Milwaukee Protestant Home for the Aged v. Becher

Wihslow, J. The controlling question arising on this appeal is as to the proper construction of ch. 359, Laws of 1891. Sec. 2039, R. S. 1878, is as follows: “ The absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of two lives in being at the creation of the estate and twenty-one years thereafter, except when real estate is given, granted,or devised to literary or charitable corporations which shall, have been organized under the laws of this state for their sole use and benefit, and except also in the single case mentioned in the next section.” This section was amended by ch. 359, Laws of 1891, by adding [412] at the end the following words: “ Religions corporations or societies, incorporated or organized under the laws of this state, shall be held and considered charitable corporations within the provisions of this section; but no gift, grant, or devise of real estate to any such literary or charitable corporation shall be valid unless made at least three months before the death of the person making the same. Provided, however, that no person leaving a widow, child, or parent, shall by his last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious, or missionary society, association, or corporation, in trust or otherwise, more than one half part of his estate, after the payment of his debts; and such devise or bequest shall be valid to the extent of such one half and no more.” It was assumed by both parties, on the argument, that the Milwaukee Protestant Home for the Aged is, as its name indicates, a charitable corporation, within the meaning of sec. 2039, and we shall so regard it. The question, then, is: Is the devise to it void because made within threj months prior to the testator’s death? The amendment of 1891 provides that “no gift, grant, or devise of real estate to any such litercwy or charitable corporation shall be valid unless made at least three months,” etc. It was very ingeniously argued by counsel for the appellant that the word “such,” in the sentence just quoted, must have a controlling effect, and that it must be held to refer only to a religious corporation or society. It is true that the word “ such,” if it stood alone, would naturally be construed as referring to the class of corporations of which mention had just been made. Thus, if the sentence were, “JSTo gift, grant, or devise to any such corporation shall be valid,” the very natural construction would seem to be that “ such ” referred alone to religious corporations just previously defined. But the words are “ any such literary or charitable [413] corporation.” "We do not suppose it will be seriously claimed that a religious corporation can be properly called a “ literary ” corporation. If it were so, then there would be no necessity for the legislature to declare that it should be considered a charitable corporation, within the meaning of sec. 2039, because that section already included literary corporations within its terms. It follows that in order to adopt appellant’s construction the -word “literary” must be held to be utterly unmeaning surplusage. In other words, “ such literary and charitable corporation ” means simply “such charitable corporation,” and no more. We cannot reject so important a word as the one in question without the most cogent and weighty reasons. All the words of a statute are to be given effect, if possible. By construing the word “ such ” as referring to the corporation named in the original sec. 2039, R. S. (a construction entirely permissible), the word “ literary ” can be preserved as a word of meaning and significance in the, statute. On the other hand, by construing “such” as referring to “religious” corporations alone, we are obliged to reject the word “literary” from the statute entirely. By all rules of construction, therefore, we are compelled to hold that the statute renders void all such devises to all literary and charitable corporations, whether they are religious corporations or not. It follows that the devise to the Protestant Home was void. It is urged, however, by appellant, that, even if the devise is held void, still the property would not go to the residuary legatees, but to the heirs at law, as intestate estate, and consequently the residuary legatees have no interest in the litigation, and were not aggrieved by the order of the county court, and that their appeal, therefore, to the circuit court should have been dismissed. It is freely conceded that, were this a void legacy of personal property, it would pass, under the residuary clause, to the residuary [414] legatees; but it is claimed that a void devise of real estate is subject to a different rule, and that the property covered by it will not go into the residuum, but will pass to the heirs as intestate estate. This doctrine, certainly, has the support of many courts. The cases will be found collated in 18 Am. & Eng. Ency. of Law, p. 40, note 3. It is unnecessary to examine into the reasons for the original adoption of such a rule, nor is it necessary to decide whether it is in force in this state. In the will before us there is a clause directing the executors to dispose of the testator’s real estate within five years after his death. The property in question is a part of the testator’s real estate, though the devise be void. The doctrine of equitable conversion will therefore apply, as laid down in Dodge v. Williams, 46 Wis. 70. The property will be treated as personal property from the death of the testator. Considered as personal property, there can be no doubt that it passed, under the very comprehensive residuary clause of the will, to the residuary legatees. By the Court.— Orders affirmed.