McHugh v. McCole

• Decision Date: 22 October 1897
• Citation: 72 N.W. 631,97 Wis. 166
• Parties: MCHUGH ET AL. v. MCCOLE ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 166

72 N.W. 631

MCHUGH ET AL.

v.MCCOLE ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from circuit court, Calumet county; George W. Burnell, Judge.

Action by James McHugh and others against Patrick McCole, executor of Owen McHugh, and others. From that part of the judgment sustaining certain portions of a will, plaintiffs appeal; and, from that part declaring a portion of the will void, defendant executor appeals. Reversed in part.

This action was brought by the heirs at law of one Owen McHugh, deceased, against Patrick McCole, executor of his last will and testament; S. G. Messmer, as bishop of the Roman Catholic diocese of Green Bay; Bridget Carney, John O'Rourke, and Frank McGrath, as trustees of the St. Augustine's Roman Catholic Church of Chilton, Calumet county. Wis.; C. C. Grafton, as the Protestant Episcopal bishop of Fond du Lac, Wis.; and the Catholic Orphan Asylum at Green Bay, Wis.,--to obtain the judgment of the court as to the intent, meaning, and legal effect of the will of said Owen McHugh, deceased, and especially with reference to the bequests and devises contained in paragraphs 4 to 7, inclusive; and to ascertain whether said provisions were void, and whether the persons named as legatees and devisees in said paragraphs take anything thereby, or are entitled to receive and take the several legacies and devises provided thereunder, and whether the executors of the deceased are entitled, under and by the terms of the will, to sell the lands of the deceased, and out of the proceeds thereof to pay said several sums to the persons therein named, as provided by the will, or whether said property should descend or pass to the heirs at law of the testator or his personal representatives for the benefit of his distributees. It appeared that the executor refused to bring an action for these purposes, or to participate therein; that one of the heirs at law, Bridget Carney, refused to join as plaintiff, and was therefore made a defendant. The plaintiffs assert several grounds of invalidity or illegality in respect to the provisions in paragraphs 4 to 7 of the will, inclusive. It was alleged that the testator left personal property sufficient to pay his debts, together with his funeral expenses, but that Patrick McCole, the executor, applied to the county court of Calumet county for an order or license authorizing and empowering him to sell the real estate of the testator, and to pay the proceeds over to the devisees and legatees mentioned in said will. There were answers put in by the defendants, raising substantially the same issues, in which it is conceded that the executor, Patrick McCole, applied to the county court of Calumet county for the purpose aforesaid, and insisted upon the validity of all the paragraphs of the will numbered 4 to 7, inclusive, but denied that the testator left personal property sufficient to pay his debts and the cost of administration, and, except as expressly admitted, denied each and every allegation of the complaint. The testator bequeathed $1,000 to his daughter Bridget Carney, $600 to his daughter Hannah Daugherty, and $300 to his grandson Joseph Daugherty; and the provisions of the fourth to the seventh paragraphs of the will, inclusive, are as follows, namely: “(4) I do give and bequeath unto the Protestant Episcopal bishop of Fond du Lac, in the state of Wisconsin, the sum of $300, ‘to be used by him for the benefit and behoof of the Protestant Episcopal Church of said diocese of Fond du Lac, Wisconsin.’ (5) I do give and bequeath unto the Roman Catholic bishop of the diocese of Green Bay, Wisconsin, the sum of $4,150, the said sum ‘to be used and applied as follows: For masses for the repose of my soul, two thousand dollars; for masses for the repose of the soul of my deceased wife, Mary McHugh, the sum of one thousand dollars; for the repose of the soul of my deceased son, John McHugh, $500; for the repose of the soul of my deceased daughter, Katie McHugh, the sum of $100; for masses for the repose of the souls of my father and mother, Owen and Hannah McHugh, $50; for the Catholic Orphan Asylum at Green Bay, Wisconsin, the sum of $500.’ (6) I do give and bequeath unto the trustees of the Roman Catholic Church at Chilton, Calumet county, Wisconsin, to wit, St. Augustine Church, to be used for the benefit of said church, and in repairing the same, the sum of $500. (7) I do give, grant, bequeath, and devise all the rest, residue, and remainder of my estate, real or personal, ‘to the Roman Catholic bishop of Green Bay, Wisconsin, to be by him used for the benefit and behoof of the Roman Catholic Church.’ ” Upon trial by the court it was found that the testator made his will with the provisions stated, and that it had been admitted to probate; that the defendant C. C. Grafton is the Protestant Episcopal bishop of Fond du Lac, in the state of Wisconsin; that S. G. Messmer is the Roman Catholic bishop of the diocese of Green Bay, Wis., which said diocese includes the county of Calumet; that St. Joseph's Orphan Asylum of Green Bay is and was duly incorporated under the laws of the state of Wisconsin at the time of the making and publishing of said will, and was and is the only Catholic orphan asylum in said city; that the Roman Catholic bishop, the vicar general of the diocese of Green Bay, the pastor of the congregation of St. Augustine, together with John O'Rourke and Frank McGrath, are the trustees of St. Augustine's Church, Roman Catholic Church of Chilton. The court, as conclusions of law, affirmed the validity of all the provisions of the will except the sixth paragraph and so much of the fifth paragraph as disposes of $3,650, to be used and applied for masses for the repose of the souls of the persons therein named, and judgment was rendered accordingly. The plaintiffs appealed from that part of the judgment upholding the bequest to the Protestant Episcopal bishop of Fond du Lac of $300, and the provisions sustaining the seventh or residuary clause of the will, and ordering and adjudging the rest, residue, and remainder of the testator's estate to be assigned to S. G. Messmer, the Roman Catholic bishop of the diocese of Green Bay, “for the benefit and behoof of the Roman Catholic Church of his diocese.” There was a cross appeal by the defendant Patrick McCole, the executor of the testator, from so much of the judgment as declared that part of the fifth paragraph of the will bequeathing $3,650, “to be used and applied for masses” as therein specified, void for indefiniteness and uncertainty, and from the failure of the court to render judgment in accordance with said bequest.J. E. McMullen and L. J. Nash, for appellants.

