Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1897-01-20
WISCONSIN Supreme Court cr gole VJill Case.
Opinion Written by MIR. Justice Wins1ow.

race track farm as driving park will
be considered under the fifth head.
Thus far we have found that there are
two of the trusts laid upon the city by
the will which it has power to execute
and consequently to receive property
to aid it in such execution, namely: ~
the establishment and maintenance of
a public library and ~ the establish
ment and maintenance of a home for
aged and poor people of the city. The
question now arises whether it can es-
tabliSh and maintain business mems
club room and if not whether the trust
for library purposes is thereby lnVall-
dated. We have found no clause Of
the charter of the city expressly or i'm
pliedly authorizing the city to main
tain such room, nor do we know
of any authority holding that such g
purpose is germane to any Of the OBJ
jects of the corporation and we think
upon principle that it cannot be suS-
tanned. But the question whether the
library trust is thereby lnvalidated is a
different question and one upon which
we have received but little help from
the briefs. The intention of the will
seems quite plain that the public
library is the important element Of the
trust and the club room comparative
ly unimportant accessory. 1t is evil
IDENTIFY to be but room in the
building to be erected for the Ii
brary. Must the library devise fail be-
cause the testatOr has directed that
one room of the building, which might
easily be provided without appreciable
addition to the expense, shall be Occu-
pied at times free of rent by business
mems club? Such a result would be a
reprOach to the administration of
justice. 1t has been held that where a
devise otherwise valid is inseparably
coupled with void devise and is a
mere accessory thereto and the amount
of the valid part cannot be ascertained,
then both must fall together. Chap
man " Brown, 6 Vesey, Jr 404; Jar
man on Wills, 1886 That however is
not the case. The illegal part of this
trust would require for its purpose an
utterly inappreciable additional eX-
pense if indeed it required any at all
circumstances, the valid devise, es-
pecially one so greatly for the public
good, should be avoided The courts
are always favorably disposed to the
establishment of libraries and hOspi-
tails and all of the public institutions
whose purpose is to ameliOrate the
conditions of mankind. Gifts for such
purposes are supported if possible
We hold therefore that the library
scheme does not fail by reason of the
fact that the city cannot maintain the
club room.
Ill The library trust and the trust
for the aged and poor are both active
trusts and are sufficiently definite to be
capable of enforcement. This is suf
fciently established by the previous
decisions of this court and does not re
quire elaboration here. Dodge V
Williams, 46 Wis. 20; Webster V. Nor
ris, Sc Wis. 366; Sawtelle V
Witham, SO n. w. Rep. 70. The de
tails as to character and cost of build
| ings and the relative amounts to bt
spent in building and to be reserved a:
funds for maintenance are evidently
matters which the testatOr wisely lef
to the discretion of the proper city
authorities. The trust property may
not be received by the city for man!
years and the circumstances may bt
very different at that time from Wha
they are now.
We construe the will as authorizing
! the sale of any real estate by the city
which the trustees may convey to it a
the expiration of the first trust. Al
j though there is no specific power t
sell, given, we think such power must
! result from necessary implication from
] the various provisions, especially thu
provision authorizing the city to pur
chase real estate and erect a librar,
building out Of personal property ant
securities. Inasmuch as the testatO
left substantially no personal propert.
which was to go into trust funds ant
did not direct his trustees to sell any
but rather prohibited them from sell
| ing the greater part of the real estate
the inference that be expected the city
to sell is quite conclusive.
The objection that the amounts
which are to be used for the respective
trust purposes are not fixed by the Wil
is not tenable. Had there been trus
to collect rents and pay them over tt
| two persons, without fixing the respec
tive shares, we suppose there would bt
no doubt but that each would be en-
titled to receive one-half. Such, WI
think, should be the rule here, and sucf
we cOnstrue the will to mean; there
being no words indicating that either
trust is to have the preference.
". This objection we have already
considered and disposed of in the dis
cussion of the second objection.
Y. We come now to the last objection
namely, that the devises to the city OF
the twenty acres in the Seventh ware
and the race track farm are void under
Sections 2O38 and 2039, because the pow
er of alienation is perpetually suspend
ed This objection seems to us un
doubleday we'll taken. 1t is clear thai
the city is not literary or charitable
corporation organized for "their sole
use and benefit" hence although the
trusts are charitable in their nature
they DO not come within the exceptions
laid down in Section 2O39, and hence the
absolute power of alienation cannot be
suspended longer than two lives in
being and tWenty-one years thereafter
The evident intention of the will is that
the twenty acres shall be perpetually
used for the home for aged and poor
people, and that the race track shall be
perpetually used as driving park and
agricultural grounds. This plainly con.
StitllteS future estate in each parcel