Danforth v. City of Oshkosh

Dodge, J.

The testatrix, Abby S. Harris, by her will,, now before us, has earned the right that her name be writ large among those who loved their fellowmen, and has sought to give her charity practical efficacy in a most wise and admirable field and generous form. Much as we must admire-such efforts to promote the welfare of her fellows, we are-nevertheless burdened with the duty of testing the scheme-adopted by the testatrix by the rules and limitations which the legislature has deemed wise to impose for the protection of the welfare of the community in other directions.

The appellants contend that the scheme involves such suspension of the power of alienation as is forbidden by sec.. *267 2039, Stats. 1898, and, by sec. 2038, Id., renders void the estate attempted to be conferred upon the city of Oshkosh. Further, they contend that, even if such forbidden perpetuity is created only as to the homestead, yet that is sufficient to defeat the title to all the property, because the use of the rest is only authorized for the erection and maintenance of a library upon the homestead premises as a site. To escape this objection and sustain the devise, we are strongly pressed to hold that our statute against perpetuities has no application to grants for charitable purposes. This subject would at first glance appear to have been set at'rest by the decisions in De Wolf v. Lawson, 61 Wis. 469, 21 N. W. 615, and Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986, made by consensus of all members of the court, wherein it was held that a grant of realty for charitable uses was void because it suspended the power of alienation to the extent prohibited by sec. 2039, Stats. 1898. Counsel, however, urge that expressions found in the opinion in Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, invite the profession to believe that the question is considered still an open one. Whether that language, used as it was without mention of the Cole Oase — indeed, in apparent oversight of the decision of the question in both the former cases — could have been intended to suggest a doubt as to their authority, we must confess that upon careful inspection it may warrant some measure of uncertainty among the profession upon this very important subject. This leads us to the view that, although affirmance of the judgment might result upon other grounds, we ought to remove any uncertainty arising from the cited remarks in the Harrington Case, and declare the view of the court, since the question is squarely presented and argued with much vigor and learning. Of course, what was said in that case had no relation to anything in fact decided, did not in any wise lead to nor support the conclusion reached by the court. It therefore cannot be given the weight of authoritative precedent, or war *268 rant hesitation in following the settled rule of decision, if we find such exists.

The question is one purely of statutory construction. However fully members of this court may believe in a policy which would permit perpetuities in charitable grants, we should transcend our rightful powers should we attempt to establish or enforce such a policy in defiance of legislative declaration of a different one. We may therefore dismiss from present consideration those decisions of courts elsewhere, acting under different statutory conditions, in support of either a liberal or a restrictive policy. Our original statute on the subject (secs. 14, 15, ch. 56, N. S. 1849) was taken in hcec verba from New York, and declared:

“Sec. 14. Every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended, when there are no persons in being, by whom an absolute fee in possession can be conveyed.

“Sec. 15. 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, except in the single case mentioned' in the next section.”

In this there is no express exception of grants to charitable uses. The words are general, and only in defiance of their literal force could any such exception be allowed. At the time.they wore adopted from New York, no court of last resort had placed any qualification upon their literal meaning. True, an assistant vice chancellor (Sandford) had expressed an opinion that charities were intended to be excepted (Shotwell v. Mott, 2 Sandf. Ch. 46), but he, of course, spoke without final authority, subject to review by higher courts. The literal efficacy of this statute apparently was neither questioned nor affirmed in Wisconsin until Ruth v. Oberbrunner, 40 Wis. 238, in 1876, in which it was decided that the cognate *269 statute, sec. 1, ch. 57, R. S. 1849 (now sec. 2071, Stats. 1898), by general language abolishing uses and trusts, was subject to no exception in favor of trusts for charities, and in which it was further said, apropos of an objection that the-statute against perpetuities also rendered invalid the devise-there under consideration, “We do not see how the objection is to be overcome, but will not express an opinion up.on it.” Meanwhile the courts of New York had been wavering over the construction of the same statute there. The court of last resort, having once only, and that with serious division, declared itself in favor of exemption of charities (Williams v. Williams, 8 N. Y. 525), had, after several expressions of doubt and disapproval of that case, settled definitely to the contrary view, and overruled Shotwell v. Mott, supra, and Williams v. Williams, supra, thereon. Leonard v. Burr, 18 N. Y. 96, 107; Levy v. Levy, 33 N. Y. 97; Bascom v. Albertson, 34 N. Y. 584; Holmes v. Mead, 52 N. Y. 332. The last of these cases was decided in 1873, and all were'cited and commented upon in Ruth v. Oberbrunner in 1876. Immediately thereafter our legislature entered upon the task of enacting the Revised Statutes of 1878, aided by three commis sioners of broad learning and thorough intimacy with such subjects as those involved in chapters 95 and 96, R. S. 1878. They had Ruth v. Oberbrunner and the abóve-cited New York cases before them, and re-enacted the general prohibition against both perpetuities and trusts, with only certain specified exceptions in favor of certain charitable grants, to wit, those to literary or charitable corporations. Secs. 2039, 2081, R. S. 1878. The revisers’ notes, communicated to the legislature as a basis for their action, make perfectly clear their understanding that the words used allowed no exception in favor of charities except those expressed in the amendment. They said:

