144 Wis. 238 | Wis. | 1910
Lead Opinion
Tbe questions presented on tbis appeal are numerous and important and some of them are fraught with difficulties. Tbe briefs filed with us contain over 550 pages of printed matter. Two days were consumed on tbe argument, and on a reargument of tbe case which was ordered, and if tbe court is not sufficiently informed to reach a correct conclusion it is not the fault of tbe counsel in tbe case, who from their respective standpoints have displayed commendable diligence and learning in presenting to tbe court tbe facts and the
(1) The will created a charitable trust and must he construed with reference to the duties, obligations, and liabilities surrounding such trust and imposed on the trustees thereof, and the city could not act as trustee of the trust attempted to be created.
(2) The will did not contemplate the erection of such, a school building and the maintenance of such a school as the city of Oshkosh was authorized by law to build or maintain, and therefore the taxpayers could not be compelled to contribute any part of the fund provided for by the will.
(3) The city of Oshkosh had no power to enter into an agreement to permanently maintain the school or to perpetually carry out the terms of the trust.
(4) It is beyond the power of the city of Oshkosh to raise money by taxation for the purpose of creating a fund, out of the earnings of which the school will in the future be supported in part at least.
(5) The will required the exaction of a tuition fee from pupils attending the school, and the city has no legal authority to raise money by taxation to support such a school.
(6) The trust created is void on the ground of public policy.
(7) The bonds involved in this suit are illegal for the following additional reasons: (a) Because no plans for the school building had been prepared and submitted to the board of education and approved by that board, as required by the city charter, before the bonds were voted; (b) because the city charter requires the city treasurer to keep all moneys raised for school purposes in a separate fund and to disburse the same on the order of the board of education, while it was not intended that the money received from the sale of these bonds should be so kept or so disbursed; (e) because no legal tax levy was made
1. The first question to be determined is the nature of the bequest. The plaintiff contends that it was the intention of the testatrix to create a charitable trust. The defendant maintains that it was the intention of Mrs. Beach to place the absolute title of her property in the city, when certain conditions were complied with, unfettered by any trust, and that in the event of a diversion of the fund any person in interest might proceed to secure appropriate redress in the courts as for a condition broken. In support of this view the case of Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258, is cited, as well as other cases. If this view be correct, it eliminates some difficulties that arise in ease it be held that a charitable trust is created.
The will before us follows quite closely the provisions of the will of Mrs. Harris, involved in the Danforth Case, in so far as the creation of a trust is concerned. The only material difference between the provisions of the two wills in this regard is found in the clause of the will of Mrs. Harris which provides that, in case of a diversion of the property or fund donated to any purpose other than that contemplated by the will, there should be a reversion to the heirs of the testatrix and those of her deceased husband. The court reached the conclusion that no trust was created and that the title passed charged only with a condition subsequent. In the will of Mrs. Beach there is no express provision for a reverter in the event of a diversion of the fund, and none can be implied under the law of this state. Strong v. Doty, 32 Wis. 381; Thorndike v. Milwaukee A. Co. 143 Wis. 1, 12, 126 N. W. 881.
