Maxcy v. City of Oshkosh

128 N.W. 899, 144 Wis. 238, 1910 Wisc. LEXIS 361

• Court: Wisconsin Supreme Court
• Decided: December 6, 1910
• Status: Published

Opinions

BaRNEs, J.

Tbe questions presented on tbis appeal are numerous and important and some of them are fraught with difficulties. Tbe briefs filed with us contain over 550 pages of printed matter. Two days were consumed on tbe argument, and on a reargument of tbe case which was ordered, and if tbe court is not sufficiently informed to reach a correct conclusion it is not the fault of tbe counsel in tbe case, who from their respective standpoints have displayed commendable diligence and learning in presenting to tbe court tbe facts and the law involved. The appellant contends that the judgment and order appealed from should he reversed on the following grounds:

(1) The will created a charitable trust and must he construed with reference to the duties, obligations, and liabilities surrounding such trust and imposed on the trustees thereof, and the city could not act as trustee of the trust attempted to be created.

(2) The will did not contemplate the erection of such, a school building and the maintenance of such a school as the city of Oshkosh was authorized by law to build or maintain, and therefore the taxpayers could not be compelled to contribute any part of the fund provided for by the will.

(3) The city of Oshkosh had no power to enter into an agreement to permanently maintain the school or to perpetually carry out the terms of the trust.

(4) It is beyond the power of the city of Oshkosh to raise money by taxation for the purpose of creating a fund, out of the earnings of which the school will in the future be supported in part at least.

(5) The will required the exaction of a tuition fee from pupils attending the school, and the city has no legal authority to raise money by taxation to support such a school.

(6) The trust created is void on the ground of public policy.

(7) The bonds involved in this suit are illegal for the following additional reasons: (a) Because no plans for the school building had been prepared and submitted to the board of education and approved by that board, as required by the city charter, before the bonds were voted; (b) because the city charter requires the city treasurer to keep all moneys raised for school purposes in a separate fund and to disburse the same on the order of the board of education, while it was not intended that the money received from the sale of these bonds should be so kept or so disbursed; (e) because no legal tax levy was made by tbe common, council to meet the interest on the bonds as it fell due; (d) because the bonds are not appropriately named to indicate the purpose for which they were issued; (e) because the bonds were voted for constructing and equipping a manual training school, and the council had no authority to vote bonds for the purpose of equipping a school building.

1. The first question to be determined is the nature of the bequest. The plaintiff contends that it was the intention of the testatrix to create a charitable trust. The defendant maintains that it was the intention of Mrs. Beach to place the absolute title of her property in the city, when certain conditions were complied with, unfettered by any trust, and that in the event of a diversion of the fund any person in interest might proceed to secure appropriate redress in the courts as for a condition broken. In support of this view the case of Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258, is cited, as well as other cases. If this view be correct, it eliminates some difficulties that arise in ease it be held that a charitable trust is created.

The will before us follows quite closely the provisions of the will of Mrs. Harris, involved in the Danforth Case, in so far as the creation of a trust is concerned. The only material difference between the provisions of the two wills in this regard is found in the clause of the will of Mrs. Harris which provides that, in case of a diversion of the property or fund donated to any purpose other than that contemplated by the will, there should be a reversion to the heirs of the testatrix and those of her deceased husband. The court reached the conclusion that no trust was created and that the title passed charged only with a condition subsequent. In the will of Mrs. Beach there is no express provision for a reverter in the event of a diversion of the fund, and none can be implied under the law of this state. Strong v. Doty, 32 Wis. 381; Thorndike v. Milwaukee A. Co. 143 Wis. 1, 12, 126 N. W. 881.

There are many provisions in the will under consideration which indicate an intention on the part of the testatrix to create a public charitable trust. It recites that it was the intention of the husband of the testatrix that the property bequeathed should be given to the city of OshJcosh in trust, and that the will was made for the purpose of carrying out such intention. The property is given to the trustees named in the will to he held in trust for the purpose of building and perpetually maintaining a manual training school. The balance left after the building was built and equipped was to constitute a perpetual fund to be used by the city in maintaining the school. The school was to be perpetually known as the Orville Beach Memorial Manual Training School. Tuition fees in a sufficient amount should be exacted, which, added to the income from the fund, would perpetually maintain the school. There is no provision for a reverter in case of a violation of any or all of these provisions. It seems highly improbable that the testatrix had in mind the giving of this splendid donation in such a way that it might be dissipated or disposed of for any purpose which the city saw fit as soon as it came into possession of the property. It is likewise improbable that the donation would have been made had the donor understood that any such result could legally follow. Persons making wills are not obliged to donate money to charitable uses. When they do, they have the right to devote it to any legitimate charity they see fit and to generally prescribe the conditions under which the donation is made. .When those conditions are accepted there is a binding obligation that may be enforced through the courts. 2 Perry, Trusts, § 133 and cases cited. 3sTo great amount of formality in the úse of language is necessary in order to create a public charitable trust. The courts look to the purpose for which the gift was made. In order to create such a trust there must be some public benefit open to a vague and indefinite number of persons until they are selected or appointed to be the particular beneficiaries of the trust for the time being. 2 Perry, Trusts, §§ 687, 710; Dodge v. Williams, 46 Wis. 70, 97, 98, 1 N. W. 92, 50 N. W. 1103; Harrington v. Pier, 105 Wis. 485, 505, 514, 82 N. W. 345; Sawtelle v. Witham, 94 Wis. 412, 69 N. W. 72. Gifts to institutions of learning and for educational purposes-are almost invariably held to be gifts for charitable purposes. 2 Perry, Trusts, § 700, and cases cited; Dodge v. Williams, supra. So we conclude here that it was the intention of the testatrix to create a charitable trust, public in its character, and that the will must stand or fall on such interpretation of its terms.

