Estate of Robinson

^* Motion for rehearing denied, with $25 costs, on March 12, 1946. Proceedings on petition of Irving P. Robinson against Jean J. Mowrey and others as trustees, for termination of a charitable trust created by the will of Florence Porter Robinson, deceased. From an interlocutory judgment terminating the trust, directing trustees to render a final account and turn the trust personal property over to the register of probate distribution to the heirs of the testatrix, when determined by proof of heirship, the trustees appeal.

Florence Porter Robinson died July 14, 1926, leaving a will which was duly offered for probate in the county court of Milwaukee county. Objection was made to its allowance on the grounds that the testatrix was mentally incompetent, and that it was procured by exercise of undue influence by persons unknown. No evidence was offered to support the claim of undue influence. After a full hearing and explicit findings the mental competency of the testatrix the county court on August 23, 1929, entered judgment admitting the will to probate and establishing it "as a valid will." Appeal was taken to this court and the judgment was affirmed without opinion April 1, 1930. (Will of Robinson, 201 Wis. 656,229 N.W. 911.) A motion for rehearing was made by contestants and denied.

The will left the property of the testatrix, after a few specific bequests, in trust to persons named therein as trustees, who were duly appointed as trustees and received the property the testatrix from the executor of the will on April 29, 1937, and they and their successors have since administered the estate in furtherance of the purposes of the trust. It is to be noted in this connection also that the final order or judgment of the county court "settling" the executor's account contained provisions distributing to the trustees the personal estate of the testatrix and assigning to them the real estate "to be held and administered" by them "in accordance with the terms and provisions" of the will, particularly referred to and incorporating the provisions by reference in the order.

The will, after the specific bequests, gave all of the property of the testatrix "and all increment thereon" in trust to three named women friends "for the establishment and founding in the University of Wisconsin of a professorship of American history" upon the condition the trustees should arrange with the Regents of the University for the founding and establishing of such professorship, to be maintained perpetually and to be held by a woman with rank and emoluments of a professor and that she receive a salary of "not less than $6,000"a year. The will further provided that the succeeding trustees should always be women. It provided further that if such chair should not be arranged for with the Regents of the University of Wisconsin, the trustees endeavor to make arrangements for the founding of such professorship with the authorities of the University of Chicago; and if for any reason it should become impossible within five years to arrange with either the Regents of the University of Wisconsin or the governing authorities of the University of Chicago to found such professorship, then the property should be distributed "as provided by the statute in cases of intestacy." The will provided that the trustees should add income to corpus until the fund should produce an income of $6,000 a year when this income should be paid over to the Regents of the University of Wisconsin (or Chicago) "to be paid by them to the professor who shall occupy said professorship."

Following the admitting of the will to probate the Board of Regents of the University of Wisconsin on June 21, 1930, passed a resolution that it should and thereby did "accept all of the benefits arising from the trust created" in the will, and directing and empowering the president of the university and the secretary of the Board of Regents to take all steps necessary "for the establishment and maintenance of such professorship in accordance with the terms" of the will.

On March 4, 1931, the Board of Regents adopted another resolution reciting that whereas the will provided that arrangement for the said professorship in the University of Wisconsin "to be effective must be made. within a period of five years from and after the death of the testatrix," the board "shall and hereby does establish and found a professorship of American history in said university to be maintained in accordance with the terms and provisions" of the will, and directing the president and secretary of the board and the president of the University of Wisconsin and their successors to take all steps necessary for such maintenance, and the resolution expressly adopted and confirmed the act of the board in passing the resolution of June 21, 1930.

Minutes of the meetings of the Board of Regents show that on June 18, 1937, a motion was passed that the board reconsider its action "accepting the bequest" and on June 19th a motion was passed that the bequest "be rejected." It should perhaps be stated that President Dykstra had requested an opinion of the attorney general whether the board could rescind its action accepting the benefits of the will and that the attorney general had given his opinion that it could not, and that the board was informed of the giving of the opinion; that it may also be noted that Governor La Follette, after the adoption of the motion for rejection, by letter requested the attorney general "to appear and represent the state in all actions or proceedings concerning the bequest to the University of Wisconsin under the will of Florence Porter Robinson, and to do all things necessary or convenient to insure the benefit of said bequest to the university" and that pursuant to this request the attorney general, with consent of the court, filed herein a brief amicus curiae for consideration on the instant appeal.

