Dodge v. Williams

• Decision Date: 14 January 1879
• Citation: 50 N.W. 1103,46 Wis. 70
• Parties: DODGE and others v. WILLIAMS and another, Executors, etc., and others
• Court: Wisconsin Supreme Court

50 N.W. 1103

46 Wis. 70

DODGE and others v. WILLIAMS and another, Executors, etc., and others

Supreme Court of Wisconsin

January 14, 1879

APPEAL from the Circuit Court for Dodge County.

On or about the 1st of July, 1873, Rufus Dodge died, testate, in the city of Beaver Dam in this state, being a resident of said city. His will, after certain bequests not important here, devised and bequeathed all the residue of his estate real and personal, to George H. Stewart, John J. Williams and A. Scott Sloan, "to have and to hold the same to them and the survivor of them, and the executor, administrator and assigns of said survivor," in trust for certain purposes, which are thus defined: "To hold, manage invest and improve the same at their discretion for and during five years after my decease, and, each and every year out of the proceeds and income of said residue, to pay to the trustees of the Wisconsin Female College at Fox Lake, Ripon College at Ripon, and Beloit College at Beloit, each the interest on the sum of five thousand dollars; and the remainder of the proceeds of said residue to reinvest to the best advantage in the discretion of the persons above named and at the end of five years from and after my decease, to pay and deliver to the trustees of the institutions above named, to each and every of them the full sum of five thousand dollars, to have and to hold the same to the said institutions and their respective successors and assigns, in trust, however, for the following uses and purposes, namely: to hold, manage and invest the same, and the annual income thereof to apply and use for the education and tuition of worthy indigent females; excepting, however, and I hereby direct, that the sum to be paid to Beloit College may, until said college shall provide for the education of females, be used and applied for the education and tuition and support of worthy indigent young men studying and attending at said Beloit College, for the ministry; and this provision and exception shall apply and govern as well the interest to be paid to said institutions by my said trustees, as the interest of the sum to be paid to the trustees of said institutions at the end of five years after my decease. It being my will and intention that all sums so given and paid to said institutions of learning shall never go into the general fund, or be applied for the general purposes of said institutions respectively, but shall forever be sacredly held, used and applied for the education and tuition of worthy indigent females, with the exception and qualification above provided as to Beloit College. . . . And as to the residue of my said estate which may be in the hands of my said trustees at the expiration of five years from my decease, the same shall be upon the following trusts, viz.: If, at the expiration of said five years, there shall be organized at the city of Beaver Dam an institution of learning for the education and training of females, of a character and organization commonly called and known as a female seminary, and to be devoted exclusively to the education, tuition and training of females in such branches, arts and departments as are usually taught in female academies and seminaries, and such institution shall have, at the end of said five years, bona fide subscriptions, pledges, bequests or cash to the amount of $ 20,000, paid, subscribed, donated or pledged to the maintenance and support of such a female school in the city of Beaver Dam (my said trustees to be sole judges whether said $ 20,000 is so paid, pledged, subscribed or donated), then my said trustees shall pay over and deliver to the trustees of said female school all the rest and residue of my said estate, to be by said trustees of said school held and applied, and the annual income of said residue to be used for the education and tuition of worthy, indigent females in said female school; and if at the end of said five years such school shall not be organized, or shall not have the said sum of $ 20,000 as above provided for, then my said trustees shall pay and deliver all the rest, residue and remainder of said estate to the trustees of said Wisconsin Female College, Ripon College and Beloit College, in equal parts, share and share alike, to be by the trustees of said institutions respectively held, used and applied as herein above directed." . . . The will then nominated the trustees before named, George H. Stewart, John J. Williams and A. Scott Sloan, as executors, and authorized them to sell and convey any and all real estate of the testator, and to execute conveyances thereof, in their discretion.

The will was duly admitted to probate, and letters testamentary issued to John J. Williams and A. Scott Sloan (George H. Stewart refusing to accept the trust); and said executors reduced all the real estate to money, paid all the specific legacies, debts, etc., and paid annually the interest on $ 5,000 to each of the three colleges named in the will; and when this action was tried, they had in their possession money and choses in action, belonging to said estate, exceeding in value $ 25,000.

