Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1905-11-17

Judge waterman gave his decision yes
terday. After quoting the section of the
will containing the hospital bequest and
the section of the statutes relating to
trust funds the opinion and decree read
as follows:
Section 1895 of Vermont statutes pro
vides that THE trustees elected by the
town. shall apply the income of such es-
tate for the purpose for which 1t is held"
and that they may loan the money. sell
real estate. and give deeds. No further
authority is given them by the statute.
Section 1894 expressly limits its own
application. 1t Is to apply unless the
person giving the same otherwise d.
reefs" In this case the legacy Is given
toward the establishment OF a hospital
In said town" 1t is provided that the
hospital will be organized and governed
by board of five trustees and the frs
selectman of the town" the five trustees
being named
Wills are TO be construed according to
their intent and meaning. If this clause
had been so drawn as to show an intent
to have the town through its trustees
take charge of the establishment of
hospital. or II it had been silent as to
trustees, 1t should be construed to come
under the statute. But trustees are
named in the will. 1t is true the express
sion is will be organized and governed"
by this board, but | think the word "or-
ganized" is used by the testator In
broad sense. and that organization was
intended by him to comprehend practI-
cally the same that he meant by the word
establishment" previously used.
Towns are limited in their powers, and
should not have such n responsibility
cast upon them unless IL is clearly au-
thorized by law. They would have no
authority to go so far beyond the or
binary scope of their powers as the cree
ton of hospital unless empowered by
some provision of the statute. The claim
that the town should take and hold this
fund indefinitely before paying II over to
the trustees. even though II Is not au-
thorlzed to build the hospital, IS hardly
tenable.
The will shows no intention by the tes-
tator to have the money held indefinitely
and kept on interest. There is nothing
to show that 1t is not to be paid over to
the trustees as soon as needed for the
purpose named. 1t Is not provided that
the income only shall be used. 1t Is that
KIND OF legacy and under such cir
cumstances that when used at all the
whole must be used. So l think the idea
of the testator was that this legacy
should go through the hands of the town
to insure safety and permanency as we'll
as the interests of the community, in the
hospital, but should be available for the
trustees named by him whenever needed
and that those trustees, and not such as
might be elected by the town, are en-
titled TO the fund, when they require it
for the purposes named in the VIII; and
in this view:
1t is ordered and decreed that the exec
utor pay to the town of -,rattleboro,
Vermont. the sum of $4,000 in trust,
toward the establishment of a hospital
in said town, under the fifth section of
said will, said sum to be paid over by
said town to the board of trustees there
in named to wit, George f. Gale, A. l.
Miller c. r. Anderson, Charles A. Miles
and George c. Averill, or their success
sors, and the chairman of the board
OF selectmen of the town of Brat
tleboro, when required by them for the
purposes named in said will
After the decision was given Col. Has
kins, counsel for the town, and Mr. Hook.
er, announced that the case would be
carried to the county court on appeal.