That a city may become the trustee of a charitable trust,, where the donation is made to aid some public purpose charitable in its nature which it is the legal duty of the city to support and provide for, does not admit of doubt. When the-trust is accepted the city assumes the same obligations and becomes amenable to the same regulations that apply to other trustees of such trusts, and among them is the obligation to perpetually administer the charitable fund in accordance with the expressed wish of the testator. Thorndike v. Milwaukee A. Co. 143 Wis. 1, 126 N. W. 881; Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986; Philadelphia v. Girard's Heirs, 45 Pa. St. 1, 25; Vidal v. Girard's Ex’rs, 2 How. 127, 180, 190; McDonogh's Ex'rs v. Murdock, 15 How. 367; Webb v. Neal, 5 Allen, 575; McIntire Poor School v. Zanesville C. & Mfg. Co. 9 Ohio, 203; First Parish v. Cole, 3 Pick. 232; Comm'rs v. McPherson, 1 Speers (S. C.) 218; Governor v. Gridley, Walk. (Miss.) 328; Carmichael v. Trustees, 3 How. (Miss.) 84; Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434; Quincy v. Att’y Gen. 160 Mass. 431, 35 N. E. 1066; Chambers v. St. Louis, 29 Mo. 543; Delaney v. Salina, 34 Kan. 532; Maynard v. Woodard, 36 Mich. 423; 2 Dillon, Mun. Corp. (4th ed.) § 567; Higginson v. Turner, 171 Mass. 586, 51 N. E. 172. In so far as the will before us enjoins on the-city the duty of perpetual maintenance, it imposes no obliga-tioiL which the law would not impose had the will been silent on the subject, if a charitable trust otherwise valid has been created. Such being the case,- the requirement is innocuous and cannot affect the validity of the will. Sheldon v. Stockbridge, 67 Vt. 299, 31 Atl. 414.

2. Having reached the conclusion that a charitable trust was intended to be created, we now come to a consideration of the specific clauses of the will which it is asserted render it impossible to carry out the scheme of the testatrix. In the first place it is urged that the will contemplates the founding of such a school or institution of learning as the city of Oshkosh has no power to maintain, and therefore it cannot raise money by taxation to aid in the enterprise. In this connection it may as well be said now as later that it is the opinion of the court that unless the- city has the right to maintain such a school as is provided for, as part of its general system of education, it has no right to vote the bonds involved in this suit.

Sec. 496b, Stats. (1898), provides that “any board having charge of a free high school or of a high school having a course of study equivalent to the course or courses prescribed by the state superintendent for such schools may establish and maintain a department of manual training in connection with the school under its management.” This statute was amended by ch. 503, Laws of 1907, so as to permit manual training to be taught to the pupils in “the three upper grades next below the high school.”

The charter of the city of Oshkosh (Laws of 1891, ch. 59, subch. XI, sec. 4) is broader in its terms than is the general law. It authorizes the board of education “to establish and organize such high schools and so many district schools and branches of the same, primary schools, night schools, schools of manual training and kindergartens as they may deem expedient.” This provision was enacted in 1891.

Under this provision it is clear that the city has the power to erect one or more buildings to be used exclusively for tbe purpose of teaching manual training, and that the city may maintain such a school for the benefit of all pupils of school •age, as well as for the benefit of all persons whom it may have the right to admit to any of its public schools. As a matter •of fact, the city, acting under its charter, has provided instruction in manual training to all pupils attending its public ■schools, at an expense of five or six thousand dollars per year. For a time it afforded such instruction to children who attended the parochial schools of the city, such instruction being given in the public schools however. The practice was discontinued for lack of accommodations.

It is apparent that the term “manual training” may have a broad significance or it may be correctly applied to instruction in a very few simple things. [Neither the general statute nor the charter of the defendant undertakes to say how little •or how much may or must be taught on the subject. This is wisely left to the discretion of the school authorities, and, this being so, we would expect to find a wide variance in the kind •of instruction given and the extent to which it is carried on in the various schools in the state in which the subject is taught. Indeed, it may be wise administration to direct the activities •of boys along different lines in a school located in a factory •district, from those which might be pursued in a school surrounded by different environments. The matter of teaching manual training in the public schools of this country is comparatively new and seems to embrace some of the ideas of the trade school which has accomplished much in some European ■countries. The idea is presently in a state of evolution with large possibilities before it. It has been carried on in some portions of the country for forty years and in some of the schools of this state for about twenty-five years, and the number of schools giving instruction in it is gradually increasing. So the innovation cannot be called a fad and therefore liable to be discontinued. Manual training has been taught in the Oshkosh schools for thirteen years. It would seem to be a very practical and useful course of instruction, at least as much so as many branches of education that are taught in. our common schools.

