Watertown republican. [volume] (Watertown, Wis.) 1860-1906, 1897-01-20

teStatOr quite plain. Inc general III
tent or plan seems to us to nave Deen
as follows:
First-The testator desired his widow
and son to receive certain real estate
or it's equivalent in fee together with
$4,000 in certain specified bank STOCK.
Second-He wished to place IN the
hands of his executors all his remain
ing property in trust to manage, IN
vest and reinvest the same, paying
over the income to his widow and son
during their lives as directed IN the
will with power of sale OF all real es-
tate, save that lot 3, block 10, and the
twenty acres in Seventh ward OF the
city of WatertOWn and the two farms
in Dane county were not to be SOLO or
encountered by the executors. by sub
sequent clauses this branch OF the
scheme was modified somewhat, appar-
emily as the result Of after thought, so
that the race track farm was taken
out of the general trust during his sons
life and the free use thereof given to
the son: and his homestead was to be
conveyed at once to the city to be fitted
UP by the city as an old ladies' home ii
the city deems it advisable SO to do.
Third-After the death of his wife
and son he desired his executors to
convey to the city of WatertoWn all
his remaining real estate IN trust for
certain uses and under certain cOndl-
tions, viz: o. That it should estab-
fish and maintain public library and
business mems club room, purchasing
the grounds and building the building
out of the funds of the estate. (2) That
it should establish and maintain home
for the aged and poor people OF the
city, using the twenty acres OF land IN
the Seventh ward as permanent loca-
ton therefor (3) That it should per
manently use the race track farm as a
driving park and agricultural grounds.
Fourth-In case the city declined to
accept the property burdened with
these trusts he wished his trustees to
sell it and divide the proceeds among
his next of kin according to law.
The only question before us on this
appeal relates to the validity of the
gifts to the city of WatertOWn. The
principle contentious made by the
appellants may be stated as follows:
q The direction in the will to the
effect that lot in block 10 in the First
ward and the twenty acre piece In the
Seventh ward of the city of Water
town and the two farms IN Dane
county shall not be sold Or encountered
suspends the power of alienation as to
these parcels perpetually, and the de-
wise to the city thereof is void under
Sections 2038 and 2O39 r. 5. ~ The
i city has no power to accept the deviSes
or perform the trusts attempted to be
created by the will. (3) The trusts are
mere passive trusts and are not clearly
! defined in the viii and are too vague
and uncertain to be enforced. a. The
! city has already declined the devise of
| the homestead and so far at least as
| that parcel is concerned 1t must De
sold by the trustees and the proceeds
! divided among the next of kin. To-
! The direction that the city shall use
the twenty acre tract as location for
the home for aged and poor people, and
shall use the race track farm as drlv-
ing park and agricultural grounds
amounts to an absolute suspension OF
the power Of alienation IN perpetuity,
and hence the devises of those parcels
to the city are void.
|. We shall spend but little time
with the first of the foregoing conten-
tons. Upon this point the circuit judge
in his opinion very aptly says, This
clause forbiding the sale of these three
parcels is contained in that part of the
will relating to the powers and duties
of said first trustees ii. e. the executors
while executing the trusts in favor Of his
widow and son and does not apply after
these trustees shall convey the title OF
these pieces to the city of WatertOWn.'
With this construction of this clause
Of the will we entirely agree. 1t seems
so obviously correct as to require no
further elucidation. With this con-
struction the objection to the validity
of the devises on this ground necessar-
lily falls, because the suspension of the
power Of alienation is measured by two
lives in being, to-wit: the lives of the
widow and the son of the testator.
II. There can be little or no doubt
as to the power Of the city to accept by
devise property either real or personal
for the purpose of establishing and
maintaining a public library or for the
purpose of providing home for resi-
dents of the city who are both aged
and poor. By section 931 h. 5. the city
had power to establish public library
and reading room. By section 1899 r.
S. it is charged with the relief and sup
port of its resident poor and INDECENT
persons when they Standln need there
Of The principle is we'll established
that city may accept devises Of pro-
perty made to enable it to carry out
any of it's legal duties or powers, and
such devise may be made to the city in
direct terms or it may be made in trust
for such uses. 2 Dillon Nun. Corp.
| 18th ed) Sections 566, SGT ct seq. In
addition to this general common law
power, the charter of the city of Water
town provides that the common cOun-
Gil shall have power "to locate. pur-
chase sites, and let contracts for the
erection and construction of public
buildings; to acquire by gift, grant,
devise, donation, purchase or condem-
nation lands for parks and any other
public purposes and to sell, dispose of,
and convey the same" Certainly there
can be no question as to the power of
the city to accept devises of property
made for the purpose of aiding it in the
performance of any of its public duties
and powers.
1t might be a serious question
whether the city has power to fit up
and maintain an cold ladies hOme;;"
| h11t If ic necessary tO consider or decide