The Portland daily press., 1896-02-28
EYE AND EAR INFIRMARY WINS.
They Will Receive 100000 from
the Harrington Estate.

Heirs 1t Is Said, Will Appeal To The
Full Bench,
Judge Strout yesterday placed on file in
the CLERK Of Courts Office his decision in
the harrington will case Of Ira P. Far
rington ct ais vs. William L. Putnam ct
ais which has been pending for some
time. The full text of Judge Strout's de-
clslon is as follows:
Ira T. harrington ct ais In equity vs..
VIM. l.. Putnam, Thomas H. Haskell.
executors, ct ais.
Ihls Is bill in equity. and comes be-
lore the court on demurrers. The will of
iIa harrington contains a beQuest to
the Maine Rye and Ear Inf1rmary. The
coinplalnants allege that that corporation
Is authorized to hold property to the
amount OF 500, 600 and no more, and that
IL now holds property to that amount.
anu therefore cannOnt take the legacy
given 60 1T by the will. AS the demurrer
ADMITS the facts. it must be assumed that
tne legatee now holds The full amount of
properly which it is entitled to hold. 1t
Is admitted to be public charitable IN
stlutlon: Can 1t take the legacy, OF de-
wise! The gift is from the residue of the
estate, after payment of legacies and may
include both real and personal Or operty.
sltied to take and hold real or personal
property to any amount if Ii was reason
able, usual, and convenient in attaining
IT'S legitimate ends. In England, SO large
an amount had ben acquired and held by
It's corporations, particularly the ecclesi-
astlcal, THAT as a measure of purely pub
lie policy the statute OF mortmain was
enacted to prevent the accumulation of
real estate in ecclesiastical corporations.
InGt statute has not been generally
adopted In this country; but it has been
dee med wiSo in many instances to limit
IN charter, or by general law, the amount
OF property to be held by corporations.
ln this state, by statute, corporations are
entitled to hold and convey lands and
other property. r. S. G. 66, S. 2. This
authority is unlimited, unless the char
ter, or general law under which the cor
poration is created or some statute, i'm
poses limit A limit of 500, 700 Is i'm
posed by the statute under which this
corporation was created. Taken in con-
nection with the common law, and the
general statute upon the subject. it is ap-
parent pa, 81 :, that the limitations upon this is
GLASS OF corporations. not applicable to
many Others, WAS a matter of public
policy.
AS such, it is for the state alone to
take advantage of its breach, if it chooses,
or it may waive it; and consequently pri
vate parties cannot be permitted to assert
against the corporation a violation Of the
limitation. The decided weight of au-
thority is to this effect, and the principle
is deemed sound.
devise of lands operates a conveyance
upon probate of the will. The devise
takes by purchase. The title may be de-
feated, II the subject Of the devise is re-
quired tor the payment of debts. A be-
quest of personality also Is perfected in
the legatee, at the date of the probate of
the will. subject to the same contingency.
terred by the provisions of tte will or
the contingencies of administration.
The will, III this case, gave to the In
frmary one-third of the residue Of the
estate, after payment of legacies, in
trust, to be invested and kept invested,
the income only to be applied to the char
liable purposes for which the institution
was organized. The codicil added anoth-
er third of the residue to the gift, but
said nothing about trust; but the fair
construction of the codicil taken in con-
neotiOn with the trust created by the
will, is that tine trust attaches to the ell
tire two-thirds. The effect of the codicil
was to increase the one third in the origi-
nal will to two-thirds. No other change
was intended by the testator. The whole
scheme in his mind was charity. The
gift was to a public charity, administered
by the corporation created for that pur-
pose.
"he Infirmary can take the gift, upon
the trusts specified, and hold it against
all, except the state, although the
amount is in ploess Of the Limitation in
the statute.
IT, however, the Infrmary shsald be
regarded as incompetent to take the prop
erty in trust, it being devoted by the tes-
tator to public charitable Use, the court
would appoint a trustee to carry into
effect the testator's bounty. A public
charity, definite in its objectn as this is,
is never allowed to fail for want of a
trustee and If the trustee originally ap-
pointed is incapable, from any cause, to
take the property and execute the trust,
competent trustee will be appointed.
There is another ground which is
equally fatal to the bill. The estate of
Mr.. Harrington is being administered in
the probate court. When the administra-
tion has proceeded SO far as to require the
distri button Of the personal estate, the
statute imposes upon that court the duty,
after notice and hearing. to determine to
whom it should be distributed. This ap
plies to testate as we'll as intestate es-
tates. The bill prays an Injunction
against the executors to restrain them
from paying TO the Infirmary, and an in
junction against the Infrmary to prevent
III from baklDR. lnJunc610nS are not
granted as of right but rest in judicial
discretion. A court Of equity will not
grant an injunction, the effect of which
would be to Withdraw from the probate
court, while it holds control of the estate.
jurisdiction especially given to it. If the
decision Of the judge OF probate snould
be unsatisfactory to any party, an appeal
lies to the Supreme Court of Probate If
in the residue of the estate given to the
Infrmary, there shall he real estate, and
if coInplainant's contention is correct
that the Infirmary cannot take, and it
is to be treated as 1ntestate estate, it
would then descend to the heire No reas
on for equitable interference Is perceived.
The legal remedies are full, complete and
perfect. This bill contains no allegations
| which take the case out of the ordinary
| rule, that equity does not take jurisdio-
ton where the remedy at law is ample.
1t does not fall within the few exceptions
to that rule. 81 Me-, 1873.
Demurrers sustained Bill dismissed.
1t is possible and probable that the
heirs will take the case to the Law court.
An Appreciative Letter.
The following correspondence explains
itself: