the grantee failed to pay him a certain sum as provided in the condition, the deed should become null and void. The question was whether this avoided the insurance under the clause prohibiting alienation. The court could not see wherein this differed from the ordinary case of the conveyance of an absolute title with a mortgage back to secure a payment of purchase money, saying that here the defeasance was inserted in the deed of conveyance, while in the ordinary case of conveyance and mortgage the defeasance is inserted in the latter, but that in such a case both instruments are construed together as one and the same contract, effectuating the conveyance of a defeasible title to the purchaser. So the insured's deed was held an alienation of the property, avoiding the insurance. The situation being the same as if the condition were omitted from the oratrix's deed and contained in another deed, given back by the defendant husband, it is clear that the rights of the defendants may be foreclosed by bill. In this state, a conveyance conditioned for the support of the grantor is treated as a mortgage, whatever the form in which the support is to be furnished. Austin v. Austin, 9 Vt. 420; Henry v. Tupper, 29 Vt. 358; Ottaquechee Sav. Bk. v. Holt, 58 Vt. 166, 1 Atl. 485. It appears from the bill that this deed was for an expressed consideration of $300, and that the defendant husband paid some over that amount in discharge of a mortgage on the premises. There is no further allegation regarding this, and it is claimed that the bill is demurrable for want of an offer to do equity. The bill sets up a persistent and aggravated abuse of the oratrix, alleges that this was inflicted with intent to drive her from the premises, and discloses no fact or circumstance that can operate by way of excuse or palliation. The rules of equity do not permit any relief of the defendants on the case presented, and it was therefore unnecessary to aver a readiness to do equity. Pro forma decree affirmed, and cause remanded. (80 Vt. 16) NORTH TROY GRADED SCHOOL DIST. v. 1. WILLS-TRUSTS-CONSTRUCTION-DESIGNATION OF SHARES-DIVISION AMONG MEMBERS OF CLASSES. A will left certain property to the town of T., in trust for the school districts and fractional school districts therein, the interest to be divided by the selectmen of the town each year, so that each fractional part of a school district should receive one-half as much as a whole district and each whole district to draw the same amount. At that time there were nine whole and four fractional school districts in T., but subsequently the whole town became a single district under a statute, and later the orator district was created by act of the Legislature, comprising less than half of two of the old districts; its grand list being about a third as much as that of the rest of the town. Held, that the orator district was entitled to one-half the interest, as there are but two districts in the town. 2. SCHOOLS AND SCHOOL DISTRICTS-FUNDSBEQUESTS STATUTES-CONSTRUCTION. The act of 1894, incorporating the school district of North Troy, providing that it should have the same share of income from bequests to the town for the benefit of the public schools of the town that it would by law receive as an unincorporated district, means that it should reIceive the same share that it would if it were a school district not incorporated by special act. 3. TRUSTS SUPERVISION BY COURTS. EXECUTION Where a will left funds to a town in trust, the income thereof to be divided by its selectmen among its school districts in a certain manner, the action of the selectmen in making a division is not final, but may be reviewed by the courts, since they derived their authority from the will and it directs the method of division, which must be made accordingly. 4. ESTOPPEL-EQUITABLE ESTOPPEL-CHANGE OF POSITION. Where a defendant school district made no change in its situation on account of the orator's conduct in not claiming its proper share of the income from trust funds of which defendant was one of the cestuis que trust, the orator is not bound by its conduct in that respect. [Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Estoppel, § 142.] 5. ABATEMENT · ACTION AGAINST OFFICER — EXPIRATION of Term. Where certain officers of a town were cited as such as defendants, but the bill made no case against them until an amendment was filed after their respective terms had expired, the bill will be dismissed as to them, with costs on appeal. 6. TRUSTS-EXECUTION. Where a town was the trustee under a will of certain funds, the income from which was to be divided by its selectmen among its school districts, a decree against one of the selectmen as to the manner of dividing the income will be as effective as one against all of the board, since their authority is private, and all must concur in its execution. 7. SAME-ACTIONS-PARTIES. Where a town was made trustee of certain funds, the interest thereon to be divided by its selectmen among the school districts thereof, the town was a proper and necessary party to an action to restrain an improper execution of the trust, since it was the conferee of the trust, and held the legal title to the property. 8. MUNICIPAL CORPORATIONS - CREATION BY IMPLICATION. If powers and privileges are conferred by legislative act upon the inhabitants of a district, and duties imposed that cannot be exercised and enjoyed without corporate capacity. such capacity will be created by implication if such appears to be the intention of the Legislature. 9. SCHOOLS AND SCHOOL Districts—StatUS OF DISTRICT. A town school district under the statute is a corporate body by necessary implication, separate and distinct from the town, since it has creation by name, in effect, perpetuity of existence, unity of person, and governing boards elected at town school district meetings. 