Berry's Estate, In re

Decision Date07 January 1966
Citation29 Wis.2d 506,139 N.W.2d 72
PartiesIn re ESTATE of Earl E. BERRY, Deceased. The BOARD OF TRUSTEES OF BELOIT COLLEGE et al., Appellants, v. Frank FARROW, Special Trustee, et al., Respondents.
CourtWisconsin Supreme Court

Caskey & Collins, Beloit, E. L. Wingert, Madison, of counsel, for appellants.

William A. McClain, City Sol. of City of Cincinnati, Taft, Stettinius & Hollister, John A. More, Cincinnati, Ohio, of counsel for University of Cincinnati.

Bronson C. La Follette, Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., Madison, for the State.

Blakely, Long, Grutzner & Jaeckle, Beloit, for respondents.

HEFFERNAN, Justice.

The county court considered the will ambiguous and therefore took testimony of Mr. Farrow in an attempt to determine the dominant purpose of Earl E. Berry. It then proceeded to apply the doctrine of cy pres to carry out what it considered to be the testator's intent.

It is, however, error to construe a will to find an unexpressed intent of the testator when the terms of the will are unambiguous on their face and clearly express the testator's purpose. This court has stated the rule in In re Moran's Will (1903), 118 Wis. 177, 196, 96 N.W. 367, 372, 373:

'Many * * * rules might be referred to, to which we could resort in solving ambiguities. But at the outset we must have ambiguity before we can enter upon the field of interpretation or construction. Too often that fundamental principle is not given its proper significance, and ambiguities are created by construction when there are none in fact * * *.' 1

A careful perusal of the will by this court reveals no ambiguity in the clauses that need to be put into operation. While there might have been some ambiguity in the method to be employed by the Beloit Foundation in administering the loan fund, it is clear from the record that the Foundation declined to accept that portion of the bequest. Whatever uncertainties may have arisen under another set of facts and circumstances if of concern neither to this court nor the court below. The record shows that at the initial hearing on this matter, the Foundation had not yet declined to administer the loan fund, but it did so shortly thereafter. Bearing this fact in mind, we are confronted with no ambiguity.

The Foundation clearly renounced what the testator denominated as the 'Earl E. Berry Student Loan Fund.' In that contingency, which is not a reality, the will clearly, plainly, and unambiguously gives that portion of the trust estate to the colleges. The will provided that if the Foundation should decline the gift that:

'* * * said Earl E. Berry Student Loan Fund * * * shall be turned over one-half (1/2) to Beloit College * * * and the other one-half (1/2) to the University of Cincinnati * * * to be used by each of said institutions as a loan fund for the assistance of their respecive students * * *.'

It would have been difficult to have expressed the testator's obvious intent more clearly than did the able scrivener of the above paragraph. It is plain on the face of the will that the bequest was to go in toto to the Beloit Foundation. Two-thirds were to be administered by it as a loan fund, and one-third for such charitable purposes as it might select. The testator, however, wisely foresaw the possibility of the Beloit Foundation not being able to or not wishing to accept all or part of the bequest.

It is also clear that the testator elected to vary the emphasis of his bounty depending upon who was administering the loan fund. In referring to the situation where the Foundation was administering the fund, he stated that sums were to be loaned 'to worthy persons, preferably residents of Beloit, Wisconsin or Rock County, Wisconson, to assist them in obtaining an education, especially at Beloit College and the Engineering School of the University of Cincinnati.'

Under the second contingency, the one that in fact occurred, the funds are to be given to the educational institutions 'for the assistance of their respective students, preferably students from Beloit, Wisconsin, and Rock County, Wisconsin.' (Emphasis supplied)

It is undeniable that the intent the testator expressed it the Foundation declined the fund, was to give the fund in equal shares to the colleges as loans to their students, giving preference, however, to students from the city and county of the testator's residence.

This change of emphasis resulting from the happening of a foreseen contingency does not create an ambiguity or even an inconsistency in the will. The alternate provisions are to apply only in the event of distinct occurrences.