“In section 2039 amendment is made to allow grants or devises in perpetuity to literary or charitable corporations. It *270 is thought that this ought not to be extended to religious corporations, but left only to those which are formed for advancing literary or charitable ends. The decision in Ruth v. Oberbrunner, 40 Wis. 238, shows a defect in the law as it is, which is generally admitted to require amendment. We have endeavored to afford it without too great innovation. In that spirit it is provided that corporations under our laws can alone enjoy the benefit of such a grant, because they are within legislative control under the constitution, while they •can readily be formed to possess all necessary powers for the full enjoyment of all the benefits which should follow such a provision in the law.”

According to all canons of construction, such a history as this ought to exclude any supposition that the legislature in 1878 intended a further exception in favor of all grants for charitable purposes. Such a supposition would convict them •of utter redundancy in the newly enacted express exceptions. It would ignore the maxim, expressio unius esi exclusio alte-rius, and would deny to the general words of prohibition their natural meaning and force. As an original question of construction, we should feel entirely clear that any suspension of the absolute power of alienation, excepting those expressly exempted in the statute itself, for whatever purpose, charitable or otherwise, was intended to be prohibited by the legislature in 1878. Such view of the legislative intent and understanding is confirmed by various enactments excepting grants for specific charitable purposes. Illustrations are subd. 4, sec. 561j, Stats. 1898, authorizing grants to the board of control for any purpose connected with institutions under their management, and providing, “No such conveyance or devise shall be subject to the limitations provided in ■other cases;” also subd. 3, sec. 389, Stats. 1898, authorizing gifts for benefit of university, “without being subject to the limitations and restrictions provided by law in other cases.” The latter enactment is understood to have been prepared by one of the commissioners who drafted sec. 2039, R. S. 1878.

*271 The intent of tbe legislature being thus clearly established, is there any declaration of this court, which, as a binding precedent, should control our decision at the present time? Counsel point to Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, and Gould v. Taylor Orphan Asylum, 46 Wis. 106, 50 N. W. 422. An examination of these cases fails to disclose any attempt to construe our statute forbidding per-petuities in real estate. , In response to very vigorous argument and citation of authorities to show that exception in favor of charities is made by the English courts, with whom, and not by statute, originated the rule against perpetuities in that country, the court said, in the former case (46 Wis. 95, 50 N. W. 1106)

“The English doctrine of perpetuities applied to estates both real and personal, and grew up by a series of judicial decisions. Perry on Trusts, secs. 377, 379. It appears to have been applied to private trusts, but not to trusts for charitable uses, which usually are essentially and indefinitely permanent. Perry, secs. 384, 687, 736;”

and then proceeded to quote from Odell v. Odell, 10 Allen, 1, 6, the reasons in support of such policy. No attempt was made to declare that our statute makers had adopted that policy, but the statutes were east aside for the reason that they applied only to real estate, from which consideration the court proceeded to reason that all grants of personalty, whether for charitable or private uses, were intended to be relieved from any restraints as to perpetuities. That this was the ground of decision is rendered even more obvious by the accompanying case of Gould v. Taylor Orphan Asylum, where it is said (46 Wis. 117, 50 N. W. 423):

“The same view is taken of the will in this case as of the will in Dodge v. Williams, that the whole scope and tenor of the will demonstrate that the power of sale was mandatory, and that it is therefore to be considered as a will of personalty only. In this view, the principles upon which the charitable *272 bequests are sustained in Dodge v. Williams are as applicable to this as to that case.”