That a city may become the trustee of a charitable trust,, where the donation is made to aid some public purpose charitable in its nature which it is the legal duty of the city to support and provide for, does not admit of doubt. When the-trust is accepted the city assumes the same obligations and becomes amenable to the same regulations that apply to other trustees of such trusts, and among them is the obligation to perpetually administer the charitable fund in accordance with the expressed wish of the testator. Thorndike v. Milwaukee A. Co. 143 Wis. 1, 126 N. W. 881; Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986; Philadelphia v. Girard's Heirs, 45 Pa. St. 1, 25; Vidal v. Girard's Ex’rs, 2 How. 127, 180, 190; McDonogh's Ex'rs v. Murdock, 15 How. 367; Webb v. Neal, 5 Allen, 575; McIntire Poor School v. Zanesville C. & Mfg. Co. 9 Ohio, 203; First Parish v. Cole, 3 Pick. 232; Comm'rs v. McPherson, 1 Speers (S. C.) 218; Governor v. Gridley, Walk. (Miss.) 328; Carmichael v. Trustees, 3 How. (Miss.) 84; Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434; Quincy v. Att’y Gen. 160 Mass. 431, 35 N. E. 1066; Chambers v. St. Louis, 29 Mo. 543; Delaney v. Salina, 34 Kan. 532; Maynard v. Woodard, 36 Mich. 423; 2 Dillon, Mun. Corp. (4th ed.) § 567; Higginson v. Turner, 171 Mass. 586, 51 N. E. 172. In so far as the will before us enjoins on the-city the duty of perpetual maintenance, it imposes no obliga-
2. Having reached the conclusion that a charitable trust was intended to be created, we now come to a consideration of the specific clauses of the will which it is asserted render it impossible to carry out the scheme of the testatrix. In the first place it is urged that the will contemplates the founding of such a school or institution of learning as the city of Oshkosh has no power to maintain, and therefore it cannot raise money by taxation to aid in the enterprise. In this connection it may as well be said now as later that it is the opinion of the court that unless the- city has the right to maintain such a school as is provided for, as part of its general system of education, it has no right to vote the bonds involved in this suit.
Sec. 496b, Stats. (1898), provides that “any board having charge of a free high school or of a high school having a course of study equivalent to the course or courses prescribed by the state superintendent for such schools may establish and maintain a department of manual training in connection with the school under its management.” This statute was amended by ch. 503, Laws of 1907, so as to permit manual training to be taught to the pupils in “the three upper grades next below the high school.”
The charter of the city of Oshkosh (Laws of 1891, ch. 59, subch. XI, sec. 4) is broader in its terms than is the general law. It authorizes the board of education “to establish and organize such high schools and so many district schools and branches of the same, primary schools, night schools, schools of manual training and kindergartens as they may deem expedient.” This provision was enacted in 1891.
Under this provision it is clear that the city has the power
It is apparent that the term “manual training” may have a broad significance or it may be correctly applied to instruction in a very few simple things. [Neither the general statute nor the charter of the defendant undertakes to say how little •or how much may or must be taught on the subject. This is wisely left to the discretion of the school authorities, and, this being so, we would expect to find a wide variance in the kind •of instruction given and the extent to which it is carried on in the various schools in the state in which the subject is taught. Indeed, it may be wise administration to direct the activities •of boys along different lines in a school located in a factory •district, from those which might be pursued in a school surrounded by different environments. The matter of teaching manual training in the public schools of this country is comparatively new and seems to embrace some of the ideas of the trade school which has accomplished much in some European ■countries. The idea is presently in a state of evolution with large possibilities before it. It has been carried on in some portions of the country for forty years and in some of the schools of this state for about twenty-five years, and the number of schools giving instruction in it is gradually increasing. So the innovation cannot be called a fad and therefore liable to be discontinued. Manual training has been taught