It now behooves us to ascertain whether the school provided' for by Mrs. Beach is such a school as the city of Oshkosh has. the right to maintain at public expense. There is some broad general language used in reference to the character of the-school which she had in mind. She says it was the purpose of her husband to found an institution wherein sound business principles might be taught and where pupils might be fitted for manufacturing and business careers. To carry out the wishes of her husband she makes the donation for the purpose of preparing, constructing, and maintaining a manual training school. She says that the object of such school shall, be to teach cooking, sewing, and domestic economy to girls, and “all things of mechanical and other technical work to young men, and to teach to both girls and boys such things as-are usually taught in modem manual training schools, and to teach such things as the progress of time develops ought to he taught in a manual training school ” If the words “all things of mechanical or other technical work” be segregated from the rest of the sentence in which they are used, they might be interpreted as indicating an intent on the part of the testatrix to found a school at which civil, mechanical, electrical, ' and mining engineering would be taught, as well as other technical subjects in which instruction is given only in our higher institutions of learning, and which cannot be successfully taught without a large outlay for equipment, and cannot be profitably taught to students of immature years or-to those not having the equivalent of a high school education. We do not think that this is the kind of a school the testatrix had in mind. She wanted a school which all should be permitted to attend and to derive benefit from and where the many could be fitted for “manufacturing and business careers,” rather than, that the few should become experts along technical lines. We must assume that when she speaks of a manual training school she refers to such a school as the term ordinarily implies. She has herself designated the institution as •a “manual training school/’ and said that such things should be taught there as are usually taught in such schools, and that the school should keep pace with the development and enlargement of the course of instruction in such schools. Reading the entire paragraph, we think that the words “all things of mechanical and other technical work” were intended to refer to such things as were being taught or might properly he taught in a modern manual training school maintained at public expense. We do not think any particular significance can he attached to the fact that the testatrix speaks of the intent of her husband to found an “institution” of learning or that it is to be named the Orville Beach Memorial Manual Training School. A separate building was contemplated by the will. The city has a right to construct and maintain such a building and to devote it exclusively to manual training. When maintained it becomes an “institution of learning,” else the city would have no right to maintain it at all. It is a very common practice for cities at the present time to name their schools after distinguished citizens who might or might not have been residents thereof. If the testatrix here desired to perpetuate the name of her husband in the manner stated in the will, she has amply requited the city for the small privilege demanded, and we perceive no good reason why the city may not comply with her wishes in this behalf. It has been expressly held that such a requirement may be lawfully made and lawfully complied with. Jones v. Habersham, 13 Fed. Cas. 957 (3 Woods, 443), affirmed in 107 U. S. 174; Phillips v. Harrow, 93 Iowa, 92, 61 N. W. 434.

3. It is urged that the donation made by the testatrix, together with the $50,000 which the city proposes to raise, must be mingled as a common fund out of which a site is to be pur-chased and a building is to be erected and equipped, and the -balance of which is to he so invested as to produce an income to be used for the purpose of maintaining the school, and that •the city of Oshkosh has no power to raise a fund to be invested in perpetuity for such a purpose. .

There is much force in this contention, and' the city evidently appreciated this fact and has attempted to avoid the effect of it by raising the $50,000 for the express purpose of •building and equipping the school. Independent of any donation, manifestly the city had a right to vote bonds for this purpose. The question is, Has the city by so doing complied with the requirements of the will? The city cannot divert funds raised for a lawful purpose to one which it has no right to raise money for by taxation. The proceeds of the bonds must be used for the purpose for which they were voted. If such use of the money does not satisfy the conditions of the will, then the bequest cannot be sustained, if we assume that a taxpayer has the right to raise the objection. An important question, therefore, is whether the city has in fact complied with -the requirements of the will.

In this connection it is proper to observe that the testatrix-intended that the school should be erected as a memorial to her husband; that she stipulated that a substantial, modern, up-to-date building be constructed, preferably of Lake Superior brown stone; that she desired that such school should be equipped with modern, up-to-date appliances so that manual training could be taught to the best advantage; that she placed no restriction upon the city in reference to the amount of money that might be invested in the school building and in its equipment; that the city has under the terms of the will the absolute right to invest $50,000 in the building and equipment; that we must presume that the city in good faith intends to do so; and, finally, that the testatrix was presumed to know the law and to know what were the legal rights of the city. The city by using the money raised by it for the purpose of erecting and equipping the school building may not he technically complying with the expressed wish of the testatrix, but it is certainly complying with her wish in substance and effect, and it would he extremely technical to hold under such circumstances that the city forfeited its right to receive the donation. Every purpose which the testatrix had in mind will be carried into full effect by the city using the fund raised by it to build and equip the school building.