10. INTEREST-AMOUNT-INTEREST ON RECOVERY TIME OF BEGINNING. In an action against a town as trustee under a will and a town school district as a cestui que trust for money improperly paid to the school district, in which there was a reSovery, the district should pay interest from the time it was made a party and the original bill was served upon it, though the original bill was against the town alone, since the district knew from the bill that the orator was seeking the recovery of the money it had received. Appeal in Chancery, Caledonia County; John H. Watson, Chancellor. Action by the North Troy graded school district against the town of Troy and others. From a decree for orator, defendants appeal. Reversed and remanded, with mandate for decree upon proper amendment. Argued before ROWELL, C. J., and TYLER and MUNSON, JJ., and HALL, Superior Judge. J. W. Redmond and O. S. Annis, for orator. Young & Young, for defendants. ROWELL, C. J. On March 7, 1890, Moses Dodge, who then was, and for 40 years had been, a resident of the town of Troy, made his will, whereby he gave the residue of his estate to said town in these words: "The residue and remainder of all my estate, both real and personal, I give to the town of Troy in trust, and all of the same to be held in trust by said town for all the school districts and fractional school districts in said town, and all that may hereafter be in said town; the same to be known and forever called the Moses Dodge Fund, and all of the same to be kept at interest by said town forever, and the interest on all of the same to be divided each year by the selectmen of said town on the Friday next before the last Tuesday of March of each year hereafter forever after my death between the school districts and the fractional parts of school districts in said town as aforesaid, each fractional part of a school district, one half as much as a whole district, and each whole school district to draw the same amount each year." The testator died at Troy on October 3, 1890, and his will was duly probated, and the residue of his estate, amounting to $13,272.62, was paid to the town under the will, and the town still holds it. Before and at the time in question, and up to the time the town system was adopted by the act of 1892, the several district system prevailed in Troy, under which, at the time in question, the town was divided into nine whole districts and four fractional districts; and so, when the town became a single district under said act, as it did, there being no other district in town, it was entitled to the whole income of said fund. But in 1894 the Legislature, at the special instance and request of the inhabitants of the incorporated village of North Troy, incorporated that part of the town comprising the territory of said village as a graded school district, with all the powers, duties, and privileges granted by law to such districts, and giving it the same share of the public money and the same share of income from bequests and legacies to the town for the benefit of the public schools of the town that by law it would receive as an unincorporated district. This district is the orator, and consists of considerable less than half of the territory of old school districts Nos. 1 and 10 as they existed before and at the time the act of 1892 took effect, and does not include all of either of said districts. The orator's grand list is about a third as much as that of the rest of the town. Up to and including 1905 the income of said fund has been divided between the orator and the town district on the basis of two-elevenths to the orator and nine-elevenths to the town district. But now the orator claims one-half of said income, because there are but two school districts in town, and seeks a decree to that effect, and also to recover what it has been deprived of by the divisions that have been made. The testator never lived in what is now the orator district, but most of the time in one of the smaller districts of the town. He was fully conversant with the division of the town into school districts, and knew in what subjects the law required Instruction to be given in the schools maintained therein. The defendants claim that a school district, like the orator, incorporated by special act of the Legislature, was not in the contemplation of the testator when he made his will, nor what he meant by the words "school districts," as therein used; but that he contemplated, and that the will should be construed to mean, only school districts created under the general law of the state, such as he had always known and been accustomed to. But when we read the will in the light of the circumstances in which it was written, and consider, as we may, that the testator knew that the town could make and unmake, unite, and divide its school districts at pleasure, and thereby increase or diminish their number, and not only that, but could abolish them altogether, and adopt the town system, as the law had been for 20 years, and that the Legislature could, and for a long time had, created graded school districts by special act, and could, in fine, control the whole system of public schools, and especially when we consider that his gift was to go on forever, and that he could not foretell what changes might take place -it can hardly be supposed that he undertook to divine whether the school district system would go on in the town as long as his gift, and made his will upon the theory that it would; but rather that he knew he could not foretell how that would be, and adopted a basis for dividing the income that would be likely to fit any change that might be made in that regard, and so took no note of population, average attendance, school age, territorial extent, nor any other thing save only the number of districts, which he knew was liable to change at any time, as the language of his will shows. He did not seem to care how many school