.The following opinion was filed May 24, 1910:
KbRWIN, J.
The respondents, heirs at law, attack the will under consideration upon the grounds: (1) That it is void, independent of any statute, for uncertainty and indefiniteness; (2) that it attempts to create a private trust in violation of ■statute; and (3) that if it attempts to create a public trust it is nevertheless void because under the equity powers of the ■court it is too indefinite and uncertain to be enforced. On the part of the appellant it is insisted that the will is simple, the intent plain, and the purpose lawful; that it creates a public charity and as such is valid. Respondents rely mainly upon McHugh v. McCole, 97 Wis. 166, 72 N. W. 631. Starting with the proposition laid down in McHugh v. McCole, supra, that the trust was private and, therefore, too indefinite and uncertain to be enforced by a court of equity, the court easily reached the conclusion that the be>quest for masses was void. No proof was made in the Mc-Hugh Case that the masses were not private in their nature and for the sole benefit of the souls of the giver and others specifically mentioned. No evidence was offered as to the nature of masses, whether public or private, and the court rested its opinion upon the idea that the trust was purely private. Had the court started with the proposition that a [95]*95bequest for masses is a public charity, a different conclusion, doubtless, would have been reached in the McHugh Case.
Counsel for respondents insist that the bequest violates sec. 2081, Stats. (1898). If, as was assumed in the McHugh Case, the trust were private, there would be much force in this contention, since under this section the trust must be fully expressed and clearly defined on the face of the instrument creating it. But this argument is based upon the proposition that the trust created in the case before us is a private trust, not a public charity. So we are brought to the question whether a bequest for masses is a public charity.
Bequests for religious purposes date very far back in judicial history. Some reference is made to them and cases collected in a quaint old book entitled “Law of Charitable Uses, Revised and Much Enlarged; with Many Cases in Law Both Ancient and Modem,” printed in 1676 under the cen-sorship of Erancis North. At page 35 of this work is found a will dated January 17, 1524, from which we quote some of the “items.”
“Item, I Will, after my decease, that A. my wife, have my House called 0. during her natural Life, and she to keep up the reparations of said House, and the Lords Rent to pay, and she to find four Tapers of four pounds of Wax; that is, one before the Rude under the Rude Loft, and another before our Lady; another before St. Thomas, and one before St. Anthony.
“Item, I Will, That she keep mine Obit every year during her Life, and to have every year three Priests, and they to have Eight pence a piece, and two dozen of Bread, and a Kinderkin of double Beer, and two Cheeses, price of 'Twenty pence.
“Item, I Will, and appoint after my decease That all and ■singular my Evidences, and my Copies, that they be delivered into the custody of the Churchwardens of the Parish of Peter and Paul, of T. aforesaid.
“Item, I Will, That after the natural life of A. my wife, .that them my House called C. with all the Appurtenances be[96]*96longing thereunto, as is more plainly specified by my deeds;. that it shall remain evermore unto the Church aforesaid;, First, to keep mine Obit yearly, and the four Tapers of four-pounds of Wax. Moreover, I Will, That after the decease-of A. my wife, that the Churchwardens do buy six pounds of Wax, and make the common Light, and the Taper before the-Fude, to the full of two pounds of Wax apiece, and so to continue for evermore; and the residue of the Eent to remain to the reparations of the Church aforesaid.”
Also, on page 41, another will, dated July 1, 1523, by the-terms of which there was given “several of her Lands to the use of the Priests Service, in the Church of St. Peter in Stowe-Market, to pray for her Soul, and the Souls of her Husbands and others, for 99 years and the Lands to be sold by her Co-Feoffees, and the one half of the Money to go to the making of the High-way, between Stowe and Ipswich;, and the other to be divided, one part to a Priest, to say Prayers in the said Church of S. Peter, for her Soul, and the Souls of the afore-rehearsed. . . !”
The following authorities also relate to charitable bequests-pertaining to religious purposes: Baker v. Sutton, 1 Keen, 224; Felan v. Russell, 4 Ir. Eq. 701; Powerscourt v. Powerscourt, 1 Molloy, 616; Moggridge v. Thackwell, 1 Ves. Jr. 464; Phillips v. Aldridge, 4 Term Rep. 264; Tyson, Charitable Requests, ch. 10, p. 118; In the Matter of Michael’s Trust, 28 Beav. 39; Tudor, Charities and Mortmain.
