66 Wis. 366 | Wis. | 1886
There is no bill of exceptions. The questions involved arise upon the face of the will, under the facts found by the court. No question is made as to the meaning or validity of paragraphs numbered 1, 2, 3, 4, 8, 9, 10, 11, 14,16,11, and 18 of the will. The other paragraphs only will be considered, and they not in the order in which they are named, but more in reference to their relations with each other.
1. In regard to the twelfth paragraph of the will, it was found by the trial court, as a matter of fact, that there was no corporation known as “ The Omro and Algoma Union Cemetery Association,” but that there was and is a corporation called the “Omro Cemetery Association,” having cemetery grounds in said town of Omro; and also another corporation named “The Union Cemetery Association,” having grounds in said town of Omro, and that the members and incorporators thereof included inhabitants of the towns of Omro and Algoma; and that the deceased members of the testator’s family who died during his life -were buried in “The Union Cemetery Association” aforesaid; and that said testator was also buried there. As a conclusion of law the trial court found that, by said twelfth paragraph of the will, the testator intended to give, and did give,the legacy of $1,000 therein mentioned to “TheUnion Cemetery Association ” aforesaid, in trust for the alternative purposes mentioned, to be executed by the proper officers of said last-named corporation according to the conditions named in the will. We are clearly of the opinion that this was the true construction, and that the bequest is valid. There can be no doubt but what extrinsic evidence was admissible to show which of the two cemetery associations was intended. State ex rel. State Agr. Soc. v. Timme, 56 Wis. 423; Begg v. Begg, 56 Wis. 534; Scott v. West, 63 Wis. 551; Begg v. Anderson, 64 Wis. 207; Cleveland v. Burnham, 64 Wis. 355; In re Brake, 32 Eng. (Moak), 601; Brownfield v.
We have no doubt of the validity of that bequest. The corporation was capable of taking the beneficial interest in the bequest “for the purpose of assisting in building a chapel,” as indicated. The statutes expressly authorize such corporations to take personal property by gift, to an amount not exceeding $10,000 in value, to be applied to promote the objects of the association. Sec. 1447, R. S.; ch. 42, Laws of 1882; ch. 165, Laws of 1885. The building of such chapel would certainly promote such objects. Under the statute as amended, “ express trusts may be created,” moreover, (6) for “ perpetually keeping in repair and preserving any tomb, monument, or grave-stone, or any cemetery, to an amount not exceeding-two thousand dollars; and any cemetery company, association, or corporation is authorized to receive money or property to the amount aforesaid, in trust for the purpose aforesaid, and to apply the income thereof to the purposes ■ of the trust.” Sec. 2081, R. S.; ch. 290, Laws of 1883. The bequest is within the amount named. If the association fails to build the chapel, then, under the will, it is to take the bequest in trust, and put it out at interest, and the annual interest arising therefrom is to be used by the association in improving the cemetery grounds. This is expressly sanctioned by this amendment to the statute.