districts there were, and why should he care whether they were formed under general or special law. For his purpose a school district was a school district, however formed. Suppose the town itself, as the testator knew it might as the law then was, had made the orator's territory into a district, and all the rest of the town into another, would it be said that the testator did not contemplate that, and that the income could not be divided between them on the basis of the will? Hardly that, we think. Then why say that merely because the orator was created by special act? It is clear that you cannot. It is unnecessary to say that the language of the will must control, and that language is that each whole school district shall draw the same amount each year forever. But the defendants say this is inequitable. If that is so, nevertheless, the language of the will must control, and no warrantable construction can make it otherwise. The defendants also say that, though the orator is entitled to one-half under the will, its charter limits it to a less amount, if, indeed, it is entitled to anything thereunder, because of the provision that it shall receive the same share of the income that by law it would receive as an unincorporated district, under which they say, strictly speaking, it could receive nothing, because, as the law then stood, it had, and could have, no existence as an unincorporated district. But, that aside, they suggest a division in proportion to the number of scholars of the same grade in the two districts; but claim that a proper construction of the charter would limit the orator to the same proportion that it received as an unincorporated district before the adoption of the town system, which should in no event exceed two-elevenths, and in the future that that amount should be reduced in the proposition that the scholars resident in that part of Nos. 1 and 10 not included in the orator bears to the scholars resident therein. The orator contends that its charter means that it is to receive the same share of the income that it would receive were it a school district not incorporated by special act-a school district without a special charter, an unincorporated school district. And this seems to us to be the fair import of the act. The other view, although worthy of consideration, does not strike us as tenable. The obvious purpose of the Legislature was, not to say definitely what share of the income from bequests and legacies the orator should receive, but, as a basis for determining that, to give it the same share in all cases that it would receive were it an unincorporated district, and leave that to be determined under the general law applicable to the particular case. The inquiry is, then: What share of the income in question would the orator receive were it, what its charter assumes it to be for this purpose, an unincorporated district? And the answer is, as we construe the will, one-half, for then there would be, as there are now, only two school districts in town, and the orator would be one of them. But the defendants object that, as there is in the will no suggestion of appeal from the action of the selecmen in dividing the income, their division, made in good faith, is final and conclusive between the parties, especially as the money has been accepted and received thereunder and appropriated; that, if the orator intended to question the correctness of their decision, it should have declined to receive the money, and brought suit for a construction of the will and directions to the selectmen; but, not having done that, but having accepted and used the money distributed to it by the selectmen, it is bound by their decision and its own conduct, and precluded from relief in respect of past divisions. The defendants do not claim that the selectmen were acting in their official capacity in making the division, but expressly say they were not, and were in no sense the agents of the town, and had no power to bind it, but were acting solely as the appointees of the testator; and this we think is the correct view of the matter. This being so, the proposition contended for cannot be maintained, for the will cannot be construed to give finality to an erroneous division by the selectmen. They derive their authority solely from the will, and that directs just how the division shall be made, and it must be made accordingly; and, if it is not, it is without authority and void, and neither binds the parties nor precludes the courts, but is subject to revision and correction. Whether the orator is bound or not by its conduct is principally a question of the inequity of permitting its claim for the money to be enforced-an inequity based upon some change in the situation of the defendants made in reliance upon that conduct. But, as it does not appear that any such change was made, it cannot be said that the orator is bound by its conduct in the respect claimed. The defendants Hunt and Wheeler claim that they should have been hence dismissed with costs. The decree takes no note of them in any way. The claim is based upon the idea that they were not made parties until the amended bill was filed, when they had ceased to be selectmen by the expiration of their term of office, and hence were not even proper parties. But the fact appears to be that they were cited in nearly a year before that, when they were in office, under an order for that purpose following a decision on demurrer that they were necessary parties. After being thus cited, they appeared, and moved to dismiss because the bill as it then stood made no case against them; and thereupon, on hearing, it was ordered that the motion be sustained, and the bill dismissed, with costs, unless the orator amended its bill in the respects complained of in such a time, and thereupon the amended bill was filed, though not within the time limited, but no objection