There is much conflict in the early and some in the late cases as to what is and what is not a public charity. Many of the bequests in England were held void as being to superstitious uses, but no such rule or principle obtains 'in this, country; hence the decisions declaring gifts or bequests void as gifts to superstitious uses have no application here. McHugh v. McCole, 97 Wis. 166, 180, 72 U. W. 631. The doctrine of superstitious uses under the statute of 1 Edw. VI., c. 14, under which devises for masses were held void, has never obtained in the United States, where there is absolute [97]*97religious equality. Webster v. Sughrow, 69 N. H. 380, 45 Atl. 139, and cases cited.
Indeed, the question is not new in this state. In McHugh v. McCole, supra, it was held that, had the bequest been direct to a bishop or priest for masses for the repose of the souls of the persons named in the will, it would have been valid, but that the contested provisions of the will were void trusts and not valid personal bequests. No claim is made by appellant that the trust is private. The main questions for determination, therefore, are whether the bequest for masses is a public charity and sufficiently definite for enforcement by a court of equity. No proof was made in the McHugh Case that masses are public in their nature or for the benefit of mankind generally, and whether the court should have taken notice of this fact without proof we need not consider here, because in the casq before us such proof was made. It was shown by competent evidence that the sacrifice of the mass is a public service, not alone fox the repose of the souls of the deceased members mentioned, but for the benefit of all mankind, and so understood by all members of the Catholic church. So while the masses may be intended to benefit the souls of the departed mentioned, the benefits are public as well, therefore come within the designation of a public charity. Masses are religious observances and come within the religious or pious uses which are upheld as public charities. Schouler, Petitioner, 134 Mass. 426; Rhymer’s Appeal, 93 Pa. St. 142; Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527; Webster v. Sughrow, 69 N. H. 380, 45 Atl. 139; Seda v. Huble, 75 Iowa, 429, 39 N. W. 685; Sherman v. Baker, 20 R. I. 446, 40 Atl. 11. A gift to be applied consistently with existing laws for the benefit of an indefinite number of persons by bringing their hearts under the influence of education or religion is a charity. Jackson v.
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.The following opinion was filed May 24, 1910:
KbRWIN, J.
The respondents, heirs at law, attack the will under consideration upon the grounds: (1) That it is void, independent of any statute, for uncertainty and indefiniteness; (2) that it attempts to create a private trust in violation of ■statute; and (3) that if it attempts to create a public trust it is nevertheless void because under the equity powers of the ■court it is too indefinite and uncertain to be enforced. On the part of the appellant it is insisted that the will is simple, the intent plain, and the purpose lawful; that it creates a public charity and as such is valid. Respondents rely mainly upon McHugh v. McCole, 97 Wis. 166, 72 N. W. 631. Starting with the proposition laid down in McHugh v. McCole, supra, that the trust was private and, therefore, too indefinite and uncertain to be enforced by a court of equity, the court easily reached the conclusion that the be>quest for masses was void. No proof was made in the Mc-Hugh Case that the masses were not private in their nature and for the sole benefit of the souls of the giver and others specifically mentioned. No evidence was offered as to the nature of masses, whether public or private, and the court rested its opinion upon the idea that the trust was purely private. Had the court started with the proposition that a [95]*95bequest for masses is a public charity, a different conclusion, doubtless, would have been reached in the McHugh Case.
Counsel for respondents insist that the bequest violates sec. 2081, Stats. (1898). If, as was assumed in the McHugh Case, the trust were private, there would be much force in this contention, since under this section the trust must be fully expressed and clearly defined on the face of the instrument creating it. But this argument is based upon the proposition that the trust created in the case before us is a private trust, not a public charity. So we are brought to the question whether a bequest for masses is a public charity.
Bequests for religious purposes date very far back in judicial history. Some reference is made to them and cases collected in a quaint old book entitled “Law of Charitable Uses, Revised and Much Enlarged; with Many Cases in Law Both Ancient and Modem,” printed in 1676 under the cen-sorship of Erancis North. At page 35 of this work is found a will dated January 17, 1524, from which we quote some of the “items.”
“Item, I Will, after my decease, that A. my wife, have my House called 0. during her natural Life, and she to keep up the reparations of said House, and the Lords Rent to pay, and she to find four Tapers of four pounds of Wax; that is, one before the Rude under the Rude Loft, and another before our Lady; another before St. Thomas, and one before St. Anthony.
