105 Wis. 485 | Wis. | 1900
Lead Opinion
The vital question presented for adjudication on this appeal is, Is the bequest to trustees to. promote temperance work in the city of Milwaukee void for uncertainty? That involves the coitsideration of several cases where the important questions involved have been decided by this court, but without such a strict adherence to a definite judicial policy in each case and reasons given for the conclusions reached that it can be said, even at this late day, that we have an established system, based on entire harmony of judicial decisions, by which trusts for charitable purposes can be tested when their validity is challenged. The importance, always recognized, of protecting the individual right of every person to devote his private fortune to the public good so far as practicable without the violation of any legal principle, and of making all efforts to that end effective to accomplish the donor’s purpose, cannot be overestimated. Few things occur in the administration of justice more lamentable than the occasional strangling of some wise and noble purpose to devote the savings, or part of them, of a life of industry, to the upbuilding of the human race at some point or in some field, and the diversion of what was intended for some public benefit to private use, directly contrary to the will of him whose last days were solaced with the thought that his public benefactions would build an enduring monument to his memory in the hearts of grateful people, and the hope of eternal rewards for such well-doing believed to be waiting for bestowal. That idea prevailed with the fathers of the common law so far back that neither the memory of man nor judicial records run to the contrary. It became crystallized as a part of the common law of England long prior to the statute of 43 Eliz. ch. 4, to the effect that gifts to charitable uses should be highly favored and construed by the most liberal judicial rules that the nature of each case, as presented, would admit of, rather than that the gift should fail, and the intent of the donor fail of accomplishment. The judicial system in regard to such gifts was transplanted to
The doctrine of equitable conversion is of importance on both appeals, but more particularly on the appeal of the residuary legatees. It is deemed best to take up that subject at this point, and it will result in disposing of the appeal of the residuary legatees first.
The will requires the executrix to convert the real property of the testatrix into money and to distribute the entire estate as personal property in the manner indicated therein. In the absence of any circumstances sufficient to do away with the force of that direction, it worked an equitable conversion of the testatrix’s real property into personalty, and required the will and every part of it to be treated as if dealing with property of the latter character in law and in effect, as of the death of the testatrix. The rule is that where there is a positive direction in a will to convert the real property into personalty, or there is á power of sale in a will and bequests of such a character as to plainly indicate a testamentary intent that such power shall be executed to provide the means of satisfying them, or where the provisions of a will cannot be carried out without converting the realty into personalty, and the conditions are such that the testator
The doctrine of equitable conversion, as above stated, is elementary.1 It has often been applied by this court, particularly in the class of cases to which this belongs, one of the most significant instances being in Dodge v. Williams; 46 Wis. 70. The application of it to the will in question, if the ‘bequest to promote temperance be valid, is not contested on •either appeal. Such application, in the event stated, is of importance on the theory that the statute of uses and drusts and the prohibition • of perpetuities in real estate apply to gifts of real property for charitable uses, but not to ■personal property. Such theory has much support in decisions of this court. It has been rather taken for granted than directly decided, since Dodge v. Williams. Whether ¡such is the settled law, so as not to be open for discussion, need not be decided in this case. Where a question, affecting property rights, has been judicially settled so long as to have become a rule of property, for the courts to disturb it, even if settled wrong at the stárt, would be a greater wrong than the original mistake; and in such circumstances the maxim, Stare decisis, et non guieta movere, should be pretty •rigorously applied. For the purposes of the bequest in controversy there can be no question but that the entire estate must be dealt with as personal property, and, as we shall •.show, as to such property at least, it was plainly and correctly decided in Dodge v. Williams that the statutes of
On the appeal of the residuary legatees, the question of whether the decision of the trial court, that the direction to convert the real estate into money is- dependent upon the validity of the bequest for temperance, is- of vital importance as bearing on the question of whether the property, intended to be used to satisfy the void bequest, if there be such, goes to the residuary legatees or passes to the heirs of Sarah Parker, the only heir of the testatrix at the time of her death, as property undisposed of by the will. The trial court took the latter view, and of that the residuary legatees complain, and by their appeal present the controversy in that regard for decision.