Some time, apparently, in 1876 or 1877, the heirs-at-law of said testator brought this action, to which said Williams and Sloan as executors and trustees, the attorney general of this state, and the several colleges named in the will, were made defendants. After setting forth the facts, and alleging certain advice of counsel thereon, and the refusal of the executors to apply to the court for a construction of the will, they asked the court to determine whether any part of the will, as to any of the bequests, was void "for uncertainty of the devisees or beneficiaries thereof," or "as being for a charitable use or trust not recognized or upheld under the laws of this state," or "as being in contravention of the statute of perpetuities," or "because of uncertainty as to the beneficiaries therein named, or as to the manner or rule for ascertaining the same," or "because the alleged trust is not fully expressed or clearly defined upon the face of the said will," or "as being in trust for an unincorporated body;" whether the bequest in trust for a female seminary to be organized within five years from the decease of the testator is not void "as being to an association not in being, and with no provision for its being incorporated or authorized to receive or hold property;" and whether, if said last named bequest is void, the provision for paying the residue of the testator's property, included therein, equally to the three colleges previously named, is not also void.

The executors and the three colleges named in the will answered. The court found the facts substantially as above stated, and held the will valid in all its provisions. From a judgment in accordance with these determinations, the plaintiffs appealed.

Judgment affirmed.

For the appellants, there were briefs signed by E. P. Smith and J. J Dick as their attorneys, with F. W. Cotzhausen and G. W. Hazelton, of counsel, and oral argument by Mr. Smith and Mr. Dick. They contended, in substance, 1. That the will reposes a special trust and confidence in the three persons named as trustees, and confers a discretion to be exercised by the three, and not by a less number, except in the event of the death of one or more of them; and that the refusal of one of them to serve was fatal to the trust. Beekman v. Bonsor, 23 N. Y., 302; Fontain v. Ravenel, 17 How., U.S., 369; R. S. 1858, ch. 35, sec. 39. 2. That a disposition of property which contravenes the law against perpetuities, is invalid at the common law, whether the property be real or personal (1 Jarman on Wills, 4th Am. ed., 262; Levy v. Levy, 33 N. Y., 128-9); and that our statute on the subject should be held equally applicable to both kinds of property (Chipman v. Montgomery, 4 Hun, 739; Campbell v. Foster, 35 N. Y., 366, 371-2; Graff v. Bonnett, 31 id., 9-13, opinion of HOGEBOOM, J.); that charitable donations form no exception to the law against perpetuities, at least while they remain contingent and executory; and that the period of five years, during which the temporary trustees are directed to hold the property in this case, may involve more than two lives in being at the creation of the estate. Rose v. Rose, 4 Abb. Ct. of App., 111. 3. That the three colleges named in the will can take nothing under it, for lack of corporate power to do so. Counsel cited the charter of Beloit College, Laws of 1846, p. 103; that of the Wisconsin Female College, P. & L. Laws of 1855, ch. 16; and that of Ripon College, P. & L. Laws of 1855, ch. 40, amended by P. & L. Laws of 1864, ch. 220; and contended that the education of "worthy indigent females," as a distinct class separate from all others, and out of a fund which can be applied to no other use, but which, by the terms of the will, must be kept forever distinct from their general funds, is foreign to the purposes of those institutions as defined in their charters; and that, in the absence of any express provision authorizing them to hold and apply this property for the peculiar purpose named in the will, no such power can fairly be implied, not being necessary to, but rather inconsistent with, the purposes for which the institutions were created. Robertson v. Bullions, 11 N. Y., 252. They also contended that, if the charters of those colleges originally gave them power to take in perpetuity, they were so far repealed by the statute of uses and trusts. R. S. 1858, ch. 84. 4. That at least no devise of real property in trust is valid in this state, unless authorized by the statute of uses and trusts, ch. 85, R. S. 1858; that express trusts can be created only for some one of the purposes enumerated in sec. 11 of that chapter; that the trusts...