appears to have been made on that account. It is a general rule that no one should be made a party defendant to a bill who has no interest in the subject-matter of the suit and against whom no decree can be made. But here these defendants could have been decreed against while in office by way of directing them how to divide the income, and enjoining them from dividing it otherwise, and so they were proper parties, at least, when cited in. But now, having gone out of office, which they did before the amended bill was filed, no decree can be made against them, for they could not obey it if there should be, and the court will not do a nugatory thing, as is often said in mandamus proceeding, in which the court never commands the doing of a thing by one who would have no power to do it if commanded. Therefore we think that the bill should be dismissed as to these defendants, with costs in this court, but whether with costs below or not we leave to be there determined. The defendant Peck is still a selectman, and has been since before the bill was brought; and, although he is the only member of the board who is a party to the suit, yet a decree against him will be as effective as one against all the members of the board, for their authority is private, and not public, and therefore all must concur in its execution. The town claims that it is neither a necessary nor a proper party, for that it has received none of the income in question, and therefore is not liable for it; that the selectmen in dividing it were not its agents, but the agents of the testator, and that it is not liable for what they did, however erroneous, nor for the results of it; that the only duty the will imposes upon it is to take the bequest, invest it, and pay the income to those designated by the men acting as its board of selectmen, all which it has done. But this claim fails to note that the town's trusteeship gives it the legal title to the fund, and therefore makes it a proper party at least, and the general rule is that, when the suit is by or against the beneficiaries, the trustee is a necessary party. Story's Eq. Pl. § 207. And, besides, as the town is the conferee of a trust and not the donee of a mere power, it can be directed and restrained in respect of its duty sufficiently to insure a proper execution of its trust, and for this reason also it is a proper party. Bacon v. Bacon, 55 Vt. 243, 249. But this does not determine whether the town is liable or not, for that depends upon whether or not the town and the town district are separate and distinct legal entities; for, if they are, the town district being the one that has received the money, is the one liable for it. Now it is settled law that though in this country corporations, public and private, are created by statute, as they are in England, though there they may be created otherwise also, yet that no particular form of words nor technical mode of expression is necessary to their creation; but, if powers and privileges are conferred upon a body of men or the inhabitants of a district and duties imposed that cannot be exercised, enjoyed, and performed without corporate capacity, such capacity is created by implication, if such appears to be the intention of the Legislature or other authority granting the powers. Thus in the case of Sutton Hospital, 10 Co. 23, 28, to the objec tion that in the license there were not words of fundare, erigere, facere, it was resolved that nothwithstanding that the grant was good, for that to the essence of a body politic two things only are requisite, namely, a corporation and a gift, and not only words of fundare, erigere, and stabilire, nor words to such effect; for no such words were contained in the said grant of H. 4, and yet it was adjudged a good chauntry, lawfully incorporated and founded, and, if such words had been necessary and requisite in law, the judgment ought to have been against the chauntry, because they were omitted in the king's grant. In the Conservators of the River Tone v. Ash, 10 B. & C. 349, the plaintiff claimed to be a corporation by act of Parliament for making and keeping the Tone navigable, whereby it was enacted that the persons therein named and their successors should be conservators of the river, and should have power to cleanse, scour, open, and keep the river navigable, and to cut and make a new channel, if need be, through the ground of other persons, making compensation to the owners. They were also empow ered to do divers other things touching the performance of their duties under the act, among which was the making of contracts binding the whole body, and to sue and be sued by the name of the conservators of the river Tone in the county of Somerset. It was held that as it manifestly appeared from the act that the conservators should take land by succession, and not by inheritance, although they were not created a corporation by express words, they were by implication, and therefore entitled to sue in their corporate name for injury to their real property. It has been held in this state that, when a public grant emanates from the same power that can create a corporation, the grant itself creates and gives the capacity to take, and, as a corporation, if necessary to that end. Lord v. Bigelow, 8 Vt. 445. In the Inhabitants of the Fourth School District of Rumford v. Wood, 13 Mass. 193, the question was whether the plaintiff had sufficient corporate capacity to maintain the action, which was for the breach of a contract to build a schoolhouse on the defendant's land, and to lease the land to the district. The statute did not expressly incorporate the district, but empowered it to raise money by majority vote to erect, repair, or purchase a schoolhouse, and to determine its site; and it was held that by necessary implication the district had the authority requisite to execute the purpose of its creation, and In