Webster v. Morris

Cassoday, J.

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. Brownfield, 51 Am. Dec. 590; Hawkins v. Garland's Adm'r, 44 Am. Rep. 158; Tilton v. Am. Bible Soc 49 Am. Rep. 321; Newells Appeal, 24 Pa. St. 197; Minot v. Boston Asylum & F. S. 7 Met. 416; Howard v. Am. P. Soc. 49 Me. 288; Lefevre v. Lefevre, 59 N. Y. 434; Patch v. White, 117 U. S. 210. Such evidence removed the latent ambiguity which otherwise would have existed. Ibid.

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 religious society named “ The First Presbyterian Society of the Town of Omro,” with its church edifice in the village of Omro, in said town, and of which the testator was a member, and to the support of which he contributed, and that there was and is no other Presbyterian church or society in said town of Omro. As a conclusion of law, the trial court found that by said thirteenth paragraph of the will the testator intended to give the legacy of $10,000 therein mentioned to the “ First Presbyterian Society of the Town of Omro; ” that the same was and is an effectual bequest to said society, in trust for the purposes named therein; and that said trust is to be executed by the trustees of said society; and that by the words “ the resident poor,” at the close of said thirteenth paragraph, was and is intended poor persons at any time needing charitable relief, who are at such time residents of said town of Omro.

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 this [twentieth] title.” “ The limitation as to time ” here mentioned refers to the statute declaring that “ the absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate.” Sec. 2039, R. S. “ The exceptions thereto ” mentioned, apjaly “ when real estate is given, granted, or devised to literary or charitable corporations which shall have been organized under the laws of this state, for their sole use and benefit.” Ibid. This court has held that a religious corporation, such as the trustees of a church, is not a charitable corporation, within the meaning of this statute. De Wolf v. Lawson, 61 Wis. 469. “ There can be no question but the statute refers to real estate alone.” . Id. 474.

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 doctrine as applied to personal property, and cites several text-books in support of such reasons, and concludes: “ This common rule of perpetuity as to personalty may be unaffected by our statute.”

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 .in being at the time of the testator’s death capable of taking when the time arrives, even though his interest is liable to be divested by dying without issue, or diminished by future births.” See, also, Pond v. Allen, 4 East. Rep. 137. “In such cases the legacy or bequest takes effect, in point of right, on the death of the testator.” Page 571. “ On the other hand, legacies only payable on an event which may never happen, and hence subject to a condition precedent, are contingent.” Page 566. Here the bequest to the church was not in any sense contingent, but - immediately vested a beneficial interest in the church corporation. Scotney v. Lomer, L. R. 29 Ch. Div. 535. This being so, the rule against perpetuities or remoteness does not apply. See, also, Hawkins, 183, 206, 215, 224, and cases there cited. .

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 the testator, died “without leaving an heir,” within the meaning of the seventh paragraph of the will; and the bequest, which would otherwise have gone to him under the sixth paragraph of the will, now goes, under the seventh paragraph of the will, to the surviving grandson Hiram W. Morris, under the same restrictions and upon the same conditions as to him, if valid, as was provided for said Edward had he continued to live; that is to say, said Iliram W. so takes what would otherwise go to said Edward under the same restrictions and upon the same conditions, if valid, as are applicable to the bequest to said Hiram IF. under the fifth paragraph of the will. In other words, it is the same, in effect, as though the amount named in the fifth paragraph had been twenty thousand dollars instead of ten. So construed, the words “ first heir,” in the seventh paragraph, had the effect of carrying the bequest to Edward, on his death, over to Hiram W. The result is that $20,000 of said estate .is to be invested and put to use, and the interest arising therefrom, or so much as said Iliram W.’s guardian and the executors named in the will may consider proper and necessary, be used for his support and education; and at his majority the unexpended interest from said $20,000 be paid to him; and also the interest on said sum annually thereafter, until he arrives at the age of thirty years; at which time one half of the $20,000 is to be paid over to him, and $2,000 each year thereafter, together with all interest earned, until.the balance of said $20,000 be paid to him; unless the payment of such principal sum is defeated by his failure to perform the conditions therein provided, which will now be considered. Such trusts were in contemplation of the statutes, and hence permissible, even as to real estate. Sec. 2081, R. S.; Scott v. West, 63 Wis. 561. They were certainly permissible as to personal property. The bequests were vested upon the principles stated, and hence not subject to the doctrine of perpetuities or remoteness. s

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. Dec. 107, and notes; Crawford v. Thompson, 91 Ind. 266; S. C. 46 Am. Rep. 598.

