The following opinion was filed January 14, 1879:
Etas, C. J.
“Every sane man .must he allowed to make his own contract as well as his own will,” says Gibson, C. J. That great jurist plainly suggests that courts have no more authority to make wills for the dead, than contracts for the living, according to judicial notions of fitness and propriety. Bash v. Bash, 9 Pa. St., 260. Breaking a will is very much like making one; imposing upon the testator the statutes of descent and distribution against his solemn wish in dying. Perhaps courts have been quite too willing to do so. There is a vicious notion prevalent that any will not acceptable to the testator’s next of kin may be broken in the courts upon very frivolous grounds. But every one should have the same power to dispose, by will, after his death, in accordance with his own wishes, of whatever he may leave behind him in his [91]*91own sola right, as he had in life to dispose of it by contract or by gift. And it is as much the duty of courts to uphold and enforce his will after death, as to uphold and enforce his contracts made during life.
Of course, devises and bequests as well as contracts may be void upon many grounds. But it is the policy of the law not to seek grounds to avoid either; but so to deal with both, if it can be done upon sound legal construction, as to uphold and enforce them.
In some of its aspects, this cause appears almost to have been argued as if it were the duty of the court to lean against bequests for charitable uses, in favor of claimants under the statutes of distributions. Erom time immemorial the general inclination of courts of equity has been the other way. “ Charity in thought, speech and deed challenges the admiration and affection of mankind. Christianity teaches it as its crowning grace and glory. . . . Charitable bequests are said to come within that department of human affairs where the maxim ut res magis valeat guam jyereat has been and should be applied.” “ Courts look with favor upon all such donations, and endeavor to carry them into effect, if it can be done consistently with the rules of law. ... As Lord Haedwioke said, ‘ the bequest is not void, and there is no authority to construe it to be void, if by law it can possibly be made good,’ or, in other words, ‘ there is no authority to construe it to be void by law, if it can possibly be made good.’ ” Perry on Trusts, secs. 687,709.
And so it is the duty of this court to uphold the charitable bequests of the will in this case, if it can be done without violating any provision of statute or principle of law. But, at the same time, it is the duty of the court carefully to weigh the objections made against the bequests, and to give effect to any sufficient to render the bequests void in law.
After the payment of certain specific legacies in money, the testator gives the residue of his estate, real and personal, to [92]*92his executors, upon trust to pay it over to four institutions of leaniing, in the proportions and manner directed by the will, for a specified charitable use. Some of the objections made are common to all the bequests; some are Confined to one. These ■will be considered in their order.
The argument was learned and able on both sides, and a great number of cases were cited on a subject which has been prolific of litigation. All the cases cited, and others, have been carefully considered; but it would be impracticable, without extending this opinion beyond reasonable limit, to review them all in detail. It is thought sufficient to give the conclusions of the court derived from them all, with occasional reference to some of them more directly in point.
I. Many charitable bequests have been defeated in the English courts under the statute of mortmain, 9 George II, c. 86; and some reliance appeared to be placed on the position that the bequests in this case were void under that statute. That statute has never been adopted or in force here.
The last clause of the English statute excepts from its operation estates, real and personal, in Scotland; and it appears not to have extended to Ireland. Attorney General v. Power, 1 Ball and B., 145. It seems to have been a matter of some doubt how far the English statute could be held to have extraterritorial application. Campbell v. Radnor, 1 Brown’s C. C., 271; Oliphant v. Hendrie, id., 571; Curtis v. Hutton, 14 Vesey, 537; Mackintosh v. Townsend, 16 Vesey, 330; Attorney General v. Mill, 3 Russell, 328; Baker v. Sutton, 1 Keen, 224. But it does not appear ever to have been held to be in force in any of the British colonies.
