Comstock v. Boyle

• Decision Date: 06 December 1910
• Citation: 144 Wis. 180,128 N.W. 870
• Parties: COMSTOCK v. BOYLE ET AL.
• Court: Wisconsin Supreme Court

144 Wis. 180

128 N.W. 870

COMSTOCK

v.BOYLE ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Fond du Lac County Court; A. H. Reid, Judge.

Action by E. G. Comstock against John T. Boyle and others, impleaded. Judgment for plaintiff, and defendants appeal. Affirmed.

In 1865 Horatio Ward, an American banker residing in London, England, made a bequest “to the various asylums or homes that have been formed or may be formed within a year throughout the loyal states for the orphans by the late war for the restoration of the Union.” Among other provisions his will contained this: “I judge that the interest, only for a time, will be used, and that the bequest be so managed as to give the orphans, as they become of age, a sum of money to fit them out in life and thus gradually extinguish the fund--this course would be in exact accord with my wishes.” In 1867 the testator died. By an act of the Legislature, approved March 31, 1866, the state of Wisconsin established the Soldiers' Orphans' Home of Wisconsin, and in 1871 it received from the Ward bequest the sum of $25,554.79. Some considerable time after Mr. Ward's death, Miss Caroline E. Smith, formerly of Waukesha, died in Chicago, leaving by her will $2,000 to the trustees of the Wisconsin Orphans' Home for the benefit of the children. In 1872 this bequest was paid to the trustees and deposited with the Ward fund, and thereafter a separate account was kept in the books of the state treasurer under the head of the “Ward and Smith Bequests Fund.” It is still so kept. The purpose of the testator, Ward, that the fund should be extinguished by distribution among the orphans to fit them out in life, was partly executed in 1874, when the trustees issued to each of them a certificate of $45. But, owing to the fact that all did not call for their certificates, there was quite a balance left in 1877, and a second series of certificates for $10 each was issued. This distribution also failed to completely exhaust the fund, and in 1887 there was still a balance left. The Home was closed in 1875, and pursuant to chapter 306, Laws 1875, the real estate was transferred to the Regents of the State University; but the trustees still continued to act, and in 1887 it came to their attention that one of the beneficiaries was in destitute circumstances. Their action relative thereto is stated as follows in their final report: “During 1887 it came to the knowledge of the board that one of the boys from the Home, named Charles A. Randall, residing in the city of Fond du Lac, who had a wife and two children, was, on account of poor health, in a state of destitution, and that, unless help was given him, he would probably become dependent on public charity. This boy suffered while at the Home a very severe illness, barely escaping death, in consequence of which his physical development was arrested. He was dwarfed in stature and not strong. In competition in the field of labor, with strong full-grown men, he was crowded to the wall. He was industrious and fond of gardening--was somewhat skilled in the art. So from the Ward and Smith fund we appropriated a sum sufficient to purchase within the corporate limits of Fond du Lac three acres of ground fenced, for a truck garden. One of the members of the board purchased the lumber and superintended the erection on the ground of a warm, comfortable shanty house and small shed barn, costing $160; we also purchased for him a cow and put him in possession of the premises and told him that he could occupy them for as long a time as he wished without cost except taxes. The whole establishment costs $700. But that there might be no temptation presented to him to mortgage or sell the place we placed the title in trust in the state of Wisconsin. For a few years he prospered and was happy, cultivating his truck garden. But subsequently he was taken sick and died; and his widow with her children abandoned the place in order to go to her people, who lived in the northwestern part of the state.”

This land in question was taxed in 1887, but it does not appear whether the tax was paid or redeemed. It was again taxed in 1888, sold at the tax sale of 1889 to the county, and redeemed from the county by C. K. Pier April 4, 1892. It was not taxed in 1889, 1890, nor 1891; but in 1892 it was trebly assessed for the years 1890, 1891, and 1892, and the tax levied and the property sold therefor at the tax sale of 1893 to Kate Pier. In 1896 the tax certificate was, on the petition of Kate Pier setting forth that the property belonged to the state of Wisconsin and was not subject to taxation, canceled by order of the county board for that reason. The land was, nevertheless, again taxed in the years 1893, 1894, 1895, and 1896 and sold at the annual tax sales succeeding the same years, to George Radford, and thereupon, in due time, tax deeds based upon said tax sales were issued to said Radford and by him recorded. The land was taxed successively in 1897, 1898, 1899, and 1900, and the taxes were paid by George Radford. In 1901 the property was assessed to the state of Wisconsin as owner, but not sold. In 1902 and 1903 it was not assessed. By quitclaim deed dated March 17, 1904, George Radford conveyed this property to the plaintiff. On April 25, 1887, when one Mary A. Hamilton deeded this land in question to the state of Wisconsin in trust, she was the owner in fee thereof. Section 1 of chapter 375, Laws 1895, authorized Mr. C. K. Pier, the secretary of the board of trustees, to sell the...