Nor is there occasion here to apply the doctrine of cy pres. That rule of construction is open to the court only in the event circumstances have made it impossible to carry out the testator's charitable intent. This court has defined the principle thus:

'Very briefly stated, when a charitable purpose cannot be fulfilled according to its terms, equity will attempt to do the next best similar charitable thing. This is the cy pres doctrine.' Saletri v. Clark (1961), 13 Wis.2d 325, 329, 108 N.W.2d 548, 550.

This court in Re Estate of Bletsch (1964), 25 Wis.2d 40, 45, 130 N.W.2d 275, expressly approved the application of the cy pres doctrine upon appropriate occasions, but as set forth in the Restatement, 2 Trusts, page 1208, sec. 399, cy pres is applicable only where the particular charitable purpose 'becomes impossible or impracticable or illegal to carry out the particular purpose * * *.' The testator's wishes are then carried out as nearly as may be possible (cy pres comme possible).

In the event that it is possible for the particular purpose to be carried out, the doctrine is not applicable.

'In such case the court will compel the trustees to carry out the particular purpose even though in the opinion of the court a more useful disposition of the property might be made.' Restatement, 2 Trusts, p. 1218, sec. 399.

In the instant case the doctrine cannot be applied, because it is perfectly possible and practicable to carry out the wishes of the testator in the fashion that he intended. The mere fact that the Beloit Foundation declined to administer the entire fund did not make it impossible for the testator's wishes to be realized. Earl E. Berry, as an alternative in this contingency directed that the loan fund was to be given to the colleges to be used as a loan fund. Cy pres is not applicable where the will provides for a gift over or an alternative disposition upon the impossibility of carrying out the primary method of effecting the testator's intent. Only when the alternatives posed by the testator are exhausted and each of them has proved to be impossible, illegal, or impracticable, need the court resort to cy pres. In the absence of such necessity, it is error to invoke the doctrine--to do so would permit a court to substitute its judgment and discretion and dispositive intent for that of the testator. The doctrine of judicial cy pres can be invoked only for the purpose of effecting the testator's intent, not to frustrate it.

The bequest to Beloit College and to the University of Cincinnati clearly has a legal purpose, perfectly possible to put into effect. The doctrine of cy pres cannot be used to prevent the transfer of two-thirds of the trust residue to the colleges in equal shares. They are both educational institutions, having the grant in their charters of specific corporate powers to accept and administer such gifts. Neither institution has declined the gift nor an interest in the fund. Their acceptance of the bequest in the absence of an express renunciation is to be presumed. In re Estate of Mead (1938), 227 Wis. 311, 325, 277 N.W. 694, 279 N.W. 18, 116 A.L.R. 1127. They are entitled to receive the funds as designated by Earl E. Berry.

The trial court arrived at the additional conclusion that circumstances 'have so changed since the execution of the will by the testator so as to render impracticable and inexpedient the granting of loans,' and it therefore decreed that the fund was to be used for scholarships instead. The record is devoid of any evidence that would support this conclusion. The court also approached this problem by assuming that the funds were to be used only by students from Rock county, and therefore concluded that they could not be sufficiently utilized at those colleges. We have concluded above that the funds need not be limited in their use to Rock county students. They are limited to use by students at Beloit College or at the University of Cincinnati, with preference being given to Rock county students who may in the future attend those schools. The number of Rock county students at those institutions now or in the future is entirely immaterial. There is no evidence to show that these funds can or will not be utilized as the testator intended. There is, in fact, evidence to show that both institutions need additional funds for student-loan purposes. We cannot conclude as a matter of judicial notice that there is evidence of such a superfluity of funds available for loans to students as to make this method of student aid obviously unneeded, ineffectual, and...

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    ...applicable only where it becomes impossible or impractical or illegal to carry out the particular charitable purpose. In re Berry's Estate, 29 Wis.2d 506, 139 N.W.2d 72, 77. A devise to a society or organization existing for charitable purposes without a declaration of the use to which the ......
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  • A Will for Willa Cather.
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    • Missouri Law Review Vol. 83 No. 3, June 2018
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    ...found that the facts failed to demonstrate that student loans had become impractical. Id. at 313; accord, e.g., In re Estate of Berry, 139 N.W.2d 72, 78 (Wis. 1966) (declining to apply cy pres under similar facts). The Supreme Court of Wisconsin Perhaps greater social good can be accomplish......

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