Tharp v. Seventh Day Adventist Church

182 Wis. 107 | Wis. | 1923

Lead Opinion

The following opinions were filed October 16, 1923:

Vinje, C. J.

No argument is made upon the incorrectness of the» findings, so they stand as verities in the case. The legal questions raised are (a) that the circuit court should not have taken jurisdiction of the case, and (b) that the circuit court erred in holding the trust to the Seventh Day Adventist Church void for uncertainty.

Counsel for appellants rely upon the rule stated in Pietraszwicz v. Pietraszwicz, 173 Wis. 523, 529, 181 N. W. 722, to the effect that, though the circuit court has concurrent jurisdiction with the county court, yet the former will refuse to assume jurisdiction unless the lack of power to-grant adequate relief in the county court is clearly shown. That is undoubtedly the general rule, but an exception has always been made to cases calling for the construction of wills. Speaking of this exception the court in Burnham v. Norton, 100 Wis. 8, 12, 75 N. W. 304, says:

“Jurisdiction of such matters has been uniformly exercised by the circuit court though specially conferred on county courts by statute. So it is said that nothing short of an express statute on the subject can change the practice in that regard.” Citing Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935. See, also, Giblin v. Giblin, 173 Wis. 632, 182 N. W. 357.

The trial court therefore properly exercised its jurisdiction in trying the case.

Is the bequest to the Seventh Day Adventist Church void for uncertainty? It will be seen from the findings of fact that the words “Seventh Day Adventist Church” do not signify any specific incorporated or unincorporated religious body; that there was no Seventh Day Adventist Church in the locality where testator lived; that he was not a member of or an attendant on any Seventh Day Adventist Church; that the officers of local churches consisted of an elder, a deacon, a clerk, a treasurer, and a missionary secretary; that they have no trustees and are unincorporated; that the various local and general organizations are engaged in distributing tracts and literature and that their teachings are not always the same. In view of these facts and others found by the trial court we think its conclusion that the bequest was void for uncertainty was correct. No power was given to the trustee to select an organization or church. He was required to pay to the “proper trustees.” Who were the proper trustees? The local churches had no trustees, but assuming that the word “trustees” meant officers, to what officers should he pay ? Had the testator been a member of or attendant upon a local church the inference might arise that he intended his own church to be the beneficiary. But he was not connected with any Seventh Day Adventist Church, local or otherwise. It therefore becomes impossible to designate with any degree of reasonable certainty what Seventh Day Adventist Church, local or general, incorporated or unincorporated, was meant. Neither the trustee nor the court, had they otherwise the power, could determine with reasonable certainty who were the “proper trustees” or the proper church organization to receive payment. In our state the doctrine of cypres does not obtain. Heiss v. Murphey, 40 Wis. 276; Will of Fuller, 75 Wis. 431, 435, 44 N. W. 304; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345. The beneficiary must be designated with reasonable certainty or the trust fails. Holmes v. Walter, 118 Wis. 409, 95 N. W. 380. Here it was not so designated and the trust must be held invalid.

We think the case comes well within the decisions of Heiss v. Murphey, supra; Will of Fuller, supra; Harrington v. Pier, supra.

By the Court.- — -Judgment affirmed.

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Dissenting Opinion

Eschweiler, J.

(dissenting). The will, when read in connection with the testimony taken, seems to me to clearly disclose that the testator had in mind as the primary subject of his bounty the publication and circulation of the printed matter expounding the doctrine of those who class themselves and are classified as Seventh Day Adventists for the furthering of their doctrines. This, under the authorities, is clearly a charitable trust and one that should -be upheld wherever possible. He was not so much concerned with the particular name or form of organization as he was with the doctrines of the Seventh Day Adventists; it' was the latter to which his bounty was extended much more than to any particular organization.

It is also quité evident that when making this will he was not informed of the names or proper designations of the persons who could best carry out his controlling purpose and he therefore declares that his trustee shall annually pay to the “proper” trustees, whomever they shall be, the designated $1,000, undoubtedly believing that such designation could, by the time the payments were to be made, be ascertained by his trustee and thereby be made certain. There were then and are now, under the testimony and findings, persons in existence who could properly, by reason of their connection with the Seventh Day Adventists, carry out the purpose which he so evidently wanted should be done.-

As has been repeatedly said, from the very nature of such charitable trusts they cannot be as definite and distinct as trusts for individuals or more particular private purposes. I can see no more substantial difficulties in the carrying out of what was the evident intention of the testator in this regard in this will than as to some at least of the provisions in the trust upheld in Rust v. Evenson, 161 Wis. 627, 155 N. W. 145; or in Giblin v. Giblin, 173 Wis. 632, 182 N. W. 357; or in Hood v. Dorer, 107 Wis. 149, 153, 82 N. W. 546,—it being always the imperative duty of the court to ascertain, if possible, and then give effect, if possible;- to the intention of a testator. Will of Dever, 173 Wis. 208, 210, 180 N. W. 839.

It seems to me clear that the executor of this will would have little, if any, difficulty in determining that there were persons connected with either the incorporated conference located at Washington, D.- C., or some of the conferences of lesser territorial jurisdiction, who could be properly trusted with the duty of carrying out the expressed wish of the testator, and that the court should have permitted or required th^ trustee to have done so rather than now permitting the property to go contrary to the express declaration of the testator. In the paragraph of his will just preceding the one quoted in the majority opinion, and which, though also challenged, was upheld by the court as being valid, definite, and certain, appears the following:

“For the following express purposes, to wit: to pay bills for medical attendance, nursing, hospital bills, and support of either, each or any (as many as shall come within this provision) of my sister, nephews, or nieces, should either or any of them suffer or experience any serious injury or calamity and be financially in need of assistance. It being my desire that none of my property go to any of my relatives so long as they are in health and able to make a living for themselves.”

A motion for a rehearing was denied, with $25 costs,, on December 11, 1923.