Gould v. The Taylor Orphan Asylum
| Decision Date | 14 January 1879 |
| Citation | 50 N.W. 422,46 Wis. 106 |
| Parties | GOULD, Adm'r, v. THE TAYLOR ORPHAN ASYLUM and others |
| Court | Wisconsin Supreme Court |
APPEAL from the Circuit Court for Racine County.
Emerline A. Taylor died in 1866, testate, being the owner in her own right of real and personal property valued at about $ 340,000; and, in December following, her will was admitted to probate in the county court of Racine county in this state (of which county she was a resident), and letters testamentary issued to the three persons named as executors therein. The third item of the will was in these words There was a large number of bequests of specific sums of money, as well as two devises of land, all alike under the form, "I give and devise." The thirty-eighth item is in these words:
The ladies named in the third item of the will, above quoted accepted the trust there defined, and procured the passage of an act of the legislature of this state (ch. 340, P. & L. Laws of 1867), incorporating them and their successors under the name of the Taylor Orphan Asylum. This act was subsequently amended by ch. 192, P. & L. Laws of 1868, and ch. 81, Laws of 1874. On the 27th of May, 1867, the executors of said will filed in said county court their petition representing, among other things, that they were prepared to pay "all the legacies named in said will except the residuary legatee," and praying for an order authorizing them to make such payments; and the county court, the same day, made the order prayed for. No notice of such application or order was given. On the 13th of February, 1868, the executors filed in the office of the county judge, full detailed accounts of their receipts from the sale of real and personal property, etc., and of moneys expended in administering the estate, and legacies paid, including $ 30,000 under the third item of the will, and $ 107,784.99 under the thirty-eighth item; and these accounts were recorded by order of the court. In December, 1871, the executors filed their supplemental account, from which it appears that they had paid over to the treasurer of the Taylor Orphan Asylum the residue of the estate (over $ 15,000). On the 15th of November, 1877, the court made an order purporting to be a final order settling said estate, by which it confirmed the final accounting of the executors, directed payment by them to the Taylor Orphan Asylum of a balance of $ 1,000 in their hands, and discharged them from their trust upon such payment being made.
It appears that at Mrs. Taylor's death, she left, surviving her, her father, Abner Martin, who was her sole heir-at-law, and who died intestate, July 7, 1871, leaving children and other heirs-at-law. In January, 1878, John F. Gould filed his petition in the county court, in which he alleged, in substance, that he had been appointed by said court administrator of the estate of Abner Martin; that the Taylor Orphan Asylum was not entitled to receive the property described in the third and thirty-eighth items of Mrs. Taylor's will; that the petitioner, as such administrator, was entitled thereto; and that neither he nor the heirs-at-law of Abner Martin ever had any notice or knowledge of the order of the court making distribution of the estate of Mrs. Taylor, until long after the same was made, nor of any application being made by the executors or the Taylor Ophan Asylum for an accounting or a settlement of said estate, etc. He prayed, therefore, that the Orphan Asylum and the executors might be required to show cause why the previous order of said court for the final settlement and distribution of the estate should not be vacated, and a construction given to said will, and the rights of the petitioner as administrator determined, and an order made assigning to him the property mentioned in said third and thirty-eighth items of the will.
The Taylor Orphan Asylum and the executors answered separately. Their answers raised several issues besides that of the validity of the disputed legacies; but in view of the determination of this court, these issues need not be stated.
On the 8th of May, 1878, the county court vacated its order of November 15, 1877, so far as to permit said John F. Gould, administrator, etc., to be made a party to the final settlement of the estate, and present his claims in respect to the distribution thereof. On the same day said court made a further order, adjudging that said Gould, as administrator, was not entitled to the specific and residuary legacies mentioned in the third and thirty-eighth items of the will, and that the Taylor Orphan Asylum was entitled to them, and establishing and confirming the final order of distribution made in November previous.
From this second order of May 8, 1878, Gould appealed to the circuit court. That court held that the disputed bequests in the will were valid, and that the Orphan Asylum, "as trustee and successor in trust of the ladies mentioned in the third item, and of the executors under the thirty-eighth item of the will, is entitled to said legacies;" and it rendered judgment affirming the decree of the county court appealed from. From this judgment the administrator, Gould, appealed.
Judgment affirmed.
S. B. Van Buskirk and E. Van Buren, for the appellant, argued, 1. That the third and thirty-eighth items of the will were void for want of any sufficiently ascertained beneficiary. Charitable bequests stand upon the same ground as other trusts. It is not enough that there are trustees. Where trustees are appointed who are not capable of taking, or where there are no trustees, yet if there are beneficiaries capable of receiving the benefits, courts will enforce the charities by appointing trustees; but in the absence of certain and defined beneficiaries, the bequest is void, although valid trustees are appointed by the will. Here were no beneficiaries in being. An asylum was to be erected when one should be incorporated. But suppose one should never be incorporated; who then would get the money? Who could enforce the procurement of an incorporation? Who could enforce the provisions of the will? Again, the asylum was to be for orphans and "other poor and destitute children." What are neglected children? Who are poor children? Where are they, and how are they to be ascertained? And the use of the asylum was left to the discretion of "the managers," an unknown body not yet in existence. Thus the objects of the bounty of the testatrix are left so vague and undefined, that the court cannot enforce the will. In support of this view, counsel cited Downing v. Marshall, 23 N. Y., 367; Beekman v. Bonsor, id., 311; Levy v. Levy, 33 id., 102, 107; Bascom v. Albertson, 34 id., 584; Holmes v. Mead, 52 id., 332; Wheeler v. Smith, 9 How., U.S., 55, 76, 80; Fontain v. Ravenel, 17 id., 369, 396, 399; Lepage v. McNamara, 5 Iowa, 124. 2. That the provisions of the will here in question were also void because they violated the rule of the common law against perpetuities. Lewis on Perpetuities, ch. 12, * 163; Sanders on Uses and Trusts, 196-7; Perry on Trusts, 381-4; Leonard v. Bell, 1 N.Y.S. R., 608, affirmed in 58 N. Y., 676, and cases there cited. 3. That those provisions were void under our statute of uses and trusts. Ruth v. Oberbrunner, 40 Wis. 238; Heiss v. Murphey, id., 276. The statute applies to personal as well as to real property. This is conceded even in Williams v. Williams, 8 N. Y., 524, which held, however, contrary to the later decisions, that the statute did not apply to charitable devises or bequests. Comparing sec. 55, ch. 1, art. II of the N. Y. statutes of 1846, with sec. 11, ch. 84, Wisconsin R. S. of 1858, it will be seen that the latter provides (subd. 5) for an additional class of express trusts, [1] not referring specially to real estate, and intended apparently to enlarge the domain of the statute and make it cover, if possible, every species of active trust not already provided for, and thus put this question forever at rest in this state.
John T. Fish, with L. S. Dixon, of counsel, for the respondents contended that the executors under the thirty-eighth item, and the ladies named in, and the corporation contemplated by, the third item, are trustees designated to...
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