It now behooves us to ascertain whether the school provided' for by Mrs. Beach is such a school as the city of Oshkosh has. the right to maintain at public expense. There is some broad general language used in reference to the character of the-school which she had in mind. She says it was the purpose of her husband to found an institution wherein sound business principles might be taught and where pupils might be fitted for manufacturing and business careers. To carry out the wishes of her husband she makes the donation for the purpose of preparing, constructing, and maintaining a manual training school. She says that the object of such school shall, be to teach cooking, sewing, and domestic economy to girls, and “all things of mechanical and other technical work to young men, and to teach to both girls and boys such things as-are usually taught in modem manual training schools, and to teach such things as the progress of time develops ought to he taught in a manual training school ” If the words “all things of mechanical or other technical work” be segregated from the rest of the sentence in which they are used, they might be interpreted as indicating an intent on the part of the testatrix to found a school at which civil, mechanical, electrical, ' and mining engineering would be taught, as well as other technical subjects in which instruction is given only in our higher institutions of learning, and which cannot be successfully taught without a large outlay for equipment, and cannot be profitably taught to students of immature years or-to those not having the equivalent of a high school education. We do not think that this is the kind of a school the testatrix had in mind. She wanted a school which all should be permitted to attend and to derive benefit from and where the many could be fitted for “manufacturing and business careers,”
3. It is urged that the donation made by the testatrix, together with the $50,000 which the city proposes to raise, must be mingled as a common fund out of which a site is to be pur
There is much force in this contention, and' the city evidently appreciated this fact and has attempted to avoid the effect of it by raising the $50,000 for the express purpose of •building and equipping the school. Independent of any donation, manifestly the city had a right to vote bonds for this purpose. The question is, Has the city by so doing complied with the requirements of the will? The city cannot divert funds raised for a lawful purpose to one which it has no right to raise money for by taxation. The proceeds of the bonds must be used for the purpose for which they were voted. If such use of the money does not satisfy the conditions of the will, then the bequest cannot be sustained, if we assume that a taxpayer has the right to raise the objection. An important question, therefore, is whether the city has in fact complied with -the requirements of the will.
In this connection it is proper to observe that the testatrix-intended that the school should be erected as a memorial to her husband; that she stipulated that a substantial, modern, up-to-date building be constructed, preferably of Lake Superior brown stone; that she desired that such school should be equipped with modern, up-to-date appliances so that manual training could be taught to the best advantage; that she placed no restriction upon the city in reference to the amount of money that might be invested in the school building and in its equipment; that the city has under the terms of the will the absolute right to invest $50,000 in the building and equipment; that we must presume that the city in good faith intends to do so; and, finally, that the testatrix was presumed to know the law and to know what were the legal rights of the city. The city by using the money raised by it for the
It is suggested rather than argued that the city had no right to contribute to such a fund in any case. But it is settled in Danforth v. Oshkosh, 119 Wis. 262, 97 U. W. 258, that, where a donation is tendered to a municipality in aid of' some municipal purpose for which" it is authorized to expend money on condition that the municipality itself make a contribution in aid of the purpose of the donor, it may do so, provided the lawful right existed to make the expenditure had no-donation been made. The cases cited elsewhere in the opinion amply support this view.
4. It is further urged that, a trust in perpetuity being created by the will, the property devoted to the charitable use must always be applied to such use, and that it is beyond the power of the city of Oshlcosli to raise money to build a manual training school which must be forever maintained as such. This-contention raises one of the most difficult questions in the case. The general rule of law is that money or property devoted to-a charitable use, where a trust is created, must, if the gift is accepted, be irrevocably devoted to such use, and that in case of attempted diversion a court of equity will intervene, and if' necessary name a new trustee to carry out the objects and purposes of the trust. In other words, the term “perpetuity” as applied to charitable trusts has retained its original significance, in that it means an inalienable and indestructible interest. Generally speaking, any limitation that suspends the-power of alienation beyond the period allowed by law creates a perpetuity, but we are not dealing with a perpetuity of this kind.
The conclusion reached is not without support in the adjudicated cases, as will be seen by a reference to the following: Piper v. Moulton, 72 Me. 155; Drury v. Natick, 10 Allen, 169; Budd v. Budd, 59 Fed. 735; School Trustees v. Hoboken, 70 N. J. Eq. 630, 62 Atl. 1; Kelley v. Kennard, 60 N. H. 1; East Tenn. Univ. v. Knoxville, 65 Tenn. 166.