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 entitled to receive any portion of my said residuary estate; and in that case a declaration in writing signed, by my said executors, or the survivors of them, of their, her, or his dissatisfaction with him, shall be conclusive evidence that he is not to receive any portion thereof, and the share to which he would otherwise be entitled shall thereupon go to, and be distributed among, my other children in equal shares.” The executors who had qualified, certified that Andrew had not conducted himself to their satisfaction, and he made no denial of his misconduct. The condition was held valid.

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.

Here the principal snm bequeathed is to remain in the possession of the executors until the legatee becomes thirty years of age. His right to it at that time, and thereafter, is made dependent upon his being of good moral character and having in the mean time learned some useful trade, business, or profession, in the judgment of the executors. Without committing ourselves to the doctrine of all the cases cited, especially such as may be regarded as touching matters of conscience, we must hold that the clause in question is capable of performance bjr any person of ordinary intelligence, and not contrary to public policy. It is designed to put the beneficiary under wholesome .restraint. It is not in contravention of good morals, nor any law, nor any matter of conscience, but is promotive of good moral character. It is in no sense indefinite nor uncertain. It is left to' the determination of executors; but that does not give them the right to exercise an arbitrary power of exclusion, but only a reasonable exercise of judgment. Manifestly, the bequest to Hiram W. Morris is not to be held void on the ground of the probability or improbability of the contingency on which it is limited to take effect. Sec. 2050, R. S.; Scott v. West, 63 Wis. 595. The condition must therefore be held legal and binding.

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 ” generally. ' An elaborate argument was made by counsel to the effect that although, a bequest for such charitable-purposes generally might have been carried into effect in England under ch. 4,43 Eliz., yet ¡that it cannot be carried into effect ih this state, for thé reason that that - statute, and all other English statute,?, were expressly repealed by our Territorial Statutes of 1839, p. 407, sec. 8. It is said that the numerous references to such English statutes as being .in force in this state, in the decisions of this court, are all erroneous, and made through inadvertence. The conclusion we have reached in this case renders it ■ unnecessary to determine that question here; but, in view of the discussion on both sides, it may not be out of place to make a few general observations in regard to it.

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-ner, 40 Wis. 238, Heiss v. Murphey, 40 Wis. 276, and Dodge v. Williams, 46 Wis. 70, the cy pres feature of the statute of Elizabeth was never in force in this state for another reason. By that statute it was made lawful for the “ Lord Chancellor, as keeper of the great seal, ... to authorize four or more persons,” in case of such general bequest, to devise and carry into execution a charitable scheme of the character indicated in the act. 2 Stats, at Large, 108. That was a prerogative power, exercised by the keeper of the great seal as the representative of the king, and not by him sitting merely as Chancellor. But the courts of this state, as held in the above cases, have no such prerogative jurisdiction, but “ only a strictly judicial power.” But in so far as that statute was merely confirmatory of such powers exercised by the Chancellor as were strictly judicial, it became, by judicial construction, interwoven in, and a part of, the common law of England, and to that extent is in force here. Vidal v. Girard’s Ex’rs, supra; Howard v. Am. P. Soc. 49 Me. 288; Shields v. Jolly, 1 Rich. Eq. 99; S. C. 42 Am. Dec. 349; Derby a. Derby, 4 R. I. 436; Ex’rs of Burr v. Smith, 1 Vt. 241; McAllister v. McAllister’s Heirs, 46 Vt. 212; Fontain v. Ravenel, 17 How. 385 et seq.; Ould v. Washington Hospital, 95 U. S. 303; Going v. Emery, 16 Pick. 101; S. C. 26 Am. Dec. 645; State v. Griffith, 2 Del. Ch. 392; Miller v. Chittenden, 2 Iowa, 369 et seq.; Williams v. Williams, 8 N. Y. 525; Treat’s Appeal, 30 Conn. 113; Williams v. Pearson, 38 Ala. 299.

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 charitable purposes ” at large is too indefinite and uncertain to be so carried into execution, under the rulings of this court in the cases cited, and hence that alternative must be held to be void for uncertainty. To the same effect, Bridges v. Pleasants, 4 Ired. Eq. 26; S. C. 44 Am. Dec. 94; Nichols v. Allen, 130 Mass. 211; Prichard v. Thompson, 95 N. Y. 76; Fairfield v. Lawson, 50 Conn. 501; S. C. 47 Am. Rep. 669; Fontain v. Ravenel, 17 How. 385 et seq.

