Bardenwerper v. Smith

214 N.W. 391, 193 Wis. 409, 1927 Wisc. LEXIS 291

• Court: Wisconsin Supreme Court
• Decided: June 20, 1927
• Status: Published

Opinion

CítowNHART, J.

The statutes involved on this appeal are printed in the margin on pages 411 and 412.¹ sThe testator, Mary A. Lott, by her will devised and bequeathed, for the benefit of the Free Will Baptist Church in the village of Oakfield, all the residue of her estate, not otherwise disposed of, in the following language:

“Seventh. All the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath for the benefit of the Free Will Baptist Church in the village of Oakfield, to wit: I hereby direct that the same shall be converted into money and deposited in the Bank of Oakfield, at Oakfield, Wisconsin, on interest, with instructions to pay one hundred dollars per annum on the minister’s salary. The interest to be added to the principal each year and the donation of one hundred dollars per annum be made on the minister’s salary until the entire sum is exhausted.”

The property bequeathed and devised was converted by the trustee into cash, and the fund in trust amounted to some $2,000. Up to the time of the trial of the case the principal remained intact, the interest being sufficient to carry out the trust. The trust was properly executed until the time when the Free Will Baptist Church of Oakfield ceased to exist, after which time the Wisconsin Baptist State Convention applied to the county court to have the residue of said trust fund paid over to it. No question is raised by the appellant as to the constitutionality of ch. 64, Laws of 1907, and we think the statute is valid.

The Wisconsin constitution provides that the common law shall remain in force in Wisconsin until changed by the legislature. At the common law, under the English government, the king had power to dispose of charitable trusts where the express purpose of the trust had failed but the general charitable intent remained, and the courts have held that under our system of government the legislature succeeds to the prerogatives of the crown. Mormon Church v. U. S. 136 U. S. 1, 10 Sup. Ct. 792, 34 Lawy. Ed. 478; Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595. This being so, we are here to consider the purposes and intent of the testator as provided in the seventh clause of her will, and the meaning of ch. 64, Laws of 1907, as applied to this situation.

It seems reasonably clear that the testator, in devising and bequeathing certain of her property for the benefit of the Free Will Baptist Church of the village of Oakfield, created a trust whereby the trustee held, for the use and benefit of such church, the property in question. There is nothing in the will which provides for disposition of the property in case of failure of the trust.

Ch. 64, Laws of 1907, provided:

“All property of any kind belonging to, or held in trust for any Baptist church, or Baptist church and society, or Baptist society, organized under the laws of this state, that has become or shall become extinct by death of all its members or otherwise, shall vest in and become the property of the Wisconsin Baptist State Convention.”

And it further declared its intent, to wit:

“It being the intent and purpose of this act, to preserve to the Baptist denomination of this state all property owned by or held in trust, for any such church, or church and society, or society, for religious uses. This act shall not affect re-versionary interests of any person or persons, in said property, or any valid legal liens of creditors thereon.”

From the provisions of the law quoted it is plain that the legislature intended what in plain words it expressed, that is, that “all property of any kind belonging to, or held in trust for any Baptist church . . . organized under the laws of this state, that has become or shall become extinct by death of all its members or otherwise, shall vest in and become the property of the Wisconsin Baptist State Convention,” unless it may be said that the heirs of Mary A. Lott have a reversionary interest in said property, within the meaning of such act. No reversionary interest is expressed in the will in favor of such heirs, and if they had any it must be an implied reversionary interest. Nothing appears in the will to indicate any such implied reversion. On the contrary, such statute was in existence when the testator made her will, and she is presumed to have known the law; hence it is reasonable to infer that the testator intended that in case the express trust should fail, the statute would apply and the church to which she was attached would have the benefit of the trust. This would seem to most nearly carry out the will of the testator and the intent of the legislature. It has been held that no implied reversion exists under the law of this state. Maxcy v. Oshkosh, 144 Wis. 238, 128 N. W. 899, 1138.

Considerable discussion is had of the doctrine of cy pres in the briefs of counsel. It is admitted, however, that this court has refused to follow the doctrine in the exercise of its judicial powers. The doctrine as here considered is interesting only in disclosing its origin and the power of the crown which has descended to the legislature.

It follows that the order of the county court must be reversed.

.By the Court. — The order of the county court is reversed, with directions to enter an order according to this opinion.

1 “Section 1. All property of any kind belonging to, or- held in trust for any Baptist church, or Baptist church' and society, or Baptist society, organized under the laws of this state, that has become or shall become extinct by death of all its members or otherwise, shall vest in and become the property of the Wisconsin Baptist State Convention, a religious incorporation engaged in religious missionary work, and in fostering weak Baptist churches in this state, and organized under chapter 221 of the Laws of Wisconsin for 1852.

“Section 2. Any Baptist- church, or Baptist church and society or Baptist society, in this state, which has ceased, or failed to maintain religious worship, or services, or to use its property for religious worship or services, according to the tenets, usages and customs of Baptist churches in this state, for the space of two consecutive years immediately prior thereto or whose membership has so diminished in numbers, or in financial strength as to render it impossible or impracticable for such church, or church and society, or society, to maintain religious worship or services, or to protect its property from exposure to waste and dilapidation, or to fulfil the purpose for which it was incorporated, may by an order of the circuit court of the county where such property is located be declared extinct or dissolved, and the property of such church, or church and society, or society, or property which may be held in trust for such church, or for such church and such society or such society, be transferred to, and the title and possession thereof, vested in the said Wisconsin Baptist State Convention.

“Section 3. An application for such an order and disposition of property may be made by any member or officer of the said Wisconsin Baptist State Convention, or by any member of such church, or church and society, or society, when duly authorized thereto by the executive committee of the board of managers of said Wisconsin Baptist State Convention, upon a verified petition setting forth the facts authorizing such order and disposition of property. Upon the presentation of such petition to the circuit court of the proper county, such court may proceed in a summary manner after such notice as the court may prescribe to inquire into the merits of such application; and if upon examination by the court, it shall satis-' factorily appear, that making of the order and disposition of the property applied for, is necessary or proper for any of the causes mentioned in section 2 of this act, such court shall make a final order, declaring such church, or church and society, or society, extinct, or dissolving the same, and transferring any property and the title and possession thereof, which may belong to such church, or church and society, or society, or held in trust for such church, or church and society, or society, and vest the same in the said Wisconsin Baptist State Convention; it being the intent and purpose of this act, to preserve to the Baptist denomination of this state all property owned by or held in trust, for any such church, or church and society, or society, for religious uses. This act shall not affect reversionary interests of any person or persons, in said property, or any valid legal liens of creditors thereon.

“Section 4. Section 1, chapter 2S3, Laws of 1885, entitled ‘An act to amend chapter 221, of the Private and Local Laws of 1852/ is amended to read, to wit: All persons who are now, or hereafter may become members of the Wisconsin Baptist State Convention, shall be and hereby are ordained, constituted and declared to be a body politic and corporate under the name and style of the Wisconsin Baptist State Convention, and by that name they and their successors shall be known in law, and shall be capable of suing and being sued, of pleading and being impleaded, of answering and being answered unto, of defending and being defended, in all suits, complaints, matters, causes, courts and places whatever, both in law and equity, of acquiring by'purchase, gift or devise, or otherwise, or of holding or conveying any real, personal, or mixed property, necessary, proper or expedient for the object of this incorporation,” Ch. 64, Laws of 1907.