r The will plainly directs the conversion of all the testatrix’s property into money and the distribution of it as such. There is a “ blending of realty and personalty,” mentioned in Given v. Hilton, 95 U. S. 591, as circumstantial evidence' of an intent to distribute the entire estate in the form of money. Following the direction to sell the realty and the direction to pay the debts and funeral expenses and expenses-of administration, is a direction in regard to the distribution of the net proceeds; all indicating, pretty clearly, that the previous directions were to be satisfied out of the testatrix’s-property generally, after the conversion of it into money. Again, the will provides for a division of the net proceeds, and that a part, on such division, shall go to the residuary legatees mentioned, indicating that such legatees shall take the property only in the form of money. Moreover, as suggested, the debts, funeral expenses, and expenses of administration, which the testatrix must have had in contemplation, were several times more than the personal propeíty, and were directed to be paid out of the proceeds of the property generally. Looking at the will, as a whole, and applying it-
True, when a testamentary purpose, intended to be carried out by the conversion of real estate into personalty, fails for invalidity or other cause, the doctrine of equitable ■conversion does not apply, unless a clear intention can be
The doctrine is invoked on the appeal of the residuary legatees that, “ where a devise, otherwise valid, is inseparably coupled with a void devise and is a mere accessory thereto, and the amount of the valid part cannot be ascertained, then both must fall together.” We cannot discover any reasonable application of that to this case. The bequest to the residuary legatees is not inseparably connected with the gift to promote temperance, neither is it an accessory to or dependent upon the other in any way. Under such circumstances, by the most familiar rules governing the subject, the failure of one part of a will for invalidity or other cause does not affect those portions of it otherwise valid.
Having concluded that the entire estate, irrespective of the validity of the bequest to promote the cause of temperance, must be dealt with as personal property, and that, independent of whether the particular bequest mentioned be preserved, the rest of the will must stand, little is left to be considered on this branch of the case. There is no contention but that, generally, void legacies fall into the residuum of the estate and go to the residuary legatees. The only exception is where there is a clear intent manifested by the will to the contrary. The mere fact of making a will is so inconsistent with any other intent than that to provide for a disposition of all the property of the testator, that very strong and clear language is required to show a contrary intent. For that reason a residuary bequest in general terms
"We will now fake up the subject referred to in the opening lines of this opinion. Is the bequest void for uncertainty, of three fourths of the net estate, to trustees to be used or expended by them, or the survivor of them, as their best judgment shall dictate, in temperance work in the city of Milwaukee, the greater portion to be used for the benefit, of Crystal Spring Lodge, I. O. G. T., and the Woman’s Christian Temperance Union of said city of Milwaukee, but if either of said organizations decide to erect a building for temperance work in said city of Milwaukee, the whole trust fund then remaining in the hands of the trustees to be used by them in the erection and construction of such building, all of such trust funds to be expended in temperance work within five years from the time of coming into the hands of the trustees ?
