Dodge v. Williams

• Decision Date: 14 January 1879
• Citation: 46 Wis. 70,50 N.W. 1103
• Court: Wisconsin Supreme Court
• Parties: DODGE ET AL. v. WILLIAMS ET AL.

46 Wis. 70

50 N.W. 1103

DODGE ET AL.

v.WILLIAMS ET AL.²

Supreme Court of Wisconsin.

Jan. 14, 1879.

Appeal from circuit court, Dodge county.

Action by one Dodge and others against John J. Williams and another, executors of the will of Rufus Dodge, deceased, and others, to construe the said will, and declare certain bequests therein void. From a judgment holding the will valid in all its provisions plaintiffs appeal. Affirmed. The opinion in this case on rehearing is reported in 1 N. W. Rep. 92.E. P. Smith, and J. J. Dick, ( F. W. Cotzhausen, and G. W. Hazelton, of counsel,) for appellants, to support the proposition that the devises or bequests to the three colleges and the female seminary are void, because the beneficiaries are not definitely ascertained, cited Chittenden v. Chittenden, 1 Amer. Law Reg. 538; Bascom v. Albertson, 34 N. Y. 584, 586;Levy v. Levy, 33 N. Y. 97;Association v. Hart's Ex'rs, 4 Wheat. 1;Downing v. Marshall, 23 N. Y. 381; Beekman v. Bonsor, Id. 300, 306; Owens v. Society, 14 N. Y. 385;Holmes v. Mead, 52 N. Y. 332; Rose v. Rose, 4 Abb. Dec. 108; Phelps' Ex'r v. Pond, 23 N. Y. 77;Grimes' Ex'rs v. Harmon, 35 Ind. 205;Lepage v. McNamara, 5 Iowa, 124-145;Wheeler v. Smith, 9 How. 55;Wills v. Cowper, 2 Ohio, 124; Kelley v. Kelley, 25 Pa. St. 460; Zeisweiss v. James, 63 Pa. St. 465; Trippe v. Frazier, 4 Har. & J. 446;Dashiell v. Attorney General, 5 Har. & J. 392;Wilderman v. Baltimore, 8 Md. 551;Gallego's Ex'rs v. Attorney General, 3 Leigh, 450;Sanderson v. White, 18 Pick. 333;Miller v. Teachout, 24 Ohio St. 525.

Smith & Lamb, for respondents, in support of the proposition that the bequest is not invalid for uncertainty of the beneficiaries, and the language of the will designated the beneficiaries with clearness and certainty within the rules in such cases, cited O'Hara, Wills, 395; Perry, Trusts, §§ 66, 616, 698, 699, 710; 2 Redf. Wills, 402; Waller v. Childs, 2 Amb. 524; Bennett v. Hayter, 2 Beav. 81; Inglis v. Sailors' Snug Harbour, 3 Pet. 99, 112, 120;Perin v. Carey, 24 How. 467, 500-507;Fontain v. Ravenel, 17 How. 369, 384;Ould v. Hospital, 95 U. S. 303;Treat's Appeal, 30 Conn. 113;Chambers v. St. Louis, 29 Mo. 543;Williams v. Williams, 8 N. Y. 533;Owens v. Society, 14 N. Y. 380-403;Downing v. Marshall, 23 N. Y. 366;In re Taylor Orphan Asylum, 36 Wis. 534;Heiss v. Murphey, 40 Wis. 291. There being a sufficient and legal mode of rendering certain the final beneficiaries, the objection for uncertainty will not lie. Perry, Trusts, §§ 731, 732; 2 Redf. Wills, 535; McLain v School Directors, 51 Pa. St. 196; Zeisweiss v. James, 63 Pa. St. 465; Inglis v. Sailors' Snug Harbour; Perin v. Carey, and Ould v. Hospital, supra.

RYAN, C. J.