That no exemption from tbe statute against perpetuities in favor of charitable grants of realty was declared in these two cases is fully confirmed by the next case on the subject, De Wolf v. Lawson, 61 Wis. 469, 21 N. W. 615, where was a devise of realty, in trust to rent the same for twenty years, and to pay the net rents to two specified churches for the support of the preaching of the gospel therein, admitted to be a charitable purpose. The devise was assailed by the successful counsel in Gould v. Taylor Orphan Asylum, and the opinion written by the same justice. They both assume, in brief and opinion, that the statute prohibits perpetuities in real estate for any charitable uses save only such as are expressly excepted by the amendment of 1878, and, notwithstanding a vigorous contention that such statute did not apply to charities at all, supported by citation of Dodge v. Williams, Williams v. Williams, and Shotwell v. Mott, the court decided this devise void because the express exception was too limited to include it. Surely, if Dodge v. Williams and Gould v. Taylor Orphan Asylum, had decided anything adverse to this, Cole, C. J., and Mr. Fish must have known it.

In Webster v. Morris, 66 Wis. 366, 28 N. W. 353, certain perpetual charitable trusts were sustained by holding that the estate was converted into personalty, and that “the statute applies only to real estate.” Again, as already stated, the statute was applied to charitable devises in Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986, although counsel for the city urged its nonapplicability on the same grounds, and cited the same cases now relied on. Further, after Harrington v. Pier, already referred to, came the case of Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650, where this court, after great consideration and debate, decided to adhere to the conclusion reached in Dodge v. Williams, to the effect that by adoption of our statute prohibiting perpetuities in real estate our leg *273 islature bad, by implication, set aside tbe common-law rule against perpetuities in personal property. Tbe only basis of reason upon wbicb that conclusion could rest was and is that tbe legislature, in enacting sec. 15, cb. 56, R. S. 1849, intended to cover tbe whole field of perpetuities, to substitute entirely a statutory policy for tbe pre-existing court-made rule of policy of tbe common law. To bold that such intent was so clear that it must by implication annul tbe common law as to personalty, which was not within tbe express words of tbe statute, and at tbe same Time to rule that it was not sufficiently obvious to exclude tbe common-law rule as to charities, wbicb did fall within tbe literal words of tbe enactment, would be tbe height of inconsistency.

It is said, however, that New York, whose decisions, following those above cited, fully support tbe doctrine that tbe legislative scheme or policy was intended to wholly abrogate that of tbe common law, has changed its policy, and now recognizes charitable grants as unhampered; but this change of policy has not resulted from any modification of tbe views of its courts as to tbe construction, force, or effect of tbe statutes wbicb we adopted and have maintained. It has been accomplished by tbe legislature, wbicb in 1893 changed the former statutes. True, tbe enactment making tbe change was given a construction broader than some might think permissible, but none the less tbe change has been accomplished by the legislature, and not by the judiciary. Allen v. Stevens, 161 N. Y. 122, 55 N. E. 568.

Our conclusion on this subject is both that tbe statutes, as an original question of construction, prohibit suspension of the power of alienation for tbe forbidden period, whether tbe grant be for charitable or other purposes, save for tbe express exceptions; also that all tbe prior decisions of this court are in support of such a construction, and tbe question is not an open one in this state. If tbe policy is unwise, it can be further modified for tbe future by tbe legislature, without sacrifice *274 of rights acquired upon faitb of the present statutes and the coustructiou given thereto by this court during at least twenty-five years.

II. We must therefore proceed to consider whether the bequests and devises under which respondent claims do involve such suspension of absolute power of alienation as is prohibited by secs. 2038, 2039, Stats. 1898. Inspection of the will makes apparent that the testamentary scheme involves a division of the title into two stages, and a separation of the property itself into two, if Jiot three, classes, to each of which stages of title and classes of property different rules of law may apply.

