22 N.W.2d 604 | Wis. | 1946
These proceedings were instituted by petition of the Appleton State Bank, executor of the last will and testament of Harriet Eliza Rowell, deceased, dated November 28, 1944, praying for the construction of paragraph 3 of decedent's will. The matter was duly heard, and so much of the judgment as is important upon this appeal provides in substance as follows:
1. That the local advisory board of the Salvation Army is the entity intended by the testatrix to receive the bequest under the designation "Salvation Army of Appleton, Wisconsin."
2. That paragraph third of the will creates a trust of which the local advisory board is the designated trustee.
3. That the local advisory board be qualified and that letters of trust be issued to it by the county court.
The appeal is by the Salvation Army, a Wisconsin organization, of which the local Appleton corps and local advisory board are departments, whose relation to the appeal will be set forth in the opinion, together with such other facts as may be material to a determination of the questions involved. This appeal involves the construction and effect of paragraph 3 of testator's will which provides as follows:
"Third. I give and bequeath to the Salvation Army of Appleton, Wisconsin, the sum of ten thousand dollars ($10,000). It is my wish that this money be expended by the Salvation Army for the benefit of the needy people in the city of Appleton, Wisconsin."
The Salvation Army is a Wisconsin corporation having for its purposes the undertaking of "charitable, educational, missionary philanthropic, beneficial and religious work of the character that has been and is being conducted by the branch of the Christian church known as the Salvation Army. . . ." "Such corporation may receive and hold both real and personal property of and for said the Salvation Army, may execute trusts thereof. . . ." The corporation has a local corps in Appleton which is one of twenty-five such units under the general command of a divisional commander and under the immediate command of a local officer. These commanders are hired and paid by the corporation. The advisory board of Appleton is composed of citizens who assist in receiving funds and give counsel and advice to the local corps. This board is unincorporated, contains from eleven to twenty-one members, and has a president, secretary and treasurer. The activities of the advisory board are under the jurisdiction and control of the state organization. The local corps derives funds from two principal sources. The first is internal, and represents collections at meetings, contributions of members, band income, and the like. The second source in Appleton *523 is an annual drive. The funds raised by this drive are paid to the advisory board, disbursed upon the signature of its treasurer and countersignature of the divisional commander in Milwaukee. These funds are kept separate from the other fund which is disbursed upon the signature of the corps commanding officer and the countersignature of the divisional commander.
The contentions of appellant are, (1) that the designation of the subordinate department of the Salvation Army by the testatrix results in law in a designation of the corporation itself for the reason that the subordinate departments have no capacity to be trustees or to receive charitable gifts. Will ofSourhard,
Respondent relies upon 5 R.C.L. p. 313, sec. 29, to the effect that the disqualification of an unincorporated association *524
to act as trustee is largely applicable to trusts in land and is grounded upon the fact that an unincorporated society cannot take title to the land, and asserts that there is considerable authority and a definite trend toward a holding that the objection is not valid. It is further contended by respondent that there is a charitable trust under the rule of Maxcy v. Oshkosh,
In approaching the question presented by this appeal, the proper starting point is the ascertainment of testatrix's intention.Will of Kavanaugh,
We are of the view that paragraph 3 creates a charitable trust. In Restatement, 2 Trusts, p. 1095, sec. 348, a charitable trust is thus defined:
"A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose."
In Maxcy v. Oshkosh, supra, at page 249, the court said:
"In order to create such a trust there must be some public benefit open to a vague and indefinite number of persons until they are selected or appointed to be the particular beneficiaries of the trust for the time being."
See also in this connection, Rust v. Evenson,
We now come to the principal difficulty in this case. The advisory board is unincorporated. The board consists usually of from eleven to twenty-one members. It has a president, secretary and treasurer, and certain committees that function *526
in the disbursement of the Salvation Army money and other matters pertaining to the general welfare of the local corps. The divisional commander of the Salvation Army is a memberex officio but the board is largely made up of local people. It receives money from the annual drive, deposits it in what is called a "Home Service Fund," and disburses it upon the signature of its treasurer, with the countersignature of the divisional commander. The members of the board were originally selected by an organizer for the Salvation Army who was the local commanding officer. The original members were appointed, one third for one year, one third for two years, and one third for three years. Each served for three years and successors were selected by the board to serve like periods. The question whether a committee so organized and constituted is competent to take the bequest and to administer the trust offers some difficulties. Where it has been the intention of testatrix to vest title to a bequest in trust not in individual members of an unincorporated group, but in the group as a whole, the fact that the group has no legal entity or capacity to take title to the property is fatal to its competency as a trustee. See 1 Scott, Trusts, p. 516, sec. 97, and cases there cited. This is not fatal to the trust but a court of equity may appoint a competent trustee. First Wisconsin TrustCo. v. Board of Trustees,
While some authorities show a tendency to make a distinction between the capacity of a voluntary association to take a devise of real property and a bequest of personal property (as to which see cases cited in 5 R.C.L. p. 13 sec. 29), the more liberal rule applicable to bequests of personal property requires that the unincorporated group qualify as a voluntary or unincorporated association. Sec.
This discretion may be discharged either by appointing respondent bank or the Salvation Army of Wisconsin as trustee (see last paragraph of opinion in Estate of Thronson, supra. In case the bank is appointed, it may, as stated in Estate ofBriggs,
By the Court. — Judgment reversed, and cause remanded with directions to proceed in accordance with this opinion.
RECTOR, J., took no part.