Wigman & Martin, for respondents.

PINNEY, J. (after stating the facts).

The record does not disclose how much of the testator's estate consisted of realty, or how much of personal property. It may be fairly assumed from the seventh or residuary clause of the will, disposing of “all the rest, residue, and remainder of the testator's estate, real or personal,” to the Roman Catholic bishop of Green Bay, Wis., “to be by him used for the benefit and behoof of the Roman Catholic Church,” that the testator owned both real and personal estate, and that it was understood that there might be a residue or remainder of either real or personal estate not required for the payment of the legacies specified in the will. The will contemplates, as to the legacies therein named, that it should be executed in personalty exclusively, and that any residue of real estate which it might not be necessary to sell in order to pay said legacies should pass under the residuary clause in the will. It was plainly the intent of the testator that, for the purpose of satisfying said legacies, his executor should convert, if need be, all his real estate into money. If the said provisions of the will are valid, the doctrine of equitable conversion would apply to the extent that the provisions of said will may be valid; and the court would deal with the estate as personalty. Dodge v. Williams, 46 Wis. 97, 1 N. W. 92, and 50 N. W. 1103;Webster v. Morris, 66 Wis. 399, 28 N. W. 353. It will be seen upon an examination of the record that if a residue of realty remained unsold, the sale of which was not necessary for the payment of such bequests, the validity of the will as a devise of such realty will be determined by principles involved in the determination of the validity of the bequests above stated. All the contested provisions of the will are essentially trust provisions, and appear to be void for uncertainty, and wholly incapable of being executed by a court of equity by virtue of its judicial jurisdiction over private trusts. Unless they can be so executed, they must necessarily fail; for it is settled that the doctrine of cy-pres, as it existed in England, and as it has been applied in some of the states of the American Union (whereby trust provisions are administered and executed as near to the presumed intention of the donor or founder as may be), is not recognized or acted upon by the courts of this state as a part of the judicial power of the state. The doctrine rests upon a prerogative or sovereign power, is not strictly judicial in its nature, and consequently the courts of the state cannot exercise it. In re Fuller's Will, 75 Wis. 435, 44 N. W. 304;Heiss v. Murphey, 40 Wis. 276; Ruth v. Oberbrunner, Id. 238. We are of opinion that the trust provisions in question are void for uncertainty, in that no certain and competent beneficiaries are named who may come into a court, and claim and establish their right to the fund and to the execution of the trusts of the will; and no method has been prescribed or pointed out for the administration of the several funds or their application to the purposes of the supposed trusts. The testator has not fully defined his trust purposes, but has left them so indefinite that it is impossible for the...