“Item, I Will, That she keep mine Obit every year during her Life, and to have every year three Priests, and they to have Eight pence a piece, and two dozen of Bread, and a Kinderkin of double Beer, and two Cheeses, price of 'Twenty pence.
“Item, I Will, and appoint after my decease That all and ■singular my Evidences, and my Copies, that they be delivered into the custody of the Churchwardens of the Parish of Peter and Paul, of T. aforesaid.
“Item, I Will, That after the natural life of A. my wife, .that them my House called C. with all the Appurtenances be[96]*96longing thereunto, as is more plainly specified by my deeds;. that it shall remain evermore unto the Church aforesaid;, First, to keep mine Obit yearly, and the four Tapers of four-pounds of Wax. Moreover, I Will, That after the decease-of A. my wife, that the Churchwardens do buy six pounds of Wax, and make the common Light, and the Taper before the-Fude, to the full of two pounds of Wax apiece, and so to continue for evermore; and the residue of the Eent to remain to the reparations of the Church aforesaid.”
Also, on page 41, another will, dated July 1, 1523, by the-terms of which there was given “several of her Lands to the use of the Priests Service, in the Church of St. Peter in Stowe-Market, to pray for her Soul, and the Souls of her Husbands and others, for 99 years and the Lands to be sold by her Co-Feoffees, and the one half of the Money to go to the making of the High-way, between Stowe and Ipswich;, and the other to be divided, one part to a Priest, to say Prayers in the said Church of S. Peter, for her Soul, and the Souls of the afore-rehearsed. . . !”
The following authorities also relate to charitable bequests-pertaining to religious purposes: Baker v. Sutton, 1 Keen, 224; Felan v. Russell, 4 Ir. Eq. 701; Powerscourt v. Powerscourt, 1 Molloy, 616; Moggridge v. Thackwell, 1 Ves. Jr. 464; Phillips v. Aldridge, 4 Term Rep. 264; Tyson, Charitable Requests, ch. 10, p. 118; In the Matter of Michael’s Trust, 28 Beav. 39; Tudor, Charities and Mortmain.
There is much conflict in the early and some in the late cases as to what is and what is not a public charity. Many of the bequests in England were held void as being to superstitious uses, but no such rule or principle obtains 'in this, country; hence the decisions declaring gifts or bequests void as gifts to superstitious uses have no application here. McHugh v. McCole, 97 Wis. 166, 180, 72 U. W. 631. The doctrine of superstitious uses under the statute of 1 Edw. VI., c. 14, under which devises for masses were held void, has never obtained in the United States, where there is absolute [97]*97religious equality. Webster v. Sughrow, 69 N. H. 380, 45 Atl. 139, and cases cited.
Indeed, the question is not new in this state. In McHugh v. McCole, supra, it was held that, had the bequest been direct to a bishop or priest for masses for the repose of the souls of the persons named in the will, it would have been valid, but that the contested provisions of the will were void trusts and not valid personal bequests. No claim is made by appellant that the trust is private. The main questions for determination, therefore, are whether the bequest for masses is a public charity and sufficiently definite for enforcement by a court of equity. No proof was made in the McHugh Case that masses are public in their nature or for the benefit of mankind generally, and whether the court should have taken notice of this fact without proof we need not consider here, because in the casq before us such proof was made. It was shown by competent evidence that the sacrifice of the mass is a public service, not alone fox the repose of the souls of the deceased members mentioned, but for the benefit of all mankind, and so understood by all members of the Catholic church. So while the masses may be intended to benefit the souls of the departed mentioned, the benefits are public as well, therefore come within the designation of a public charity. Masses are religious observances and come within the religious or pious uses which are upheld as public charities. Schouler, Petitioner, 134 Mass. 426; Rhymer’s Appeal, 93 Pa. St. 142; Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527; Webster v. Sughrow, 69 N. H. 380, 45 Atl. 139; Seda v. Huble, 75 Iowa, 429, 39 N. W. 685; Sherman v. Baker, 20 R. I. 446, 40 Atl. 11. A gift to be applied consistently with existing laws for the benefit of an indefinite number of persons by bringing their hearts under the influence of education or religion is a charity. Jackson v. Phillips, 14 Allen, 539. In Hoeffer v. Clogan, supra, the bequest was of certain property “to sell the same and expend the proceeds [98]*98of said sale in saying masses for the repose of my soul and the souls of my deceased wife, Margaret Clogan, my mother-in-law, Ellen Hurley, and my brother-in-law, James Hurley.” The bequest was held valid, and many cases are cited and •discussed in the opinion. The tendency of the courts is to uphold charitable trusts in accordance with the intent of the donor and consistently with rules of law, and this court has asserted the doctrine in no uncertain terms in several cases. The question has been so exhaustively treated in Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, and Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, that further discussion seems unnecessary.
