Harrington v. Pier

• Decision Date: 02 February 1900
• Citation: 105 Wis. 485,82 N.W. 345
• Parties: HARRINGTON ET AL. v. PIER ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 485

82 N.W. 345

HARRINGTON ET AL.

v.PIER ET AL.

Supreme Court of Wisconsin.

Feb. 2, 1900.

Syllabus by the Judge.

Property, both real and personal,--the latter being much less than sufficient to pay the expenses of administering the estate, the funeral expenses and debts of the deceased,--was willed as follows: Certain articles named to specified persons; the real estate to be converted into money; three-fourths of the net estate left after payment of the debts and expenses mentioned to be paid to named trustees to be expended in their discretion in temperance work in the city of Milwaukee, the greater part for the benefit of two temperance organizations in said city, but in case of either organization deciding to erect a building, the whole fund then remaining to be used for that purpose, and in any event the entire fund to be expended within five years from its receipt by the trustees; all the rest, residue and remainder of the estate to certain persons named. Held:

1. The positive direction to reduce the real estate to money for all the purposes of the will, by equitable conversion, accomplished that result from the time the will took effect.

2. Where a will directs the conversion of realty into personalty for a particular but void purpose, the doctrine of equitable conversion does not apply; but unless otherwise clearly indicated by such will, such realty will pass to the heirs as property undisposed of thereby.

3. If, notwithstanding the failure of a purpose requiring a conversion of realty into personalty to satisfy it, the intention is manifest to accomplish a distribution of the estate in the form of money, that intent will accomplish the conversion of the realty into personalty in equity; and unless otherwise clearly indicated a void bequest will fall into the residuum and go to the residuary legatee if there be such.

4. The blending of real and personal property in one fund for all purposes of a will, strongly evidences an intent that the whole estate shall at all events be distributed as personal property.

5. If the residue of an estate be divided by the terms of the will, and a part, as such, be willed to one person, and a part, as such, to another, and the will be void as to one, the portion that would otherwise go that way will not swell the portion going the other, but will pass to the heirs as property undisposed of by the will in the absence of a clear intent to the contrary.

6. The rule last mentioned does not apply where there is a bequest of a specific part of the net estate to one person and all the rest, and residue of the estate is bequeathed by a residuary clause in general language, unless a clear intent to the contrary be manifest by the will.

The bequest of three-fourths of the net estate to trustees to expend in temperance work in the city of Milwaukee is a valid bequest for a charitable use, and that rests on the following principles:

1. The common-law system of trusts for charitable uses did not originate with, nor is it dependent upon, the statute of 43 Eliz. c. 4.

2. A trust for a particular and valid charitable purpose, as distinguished from a bequest in trust for charity generally, was sustainable in chancery before the statute of Elizabeth solely by the judicial power of the court, and to that extent such statute was merely confirmatory of the common law; and to the same extent such statute was adopted as a part of the common law of this country and prevails in this state.

3. In sustaining a trust of the character last above indicated, courts of equity resort to liberal rules of construction to determine the intent of the donor, enabling them to go to the limit of the general purpose indicated by the donor and do everything necessary to enforce such purpose, but not to go outside of it into the realms of prerogative authority governed by the cy pres doctrine strictly so called.

4. The cy pres doctrine, as indicative of prerogative authority, does not prevail in this state, but as regards liberal rules of construction of charitable trusts, applied in chancery in England independent of the statute of Elizabeth, it does prevail.

5. Cy pres power, as commonly understood, has two features: One, the right to exercise prerogative authority, enabling a court to deal with a bequest to a charitable use having no designated particular purpose as a bequest to charity generally, treating the purpose as the legatee, or a bequest for an illegal purpose, or some purpose impossible of execution for some reason; and the other, the right, by liberal rules of construction, to deal with a trust having a designated particular purpose, though in general terms, and enforce it within the limits of such purpose, supplying the trustee if necessary. The former is not exercised here, but the latter is.

6. The statutes of perpetuities and of uses and trusts do not apply to bequests for charitable uses. Whether they do to devises to such uses, not here decided.