First, there is a period of three years in gross during which all the property is permitted to remain in the hands of three trustees, and is claimed to be inalienable within the prohibition of sec. 2039, Stats. 1898. While the question was perhaps an open one in Wisconsin at the time this case was tried at circuit, it is now settled that the present statute permits suspension of the power of alienation for a gross term not exceeding twenty-one years. Kopmeier’s Will, 113 Wis. 233, 89 N. W. 134. Ilence the ruling of the circuit judge sustaining the devise as against this objection has already been confirmed by this court.

Again, the contention that the fund to be realized out of all the property, real and personal, apart from the homestead, is so tied up in perpetuity, even after it reaches the city, as to be forbidden, is very completely overruled by the recent decision in Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650, and the cases there cited. We there held, in reaffirmation of the doctrine of Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, that neither statute nor rale of common law in this state prohibits perpetuities in personalty. We also held that the absolute power of alienation of real estate is not suspended, within the purview of the statute, when a trustee or other donee of the legal title is given power and au *275 thority to sell and make conveyance of complete title. Such power and authority is by the present will expressly conferred both upon the intermediate trustees and upon the city with reference to all real estate except the homestead. This consideration suffices to overcome the contention in hand without passing upon the further, question whether that authority to sell is not integral to so obvious a scheme to reduce the whole to a fund as to work an equitable conversion of the whole into personalty, within the doctrine of Dodge v. Williams, supra, and In re Albiston's Estate, 117 Wis. 272, 94 N. W. 169, and many intervening cases.

Thus we are brought to the question whether, after the homestead reached the city of OsKkosh, the absolute power of alienation was to be so suspended that the statute renders void the estate attempted to be conferred upon that corporation. That such estate was a future one at the time the will took effect cannot be doubted, for there intervened the vesting of legal title in the three trustees, Bouck et al., for a term not exceeding three years. If the grant to the city was as trustee merely, with the equitable beneficial interest in others,, suspension of the power of alienation would probably be obvious, for the instrument conferring the legal title upon the city by most obvious implication restrains it in perpetuity from ever parting with that parcel of land. Restraint upon alienation is not inconsistent with a mere legal title in trust for others, and its disobedience, or any abandonment of the enjoined use, may be prevented by a court of equity at the instigation of those who are to enjoy the benefits as cestuis que trustent. Kopmeier's Will, 113 Wis. 233, 89 N. W. 134. It becomes important, then, to ascertain what sort of title to the homestead the will directs to be conveyed to the city of OsKkosh.

In considering the quality of such title, it is first to be noted that the will nowhere declares that such land is to be held in trust by the city. The sole declaration is that the *276 property is to be conveyed to the city absolutely for use in constructing and maintaining a library building and public ■library upon tbe specified lots. Of course, the presence or absence of words declaring an estate to be in trust is not conclusive, though they may be more or less significant of the purpose in the grantor’s mind. Davies v. Davies, 109 Wis. 129, 85 N. W. 201; Kopmeier's Will, 113 Wis. 237, 89 N. W. 134. The question is whether the testator’s intent involved the elements of a trust as known to the law. The most important of those elements is a severance of the legal title with power of control over the property from the beneficial interest therein. If the donee of the legal title is to control and manage the property entirely for his own benefit, there is no trust. 1 Perry, Trusts (4th ed.) §, 13. “A trust exists where the legal interest is in one person and the equitable interest in another.” Wallace v. Wainwright, 87 Pa. St. 263. The trusts authorized by our statute must be “for the beneficial interest of any person or persons” — of course, other than the trustee. Subd. 5, sec. 2081, Stats. 1898. Mr. Perry says, ubi supra:

“But no person, can be both trastee and cestui que trust at the same time, for no person can sue a subpoena against himself. Therefore, if an equitable estate and a legal estate meet in the same person, the trust or confidence is extinguished,, for the equitable estate merges in the legal estate.”