According to the doctrine of the Catholic church as established by the proof in this case, the whole church profits by every mass, since the prayers of the mass include all of the faithful, living and dead. The sacrifice of the mass contemplates that all mankind shall participate in its benefits and fruit.
“The mass is the unbloody sacrifice of the cross, and the object for which it is offered up is in the first place, to honor and glorify God; secondly, to thank Him for His favors; third, to ask His blessing; fourth, to propitiate Him for the sins of all mankind. The individuals who participate in the fruits of this mass are the person or persons for whom the mass is offered, all of those who assist at the mass, the celebrant himself, and for all mankind, within or without the fold of the church.”
So it seems clear upon reason and authority, under the doctrine of the Catholic church as established by the evidence in this case, that a bequest for masses is a charitable bequest, and valid as such, although the repose of the souls of particular persons be mentioned.
But it is said that the present bequest is too indefinite and uncertain to be enforceable and is void under the statutes of this state and independent of any statute. The contention that the will is void for uncertainty independent of any statute [99]*99is without foundation under the authorities. The fundamental principle to observe in the construction of wills is to seek out the intention of the testator. This rule has been so often stated by this court that citation of authority is unnecessary. The intention of the testator in this case is plain from the terms of the will, namely, that his property be applied, first, to the payment of his debts, and the residue devoted by Fenlon and Watt to the celebration of masses. The bequest for masses being, as we have seen, a charitable bequest and for the benefit of mankind in general, the statute relating to trusts (sec. 2081) does not apply. Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345. It is true, as stated by this court in Webster v. Morris, 66 Wis. 366, 28 N. W. 353, and again in Harrington v. Pier, supra, that some degree of certainty must be observed in charitable bequests.
“The scheme of charity must be sufficiently indicated, or a method provided whereby it may be ascertained, and its object made sufficiently certain to enable the court to enforce the execution of the trust according to such scheme and for such object. It must be of such a tangible nature that the court can deal with it. The mere direction to expend money for charitable purposes at large is too indefinite to be carried into execution.” [66 Wis. 391; 105 Wis. 508.]
The certainty must be determined, not with reference to sec. 2081, Stats. (1898), or that which is required in regard to private trusts, “but with reference to those liberal rules for judicial construction applicable to charitable trusts.” Harrington v. Pier, supra.
Counsel also contend that, since the estate of the testator consisted principally of real estate, and the will not providing for a disposition of the lands to any one, it is void. But this contention brings us again to the distinction between a private trust and a public or charitable bequest. In the former, statutory certainty is required, while in the latter it is not. The certainty of beneficiaries in cases of private trusts does not [100]*100obtain in cases of public trusts. And tbis is necessarily so from the nature of public trusts as distinguished from private trusts. This subject has been fully covered in Harrington v. Pier, supra. At page 514 of 105 Wis. (82 N. W. 355) the court said:
“It follows that indefiniteness of beneficiaries who can invoke judicial authority to enforce the trust, want of a trustee if there he a trust in fact, or indefiniteness in details of the particular purpose declared, the general limits being reasonably ascertainable, or indefiniteness of mode of carrying out the particular purpose, does not militate against the validity of a trust for charitable uses. Given a trust, with or without a trustee, a particular purpose — as education, or relief of the poor, as distinguished from a bequest to charity generally,— and a class great or small, and without regard to location, necessarily, as ‘worthy indigent females,’ or ‘indigent young men studying for the ministry,’ or ‘resident poor,’ or ‘indigent children of. Rock county,’ or ‘the boys and girls of California’ (People ex rel. Ellert v. Cogswell, 113 Cal. 129, 45 Pac. 270), and we have a good trust for charitable uses. The court, through its strictly judicial power, may fill the office of trustee if necessary, the trustee can select the immediate beneficiaries or objects within the designated class and scheme; he can determine upon the details necessary to effect the intention of the donor within the general limits of his declared purpose, and execute the trust accordingly; and the proper public agencies, if necessary, can invoke judicial power to enforce such execution.”