The question of the applicability of the statute of mortmain to the British colonies appears to have been first considered in Attorney General v. Stewart, 2 Merivale, 143. Sir William GRANT quotes and approves the language of Blackstone as “ in a great degree applicable to any colony to which the laws of England may be extended.” “ It hath been held, that if an [93]*93uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force. But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony.” He then proceeds to consider the particular question, holding, for the reasons which he assigns, that the English statute of mortmain constituted no part of the law of the colony in question. “ "Whether the statute of mort-main be in force in the island of Grenada,.will, as it seems to me, depend on this consideration- — -whether it be a law of local policy adapted solely to the country in which it was made, or a general regulation of property equally applicable to any country in which it is by the rules of English law that property is governed. I conceive that the object of the statute of mortmain was wholly political — that it grew out of local circumstances, and was meant to have merely a local oj)eration. It was passed to prevent what was deemed a public mischief, and not to regulate, as between ancestor and heir, the power of devising, or to prescribe, as between grantor and grantee, the forms of alienation. It is incidentally only, and with reference to a particular object, that the exercise of the owner’s dominion over his property is abridged.
“ It is true that the disherison of lawful heirs is recited as one of the consequences of the unlimited power of devising to charitable uses, and heirs may consequentially be benefited by the prohibition. But generally to restrain the power of' devising was not in the contemplation of the legislature. Heirs are as liable as before to be disinherited by will, provided the disherison be not in favor of the prescribed object. The thing to be provided was a mischief existing in England; and it was by the quality and extent of the mischief as it there existed, that the propriety of legislative interference [94]*94upon tlie subject was to be determined. Tbe statute begins by referring to the ancient laws made against alienations in mort-main. None of the causes in which those laws originated had ever had an existence in the colonies. It then recites that this public mischief had of late greatly increased. There is locality in that assertion. It was in England, that the mischief had increased, and in England only was it thought necessary to impede its progress. To no other part of the dominions of the ci’own was this law extended. Yet it was competent to the legislature to have made it the law of every colony belonging to Great Britain. I do not believe that it could even now be stated with respect to any of our colonies, that the practice of devising lands to charitable uses has prevailed to any inconvenient extent. In Jamaica, the wealthiest of our West Indian possessions, it has not to this day been thought necessary to guard against any such evil. I do not indeed know that any colonial legislature has made any regulation on the subject, although in none of the old colonies can the mortmain act have any operation. For a long' series of years, devises to charitable uses had in this country been wholly unrestrained; and, until they began to grow excessive in their amount, it was not reckoned necessary to restrain them. What the legislature had to consider was, whether, as there was so much of the land of England already in mortmain, it was not expedient to lessen the facility of putting more of it into that situation. That was a consideration purely local. It related to land in England, and to land in England only. The statute contains some exceptions. These exceptions are also local, and still further show the local nature of the law, and how little it can be considered as a general regulation of property.” This case was approved and followed by the Lords Justices in Whicker v. Hume, 1 De Gex., M. & G., 506, affirmed in the House of Lords, 7 H. of L. Cases, 124.
When this state was part of a vast wilderness, and all prop[95]*95erty, real and personal, was in the Indian tribes or in the British Crown, the statute of mortmain was not merely inapplicable, hut had no possible office to fulfill.
If the English statute of mortmain was not in force'in Wisconsin while it was part of or appendant to an English colony, it seems very certain that it has never since had any force here. See the Michigan statute of 1810, R. S. of Michigan of 1833, p. 563; R. S. of 1839, p. 407. See, also, Odell v. Odell, 10 Allen, 1; Perin v. Carey, 24 Howard, 465.
All that has been said of 9 George II, c. 36, applies equally to 39 and 40 George III, c. 98, known as the Thellusson Act.
The poor we have always .with us. When charitable bequests" in this state begin to outrun reasonable provision for the poor, and seriously impede the alienation of property, it will be time enough for a statute of mortmain. The silence of the legislature hitherto, and the observation of all men, are sufficient to show that the time has not yet come, if it ever should.
II. Strenuous objections to the charitable bequests in the will before the court, were founded on the statutes prohibiting perpetuities, and regulating uses and trusts. Chaps. 83 and 84, R. S. of 1858. It is almost sufficient to say, for the purposes of this case, that both of these statutes are expressly limited to realty.
The English doctrine of perpetuities applied to estates both real and personal, and grew up by a series of judicial decisions. Perry on Trusts, secs. 377, 379. It appears to have been applied to private trusts, but not to trusts for charitable uses, which usually are essentially and indefinitely permanent. Perry, secs. 384, 687, 736.