On June 19, 1944, the heirs of the testatrix petitioned the court for a judgment terminating the trust created by the will on the ground that it was impossible or impracticable of execution. Hearing was had upon this petition and, so far as the record discloses, the petition was decided upon the files and records of the county court in the instant case, including several annual accounts of the trustees and the record of the acts of the Board of Regents of the University of Wisconsin in reference to the bequest for the establishment of the professorship. Acting County Judge BUCKLIN who heard the matter filed an opinion and made specific findings of fact by which he found that the trust property had deteriorated from about $50,000 originally to property of the present value of $25,000 to $30,000; that the income of the property has never equaled the expense of administration and the income is constantly diminishing; and that the resolutions of the Board of Regents rescinding their actions respecting acceptance of the trust imposed on the board by the will operated as a "lawful withdrawal" of their acceptance. The findings recite the provision of the will that "if it becomes impossible or impracticable for the trustees to arrange for the establishment or maintenance of such professorship" the trust property shall be "divided and distributed as provided by the statutes in cases of intestacy." The judgment entered determines that the trust created by the will "is now impossible or impracticable of fulfilment within the meaning of the said will;" that the trust is terminated; and that the trustees account for and deliver to the register of probate the residue of the trust property so that further proceedings may be had to the end that it may be assigned and distributed among the heirs at law of the testatrix to be determined by proof of heirship to be made. From the foregoing statement of facts it appears that the will of Florence Porter Robinson was duly admitted to probate by the county court of Milwaukee county, and the judgment so admitting it was affirmed by this court. The will created a charitable trust and the judgment before us for review terminated that trust as "impossible or impracticable of fulfilment" and adjudged that the trust property be distributed to the heirs at law of the testatrix as they shall be determined by the county court upon proofs of heirship later to be made.

The will provides for two sets of trustees, one set consisting of three women trustees whose duty it is to manage the trust property and add its income to the corpus until a sufficient corpus is accumulated to yield an income of $6,000 a year and that they then pay that income to the Regents of the University of Wisconsin, and the other set consisting of the Regents of the University of Wisconsin whose duty it is to establish and to maintain out of income received from the women trustees, a professorship to be held by a woman and pay over to the occupant of the professorship the $6,000 income when it is received by them. That two kinds of trustees may exist together is indicated in 1 Bogert, Trusts and Trustees, p. 372, sec. 122.

The judgment of the court terminating the trust is proper if a finding of fact is permissible that the trust property Cannot possibly ever amount to enough by adding income to corpus to yield $6,000 annually. 4 Bogert, Trusts and Trustees, p. 2914, sec. 997, note 61; p. 2930, sec. 1002, note 32; Will ofStack, 217 Wis. 94, 100, 101, 258 N.W. 324. But from what was said and done in the Stack Will Case and in the case ofEstate of Thronson, 243 Wis. 73, 75, 9 N.W.2d 641, when it appears that if the main purpose of a will creating a trust cannot be accomplished by continuing the management of the trust according to the direction of the will but may be accomplished by deviating the management from that specified by the will, deviation should be ordered by the court having supervision of the trust in order to effect the main purpose. It is plain that the main purpose of the instant will was to procure the establishment of the professorship and its maintenance from the income eventually to be accumulated from the trust property. Such deviation is expressly authorized in case of charitable trusts. by sec. 231.11 (7) (d), Stats. The statute reads:

"Where the fulfilment of the special purpose expressed in a trust or other gift for charitable or public purposes is or becomes impracticable, impossible or unlawful, it shall be the duty of the courts by a liberal construction of the trust or gift to ascertain the general purpose of the donor and to carry it into effect in the nearest practicable manner to the expressed special purpose. . . ."

