227 Wis. 311 | Wis. | 1938
Lead Opinion
The following opinion was filed February 15, 1938:
As appears from the preceding statement of facts, James IT. Mead, deceased, made provision in his will
The provisions of the will above given make clear that the testator intended that the fund provided should be devoted to the support of a public library for the use and benefit of the people of Sheboygan. The fund was to be so devoted whether or not the city erected a building. By paragraph (1), if the city erected a building to house or in which to house the library, the fund was to be by the executors turned over to trustees to be expended by them for the purposes of the library; by paragraph (2), if the city did not erect a building within such time as the executors should fix which should not be less (but might be more) than one year from the time of notice by the executors, then if the city should
The appellants first urge in support of their contention that the city renounced the bequest, the execution of the agreement between Mrs. Osborn and the city. This agreement purported to renounce the bequest in consideration of a payment of ,$15,000 by Mrs. Osborn to the city. The trial
“Parties interested in a testate estate are not competent to substitute their will for that of the testator so as to- have the former carried out as if it were the scheme of the latter, and the court is powerless to give validity to any such scheme.”
This was adhered to in Will of Zweifel, 194 Wis. 428, 216 N. W. 840; Graef v. Kanouse, 205 Wis. 597, 238 N. W. 377; Taylor v. Hoyt, 207 Wis. 520, 242 N. W. 141. This agreement was not a renouncement of the gift. It was rather, a recognition of it and an assertion of claim to the fund under the will. It was in the guise of - a compromise or settlement of the- respective claims of the parties to the fund, but was in effect an attempt by the parties to divert a part of the fund from the purposes of the trust, and to make a distribution of it contrary to the wishes and direction of the testator, and this the parties were not competent to do. The will having been admitted to probate, the county court cannot by its order disposing of the fund dispose of it in any way contrary to the terms of the will as the terms are construed by the court. There was a petition for construction of the will pending. The court was bound to distribute the fund according to- the will as the court construed it. The court could not split the fund and give it in part to one party and in part to the other as the parties claiming interest agreed and thereby defeat the intent of the testator, but was bound to devote it wholly to the purpose of the trust.
It is urged that the leasing of a building for the library for five years in 1897 indicates an intention to- renounce or not accept the trust. With this we do not agree. We con
Appellants seem to urge that none of the conditions imposed by paragraph (2) were complied with, and that this indicates renouncement. But, as we have already stated, we consider that these conditions were substantially complied with immediately upon the giving of the notice by the executors in 1897. The controlling conditions in mind of the testator were the establishing of a library, provision for its maintenance, and the appointing of a board of trustees for its care, of which Mr. Williams and Mr. Heller should be members. These conditions were all performed. Acceptance of a bequest in absence of renouncement is presumed. “The law will presume that every gift, whether in trust or not, is accepted until the contrary is proved.” 1 Perry, Trusts (7th ed.), p. 462, § 259. This is said more particularly as applicable to a trustee, but it is also applicable to beneficiaries,
Appellants urge that the acceptance of the Carnegie gift indicates rejection of the Mead bequest. We consider that the acceptance of the latter is not inconsistent with acceptance of the former. The Carnegie gift supplemented rather than defeated the Mead bequest. It operated to render the Mead bequest vastly more beneficial than it would have been had the trustees used part of the fund to construct a building. Nor is acceptance of the Carnegie gift and the placing of the plaque inconsistent with naming the library “The Mead Library.” The plaque merely recognizes the fact that the building was erected with Carnegie funds. The building is not necessarily the library. While the word “library” is at times used as comprising both a collection of books and the building or room in which the collection is housed, it is also used as meaning a collection of books, not kept for sale. Webster’s Dictionary; Century Dictionary. The library was in existence when the gift for the building was made. Mr. Mead may well be considered as the founder of the library, as it was his bequest, as the trial court found, that caused the city to establish it. It is therefore fitting that at this day the library, as distinguished from the building, be named “The Mead Library” as a memorial to him. The forty-five years which elapsed between the founding and the naming is, it is true, a long period, looking backward, but looking forward it is comparatively nothing. If the library from now on “be known' and called The Mead Library” it is of little consequence that it has not been heretofore so known and called.
Suggestion is made by appellants that the Carnegie gift was accepted instead of the Mead bequest because the latter was not large enough to construct a building and supply books for the library, and urge that this indicates a renounce
It is urged that renouncement is indicated by the fact that the city paid no attention to the 1914 letter of Mr. Williams as executor, in which he called attention to the bequest, stated that the city had not, as far as he knew, accepted the bequest, that difficulties in carrying out the will existed, but that they might be overcome by co-operation between the city and the residuary legatees, and that he was ready to turn over the fund “according to the conditions and directions” of the will.
