Gould v. Asylum

• Decision Date: 14 January 1879
• Citation: 46 Wis. 106,50 N.W. 422
• Parties: GOULD v. TAYLOR ORPHAN ASYLUM ET AL.
• Court: Wisconsin Supreme Court

46 Wis. 106

50 N.W. 422

GOULD

v.TAYLOR ORPHAN ASYLUM ET AL.¹

Supreme Court of Wisconsin.

Jan. 14, 1879.

Appeal from circuit court, Racine county. Affirmed.

Petition of John F. Gould, administrator of Abner Martin, against the Taylor Orphan Asylum and others, for the construction of a will, etc. Judgment for defendants. Plaintiff appeals.

Emerline A. Taylor died in 1866, possessed of property valued at about $340,000, and her will was admitted to probate, and letters testamentary issued to her executors. There were a large number of bequests and devises of land. The third item was as follows: “ Third. I give and devise unto Mrs. C. A. Dyer, Mrs. Margaret Perrine, Mrs. George Murray, Mrs. John F. Gould, and Mrs. John Tapley, of the county of Racine, state of Wisconsin, the sum of $30,000, to hold in trust to erect an orphan asylum in or near the city of Racine, in the county of Racine, Wisconsin, and to support the same. Said asylum to be open for the reception of all orphan children in said county, and such other poor, neglected, and destitute children as the managers, by law or by their rules, may agree to receive. Said trust fund to be paid to such asylum as soon as one shall be duly incorporated and legally empowered to receive and use said fund for the purposes above specified.” Following is the thirty-eighth item: “ Thirty-Eighth. All the rest and residue of my estate left after paying the expenses of administration I give and devise unto my said executors, Rhodes, Murray, and Kelley, (whether said estate shall consist of real estate, personal estate, or mixed, or wherever situate,) to hold in trust for said contemplated orphan asylum for said county of Racine; the principal to be kept invested in such manner as will pay a good interest, but not to be used for any purpose; the interest or income only to be used for the maintenance and support of said asylum; the same to be paid to said asylum by my said executors as hereinbefore directed. I also hereby authorize my said executors to sell, either at public or private sale, any or all of my real estate, upon such terms as they shall deem best, and execute suitable conveyances therefor, --such real estate as not herein specifically devised.” The trustees accepted the trust, and at their instance an act of the legislature was passed, (P. & L. Laws Wis. 1867, c. 340,) incorporating them under the name of the “Taylor Orphan Asylum.” On petition of the executors the court made an order authorizing them to pay all the legacies named in the will, except the residuary legatee, but no notice of the application or order was given. In 1877 the court confirmed the final accounting of the executors, and discharged them from their trust. Early in 1878, John F. Gould, as executor of Abner Martin, father and sole heir at law of Emerline A. Taylor, filed a petition, alleging that he was entitled to the property described in the third and thirty-eighth articles of the will; that no notice had been given to him or to the heirs at law of Abner Martin of the order distributing the estate until long after it was made. In May, 1878, the court vacated its order of final settlement, so as to allow John F. Gould, as administrator, to be made a party, and present his claims. Another order was made on the same day, adjudging that the Taylor Orphan Asylum was entitled to the legacies mentioned in the third and thirty-eighth items, and confirming the previous final order. On appeal from the county court, the circuit court affirmed the order. From the judgment of the circuit court Gould appeals.

S. B Van Buskirk and E. Van Buren, for appellent.

John T. Fish, ( L. S. Dixon, of counsel,) for respondents.

COLE, J.

With the view taken of this case, it is unnecessary to consider the question of estoppel presented by counsel. All the other questions argued are also in Dodge v. Williams, 46 Wis. 70, 1 N. W. Rep. 92. The judgment of that case was postponed, and this advanced on the calendar, that the court might have all the light which the double argument could give. It would, of course, be mere waste of time to consider at length in each case all the questions common to both. Dodge v. Williams, being the earlier case, was therefore selected for the general discussion of the questions; and what is said in that case appropriate to this will apply here without repetition. Had the incorporation of the orphan asylum failed for any reason, the trust would not have lapsed. The ladies appointed by the will trustees ad interim of the charitable use took power to administer the trust until a corporation should be created for that purpose. Failing the...