Hood v. Dorer

• Decision Date: 06 April 1900
• Citation: 107 Wis. 149,82 N.W. 546
• Parties: HOOD v. DORER.
• Court: Wisconsin Supreme Court

107 Wis. 149

82 N.W. 546

HOOD

v.DORER.

Supreme Court of Wisconsin.

April 6, 1900.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Ejectment by A. J. Hood, administrator de bonis non with the will annexed of Thomas Stewart, deceased, against Dominik Dorer. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Cassoday, C. J., dissenting.

This is an action in ejectment for the recovery of 120 acres of land in Grant county, Wis., both parties claiming title under one Thomas Stewart, now deceased, the plaintiff being the administrator de bonis non of the estate of said Thomas Stewart. The evidence upon the trial showed that Thomas Stewart owned the property in question during his lifetime, and that he died September 13, 1882, leaving a widow, but no descendants; that he left a will, which was afterwards probated, the material parts of which are as follows: “First. After the payment of my just debts and funeral expenses, I give, devise, and bequeath unto my beloved wife, Mary Ann Stewart, for and during her natural life, provided she remains single after my decease, the use of and sole control and right to all my real and personal estate in the state of Wisconsin or elsewhere of which I may die possessed or be entitled to, and on her decease the said property to be invested in a fund provided for that purpose for the support and maintenance of the superannuated preachers of the church denominated the United Brethren in Christ. I give and bequeath to Solomon Stewart, my brother, the sum of one dollar; to my brother Abraham Stewart the sum of one dollar; and to my sister, Susan Keys, the sum of one dollar. I hereby nominate and appoint ______ the executor of this, my last will and testament, and hereby authorize and empower him, the said ______, to compound, compromise, and settle any claim or demand which may be against or in favor of my estate.” Mary Ann Stewart, the widow, was duly appointed administrator with the will annexed of the estate of Thomas Stewart, and in August, 1883, she brought an action in the circuit court of Grant county for the construction of the will, naming as defendants in that action “the superannuated preachers of the church denominated the United Brethren in Christ” and De Witt C. Wood and William Loney. The summons and complaint in said action were served upon the defendants Wood and Loney, one of whom was a preacher in said denomination, and the other a class leader, but neither of them was a superannuated preacher. An answer was served in that action by John D. Wilson, who apparently appeared as the attorney for the defendants generally, which answer was verified by William Loney, and prayed a judgment of the court declaring the bequest for the benefit of the superannuated preachers a valid one. The action was tried by the court, and resulted in findings and judgment that the devise in question was valid, and that the real estate of Thomas Stewart descended to Mary Ann Stewart in fee. After this judgment Mary Ann Stewart sold the real estate in issue in this action to the defendant, who took possession thereof, and was in possession at the time of the commencement of this action claiming title. Mary Ann Stewart afterwards married one Haskins, and died before the commencement of this action. After her death the plaintiff was appointed administrator de bonis non with the will annexed of the estate of Thomas Stewart, and he brings this action as such administrator, claiming that the provisions of the will are valid, and that he is entitled to the possession of the said real estate in order to sell and convert the same into money, and create the fund directed by said will. On the trial of this action it appeared that the United Brethren in Christ are a sect of Protestant Christians organized early in the present century in the state of Maryland, and that at the time of the execution of Thomas Stewart's will they numbered about 150,000 members in the United States and Canada, and that they had a church government and discipline, having colleges and educational institutions, ordanied bishops and ministers, and holding conferences. The court held the direction in the will for the benefit of the superannuated preachers void for uncertainty, and the administrator appeals.Bushnell, Watkins & Moses, for appellant.

Aldro Jenks and H. W. Brown, for respondent.

WINSLOW, J. (after stating the facts).

The sole question presented is as to the validity of that provision of the will of Stewart which directs that upon the decease of his wife his entire property is “to be invested in a fund provided for the purpose for the support and maintenance of the superannuated preachers of the church denominated the United Brethren in Christ.” There can be no doubt but that this clause amounts to a direction to convert the real estate of which he died possessed into money. In no other way can real property be invested in a fund. Hence the doctrine of equitable conversion...