“ The rule of public policy which forbids estates to be indefinitely inalienable in the hands of individuals, does not apply to charities. These, being established for objects of public, general and lasting benefit, are allowed by the law to be as permanent as any human institution can be, and courts [96]*96will readily infer an intention in the donor that they should he perpetual. 1 Spence on Eq., 588; Mayor, etc., of Bristol v. Whitson, Dwight’s Charity Cases, 171; Magdalen College v. Attorney General, 6 H. L. Cas., 205; Perin v. Carey, 24 How., 465; King v. Parker, 9 Cush., 82; Dexter v. Gardner, 7 Allen, 246. If an alienation of the estate becomes essential to the beneficial administration of the charity, it may be authorized by a court of chancery. Tudor on Charitable Trusts, 298, and cases cited; Shotwell v. Mott, 2 Sandf. Ch., 55; Wells v. Heath, 10 Gray, 27.” Odell v. Odell, 10 Allen, 1; Ould v. Washington Hospital, 5 Otto, 303.
But were this otherwise, the statute limiting the rule against perpetuities to realty, manifestly abrogates the English doctrine as applicable to personalty. Expressio unius exelusio alterius.
The will in this case gave to the executors, as executors, power of sale of the testator’s realty. The direction to the executors, as trustees, is to pay and deliver the sum of five thousand dollars each, to the Wisconsin Female College, the Ripon College and the Beloit College, for a common, specific, charitable use. These are expressly bequests of money. The will subsequently emphasizes this, by speaking of the bequests as sums given ■ and paid, and prohibiting their being mixed with the general fund of any of the colleges. The will then proceeds to direct the trustees to fay over and deliver the residue of the estate to an institution of learning to be organized at Beaver Dam, for the like charitable use. Failing the organization of the Beaver Dam institution as specified in the will, the trustees are directed to pay and deli/oer the residue in equal proportions to the three former institutions, to be used and applied as therein above directed; plainly meaning the direction given for the use of the bequests of five thousand dollars each. If and when the residue should be paid and' delivered to the three former institutions, it would plainly come within the direction already noticed for the use of “ all [97]*97sums so given and paid to said institutions,” not to be mixed with the general fund. This plainly contemplates the conversion of all the testator’s realty into personalty by his executors; the trust to be executed in personalty exclusively. The words, pay and deliver, are, by every rule of construction, used throughout the will in the same sense, and are applicable to personalty only. The word convey is used but once in the will, in the power of sale given to the executors. The manifest construction of the will is, that it was the intention of the testator that his executors should convert all his realty, and execute his bequests in personalty only.
When a will contains a. power of sale, not mandatory in terms, but it is apparent, from the general scope and tenor of the will, that the testator intended all his realty to be sold, the power of sale will be held imperative, and the doctrine of equitable conversion applied. Courts of equity will deal with the estate as personal from the death of the testator. Chandler’s Appeal, 34 Wis., 505; Dodge v. Pond, 23 N. Y., 69; Craig v. Leslie, 3 Wheaton, 563.
The bequests in this will must therefore be considered as bequests of personalty only." And for that reason, if for no other, the bequests to charitable uses are unaffected by the statute of perpetuities or the statute of uses and trusts.
It is not unworthy of remark, that, however the statute of perpetuities, or the statute of uses of 1858, might have affected grants or devises of realty for charitable uses, all doubt is removed by sections 2039 and 2081 of the late revision, which most properly make exceptions in favor of charitable uses.
It is proper to say in this connection, that a statute of New York, 1 Revised Statutes, 773, applies the doctrine of per-petuities to personal estate, without exception in favor of charitable uses. This renders New York cases on this point inapplicable here. Levy v. Levy, 33 N. Y., 97.
III. The charitable use. of the bequests is the education [98]*98and tuition of worthy indigent females. This is clearly within ■ the terms of the statute of 43 Elizabeth, c. 4, and of all the definitions of all courts thence hitherto.
It was contended that the bequests are void on the ground that the scheme of the charity is uncertain. It is difficult to see how it could be safely made more certain. As to the three institutions existing when .the will was made, sums of money are given to go as far as they may to the education of poor females, plainly signifying such education as other females receive in those institutions. And so of the contemplated institution; the education provided for is such as is usually given in other similar institutions.
Public charities, indefinite in terms, are necessarily limited in their administration by the amount of the foundation. Where the founder does not provide a rule or order of selection, there is, therefore, in every public charity, a necessary power of selection of beneficiaries in the trustee. If the power be abused, the state, in the exercise of its visitatorial power, will correct it. Re Taylor Orphan Asylum, 36 Wis., 534; Perry on Trusts, sec. 732.
