| Wis. | Jun 21, 1900
Lead Opinion
The following opinion was filed April 6, 1900:
The sole question presented is as to the validity of that provision of the will of Stewart which directs that upon the decease of his wife his entire property is “ to
There can be no doubt but that this clause amounts to a direction to convert the real estate of which he died possessed into money. In no other way can real property be invested in a fund. Hence the doctrine of equitable conversion applies, and,if a bequest of personal property tobe used for the support of the superannuated preachers of a particular sect is valid, then this clause in the will is valid. In disposing of the case the trial judge held the will void on the ground of uncertainty and indefiniteness, relying upon the case of Will of Fuller, 75 Wis. 431. Were the rule of that case to be followed, it is not easy to see how tne conclusion reached by the trial judge could be avoided. In the recent case of Harrington v. Pier, 105 Wis. 485" court="Wis." date_filed="1900-02-02" href="https://app.midpage.ai/document/harrington-v-pier-8186534?utm_source=webapp" opinion_id="8186534">105 Wis. 485, however, the doctrine of the Fuller Case was substantially overruled. In fact in that case nearly or quite all the questions which arise in this case were so fully treated by Justice Maeshall, the result being to sustain such a trust as that before us, that it would seem unnecessary to enlarge upon the subject here.
In that case it was said: “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, do 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 Hock county,’ or ‘the boys and girls of California’ (People ex rel. Ellert v. Cogswell, 113 Cal. 129" court="Cal." date_filed="1896-06-04" href="https://app.midpage.ai/document/people-ex-rel-ellert-v-cogswell-5448148?utm_source=webapp" opinion_id="5448148">113 Cal. 129), and we have a good trust
These considerations really dispose of the present case. There are present in this bequest all the essential requirements above enumerated. The provision is essentially a trust provision. No trustee is appointed, but the proper court has power to appoint one, so that the trust may not fail (Sawtelle v. William, 94 Wis. 412" court="Wis." date_filed="1896-11-24" href="https://app.midpage.ai/document/sawtelle-v-witham-8185345?utm_source=webapp" opinion_id="8185345">94 Wis. 412), and there is a particular and meritorious charitable purpose, namely, the support and maintenance of the worn-out preachers of a certain religious body. This completes the charitable scheme so that it may be carried out. The trustee appointed by the court can select the beneficiaries within the class named, and can wisely •settle the necessary details of administration of the charity within the general limits of the testator’s declared intention •without serious difficulty.
It was not seriously claimed upon the argument that the judgment in the former action brought by the widow for ■construction of the will, in which “ the superannuated preachers ” of the sect in question were named as defendants, was of any effect, nor is it seen how it could have any effect. The “ superannuated preachers ” were not a corporate body, .and hence not capable of being sued under such a general designation. Furthermore, they are necessarily constantly «hanging, and, even if some of the then members of the class actually appeared and defended, the result, manifestly, ■could not bind others.
By the Court.- — ’Judgment reversed, and action remanded with directions to enter judgment for the plaintiff.
Dissenting Opinion
I dissented in Harrington v. Pier, 105 Wis. 485. The court holds that the decision of this case is-ruled by the opinion of the court in that case. The two-cases are fairly distinguishable in their facts. I may, therefore, be permitted to respectfully dissent in this case. In doing so, I shall add but very little to what is contained in my dissenting opinion in that case. I fully concur in the findings of Judge OlemeNtsoN in the action to construe the will in this case, and which findings are in the record, and also with the findings and opinion of the late Judge BeN-Nett, in this case, to the effect-that the provision of the will in question is too indefinite and uncertain to enable the court to ascertain and carry out the supposed intentions of the testator; “ that the beneficiaries are not ascertained, or in-law capable of being ascertained, and that the trust attempted to be created by said will is void.” If the eg fres doctrine under 43 Eliz. ch. 4 (2 Stats. at Large, 108), mentioned in the dissenting opinion in the other case, was in force in this state, it might be an important question whether the bequest in this case “ for the support and maintenance-of the superannuated preachers of the church denominated the United Brethren in Christ” came within'any of the numerous objects therein mentioned. If any, it would seem to be the first, which is, “ for relief of the aged, impotent, and poor people.” “ Superannuated preachers ” are, manifestly, such preachers as are impaired or disabled through old age, for such is the definition of the word. Cent. Diet. If such “relief” was only intended for those who-are “ poor,” then it would not come within the provisions of that statute, since, in the language of Sir William GeaNt,. “ the question is, not whether he [the trustee] may not affly it upon purposes strictly charitable, but whether he is bound so to affly it.” Morice v. Bishop of Durham, 9 Ves. 406. While it may be true that most preachers who are impaired or disabled through old age are poor, yet they are not necessarily
A motion for a rehearing was denied June 21, 1900.