therefore could maintain the action. Broking v. Van Valen, 56 N. J. Law, 85, 27 Atl. 1070, the question was whether two villages were incorporated. The statute relating to them created a board of trustees as a governing body, and conferred corporate powers upon them. The powers were limited, but they were corporate powers usually conferred upon municipalities of that grade. The court said it was not necessary that all kinds of municipal powers should be conferred, nor that the powers bestowed should be conferred by express legislative grant, in order to create a body politic and corporate, that such express words are wanting in many instances, but if, from the whole statute, incorporation is inferred, it is enough, and that in that case it seemed conclusive, under the ordinary interpretation of the language of statutes, that corporate powers were conferred; that the power to issue bonds in the name of the village was a corporate power, and, if they were not possessed of that power, the words of the statute giving the power were meaningless. In Levy Court v. Coroner, 2 Wall. 501, 17 L. Ed. 851, the question was whether the levy court of Washington county, in the District of Columbia, had a legal capacity to sue in a court of justice. It was the body charged with the administration of the ministerial and financial duties of the county. It was charged with the duty of laying out and repairing roads, building bridges, and keeping them in good order, providing poorhouses, and the general care of the poor, laying and collecting taxes necessary to enable it to discharge its duties, and to pay the expenses of the county. "Held, if not a corporation in the full sense, yet it was a quasi corporation, and could sue and be sued in regard to any matter in which it had rights to enforce or obligations to fulfill; that this principle, a necessary one in the enlarged sphere of usefulness that such bodies are made to perform in modern times, is well supported by adjudged cases. In Thomas v. Dakin, 22 Wend. (N. Y.) 9, the question was whether certain associations formed under an act to authorize the business of banking were corporations, and it was held that they were. Judge Cowen said that it was impossible for him to see the force of the argument that, because the Legislature had constantly avoided calling the associations a corporation, 'they could not be adjudged so; that if they had the attributes of corporations, and were so in the nature of things, the court could not refuse to regard them so any more than it could to regard natural persons as such because the Legislature in making some provision for them had been pleased to designate them as belonging to some other species. In Commonwealth v. West Chester R. R. Co., 3 Grant, Cas. (Pa.) 200, it is said that a grant to perform corporate acts implies a grant of corporate powers. And in Delaware Division Canal Co. v. Commonwealth, 50 Pa. 399, it is said that it mattered not that the terms of incorporation were less formal than usual, since it was apparent from the act that a corporation was intended, and manifest that such an organization was absolutely necessary to the management and enjoyment of the property. In Mahoney v. Bank of the State, 4 Ark. 620, the question was whether the bank was incorporated. It was contended that the act in question was a mere abstraction and nonentity, as it declared only that a bank should be established, designated by name. The court said that it was true that there were no express words incorporating any particular persons, still the fund was placed under the management and control of a directory, who were required to be elected by the Legislature, and the usual powers of banking were conferred upon them; that, though the act was vague, it was capable of being understood; and that, taking it altogether, no doubt could be entertained that it was the intention of the Legislature to incorporate the directory, and that the powers and authority conferred upon them could not exist unless they were incorporated. In the Commissioners of the Town of Bath v. Boyd, 23 N. C. 194, it was held that a legislative grant of land to the inhabitants of a town for a common ipso facto created them a body politic for the purposes of the grant, though it did not appear that they had before been created a corporation. But, where a corporation is not necessary for the purposes of the act, one will not be implied. Walsh v. Trustees of the New York and Brooklyn Bridge, 96 N. Y. 427. Thus it appears that the test is, in the absence of express words, whether the powers and privileges conferred and the duties imposed are essentially corporate in their nature. If they are, corporate capacity will be implied, as necessary to carry out the purposes of the act; but, otherwise, there will be no such implication. Among the most important characteristics of a corporation are continuance of existence and unity of person, by which a perpetual succession of individuals is capable of acting for the promotion and accomplishment of the particular object in view. We will paraphrase, as far as necessary, some of the provisions of our various statutes upon the subject of town school districts, to see whether they disclose a necessary implication of corporate capacity, as the statute contains no express words to that effect. Each town in the state shall constitute one district for school purposes, and the division of towns into school districts is abolished. School districts incorporated by special acts, and school districts in unorganized towns and gores, are not affected by the above provision. Voters in districts incorporated by special acts cannot vote in town meetings for the officers of, nor upon any matter pertaining to, the schools of the town district. A town school district in a town in which there is an incorporated school district may hold its annual school meeting at |