This letter at least indicates that the city had not renounced the bequest, and the opinion of Mr. Williams that if it had not already accepted it, it might yet do so. Mr. Williams apparently had in mind that some act of the residuary legatees was necessary in order that the fund might be devoted to library purposes. In considering that the residuary legatees had anything to say about the matter, and that cooperation on their part was necessary to enable him to devote the fund to the purposes of the trust, Mr. Williams was in grievous error. This has been above shown. The Will of Rice Case which had then been decided ruled that point. Perhaps why nothing was then done by the city was that the residuary legatees claimed they were entitled to the fund and refused to “co-operate” so that the city council considered there was nothing for them to do under the circumstances. The evidence does not disclose such to be the fact. But the evidence does not disclose why the city did not then act. The reason for absence of action by the city council is wholly in conjecture. But, as the county court held, and as we hold, it was for the executors to act, not the city council. They
The appellants urge that the lapse of time between the giving of the notice to the city and the final acts of the city in
The appellants claim that if the trust be upheld, the bequest was in character a general legacy, and that therefore the accretions thereto do not go to the beneficiary but belong to the estate and should be paid to Mrs. Osborn. If it be true that the bequest of the stock is a general legacy it does not follow that the successor trustees are not entitled to accretions. The rule relied on by the appellants is stated by their counsel as follows: “The rule is well established that a general legacy ordinarily does not carry with it dividends or interest earned thereon between the time of the testator’s death and the time the legacy becomes payable and that such income falls into the residuary estate.” Assuming the rule to be as stated, the fund became payable by the executors to the trustees at the expiration of one year from the time of the notice by the executors, and should then have been applied or held for application by them to the purposes of the trust, and the fund and its accumulations thereafter became
The appellants criticize the trial court for applying the cy pres doctrine to the instant case. There is no need to apply that doctrine farther than to construe the provisions of the will liberally in support of the trust established by the will, and to extend the provision of paragraph (2) “for purchase of books” to other library purposes in case conditions are now such as to render use of the fund in part for other purposes more needful and beneficial to the library than to expend the whole for books alone. Had the trustees used the fund for erection of a building immediately upon the omission of the city to erect a building within a year from the time of the executors’ notice, it would then under paragraph (2) have been the duty of the executors to expend the whole
By the Court. — The judgment of the county court is affirmed.
“Fifth. Because the citizens of the city of Sheboygan have reposed in me such unbounded faith and confidence, I desire to reciprocate in some measure, and take pleasure in, and do hereby bequeath the sum of twenty thousand ($20,000) dollars either in cash, or in shares of stock of Phoenix Chair Company, to that amount at par as my executors shall find best, to be held in trust by my executors and employed as follows, to wit: To found a library in the city of Sheboygan for free public use under such regulations as shall be prescribed by the board of directors thereof, to be known and called ‘The Mead Library,’ and the said bequest to be paid over and employed upon the following conditions respectively, to wit:
“1st. If the city of Sheboygan shall erect a city hall and provide therein suitable library rooms and accommodations, or shall separately erect a suitable building for library purposes upon any school grounds of said city or other public grounds, either thereof to the approval and satisfaction of Francis Williams and George Heller, hereinafter named as trustees and directors; and if said city shall further provide for maintaining and keeping therein a public library or library and reading rooms, and shall provide for a board of directors to have management of the same, of which board Francis Williams and George Heller shall be members, as representatives of this trust so long as they will faithfully serve therein, then my executors are authorized and directed to pay over said twenty thousand dollars to said Francis Williams and George Heller upon their acceptance thereof as a trust to be expended upon their approval for the purposes and completion of a library, or a library and reading room, at their best discretion, but with authority and discretion in said trustees to reserve such amount thereof as may to them seem best for making future additions to said library to be kept by them invested for such purposes or paid over to the board of trustees therefor as they deem best.
“2nd. If the said city of Sheboygan shall not erect such city hall with such library accommodations therein, or such separate building therefor, within such time as my executors shall fix and notify said city as prescribed therefor, which shall be not less than one year from notice, then if said city shall accept and provide for the care, charge and expenses of maintaining such library and constitute a board of trustees to have charge thereof, of which board Francis Williams and George Heller shall be made members as afore-mentioned, then my executors are empowered and directed to pay over said bequest to said Francis Williams and George Heller upon their acceptance thereof, as a trust, to be expended in the erection of a building and providing*321 a suitable lot for the same (whereof title shall be placed in the board of trustees unless the same is furnished by said city) and furnishing-such building and a library therein, provided that no more than $10,000 shall be taken from said bequest for said building and lot, so that at least half of the bequest shall remain for the purchase of books. When the amount of the bequest as aforesaid shall have been expended by said trustees so named, the trust shall be discharged and all title shall vest in the board of trustees for all the purposes aforesaid.”
Rehearing
The following opinion was filed April 13, 1938:
{on motion for rehearing). A motion for rehearing is filed grounded upon the propositions, (1) that the opinion discloses an error as to an evidentiary fact; (2) that the court erred in its view of the import of the word “accept” in the “2nd” paragraph of the clause of the will under construction and in holding that there was a sufficient compliance by the beneficiary with the conditions of the bequest under that paragraph; and (3) that on the face of the opinion the beneficiary is not entitled to any accretions to the stock prior to 1898 and an accounting must be ordered to exclude accretions' prior to that time. :
(1) The misstatement of fact referred to is to the effect that Mr. Williams filed with the court an account as trustee
(2) What is stated in the brief on rehearing under this head was advanced in the original briefs and was duly considered by the court. We see no reason to retract from the position announced in the opinion.
(3) The appellants contended in their original brief that the bequest was a “general legacy,” and as such the beneficiary was not entitled to the accretions tO' the stock which the executors elected to devote to fulfilment of the trust. We quoted from their brief a statement made therein, and stated that upon the rule as contended by them the beneficiary would be entitled to accretions after the legacy should have been paid, which we said was one year from the notice given by the executors to the city that they elected to turn over the stock instead of money in payment of the bequest. This would fix 1898 as the time when the stock should have been turned over, and construing the statement literally would not entitle the beneficiary to the accretions to the stock prior to
“Since 1897 dividends have been paid on the stock so set aside for the payment of the legacy, and such dividends have been invested at interest until the fund outside of the stock amounts to twelve thousand five hundred dollars. The stock has been changed from twenty thousand dollars common stock to forty thousand dollars of four per cent (4%) preferred stock of the company. . . .
“I now notify the city that I hold forty thousand dollars of the four per cent (4%) preferred stock of the Phoenix Chair Co. and twelve thousand five hundred dollars in other securities, and that I am ready to turn the property over according to the conditions and directions of Mr. Mead’s will.”
The motion for rehearing is denied, with $25 costs.