Sec. 2075, Stats. (1898), which provides that “Every disposition of lands, whether by deed or devise, hereafter made, except as otherwise provided in these statutes, shall be directly to the person in whom the right to the possession and the profits shall be intended to be vested, and not to any other, to the use of or in trust for such person, and if made to one or more persons in trust for or to the use of another no estate or interest, legal or equitable, shall vest in the trustee,” is also relied upon by respondents as rendering the will void. But this Statute is not controlling in cases of public, trusts where [101]*101indefiniteness is of the essence of the charity; nor is it controlling in this case, because the will created an equitable conversion, and the estate of the testator must be treated as personal property. The terms of the will could not be carried out without converting the real estate into personalty. The ■evidence shows that the estate left amounted to about $6,000, consisting of real and personal property. The real estate was mortgaged for $1,200 or $1,500. The debts allowed by the ■county court amounted to about $917. The amount of money left was $400, and the personal estate was insufficient to pay the debts. So it is apparent that conversion of the real estate was necessary to carry out the terms of the will. Consequently the doctrine of equitable conversion applies. Harrington v. Pier, 105 Wis. 485, 82 N. W. 345; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; In re Albiston's Estate, 117 Wis. 272, 94 N. W. 169; Holmes v. Walter, 118 Wis. 409, 422, 95 N. W. 380.
In Harrington v. Pier, 105 Wis. 485, at page 492 (82 N. W. 345, 347), quoting from Given v. Hilton, 95 U. S. 591, this court said:
“The blending of real estate and personal property in one fund for all the purposes of the will is generally regarded as ■evidencing intent that the whole estaté shall be treated as personal property, even though a necessity therefor does not exist ; but such evidence is not conclusive on the question.”
It seems clear that the testator intended' an equitable conversion. The main question in the case before us, therefore, is whether a bequest for masses is a charitable bequest, and, this being determined in the affirmative, we easily reach the ■conclusion that the will is valid. In Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, and Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, it is determined, after an exhaustive review of the authorities, that chancery had jurisdiction over public trusts or charities in England before the statute of 43 Elizabeth, c. 4, and such chancery jurisdiction be[102]*102came a part of our jurisprudence, and, therefore, charitable trusts may be enforced and are not controlled by our statutes of uses and trusts. In the nature of things this was held necessary, because a public trust or charitable use is necessarily indefinite and uncertain, especially as to beneficiaries; that a public trust begins where a private trust ends as regards certainty and definiteness. Of course some degree of certainty must obtain even in a public trust. The scheme of charity must be sufficiently indicated, or a method provided whereby if may be ascertained and its objects made sufficiently certain to enable the court to enforce an execution of the trust according to the scheme. Webster v. Morris, 66 Wis. 366, 28 N. W. 353; Dodge v. Williams, 46 Wis. 10, 1 N. W. 92, 50 N. W. 1103; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345. In charitable bequests no trustee need be named, as a charity will not be allowed to fail for want of a trustee. The person named in the will to execute the charity will be held to be the trustee, and, if necessary that he hold the title for the purpose of carrying out the provisions of the will, he will by implication hold such title. Kemmerer v. Kemmerer, 233 Ill. 321, 84 N. E. 256; Harrington v. Pier, 105 Wis. 485, 82 N. W. 345. Since there was equitable conversion in the instant case, the statutes respecting perpetuities need not be considered even if applicable to charitable bequests.
After the decision of this court in Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258, the legislature passed ch. 511,. Laws of 1905, which amends sec. 2039, Stats. (1898), by adding to the exceptions from the operation of that section real estate devised to a charitable use. So that since the passage of this amendment the statute against perpetuities (sec. 2039) does not include devises to a charitable use. However, we need not consider the effect of this amendment. Because of the doctrine of equitable conversion we are only dealing with personal property. In so far as McHugh v. [103]*103McCole, 97 Wis. 166, 72 N. W. 631, conflicts with anything said in this opinion it must be regarded overruled.
It follows that the bequest for masses is valid, and that the judgment of the court below must be reversed.
By the Court. — The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.