Tharp v. Seventh Day Adventist Church

Trusts: Definiteness in designating beneficiary: Bequest to “Seventh Day Adventist Church:” Cy pres. 1. An action calling for the construction of a will is an exception to the rule that, notwithstanding the circuit court has con- - current jurisdiction with the county court, it will refuse to .assume jurisdiction unless lack of power to grant adequate relief in the county court is clearly shown, p. 111. 2. A bequest in trust for the benefit of the “Seventh Day Adventist Church,” to be used principally for the publication and distribution of tracts and literature teaching its doctrine, and to be paid to the “proper trustees” of said church, is void for uncertainty in view of the various organizations of the church, the absence of any local church, the fact that testator was not a member or attendant of any such church, etc. p. 111. . 3. The doctrine of cy pres does not obtain in this state, p. 112. 4. The beneficiary of a trust must be designated with reasonable certainty or the trust fails, p. 112. Eschweiler, J., dissents.

Appeal from a judgment of the circuit court for Sawyer county: James Wickham, Circuit Judge. Action begun in the circuit court tO' construe the will of Jackson Tharp, deceased, who died leaving a will containing among others the following provision: “I give, devise, and bequeath all of my property, real, personal, or mixed, of whatever kind and wherever situated, to J. M. Smith of Shell Lake, Wisconsin, as trustee and in trust for the following express purposes, to wit: . . . All the rest, residue, and remainder of my estate of every kind and nature to be held by my said trustee for the benefit of the Seventh Day Adventist Church, to be used principally for the publication and distribution of tracts and literature teaching its doctrine. One thousand dollars to be paid to the proper trustees of the said church on the 21st day of October of each calendar year for nineteen (19) years and the balance then remaining to be paid on the 21st day of October of the twentieth year after my decease'.” As facts the trial court found: “That the Seventh Day Adventists constitute an unincorporated religious denomination whose members maintain numerous church buildings for religious worship throughout the country and in most of the other countries of the world. Said members also maintain numerous organizations, both incorporated and unincorporated, but the words 'Seventh Day Adventist Church’ do- not designate nor identify any special or particular corporation, society, or organization. The local church organization is unincorporated and has as its officers an elder, a deacon, a clerk, a treasurer, and a missionary secretary. There are incorporated in each state in this country one or more corporations, each called a 'Conference/ which holds the title to all Adventists Church property within certain designated territory. There are two such corporations in this state, one of which' is the defendant North Wisconsin Conference Association of Seventh Day Adventists, which holds the title to forty-four church buildings located in the Northern Peninsula of Michigan and in the northern part of this state including Sawyer county, the south line of this, territory being the south line of Chippewa county. Various union conferences, each covering the territorial jurisdiction of several local conferences, are also incorporated, one of such union conferences being the 'Lake Union Conference Association of Seventh Day Adventists,’ incorporated in the state of Michigan and having territorial jurisdiction covering the states of Wisconsin, Michigan, Illinois, and Indiana. One general conference, called 'General Conference of Seventh Day Adventists,’ located atWashington in the District of Columbia, is also incorporated, having territorial jurisdiction throughout the world. Each of these corporations owns in its own right certain property, and each of them, as well as the local church organizations and other persons, engage in the prab-' tice of distributing tracts ánd literature teaching the doctrine of the Seventh Day Adventists. Most of said tracts and literature are printed by certain other corporations affiliated with the corporations above mentioned. The power and jurisdiction of the union conference over the local conference, and the power and jurisdiction of the general conference over the union conference, is of an advisory character only and is not compulsory either as to matters' of discipline, local government, or religious doctrine, and therefore the practices, methods, and teachings of the various local conferences are not necessarily the same. All of the facts found to exist by this finding have continued to exist since the time of the making of said will. That Jackson Tharp, during his lifetime, was not a member of said Seventh Day Adventists nor a member nor an attendant of any of its local churches nor of any of said corporations-. That no such local church existed in the vicinity of his residence at the time of the making of his will, although some such churches existed in neighboring communities in an adjoining county.” As conclusions of law the court held that the trust in be-' half of the Seventh Day Adventist Church was “invalid, void, and incapable of execution for the following reasons: “(a) Because it is impossible to determine from the provisions of the will, in the light of surrounding circumstances/ what particular corporation, person, or organization the testator intended should receive said property, (b) Because as a private trust, in addition to its failure to identify the intended beneficiary, the trust is not fully expressed nor clearly defined by the terms of the instrument creating it; and (c) Because as a charitable or public trust, in addition to the failure to identify the intended beneficiary, no method is provided by said will to ascertain or determine what part, portion, or percentage of said bequest was intended to constitute the principal portion thereof or how the balance thereof should be used, or expended, and because no power to designate the particular charitable or public purpose or purposes to be promoted thereby is given by the will to said J. M. Smith, trustee, or to any other person or persons.”