7. Indefiniteness of beneficiaries is one of the characteristics of a trust for charitable uses. Without it the trust is private. Neither such indefiniteness, nor indefiniteness as to the precise nature of the work to be done, or the mode of execution in carrying out a particular purpose which may be indicated in general language, militates against the validity of the trust.

8. The idea that there must be certainty of beneficiaries holding the equitable title, who can come into court and enforce the trust, applies to private but not to public trusts, and has no place in a system of charities where common-law trusts therefor, sustainable without the aid of cy pres authority, are valid. Such a system, as to personal property at least, exists in this state.

9. Necessary certainty as to beneficiaries in a public trust goes no further than reasonable certainty as to the class, which may be great or small, particular or general, from which the trustee may be authorized to select the immediate persons or objects to receive the special benefits.

10. The statute of uses and trusts furnishes no standard by which to test the sufficiency as to certainty of a public trust. It refers solely to private trusts.

11. The doctrine that the scheme of a trust for charitable uses must be sufficiently indicated, or the method of ascertaining it pointed out and its object made sufficiently certain to enable the court to enforce the execution of the trust accordingly, does not refer to the essentials of a private trust, indicated in the statute of uses and trusts, but to the common-law essentials of a trust for charitable uses, in order to be enforceable by a court of equity through its judicial power.

12. The New York doctrine as to the effect of statutes of perpetuities and uses and trusts upon trusts for charitable uses, does not prevail in this state as to personal property. Whether it does as to real estate, not decided.

13. Dodge v. Williams, 1 N. W. 92, 50 N. W. 1103, 46 Wis. 70, and Gould v. Orphan Asylum, 50 N. W. 442, 46 Wis. 106, approved and followed. Cases prior and subsequent thereto in this court, reviewed, distinguished and harmonized therewith, except In re Fuller's Will, 44 N. W. 304, 75 Wis. 431, which is disapproved.

14. Any work within the spirit, in its broadest sense, of the statute of 43 Eliz. c. 4, including whatever promotes in a legitimate way the comfort, improvement, or happiness of an indefinite number of persons from among the people as a whole, or a designated class thereof, is the proper subject for a trust for a charitable use.

15. The promotion of temperance work in a certain city is a proper subject for a charitable trust, and is not fatally indefinite where the term “temperance work” is obviously intended to mean work to prevent, as far as practicable, the use of intoxicating liquors.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Emily Harrington and others against Kate Pier and others. Judgment for plaintiffs. Defendants appeal. Modified.

Cassoday, C. J., dissenting.

The last will and testament of Elizabeth Ann Sutton was duly admitted to probate in the county court of Milwaukee county. An appeal was taken, from the order of such court allowing the will, to the circuit court, where such order was affirmed, and no appeal has been taken therefrom. This action was brought to obtain a construction of the will. The will contains the following bequests, directions and expressions of the testatrix's wishes:

(1) Bequest to Mary S. McCord, a sister, the testatrix's wearing apparel.

(2) Bequest to Mary S. McCord, and to Herbert Parker, a brother, in equal shares, the household goods and furniture.

(3) Direction to the executrix to convert the real estate into money.

(4) Direction to the executrix, after payment of the debts of the testatrix, funeral expenses and expenses of administering the estate, to pay three-fourths of the net proceeds of the estate to John E. Clayton and Eden W. Drake, of the city of Milwaukee, as trustees, to be by them or the survivor of them expended for temperance work in said city of Milwaukee as their best judgment shall dictate, the greater portion of the fund to be used for the benefit of Crystal Spring Lodge, I. O. G. T., and the Woman's Christian Temperance Union of said city of Milwaukee, and in case of either of said organizations deciding to erect a building for temperance work in said city of Milwaukee, to use the whole of the trust funds then remaining, in the erection and construction of said building; all of the funds to be expended in temperance work within five years from the time the same shall come to the hands of the trustees.

(5) Bequest of the rest, residue and remainder of the estate to George Henry Andrews and William Andrews in equal shares.

The trial court decided, upon evidence, that the property consisted of household furniture and wearing apparel valued at $150, cash to the amount of $11.15, and real estate to the value of about...