Lanning v. Commissioners of Public Instruction. and codicil and express themselves willing to abandon their trusteeship if permitted by the court, and if the court will give authority to the trustees of the free public library to take up and execute the trust. It further appears that the trustees of the free public library are willing to accept the trust upon terms that seem to indicate that the trust will be performed in the manner prescribed by the will and codicil, and with the effect that those intended to be benefited will receive the benefit and advantage contemplated by the testator. They offer to separate the Skelton books from the other books which are to be acquired by them, and to designate those books which are to acquired by the income of the Skelton fund by some appropriate mark to indicate that they were thus acquired. They propose to provide for the distribution of the books, to care for and repair them, and to manage the fund without any charge upon it. If this disposition of the trust property can be made, it will result that the fund, which is now practically of no value to a majority of the persons designed to be benefited by it, and of very little benefit to any part of such persons, may be made beneficial in the broadest sense and widest spirit of the will of the donor. The power of the court of chancery to remove or discharge trustees and to appoint new trustees in their place is very broad. It exists and will be exercised when there is a failure of suitable trustees to perform the trust either from original or supervenient incapacity to act. 2 Story Eq. Jur. 1287; Harvard College v. Society, &c., 3 C. E. Gr. 280; Perry Trusts 275, 280, 921, It is said that the court may appoint new trustees whenever such action is necessary to protect the rights of the beneficiary. 2 Pom. Eq. Jur. 1087. When a trustee desired discharge because of multiplicity of business and infirmity of age, a new trustee was appointed. O'Kill v. Campbell, 3 Gr. Ch. 13. Incompetency from long continued illness was declared to require the substitution of another trustee. Babbitt v. Babbitt, 12 C. E. Gr. 54. It is obvious, in my judgment, that by the provisions of his will and codicil the testator created a trust for charitable pur Lanning v. Commissioners of Public Instruction. poses. His design was to collect a library of useful and instructive books, by the use of which the cause of public education would be promoted. It is also obvious that "the superintendent and trustees of public schools of the city of Trenton," incorporated under the above-cited act of 1856, was endowed by the legislature with capacity to receive and manage the property bequeathed and devised for that public purpose. I deem it equally clear that "the commissioners of public instruction of the city of Trenton," organized under the above-cited act of 1892, has succeeded to the trust created by the will and codicil in question, and are now properly holding and managing the property which it received from the previously existing corporation, and which it now has in possession and control. It is, however, incontestible that the present trustee is in fact incapable of administering the trust so as to fulfill the intent of the testator who created it. If retained as trustee, it is impossible to discover how the benefits of this trust can be applied to those for whom it was designed. This happens not from any dereliction of duty or any misconduct on the part of the trustee, but wholly because the donor of the trust has expressly directed that the whole of the net income of the fund should be applied to the purchase of books, and because it possesses no power to raise money to pay for a librarian to care for and distribute the books or to erect a building for the library. The trustees of the free public library of the city of Trenton are empowered by the eighth section of the act of 1884, above cited, to have and receive, hold and manage any devise, bequest or donation heretofore made, or hereafter to be made or given for the establishment, increase or maintenance of a free public library in that city. By section 5 of the same act they are empowered "generally to do all things necessary and proper for the establishment and management of the free public library" in such city. I think it does not admit of doubt but that the last-named corporation has power to act as trustee of the fund in question in this case. If appointed as trustee, its acceptance of the trust will bind it to the performance of the duties devolved upon the trustee by the trust under the supervision and direction of this Lanning v. Commissioners of Public Instruction. court. It is obvious that if the substitution of that corporation as trustee can be made, and it will accept the trust, the purposes of the creator of the trust will be substantially carried out. As this is a public trust, the attorney-general, representing the public, is a necessary party to the litigation. The general practice seems to be that a bill of this sort in a matter of a public trust is filed by the attorney-general, either of his own motion, or on the relation of some parties interested. In this case the parties interested have presented the bill and have made the attorney-general a party defendant thereto. No objection to this course having been made by the attorney-general, I think the proper parties are before the court, and that it is immaterial that the attorney-general is a defendant instead of a complainant. That was the view taken by the Massachusetts supreme court in Harvard College v. Society, &c., ubi supra, and it accords with reason. Although there is no contest over this case, and the parties all assent to the decree prayed for substantially