5. The will provides that “a tuition fee shall be charged, which in the judgment of the city of Oshkosh, or trustees appointed, by said city of Oshkosh, shall be sufficient, together
It must be conceded that the testatrix intended to donate her property to a school that would at least be open to all children of school age. That the ward schools of the city of Oshkosh are “district” schools within the meaning of sec. 3, art. X, of the constitution, does not admit of doubt. Further than this it is unnecessary to go. That the testatrix intended that pupils in the ward schools of the city should have the benefit' of the manual training school seems equally clear. The provision of the constitution above referred to requires the legislature to provide for the establishment of district schools, and that “such schools shall be free and without charge for tuition to all children between the ages of four and twenty years.” This requirement should not be restricted by construction. Whatever may lawfully be taught in such a school is part of the curriculum therein, and the fact that the teaching of manual training is not made compulsory by law does not alter the fact that when it is taught it becomes part of the curriculum. The pupil in a district school is just as much entitled to have manual training taught him without the exaction of a charge, if it be taught at all, as he is to have mathematics taught without being obliged to pay therefor. Besides, the city of Oshkosh is not authorized by any law to charge tuition in any kind of a school which it is empowered to maintain, and we do not wish to be understood as intimating that it could be so authorized. Unless this will can reasonably be interpreted as meaning that a tuition charge need not be exacted of all pupils, or unless this provision of the will may be rejected, it cannot be sustained. So we proceed to ascertain what the testatrix intended, as well as we may.
The struggle in such a case, as Mr. Justice Stoby observes, “is to accomplish the real objects of the testator, so far as they can be accomplished, consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will.” Nightingale v. Sheldon, supra.
The intention of the testator, as expressed in his will, governs ; and this intention must be discerned through the words of the will itself as applied to the subject matter and the surrounding circumstances. In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786; Schouler, Wills (2d ed.) § 466, p. 500; 1 Eedf. Wills, 433; 2 Jarman, Wills, 838; Parsons v. Winslow, 6 Mass. 169, 175; Chrystie v. Phyfe, 19 N. Y. 344; Williamson v. Williamson, 57 N. C. 281.
Every will should as far as possible be interpreted from the 'standpoint of the testator, and attendant circumstances, such as the condition of his family and the amount and character of his property, may and ought to be taken into consideration as part of the res gestee when the language is not plain nor the meaning obvious. Schouler, Wills, supra; Smith v. Bell, 6 Pet. 68; Blake v. Hawkins, 98 U. S. 315; Brown v. Thorndike, 15 Pick. 388; Postlethwaite’s Appeal, 68 Pa. St. 477; Perry v. Hunter, 2 R. I. 80, 81; Brown v. Bartlett, 58 N. H. 511; In re Donges’s Estate, supra.
Where the language used in a will is reasonably susceptible •of two different constructions, one of which will defeat and the other sustain the provisions, the doubt is to be resolved in favor of the construction which v(ill give effect to the will, rather than the one which will defeat it. In re Donges’s Estate, 103 Wis. 497, 501, 79 N. W. 786.
“Courts here, as anciently, look with favor upon all donations to charitable uses, and give effect to them where it is possible to do so consistent with rules of law, and to that end the most liberal rules the nature of the case will admit of, within the limits of ordinary chancery jurisdiction, will be resorted to if necessary.” Harrington v. Pier, 105 Wis. 485, 503, 504, 82 N. W. 345.
There are two classes of pupils who may attend this manual training school from whom a tuition fee can legally be exacted, to wit, nonresidents and those over school age, and it remains to be seen whether the will can reasonably be so construed as to warrant the conclusion that the testatrix intended that only the pupils falling within such classes should be charged.
