Nary v. Henni

ORTON, <1. This is an appeal from the order allowing amendments to the complaint, changing the title of the defendant by adding the words: “Bishop of the Diocese of Milwaukee,” and correspondingly changing the averments as to the contract and title of the property. If it were clear that these amendments placed John Martin Henni in the attitude and capacity of a trustee, there might be some question whether they did not work a substantial change of the cause of action; and yet they do not appear to make a greater change in this respect than was allowed in Lackner v. Turnbull, 7 Wis., 105, where a complaint for work, labor and materials was changed into one to enforce a mechanic’s lien. But these amendments do not place the defendant in the capacity, or charge him with the responsibilities, of a trustee. They fail to state the necessary facts to make him a trustee [476] To make him such, there must be some trust declared, and there must be certainty of object as well as subject of the trust, and there must be cestui que trusts or beneficiaries, capable of receiving the benefits of the trust. It cannot be presumed that the diocese of Milwaukee is a body corporate, capable of receiving and enforcing the benefits of the trust; and the object and uses of the trust, if it be one, are left to conjecture. Hill on Trustees, 71 and 52; Goodrich v. The City of Milwaukee, 24 Wis., 422. If the amendments do not change the character of the defendant, as a person acting for himself, and give him some other character or capacity, and fully place him in fiduciary and representative relations to the subject matter of the action, they are not material, and are mere surplusage. If it is contended that the amendments make the defendant a corporation sole,, they fall equally short of stating such facts as would make him such corporation sole, in whom the property is vested and in his successors, personally and for their own use and benefit in office, as in England in the king, a bishop or parson, or in whom and his successors it is vested in trust. In either case, the natural person is merged in the artificial person, and the corporation must have been either created or recognized by law, in order to have any existence as such; and in the latter case, in addition to a legal incorporation, the trust must be declared, with its uses, powers and objects, and be capable of being enforced in equity on behalf of the cestui que trust. Angelí and Ames on Corp., § 26. It follows that this designation of the defendant as “ Bishop of the Diocese of Milwaukee ” should be treated as descriptio personae, and the amendments were properly allowed. By the Oourt. — The order of the circuit court is affirmed, with costs. ByaN, 0. J., took no part.