2. In regard to the thirteenth paragraph of the will, it was found by the trial court that there was no corporation or society named the “ First Presbyterian Church of the Yillage of Omro,” but that there 'was and is an incorporated
From what has already been said respecting the Omro Cemetery Association, it is obvious that extrinsic evidence was admissible to show the particular church or society intended, and thus remove the latent ambiguity otherwise existing. The bequest is directly to the society, with the directions “ that said sum be kept as a perpetual fund for the use of said society, and the interest arising therefrom one half to be used by said society in defraying the annual expenses, and the balance distributed and used for the relief of the resident poor.” By thi.s clause the testator manifestly intended to create a trust in the church corporation “ for the beneficial interests of ” the church and the “ resident poor ” of the town. By the language thus employed, such trust was “ fully expressed and clearly defined upon the face of the instrument creating it,” and hence satisfied the requirements of subd. 5, sec. 2081, B. S. Still, by the express language of that subdivision, such trust is “subject to the limitations as to time, and the exceptions thereto re: la-ting to literary and charitable corporations, prescribed in
In Dodge v. Williams, 46 Wis. 70, the will contemplated the conversion of all the testator’s realty into personalty by his executors, and then that the several trusts created thereby should be executed in personalty exclusively. In other words, the estate was treated as personal property, upon the doctrine of equitable conversion. But three of the bequests were to literary corporations expressly authorized to take in perpetuity by both sections of the statute cited, and another bequest was for the benefit of another corporation to be thereafter incorpprated. In that case the late chief justice said that “the English doctrine of per-petuities applied to estates both real and personal, and grew up by a series of judicial decisions;” but that in this state “ the statute limiting the rule against perpetuities to realtjr, manifestly abrogates the English doctrine as applicable to personalty. Lkpressio unius est exelusio alteriusP Pages 95, 96. These expressions of the late chief justice are referred to by the present chief justice in De Wolf v. Lawson, 61 Wis. 474, where he expressed doubt as to their being “strictly accurate.” lie then mentioned several reasons given by "the courts in support of the common-law
In Gray’s Rule against Perpetuities, just published, there is a pretty full discussion of the question. The rule is there said to “ owe its birth, and the shape it has assumed, to ex-ecutory devises of chattels real. . . . The natural, the original meaning of a perpetuity, is an -inalienable, indestructible interest. The second, artificial meaning is cm interest which will not vest till a remote period. The latter is the meaning which is attached to the term when the rule against perpetuities is spoken of. . . . It is to be regretted that the rule has not become known as the rule against remoteness. More than one erroneous decision would probably have been then escaped.” Secs. 140, 589, 590, et seg. The learned author also said: “ Whether future interests in a chattel remaining in the grantor, or limited over to a third person after a present gift, are within the rule against perpetuities or not, depends upon whether, for the purposes of the rule, they are to be deemed vested or contingent. All such interests, if contingent, are within the rule.” Secs. Ill, 320, 321, and cases there cited. But “ a vested interest is not subject to the rule against perpe-tuities, for, ex vi termini, it is not subject to a condition precedent.” Sec. 205.
The question when a bequest or legacy of personalty becomes vested, or is contingent, was pretty fulty- discussed, and numerous authorities cited, in the recent case of Scott v. West, 63 Wis. 565, 566, 571-573, where a similar distinction was made as to remainders. The following conclusions were there reached: “ Bequests of legacies and personal property, when the payment or distribution is to be made at a future time, certain to arrive, and not subject to a condition precedent, are deemed vested when there is a person
The direction in the clause of the will quoted, to distribute and use one half of the annual income of the bequest “for the relief of the resident poor” of the town, was clearly a charitable purpose. It included those who should, be resident of the village as well as the town, and was sufficiently definite and certain to be carried into execution. Howard v. Am. P. Soc. 49 Me. 288; 2 Redf. on Wills, 504, subd. 15; Swasey v. Am. B. Soc. 57 Me. 523; McIntire’s Adm’rs v. Zanesville, 17 Ohio St. 352; Hesketh v. Murphy, 36 N. J. Eq. 304; S. C. 26 Alb. Law J. 28, and 21 Am. Law Reg. 659; State v. Griffith, 2 Del. Ch. 392; Ex parte Lindley, 32 Ind. 367; Craig v. Secrist, 54 Ind. 419; Shotwell v. Mott, 2 Sandf. Ch. 46; 2 Perry on Trusts, 698. It was as definite and certain as “ the annual income thereof to apply and use for the education and tuition of worthy indigent females,” in Podge v. Williams, supra. It is certainly distinguishable from the bequest to the unascertained and unascertainable “Roman Catholic orphans of the diocese of La Crosse,” as in Heiss v. Murphey, 40 Wis. 276.
