The Portland daily press., 1896-02-17
HARRINGTON WILL.
Important Questions Discussed in su-
preme Court.

The Bequest to ths Eye and Ear Infirmary
tzs-A Great Array of Counsel Who Take
Part in the Arguments.
There was preliminary hearing in the
Burlington will case Saturday before
Judge Strout Hon. Orville D. Baker of
Augusta and Clarence Hale, Esq, of
Portland, represented the heirs. Hon.
Joseph W. Symonds. the executors, Hon.
VIM. L. Putnam, and Hon. Thomas H.
Haskell and Hon. Charles f. Libby re.
presented the Maine Rye and Ear mfr
mary.
The plaintiffs claim that the institu-
ticn is not capable of taking more THAI
$780, 0o0, it's charter limit; that that sum
was reached before the death of Mr.. Far
rington; that such being the case the
sum Of 5000, 600 left by Mr.. Harrington
to the institution belongs to the estate,
and is not to be administered under his
will, bnt constitutes intestate property
which belongs and must descend to the
heirs at law. The usual injunctions
were asked for
Judge Symonds tegan his argument
at 10 o'clock and made very thorough
review of his side of the case. He said
that for the purposes of the present pro-
oeadings the bill admitted the probate
of the will, the appointment and quail
fcation of the executors, the affirmation
of the Supreme court of said probate and
appointment, and that the executors
have entered upon the discharge of their
duties.
The probate court of this county has
therefore at this time complete jurisdic-
ton over the will. the estate and the par
ties interested therein. Judge Symonds
claimed that restrictions imposed by the
charter OF a corporation upon the amount
of property it may hold cannot bs taken
advantage of coliaterally by private per-
sons, but only by n direct proceeding by
the state which created it,
Moreover, the gift in this will to the
Maine Eye and Ear Infirmary is
A GIFT IN TRUST
for charitable purposes and to corpora
ton which has been recognized
by repeated resolves of the legisla-
d
charity. The real beneticiaries are those
who are enabled by the bounty of the
testator to receive treatment at the in
Urinary, either FREQ from charge or on fav-
Drable terms which would otherwise be
impossible. 1t is one of the common and
familiar principles of equity that the
court will not allow such a trust to fail
by any defect in the character or capacity
Of the trustee. All the purposes Of this
trust, the precise charitable intent which
the testator had in mind, can just as
well be served with an indi vid ual Or
another corporation appointed by the
Eourt for trustee in place of the mfr
mary.
Hon. G. T. Libby argued first the sew
eral grounds presented in the demurrer
filed in the case, maintaining that the
bill does not present any equitable
ground for injunction as it does not seek
the construction of the will, but rather
to enjoin administration, amatter with
which the probate court is competent
TO deal, and which consequently makes
the relief here suod for unnecessary.
Second, Mr.. Libby argued that the neces-
sary parties are not before the court. If
the amount bequeathed to the Eye and
Ear 4nfirmary is to go as intestate estate,
then the widow. there being no child, is
entitled to half that sum, this without
reference to whether the doctrine of cy
pres is applicable. 1t may well be con-
tended, also that by thesoodioil, Mr.. Far
rington only intended to revoke the be-
quest to the Maine General Hospital n
case his additional bequest to the Maine
Eye anS Ear In1rmary became opera
tive; and for that reason the
MAINE GENERAL HOSPITAL
has such an interest in the estate that
court of equity should require that COR
poration to be made a party to the bill.
Third, Mr.. Libby contended, the bill
itself presents no ground for equitable
relief for the reason that if the bequests
N0N osco