“Every sane man must be allowed to make his own contract as well as his own will,” says GIBSON, C. J. That great jurist plainly suggests that courts have no more authority to make wills for the dead than contracts for the living, according to judicial notions of fitness and propriety. Bash v. Bash, 9 Pa. St. 260. Breaking a will is very much like making one,--imposing upon the testator the statutes of descent and distribution against his solemn wish in dying. Perhaps courts have been quite too willing to do so. There is a vicious notion prevalent that any will not acceptable to the testator's next of kin may be broken in the courts upon very frivolous grounds. But every one should have the same power to dispose, by will, after his death, in accordance with his own wishes, of whatever he may leave behind him in his own sole right, as he had in life to dispose of it by contract or by gift. And it is as much the duty of courts to uphold and enforce his will after death, as to uphold and enforce his contracts made during life. Of course, devises and bequests, as well as contracts, may be void upon many grounds; but it is the policy of the law not to seek grounds to avoid either, but so to deal with both, if it can be done upon sound legal construction, as to uphold and enforce them. In some of its aspects this cause appears almost to have been argued as if it were the duty of the court to lean against bequests for charitable uses in favor of claimants under the statutes of distributions. From time immemorial the general inclination of courts of equity has been the other way. “Charity in thought, speech, and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory. * * * Charitable bequests are said to come within that department of human affairs where the maxim, ut res magis valeat quam pereat, has been and should be applied.” “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. * * * As Lord HARDWICKE said, ‘the bequest is not void, and there is no authority to construe it to be void, if by law it can possibly be made good;’ or, in other words, ‘there is no authority to construe it to be void by law if it can possibly be made good.’ ” Perry, Trusts, §§ 687, 709. And so it is the duty of this court to uphold the charitable bequests of the will in this case, if it can be done without violating any provision of statute or principle of law. But at the same time it is the duty of the court carefully to weigh the objections made against the bequests, and to give effect to any sufficient to render the bequests void in law.

After the payment of certain specific legacies in money, the testator gives the residue of his estate, real and personal, to his executors, upon trust to pay it over to four institutions of learning, in the proportions and manner directed by the will, for a specified charitable use. Some of the objections made are common to all the bequests; some are confined to one. These will be considered in their order. The argument was learned and able on both sides, and a great number of cases were cited on a subject which has been prolific of litigation. All the cases cited, and others, have been carefully considered; but it would be impracticable, without extending this opinion beyond reasonable limit, to review them all in detail. It is thought sufficient to give the conclusions of the court derived from them all, with occasional reference to some of them more directly in point.

1. Many charitable bequests have been defeated in the English courts under the statute of mortmain, (9 Geo. II., c. 36;) and some reliance appeared to be placed on the position that the bequests in this case were void under that statute. That statute has never been adopted or in force here. The last clause of the English statute excepts from its operation estates, real and personal, in Scotland; and it appears not to have extended to Ireland. Attorney General v. Power, 1 Ball & B. 145. It seems to have been a matter of some doubt how far the English statute could be held to have extraterritorial application. Campbell v. Radnor, 1 Brown, Ch. 271; Oliphant v. Hendrie, Id. 571; Curtis v. Hutton, 14 Ves. 537; Mackintosh v. Townsend, 16 Ves. 330; Attorney General v. Mill, 3 Russ. 328; Baker v. Sutton, 1 Keen, 224. But it does not appear ever to have been held to be in force in any of the British colonies. The question of the applicability of the statute of mortmain to the British colonies appears to have been first considered in Attorney General v. Stewart, 2 Mer. 143. Sir WILLIAM GRANT quotes and approves the language of Blackstone as “in a great degree applicable to any colony to which the laws of England may be extended.” “It hath been held that, if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony.” He then proceeds to consider the particular question, holding, for the reasons which he assigns, that the English statute of mortmain constituted no part of the law of the colony in question. “Whether the statute of mortmain be in force in the island of Grenada, will, as it seems to me, depend on this consideration: Whether it be a law of local policy adapted solely to the country in which it was made, or a general regulation of property equally applicable to any country in which it is by the rules of English law that property is governed. I conceive that the object of the statute of mortmain was wholly political; that it grew out of local circumstances, and was meant to have merely a local operation. It was passed to prevent what was deemed a public mischief, and not to regulate, as between ancestor and heir, the power of devising, or to prescribe as between grantor and grantee, the forms of alienation. It is incidentally only, and with reference to a particular object, that the exercise of the owner's dominion over his property is abridged. It is true that the disherison of lawful heirs is recited as one of the consequences of the unlimited power of devising to charitable uses, and heirs may consequentially be benefited by the prohibition. But generally to restrain the power of devising was not in the contemplation of the legislature. Heirs are as liable as before to be disinherited by will, provided the disherison be not in favor of the prescribed object. The thing to be provided was a mischief existing in England, and it was by the quality and extent of the mischief as it there existed that the propriety of legislative interference upon the subject was to be determined. The statute begins by referring to the ancient laws made against alienations in mortmain. None of the causes in which those laws originated had ever had an existence in the colonies. It then recites that this public mischief had of late greatly increased. There is locality in that assertion. It was in England that the...