3. The grandson Edward Morris, mentioned in the sixth paragraph of the will, having died without issue and before
4. The condition annexed to the bequest is that “ provided, however, that said Hiram Webster Morris has in the mean time learned some useful trade, business, or profession, and is of good moral character; my executors to determine whether said child has fully complied with said proviso before any payments from the principio! sum are made to him.” The argument against the validity of this condition is that it is in terrorem, or against public policy. The authorities, however, seem to be strongly the other way. This is on the theory that every person has a legal right to dispose of his own property as he sees fit. Thus, conditions annexed to a devise or bequest from a husband to a wife, or a wife to a husband, to be held only so long as he or she remains unmarried, aré'quite common, and have frequently been held valid. Allen v. Jackson, L. R. 1 Ch. Div. 399, reversing the same case in 19 Eq. Cas. 631; Pringle v. Dunkley, 53 Am. Dec. 110; Bostick v. Blades, 59 Md. 231; S. C. 43 Am. Rep. 548. So, conditions that the devi-see or legatee shall not marry prior to arriving at a particular age, without the consent of a person named, have been held valid. Scott v. Tyler, 2 Brown, Ch. 431; Stackpole v. Beaumont, 3 Ves. Jr. 97; Hogan v. Curtin, 88 N. Y. 162; S. C. 42 Am. Rep. 244. The age named must, of course, be reasonable; as, for instance, twenty-one years of age. But a condition annexed to a devise or bequest from parent to child in absolute restraint of marriage, has been held void, as against public policy. Williams v. Cowden, 13 Mo. 211; S. C. 53 Am. Dec. 143; Randall v. Marble, 69 Me. 310; Otis v. Prince, 10 Gray, 581. The same has been held where the devise or bequest was. to a widow from her husband, and there was no gift over in case of breach of the condition. Parsons v. Winslow, 6 Mass. 169; S. C. 4 Am.
In Cooke v. Turner, 14 Sim. 493, the will contained a gift over in case the legatee should dispute the will or the testator’s competency to make it, or should not confirm it when required by the trustees; and the condition was held valid.
In Dickson’s Trust, 1 Sim. Ch. 37, the testator, by a cod- ■ icil, annexed a condition to the béqúest to his daughter to the effect that she should not take in case she became 'a nun, which she did; and it was held by'Lord Obanwoeth that the condition was lawful, notwithstanding there was no gift over on its breach.
That case was followed in Hodgson v. Halford, L. R. 11 Ch. Div. 959, S. C. 32 Eng. (Moak), 918, where the condition annexed to the legacy was, in effect, that it should be forfeited in case the legatee married any person who was not a born Jew, professing the Jewish religion; and it was held valid, and not against public policy. It was there said that all the authorities holding the other way were “ cases in which the condition was unquestionably against public morality, and it was on that ground that the court declined to give effect to it.”
In the very recent case of Delany v. Delany, L. R. (Ireland), 15 Ch. Div. 55, the will provided: “ If my said son Andrew shall in all respects conduct himself to the satisfaction of my executors, I bequeath to him a sum of 2,000 pounds, .to be paid when my son Henry shall attain (or would have attained) his age of twenty-one years.” He also devised and bequeathed the residue of his property to his executors, upon trust for the use and benefit of all his children, including his son Andrew, in equal shares; and declared that “ if it should happen that my said son Andrew shall not conduct himself in all respects.to the satisfaction of my said executors, or the survivor of' them, then I declare that he shall not be
In Vidal v. Girard’s Ex’rs, 2 How. 128, it was held, in effect, that the provision in Mr. Girard’s will excluding,all ecclesiastics, missionaries, and ministers, of any sort, from holding or exercising any station or duty in the college, or even visiting the same, with the limitation of the instruction to be given to the scholars to pure morality, general benevolence, a love of truth, sobriety, and industry, were not so derogatory and hostile to the Christian religion as to make the devise void, under the constitution and laws of Pennsylvania.