The precise nature of the uncertainty discovered by the trial court does not appear from the record; but from the arguments of counsel in support of the judgment we assume the case was supposed to be ruled by Ruth v. Oberbrunner, 40 Wis. 238, and Heiss v. Murphey, 40 Wis. 276, and other cases in this court ■ and expressions in opinions which follow the Ruth and Heiss Cases, to the effect that the statute of uses and trusts, and the inability of courts of equity to exercise ey pres power, place trusts for charitable uses on the same basis as private trusts, so that a trust of the former character, not sufficiently definite both as to the charitable scheme and the beneficiaries that it can be enforced by the courts after the manner of private trusts, is void for uncer
It is not supposed that a treatment, to any great extent, of the underlying principles of the system upon which this case must stand or fall, is necessary. The time has gone by when long discussions of questions touching the origin of trusts for charitable uses as distinguished from private trusts, the jurisdiction of courts of equity over the former, how
In Dodge v. Williams, 46 Wis. 70, and Gould v. Taylor Orphan Asylum, 46 Wis. 106, the cases being represented by eminent counsel on both sides and considered and decided together, they having been so arranged because of the great importance of the questions involved, the decisions in Ruth v. Oberbrunner, 40 Wis. 238, and Heiss v. Murphey, 40 Wis. 276, were pressed upon the attention of the court, to the effect that no trust is valid under the laws of this state, whether charitable or otherwise and whether of real or personal property, unless so created as to satisfy the statutory rule of definiteness laid down in the statute of uses and trusts, at sec. 2081, Stats. 1898, and the requirements, generally, of such statute. A reference to the briefs of counsel supporting that theory shows that they grounded their arguments on the idea that the doctrine of charitable uses does not obtain to any extent in this state; that a trust not having all the elements of certainty requisite to a private trust cannot be
The opinion in the case was written by Chief Justice Ryan, who took no part in the first of the former cases, and who appears to have concurred in Heiss v. Murphey because of the absence of any trust, the bequest being made directly to uncertain and unascertainable devisees. The court, as indicated in the opinion, in terms or in effect, decided as follows: Bequests of personal property to charitable purposes, good by the rules of the common law, except so far ■as affected by the &y pres remedy and doctrine of the statute of 43 Eliz. ch. 4, are good under the laws of this state. "When it is said that the doctrine of cy pres does not prevail in this state, that does not refer to those liberal rules of judicial construction of charitable trusts, by courts of equity, which prior to the statute of Elizabeth were applied in chancery, and of which such statute is only confirmatory, but to the prerogative -power exercisable where such statute prevails. Courts here, as anciently, look with favor
In view of the foregoing, that Dodge v. Williams was ruled by an entirely different doctrine than Ruth v. Oberbrunner, 40 Wis. 238, as to personal property at least, without determining whether tbe doctrine of the former should be extended to realty, hardly admits of reasonable controversy. Tbe theory of tbe former case is that trusts for charitable uses must have all the essentials of certainty, of private trusts; that of the latter case is that trusts for charitable uses, good by tbe rules of the common law, except as added to by the eg pres doctrine of tbe statute of Elizabeth, are good here, at least as to personal property. The case was distinguished from Ruth v. Oberbrunner in that in tbe latter tbe subject of tbe trust was real estate and tbe trust was private. It was distinguished from Heiss v. Murphey in that in tbe latter case tbe donees were uncertain and unascertainable. Tbe reasoning of tbe early cases, inconsistent with that of tbe later case, was treated as obiter, and in that way the reasoning and decision in the latter easily harmonized
Erom the foregoing it would seem that when we have determined whether the reasoning which led to the decision in Dodge v. Williams and such decision, or the reasoning which led to the decision in Ruth v. Oberbrunner, is to prevail as the law of this state, we shall have pretty nearly decided the vital question before us.
Gould v. Taylor Orphan Asylum, 46 Wis. 106, decided with Dodge v. Williams, need not be commented upon to any great extent. The justice who delivered the opinion delivered those in the two earlier cases, and followed the lines of -the opinion of the chief justice in the accompanying case. ■The bequest was to trustees for the care of orphan children ■of Racine county, and such other poor, neglected, and necessitous children as the managers might decide to receive. 'The formation of a corporation to receive the fund and administer it was contemplated drat not made imperative. It ■was decided that the fund, without a corporate organization, could be permanently retained and administered by trustees for the charitable work contemplated by the donor. That, it will be observed, is the common-law doctrine of charitable trusts. The court said, in effect, if any or all of the trustees ¡should refuse to act, or fail from any cause, the court of equity would have undoubted equitable jurisdiction to supply trustees, indefinitely, and support the trust and give effect to the charitable use declared by the donor. The idea, it will be observed, was that certain beneficiaries vested with ■an equitable title corresponding to the legal title held by the trustees, who could come into court and enforce the trust after the manner of private trusts, were not deemed neces■.sary.
A review of cases touching the subject under discussion would not be complete if an idea thrown out in De Wolf v. Lawson, 61 Wis. 469, were passed without notice.
