In re Fuller's Will

• Decision Date: 07 January 1890
• Parties: IN RE FULLER'S WILL.
• Court: Wisconsin Supreme Court

75 Wis. 431

44 N.W. 304

IN RE FULLER'S WILL.

Supreme Court of Wisconsin.

Jan. 7, 1890.

Appeal from circuit court, Rock county; BENNETT, Judge.Finches, Lynde & Miller and E. P. Smith, for appellant.

Dunwiddie & Goldin, (A. S. Spooner, of counsel,) for respondent.

COLE, C. J.

Was the appellant entitled to the fund in question, to invest and apply the same according to the will, or, if not entitled to have the fund paid over to it, should it have been appointed trustee to execute the trust? Its claim to one or the other kind of relief is founded on the eighth clause of the will, which reads as follows: “I further give to my beloved wife, Achsa A., the rest and remainder of my property, whether real or personal, during her natural life, and whatever may remain at her decease I give in trust to the deacons of the First Baptist Church of Janesville, Wisconsin, and their successors in office, to be funded with good security on improved land, and the interest to be paid annually to the American Baptist Publication Society, located at Philadelphia, Pa., to aid in the support of a Baptist colporteur and (or) missionary in the state of Wisconsin. The said deacons may have a voice in the nomination and appointment of sd. colporteur and missionary, if they wish.” The original will was sent up with the record for our inspection. It is admitted that it is in the hand writing of the testator, but on examination we are in doubt whether the character connecting the words “colporteur” and “missionary,” where they first occur in the clause, is “and” or “or.” This appears to be one of the many serious objections urged against the validity of the clause. But the more formidable objection is that the clause is void for uncertainty, and is incapable of being carried out under the laws of this state. It may be proper to remark, before we proceed to a consideration of the objections to the validity of the bequest, that the testator died at Janesville in 1865, and the will was admitted to probate in August of that year. Mrs. Achsa A. Fuller, named in the will, survived her husband, and died in February, 1888. In April, 1888, the executor filed in the county court his account, showing that the estate of the testator has been fully settled, and the residue of the estate in his hands was the sum of $2,100, to be disposed of under the direction of the court. The deacons of the First Baptist Church of Janesville filed with the county court their declination to accept the trust under the will. The appellant filed in said court its petition, setting forth these and other facts, and asked that the court order the fund to be paid to it by the executor, with directions to invest and apply the same as stated in the will; or, if the court should deem a trustee necessary, that the appellant be appointed such trustee, and that it have such other and further relief in the premises as might be in accordance with justice and equity. The county court denied the prayer of the petition, and dismissed it. This decision was affirmed by the circuit court on appeal.

It is claimed that the bequest is void, on the ground that the scheme of the charity is uncertain and incapable of execution. We think this objection well taken, and that it must prevail. At the outset it may be observed that the doctrine of cy pres, so called, is not recognized and acted upon by the courts of this state. That doctrine is enforced by the English court of chancery, and by some courts in this country. But this court has held that the doctrine of cy pres rested upon prerogative or sovereign power, and was not strictly a judicial power, and consequently the courts of this state could not enforce it. Ruth v. Oberbrunner, 40 Wis. 238; Heiss v. Murphey, Id. 276. This consideration renders some of the decisions relied on by appellant's counsel, where a different rule prevails, inapplicable, as was justly observed by the respondent's counsel upon the argument of the cause. It will be seen that the will gives the residue of the estate in trust to the deacons of the First Baptist Church of Janesville, and their successors in office,...