Beurhaus v. Cole , 94 Wis. 617 ( 1897 )

Winslow, J.

Although the language of the will before us is somewhat confused, and the arrangement of the provisions illogical, careful reading of the entire document renders the general intent of the testator quite plain. The general intent or plan seems to us to have been as follows: First. The testator desired his widow and son to receive certain real estate, or its equivalent, in fee, together with $5,000 in certain specified bank stock. Second. He wished to place in the hands of his executors all his remaining property, in trust to manage, invest, and reinvest the same, paying over the income to his widow and son during their lives, as directed in the will, with power of sale of all real estate, save that lot 3, block 10, and the twenty acres in the Seventh ward of the city of Watertown and the two farms in Dane county were not to be sold or incumbered by the executors. By subsequent clauses this branch of the scheme was modified somewhat, apparently as the result of afterthought, so that the Race Track farm was taken out of the general trust during his son’s life, and the free use thereof given to the son; and his homestead was to be conveyed at once to the city, to be fitted up by the city as an old ladies’ home, if the city deemed it advisable so to do. Third. After the death of his wife and son he desired his executors to convey to the city of Watertown all his remaining real and personal estate in trust for certain uses and under certain conditions, viz.: (1) That it should establish and maintain a public library and business men’s club room, purchasing'the grounds and building the building out of the funds of the estate; (2) that it should establish and maintain a home for the aged and poor people of the city, using the twenty acres of land in the Seventh ward as a permanent location therefor; (3) that it should permanently use the Race Track farm as a driving park and agricultural grounds. Fourth. In case the city declined to accept the property burdened with these trusts, he wished his trustees to sell it and divide the proceeds among his next of kin according to law.

The only questions before us on this appeal relate to the validity of the gifts to the city of Watertown. The principal contentions made by the appellants may be stated as follows: First. The direction in the will to the effect that lot 3 in block 10 in the First ward and the twenty-acre piece in the Seventh ward of the city of Watertown and the two farms in Dane county shall not. be sold or incumbered suspends the power of alienation as to these parcels perpetually, and the devise to the city thereof is void, under secs. 2038, 2039, R. S. Second. The city has no power to accept the devises or perform the trusts attempted to be created by the will. Third. The trusts are mere passive trusts, and are not clearly defined in the will, and are too vague and uncertain to be enforced. Fowrth. The city has already declined the devise of the homestead, and, so far at least as that parcel is concerned, it must be sold by the trustees and the proceeds divided among the next of kin. Fifth. The direction that the city shall use the twenty-acre tract as a location for the home for aged and poor people, and shall use the Race Track farm as a driving park and agricultural grounds, amounts to an absolute suspension of the power of alienation in perpetuity, and hence the devises of those parcels to the city are void.

1. "We shall spend but little time with the first of the foregoing contentions. Upon this point the circuit judge, in his opinion, very aptly says: “This clause forbidding the sale of these three parcels is contained in that part of the will relating to the powers and duties of said first trustees (i. e. the executors) while executing the trusts in favor of his widow and son, and does not apply after these trustees shall convey the title of these three pieces to the city of Water-town.” "With this construction of this clause of the will we entirely agree. It seems so obviously correct as to require no further elucidation. "With this construction the objection to the validity of the devises on this ground necessarily falls, because the suspension of the power of alienation is measured by two lives in being, to wit, the lives of the widow and the son of the testator.

2. There can be little or no doubt as to the power of the city to accept by devise property, either real or personal, for the purpose of establishing and maintaining a public library, or for the purpose of providing a home for residents of the city who are both aged and poor. By sec. 931, R. S., the city had power to establish a public library and reading room. By sec. 1499, R. S., it is charged with the relief and support of its resident poor and indigent persons when they stand in need thereof. The principle is well established that a city may accept devises of property made to enable it to carry out any of its legal duties or powers, and such devise may be made to the city in direct terms, or it may be made in trust for such uses. 2 Dillon, Mun. Corp. (4th ed.), §§ 566, 567 et seq. In addition to this general common-law power, the charter of the city of Watertown provides that the common council shall have power “ to locate, purchase sites, and let contracts for the erection and construction of public buildings; to acquire by gift, grant, devise, donation, purchase, or condemnation lands for parles and any other public purposes; and to sell, dispose of, and convey the same.” Certainly there can be no question as to the power of the city to accept devises of property made for the purpose of aiding it in the performance of any of its public duties and powers.

It might be a serious question whether the city has power to fit up and maintain an “old ladies’ home,” but it is not necessary to consider or decide the question, because the will, as we construe it, left it optional with the city authorities whether they should take the homestead immediately after the testator’s decease, and fit it up for this purpose. This option the city authorities exercised by deciding that such course was not advisable. Thereupon the homestead dropped back into the general trust estate, to be handled by the trustees until the termination of the trust in favor of the wife and son, and then to be deeded to the city if still owned by the trustees in accordance with the previous provisions of the will. Thus the scheme for an old ladies’ home has disappeared.

