I must respectfully dissent in this case. In doing so I must acknowledge that I am not certain that I fully comprehend just what general propositions have, and just what general propositions have not, been determined in this case. Nor am I certain as to how many of the former decisions of this court have been in part overruled, doubted, questioned, or distinguished, notwithstanding the statement near the close of the opinion filed, to the effect that nothing “ new for this state has been decided in this case,” and that there has been no “ departure from the law heretofore decided.” The general rule undoubtedly is that a decision of any court “ not in harmony with some of its previous decisions has the effect to overrule those with which it is in conflict, whether mentioned and commented on or not.” Asher v. Texas, 128 U. S. 129. But it is also a well-recognized general rule “ that the positive authority .of a decision is coextensive only with the facts on which it is made.” Chief Justice Marshall, in Ogden v. Saunders, 12 Wheat. 333. Evans v. Virgin, 72 Wis. 427.
*526I have no purpose here of discussing any of the propositions involved in this case,— much less those considered in-the opinion filed, and which, in my judgment, are not involved in this case. I merely state my position in order to-show the limit of my responsibility. I do not understand that the question of perpetuities is involved in the case, or suggested by anything in the record. The trustees were-commanded to expend all funds within five years. I concur in some of the conclusions reached by the court. The-direction in the will to convert real estate into personalty is clearly mandatory, and, under the repeated decisions of' this court, the real estate must be regarded as personal property. Ford v. Ford, 70 Wis. 46-48, and cases there cited. The clause in the will giving the greater portion of such, trust funds for the benefit of Crystal Spring Lodge, I. O.. G. T., and the Woman’s Christian Temperance Union of Milwaukee, I think may be sustained, as they are both found by the court to be existing corporations under- the laws of this state. True, the findings leave the inference- that one of them is a mere defaoto corporation. This court has-gone-so far, however, as to sustain bequests to a corporation not. in existence at the death of the testator, but to> be- subsequently incorporated and organized. In re Taylor Orphan Asylum, 36 Wis. 534; Dodge v. Williams, 46 Wis. 100-102; Gould v. Taylor Orphan Asylum, 46 Wis. 106; Webster v. Morris, 66 Wis. 394-397. Those cases, or some- of them, might have been decided differently in the absence of any direction to establish such contemplated corporation. The corporations, in the case at bar, wrere to have at least one half of three fourths of the net proceeds of the estate, and more, if not all, in case either of such corporations should erect the building therein mentioned. But the balance of such net proceeds, if any, was to be “ used and expended ” by the trustees “ in temperance work in said city of Milwaukee, as their best judgment shall dictate.” In my judgment. *527such, mere direction to use and expend money in temperance' work, like a mere direction to expend money “ for charitable purposes,” at large, is too indefinite and uncertain to be carried into execution under the repeated rulings of this court, cited in the opinion filed, and under the rulings of numerous other courts, some of which are cited in the opinion filed. Of course, I do not refer to English decisions based on the statute of 43 Eliz. ch. 4 (2 Stat. 708), nor to decisions-from states which have adopted, in substance or in fact, that statute. This court has repeatedly held, in the cases cited in the opinion filed, that that statute was not in force in this state. “ By that statute it was made lawful for- the-‘Lord Chancellor, as keeper of the great seal, . . . to> authorize four or more persons,’ in case of such general bequest, to devise and carry into execution a charitable scheme-of the character indicated in the act.” Webster v. Morris, 66 Wis. 391. “ That was a prerogative power exercised by the-keeper of the great seal as the representative of the- king, and not by him sitting merely as chancellor.” Id. But the courts of this state, as held in the cases referred to- in- the-opinion filed, have no such prerogative jurisdiction, but “ only a strictly judicial power.” Id. Of course, all judicial powers which existed before the enactment of that statute necessarily existed outside of the statute, and hence are no part of the statute. That statute was for the very purpose of enabling the chancellor, not as a judge, but as the representative of the crown, to devise a scheme to carry out any of the numerous general purposes mentioned in the act (of which temperance is not one), for and in the place of the testator; that is to say, to make a complete disposition of his property, which the testator had failed to make.
In Dodge v. Williams, 46 Wis. 90, Chief Justice Ryan quoted from Chief Justice Gibson this sentence: “Every sane man must be allowed to make his own contract as welli as his own will.” He then added: “ That great jurist plainly *528suggests that courts have no more authority to mate wills for the dead, than contracts for the living, according to judicial notions of fitness and propriety.” Id. The testatrix, in the clause of her will in question, directed the money tó be expended in temperance work; but no reference is made as to how or in what manner it was to be so expended, or to whom paid, or who should be the beneficiaries. In other words, and with the construction placed upon it by my brethren, it authorizes the trustees to make a will for the deceased which she failed to make for herself. ‘This, in my judgment, is a wide departure from the principles of law which have long been established in this and other courts where the ey pres doctrine under the English statute mentioned is not in force. That doctrine, as I understand it, allowed the representatives of the crown, under the act of parliament mentioned, to substitute what, in their judgment, was practically the nearest to what was supposed to be intended by the testator, but what he in fact had failed to express. Even in England, where that doctrine and that statute have been in force for 300 years, it has been held that a bequest to the bishop of Durham, his executors, etc., upon trust to pay the debts of the testatrix, and legacies, etc., and “ to dispose of the ultimate residue to such objects of benevolence and liberality as the bishop of Durham, in his own discretion,” should most approve of, and then appointing the bishop her sole executor, was void, because it was not within the terms of the statute of Elizabeth. Morice v. Bishop of Durham, 9 Ves. 399. In that case that eminent master of the rolls, Sir WilliaM GRANT, said: “If there be a clear trust, but for uncertain objects, the property that is the subject of the trust is undisposed of, and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner. But this doctrine does not hold good with regard to trusts for charity. Every other trust must have a definite object. There must be some-*529bod/y in whose favor the court can decree performance. , . . Then is this a trust for charity? Do purposes of liberality and benevolence mean the same as objects of charity ? That word, in its widest sense, denotes all the good affections men ought to bear toward each other; in its most restricted and common sense, relief of the poor. In neither of these senses is it employed in this court. Here its signification is derived chiefly from the statute of Elizabeth. Those purposes are considered charitable which that statute enumerates, or which by analogies are deemed within its spirit and in-tendment, and to some such purpose every bequest to charity generally shall be applied. But it is clear, liberality and benevolence can find numberless objects not included in that statute, in the largest construction of it. . . . By what rule of construction could it be said all objects of liberality and benevolence are excluded which do not fall within the statute of Elizabeth ? The question is not whether he may not apply it upon purposes strictly charitable, but whether he is bound so to. apply it ? I am not aware of any case in which the bequest has been held charitable where the testator has not either used that word to denote his general purpose, or specified some particular purpose which this court has determined to be charitable in its nature.” Id. 405, 406. So the trust in that case was held void for uncertainty, because “ benevolence and liberality ” were not mentioned in, and hence not supported by, 43 Eliz. ch. 4. Neither is temperance or temperance work mentioned in that statute, and yet it is as general and indefinite as “ benevolence and liberality.” Besides, it opens the door for the dissipation of the estates of persons who have no definite conception of what disposition they would make of their property, and so leave their property to be disposed of by their trustees after having expressed a general purpose or object of the bequest.