It is suggested rather than argued that the city had no right to contribute to such a fund in any case. But it is settled in Danforth v. Oshkosh, 119 Wis. 262, 97 U. W. 258, that, where a donation is tendered to a municipality in aid of' some municipal purpose for which" it is authorized to expend money on condition that the municipality itself make a contribution in aid of the purpose of the donor, it may do so, provided the lawful right existed to make the expenditure had no-donation been made. The cases cited elsewhere in the opinion amply support this view.

4. It is further urged that, a trust in perpetuity being created by the will, the property devoted to the charitable use must always be applied to such use, and that it is beyond the power of the city of Oshlcosli to raise money to build a manual training school which must be forever maintained as such. This-contention raises one of the most difficult questions in the case. The general rule of law is that money or property devoted to-a charitable use, where a trust is created, must, if the gift is accepted, be irrevocably devoted to such use, and that in case of attempted diversion a court of equity will intervene, and if' necessary name a new trustee to carry out the objects and purposes of the trust. In other words, the term “perpetuity” as applied to charitable trusts has retained its original significance, in that it means an inalienable and indestructible interest. Generally speaking, any limitation that suspends the-power of alienation beyond the period allowed by law creates a perpetuity, but we are not dealing with a perpetuity of this kind.

However, this general language in reference to the meaning of a perpetuity as applied to a charitable trust cannot be taken too literally. Otherwise charitable trusts could not he created at all, and it cannot he doubted that the city of Oshkosh could become the trustee of such a trust. Ho one is wise enough to say what social changes the mutations of time may bring about or what political or other cataclysms the future may witness. The city of Oshkosh may he destroyed by an earthquake or become a lake or a desert. It may go the way of Uineveh and Tyre, and exist as a remembrance only to remote generations. But, notwithstanding the fact that such eventualities may occur, it can still become the trustee of a charitable trust. The courts deal with practical situations and ordinarily pay little heed to remote contingencies. We must presume that the city of Oshhosh will live and thrive and that the system of free district schools guaranteed by the constitution will be maintained therein. We must also presume that instruction in the languages, in mathematics, and in other subjects now taught therein, will be continued. The tendency of the times is to enlarge the school curriculum instead of reducing it. It is fair to assume that any branch of knowledge that has been firmly engrafted in our system of education has come to stay, and there is nothing in the record to indicate that manual training in our public schools has not come to stay. Of course laws may be passed in the future that will prohibit the teaching of manual training, but the testatrix knew of this possibility when she made her gift and was willing to take the chances. So we are called upon to say whether the city may, by accepting this gift, bind itself to do what in all human probability it would do if no gift had been made; that is, to maintain a public school system and teach manual training as part of its general system of education. Mrs. Beach knew when she made her will that the school building she was providing for might not and in fact could not endure for all time. Eire might destroy it, and, if it did not, time would disintegrate it and render it unfit for use. Conditions might demand that a newer, more commodious, and more modern building should be constructed at some time in the. future, even before the building provided for had ceased to be serviceable. All-the city will have to do to comply with the terms of the will will be to place such a memorial tablet in the new building as was placed in the old, and carry on a system of instruction therein in harmony with the expressed wish of the testatrix. There is the possibility that the city of Osh-leosh will become atrophied and fall into such a state of decay that it will not or cannot maintain a public school system. But here again we have the remote possibility only, and if decay must come its progress will, to some extent at least, be retarded by the income derived from this donation. Public moneys invested in school buildings and grounds are in substance and effect invested in perpetuity. School buildings may outlive their usefulness and become obsolete, but they are usually replaced by other and more costly, more pretentious, more substantial, and more modern structures. Various causes may render it advisable to erect a new building on a different site from that occupied by the old one, but the proceeds derived from the sale of the old site is reinvested in the new site and building, and generally a great deal more. The matter of making donations of the general character of the one made here is not uncommon, and as wealth accumulates there is reason to believe that their number will increase. Most persons making such gifts have well-defined ideas as to the purpose to which they desire their money to be put. Stability above all things is an end desired by donors. The undertaking of the city of Oshkosh to perpetually maintain this school is not contrary to the letter of the law. At best it can only be said that there is no positive statute authorizing the city to enter into such an undertaking where its money is invested in the school. If the city had none of its own funds invested in the building, it could beyond question enter into the .obligation, because it could act as trustee of a fund donated for a charitable purpose wbicb was at the same time a municipal one, and the agreement to perpetually maintain would add nothing to the obligation which the law imposes on the trustee in the absence of an express agreement. By the city saying that it will perpetually maintain the school in question, it is saying that it will do the thing which it would do had no promise been exacted, so long as it maintains a public school system. If it does so, then it has maintained the school in perpetuity within the meaning of the law. The in~ vestment of public moneys in the building of schools being of a perpetual character, we think it is no violation of the spirit of the law to hold that a city may contribute funds to aid in the construction of a public school building provided for in part by a gift made under such circumstances as to create a trust in perpetuity, and therefore requiring the permanent maintenance of the school. "When the city of Oshkosh accepted its charter it subjected itself to the burdens imposed by the constitution. One of those burdens was the maintenance of a system of district schools in which education should be free to all pupils of school age, so long as the city existed and so long as the provision of the constitution survived; or, in other words, in perpetuity. To carry out this obligation school buildings must be maintained in perpetuity. The assumption of the duty of teaching manual training in a separate building is entirely in harmony with the constitutional requirement.

