40 Wis. 276 | Wis. | 1876
In the case of Ruth et al. v. Oberbrunner et al., decided at the present term, but in the decision of which 'the chief jrrstice, having been of counsel, took no part, it was held that ch. 84, R. S., abolished all rrses and trusts, including charitable uses and trusts, except such as were authorized by its provisions and constituted in the manner prescribed. This view would inevitably overthrow the devise and bequest in the will. But' our decision in this case will not be placed upon the ground that the will is void under the statute of uses and trusts; for we think, without reference to that question, that it is impossible to sustain the devise under the gen
But to meet and answer these serious objections taken to the will, the counsel for the plaintiff cites and relies upon a line of adjudications which hold that, though the individual beneficiaries of a charity are left uncertain, yet when they are included in a definite class, the trust will be sustained and enforced by a court of equity. And he says, in order that there may be a good trust for a charitable use, there must always be some public benefit open to an indefinite and vague number; in other words, that the persons to be benefited must be vague, uncertain and indefinite until they are selected or appointed to be the particular beneficiaries of the trust for the time being. But the doctrine of these cases will not aid the will, because the class here is not certain and well defined, nor is there any way provided for selecting the beneficiaries from a class. "We have seen‘that the ’word “orphan” includes a minor who has lost both of his or her parents, or one who has lost only one. What meaning is to be given to it as used in the will, it is impossible to determine. So that, admitting the full authority of those cases which decide that when the individual beneficiaries under a will are left uncertain, but are included, in a definite class, the bequest or devise for their benefit will be sustained, still the difficulty here presented remains. How are the particular orphans entitled to have the benefit of the devise to be ascertained and identified? Un
There are doubtless cases in which a devise or bequest to charity as vague and uncertain as the one we are considering has been sustained. But these cases mainly rest upon the doctrine of cy pres, which is a doctrine of prerogative or sovereign function, and not strictly a judicial' power. 4 Kent, 508; 2 Story’s Eq. Jur., § 1169 et seq.; Fontain v. Ravenel, 17 How., 369; White v. Fish, 22 Conn., 31; Jackson v. Phillips, 14 Allen, 540-576; Williams v. Williams, 8 N. Y., 525-528; Owens v. The Missionary Society, 14 id., 380-403; Beekman v. Bonsor, 23 id., 310; Levy v. Levy, id., 97; Bascom v. Albertson, 34 id., 584. It is not claimed that the courts of this state are clothed with other than strictly judicial power, or that they have succeeded to the jurisdiction over charities which the chancellor in England exercises by virtue of the royal prerogative and the cy pres power. It is admitted that the intention of the testator is to control in administering charitable trusts. But if that intention has been so vaguely and imperfectly expressed that the cestwi que trust cannot be ascertained, the charity must fail. In this case it is impossible to determine from the language of the will who are the objects of the testator’s bounty. There are no ascertainable beneficiaries, either as a class or individuals, and therefore the trust cannot be effectually carried out. It is uncertain whether the word “ orphan ” applies to those children who have lost both parents, or whether it does not include as well those who have only lost one. It is impossible to determine whether the testator intended to restrict his- bounty to such of either or both classes as were residents of the diocese at the time of his death, or whether he intended the fund should be used as well for the benefit of any that might thereafter come to the diocese, or become orphans by the death of one or both resident parents. No power is given the trustee to select the individuals from any certain or defined class, so as to render “ uncertainty cer
The will being void, it follows that the heirs-at-law take the property.
The counsel for the plaintiff contended that the trust created by the will was valid as a power, and that the lands descended to the heirs or devisees, subject to the execution of this power, under sections 12, 14 and the subsequent sections of ch. 84. This might remove the difficulty in respect to the title, but does not overcome the objections that the trust is too indefinite to be capable of execution. In the case of Dominick v. Sayre, 3 Sandf. S. C., 555, to which we were-referred on this point, the court adopts the maxim “ that a power of disposition limited to a class in all cases implies and creates a trust, when the property which is given is certain, and the objects (that is, the persons) to whom it is given are also certain;” in other words,-deciding that “where this certainty exists the trust arises.” It is obvious that the principles of this decision can have no application to the case before us.
It results from these views that the judgment of the circuit court placing a construction upon the will, and giving directions to the executor as to the execution of the trust, is erroneous.
By the Gowrt. — The judgment is reversed, and the cause remanded with directions to enter judgment in accordance with this opinion.