It was objected that the beneficiaries of this charity are uncertain. A charitable use is essentially shifting. When a trust defines the beneficiaries with certainty, it is rather private than public. As Mr. Perry remarks, charity begins where uncertainty of the beneficiaries begins. Sec. 687. “ It is no charity to give to a friend. In the books it is said that the thing given becomes a charity where the uncertainty of the recipients begins. This is beautifully illustrated in the Jewish law, which required the sheaf to be left in the field for the needy and passing stranger.” Fontain v. Ravenel, 17 Howard, 369. “ It is the number and indefiniteness of the objects, and not the inode of relieving them, which is the essential element of a charity. ... A good charitable use is £ public,’ not in the sense that it must be executed openly and in [99]*99public; but in tbe sense of being so general and indefinite in its objects as be deemed of common and public benefit.” Saltonstall v. Sanders, 11 Allen, 446.
It was objected that the charters of the three institutions existing when the will was made, give no power to execute such a trust. The charters do not quite appear to verify the objection. But ch. 297 of 1873, which took effect before the will, appears to remove all difficulty on this point, by giving to all incorporated colleges in the state express power to receive donations and manage the same for the uses for which they are given; thus authorizing them all to act as trustees for charitable uses. And this statute perhaps operated to repeal, as to the corporations designated, all previous provisions having effect to limit trusts for charitable uses.
IY. These views are believed to be supported by nearly all the English cases not controlled by the statute of mortmain, and by the very general current of American cases on the subject. It might be difficult, perhaps, to reconcile all the cases upon common principles, yet the difference is, perhaps, generally rather in the application of rules of decision, than in the rules themselves. The greatest divergence from the common principle appears to be in some of the later cases in New York, which seem to be more or less in conflict with rules almost universally recognized elsewhere. Perhaps this may suggest a policy in that state against the increase of public charities, somewhat indicated also, by the sweeping statute against perpetuities of personalty, without exception in favor of charitable uses, and by the adoption of a limited statute of mortmain. 4 Edmunds’ N. Y. Statutes, 504. A great number of English and American cases in support of' the views held to govern this case, are cited in the briefs of counsel, and. need not be referred to here. Others are cited by Mr. Perry.
There are some passing remarks to be found in Ruth v. Oberbrunner, 40 Wis., 238, and Heiss v. Murphey, id., 276, [100]*100apparently more or less in conflict with what is now held. Bnt those are apparently mere inaccuracies of remark, so common in discussion, not involved in the decision of those cases. No question of charitable use was in either case, and no question of trust in Heiss v. Murphey. In Ruth v. Oberbrunner, the devise was in trust “ to hold for the use and benefit of the order of St. Dominican and St. Catherine’s Female Academy,” not corporations. There is no suggestion in the will of any charity. The trust appears to have been private, not public. It was a passive trust, under which the trustee would take no title. And the trust apparently failed for want of any certain cestui que trust to take the legal title under the statute. In Heiss v. Murphey, the devise was in fee directly to an uncertain and indefinite number of persons, not capable of being ascertained with certainty, “ the Roman Catholic orphans of the diocese of La Crosse,” and the devise failed for want of known and certain devisees. The chief justice having been consulted at the bar in the matter, took no part in Ruth v. Oberbrunner, and can speak of the case only by the report. But Heiss v. Murphey was certainly decided by the court on the ground just stated.
Y. The fourth bequest was to a contemplated institution, not yet in being when the will was made or took effect. The will gives five years for its organization on the terms prescribed. The record does not disclose whether it has yet been organized or not.
It was argued against the bequest, that the trustee to whom it was first to go, is an indefinite body, essentially uncertain, which need not, by the terms of the will, be incorporated. The objection is more subtle than sound. The bequest is made to an institution of learning for the education and training of females, of a character and organization commonly called and known as a female seminary, to be organized by the end of five years. The words, institution and organized, appear to imply an incorporation. A private school or college may by courtesy [101]*101be called an institution, according to tbe American fashion o promoting people and things by brevet names. But, in legal parlance, an institution implies foundation by law, by enactment or prescription. One may open and keep a private school; he cannot properly be said to institute it. So organization generally implies legal organization; in an instance like this, corporate organization. A voluntary association may be formed at will; but it can be legally organized by authority of statute only. So one or more private persons may open, keep and regulate a private school or college; but cannot be said, with legal accuracy, to organize it. The language of the will, therefore, appears to contemplate an incorporated college. It certainly admits of that construction. And, by the rule already stated, the court is bound to give it that construction to support the charitable use, ut res magis valeat guam fereat.