The conclusion reached is not without support in the adjudicated cases, as will be seen by a reference to the following: Piper v. Moulton, 72 Me. 155; Drury v. Natick, 10 Allen, 169; Budd v. Budd, 59 Fed. 735; School Trustees v. Hoboken, 70 N. J. Eq. 630, 62 Atl. 1; Kelley v. Kennard, 60 N. H. 1; East Tenn. Univ. v. Knoxville, 65 Tenn. 166.

5. The will provides that “a tuition fee shall be charged, which in the judgment of the city of Oshkosh, or trustees appointed, by said city of Oshkosh, shall be sufficient, together with the income of the aforesaid fund, to perpetually properly maintain said school,” and it is urged with much force that the city cannot contribute the money of its taxpayers to maintain a school in which tuition is charged. In fact, this is the proposition to which the appellant’s counsel devoted the most attention in their briefs and in their first oral arguments of the cause.

It must be conceded that the testatrix intended to donate her property to a school that would at least be open to all children of school age. That the ward schools of the city of Oshkosh are “district” schools within the meaning of sec. 3, art. X, of the constitution, does not admit of doubt. Further than this it is unnecessary to go. That the testatrix intended that pupils in the ward schools of the city should have the benefit' of the manual training school seems equally clear. The provision of the constitution above referred to requires the legislature to provide for the establishment of district schools, and that “such schools shall be free and without charge for tuition to all children between the ages of four and twenty years.” This requirement should not be restricted by construction. Whatever may lawfully be taught in such a school is part of the curriculum therein, and the fact that the teaching of manual training is not made compulsory by law does not alter the fact that when it is taught it becomes part of the curriculum. The pupil in a district school is just as much entitled to have manual training taught him without the exaction of a charge, if it be taught at all, as he is to have mathematics taught without being obliged to pay therefor. Besides, the city of Oshkosh is not authorized by any law to charge tuition in any kind of a school which it is empowered to maintain, and we do not wish to be understood as intimating that it could be so authorized. Unless this will can reasonably be interpreted as meaning that a tuition charge need not be exacted of all pupils, or unless this provision of the will may be rejected, it cannot be sustained. So we proceed to ascertain what the testatrix intended, as well as we may.

The intention of the testatrix must be gathered from the whole will taken together, and not from detached portions of it alone. Lane v. Vick, 3 How. 464; Cook v. Weaver, 12 Ga. 47; Jackson v. Hoover, 26 Ind. 511; Parker v. Wasley's Ex’r, 9 Grat. 477; Hoxie v. Hoxie, 7 Paige, 187; Nightingale v. Sheldon, 5 Mason, 336; Jackson v. Kip, 2 Paine, 366; 2 Jarman, Wills, 840.

The struggle in such a case, as Mr. Justice Stoby observes, “is to accomplish the real objects of the testator, so far as they can be accomplished, consistently with the principles of law; but in no case to exceed his intention fairly deducible from the very words of the will.” Nightingale v. Sheldon, supra.

The intention of the testator, as expressed in his will, governs ; and this intention must be discerned through the words of the will itself as applied to the subject matter and the surrounding circumstances. In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786; Schouler, Wills (2d ed.) § 466, p. 500; 1 Eedf. Wills, 433; 2 Jarman, Wills, 838; Parsons v. Winslow, 6 Mass. 169, 175; Chrystie v. Phyfe, 19 N. Y. 344; Williamson v. Williamson, 57 N. C. 281.

Every will should as far as possible be interpreted from the 'standpoint of the testator, and attendant circumstances, such as the condition of his family and the amount and character of his property, may and ought to be taken into consideration as part of the res gestee when the language is not plain nor the meaning obvious. Schouler, Wills, supra; Smith v. Bell, 6 Pet. 68; Blake v. Hawkins, 98 U. S. 315; Brown v. Thorndike, 15 Pick. 388; Postlethwaite’s Appeal, 68 Pa. St. 477; Perry v. Hunter, 2 R. I. 80, 81; Brown v. Bartlett, 58 N. H. 511; In re Donges’s Estate, supra.

Where the language used in a will is reasonably susceptible •of two different constructions, one of which will defeat and the other sustain the provisions, the doubt is to be resolved in favor of the construction which v(ill give effect to the will, rather than the one which will defeat it. In re Donges’s Estate, 103 Wis. 497, 501, 79 N. W. 786.

While devises and bequests may be void upon many grounds, “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 xiphoid and enforce them.” It is the duty of the courts to uphold charitable bequests if it can be done without violating any provision of statute or principle of law. “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.” Dodge v. Williams, 46 Wis. 70, 91, 1 N. W. 92, 50 N. W. 1103.

“Courts here, as anciently, look with favor upon all donations to charitable uses, and give effect to them where it is possible to do so consistent with rules of law, and to that end the most liberal rules the nature of the case will admit of, within the limits of ordinary chancery jurisdiction, will be resorted to if necessary.” Harrington v. Pier, 105 Wis. 485, 503, 504, 82 N. W. 345.