Construing the tuition clause in the light of the circumstances which surrounded the testatrix when she made her will, we have about this situation: We should presume that the testatrix knew the law; we must presume that she intended to make a valid will. The testatrix had no children of her own and her husband was dead. The husband himself had in contemplation the founding of this training school, but he died before he carried out his purpose. The testatrix provided for the establishment of this school to comply with the wishes of her deceased husband as well as her own. The rela
We have a class of pupils to whom tuition may be lawfully charged; very strong circumstances indicating an intent on the part of the testatrix to make a valid will; and the legal presumption that the testatrix knew the law. The question is, Can the court under these circumstances say that the testatrix intended that tuition fees should be charged only to those pupils attending the manual training school from whom tuition could lawfully be exacted, and can the will be reasonably construed as expressing such intent, read in the light of the circumstances which surrounded the testatrix when the will was made? If a construction can be adopted which will render the will valid, without doing violence to its language, it is, under the rules of construction referred to, to be preferred to the one which will render it void.
The case presenting the closest analogy on this point to the one under consideration is Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120. By a statute of that state the board of education of the town of Lumpkin was required to exact “of each child” an incidental fee of not less than five nor more than ten dollars. The constitution of the state prohibited the exaction of ■any tuition fee or charge to resident pupils, but such a charge might be imposed on nonresidents. The court held that the constitutionality of the act could be sustained on the ground that the provision in regard to the incidental fee was intended to apply only to nonresident pupils. So we think here that the validity of this will can be sustained without doing violence to its language, by holding that what the testatrix intended was that a tuition charge might be exacted only from such!
6. It is argued here and may be conceded that the donation of Mrs. Beach was the impelling cause which produced action on the part of the common council of the city of Oshkosh, and that, were it not for the gift, no money would have been presently raised by the city to build a manual training school. And it is argued that the effect of the gift was to hold out a substantial money inducement to influence official action and to thus bring about results which would not have followed' had no conditional gift been made. Corporate action is said to be void under such circumstances, and the following cases in our own court, as well as some others, are cited in support of this view: Shelby v. Miller, 114 Wis. 660, 91 N. W. 86; State ex rel. Wildman v. Kidd, 63 Wis. 337, 23 N. W. 703; McMillan v. Fond du Lac, 139 Wis. 367, 120 N. W. 240; State ex rel. Newell v. Purdy, 36 Wis. 213; State ex rel. Dith
The situation here is very different. The testatrix herself could reap no material benefit from her offer. She left no children who could enjoy the fruits of it. It does not appear that she left any relatives in Oshhosh who could do so. She
7. (a) It is further urged tbat tbe bond issue is void because tbe .city charter of tbe city of Oshkosh (sec. 6, subch. XI, cb. 59, Laws of 1891) provides tbat no school building shall be constructed until tbe plans for tbe same shall have been adopted and approved by tbe board of education, and tbat no action whatever was taken by sucb board in reference to the manual training school for wbicb tbe bonds were voted. Tbe contention is tbat tbe requisite foundation for taking any steps to build any school building are wanting because of nonaction by tbe school board.
Either of two methods might be pursued by the city. It might first prepare plans and. secure estimates of tbe cost of such a building as it deemed desirable to build, and then proceed to provide for the necessary funds to carry out tbe proposed project as best it could, or it might first make provision for tbe amount of money which it was considered desirable to expend, and fit its plans' to its purse. Perhaps the first method of procedure would be the more logical, but it is not exclusive, and we are not cited to any provision in! tbe charter which makes the adoption of plans a condition precedent to the right to vote bonds to raise money to erect a school building.
(b) Again, it is urged that sec. 7 of subch. XI of the charter requires the city treasurer to keep all moneys raised for school purposes as a separate fund, and disburse the same only on the orders of the board of education, and that the money here raised was tendered to the trustees named in the will to create a common fund, part of which might be used for building a school and part for the purposes of investment, the income of which only would be available to the city.
We have already said that the money derived from the sale of the bonds must be applied for the purpose for which it was voted, to wit, to build a school building, and that this is a substantial compliance with the terms of the will. It does appear from the record that the city went through the .form of making a tender to the trustees of the $50,000 derived from
(c) It is further contended that the bond issue is void because it is not in compliance with the constitution and laws of the state. The particular provisions relied on are sec. 926— 11, Stats. 1898 (as amended by ch. 228 and ch. 428, Laws of 1903), subd. 2 of sec. 658, Stats. (1898), and see. 3 of ■art. XI of the constitution.