The direction as to the use of the Race Track farm as a driving park will be considered under the fifth head. Thus far we have found that there are two of the trusts laid upon the city by the will which it has power to execute, and consequently to receive property to aid it in such execution, namely: (1) The establishment and maintenance of a public library, and (2) the establishment and maintenance of a home for aged and poor people of the city. The question now arises whether it can establish and maintain a business .men’s club room, and, if not, whether the trust for library purposes is thereby invalidated. We have found no clause of the charter of the city expressly or impliedly authorizing the city to maintain such a room, nor do we know of any authority holding that such a purpose is germane to any of the objects of the corporation, and we think, upon principle, that it cannot be sustained. But the question whether the library trust is therefore invalidated is a different question, and one upon which we have received but little help from the briefs. The intention of the will seems quite plain that the public library is the important element of the trust, and the club room a comparatively unimportant accessory It is evidently to be but a room in the building to be erected for the library. Must the library devise fail because the testator has directed that one room of the building, which might easily be provided without appreciable addition to the expense, shall be occupied at times, free of rent, by a business men’s club? Such a result would be a reproach to the administration of justice. It has been held that where a devise otherwise valid is inseparably coupled with a void devise, and is a mere accessory thereto, and the amount of the valid part cannot be ascertained, then both must fall together. Chapman v. Brown, 6 Ves. 404; 1 Jarman, Wills, *336. That, however, is not this case. The illegal part of this trust would require for its purpose an utterly inappreciable additional expense, if indeed it required any at all; and we do not think that, under such circumstances, the valid devise, especially one so greatly for the public good, should be avoided. The courts are always favorably disposed to the establishment of libraries and hospitals, and all of the public institutions whose purpose is to ameliorate the condition of mankind. Gifts for such purposes are supported, if possible. We hold, therefore, that the library scheme does not fail by reason of the fact that the city cannot maintain the club room.

3. The library trust and the trust for the aged and poor are both active trusts, and are sufficiently definite to be capable of enforcement. This is sufficiently established by the previous decisions of this court, and does not require elaboration here. Dodge v. Williams, 46 Wis. 70; Webster v. Morris, 66 Wis. 366; Sawtelle v. Witham, ante, p. 412. Tbe details as to character and cost of buildings, and the relative amounts to be spent in building and to be reserved as funds for maintenance, are evidently matters which the testator wisely left to the discretion of the proper city authorities. The trust property may not be received by the city for many years, and the circumstances may be very different at that time from what they are now.

We construe the will as authorizing the sale of any real estate by the city which the trustees may ponvey to it at the expiration of the first trust. Although there is no specific power to sell given, we think such power must result by necessary implication from the various provisions, especially the provision authorizing the city to purchase real estate and erect a library building out of personal property and securities. Inasmuch as the testator left substantially no personal property which was to go into the trust funds, and did not direct his trustees to sell any, but rather prohibited them from selling the greater part of the real estate, the inference that he expected the city to sell is quite conclusive.

The objection that the amounts which are to be used for the respective trust purposes are not fixed by the will is not tenable. Had there been a trust to collect rents and pay them over to two persons, without fixing the respective shares, we suppose there would be no doubt but that each would be entitled to receive one half. Such, we think, should be the rule here, and such we construe the will to mean; there being no words indicating that either trust is to have the preference.

4. This objection we have already considered and disposed of in the discussion of the second objection.

5. We come now to the last objection, namely, that the devises to the city of the twenty acres in the Seventh ward and the Race Track farm are void under secs. 2038, 2039, because the power of alienation is perpetually suspended. This objection seems to us undoubtedly well taken. It is clear that the city is not a literary or charitable corporation organized for “their sole use and benefit;” hence, although the trusts are charitable in their nature, they do not come within the exceptions laid down in sec. 2039, and hence the absolute power of alienation cannot be suspended longer than two lives in being and twenty-one years thereafter. The evident intention of the will is that the twenty acres shall be perpetually used for the home for aged and poor people, and that the race track shall be perpetually used as a driving park and agricultural grounds. This plainly constitutes a future estate in each parcel with the power of alienation perpetually suspended, which, under sec. 2038, is void in its creation. This is plainly not a case where a fee has been devised and a repugnant condition attached, and where the condition is held void. Zillmer v. Landguth, ante, p. 607. But, as indicated, it is a future estate which illegally suspends the power of alienation, and hence the estate itself is void in its creation.

By the Gowrt.— Judgment reversed, and action remanded with directions to enter judgment in accordance with this opinion. The costs and disbursements of all parties in this court and the circuit court shall be paid out of the estate, and the county court of Jefferson county will make such allowance to the parties for counsel fees as in the exercise of a sound discretion may be just.