Gould v. Taylor Orphan Asylum , 46 Wis. 106 ( 1879 )

The following opinion was filed January 14, 1879:

Cole, J.

With the views taken of this case, it is unnecessary to consider the question of estoppel presented by counsel. All the other questions argued are also in Dodge v. Williams, ante, p. 70. The judgment of that case was postponed, and this advanced on the calendar, that the court might have all the light which the double argument could give.

It would, of course, be mere waste of time to consider at length in each case all the questions common to both. Dodge v. Williams, being the earlier case, was therefore selected for the general discussion of the questions. And what is said in that case, appropriate to this, will apply here without repetition.

Had the incorporation of the Orphan Asylum failed for any reason, the trust would not have lapsed. The ladies appointed by the will trustees ad interim of the charitable use, took power to administer the trust until a corporation should be created for that purpose. Tailing the corporation, they would have remained permanently clothed with the trust, with full power to administer the charity. Some or all of them might have declined; some or all of them might have resigned, or become incompetent. All of them would probably have died, pending their trust. But equity never suffers a trust to expire with the trustee. And upon default of any or all of these ladies, or of their successors, by refusal, resignation, incompetency or death, the circuit court would have undoubted equitable jurisdiction to appoint other trustees in their places, from time to time indefinitely, to support the trust and gire effect to the chai-itable use.

In this respect, the will in this case bears strong resemblance to that in Inglis v. Sailors' Snug Harbor, 3 Peters, 99. The devise there was to certain public officers by their official designations, as trustees of the charitable use; the will desiring them, in case they could not execute the trust without it, to apply for a statute creating them a corporation with power to act as trustee in their place. The trust was sustained by the court, and the case is approved and followed in Ould v. Washington Hospital, 5 Otto, 303.

The latter case was, perhaps, more like this. There the devise was to individuals as trustees, to be by them conveyed to a corporation when one should be created by law. The devise was upheld, the court remarking on one question much discussed in this case, and in Dodge v. Williams, and not expressly noticed in the opinion in that ease: “ In this case, the devise was in fee to two trustees and to the survivor of them. They were directed to convey the premises to an eleemosynaiy corporation for foundlings, whenever congress should create one which the trustees approved. If the will had been so drawn as itself to work the devolution of the title upon the happening of the event named, the clause would have been an executory devise. If the same thing had been provided for in a deed inter vivos, a springing use would have been involved; and such use would have been executed by the transfer of the legal title whenever that occurred. The testator chose to reach the end in view by the intervention of trustees, and directing them to convey at the proper time. This provision in the'will was therefore a conditional limitation of the estate vested in the trustees, and nothing more. . Their conveyance was made necessary to pass the title. The duty with which they were charged was an executory trust. Amb., 552. The same rules generally apply to legal and to equitable estates. They are alike descendible, devisable and alienable. Croxall v. Shererd, 5 Wall., 268. When such uses are consummated and no longer in fieri, the law of perpetuity has no application. Franklin v. Armfield, 2 Sneed, 305; Dartmouth College v. Woodward, 4 Wheat., 518; Perin v. Carey, 24 How., 465. It is intended that what is given shall be perpetually devoted to the purpose of the giver.”

So here, the corporation, when organized, takes title, not by the will, but by transfer from the trustee ad i/nterim. This is not an executory bequest.

The same view is taken of the will in this case as of the will in Dodge v. Williams, that the whole scope and tenor of the will demonstrate that the power of sale was mandatory; and that it is therefore to be considered as a will of personalty only. In this view, the principles upon which the charitable bequests are sustained in Dodge v. Williams are as applicable to this as to that case.

In Re Taylor Orphan Asylum, 36 Wis., 534, the view of the court of the beneficent and admirable character of this charity is sufficiently indicated. In that view all the present members of the court heartily concur. It therefore affords the court [much gratification to be able, without violation of statute or principle, to sustain the will and the charity created under it. In the present state of the law here, there is the same right to be charitable after death as during life. It would be sad enough to see this noble charity strangled in the house of its friends, and the orphans cherished by it, almost as a mother cherishes her little ones, turned adrift in the bleak world, to satisfy the greed of collateral next of kin, many or all of them already enjoying the bounty of the testatrix under the very will providing for the charity. It would be a reproach to the administration of justice, if the consecration of so fine a fortune to so holy a charity should fail on grounds purely technical.

By the Cou/rt. — The judgment of the court below is affirmed.

Lyokt, J., took no part.