Sec. 926 — 11 provides that no bonds shall be issued unless the council shall provide for a direct annual tax sufficient to pay the interest thereon as it falls due and the principal within twenty years. The statute further provides that all such bonds ■shall bear an appropriate name indicating the purpose of their issue and reciting the fact that the city has provided for the ■collection of an annual tax to pay the interest as it falls due and the principal within twenty years. The other statute relied on and the constitutional provision quoted add nothing to
The ordinance providing for the bond issue recited that “such bonds shall be due and payable in twenty years after-their date and shall bear interest not to exceed four per cent, per annum, interest payable annually,” and made a tax levy to. pay the principal and interest of the bonds. The particular-objection raised is that a levy of a tax to pay interest on $50,000 of bonds at a rate “not to exceed four per cent.” is-not sufficiently definite and certain to answer the provisions of' the law referred to. The bonds issued bear interest at four per cent., so that the amount that must be raised is within the limitation fixed by the ordinance, and has become definite and certain. We think it would be extremely technical not to-hold that the ordinance makes a good tax levy so long as the maximum rate of interest fixed therein was not exceeded. The statute does not require that the ordinance designate in dollars and cents the amount of money that should be levied’ annually to pay interest. Such a levy is unlike the ordinary one, in that it provides for something that' must be done from time to time in the future, and so long as the amount is subject to definite ascertainment when the tax is to be carried out in the tax roll, and the amount does not exceed that provided for by the ordinance, we do not perceive any valid objection to it.
(d) It is further urged that the bonds are void because they do not bear “an appropriate name indicating the purpose of their issue,” as required by sec. 926 — 11. The bonds are headed “Manual Training School Bond of the City of Oshkosh, Wisconsin,” and in the body of them it is recited that they are issued “for the purpose of erecting, constructing, and maintaining a manual training school building in and for the city of Oshkosh, to be known as the Orville Beach Memorial Manual Training School of the City of Oshkosh ” It appears
(e) The bond ordinance recited that the bonds were issued “for the purpose of erecting, constructing, and equipping a manual training school building.” The city, in voting the bonds, acted under the authority conferred by subd. 3 of see. 926 — 11, Stats. (1898), as amended, and it is urged that the city council had no power under this section to vote bonds where any part of the proceeds thereof was to be used for “equipping” a school. The case of Neacy v. Milwaukee, 142 Wis. 590, 126 N. W. 8, is said to be conclusive upon the proposition, if followed. In the Neacy Case the statute involved conferred the right on the city to issue bonds for the construction or purchase of a municipal lighting plant. The bonds were voted to “erect and maintain such a plant.” Maintenance, of course, includes the cost of ordinary repairs and upkeep, and the bond issue was held unauthorized because no statutory authority existed for raising money through the issue of bonds to defray the ordinary upkeep expenses of such a plant.
The statute under which the bonds we are considering were voted authorized the city to vote bonds “for the erection, construction, and completion” of school buildings. The question is, Are bonds voted to build and equip a manual training school voted to build and complete such a school ? Is a school building complete within the meaning of the statute before it
We have endeavored to cover all the points raised that we deem material, and we might say that no new ones have occurred to us. We do not wish to be understood as holding that all of the questions here discussed could properly be raised in a taxpayer’s action. It is stated in one of the briefs that there is a proceeding pending brought by one of the heirs, wherein, we assume, all matters can be and are raised that a taxpayer might not appropriately reach; and in view of the importance of the case, the desirability of an early settlement of the controversy, and the express wish of the respondent
By the Court. — The judgment and order appealed from are affirmed.