It was recently held, in effect, in Maryland, that a bequest dependent upon the condition that the legatee should withdraw from the priesthood of the Roman Catholic Church, or membership of any order or society connected with such church, or refrain from forming any such connections, was held to be valid, and not against public policy, on the ground that whatever might be thought of the opinions of the testator, or his prejudices, the law recognized his right to make the enjoyment of his bounty dependent upon such conditions. Barnum v. Mayor of Baltimore, 62 Md. 291.
So, it has recently been held that a bequest on condition that the beneficiary shall be educated in the Roman Catholic faith, is not uncertain, impossible, nor against public policy, nor unconstitutional. Magee v. O’Neill, 45 Am. Rep. 765.
5. The seventh paragraph of the will provides, in effect, that “ in case of the death of both ” Edward Morris and Hiram, W. Morris “ without ” issue, then “ all remaining payments and legacies ” mentioned in the fifth, sixth, and seventh paragraphs of the will are to revert back to the estate, and be expended by the “ executors for charitable purposes, or given to any of the testator’s heirs who may be in need, or not in very comfortable circumstances, as to ” said executors may seem fit and proper. Here are two alternative methods of expending such payments in case of the death of Hiram, W. Morris before he reaches thirty years of age. The first is “for charitable purposes ” gen
Sec. 8, p. 407, Laws of 1839, declared that “none of the statutes of Great Britain shall be considered'as law of this territory, nor shall they be deemed to have had any force or effect in this territory since July 4, 1816.” This same section was re-enacted in Iowa, July 30,1840. The supreme court of that state, after suggesting the grave results of eliminating from the common law all of the old English statutes by reason of that section, finally concluded that the “ statutes of Great Britain ” therein mentioned did not include English' statutes proper, which were enacted prior to “ the union of the crown of England with that of Scotland” by act of Parliament in 1707, which was more than 100 years after the statute of Elizabeth. The statute of Elizabeth was, in fact, enacted prior to the accession of James, who was the first to recognize any such union. O’Ferrall v. Simplot, 4 Iowa, 381. This Iowa case ivas cited with approval by Mr. Justice Paine in Coburn v. Harvey, 18 Wis. 150, although a later date was there fixed, and the precise point here presented was not considered. In addition to cases cited by counsel, see cases cited in 21 Am. Law Reg. 553-574. But as held in Ruth v. Oberbrun-
Before that power can be exercised, however, the scheme of charity must be sufficiently indicated, or a method provided whereby it may be ascertained, and its object made sufficiently certain to enable the court to enforce the execution of the trust according to such scheme and for such object. It must be of such a tangible nature that the court can deal with it. 2 Redf. on Wills, 409, subd. 2-4; Id. 505, snbd. 16. The mere direction to expend money “ for chari
6. Is the second alternative "mentioned in the seventh paragraph of the will, to wit, “ to be . . . given to any of my heirs who are in need, or not in very comfortable circumstances, as to my executors seems fit and proper,” sufficiently definite and certain to be carried into execution % Ordinarily, a gift to the testator’s heirs would, of course, be to those who would take under the statutes. Edge v. Salisbury, Amb. 70; Isaac v. Defriez, Amb. 595; Widmore v. Woodroffe, Amb. 636; Smith v. Harrington, 4 Allen, 566. Rut the words “ my heirs ” must be construed with reference to the context. Manifestly, the testator did not mean those who would have taken his property under the statutes had he made no will, for the two grandsons would then be included. But the clause in question is not to go into effect at all until the death of both of such grandsons without .either of them leaving issue — that is to say, not until the death of his sole heirs at law. Besides, such alternative gift is not simply to heirs, or heirs generally, but “ to any . . . who are in need, or not in very comfortable circumstances, as to my executors seems fit and proper.” This .manifestly means those who, upon the death of both of his grandsons without issue, would be his other blood relations, and -who might, under the other circumstances named, have become his heirs. It does not include all relatives, however remote. Edge v. Salisbury, supra; Brunsden v. Woolredge, Amb. 507; Isaac v. Defriez, supra; Widmore v. Woodroffe, supra; Smith v. Harrington, supra. It only in-