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-eludes such of his blood relations as should then be in need, or not in very comfortable circumstances, and would take by descent under such other circumstances. Upon such relatives as should come within such description the executors were directed to bestow the bequest therein referred to, as to them might seem fit and proper. The limitation to such needy relatives, and those not in very comfortable circumstances, makes the bequest charitable in its purpose. Edge v. Salisbury, supra; Brunsden v. Woolredge, supra; Isaac v. Defriez, supra; Widmore v. Woodroffe, supra; Mahon v. Savage, 1 Schoales & L. 111; Attorney General v. Duke of Northumberland, L. R. 7 Ch. Div. 745; Hesketh v. Murphy, supra; State v. Griffith, supra; Attorney General v. Price, 17 Ves. Jr. 371. It is moreover sufficiently definite and certain to be carried into execution. Ibid.; Beardsley v. Selectmen, (Conn.) 3 Atl. Rep. 557; Quinn v. Shields, 62 Iowa, 129; Sowers v. Cyrenius, 39 Ohio St. 29; De Camp v. Dobbins, 29 N. J. Eq., 36; Gray’s Rule against Perpetuities, secs. 683-685. Especially is this so where, as here, the bequest is charitable in its object, and to trustees for the benefit of a class with limited discretionary powers of selection. State v. Griffith, supra; Ex parte Lindley, supra; Nash v. Morley, 5 Beav. 177; Treats Appeal, 30 Conn. 113; Birchard v. Scott, 39 Conn. 63; Beardsley v. Selectmen, supra; Hesketh v. Murphy, supra; Miller v. Atkinson, 63 N. C. 537; McAllister v. McAllister's Heirs, 46 Vt. 272; Shotwell v. Mott, supra; Power v. Cassidy, 79 N. Y. 602; Saltonstall v. Sanders, 11 Allen, 446; Shields v. Jolly, supra; Goodale v. Mooney, 60 N. H. 528; S. C. 49 Am. Rep. 334; Derby v. Derby, 4 R. I. 414; Ould v. Washington Hospital, 95 U. S. 303; 2 Perry on Trusts, sec. 732.

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 of Durham, 9 Ves. Jr. 399, S. C. 10 Ves. Jr. 521, it was simply held that a bequest in trust for such objects of benevolence and liberality as the trustee in his own discretion should most approve, could not be supported as a charitable legacy, and was therefore held in trust for the next of kin. There was no alternative bequest. It failed because it was not a charitable bequest. Here it is a charitable bequest, and for the next of kin. In Thomson v. Shakespear, 1 De Gex, F. & J. 399, the gift was to be laid out “ in forming a museum at Shakespear’s house, in Stratford, and for such other purposes as my said trustees in their discretion shall think fit and desirable for the purpose of giving effect to my wishes.” There was no alternative presented. It was held, in effect, that the bequest for the museum could not be sustained as a gift “for the benefit of private persons,” and. that the last clause, though general and discretionary, was so connected with the museum as to indicate the same general purpose, and hence could not be sustained as a charity. Nichols v. Allen, 130 Mass. 211, is to the same import. In Kendall v. Granger, 5 Beav. 300, there was a bequest of personalty to be “ applied for the relief of domestic distress, assisting indigent but deserving individuals, or encouraging widertahings of general utility,” and the bequest was held void because the last alternative was not necessarily charitable. To the same effect was Norris v. Thomson's Ex'rs, 19 N. J. Eq. 307. The same principles are sanctioned in 2 Perry on Trusts, sec. 711, and cases there cited. Here both alternatives are charitable in their objects, and hence sustainable as such, and therefore the case is distinguishable from those cited in which one of the alternatives was not charitable.

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 executors in aid or encouragement of charitable purposes; and if, in their judgment, there should be sufficient amount of said surplus, then he recommended that the same should be used to establish a school in Omro, or some place in Winnebago county, “ for the education of young persons in the domestic and useful arts.” We have already .seen that a bequest for “ charitable purposes,” standing alone, is too vague and indefinite to be carried into execution. This, as we have noticed, is upon the theory that courts are confined to the exercise of judicial powers, and hence have no authority to devise a particular scheme or plan of charity. But here the general words are followed by others indicating a particular scheme or plan for the expenditure. What effect is that fact to have upon the validity of the bequest? In Thomson v. Shakespear, supra, the general words Avhich might otherwise have been construed to be charitable were restricted, by the words which preceded them, to the Shake-spear premises. “ It is a universal rule of construction, founded in the clearest reason,” said Black, C. J.,- “that general words in any instrument or statute are strengthened by exceptions and weakened by enumeration.” Sharpless v. Mayor, 21 Pa. St. 161. That rule has been applied by this court. Wis. Cent. R. Co. v. Taylor Co. 52 Wis. 90, 91. Thus, according to Lord Bagou, “ all words, whether they be in deeds or statutes, or otherwise, if they be general, and not express and precise, shall be restrained unto the fitness of the matter and the person.” Broom’s Leg. Max. 646. See, also, Thorpe v. Thorpe, 1 Ld. Raym. 235; Moore v. Magrath, Cowp. 9; Roe v. Vernon, 5 East, 51; Morrell v. Fisher, 4 Exch. 591; Wood v. Rowcliffe, 6 Exch. 407.