The following opinion was filed January 30, 1911:
Concurrence Opinion
(concurring). I cannot well forego writing briefly concurring with the decision in this case. Added te In re Kavanaugh's Will, 143 Wis. 90, 126 N. W. 672, it. marts such an epoch in our judicial history, I wish to emphasize the event to the end that nothing may be left undone which I can do to so firmly entrench the beneficent principles of the law of charities in our system that all danger of their being hereafter obscured in judicial confusion or misconception, will be effectually guarded against. “ ’Tis strange, ’tis passing strange,” that any such guard should be thought of respecting a source of unwritten law. It would not occur as-á matter within reasonable probabilities were it not for the long regrettable history of the subject, particularly in New York,, commencing with the enunciation of correct principles in Williams v. Williams, 8 N. Y. 525, extending therefrom through the long judicial conflict which followed, and ending, with practical elimination from the law of that state of the choicest features thereof, evolved by the wisdom of the ages and grounded in the principles of Christianity; that feature which enables the possessor of wealth to freely devote the same in perpetuity to the betterment of human conditions.
The elimination here suggested was so effectual by the close of the half century of conflict intervening between Williams v. Williams, supra, and Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568, that in the latter, speaking of the wrecks which had been wrought and the irremediable loss to humanity which had occurred by its so construing the statute as to defeat the benevolent purposes of those who had desired to perpetuate
“No attempt to create an original charity has survived the test of an application by the court of the rules of law to the language employed by the testator.”
That conception of the wrong which had been judicially done moved the court with shadowy aid of new written law, which under ordinary circumstances would not have been appreciable, to grasp thereat as the drowning man seizes the merest appearance of assistance, and, as we ventured to say in Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258, “by an exhibition of heroics which has no parallel in the books,” turn backward to the starting point so unfortunately departed from, efface the half century of lamentable wandering, and rein-trench the principles of Williams v. Williams, supra.
Our own history challenges attention not much less efficiently to danger of impairment of the law of charities as handed down by the fathers; upon the false theory, as in New York, that the statutes were, in the beginning, framed in hostility thereto. Our lawgivers, at the start, were, in the main, well schooled in the written law of New York from which ours was largely modeled. They must be presumed to have been imbued with the judicial view then entertained in the parent state, significantly voiced by the learned chancellor in Shotwell v. Mott, 2 Sandf. Ch. 46, most emphatically repudiating the suggestion that the statute makers entertained even a suspicion that their work, either in letter or spirit, would be thought to have been done with the idea of displacing or affecting in any way the common law as to charities. Note the conception of the subject by the eminent chancellor:
“We inherited from our mother country the law of charitable uses, with the blessed spirit that gave rise to it. . . . Did the revised statutes intend to cut off gifts and devises to charitable uses for all time to come ? Eor if the article ‘Of Uses*274 and Trusts’ applies to charitable uses, that must have been the intention in respect of all save devises to corporations directly for tbeir own use. The proposition is startling, and of vast importance. And I presume every one on first hearing it, will declare that it is impossible; that no legislature in the nineteenth century could have intended such a result.”
However, we must confess that some suggestions in the decisions of this court prior to Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, without decidedly committing the court thereto, were in line with the departure in New York from Williams v. Williams, supra. The revisers of the statutes by suggestion to the legislature, manifestly, endeavored to stem that trend of judicial thought and the legislature promptly acted upon such suggestion, as indicated in my opinion in Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258. The judicial leaning was not so firmly entrenched in our system but that in the learned opinion of Chief Justice RyaN in Dodge v. Williams, rendered soon after the revision of the statutes, it was brushed aside and the principles of Williams v. Williams clearly written into our judicial code.
The unfortunate allusions to the dominating spirit of the opinion in Dodge v. Williams and to its letter as well, coming little short of engrafting the lamentable departure in New York upon our system, are sufficiently referred to in detail in Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, and need not be repeated here. Effectually, it was thought, though not without some difficulty for want of unanimity, all seeming or real ■ departure from Dodge v. Williams was cured in the decision in the Harrington Oase, the earlier case being given its true dignity as condemning, at least as regards personalty, the idea that the common-law doctrine of charities had been, in any way or to any extent, displaced in this state; That was reinforced by Hood v. Dorer, 107 Wis. 149, 82 N. W. 546, and Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650.
