library. His object was to
benefit the public and to authorize the city
of New Haven to purchase books, said books
when purchased ipso facto to con-
ha hnA IN
mind. The counsel for the institute
ingeniously attempts TO dodge the question
by saying that We claim the beQuest was for
specific public library such as the present
one This is just the issue between US, and
herein the case differs from Joslyn & Mott.
There the trustees were Obliged to hold the
land until some definite Congregational SO.
the cestui que trust, the public, are designated
and upon the city 10 imposed the trust, i'm.
mediately upon the receipt of this income, to
apply 1t for the purchase Of books, said books
to constitute when purchased the public
library Philip Narett had In mind.
But the learned counsel for the institute
In the face Of the fact that this gift is made
| to trustees for any public library which may
exist from time to ~, time in the sit city: dsnis.
cit eddy him do not support his claim. In
every case where gift is made to trustees
| for either one of two objects, the court will
imply discretion In the trustees. In White
vs.. Fisk. Judge Hitchcock left the fund te
Henry White and Roger Baldwin in trust TO,
INDECENT young men preparing for the min
istry, but there was no corporate body whose
duty it was to admister the fund. Here we
have q corporate body, the city of New Ha
ven, whose duty 1t is to execute this trust
In all the later Connections cases such be.
quests have been held to give the trustee q
| right to use his discretion as tc
the choice of bsne6oiaries. Thus IL
Storrs vs.. Whitney, although nothing was
said as to discretion, the court said
tho sslsctmsn. the trustees Of the town, were
| q responsible body just as the city OF New
Haven is In this case; that the indignant
young men of the town of Mansfield were q
class of benefciaries who could be designated
| just as in this case the people of New Haven
are a designated GLASS; and although nothing
was said in the will as to discretion the
trustees had right to exercise their discre-
| ton in the application of the fund. So In
Bronson vs.. Strouse, when an income was
left to the trustees to be expended for the re-
lief of any poor Jewish family In New
Haven and where nothing whatever was said
a. to discretion, the court said that the dis
creticn to select one beneficiary to receive
the income. The present case il much
stronger than either of these because 1t con-
tains the words implying discretion, viz:
"any public library which may exist from
time to time in New Haven"
We stand then, upon common ground that
all the words of the testator are to be taken
together to ascertain his intention, and we
stand upon the whole will and every word of
| 1t, claiming that We can recover by giving
effect to the will, and that the construction
commended for by counsel for the institute lie
contrary to the public spirit Of the tsstator
and to his desire to benefit the public Of the
city of New Haven, and that this conrt cam
not support the construction claimed by the
institute without disregarding the manifest
intent OF the testator and erasing from the
will the words by which the trust 10 bestowed
and the discretionary power conferred upon
the city of New Haven.
Mr.. MANSFIELD.
Attorney Mansfield also argued for the
defense. he argued that the institute was
nanifsstly private and not pablo insti-
A - 49, IA A. "a