Heiss v. Murphey , 40 Wis. 276 ( 1876 )

Cole, J.

In the case of Ruth et al. v. Oberbrunner et al., decided at the present term, but in the decision of which 'the chief jrrstice, having been of counsel, took no part, it was held that ch. 84, R. S., abolished all rrses and trusts, including charitable uses and trusts, except such as were authorized by its provisions and constituted in the manner prescribed. This view would inevitably overthrow the devise and bequest in the will. But' our decision in this case will not be placed upon the ground that the will is void under the statute of uses and trusts; for we think, without reference to that question, that it is impossible to sustain the devise under the general principles of law applicable to charitable uses. It will be seen that the devise is dvrectly “ to the Roman Catholic orphans of the diocese of La Crosse,” while power is given to the executor to sell the property “ and use the proceeds for the benefit of the Roman Catholic orphans.” Now, in whom does the fee of the real estate vest under the devise? Roes it vest in the Roman Catholic orphans of the diocese, or in the executor, or where does it go ? It is suggested on the brief of the learned counsel for the plaintiff, that the testator did not intend that the fee should vest either in the orphans or in the executor; but this view would seem to be inconsistent with the power conferred. That power was authority to sell the property, which implies that the title might be transferred by some one to the purchaser when the contemplated sale should be made. Rut, not to dwell upon this point, we come to a more serious objection against the validity of-the devise; and that is, the uncertainty as to who are the beneficiaries of the testator’s bounty. Conceding that the last clause of the will is to be construed in connection with the previous clause, and that the fund was to be used by the executor for the benefit of the Roman Catholic orphans of the diocese of La Crosse, how is it possible to ascertain and determine what orphans were intended to be benefited? Are they whole orphans or half orphans? Are they orphans of parents both of whom were members of the Roman Catholic church, or will an orphan of a Roman Catholic father, or of a Roman Catholic mother, come within the designated class? Are the objects of this charity the full orphans or half orphans who were living within the diocese at the death of the testator, or will such of either class as may thereafter come into the diocese be entitled to take as beneficiaries? Again, upon what principle or in what manner is the fund created by the sale of the real estate to be expended? Is the executor or trustee to apportion it equally among the orphans of the diocese, when it is ascertained who are entitled to take, or is he to dispense it in his discretion for tlie benefit of sucb orphans as be may select from time to time? These questions suggest the perplexity and difficulties which the court must encounter in establishing and carrying into effect this trust. It seems to us they are insuperable. Eor the testator has failed to declare his purpose, but has left his will so indefinite and vague upon all these material matters that a court, in order to execute the trust, is of necessity compelled to make a will for him. The words of Comstock, Oh. J., in Beekman v. Bonsor, 23 N. Y., 298, may well be used: “Here is a fatal uncertainty both as to the subject and the object of the bequest.” p. 306.

But to meet and answer these serious objections taken to the will, the counsel for the plaintiff cites and relies upon a line of adjudications which hold that, though the individual beneficiaries of a charity are left uncertain, yet when they are included in a definite class, the trust will be sustained and enforced by a court of equity. And he says, in order that there may be a good trust for a charitable use, there must always be some public benefit open to an indefinite and vague number; in other words, that the persons to be benefited must be vague, uncertain and indefinite until they are selected or appointed to be the particular beneficiaries of the trust for the time being. But the doctrine of these cases will not aid the will, because the class here is not certain and well defined, nor is there any way provided for selecting the beneficiaries from a class. "We have seen‘that the ’word “orphan” includes a minor who has lost both of his or her parents, or one who has lost only one. What meaning is to be given to it as used in the will, it is impossible to determine. So that, admitting the full authority of those cases which decide that when the individual beneficiaries under a will are left uncertain, but are included, in a definite class, the bequest or devise for their benefit will be sustained, still the difficulty here presented remains. How are the particular orphans entitled to have the benefit of the devise to be ascertained and identified? Under our construction of the will, there are no means by which this uncertainty can be rendered certain.

There are doubtless cases in which a devise or bequest to charity as vague and uncertain as the one we are considering has been sustained. But these cases mainly rest upon the doctrine of cy pres, which is a doctrine of prerogative or sovereign function, and not strictly a judicial' power. 4 Kent, 508; 2 Story’s Eq. Jur., § 1169 et seq.; Fontain v. Ravenel, 17 How., 369; White v. Fish, 22 Conn., 31; Jackson v. Phillips, 14 Allen, 540-576; Williams v. Williams, 8 N. Y., 525-528; Owens v. The Missionary Society, 14 id., 380-403; Beekman v. Bonsor, 23 id., 310; Levy v. Levy, id., 97; Bascom v. Albertson, 34 id., 584. It is not claimed that the courts of this state are clothed with other than strictly judicial power, or that they have succeeded to the jurisdiction over charities which the chancellor in England exercises by virtue of the royal prerogative and the cy pres power. It is admitted that the intention of the testator is to control in administering charitable trusts. But if that intention has been so vaguely and imperfectly expressed that the cestwi que trust cannot be ascertained, the charity must fail. In this case it is impossible to determine from the language of the will who are the objects of the testator’s bounty. There are no ascertainable beneficiaries, either as a class or individuals, and therefore the trust cannot be effectually carried out. It is uncertain whether the word “ orphan ” applies to those children who have lost both parents, or whether it does not include as well those who have only lost one. It is impossible to determine whether the testator intended to restrict his- bounty to such of either or both classes as were residents of the diocese at the time of his death, or whether he intended the fund should be used as well for the benefit of any that might thereafter come to the diocese, or become orphans by the death of one or both resident parents. No power is given the trustee to select the individuals from any certain or defined class, so as to render “ uncertainty certain, and relieve the devise and bequest from tbe objections arising out of its vague and indefinite character.” It seems, to us that a trust so wanting in all the elements of certainty and precision, cannot be enforced by a court acting only in the exercise of purely judicial power. And we think this conclusion is in harmony with the doctrine of the better considered authorities in this country which have passed upon the question. Many of them .are cited upon the briefs of counsel, and require no comment.

The will being void, it follows that the heirs-at-law take the property.

The counsel for the plaintiff contended that the trust created by the will was valid as a power, and that the lands descended to the heirs or devisees, subject to the execution of this power, under sections 12, 14 and the subsequent sections of ch. 84. This might remove the difficulty in respect to the title, but does not overcome the objections that the trust is too indefinite to be capable of execution. In the case of Dominick v. Sayre, 3 Sandf. S. C., 555, to which we were-referred on this point, the court adopts the maxim “ that a power of disposition limited to a class in all cases implies and creates a trust, when the property which is given is certain, and the objects (that is, the persons) to whom it is given are also certain;” in other words,-deciding that “where this certainty exists the trust arises.” It is obvious that the principles of this decision can have no application to the case before us.

It results from these views that the judgment of the circuit court placing a construction upon the will, and giving directions to the executor as to the execution of the trust, is erroneous.

By the Gowrt. — The judgment is reversed, and the cause remanded with directions to enter judgment in accordance with this opinion.