There are two classes of pupils who may attend this manual training school from whom a tuition fee can legally be exacted, to wit, nonresidents and those over school age, and it remains to be seen whether the will can reasonably be so construed as to warrant the conclusion that the testatrix intended that only the pupils falling within such classes should be charged.

Construing the tuition clause in the light of the circumstances which surrounded the testatrix when she made her will, we have about this situation: We should presume that the testatrix knew the law; we must presume that she intended to make a valid will. The testatrix had no children of her own and her husband was dead. The husband himself had in contemplation the founding of this training school, but he died before he carried out his purpose. The testatrix provided for the establishment of this school to comply with the wishes of her deceased husband as well as her own. The relatives of the testatrix, and those of ber husband, for the most part lived in distant states, and seem' to have been quite liberally remembered in her will; and, finally, the testatrix was making the gift to a trustee that was presently teaching manual training in its schools, and that had the right to supplement the income from the trust fund by moneys raised by taxation.

We have a class of pupils to whom tuition may be lawfully charged; very strong circumstances indicating an intent on the part of the testatrix to make a valid will; and the legal presumption that the testatrix knew the law. The question is, Can the court under these circumstances say that the testatrix intended that tuition fees should be charged only to those pupils attending the manual training school from whom tuition could lawfully be exacted, and can the will be reasonably construed as expressing such intent, read in the light of the circumstances which surrounded the testatrix when the will was made? If a construction can be adopted which will render the will valid, without doing violence to its language, it is, under the rules of construction referred to, to be preferred to the one which will render it void.

The case presenting the closest analogy on this point to the one under consideration is Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120. By a statute of that state the board of education of the town of Lumpkin was required to exact “of each child” an incidental fee of not less than five nor more than ten dollars. The constitution of the state prohibited the exaction of ■any tuition fee or charge to resident pupils, but such a charge might be imposed on nonresidents. The court held that the constitutionality of the act could be sustained on the ground that the provision in regard to the incidental fee was intended to apply only to nonresident pupils. So we think here that the validity of this will can be sustained without doing violence to its language, by holding that what the testatrix intended was that a tuition charge might be exacted only from such! pupils as tbe city of Oshkosh could legally exact such a fea from. The will does not undertake to specify to whom the charge shall be made. It does not say, as did the Georgia, statute, that the fee shall be paid by “each child,” but simply that such a tuition fee shall be charged as in the judgment of the city of Oshkosh shall be sufficient, together with the income of the fund provided for, to properly maintain the school. If the income is sufficient, no charge need be made. If the city sees fit to make up any deficit fropa taxation, no tuition fee need be charged. If the income, together with the tuition fee which might lawfully be charged, is insufficient to properly maintain the school, and the city should refuse to vote funds for that purpose, it may be said that the privilege of instruction in manual training may be denied to some pupils whom the testatrix intended to provide for and that therefore her wishes may be defeated. But it would be farfetched to say that the school will not be more liberally patronized or that a greater number will not receive instruction therein where such instruction is free than would patronize the school if they were compelled to pay for the privilege.

6. It is argued here and may be conceded that the donation of Mrs. Beach was the impelling cause which produced action on the part of the common council of the city of Oshkosh, and that, were it not for the gift, no money would have been presently raised by the city to build a manual training school. And it is argued that the effect of the gift was to hold out a substantial money inducement to influence official action and to thus bring about results which would not have followed' had no conditional gift been made. Corporate action is said to be void under such circumstances, and the following cases in our own court, as well as some others, are cited in support of this view: Shelby v. Miller, 114 Wis. 660, 91 N. W. 86; State ex rel. Wildman v. Kidd, 63 Wis. 337, 23 N. W. 703; McMillan v. Fond du Lac, 139 Wis. 367, 120 N. W. 240; State ex rel. Newell v. Purdy, 36 Wis. 213; State ex rel. Dith mar v. Bunnell, 131 Wis. 198, 110 N. W. 177; and Sharpe v. Hasey, 141 Wis. 76, 123 N. W. 647. To these might be added State ex rel. Curtis v. Geneva, 107 Wis. 1, 8, 82 N. W. 550, and State ex rel. Dosch v. Ryan, 127 Wis. 599, 106 N. W. 1093. The cases of Shelby v. Miller, Sharpe v. Hasey, and State ex rel. Dosch v. Ryan presented situations where a resident of a town was personally and pecuniarily interested in having a highway laid out for his convenience, and where, for the purpose of securing something which he otherwise would not get, he offered to defray a portion of the expense of opening the highway in order to bring about favorable official action. The cases of State ex rel. Newell v. Purdy and State ex rel. Dithmar v. BwmeTl involved pre-election offers and representations made by candidates as to what they would do in the event of their election. In the Purdy Case the candidate agreed to relinquish part of his salary and in the Bun-nell Case he offered to draw certain legal papers free of charge. State ex rel. Wildman v. Kidd involved an unlawful agreement concerning a division of property in case a new school district was created, and McMillan v. Fond du Lac involved a contract in which an alderman of the city was personally interested. This latter case has no direct bearing on the point under consideration. The other cases are decided upon the theory that the offers made were made to secure a direct and substantial benefit to the parties making them; that they were not primarily made to promote the common good; that they were well calculated to secure results which would not be secured had no such offers been made; and that such offers in substance and effect constituted bribery, which as a matter of course vitiated any official action taken in pursuance of such inducement.