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 charities. De Camp v. Dobbins, 31 N. J. Eq. 671. So, it has been heid in this state that where a power of attorney is given for a particular purpose, general words therein are not to be construed at large, but merely as giving general powers for carrying into effect the special putpose for which the power was given. Rountree v. Denson, 59 Wis. 522. It is now universally admitted that in construing a will the rule is to read it in the ordinary and grammatical sense of the words employed, unless some obvious absurdity, or some repugnance or inconsistency with the declared intentions of the testator, to be extracted from the whole instrument, should follow from so reading it. “ Then the sense may be modified, extended, or abridged, so as to avoid those consequences, but no further.” Abbott v. Middleton, 7 H. L. Cas. 115, and cases there cited. “ Quite consistently with this rule, words and limitations may be supplied or rejected, when warranted by the immediate context or the general scheme of the will, but not merely on a conjectural hypothesis of the testator’s intention, however reasonable, in opposition to the plain and obvious sense of the instrument.” Ibid.; Thellusson v. Rendlesham, 7 H. L. Cas. 494; In re Northern's Estate (Salt v. Pym), L. R. 28 Ch. Div. 157; Scott v. West, 63 Wis. 551, 552.

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, as we have seen, the court is powerless to devise one. It follows that the intention of the testator, as expressed in. that paragraph of the will, is to be wholly defeated, unless we construe the word “recommend.” to mean something more than is ordinarily implied by it; and, in view of the context, and the authorities cited, we think we may give it the meaning of command or direction to use such surplus to establish the school .in the event indicated. Knox v. Knox, 59 Wis. 172.

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. .

9. May the establishment of such a school be properly regarded as a charitable purpose ? In Kendall v. Granger, supra, it was said by Lord Langdaue, M. R., that a charitable purpose “ must be either one of those purposes denominated charitable in the statute of Elizabeth, or one of such purposes as the court construes to be charitable by analogy to those mentioned in that statute.” Among the “ purposes denominated charitable” in that statute were gifts for “relief of aged, impotent, and poor people; ” and for “ schools of learning, free schools, . ... scholars in universities; . . . education and preferment of orphans; . . . aid and help of young tradesmen, handicraftsmen,” etc. 2 Stats, at Large, 108, ch. 4. So, according to Mr. Perry, charitable trusts include all gifts in trust for educational purposes in their ever-varying .diversity, as well as gifts for the relief and comfort of, the poor, the sick, and the afflicted. 2 Perry on Trusts, secs. 687, 697. In Vidal v. Girard, supra, it was held, in effect, that donations for the establishment of colleges, schools, and seminaries of learning, and especially such as were for the education of orphans and poor scholars, were charities, in the sense of the common law. Besides, it is to be a literary corporation, which, as well as charitable corporations, is excepted from the operation of the statute. Sec. 2039, R. S.; Santa Clara F. Academy v. Sullivan, supra. Unquestionably, the purpose of establishing “ a school in Omro, or some place in Winnebago county, Wisconsin, for the education of young persons in the domestic and useful arts,” was a charitable purpose, within the judicial sense. Treat's Appeal, supra; McAllister v. McAllister’s Heirs, supra; Craig v. Secrist, supra. Especially is this so, since there is no restriction or limitation as to the class of young persons to be thus educated. In other words, it is to be a public school of the character indicated.

10. The scheme for using such surplus in the establishment of such school is, upon the principles already stated, sufficiently definite and certain to be carried into execution in the event named, and must therefore be regarded as valid. If such residue should of itself "be insufficient for the purpose of fully establishing such school, and such school can be established by the use of such residue and other funds contributed from other sources, under the charge and management of a proper corporation organized for the purpose, then we see no valid reason why such residue may nqt be so used in the establishment of such school. Of course, if such residue should, in the opinion of the executors, be insufficient of itself to establish such school, and sufficient funds from other sources are not secured, then such surplus would go to the persons entitled under the statutes.

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.

Tbe costs and. disbursements of all parties in this court and the circuit court are payable out of the estate. The county court will make such allowance to the respective parties out of the estate for counsel fees (including the service of E. R. Hicks) as, in the exercise of a sound discretion, may be just.1 Their services have furnished substantial aid in reaching, as we trust, correct conclusions upon the several and intricate questions involved.

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.

Case Details

Case Name: Webster v. Morris

Court Name: Wisconsin Supreme Court

Date Published: May 27, 1886

Citation: 28 N.W. 353

Court Abbreviation: Wis.