as prayed, I have deemed it my duty to examine the case with care, in order to make the substitution of a new trustee clearly effective, if it can be done. I have discovered no reason for not acceding to the request to appoint a new trustee, and conclude that such appointment should be made and the present trustee should be discharged, upon the ground that the latter is practically incapable of performing the trust according to its true intent and purpose. The only question that has suggested itself to my mind relates to the direction of the testator in respect to the persons who are to share in the benefits of the public trust. The substituted trustees will have no difficulty in determining that it must admit to the use of the library the teachers and pupils of the public schools of the city, and apprentices and mechanics. But the donor intended that other persons should be admitted, and cast upon the trustee whom he appointed the duty of adjudging who such other persons should be, upon their judgment of expediency and public good. It has occurred to me that there may be some question with respect to the future management of the trust in this respect. Lanning v. Commissioners of Public Instruction. It may be claimed that a personal confidence was committed to the trustee appointed by the donor to execute this trust. But the trustee appointed by the donor was a public corporation composed of members selected in a certain way. It was to that corporation that he committed the duty of selection of beneficiaries. That corporation has been abolished and another corporation has taken its place, the members of which are selected by another mode. The testator did not design to commit the judgment in respect to those to be admitted to the benefit of the trust to be made by the succeeding corporation. If the present trustee was practically capable of performing the trust I think it would be questionable whether it could exercise the power of determining who should be admitted to the benefit of this trust. If this is so, this court may direct how the trust should be managed and conducted, and will itself determine who should be admitted to the benefits thereof, on the principles laid down by the testator. In substituting a trustee, the court may do the same. Upon the removal of a trustee of a private trust to whom was given the expenditure of an income in the support of himself and his family in such manner and to such extent as to him would seem proper, Chancellor Runyon declared that this court would determine how much of the income should be applied to the support and maintenance of the family and for the education of the minor children. In dealing with a public trust, I think a like course may be taken. In view of the intent of the testator, shown by his will, I am satisfied that such intent will best be carried out by admitting to the benefit of this trust, in addition to teachers and pupils of the public schools, apprentices and mechanics, all other reputable citizens of the city of Trenton, and I think the substituted trustee should be directed to admit all such persons. The complainants may have a decree on the lines of this opinion, with liberty to the substituted trustee, on accepting the trust, to apply to the court for directions, if necessary. Bloom v. Koch. ABRAM BLOOM v. CHRISTIAN KOCH, SR. [Submitted July 15th, 1901. Decided December 6th, 1901. 1. A lotowner is not justified in erecting a barrier of close boards on his lot in front of the windows of his neighbor's adjoining house, in such manner as to obstruct the influx of light and air to those windows, for the purpose of preventing the throwing of refuse from those windows onto his lot, where a barrier which would not so obstruct the light and air would be equally effective for the desired purpose. 2. The fact that a lotowner permitted persons of bad character, whose behavior was a nuisance, to occupy a part of the house on a lot, does not justify the erection of a barrier by the adjoining lotowner, the effect of which is to obstruct the influx of light and air. to the house, where the objectionable tenants were ejected as soon as notice of their conduct was given to the landlord. 3. Defendant owned three adjoining lots, and erected a house on the middle one, fronting on the street and covering the whole width of the lot. On the east side of the house was an inset, in which windows were built. There were no other windows on that side of the house. The house on the east lot was built forty-five feet back from the street; the intervening space being a lawn, and a paved alleyway between it and the line of the middle lot.-Held, that, in a grant of the middle lot, the existence of the inset in the house thereon would not rebut the implication of a grant of the right of light and air over the lawn. 4. The construction by defendant of a house so that a part of it could be lighted only by certain windows opening on a vacant lawn in front of defendant's adjoining property, created an easement in the light and air from defendant's lawn, which passed with the conveyance of the house. 5. The fact that the conveyance expressly granted the right to use the alley on the west lot, does not exclude the implication of a grant of the right to the light and air over the east lot. 6. The obstruction of the right to the influx of light and air by a private person will be restrained, notwithstanding compensation can be made in damages; such right being property of which the owner cannot be deprived by private persons for private use, even on just compensation made. On final hearing on bill, answer and proofs. Mr. Jacob W. De Yoe and Mr. Walter R. Hudson, for the complainant. Mr. Francis Scott, for the defendant. |