7. But it is claimed that where a gift is for two or more alternative uses, one of which is void for any reason, the whole gift fails. Ye do not'think the authorities cited in support of the proposition sustain it. In Morice v. Bishop
8. By the fifteenth paragraph of the will the testator, in effect, willed and directed that in case his estate exceeded the legacies therein mentioned, then the surplus or l’emain-der of his estate should be appropriated and used by his
The same rule was recently applied to the description in a bill of sale in Minnesota. McAlpine v. Foley, 25 N. W. Rep. 452. “ Thus the word £ benevolent,’ intrinsically considered, includes more than legal charities, but its signification may be narrowed by the context ” so as only to include
Applying the foregoing principles to the paragraph of the will here in question, and assuming, for the present, that the establishment of a school of the character there indicated is a charitable purpose, then, as it seems to us, we are authorized to hold that the particular charitable purpose which the testator directed his executors to use such residue of his estate in aiding and encouraging, was in the establishment of such school. After expressing his “ charitable purposes ” generally, he recommends a scheme for its exercise in the establishment of the school, in case the amount of such surplus is sufficient for that purpose in the judgment of his executors, Flo other scheme is suggested, and,
The language of the will seems to contemplate a school of the character indicated, to be incorporated. The mere fact that the corporation was not in esse on the death of the testator in no way frustrates the trust. To establish such a school is to give it a legal existence — that is to say, a corporate existence. In re Taylor Orphan Asylum, 36 Wis. 534; Dodge v. Williams., 46 Wis. 100-102; Gould v. Taylor Orphan Asylum, 46 Wis. 106; Gray’s Rule against Perpet-uities, sec. 607, and cases there cited. It is to be established by the executors in their capacity as trustees. It could not be established by executors until there were executors, and there could be no executors until the death of the testator. They are to appropriate and use such surplus funds as may be in their hands for that purpose in the event indicated. The authorities cited fully sanction the legality of such appropriation and use of funds by trustees in the establishment of such a' school: The same authorities hold that such bequest is not void for remoteness, nor against the rule of perpetuities. Santa Clara F. Academy v. Sullivan, (Ill.) 6 N. E. Rep. 183. The legal title to such surplus estate is vested in the executors. Scott v. West, 63 Wis. 555. It will remain in them until they establish such school — that is, give it a legal corporate existence. It will then become vested in such corporation. Being thus continually vested, the doótrine of remoteness is inapplicable, upon the principles already suggested. .
10. The scheme for using such surplus in the establishment of such school is, upon the principles already stated,
11. Except the specific devises and bequests given to the wife, the will treats the entire estate as personal property. With such exceptions, and a note from M. D. Morris, each of the several gifts are to be paid in money. The direction to so pay in money gave to the executors, by necessary implication, the authority to convert all real estate not so specifically devised into money. Dodge, v. Williams, 46 Wis. 70; Scott v. West, supra; Going v. Emery, 16 Pick. 107; S. C. 26 Am. Dec. 645. Such real estate, therefore, must be treated the same as though it were personal property, on the doctrine of equitable conversion. Ibid.; In re Gunn, L. R. 9 Prob. Div. 242; Baker v. Copenbarger, 15 Ill. 103; S. C. 58 Am. Dec. 600; Dodge v. Williams, supra.
12. Manifestly, it is the duty of the executors to administer the estate according to the provisions of the will, notwithstanding the duties thus imposed include such as are usually performed by trustees. Scott v. West, 63 Wis. 555. The amount of their bonds can be regulated by the trial court. Whether, in case of the death of one or more of the executors, the survivors or survivor could execute the provisions of the will, is left open for determination in case the question should arise.
By the Gourt.— The judgment of the circuit court is affirmed on the appeal of Hiram W. Morris and M. D. Morris, and reversed on the appeal of Zouisa M. Webster and others, and the cause is remanded for further proceedings according to law.