Obviously, a deed of premises to A.,.to be irsed by him only for a residence for himself, would not create a trust. It would create merely some form of legal title, either complete or.limited, and the right to insist on such limits would be a legal one. The devise under consideration seems almost as simple as the last illustration. The land in question is given to be used as a site for a public library. The maintenance of a public library and ownership of a site therefor is one of the strictly corporate functions of the corporation to which legal title is givfen. Secs. 931-936, S. & B. Ann. Stats.; sec. *277 1, cb. II, and subd. 29, sec. 4, ch. VI, of Oshkosh charter (ch. 59, Laws of 1891). Tbe only person to be benefited is tbe corporation, tbe city. True, every citizen as an individual is interested, but all of tbe citizens so interested together make up tbe corporation, tbe city of Oshlcosh. It is indistinguishable in principle from a grant of land to be used only for a city ball or an engine bouse. If such parcel of land were conveyed to third persons, to bold in trust for tbe purpose of allowing tbe city to erect and maintain thereon its public library, or other specified municipal building, could there be any doubt that tbe city, as a corporation, would be tbe cestui que trust and tbe only party entitled to subpoena against tbe trustee to enforce such trust? Certainly none. But if tbe city be,the owner of tbe beneficial interest when tbe legal title is held by another, it is no less so because that legal title is held by itself for tbe same uses. In case of an individual bolding to bis own use, as above illustrated, tbe absence of any trust is so plain that we find no decided case discussing it, except perhaps one cited by Perry, where the legal title descended to one already bolding tbe equitable. Goodright v. Wells, 2 Doug. 771. But mental confusion seems to have been not infrequent in cases of corporations vested with legal title for a specified purpose. This perhaps is not surprising, as tbe mind naturally turns to a distinction between a corporation and tbe individuals composing it. Tbe decided cases are numerous, however, which declare tbe conclusion that, if tbe use limited is distinctively and purely a corporate one, tbe corporation itself bolds tbe beneficial or equitable right, which therefore merges in tbe legal title, if that also be held by it. Tbe right of individuals interested in tbe use of tbe property is, as members, to compel tbe corporation to perform its duties as a corporation, not, as cestuis que- trustent, to regulate its conduct as a trustee. Williams v. Williams, 8 N. Y. 525, 536; Levy v. Levy, 33 N. Y. 97, 117; Le Couteulx v. Buffalo, 33 N. Y. 333; Wetmore v. Parker, *278 52 N. Y. 450, 459; Vail v. L. I. R. Co. 106 N. Y. 283, 12 N. E. 607; Fosdick v. Hempstead, 125 N. Y. 581, 589, 26 N. E. 801; Beurhaus v. Cole, 94 Wis. 617, 627, 69 N. W. 986; Fitz Gerald v. Big Rapids, 123 Mich. 281, 82 N. W. 56; 2 Dillon, Mun. Corp. (4th ed.) §§ 566 et seq. We can see no escape from tbe conclusion tbat tbis homestead is directed to be conveyed to tbe city of Oshhosh for its own cov-porate use- as a municipal corporation; tbat both legal title and beneficial interest are beld by it in tbe same, to wit, its corporate, capacity. Hence no trust is created or imposed upon it.

Tbis being so, and tbe direction of tbe will being tbat tbe property be conveyed to it absolutely, with no limitation except such as results from the direction that a public library be perpetually maintained thereon by expenditure of all the income of tbe fund consisting of tbe devised property and tbe equal sum contributed by the city, tbe title taken is a fee; either fee-simple absolute or a base or conditional fee, according as the limitation be considered repugnant to tbe grant and void, or a valid condition subsequent upon which title shall determine. Sec. 2026, Stats. 1898; 1 Washburn, Real Prop. (5th ed.) 83. The taking of such complete title is, however, subject to tbe further inquiry whether the attempted limitations upon the use or disposal bring the sitúa-' tion within the statute against perpetuities, so as to render the attempted estate void. That, then, is the next question.

When a fee is granted, limitations inconsistent with a fee, either on the use or on the grantee’s freedom of conveyance, are deemed to be void, as repugnant to the main purpose of the grant, unless, by reasonably direct language, disobedience of such limitations is declared a condition subsequent upon which the title conveyed is to terminate. The law does not permit the grantor to convey full title to land, and yet to restrain the conduct of the grantee with reference thereto in respects essential to a fee, though equity does recognize such *279 a power when, and only when, a trust is created as hereinbe-fore explained. Saxton v. Webber, 83 Wis. 617, 626, 53 N. W. 905; Van Osdell v. Champion, 89 Wis. 661, 665, 62 N. W. 539; Zillmer v. Landguth, 94 Wis. 607, 69 N. W. 568; Kopmeier’s Will, 113 Wis. 233, 89 N. W. 134. If the limitations upon the city’s nse and disposal of the property conveyed to it “absolutely,” and therefore in fee, are mere limitations, and so repugnant to the grant as to be void under the rule of the above cases, of course there is no suspension of power of alienation, for then the title would be in fee-simple absolute, with full power in the city to convey at any time. Whether that is the true situation we do not decide, for the view next to be expressed renders such decision unnecessary to the issues now presented.

