94 Wis. 412 | Wis. | 1896
1. Is the fifth paragraph of the will too indefinite and uncertain in its provisions as to who are to be its beneficiaries to create a valid trust for charitable uses? One of the essentials of a good bequest for a public charity is that there shall be some uncertainty as to who shall be its beneficiaries; for it is said that, if a gift is made for a public charitable purpose, “ it is immaterial that the trustee is uncertain, or incapable of taking, or that the objects of the charity are uncertain. Indeed, it is said that the vagueness, is in some respects, essential to a good gift for a public charity; and that the public charity beginá where uncertainty in the recipient begins.” “ Courts look with favor upon all such donations, and endeavor to carry them into effect, if it can be done consistently with the rules of law.” “ Charitable bequests are said to come within that department of human affairs where the maxim, Ut res magis oaleal, quam pereat, has been and should be applied.” Perry,
2. Can the trust be executed by a trustee appointed by the court in the place of those named in the will? The will is to be so construed as, if possible, to carry out the charitable purpose of the testator. There is nothing in the will to indicate that the testator intended the charity to fail in case the executors whom he named declined to act. The gift is. absolute, and its appropriation to the charity pro* posed is specific, and the general scheme plain and clear. There is nothing in the nature of the bequest or its object, and no such inherent difficulty in the execution of the scheme, as to suggest that the testator intended the charity to fail if the executors failed to act. Such an interpretation of the will is contrary to the spirit of the maxim, Ut res magis valeat, quam per eat. Ho doubt the court should, if necessary, act upon a liberal principle of construction in order to uphold the bequest. Oases cited above. This will creates a mixed trust and power. The power joined with the trust, in such a case, is imperative, and must be exercised. A trust to distribute the trust funds according to the discretion of the trustees is an imperative trust and power, and must be executed. If the trustees neglect or refuse to execute such trust and power, or die without performing them, courts of equity will execute them, or compel them to be executed. Perry, Trusts, §§ 20, 473; Osborne v. Gordon, 86 Wis. 92. Whether, then, this trust and power
By the Court.— The judgment of the circuit court is reversed, and the cause remanded with direction to construe the will in accordance with this opinion. The costs are to be paid out of the estate. The plaintiff, has no interest in the controversy, and is not entitled to costs.