46 Wis. 70 | Wis. | 1879
Lead Opinion
The following opinion was filed January 14, 1879:
“Every sane man .must he allowed to make his own contract as well as his own will,” says Gibson, C. J. That great jurist plainly suggests that courts have no more authority to make wills for the dead, than contracts for the living, according to judicial notions of fitness and propriety. Bash v. Bash, 9 Pa. St., 260. Breaking a will is very much like making one; imposing upon the testator the statutes of descent and distribution against his solemn wish in dying. Perhaps courts have been quite too willing to do so. There is a vicious notion prevalent that any will not acceptable to the testator’s next of kin may be broken in the courts upon very frivolous grounds. But every one should have the same power to dispose, by will, after his death, in accordance with his own wishes, of whatever he may leave behind him in his
Of course, devises and bequests as well as contracts may be void upon many grounds. But it is the policy of the law not to seek grounds to avoid either; but so to deal with both, if it can be done upon sound legal construction, as to uphold and enforce them.
In some of its aspects, this cause appears almost to have been argued as if it were the duty of the court to lean against bequests for charitable uses, in favor of claimants under the statutes of distributions. Erom time immemorial the general inclination of courts of equity has been the other way. “ Charity in thought, speech and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory. . . . Charitable bequests are said to come within that department of human affairs where the maxim ut res magis valeat guam jyereat has been and should be applied.” “ Courts look with favor upon all such donations, and endeavor to carry them into effect, if it can be done consistently with the rules of law. ... As Lord Haedwioke said, ‘ the bequest is not void, and there is no authority to construe it to be void, if by law it can possibly be made good,’ or, in other words, ‘ there is no authority to construe it to be void by law, if it can possibly be made good.’ ” Perry on Trusts, secs. 687,709.
And so it is the duty of this court to uphold the charitable bequests of the will in this case, if it can be done without violating any provision of statute or principle of law. But, at the same time, it is the duty of the court carefully to weigh the objections made against the bequests, and to give effect to any sufficient to render the bequests void in law.
After the payment of certain specific legacies in money, the testator gives the residue of his estate, real and personal, to
The argument was learned and able on both sides, and a great number of cases were cited on a subject which has been prolific of litigation. All the cases cited, and others, have been carefully considered; but it would be impracticable, without extending this opinion beyond reasonable limit, to review them all in detail. It is thought sufficient to give the conclusions of the court derived from them all, with occasional reference to some of them more directly in point.
I. Many charitable bequests have been defeated in the English courts under the statute of mortmain, 9 George II, c. 86; and some reliance appeared to be placed on the position that the bequests in this case were void under that statute. That statute has never been adopted or in force here.
The last clause of the English statute excepts from its operation estates, real and personal, in Scotland; and it appears not to have extended to Ireland. Attorney General v. Power, 1 Ball and B., 145. It seems to have been a matter of some doubt how far the English statute could be held to have extraterritorial application. Campbell v. Radnor, 1 Brown’s C. C., 271; Oliphant v. Hendrie, id., 571; Curtis v. Hutton, 14 Vesey, 537; Mackintosh v. Townsend, 16 Vesey, 330; Attorney General v. Mill, 3 Russell, 328; Baker v. Sutton, 1 Keen, 224. But it does not appear ever to have been held to be in force in any of the British colonies.
The question of the applicability of the statute of mortmain to the British colonies appears to have been first considered in Attorney General v. Stewart, 2 Merivale, 143. Sir William GRANT quotes and approves the language of Blackstone as “ in a great degree applicable to any colony to which the laws of England may be extended.” “ It hath been held, that if an
“ It is true that the disherison of lawful heirs is recited as one of the consequences of the unlimited power of devising to charitable uses, and heirs may consequentially be benefited by the prohibition. But generally to restrain the power of' devising was not in the contemplation of the legislature. Heirs are as liable as before to be disinherited by will, provided the disherison be not in favor of the prescribed object. The thing to be provided was a mischief existing in England; and it was by the quality and extent of the mischief as it there existed, that the propriety of legislative interference
When this state was part of a vast wilderness, and all prop
If the English statute of mortmain was not in force'in Wisconsin while it was part of or appendant to an English colony, it seems very certain that it has never since had any force here. See the Michigan statute of 1810, R. S. of Michigan of 1833, p. 563; R. S. of 1839, p. 407. See, also, Odell v. Odell, 10 Allen, 1; Perin v. Carey, 24 Howard, 465.