If the intent of the testator was merely to vest a fee in the city upon condition subsequent that it should terminate and be. divested upon failure to use the homestead as a library site, or to devote all income from the other property to maintenance of a public library, then, as we hold that no equitable title is created, it follows that the rest of the legal title is in some one else, either vested or contingent, or both vested and contingent. Either there is remainder to the class composed of the heirs of testatrix and those of her husband, or a re-versionary right by descent in the heirs of testatrix alone. Whether one or the other is immaterial, for in either case the interest of remaindermen or reversioners is vested, within the definition of our statute pertaining to the subject of per-petuities (sec. 2037, Stats. 1898), which declares an estate to be vested “when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate ol" precedent estate.” • Obviously, if the city’s intermediate estate were to terminate at this moment, the persons entitled to take as remaindermen or re-versioners are in being. This subject and the meaning of this statute are so fully treated in Moran’s Will, 118 Wis. *280 177, 96 N. W. 367, that nothing more need be said thereon. If the future legal estate is vested, then the power of alienation is not suspended within the force of those words in our statutes, as explained in the Moran Case. Coster v. Lorillard, 14 Wend. 265.

We therefore conclude and hold that (a) the title conferred upon the city is not in trust, but a fee; (b) if the restraints upon use or disposal of the homestead are limitations merely, they are so repugnant to the grant as to be void; and (c) if a condition subsequent is imposed thereby, so that on breach of those' limitations the fee is to determine, the future estate in possession dependent upon such condition is so vested that the absolute power of alienation is not meanwhile suspended; and, ultimately, that the devise first to trustees, and then to the city of Oshkosh, is valid.

It is urged by appellants that such conclusion as we have now reached conflicts with the decision in Beurhaus v. Cole, 94 Wis. 617, 69 N. W. 986, in which case two parcels of real estate were granted to the city of Watertown “in trust” to be used in perpetuity, one as the location for “a home for aged and poor people of the city,” the other, outside the city limits, as “a driving park and agricultural grounds.” The obvious 'distinction between the two cases is that in the present we conclude that no trust was created, while in the former it was conceded by both litigants and assumed by the court that the only title conferred on the city was in trust and as trustee, so that express or necessarily implied prohibition against alienation was effectual. Whether the court might have reached a different view as to the quality of the title granted as to one or other of the parcels of land, had the question been raised and investigated, we need not decide. Its ultimate decision was based on an assumed condition which does not exist here. It may properly be remarked, however, that there were circumstances in the Gole Case, absent here, tending to support at least the contention that only a trust *281 title was granted. Tbe language of tbe will very clearly expressed sueb an intent. Tbe purpose, certainly as to tbe borne for aged and poor, was far less clearly for tbe sole and exclusive purpose of tbe municipal corporation, altbougb it might bave been sufficiently germane and aidful to its general purposes to enable it to accept a donation of property to be so applied. There is authority- to tbe effect that a municipal corporation has inherent power to receive gifts of property in trust to promote purposes not so strictly municipal that a ■city could undertake them originally at general expense. Maynard v. Woodard, 36 Mich. 423, 426; Chambers v. St. Louis, 29 Mo. 543, 579; Vidal v. Girard’s Ex’rs, 2 How. 127; Perin v. Carey, 24 How. 465, 505. Whether such power rests in our Wisconsin municipal corporations, however, we need not decide in distinguishing this case from Beurhaus v. Cole, for the reasons stated. If tbe assumption -of a trust in that case was not warranted by tbe facts, it was by consensus of tbe litigants.

Eor tbe reasons stated, we bold that tbe assignment and •distribution of certain portions of tbe estate to tbe trustees, Bouch et ad., for tbe purposes expressed in tbe final or’der of tbe county court, was in accordance with law, and, there being no other complaint of that order, that its affirmance by tbe circuit court was without error.

By the Court. — Judgment affirmed.