The situation here is very different. The testatrix herself could reap no material benefit from her offer. She left no children who could enjoy the fruits of it. It does not appear that she left any relatives in Oshhosh who could do so. She bad no ulterior or vicious motive in doing wbat sbe did, and counsel do not assert tbat sbe bad. Any sucb suggestion, would be repugnant to our sense of decency and no sucb suggestion is made. So tbe reason on wbicb tbe decisions cited, rest is wanting in tbe case before us, and unless tbeir doctrine is carried beyond its present confines tbe point is not well taken; and it is said in Sharpe v. Hasey, supra, tbat tbe doctrine bas been carried far enough. It is argued tbat tbe sustaining of gifts coupled with conditions sucb as Mrs. Beaob made may result in all kinds of municipal extravagance in order to meet conditions tbat may hereafter be made by donors. Whether sucb a situation is likely to arise or not we do not know. If sucb results follow, tbe legislature may easily and readily enact a law tbat will' put a quietus on tbe abuse. Charitable gifts not coupled with any sucb condition as is complained of may become inimical to tbe welfare of society also; but even tbat abuse, if sucb it should ever become, can be met by tbe legislature enacting statutes of mortmain as was done by tbe British parliament. Tbe cases sustaining tbe right of a municipality to accept a gift for a purpose wbicb it,is authorized to carry on and to support by means of taxation,, and to accept sucb gift on tbe condition tbat sucb municipality make a contribution to tbe fund, are cited elsewhere in this opinion, and, as already said, correctly state tbe law in this, regard.

7. (a) It is further urged tbat tbe bond issue is void because tbe .city charter of tbe city of Oshkosh (sec. 6, subch. XI, cb. 59, Laws of 1891) provides tbat no school building shall be constructed until tbe plans for tbe same shall have been adopted and approved by tbe board of education, and tbat no action whatever was taken by sucb board in reference to the manual training school for wbicb tbe bonds were voted. Tbe contention is tbat tbe requisite foundation for taking any steps to build any school building are wanting because of nonaction by tbe school board.

Tbe position taken is not tenable. By subcb. XI of tbe city charter tbe title to all school buildings is vested in tbe city. It is made tbe duty of tbe board of public works under tbe direction of tbe common council to erect school buildings and keep them in repair. Tbe common council has the exclusive right to levy taxes and provide for tbe erection of school buildings; Tbe school board may approve or disapprove of proposed plans for a school building, but tbe right to propose such plans is vested in tbe city.

Either of two methods might be pursued by the city. It might first prepare plans and. secure estimates of tbe cost of such a building as it deemed desirable to build, and then proceed to provide for the necessary funds to carry out tbe proposed project as best it could, or it might first make provision for tbe amount of money which it was considered desirable to expend, and fit its plans' to its purse. Perhaps the first method of procedure would be the more logical, but it is not exclusive, and we are not cited to any provision in! tbe charter which makes the adoption of plans a condition precedent to the right to vote bonds to raise money to erect a school building.

(b) Again, it is urged that sec. 7 of subch. XI of the charter requires the city treasurer to keep all moneys raised for school purposes as a separate fund, and disburse the same only on the orders of the board of education, and that the money here raised was tendered to the trustees named in the will to create a common fund, part of which might be used for building a school and part for the purposes of investment, the income of which only would be available to the city.

We have already said that the money derived from the sale of the bonds must be applied for the purpose for which it was voted, to wit, to build a school building, and that this is a substantial compliance with the terms of the will. It does appear from the record that the city went through the .form of making a tender to the trustees of the $50,000 derived from the sale of the bonds. It was not required to make any snob tender, and we do not understand tbat it amounted to anything more than a mere ceremony or formality wbicb was gone through with to satisfy the trustees that the city had raised the ■amount of money required by the terms of the will and that it was available for the purposes therein specified. 'When the -city complied with the conditions of the will it was absolutely ■entitled to receive, hold, and expend both funds in its character of trustee. So we do not perceive how the alleged tender ■could serve to vitiate the bonds or how it' created any unlawful diversion of the money received from the sale of them. We ■cannot say, as we are urged to, that it is not the intention of the city of Oshkosh in good faith to expend the money raised from the sale of its bonds to erect a school building. The circuit court so found as a matter of fact. As yet there has been no diversion, and, as far as we are able to discover, no threatened diversion. If the time comes when the interests of the taxpayers are being jeopardized in this regard, the power of •the courts is ample to protect them.

(c) It is further contended that the bond issue is void because it is not in compliance with the constitution and laws of the state. The particular provisions relied on are sec. 926— 11, Stats. 1898 (as amended by ch. 228 and ch. 428, Laws of 1903), subd. 2 of sec. 658, Stats. (1898), and see. 3 of ■art. XI of the constitution.