All that has been said of 9 George II, c. 36, applies equally to 39 and 40 George III, c. 98, known as the Thellusson Act.
The poor we have always .with us. When charitable bequests" in this state begin to outrun reasonable provision for the poor, and seriously impede the alienation of property, it will be time enough for a statute of mortmain. The silence of the legislature hitherto, and the observation of all men, are sufficient to show that the time has not yet come, if it ever should.
II. Strenuous objections to the charitable bequests in the will before the court, were founded on the statutes prohibiting perpetuities, and regulating uses and trusts. Chaps. 83 and 84, R. S. of 1858. It is almost sufficient to say, for the purposes of this case, that both of these statutes are expressly limited to realty.
The English doctrine of perpetuities applied to estates both real and personal, and grew up by a series of judicial decisions. Perry on Trusts, secs. 377, 379. It appears to have been applied to private trusts, but not to trusts for charitable uses, which usually are essentially and indefinitely permanent. Perry, secs. 384, 687, 736.
“ The rule of public policy which forbids estates to be indefinitely inalienable in the hands of individuals, does not apply to charities. These, being established for objects of public, general and lasting benefit, are allowed by the law to be as permanent as any human institution can be, and courts
But were this otherwise, the statute limiting the rule against perpetuities to realty, manifestly abrogates the English doctrine as applicable to personalty. Expressio unius exelusio alterius.
The will in this case gave to the executors, as executors, power of sale of the testator’s realty. The direction to the executors, as trustees, is to pay and deliver the sum of five thousand dollars each, to the Wisconsin Female College, the Ripon College and the Beloit College, for a common, specific, charitable use. These are expressly bequests of money. The will subsequently emphasizes this, by speaking of the bequests as sums given ■ and paid, and prohibiting their being mixed with the general fund of any of the colleges. The will then proceeds to direct the trustees to fay over and deliver the residue of the estate to an institution of learning to be organized at Beaver Dam, for the like charitable use. Failing the organization of the Beaver Dam institution as specified in the will, the trustees are directed to pay and deli/oer the residue in equal proportions to the three former institutions, to be used and applied as therein above directed; plainly meaning the direction given for the use of the bequests of five thousand dollars each. If and when the residue should be paid and' delivered to the three former institutions, it would plainly come within the direction already noticed for the use of “ all
When a will contains a. power of sale, not mandatory in terms, but it is apparent, from the general scope and tenor of the will, that the testator intended all his realty to be sold, the power of sale will be held imperative, and the doctrine of equitable conversion applied. Courts of equity will deal with the estate as personal from the death of the testator. Chandler’s Appeal, 34 Wis., 505; Dodge v. Pond, 23 N. Y., 69; Craig v. Leslie, 3 Wheaton, 563.
The bequests in this will must therefore be considered as bequests of personalty only." And for that reason, if for no other, the bequests to charitable uses are unaffected by the statute of perpetuities or the statute of uses and trusts.
It is not unworthy of remark, that, however the statute of perpetuities, or the statute of uses of 1858, might have affected grants or devises of realty for charitable uses, all doubt is removed by sections 2039 and 2081 of the late revision, which most properly make exceptions in favor of charitable uses.
It is proper to say in this connection, that a statute of New York, 1 Revised Statutes, 773, applies the doctrine of per-petuities to personal estate, without exception in favor of charitable uses. This renders New York cases on this point inapplicable here. Levy v. Levy, 33 N. Y., 97.
III. The charitable use. of the bequests is the education
It was contended that the bequests are void on the ground that the scheme of the charity is uncertain. It is difficult to see how it could be safely made more certain. As to the three institutions existing when .the will was made, sums of money are given to go as far as they may to the education of poor females, plainly signifying such education as other females receive in those institutions. And so of the contemplated institution; the education provided for is such as is usually given in other similar institutions.
