(1972) , 61 Op. Att'y Gen. 162 ( 1972 )

CLARKE SMITH, Secretary, Board of Regents of the University ofWisconsin System

Chapter 100, Laws of 1971, which became effective on October 12, 1971, created a Board of Regents of the University of Wisconsin System and transferred to it all the powers, duties and functions of the former Board of Regents of the University of Wisconsin, which had governed the so-called ch. 36 institutions, and the former Board of Regents of the State Universities, which had governed the so-called ch. 37 institutions. Separate central administrative offices for each of these types of institutions were maintained, however, and sec. 20 (10) of ch. 100, Laws of 1971, provides for the continued operation of the campuses of the ch. 36 institutions under ch. 36, Stats., and the campuses of the ch. 37 institutions under ch. 37, Stats.

Section 20 (6) of ch. 100, Laws of 1971, also provided:

"RECORDS, PROPERTY, GIFTS, ETC. The records, property, assets and liabilities of the board of regents of the university of Wisconsin and the board of regents of state universities shall become records, property, assets and liabilities of the board of regents of the university of Wisconsin system, except that anygrant, contractor, gift, endowment, trust or segregated fundsbequeathed or assigned to individual campuses for any purposewhatsoever shall not be commingled or reassigned." (Emphasis supplied)

In light of the above and the content of 46 OAG 143 (1957), you request my opinion on five questions. These questions are grouped, quoted below and followed by my answers to them.

"1. May the Board of Regents of the University of Wisconsin System use gifts or bequests to the University of Wisconsin which have become effective by actual transfer or the death of a testator prior to the effective date of Chapter 100 of the 1971 for or on behalf of all campuses within the present University of Wisconsin System, or must such funds be confined for use at those institutions presently operated under Chapter 36, Wisconsin Statutes?

"2. May the Board use gifts or bequests to the Wisconsin State University System which have become effective by actual transfer or death of a testator prior to the effective date of Chapter 100 of the Laws of 1971 for or on behalf of all campuses within the present University of Wisconsin System, or must such funds be confined for use at those institutions presently operated under Chapter 37, Wisconsin Statutes?"

In answer to the above questions, it is my opinion that the Board of Regents of the University of Wisconsin System must use gifts and bequests to "The University of Wisconsin," which gifts and bequests became effective by actual transfer or death prior to October 12, 1971, for the benefit of the campuses operating under ch. 36, Stats., and in accordance with the provisions of sec. 36.065, Stats. Similarly, such gifts and bequests to "The Wisconsin State Universities" must be used for the benefit of campuses operating under ch. 37, Stats., and in accordance with the provisions of sec. 37.115, Stats.

I so conclude because the intent of the testator or other donor governs. As recently stated in Estate of Mangel (1971), 51 Wis. 2d 55,64, 186 N.W.2d 276:

"* * * a will is to be construed to ascertain the intent of the testator; the intent of the testator is to be determined from thewords of the will and the surrounding circumstances at the timeof its execution. Estate of Boerner (1970), 46 Wis. 2d 183,174 N.W.2d 457." (Emphasis added)

Section 21 of ch. 100, Laws of 1971, designates that each four-year institution governed by the Board of Regents of the University of Wisconsin System shall be known as "University of Wisconsin-(location or name)." Prior to the effective date of ch. 100, however, "The University of Wisconsin" consisted only of campuses then (and now) operating under ch. 36, Stats., and "The Wisconsin State Universities" consisted of the campuses operating under ch. 37, Stats. The "surrounding circumstances," therefore, were such that a testator, who not only made the bequest but also died prior to October 12, 1971, clearly intended that the bequest be for the benefit of the institutions then encompassed within the meaning of the words "The University of Wisconsin" and "The Wisconsin State Universities."

If the Board of Regents of the University of Wisconsin System accepts or acquires an already-accepted bequest or gift, it must honor the expressed intent of the testator or donor as revealed by the instrument making the bequest or gift. See secs. 36.065 and 37.115, Stats., and, in general, 14 C.J.S., Colleges andUniversities, sec. 12, p. 1342. A gift or bequest effective by actual transfer or death of a testator prior to October 12, 1971, and made to "The University of Wisconsin" or "The Wisconsin State Universities" must, therefore, be used for the benefit of the institutions operating under ch. 36 or ch. 37, Stats., respectively.

46 OAG 143 (1957) does not concern the present type of situation and, therefore, is inapplicable to it.

"3. Must a gift or bequest to Wisconsin State University-(campus designation) be used by the Board solely for the benefit of that particular campus?

"4. Must a gift or bequest to the University of Wisconsin-(campus designation) be used by the Board solely for the benefit of that campus?"

The answer to both of these questions is "yes." See secs. 37.115 and 36.065, Stats. Further, sec. 20 (6) of ch. 100, Laws of 1971, which is quoted in toto above, expressly provides that "any gift, endowment, trust or segregated funds bequeathed or assigned to individual campuses for any purpose whatsoever shall not be commingled or reassigned."

"5. If a gift is to be limited in use to a particular campus or unit within the University of Wisconsin System, must that gift or bequest indicate such designation by specific reference to the campus or unit?"

If a gift or bequest is made to the Board for the use of a particular campus or other designated unit within the University of Wisconsin System, the Board must use the gift or bequest for the benefit of that campus or unit. If a gift or bequest, however, is made to the "Board of Regents of the University of Wisconsin System" without a designation that it be used on any particular campus it may, in the discretion of the Board, be used on any, some or all campuses.

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