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"With all due respect, the Town disagrees"
Text of letter Gray Attorney and manger sent to Attorney General

M.S.A.D. No. 15 v. G. Steven Rowe, Attorney General, Maine Superior Court (Cumberland County)
Docket No.: RE-03-43

Dear Linda and Christina:

I am writing to acknowledge receipt of your letter reply dated December 17, 2004 in the above-captioned matter. With all due respect, the Town disagrees and would appreciate re-consideration on two points.

First, regarding the continuing viability of the Pennell Trust, the Town continues to believe the wording of the 1954 Court Order could not be clearer: the Town, acting by and through its Board of Selectmen as trustees, was ordered to convey the property to the Inhabitants of the Town, and did so by deed a month later, with the Town taking title unencumbered by the trust.

The reasoning in your December 17 letter that such a change could only occur under the doctrine of legal and equitable merger ignores another widely-recognized ground for such a change: namely, the power of a court of competent jurisdiction to modify a trust based on an unanticipated change in circumstances. See Restatement (Third) of Trusts § 66 (2003); see also § 65 (termination or modification by consent of beneficiary) and § 67 (cy pres).

Here, the Town's Selectmen as plaintiffs in 1954 expressly alleged an unanticipated "change of conditions and circumstances" in 14 of their complaint (copy enclosed), all defendants, including the Attorney General admitted the same, and the Court then granted the requested relief.

And second, here, except for my first argument above, none of the court orders removed the Town as the sole beneficiary of the trust. In other words, even if the property were sold, the Town alone would be the beneficiary and not M.S.A.D. No. 15 and the sale proceeds would have to be given solely to the Town still to be used for the purposes specified in Henry Pennell's will ("…for whatever shall promote and advance the cause of learning, education and good morals...").

The Town respectfully asks your office to confirm this last point because that may well serve as a basis for resolving this matter because the Pennell property is probably only worth, at best, half of one month's M.S.A.D. educational assessment against the Town. The practical effect of such a conclusion is that the property could be sold to the Town and the sale proceeds then simply applied to the Town's then-current monthly assessment.

The Town appreciates the time and effort your office has spent on the matter to date, but believes a revised opinion letter from your office based on the points raised above would ultimately serve to facilitate the quickest resolution of the matter for all parties.

Thank you.
Sincerely,
William H. Dale
Cc: Mitchell Berkowitz, Town Manager