The brief of the attorney general filed herein as amicuscuriae points out that the expense of the administration of trust funds by the University of Wisconsin is .00147 of the corpus, less than $30 a year for administering $20,000. The annual account of the trustees filed in the county court shows gross income of $692.31 from the trust property in the year 1943. Offsetting this are expenditures for attorney's fees, $500, trustees' fees, $225, inheritance tax, $100, and incidental expenses $48, aggregating $923. The 1944 account shows gross income $603.87, and offsetting this are items for bond of trustees, $135, trustees' fees, $300, attorney's fees, $476, incidental expenses, $94, total $1,005. The total of attorney and trustee fees for the eight years the trustees have had charge of the trust property is $4,421. If the property were administered for $30 a year it is obvious that sometime its accumulations would yield an income of $6,000 a year. The finding of the trial court that the trust property will never yield $6,000 a year is based on the hypothesis that the management of the trust property will be continued as specified in the will. We cannot say that this finding is not supported by the evidence. But it is obvious that if the property is taken over in trust by the Regents of the University to manage the expense of the present management above mentioned will be obviated, and as above stated the main purpose of the will will eventually be accomplished.

From the trial judge's written opinion it appears that he was of opinion that the passing of the motion of the Board of Regents rescinding their acceptance of the trust imposed on them by the will operated as a lawful withdrawal of their acceptance and left no possibility of the professorship being established and that this was a ground for termination of the trust.

The briefs of the appellants and of the attorney general contend that the Board of Regents having once accepted the trust imposed on them by the will had no power to withdraw their acceptance. The case of Maxcy v. Oshkosh, 144 Wis. 238,128 N.W. 899, 128 N.W. 1138, supports this contention. There is no difference in principle between the case of the city of Oshkosh having no right to refuse to carry out a charitable trust that it has accepted and the Regents of the University having no such right. Drury v. Natick, 10 Allen (92 Mass.), 169; Attorney General v. Lowell, 246 Mass. 312,141 N.E. 45; Kibbe v. Rochester (D.C.), 57 F.2d 542, support the proposition. It is to be noted that Drury v. Natick,supra, was considered in the Oshkosh Case, supra, as supporting the decision there made. The cases of Langdon v. Congregational Society of Plymouth, 12 Conn. 113, and Hansen v.Oregon Humane Society, 142 Or. 104, 18 P.2d 1036, also inferentially support the proposition that the regents had no power to rescind their resolutions of acceptance, as the defendants in these cases were corporations whose existence would continue indefinitely, and the same reason for applying the rule of those cases to them applies to a municipal corporation.

It is true that in the cases above cited the municipalities actually received the trust property, while here the regents have as yet received nothing. But the trustees have been administering the property in reliance on the acceptance of the regents, and the trust has been administered by the court relying on such acceptance. Under these circumstances the regents had no power to rescind their resolutions of acceptance. It is also to be noted that as the University of Wisconsin authorities by acceptance of the trust of establishing and maintaining a professorship as provided for by the will, and thereby preventing the managing trustees of the trust from negotiating with the authorities of the University of Chicago to establish the chair and carry out the trust, is estopped from declining the trust after the five-year period for creating the trust had expired.

However, while the Board of Regents had no power to rescind their acceptance of the trust, their acceptance of their trusteeship did not impose on them the duty of administering the trust imposed on the women trustees. Their acceptance imposed the duty of establishing and maintaining the professorship free from the burden of administering the trust property. It is in the discretion of the regents now to refuse to take on themselves that burden if they see fit to do so.

Under the circumstances we consider that the judgment of the county court should be reversed with direction to the county court to vacate the judgment under review and to tender to the Regents of the University of Wisconsin appointment as successor trustees to the women trustees with all the powers and subject to all the duties of such trustees; and with provision that if the Board of Regents accept such appointment judgment be entered dismissing the instant petition; and with provision that if the Board of Regents decline such appointment the judgment under review be reinstated.

By the Court. — The judgment of the county court is reversed with direction for further proceedings in accordance with the opinion. No costs will be allowed in this court except the appellants will pay the clerk's fees.