Public charities, indefinite in terms, are necessarily limited in their administration by the amount of the foundation. Where the founder does not provide a rule or order of selection, there is, therefore, in every public charity, a necessary power of selection of beneficiaries in the trustee. If the power be abused, the state, in the exercise of its visitatorial power, will correct it. Re Taylor Orphan Asylum, 36 Wis., 534; Perry on Trusts, sec. 732.
It was objected that the beneficiaries of this charity are uncertain. A charitable use is essentially shifting. When a trust defines the beneficiaries with certainty, it is rather private than public. As Mr. Perry remarks, charity begins where uncertainty of the beneficiaries begins. Sec. 687. “ It is no charity to give to a friend. In the books it is said that the thing given becomes a charity where the uncertainty of the recipients begins. This is beautifully illustrated in the Jewish law, which required the sheaf to be left in the field for the needy and passing stranger.” Fontain v. Ravenel, 17 Howard, 369. “ It is the number and indefiniteness of the objects, and not the inode of relieving them, which is the essential element of a charity. ... A good charitable use is £ public,’ not in the sense that it must be executed openly and in
It was objected that the charters of the three institutions existing when the will was made, give no power to execute such a trust. The charters do not quite appear to verify the objection. But ch. 297 of 1873, which took effect before the will, appears to remove all difficulty on this point, by giving to all incorporated colleges in the state express power to receive donations and manage the same for the uses for which they are given; thus authorizing them all to act as trustees for charitable uses. And this statute perhaps operated to repeal, as to the corporations designated, all previous provisions having effect to limit trusts for charitable uses.
IY. These views are believed to be supported by nearly all the English cases not controlled by the statute of mortmain, and by the very general current of American cases on the subject. It might be difficult, perhaps, to reconcile all the cases upon common principles, yet the difference is, perhaps, generally rather in the application of rules of decision, than in the rules themselves. The greatest divergence from the common principle appears to be in some of the later cases in New York, which seem to be more or less in conflict with rules almost universally recognized elsewhere. Perhaps this may suggest a policy in that state against the increase of public charities, somewhat indicated also, by the sweeping statute against perpetuities of personalty, without exception in favor of charitable uses, and by the adoption of a limited statute of mortmain. 4 Edmunds’ N. Y. Statutes, 504. A great number of English and American cases in support of' the views held to govern this case, are cited in the briefs of counsel, and. need not be referred to here. Others are cited by Mr. Perry.
There are some passing remarks to be found in Ruth v. Oberbrunner, 40 Wis., 238, and Heiss v. Murphey, id., 276,
Y. The fourth bequest was to a contemplated institution, not yet in being when the will was made or took effect. The will gives five years for its organization on the terms prescribed. The record does not disclose whether it has yet been organized or not.
It was argued against the bequest, that the trustee to whom it was first to go, is an indefinite body, essentially uncertain, which need not, by the terms of the will, be incorporated. The objection is more subtle than sound. The bequest is made to an institution of learning for the education and training of females, of a character and organization commonly called and known as a female seminary, to be organized by the end of five years. The words, institution and organized, appear to imply an incorporation. A private school or college may by courtesy
And the only question which distinguishes this bequest from the others is, whether a bequest for a charitable use can be made to a corporation not in esse when the will is made or takes effect. This was apparently looked upon as a more difficult question than the others; and yet, on principle, it is not very plain why it should be.
The four bequests are for one charitable use. The fourth is suspended for five years; and is then to go to a corporation to he organized in the manner provided by the will, if such corporation should be in fact so organized; failing the contemplated corporation, then the bequest is to be distributed to the three existing corporations. And so, under the will, there can be no failure of a trustee to take and administer the bequest.
Bequests for charitable uses to be administered by a corporation are sometimes of such a character and extent as necessarily to require the creation of a new corporation to administer them. This was the case under the will of Mrs. Taylor, considered in Re Taylor Orphan Asylum, supra, and
Under these authorities, it is the duty of the court to support the fourth bequest, and thus to carry out the benevolent purpose of the testator in devoting the residue of his estate to an excellent charity.