The next case in order of time is Webster v. Morris, above mentioned. The opinion therein was written by the present chief justice. The general lines of Dodge v. Williams were followed, except the test of certainty to be applied was rather indicated, but not decided, to be sec. 2081 of the statute of uses and trusts. There were two trusts called in question. One was to the First Presbyterian Church of the village of Omro, Winnebago county, Wisconsin, to use one half of the
The subject was again discussed in Hoffen's Estate, 70 Wis. 522, opinion by Mr. Justice OutoN. The bequest was direct “ to the poor of the city of Green Bay.” There was no trust, nor any ascertainable devisee or devisees. The bequest was held void in strict harmony with Dodge v. Williams, 46 Wis. 70, and Webster v. Morris, 66 Wis. 366. The remarks in the opinion as to the indefiniteness of the individual members of the class, “ the poor of the city of Green Bay,” referred to the absence of definiteness as to devisees, not as to beneficiaries. Much confusion has occurred in citing that case by failing to distinguish between certainty as to donee or
Tbe next case to be considered is Fuller's Will, 75 Wis. 431, where there was a trust, a trustee, and also a particular purpose and use declared, to wit, tbe support of a colporteur and missionary of tbe Baptist Church within tbe state of Wisconsin. It was conceded that tbe trust was for a charitable use. Tbe bequest was held invalid because tbe testator failed “ to fully define his charitable scheme in bis will,” going back, apparently, to Ruth v. Oberbrunner, 40 Wis. 238, and Heiss v. Murphey, 40 Wis. 276. Dodge v. Williams is not cited in tbe opinion. The rule in Webster v. Morris, to tbe effect that a charitable scheme to be valid, “ must be sufficiently indicated in tbe will or a method provided whereby it may be ascertained and its object made sufficiently certain to enable tbe court to enforce tbe execution of tbe trust according to such scheme and for such object,” was referred to and affirmed; but, as it seems, effect was given to tbe rule after tbe manner of private instead of public trusts. We will not further consider tbe case. The task of'harmonizing it with Dodge v. Williams and tbe cases; subsequently ruled by the principles there declared to be tbe law of this state, is one, as it seems, too great for room to hope for its successful accomplishment. There seems to-be but. one theory upon wbicb possible harmony can be
In Sawtelle v. Witham, 94 Wis. 412, the validity of a trust, for charitable uses was again challenged for uncertainty on the reasoning in the opinion in Heiss v. Murphey, but was. sustained as sufficiently certain to satisfy all the requirements of a charitable trust according to the doctrine of Dodge v. Williams, supra, and Gould v. Taylor Orphan Asylum, 46 Wis. 106, they being cited as stating the law of this state. There was a trust, but no trustees, those named by the donor-having refused to act. The purpose of the trust and use declared was to invest the fund and devote the income to-the support, maintenance, education, or aid to that end, of such indigent orphan children under the age of fourteen years, in Rock county, Visconsin, as in- the judgment of the executors may be most needy and deserving. “ Vagueness,”' said Mr. Justice Newman, who-wrote the opinion, “in some-respects, is essential to a good gift for a public charity;’* and further, in effect, courts will not allow such a trust to-
The most recent case where the question under consideration was referred to is McHugh v. McCole, 97 Wis. 166. The only bequest in that case, material at this time, was one to the Eoman Catholic bishop of the diocese of Green Bay to be used for masses for the repose of the soul of the testator and the souls of various members of his family. It is sufficient to harmonize the decision condemning the bequest, with Dodge v. Williams, 46 Wis. 70, to say that it was considered that the intent was to create a private trust, pure and simple, hence that it was invalid for want of certain beneficiaries to hqld the equitable interest, competent to enforce the trust. True, that does not appear very clearly from the opinion, but it was certainly the view of a majority of those who participated in the decision. It must be admitted that the opinion may reasonably be read, as by the supreme court of Illinois in Hoeffer v. Clogan, 171 Ill. 462, as supporting the doctrine that trusts for charitable uses must be tested, as to definiteness, the same as private trusts, all distinctions between the two classes of trusts having been abolished in this state. It was said in the opinion, speaking of all the trusts considered, “ They are void for uncertainty and wholly incapable of being executed by a
Thus we have seen that, with a single exception, the decisions of this court from Dodge v. Williams to the present time, are in harmony, and it must be held that such case states the law of this state as understood from the time it was decided. The single break in the line of decisions, in view of the quick return to such line, should not be taken as a considerate change of judgment as to the law at any time. Dodge v. Williams, and the cases expressly ruled by it, correctly state the law on the points essential to the con-