Sec. 926 — 11 provides that no bonds shall be issued unless the council shall provide for a direct annual tax sufficient to pay the interest thereon as it falls due and the principal within twenty years. The statute further provides that all such bonds ■shall bear an appropriate name indicating the purpose of their issue and reciting the fact that the city has provided for the ■collection of an annual tax to pay the interest as it falls due and the principal within twenty years. The other statute relied on and the constitutional provision quoted add nothing to the requirement of sec. 926 — 11 that is material to the question raised.

The ordinance providing for the bond issue recited that “such bonds shall be due and payable in twenty years after-their date and shall bear interest not to exceed four per cent, per annum, interest payable annually,” and made a tax levy to. pay the principal and interest of the bonds. The particular-objection raised is that a levy of a tax to pay interest on $50,000 of bonds at a rate “not to exceed four per cent.” is-not sufficiently definite and certain to answer the provisions of' the law referred to. The bonds issued bear interest at four per cent., so that the amount that must be raised is within the limitation fixed by the ordinance, and has become definite and certain. We think it would be extremely technical not to-hold that the ordinance makes a good tax levy so long as the maximum rate of interest fixed therein was not exceeded. The statute does not require that the ordinance designate in dollars and cents the amount of money that should be levied’ annually to pay interest. Such a levy is unlike the ordinary one, in that it provides for something that' must be done from time to time in the future, and so long as the amount is subject to definite ascertainment when the tax is to be carried out in the tax roll, and the amount does not exceed that provided for by the ordinance, we do not perceive any valid objection to it.

(d) It is further urged that the bonds are void because they do not bear “an appropriate name indicating the purpose of their issue,” as required by sec. 926 — 11. The bonds are headed “Manual Training School Bond of the City of Oshkosh, Wisconsin,” and in the body of them it is recited that they are issued “for the purpose of erecting, constructing, and maintaining a manual training school building in and for the city of Oshkosh, to be known as the Orville Beach Memorial Manual Training School of the City of Oshkosh ” It appears plainly enough from the beading of the bonds that they are issued for the purpose of building and equipping a manual training school. Manifestly, the legislature intended nothing more than a heading which in general terms would disclose the purpose for which the bond was issued. The bond must be christened and must have an appropriate name indicative of the purpose of issue, but it was not meant that such name should consist of minute recitals showing the dimensions of the building, the subjects that it was contemplated should be taught therein, and such like.

(e) The bond ordinance recited that the bonds were issued “for the purpose of erecting, constructing, and equipping a manual training school building.” The city, in voting the bonds, acted under the authority conferred by subd. 3 of see. 926 — 11, Stats. (1898), as amended, and it is urged that the city council had no power under this section to vote bonds where any part of the proceeds thereof was to be used for “equipping” a school. The case of Neacy v. Milwaukee, 142 Wis. 590, 126 N. W. 8, is said to be conclusive upon the proposition, if followed. In the Neacy Case the statute involved conferred the right on the city to issue bonds for the construction or purchase of a municipal lighting plant. The bonds were voted to “erect and maintain such a plant.” Maintenance, of course, includes the cost of ordinary repairs and upkeep, and the bond issue was held unauthorized because no statutory authority existed for raising money through the issue of bonds to defray the ordinary upkeep expenses of such a plant.

The statute under which the bonds we are considering were voted authorized the city to vote bonds “for the erection, construction, and completion” of school buildings. The question is, Are bonds voted to build and equip a manual training school voted to build and complete such a school ? Is a school building complete within the meaning of the statute before it is provided with seats, desks' blackboards, and other necessary paraphernalia? Is it complete before it is ready for occupancy for school purposes ? Is a manual training school complete before it is supplied with the necessary lathes, benches, and other equipment to carry on manual training work ? Is a city permitted to-raise money by a sale of bonds to erect a school building, but prohibited from voting enough to seat the building after it is erected. The word “completion” found in the statute must be given some force, unless we say it was intended to be used as synonymous with the words “erection” and “construction.” In principle we see no good reason why bonds may not be issued to equip a school building after it is built as well as to erect the building itself, and it cannot well be said that a school building is complete until it is ready for use and occupancy. The Neacy Case does not reach the question here involved. Bonds are a charge against the taxpayer of the future. They are justifiable because the future taxpayer derives a benefit from permanent improvements, in the first cost of which he would not otherwise share. But after the initial expenditure, ordinary maintenance expense should be borne by the taxpayers who are presently receiving the benefit of the improvement. So we conclude that it is within the power of a city, acting under sec. 926 — 11, to vote money to build and equip a school building.

We have endeavored to cover all the points raised that we deem material, and we might say that no new ones have occurred to us. We do not wish to be understood as holding that all of the questions here discussed could properly be raised in a taxpayer’s action. It is stated in one of the briefs that there is a proceeding pending brought by one of the heirs, wherein, we assume, all matters can be and are raised that a taxpayer might not appropriately reach; and in view of the importance of the case, the desirability of an early settlement of the controversy, and the express wish of the respondent that the whole controversy be disposed of, we have thought it best to do so.

By the Court. — The judgment and order appealed from are affirmed.

The following opinion was filed January 30, 1911: