Maxcy v. City of Oshkosh

• Decision Date: 06 December 1910
• Parties: MAXCY v. CITY OF OSHKOSH ET AL.
• Court: Wisconsin Supreme Court

144 Wis. 238

128 N.W. 899

MAXCY

v.CITY OF OSHKOSH ET AL.^d1

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Warren G. Maxcy against the City of Oshkosh and others. From a judgment of dismissal, plaintiff appeals. Affirmed.

On December 31, 1907, Helen A. Beach, a resident of the city of Oshkosh, died leaving a will, which was thereafter duly admitted to probate. The twentieth paragraph of such will reads as follows: “It was the desire of my husband, Orville Beach, as expressed to me in the later years of his life, that after making provision for his relatives and those having a claim upon his bounty the remainder of his property should be given to the city of Oshkosh, Wisconsin, in trust, for the purpose of founding an institution in this city in which the coming generations might be taught sound business principles, be fitted for manufacturing and business careers, and domestic duties. On or about the 25th day of August, 1900, my husband began the preparation of a will, but owing to the fact that he had not decided upon the exact form of such charity, at the time of his death the same instrument was uncompleted. To carry out the known wishes and desires of my said husband, I give, devise and bequeath to Charles Schriber and George Hilton, of the city of Oshkosh, Wisconsin, and to their successors in trust all the rest, residue and remainder of my property, real, personal and mixed, wheresoever located, to have and to hold the same in trust for the uses and purposes following, to wit: Founding, preparing, constructing and maintaining perpetually a manual training school, with the appurtenances and all things appertaining thereto, and the necessary buildings and premises, and with the necessary appurtenances and equipments, in the city of Oshkosh, Winnebago county, Wisconsin. The object of the school to be the teaching of cooking, sewing and household economy to girls, and the teaching of all things of mechanical and other technical work to young men, and to teach to both girls and boys such things as are usually taught in modern manual training schools, and to teach such things as the progress of time develops should and ought to be taught in a manual training school; but this gift, grant, devise and bequest is made upon the express condition that within three (3) years after my decease, the said city of Oshkosh, the citizens thereof or other persons or parties or any or either or all thereof, shall raise, grant, give and donate to the city of Oshkosh, Wisconsin, for the purposes aforesaid, the sum of fifty thousand dollars ($50,000.00), when said sum of fifty thousand dollars ($50,000.00) shall be so raised and donated as aforesaid to the said city of Oshkosh, then all the rest, residue and remainder of my estate, of every name and nature, so given to my said trustees, together with all additions thereto and increase thereof, shall be conveyed, assigned, transferred and set over absolutely, by my said trustees, by necessary and proper instrument of transfer to the said city of Oshkosh, or any lawful trustees by said city of Oshkosh, lawfully selected, the whole of such fund (except so much thereof as may be necessary to purchase a suitable site and to erect suitable buildings for such manual training school) and the income thereof shall be a perpetual fund, to be used and enjoyed by the said city of Oshkosh, or trustees aforesaid, perpetually, to provide, support and maintain a manual training school with all the appurtenances and equipment appertaining thereto, in the said city of Oshkosh, Wisconsin. This gift, grant, devise and bequest is made upon the further express condition that the said school shall be named and perpetually known as the ‘Orville Beach Memorial Manual Training School of the City of Oshkosh,’ and that a tuition fee shall be charged, which in the judgment of the city of Oshkosh, or trustees appointed by the said city of Oshkosh, shall be sufficient, together with the income of the aforesaid fund, to perpetually properly maintain said school. My said trustees shall forthwith, upon my decease, convert all of my real estate into personal property,and it is my intention that for the purpose of the construction of this gift and donation, all of my property shall be deemed in law personal property. My said executors are hereby authorized and empowered to bargain, grant and convey any and all real estate that I may own at the time of my decease, and to make, execute and acknowledge the forms of conveyance necessary in that behalf, with or without covenants of warranty. If either of my aforesaid trustees shall refuse to act, resign, die or become incapacitated to act, all the provisions, rights and authority hereby conferred and imposed upon my trustees shall survive, belong and be imposed upon the survivor thereof with full power and authority in the premises. If, by refusal, death, resignation or incapacity to act, there shall be a vacancy as to all of said trustees, or none to act, the circuit court of Winnebago county, Wisconsin, shall have power to appoint and select a trustee or trustees to follow, carry out and execute the aforesaid provisions of this will, as aforesaid. This gift, grant, donation, devise and bequest shall not be vitiated, null or void, because the said city of Oshkosh, Wisconsin, at the time of my decease, shall not have the power to accept or carry out the said donation, if it shall acquire or obtain such power within three years after my decease, and before the transfer is made by said trustees of said property and the income as aforesaid. The said city of Oshkosh shall be responsible for the faithful execution of said trust and property, proceeds, fund and income hereby donated, and may, if deemed advisable, execute and carry out the same by trustees legally selected, but the city of Oshkosh shall be responsible for the acts of said trustees. Before my said trustees shall so transfer said property, proceeds, income and increase as aforesaid, the said city of Oshkosh, by resolution or ordinance of its common council by a vote of a majority of all its members, shall accept and agree faithfully to carry out and execute the conditions hereof and of said trust. It is my desire that said manual training school building shall be of a substantial nature and character and shall be constructed of Lake Superior brown stone or other stone of equal quality. My said trustees are hereby authorized and empowered during said three years, or until said sum of fifty thousand dollars ($50,000.00) shall have been raised and donated as aforesaid, to invest the property hereby given them in trust as they may deem best. In case of failure to raise the sum of fifty thousand dollars ($50,000) as aforesaid, within three years, then and in that case the said property and the whole thereof is to be paid, transferred and assigned absolutely to Clayton W. Finch, of Port Chester, New York, Charles T. Beach of Sandy Hill, New York, Charles B. Cole of the city of Oshkosh, Wisconsin, Kathryn Cool of Saratoga Springs, New York, and Louis B. Thompson of New York City, and to their heirs and assigns absolutely and forever, in equal shares, to each one-fifth (1-5) thereof.”