It follows that indefiniteness of beneficiaries who can invoke judicial authority to enforce the trust, want of a trustee if there be a trust in fact, or indefiniteness in details-of the particular purpose declared, the general limits being reasonably ascertainable, or indefiniteness of mode of carrying out the particular purpose, does not militate against the-validity of a trust for charitable uses. Given a trust, with ' or without a trustee, a particular purpose — as education, or relief of the poor, as distinguished from a bequest to charity generally — and a class great or small, and without regard to location, necessarily, as “ worthy indigent females,” or “indigent young men studying for the ministry,” or “resident poor,” or “indigent children of Book county,” or “the boys and girls of California” (People ex rel. Ellert v. Cogswell, 113 Cal. 129), and we have a good trust for charitable uses. The court, through its strictly judicial power, may fill the office of trustee if necessary, the trustee can select the immediate beneficiaries or objects within, the designated class and scheme; he can determine upon the details necessary to effect the intention of the donor within the general limits of his declared purpose, and execute the trust accordingly; and the proper public agencies, if necessary, can invoke judicial power to enforce such execution. At no step is the court required to exercise eg pres power in the sense of prerogative authority, or at all,, except as the term is found used in regard to those liberal rules of judicial construction applied by courts of equity to charitable trusts, well exemplified in Webster v. Morris, 66 Wis. 366, for determining the intent of a donor in creating a trust for a designated proper charitable purpose. Such power, in the sense last indicated, was exercised in England both before and since the statute of Elizabeth, and has been
A short history of how it came about that the two conflicting theories, discussed in this opinion, came to have some place in our system, will add clearness to the rule adopted as correct. In the formative state of the law in this country after the Revolution, the common law of England, including the principles of equity as there recognized, so far as adapted to our customs, circumstances, and form of government, was accepted as the groundwork of an American system. In that we inherited, in the main, the common-law system of trusts for charitable uses. Two controversies early commenced: (1) as to whether the English system of charities originated with and was depended upon the statute of 43 Eliz. ch. 4; (2) whether such system was adapted to our system of civil government and adopted. The varying conclusions reached as to such controversies resulted in building up different systems in different states, according to their respective judicial determinations in regard to such controversies. In Massachusetts, and some other states, the first controversy named was decided in the negative, and the second in the affirmative as regards the principles of the statute; and the result was an adoption, in such jurisdictions, of the entire common-law system of charities, barring the ey pres feature of the statute of Elizabeth, not exercised by courts of equity before the statute,— that is, the prerogative right of disposal outside of the declared intent of the testator, or where there is a gift to charity generally with no use specified and no
In New York the situation at the start was complicated by the fact that in 1788 a law was passed repealing the statute of Elizabeth. Laws of N. Y. 1788, ch. 46, § 37. It was claimed that when that circumstance occurred it was commonly understood that the English system of charities was dependent on the statute of Elizabeth, hence that its repeal should be held to show a legislative intent to abolish the whole common-law system of charities. The contrary, however, prevailed,.the law being settled substantially as after-wards laid down in the Girard Will Case. McCartee v. Orphan Asylum Soc. 9 Cow. 437. Then came the statutes of 1829, of perpetuities and of uses and trusts. The controversy soon arose, thereafter, as to whether the legislative intent, by the general language of those statutes, was to
Before applying to this case the principles above indicated to be the law, a suggestion should be considered as regards whether the promotion of temperance is a proper subject for a charitable- trust, a question on that point having been raised by respondents’ counsel. A general statement of the essentials of a charity, as regards the character
The rules above given are sufficiently comprehensive to render search for precedents where the promotion of temperance has been considered charitable work, unnecessary, though it may be noted that in Saltonstall v. Sanders, 11 Allen, 446, a gift to a trustee to promote, or in aid of, objects and purposes of temperance, was held to be a good charitable trust.
