Tharp v. Seventh Day Adventist Church ( 1923 )

The following opinions were filed October 16, 1923:

Vinje, C. J.

No argument is made upon the incorrectness of the» findings, so they stand as verities in the case. The legal questions raised are (a) that the circuit court should not have taken jurisdiction of the case, and (b) that the circuit court erred in holding the trust to the Seventh Day Adventist Church void for uncertainty.

Counsel for appellants rely upon the rule stated in Pietraszwicz v. Pietraszwicz, 173 Wis. 523, 529, 181 N. W. 722, to the effect that, though the circuit court has concurrent jurisdiction with the county court, yet the former will refuse to assume jurisdiction unless the lack of power to-grant adequate relief in the county court is clearly shown. That is undoubtedly the general rule, but an exception has always been made to cases calling for the construction of wills. Speaking of this exception the court in Burnham v. Norton, 100 Wis. 8, 12, 75 N. W. 304, says:

“Jurisdiction of such matters has been uniformly exercised by the circuit court though specially conferred on county courts by statute. So it is said that nothing short of an express statute on the subject can change the practice in that regard.” Citing Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935. See, also, Giblin v. Giblin, 173 Wis. 632, 182 N. W. 357.

The trial court therefore properly exercised its jurisdiction in trying the case.

Is the bequest to the Seventh Day Adventist Church void for uncertainty? It will be seen from the findings of fact that the words “Seventh Day Adventist Church” do not signify any specific incorporated or unincorporated religious body; that there was no Seventh Day Adventist Church in the locality where testator lived; that he was not a member of or an attendant on any Seventh Day Adventist Church; that the officers of local churches consisted of an elder, a deacon, a clerk, a treasurer, and a missionary secretary; that they have no trustees and are unincorporated; that the various local and general organizations are engaged in distributing tracts and literature and that their teachings are not always the same. In view of these facts and others found by the trial court we think its conclusion that the bequest was void for uncertainty was correct. No power was given to the trustee to select an organization or church. He was required to pay to the “proper trustees.” Who were the proper trustees? The local churches had no trustees, but assuming that the word “trustees” meant officers, to what officers should he pay ? Had the testator been a member of or attendant upon a local church the inference might arise that he intended his own church to be the beneficiary. But he was not connected with any Seventh Day Adventist Church, local or otherwise. It therefore becomes impossible to designate with any degree of reasonable certainty what Seventh Day Adventist Church, local or general, incorporated or unincorporated, was meant. Neither the trustee nor the court, had they otherwise the power, could determine with reasonable certainty who were the “proper trustees” or the proper church organization to receive payment. In our state the doctrine of cypres does not obtain. Heiss v. Murphey, 40 Wis. 276; Will of Fuller, 75 Wis. 431, 435, 44 N. W. 304; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345. The beneficiary must be designated with reasonable certainty or the trust fails. Holmes v. Walter, 118 Wis. 409, 95 N. W. 380. Here it was not so designated and the trust must be held invalid.

We think the case comes well within the decisions of Heiss v. Murphey, supra; Will of Fuller, supra; Harrington v. Pier, supra.

By the Court.- — -Judgment affirmed.