Unfortunately, because of seeming interference as to real estate in Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986, when
So it will he seen the specter of the New York heresy, I can call it nothing else, which was buried out of sight in that state in Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568, and had menaced the situation here for some twenty-five years, at last, effectually, it was feared by the writer, took a place at cur judicial table, leading to the writing of my appeal, found in the report of the Danforth Case, to the blessed spirit that gave rise to the law of charities and to the logic of the history of the subject in New York and that in our own state as well, grounding hope upon the immutability of truth and the assurance of “the inspired apostle” that “charity never faileth,” to move the court some time to return to the lines of Dodge v. Williams and Harrington v. Pier; such lines as applying to realty as clearly in spirit as they do in letter to personalty; and that the lawmaking power might lend its aid to accomplish that end by expressly removing any supposed or real impediment to the consummation of that result. That the heart of the people was not misconceived in making the appeal for legislative aid bears evidence in the fact that, at the first opportunity, ch. 511, Laws of 1905, was spread on the statute books, removing any such impediment in the most explicit terms. Thus was obviated any necessity to again resort to anything in the nature of a judicial invention, as in the Dan-forth Case, in my judgment, to save, though fraught with infirmities, a designed charity, by treating it as a conveyance without trust features and upon condition subsequent; leaving it with the well known infirmities of a benevolence dependent upon the law of private trusts for its survival and administration. Such a speedy removal of the danger discussed in the
This case marks then, as said in the beginning, an epoch, one of monumental character, in our jurisprudence because of the now more unmistakable restoration and firm entrenchment in our system than heretofore by In re Kavanaugh’s Will, supra, of one of the most valuable of our inheritances from the mother country, “placing our state,” without room for reasonable future controversy, “in the front rank of communities as regards favoring devises of privately accumulated wealth to charitable objects.” The question submitted in the Danforth Oase, “Shall we have incorporated into our system the thought so beautifully expressed, 'Charity in thought, speech, and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory and the inspired apostle exhausts his powerful eloquence in setting forth its beauty and the nothingness of all things without it’ ?” has been answered affirmatively in much if not the same circumstances as those which gave rise to the submission.
This decision could not well have been otherwise than it is, regardless of Danforth v. Oshkosh, in view of the fact that the people, aroused by the discussion there, soon spoke with unmistakable meaning on the subject. I am content to have it as it is; have it upon the theory that there is efficient room, under the circumstances, for distinguishing between the two cases on the question of whether there is a trust feature characterizing the one and none characterizing the other. Doubtless, since the creation involved in the former case was wholly,
So, from one viewpoint the opinion in this case overrules Danforth v. Oshkosh, so far as the court there limited the bequest to the lines of a conveyance upon condition, instead of giving it the effect intended, as I think. Whether I be right in that or not, the broader effect by construction, if need be, should, nevertheless, be given because of the change in the written law. The different result now from that before, doubtless has some support in the fact that the language of the will here, somewhat more emphatically than that in the instrument involved in the Danforth Case, gives character to the bequest, expressly, of a charitable trust, as said, in effect, in the able opinion written for the court by my brother BaeNes. The points of difference as to the particular vital feature and the dilemma in which the court found itself in the former case, after holding that the statute, respecting realty at least, had displaced the common law as to charities, are sufficiently portrayed in the court’s opinion now in harmony with my independent opinion in the former case. They show ample reason, in my judgment, for not following the latter as a precedent, or if it be one on its face for not following it at all, especially because of the legislative declaration.
It were better, perhaps under all the circumstances, that the bequest was sustained as it was in the Danforth Case than
