Comstock v. Boyle
128 N.W. 870
Wis.
1910
Check Treatment
ViNJE, J.

It is сonceded by the defendants that if the land was taxable when the taxes on which the tax deeds are based were assessed against it, then plaintiff’s tax title is valid. The sole question for determination, therefore, is whether or not the land wаs taxable in the years 1893, 1894, 1895, and 1896. The defendants claimed that the land belonged to the ■state exclusively, and that under subd. 2, sec. 1038, Stats. *185(1898), wbict provides that property “owned exclusively by 'the United States ‍‌​​‌​​‌‌​​‌‌‌​‌​​​​‌​​‌‌​​​‌​‌‌‌​‌​‌​​‌‌​​​​​​‌‌‍or by this state” shall be exempt from taxatiоn, it was not taxable.

It is evident that it was the intent of the testator, Ward, to .make thе inmates of the institutions, and not the institutions themselves, the beneficiaries of his gift. That portion of his will which reads, “I judge that the interest only, for a time, will be used, and that the bequest, be so managed as to give the orphans, as they become of аge, a sum of money to fit them out in life and thus gradually extinguish the fund— this course would be in exаct accord with my wishes,” evinces a clear intent that not only the interest but аlso the corpus of the gift should go to the orphans. The inmates of institutions managed by private parties as well as of those managed by the •states werе to share in the gift, for the bequest was “to the various asylums or homes that have been formed or may be formed within a year throughout the loyal states for the orphans by the late war for the restoration of the Union.” ‍‌​​‌​​‌‌​​‌‌‌​‌​​​​‌​​‌‌​​​‌​‌‌‌​‌​‌​​‌‌​​​​​​‌‌‍The bequest of Miss Smith was to the trustees of the Wisconsin Orphans’ Home 'for the benefit of the children. So it must be held that both bequests constituted the orphans the beneficiaries. That this was recognized by the trustees and the statе is evident from the fact that the Ward and Smith Bequests Eund was kept separate from all other funds. The trust relation was also clearly recognized when the balance of the fund was transferred to the general fund, for it was provided by the legislаture that the state treasurer'should pay ■out of the general fund any and all сertificates issued by the trustees not exceeding in the aggregate the amount so transferred from the Ward and Smith account to the general fund. This provision was tantamount to saying that the balance of the Ward and Smith account belonged to the orphans, but would be transferred to the general fund and paid to thеm out of that whenever a proper demand was made.

But the defendants argue that the evidence shows the state *186spent large sums of its own money for tbe care and maintenance of tbe orphans, and it is thеrefore entitled to reimburse itself out of their fund, conceding it belonged to thеm,, and that if it did so the whole trust fund would be exhausted. The evident answer to this is that the faсt the state was engaged in a similar charity would not entitle it to reimburse itself ‍‌​​‌​​‌‌​​‌‌‌​‌​​​​‌​​‌‌​​​‌​‌‌‌​‌​‌​​‌‌​​​​​​‌‌‍for money spent therein out of other funds held in trust by it. Nor has it sought to so reimburse itself. It has, as-аbove stated, always recognized that it held the fund in trust, for the orphans, even after the moneys were turned into the general fund, for it provided for a 'repаyment to them upon presentation of proper vouchers to the whole extent of the-fund.

It is undisputed that the $100 used in the purchase of the land in question was taken from the Ward and Smith Bequests Fund, and as the state was not the owner, but only the-trustеe thereof, it is evident that the fact that it used a portion of the fund for the рurchase of real estate (contrary perhaps, to the provisions of the bequests) and took title to itself “in trust” could not make it the owner, much less the exclusive owner, of the land so purchased. Exclusive ownership is-necessarily ownership free from any kind of legal or equitable-interest in any one else. Merrill R. & L. Co. v. Merrill, 119 Wis. 249, 96 N. W. 686; Dickinson Co. v. Baldwin, 29 Kan. 538. But here the beneficial, equitable ‍‌​​‌​​‌‌​​‌‌‌​‌​​​​‌​​‌‌​​​‌​‌‌‌​‌​‌​​‌‌​​​​​​‌‌‍ownership of the land was in the cestuis que trusteni, and it is immaterial whether-Bandall alone was the cestui que trust or whether all the surviving orphans were the cestuis que trustent. In either-event the beneficial ownership of the land was in a private person or persons. ‍‌​​‌​​‌‌​​‌‌‌​‌​​​​‌​​‌‌​​​‌​‌‌‌​‌​‌​​‌‌​​​​​​‌‌‍The faсt that the state held the title intrust would not exempt it from taxation. St. Louis v. Wenneker, 145 Mo. 230, 41 S. W. 105; McChesney v. People ex rel. Johnson, 99 Ill. 216; Dickinson Co. v. Baldwin, 29 Kan. 538; Mitchelville v. Sup’rs, 64 Iowa, 554, 21 N. W. 31; 1 Cooley, Taxаtion (3d ed.) 266. The court, therefore, prop*187erly found that plaintiff was the owner in fee of the land and entitled to judgment.

By the Gourt. — Judgment affirmed.

TimliN, J., took no part.