After paying the debts and specific legacies provided for in the will, the residue of the estate to be devoted to the purposes provided for in the twentieth paragraph of the will amounts to between $130,000 and $135,000. The common council of the city of Oshkosh passed a resolution accepting the gift and the terms under which it was made, and issued and sold its bonds to the amount of $50,000 to provide the necessary funds to make the gift available to the city. The plaintiff brings this action as a taxpayer, in his own behalf as well as in behalf of taxpayers generally, to restrain the city of Oshkosh from issuing or selling bonds to make up the fund of $50,000 provided for in the will of Mrs. Beach, and also to restrain the city from using the proceeds of any bonds that might be sold for any such purpose. Application was made to the court for a preliminary injunction restraining the defendant from selling or negotiating the bonds until the suit was finally determined. The court denied relief by way of a preliminary injunction. The case was tried on its merits, and judgment was rendered in favor of the defendants, dismissing the complaint. From such judgment and from the order refusing a temporary injunction, the plaintiff appeals.

C. D. Jackson, J. C. Thompson, A. E. Thompson, and E. M. Smart, for appellant.

Fred Beglinger, George Hilton, and Charles Barber, for respondents.

BARNES, J. (after stating the facts as above).

The questions presented on this appeal are numerous and important, and some of them are fraught with difficulties. The briefs filed with us contain over 550 pages of printed matter. Two days were consumed on the argument, and on a reargument of the case which was ordered, and, if the court is not sufficiently informed to reach a correct conclusion, it is not the fault of the counsel in the case, who, from their respective standpoints, have displayed commendable diligence and learning in presenting to the court the facts and the law involved. The appellant contends that the judgment and order appealed from should be reversed on the following grounds: (1) The will created a charitable trust and must be construed with reference to the duties, obligations, and liabilities surrounding such trust and imposed on the trustees thereof, and the city could not act as trustee of the trust attempted to be created. (2) The will did not contemplate the erection of such a school building and the maintenance of such a school as the city of Oshkosh was authorized by law to build or maintain, and therefore the taxpayers could not be compelled to contribute any part of the fund provided by the will. (3) The city of Oshkosh had no power to...