This view renders it unnecessary to consider at any length the question argued at the bar, whether, if this bequest had been void, the bequest over of the residue to the three existing corporations would have been also void. The views already expressed indicate the opinion of the court that, had the bequest to the nonexisting corporation failed for want of a trustee, the bequests over to the three existing corporations for the same charitable use would have been valid. It appears to be merely providing, out of greater precaution, for a second trustee, failing the first.
“ If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. But no such difficulty, in my judgment, is here presented. If the intention of the testator cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove all difficulty.” Thompson, J., in Inglis v. Sailors’ Snug Harbor.
By the Court. — The judgment of the court below is affirmed.
Rehearing
It is true, as suggested by the learned counsel' for the appellants, that the grave questions involved in this appeal are new in this Gourt; but they were so well argued at the bar, and. so deliberately considered by the court-, that the reárgument of them, urged by the learned counsel, would serve no good purpose. The court is fully satisfied with the principles on which the judgment went, and the questions must be considered at rest in this state.
The capacity of the colleges in question to execute the trusts of the will under their charters, was fully considered; but was, perhaps, too summarily stated in the ojfinion of the court.
The charter of Beloit College expressly provides, that the corporation shall accept and execute every donation or bequest made for a particular purpose, which accords with the design of the institution. The design of the institution is education. And surely a charitable bequest for the education of a class accords with it.
The charter of the "Wisconsin Female College authorizes the corporation to acquire, hold and dispose of real and personal property, for the benefit of the college, not exceeding $50,000 in value, and to mate by-laws for conducting the business of the corporation. There can be no question that the corporation is authorized to receive general bequests for the purposes for which it is established, not exceeding the amount limited. And surely, a charitable bequest for the education of a class may be for the benefit of the college. The object of the charitable bequest was within the scope of the general powers of the corporation. It was for the corporation alone to determine whether the bequest was for the benefit of the college. And the power to make by-laws is quite sufficient for the administration of the trust.
The statutes of perpetuities and of uses and trusts, having been held to have no application to personalty, can of course have no operation to control or repeal the several provisions of these charters.
The learned counsel is mistaken in suggesting that the court overlooked the peculiar language of ch. 297 of 1873. That statute is an amendment of ch. 146 of 1872, so far as the latter relates to schools and colleges. Under the general statute of 1872, the schools and colleges which it authorizes, may or may not have stock and stockholders, may or may not have a governing body elected by stockholders. The first provision of the amendment of 1873 relates exclusively to stock in schools and colleges; and is necessarily confined to such as are established by stock and owned by stockholders. The second provision, the one in question here, was obviously intended to have relation to all schools and colleges organized under the statute of 1872. It is inconceivable that the legislature should intend to discriminate, in the provision, between colleges founded on stock and colleges founded by endowment or otherwise; giving to the former a power to receive and administer charitable donations, and withholding it from the latter. The provision is obviously intended to favor such donations, rather than the schools or colleges; and so arbitrary and unwise a distinction was obviously not in the mind of the legislature. The humane policy of the state ought not to be defeated by too literal a construction of the unfortunate phrase, “ such board shall have power,” etc. The amendment is an addition to the final section of the general statute of 1872, and the phrase may well bear such a construction as
The authorities cited by the learned counsel fail to satisfy the court that the will is not governed by the statutes in force at the time of the testator’s death. As a general rule, a will speaks as from the time of the testator’s death, and is governed by the law in force at the time it takes effect.
The gravity of the questions, then undecided in this state, appears to have given reasonable ground for both the action of the appellants and the appeal to this court. And the learned counsel are therefore right in claiming that the taxable costs of both parties, in both courts, ought to be paid out of the trust fund. Will of John Meurer, 44 Wis., 392. The question of costs was overlooked in deciding the appeal. The judgment of this court will therefore be • so far modified. Otherwise the motion for a rehearing is denied.
By the Cowl.- — ■ So ordered.