Great and fatal indefiniteness is suggested in regard to the meaning of the term itself, “ temperance work in the city of Milwaukee,” as used by the donor. To refer to dictionaries for definitions, and display a number of meanings
Further uncertainty in the scheme is suggested in that "the trustees are directed to expend the greater part of the fund for the benefit of the two corporations named, and ■upon the happening of a specified contingency, namely, the determination of either corporation to build a building, to use the funds then remaining to that end. No difficulty is ■ discovered in any of these matters. They are uncertainties -of a character commonly found in charitable trusts. They are easily within the discretionary power of the trustees to ■solve within such limits as the court may define, if neces.sary, by judicial construction. They are matters of detail much more easy of determination than how to preserve a ■trust fund left to establish a school “ for the education of young men in the useful arts ” on the contingency of its being sufficient for that purpose, in case the contingency never happens; or what poor are to be benefited and the nature of it, in the bequest for the relief of the resident poor, found to be free from difficulty in Webster v. Morris, 66 Wis. 366.
There is little left that need be said in drawing a correct conclusion from the foregoing, as to whether the trust in question is valid. As before indicated, the vital question involved is: whether charitable trusts, as distinguished from private trusts, have been abolished in this state, leaving only '.the latter as regards the essentials of certainty and rules of -construction applicable; that is, whether the New York -doctrine, adopted in the opinions in Ruth v. Oberbrunner, 40 Wis. 238, and Heiss v. Murphey, 40 Wis. 276, or the decision
It should be noted in passing, that the rule above discussed, as indicated in the opinion where it was first pronounced, is based on the text in 2 Redf. Wills, 409, subds. 2-4; Id. 505, subd. 16, treating of the subject of certainty required in private trusts. The rule, however, is well adapted to charities, keeping in mind those judicial rules of construction mentioned, applicable to charitable trusts, and the essentials of a private trust, not material to a trust for charitable uses. That is, that certainty of beneficiaries holding the equitable title, who can enforce the trust, sometimes dwelt upon, is inconsistent with a public trust. The court in pronouncing the rule clearly indicated that it should be applied, having in view the considerations mentioned, by adding the ■explanatory sentence, to the idea deduced from the text of
It is not considered that anything new for this state has been decided in this case or that there has been any departure from the law as heretofore established and as the same has existed for a period so long as to become a rule of property that should not be disturbed. If there were any leaning toward a change in equity power, as to charitable trusts, but there is none, it would naturally be toward enlarging rather than restricting it. As said by the learned chief justice in the case here so often referred to, “ Erom time immemorial, the general inclination of courts of equity has been that way. ‘ Charity in thought, speech, and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory.’ ” Dodge v. Will
By the Court.— That part of the judgment appealed from by George Henry Andrews and William Andrews is reversed. On the appeal of the executrix and trustees the judgment is reversed. Costs will be allowed in favor of the executrix and the 'trustees on their appeal against their co-defendants, George Henry and William Andrews, and plaintiffs. Costs will be allowed to George Henry and William Andrews on their appeal against the plaintiffs. The cause is remanded for further proceedings in accordance with this opinion.
Dissenting Opinion
I must respectfully dissent in this case. In doing so I must acknowledge that I am not certain that I fully comprehend just what general propositions have, and just what general propositions have not, been determined in this case. Nor am I certain as to how many of the former decisions of this court have been in part overruled, doubted, questioned, or distinguished, notwithstanding the statement near the close of the opinion filed, to the effect that nothing “ new for this state has been decided in this case,” and that there has been no “ departure from the law heretofore decided.” The general rule undoubtedly is that a decision of any court “ not in harmony with some of its previous decisions has the effect to overrule those with which it is in conflict, whether mentioned and commented on or not.” Asher v. Texas, 128 U. S. 129. But it is also a well-recognized general rule “ that the positive authority .of a decision is coextensive only with the facts on which it is made.” Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. 333. Evans v. Virgin, 72 Wis. 427.
In Dodge v. Williams, 46 Wis. 90, Chief Justice Ryan quoted from Chief Justice Gibson this sentence: “Every sane man must be allowed to make his own contract as welli as his own will.” He then added: “ That great jurist plainly