And the only question which distinguishes this bequest from the others is, whether a bequest for a charitable use can be made to a corporation not in esse when the will is made or takes effect. This was apparently looked upon as a more difficult question than the others; and yet, on principle, it is not very plain why it should be.
The four bequests are for one charitable use. The fourth is suspended for five years; and is then to go to a corporation to he organized in the manner provided by the will, if such corporation should be in fact so organized; failing the contemplated corporation, then the bequest is to be distributed to the three existing corporations. And so, under the will, there can be no failure of a trustee to take and administer the bequest.
Bequests for charitable uses to be administered by a corporation are sometimes of such a character and extent as necessarily to require the creation of a new corporation to administer them. This was the case under the will of Mrs. Taylor, considered in Re Taylor Orphan Asylum, supra, and [102]*102in Gould v. Taylor Orphan Asylum, presently decided. It is true that the will in that case appointed intermediate trustees to administer the charitable use, until the corporation should, be created. But the will manifestly designed the trust to devolve ultimately upon the corporation. That provision distinguishes that will from this. But had that provision been omitted, and had the charitable use lapsed for want of a trustee in esse, it would have been a reproach to the administration of justice. The rule has the sanction of very high authority, that equity will not suffer a charitable use to be defeated for want of a trustee. “ If a donor makes a gift in trust for a particular charitable purpose, as to establish a particular school, hospital, asylum, or other charitable institution, and appoints no trustee, or the trustee appointed by him is incapable of taking the gift and of acting in that behalf; or if the trustee dies before the testator, or declines to act; or if trustees are named or appointed who are not in esse, but are to come into existence thereafter, as by an act of incorporation,— courts of equity, in the exercise of their ordinary jurisdiction, can establish the charity; for it is their invariable practice not to allow a legal and valid trust to fail for want of a trustee. Therefore, courts will appoint trustees in such cases to take up and carry out the clear purposes of the donor, and they will order the heir or legal representatives to hold the fund upon the declared trust, until trustees can be appointed to execute the trust as contemplated. In exercising this jurisdiction, courts are called upon to exercise no extraordinary or prerogative powers. In the matters thus far discussed in the four preceding sections, there is no room for the eypres doctrine, as it is called, as a judicial doctrine. So far as courts have sustained charities, as courts, they have sustained them within the strict limits of ordinary chancery jurisdiction.” Perry on Trusts, sec. 722; Hayter v. Trego, 5 Russ., 113; Denyer v. Druce, Tamlyn, 32; Reeve v. Attorney General, 3 Hare, 191; Inglis v. Sailors' Snug Harbor, [103]*1033 Peters, 99; Ould v. Washington Hospital, 5 Otto, 303; Fellows v. Miner, 119 Mass., 541; Williams v. Pearson, 38 Ala., N. S., 299. The case of Inglis v. Sailors’ Snug Harbor is very like the present, and the opinion of Thompson, J., is learned and instructive in this case.
Under these authorities, it is the duty of the court to support the fourth bequest, and thus to carry out the benevolent purpose of the testator in devoting the residue of his estate to an excellent charity.
This view renders it unnecessary to consider at any length the question argued at the bar, whether, if this bequest had been void, the bequest over of the residue to the three existing corporations would have been also void. The views already expressed indicate the opinion of the court that, had the bequest to the nonexisting corporation failed for want of a trustee, the bequests over to the three existing corporations for the same charitable use would have been valid. It appears to be merely providing, out of greater precaution, for a second trustee, failing the first.
“ If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any technical objection shall now be interposed to defeat his purpose, it will form an exception to what we find so universally laid down in all our books as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. But no such difficulty, in my judgment, is here presented. If the intention of the testator cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove all difficulty.” Thompson, J., in Inglis v. Sailors’ Snug Harbor.
By the Court. — The judgment of the court below is affirmed.